IRS goes after medical marijuana in California

Created: March 17, 2011 15:41 | Last updated: July 31, 2020 00:00

Federal agencies have stepped up efforts to crack down on medical marijuana, and while high-profile ATF raids may be more immediately shocking, there is a less direct tactic being used that could spell the death of medical marijuana across the country, according to its opponents.

In the last several months, the IRS has begun targeting medical marijuana dispensaries in California, declaring that some owe millions in back taxes as a result of a section of U.S. tax code that the IRS is now applying to medical marijuana dispensaries.

This isn’t the first time the IRS has attempted to use this clause to go after medical marijuana dispensaries. In 2007, the agency assessed that San Francisco-based dispensary Californians Helping to Alleviate Medical Problems (CHAMP) owed nearly half a million dollars in back taxes. The IRS argued at the time that Section 280E of the U.S. Tax Code, created in the early ‘80s to prevent drug dealers from writing off “business” expenses, meant that because CHAMP’s business was built on a drug that is illegal under federal law, the business deductions it made that year were invalid. CHARM took its case to U.S. Tax Court and won, cutting its payments from $426,000 to $4,905.

So if there’s already a court precedent for the IRS losing a case just like this, why are they suddenly, vigorously pursuing it again? That’s not entirely clear — and the IRS refuses to comment on any audits it undertakes. And yet, Steve Fox, lobbyist for the National Cannabis Industry Association (NCIA), says that he’s heard that up to a dozen dispensaries throughout California have been put through the audit process (and there could be untold dozens more who haven’t made it known outside of their organizations). Just three have gone public with their audits: the Harborside Health Center in Oakland, The Farmacy in Los Angeles and the much smaller Marin Alliance for Medical Marijuana (MAMM) in the northern town of Fairfax, which has the distinction of being the longest-standing licensed medical marijuana dispensary in the country, according to founder and director Lynette Shaw.

Shaw says that her dispensary is also the first in the country to be handed a “final determination” demanding back taxes from the IRS. The final determination, handed down earlier this month, rules that MAMM owes nearly $800,000 from 2009 alone because its businesses deductions are now considered invalid. Shaw has been filing tax returns with business deductions since MAMM’s foundation in 1997, but this is the first year that the IRS has taken issue with them. If the IRS goes back and audits MAMM’s books dating back to ’97, the dispensary would owe millions — millions Shaw says neither she nor her organization has.

Shaw believes that the end goal in all this is to hit her and other dispensary owners with astronomical back taxes that they will be unable to pay, a situation that would inevitably shutter every dispensary that gets audited. The Obama administration had issued a Justice Department directive in 2009 to not take action against medical marijuana dispensaries, and while Shaw has faith that the administration itself remains committed to honoring that plan, she’s convinced that “the DEA is using the IRS to get rid of us while Obama’s busy.” She thinks that the federal government may have targeted her first because of her involvement in a 1998 civil suit in which she and five other dispensary owners went up against President Clinton’s Department of Justice, which sought to stop them from distributing marijuana. The case was never given a final decision and finally died in court after the statute of limitations lapsed.

NCIA lobbyist Fox, on the other hand, isn’t so sure that the new IRS action is part of a coordinated government attack on medical marijuana. He thinks it’s a simple financial action, that “they could be proactively trying to fill their coffers.” Fox says, “The IRS is trying to milk these businesses the same way that gangsters would milk legitimate businesses in the past. They’re doing it because they can, but it’s really unconscionable.”

There’s no telling whether the IRS plans to expand its audits to the rest of California’s medical marijuana dispensaries, of which there are more than 300 — by the count of the California branch of the National Organization for the Reform of Marijuana Laws — or if the audits will extend to dispensaries in other states. Fox is concerned about the effects such an expansion would have. “These businesses are providing medication to patients,” he says. “If the IRS forces them to shut down, it will just enrich drug cartels and force all of this business back underground.”

So while more traditional attacks on medical marijuana (like those Montana raids) may get the attention, the entire legal cannabis industry could in theory be shut down within months without a single drug bust or arrest. Only the IRS knows how far it wants to take these efforts — and it’s not talking.