The internet is littered with writings on the relative merits of corporate forms and tax elections for cannabis businesses. Even the best of these articles are as dull as ditchwater, because the topic is tax. Most of the authors mention subchapter S taxation at some point, and the showier ones may even dredge up cannabis tax court opinions on the topic. This post doesn’t get into any of that. Instead, it asks the simple question: how did you mess up your cannabis subchapter S election?
What’s a subchapter S election?
Feel free to skip this section, which is boring, if you already know what an S election is, how it works, etc. If you don’t, I’ll cover this at a very broad, borderline irresponsible level– just to get us through. Please note that the same rules apply here for cannabis businesses as non-cannabis businesses.
An S election is just a business’s determination to be taxed according to a certain part of the Internal Revenue Code. We’re talking about subchapter S here (open to corporations and LLCs), as opposed to subchapter C (also for corporations and LLCs), or subchapter K (partnerships and LLCs only).
An S corporation passes its income, losses,