Opening and running a cannabis business in one of the legal states involves a unique set of obstacles and challenges. As any cannabis business owner knows, the ever-changing tapestry of cannabis laws can make it hard to stabilize the finances. There is a constant stream of new requirements for packaging, labeling, location, production, and now taxation. The current hubbub in the cannabis business world is Tax Code Section 280E.
You may have heard this term floating around related to panicking cannabis business owners facing a doubled tax burden. Don’t panic! Section 280E is an interesting legacy law from the 80s. Currently, it is a sticking point between federal and state cannabis businesses’ legality. It’s going to be a challenge, but the cannabis industry is already developing ways to work around the increased expense from Section 280E enforcement.
What Is the Section 280E Tax Code?
Tax Code Section 280E originates from a 1981 court case. A cocaine dealer tried to claim a tax deduction on business expenses for his cocaine selling business. As a result, Section 280E prevents any business that trafficks in a Schedule I or Schedule II-restricted substance from deducting any business expenses.
The only tax deductions permitted under Section 280E are those directly related to the “Cost of Goods Sold” which means the cost of maintaining your inventory. This can sometimes result in creative accounting to define the cost of goods sold. However, strict enforcement may create back-taxes for those who try.
Section 280E denies cannabis businesses the right to federal tax deductions. With these limitations, a cannabis business can be charged more than double the tax burden. So it’s easy to see why the industry is on alert about this enforcement.
How 280E Impacts Cannabis Businesses
So how, exactly does Section 280E impact a cannabis business? The rules are very specific to ensure that it is enforced fairly and in line with the constitution. However, strict adherence cuts both ways. The IRS has made it clear that they plan to very precisely audit cannabis tax deductions to ensure that only the cost of goods sold is included.
Any business that trafficks (creates or sells) a federally controlled substance (cannabis) cannot file for any tax deductions other than the direct cost of sold inventory. The cost of sold inventory can include growing, curing, and packaging.
All other tax deductions including wages and benefits, facility and utilities, and business overhead are barred and full taxes must be paid because the business itself trafficks in cannabis.
State Laws Caveat
It should be mentioned that state taxes do not apply under Section 280E because 280E is part of the federal tax code. States each have their own approach to taxing a cannabis business and some don’t have any special rules or restrictions at all. Your federal taxes will need to be managed with 280E in mind. However, your state business taxes and income taxes will need to be calculated based on the state laws where you are located. Every state is different.
Strategies to Manage 280E Cannabis Taxes
Fortunately, the cannabis industry isn’t taking this increased tax burden lying down. Enforcement of Section 280E has created an interesting financial terrain for cannabis businesses, but there are ways around bearing the brunt of the restrictions. Discovered by other cannabis businesses and similar industries with controlled substances, these strategies can allow your business to thrive despite the financial burden.
Split Your Business in Half
With a corporate lawyer to consult with, the cleverest move is to split your cannabis business right down the middle and run two entities under one roof. Business number one handles all the business expenses. Business One owns or rents the building, it provides transportation and storage. Further, Business One provides employment benefits, maintenance services, and hosts company events. It also sells all non-cannabis products like pipes and t-shirts.
The second business works directly with cannabis. Business Two grows, cures, and packages the cannabis if you cultivate. Business Two bud-tends and sells the cannabis directly to the customers. Further, Business Two includes as little of the total business overhead as possible, so that the mass of Business Two’s expenses are the inventory itself and, thus, included in the “Cost of Goods Sold”.
Done correctly with legal guidance (and in accordance with your state laws), the two-business approach is a court-approved way run one non-cannabis, non-280E business that can file normal tax returns, and one highly focused cannabis businesses with limited expenses to match its limited deduction capabilities.
Incorporate as a Corporation
Most cannabis businesses are inclined to incorporate as an S-corp or an LLC. These are most suited to small businesses and usually include generous allowances for tax deductions. However, due to the unique restrictions of a cannabis business under 280E, the “phantom income” that is generated by the S-corp and LLC is then double-taxed.
In order to reduce your corporate tax burden, it’s smarter to incorporate your business as a C-corp. A C-corporation owner is taxed on their own salary and/or dividends. It’s a different structure that changes and reduces the way your cannabis business will pay taxes. But remember, you may only need a C-corp for the second business in a split pair.
The IRS has openly said that they will be picking over Cannabis business taxes with a fine-tooth comb. The intent to enforce 280E as strictly as the law allows, which means they intend to reject many tax returns and demand back-taxes for any cannabis business that does not perfectly pass inspection.
So be ready to perfectly pass inspection. Have a lawyer and other necessary consultants on-hand. Build your business structure carefully and, most importantly, keep meticulous records.
Calculate the Exact “Cost of Goods Sold”
The first step is to calculate very precisely what your “Cost of Goods Sold” is. Determine how much acquiring, packaging, and selling your products has cost the business and create a receipt-record of that cost. You can deduct small related costs, but they have to be directly related. The final number will equate your total tax deductions for the cannabis business.
Be Precise With Job Task Tracking
Second, track job tasks very closely. If an employee does things related to “trafficking” cannabis, these hours need to be tracked separately. Many cannabis business owners who use the split-business trick actually hire their employees with both businesses and pay them from each. Your employee’s time cultivating, producing, or selling cannabis can also be included in the cost of goods sold.
Are you ready for Section 280E enforcement? Do you need financial or legal guidance for your cannabis business? Thus, contact us today for a friendly consultation and your financial plans for the future.
Every entrepreneur’s dream is to grow a successful business. For most, that means steadily increased sales and profits, with a healthy balance of income and expenses. As an LA-based distributor, increased sales and momentum comes with a catch—the more sales you get per month, the more complicated the tax requirements of your cannabis distribution company become. That’s why it’s essential that you get acquainted with the ins and outs of tax requirements for a Los Angeles Cannabis distributor.
In order to begin running a legal and compliant cannabis distribution business, you need to receive
A business license. This is standard for all businesses to legally operate.
A seller’s permit from the CDTFA
A cannabis tax permit from the CDTFA
A distributor license from the BCC (Bureau of Cannabis Control), a sub-agency of the California Department of Consumer Affairs
A seller’s permit is required if you sell any physical cannabis plants or products within the state of California. As a distributor, you are likely selling products to retailers or fellow distributors or microbusinesses. There are a few instances where you may not be required to obtain a seller’s permit. In those cases, you still need official documentation from the CDTFA clearly stating that your business is exempt. Learn more about the Seller’s Permit here.
The cannabis tax permit requires you to regularly file tax returns. For a business that is fully-operational, that can mean reporting every month on the last day of the month, during which the transactions you are reporting took place.
Filing Monthly Tax Returns
This is where things can get complicated.
However, as you become well-versed in LA cannabis tax laws, you will be able to develop an SOP (standard operating procedure) for efficiently and thoroughly documenting all of the necessary information needed in every transaction for your monthly tax returns. Incidentally, this is a major factor in the decision of many cannabis distributors to hire or outsource CFO services.
As a fully operational cannabis distributor, CDTFA requires you to do the following in order to file for monthly tax returns:
Collect cultivation tax
Collect cannabis excise tax
Document all transactions with an official receipt or invoice for the tax records of businesses you are collecting either of the above taxes from
File your Sales and Use tax with the CDTFA, pay the amount due, in addition to the above cannabis tax returns
Calculating and Collecting Cultivation Tax
Cultivation tax is collected from any cultivators or manufacturers of any harvested cannabis products that you purchase. Cultivation taxes are calculated based on the weight and the state of the cannabis plant at the point of the transaction.
As for rates, the CDTFA will begin accounting for inflation by annually adjusting cultivation tax rates on the first day of this coming new year. Cannabis businesses will receive notices of every adjustment directly from the CDTFA.
Dry cannabis flowers: $9.25 Dry cannabis leaves: $2.75 Fresh cannabis plant, where the weight is recorded within two hours of harvesting: $1.29
When you are documenting the amount of cultivation tax you received, be sure to record the category and exact amount of cannabis you purchased.
Calculating and Collecting Cannabis Excise Tax
The cannabis excise tax is collected from cannabis retailers you sell or transfer cannabis plants or cannabis products to. This is a 15% tax that’s “imposed upon all purchasers of cannabis or cannabis products sold at retail.”
There are three categories of purchases that deem this tax applicable or not:
Arm’s length purchases indicate that the transaction is taking place between two consenting parties who have no relationship outside of that transaction. So the lounge on .. street purchases a supply of cannabis oil, or a batch of recreational marijuana, from you, you deliver, and the story ends there. Perhaps they are regular customers, but neither one of you receive any further benefits from your relationship aside from the transaction of the goods.
In these cases, the calculated tax is the whole cost of the product, plus the 15% markup. This would be an example of the standard market price.
Non-arm’s length transactions, also known as arm-in-arm transactions, are, as you can imagine, the opposite. Perhaps the transaction is between family members. Or perhaps it is done between two companies that have the same shareholders or umbrella company. In this case, the cannabis excise tax is calculated based on the retailer’s gross receipts, with no fixed markup. This transaction does not reflect the market price of the product.
You are also not responsible for collecting cannabis excise tax in cases where you are selling products to another distributor or microbusiness. These transactions should be documented to clearly state the following, as indicated on the CDTFA’s website:
The selling distributor’s name and license number,
The purchasing distributor’s name and license number, and
A statement that no cannabis excise tax was collected.
California Cannabis Track-and-Trace Metrc System
The state of California requires that all compliant distributors implement the track-and-trace Metrc system by using the Wholesale Manifest for each transaction with a retailer. This means recording the wholesale cost of each unit the retailer has to pay, and as of January 1st, 2020, this includes the cost of transportation.
Sales Tax and Resale Certificates
As a distributor, you are required to collect sales tax when selling products to retailers. But, given the nature of your business, most if not all of your transactions with retailers will be resales. In the state of California, sales tax is not required for products that have been resold. So be sure to obtain valid resale certificates from retailers you supply to, declaring that you did not receive any sales tax.
This, among other reasons, is why it’s crucial that you only engage with other licensed businesses, you need this official documentation to present to the CDTFA when declaring monthly tax returns so that you won’t be penalized.
Keep in mind that, even if all of your transactions are resales, you’re still required to file your sales tax returns, stating that you have not collected any sales tax.
Reap the Rewards of Running a Compliant Business
There’s no doubt that running a compliant cannabis business is challenging. Keeping your finger on the pulse of current regulations and tax policies, maintaining a rock-solid paper trail, and developing a business model and budget that accounts for tax increases is no simple task.
That is why we do recommend having a go-to for all your tax-related questions. Top financial advisors like the team at Northstar that specialize in the cannabis space can give the best financial advice on how you can run a business that is both successful and compliant.
There’s a lot of material out there exploring why nine out of ten business and startups fail, and plenty case studies done on the businesses that made it. One theory is that entrepreneurs of successful businesses “failed fast.” They got all their mistakes out of the way in the beginning.
Maybe that’ll work for a lemonade stand, or some other business that’s in a more reasonably-regulated industry.
That will not work for, say, a cannabis oil production company or a marijuana dispensary.
To say that the idea of making big mistakes in business is worrisome to the founder of a cannabis startup would be an understatement. With the marijuana legalization process so temperamental on the federal, state and municipal levels, there’s a lot on the line, and it’s not so simple to just pick yourself back up and try again tomorrow. In fact, the “fail fast” theory is being marked as a fallacy by some who are vocal in the business world.
It’s clear that the main concern of any cannabis business, big or small, is to not make mistakes. That’s particularly so in the area of cash flow. Indeed, Chicago-based Cresco terminating its acquisition of Florida-based VidaCann is just one of the latest well known instances where cash flow took precedence over growth of a cannabis business.
Given that cash flow is a top priority and challenge in the cannabis industry, it’s a good idea to scrutinize the production and sale of your product, and identify how you can increase your cash flow.
From day one of production to the moment you receive payment from the customer or a retailer, there are challenges that can either trip up your business or become points of opportunity for greater cash flow.
Here are 3 ways that you can increase your cash flow starting today:
1. Manage Your Inventory Restocking Cycle Well
Effective management of your stock is not only a crucial part of managing cash flow, it’s the key component of maintaining transparency. And it’s the law.
From a financial or marketing perspective, if you produce or stock too little product, you’ll risk disappointing your customer base. For example, the cannabis dispensary you source to might start looking for a producer who provides an ample amount of CBD oil, and can therefore meet their market demands.
On the other hand, produce or stock too much, and you run into costly storage issues, and risk the product going bad. That’s a lot of money down the drain! Luckily, there are ways of staying on top of weekly or monthly consumer trends, so that, if you’re a marijuana dispensary, you know how much cannabis tincture or recreational marijuana products to have on hand.
Given the delicate nature of the production process, the legal implications of having transparency, and the immense importance of keeping up good ties between cultivators, producers, retailers and customers, there’s a lot weighing on the ability to track your stock well. There are now new platforms out there that are trying to solve this, in line with municipal quotas, so that cannabis startups can succeed in this area.
Remember, as well, that a clear account of your current stock, and general restocking cycles, should be clearly outlined in your business plan.
2. Minimize Order Rejection With Rock Solid Standard Operating Procedures (SOPs)
This can be a frustrating one.
You’ve spent a month getting those cannabis seeds to take form under the led grow lights, and creating a batch of some much needed medical cannabis tinctures by those in your community. You’ve overseen the packaging of your product, and you’ve got it hauled onto a rented delivery truck. You get it to the retailer and…they don’t accept the delivery.
This happens all too often. Because cultivators, producers, and retailers all have their share of regulations to adhere to, each sector has to be wary of the compliance of the other.
In this chart, you’ll see the main reasons that deliveries get rejected: miscommunication, issues in the compliance documentation, issues in the labeling or packaging, or a retailer’s downright inability to pay for the order in that window of time.
This is where having clear SOPs in place, from your annual plan, to your day-to-day operations, becomes crucial. True, you can’t control everything. You certainly can’t control the cultivator you source from, the retailer you provide to, or the producer you buy from. But you can have a system of vetting out the business you work with to ensure that they are compliant, and a way to communicate with them clearly regarding orders, and minimize bottlenecks in every transaction.
3. Factor in Payment Terms
We all know about the 280e law that prohibits cannabis startups from opening a bank account at any federally-backed bank. It means more leg-work in simply opening a bank account to keep your cash. This also means more difficulty in getting approved for bank loans. As a cannabis startup, you rely heavily on investors who make it their business to focus on the cannabis space.
Not only is initial funding a challenge, but payment terms can be difficult to keep up with, as well.
There’s the logistics of receiving payment, there’s the need for a system for tracking outstanding accounts receivable, and there’s having to deal with the cost of having produced, without the immediate means to pay for things like rental fees, utilities, and payroll.
Cash flow is a prevalent concern in the cannabis industry. Luckily, there are services, like outsourced CFOs, and platforms like Point of Sale technology, that are filling in those gaps as the legalization process inches forward.
Know your options. Know your regulations. Know your market and your community, and you can realize your dream of owning a successful and profitable cannabis business.
Need help getting your cash flowing? Contact us today for your free consultation. Call now: 1.424.274.3188
Due to the current legal circumstances surrounding cannabis, it won’t be especially surprising if you have trouble finding insurance for your company. Here’s some information about this difficulty, including what you can do to get around it.
Cannabis Insurance Problems
The Department of Justice in the U.S. currently has a hostile approach towards the Cannabis industry. Indeed, this is likely to increase in the future given the growing gap between federal and state sensibilities. An example of this was the memorandum issued 2 years ago from the DOJ about upholding the law on the issue, namely the fact that Cannabis is still a controlled substance and not legal for use.
State vs. Federal
Many states have a different view, with many having already made it legal for medical or recreational purposes. However, if you’re focusing on growing cannabis, you have to worry about federal and state law. Many commercial insurance providers that exist on a national level are highly wary of insuring any company that deals in cannabis.
This is because of the question of federally-controlled substances, but also because of the fact that the FDA has still only OK’d one product for use so far, and no others. Epidiolex is for seizures. This is hardly great news for cannabis growers and it explains why many insurers won’t grant full insurance coverage to these kinds of companies.
There’s also the fact that cannabis-related companies or CRBs, often have to deal in cash only due to a lack of federal support for credit cards in the industry. They also have to worry about accident liability, crop failure liability, and so on, all without being able to easily find insurers.
Non-Traditional Insurance Providers
All this leads us to potential solutions to this problem. There are some companies that will insure you anyway, despite the risks. They generally come from non-traditional approaches, and this can be reflected in the cost. Each potential company will serve a select number of states. Some serve all states, while others have more limitations. Examples of non-traditional insurance options you can try include AFIG Cannabis Insurance, for example, which serves many states but leaves out dicier states like Georgia. Then you have MFE Insurance, which serves all states excluding only MA, WY, ND, SD, and Arkansas.
Other companies like Cannabis Insurance Company or SafeHerb will serve all 50 states. Once you have your list, the next thing you need to do is narrow it down by starting with what state you’re in and eliminating the companies that don’t serve that state and then looking at the policies in order to determine your best option.
Getting the Right Coverage
Coverage you might need, depending on your business, starts with cultivation insurance. If you grow your own product, then you may need insurance for your plants, your equipment, and your income in general in case of some calamity. As a grower, you likely realize that a lot of things can go wrong and it’s helpful to have insurance in case they do.
Hemp CBD and Building
Other related insurance that can be helpful includes hemp-CBD insurance. This type of insurance will protect those who grow hemp or CBD products specifically, so it won’t necessarily be the kind you need if you’re just growing and sell full cannabis plants. It’s nice to have specific insurance for your specific situation, however, if your business has anything to do with extracting wholesaling, or simply selling CBD or hemp products retail.
You may need building insurance to insure the building you use to grow your product, for example. Something can go wrong with the building in terms of temperature control or some other environmental factor like having enough power, water, and so on to make sure that the plants don’t die. It’s always nice to insure against this.
Laboratory and Dispensary
Another similar type of insurance that could help in this situation is laboratory insurance. If you have a lab you need for extraction, testing, or any other part of your business, it’s a wise idea to insure it. Indeed, your business would be in serious trouble if anything out of your control ever occurred to disrupt your lab’s operations.
You may also want insurance for your dispensary if your business involves this. Insurance for dispensaries will cover operators, property costs and inventory costs. It can also cover liability you might incur as part of your operation such as workers’ compensation. It can cover loss of income in general if you want to insure against this as well.
Transportation, Product, and Combination Insurance
You can often miss and match these types of coverages depending on the sort of operation you’re running. There could be insurance for the transportation of the products and the delivery methods that you use. This iincludes if the product is lost due to some calamity or just stolen. You could get insurance for liability on the product in case someone is injured while taking it.
Product liability is a common reason for someone to sue you, and people are highly sensitive to cannabis.
Checking for Payouts
Another problem you could face is the fact that some insurance companies may resist paying out a policy even if you should qualify based on liability. This is because some insurers may try taking advantage of the legal grey areas currently extant.
As a result, it’s important to thoroughly check out any insurance company ahead of time. This could be through review sites. However, it would also be wise to hire financial experts to advise you on the best course of action.
If you’ve ever done a personal budget, you know how hard it is to predict what you’ll spend for the month when you begin. Sometimes you find yourself having to adjust your projections when you overestimate in one area or underestimate in another. It’s almost guaranteed that as you move through the process, you’ll need to calibrate your quarterly projections based on spending.
For a new cannabis business, this process is no different. Making quarterly projections is a critical part of gauging your company’s effectiveness. To do it effectively, however, you’ll need to give yourself a roadmap to help guide you through the process. This will help you make informed choices that will benefit your business greatly.
Here are a few tips on making quarterly projections for a cannabis business.
Why You Should Make Quarterly Projections
Starting out may be the most difficult time to make accurate projections, but it’s also critical that you establish a system for doing so then. As time goes on, you’ll be able to calibrate your projections based on how your business performs. You’ll begin to see patterns emerge.
For example, if you live in an area that’s a popular summer tourist destination, you’ll be able to see that income increases during these months. You can plan to have more inventory available, more staff on hand, and spend more on marketing. Conversely, if your area is less crowded during the winter, you can adjust your projections accordingly to allow for using fewer resources during that time.
Simply put, making quarterly projections helps enhance your accounting practices. You’ll be able to manage your inventory, decide where to deploy resources, and see what money you are spending is giving you the best return on your investment. They also tell you how well you’re hitting your business’s key performance indicators.
They’re useful because they allow you to accurately set expectations for your business based on a number of factors. But what factors should you be using to make those determinations?
Know Your Expenses
Before you can measure your revenue, you need to understand what you are spending. Include expense projections as part of your quarterly analysis. You’ll break this down into two distinct categories: overhead and variable costs. Fixed costs can include rent for your office or storefront, office supplies, marketing, accounting, and more. These costs are generally set and will only change slightly from quarter to quarter, if at all. Variable costs that can change over time can include the cost of your product inventory as well as labor costs. You may even have occasional irregular, or one-time, expenses to account for as well.
Without an accurate representation of what your business is spending, you’ll never truly understand your bottom line. Factor this into your quarterly projection model.
Pick a Model, Any Model
The biggest challenge you’ll face at the outset is attempting to make a quarterly projection without using any existing model, school of thought, or other data to serve as a reference point. Your projections need to have a quantitative basis.
You need to have some sort of model – tailored for your specific business – to make the most accurate projections possible. Customize your model based on your location, your target demographic, how competitors in your area have performed, and a variety of other potential factors.
You may want to experiment with different benchmarks to see what works best for your specific company. Failing to do so and trying to make your projections each quarter on the fly will only complicate matters for you. Trying to make projections without any rhyme or reason will leave you frustrated as you try to keep track of your accounting.
Use Data From Other States’ Markets
While using data from your market is certainly the most helpful, using other states as a guide can also be useful.
Try to pick a state with similar demographics and profile to yours when it comes to the legality of cannabis in the area. If your locality skews younger, it may not help as much to examine a state with a large retirement community (and vice versa).
You can also use multiple states as well. Having several reference points can give you a more comprehensive picture of what to expect. Just be sure that the states you use have similar profiles to yours. You don’t want to compare apples to oranges, as that can skew your projections.
You’ll also want to keep a close eye on your own state as well – any regulatory or legal changes may impact your ability to do business and, in turn, will affect your projections.
Use Your Past Performance as a Guide
Ultimately, as you continue running your business, you’ll begin to get feedback from your customers in terms of dollars coming through your door. This will be the most useful reference point of all in making your quarterly projections.
It’s critical to keep a record – with hard data – of how your business is performing. This data will prove useful in the months and years ahead as you’re attempting to predict the ebbs and flows of your business.
To accurately measure how successful your business is, you should use this data to help you make your quarterly projections. No matter how profitable you may seem, you’ll never truly understand the depths of your success – or your ultimate potential – until you start forecasting and measuring your profits. The only tried and tested method of reaching breakeven is by having a practice in place to examine how you’ve performed against your initial projects. This can help you as you look to avoid losing money and streamline your operations to maximize profits.
Analyzing your own past performance will help you predict future trends and customer behavior.
Making quarterly projections as a new cannabis business can prove difficult until you have data to back up your projections. That’s why it’s important to start the process early and tweak it as necessary. And while it may be difficult to make accurate quarterly projections when you’re still brand new, it’s nonetheless important and will get easier the more you do it. As it gets easier, you’ll see it begins to help you increase your bottom line.
The best way to make accurate and reliable quarterly projects is by planning your budget with the help of a professional. Northstar Financial Consulting understands your business and has the capabilities to be a trusted partner in helping your budget. Contact us to learn more.