State-legal marijuana industry operators would finally be able to take federal tax deductions that are available to any other business under a congressional bill that was filed on Friday, seeking to amend an Internal Revenue Service (IRS) code known as 280E.
The legislation was introduced by Rep. Nancy Mace (R-SC) with days left in session in the 117th Congress. While the text isn’t currently available, its short title is identical to versions of the Small Business Tax Equity Act that were filed in previous sessions.
The IRS code that’s currently in place, 280E, makes it so businesses whose activities consist of “trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act)” cannot make deduct most business expenses from their federal taxes or receive tax credits, even though they are still obligated to pay taxes like any other company.
The provision was enacted in 1982 as a way to prevent drug traffickers from writing expenses off their taxes, but it is widely applied today on state-licensed marijuana growers, processors and dispensaries, greatly increasing their effective tax rates as compared to businesses in other industries.
Lawmakers in several past sessions have sought to change that and treat state-legal marijuana businesses the same as those in other traditional markets.
Of course, the new 118th Congress starts on Tuesday, so Mace’s bill as filed will not be advancing and would need to be reintroduced in the new year. The last version was sponsored by Rep. Earl Blumenauer (D-OR), co-chair of the Congressional Cannabis Caucus.
Fixing the unique challenges of the marijuana industry has been a priority for bipartisan lawmakers, many of whom had hoped to see a broader cannabis banking reform bill enacted before the end of last year. But while the Secure and Fair Enforcement (SAFE) Banking Act has cleared the House in some form seven times, it’s stalled in the Senate, and efforts to attach it to broader legislation during the lame duck proved unsuccessful.
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But for the time being, the marijuana industry continues to face tax policy challenges under the umbrella of prohibition. And as the Congressional Research Service (CRS) noted in a 2021 report, IRS “has offered little tax guidance about the application of Section 280E.”
IRS did provide some guidance in an update in 2020, explaining that while cannabis businesses can’t take standard deductions, 280E does not “prohibit a participant in the marijuana industry from reducing its gross receipts by its properly calculated cost of goods sold to determine its gross income.”
The IRS update seemed to be responsive to a Treasury Department internal watchdog report that was released in 2020. The department’s inspector general for tax administration had criticized IRS for failing to adequately advise taxpayers in the marijuana industry about compliance with federal tax laws. And it directed the agency to “develop and publicize guidance specific to the marijuana industry.”
Mace isn’t the only member of Congress to file drug policy reform legislation late in the session.
For example, Rep. Matt Gaetz (R-FL) reintroduced a bill last week to promote marijuana research that he’s filed for the past several sessions.
Bipartisan congressional lawmakers also recently filed a measure meant to protect consumer access to kratom and prevent adverse administrative actions against the natural substance, which has been used as an opioid alternative and to mitigate withdrawal symptoms.