Go ask allison - federal protections & asset forfeiture

Posted by Margolin & Lawrence on February 23, 2018

Jeff Session’s recent statements suggesting that he will continue to pursue the criminalization of marijuana sparked well-deserved controversy. Here in California, as cannabis prohibition comes to an end, state pride and support is stronger than ever -- and cannabis business is booming. In this episode, Allison discusses protections under federal versus state law for California cannabis businesses. What is federally protected? Is cannabis possession, distribution or consumption still a crime? We also dip into the topic of asset forfeiture and how the Rohrabacher-Farr amendment (also known as the RohrabacherBlumenauer amendment) is temporarily preventing federal intervention in states that have legalized cannabis.

Ask a Cannabis Lawyer: What Do I Need to Do for a Temporary License?

Posted by Margolin & Lawrence on February 21, 2018

Since mid-December, California has been issuing temporary state licenses to cultivators, manufacturers, retailers, distributors, microbusinesses, testing laboratories, and event organizers operating in the commercial cannabis market. These temporary licenses became effective as of January 1, 2018, and are currently being reviewed and approved by the Bureau of Cannabis Control (BCC) and the California Department of Food and Agriculture (CDFA) per the Business and Professions Code, section 26050.1. As of today, over 2,500 temporary state licenses have been issued. 

So what is this license and why do you need it? The temporary license is a conditional license that allows cannabusinesses to engage in commercial cannabis operations in the state of California for 120 days (about 4 months). The license is only available to applicants that have first obtained a local license, and allows cannabusinesses to operate before receiving their full state license. Within this 120 day period, the temporary licensee must apply for the state license. However, if the state license isn’t received by the end of that four-month period, California may grant extensions of 90-days to the temporary license as necessary. According to Lori Ajax, Chief of the BCC, California will routinely extend the licenses if the failure to obtain a state license is no fault of the licensee. “If it’s on us,” she says, “we will continue to give extensions so you can keep operating.” 

What is required for the temporary license? Besides obtaining a local license, the temporary license application requires a number of additional pieces of information from the applicant, including:

 

  • Applicant & Business Information: Physical address of the premises and name of the applicant(s) or business entity requesting the license, including the primary contact information of the applicant(s)
  • Owner information: The name, mailing address, and contact information  for each “owner” of the business, as defined in Business and Professions Code §26001
  • License information: Specification of the license types applied for (such as distribution, or microbusiness, for example)
  • Operational Activities: product type and activity information
  • Local Jurisdiction: Local jurisdiction contact information
  • Local Authorization: Documentation of authorization to operate from the city/county in which the business premises are located, consisting of a copy of the valid license, permit or other authorization
  • Property Authorization: Either documentation of title or deed to the property or a lease agreement (or other such authorization) from the landlord demonstrating a right to occupy the premises and engage in the applied-for commercial cannabis use
  • Property Site Plan: A diagram of the physical layout of the property and business premises

  

The required information varies depending on the type of license a business is applying for. For example, the Manufactured Cannabis Safety Branch of the Department of Public Health processes temporary license applications for manufacturing, while the BCC processes the applications for distributors, microbusinesses, testing laboratories, and event organizers. For more information on the licensing process, check our guide to California cannabis laws.

 

If you have obtained your local license, or are close to receiving it and looking to obtain your temporary state license, contact our cannabis attorneys today!

Cannabis Taxes: What is a Cannabis Resale Certificate?

Posted by Margolin & Lawrence on February 14, 2018

As recreational “adult-use” cannabis is officially legalized across California, cannabis taxation is more important than ever for legal cannabis operators. Our Los Angeles Cannabis attorneys are often asked about the new state tax system and what is new since January 1, 2018. As of a few months ago, the BOE became the CDTFA. For California, there are three different state-level taxes on cannabis business: the Cultivation Tax, the Cannabis Excise Tax, and the Sales and Use Tax. The new state tax agency has released an educational series to explain the new tax regime. Cannabis manufacturers and distributors need to become familiar with the resale certificate. As its name implies, a resale certificate relates to the Sales and Use tax.

The Sales and Use Tax applies to sales of cannabis or cannabis products (flowers, plants, hash, bud, vape pens, edibles, oils, etc.) to consumers – in other words, the “final sale” of cannabis before the product is used/consumed. However, there are circumstances in the cannabis supply chain where these products are sold to a cannabis business for resale, rather than to a consumer. For instance, if a licensed distributor sells cannabis to a licensed retailer, they’re making a sale, but the purchaser doesn’t intend to use or consume the product themselves. In order to prevent the distributor from being liable for taxation on this type of sale, the retailer can give the distributor a resale certificate. If timely and valid, this certifies that the purchaser intends to resell the product and therefore exempts the distributor from the tax.

Without a resale certificate, both the seller and the purchaser are liable for Sales and Use Tax. In the example above, the distributor would need to pay it for their sale to the retailer, while the retailer would need to pay it for the sale they make to the final consumer. The same goes for other sales of cannabis between licensed cannabis businesses. For instance, when a cultivator sells cannabis flower to a manufacturer, the cultivator is liable for a Sales and Use Tax unless the manufacturer gives them a resale certificate for the purchase.

One important thing for distributors to keep in mind is the distinction between “transport” and “sale”. If one licensed cannabis business purchases cannabis products directly from another, e.g. a retailer buying flowers from a cultivator, the distributor who is contracted to transport the products from the cultivator’s operation to the retailer’s isn’t making a sale, and therefore doesn’t need to pay a Sales and Use Tax, regardless of whether they’re given a resale certificate.

Even if all their business’ sales are for resale and exempt from Sales and Use Tax, all cannabis operators are still responsible for filing a tax return and reporting their activities to the California Department of Tax and Fee Administration. Remember, a resale certificate only applies to the Sales and Use Tax, not the Cultivation or Excise taxes.

L.A. Cannabis Licensing: A Waiting Game

Posted by Margolin & Lawrence on February 8, 2018

It’s been over a month since the state of California began issuing licenses for commercial cannabis businesses. The epicenter of this emerging legal market is right here in Los Angeles. While the City passed their final ordinance in December, the licensing process has been off to a slow start.

The agency that regulates cannabis in Los Angeles, the Department of Cannabis Regulations (DCR) has begun to issue licenses for Phase 1 existing dispensaries. These applicants can apply through a streamlined process for a temporary license which allows them to then apply for a temporary state license and operate legally in the City. At this moment, there are 98 eligible businesses operating in Los Angeles with Temporary Approval from the DCR for Local Operation – in other words, a temporary license for legal cannabis activity.

Los Angeles’ Department of Cannabis Regulations has divided cannabis applications into three distinct phases, each with their own set of criteria to qualify. Phase 1 will remain open through March 4, 2018. This is the most exclusive phase with likely only 200 or so stores qualifying. The current phase is reserved for applicants who are candidates for “Proposition M Priority Processing”, which comes with a strict set of requirements that effectively limit eligibility to preexisting medical marijuana dispensaries. For this reason, existing operators working in cultivation and manufacturing and entrepreneurs looking to launch new businesses are eagerly awaiting Phase 2. Under the Los Angeles Ordinance, Phase 2 is supposed to end in early April 2018. For this reason, we expected applications to open for Phase 2 in early February. We have contacted the DCR almost daily, and as of yesterday, there was still no time estimate on when Phase 2 licensing applications will open.

When it does begin, Phase 2 will require that applicants have a preexisting cannabis business – it’s reserved for “Non-Retailer Commercial Cannabis Activity Prior to January 1, 2016 Processing.” To qualify, a business must meet the following standards, as imposed by the LA Municipal Code:

1) the Applicant was engaged prior to January 1,2016, in the same Non-Retailer Commercial Cannabis Activity that it now seeks a License for; 2) the Applicant provides evidence and attests under penalty of perjury that it was a supplier to an EMMD prior to January 1, 2017; 3) the Business Premises meets all of the land use and sensitive use requirements of Article 5 of Chapter X of this Code; 4) the Applicant passes a prelicense inspection; 5) there are no fire or life safety violations on the Business Premises: 6) the Applicant paid all outstanding City business tax obligations; 7) the Applicant 13 indemnifies the City from any potential liability on a form approved by DCR; 8) the Applicant provides a written agreement with a testing laboratory for testing of all Cannabis and Cannabis products and attests to testing all of its Cannabis and Cannabis products in accordance with state standards; 9) the Applicant is not engaged in Retailer Commercial Cannabis Activity at the Business Premises; 10) the Applicant attests that it will cease all operations if denied a State license or City License; 11) the Applicant qualifies under the Social Equity Program; and 12) the Applicant attests that it will comply with all operating requirements imposed by DCR and that DCR may immediately suspend or revoke the Temporary Approval if the Applicant fails to abide by any City operating requirement.

Of these criteria, an essential component is the Social Equity Program; not only is it still in development by the city, but it also divides candidates into separate tiers within the program itself, which could add further complications to the application process.

Market Volatility & new Cryptocurrency Regulations on the Horizon? 

Posted by Margolin & Lawrence on February 6, 2018

Market volatility sent many investors reeling yesterday, with the dow plunging over 1,000 points. Cryptocurrency, a digital asset that is popular with cannabis entrepreneurs, was not spared. As of today, Bitcoin is trading at $7,049 per USD, down from over $18,000 a few weeks ago. Those familiar with cryptocurrency know that Bitcoin is only one type of asset, and that in fact there are multiple currencies available. One in particular, may be a potential solution to the cannabis industry’s banking crisis: PotCoin. Our Los Angeles cannabis attorneys are following developments in cryptocurrency closely and monitoring progress as regulations catch up with technology, and the state works towards a banking solution for cannabis operators. In fact, just this week, the U.S. Senate in conjunction with the SEC and the CFTC held a discussion titled “Virtual Currencies: The Oversight Role of the U.S. Securities and Exchange Commission and the U.S. Commodity Futures Trading Commission.” We will cover the results of this discussion in a future post.

One of the first cryptocurrencies to ever enter the market as a cannabis coin, PotCoin, was launched on January 21st, 2014. Back then, cryptocurrencies and their applications were widely regarded by the public as a space that catered to the underground, illicit economy of the world. Potcoin describes itself as “the first digital currency created to facilitate transactions within the legalized cannabis industry.” Established around the same time as cannabis legalization in Colorado, PotCoin positioned itself as an alternative to banking, even going so as far as to installing PotCoin ATM machines at a few locations. Now that the marijuana revolution in our country has garnered more support than ever, these cannabis cryptocurrencies will undoubtedly be brought up for legitimate discussion once again. Currently, PotCoin is valued much lower than Bitcoin at $0.129 USD at the time of publishing this article.

How does PotCoin differ from Bitcoin? PotCoin runs on a “proof of stake” system, as opposed to Bitcoin, which runs on a “proof of work” system. This means that the individual or entity mining for PotCoin does not need an all-powerful computer with intense graphics cards, but a certain stake or ownership of the currency to mine it. This eliminates all the expensive hardware associated with the “proof of work” system, and validates the blockchain more efficiently. Through blockchain technology, PotCoins are verified while still efficiently eliminating the double-spending problem. The largest issue that PotCoin faces is one of network scalability and transaction speeds. These are both issues that the development team for PotCoin are fervently trying to solve. Whether or not PotCoin will make its mark on the economy of cannabis is contingent on how the development team addresses these key issues.

With a multitude of states on the path towards the legalization of cannabis, it will be interesting to see whether or not the cannabis industry will adopt PotCoin as a potential solution to the banking quandary and certainly the development issues above will be determinative of whether PotCoin is up to the challenge. 

All About California Cannabis Taxes

Posted by Margolin & Lawrence on February 1, 2018

Many are excited about California’s new era of legalized marijuana. For the first time, state and local governments are allowing marijuana sales to all adults. There is also a new licensing system for all sectors of the industry. The new system creates many new opportunities for businesses and consumers.   But is also comes with new taxes that have caused sticker shock for many California cannabis operators and customers visiting dispensaries this month. Governments are eager for the new tax revenues, although some predict that if taxes are too high, a black market will persist as people opt out of the licensed system. One of the questions our Los Angeles cannabis attorneys are most frequently asked is about the new cannabis taxes and how they will affect California cannabis businesses.

To sum it up, effective tax rates for marijuana operators are high. Not only do cannabis businesses have to pay corporate taxes like any other business (except that they can't take deductions on their federal taxes due to 280E), but there are also additional city and state taxes specifically for cannabis operators that need to be factored in as well.  Just as Federal, State and Local law apply to cannabis operators, those governments all also apply their own taxes to cannabis.

Here is a chart that gives you an overview of the effective tax rates for different cannabis businesses, using Los Angeles as an example for factoring in local taxes as well:

NOTE that the Excise Tax (15%) and Sales Tax (8.5%) imposed on retailers is passed directly on to the consumer. So the effective tax rate is similar to the other activities when you factor that in, but overall the tax rates are very high for operators. 

One of the reasons cannabis operators must pay so much in taxes is that cannabis is still a Schedule I controlled substance under Federal Law. Section 162 of the U.S. Tax Code allows for businesses to deduct Ordinary and Necessary expenses from their taxes. An exception to this section is 280E, which prevents deductions from Federal Taxes for businesses involved in selling Schedule I controlled substances. You can read the text of 280E here and check out a seminal 2007 Tax Court decision -- CHAMPS v. Commissioner (2007) which allowed an operating dispensary to separate out product-touching deductions and deductions for a separate ancillary business. A related 2015 ruling in U.S. Tax Court held that unlike CHAMPS, an operator running an activism business and selling cannabis could not separate the two businesses and take deductions under 280. These two cases apply to retailers. Other cases have found that cultivators and manufacturers can take certain deductions for costs of production. We will cover this in a future post. 

Here are the individual maximum tax rates that apply:

  Federal Corporate Tax Rate*** California Cannabis Taxes California Business Taxes 8.84% Los Angeles Cannabis Taxes Los Angeles Business Taxes (.425%) Payroll Taxes (Estimated effective rate) Estimated Effective Tax Rate
Retail 21% 23.5% -- 15% excise tax + 8.5% sales tax 8.84% 10% in LA for adult use; 5% in LA for medical 0.43% 3%**** 57%
Cultivation* 21% 12% estimated ($9.25/ounce tax on flower = $148 per pound) + $0 sales tax 8.84% 2% 0.43% 3% 45%
Manufacturing 21% Collect Cultivator Tax + $0 sales for resale 8.84% 2% 0.43% 3% 35%
Distribution 21% Pay CDTFA Cultivator Tax + $0 sales for resale 8.84% 1% 0.43% 3% 35%
Testing 21% + Deductions = Estimated 15% - 8.84% 1% 0.43% 3% 34%
Microbusiness 21% per activity 8.84% per activity 0.43% 3% Varies per microbusiness activity
               
               
*(flower - different tax rates for stems and fresh plants; clones are not taxed by state)          
**280E likely does not apply to testing labs          
***280E prevents deductions for businesses trafficking cannabis          
****Social Security, Medicare, Calif & Fed. Unemployment - this is a percentage of employees' salaries, for purposes of the chart it is converted to be tied to revenue consistent with the other percentages          

 

These are the required California state cannabis taxes by activity: 

Cultivators must pay a $9.25/ounce tax on all dried cannabis flowers (and a lower rate per ounce for cannabis leaves or fresh cannabis plant).

Retailers must pay both a 15% excise tax on all their purchases of cannabis, as well as a sales tax on all their taxable retail sales, which varies by locality but can be close to 10%.

Manufacturers must collect cannabis cultivation taxes from cultivators from which they receive unprocessed cannabis, and pay these cultivation taxes to the distributors.

Distributors must collect cultivation taxes from cultivators and manufacturers from which they receive cannabis, and collect cannabis excise taxes from retailers they supply with cannabis.

In addition to these taxes, localities are free to impose their own cannabis business taxes, and many impose substantial taxes on both cultivation and all business proceeds.

It is important to note that the cannabis specific taxes are in addition to standard taxes like Federal and State corporate tax, and local business taxes for businesses operating in cities like Los Angeles.

While distributors, testing facilities and manufacturers appear to pay less taxes than cultivators or retailers, they will no doubt share the costs of taxation as cultivators increase their prices to account for the cultivation tax.

If these taxes are passed directly on to consumers, that could mean a retail outlet previously charging $60 per 1/8 of an ounce of marijuana would increase their price to $90. On the other hand, many have predicted that the pre-tax prices of cannabis will drop over time, as more large-scale cultivation, distribution, and retail operations reduce their overhead costs and margins, would could counteract some of the higher taxes.

For operators, these effective tax rates are extremely high and it is important to consult with a tax attorney and a qualified accountant who can help you with tax planning and preparation to set up your business for success. For more information and worksheets to calculate your California cannabis taxes, refer to the CDTFA’s website

 

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This blog is not intended as legal advice and should not be taken as such. The possession, use, and/or sale of marijuana is illegal under federal law.