Licensed cannabis companies pay more than their fair share of taxes thanks to the business deduction restrictions placed on them by IRS Tax Code Section 280E. That tax law prevents cannabis producers from taking any deduction or credit unrelated to the cost of goods sold (COGS). With some well-thought-out corporate structure, however, cannabis cultivators can find ways to reduce their overall tax burden.

The Research and Development (R&D) Tax Credit is one such vehicle that potentially is available to cultivators, according to Jonathan Storper and Daren Shaver, attorneys with California-based Hanson Bridgett.

“What the R&D credit is designed to do is reward innovation and problem-solving. And there's really no industry limitation,” Shaver tells Cannabis Business Times and Hemp Grower. “Any business that is eliminating technical uncertainty in the development of products or experimenting and relying on science to really develop a product [is] a very good candidate for an R&D credit.”

Expenses relating to breeding programs, equipment modification and/or design, and developing novel or innovative consumer products can all be used to apply for an R&D tax credit, the attorneys say, as long as the corporate structure separates the plant-touching business from the R&D business. “The corporate structure is extremely important in this kind of thing,” Storper stresses.

Having multiple corporate entities is not new to the cannabis industry and is highly common in other industries. For example, some cannabis companies have created separate corporate entities under which real estate assets are held. That real estate company, which leases the property to the cultivation operation, can then take deductions (as it is a federally legal business) that would not have been available if the cultivation operation held those assets. Thus, that structure lowers the overall tax burden for the cultivation business.

The same idea applies to the R&D credit, the attorneys say.

“The better approach for somebody who's looking to take the R&D credit is to achieve as much separation [between companies] as possible,” Shaver says.

Easier Path for Hemp Companies

Hemp cultivation companies have an easier path to applying for and receiving these R&D tax credits since hemp cultivation is legal at the federal level and 280E has not applied since the 2019 tax year.

However, Storper and Shaver both emphasize the importance of excellent bookkeeping to keep track of what qualifies as an R&D expense and what does not. “Recordkeeping becomes very important on something like this. … Bifurcating expenses between good R&D expenses and otherwise is very important,” Shaver says.

For example, if a hemp (or cannabis) company has an employee whose sole job is to oversee and conduct research and analysis, that employee’s salary could be used in applying for an R&D tax credit, Shaver explains. If that employee is a part-time researcher, then the company should keep track of how much of that employee’s time is spent on R&D and only use that portion of the employee’s salary when applying for the credit.

Costs for supplies and equipment also can be eligible as long as the research being done is science-based. “I don't think throwing some extra fertilizer, for example, would be enough [to qualify for an R&D credit],” Shaver says.

If cannabis and hemp cultivators structure their corporate entities correctly and apply proper due diligence in tracking expenses, the IRS is more likely to grant the credit, especially if the research has benefits outside of the cannabis industry (e.g. a new way to emulsify cannabinoids (hydrophobic compounds) into water would have applications to the entire beverage and supplement industry). With that in mind, they advised companies interested in applying for R&D credits take the time to plan out their efforts early in the tax year. “It's always better to do early planning than try to look back and ask for forgiveness,” Storper says.

Anyone looking to leverage the R&D tax credit also should consult with their legal and accounting team, they say, to ensure the corporations are properly structured and separated.

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