Unfortunately, IRC 280E is not included.

On December 22, 2017, the Tax Cuts and Jobs Act (“The Act”) otherwise known as PL-115-97,
was signed into law. The Act is the most significant overhaul of the U.S. Tax Code since 1986 and is effective beginning in 2018. Accordingly, cannabis businesses need to understand now how the new tax law affects their business. Below are the most significant issues impacting a cannabis business, as well as, some ancillary cannabis business.

  1. The Act did not repeal IRC 280E.

The number one tax issue in the cannabis business is the impact of IRC 280E. We have discussed how IRC 280E impacts the industry many times, including here, here, here, and here. Prior to the enactment of the new tax law, GOP political advocates such as Grover Norquist called for the repeal of IRC 280E, much to the delight of the cannabis industry. However, IRC 280E was not repealed. One prevailing reason for this was that a repeal did not fit into Congress’ budget: repeal would have been budgeted as a tax cut, which would have forced Congress to replace that lost revenue. So, IRC 280E lives on (at least for now).

One bright spot is that cannabis business will pay less federal income tax beginning in 2018. The decrease in tax rates mitigates the impact of IRC 280E.

  1. The Act makes the C Corporation more attractive.

The centerpiece of GOP tax reform is the reduction of tax rates. As we have written before, in determining the legal structure for your cannabis business, one choice is the C Corporation.

C Corporations pay tax at the corporate level. Individual shareholders are then taxed on dividends at a rate as high as 20%. In the past, this “double taxation” has discouraged the use of C corporations. The Act mitigates the problem of double taxation by reducing the C Corporate tax rate to 21%. The tax rate on dividends does not change under the new law.

Besides this new reduction in tax rates, C corporations offer other benefits such as audit protection for shareholders and greater flexibility in offering employee benefits. Based on these significant changes, every cannabis businesses should review their current operating structure and consider operating as a C corporation.

  1. The Act makes some Limited Liability Company & “Pass-Through” entities less attractive.

The most common entity choice for those starting a business, cannabis or otherwise, is the limited liability company. We have outlined some of the advantages  and disadvantages of operating as a limited liability company in the taxation context.

A limited liability company may take on many forms for tax purposes but the common characteristic is that income “passes through” to the owners. Income that passes through to individual members or owners is taxed at the individual tax rate. Under the new law, some owners of pass-through entities will enjoy a deduction of 20% of business income.

  • For example, assume a single individual (in the 24% tax bracket) earns net income from an ancillary cannabis business that she operates as a sole member of a limited liability company. If the limited liability company’s business income is $100,000, her federal income tax from that business is $19,200 [($100,000 -$20,000) * 24%].

Now, the exceptions. First, Congress framed the pass-through benefit in the Internal Revenue Code as a deduction; IRC 280E will disallow this deduction for all cannabis cultivators, manufacturers, distributors and retailers. In the example above, a cannabis business would pay tax on $100,000 of income. As such, federal tax law continues to punish a cannabis business.

Second, while some ancillary cannabis businesses may benefit from the 20% deduction, other owners of pass-through entities will have their 20% deduction reduced or even disallowed under a maze of complex and interrelated exceptions.

Overall these exceptions operate to favor business that make substantial capital investments (including real estate) over businesses that provide services, or are labor intensive.  For example, most service businesses–including those in health care and consulting–expressly do not qualify for the deduction unless their overall taxable income (after several adjustments) is below $157,500 (or $315,000 for those filing a joint tax return). On the other hand, an ancillary cannabis business such as a lessor of real estate (without significant payroll costs) will likely benefit from continuing to operate as a limited liability company.

  1. The Act limits tax deductions for some debt financing.

Instead of making an equity investment in a cannabis business, investors often choose to be a lender. Under IRC Section 280E, it is difficult for a cannabis business to deduct interest expense.  Under the old law, ancillary businesses can deduct all business interest.

The Act has put significant limitations on deducting interest. Under the Act, the amount of interest expense allowed to be deducted cannot be greater than the sum of:

  • Interest income;
  • 30% of “Adjusted Taxable Income”; and,
  • Interest expense from certain “floor plan” financing.

Adjusted Taxable Income is generally taxable net income with adjustments for: interest income and expense; losses; and certain capital investments. Although included in the computation, floor plan financing should not be an issue with most ancillary cannabis businesses.

  • For example, an ancillary business receives a loan and pays $5,000 of interest per year.  A business with Adjusted Taxable Income of $18,000 can deduct all its interest expense ($18,000*30%=$5,400); a business with Adjusted Taxable Income of $15,000 may only deduct $4,500 ($15,000 * 30%) of interest expense.

There are two major exceptions. The first exception allows certain real estate business to elect to deduct interest expense in exchange for using a less favorable depreciation method. The second exceptions allow a business with annual gross receipts of less than $25 million (averaged over a three-year period) to deduct all its interest expense.

Finally, all taxpayers can apply any disallowed interest expense to future years.

Because the new tax law applies to the 2018 tax year, the IRS will be scrambling to provide additional guidance to businesses and their tax advisors. The IRS will almost certainly issue additional regulations, and other formal guidance throughout 2018. In addition, it is very likely that Congress will take up a Technical Corrections Bill in 2018 to fine-tune the Act.  We can only hope that such fine-tuning includes the repeal of IRC 280E.