Marijuana advocates in the U.S. House believe the punitive federal tax code that treats state-legalized cannabis stores as a criminal enterprise can be reformed, perhaps within the next couple of months.
Internal Revenue Code 280E disallows any businesses selling Schedule I or II illegal drugs, including marijuana, from deducting routine expenses associated with sales, including advertising, employee salaries and building leases. The result is that many marijuana businesses, legal in Colorado and in a growing number of others states, pay an effective tax rate of 70 percent or more of their profits to the federal government.
Rep. Earl Blumenauer, D-Oregon., is the sponsor of the Small Business Tax Equity Act, which would exempt state-licensed marijuana businesses from the 280E code. Congress approved 280E in 1982 as a tactic in the government’s war on drugs.
“Now, with Oregon, Alaska and Washington, D.C., all approving adult use, and momentum increasing around the country for medical marijuana, I think we are in a position to get this enacted,” Blumenauer said.
The two states and the District of Columbia on Election Day joined Colorado and Washington state in approving recreational use of marijuana.
Twenty-three states also allow the sale of medical marijuana.
In 2014, nine more states, Wisconsin, Utah, North Carolina, Missouri, Mississippi, Minnesota, Kentucky, Iowa and Alabama, passed bills that allow the limited use of cannabis-extract oil for people with epilepsy, though many ates do not allow the manufacturing of the product.
But the movement toward some form of marijuana legalization has not been reflected by Congress. Selling marijuana remains a federal crime.
“Clearly, the voters in various states are deciding on this issue, and there is a need to resolve the disparity between state and federal law,” said Rep. Ed Perlmutter, D-Colorado, in an email to I-News. Perlmutter is a co-sponsor of Blumenauer’s bill and also has proposed his legislation that would allow marijuana businesses full legal access to banking services.
“As more states vote to legalize some form of marijuana there will be a tipping point,” Perlmutter wrote.
But that tipping point has not yet arrived.
“Certainly, our biggest challenge is the resistance from Congress to doing anything, not just marijuana legislation, but doing anything at all,” said Taylor West, deputy director of the National Cannabis Industry Association.
Pat Oglesby, tax lawyer and a former chief tax counsel for the Senate Finance Committee, said that a marijuana tax bill would need to be a part of a larger piece of legislation in order to get the support needed to pass.
“Let me just say that I used to work for Congress, and anything can happen up there,” Oglesby said. “But they would need two things to make this work: First, a package to move and second, a consensus about marijuana.”
Blumenauer and another co-sponsor, Rep. Dana Rohrabacher, R-California, hope the larger piece of legislation might be the Senate Finance Committee’s tax extender package, expected to pass in a few weeks.
“I think now is the time, the chair of the Senate Finance Committee, his state just overwhelmingly voted to legalize adult use,” Blumenauer said.
The “extenders package” is a broad set of tax provisions that apply to individuals and businesses, and it could pass before Jan. 1. However, the outgoing committee chairman isn’t said to favor amending the bill to include marijuana tax reform.
Analysts say that if the code doesn’t change, many marijuana businesses will face such high taxes April 2015 that some will close.
