Given the United States’ current political climate, bi-partisan unity has become a seemingly rare occurrence, especially in the country’s highest court. That’s what makes the Supreme Court’s recent decision in Timbs v. Indiana all the more special, especially in light of the civil rights subject matter in question. The February 20, 2019 unanimous ruling confirmed that the Eighth Amendment’s prohibition on excessive fines applied to the several states (by way of the Fourteenth Amendment), specifically with respect to state and local government asset forfeiture laws. However, despite this ruling, asset forfeiture laws still stand as uniquely effective enforcement tools that the county’s federal, state, and local law enforcement officials have at their disposal, posing a threat to the recreational cannabis market.

Generally speaking, asset forfeiture is a process by which law enforcement officials take possession of certain assets that they have deemed to be involved in criminal activity and will only be obligated to return such assets to their former owner upon a court ruling to the contrary. The person or entity from which the property was seized need not be convicted, or even charged with, a criminal offense. As a civil case, the burden of proof in civil … Keep reading

  • Both Code sections[1] end with a capital letter.
  • Both are in Subchapter B.
  • Both have to do with deductions.
  • Both treat certain types of businesses differently than others for no good reason.
  • Both feature separate/multiple trades or businesses tests.

 

It’s the last bullet that makes me wonder if or how §199A might influence the application of §280E in the future (assuming § 280E isn’t repealed and/or marijuana descheduled in the near term).

A Very (Very) Brief Obligatory Overview of §199A

The Tax Cuts and Jobs Act of 2017[2] reduced the corporate income tax rate from a maximum graduated rate of 35% to a flat 21%. In order to create some parity between the lower corporate rate and the rates applicable to pass-through forms of business, §199A was added. Section 199A provides an income tax benefit to investors in pass-through businesses (e.g., partnerships and S corporations). Non-corporate investors may (after navigating a minefield of thresholds and exclusions and re-inclusions and exceptions to exceptions) be eligible to claim a deduction of up to 20% of the “qualified business income” earned by such pass-through businesses (the “QBI Deduction”).

Separate Trade or Business Considerations

There are several interesting cases that … Keep reading

Medicinal Cannabis and the Need for Data

Discoveries advance on a regular basis as to how cannabidiol and related therapeutics can heal or at least relieve the pain associated with health conditions. From cancer and opioid addiction to chronic pain and glaucoma, medicinal cannabis shows great promise. As with other efforts to address a patient’s condition, this field will morph toward a more personalized set of therapy regimes. The broader precision medicine field has a significant head start, though, because of the years of both longitudinal and historical data studies. The medicinal cannabis field must leap ahead in this direction.

The proliferation of different, proprietary data sets is seen slowing the growth and penetration of more ‘traditional’ personalized medicine. Each pharmaceutical company, bio bank and research organization has already collected large amounts of data from clinical trials, patients, providers and other sources. But the data an organization owns might not contain the insights it needs to achieve a breakthrough in personalized medicine.

As medicinal cannabis providers collect and combine data sets, the key will be ensuring that those sets are correctly linked and that the data itself provides enough depth to yield real insights. That points to the need to set consistent standards for collecting data … Keep reading

SAFE Banking Act of 2019

One of the biggest challenges facing the legal cannabis industry today (as we’ve covered extensively on this blog) is access to, or better yet lack of access to, banking services. Because the use and sale of marijuana remains illegal at the federal level, banks and credit unions have been hesitant to provide services to cannabis-related businesses, even in states that have legalized both medical and recreational cannabis. The concern from a banking perspective is that providing banking services to these companies could potentially lead to allegations of money laundering and aiding and abetting federally-illegal operations. While this has not completely prevented cannabis companies from operating in states where it is legal, it has forced a burgeoning industry to operate on a virtually all-cash basis, leading to many financial and safety concerns.

As a potential solution, in May 2017 Senator Jeff Merkely (D-OR) and Ed Perlmutter (D-CO) introduced the “Secure and Fair Enforcement (SAFE) Banking Act”, which proposed certain protections for banks against criminal and civil liabilities for serving legitimate cannabis companies that operate in compliance with applicable state law. The Safe Banking Act was not only intended to legitimize an up-and-coming industry, but also aimed to establish banking … Keep reading

Security Standards for Medicinal Cannabis Businesses

Last week the firm moderated a discussion of banking and lending in the cannabis industry. The event was well attended and most importantly provided practical insights concerning the financing of cannabis businesses (medicinal and recreational) and detailed review of just how regulated and scrutinized operations are when it comes to business financing or daily financial transactions. The bottom line appeared to be that in order to obtain financing or to evolve from a cash business, an organization needs to be squeaky clean.

One question that arises regularly is whether medicinal cannabis firms are subject to HIPAA, the federal Health Insurance Portability and Accountability Act of 1996, which is the primary set of laws and regulations applicable to the privacy and security of patient information. It makes sense intuitively that if a dispensary fulfills a prescription or request for a CBD product then the information associated with the patient, the order, and payment should all be considered “protected health information” or “PHI” under HIPAA.

Does HIPAA Apply to Medicinal Cannabis?

Typically, a medicinal cannabis dispensary or related business would not be subject to HIPAA. However, circling back to the discussion of banking and lending, any organization in the … Keep reading

Tomorrow night, Cannabis Business Advisory Group Co-Chairs Frank Segall and Scott Moskol will speak on a panel hosted by TMA New England. Details about the event and a registration link can be found below.


With the cannabis space projected to grow at a significant pace over the coming years, the panel will explore how banking has evolved to accommodate the needs of a vibrant and energetic industry. Topics will include the technology solutions that have become available to help marijuana-related businesses deal with the lack of traditional commercial banking services, how the Commonwealth accommodates the needs of the local industry, and the legal and regulatory framework surrounding cannabis investing/financing, and how it may change in the weeks, months, or years ahead.

A networking reception will immediately follow.

Speakers

Jordan Allen, Principal and CEO, Reich Bros Finance
Scott H. Moskol, Partner, Co-Chair Cannabis Business Advisory Practice, Burns & Levinson
Karen Munkacy, M.D., Founder, President and CEO, Garden Remedies
Tina M. Sbrega, President & CEO, GFA Federal Credit Union
Frank A. Segall, Chair Business Law & Finance, Co-Chair Cannabis Business Advisory Practice, Burns & Levinson

Details

January 31, 2019
5:00-8:00 PM
Boston Marriott Long Wharf
Harborview … Keep reading

Briefly: Harborside

It’s a new year, but why not live in the past just long enough to talk briefly about that last couple of Section 280E cases that trickled in at the end of 2018? Today, I’m reviewing the two Harborside cases.[1]

Harborside

Weighing in at 60-plus pages, and paraphrasing Shakespeare, it’s a wonder that we didn’t learn much more from the first Harborside opinion. Harborside is a medical marijuana dispensary located in California whose 2007 through 2012 tax years were audited, with the IRS issuing deficiency notices covering all six years. The deficiency notices disallowed the company’s Section 162 expense deductions pursuant to Section 280E, and made adjustments to costs of goods sold. Of importance to one of Harborside’s arguments in the case, the business had also been the subject of a civil-forfeiture action filed in 2012, stemming from what the federal law continues to view as its illegal drug-trafficking activities. That action was subsequently dismissed with prejudice in 2016.

In its petition, Harborside asked the Tax Court to decide whether:

  • res judicata precludes the Commissioner from applying Section 280E where the prior civil-forfeiture action was dismissed with prejudice;
  • Harborside’s business “consists of” trafficking in a controlled substance under
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Blumenauer Introduces the "Regulate Marijuana Like Alcohol Act"

As described in last week’s post, 2018 proved to be an exceptionally exciting year for the cannabis industry: five states approved legalization initiatives, Canada ended its nearly century-long prohibition, and legalization was a key issue in a number of gubernatorial races. Moreover, Congress helped cap off a robust year by legalizing hemp, and therefore hemp-derived products, through the 2018 Farm Bill. And notwithstanding the current gridlock in Washington, it appears that last year’s pro-cannabis momentum has carried over into 2019.

On January 9, U.S. Rep. Earl Blumenauer (D-OR) introduced H.R. 420, also called the “Regulate Marijuana Like Alcohol Act.” Many readers will remember Blumenauer from the eponymous Rohrabacher–Blumenauer amendment, the appropriations provision that prohibits the Justice Department from spending funds to interfere with the implementation of state medical cannabis laws. (Last fall, he also circulated a legalization agenda for a 2019 Democratic House.) Blumenauer’s proposed legislation provides for a complete overhaul of the federal government’s treatment of marijuana. Among other things, the bill:

  • Decriminalizes marijuana by removing it from all schedules of the Controlled Substances Act;
  • Amends the Federal Alcohol Administration Act to empower the Secretary of the Treasury to issue permits to those wishing to manufacture,
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A Year in Review: Looking Back on the Forward Movement of the Cannabis Industry in 2018

As we begin this New Year, we’re taking some time to reflect on all that’s transpired in the cannabis arena over the past 12 months. It’s clear that 2018 was one of the most pivotal and exciting years for the burgeoning marijuana industry. In addition to seeing successful state legalization efforts across the country, we saw signs of support from both political parties (including the President), and witnessed the first legalization of recreational marijuana in an industrialized country with the passage of the Cannabis Act in Canada.

Despite a shaky start to the year, triggered by then-Attorney General Jeff Sessions’ revocation the Cole Memorandum, five states approved legalization initiatives (including Vermont’s vote to approve marijuana in the same week Sessions revoked the Memo). With Vermont and Michigan approving recreational marijuana in 2018, and Oklahoma, Utah and Missouri approving use of medical marijuana, there are now 32 states with some form of legalized marijuana, including 10 which have legalized adult-use marijuana.

This year also saw bi-partisan support for cannabis legalization and its potential social and economic impact. There were a handful gubernatorial races in which candidates made cannabis legalization a key campaign issue. Democrats J.B. Pritzker (IL), Tim … Keep reading

Last week, a House-Senate panel approved the 2018 Farm Bill, thereby ending a months-long stalemate over a piece of legislation that provides critical subsidies to farmers. While much of the bill mirrors current law, the legislation, if passed, will bring an end to five decades of hemp prohibition. Hemp was afforded limited legal protections in 2014, when Congress passed a farm bill that authorized states to develop pilot programs for its research. The 2014 Farm Bill eventually gave rise to a patchwork of state regulations regarding hemp and hemp-derived CBD.

While the hemp industry experienced substantial growth under the 2014 Farm Bill, the new bill is undoubtedly a watershed moment for the entire cannabis industry, as its changes to current law are more far-reaching than its predecessor. If passed, the bill would remove hemp’s low amounts of THC from the Controlled Substances Act, allow the U.S. Department of Agriculture to regulate the crop like any other agricultural commodity, and permit hemp products – like CBD – to be introduced into interstate commerce. Further, it would lift restrictions on advertising, banking, and other financial services.

The bill would also:

  • Allow hemp production in all 50 states for any use, including
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