Last November, Maine voters approved the legalization of recreational marijuana. Since then, entrepreneurs in the industry have begun gearing up now for what will become a real growing frenzy. Warehouse space is being gobbled up by speculators looking to participate in what is already a multibillion-dollar industry. However, all parties should be wary of IRS Code Section 280E.
The states that have legalized marijuana impose sales or excise taxes which are generally passed directly to the consumer of between 10% and 30%. Colorado alone is expected to report sales in excess of $1,000,000,000 with a tax structure that includes a 2.9% sales tax, a special recreational sales tax of 10% plus a 15% excise tax. Needless to say, State and local governments in Colorado are cashing in. What is not so widely known is that the federal government is also cashing in and the entire industry is at risk.
By my count, 23 states now allow for medical or recreational use but the federal government has made no headway in removing marijuana from its list of Schedule 1 controlled substances. The significance of this categorization is important because IRS Code section 280E denies most deductions incurred by businesses trafficking any substances listed on Schedule 1. Since the Maine tax code piggybacks the federal code, it also disallows trafficking/selling related expenses. Currently, corporations in Maine face a federal and state tax rate of 45% on its gross profit. Without the ability to deduct ordinary business related expenses, the industry could see effective tax rates between 80-90% of income.
So how does Congress protect Maine’s marijuana industry? The fix is simple. Congress should remove marijuana (sold legally under state law) from the list of Schedule 1 drugs. To a limited degree, many bills addressing parts of this issue have been put forth and sit in committee somewhere, each seemingly stonewalled. The most recent bill introduced into the House, “States’ Medical Marijuana Property Rights Protection Act” gives some insight to the magnitude of the problem of using your property to grow marijuana. The bill removes real estate from the list of items that can be forfeited as a result of a violation of the Act.
The Controlled Substances Act currently imposes forfeitures which include, among other things, the forfeiture of “All real property, including any right, title, and interest… any lot or tract of land and any appurtenances or improvements, which is used…a violation of this subchapter…”. The aforementioned bill only sets out to remove from the penalty section the forfeiture of real property but does not remove Marijuana from the list of Schedule 1 substances.
This should be a reminder to all, even those merely renting warehouse space, that until the federal law removes legal marijuana from its Schedule 1 list, the life of the industry is on the line.