T.C. Memo. 2020-52
UNITED STATES TAX COURT
RICHMOND PATIENTS GROUP, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6504-18. Filed May 4, 2020.
Jeffrey B. Kahn, for petitioner.
Cameron W. Carr, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
KERRIGAN, Judge: In a notice of deficiency dated January 17, 2018,
respondent determined Richmond Patients Group (Richmond) had deficiencies of
$681,679 and $908,855 and was liable for accuracy-related penalties pursuant to
section 6662(a) of $136,336 and $181,771 for 2014 and 2015 (years in issue), -2-
[*2] respectively. After concessions,1 the issues for our consideration are whether:
(1) Richmond is entitled to additional costs of goods sold (COGS) or deductions
for business expenses other than those respondent allowed; (2) Richmond was a
reseller or a producer of marijuana pursuant to section 471 during the years in
issue; (3) Richmond is allowed to change its accounting method pursuant to
section 446 for tax year 2015; and (4) Richmond is liable for accuracy-related
penalties pursuant to section 6662(a).
Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for relevant times, and all Rule references are to the Tax
Court Rules of Practice and Procedure. All monetary amounts are rounded to the
nearest dollar.
FINDINGS OF FACT
Some of the facts have been stipulated and are incorporated in our findings
by this reference. Richmond was a California corporation with its primary place
of business in Richmond, California, when its petition was timely filed.
1 On September 11, 2019, the parties filed a stipulation of settled issues resolving some of the issues. -3-
[*3] I. Background on Richmond
Richmond is a California nonprofit mutual benefit corporation with
members, rather than shareholders, that is treated as a C corporation for Federal
tax purposes. In 2010 Richmond obtained a license from the city of Richmond to
open a medical marijuana facility. During the years in issue Richmond operated a
medical marijuana dispensary. It did not offer any therapeutic or other services.
Access to the dispensary, either for selling marijuana to or buying marijuana
from Richmond, was granted only through membership. To become a member, as
a patient, provider, or member employee, a person had to have a valid physician’s
recommendation to use marijuana, a valid form of picture identification from the
State of California, and a signed membership agreement form. Richmond also
allowed access to the dispensary to member caregivers. To become a member
caregiver a person had to provide a valid physician’s recommendation allowing
him or her to purchase and transport marijuana on behalf of his or her patient, a
valid form of picture identification from the State of California, and a signed
membership agreement form.
Four board members operated Richmond, and William Koziol, a board
member, served as Richmond’s managing director. Mr. Koziol held a bachelor’s
degree in business administration and was a licensed certified public accountant -4-
[*4] (C.P.A.) in California. He worked at an accounting firm as an auditor after
college. His C.P.A. license was inactive during the years in issue, and he never
practiced as a C.P.A. or prepared tax returns.
Richmond’s marijuana dispensary was around 3,000 square feet, and
approximately 50% of the total space was designated for purchasing and
processing marijuana products. The reception and retail floor occupied 25% of the
total space, and administration and storage occupied the remaining 25%.
Richmond employed a staff of approximately 22 members, including 2 buying
managers and an accounting manager.
The buying managers were responsible for purchasing bulk marijuana
products. Richmond purchased marijuana-containing products consisting of
flowers, concentrates, and edibles. Marijuana flowers accounted for at least 60%
of its products, concentrates accounted for 20%, and edibles accounted for 10%.
The remaining purchases were nonmarijuana products. For the years in issue
Richmond acquired all of its bulk marijuana products from individuals who were
members of the dispensary, referred to as member providers. These transactions
took place in a designated area of the dispensary. Richmond did not provide any
of its member providers with clones or seeds. All nonmarijuana products were
purchased from third-party vendors. -5-
[*5] Richmond purchased marijuana flowers in one-pound increments and
concentrates in one-ounce increments. The buying managers inspected product
quality, graded marijuana products, and determined how much to offer member
providers for the products. Member providers who had an existing relationship
with Richmond or who offered a product that was in high demand were paid in full
at the time of purchase. Richmond often paid member providers a 25% to 50%
downpayment when the product was brought in and paid the remainder once the
product passed testing. All marijuana that failed testing was returned to the
member providers.
Consistent with a city of Richmond ordinance, all marijuana products had to
be tested offsite by an independent laboratory before Richmond could sell the
products to its members. Richmond contracted with a third-party independent
laboratory to test the products it purchased. After initial inspection the buying
managers were responsible for contacting the laboratory to collect product samples
for testing. Richmond paid the laboratory for the cost of testing.
After testing, marijuana products were transferred into separate storage
safes. Marijuana flowers from member providers came already trimmed and dried
(or cured) to a certain degree. Richmond further trimmed marijuana flowers of
nonsellable stems and dried them in its storage safes. During this process the -6-
[*6] flowers could lose 3-10 grams of their weight. Richmond used a portion of
the trimmings to create secondary products such as pre-rolled joints and smaller
buds.
Richmond’s employees processed and broke down marijuana flowers and
concentrates into salable units--marijuana flowers into increments of 1 gram, 1.75
gram, and 3.25 grams, and concentrates into half- and one-gram increments.2
Edibles were purchased in bulk but came in individually prepackaged units ready
for immediate resale. Other than testing, edibles did not require further
processing.
Richmond stored marijuana flowers in plastic bags or glass containers while
they continued drying until they reached an optimal moisture content. Richmond
used humidity control systems designed to ensure that marijuana flowers would
not dry out too quickly or increase moisture content before being sold to members.
Other than the humidity-controlled storage area, drying the marijuana flowers did
not require any special type of machinery. Richmond packaged marijuana flowers
in safety-sealed Mylar bags with warning labels required by the State of
2 Even though marijuana flowers and concentrates were purchased in pounds and ounces, respectively, they were prepared for resale in grams. There are approximately 454 grams in a pound and approximately 28 grams in an ounce. -7-
[*7] California. Richmond packaged concentrates in small glass or plastic
containers. Richmond labeled the products to conform with California labeling
laws.
Richmond used MJ Freeway Business Solutions (MJ Freeway), a point of
sale system, to track its inventory from purchase through processing to final sale.
All marijuana products stayed in MJ Freeway as bulk inventory until Richmond
received the test results. Richmond used MJ Freeway to track byproducts, stem
and weight loss of marijuana flowers, packaging loss, and any weight variances.
II. Income Tax Returns and Notice of Deficiency
Richmond’s accounting manager used QuickBooks to prepare profit and
loss statements, balance sheets, and sales reports, which were provided to its
accountant. She used information from MJ Freeway to make entries in
QuickBooks. Richmond’s accountant used the financial reports to prepare its
Federal income tax returns.
Beginning with the filing of its 2009 Federal income tax return, Richmond
adopted the first in, first out (FIFO) cost inventory method of accounting for
resellers. It timely filed Forms 1120, U.S. Corporation Income Tax Return, for the
years in issue. On its 2014 Form 1120 Richmond reported $4,970,120 of gross
receipts and subtracted $3,234,028 in COGS, which comprised beginning -8-
[*8] inventory plus purchases and other costs less ending inventory. Richmond’s
other costs for determining its calculation of COGS consisted of: $48,881 for
damage and shrinkage, $5,733 for depreciation, $149,001 for inventory security,
$16,907 for packaging, $63,711 for permit fees on gross revenue, and $32,200 for
testing. Additionally, Richmond claimed business expense deductions totaling
$1,653,948 for the following: compensation to officers; salaries and wages;
repairs and maintenance; rents; taxes and licenses; charitable contributions;
depreciation; pension, profit sharing, etc., plans; employee benefits programs; and
other expenses.
In February 2016 respondent notified Richmond that its 2014 tax return was
being examined. The revenue agent, accompanied by Mr. Koziol, toured
Richmond’s facility on March 24, 2016. On March 15, 2016, Richmond filed its
2015 Form 1120, on which it reported $6,254,843 in gross receipts and subtracted
$5,982,023 in COGS. Richmond claimed business expense deductions totaling
$43,555 which included taxes and licenses and charitable contributions. In its
calculation of COGS Richmond reported $1,404,534 of other costs consisting of:
$10,417 for amortization, $60,928 for damage and shrinkage, $582 for
depreciation, $1,080,541 for indirect COGS, $122,205 for inventory security,
$67,260 for local fees on gross revenue, $30,201 for packaging, and $32,400 for -9-
[*9] testing. Richmond also included in its calculation of COGS $1,353,705 for
cost of labor.
Along with its Form 1120 Richmond submitted Form 3115, Application for
Change in Accounting Method, for 2015, which changed its method of accounting
from period costs to inventoriable costs, referred to as indirect COGS. On its
Form 3115 Richmond reported that it did not have any Federal income tax returns
under examination. Beginning with its 2015 tax year Richmond calculated the
beginning and ending inventory with an adjustment of $70,701 to account for
previously expensed indirect costs and planned to spread out this adjustment over
four years. On its 2015 tax return Richmond reported a section 481(a) adjustment
of $17,675.
On November 16, 2016, Richmond submitted a Form 1120X, Amended
U.S. Corporation Income Tax Return, for 2014. The amended tax return moved
most of the deductions for business expenses to COGS. Richmond’s amended tax
return reported other costs of $1,965,784.
On November 16, 2016, Richmond also submitted a Form 1120X for 2015
which proposed changes that would reduce its tax liability by $9,954. Along with
the amended tax return Richmond resubmitted Form 3115 for 2015. On Form - 10 -
[*10] 3115 Richmond again reported that it did not have any Federal income tax
returns under examination.
On February 15, 2017, respondent mailed to Richmond Letter 950,
commonly referred to as a 30-day letter, and the revenue agent’s examination
report. The examination report set forth respondent’s proposed adjustments to
income and asserted income tax deficiencies and accuracy-related penalties
pursuant to section 6662(a). The revenue agent’s immediate supervisor approved
the section 6662 penalties and signed a Civil Penalty Approval Form on February
15, 2017.
On the basis of Richmond’s original tax returns respondent issued a notice
of deficiency on January 17, 2018, which made adjustments to COGS and
disallowed business expense deductions pursuant to section 280E as follows:3
3 Richmond reported other income of $17,675 as its sec. 481(a) adjustment for 2015. - 11 -
[*11] Adjustments to income 2014 2015 Rents $307,500 -0- COGS 316,433 $1,404,534 Compensation of officers 208,000 -0- Salaries and wages 800,785 -0- Repairs and maintenance 4,741 -0- Taxes and licenses 92,161 20,267 Depreciation 1,828 -0- Pension and profit sharing 17,181 -0- Employee benefit programs 30,603 -0- Other deductions 189,149 -0- Cost of labor -0- 1,353,705 Inventory (beginning) -0- 70,701 Other income -0- (17,675) Inventory (ending) -0- (194,667) Contributions 2,000 23,288
In the stipulation of settled issues the parties agreed that Richmond
substantiated all amounts underlying deductions claimed for the years in issue.
Respondent has conceded that costs for testing and packaging previously
disallowed as direct costs for the years in issue should be allowed as part of
COGS. - 12 -
[*12] OPINION
I. Burden of Proof
Generally, the Commissioner’s determinations in a notice of deficiency are
presumed correct, and the taxpayer bears the burden of proving those
determinations erroneous. Rule 142(a)(1); Welch v. Helvering, 290 U.S. 111, 115
(1933). Under section 7491(a) in certain circumstances the burden of proof may
shift from the taxpayer to the Commissioner. Richmond has neither shown nor
claimed that it meets the requirements of section 7491(a) to shift the burden of
proof to respondent as to any relevant factual issue. Accordingly, the burden of
proof remains with Richmond.
II. Deductions
Deductions are a matter of legislative grace, and a taxpayer must prove its
entitlement to deductions. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84
(1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). Taxpayers
must maintain sufficient records to substantiate any deductions claimed. Sec.
6001.
Generally, section 162(a) allows a taxpayer to deduct from gross income
ordinary and necessary expenses paid or incurred during the taxable year in
carrying on a trade or business. Section 261, however, provides that “[i]n - 13 -
[*13] computing taxable income no deduction shall in any case be allowed in
respect of the items specified in this part”, which includes section 280E. See
Californians Helping to Alleviate Med. Problems, Inc. v. Commissioner
(CHAMP), 128 T.C. 173, 180 (2007). Section 280E precludes taxpayers from
deducting any expense related to a business that consists of trafficking in a
controlled substance. See Olive v. Commissioner, 139 T.C. 19, 29 (2012), aff’d,
792 F.3d 1146 (9th Cir. 2015). Section 280E disallows deductions only for
business expenses and does not preclude Richmond from taking into account its
COGS. See CHAMP, 128 T.C. at 178 n.4.
We have previously held that medical marijuana is a controlled substance.
Id. at 180-181; see also Gonzales v. Raich, 545 U.S. 1 (2005); United States v.
Oakland Cannabis Buyers’ Coop., 532 U.S. 483 (2001). The dispensing of
medical marijuana, while legal in California, is illegal under Federal law. See
Olive v. Commissioner, 139 T.C. at 39. Congress in section 280E has set an
illegality under Federal law as one trigger to preclude a taxpayer from deducting
expenses incurred in a medical marijuana dispensary business. Id. This is true
even if the business is legal under State law. Id.
Richmond operated a medical marijuana dispensary in which it purchased
and sold marijuana products. It accrued immaterial amounts of revenue from the - 14 -
[*14] sale of nonmarijuana products, and it did not offer its members or the public
any therapeutic or other services. Therefore, we hold that pursuant to section
280E Richmond is not entitled to its claimed deductions for the following business
expenses: rents, compensation of officers, salaries and wages, repairs and
maintenance, taxes and licenses, charitable contributions, depreciation, pension
and profit sharing plans, employee benefit programs, and other expenses.
III. Cost of Goods Sold
Section 280E disallows only deductions for the expenses of a business and
does not preclude taxpayers from taking into account COGS. See CHAMP, 128
T.C. at 178 n.4. COGS is not a deduction within the meaning of section 162(a)
but is subtracted from gross receipts in determining a taxpayer’s gross income.
See Max Sobel Wholesale Liquors v. Commissioner, 69 T.C. 477 (1977), aff’d,
630 F.2d 670 (9th Cir. 1980); sec. 1.162-1(a), Income Tax Regs. COGS is the cost
of acquiring inventory, through either production or purchase. Patients Mut.
Assistance Collective Corp. v. Commissioner (Patients Mut.), 151 T.C. 176, 205
(2018); Reading v. Commissioner, 70 T.C. 730, 733 (1978), aff’d, 614 F.2d 159
(8th Cir. 1980). COGS is generally determined under section 471 and its
accompanying regulations. See secs. 1.471-3, 1.471-11, Income Tax Regs. - 15 -
[*15] Section 471 and its accompanying regulations direct taxpayers to section
263A for additional rules. Section 263A instructs both producers and resellers to
include “indirect” inventory costs in COGS. See sec. 263A(a)(2)(B), (b); sec.
1.263A-1(a)(3), (c)(1), (e), Income Tax Regs. Indirect costs are defined broadly as
all costs other than direct material costs and direct labor costs (for producers) and
acquisition costs (for resellers). Sec. 1.263A-1(e)(3), Income Tax Regs.
Section 263A includes in COGS only expenses that are otherwise
deductible. Sec. 263A(a)(2). Section 280E prohibits taxpayers from taking
business deductions under section 162. Therefore, section 263A does not allow
Richmond to capitalize indirect costs into COGS that it would not otherwise be
able to deduct. See Patients Mut., 151 T.C. at 209.
Richmond contends that it was a producer for purposes of sections 263A
and 471 and should be entitled to deduct indirect inventory costs under section
1.471-3(c), Income Tax Regs. Pursuant to section 263A and its accompanying
regulations, the following are included in the definition of produce: construct,
build, install, manufacture, develop, improve, create, raise, or grow. Sec.
263A(g)(1); sec. 1.263A-2(a)(1)(i), Income Tax Regs. Pursuant to the section 471
regulations, “[c]osts are considered to be production costs to the extent that they
are incident to and necessary for production or manufacturing operations or - 16 -
[*16] processes.” Sec. 1.471-11(b)(1), Income Tax Regs. For purposes of section
471 “produce” means the same thing as in section 263A(g)(1) and section 1.263A-
2(a)(1)(i), Income Tax Regs. Patients Mut., 151 T.C. at 211.
In Patients Mut., 151 T.C. at 213, also involving a California medical
marijuana dispensary, we held that the taxpayer was a reseller, not a producer, for
purposes of section 471. The taxpayer did not own the marijuana plants during
cultivation, did not own or control the grower-provider, and was under no
obligation to purchase what the grower produced. Id. at 212-213. However, the
taxpayer did provide marijuana clones to its members to grow. Id. at 212.
In contrast Richmond did not provide live plants, clones, or seeds to its
members. Richmond was under no obligation to purchase what its member
providers offered for sale. Rather, it purchased bulk marijuana grown by its
members for resale. Member providers trimmed the marijuana flowers before
Richmond purchased them. No improvements were made to the marijuana from
the time it was purchased to the time it was sold. Richmond inspected, sent out for
testing, trimmed, dried and maintained the stock, and packaged and labeled
marijuana. These activities are those of a reseller and not a producer. See Alt.
Health Care Advocates v. Commissioner, 151 T.C. 225, 243 (2018) (holding that
the taxpayer was not a producer because it did not grow, create, or improve its - 17 -
[*17] marijuana products to the extent required by section 263A or 471 as the only
evidence before the Court was “that the dispensary, inspected, packaged, trimmed,
dried, and maintained the stock”); Patients Mut., 151 T.C. at 213 n.26 (noting that
the taxpayer’s processing, which included reinspection, packaging, and labeling,
were activities that “resellers do without losing their character as resellers”).
We conclude that Richmond was a reseller for purposes of section 471.
Therefore, Richmond is not allowed to deduct additional indirect costs included in
COGS for the tax years in issue.4
IV. Change of Accounting Method
Pursuant to section 446(a) taxable income must be computed under the
method of accounting on the basis of which the taxpayer regularly computes its
income in keeping its books. A method of accounting is only acceptable if in the
opinion of the Commissioner it clearly reflects income. Sec. 446(b); sec. 1.446-
1(a)(2), Income Tax Regs. In general, a taxpayer wishing to change its method of
accounting must obtain the Commissioner’s prior consent. Sec. 446(e); sec.
1.446-1(e)(2)(i), Income Tax Regs. The Commissioner is vested with wide
4 The parties agreed in the stipulation of settled issues that Richmond’s tax returns for the years in issue reported additional indirect costs for damage and shrinkage, depreciation, inventory security, and permit fees and that its 2015 tax return reported indirect COGS. - 18 -
[*18] discretion in deciding whether to consent to a change of accounting method.
Brown v. Helvering, 291 U.S. 193, 204 (1934). The Commissioner has authority
to give consent retroactively to a change in a taxpayer’s method of computing
taxable income that has already been made. See Barber v. Commissioner, 64 T.C.
314, 319 (1975).
On March 15, 2016, Richmond included Form 3115 with its 2015 Form
1120. It requested respondent’s consent to change its inventory valuation method
of accounting to that of a producer under the regulations prescribed in section
1.471-3(c), Income Tax Regs. Since its inception Richmond had used the FIFO
method of accounting for resellers pursuant to section 1.471-3(b), Income Tax
Regs. The accounting method a taxpayer adopts must be consistent from year to
year unless the Commissioner authorizes a change. Huntington Sec. Corp. v.
Busey, 112 F.2d 368, 370 (6th Cir. 1940).
Respondent properly disallowed Richmond’s proposed change of
accounting method. We concluded previously that Richmond was not a producer,
but rather a reseller, for 2015. Richmond did not provide any evidence of changes
in its business which would justify a change in its method of accounting. The
proposed method of accounting change would not clearly reflect income.
Furthermore, respondent did not consent to the change. Accordingly, we sustain - 19 -
[*19] respondent’s determination denying Richmond’s request for consent to
change its method of accounting because Richmond was not a producer of
marijuana.
V. Accuracy-Related Penalty Pursuant to Section 6662(a)
Section 6662(a) and (b)(1) and (2) imposes a penalty equal to 20% of the
portion of an underpayment of tax required to be shown on a return that is
attributable to “[n]egligence or disregard of rules or regulations” and/or a
“substantial understatement of income tax.” Only one accuracy-related penalty
may be applied with respect to any given portion of an underpayment, even if that
portion is subject to the penalty on more than one of the grounds set out in section
6662(b). Sec. 1.6662-2(c), Income Tax Regs.
Respondent determined that Richmond is liable for accuracy-related
penalties pursuant to section 6662(a). The burden of production as to the penalties
remains with Richmond because section 7491(c) does not apply to corporations.
See NT, Inc. v. Commissioner, 126 T.C. 191, 195 (2006). We held previously that
the Commissioner does not have the burden of production as to the supervisory
approval requirement under section 6751(b) for a penalty determined against a
corporation in a notice of deficiency. Dynamo Holdings Ltd. P’ship v.
Commissioner, 150 T.C. 224, 231-232 (2018). The record here includes a penalty - 20 -
[*20] approval form establishing respondent’s compliance with section 6751(b).
Since Richmond has not raised as an affirmative defense whether respondent
complied with section 6751(b), we conclude that Richmond has waived this
defense. See id. at 237.
For a corporation an understatement of income tax is substantial if it
exceeds the lesser of 10% of the tax required to be shown on the return (or, if
greater, $10,000) or $10 million. Sec. 6662(d)(1)(B). If after calculations
pursuant to Rule 155 Richmond has understated more than 10% of the tax required
to be shown on its tax return and by more than $10,000, it will have a substantial
understatement of income tax.
The section 6662(a) penalty does not apply with respect to any portion of
the underpayment for which it is shown that the taxpayer had reasonable cause and
acted in good faith. Sec. 6664(c)(1). The determination of reasonable cause and
good faith is made on a case-by-case basis, taking into account all pertinent facts
and circumstances. Sec. 1.6664-4(b)(1), Income Tax Regs. We also consider the
taxpayer’s experience, knowledge, and education. See id.
For purposes of section 6664(c) a taxpayer may be able to establish
reasonable cause and good faith by showing reliance on professional advice. See
also sec. 1.6664-4(c), Income Tax Regs. To establish good faith and reasonable - 21 -
[*21] cause through reliance on professional advice, the taxpayer must prove by a
preponderance of the evidence: “(1) [t]he adviser was a competent professional
who had sufficient expertise to justify reliance, (2) the taxpayer provided
necessary and accurate information to the adviser, and (3) the taxpayer actually
relied in good faith on the adviser’s judgment.” Neonatology Assocs., P.A. v.
Commissioner, 115 T.C. 43, 99 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002).
Richmond contends that it acted reasonably and in good faith because there
was a lack of guidance regarding section 280E. In CHAMP, 128 T.C. at 184-185,
we held that section 280E prevented the taxpayer from deducting business
expenses which were allocated to its activity of providing medical marijuana. For
2014 Richmond claimed deductions that were impermissible pursuant to section
280E, and for the following year Richmond moved these expenses to COGS.
Richmond’s actions indicate that it was aware when it filed its 2015 tax return that
deductions were not allowed pursuant to section 280E. Furthermore, there was
relevant authority directly against Richmond’s position for 2014.
Richmond provided no evidence in support of business changes that
necessitated a change in its method of accounting. On its 2015 tax return
Richmond made a change by shifting expenses to indirect COGS. Richmond did
not receive consent from respondent to change its accounting method. - 22 -
[*22] The record shows that Richmond provided its accountant with financial
statements to prepare its tax returns. Richmond provided no evidence that it relied
on its accountant for advice regarding sections 280E, 471, and 263A. Merely
hiring a professional to prepare an income tax return, without giving the
professional necessary information or relying on his or her advice, does not
absolve a taxpayer from liability for a penalty. Alt. Health Care Advocates v.
Commissioner, 151 T.C. at 247. Accordingly, subject to computations under Rule
155, we hold that Richmond is liable for the accuracy-related penalties pursuant to
section 6662(a) for the years in issue.
We have considered all of the arguments made by the parties and, to the
extent not addressed herein, we find them moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
under Rule 155.