Today, Representative Earl Blumenauer (D-OR-03) and Senator Ron Wyden (D-OR) announced plans to introduce bicameral legislation next week that would reconcile state cannabis laws and federal tax law. The Small Business Tax Equity Act, which was introduced last Congress by Congressman Blumenauer, would create an exception to Internal Revenue Code Section 280E to allow cannabis businesses operating in compliance with state law to take deductions associated with the sale of marijuana like any other legal business.
“More than two-thirds of Americans now live in jurisdictions that have legalized either the medical or adult use of marijuana. It’s time for the federal government to catch up,” said Congressman Blumenauer in a Thursday press release. “Section 280E creates an unequal and unrealistic tax burden on these businesses. I’m excited to work with Senator Wyden in introducing the Small Business Tax Equity Act, which would bring much needed fairness and level the playing field for small businesses that follow state laws and create jobs.”
“Our legislation would provide an overdue update to federal tax law, which has not caught up to the fact that it’s 2015 and Oregonians have voted both to legalize medical marijuana and to regulate marijuana for recreational use,” Senator Wyden said. “This is a question of standing up for the people of Oregon, and ensuring that the federal government respects the decision Oregonians have made at the ballot box.”
Twenty-three states, the District of Columbia and Guam have passed laws allowing for the legal use of medical cannabis. An additional 12 states have passed laws allowing the use of low-THC forms of cannabis to treat certain medical conditions. In many of these jurisdictions, patients can access medicine safely through state-regulated dispensaries.
The federal tax code, however, prohibits anyone selling Schedule I or Schedule II substances from deducting business expenses associated with the sale of cannabis from their taxes. Cannabis is a Schedule I substance. Therefore, even businesses operating in compliance with state law are not allowed to deduct the common expenses of running a small business, such as rent, most utilities and payroll. They cannot claim the Work Opportunity Tax Credit if they hire a veteran, and they are limited in lawful deductions relating to construction or operation costs if they want to remodel a building for their retail operations.
In certain circumstances, legal cannabis businesses can pay federal income tax rates at nearly 90 percent, while the U.S. Small Business Administration estimates that many small businesses pay an effective rate of around 20 percent.
“Congress never intended to impose a gross receipts tax – and that’s pretty much what we have here – on legal business owners decades in the future,” said Grover Norquist, President of Americans for Tax Reform. “The intent of the law was to go after criminals, not law abiding job creators. Congress needs to step up and clarify that this provision has become a case study in unintended consequences.”
“The small businesses that make up the legal cannabis industry are working overtime to be responsible, contributing members of their communities,” said Aaron Smith, Executive Director of the National Cannabis Industry Association. “So it’s particularly outrageous that when they to do the right thing by paying their federal taxes, they end up penalized with double and triple tax rates. Instead of being able to create more jobs, increase salaries, or add benefits for their employees, these businesses are being forced to send more than two-thirds of their profits straight to the federal government. Rep. Blumenauer and Sen. Wyden are standing up for fairness and support for small business – something everyone should applaud. We certainly do.”