US solicitor general's office at Justice Department. Credit: Mike Scarcella / ALM

The U.S. Supreme Court has been reluctant to step into conflicts surrounding the burgeoning recreational marijuana industry in America, and the U.S. Justice Department now wants the justices to maintain their hands-off stance in a fight involving the Internal Revenue Service.

The Justice Department, in a brief filed by U.S. Solicitor General Noel Francisco, urges the high court to deny review in the case Green Solution Retail v. United States. The Colorado marijuana retail chain contends the IRS is abusing its authority by investigating—for purposes of a tax assessment—whether the chain engages in illegal federal drug trafficking.

A federal tax code provision—Section 280E—prohibits businesses from claiming certain deductions and credits on their federal income tax returns if they are engaged in illegal trafficking of a controlled substance. Marijuana is classified as a Schedule I controlled substance and federal law makes it illegal to knowingly or intentionally manufacture, distribute or dispense it. “That prohibition applies even in states that have purported to legalize marijuana in some circumstances,” Francisco told the high court.

The Supreme Court case stems from an IRS audit of the 2013 and 2014 tax returns filed by The Green Solution and one of its owners. The retail chain and its owner claimed deductions for business expenses. The IRS initially determined that the business activities were among those covered by Section 280E and asked for documents and other information about the marijuana dispensary. The chain and its owner refused to comply and filed suit seeking declaratory and injunctive relief.

A federal district court dismissed the lawsuit. It held that the Anti-Injunction Act barred the request to enjoin the IRS from enforcing Section 280E and declaratory relief was barred by the tax exception to the Declaratory Judgment Act. The U.S. Court of Appeals for the Tenth Circuit affirmed.

In the high court, the marijuana chain, represented by James Thorburn of Thorburn Walker in Greenwood Village, Colorado, contends the auditor and the IRS are sharing information with the Justice Department for future prosecution purposes. The petition raises these issues: whether the IRS has authority to investigate and determine that a taxpayer is engaged in illegal drug trafficking, and whether the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act bar their lawsuit.

Francisco's office first counters that there is no conflict with any high court or appellate court decisions. The Supreme Court, Francisco wrote, “has consistently held that the Anti-Injunction Act precludes efforts to restrain the assessment or collection of taxes directly” and appellate courts “uniformly” have held that includes “activities leading up to, and culminating in, such assessment and collection.”

The Declaratory Judgment Act's bar on relief with respect to federal taxes, he added, is at least as broad as the Anti-Injunction Act. And on IRS authority in this case, Francisco wrote: “The relevant Internal Revenue Code provisions do not authorize the IRS to initiate or conduct criminal prosecutions under the Controlled Substances Act, but simply authorize the agency to determine, for civil tax purposes, whether taxpayers may claim credits or deductions for particular expenses.” He added:

“The fact that this inquiry turns in part on whether a business's activities are among those Congress has prohibited does not mean that the IRS is enforcing the criminal laws as such.”

Robert Mikos of Vanderbilt University Law School, a federalism and marijuana law scholar, said the Anti-Injunction Act issue is important and that “ramifications would be felt for firms outside of the marijuana industry.”

This case, Mikos added, is centrally about the implications of how to challenge a tax and “that's just not confined to a company that happens to be selling marijuana.” Marijuana firms have a greater incentive to “cheer on” the use of this legal argument because they face higher tax rates than other firms under federal law, Mikos said. “But lots of others will be watching it,” he said.

The Supreme Court has turned away marijuana-related cases in recent years. In one of the most recent, the justices in 2016 declined to take up a dispute—filed by Nebraska and Oklahoma—that challenged Colorado's state-legal marijuana scheme.

The Justice Department's brief is posted below:

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