M3 Today Magazine M3 Today Magazine Fall 2018 | Page 27

3 COURT CASES 3 Court Cases That May Affect Your Marijuana Business BY: MARC E. SEYBURN OVER THE summer months, there were three cases—two Tax Court cases and a 10th District Court case—that were decided that impact tax and business planning for marijuana businesses, each in its own unique way. (I) ALTERMAN V COMMISSIONER T.C. MEMO. 2018-83 JUNE 13, 2018 The most enlightening of the three cases was Alterman, where the Tax Court denied the taxpayer’s use of a segregated business strategy—the taxpayer claimed there was both a marijuana business and nonmarijuana business operating at same location and that the nonmarijuana business was not subject to IRC §280E. The taxpayers claimed the nonmarijuana business involved the sale of marijuana paraphernalia, store clothing, magazines, and chicken soup. The Tax Court held that the facts did not establish a separate business for sale of nonmarijuana merchandise, and thus, IRC §280E applied to all sales. Despite this case not providing a taxpayer-favorable ruling, it is not alarming due to bad facts. However, bad facts can make bad law, and the taxpayer did not do a good job in planning its strategies. (II) LOUGHMAN V COMMISSIONER T.C. MEMO. 2018-85 JUNE 18, 2018 Loughman is the most interesting of the three cases because the result was easily avoidable, but at the same time, it involved an issue that requires a tax specialist. Since the taxpayer was an S corporation and its shareholders received officer compensation, by applying IRC §280E, the deductions for officer compensation were denied. This increased the income that came through the shareholders’ K-1s. Additionally, these same taxpayers were paying income on their officer compensation. These shareholders were thus double taxed after application of IRC §280E. The tax court upheld IRS assessment and the double taxation result stating that the result was easily avoidable. (III) ALPENGLOW BOTANICALS, LLC V. UNITED STATES, NO. 17-1223 (10TH CIR. JULY 3, 2018) The most intriguing of the three cases is Alpenglow Botanicals because of the court’s confirmation that the IRS has broad discretion to determine if a taxpayer is “trafficking” as required under IRC §280E, without requiring criminal charges of any kind. If it wasn’t already clear, the Alpenglow Botanicals case has now made it crystal clear that the IRS has broad discretion in determining if a taxpayer is engaged in “trafficking” of a controlled substance for purposes of denying deductions under IRC §280E. These cases further illustrate the importance of proper planning, both from a technical tax perspective and a failed compliance standpoint. Planning and compliance cannot be underestimated. Each time a new piece of authority comes out, the planners gain better insight so that the same mistakes shouldn’t be made by others in the future. Poor compliance can easily lead to IRC §280E civil tax adjustments for failure to comply with a properly designed business structure. A worse result is a criminal fraud tax audit. Therefore, don’t wait. Engage your tax professional as early on as possible once you’ve decided to enter into a marijuana business. 27 Marc E. Seyburn Marc E. Seyburn has been developing his professional skills for over 20 years, which has allowed him to cultivate his unique talents as a creative thinker in legal, tax and financial planning. Throughout his career he has gained valuable experience in all phases of transactional work, utilizing his unique skill set from capital raise through startup in a wide variety of industries. His primary technical expertise is in structural planning, partnership taxation, estate planning, jet acquisition structuring, cash flow modeling, and analyzing and structuring investment opportunities. In February 2010, Marc opened his current practice with the goal of taking advantage of up-to-date technology, as well as leveraging a new business plan that promotes increased efficiencies and flexibility in its fee arrangements. The sky is the limit for opportunities. seyburnlawpllc.com