Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

No Deductions for Legal Medical Marijuana Dispensary

Author: James F. McDonough

Date: August 20, 2015

Key Contacts

Back

Last week, the Ninth U.S. Circuit Court of Appeals ruled that legal medical marijuana dispensaries cannot claim business expenses to the IRS as other commercial enterprises.

Legal Medical Marijuana Dispensaries

According to Forbes, the decision is considered a financial setback for legal medical marijuana dispensaries because, with business deductions being disallowed, they must pay taxes on 100 percent of their gross income. The decision is a blow to dispensaries across the country that have flourished in states that voted to legalize the use of medicinal marijuana.

The decision

In the case of Olive V. Comm., the Ninth Circuit upheld the federal tax law to disallow tax deductions despite the legal status of dispensaries in California. According to Judge Susan Graber, the Court affirmed Sec. 280E of the federal tax code that denies deductions for the expenses of “trafficking in controlled substances.” The ruling stated that a medical marijuana dispensary cannot deduct expenses from taxable income because their only commercial product is a controlled substance prohibited by federal law. Despite the various services offered by the taxpayer in the case, the Court ruled that since marijuana sales were the only activity in which the taxpayer engaged in with the “intent of realizing a profit”, it was therefore a “trade or business” involved in trafficking a controlled substance, and thus not eligible for expense deduction.

The case

The case involved Martin Olive, owner and operator of the Vapor Room in San Francisco, who appealed a Tax Court ruling to deny his business expense deductions. In the appeal, Olive argued that Sec. 280E’s use of the phrase “consists of” applied to the Vapor Room because it offered other services in addition to marijuana sales, thereby entitling the enterprise to expense deductions.

However, since these services were free, the Court ruled that all of the  $655,000 in business expenses from the Vapor Room between 2004 and 2005 were disallowed. The Court also rejected Olive’s argument that the Vapor Room was entitled to deductions under Californians Helping to Alleviate Medical Problems, Inc. v. Comm, which allowed expense deductions related to sales of counseling and caregiving services. In that earlier case, the court held that section 280E does not preclude petitioner from deducting expenses attributable to a trade or business other than that of illegal trafficking in controlled substances simply because petitioner also is involved in the trafficking in a controlled substance.  Judge Graber stated that the Vapor Room could not deduct any such expenses because the business did not charge for those services, and marijuana sales are not considered counseling and caregiving services.

Room for optimism

Although the ruling bans tax deductions for enterprises with marijuana sales as their sole source of revenue, dispensaries are eligible for standard business expense deductions for additional products for sale. In an interview with the SF Gate, Olive’s lawyer Henry Wykowski noted that medical marijuana dispensaries can claim expenses from sales of other commercial products, including food and services. The difficulty will be apportioning business expenses between the permissible activities and the impermissible activity

“The decision will benefit dispensaries that sell a variety of products including those that are not cannabis,” explained Wykowski. “I don’t think it’s a blow to the industry at all.”  However, the decision was not a “win.”

A recent ABA Journal article reported on the application by a marijuana trade group for a Colorado state credit union charter because banks were unwilling to accept cash deposits from dispensaries.  It will be interesting to learn if that application is granted.

The topic of the use of medical marijuana is growing traction throughout the nation. As a business owner or as a user what are your thoughts on medical marijuana?

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
What to Do If You Are Impacted by a Retailer Bankruptcy Part 2 post image

What to Do If You Are Impacted by a Retailer Bankruptcy Part 2

Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]

Author: Brian D. Spector

Link to post with title - "What to Do If You Are Impacted by a Retailer Bankruptcy Part 2"
The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business post image

The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business

Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]

Author: Dan Brecher

Link to post with title - "The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business"
Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1 post image

Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1

The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]

Author: Brian D. Spector

Link to post with title - "Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1"
How Understanding Bankruptcy Trends Can Benefit Your Business post image

How Understanding Bankruptcy Trends Can Benefit Your Business

The bankruptcy legal landscape presents both challenges and opportunities for businesses navigating financial distress. Understanding current bankruptcy trends can help businesses make more informed and strategic decisions. Corporate Bankruptcy Filings Trending Upwards Bankruptcy filings continued to trend upwards in 2024. According to statistics released by the Administrative Office of the U.S. Courts, personal and business […]

Author: Brian D. Spector

Link to post with title - "How Understanding Bankruptcy Trends Can Benefit Your Business"
SEC Takes Actions Against Issuers for Failure to File Form D post image

SEC Takes Actions Against Issuers for Failure to File Form D

In December, the U.S. Securities and Exchange Commission (SEC) announced charges against two privately held companies for failing to file a Form D notice, which is generally utilized for exempt securities offerings. Here, the SEC’s enforcement sends a strong message: compliance with regulatory requirements is not optional and failure to comply can have significant consequences. […]

Author: Kenneth C. Oh

Link to post with title - "SEC Takes Actions Against Issuers for Failure to File Form D"
Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda post image

Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda

On February 14, 2025, the Office of General Counsel (OGC) of the National Labor Relations Board (NLRB) under Acting General Counsel William B. Cowen issued Memorandum 25-05, “New Process for More Efficient, Effective, Accessible and Transparent Case handling.” The Memorandum rescinds nearly all of the Memoranda issued by his direct predecessor, Jennifer Abruzzo, setting the […]

Author: Matthew F. Mimnaugh

Link to post with title - "Redefining Labor Relations: NLRB's Pivot from Abruzzo’s Memoranda"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!

Please select a category(s) below: