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Illinois Gov. J.B. Pritzker recently signed a budget bill on June 7 that includes provisions for the cannabis industry, specifically regarding establishing funds dedicated for cannabis businesses and allowing them to take tax deductions.
The Fiscal Year 2024 State Budget bill includes the Cannabis Regulation and Tax Act which addresses issues with cannabis businesses not being allowed to make tax deductions under Section 280E. Through the newly signed state budget, any licensed cannabis business will be permitted to take tax deductions on their business for “…an amount equal to the deductions that were disallowed under Section 280E of the Internal Revenue Code for the taxable year…” This new provision applies to taxable years from Jan. 1, 2023 and onward.
According to the National Cannabis Industry Association, Section 280E originated from a 1981 court case involving a cocaine trafficker who “asserted his right under federal tax law to deduct ordinary business expenses. By the following year, Section 280E was created to prevent anyone from making tax deductions if their trade involves controlled substances.
An Internal Revenue Service article written by Small Business/Self-Employed Examination Commissioner De Lon Harris in September 2021 reviewed the challenges that 280E poses for cannabis businesses in Illinois and elsewhere. “While IRS Code Section 280E is clear that all the deductions and credits aren’t allowed for an illegal business, there’s a caveat: Marijuana business owners can deduct their cost of goods sold, which is basically the cost of their inventory,” Harris wrote. “What isn’t deductible are the normal overhead expenses, such as advertising expenses, wages and salaries, and travel expenses, to name a few.”
Harris included tips such as knowing and trusting investors, filing and paying taxes on time, reporting cash transactions, and keeping accurate records, as ways to stay compliant. Later in December 2021, Harris participated in a webinar further explaining how to take advantage of the IRS as a resource to navigate the law. “It’s really our mission at the IRS, not just with marijuana and cannabis industries, but with all taxpayers, to promote voluntary compliance,” Harris said. “And that can happen in different ways. When most people think of the IRS, they think of examinations or audits and they think that’s the only way that we interact or try to promote voluntary compliance with taxpayers, but we do our fair share of outreach and education as well.”
The Fiscal Year 2024 State Budget bill also includes a provision that creates the Cannabis Business Development Fund that is aimed at helping cannabis business owners in Illinois. The fund would “provide low-interest rate loans to Qualified Social Equity Applicants” to pay for expenses such as “starting and operating” a cannabis business (and compensate the Department of Commerce and Economic Opportunity for costs related to those low-interest loans or grants). The fund would also pay for outreach “targeted to attract and support” social equity applicants, as well as research involving “minorities, women, veterans, or people with disabilities in the cannabis industry.” The provision ends by adding that by July 1, 2023, the State Controller will transfer $40 million from the Compassionate Use of Medical Cannabis Fund to the Cannabis Business Development Fund.
Illinois isn’t the only state attempting to enact legislation to assist cannabis businesses with their tax situations. On May 8, New Jersey Gov. Phil Murphy approved legislation to “decouple state tax provisions from federal prohibition on cannabis business deductions.” On June 12, Connecticut Gov. Ned Lamont also signed off on a biennial state budget that included provisions for tax deductions under 280E.
The New York Senate also recently approved a bill to provide tax relief to cannabis businesses. “This modification to income is appropriate because, while the expenses of cannabis-related business cannot be deducted for federal purposes, New York law permits and encourages these businesses akin to any other legitimate business occurring in the State,” states a bill memo. “The City’s business taxes should similarly encourage these business activities.”
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