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The Dangerous 280E Tax Battle of Cannabis Companies vs. the IRS

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Tens of millions of dollars in tax savings and a sharp rise in cash on hand are among the immediate short-term benefits that the five major multistate marijuana operators—Ascend Wellness Holdings, Cresco Labs, Curaleaf Holdings, TerrAscend Corp., and Trulieve Cannabis Corp.—are enjoying as a result of their recent declaration of exemption from Section 280E of the Internal Revenue Code.

 

Tax lawyers and risk specialists, however, caution that this choice is likely to start a protracted and costly legal battle with the IRS, which might result in fines of millions of dollars on top of already outstanding tax obligations.

 

“As the saying goes, if something sounds too good to be true, it usually is,” said San Francisco-based tax attorney Henry Wykowski, who has represented several significant 280E-related cases before federal tax courts. “We believe this more aggressive strategy is reckless and will ultimately backfire on those who are pursuing it.”

 

MSOs Challenge 280E: A Bold Breakaway

 

The first company to break away from Section 280E was Trulieve, headquartered in Tallahassee, Florida, which took its bold stance last fall and claims to have received substantial refunds.

 

Other companies that followed include:

 

– Ascend Wellness, a New York-based operator, announced the quarter after Trulieve that it had filed amended returns seeking refunds dating back to 2020 and would file as a “normal corporate taxpayer” for 2023.

– TerrAscend, a Canadian-headquartered company with U.S. assets, declared its position in March.

– Curaleaf, a New York-based multistate operator (MSO), reiterated in August that 280E no longer applies to them.

 

Chicago-based Cresco Labs, the most recent business to take this chance, recently disclosed its strategy to shareholders during a quarterly earnings call.

 

Chief financial officer Dennis Olis of Cresco stated, “With regard to taxes, we intend to file as a normal business in 2023 and beyond.” He predicted the company would save $65 million in “estimated tax savings” by 2024.

 

Costs paid during the “trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act)” are not eligible for deduction or credit, according to Section 280E.

 

As a result, American marijuana companies face billions in “excess taxes” that wouldn’t apply otherwise, according to Oregon-based economist Beau Whitney.

 

The prospect of freedom from 280E is one of the major benefits of rescheduling, and companies of all sizes are expected to see significant gains once the Biden administration finalizes the proposal to move marijuana to Schedule 3.

 

Until then, however, the IRS has made its stance clear.

 

“Taxpayers seeking a refund of taxes paid related to Internal Revenue Code Section 280E by filing amended returns are not entitled to a refund or payment,” the IRS stated in June.

 

“Although the law has not changed, some taxpayers are filing amended returns,” the agency added. “The grounds for filing such claims vary, but these claims are not valid. The IRS is taking steps to address these claims.”

 

MSOs Brace for Legal Battle Over Tax Exemption

 

Preparing for a prolonged battle with the federal tax agency could be a strategy for marijuana companies to buy time until they can fully benefit from significant reforms, such as rescheduling or the potential legalization of adult-use cannabis in markets like Florida.

 

Declaring independence from Section 280E also improves their balance sheets, which could make these companies more appealing to investors.

 

However, this approach may come at a cost: a confrontation with the IRS.

 

While addressing “a short-term problem” with cash flow, these companies are “inviting a fight” with the IRS, according to Dotan Melech, a former court-appointed receiver and federal bankruptcy trustee who now serves as CEO of Dallas-based CTrust, a credit-rating and risk-monitoring agency for the cannabis industry.

 

In the case of Ascend, a conflict with the IRS may already be underway. The company’s quarterly filings reveal that it has been “selected for examination of its amended tax return.”

 

An audit battle that ends in relief could be worthwhile for a well-capitalized, publicly traded MSO, provided that the company’s board and investors have allocated resources for what is likely to be a multiyear court struggle, Melech noted.

 

“Maybe they have enough firepower to see this fight through – but nevertheless, it’s a fight,” he said, adding that while the MSOs have a slim chance of winning, it is still a possibility.

 

“I commend them for taking the lead and possibly setting a precedent that could benefit many others.”

 

However, not everyone shares this optimism.

 

“This just isn’t going to work,” said Wykowski, who has handled several 280E cases, including a 2007 decision allowing a cannabis-related business to deduct expenses not directly tied to the sale of cannabis.

 

Wykowski mentioned that several companies, which he declined to name, approached his firm to argue for an exemption from 280E.

 

“This isn’t a solid position. We’re not going to support it because we know what could go wrong here.”

 

One of the risks, he pointed out, is a 20% penalty the IRS could impose on a company seeking a refund that is ultimately denied—20% on top of the taxes the IRS determines the business owes, plus the cost of litigation.

 

“I’m not sure these companies have fully understood the consequences,” Wykowski said.

 

“And those consequences are much more severe than people realize.”

 

Bottom Line

 

The bold move by major multistate marijuana operators (MSOs) to defy Section 280E of the Internal Revenue Code could bring significant short-term financial relief, but it also sets the stage for costly legal battles with the IRS. By claiming exemption, these companies are challenging a provision that has long burdened the cannabis industry with excessive tax liabilities. While this strategy might enhance cash flow and investor appeal, it comes with considerable risks, including potential IRS penalties and protracted litigation. As the cannabis sector awaits potential federal reforms like rescheduling, the decision to confront the IRS may buy time but could also lead to severe financial consequences. The outcome of this gamble will likely shape the future of cannabis taxation and set a critical precedent for the industry, but the road ahead is fraught with uncertainty and high stakes.

 

IS A 280E CASH RETURN A GOOD IDEA? READ ON…

280E TAX REFUND FOR $113 MILLION

SHOULD MARIJUANA COMPANIES GET $113 MILLION BACK FROM 280E?



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Another Setback for Recreational Marijuana in Florida…

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In the 2024 election, Florida’s Amendment 3, which sought to legalize recreational marijuana for adults aged 21 and over, garnered 55.9% support —falling short of the 60% supermajority required for constitutional amendments in the state. This outcome has left proponents of marijuana reform contemplating the next steps to achieve legalization.

 

Understanding the Defeat of Amendment 3

Amendment 3 aimed to permit adults to possess up to three ounces of marijuana and five grams of cannabis concentrate for personal use. It also proposed allowing existing Medical Marijuana Treatment Centers to sell marijuana to adults for recreational purposes.

Despite receiving a majority vote, the amendment did not meet Florida’s stringent 60% threshold for constitutional changes.

 

Several factors likely contributed to the amendment’s defeat. Governor Ron DeSantis led a robust campaign against the measure by utilizing state funds and significant donations, including $12 million from billionaire Ken Griffin, to fund opposition efforts. The opposition’s messaging focused on concerns about public safety, potential increases in crime, and the societal impact of legalizing recreational marijuana.

 

Legal Perspectives on the Outcome

Criminal attorney Joshua Padowitz, who has extensive experience in drug-related cases, both as prosecutor and defense attorney, offers insights into the implications of the amendment’s failure. “The defeat of Amendment 3 means that individuals in Florida will continue to face criminal penalties for possession of marijuana, even in small amounts,” Padowitz explains. “This perpetuates a flawed, unjust system where non-violent offenders are subjected to legal consequences that can have lasting effects on their lives.”

 

Padowitz astutely emphasizes the need for reform, stating, “The current legal framework appears to disproportionately affect minority communities and contributes to the overburdening of our criminal justice system. Legalizing recreational marijuana could alleviate some of these issues by reducing the number of individuals prosecuted and jailed for minor drug offenses. Here in Broward County, Florida, elected State Attorney Harold Pryor has boldly and commendably enacted a policy in his office to not prosecute most minor marijuana possession cases, which effectively discourages law enforcement from pursuing these types of arrests. Unfortunately, Pryor’s forward-thinking directive is not uniform throughout the State of Florida and it remains a criminal offense, subjecting a person to a deprivation of their liberty and a criminal record if convicted.”

 

Steps Forward for Advocates of Recreational Marijuana

Despite the setback, supporters of marijuana legalization in Florida are exploring various avenues to advance their cause:

  1. Legislative Advocacy: Engaging with state legislators to introduce and support bills that decriminalize or legalize marijuana. Building coalitions with lawmakers who recognize the benefits of legalization is crucial.

  2. Public Education Campaigns: Informing the public about the benefits of legalization, including economic growth, job creation, and the potential for tax revenue. Addressing concerns about public safety and health through evidence-based information can shift public opinion.

  3. Future Ballot Initiatives: Analyzing the shortcomings of Amendment 3 to craft a more comprehensive proposal for future elections. Gathering broader support and ensuring clear, concise language can improve the chances of meeting the 60% threshold.

  4. Legal Challenges: Exploring the possibility of challenging existing marijuana laws in court, arguing that they are unconstitutional, outdated, or do not reflect current societal norms and scientific understanding.

 

The Role of Medical Marijuana Providers

Companies like Trulieve, Florida’s largest medical marijuana operator, have been significant proponents of legalization efforts. Trulieve contributed nearly $145 million to the campaign supporting Amendment 3. Their involvement underscores the potential economic benefits of a legal recreational market.

 

However, the defeat of Amendment 3 has financial implications for these companies. Following the election, cannabis stocks experienced a sharp decline, reflecting investor disappointment. This economic impact may motivate continued advocacy from industry stakeholders.

 

Public Opinion and Future Prospects

Public support for marijuana legalization has been growing nationwide. A 2023 Gallup poll indicated that approximately 70% of Americans support legalizing marijuana. In Florida, the 55.9% support for Amendment 3 demonstrates a majority favoring legalization, even if it did not meet the required threshold.

 

Advocates can leverage this support by mobilizing grassroots campaigns, engaging in community outreach, and highlighting successful legalization efforts in other states. By addressing concerns and presenting a unified, well-organized front, proponents can work towards achieving legalization in future elections.

 

Concluding Thoughts

The defeat of Florida’s Amendment 3 in the 2024 election is certainly a major setback for proponents of recreational marijuana legalization. However, the majority support it received indicates a shifting perspective among Floridians. By learning from this experience and employing strategic advocacy, public education, and legislative efforts, supporters can continue to push for reform. As attorney Joshua Padowitz encouragingly  notes, “Change is often a gradual process, but with persistent effort and a focus on justice and equity, we can move towards a legal framework that reflects the will of the people and the realities of modern society.”

 



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Margin Compression Madness – $1,000 Fine for Selling Weed at Too Low of a Price?

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A cannabis store in Revelstoke, British Columbia, has been fined $1,000 for selling products at a 50% discount, violating provincial regulations. The Liquor and Cannabis Regulation Branch (LCRB) determined that the sale breached rules against selling cannabis below cost. The penalty was issued following a hearing in October, with the fine due by November 23, 2024. This incident highlights ongoing regulatory scrutiny in the cannabis industry as it navigates complex pricing laws.

 

The trouble began when Fresh Cannabis Co. Inc., operating as Cost Cannabis, advertised a massive sale on all products and accessories, slashing prices by half. This promotion caught the attention of the LCRB after a complaint was lodged on April 22, 2024. An inspector visited the store just days later to investigate whether the store was indeed selling cannabis below the minimum prices set by the government.

 

During the inspection on April 25, the inspector asked about four specific products, and staff confirmed that their sale prices were lower than their listed prices. However, when asked for documentation regarding their purchase prices, the store could not provide it at that moment. This lack of transparency raised further concerns.

 

After a thorough investigation that included requests for sales records and inventory lists, it became clear that Cost Cannabis was selling products below both the price they paid to the provincial distributor and the wholesale price. The LCRB’s ruling emphasized that such practices could lead to public safety issues, including over-consumption and loss of control among consumers.

 

Regulations surrounding cannabis sales in British Columbia

 

The regulations surrounding cannabis sales in British Columbia are designed to create a safe and stable market. The LCRB enforces rules that prevent retailers from selling cannabis at prices lower than what they paid to ensure fair competition and consumer safety. These measures aim to deter practices that could lead to over-service or over-consumption of cannabis products.

 

In this case, Dianne Flood, a delegate from the LCRB, noted that the store should have anticipated that a blanket promotion of 50% off would raise red flags for regulators. She pointed out that there was no evidence showing that Cost Cannabis had taken steps to prevent such violations from occurring.

 

 Cost Cannabis Defense

 

Faced with the fine, Cost Cannabis admitted to violating minimum pricing rules but argued that these regulations do not effectively prevent over-service or over-consumption. They contended that the persistent presence of an illicit market—where cannabis can be purchased at significantly lower prices—poses a greater risk of unsafe consumption than licensed retailers selling below minimum prices.

 

The store highlighted that many consumers still turn to unregulated sources for their cannabis needs because of price disparities. They claimed this underground market is often more likely to contribute to public safety issues due to potentially tainted products.

 

Despite their arguments, Flood concluded that the violation had been proven and imposed a $1,000 fine—the minimum penalty for such an infraction. She stated that first-time violations could result in either a monetary penalty or a short suspension of the business’s license.

 

 Broader Industry Implications

The incident involving Cost Cannabis in Revelstoke, British Columbia, raises significant questions about pricing strategies within the province’s legal cannabis market. As retailers navigate an increasingly competitive landscape, they must find a balance between competitive pricing and regulatory compliance while addressing consumer preferences influenced by a persistent illicit market.

 

  1. The Challenge of Compliance

 

The fine imposed on Cost Cannabis for selling products at a 50% discount highlights the stringent regulations governing cannabis pricing in British Columbia. Retailers are prohibited from selling cannabis below the price they paid to the government or below the wholesale price. This regulation aims to prevent practices that could lead to over-consumption and protect public safety. However, it also creates challenges for retailers who want to attract customers in a crowded market.

 

  1. Understanding Regulatory Frameworks: Retailers must have a clear understanding of the regulations that govern their pricing strategies. Compliance with minimum pricing laws is crucial not only to avoid penalties but also to maintain their licenses and reputations. Failure to comply can result in fines, as seen in this case, and can damage consumer trust.

 

  1. Strategic Pricing Models: Developing a strategic pricing model that aligns with both regulatory requirements and market expectations is essential. Retailers should conduct thorough market analyses to understand competitor pricing and consumer behavior. This understanding can help them position their products effectively while adhering to legal standards.

 

  1. The Impact of the Illicit Market

 

The ongoing presence of the illicit cannabis market complicates pricing strategies for legal retailers. Many consumers still turn to unregulated sources for cheaper products, which can undermine the efforts of licensed stores.

 

  1. Consumer Education: Educating consumers about the benefits of purchasing from licensed retailers is vital. Legal products are subject to safety regulations and quality controls that illegal products do not adhere to. Retailers can leverage this information in their marketing strategies to encourage consumers to choose legal options over cheaper illicit alternatives.

 

  1. Advocacy for Regulatory Change: Retailers may need to advocate for changes in regulations that could help level the playing field with the illicit market. This could include lobbying for adjustments in taxation or minimum pricing laws that allow licensed stores more flexibility in their pricing strategies.

 

 

  1. Long-term Sustainability and Market Dynamics

The fine against Cost Cannabis underscores broader issues related to sustainability and competition within the cannabis industry.

 

  1. Market Stability: Maintaining stable prices is essential for the long-term viability of the legal cannabis market. If retailers engage in aggressive discounting or undercutting each other, it could lead to unsustainable business practices that harm overall profitability.

 

  1. Innovation and Differentiation: To effectively compete against both legal and illegal markets, retailers must focus on innovation and differentiation rather than solely on price competition. Offering unique product lines, exceptional customer service, or creating engaging retail experiences can help draw consumers away from cheaper alternatives.

 

  1. Building Brand Loyalty: Establishing strong brand loyalty can mitigate the impact of price competition. Retailers who cultivate relationships with their customers through loyalty programs, community involvement, and personalized service may find that consumers are willing to pay a premium for trusted products.

 

Conclusion

The $1,000 fine imposed on Cost Cannabis serves as a reminder of the challenges faced by retailers operating within British Columbia’s legal cannabis framework. As they navigate competitive pressures and regulatory requirements, incidents like this underscore the importance of compliance with provincial laws designed to protect public health and safety.

As British Columbia continues refining its approach to cannabis regulation, ongoing dialogue among regulators, retailers, and consumers will be essential in fostering a sustainable marketplace. This incident not only highlights the complexities of operating within this industry but also emphasizes the need for all stakeholders to work collaboratively toward a safer and more equitable cannabis market in Canada.

 

FINES FOR PHARMA RUN BIG, READ ON…

BIG PHARAM FINES

BIG PHARMA RACKS UP $82 BILLION IN FINES, ARE YOU SAFE?



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Latest Trump Weed Rumor – Trump Will Federally Deschedule and Decriminalize Cannabis, but Not Legalize It

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In a recent interview, former New Jersey Governor Chris Christie made headlines by asserting that President-elect Donald Trump will pursue significant reforms in federal policies regarding marijuana and cryptocurrency. As the nation grapples with evolving attitudes toward cannabis and the burgeoning digital currency market, Christie’s predictions have ignited discussions about the potential implications of such changes on both industries. This article delves into Christie’s insights, the current state of marijuana and cryptocurrency regulations, and the broader implications of these anticipated reforms.

 

The Current Landscape of Marijuana Legislation

 

Federal vs. State Laws

Marijuana remains classified as a Schedule I substance under the Controlled Substances Act (CSA), which places it in the same category as heroin and LSD. This classification has created a complex legal landscape where states have moved to legalize cannabis for medical and recreational use, while federal law continues to impose strict prohibitions. As of now, over 30 states have legalized marijuana in some form, leading to a burgeoning industry that generates billions in revenue.

 

Challenges Faced by the Cannabis Industry

 

Despite its legality in many states, the cannabis industry faces significant hurdles due to federal restrictions. These challenges include:

  • Banking Access: Many banks are hesitant to work with cannabis businesses due to fear of federal repercussions, forcing these businesses to operate largely in cash.

  • Taxation Issues: The IRS enforces Section 280E of the tax code, which prohibits businesses engaged in illegal activities from deducting normal business expenses, leading to disproportionately high tax burdens for cannabis companies.

  • Interstate Commerce: The lack of federal legalization prevents cannabis businesses from operating across state lines, limiting their growth potential.

 

Chris Christie’s Perspective on Marijuana Reform

 

Christie, a former presidential candidate known for his tough stance on drugs during his tenure as governor, has evolved his views on marijuana over the years. In his recent statements, he emphasized that Trump is likely to pursue descheduling cannabis, which would remove it from the Schedule I classification. This move would not only provide clarity for businesses operating in legal markets but also open avenues for banking and investment.

 

Christie highlighted that descheduling would allow for a more regulated market where safety standards could be established, thus protecting consumers. He believes that this approach aligns with a growing consensus among Americans who support legalization and recognize the potential benefits of cannabis use for both medical and recreational purposes.

 

The Future of Cryptocurrency Regulation = The Rise of Cryptocurrencies

 

Cryptocurrencies have surged in popularity over the past decade, with Bitcoin leading the charge as the first decentralized digital currency. The market has expanded to include thousands of alternative coins (altcoins), each with unique features and use cases. As cryptocurrencies gain traction among investors and consumers alike, regulatory scrutiny has intensified.

 

Current Regulatory Challenges

 

The cryptocurrency market faces several regulatory challenges that hinder its growth and adoption:

 

  • Lack of Clarity: Regulatory frameworks vary significantly across states and countries, creating confusion for investors and businesses.

  • Fraud and Scams: The rapid growth of cryptocurrencies has led to an increase in fraudulent schemes targeting unsuspecting investors.

  • Consumer Protection: Without clear regulations, consumers are often left vulnerable to risks associated with volatile markets.

 

Christie’s Vision for Crypto Regulation

 

Christie believes that under Trump’s leadership, there will be an effort to find a “sweet spot” for cryptocurrency regulation balancing innovation with consumer protection. He argues that overly stringent regulations could stifle growth in this emerging sector while too little oversight could expose consumers to significant risks.

 

In his view, a balanced regulatory framework would include:

 

1. Clear Definitions: Establishing clear definitions for different types of cryptocurrencies and tokens to differentiate between securities and utility tokens.

2. Consumer Protections: Implementing measures to protect investors from fraud while promoting transparency within the market.

3. Encouraging Innovation: Creating an environment conducive to innovation by allowing startups to thrive without excessive regulatory burdens.

 

Christie’s insights reflect a growing recognition among policymakers that cryptocurrencies are here to stay and that appropriate regulations are necessary to foster growth while safeguarding consumers.

 

Implications of Proposed Reforms

 

Economic Impact

 

The potential reforms proposed by Christie could have far-reaching economic implications:

 

  • Job Creation: Legalizing marijuana at the federal level could lead to significant job creation within the cannabis industry—from cultivation and production to retail sales.

  • Investment Opportunities: Descheduling cannabis would open up investment opportunities for institutional investors who have been hesitant due to federal restrictions.

  • Boosting Local Economies: Legal cannabis markets have proven beneficial for local economies through increased tax revenues and job creation.

 

Similarly, clear regulations around cryptocurrencies could stimulate investment in blockchain technology and related industries, fostering innovation and economic growth.

 

Social Justice Considerations

 

Both marijuana legalization and sensible cryptocurrency regulations have social justice implications:

 

  • Addressing Past Injustices: Legalizing marijuana could help rectify past injustices related to drug enforcement policies that disproportionately affected marginalized communities.

  • Financial Inclusion: Cryptocurrencies offer opportunities for financial inclusion for those underserved by traditional banking systems, particularly in low-income communities.

 

Political Landscape

 

The political landscape surrounding these issues is complex. While there is bipartisan support for marijuana reform among certain lawmakers, challenges remain in overcoming entrenched opposition. Similarly, cryptocurrency regulation has garnered attention from both sides of the aisle but requires collaboration to establish effective frameworks.

 

Conclusion

 

Chris Christie’s predictions about President-elect Donald Trump’s approach to federal marijuana descheduling and cryptocurrency regulation suggest a potential shift in U.S. policy that could significantly reshape both industries. As public opinion evolves on these issues, lawmakers have an opportunity to enact meaningful reforms that promote economic growth while ensuring consumer protection. The anticipated changes could foster a more robust cannabis industry that contributes positively to the economy and addresses social justice concerns, while clear regulatory frameworks for cryptocurrencies could encourage innovation and protect consumers in the digital economy. Stakeholders in both sectors are closely watching these developments, eager to see how potential reforms might impact their futures. While the realization of Christie’s predictions remains uncertain, it’s clear that the conversation around marijuana and cryptocurrency regulation is ongoing and far from settled.

 

TRUMP 2.0 ON CANNABIS REFORM, READ ON…

TRUMP ON MARIJUANA REFORM

TRUMP 2.0 ON FEDERAL CANNABIS REFORM – WHAT DO WE KNOW?

 



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