
James F. McDonough
Of Counsel
732-568-8360 jmcdonough@sh-law.comFirm Insights
Author: James F. McDonough
Date: August 20, 2015

Of Counsel
732-568-8360 jmcdonough@sh-law.com
According to Forbes, the decision is considered a financial setback for legal medical marijuana dispensaries because, with business deductions being disallowed, they must pay taxes on 100 percent of their gross income. The decision is a blow to dispensaries across the country that have flourished in states that voted to legalize the use of medicinal marijuana.
In the case of Olive V. Comm., the Ninth Circuit upheld the federal tax law to disallow tax deductions despite the legal status of dispensaries in California. According to Judge Susan Graber, the Court affirmed Sec. 280E of the federal tax code that denies deductions for the expenses of “trafficking in controlled substances.” The ruling stated that a medical marijuana dispensary cannot deduct expenses from taxable income because their only commercial product is a controlled substance prohibited by federal law. Despite the various services offered by the taxpayer in the case, the Court ruled that since marijuana sales were the only activity in which the taxpayer engaged in with the “intent of realizing a profit”, it was therefore a “trade or business” involved in trafficking a controlled substance, and thus not eligible for expense deduction.
The case involved Martin Olive, owner and operator of the Vapor Room in San Francisco, who appealed a Tax Court ruling to deny his business expense deductions. In the appeal, Olive argued that Sec. 280E’s use of the phrase “consists of” applied to the Vapor Room because it offered other services in addition to marijuana sales, thereby entitling the enterprise to expense deductions.
However, since these services were free, the Court ruled that all of the $655,000 in business expenses from the Vapor Room between 2004 and 2005 were disallowed. The Court also rejected Olive’s argument that the Vapor Room was entitled to deductions under Californians Helping to Alleviate Medical Problems, Inc. v. Comm, which allowed expense deductions related to sales of counseling and caregiving services. In that earlier case, the court held that section 280E does not preclude petitioner from deducting expenses attributable to a trade or business other than that of illegal trafficking in controlled substances simply because petitioner also is involved in the trafficking in a controlled substance. Judge Graber stated that the Vapor Room could not deduct any such expenses because the business did not charge for those services, and marijuana sales are not considered counseling and caregiving services.
Although the ruling bans tax deductions for enterprises with marijuana sales as their sole source of revenue, dispensaries are eligible for standard business expense deductions for additional products for sale. In an interview with the SF Gate, Olive’s lawyer Henry Wykowski noted that medical marijuana dispensaries can claim expenses from sales of other commercial products, including food and services. The difficulty will be apportioning business expenses between the permissible activities and the impermissible activity
“The decision will benefit dispensaries that sell a variety of products including those that are not cannabis,” explained Wykowski. “I don’t think it’s a blow to the industry at all.” However, the decision was not a “win.”
A recent ABA Journal article reported on the application by a marijuana trade group for a Colorado state credit union charter because banks were unwilling to accept cash deposits from dispensaries. It will be interesting to learn if that application is granted.
The topic of the use of medical marijuana is growing traction throughout the nation. As a business owner or as a user what are your thoughts on medical marijuana?
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

New Jersey residential developers with affordable housing obligations should carefully review their existing approvals, development agreements, and proposed deed restrictions in light of the State’s revised UHAC regulations (Uniform Housing Affordability Controls). The regulations, which took effect on November 6, 2025, significantly change the administration and physical requirements for affordable housing units. For developers with […]
Author: Wendy Rubinstein Quiroga

A “no comment” response is sometimes the right call when a legal problem arises. As a blanket policy, however, it lets allegations go unanswered, deadlines pass, evidence disappear, and manageable disputes grow into expensive litigation. The businesses that fare best are usually the ones that say little publicly while acting decisively behind the scenes. When […]
Author: Sean M. Pena

Utility-scale battery energy storage systems (BESS) are becoming an increasingly important component of the electric grid throughout New Jersey, New York, and Pennsylvania. As renewable generation expands, electricity demand increases and grid operators seek greater flexibility, battery storage can help balance supply and demand while providing additional capacity and reliability. For developers, battery storage presents […]
Author: Nicholas Wall

A falling out between partners can be disastrous for any business. In many cases, the partnership will not survive. If you are in an unworkable situation with your partners, it may be time to consult a partnership dispute lawyer experienced in handling partnership breakups and dissolutions before the situation deteriorates any further. It is easy […]
Author: Jay McDaniel

When a company enters Chapter 11 bankruptcy, many assume the process will culminate in a lengthy reorganization plan. However, distressed businesses are increasingly being sold through a different mechanism — a sale under Section 363 of the United States Bankruptcy Code. A Section 363 sale allows a company, as a debtor-in-possession in bankruptcy, to sell […]
Author: John D. Giampolo

Before buying property, it is critical to determine whether local zoning laws may affect your plans. If you plan to redevelop the property, you will want to confirm that local zoning regulations permit development as intended. If acquiring property that is already developed, you must verify that the use is permitted in the underlying zoning […]
Author: Wendy Rubinstein Quiroga
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!