One toke over the IRS-approved medical tax deduction line

August 4, 2010

As states and cities struggle to close budget gaps, the possibility of taxing marijuana sold for medicinal purposes has received more attention.

But even if you are allowed to purchase the plant to treat a medical ailment, you'll have to do so totally on your own dime. IRS Publication 502, Medical and Dental Expenses, specifically states on page 15: "You cannot include in medical expenses amounts you pay for controlled substances (such as marijuana, laetrile, etc.), in violation of federal law." 

And since most health savings accounts follow the IRS rules on what products and services are eligible for reimbursement from a medical flexible savings account, or FSA, that means that you cannot use this pre-tax account money to pay for the federally illegal treatment.

Or can you?

 Roger E. McEowen, who's fittingly the Leonard Dolezal Professor in Agricultural Law and Director of the Center for Agricultural Law and Taxation at Iowa State University, wrote the TaxProf Blog about an IRS letter that seems to sanction the treatment of marijuana as a medical expense.

In the correspondence with Sen. Charles Schumer (D-N.Y.), the IRS says the "cost of an herb may be an expense for medical care" under certain circumstances, such as taxpayer (and doctor) substantiation that the plant will treat or alleviate a medical condition.

The patient also must show that he or she wouldn't have purchased the herb "but for" the medical condition. Sure thing. Will do, or rather, won't do.

I appreciate Prof. McEowen's attention to agri-tax, but I think he must have another degree in English, specifically semantics.

 The IRS letter to Sen. Schumer never uses the word "marijuana," just the word "herb."

I'll guarantee that if the wacky weed had been expressly noted as the herb in question, the IRS response would have been completely different.

But nice try NORML members. In honor of all you pro-marijuana and pro-tax-marijuana fans, I leave you with the '70s pop anthem to the herb.

 

Related posts:

Want to tell your friends about this blog post? Click the Tweet This or Digg This buttons below or use the Share Thisicon to spread the word via e-mail, Facebook and other popular applications. Thanks!

Share:

The More Tax Posts tab at the top of this page will take you to, well, more tax posts. You also can search below for a tax topic. 

Latest Posts
6 tax moves to consider this June

June 3, 2026

Definitely take a break this June. But taxes don’t take vacations. So, you also should…

Read More
Tax Season 2026 Continues!

We made it. Tax Day 2025 is finally over. For most of us. When the filing season started on Jan. 26, millions who were expecting refunds filed immediately. Most of us got our returns to the Internal Revenue Service by April 15. But plenty of taxpayers also got extensions. They are looking at an Oct. 15 filing deadline.

Those procrastinating filers aren’t a problem. In fact, the IRS appreciates taxpayers who take time to fill out their 1040 forms correctly. It also is grateful that tax submissions are spread out a bit, especially now that the IRS is a leaner agency. Processing returns is easier when they arrive throughout the year instead of in massive bunches.

But enough about Uncle Sam’s tax collection issues. The focus now is on all y’all who filed for extensions, giving you another six months to complete your return. Since your new mid-October due date will be here before you know it, let’s get started now on meeting it.

The ol’ blog is here to help you finish up your extended Form 1040. You can start with January’s tax tips page, which has links to the rest of the year’s tips by-month collections. You also can peruse various tax categories for more tailored advice by clicking on the More Tax Posts drop-down menu at the top of this (and every) page.

And to make sure you don’t miss your new filing deadline, the count-down clock below will let you know just how much time you to file by Oct. 15. At the latest.e. (Note: I’m in the Central Time Zone, so adjust accordingly for where you live.)

Comments