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The Tax Cuts and Jobs Act took effect January 1, 2018. This Act made dramatic changes to prior federal tax law. The most significant changes were: 1) the reduction of the corporate tax rate, and 2) a new 20% deduction for individuals and other non-corporate taxpayers operating a business. We outlined the income tax consequences of operating as C corporation versus operating as a partnership here and here. All cannabis businesses should review the tax consequences of being classified as a C corporation versus a partnership and consider changing how their cannabis business is taxed by making an “Entity Classification Election.” This post outlines some of the opportunities and pitfalls in making this election.

The New Landscape on Choice of Entity

The Act lowered the corporate tax rate to 21%. However, a corporation and its shareholders are still subject to double taxation.  Dividends paid are taxable and the highest marginal rate on dividend income is 23.8% (capital gain rate of 20% plus net investment income tax rate of 3.8%). Accordingly, the top rate for operating via a corporate form is 44.8%.

By contrast, the marginal tax rate for a partner in a cannabis-related business can be as high as 45.1%. Though the new law allows partners to deduct up to 20% of income from operations, it is unclear if a partner of a cannabis business is allowed this deduction, per I.R.C. 280E. Furthermore, the self-employment tax computation is capped each year.

The Need for Analysis

Merely comparing the highest marginal rates between a corporation and a partnership indicates it is slightly better to operate as a C corporation (a 44.8% rate versus a 45.1% rate). However, a raw comparison of rates is usually only the first chapter of the story. Under the new law, other factors can be important, such as the individual tax bracket of each owner and whether cash distributions are planned. A business may or may not qualify for the favourable 20% deduction and this further complicates the analysis. For these reasons, you should be sure to run all of the relevant numbers before choosing to file as a C corporation.

Electing to be a C Corporation

If, after running the appropriate analysis, you determine that being taxed as a C corporation is best, your next step should be to file Form 8832, an Entity Classification Election (“C Election”).  The following entities may elect to be taxed as a C corporation:

Filing a C election for tax purposes has no impact on how your entity operates under state law. Though it is recommended to amend your company’s operating agreement to reflect the C election, the governance, management and sale provisions of the company will not materially change.

When to Make the Election

A C Election may apply prospectively or retroactively. The easiest approach is to elect on a prospective basis. An LLC that has been taxed in prior years as a partnership can also make a C election for the current tax year. For example, an LLC that wants to be treated as a C corporation for 2018, should make that election by March 15, 2018.

If you miss the opportunity to file a prospective election, you still may make a retroactive election under very specific circumstances. A business that wants to be treated as a C corporation must file a request for late election relief no later than 3 years and 75 days from the effective date of the election. For example, an LLC that wants to be taxed as a C corporation beginning on January 1, 2016, must file a request for late election relief on or before March 15, 2019. The most common situation is to make a C election on or before the due date of your tax return.

For example, a business currently categorized as a partnership that wants to elect to be treated as a C corporation for 2018, can file an election on March 15, 2019. The election must meet all of the following criteria for late election relief:

  • The entity failed to file Form 8832;
  • The entity has not yet filed the tax return for the desired election year;
  • The entity has acted as a C Corporation;
  • The entity has reasonable cause for failing to file Form 8832.

Though the IRS is not required to grant late election relief to a taxpayer, the IRS has traditionally been very fair in granting relief and most taxpayers will meet this criterion. Once a business elects C corporation status, it must for the next five years continue to file as a C corporation. Finally, a business must examine how a C election will be treated for state income tax purposes. Some states may require an independent election to be treated as a C corporation, for example.

The new tax law presents opportunities for businesses to reduce their federal income tax liability. All marijuana business should examine their current tax filing profile and act as quickly as possible to take advantage of the lower tax rates imposed on C corporations.