§280(E) of the Internal Revenue Code poses one of the more frustrating challenges for the legal marijuana industry. §280(E) states:
No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consist of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or any State in which such trade or business is conducted.
The impact of §280(E) is that marijuana businesses, even those that are in complete compliance with State regulations and laws, are not allowed to avail themselves of typical business tax deductions or credits. This means that while many legal marijuana businesses generate high revenues, high profits do not often follow after the taxman takes his share.
On September 27, 2017, Saiber attorneys attended the New Jersey CannaBusiness Association event at Galloping Hills Golf Course in Kenilworth, NJ. The event was a great opportunity for potential cannabis entrepreneurs to learn about the potential upcoming business opportunities in New Jersey from industry leaders. Over four hundred people were in attendance. The event was sponsored in part by Athletes for Care, an organization advocating for the careers of retired athletes, which in part advocates for medicinal cannabis. Former athletes Marvin Washington (New York Jets, Defensive End), Leonard Marshall (New York Giants, Defensive Lineman), Eugene Monroe (Baltimore Ravens, Offensive Tackle) and Riley Cote (Philadelphia Flyers, Left Winger) were present at the event and participated in panel discussions.
New Jersey Cannabusiness Association
New Jersey State Senator Nicholas Scutari (D. Union) recently introduced Senate Bill 3195 (“the bill”) legislation to legalize the sale and consumption of recreational cannabis in the State of New Jersey. There are several reasons to believe that the Act will, after deliberation and modification, be enacted into law. First, polling data shows that the majority of New Jersey residents are in favor of legalization of cannabis. Second, not only does legalization have general bipartisan support, but it also has the support of New Jersey Senate President Stephen Sweeney, who traveled to Colorado in 2016 with Senator Scutari and several other New Jersey legislators to observe Colorado’s highly successful recreational cannabis industry and returned with very favorable impressions. Finally, Democratic gubernatorial candidate Phil Murphy has declared his support for legalization of cannabis in New Jersey. The Republican gubernatorial candidate, Kim Guadagno, has not specifically taken a position on legalization of cannabis, but instead recently equivocated during a primary debate that she both favors decriminalization and supports Attorney General Jeff Sessions’ views on cannabis. Some version of the bill will probably be enacted in 2018. It is entirely possible that if enacted, the bill will contain new or revised provisions that do not currently exist in the proposed legislation. This post addresses the bill as presently written.