Guest Post: Favorable IRS Ruling – State Excise Tax May Escape 280E Treatment

by Luigi Zamarra, CPA

On July 31, 2015, the IRS released ILM 201531016, concluding that the old Washington State cannabis excise tax may be properly treated as a reduction of gross revenues received. This is a very favorable ruling for our industry as it means that this tax can escape the harsh non-deductibility treatment of IRC Section 280E.

Although this ruling is applicable directly only to old Washington law, it may have far-reaching consequences for cannabis businesses operating in other jurisdictions that also impose special taxes on cannabis business activities. taxbag

As originally enacted, the Washington excise tax is imposed upon all sales of cannabis, at either the producer level, the processor level, or the retail level. As written, the tax is imposed upon each sale. (This law has now been amended so that the tax is imposed only at the retail level.)

The IRS has concluded that businesses may treat this tax as a reduction of Gross Revenues. This treatment is similar to “Returns & Allowances” in that it is a “Revenue Contra Account.” As such, it is not an expense, either above-the-line (Cost of Goods Sold) or below-the-line. Since it may be treated as a reduction of Gross Revenues rather than as an expense, it should escape treatment as non-deductible under IRC Section 280E.

Colorado also imposes a variety of special taxes upon cannabis sales. In California, local cities and counties impose special taxes on cannabis sales too. Although it is not yet clear, it seems there may be opportunities for businesses in these jurisdictions to take advantage of this ruling. This would involve these businesses changing their accounting treatment for these taxes: away from an expense or Cost of Goods Sold treatment and toward a Revenue Contra Account treatment.

Businesses are advised to consult with their CPA for a more in-depth analysis of the application of this ruling to their particular situation.

Luigi Zamarra, CPA, has been a member of NCIA since 2013. Luigi CPA is an accounting firm located in Oakland, CA, that helps all types of businesses and individuals with tax planning, tax compliance, and tax dispute services. Luigi specializes in the medical marijuana industry. He helps these businesses comply with IRC Section 280E so as to balance tax cost against audit examination risk.

*Disclaimer: NCIA does not provide legal or financial services or advice. Any views or opinions presented in this guest blog post are solely those of the author and do not necessarily represent those of the organization. You must not rely on the legal information on our website as an alternative to legal or financial advice from your lawyer or other professional services provider.

Guest Post: Tax Time – Using an LLC To Minimize Section 280E Selling Costs

By Luigi Zamarra, CPA

Are you a distributor or retailer of cannabis products? If so, you incur lots of expenses that could be deemed subject to Section 280E of the federal tax code: all of your sales, advertising and delivery costs. One of the largest categories of these expenses is wages & salaries.

CHOOSING YOUR COMPANY’S LEGAL ENTITY

Although there are many legal considerations when choosing the right type of legal entity for your business, one consideration that is often overlooked is Section 280E. Corporations, including S corporations, are required to pay reasonable salaries to owners and officers working in the business. By “reasonable” in this context we mean a certain minimum salary amount. This requirement is due to Social Security tax issues that are beyond the scope of this article. The point is that owners must draw a salary and if that owner is involved in selling, marketing and/or delivery, then these salaries are subject to disallowance under 280E.

IS A LIMITED LIABILITY COMPANY RIGHT FOR MY BUSINESS?

A Limited Liability Company is different in this regard. There is no requirement to pay a salary to the business owner who works the business. Instead the net profit of the business is the income reported by the owner. (This applies to both single-member LLCs as well as to multi-member LLCs that are taxed like partnerships.) When owners report net income rather than salary, then they have no salary expense to be disallowed under Section 280E.

CONSULT YOUR CPA

Note that this benefit does not have to be limited only to the founder-LLC member. It is possible, with proper advice and planning, to create an LLC structure whereby all of the workers get treated as LLC members. Such a structure could substantially reduce your 280E expenses and give you the competitive advantage you need to succeed.

Want to learn how to navigate the complex tax & legal landscape of the growing cannabis industry?
Join us for NCIA’s first Cannabis Tax And Law Symposium on January 21-22, 2015 in San Diego, CA, offering CPE and/or MCLE credits to attorneys or accountants that attend to learn more about these important topics! Register today.

*Disclaimer: NCIA does not provide legal or financial services or advice. Any views or opinions presented in this guest blog post are solely those of the author and do not necessarily represent those of the organization. You must not rely on the legal information on our website as an alternative to legal or financial advice from your lawyer or other professional services provider.

Guest Post: Plane-ly Legal – Carrying Large Sums of Cash on Commercial Airline Flights

By Luigi Zamarra, CPA

Due to the banking challenges facing our industry, many business owners are working with large sums of cash. Sometimes this cash must be transported: brought to the location where payment is agreed to be made. Sometimes this requires boarding a commercial airline flight with a large sum of cash in your carry-on baggage. (I do not recommend putting cash into your checked baggage.) You should not worry.

While working with a client to plan dividend distributions to their investors, the client expressed his concern that TSA would not allow anyone to board a domestic flight with large sums of cash. This did not seem correct to me for a variety of reasons, so I decided to look into the issue further. Please remember that U.S. currency is “legal tender for all debts, public and private” and there is no law that states that VISA, MasterCard, and the big banks must be in the middle – and get a piece of the action – of every transaction. We have the right to conduct all of our business in cash if we choose, and making such a choice should not subject us to suspicions. As an industry, we should be united in defending our rights to use cash, and we should reject any assertion that using cash implies criminal activity.

It is important to draw a distinction between domestic flights and international flights. On international flights, you must file FinCEN Form 105 with the U.S. Treasury if you are either entering or leaving the U.S. with more than $10,000 of cash currency. This rule does not apply to domestic flights, either intrastate or interstate. On domestic flights, there is no limit; you are legally entitled to fly with as much cash as you see fit, and you are not required to file any form with U.S. Treasury.

It is also very important to understand that TSA is not a law enforcement agency. TSA personnel are not trained in the legal procedures of collecting evidence or conducting investigations, so such actions must be conducted only by law enforcement. TSA’s mission is to “protect the transportation system to ensure freedom of movement of people and commerce.” According to TSA policy, (a) “screening may not be conducted to detect evidence of crimes unrelated to transportation security,” and (b) “traveling with large amounts of currency is not illegal.”

Unfortunately the TSA has engaged in mission-creep recently by searching for cash and engaging in interrogation when cash is found. If you find yourself being questioned by TSA about why you are carrying cash and where you got the cash, you are entitled to refuse to answer these questions. You should state, quietly but assertively, that such information is confidential and that such questions are outside of the TSA purpose and mission. You should also remind the TSA official that such questions are beyond TSA authority, since they are not permitted to investigate evidence of crimes unrelated to transportation security and since there is no danger to air safety from a briefcase of $100 dollar bills. Finally, remind the TSA official that traveling with large amounts of currency is not illegal.