The Biden keeps sort of promising/pushing rescheduling – will be in time to help the industry this year? 

The public has turned a corner about marijuana use. Except for a few older members in Congress (Mitch McConnell being one), the majority of the US and Canadians believe cannabis should be legal. The American Medical Association, founded in 1847 and long the platinum standard of medical decision in the US, has declared marijuana has medical benefits.  But the older members of the current administration, and most likely Biden himself, are still reluctant to make a move to help patients, people and the industry. The concern is will rescheduling come in time to help the marijuana industry in 2024.

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In October of 2022, in order to fulfill a campaign promised to younger voters, the government decided to look at scheduling. Both Health and Human Services (HHS) and the Food and Drug Administration (FDA) did the research and recommended to the Drug Enforcement Agency (DEA) to reschedule it from a dangerous drug to one with health benefits. While the DEA has never not followed their decision, the DEA has been quiet about doing so regarding cannabis. And time has marched on, rumor was it would be declared by the end of 2023, then 4/20, now maybe the end of summer.

And while customers continue to spend on legal weed, the underpinning of of the industry is crumbling with zero tax benefits, onerous decisions and a business stigma. The Vice President mentioned it should move forward and the President tried to take credit during his State of the Union address, but nothing has happened.

A key benefit is rescheduling would allow the industry typical business tax write offs. Currently, businesses which touch the plant can take zero tax deductions, but have the gift of extra business expenses. Rescheduling with give an industry with 50+% mom and pop businesses a chance. A decision will have to be made by the beginning of October to have any sway with young voters for the election, but will be it be too late to help this year? And how many small businesses will be hurt or be forced to close.

In political circles, it is clear while this isn’t a policy wanted by Biden and his team, it is a necessary one to help attracting increasingly distant younger voters. The DC rumor mill says a decision will be made in the fall if a decision is “need” or if they have regained enough ground with young voters.

Lonnie Rosenwald from Zuber Lawler shared “Whether the timing of rescheduling makes a difference depends on the effective date. For example, if the effective date is January 1, 2025, companies could deduct their ordinary and necessary business expenses on their 2025 federal income tax returns.”

“Rescheduling could be retroactive, in which case companies would need to file amended returns claiming deductions for past years quickly enough to avoid the running of the statute of limitations. Finally, if rescheduling is effective in 2024, it should be retroactive to January 1, 2024, regardless of the specific effective date of rescheduling. Companies that overpaid their 2024 taxes in making quarterly payments prior to the effective date of rescheduling would be able to claim deductions for ordinary business expenses for the entire year, and to receive refunds in 2025 for their overpayments.”

The general feel in the industry is the rescheduling decision needs six months of runway to go into effect before the elections. However, there is the potential to skip the interim process and go right to a final ruling and, in theory, this could happen as late as September.