Category: Lane Powell

Peter Becker writes…As any farmer knows, planting season waits for no one. Washington state lawmakers are showing they understand this as well.

While the 2018 Farm Bill removed hemp from the Drug Enforcement Administration’s regulatory oversight, the Food and Drug Administration (FDA) continues to oversee foods, drugs or cosmetics that contain hemp or hemp products, the most popular of which is currently CBD. Meanwhile, states, farmers and other interested parties are clamoring for guidance on hemp commercialization, driven by the steadily increasing demand for CBD products among consumers who believe the hemp derivative is an effective treatment for a wide range of ailments.

In a unanimous decision this month, the Supreme Court limited the scope of civil asset forfeiture, the controversial legal process whereby law enforcement officers can seize property they suspect was involved in illegal activities. In this post, we will discuss how the recent decision in Timbs v. Indiana affects a long-time cannabis industry boogeyman.

Concerning news out of Idaho, where the U.S. District Court in Idaho delivered some bad news to the owners of the contents of a tractor trailer recently seized by the Idaho State  Police. The trailer contained nearly 7,000 pounds of Cannabis sativa en route from Oregon to Colorado. Seizures of outbound Oregon marijuana are an unfortunate status quo these days — overproduction and cratered prices in Oregon have led to regulatory lamentation over black-market sales across state lines.

Pitchbook recently released its2018 results for cannabis related investments, and the data is impressive: 139 deals scooped up a whopping $881 million. Those numbers are up over the prior year by 26 percent (number of transactions) and 120 percent (total amount invested), reflecting larger average deal sizes.  Leading the way,Privateer Holdings closed a $100 million Series C financing.

Join the World Law Group for its upcoming webinar series on the legalization of cannabis around the world. Each of the four webinars will focus on specific jurisdictions or regions, including Europe, Israel, Canada, Latin America and the United States. Our very own Josh Ashby will serve as a moderator for the upcoming Israel update on February 26, and as a panelist for the U.S. update on April 3. Register via the links below.

“Audit,” already an unpleasant word in cannabis circles, got a little worse this week with the release of a stern assessment of Oregon’s cannabis program by the Oregon Secretary of State. The 42-page report, the first such review since Oregon voters legalized recreational marijuana in 2014, catalogues numerous gaps in Oregon’s regulatory oversight of cannabis. While offering qualified praise for the theoretical scope of Oregon’s adult-use regulations, the audit found that a lack of resources has led to spotty enforcement.

With 10 states and the District of Columbia having legalized recreational cannabis (representing nearly a quarter of the U.S. population, including the most populous state), an emerging issue is how to deal with the odor generated by marijuana production facilities. A December 19, 2018 article in The New York Times noted a growing number of neighbors of cannabis farms are complaining about “skunky” odors caused by certain volatile organic compounds generated during growing and processing.

We recently discussed the impact of the Harborside opinion on cannabis tax planning, a tax court decision that disturbed, but didn’t really surprise, those of us who regularly work on the application of tax rules in the cannabis industry. The industry faces a secondary assault following the U.S. Tax Court’s opinion in Alternative Health Care Advocates. The opinion in Alternative raises new — more surprising and more disturbing — concerns regarding common cannabis tax planning strategies and focuses on the use of management companies.

The new Agricultural Improvement Act of 2018 (Pub. L. 115-334) (the “Act”) was signed into law by President Trump on December 20, 2018. Much press has been devoted to the fact that the Act generally legalizes industrial hemp and will provide federal Crop Insurance for that crop. While this is potentially good news for farmers and their bankers, questions remain for bankers about how they can effectively identify a legal hemp crop and distinguish it from an illegal marijuana crop.

The U.S. Tax Court’s recent Harborside opinion confirmed what we have warned our clients for quite some time: section 263A is unavailable for any cannabis business that traffics a Schedule I or II controlled substance. This conclusion is consistent with the IRS view espoused in a 2015 IRS Chief Counsel Advice memorandum and the flush language in section 263A, which states taxpayers cannot use section 263A to deduct an otherwise nondeductible item. Many cannabis businesses have relied on section 263A to capitalize expenses that would otherwise be non-deductible under section 280E. Those taxpayers should reconsider their tax return filing positions on not only a go-forward basis, but also for purposes of correcting previously filed returns.