Cannabis operators could be eligible for the qualified business income deduction

If you didn’t attend the American Bar Association’s Section of Taxation meeting last week, you may have missed that IRS Counsel confirmed they will not automatically challenge a Section 199A-qualified business income deduction claimed by a cannabis business owner.

What is Section 199A of the Internal Revenue Code? This provision replaced the Section 199 domestic production activities deduction that existed prior to the 2018 Tax Cuts and Jobs Act. Simply put, it provides many owners of sole proprietorships, partnerships, S corporations, and some trusts and estates, a deduction of income from a qualified trade or business on their personal tax return, thereby reducing an individual’s tax liability. While subject to certain limitations, it equals 20% of “Qualified Business Income” from a domestic business operated as a sole proprietorship or through a partnership, S corporation, trust, or estate.

Why is this IRS concession important to cannabis business operators?
First, the IRS hasn’t provided much public guidance to cannabis businesses or business owners on the many issues that arise in applying the punitive Internal Revenue Code Section 280E or other more nuanced tax issues like the qualifying for the Employee Retention Credit. Until now, there has been uncertainty among tax preparers as to whether cannabis owners could claim a deduction of income from a qualified trade or business on their individual income tax returns. Any public guidance provided by the IRS assists cannabis business operators, and their respective advisors and tax preparers avoid uncertainty and surprises when the inevitable IRS audit occurs, so this recent development is significant.

Second, the ability of cannabis operators to deduct a portion of income flowing through on their individual income tax returns will potentially reduce the operator’s individual tax liabilities. However, for taxpayers with incomes above certain thresholds, the Section 199A deduction is limited to 50% of W-2 wages or 25% of W-2 wages plus 2.5% of unadjusted basis in all qualified property.

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