For decades, the cannabis industry has operated under the shadow of Section 280E of the Internal Revenue Code. Enacted in 1982, this provision essentially taxes cannabis businesses on their gross income by prohibiting the deduction of “ordinary and necessary” business expenses (e.g. rent, payroll, marketing, and professional services) if the company deals in Schedule I or II controlled substances. For many operators, this resulted in effective federal tax rates as high as 70% or 80%.
The April 2026 Department of Justice Final Order, which moved state-licensed medical cannabis and FDA approved cannabis products to Schedule III, was seen as a sliver of light at the end of this tunnel. While this reclassification theoretically liberates medical operators from 280E, it has created a complex two-tier reality. Recreational businesses and dual-licensed operators often remain in legal limbo, waiting for further administrative clarity.
In this transition, some operators have moved to capitalize on the shift by filing amended returns for prior years, betting that the administrative acknowledgment of medical efficacy can be applied retroactively. However, the IRS has made it clear that it does not view this transition as a license to rewrite history.
The federal government’s recent posture is perhaps best illustrated by the ongoing litigation against multi-state operator (MSO) TerrAscend USA. The Department of Justice’s Tax Litigation Branch has filed suit in the U.S. District Court for New Jersey, demanding the return of an $8.36 million tax refund issued to the company in June 2024.
The dispute centers on TerrAscend’s decision to file an amended return for the 2020 tax year, during which it claimed standard business deductions that were, at the time, strictly prohibited under 280E. The DOJ is arguing that because cannabis remained a Schedule I substance throughout 2020, the company was fundamentally unauthorized to take those deductions.
This case is becoming a pivotal “battle line” for the entire industry. By aggressively pursuing this clawback, the IRS is signaling that it views the estimated $1.6 billion in collective industry 280E back-taxes as fully collectible. For MSOs and independent operators alike, the TerrAscend case serves as a stark reminder that speculative tax strategies attempting to “game” the rescheduling timeline will be met with rigorous federal enforcement, regardless of current policy shifts.
As the IRS continues to scrutinize tax positions, the importance of “Cost of Goods Sold” (COGS), the only deduction consistently permissible under 280E, has never been higher. When auditors challenge a company’s tax filings, they aren’t just looking at the bottom line; they are examining the allocation of costs between production and administrative activity.
This is where 3rd party, unbiased wholesale price reporting becomes a critical defensive asset. Without reliable, independent benchmarks, operators are forced to defend their internal valuations against IRS auditors who rely on their own broad, often generalized market data. By using standardized, forensic-grade wholesale price reports, companies can objectively substantiate their COGS calculations.
Independent market data allows an operator to prove that their inventory valuation isn’t a creative accounting maneuver, but rather a reflection of transparent regional market forces. Whether you are dealing with harvest season price volatility or state-specific regulatory surcharges, having a verified, objective baseline for commodity pricing provides the evidentiary support needed to survive an audit. Learn more about our Litigation Support Desk and forensic pricing methodologies
The IRS is moving beyond simple audit-and-penalize cycles; it is establishing a clear precedent that the “Schedule III era” does not grant amnesty for past year aggressive tax positioning. Companies that built their corporate structures, and their tax strategies, solely to exploit 280E loopholes are finding that those foundations are increasingly brittle.
Moving forward, the goal for any operator should be moving from “tax survival” to “business planning.” This requires a shift away from defensive, highly aggressive tax strategies and toward a model built on transparency and verifiable data. As the regulatory landscape continues to evolve, operators who rely on objective, market-indexed evidence will be the ones best positioned to handle federal scrutiny, ensuring that their financial records can withstand the transition to a post-280E world.