The U.S. Internal Revenue Service (IRS) intends to continue seeking tax payments from cannabis businesses that have taken deductions in anticipation of possible federal changes, according to an attorney with the agency. Even if marijuana is rescheduled federally, the IRS could theoretically seize assets from marijuana companies that fail to meet their tax obligations.
Luke Ortner, IRS senior counsel, spoke about the possible effects of rescheduling marijuana from schedule 1 to 3 under the Controlled Substances Act (CSA) in a recent discussion at the American Institute of Certified Public Accountants (AICPA) marijuana conference in Denver.
The change, if enacted, would allow state-approved marijuana businesses to take advantage of federal tax deductions, which they have been unable to do under IRS code 280E.
Although the rulemaking process is still ongoing, some larger cannabis companies have already started to claim deductions. For instance, cannabis giant Trulieve Cannabis Corp. (CSE: TRUL) (OTCQX: TCNNF) revealed in January that it had received $113 million in refunds for 280E. Ascend Wellness and TerrAscend have also stated that they expect comparable reimbursements.
The IRS noted that the 280E rule remains in effect until a final rule is implemented, a point Ortner reiterated during the conference. He further emphasized that even if marijuana is rescheduled, the IRS would continue to enforce 280E for past tax years, meaning cannabis companies would still be liable for previous unpaid taxes.
Several businesses and industry participants have presented legal defenses for their 280E tax deduction claims. They have argued, for example, that the policy shouldn’t apply in cases where cannabis-related activities are only conducted within a state.
Ortner stated that there are currently pending legal challenges that may affect the IRS’s future approach to these problems. For the time being, however, the IRS position remains unaltered, and it will work to recoup any payments made in violation of 280E. Ortner assured the accountants that those working with state-licensed marijuana businesses would not face penalties for helping the organizations file tax returns.
Ortner also brought up another possible effect of reclassification, despite the optimism of many in the cannabis industry that rescheduling will eventually treat their businesses like other traditional ones, at least in terms of tax policy. The IRS might be better equipped to enforce tax collection against businesses that don’t fulfill their commitments if marijuana is placed on schedule 3.
Currently, with cannabis classified as a schedule 1 drug, the IRS has largely deferred enforcement to the U.S. Drug Enforcement Administration (DEA) and has not aggressively pursued companies that are not compliant with tax laws. However, Ortner noted that this could change with reclassification.
However, rescheduling is not assured. Before making any judgments, the DEA is anticipated to hold a hearing in December 2024 to obtain additional feedback regarding the suggested reform.
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