Sacred Garden

18-07

On June 1, 2015, the Department denied the Taxpayer’s claim for refund for the periods January 2011 through June 2014. A formal protest was received by the Department on June 3, 2015. On May 31, 2016, the Department received a second claim for refund for the periods July 2014 through January 2016. The second claim for refund was denied on September 28, 2016. The second formal protest was filed on December 14, 2016. On August 16, 2017, the Administrative Hearing Office entered a consolidation order for the two protests. The Taxpayer is a non-profit entity which produces and dispenses medical marijuana. The Taxpayer is licensed by the Department of Health as a dispensary. It is acknowledged that even though the state law permits the possession and use of medical marijuana the possession and use of marijuana is illegal under federal law. The issue to be determined during the hearing is if the Taxpayer is entitled to a deduction under Section 7-9-73.2 NMSA 1978, which allows a deduction for receipts from the sale of prescription drugs. The Taxpayer argued that the authority to utilize marijuana for medical purposes exists under state law and it should be considered a prescription drug. The Hearing Officer used the three part test in Section 7-9-73.2(B), NMSA 1978, to determine that medical marijuana is not a prescription drug as specified for entitlement to the deduction that was referenced by the Taxpayer when submitting the claims for refund. The Hearing Officer found that there was not a right to the claimed deduction under statute and that the Taxpayer did not establish its entitlement for the basis of the claims for refund. For the forgoing reasons, the Taxpayer’s protest is denied.