A Sad Grandma Story

 You know a tax case is going to irritate when you read this sentence early on:

The Commissioner does not defend the justice of this result, but says the law requires it.”

The story involves a grandmother, a son and daughter-in-law and two grandkids. Grandma appears to be the only one working and that as a nursing assistant in Texas. She also collected social security, which was just enough to keep the household afloat.

          []’s job is hard, and it does not pay much.”

It was 2012. He son did not work. Her daughter-n-law…

          … stayed home and took care of the babies.”

She filed her 2012 tax return and claimed the two grandchildren as dependents. That made sense, as she was the only person there with a job.

This allowed her to claim head of household and the dependent exemptions. Much more important than that, however, it allowed her to claim the child and earned income credits. She got a refund of almost $5,300, almost half of which was those credits.

Good for grandma.

The IRS sent her a notice. They wanted the money from the credits back.

Being the warm, fuzzy IRS we have come to know, she was also assessed a $1,000 penalty.

She figured ID theft. Somebody else must have claimed the kids.

She was right, partially. Somebody else did claim the kids.

Their parents.

That would be her son, the one who …

… did not work, and he was into dealing with drugs.”

Sigh.

We all know what a child is, but in the tax Code must rise to the level of a “qualifying child” before the tax goodies flow. There are requirements, of course – such as age and where they live – and grandma easily met those.

But only one person can claim each qualifying child, which is why one is required to include dependent social security numbers on the return. The IRS tracks those numbers. If you are the second person to use a dependent’s number, the IRS will bounce (or at least hold up) your return.

Grandma was the second to file, so she got bounced.

Now, there are families where more than one person can say that a child was his/her qualifying child. Congress anticipated this and included tie-breaker rules. For example, if two people contest and have equal claim, then the tie-breaker goes to the person with more income.

Or if the parents and someone else claim, then the parents win the tie-breaker.

However, this can be sidestepped if the parents DO NOT claim the child.

In grandma’s case, her son and daughter-in-law filed and claimed.

Can this situation be saved?

You bet.

How?

Amend the return. Have the parents “unclaim” the kids.

To their credit, the son and daughter did amend. They handed the amended return to the IRS attorney.

And here we have the technicality that makes you cringe.

Filing a return means sending it on to a service center or handing it to “any person assigned the responsibility to receive hand-carried returns in the local Internal Revenue Service office.”

Problem: the IRS attorney is not “assigned the responsibility” to receive or handle returns. Handing him/her a return is the equivalent of giving your return to a convenience store clerk or a Starbucks barista.

I suppose the attorney could bail you out by filing the return on your behalf upon returning to the office, but that did not happen here.

The return was never filed. Without an amended return, the son and daughter never revoked their dependency claim.

As the parents, they took priority over grandma, who only supported everyone that year.

And grandma could not claim the kids a second time.

Which cost her the child and earned income credits.

She had to repay the IRS.

The Court did not like this, not even a little bit.

We are sympathetic to []’s position. She provided all the financial support for …, had been told by her son that she should claim the children as her dependents, and is now stuck with a hefty tax bill. It is difficult for us to explain to a hardworking taxpayer like [] why this should be so, except to say that we are bound by the law.”

Sad.

At least the Court reversed those blasted penalties.

Magic Dragon, Pain Management and Taxation

I had lunch recently with a friend who has been diagnosed with Multiple Sclerosis.  I learned about MS primarily through him, and the disease is frightening. He went on to explain the neural degeneration and the pain that it can – and does – cause. His doctors have prescribed any number of pain medicines, but sometimes - many times - he does not need the full power of those prescriptions. He needs more than an aspirin but much less than an opioid.

It appears that marijuana does work for pain management.

Granted, this can be a problem where we live, as marijuana is not legal in either Kentucky or Ohio.

Over twenty states permit the medical use of marijuana, and four permit its recreational use. The problem arises from its status as a Schedule I controlled substance, meaning that it is illegal under federal law. I doubt too many tax CPAs get involved with businesses selling illegal products, and those that do are probably not in public practice.

The White House has encouraged the Justice Department not to prosecute marijuana distributors who comply with state law.  Granted, the next White House may change course on this matter, but for the moment there is temporary stability.

I have no idea how a state Board of Accountancy would react.

Remember that the tax Code is federal tax law. It also contains Code section 280E, which was passed in 1982, 14 years before California became the first state to legalize medical marijuana.

Let’s look at this polished pearl of prose.

Sec 280E Expenditures in connection with the illegal sale of drugs

No deduction or credit shall be allowed for any amount paid or incurred during the taxable year in carrying on any trade or business if such trade or business (or the activities which comprise such trade or business) consists of trafficking in controlled substances (within the meaning of schedule I and II of the Controlled Substances Act) which is prohibited by Federal law or the law of any State in which the trade or business is conducted.

This section was created in response to the 1981 Edmonson case, in which the Tax Court allowed a seller of amphetamines, cocaine and marijuana to deduct expenses. The decision did not go over well.

So Congress responded with “no deduction or credit shall be allowed” on public policy grounds.

However that language does not mean what it first appears to say.  

Section 280E does allow a cost-of-goods-sold deduction. The reason goes back to accounting theory. Let’s say that you sell Supreme Court clown hats. You sell a million of them for $5 each. You have to have them manufactured, which you outsource and pay $3 each.  Let’s step into a tax accounting class and the professor asks you: what is your income?

·        Is it 1 million times $5 = $5 million

·        Or is it 1 million times ($5 - $3) = $2 million

The answer is $2 million, as you get to deduct the cost of a product when your business involves selling a product.

And the Tax Court agreed in the Olive case.

Following Olive, we know that we can deduct the cost of the marijuana from the revenues received from selling marijuana. What about everything else: payroll, rent, lights, cell phone, computers and software, stationary, and so forth?

Now we run full-face into Section 280E. There is no deduction.

That has to hurt come April 15^th.

Surely the tax accountants can do something, right?

Yes, up to a point.

Remember that we said that you are allowed to deduct the cost of a product when your business involves selling a product? Another word for product is inventory, and there are things an accountant can do to tack some of those otherwise nondeductible expenses onto the inventory. You would then deduct those expenses as cost of goods sold when the product sells. I suspect you will still be leaving most of those expenses on the floor, but it is something.

More useful is to have another line of business that does not involve the sale of marijuana. Let’s say that one sets up a caregiving activity involving marijuana, providing support groups, lunches, counseling, social events and so on. As long as the primary business is not the sale of marijuana, the accountant could shift expenses (within reason; be fair) to that activity and sidestep the Section 280E disallowance. This was the Californians Helping to Alleviate Medical Problems (CHAMP) case, and it received the Tax Court’s approval. Introduce creative minds and I am certain there are a thousand variations on the theme.

There is a San Francisco marijuana business (Canna Care) that has taken Section 280E to Tax Court.  In their case it means a $2.6 million deduction. They do not have a CHAMP fact pattern but are instead arguing that the disallowance is punitive and hence unconstitutional.

There has been no decision as of this writing, but I would not be optimistic.

Why? The Ninth Circuit very recently decided on the appeal of Olive mentioned above. Martin Olive operates the Vapor Room, a medical marijuana dispensary in California. In addition to selling marijuana, it offers a number of services as well as food – both for free. It made a CHAMP argument, wanting to allocate expenses between the two lines of business.

The Ninth Circuit said no, basing its decision primarily on the “free” part of the food and services. To allocate expenses to two or more trades or businesses, one must in fact be in business. There is no hope of a profit when the activity is giving things away for free, so that activity cannot rise to the level of a trade or business.

But the Ninth Circuit also slapped down Olive’s direct challenge to Section 280E, saying the tax disallowance is not based on marijuana being legal or illegal. Rather the disallowance is based on marijuana being a controlled substance, which it is and continues to be.

And there you have the federal taxation of marijuana in a nutshell.

My thoughts?

It appears that the 1982 Section 280E addition to the tax Code is a bit out-of-step with contemporary society. Perhaps Congress could change one word: 

… which is prohibited by Federal law AND the law of any State in which such trade or business is conducted”.

And no, I don’t want any credit for the suggestion. I am more of a bourbon fan myself.