Justice Thomas and Cannabis Tax – 1 Oct 2021: Standing Akimbo, LLC v. United States

Justice Thomas and Cannabis Tax – 1 Oct 2021: Standing Akimbo, LLC v. United States
CANNANNEW REPORT

POSTED ON OCTOBER 1, 2021 Recently, the Supreme Court denied a petition for a writ of certiorari appealing from the 10th Circuit decision in Standing Akimbo, LLC v. United States, 955 F.3d 1146 (10th Cir. 2020), itself an appeal of an adverse Colorado District court decision. Justice Thomas dissented from the denial of certiorari at some length, however. Statement of Justice Thomas, June 28, 2021, Standing Akimbo, LLC v. United States, 594 U.S. __ (2021). His dissent discusses Gonzales v. Raich, 545 U.S. 1 (2005), a case in which the Supreme Court decided 6-3 that prohibiting entirely local (in California) consumption of cannabis for medicinal purposes was a legitimate exercise of  Congressional power under the Commerce Clause. The rationale (quoting from the Thomas certiorari dissent) was that “Congress had enacted comprehensive legislation to regulate the interstate market in a fungible commodity and that exemptions for local use could undermine this comprehensive regime.” As Justice Thomas points out, the federal government’s actions in the succeeding 16 years have undermined this reasoning, resulting in “a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” With respect to Section 280E, his footnote about tax is worth reading in its entirety: In their petition for a writ of certiorari, petitioners contend that the lack of a deduction for ordinary business expenses causes the tax to fall outside the Sixteenth Amendment’s authorization of “taxes on incomes.” Therefore, they contend the tax is unconstitutional. That argument implicates several difficult questions, including the differences between “direct” and “indirect” taxes and how to interpret the Sixteenth Amendment. Cf. National Federation of Independent Business v. Sebelius, 567 U. S. 519, 570–571 (2012); Taft v. Bowers, 278 U. S. 470, 481–482 (1929). In light of the still-developing nature of the dispute below, I agree with the Court’s decision not to delve into these…

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Source : Justice Thomas and Cannabis Tax – 1 Oct 2021: Standing Akimbo, LLC v. United States

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