T.C. Memo. 2021-96
UNITED STATES TAX COURT
TODAY’S HEALTH CARE II LLC, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 25541-18. Filed August 2, 2021.
Corporation C grew, produced, and sold medical marijuana products. On its tax returns for 2014 and 2015, C reduced its gross receipts to account for costs of goods sold (“COGS”), deducted expenses incurred in its marijuana business activities, and deducted portions of a net operating loss (“NOL”) carried forward from its marijuana business activities in 2011 and 2012.
R examined C’s returns for 2014 and 2015, allowed reductions of gross receipts for COGS, but disallowed deductions (including the NOLs from 2011 and 2012) under I.R.C. sec. 280E. R issued C a statutory notice of deficiency (“SNOD”) that determined deficiencies and accuracy-related penalties for C’s 2014 and 2015 tax years.
C timely filed a petition to challenge the determinations in the SNOD. C argues that I.R.C. sec. 280E violates the Eighth and Sixteenth Amendments to the Constitution.
Served 08/02/21 -2-
[*2] Held: I.R.C. sec. 280E does not violate the Eighth or Sixteenth Amendment to the Constitution.
Paul J. Valentine and Jared W. Miller, for petitioner.
Rebecca E. da Costa, Alicia E. Elliott, and Rachel J. Zepeda, for respondent.
MEMORANDUM OPINION
GUSTAFSON, Judge: Pursuant to section 6212(a),1 the Internal Revenue
Service (“IRS”) determined deficiencies in tax and penalties for petitioner,
Today’s Health Care II LLC (“THC”), and mailed THC a statutory notice of
deficiency (“SNOD”) on September 26, 2018. The SNOD determined deficiencies
and penalties for THC’s 2014 and 2015 tax years as follows:
Penalty Year Deficiency sec. 6662(a) 2014 $287,750 $57,550 2015 191,925 38,385
1 Unless otherwise indicated, all section references are to the Internal Revenue Code (26 U.S.C.), as in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. Amounts are rounded to the nearest dollar. -3-
[*3] The deficiencies stemmed from business expense deductions that THC
claimed in relation to its marijuana business activities, which the IRS disallowed
under section 280E.
THC timely filed a petition for redetermination of the deficiencies in the
SNOD. The parties filed a comprehensive joint stipulation of facts and moved to
submit this case for consideration without trial under Rule 122, and we granted
that motion. The issue to be decided is whether section 280E violates the Eighth
or Sixteenth Amendment to the Constitution.
Background
The facts below are based on the pleadings and the parties’ stipulation of
facts (including the exhibits attached thereto).
THC’s operations
THC is a Colorado limited liability company that was organized in 2010 for
the purpose of doing business as a retail dispensary licensed and authorized to
cultivate, manufacture, distribute, and sell medical marijuana products in
accordance with Colorado State law. At the time it filed the petition, THC’s
principal place of business was in Colorado Springs, Colorado. During 2014 and
2015, THC operated a marijuana grow facility and two retail dispensaries in
Colorado Springs. THC grew, harvested, and processed marijuana at the grow -4-
[*4] facilities and then sold the marijuana and other products including marijuana-
infused edibles, creams, concentrates, and paraphernalia at its retail locations. In
each year of operation, THC incurred costs of goods sold (“COGS”) and ordinary
and necessary business expenses attributable to its marijuana growing and retail
operations.
Tax reporting
THC did not account for section 280E on any of its returns from 2010
through 2015; rather, it deducted expenses whose deduction is disallowed by that
section. For 2014 and 2015 (the years at issue), THC elected to be treated as a
C corporation for Federal tax purposes and filed Forms 1120, “U.S. Corporation
Income Tax Return”. On each Form 1120, THC calculated its total income by
subtracting COGS from gross receipts and then claiming deductions from income
for ordinary and necessary business expenses attributable to its growing and retail
operations. THC also claimed carryforward deductions for net operating losses
(“NOLs”) that had been generated from marijuana-business activities in 2011 and
2012.2
2 On its 2014 Form 1120, THC reported gross receipts of $2,911,102, COGS of $423,115, business deductions of $2,351,921, an NOL deduction of $136,066, and zero taxable income. On its 2015 Form 1120, THC reported gross receipts of $3,591,811, COGS of $77,509, gross rental income of $30,000, business (continued...) -5-
[*5] Examination and notice of deficiency
The IRS examined THC’s returns for 2014 and 2015. The IRS allowed
COGS that THC claimed but made various adjustments to the claimed COGS
amounts--recharacterizing, in THC’s favor, a portion of THC’s business
deductions for each year as COGS. The IRS otherwise disallowed under section
280E $846,324 of claimed business expense deductions for 2014 and $561,176 for
2015. (The disallowed amounts included the NOL carryforwards from 2011 and
2012, which the parties stipulated would not have been available if THC had
accounted for section 280E in prior years.) On the basis of those disallowances,
the IRS issued an SNOD determining deficiencies and accuracy-related penalties
for the years at issue.
Petition and other filings
THC timely filed a petition for redetermination of the determinations in the
SNOD. The parties filed a joint stipulation of facts and submitted the case under
Rule 122. In their stipulation they agree that if the Court determines an
underpayment for either year as a result of section 280E, then THC will be liable
for the corresponding accuracy-related penalties.
2 (...continued) deductions of $3,225,332, an NOL deduction of $6,478, and $312,492 of taxable income. -6-
[*6] Discussion
I. Burden of proof
In general, the determinations in an SNOD are presumed correct, and the
taxpayer bears the burden to prove otherwise. See Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). The fact that a case has been submitted
under Rule 122 “does not alter the burden of proof, or the requirements otherwise
applicable with respect to adducing proof, or the effect of failure of proof.”
Rule 122(b); see also Novoselsky v. Commissioner, T.C. Memo. 2020-68, at *13.
In this case, however, the burden of proof does not affect the outcome, because the
material facts are not in dispute and the challenge that THC faces is not factual but
legal. THC argues that it is entitled to the disputed claimed deductions because, it
contends, the statute that disallows THC’s deductions (section 280E) violates the
Eighth and Sixteenth Amendments--a contention that this Court has rejected.
II. Section 280E
Section 280E (entitled “Expenditures in Connection with the Illegal Sale of
Drugs”) provides as follows:
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 -7-
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T.C. Memo. 2021-96
UNITED STATES TAX COURT
TODAY’S HEALTH CARE II LLC, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 25541-18. Filed August 2, 2021.
Corporation C grew, produced, and sold medical marijuana products. On its tax returns for 2014 and 2015, C reduced its gross receipts to account for costs of goods sold (“COGS”), deducted expenses incurred in its marijuana business activities, and deducted portions of a net operating loss (“NOL”) carried forward from its marijuana business activities in 2011 and 2012.
R examined C’s returns for 2014 and 2015, allowed reductions of gross receipts for COGS, but disallowed deductions (including the NOLs from 2011 and 2012) under I.R.C. sec. 280E. R issued C a statutory notice of deficiency (“SNOD”) that determined deficiencies and accuracy-related penalties for C’s 2014 and 2015 tax years.
C timely filed a petition to challenge the determinations in the SNOD. C argues that I.R.C. sec. 280E violates the Eighth and Sixteenth Amendments to the Constitution.
Served 08/02/21 -2-
[*2] Held: I.R.C. sec. 280E does not violate the Eighth or Sixteenth Amendment to the Constitution.
Paul J. Valentine and Jared W. Miller, for petitioner.
Rebecca E. da Costa, Alicia E. Elliott, and Rachel J. Zepeda, for respondent.
MEMORANDUM OPINION
GUSTAFSON, Judge: Pursuant to section 6212(a),1 the Internal Revenue
Service (“IRS”) determined deficiencies in tax and penalties for petitioner,
Today’s Health Care II LLC (“THC”), and mailed THC a statutory notice of
deficiency (“SNOD”) on September 26, 2018. The SNOD determined deficiencies
and penalties for THC’s 2014 and 2015 tax years as follows:
Penalty Year Deficiency sec. 6662(a) 2014 $287,750 $57,550 2015 191,925 38,385
1 Unless otherwise indicated, all section references are to the Internal Revenue Code (26 U.S.C.), as in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. Amounts are rounded to the nearest dollar. -3-
[*3] The deficiencies stemmed from business expense deductions that THC
claimed in relation to its marijuana business activities, which the IRS disallowed
under section 280E.
THC timely filed a petition for redetermination of the deficiencies in the
SNOD. The parties filed a comprehensive joint stipulation of facts and moved to
submit this case for consideration without trial under Rule 122, and we granted
that motion. The issue to be decided is whether section 280E violates the Eighth
or Sixteenth Amendment to the Constitution.
Background
The facts below are based on the pleadings and the parties’ stipulation of
facts (including the exhibits attached thereto).
THC’s operations
THC is a Colorado limited liability company that was organized in 2010 for
the purpose of doing business as a retail dispensary licensed and authorized to
cultivate, manufacture, distribute, and sell medical marijuana products in
accordance with Colorado State law. At the time it filed the petition, THC’s
principal place of business was in Colorado Springs, Colorado. During 2014 and
2015, THC operated a marijuana grow facility and two retail dispensaries in
Colorado Springs. THC grew, harvested, and processed marijuana at the grow -4-
[*4] facilities and then sold the marijuana and other products including marijuana-
infused edibles, creams, concentrates, and paraphernalia at its retail locations. In
each year of operation, THC incurred costs of goods sold (“COGS”) and ordinary
and necessary business expenses attributable to its marijuana growing and retail
operations.
Tax reporting
THC did not account for section 280E on any of its returns from 2010
through 2015; rather, it deducted expenses whose deduction is disallowed by that
section. For 2014 and 2015 (the years at issue), THC elected to be treated as a
C corporation for Federal tax purposes and filed Forms 1120, “U.S. Corporation
Income Tax Return”. On each Form 1120, THC calculated its total income by
subtracting COGS from gross receipts and then claiming deductions from income
for ordinary and necessary business expenses attributable to its growing and retail
operations. THC also claimed carryforward deductions for net operating losses
(“NOLs”) that had been generated from marijuana-business activities in 2011 and
2012.2
2 On its 2014 Form 1120, THC reported gross receipts of $2,911,102, COGS of $423,115, business deductions of $2,351,921, an NOL deduction of $136,066, and zero taxable income. On its 2015 Form 1120, THC reported gross receipts of $3,591,811, COGS of $77,509, gross rental income of $30,000, business (continued...) -5-
[*5] Examination and notice of deficiency
The IRS examined THC’s returns for 2014 and 2015. The IRS allowed
COGS that THC claimed but made various adjustments to the claimed COGS
amounts--recharacterizing, in THC’s favor, a portion of THC’s business
deductions for each year as COGS. The IRS otherwise disallowed under section
280E $846,324 of claimed business expense deductions for 2014 and $561,176 for
2015. (The disallowed amounts included the NOL carryforwards from 2011 and
2012, which the parties stipulated would not have been available if THC had
accounted for section 280E in prior years.) On the basis of those disallowances,
the IRS issued an SNOD determining deficiencies and accuracy-related penalties
for the years at issue.
Petition and other filings
THC timely filed a petition for redetermination of the determinations in the
SNOD. The parties filed a joint stipulation of facts and submitted the case under
Rule 122. In their stipulation they agree that if the Court determines an
underpayment for either year as a result of section 280E, then THC will be liable
for the corresponding accuracy-related penalties.
2 (...continued) deductions of $3,225,332, an NOL deduction of $6,478, and $312,492 of taxable income. -6-
[*6] Discussion
I. Burden of proof
In general, the determinations in an SNOD are presumed correct, and the
taxpayer bears the burden to prove otherwise. See Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933). The fact that a case has been submitted
under Rule 122 “does not alter the burden of proof, or the requirements otherwise
applicable with respect to adducing proof, or the effect of failure of proof.”
Rule 122(b); see also Novoselsky v. Commissioner, T.C. Memo. 2020-68, at *13.
In this case, however, the burden of proof does not affect the outcome, because the
material facts are not in dispute and the challenge that THC faces is not factual but
legal. THC argues that it is entitled to the disputed claimed deductions because, it
contends, the statute that disallows THC’s deductions (section 280E) violates the
Eighth and Sixteenth Amendments--a contention that this Court has rejected.
II. Section 280E
Section 280E (entitled “Expenditures in Connection with the Illegal Sale of
Drugs”) provides as follows:
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 -7-
[*7] is prohibited by Federal law or the law of any State in which such trade or business is conducted.
THC acknowledges that its marijuana business consists of trafficking in a
controlled substance. It argues, however, that disallowing deductions for its
ordinary and necessary business expenses under section 280E violates the
Constitution--in particular, the Eighth Amendment (which prohibits “excessive
fines”) and the Sixteenth Amendment (which authorizes “taxes on incomes”).
This Court has previously held, in a precedential Opinion reviewed by the
entire Court pursuant to section 7460(b), that disallowing deductions for ordinary
and necessary business expenses under section 280E does not violate the Eighth or
Sixteenth Amendment.3 See N. Cal. Small Bus. Assistants Inc. v. Commissioner,
153 T.C. 65 (2019). But see id. at 77-90 (Gustafson, J., concurring in part and
dissenting in part). We will not depart from that holding in this case.
3 Pursuant to section 7482(b)(1)(B), venue for an appeal in this case would presumably lie in the U.S. Court of Appeals for the Tenth Circuit, absent stipulation otherwise pursuant to section 7482(b)(2). That court has held to the same effect. See Standing Akimbo, LLC v. United States, 955 F.3d 1146, 1157 n.7 (10th Cir. 2020); Alpenglow Botanicals, LLC v. United States, 894 F.3d 1187, 1201-1202 (10th Cir. 2018). -8-
[*8] To reflect the foregoing,
Decision will be entered for
respondent.