Does My International Cannabis Business Need to Pay U.S. Federal or State Taxes?

By Jonathan Bench, Attorney at Harris Bricken

We regularly field inquiries from international companies and existing international clients regarding U.S. cannabis business operations. This post and the two that follow will answer questions for foreign cannabis companies regarding when they need to pay U.S. federal and state income taxes, when they need to register a U.S. business entity, and what options are available to them to establish U.S.-based banking operations.

First, you need to recognize that your law firm will stay within its core area of expertise and focus on the legal requirements of your business rather than the execution of your tax obligations. You will want to engage a U.S.-based accounting firm to help with ensuring your tax filings are completed on time and accurately. This may mean you need to hire a CPA firm with international tax expertise and a local CPA firm where you do business in the U.S. Or you may want to hire one international CPA firm to deal with both your international and domestic tax obligations.

Many of our international cannabis clients have been very successful in their home countries and have started to engage in some U.S. sales. These sales may be accomplished directly from abroad to consumers, from abroad through brokers, or by directly engaging in U.S. business operations in country. Many of these companies understand the potential perils of the international cannabis trade and want to ensure they are exactly compliant to avoid any business or immigration issues for owners and employees.

U.S. Federal Income Tax

All U.S.-based income is initially subject to U.S. income tax unless an income tax treaty applies between the U.S. and a foreign company’s home country. If a tax treaty applies, then the foreign company can claim a reduction in U.S. federal income tax if the foreign company already paid income tax in the foreign company’s home country on that U.S.-based income. The U.S. has an income tax treaty with 68 countries, many of them dating back decades. You may be surprised at some of the countries on the list: Venezuela, Russia, Malta, Switzerland, and Cyprus, for example, and others that are not on the list: Singapore, Hong Kong, British Virgin Islands, Bermuda, Argentina, and Brazil.

Generally, as soon as an international cannabis company closes its first U.S. sale, it will incur some U.S. federal income tax obligations. If as an international cannabis company you want to continue to do business with the U.S., you will want to do everything possible to take advantage of income tax savings under an applicable income tax treaty, even if it means first setting up a new subsidiary in a country that has an income tax treaty in place with the U.S.

As an international business you can generally determine how you want to be taxed at the U.S. federal level. You should consult with legal and tax counsel to help you choose your optimal U.S. federal tax classification (c corporation, partnership (LLCs and partnerships), and sole proprietor (s corporation status is not available to international owners).

U.S. State Income Taxes and Related Taxes

U.S. state income taxes vary from state to state, and not all states honor the effect of an international income tax treaty. For instance, both California and New Jersey require payment of state income tax based on revenue from sales in their states even if a tax treaty with a foreign country exists at the U.S. federal level.

You will need to check the requirements of each state where you make sales to determine whether and when they require payments of income tax or a similar tax. For instance, Washington does not have a state income tax, but it has a gross receipts tax that is similarly based on sales within Washington. This means that the gross receipts tax is seen as outside the effect of an income tax treaty. See below:

States generally require sellers to collect and remit monthly or quarterly payments of sales tax that is collected on retail sales, so you want to ensure that you are collecting the appropriate amount of tax for each transaction.

None of these states requires a company or its U.S.-based brokers to collect sales tax from wholesale buyers because sales tax is only collected on retail sales. But international companies should collect and should require that their brokers collect a reseller permit from each wholesale buyer to keep in their tax records. The reseller permit does not need to be shown at each transaction but can be kept on file for the life of the buyer-seller relationship.

Many states also require an excise tax to be paid on marijuana (not hemp) transactions, which are not considered a sales tax.

Potential Immigration Issues with Engaging in a U.S. Marijuana Business

Lastly, I need to flag the issue of U.S. immigration for non-U.S. citizens who are somehow involved or thinking about getting involved in a U.S. cannabis marijuana business, whether from their home country or while you are in the U.S. My colleague Akshat Divatia wrote a cautionary blog post discussing how involvement could cause foreign individuals to have significant problems with USCIS (U.S. Citizenship and Immigration Services) and USCBP (U.S. Customs and Border Protection). In that post, Akshat wrote:

Even a foreign national who has never consumed marijuana could be declared inadmissible under the INA [Immigration and Nationality Act] based on his or her involvement in a [U.S.] legal cannabis [marijuana] business, either as ‘a knowing aider, abettor, assister, conspirator, or colluder with others’ or ‘an illicit trafficker’ of a controlled substance.

In short, if you are a non-U.S. citizen you want to participate in any way in a state-legal U.S marijuana business, and if you have any plans on entering the U.S., you should consult with an immigration attorney before you come to the U.S.

Further Questions to Ponder

As you are digesting this information, keep in mind the following questions:

Do you want to engage in business with the U.S. directly by becoming the seller? Or, do you want to form a new company in a country to take advantage of an income tax treaty?

• If you will be engaging directly in business with the U.S., how will that entity be taxed?
• How important is it to you to simplify your U.S. obligations, and would it be more beneficial to form a wholly-owned U.S. subsidiary company to simplify your U.S. state registrations, tax payments, and U.S. banking?

Stay tuned for upcoming posts in this series on U.S. banking for international cannabis businesses, and international cannabis registration requirements.

Re-published with the permission of Harris Bricken and The Canna Law Blog