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How Marijuana Businesses Can Win Tax Fairness Under Trump Plan

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Following the repeated failure of Congressional Republican plans to pass healthcare legislation, all eyes on Capitol Hill have turned to a tax reform agenda that President Trump and GOP lawmakers are now pushing.

Some marijuana policy observers believe the overhaul provides an opportunity for cannabis businesses to finally break free from a 1980s provision — known as 280E — that forces them to pay a much higher tax rate than companies in other industries.

WHAT IS 280E?

Enacted in 1982,  Section 280E of the Internal Revenue Code states:

No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which such trade or business is conducted.

While it was initially intended to stop drug cartel leaders from writing off yachts and fancy cars, today its plain language means that that growers, processors and sellers of marijuana — which is still a Schedule I substance under federal law — can’t take business expense deductions that are available to operators in other sectors.

And it doesn’t matter if they are strictly in compliance with state or local policies. Federal law is federal law.

As a result, cannabis businesses often pay an effective tax rate upwards of 65-75 percent, compared with a normal rate of around 15-30 percent.

HOW 280E REFORM COULD HAPPEN THIS YEAR

Over the past several Congresses, standalone bills to amend the provision so that it doesn’t apply to state-legal businesses have earned increasing numbers of cosponsors, but haven’t received hearings or votes.

Now that a broader tax reform package is on the agenda with the support of Congressional leadership and the White House, advocates and industry operators are pushing to attach a 280E fix to the moving vehicle.

Restricted Analysis For Marijuana Moment Patreon Supporters Only

Learn which five GOP House members and three Democrats cannabis businesses need to target with advocacy efforts to win a key committee vote on 280E reform language. 

Plus: See which three GOP senators reformers could pick up key votes from.

(Analysis contains 1,200+ words and an embedded spreadsheet tracking lawmakers’ past marijuana votes).

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UPDATE: Neither the House nor the Senate voted on a 280E amendment as part of consideration of tax reform legislation.

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With support from the targeted House and Senate members named above, cannabis businesses would succeed in attaching 280E reform language to the tax plan at the committee level before the legislation reaches the floor.

THE LOBBYING PUSH

Marijuana business advocacy groups like the National Cannabis Industry Association and the New Federalism Fund are mounting lobbying campaigns to build support for 280E reform on Capitol Hill.

But they aren’t alone. Powerful conservative anti-tax crusader Grover Norquist is also working on the issue. In an interview earlier this year, he said he has “brought it up with leadership” but hadn’t yet gotten solid indications that House Speaker Paul Ryan or other members are on board with the plan.

But that could change if a significant number of GOP members make it clear that fixing 280E is important enough to them that they’d make their support for the overall bill contingent on it.

“Marijuana could get into that [tax reform] package if some of the libertarian Republicans made that a condition of voting for the whole package,” Norquist said.

Marijuana businesses that could stand to benefit from a 280E fix and want to bolster the campaign would likely do well to focus resources conducting grasstops and grassroots outreach in the districts of those House Ways and Means Committee and Senate Finance Committee members singled out in the section above.

COMPLICATIONS

In addition to the tough legislative math in House and Senate committees detailed previously, 280E reform advocates may encounter a bigger problem: The deficit.

While rescinding the provision’s application to state-legal cannabis providers is a matter of basic fairness, it would also, on its face, amount to a large tax cut from current rates for those businesses. And that could be a roadblock to success, as Republicans are already struggling to find ways to pay for broader tax cuts they are proposing in the plan.

While most legalization advocates would gladly agree to a federal sales tax on legal marijuana to make up for the 280E fix, the kinds of broader changes needed to existing drug laws seem far beyond the scope of the tax package.

An even simpler pitfall for 280E reform is that even if it is successfully attached to the broader tax legislation, there is no guarantee that the bill will be enacted. Healthcare reform efforts that GOP leaders put a lot of stake and effort into passing have fallen short on several occasions in recent months. Budget proposals necessary for clearing a legislative path for the tax bill to advance have only very narrowly been approved by the House and Senate, meaning that leadership has very few votes to spare when negotiating the finer points of the legislation.

COMPROMISE APPROACHES

If reformers aren’t able to earn enough support for a full 280E carveout for cannabis businesses, there are two potential compromise approaches they may consider.

One would be to push for a reform that only protects medical cannabis, and not recreational marijuana, businesses. While that would certainly leave a significant portion of the industry behind, it may be more palatable to certain lawmakers. GOP Sen. Susan Collins or Maine, for example, said during a 2014 committee debate on a marijuana banking amendment that she would have supported the measure if it only protected medical cannabis businesses. But, because of its broader reach, she voted against it.

Similar concerns led to the complete removal of banking language between last year’s version of the comprehensive Senate medical cannabis bill known as the CARERS Act and this year’s introduction of new legislation, according to marijuana lobbyists.

Another potential compromise, floated by former Joint Congressional Committee on Taxation staffer Pat Oglesby would enact a 280E fix but maintain the non-deductibility of marijuana businesses’ advertising expenses. NORML has signed off on the plan.

TIMING

This will all move fairly quickly. The House bill will be introduced this week, and the Ways and Means Committee is set to begin marking up the legislation on Monday. The Senate will move sometime after that. Lawmakers have said they plan to have a bill on President Trump’s desk by the new year.

OUTLOOK

The chances of attaching a 280E fix to the broader tax reform plan are non-zero, but broader political factors and whip count math mean that it will be far from an easy task.

A serious, targeted and well-funded lobbying effort aimed at four Republican House members, three Democratic House members and three Republican senators is needed to ensure any chance of success.

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Tom Angell is the editor of Marijuana Moment. A 15-year veteran in the cannabis law reform movement, he covers the policy and politics of marijuana. Separately, he serves as chairman of the nonprofit Marijuana Majority. Previously he reported for Marijuana.com and MassRoots, and handled media relations and campaigns for Law Enforcement Against Prohibition and Students for Sensible Drug Policy. (Organization citations are for identification only and do not constitute an endorsement or partnership.)

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The Cannabis Industry’s Most Influential Event of the Year

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This is a sponsored post by the National Cannabis Industry Association’s Cannabis Business Summit & Expo.

Become a part of the nation’s fastest growing industry this July 25-27 as the National Cannabis Industry Association celebrates five years of bringing together the best and brightest minds at their annual Cannabis Business Summit & Expo in San Jose, CA. See for yourself why industry leaders are calling #CannaBizSummit “a powerhouse of networking and marketing opportunities.” If you are interested in the business of cannabis, this is one event you don’t want to miss.

Register Today!

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“This summit is a once in a lifetime opportunity to meet with like-minded fellow cannabis industry colleagues.” – Karl Keich, Executive Director at Canna Consulting Group

These days, it’s all about who you know, and what better way to get to know people than in a room where all 7,500+ work in the same field? Having an impression on your peers significantly increases the chance for future opportunities and exposure, especially in such a tight-knit industry. We provide an unparalleled opportunity to create lasting business relations with cannabis executives from across the nation.

“Whether you’re in lighting, whether you’re into the manufacturing or the tech. It’s all here, all relevant companies that you can do business with.” – Damien Payne, Firesale

Whether you’re interested in showcasing your products to an audience with the proven highest concentration of legitimate buyers and sellers in the industry, or looking to shop all your business needs, NCIA has got you covered. Shop the SOLD OUT 120,000+ square foot expo floor which features 350+ industry-leading brands displaying their latest products, services, software, and hardware in an effort to aid you and your hunt to solve your business woes.

“Hear from the best of the best speaking in sessions here.” – Jeannette Ward, Director of Data & Marketing at MJ Freeway

Utilizing the knowledge of others gives you a professional competitive edge. You’ll never have enough seniority that you know everything about your industry – especially an industry that evolves as rapidly as the cannabis industry. By harnessing and applying information gathered by your competitors, and keeping up with the latest best practices, you’re sure to stay at the top of your industry. NCIA panels feature a diverse lineup of speakers from cannabis law, tech, and more. With more than 150 thought leaders in five purposefully-constructed tracks, you’re sure to learn something new, and by learning directly from those who are paving the way for us to conduct business, you will receive the most up-to-date information about regulations and policies before the competition, conveniently placing you at the forefront of the industry.

“This show really unites people who are really trying to scale their business and really trying to be an innovator by collaborating with everyone else. NCIA might be the epicenter of the cannabis business-to-business realm.” – Sergio Castro, Convectium

Strengthen this incredible community by learning how fellow attendees have continued their implementation of education and elevation of the industry. Mingle with like-minded professionals with similar business struggles and successes. Learn which strategies work and which aren’t worth your time.

Advocacy. Education. Community.

These three pillars are at the core of the National Cannabis Industry Association. Since day one, NCIA has worked hard to create events that are simply unmatched in quality to ensure that you and your cannabusiness succeed. This three-day educational event is your opportunity to:

• Advocate for YOUR Business – There is strength in numbers; discuss YOUR business needs directly with NCIA as well as how you can make a difference in the movement to reform cannabis policy.

• Educate Your Team – By keeping up on the latest industry best practices, not only will you be enhancing your sales techniques, but you’ll also be sure to stay at the top of the cannabis market.

• Strengthen Your Community – Together, through education and a strong sense of community, we can elevate this industry and eradicate the stigma around cannabis.

The Cannabis Business Summit & Expo experience is one unparalleled by any other industry event. NCIA is in the business of helping you grow YOUR business. Whether you’re an industry pro or a emerging entrepreneur, arm yourself with the latest tips and tricks from across the industry. Tickets are going fast – Don’t miss out.

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This is a sponsored post by the National Cannabis Industry Association’s Cannabis Business Summit & Expo.

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Marijuana Industry Not Eligible For Business Loans, Trump Administration Says

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The U.S. Small Business Administration issued guidance earlier this month clarifying that marijuana businesses — and even some firms that don’t touch the plant but serve those in the cannabis industry — cannot receive aid in the form of federally backed loans.

“Because federal law prohibits the distribution and sale of marijuana, financial transactions involving a marijuana-related business would generally involve funds derived from illegal activity,” the new memo says. “Therefore, businesses that derive revenue from marijuana-related activities or that support the end-use of marijuana may be ineligible for SBA financial assistance.”

The new document details the type of marijuana-related businesses that it says are “ineligible” to participate in the agency’s loan programs:

(a) “Direct Marijuana Business” — a business that grows, produces, processes, distributes, or sells marijuana or marijuana products, edibles, or derivatives, regardless of the amount of such activity. This applies to personal use and medical use even if the business is legal under local or state law where the applicant business is or will be located.

(b) “Indirect Marijuana Business” — a business that derived any of its gross revenue for the previous year (or, if a start-up, projects to derive any of its gross revenue for the next year) from sales to Direct Marijuana Businesses of products or services that could reasonably be determined to support the use, growth, enhancement or other development of marijuana. Examples include businesses that provide testing services, or sell grow lights or hydroponic equipment, to one or more Direct Marijuana Businesses. In addition, businesses that sell smoking devices, pipes, bongs, inhalants, or other products that may be used in connection with marijuana are ineligible if the products are primarily intended or designed for such use or if the business markets the products for such use.

(c) Hemp-Related Business” — a business that grows, produces, processes, distributes or sells products purportedly made from “hemp” is ineligible unless the business can demonstrate that its business activities and products are legal under federal and state law. Examples of legal hemp products include paper, clothing and rope.

The new memo, issued by SBA Administrator Linda E. McMahon, is intended to provide clarification on a longer document laying out rules for loan programs that SBA issued earlier this year.

The policy document also specifies that SBA borrowers can’t rent office space to marijuana-related businesses.

“For consistency with the changes identified above regarding marijuana-related businesses, Lenders are advised that, during the life of the SBA-guaranteed loan, a borrower may not lease space to the ineligible businesses described above because the collateral could be subject to seizure and because payments on the SBA loan would be derived from illegal activity,” McMahon wrote. “If a borrower does lease to an ineligible marijuana-related business, SBA District Counsel should be consulted to determine what action should be taken.”

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As Denver Post Guts Cannabist, Former Editor Ricardo Baca May Buy It

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Marijuana Moment is republishing the following press release with the permission of Grasslands.

‘I Am Absolutely Gutted’:

As The Denver Post Cuts Staffing to Groundbreaking Marijuana News Vertical The Cannabist, Site’s Founder and Original Editor Laments its Unjustified Collapse 

Once Considered Among the Hottest Brands in New Media, Industry-Leading Marijuana Journalism Site The Cannabist No Longer Has a Dedicated Staff After The Denver Post Lays Off One-Third of its Newsroom

DENVER, Colorado—April 27, 2018—Embattled Colorado newspaper The Denver Post is no longer staffing its groundbreaking, first-of-its-kind marijuana news vertical The Cannabist, newsroom leadership confirmed Friday—a decision that is surprising cannabis and journalism circles today.

The Cannabist was founded in 2013 by veteran journalist Ricardo Baca as the world’s first adult-use cannabis market was about to launch in Colorado. As The Post’s first-ever Marijuana Editor, Mr. Baca and his team created the site from scratch and developed a robust national readership that appreciated the unique vertical’s journalism-first approach to covering the newly legal industry, the policy surrounding it and the culture that grew from legalization. Feature-length documentary Rolling Papers—a film “more about marijuana journalism than the big picture, and as such it’s a worthwhile endeavor,” wrote Chicago Sun-Times film critic Richard Roeper in his three-star review—documented both The Cannabist’s debut and the 2014 world premiere of state-regulated legal marijuana sales.

As the site’s founder and original editor-in-chief, journalist and thought leader Ricardo Baca was brokenhearted to hear the news.

“I am absolutely gutted today,” says Mr. Baca, who founded Grasslands: A Journalism-Minded Agency in early 2017 after resigning from The Post, where he worked as a reporter, critic and editor for 15 years. “We were so lucky to know The Cannabist as we did, and The Denver Post was lucky that we caught this lightning in a bottle during those historic days. We avoided the blind, pro-legalization activism of publications like High Times, and we also were an objective news source to counter prohibitionist misinformation that had plagued so much of the mainstream media’s irresponsible coverage of cannabis throughout the last eight decades.

“But it’s devastating to have helped create a news and culture site that changed the way so many people, journalists included, talked about marijuana—and to watch it fall apart, especially now that legal cannabis is increasingly becoming the law of the land. Now more than ever, we need serious journalists covering these state-legal marijuana markets, but this trend is not encouraging, as we’re also seeing staff reductions at the San Francisco Chronicle’s Green State vertical and elsewhere. If The Post’s most recent staff reduction broke my heart, which it unquestionably did, this news about The Cannabist losing its dedicated staff is thoroughly drubbing the rest of my internal organs with a meat tenderizer.

“These layoffs are putting The Cannabist on life support and destroying The Post’s ability to comprehensively cover Colorado, and it is entirely to blame on Alden Global Capital, the black-hearted hedge fund that owns Digital First Media and 100 American newspapers, including The Post. These vulture capitalists are literally hated throughout Denver, and while everyone from Gov. John Hickenlooper and Mayor Michael Hancock stands in support of The Post, we need to continue to let Alden Global Capital know that they are not welcome in Colorado, and they need to sell The Denver Post to a more responsible owner who will finally curb this undemocratic bloodletting.”

In less than two years under Mr. Baca’s leadership, The Cannabist was luring more readers than veteran publication High Times’ website, according to media-tracking organization comScore. In less than three years, Mr. Baca had grown the staff from just himself to a seven-person full-time team that included four editorial and three advertising employees.

But after Mr. Baca resigned from The Post in December 2016, the newspaper started making cuts to the vertical’s staff, nixing the General Manager advertising position and reassigning the remaining two Cannabist-focused sales staff in early 2017. That December, The Cannabist’s editorial staff was cut from four to three during a separate newsroom-wide staff reduction.

And in April 2018, after the newspaper’s editor told newsroom staff that it would be laying off one-third of its editorial employees, two Cannabist staffers announced they were leaving for other opportunities; later that month, Cannabist editor-in-chief Alex Pasquariello was told the paper was cutting editorial staffing to the site and that his position no longer existed.

The Denver Post has been in the national news recently because of a historic staff reduction and the resulting editorial-page public revolt against the newspaper’s hedge-fund ownership via a package of op-eds and columns. Mr. Baca returned to newsprint recently to pen one of the cover op-eds for The Post’sattention-grabbing opinion section.

Mr. Baca’s agency Grasslands is in early discussions with Post leadership about potentially purchasing The Cannabist should they decide to sell it.

# # #

About Grasslands

Grasslands is a journalism-minded agency, helping clients in a variety of industries with informed public relations, thoughtful content marketing, contextual social media, top-notch thought leadership work, impactful newsletter campaigns and compelling event execution. The Content Team, led by 20-year newspaper veteran Ricardo Baca, has nearly 45 years of top-level journalism experience at outlets including The Denver Post, the Chicago Sun-Times, the Rocky Mountain News, The Daily Beast and elsewhere. The Public Relations Team, led by 20-year New York City agency veteran Shawna McGregor, has nearly 35 years of high-level communications experience with clients including People magazine, IKEA North America, K12 Inc. and the American Wind Energy Association. Join the Grasslands conversation on Facebook, Twitter and Instagram.

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