Tenth Amendment Center: To the Governor: California Bill to Allow Marijuana Business Owners to Deduct Expenses from State Taxes

From Tenth Amendment Center

...from Tenth Amendment Center

SACRAMENTO. Calif. (Aug. 22, 2018) – Yesterday, the California Senate gave final approval to a bill that would sever a link between state and federal tax law, allowing individuals to deduct expenses from legal marijuana businesses for state income tax purposes. Enactment of the legislation would encourage the growth of the legal marijuana market in California and further nullify unconstitutional federal prohibition of cannabis in practice.

Asm. Reginald Jones-Sawyer (D-Los Angeles) introduced Assembly Bill 1863 (AB1863) on Jan. 11. Under current California law, the state personal income tax code conforms to federal tax law with respect to itemized deductions and business deductions. Under the federal tax code, individuals cannot deduct business expenses related to trafficking specified controlled substances, including marijuana. As a result, legal California marijuana business owners cannot currently deduct business expenses from their state income taxes. Under AB1863, the IRS code governing expenditures in connection with the illegal sale of drugs would not apply to the carrying on of any trade or business related to commercial cannabis activity by a licensee.

While California marijuana businesses still would not be able to deduct business expenses for federal tax purposes, under AB1863, they would be able to take deductions for state tax purposes just like any other business.

On Aug. 17, the Senate passed AB1863 by a 29-6 vote. The Assembly previously passed AB1863 by a 64-11 vote. The bill now goes to Gov. Jerry Brown’s desk for his consideration.

In November 2016, voters in California approved a ballot measure legalizing marijuana for general use by adults and the law went into effect on Jan. 1. Passage of AB1863 would remove a barrier facing Californians who want to start marijuana businesses in the state by lowering their tax burden. This would further incentivize the market and allow it to expand despite continued federal prohibition efforts.

Passage of AB186 3 would also further mainstream marijuana businesses in California. Destigmatizing the marijuana industry will help it integrate more fully into the mainstream California economy.

FEDERAL PROHIBITION

However, all of this is prohibited under the 1970 federal Controlled Substances Act (CSA). Of course, the federal government lacks any constitutional authority to ban or regulate marijuana within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Legalization of marijuana in California removes a huge layer of laws prohibiting the possession and use of marijuana in the world’s sixth largest economy, something that will be extremely difficult for federal prohibitionists to overcome.FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. By legalizing cannabis, California essentially sweeps away the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

REFUSING SUPPORT

AB1863 would work together with a second bill sponsored byJones-Sawyer to encourage the growth of the market and further undermine federal prohibition.

Assembly Bill 1578 (AB1578) would ban the use of “agency money, facilities, property, equipment, or personnel to assist a federal agency to investigate, detain, detect, report, or arrest a person for commercial or noncommercial marijuana or medical cannabis activity that is authorized by law in the State of California.”

In addition to blocking local officials from participating in federal-only cannabis prohibition, the law would prevent them from sharing personal information with the federal government about cannabis businesses or consumers who are in compliance with state law.

Last August, the Assembly passed the bill over strong opposition from law enforcement lobby groups. It is currently stalled in the Senate.

Medical marijuana has been legal in California since voters approved Proposition 215 in 1996. Since that time, marijuana has grown to become the largest cash crop in the state, with more revenue than the next five products combined. The $23.3 billion dollar industry is likely to be significantly larger in the coming months and years.

A GROWING MOVEMENT

Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. In January, Vermont became the first state to legalize marijuana through a legislative act.

With 32 states allowing cannabis for medical use as well, the feds find themselves in a position where they simply can’t enforce prohibition anymore.

“The lesson here is pretty straightforward. When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations or mandates down our throats,” Tenth Amendment Center founder and executive director Michael Boldin said.

Efforts to update laws and expand California’s marijuana industry demonstrates another important reality. Once a state puts laws in place legalizing marijuana, it tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These bills represent more steps forward for patients seeking alternative treatments and a further erosion of unconstitutional federal marijuana prohibition.

WHAT’S NEXT

Gov. Brown will have 12 days from the date AB1683 is transmitted to his office to sign or veto. If he takes no action, it will become law without his signature.

Mike Maharrey
August 22, 2018 at 04:30PM