WE ARE ONE STEP CLOSER TO THE SUPREME COURT
On November 6th, we filed a petition with the Supreme Court to hear whether expressly state legal cannabis violates the CSA and whether Section 280E is unconstitutional. A very important second step is for the Government (through the Solicitor General) to respond to the Petition. The Justices never grant a petition without a response. Most of the time the Solicitor General "waives" response - which is code to the Justices that there's "nothing to see here, move on". To get a government response to a Petition is exceptional. Thus, it is an important second step. Without it, we lose.
Today, Acting Solicitor General, Jeffery B. Wall, filed with the Supreme Court a request asking for an additional thirty days to file his response to the Standing Akimbo Petition. The importance of this motion is that the Government states it intends to file a response. You can see the request here. https://www.supremecourt.gov/DocketPDF/20/20-645/162996/20201208113820061_Extension%20Letter%2020-645.pdf I feel confident that we are accomplishing this second step.
Jim Thorburn
...moreTenth Circuit Rules that State Legal Marijuana Violates Federal Law
Dear Clients and Colleagues:
Today the Tenth Circuit Court of Appeals issued its published decision in Standing Akimbo v. United States. The decision is located here.
It is a 39-page decision. There is a lot of complexity but it is generally unfavorable to the marijuana industry and the Colorado laws and constitution supporting marijuana. Here are some bullet points from the decision:
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The State of Colorado is bound by this decision. While the State of Colorado, did not answer or defend, the Tenth Circuit Determined that the State was nevertheless a party sufficient to be bound by this decision.
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While the Tenth Circuit stopped short of actually declaring the Colorado laws invalid under preemption, it made clear that Colorado was violating federal law. The Court stated: “[T]he CSA reigns supreme. . . The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. . . [S]tate legalization of marijuana cannot overcome federal law. . . So, despite legally operating under Colorado law . . .” such persons are conducting “unlawful activities” under federal law.
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The Tenth Circuit reaffirmed its posit
JEFF SESSIONS AND 280E DEFENSE
Dear NCIA friends:
As we embark upon 2018, Thorburn Walker continues to be at the forefront of cannabis tax defense. It was disappointing, but not unexpected, that Jeff Sessions would rescind the Cole and Ogden Memos. However, it was this possibility that kept us moving in aggressively defending IRS audits of cannabis clients.
Jeff Sessions is giving the green light to cannabis prosecution. Whether or not they will occur remains uncertain. Regardless, given the dual nature of IRS 280E audits, it is important to protect your rights. The cold, hard, truth of Section 280E is that it applies only to persons who are operating in violation of drug laws. In the IRS’s view of the statute, those who sell cannabis are violating federal criminal drug laws and, thus, Section 280E applies.
We believe that the IRS has been sharing audit information the Department of Justice. The IRS denies this is occurring. What we do know from our court cases, however, is that the IRS/DOJ is zealously defending their ability to share audit information. Given that DOJ is one step closer to actual prosecutions, this potential for sharing becomes even mo...more
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