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Accounting and Tax Planning

Where There’s Smoke…

By Kristina Drzal Houghton, CPA, MST

 

Kristina Drzal Houghton

Kristina Drzal Houghton

The production and distribution of cannabis, once known to many only as marijuana, is the newest and most variegated industry in America. Some would even say it is one of the toughest industries in America in which to do business. This article will discuss a few unique challenges from a financial perspective faced by the industry.

The first complexity starts with the difference between cannabis and CBD. When you look at a cannabis plant and a hemp plant side by side, the plants themselves look identical to an untrained eye, making it a bit challenging to identify, as the real difference lies in the chemistry of the plants.

CBD can be extracted from hemp or marijuana. Hemp plants are cannabis plants that contain less than 0.3% THC (the compound that creates the ‘high’ sensation), while marijuana plants are cannabis plants that contain higher concentrations of THC. This article will refer to all products containing more than 0.3% THC as cannabis, while products with less will be referred to as CBD.

So, basically, the only difference from a scientific standpoint is the level of one chemical. However, things are much more complex from a legal and tax perspective. Under the 2018 Farm Bill, CBD and hemp are now legal, and not on the schedule I list of controlled narcotics right up there with heroin and LSD. In 2016, Massachusetts passed a law making all cannabis legal, and all but five other states have passed laws making it either fully legalized, decriminalized, or medically authorized. While cannabis is federally illegal, the Internal Revenue Service is perfectly willing to collect taxes on companies that handle the product.

Federal tax law is very punitive on the cannabis industry. Internal Revenue Code Section 280E is a very short part of the tax code (just one sentence) and states:

“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 is prohibited by federal law or the law of any state in which such trade or business is conducted.”

Under 280E, you’re not allowed any deductions or credits on your return, but you can deduct the cost of goods sold, as that is part of the definition of taxable income. A cannabis farm will only be allowed to allocate various costs, direct and indirect, into cost of goods sold and inventory. Section 280E will affect only cannabis entities. CBD companies, since they are legal, are allowed all normal business deductions and credits available to other non-cannabis companies. This provides many more opportunities to reduce taxable income to a hemp/CBD company.

It is not only the federal tax difference which significantly attributes to the disproportionate cost of cannabis versus CBD. Due to discrepancies between state and federal law, legal cannabis businesses are forced to operate almost entirely in cash, with very little access to financial services, since most banks are federally insured and therefore unable to establish accounts for this federally illegal business. This leaves thousands of dollars stored in backroom safes and transported in shoeboxes and backpacks, creating a prime target for crime. Another banking challenge that cannabis businesses regularly face is exorbitant monthly account fees, or banks that take a percentage of each deposit.

The industry faces many other challenges as well. For example, most states have a mandated ‘seed to sale’ software-tracking system that must be used and accurate (daily), and must be reconciled with POS (point of sale) systems and accounting systems. Additionally, because this is a new industry, many of the tools other industries use are simply not readily available, including a cannabis-tailored chart of accounts, QB POS systems, reliable inventory software, and common merchant service platforms.

There is an opportunity for dispensaries to separate some revenue streams outside of the cannabis division, meaning normal business deductions are allowed for the non-cannabis division. These might include clothing, paraphernalia, coffee, CBD, and other goods. While this is good news for the industry, it only creates even more complexities when allocating selling and administrative expenses.

A recent report from the U.S. Treasury inspector general for Tax Administration recommends increased audits by the IRS of cannabis businesses to identify potential non-filers and returns that are not 280E-compliant. For this as well as the above reasons, cannabis businesses need to find an accounting firm that really knows what it’s doing. The cannabis accountant has to not only understand Section 280E, but also know how to treat a business that deals strictly (and necessarily) in cash. Many cannabis companies have bad books because their bookkeepers do not understand the special accounting and therefore didn’t properly categorize expenses. It can be time-consuming to fix them.

So, while the many layers of regulatory control and reporting may be of utmost importance to those operating in the cannabis industry, overlooking the complexities in the finance area of the business can lead to the proverbial perfect storm — or the business going up in smoke.

 

Kristina Drzal Houghton, CPA, MST is a partner at the Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.

Retirement Planning

Separating Hype from Reality

By Ann I Weber, Esq.

Ann I Weber, Esq.

Ann I Weber, Esq.

Recent headlines read: “Estate Taxes Repealed for All But Mega Estates!” “Get Your Hot Dogs Here with a Complimentary Will and Trust!” and “Never Need Legal Work Again!”

Is all this true, hype, or misinformation?

All three, as it turns out. Yes, only ginormous estates, i.e., those in excess of $11,200,000 for an individual, will be subject to federal estate taxes. Yes, wills and trusts may become less expensive without technical drafting to minimize federal estate taxes. Hype because many people have estates that are subject to state estate taxes. In Massachusetts, any estate over $1 million is taxed from dollar one — and you can’t dodge that bullet by making deathbed gifts.

Hype also because many non-tax situations make an estate plan desirable or even crucial. Misinformation because, as noted below, changes and complications in families, businesses, and relationships are inevitable, and sometimes an estate plan can help your family to navigate through what might otherwise be turbulent times.

A estate plan is important because you still need to say where you want your property to go at your death. Without a will, absent a named beneficiary, your property will go where the Commonwealth says it will go. In many cases, that’s not what you may want. For example:

• You may want your surviving spouse to receive all of your assets. But unless you say so in a will, your estate will be divided among your spouse and your children based on formulas tied to whether some or all children are from your prior marriages, if any, and from the prior marriages, if any, of your current spouse.

• You may have individuals you wish to include who are not your ‘heirs at law.’ Under Massachusetts intestacy statutes, a parent, cousin, nephew, friend, or charity, among others, might not benefit from your estate unless specifically named.

• You may have minor children and want to delay their direct access to your estate. Many people want to defer the benefits that their minor children receive from their estate until the children reach specified ages. The Commonwealth provides only for outright distribution to estate beneficiaries age 18 or older. If such beneficiaries are under the age of 18, the court will appoint a guardian to manage these funds for the child. A will or a revocable living trust can create a trust providing for delayed distributions to the child while still allowing the trustee to use trust assets for the child’s benefit until that time.

• You may have children from a previous marriage. The Commonwealth provides formula benefits to current spouse and children whether from the current or prior marriages, and may not meet the particular needs of your family. A will or trust can tailor distributions to your children and spouse or provide that property allocated to your spouse pass to your children at such spouse’s death.

• You may have a parent you want to benefit. The intestate laws in Massachusetts do not provide benefits for a parent if a spouse or children survive you. A will or trust could include such provisions. If there is a possibility that a parent might require nursing-home care, a specially drafted trust can shelter trust assets from MassHealth claims. At the parent’s death, trust assets will pass according to your directions.

• You may have a special-needs beneficiary. If assets from your estate are distributed outright to a person who otherwise qualifies for state or federal benefits such as MassHealth, Supplemental Security Income, or VA benefits, for example, the receipt of these assets may cause an interruption in or cessation of benefits. Instead, you may want to consider directing these benefits to a special-needs trust which can hold such benefits without adversely impacting needs-based benefits.

• You may want to make gifts to charity. Massachusetts laws of intestacy do not provide for gifts to charities. Such gifts can be made via a will or trust or by naming a charity as a beneficiary of your bank, investment, or retirement account. If a charity is named as a beneficiary of your retirement fund, the gift will pass free of income taxes that would be payable by individual beneficiaries and will also pass free of estate taxes.

• You may want to consider a durable power of attorney to appoint someone to handle your financial affairs in the event of your disability. Durable powers of attorney can take effect immediately or upon your disability and, in the event of your disability, can avoid the need for a court-appointed guardian with all the attendant expense, publicity, and delays — and the choice of who handles your affairs is made by you rather than a judge.

• You may want to specify the type of medical treatment you do or do not want. The Commonwealth provides a standard-form healthcare proxy, available online, that can address these concerns about treatment and end-of-life care. If you have strong opinions regarding the administration (or lack thereof) of particular forms of treatment should you be terminally ill or injured, you may want to consider executing a living will.

Attorney Ann I. Weber is a partner with the Springfield-based law firm Shatz, Schwartz and Fentin, P.C., and concentrates her practice in the areas of estate-tax planning, estate administration, probate, and elder law. She has a particular interest in creative estate planning for authors, artists, farmers, and landowners, and she is a frequent author and speaker on issues regarding estate planning; (413) 737-1131; www.ssfpc.com

Retirement Planning

Life Lessons

Retirees say they are considerably less concerned than pre-retirees about their money lasting throughout retirement, but worry more about the financial and lifestyle implications of declining health, according to new research from MassMutual.

Retirees are confident that their retirement income will last as long as they live and that they will have enough money to meet their retirement lifestyle goals, with nine in 10 retirees saying they feel confident compared to roughly half of pre-retirees, according to the MassMutual Retirement Income Study. Pre-retirees worry most about not having enough money to enjoy themselves, four times more than retirees (28% versus 7%), who are most concerned about healthcare costs (29%).

“While we’re working, many of us think about retirement in terms of our leisure pursuits, a kind of permanent vacation that requires more disposable income,” said Tom Foster Jr., head of Retirement Plans Practice Management with MassMutual. “Retirees’ experience tells us that health concerns become increasingly prominent, especially as many retirees begin experiencing health issues and their subsequent costs.”

Overall, pre-retirees worry more than retirees about not having enough income in retirement (78% versus 51%), changes in Social Security benefits (81% versus 69%), and low interest rates hurting income (69% versus 57%), the study finds. When asked if their retirement income would last as long as they live, 91% of retirees and 56% of pre-retirees answered affirmatively.

Retirees’ confidence may stem from finding they need less income than many pre-retirees anticipate. Overall, 60% of pre-retirees expect to need at least two-thirds or more of their pre-retirement income to live comfortably in retirement, while 44% of retirees find that to be the case, according to the study. More than a third of pre-retirees believe they will need 75% or more of their pre-retirement income in retirement, while one-third of retirees report needing less than 50%.

“While many retirees can manage their expenses to lower income levels in retirement, the rising cost of care may steadily reduce their lifestyles as they age,” Foster said. “Once you’re older, it may be impossible to make up for any increasing income needs by simply tightening your belt. It’s far better to err on the side of having more rather than less income than you anticipate needing, especially as costs for care continue to escalate.”

The average 65-year-old couple could pay almost $490,000 in total health-related costs throughout retirement, according to HealthView Services, a software company that projects healthcare costs.

On the spending side of the ledger, 70% of pre-retirees anticipate spending less in retirement than they did in their working years, a proposition that does not always work out, the study finds. While half of retirees say they spend less, the rest find they spend about the same (41%) or more (8%).

Pre-retirees also are more inclined than retirees to say they wish they had started saving for retirement sooner. Eighty-four percent of pre-retirees would have started saving sooner compared to 55% of retirees, according to the study. Those sentiments were more likely to be expressed by those with assets of less than $250,000 or respondents who had siphoned money from their 401(k) or other retirement savings plan before retirement through a loan or withdrawal, or who suspended contributions.

The internet-based study was conducted on behalf of MassMutual by Greenwald & Associates and polled 801 retirees who have been retired for no more than 15 years and 804 pre-retirees within 15 years of retirement. Pre-retirees were required to have household incomes of at least $40,000, and retired respondents had at least $100,000 in investable assets and participated in making household financial decisions. The research was conducted in January 2018.

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