Valuing a business based on a product that is illegal to grow and sell under current federal law
Valuing a cannabis-related business would not be much different from valuing any other business except that this business is based on a product that is illegal to grow and sell under current federal law. How this challenge is dealt with in states that have legalized it is the focus of this article, updated from a Business Valuation Resources (BVR) webinar presented by Jim Marty and Ron Seigneur, two CPAs and valuation practitioners based in Colorado.
When valuing a cannabis business, you can often approach the cash flow analysis with the same formula used in many other valuations: Present value of any asset is equal to the cash flow divided by the risk less growth (as shown in the sidebar). The critical issue in the cannabis industry, though, is the lack of reliable historical cash flow information, which requires the application of a discounted cash flow analysis based on projected performance.
As with any business, for a cannabis retail operation or medical dispensary, net income has to be switched to a cash flow by adding depreciation and taking away capital expenditures. You also have to add (or subtract) working capital requirements to get to enterprise cash flow and then take away debt service and add loan proceeds. This brings you to cash flow to equity (see sidebar). Nothing changes in the cannabis industry other than to really understand where these numbers come from.
Given that this business has operated in the open — officially legal first in Colorado — for less than a decade and many businesses have been around for only a few months or years, it is no surprise that there are very few reliable benchmarks in the cannabis industry from the point of view of a business valuation. More information is emerging, but it is anecdotal for the most part and very jurisdictional-specific.
Business appraisers have to come up with workarounds in this situation. Look at what investors expect to receive in the public stock market, add in the additional risk of being invested in this industry, and then apply professional judgment. In a more established industry, an investor might be content with a 20-25% return; in this one — with the regulatory oversight of federal, state and municipal authorities and leasing, banking, cash and security issues — the investor might be looking for a 40-50% return (according to a 2014 interview published by Marijuana Business Daily, “Appraising a Marijuana Business: Q&A With Valuations Expert Ronald Seigneur”).
Other factors to consider include location, competitors, the depth of management and whether it has good operating procedures and a formalized long-term lease. Is there adequate parking, visibility and access? As another example of the radical trends in this sector, enterprises involved in the cultivation part of the industry are seeing very dynamic changes as small, urban-based grow operations migrate to larger commercial — often rural — facilities covering many acres and using state-of-the-art technology.
Thus, a cannabis business valuation is similar to any other in some ways, but the particular issues in the cannabis business can affect the cash flow. Pay close attention to vetting forecasts, taxes affecting the cash flow, the potential liability to the IRS and other risk factors unique to the industry. It is important to recognize that finding a dispensary operator with reliable projections will be unusual.
When assessing a forecast in the cultivation sector, for example, make sure you tour the facility or the garden; ask what kind of crop the cannabis growers are expecting to have in the next six months and what their annual capacity is. Get a firm understanding of the expertise involved in the grow and how much tenure these individuals have.
An important factor to consider is the number of plants in the ground. With an indoor grow, there will be three or more cannabis harvests a year because cannabis growers plant in phases. The “perpetual garden” practice ensures plants can be harvested and dried weekly. Get a thorough understanding of the lighting scheme utilized and the philosophy of the lead cultivator toward target plant sizes and varieties produced.
Ask about crop failures. Even the best operations can have a crop failure, so find out how many failures they’ve had and why. If crop failures are minimal, the chance of the business being profitable going forward is very much enhanced. Remember, if you grow it, you can sell it, but price points are beginning to moderate in some markets due to increased capacity, better technology and competitive pressures.
Various parts of the plant can be sold — not just the desirable flowers that dry into what are called the buds, but the leaves can be harvested and sold to infused products manufacturers. Ask what the lines of revenue are. Ask about the cannabis growers’ expansion plans.
Generally, when tax affects the cash flow, you want to apply a fairly high marginal rate by taxing the gross profit. If the business has not been handling IRC Section 280E, regarding the deductibility of business expenses, in compliance with how the IRS would like to see it, you may need to book an unrecorded liability for potential IRS audits. If the dispensary has had IRS audits, ask whether they have been resolved. Remember, many dispensaries have only been in operation for a short period, so check for the possible liability of IRS audits. How is 280E handled? If the dispensaries have been ignoring 280E, consider making a valuation adjustment to record potential IRS tax assessments.
When considering risk in a cannabis business, never forget that the federal government considers selling cannabis illegal. You need to understand the Department of Justice memos and the IRS chief counsel’s memo, and consider how they affect your risk.
These memos certainly appear to reduce risk; the Department of Justice is saying, “If the dispensary owner stays compliant, you are actually doing what we want you to do.” In fact, the Cole memo basically quotes the Colorado regulatory system, and the guidance it provides is being practiced in Colorado and Washington.
Nevertheless, even if dispensaries are playing by the rules, the Department of Justice is watching. If cannabis businesses break any of the rules — for instance, if the cannabis is consumed or grown on public lands, if it gets into the hands of children or if it crosses state lines — then there is an issue. Residents can legally buy an ounce of cannabis for recreational purposes in Colorado; people from out of state can buy a quarter of an ounce. But there is no tracking of sales. On South Broadway in Denver, you could stop at 10 to 12 different stores and buy a quarter-ounce at each to take back home. It is only a matter of time before somebody gets caught at the airport or at the border. The police on the Kansas and Nebraska borders are watching interstates 70 and 80 for eastbound travelers.
These rules will continue to evolve. That is the conundrum of trying to value the risk.
You have to know your client. You want to make sure your client is ethical and not coloring outside the lines, because you don’t want to be involved in that. The vast majority of the people involved in this industry are honorable and want to do the right thing and want to see this industry succeed. On the other hand, the cannabis industry continues to attract some unsavory types, and it is paramount that professionals working in the space always be on the lookout for client types that are not a good fit. If we have an interview with somebody and we don’t have a good feeling, we generally don’t take that person on as a client. That is true of any industry, but a bit more relevant in this sector.
An internal controls assessment is essential. Controls must be in place to prevent diversion by employees. Even if the owners are unaware of this activity, it could cost them their license.
Cash on hand
How are cash payments handled? Are Form 1099s issued? If it is a retail or wholesale operator, has the business complied with the Form 8300 requirements for large cash deposits? This is a cash-based business, so you want to make sure that the proper Form 1099s are being issued and the businesses have proper internal controls over cash and inventory. How are the businesses handling their cash? How is their banking handled? This industry has had many workarounds in relation to banking.
Consider the local area in which the cannabis business operates. A county with a large population may have only one location due to zoning restrictions, and a business there may do very well because of the lack of competition. On the other hand, for example, the South Broadway neighborhood in Denver has a concentration of dispensaries, making for a more competitive environment.
Meanwhile, a dispensary in northern Colorado gets most of its sales from the east because, between there and Kansas (around 300 miles), there are no other dispensaries. Since 2014, it has been legal to sell to out-of-state customers, and we are now seeing cannabis tourism develop in Colorado.
In terms of personnel, the head gardener is very much a key employee. The best chance for success in the business is a very strong gardener working in combination with a good businessman or businesswoman. If the cannabis growers have a gardener with no business sense, this could be a problem. Owners in it just for the money, with no growing skills, are at higher risk, too.
Do the owners have relevant business experience? Is the main gardener an owner? If that gardener quits or is let go, not only will the job be vacant, but also the disgruntled former employee could go in at night and destroy the harvest. Gardeners can be very protective of their genetics. Do any of the owners have lurking personal issues that can jeopardize a cannabis license? If there are multiple owners, do they all get along and work cohesively?
Is the lease ironclad? Is there bank financing on the property that could go awry? During your interview with members of management, discuss their lease and their option to renew. How is the building financed? Here is a possible scenario: The rent is paid every month, and the landlord is happy with the tenant. Then the three-year balloon comes up on the mortgage. The landlord goes to the bank to refinance, and the bank representative asks who the tenant is. When the bank finds out the tenant is a cannabis company, it might not refinance unless the landlord kicks the tenant out.
That can happen both at the retail and the wholesale level. If the owners of a cannabis business are going to rent, ask their landlord about the debt structure. You want a building that is free and clear or has private financing. Another option, if it is financially feasible, is for the owners to purchase the real estate for the grow and retail, eliminating the real estate problem.
Another issue can arise when an operation initially granted a medical license then becomes authorized to sell to the retail adult-use market. Have the lease arrangements contemplated this expansion? Anticipating and planning for such contingencies is the only way to avoid adverse consequences.
The problem of banks
One reason banks are reluctant to be involved in this industry in the current climate is that, with central bank processing, Colorado checks clear outside the state, in places that do not have legal cannabis. If the federal government stepped in and enforced the law differently, a lot of checks could bounce. Thus, banks need to know a cannabis retail or dispensary client is fully compliant with state laws and that there is complete control of the product from the grow facility to the retail and then to the bank. Armed security guards (where legal) and armored trucks that move the cannabis and cash are a must if the business wants to have access to banking.
It is very difficult for banks to do business with an industry that is making large cash deposits and operating illegally according to federal law and still comply with their own regulations under the Bank Secrecy Act and anti-money laundering rules.
The Payment Law Advisor website (www.paymentlawadvisor.com) provides an excellent analysis of the current risks inherent for financial institutions in providing services to the cannabis industry in the context of the Treasury’s February 2014 FinCEN memo (“Marijuana, Banking and the 10-foot Pole” by Karen Ross). In that memo, the Financial Crimes Enforcement Network aimed to clarify the requirements of the Bank Secrecy Act. In a quest for full transparency, a bill named “The Marijuana Businesses Access to Banking Act” has been introduced in both houses of Congress for a number of years, so far without passage.
If the banking problem were easy to solve, someone would have figured it out by now. There has been a robust cannabis industry in Colorado for seven years, and yet there are only a few banks openly accepting cannabis business clients, and they do not accept new applications.
The hardest bills to pay without a checking account are taxes on payroll. You have to do an electronic funds transfer (EFT) to pay federal withholding taxes. Thus, a cannabis business needs at least one checking account — perhaps a personal checking account used just for those transactions. The rent and other bills are often paid in cash.
One cannabis dispensary owner uses his accounting software to generate checks for his payroll on plain white paper. He tells his employees, “Here is your check, really a voucher, for the last week, $329.66, printed right here out of Peachtree. Oh, and by the way, there is only one place in the world you can cash that check, and that is at the dispensary counter right here.” That way, all payroll records are created in his system so that he can generate the W-2s at the end of the year. He uses that system with his vendors as well.
Much of the information presented in this article is relevant for assignments focused on the appraisal of intellectual property rights in the cannabis industry. There is a substantial need for IP appraisal in this sector due to the value of certain license rights associated with cultivation, retail and infused products licenses, in addition to the IP value of branding for operators who have an established brand involving trademarks, trade dress, graphics and beyond.
This industry is not yet mature, and it is continually evolving. For the authors, it is fascinating to take on appraisal work in more established markets such as Colorado and Washington state, compared to work assignments in emerging markets, such as Nevada and Maryland, for example. A valuation done a year ago in many industries would still be relevant, but in the shifting sands of this industry, it is likely to be outdated. There is not yet much activity in terms of mergers and acquisitions. There is pent-up interest. Some people who would love to be involved are waiting on the sidelines for now.
Jim Marty, CPA/ABV, MS, of Bridge West LLC, can be reached at firstname.lastname@example.org and 303-651-0304. Ron Seigneur, CPA/ABV, ASA, CVA, CFF, CGMA, of Seigneur Gustafson LLP CPAs, can be reached at email@example.com and 303-980-1111. Both Marty and Seigneur are CPAs and valuation practitioners based in Colorado, one of the first states to legalize adult recreational cannabis. This article was republished with permission from Business Valuation Resources. The full report can be purchased at https://www.bvresources.com/products/what-its-worth-value-and-business-challenges-in-the-budding-cannabis-industry?