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280e and large (or any size) retailers selling CBD

Philip Eldred's Profile

The law is clear that CBD (a cannabis derivative) is only federally legal to sell as an ingredient in an FDA approved medication, such as Epidiolex, which is currently the only approved drug containing CBD. Unless CBD is contained in an FDA approved medication it is considered a Schedule 1 controlled substance. Section 280e makes clear that any business which "consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act)" cannot deduct expenses.

For cannabis businesses in states which have legalized cannabis this has been taken to mean that businesses can only deduct cost of goods sold, often leaving them with a tax burden greater than 100% of profits.

Additionally, several accountants whom I have consulted have insisted that this burden extends to parent companies of cannabis businesses, and that siloing cannabis-related business into a subsidiary will not protect the parent from the tax implications of 280e.

However, several large national retailers are now selling CBD products, including GNC, Amazon, Walgreens, CVS, and others. Shouldn't this activity expose these companies to section 280e? And shouldn't that burden apply not only to their cannabis-related sales, but also to all of their sales, effectively wiping out any potential profitability of typically low-margin retailers?

Is there something I am missing, or are these companies simply betting that they will not be subject to enforcement?

Answers

Andy Vance
Title: Editor
Company: TaxExplorer.Club, LLC
(Editor, TaxExplorer.Club, LLC) |

IRC Sec. 280E disallows the deductions related to the trafficking in controlled substances. Under Sec. 12619 of the 2018 Farm Bill, CBD derived from hemp was removed from the list of controlled substances, so IRC Sec. 280E no longer applies to these products (https://www.govtrack.us/congress/bills/115/hr2/text). But CBD is still illegal in several states so there may be state tax implications.

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