Excerpt from: TaxProf Blog (click for full article)
Eighteen states and the District of Columbia have now decriminalized or legalized marijuana for at least some purposes. You hear a lot about the conflict between these state laws and the federal statute criminalizing the sale and possession of marijuana. But since the Justice Department isn’t consistently coming after marijuana sellers, the more immediate problem for many of them is federal tax law. “The federal tax situation is the biggest threat to businesses and could push the entire industry underground,” the leading trade publication for the marijuana industry reports.
Here’s why: Ordinary businesses are taxed by subtracting their business expenses from their gross revenue to arrive at their net income, or profit. That amount is subject to tax. By contrast, sellers of controlled substances—in other words, drugs, including marijuana—are not permitted to deduct any ordinary business expenses other than the cost of the goods they are selling. That’s because of § 280E of the federal tax code, which Congress enacted in the 1980s to punish drug dealers. The provision was largely symbolic for decades, since few drug dealers filed income tax forms. But now, state-licensed marijuana sellers must pay federal taxes not only on their profits but also on the money they spend on salaries, rent, advertising, and all the other expenses related to running a business. In fact, it is conceivable that § 280E could require a business to pay more in tax than its total profits for the year.
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