As more and more states legalize either the recreational use of marijuana or the medical use of marijuana, more tax advisors will be encountering issues with respect to the representation of these businesses and recreational or medical marijuana users. The main issues stem from the fact that, even though states are legalizing these businesses and activities, at the federal level marijuana remains a Schedule I drug under the Controlled Substances Act of 1970. These legal businesses and activities under state law remain illegal businesses and activities under federal law. The Supreme Court has ruled that federal law takes precedence over state law.

The Justice Department under the current administration is taking a generally hands-off approach to these state law experiments, but the Obama administration has expressed no strong desire to change the legal status of marijuana at the federal level and has warned of possible enforcement activity if the marijuana activities involve criminal elements, sales to minors, sales across state lines, other illegal drugs, or use of public lands or federal property.

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