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Recent guidance from the Justice Department and Treasury was intended to clarify federal policy. Policy statements, however well meaning, do not provide true legal protection. Only legislation can do that.
March 18 -
Action by federal lawmakers, not guidance from the Justice Department, is whats needed to give banks comfort in providing services to marijuana businesses in states where pot is legal.
February 10 -
The Denver city council passed a proclamation Monday asking that Colorado's legal marijuana businesses be granted access to the nation's banking system.
January 6 -
Under a measure passed Wednesday, the use of federal funds to punish banks for providing accounts to pot businesses would be prohibited.
July 16
Bankers beware: Until the feds confirm that they won't prosecute banks for dealing with state-licensed pot dealers, you do business at your own risk.
Financial institutions in states that have legalized marijuana for recreational or medical use may be able to provide services to "marijuana-related businesses" under certain circumstances, according to
Legalized marijuana is now big business. Approximately 20 states now permit medical marijuana sales under some circumstances, and Colorado and Washington have legalized non-medical possession and use by adults. If current trends continue, Colorado may well double the $35 million in taxes, licenses, and fees from retail marijuana sales it projected for fiscal year 2013-14. It expects to see nearly $118 million in the next fiscal year, as well as
Yet marijuana remains a
In the past, if a banks customer due diligence indicated that the customer was involved with drug sales, the institution simply turned them away. While the Fincen guidance is intended to "enhance the availability of financial services for, and the financial transparency of, marijuana-related businesses," in practice it creates a new set of headaches for bankers.
Maintaining compliance while doing business with legal pot dealers is likely to be extremely burdensome especially for smaller institutions. Banks must monitor the customer for red flags, file marijuana-related suspicious activity reports when deemed appropriate and terminate the account if it appears the customer is operating outside the scope of its license or is otherwise engaged in illicit activity.
But the red flags for which banks are supposed to be alert are vague and open to interpretation. Fincen's list of 11 red flags include that the customer appears to be using the licensed business as a front for illegal activity or cannot "demonstrate the legitimate source of significant outside investments. Other red flags include the owner residing out-of-state or engaging in international or interstate activity and nonprofits that are "engaged in commercial activity inconsistent with that classification" or making "excessive payments" to managers and employees.
Not only are these red flags ambiguous, they would be very onerous for most banks to investigate. To determine whether the licensed business is a sham, for example, a bank would have to find out whether the customers revenues are greater than expected given the states limitations; compare the customers cash deposits to those of its competitors; and examine its deposits to see if they are consistent with revenues reported for tax purposes.
Even full compliance may prove cold comfort. A banker charged with violating federal drug trafficking or money laundering laws might argue that he complied with Fincens guidance, but doing so means admitting to having taken deposits from marijuana sellers.
Banks therefore do business with marijuana-related businesses at their peril. Moreover, while the Justice Department has indicated that its enforcement actions will focus on more serious drug-related activity including sales to minors, the use of state-licensed businesses as a cover for illegal activity and cases involving gangs, firearms, violence and drug cartels, it has yet to say it will refrain from prosecuting those who facilitate sales of marijuana that are legal under state but not federal law. Accordingly, caveat banker.
Nicole Healy is a partner in the Redwood City office of Ropers, Majeski, Kohn & Bentley. She is the author of the