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
Why Every Business Should Conduct an Annual Insurance Coverage Review post image

Why Every Business Should Conduct an Annual Insurance Coverage Review

Most New Jersey business owners purchase insurance policies, file them away, and assume they are protected if a claim arises. Without a regular insurance coverage review, many companies discover gaps only after a lawsuit, cyberattack, property loss, or other significant event occurs. An annual insurance coverage review can help businesses identify potential risks, ensure their […]

Author: George McGowan

Link to post with title - "Why Every Business Should Conduct an Annual Insurance Coverage Review"
Demand Letters & Cease and Desist Letters: When to Send One (and When Not To) post image

Demand Letters & Cease and Desist Letters: When to Send One (and When Not To)

Businesses and individuals often encounter situations where another party breaches a contract, fails to pay a debt, or continues harmful conduct. In many such disputes, a precisely drafted demand letter or cease-and-desist letter serves as a powerful legal tool. It can frequently resolve the dispute and avoid litigation. While demand or cease-and-desist letters can resolve […]

Author: George McGowan

Link to post with title - "Demand Letters & Cease and Desist Letters: When to Send One (and When Not To)"
How to Effectively Use Contracts to Manage Risk post image

How to Effectively Use Contracts to Manage Risk

Key provisions in your contracts, including those relating to indemnification, insurance, and defense, are essential to contract risk management. While sometimes considered “boilerplate,” these provisions play a pivotal role when determining which party is responsible for certain costs and liabilities. They must always be negotiated and drafted carefully. Indemnification Clauses Businesses should never overlook the […]

Author: George McGowan

Link to post with title - "How to Effectively Use Contracts to Manage Risk"
Understanding Portability for Estate and Gift Tax post image

Understanding Portability for Estate and Gift Tax

Portability of estate and gift tax enables a surviving spouse to inherit any unused portion of their deceased spouse’s federal estate and gift tax exemption. So, if one spouse doesn’t utilize their full exemption, the surviving spouse can effectively double their exemption amount with regard to estate tax liability. For married couples, portability offers a […]

Author: Marc J. Comer

Link to post with title - "Understanding Portability for Estate and Gift Tax"
Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool post image

Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool

For many of us, pets are more than companions—they are members of the family. Yet they are often overlooked or inadequately provided for when it comes to estate planning. A pet trust offers a legally enforceable way to ensure that your animal continues to receive proper care if you become incapacitated or pass away. As […]

Author: Marc J. Comer

Link to post with title - "Pet Trusts in New Jersey and New York: A Practical Estate Planning Tool"
How Can Trusts Be Used in Business Succession? post image

How Can Trusts Be Used in Business Succession?

For many New Jersey business owners, a closely held company represents decades of work, financial investment, and personal sacrifice. Trusts in business succession planning are one of the most effective tools for protecting that value, allowing founders to control how and when the business passes to the next generation while reducing the risk of disputes, […]

Author: George McGowan

Link to post with title - "How Can Trusts Be Used in Business Succession?"

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. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

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