In 2018, Congress passed the Agricultural Improvement Act of 2018, commonly referred to as the 2018 Farm Bill, landmark legislation that expands upon existing academic pilot programs created after passage of the 2014 Farm Bill. The Act defines industrial hemp as “The plant Cannabis sativa L. and any part of that plant……with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Additionally, the 2018 Farm Bill removed industrial hemp from the Department of Justice Schedule I Controlled Substances list. De-scheduling now affords industrial hemp growers many of the same rights and protections as other farmers. As a result, both hemp production and product interest is expected to sky-rocket.
Although the de-scheduling of industrial hemp has had numerous effects on hemp-related businesses, there are two major components that significantly benefit hemp businesses.
- Tax Deductions – Under IRS 280(e) rules, there are no available deductions or credits for a trade or business that consists of trafficking controlled substances. This includes businesses located in states where marijuana is legal for either medical or recreational use. With the de-scheduling of industrial hemp, businesses producing hemp within the definition of the federal law are entitled to ordinary and necessary business deductions as defined in IRS Sec. 162. This provides farmers with access to the same taxing regime available to other businesses and a competitive advantage over marijuana operations required to pay tax on gross revenue.
- Crop Insurance and Other Assistance Programs – Prior to de-scheduling, hemp-related businesses were uninsurable. The de-scheduling of hemp provides growing operations with much-needed access to crop insurance to protect its investment. In addition, beginning in 2020, access may be provided to many USDA programs such as the Whole-Farm Revenue Protection, Noninsured Crop Disaster Assistance Program, the NRCS Conservation Programs, and FSA Farm Loans.
In October 2019, the USDA issued its Interim Final Hemp Production Rule (IFR) and established a Domestic Hemp Production Program. The IFR establishes protocols for testing during production and prior to harvest, interstate transportation guidance, and clarification of safe harbor rules for crops testing over the 0.3% dry weight limit. The Domestic Hemp Production Program’s design and operation, however, remain a work in progress.
While the 2018 Farm Bill has opened many doors for hemp-related businesses, there are still many components of operating a hemp-related business that are awaiting further regulation and guidance from government agencies in federal, state, and local jurisdictions. In addition, hemp-related businesses are still facing many challenges from lack of access to banking and other financial resources. For further guidance on operating your hemp-related business, contact your CRI advisor!
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