Last week, I wrote a piece entitled "Deschedule Cannabis, Don't Reschedule It." The post came on the heels of President Joe Biden's announcement that the federal government is considering the federal scheduling of cannabis. As I noted, rescheduling cannabis to schedule II or below is a bad idea, because it would subject cannabis to DEA regulations similar to prescription drugs. I want to devote this post to exploring the serious tax implications on cannabis businesses if the federal government rescheduled cannabis on schedule II specifically.
Anyone familiar with the cannabis industry has heard of section 280E of the Internal Revenue Code, a topic we've written about often over the years. Section 280E provides in full:
在课税年度内，若任何贸易或业务（或构成该贸易或业务的活动）涉及《管制物质法》附表I及II所定义的管制物质贩运，则该贸易或业务所支付或产生的任何款项均不得扣除或抵免。根据《管制物质法》附表I和II的定义）的贩运活动，且该贩运行为违反联邦法律或该贸易或业务所在州的法律。
In other words, businesses that "traffic" in substances on schedules I or II of the Controlled Substances Act cannot make federal tax deductions (with some limited COGS exceptions which are outside the scope of this post). This means that any state-licensed cannabis business currently is subject to much higher taxes than it would be if it sold other consumer goods, by virtue of the fact that it can't take standard deductions. If a business were to sell drugs that were currently on schedule II without the proper entitlements, it would also be subject to 280E.
Now let's take a step back and look at the rescheduling issues. If the Drug Enforcement Administration rescheduled cannabis to schedule II, it would create a pathway for cannabis to be prescribed (as opposed to current physician recommendations) by certain licensed healthcare professionals, in accordance with DEA regulations. Rescheduling cannabis to schedule II would NOT have the effect of making all state-licensed cannabis businesses federally legal. They would still be federally illegal, and as mentioned, a new channel for federally legal physician prescriptions would open up.
换言之，即使美国缉毒局重新调整大麻的分类，所有持有州许可证的大麻企业仍将违反联邦法律；只不过其经营的将不再是第一类麻醉品，而是第二类麻醉品。这意味着第28oE条仍将适用，大麻企业几乎无法获得任何救济。 更何况，联邦法律与政策的重大变革不可能一夜之间实现（这将增加合规成本并加剧不确定性），因此将大麻降级为第二类受控物质并非良策。
若拜登总统决心重新调整大麻的管制级别，将其列为第三类或更低级别最为理想，这样《280E法案》便不适用。不过正如我在前文所述，重新调整大麻的管制级别所引发的问题，远比直接解除其管制更为复杂。
