Growers pay federal cannabis tax under the MORE Act

Who would pay the federal cannabis tax under the proposed MORE Act?  I was talking today with a sophisticated private sector marijuana guy, who thought it was a retail tax. But no. It’s a grower tax.

The MORE Act says:

(1) IN GENERAL.—Section 5701 of the Internal Revenue Code of 1986 is amended by redesignating subsection (h) as subsection (i) and by inserting after subsection (g) the following new subsection:

“(h) CANNABIS PRODUCTS.—On cannabis products, manufactured in or imported into the United States, there shall be imposed a tax equal to 5 percent of the price for which sold.”.

And:

“(r) MANUFACTURER OF CANNABIS PRODUCTS.—

“(1) IN GENERAL.—Any person who plants, cultivates, harvests, produces, manufactures, compounds, converts, processes, prepares, or packages any cannabis product shall be treated as a manufacturer of cannabis products (and as manufacturing such cannabis product).

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Section 5703 identifies the taxpayer under 5701 as amended. It’s the manufacturer. Since the MORE Act says the grower is a manufacturer, the first one in the supply chain, the grower pays the new tax.

(a)Liability for tax

(1)Original liability

The manufacturer or importer of tobacco products and cigarette papers and tubes shall be liable for the taxes imposed thereon by section 5701.

Auctioning marijuana licenses — for a share of future revenue

Lotteries and “on the merits” selection of marijuana license holders are not working well. A 2015 RAND report, Considering Marijuana Legalization: Insights for Vermont and Other Jurisdictions, suggested auctions.  

But there’s a killer problem:  “Auctions ordinarily favor well-capitalized bidders (e.g., existing businesses), which can pay in all events, without depending on results. This favors favor bidders with wealth—with risk capital. So auctions are regressive in their allocation of a state-owned intangible asset.”

That problem could be addressed by having bidders bid not in dollar amounts, but in percentage of revenue they will pay as a license fee – an ad valorem tax by another name.  The fee would be paid after a year’s business is done, so undercapitalized and social equity licensees would not have to come up with money up front.

India is implementing this kind of “revenue share” auction for state-owned coal assets::

“Coal mines will be put for auction on the basis of revenue share instead of the regime of fixed rupee/tonne.

“The Cabinet Committee on Economic Affairs, chaired by Prime Minister Narendra Modi, has approved the methodology, the Coal Ministry said in a release.

“‘This methodology provides that bid parameter will be revenue share. The bidders would be required to bid for a percentage share of revenue payable to the Government. The floor price shall be 4 per cent of the revenue share.

“”Bids would be accepted in multiples of 0.5 per cent of the revenue share till the percentage of revenue share is up to 10 per cent and thereafter bids would be accepted in multiples of 0.25 per cent of the revenue share,’ the release said.”

For cannabis licenses, a lot of thinking would have to be done.  Maybe government would allocate licenses to the high bidders in percentage terms.  No one would be disqualified, but government could decide when to stop issuing licenses on the basis of predicting how much various bidders could in fact sell.

Here are excerpts from RAND-Vermont:

Bidding for permanent licenses is likely, from the state’s perspective, to leave money on the table. As the nascent marijuana industry struggles to outperform the black market, entrants are unlikely to amass and risk the capital necessary to pay for the present value of future rents from a permanent marijuana license. That is, given uncertainty, firms would deeply discount the prospective profits from the out-years. Taxation can make up for that shortcoming by taking up economic rents as they materialize. But proceeds of a one-time auction for permanent rights would bring in a disproportionate amount of revenue up front and could help pay for the cost of setting up legalization.

Instead of permanent licenses, annual licenses could be auctioned. (Auctions could sell off licenses for any number of years; we consider one year as an example.) A series of annual auctions might, like nimble taxes, yield increasing revenue over time. As the cost of producing marijuana drops, the privilege of selling it legally in a restricted market increases in value. With annual auctions, the state might take at least some of the increasing value of that privilege. If so, winners’ payments to the state would increase their costs of production, which might help prevent an unfortunate price collapse. 

The state could set a year’s quantity target for quotas based on prior volume (or, for the first year, on an estimate of likely first-year consumer demand). Several types of auctions are available (Klemperer, 1999). If the state seeks to avoid market concentration, it could limit producers to a certain percentage of the total quota. Related-party rules would be needed to enforce that kind of limitation. This gets back to the issues surrounding supply architectures in Chapter Four. 

The winner of an annual auction has no guarantee of renewal. That uncertainty might keep bids low and might keep potential entrants out of the market. Indoor marijuana production, in particular, would seem to be benefit from long-term investment. Typical investments in real property and in plant and equipment with a useful life beyond one year would be thrown into turmoil by the prospect of nonrenewal. Outdoor growers, whose operations are less capital-intensive, might be less daunted by the risk of nonrenewal. Annual licenses, perhaps more than any other allocation mechanism, could work against incumbent marijuana businesses. That would be a positive feature if government wants to disfavor entrenched incumbency in the marijuana industry. As Caulkins, Hawken, Kilmer, and Kleiman (2012) noted, “[O]nce business interests get entrenched in an industry, toughening the laws related to that industry becomes more difficult. . . . Private interests prioritize profit, not public health or public safety” (p. 245). 

2020 Initiative Marijuana Tax Ranking — Arizona Comes in Last

Who wins the marijuana tax booby prize this year?

In 2012, State Tax Notes published a ranking of marijuana tax proposals, with Washington and Colorado, which were enacted, ranked 1 and 2, ahead of Oregon, which lost – the booby prize winner of the proposals that made it to the ballot (but fourth out of six total). http://www.taxhistory.org/www/features.nsf/Articles/0E07F737211351A485257AA900532EEA?OpenDocument

About Oregon’s proposal, I wrote, “The only hope for Measure 80 is that Oregon law allows the legislature to fix it.”  Measure 80 failed, but Oregon came back with a better plan in 2014, which passed.

About Washington’s I-502, I wrote, “It’s not just this year’s best. It’s the strongest marijuana revenue plan American voters have ever seen.”

No such luck this year. 

This year, four proposals are on the table:  Arizona, Montana, New Jersey, and South Dakota.

All impose only primitive ad valorem (percentage of price) taxes.  All will see tax per unit of THC decline, as prices decline over time. (Revenue will go up so long as sales increase in dollar terms, but price taxes leave money on the table.) New Jersey’s seems weakest on the surface, with the tax at only the standard state sales tax rate, while the others vary between 15 and 20 percent.  But New Jersey contemplates new taxes, to be added by the Legislature, so it’s hard to rank low.

Little variations in rates aren’t much to hang your hat on.  This year’s weakest structure is in Arizona, which ties the hands of future Legislatures at rates below Washington’s black market-beating 43.5 percent (37 percent excise plus 6.5 percent standard sales tax)  —  plus local taxes.

Here’s some of the Arizona proposal:

RETAIL CLASSIFICATION AND USE TAX.

B. EXCEPT AS PROVIDED IN SUBSECTION A OF THIS SECTION AND SECTION 42-5452 , THIS STATE AND LOCALITIES MAY NOT LEVY OR COLLECT ADDITIONAL TAXES OF ANY KIND ON THE SALE OF MARIJUANA OR MARIJUANA PRODUCTS.

Not only that, the proposal caps future taxes in light of possible federal legalization:

IF THE UNITED STATES LEVIES AND COLLECTS AN EXCISE TAX ON MARIJUANA AND MARIJUANA PRODUCTS, THE AGGREGATE OF FEDERAL AND STATE EXCISE TAXES SHALL NOT EXCEED A RATE OF THIRTY PERCENT OF THE PRICE OF THE MARIJUANA OR MARIJUANA PRODUCT SOLD, AND THE TAX LEVIED AND IMPOSED PURSUANT TO SUBSECTION A OF THIS SECTION SHALL BE LOWERED ACCORDINGLY AND AUTOMATICALLY ON THE EFFECTIVE DATE OF THE FEDERAL EXCISE TAX. 

Looks like industry prevailed in Arizona.  It’s not clear how the Arizona tax cap would work if the federal marijuana tax is based on weight or THC.  

The other three states don’t have tax structures to brag about, but they leave Arizona in the desert dust. Maybe Arizona is desperate enough for legalization that this flimsy tax structure will bind it for years.

Problems with the MORE Act

The MORE Act legalizing marijuana is supposed to be voted on by the U.S. House in the lame duck session. It has lots of issues, political and substantive.

Three non-tax issues, first; then three tax issues.

Without nationwide testing and packaging standards, states will race to the bottom, as they have with hemp, and whichever states have the loosest standards will see their industry flourish.  Some states don’t want to be in that race to the bottom.

2. Interstate commerce will will wipe out growers in most states other than California and Oregon.  The once-prominent STATES Act would go the other way, and let states protect growers from imports.  Interstate commerce is a killer defect for some growers. Maybe all, if low-cost imports from South America come in.   

3. interstate commerce will bring a quick end to experimentation with regulatory models, experimentation we desperately need.  Even Canada is struggling with getting the details right.  Take taxation, for instance.  There is nowhere near a consensus on what to tax (the tax base:  weight? THC? ad valorem?), let alone where to collect and how much to tax. I.  280E repeal

Now some tax issues:

Continue reading “Problems with the MORE Act”

Marijuana Grow Quotas

At the moment when marijuana is legalized, demand for growing licenses or quotas will exceed supply, right?

At some point, someone will have to say who gets them.  Who will say?  And how?  

And once the decider decides, what appeals will be allowed?  If appeals are allowed, to whom?

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FDR’s wealth sharing in the tobacco program said government agents decided, and no appeals were allowed.

It’s not a model to follow, but a proof of concept. 

Allocating grow quotas on the basis of claimed prior acreage might not withstand the modern version of Due Process, and anyway, we don’t have a class to favor on that basis..

“Prosperity Road: the New Deal, tobacco, and North Carolina,” by Anthony J. Badger, describes the process.

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Late 1933 into 1934:

Growers had to vote the program in every year.  It based quotas on a rolling average production history. County agents took farmers’ reports of historic production of tobacco.

So the government’s agents had to evaluate whether claims of historic growing were exaggerated.

“[M]ost growers overestimated.” P91 County agents negotiated and adjusted amounts allowed. “Few were able to bring the production records that might have solved the problem.” 91

One practice, by at least one agent, was to list allotments publicly in local stores “and inviting neighbors secretly to inform him in their neighbors were overestimating.”

Once quotas were allocated, “It was a troublesome and time consuming task to measure some 500,000 fields in the cotton and tobacco counties of North Carolina. In a tobacco county like Nash or Pitt as many as ninety compliance supervisors were employed.” 92

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Production during the years 1931-33 was to be the base for tobacco allotments.

Nonsigning farmers got no payments, and paid a tax of 25 percent on their tobacco sales. That rate was chosen by the U.S. Secretary of Agriculture. p 73

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Digital technology ought to facilitate sharing the wealth — instead of among farmers, among registered voters, say.

NC Senate candidate’s marijuana-biz texting partner irritates California activist

Being in the marijuana revenue policy business, I subscribe to a California marijuana newsletter put out by Brett Stone, an activist who has provided me (and others) a lot of useful information over the years.

Here’s an opinion piece he just posted about the North Carolina Senate race, with the title “DPFCA_NEWS: California cannabis strategist Arlene Guzman Todd caught up in NC Democratic Senate candidate sexting and sexual relationship scandal – claims ‘He knows (that I) can tank his campaign.’”:

“Passing along an item that might be of interest to some readers on the list. News reports are that a LA based cannabis marketing and public relations executive, Arlene Guzman Todd who works for Potnt (website @ https://www.potnt.com/about-us/our-team/ ) where she is listed as a management team member is involved in a sexting and sexual relationship scandal with the Democratic candidate for US Senator in North Carolina. She works with a few well known cannabis businesses. Their clients include HelloMD and Jim McAlpine of 420 Games.

“I wonder how a cannabis business can continue to do business with Potnt knowing that one of their employees, Arlene Guzman Todd, is threatening to take down the campaign of the democratic challenger for US Senator in North Carolina, one of the tightest and most watched races currently with the democrats having a real shot at replacing a republican senator unless this scandal creates problems so close to the election. Has anyone ever heard of this woman or done business with her? 

“Story is making a lot of noise in North Carolina but not a peep here in California or Los Angeles where she is based and lives so I put together a few articles for those who may be interested in reading about it. IMO she is a snake in the grass, no pun intended. 

“Some of the articles have been updated with some headlines changed but the information is still there. They say the greatest disinfectant is sunlight so here’s some sunshine for you Ms. Todd.”

[He attached easy-to-find articles from News & Observer, and AP.]

But I wonder if a boycott might not drive her to sabotage the campaign (as she has reportedly threatened to do).  That is, if supporters of the Democratic candidate in North Carolina go against her, she might retaliate.  Just wondering – I have no idea.   But then how could she retaliate and harm Cunningham further? Posting photos? That would make her seem small, I think. She can hardly retaliate against Cunningham at this point, I think.

A typical boycott aims to change the behavior of the boycottee going forward. What change in Ms. Todd’s behavior might this boycott encourage? I’m not sure what she could do at this point to make it right.

Book income and Swift’s swaggering stud tax

Book income tax is a tax on enterprises who tell people they are profitable.  That’s worth something.  Cost of enforcement is negligible. Maybe taxpayers will stop seeing overstating earnings as a costfree ploy.

A nominal or low tax on book income, in addition to the standard income tax, corresponds to Jonathan Swift’s notion in Gulliver’s Travels:

When it came to “Ways and Means of raising Money,” in Part 3 of Gulliver’s Travels, among other things, Jonathan Swift suggested, instead of juries, letting the taxpayer himself assess tax, on the honor system. Here’s one example: the “highest Tax was upon Men who are the greatest Favourites of the other Sex, and the Assessments, according to the Number and Nature of the Favours they have received; for which, they are allowed to be their own Vouchers.” Decode the olde English, and you’ve got a tax on either promiscuity or boastful lies about sex — a “Swaggering Stud” tax.

https://www.huffpost.com/entry/taxes-cannabis-gulliver-j_b_7761696

So corporations are either profitable to benefit of shareholders or they’re exaggerating. Either way, a tax seems OK. Adjust the regular tax rate down if people want.

If you follow Swift, book income should be a free-standing tax, not an alternative alternative minimum tax.

Marijuana monopoly = Small government

Government marijuana monopoly makes government’s slush fund tiny. Passing out licenses makes it enormous.

So, ironically, government monopoly marijuana retailing keeps government power down, which libertarians should applaud.

Yes, government monopoly marijuana retailing is less efficient, to the detriment of consumers, but many are willing to take less-than-perfect-competition as part of a deal where they stop being arrested.

Government monopoly marijuana retailing is uniquely positioned for temptation goods where some folks want to slow them down. You may call them control freaks, but they vote. Other industries should stay private, especially restaurants, groceries, and farms, as the Soviet experience has shown. For those businesses, and for businesses like them, there’s no plausible argument for limiting licenses.

Trump’s taxes

Hearing how little taxes Trump paid, Trumpistas don’t say, “Who cares?”  They say, “Bravo.”  Yet another middle finger to the Establishment and the dreaded Giant of the federal government. 

Anti-Trumpers, disappointed that they have so far found no Smoking Gun of tax evasion (which is illegal), but only exploitive-but-maybe-legal tax avoidance, still detect moral failure on Trump’s part.  Not a good citizen, Cadet Bone-Spurs-style.

Tax people may see something else – incompetence.  A meme of tax practice is the client so intent on avoiding taxes that he distorts his businesses and makes bad decisions.  Yes, taxpayers can zero out of tax obligations if that’s their goal, but that’s a weird and self-defeating goal.  Here’s an analogy: In the marijuana biz, growers can distort plant chemistry to achieve ultra-high percentages of THC content, but to the detriment of the plant – like a muscle-bound athlete who overdoes it.  And to the detriment of the smoker, who misses out on other cannabinoids and on terpenes — the whole Entourage Effect — lost in the quest for the wrong goal.  

So maybe Trump tried so hard to beat taxes that he caused himself actual business harm – and real losses, rather than manufactured ones.

Taxing Advertising

Tax Code section 280E denies tax deductions for advertising marijuana.  That rule tends to promote public health, and to keep the noise down on branding and promotion. Similar rules for alcohol, tobacco, and direct-to-consumer pharmaceutical ads have been suggested, too.

Denying tax deductions for advertising expenses is not a new and fresh idea.  Google “25 Years of Initiatives to Tax Advertising” for a link to the document from the Association of National Advertisers.  Even standard advertising of non-temptation goods tends to have a useful life of over a year (I still remember cola jingles from my youth).  So amortization of all advertising expenses might make sense.

Who gets marijuana licenses?

There are various ways of dealing with excess applicants for marijuana licenses, like holding a lottery, as Washington state did; selling licenses to the high bidder, as colonial India did in the 1800s; or, as the Roosevelt Administration did in 1933, considering each application on its merits and deciding yes or no for each application.  Voucher privatization, where each voter gets a transferrable fraction of the overall quota, may seem far-fetched, but it may be worth a look in Theoryland.

Marijuana licensing “on the merits” leads to disappointed applicants.  At best, merit selection (in the USA) has led to an enormous amount of energy going into appeals and litigation.  At worst, it’s corrupt crony capitalism.

Even lotteries require threshold qualification, whose denial can engender appeals and litigation.  Social equity licensing adds more complexity if not uncertainty.

The Merits in the 1930s

Continue reading “Who gets marijuana licenses?”

RBG and Marty

One good thing about being in the tax policy business in D.C. in the 198os was meeting brilliant people, like Marty Ginsburg, tax professor and lawyer, who came to Capitol Hill from time to time to talk about legislation (though not in my area). I once met his wife, at a party, when she was a circuit court judge.

RBG was extraordinary, but Marty was, too. He was at the top of the tax law heap.

Let’s Ban Marijuana Imports

If the federal government legalizes marijuana, would trade treaties require us to allow imports? Would keeping the feeble Narcotics Conventions in place help?

When initiatives passed, we winked at the treaties and said, “It’s the States that are in violation, not the treaty signatory – not ‘US.’”

Maybe the STATES Act – allowing states to ban imports — would give us that same kind of federalism argument, and show that we’re willing to take our own medicine. The balance was tilted toward globalism for so long. . .

There’s a public health and safety concern, and concerns about laborers and the planet. Banning imports addresses those concerns, too — as well as keeping the wealth here.

Social equity marijuana licenses — fool’s gold?

Social equity licenses have started to seem like fool’s gold to me.

They are a new and fresh idea, with no successful precedent I have found.  (Let me know:  po@newrevenue.org.)

Don’t cite standard preferences or set-asides that unlike social equity licenses can deliver protected and sure benefits.  A requirement that a contractor employ X% minority subcontractors delivers a non-contingent benefit to the minority subcontractor who gets the plumbing subcontract on a construction project.  Good business is guaranteed.  Similarly, an assignment of electromagnetic spectrum delivers a benefit that no one can take away – and that the holder can profit from in all events.  

But a license to sell cannabis – in a general pool where other sellers are well-funded capitalists, often with experience in other states or Canada – may turn out to be worth less than nothing.  I was on a panel for Connecticut state government where a woman spoke of Minority Marijuana Millionaires that social equity licenses would create.  Well, I think John Boehner is doing just fine, and there are plenty of millionaires, but I’m looking for a list of millionaires who were casualties of the War on Drugs. Governments are throwing money at social equity licensees, with training, mentors, loans, etc.  Maybe that will work.  For now, though, the lucky applicants for social equity licenses may be the ones whose applications get rejected.

But a new iteration of social equity licensing is emerging:  ring-fencing opportunities so that only social equity licensees get them.  Massachusetts has started this, with delivery licenses – no competition from wealthy folks (unless they pass themselves off as social equity licensees, or are the real parties in interest – a pattern all too familiar – “Falsely claiming disadvantaged business status, or using sham subcontractors or other structures to circumvent small business, minority/women-owned business, or service-disabled veteran-owned business programs”).

The Massachusetts plan may well cause casualties of the War on Drugs to prosper – though maybe some will lose their shirts.  But ring-fencing seems like a better plan that putting social equity licensees in the general pool with the sharks.

Still, will it work?  In Colombia, “regulations require that cannabis companies purchase 10% of their raw material from small- or medium-sized cultivating communities . . .  However, this approach has not delivered the expected outcome either.” 

Picking winners to profit seems like Crony Capitalism, but nobly, with a heart.  But if it doesn’t produce winners, it’s not good.  And making different people wealthy may not be the goal to seek. 

Rather than try to create huge profits for a few, government stores or high taxes would fund programs for the general good.  

Making a Carbon Tax Work — BTAs

Marijuana is only the second most interesting field of tax policy today.

BTAs for carbon excise taxes top it.

When we tax carbon emissions, we can tax our industry, but not foreign industry.  BUT we can put on Border Tax Adjustments.  Say a U.S. luxury automobile incurred $15,000 worth of carbon tax.  We can tax its competitor vehicles.  But no one knows how to.  We did tax have BTAs for our chlorofluorocarbon or Ozone Depleting Chemicals tax, very specific ones, in currency per weight by category.

https://newrevenue.org/2017/10/03/border-tax-adjustments-for-carbon-taxes-the-odc-model/

So it can be done.

But for now, no carbon tax.