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While banking for the legal marijuana industry has been uncertain, it was further complicated in January when Attorney General Jeff Sessions rescinded the so-called Cole memo , an Obama-era policy that generally kept federal law enforcement from interfering with states’ marijuana sales. The rescission of the Obama-era directive has raised questions as to whether the FinCen guidance will remain in place, said Goldberg. “The FinCen guidance is still in place, but there is confusion given its intertwinement with the Cole [memo],” Goldberg said in an interview. “The risks and heavy reporting requirements on banks has caused very few banks to openly accept [marijuana-related business] funds.” The FinCen did not immediately answer questions when asked what the current status of the guidelines were and whether there are plans to keep them in place. For banks and credit unions who want to operate in the marijuana space, it’s a prohibitively expensive process, according to Andrew Sacks, a managing partner and head of the cannabis and hemp department at Pennsylvania-based Sacks Weston Diamond. Banks have to hire auditors to make sure that revenues from marijuana companies are kept separate and that software is available for marijuana-related transactions, Sacks said. As a result of the limitations, only roughly 400 banks and credit unions nationally serve legal marijuana companies, according to Sacks and other official estimates. That’s just a fraction of the approximately 5,000 commercial FDIC banks. Despite the restrictions, the legal marijuana industry has flourished in states such as Colorado, which received $247 million in tax and fee revenue from legal marijuana last year, according to its revenue department. In New York, where medical marijuana became legal in 2014, the state’s program failed to gain traction in its nascent years.
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