I'd like to send a shoutout to tax lawyer Nick Richards for an intriguing opinion piece published on Friday, September 1 in Marijuana Business Daily. Nick outlines two approaches to potentially help cannabis businesses recoup buckets of cash from Uncle Sam. One approach, which is known to us, may be utilized by cannabis businesses throughout their terms of existence. The second approach, which seems novel, relates to treatment of taxable gains upon sale.
As with most tax strategies specific to cannabis, these approaches center on IRC § 280E, the federal law that disallows deductions and credits for traffickers of Schedule I and II controlled substances. Let's look at the novel approach first, for cannabis business sellers.
280E资产策略现正发售
尼克提出的理论被称为"280E资产"，其核心观点在于：大麻企业在经营周期内因280E条款被拒绝的扣除项，在企业出售时仍可计入企业资产基础或其资产基础。这种处理方式在许多情况下极具吸引力，因为资产基础的增加意味着出售时的应税收益降低。
什么是成本基础？简而言之，就是纳税人对企业或资产投入的资本金额。 尼克举例说明：纳税人以100万美元购入一架飞机，随即以150万美元售出。此时纳税人的成本基础为100万美元，应税收益为50万美元。但若该飞机被认定为不可抵扣支出——如同280E条款下许多大麻业务支出——则150万美元的全部售价都将计入应税范围。这可就够呛了。
Enter the 280E Asset theory. This position holds that although 280E prohibits deduction of expenses when incurred by a cannabis businesses, these expenses may be recognized on sale. In support, Nick cites CBS Corp. & Subsidiaries v. U.S (“CBS Corp”), a 2012 tax court decision which held that certain disallowed expenses were recognizable as basis, and could thereby reduce taxable gain on sale. Such a principle would be great for cannabis businesses. Unlike businesses in most other industries, cannabis firms have plenty of disallowed expenses under 280E-- especially retailers and other non-grower parties.
Rather than rely on my summary of Nick's summary of CBS Corp, I suggest you read his short treatment. Then, I suggest you read the case itself; or better still, have a tax lawyer analyze and Shepardize it. Finally, you will need the CPA who prepares your return to sign off.
The 280E Asset strategy appears to be untested-- at least in the context of cannabis business windups. I will emphasize again that use of the 280E Asset at sale seems novel, and litigating against the IRS has seldom gone well for cannabis businesses. In fact, I’ve explained that other than Champ v. Commissioner, no cannabis taxpayer has won a §280E case (and there have been a bunch of them).
处理280E在出售前
第二种方法适用于持续经营企业，源于CBS公司案判决后颁布的法规修订。 我们称之为471(c)方法，因其依据2017年《减税与就业法案》(TCJA)第471(c)条适用。正如美国国税局所言，该法案"改变了影响企业的扣除、折旧、费用化、税收抵免及其他税务项目"。对此，各方均无异议。
以下内容尚未经过实践检验。与280E资产策略类似，471(c)方法认为在471(c)会计处理下，被否决的费用并非不可挽回地损失。 因此，采用471(c)方案的纳税人亦可依据自身账簿记录，申报未被否决 的销售成本（COGS）。通过此方式，大麻企业可将本不可抵扣的费用计入销售成本。
Another Marijuana Business Daily article from last month examines the 471(c) Approach in greater depth. For now, I will note that we work with several businesses and CPAs implementing this strategy (perhaps more than I know). I should also caution that I’m unaware of any IRS audits rejecting or allowing the strategy, or of any litigation on point. I'd love to hear from people on this.
大麻税收策略总结
好消息是，这些晦涩的操作和税务不确定性可能很快就会消失。正如我上周所解释的，"大麻"似乎即将被列入第三类管制物质。这意味着280E条款的困扰将不再适用，大麻产业在联邦层面将与其他行业一样纳税。
Let’s hope rescheduling goes according to plan, and quickly. Until then, it may be a good idea for cannabis businesses to take a hard look at the strategies set forth above-- whether at sale or all along the way.
