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IRS Rejects Watchdog Recommendation To Provide Marijuana Business Tax Guidance

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A new Treasury Department internal watchdog report criticizes the Internal Revenue Service (IRS) for failing to adequately advise taxpayers in the marijuana industry about compliance with federal tax laws.

In its review of IRS policy with respect to cannabis businesses, the Treasury Inspector General for Tax Administration (TIGTA) found that IRS is missing millions of dollars in tax assessments in state-legal markets and that taxpayers experience a significant impact due to an federal tax code known as 280E that prevents marijuana companies from making business deductions that are available to other industries.

Part of the solution, TIGTA said, should be for IRS to “develop and publicize guidance specific to the marijuana industry.”

“Such guidance would improve awareness of tax filing requirements for taxpayers in this industry, such as the correct application of” the policy, “which would reduce the burden of tracking inventory for certain small businesses,” the report, which was released on Monday, states.

280E has long been a source of intense hardship and frustration for the industry. First enacted in the 1980s as a way to block cartel kingpins from writing off yachts and fancy cars, it stipulates that businesses are ineligible for certain deductions if their income is derived from an illegal drug that falls under Schedule I or II of the Controlled Substances Act. While they may qualify for state-level deductions, the federal restriction ultimately means that marijuana businesses are subject to a significantly higher taxable income, increasing their effective tax rate up to around 70 percent.

“Guidance from the IRS would be greatly appreciated. For years, the vast majority of state-legal cannabis businesses have done their best to comply with Section 280E, consulting with tax professionals to get the best guidance possible,” Steve Fox, a strategic adviser with the Cannabis Trade Federation (CTF), told Marijuana Moment. “But the lack of guidance and consistency from the agency has made the process challenging.”

TIGTA’s audit considered the impact of this unique situation in three legal cannabis states in fiscal year 2016. About 60 percent of tax returns for cannabis businesses that were reviewed had likely had adjustments under 280E, which means IRS had about $48.5 million in unassessed taxes. That estimate, of course, is a notably smaller figure than the full impact of confusion surrounding 280E, as more than 30 states allow recreational and/or medical marijuana businesses and this report evaluated firms in only three of them.

Additionally for those three states, TIGTA estimated that the tax impact (i.e. costs associated with filing) for taxpayers to comply with 280E was $95 million, “or $475.1 million when forecasted over five years.”

Finally, the agency took a “statistically random sample of 90 marijuana businesses” that filed state tax returns in Washington State in 2016 to “determine whether these taxpayers were reporting all of their income.” Twenty-six percent of those companies likely had adjustments related to “underreported income or nonfiling of tax returns” for federal purposes.

“When projected over the population for Washington, the IRS missed the opportunity to address $3.9 million of potential assessments for Tax Year 2016, or $19.3 million when forecasted over five years,” the audit states.

“Given the transparency problems caused by lack of banking access—a fact which the IG recognizes—we should probably be a little skeptical of claims of widespread non-compliance,” Morgan Fox, media relations director of the National Cannabis Industry Association, told Marijuana Moment. “It is tough to say why the IRS would resist providing clarity, especially since that could theoretically result in more tax revenue in the short term.”

“However, the industry doesn’t need clarity on how to comply with unfair policies as much as it needs them to get fixed,” he added. “Cannabis banking and 280E reform would increase transparency and accountability, and greatly simplify the tax process for cannabis businesses. In short order, it would almost certainly result in more federal tax revenue as companies facing less onerous tax burdens become increasingly able to compete with the illicit market and drive more taxable sales.”

Fox of CTF said that the new report “is an acknowledgement that state-legal cannabis businesses are paying hundreds of millions of dollars in corporate taxes to the federal government every year.”

“While the focus of this report is on whether they are fully complying with the absurd 280E tax penalty, the real focus should be on the fact that they are legitimate tax-paying businesses,” he said. “It is time for Congress to fix 280E so that cannabis businesses are treated like every other business in this country.”

TIGTA made six recommendations to ensure compliance and provide needed clarity to taxpayers in the cannabis industry. IRS pushed back on several, including the agency’s request that it create specific guidance.

Recommendation 1: The IRS Small Business/Self-Employed (SB/SE) Division Commissioner should “develop a comprehensive compliance approach… for this industry and leverage State marijuana business lists to identify noncompliant taxpayers.”

IRS response: IRS said it depends on its available resources. It will continue to use its existing methods to identify noncompliance, and if it determines that additional measures are needed, it will “prioritize them based on resources available.”

Recommendation 2: The commissioner should “direct all examination areas to use Aging Reason Codes to track non-[compliance initiative project] marijuana business examination results.”

IRS response: The agency said it will “provide guidance to examiners to apply the appropriate code(s) to cases to track marijuana examinations.”

Recommendation 3: IRS should “develop guidance specific to the marijuana industry such as a Frequently Asked Questions document” and post it on the agency’s site to “improve awareness of the tax filing requirements for taxpayers in this industry, such as the application of 280E.”

IRS response: The agency said it already has an audit technique guide for cash-intensive businesses that could be useful to cannabis companies. However, it said it would “provide additional information” as needed.

Recommendation 4: TIGTA said the IRS chief counsel should work with the SB/SE commissioner to “develop and distribute, internally and externally, specific guidance on the application of” 280E compliance “for taxpayers that report Schedule I related activities on Federal tax returns.”

IRS response: The IRS chief counsel replied that it disagrees with the recommendation and stressed that it has other priorities it needs to fulfill before committing resources to developing that specific guidance.

Recommendation 5: The commissioner should “leverage publicly available State tax information and expand use of [federal/state] agreements to identify nonfilers and unreported income in the marijuana industry.”

IRS response: The agency said that “depends upon IRS priorities and availability of resources,” though it will review the current status of its agreements and use of publicly available state data.

Recommendation 6: The commissioner should “increase educational outreach towards unbanked taxpayers making cash deposits regarding the unbanked relief policies available.”

IRS response: IRS said it will “expand the penalty relief information currently available” on its website.

Although IRS said it doesn’t plan to issue guidance to the industry per the IG’s recommendation, that doesn’t necessarily mean it doesn’t appreciate the challenges that cannabis businesses and tax regulators face due to conflicting state and federal laws.

“Cash intensive businesses, particularly those that are illegal under federal law, create additional challenges for the IRS and the taxpayer,” IRS said in response to TIGTA’s findings. “The marijuana industry is largely unbanked due to the illegal status of marijuana at the federal level.”

“The taxpayer’s inability to utilize a bank for these businesses creates concerns of public safety, transparency, and accountability. It also hinders our enforcement efforts as it could minimize the types of third-party information documents available (e.g., Form 1099-K),” it continued. “The lack of available banking services creates an additional burden to the taxpayer, subjecting them to failure to deposit penalties. Legislative changes could address the challenges encountered with Internal Revenue Code (IRC) §280E, banking policies, and public safety.”

Though IRS officials didn’t cite specific legislation, it’s a point that TIGTA also picked up on, and the internal watchdog noted that the Secure and Fair Enforcement (SAFE) Banking Act or the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act are examples of bills that could help resolve the conflict and normalize the industry. The House passed the SAFE Banking Act along largely bipartisan lines last year but it has stalled in the Senate.

IRS emphasized that it’s stretched thin due to budget cuts and hiring freezes in recent years, and that accounts for why it said it must be deliberate in how it prioritizes objectives.

Treasury Secretary Steve Mnuchin has on several occasions recognized issues related to the lack of access to financial services among marijuana businesses. For example, he’s said, IRS has had to build “cash rooms” to store tax payments from these companies because so many are forced to conduct business exclusively in hard currency.

That said, Mnuchin stressed that it’s not a problem that can be solved administratively, and he’s agued that Congress should take up the issue legislatively.

Congresswoman Wants Recreational Marijuana Stores Open To Serve Veterans Amid Coronavirus Outbreak

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Canada Will Let Terminally Ill Patients Use Psychedelic Mushrooms For End-Of-Life Care

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Four cancer patients in end-of-life care will be become the first people in decades to legally possess and consume psilocybin mushrooms in Canada after a landmark decision Tuesday by the country’s minister of health.

The patients petitioned Health Minister Patty Hajdu back in April for exemptions from the country’s laws against psilocybin in order to use psychedelic mushrooms as part of psychotherapy treatment. On Tuesday afternoon, Hajdu officially granted the patients’ request, the nonprofit TheraPsil, which assisted with the application, announced.

The approvals mark the first publicly-known individuals to receive a legal exemption from the Canadian Drugs and Substances Act to access psychedelic therapy, Therapsil said, and the first medical patients to legally use psilocybin since the compound became illegal in Canada in 1974.

“This is the positive result that is possible when good people show genuine compassion. I’m so grateful that I can move forward with the next step of healing,” one of the patients, Thomas Hartle, said in a statement Tuesday.

The applicants, as well as various advocates for psychedelic therapy, had personally appealed to Hajdu via a concerted social media campaign during the months their applications were pending.

“Health Canada is committed to carefully and thoroughly reviewing each request for an exemption under the Controlled Drugs and Substances Act, on a case-by-case basis, taking into account all relevant considerations, including evidence of potential benefits and risks or harms to the health and safety of Canadians,” a government spokesperson told Marijuana Moment in an email. “These exemptions do not change the fact that the sale and possession of magic mushrooms remain illegal in Canada.”

In statements issued Tuesday, other patients thanked Hajdu and said they were optimistic that more patients will one day have safe, legal access to psilocybin for therapeutic use.

“I want to thank the Health Minister and Health Canada for approving my request for psilocybin use. The acknowledgement of the pain and anxiety that I have been suffering with means a lot to me, and I am feeling quite emotional today as a result,” said Laurie Brooks, an applicant from British Columbia. “I hope this is just the beginning and that soon all Canadians will be able to access psilocybin, for therapeutic use, to help with the pain they are experiencing, without having to petition the government for months to gain permission.”

TheraPsil said on Tuesday that it expects more people to petition the government for exemptions following the first four patients’ approval. A separate request by the nonprofit to allow therapists to use psychedelics themselves in preparation for treating patients with psilocybin was not addressed in Tuesday’s announcement, the group said.

The government, in its statement to Marijuana Moment, said that the use of “magic mushrooms also comes with risks, including increased heart rate and blood pressure, flashbacks and bad trips that may lead to risk-taking behaviour, traumatic injuries and even death.”

All of the four patients who received the new exemptions have been diagnosed with untreatable cancer. Therapists who use psychedelics in their practices say that psilocybin-aided therapy sessions can help patients deal with issues such as depression and anxiety, allowing them to better accept death as a natural part of existence.

“At this point psilocybin is a reasonable medical choice for these individuals,” TheraPsil’s executive director, Spencer Hawkswell, told Marijuana Moment in an interview last month. “This is about the minister being compassionate and using her ministerial abilities to help give patients access to something that’s going to help them.”

The therapeutic potential of psychedelics has attracted attention in recent years from a growing number of academics, policy makers and even the U.S. government. In September of last year, Johns Hopkins University announced the launch of the nation’s first-ever psychedelic research center, a $17-million project to study whether psychedelics can treat conditions such as opioid use disorder, Alzheimer’s disease, depression, anxiety and post-traumatic stress disorder.

In June, the University of North Carolina (UNC) announced a $27 million project funded by the U.S. Department of Defense to research and develop an entirely new class of psychedelics-inspired drugs. The program, UNC said, “aims to create new medications to effectively and rapidly treat depression, anxiety, and substance abuse without major side effects.”

Meanwhile, activists in the United States have advocated for state- and local-level reforms to research, decriminalize and in some cases even legalize psychedelics.

In May 2019, Denver became the first U.S. city to enact such a reform, with voters approving a measure that effectively decriminalized psilocybin possession. Soon after, officials in Oakland, California, decriminalized possession of all plant- and fungi-based psychedelics. In January of this year, the City Council in Santa Cruz, California, voted to make the enforcement of laws against psychedelics among the city’s lowest enforcement priorities.

Reformers are pushing for similar changes in other jurisdictions. A proposal in Washington, D.C. would allow voters to decide this fall whether to decriminalize plant- and fungi-based psychedelic drugs, including psilocybin, ayahuasca and ibogaine. A decision on whether that initiative will make the ballot is expected later this week. In Oregon, voters in November will consider a measure that would decriminalize all drugs and expand access to treatment. A separate Oregon proposal would legalize psilocybin therapy—the same therapy sought by the Canadian cancer patients.

Lawmakers in Hawaii earlier this year approved a plan to study psilocybin mushrooms’ medical applications with the goal of eventually legalizing access.

This story was updated with comment from Health Canada.

Psychedelic Therapists Petition Government For Permission To Dose Themselves In Order To Better Treat Patients

Photo courtesy of Wikimedia/Mushroom Observer.

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Arizona Governor Slams Marijuana Legalization Ballot Measure In Voter Pamphlet Argument

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Ahead of what’s shaping up to be a contentious campaign season around marijuana in Arizona, Gov. Doug Ducey (R) and other opponents are claiming that legalization would unleash a host of public health hazards on the state.

In an official voter guide argument published on Monday against a proposed initiative that’s likely to be on the November ballot, the governor called legalizing cannabis “a bad idea based on false promises.”

“We know from states that have fully legalized marijuana that it has real consequences: more deaths on highways caused by high drivers, dramatic increases in teen drug use, and more newborns exposed to marijuana,” Ducey claimed in his comments.

It’s not yet certain whether the legalization proposal, from Smart and Safe Arizona, will make it to the ballot. County officials have until August 7 to validate hundreds of thousands of signatures submitted by activists last month. But on Monday afternoon, the Arizona secretary of state’s office published arguments submitted both for and against the measure, including a handful from elected officials.

The arguments, which will be printed and mailed to registered voters, give a taste of what’s to come during the mounting fight over legalization in the weeks leading up to Election Day.

As with politics in general in 2020, expect considerable disagreement over basic facts. For instance, Ducey’s argument that cannabis legalization has led to “dramatic increases in teen drug use” seems at odds with available evidence. Even according to legalization opponents, such as the federal government’s High Intensity Drug Trafficking Area (HIDTA) program, teen use rates have actually gone down since the end of prohibition for adults.

In a presentation last month to North Dakota lawmakers, who themselves are considering whether to legalize marijuana, the Colorado-based deputy coordinator of the federal National Marijuana Initiative acknowledged that data from government drug use surveys show that Colorado saw a general decline in the number of teens using marijuana after the state enacted legalization.

Another of Ducey’s claims, that Colorado has a particularly high rate of teen cannabis use compared to other states, is true. But his submission fails to mention that was also true during the years before legalization.

Ducey wasn’t the only official to argue that legalization would increase teen consumption in the new official ballot arguments pamphlet. State Sen. Sine Kerr (R) wrote that she was “deeply saddened by the prospect of how this initiative would harm children.”

“Kids would become easy prey for an industry hungry to create a new generation of users,” Kerr argued, noting that legal products would include vape pens and edible products such as gummies, cookies and candy, which she implied would appeal to children. (Gummy bears would be banned due to a provision forbidding animal-shaped products.)

“The industry will succeed in hooking too many of our kids and stealing their potential early,” she wrote.

Other common arguments against the proposal centered on the increased risk of impaired driving, fears of unbridled advertising by the commercial cannabis industry and economic impacts resulting from unmotivated employees or worker impairment.

“In Arizona, positive marijuana workplace tests have nearly tripled over the past eight years since legalization of medical marijuana,” wrote Yavapai County Attorney Sheila Polk, an outspoken cannabis opponent. “Workplaces with higher rates of drug use have employees that are less productive, suffer higher absenteeism, and have more accidents.”

Polk, whose office prosecutes cannabis cases, also downplayed the impact that legalization would have on the criminal justice system.

“As for their argument that legalizing recreational pot will empty our prisons? Not a single state has seen a reduction in prison population because of legalization,” she argued. “This is because, contrary to the myth, our prisons are not filled with people serving time for marijuana possession.”

Legalization supporters, however, point to Polk’s own office as a reason to reform marijuana laws. In recent years, Polk famously filed felony charges against a black medical cannabis patient for possessing a small amount of marijuana concentrate purchased legally from a dispensary. Critics accused Polk’s office of exhibiting racial bias in the case.

Advocates for the proposed legalization measure, meanwhile, said in ballot arguments that the initiative takes a relatively measured, sensible approach by taxing and regulating marijuana rather than handling it as a criminal matter.

“The war on drugs failed,” wrote Chad Campbell, chair of Smart and Safe Arizona, the organization behind the proposed ballot measure. “Marijuana is safest when it’s sold in a taxed, tested and regulated environment—not on a street corner.”

The campaign says legalization will also bring in at least $300 million in tax revenue that can be used to support things like education, public health, infrastructure and safety. Penalties for driving under the influence of marijuana would go up under the proposal, and millions of dollars in funding would be funneled toward drug treatment and mental health programs.

As for youth use, organizers argue, “we know a well-regulated, licensed, legal environment is the best way to keep marijuana out of the hands of children—period. We set the legal age at 21, limited potency, required childproofed packaging, required products to be unattractive to kids and forbade advertising to youth.”

The state’s voters narrowly defeated a legalization measure in 2016, but a poll released last month indicates the current initiative is on the path to being approved. The survey found that more than 6 in 10 Arizona voters saying they support legalizing marijuana.

Another supporter, former Gov. Fife Symington (R), who served from 1991 to 1997, wrote in his argument that voters “must constantly re-evaluate our policies in the face of new evidence.”

“Today the evidence is overwhelmingly clear: criminalizing law-abiding citizens who choose to responsibly consume marijuana is an outdated policy that wastes precious government resources and unnecessarily restricts individual liberty,” he said. “A far more logical approach would be to respect the rights of adults to choose to consume marijuana while taxing and regulating its production and sale.”

The proposal imposes significant penalties for selling marijuana products to minors, Symington wrote, allows law enforcement to target drivers who demonstrate impairment and allows employers to maintain a drug-free workplace.

“Finally, and perhaps more importantly,” he wrote, “it frees up law enforcement to deal with more serious issues that actually jeopardize public safety.”

Perhaps the most balanced ballot argument submitted over the measure came from Will Humble, executive director of the Arizona Public Health Association, who said the proposition “poses public health risks and benefits.” Humble‘s statement, which identifies what he said are both risks and benefits of legalization, is printed twice—once alongside ballot arguments against legalization, and again next to arguments in support of it.

One one hand, Humble argued, ending felony charges for cannabis possession would reduce mental, physical and economic impacts for individuals and families. “Incarceration and felony convictions for marijuana offenses have multigenerational social, economic, and health impacts that have been disproportionately thrust on communities of color,” Humble wrote, “because they are more likely to be arrested for and convicted of marijuana offenses.”

Humble noted the measure also includes provisions to regulate and test cannabis products, support evidence-based public health programs and prevent sales to minors—although he acknowledged those efforts won’t eliminate all risks, which he said include “impaired neurological development from use in adolescence, increased visits to emergency rooms from marijuana intoxication or accidental ingestion by children, adverse birth outcomes from maternal use, and injuries caused by impaired driving or workplace use.”

Humble argued that if voters choose to pass the measure, regulators should be prepared to take the new legal sector seriously.

“If the Act passes,” he wrote, “we urge the state to use its full regulatory authority to enforce purchasing age-limits, packaging and potency standards, regulate advertising and place of use restrictions, enact workplace use policy requirements, and solidify motor vehicle operation restrictions and penalties. Arizona officials should also partner with state universities to analyze and publish data on its public health impacts.”

Read the arguments for and against the Arizona legal marijuana measure below:

Arizona Marijuana Legalizat… by Marijuana Moment on Scribd

Louisiana Law Allowing Medical Marijuana For Any Debilitating Condition To Take Effect

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McConnell Slams Pelosi Over Claim Marijuana Is A ‘Proven’ Therapy Amid Coronavirus Debate

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Senate Majority Leader Mitch McConnell (R-KY) took a shot at House Speaker Nancy Pelosi (D-CA) on Tuesday, criticizing recent comments she made defending marijuana provisions that were included in her chamber’s latest coronavirus relief legislation.

The majority leader, who has consistently railed against the inclusion of cannabis banking protections in the House COVID-19 bill, said on the Senate floor that Pelosi is “still agitating for strange, new special interest carve-outs for the marijuana industry and even claiming they are COVID-related.”

“She said that, with respect to this virus, marijuana is ‘a therapy that has proven successful.’ You can’t make this up,” he said.

“I hope she shares her breakthrough with Dr. Fauci,” McConnell wryly added, referring to National Institute of Allergy and Infectious Diseases Director Anthony Fauci, who has been helping to lead the White House Coronavirus Task Force.

McConnell is referring to remarks Pelosi made last week after she was asked about components of the House Democrats’ bill that Republicans have criticized as not germane, including specifically the marijuana language.

The speaker said she took issue with the suggestion that cannabis banking reform was not relevant amid the pandemic and said marijuana “is a therapy that has proven successful.” Prohibitionists have seized on that comment, interpreting it to mean that Pelosi believes cannabis can treat COVID-19.

That said, it wasn’t clear from the brief comment whether that was the case or if Pelosi was broadly referring to the therapeutic benefits of marijuana.

The Food and Drug Administration has made clear that there’s currently no solid evidence that cannabinoids can treat COVID-19 and it’s warned companies that make that claim.

Marijuana Moment previously exclusively reported that Pelosi—who said in 2018 that doctors should prescribe medical cannabis and yoga more often instead of prescription opioids—supported attaching the banking language to the House’s coronavirus package prior to the legislation’s introduction.

Senate leadership unveiled their latest round of coronavirus relief legislation last week, and it does not include the cannabis provisions. And given McConnell’s particular focus on those components, it seems likely that any attempt to get the language inserted in a bicameral conference will be met with resistance on the Senate side.

House Minority Leader Kevin McCarthy (R-CA) also recently slammed Pelosi’s latest cannabis comments on Twitter, saying “let’s focus on the pandemic. Not pot.”

Meanwhile, the standalone Secure and Fair Enforcement (SAFE) Banking Act has continued to sit in the Senate Banking Committee without action in the months since the House initially approved it.

Last month, a bipartisan coalition of state treasurers sent a letter to congressional leaders, asking that they include marijuana banking protections in the next piece of coronavirus relief legislation.

In May, a bipartisan coalition of 34 state attorneys general similarly wrote to Congress to urge the passage of COVD-19 legislation containing cannabis banking provisions.

McConnell’s latest comments also come a week after the House approved an amendment to protect state, territory and tribal marijuana laws from federal interference.

Top House Democrat Talks Marijuana Reform With Major Cannabis Company

Photo courtesy of Senate Majority Leader Mitch McConnell.

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