Rep. Maxine Waters (D-CA) said marijuana banking legislation will advance to the House floor despite the fact that some major advocacy groups are calling for a delay until more comprehensive cannabis reform is first passed.
The congresswoman, who chairs the House Financial Services Committee, told Marijuana Moment in an interview on Wednesday that she appreciates the concerns outlined by groups including the ACLU and Center for American Progress, which released a letter on Tuesday stating that they were worried that passing the banking bill would undermine broader reform efforts.
The problem, she said, is that Judiciary Committee Chairman Jerrold Nadler (D-NY) hasn’t yet advanced the more wide-ranging legalization legislation those groups favor, leaving House leadership in a bind as they plan out the floor calendar.
“I know that leadership is in support of the Judiciary moving as fast as they possibly can with the bill that would deal with those civil rights issues,” she said. “We just can’t get from Judiciary exactly when they are going to do that.”
“And so what’s going to happen is Mr. Perlmutter’s bill that gives safe harbor to the banks is going to move, and whenever Judiciary gets that bill done, then it’s going to move too with the same kind of support that Mr. Perlmutter’s bill is going to get,” she said, referring to the Secure and Fair Enforcement (SAFE) Banking Act sponsored by Rep. Ed Perlmutter (D-CO).
“We’ve been working on it for six years—the banks are reticent to deal with the cannabis industry. The states are moving forward very quickly to authorize and support cannabis. All this cash is piling up. And so something has to be done to give safe harbor to the banks.”
Perlmutter’s bill was approved by Waters’s House Financial Services Committee with a strong bipartisan vote in March, and certain advocates expected the full chamber to take it up before the summer recess. While that didn’t pan out, Majority Leader Steny Hoyer (D-MD) informed the Democratic Caucus last week that he intends to hold a floor vote by the end of the month, his staff confirmed to Marijuana Moment. A vote has not yet been scheduled, however.
That announcement came one day after Senate Banking Chairman Mike Crapo (R-ID) said his panel would vote on cannabis banking reform, though he declined to provide a timeline beyond saying that he wants to get it done by the end of the year.
Hoyer’s announcement took some advocates by unpleasant surprise, as they were under the impression that something like Nadler’s Marijuana Opportunity, Reinvestment and Expungement (MORE) Act—which addresses social equity and restorative justice—would get a vote before the House worked to pass what’s viewed as a largely industry-friendly banking bill.
“I just think it’s a matter of timing. I think the Judiciary bill, whenever it’s ready, it’s going to move as quickly as they get it ready, and it will be supported,” Waters said.
Perlmutter echoed that point in an interview with Marijuana Moment on Wednesday.
“We’ve had this passed [out of committee] for six months and certainly support all of what they’re trying to do,” he said, referring to his banking bill and the groups’ call for comprehensive reform. “But we’ve got to get these things moving.”
“That’s what I’m trying to do, and I think we’re going to be successful.”
The congressman also said he agreed with Waters about the need for Judiciary to act.
“I think they’re prepared to set a markup and move it, and I’m a cosponsor of that bill. But I want to get this one going,” he said. “This sort of breaks the ice for everything else. That’s been what we’ve talked about for a long time, and this one we’ve been working on a long time.”
Rep. Matt Gaetz (R-FL), a close ally of the Trump administration, had sharp words for groups urging a delay on a marijuana banking vote, stating that it’s “deeply disappointing that instead of adding to the coalition of the marijuana reform movement, we continue to find new and destructive ways to divide the coalition.”
“It is unfortunate that some of the most left-wing elements of our pro-marijuana reform coalition are now making demands beyond freedom,” he said. “The way we attract folks on the libertarian and right to our movement is to embrace freedom and to show it’s both popular and helpful to people in their lives.”
But while the congressman went on to say that calls for social equity and reparations “fatally divide the movement,” he’s also a cosponsor of Nadler’s MORE Act that includes such provisions.
Rep. Eric Swalwell (D-CA) told Marijuana Moment that while he shares the groups’ frustration over inaction on broader reform, he’s going to support the banking bill when it comes to the floor because he has “a lot of constituents who would benefit greatly if we made reform in banking.”
“It’s just hard to look them in the eye and say I’m not going to support legislation that would help you immediately so you can help patients, help people who need it,” he said. “I’m inclined this one to support if it came up for a vote, but I understand the sentiment. I’m frustrated too.”
Jason Ortiz, vice president of the Minority Cannabis Business Association, told Marijuana Moment that while he similarly understands where groups like ACLU are coming from, the banking bill isn’t entirely about bolstering the industry and would also serve disadvantaged communities.
“SAFE banking would open bank financing sources to cannabis companies allowing approved social equity applicants to enter the market without accepting predatory terms from private investors just to open their doors,” he said. “Many entrepreneurs of color are looking to start their businesses immediately and become the success stories that will spur further support and investment in our communities.”
“While I understand and respect the position of our allies in advocacy, current social equity applicants should not be held hostage until we can enact legislation unlikely to pass under the current administration,” he said. “Doing so would give the multi-state operators even more of a head start which will widen the ownership gap in the cannabis industry.”
But Jasmine Tyler, advocacy director of the U.S. Program for Human Rights Watch, which also signed the Tuesday letter to House leaders, took a different view.
“Civil and human rights groups, criminal justice and drug policy advocates, faith leaders, and doctors have all called for the repeal of the US’s racialized marijuana enforcement and start repairing harms done to communities for decades,” she told Marijuana Moment. “For House Leadership to prioritize a bill that would advance banking rights over human rights is a travesty.”
Asked whether she had a message for the groups requesting a delay on the banking legislation, Waters said, “I don’t, except to say that the Democratic Caucus supports ensuring that minorities and others who have been disadvantaged, who’ve been unfairly incarcerated by those marijuana laws, must be supported in ways that will help them to benefit from this new industry.”
“We’re all waiting for the bill. We’re desperately waiting for that bill,” she said. “As soon as this gets ready, we’re all going to get forcefully behind it.”
Justin Strekal, political director of NORML, told Marijuana Moment that Waters is “one of the most effective champions of cannabis reform, from successfully moving the SAFE Banking Act swiftly out of committee earlier this year to being one of the original lead sponsors of the MORE Act.”
“After a successful vote on the banking bill, it will be time for cannabis advocates and the industry to unite behind the MORE Act to ensure passage this Congress,” he said.
“We are encouraged by the comments from Chairwoman Waters,” Neal Levine, CEO of the Cannabis Trade Federation, said. “While both industry and advocacy groups are seeking more substantial reforms, the banking issue is something that can be addressed immediately on a bipartisan basis. This is a move that should be cheered, as it will greatly enhance public safety and protect workers in states that have made the rational choice to end prohibition and regulate the sale of cannabis.”
Aaron Houston contributed reporting from Capitol Hill for this story.
This story has been updated to include comments from Perlmutter, Gaetz, Swalwell, Cannabis Trade Federation and Human Rights Watch.
Photo courtesy of Brian Shamblen.
IRS Official Offers Tax Advice To Marijuana Businesses And Says Feds Expect Industry To Keep Growing
The Internal Revenue Service (IRS) says it expects the marijuana industry to continue to grow, and it’s offering some tips to cannabis businesses on staying compliant with taxes while the plant remains federally prohibited.
In a blog post on Monday, IRS’s De Lon Harris said that the “evolving and complex issue my organization has been focused on is the tax implications for the rapidly growing cannabis/marijuana industry.”
“The specific rules and regulations regarding how [marijuana] is taxed at the federal level provides the IRS an opportunity to promote voluntary compliance, not only through audits, but also through outreach and education,” he said, noting the rapid expansion of state-legal cannabis markets. “And while there are 14 states that still ban cannabis use, we expect both unlicensed and licensed marijuana businesses to grow.”
“It’s tricky from a business perspective, because even though states are legalizing marijuana and treating its sale as a legal business enterprise, it’s still considered a Schedule 1 controlled substance under federal law,” Harris wrote. “That means a cannabis/marijuana business has additional considerations under the law, creating unique challenges for members of the industry.”
The official, who serves as commissioner of IRS’s Small Business/Self Employed (SB/SE) Examination division, recognized that the status quo means that marijuana businesses are forced to operate on a largely cash-only basis, and federal prohibition also means that companies in the sector are precluded to taking key tax deductions.
However, while the tax statute known as 280E means the industry is ineligible for most federal tax deductions and credits, he noted that marijuana firms “can deduct their cost of goods sold, which is basically the cost of their inventory.”
“What isn’t deductible are the normal overhead expenses, such as advertising expenses, wages and salaries, and travel expenses, to name a few,” Harris said. “I understand this nuance can be a challenge for some business owners, and I also realize small businesses don’t always have a lot of resources available to them.
The official previewed a new “Cannabis/Marijuana Initiative” the agency is launching that will provide specific job training to tax officials to effectively carry out audits within the industry, ensure that there’s consistency in the IRS’s policy for cannabis, work with stakeholders to ensure tax compliance and help to identify non-compliant businesses.
“I’m very focused on the success of this strategy because it’s very important for business owners to understand that under our nation’s tax laws, and specifically Internal Revenue Code 61, all income is taxable, even if someone is running a business that’s considered illegal under federal law,” he said. “This is a truly groundbreaking effort for our agency.”
“Our strategy is not limited to pushing information out via our website in the hope that business owners will find it. I’ve made it a priority for my SB/SE organization to engage with the cannabis/marijuana industry through speaking events and other outreach. I have done three of these types of events over the last year, and what I have heard is a genuine desire to comply with the tax laws regarding the industry. Through this extended outreach, we hope to help small business owners and others fully understand the unique tax rules before there are any compliance issues.”
“Since the unique circumstances of the cannabis industry can make tax preparation challenging, I hope that new and experienced business owners take my advice in this post and use our resources to ensure they understand their tax obligations and avoid penalties associated with non-compliance,” the blog post concludes. “We’re always here to help with tools, information and guidance.”
This is yet another signal that while marijuana remains federally illegal, agencies are increasingly recognizing that a policy shift is happening in states and may well be on the horizon at the congressional level.
As leadership in the House and Senate work to advance legislation to deschedule cannabis, lawmakers have also pushed to enact clear, statutory protections for financial institutions that work with state-legal marijuana businesses. And that would be accomplished through House-passed standalone legislation, or an amendment that was attached to a defense spending bill this week.
In the interim, banks and credit unions are operating under 2014 guidance from the Financial Crimes Enforcement Network (FinCEN) that lays out reporting requirements for those that choose to service the marijuana industry. FinCEN released a report last week showing that there were 706 financial institutions that said they were actively serving cannabis clients as of the last quarter.
IRS separately hosted a forum last month dedicated to tax policy for marijuana businesses and cryptocurrency.
The seminar, which was presented by a representative of the National Association of Tax Professionals (NATP), examined issues such as allowable tax deductions while cannabis remains federally illegal and how different states approach taxing marijuana. It also covered issues related to paying taxes on earnings in Bitcoin and other forms of digital currency.
Earlier this year, IRS Commissioner Charles Rettig told Congress that the agency would “prefer” for state-legal marijuana businesses to be able to pay taxes electronically, as the current largely cash-based system under federal cannabis prohibition is onerous and presents risks to workers.
Former Treasury Secretary Steven Mnuchin said in 2019 that he’d like to see Congress approve legislation resolving the cannabis banking issue and he pointed to the fact that IRS has had to build “cash rooms” to deposit taxes from those businesses as an example of the problem.
IRS released updated guidance on tax policy for the marijuana industry last year, including instructions on how cannabis businesses that don’t have access to bank accounts can pay their tax bills using large amounts of cash.
The update appears to be responsive to a Treasury Department internal watchdog report that was released earlier in the year. The department’s inspector general for tax administration had criticized IRS for failing to adequately advise taxpayers in the marijuana industry about compliance with federal tax laws. And it directed the agency to “develop and publicize guidance specific to the marijuana industry.”
Harris’s predecessor at IRS SB/SE also participated in an informational webinar in December, offering candid insights on a variety of cannabis industry issues from the federal perspective.
Massachusetts Lawmakers Discuss Drug Decriminalization And Safe Injection Sites At Hearing
Massachusetts lawmakers on Monday heard testimony on separate proposals to decriminalize drug possession and establish a pilot program for safe injection facilities where people could use illicit substances in a medically supervised environment to prevent overdose deaths and facilitate treatment.
The state legislature’s Joint Committee on Mental Health, Substance Use and Recovery held a hearing on the harm reduction proposals, with experts and people personally impacted by substance misuse advocating for new approaches to drugs that destigmatize addiction and offer people resources outside of a criminal justice context.
The decriminalization bill would replace criminal penalties for the possession of any controlled substance with a civil fine of up to $50. To avoid the fine, individuals could enroll in a “needs screening to identify health and other service needs, including but not limited to services that may address any problematic substance use and mental health conditions, lack of employment, housing, or food, and any need for civil legal services.”
For the safe injection site legislation, the state would establish a 10-year pilot program where at least two facilities would “utilize harm reduction tools, including clinical monitoring of the consumption of pre-obtained controlled substances in the presence of trained staff, for the purpose of reducing the risks of disease transmission and preventing overdose deaths.”
A separate, less far-reaching bill that was added to the agenda in a late addition would direct the Department of Public Health to simply “evaluate the feasibility” of safe consumption sites and then report back to lawmakers by July 31, 2022..
The joint committee listened to academics, health professionals, lawmakers discuss the reform proposals but did not take immediate action on any of the legislation. It’s unclear when the bills will be taken up again for further consideration.
“By every metric, the war on drugs has been a catastrophic failure,” Rep. Mike Connolly (D) said. “In the United States and here in Massachusetts, the criminalization of drug possession is a major driver of mass incarceration. We know that black people have been incarcerated at a rate eight times higher than white people, and there’s no question that the criminalization of substance use issues has contributed to these terrible disparities.”
Connolly is also the sponsor of legislation that received a Joint Judiciary Committee hearing in July on studying the implications of legalizing psychedelics like psilocybin and ayahuasca.
Officials with at least one Massachusetts city, Somerville, said that there are plans in the work to launch a safe injection facility in the jurisdiction. And they want to see the statewide bill pass to provide additional protections against being federally penalized.
“State legislation, wielding its constitutionally granted powers to enact laws for public health and safety, has the ability to greatly minimize these risks through legislation authorizing a pilot of safe consumption sites,” Hannah Pappenheim, assistant city solicitor at the City of Somerville, said. “In addition, state legislation would also minimize the risk of costly—but more importantly, lengthy—litigation.”
The official noted that a separate, Pennsylvania-based case on the legality of safe injection sites has been ongoing in federal courts for years at this point.
A coalition of 80 current and former prosecutors and law enforcement officials—including one who is President Joe Biden’s pick for U.S. attorney of Massachusetts—recently filed a brief urging the Supreme Court to take up the case.
Xavier Bacerra, the Biden administration’s secretary of health and human services, was among eight top state law enforcement officials who filed an earlier amicus brief in support of the Philadelphia-based Safehouse’s safe injection site plan when he served as California’s attorney general.
“State legislation paves the way for a more expedient process in Somerville, and of course elsewhere in the Commonwealth,” Pappenheim said.
Somerville Mayor Joseph Curtatone (D) said at Monday’s hearing that “it’s important for Massachusetts to finally lead—not just compiling, but implementing a strategy that reduces harm and save lives.” He conceded that he previously opposed the concept of allowing safe consumption sites; but his personal experience knowing people in his immediate family who suffered from addiction—as well as his own review of the scientific literature on harm reduction alternatives to criminalization—led him to embrace the reforms.
Massachusetts lawmakers advanced similar legislation last year, but it was not ultimately enacted.
The governor of neighboring Rhode Island signed a bill in July to establish a safe consumption site pilot program where people could test and use currently illicit drugs in a medically supervised environment. It became the first state in the country to legalize the harm reduction centers. It’s not clear whether the Department of Justice will seek to intervene to prevent the opening of such facilities in that state.
Oamshri Amarasingham, deputy legislative director of the ACLU of Massachusetts, voiced support for both reform proposals at Monday’s hearing and told WGBH that establishing a safe injection site pilot program “is one piece of that puzzle” that is “critically important and that’s had great success in other countries.”
The ACLU has long supported shifting to a #PublicHealth approach to drug policy rather than a criminal one…
— ACLU Massachusetts (@ACLU_Mass) September 27, 2021
Shaleen Title, a former Massachusetts cannabis commissioner who now heads the Parabola Center, juxtaposed how laws handle substances like caffeine, alcohol and nicotine differently from currently illegal drugs.
“What separates that from when we have these illicit drugs, where handcuffs and cages are involved, and what led that to be? The reason has nothing to do with science, or evidence or the relative dangers of those drugs,” she said. “The reason is because—and this is well-documented—those drugs could be scapegoated and blamed on their association with indigenous and Indian and Mexican and Chinese and other cultures, and then used to target communities of color, particularly black and Latino people nationally and here in Massachusetts.”
At the same time that Massachusetts legislators are looking into harm reduction and broad drug decriminalization, local activists in the state have also been pursuing psychedelics reform.
Three Massachusetts cities—Northampton, Somerville and Cambridge—have each passed resolutions to deprioritize enforcement of laws against the possession, use and distribution of a wide range of psychedelics and other drugs. The Easthampton City Council is also exploring a resolution to decriminalize a wide range of entheogenic substances, with a meeting set for Friday.
Marijuana Arrests Dropped Sharply In 2020 As Both COVID And Legalization Spread, FBI Data Shows
Marijuana arrests declined significantly in 2020 amid the coronavirus pandemic, newly released FBI data shows.
There were 1,155,610 drug-related arrests overall last year, with cannabis sales and possession busts accounting for just over 30 percent (or 350,150) of those cases. The vast majority were for marijuana possession alone.
The agency’s data shows that there was a cannabis arrest every 90 seconds in the country in 2020, and there was a drug-related arrest every 27 seconds.
While these figures still highlight the rampant, ongoing criminalization of cannabis in states across the U.S., it’s a substantial deescalation compared to 2019, when FBI reported a total of 545,601 marijuana arrests. That amounted to a cannabis bust every 58 seconds.
Put another way, there was a 36 percent decrease in cannabis cases from 2019 to 2020. And while the federal agency doesn’t attempt to explain the statistical shift, there are a number of factors that could help explain it.
One of the more obvious societal changes during that timeframe is the COVID-19 health crisis, which involved social distancing requirements and generally discouraged people from being out in public where they might be at higher risk of being arrested for simple possession.
But advocates have also pointed out that the marijuana reform movement could be playing a role. Illinois’s adult-use cannabis law took effect at the beginning of 2020, for example. Hawaii, New Mexico and North Dakota also enacted decriminalization of marijuana possession in 2019, and Virginia followed suit the next year.
In Arizona, limited cannabis possession was legalized for adults starting on November 30, 2020 following voter approval of a reform initiative earlier that month.
“As more states move toward the sensible policy of legalizing and regulating cannabis, we are seeing a decline in the arrest of non-violent marijuana consumers nationwide,” NORML Executive Director Erik Altieri told Marijuana Moment. “The fight for legalization is a fight for justice. While these numbers represent a historic decline in arrests, even one person being put into handcuffs for the simple possession of marijuana is too many.”
Despite the decline in cannabis busts, the new data shows that American law enforcement still carried out more arrests for marijuana alone last year than for murder, rape, robbery, burglary, fraud and embezzlement combined.
It should be noted that not all local police participate in FBI’s reporting program, so these figures are not holistic and are estimates the agency makes based on those that do submit data.
The country had seen a consistent decline in cannabis arrests for roughly a decade prior to 2016, when those cases started to rise up until 2019.
Observers expect to see the downward trend in cannabis busts continue as more states move to end prohibition and law enforcement deprioritizes marijuana-relate cases. In New York, for example, police received new guidance this year stipulating that adults 21 and older can possess certain amounts of marijuana and consume it in places where tobacco use is permitted.
That directive alone seems to have led to a dramatic decrease in cannabis arrests in New York City.
Federal marijuana trafficking cases also continued to decline in 2020 as more states have moved to legalize, an analysis from the U.S. Sentencing Commission (USSC) that was released in June found.
Federal prosecutions of drug-related crimes overall increased in 2019, but cases involving marijuana dropped by more than a quarter, according to an end-of-year report released by Supreme Court Chief Justice John Roberts in December.
A study released by the Cato Institute in 2018 found that “state-level marijuana legalization has significantly undercut marijuana smuggling.”