Marijuana Tax: An Unintended Consequence of 280E – Fragmenting the Industry?

Premise: A fragmented industry is harder to supervise and regulate.

Here’s what may be a counterproductive incentive of 280E. Say Mom and Pop operate a marijuana business:

Mom and Pop MJ
Gross receipts	100
COGS	-60
Other expenses	-20
Actual pretax income	20
Federal tax base	40
Federal tax at 35%	14
After tax profit	6

They find an opportunity to expand their business that costs 30 and yields net pre-tax income of 40 by doubling CGS to 120 and doubling gross receipts to 200.

Mom and Pop MJ doubles
Gross receipts	200
COGS	-120
Other expenses	-50
Actual pretax income	30
Federal tax base	80
Federal tax at 35%	28
After tax profit	2

After taxes, they are worse off. So they won’t expand. [Is this a real case or just a theoretical sport case? This example proves my point only if the second 40 of net pre-tax income costs more to earn than the first 40.]

The public policy problem is that section 280E tends to fragment the industry. Instead of one supplier, 280E creates an incentive for there to be two suppliers – each more profitable after tax than one expanded supplier.

By contrast, this disincentive does not happen if Mom and Pop operate a legal business:

Mom and Pop Legal business
Gross receipts	100
COGS	-60
Other expenses	-20
Actual pretax income	20
Federal tax base	20
Federal tax at 35%	7
After tax profit	13

Let’s say they, too, find an opportunity to expand their business that costs 30 and yields net pre-tax income of 40 by doubling CGS to 120 and doubling gross receipts to 200. Absent taxes, the marginal revenue exceeds the marginal cost, so they would do the deal.[1] Taxes don’t change the result.

Mom and Pop Legal business doubles
Gross receipts	200
COGS	-120
Other expenses	-50
Actual pretax income	30
Federal tax base	30
Federal tax at 35%	10.5
After tax profit	19.5