Letter To The Editor: Response To Article “A Biz In A Box – Article 2/4: 280E – Not A Problem !”

Katherine Allen writes….
I write in response to the article “A Biz In A Box – Article 2/4: 280E – Not A Problem !

First, the idea of reducing amounts realized by certain taxes is neither novel nor a “technique.” It’s simply how the disposition of property works. See the flush language of 26 USC section 164(a), which says in pertinent part “…any tax (not described in the first sentence of this subsection) which is paid or accrued by the taxpayer in connection with an acquisition or disposition of property shall be treated as part of the cost of the acquired property or, in the case of a disposition, as a reduction in the amount realized on the disposition.”

Second, the notion that a sale of inventory can be partly treated as a contribution to capital is preposterous and is not even a novel tax avoidance scheme. See, e.g., United Grocers, Ltd. v. United States, 186 F. Supp. 724, 733 (N.D. Cal. 1960), aff’d, 308 F.2d 634 (9th Cir. 1962). Section 118(b)(1) provides “the term ‘contribution to the capital of the taxpayer’ does not include…any contribution…as a customer or potential customer.” This is in addition to other anti-avoidance rules like the economic substance doctrine (codified in section 7701(o)).

The actual consequences of following that article’s advice is that the taxpayer lands back in their original position of taxability, but with penalties in addition to the transaction costs of creating such scheme.
 I suggest renaming the article headline to “How to generate tax penalties for your marijuana business.”

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