Oregon Cannabis: How Many Retailers Will Close Due to Gov. Kotek’s New Tax Compliance Missive?

18 May Oregon Cannabis: How Many Retailers Will Close Due to Gov. Kotek’s New Tax Compliance Missive?

As reported by Sophie Peel of the Willamette Week, on May 16, Governor Kotek issued a directive to the OLCC to make state tax compliance a requirement for the agency to issue or renew cannabis retail licenses. This new tax policy is a direct result of the political fallout from the La Mota scandal, which led to the resignation of the Secretary of State, Shemia Fagan. This tax policy may have a huge impact on the Oregon marijuana industry and the changes are coming fast! As early as June 15, 2023 – for a temporary rule and a permanent rule by this fall.

How does the marijuana sales tax work?

Oregon is somewhat unique in that it only taxes marijuana at the point of sale to a retail customer. So producers, wholesalers, and processors don’t collect or pay sales tax. Instead, dispensaries collect up to a twenty percent sales tax (17 percent state + 3 percent local) for each marijuana item sold. The sales tax is typically, if not always, included in the advertised price and not added on at the register. It is invisible to the customer for all intents and purposes.

Here’s an easy example: A dispensary that has $1 million in sales owes $200,000 in sales taxes. When a dispensary collects the sales tax it holds the money in trust for the state. And later remits the collected sales tax to the Oregon Department of Revenue (“ODR”). The best practice is to silo the sales tax proceeds from other revenue. In practice, however, we see many retailers commingle their sales tax proceeds and fail to remit the appropriate amounts to the ODR. Sometimes we see dispensaries and their owners simply pocket the tax proceeds and fall into enormous arrears.  (This may be exactly what La Mota was doing – they owe at least $592,000 in unpaid taxes going back to 2016).

Thus far the OLCC has taken little or no action against dispensaries who fall into arrears on their sales tax remittances.

What is the new tax compliance policy?

The basic directive from Gov. Kotek is that dispensaries who aren’t paying their taxes can’t get their license renewed. No license = close up shop. Exactly how her directive will work in practice is unknown. What Gov. Kotek has done is tell the OLCC to get busy rulemaking. And busy they are. On May 16, the same day Gove. Kotek issued her directive, the Executive Director of the OLCC, Craig Prins, announced plans “to have draft language to the commission for a temporary rule by June 15 and to adopt a permanent rule by August or September.” Here’s a link to an FAQ that describes some of what the industry may see.

Why is the new tax compliance rule a big deal?

The ODR reports that about 9% of cannabis retailers haven’t fully paid their taxes. That may not seem like much, but we suspect this new tax compliance policy may have significant ramifications and lead to the closure of many dispensaries. According to sources at the OLCC, retailers will have to pay ALL state taxes – personal, employment, transit, point-of-sale, or be in payment plan in order to quality for a license renewal.

Does this mean investors/owners must prove they have paid all “personal” taxes? We don’t know. This seems drastic. And why would keeping current on employment and transit taxes be required for retail stores but not processors or producers or wholesalers? Or, for that matter, liquor stores and bars?

How will this tax compliance rule work across the variety of business structures found in the cannabis industry? We don’t know.

What happens if I can’t pay all of my taxes by my renewal date? We don’t know for sure, but the ODR FAQ (linked above) indicates that if a payment plan is in place at the time of renewal date then the business is compliant for purposes of renewal.

If one of my entities falls behind on taxes, can my other entities renew? We don’t know. Owners of multiple dispensaries typically set up different entities for each location (e.g. La Mota). If one commonly owned business is not compliant, will the OLCC refuse to renew every commonly-owned business? Wait and see.

What happens if I sell my business and prior to licensure let the buyer manage the business but they don’t pay the taxes? We have seen this many times in the past. Typically the ODR goes after the current owners and/or directors and/or officers, regardless of any services or management agreement or other contract that makes the buyer liable for tax remittances. I would not expect any changes here.

We can envision a lot of dispensaries running into trouble and potentially closing. Much depends on how the OLCC drafts and implements this rule and, possibly, the political developments in the meantime. Stay tuned for updates.