Up In Smoke…Again

Another medical marijuana dispensary owner found himself at Tax Court today. And another marijuana dispensary owner isn’t happy with the results, though in this case much of the damage was self-inflicted.

Jason Beck owned two medical marijuana dispensaries in California (he still owns one of the two locations). He kept records, but his recordkeeping rules reminded me of something out of Get Smart!. In one episode of the 1960s classic television series, the practice of the government agency called Control was to make two copies of vital records, and then destroy them. It’s a method that works well for comedic value, but is best not practiced in accounting:

It was petitioner’s ordinary practice to shred all sales and inventory records at the end of the day or by the next day. However, petitioner was able to recover and produce some of these records.

Tapes and other records were made…but were shredded. Now, in petitioner’s defense, the legal climate regarding marijuana was very different back in 2007. However, the substantiation rules for taxes haven’t changed one iota. Even an illegal business will need records or the IRS’s allegations will be assumed to be correct.

The petitioner asked to deduct business expenses for the dispensary. While a marijuana dispensary can deduct Cost of Good Sold, it cannot deduct business expenses; Section 280E of the Tax Code prohibits business expenses for any business trafficking in a controlled substance. Marijuana is a federally controlled substance. Just one month ago the 9th Circuit Court of Appeals upheld the Tax Court on this issue.

But even if the petitioner could deduct expenses, there’s the problem of substantiation.

Where a taxpayer reports a business expense but cannot fully substantiate it, the Court generally may approximate the allowable amount. However, we may do so only when the taxpayer provides evidence sufficient to establish a rational basis upon which an estimate can be made.

Here, petitioner intentionally and routinely destroyed most documents pertaining to the operation of both dispensaries. Petitioner was able to recover and produce some records; however, those records do not reconcile with the categories or amounts reported on petitioner’s tax return. Petitioner is not entitled to deduct the Schedule C expenses because they are unsubstantiated. [citations omitted]

The Court then disallows the expenses a second time based on Section 280E.

Next, there was the matter of a raid by the Drug Enforcement Administration (DEA). The DEA in early 2007 executed a search warrant and seize marijuana and other items that the petitioner valued at $600,000. He wanted to include them in Cost of Goods Sold, or take a casualty loss on the seized marijuana.

Because of his complete failure to substantiate the value of the seized marijuana, petitioner is not entitled to claim $600,000 as part of his Schedule C COGS. Additionally, if petitioner had provided substantiation, the seized marijuana would still not be allowable as COGS because the marijuana was confiscated and not sold.

In general, section 165(a) allows a deduction for any loss sustained during the taxable year and not compensated for by insurance or otherwise. Sec. 165(a). However, section 280E provides that no deduction or credit (including a deduction pursuant to section 165) shall be allowed for any amount paid or incurred in connection with trafficking in a controlled substance. Therefore, petitioner is not entitled to a section 165 loss deduction for the marijuana seized by the DEA.

All-in-all, it was not a good day at Tax Court for the petitioner, especially after the accuracy-related penalty was upheld.

CASE: Beck v. Commissioner, T.C. Memo 2015-149


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