About two weeks ago, reader Morris directed my attention to this story about a dental office buying back Halloween candy. From doing a bit of research, this is not an isolated situation but one that is common, though I must point out that when I was in my Halloween door-to-door-with-two-large-pillowcases stage, I never did hear of any dentists buying Halloween candy from children. It now is a nation-wide undertaking. So how much are the children paid? This dental office offers $3 per pound.
Reader Morris then posed two questions. He asked, “Are the kids technically receiving gross income for the candy?” and “Can the dental office deduct the purchase cost as a business expense?”
The children receive the candy as a gift, though perhaps some people might claim that they dish out treats in order to “persuade” children not to refrain from stopping by the following year on Mischief Night, Soap Night, Egg Night, Chalk Night, or whatever other pre-Halloween night is being observed by some youth. Because it is a gift, the children have an adjusted basis in the candy equal to the price paid by the person giving the candy, and when they sell it to the dental office they probably are receiving an amount less than the adjusted basis. So they are realizing a loss, and it is not deductible because the children are not in the trade or business of selling candy, carrying on a for-profit activity, or suffering from a casualty (though some children “persuaded” by their parents to fork over their candy for cash might consider it a tragedy, but not all tragedies are casualties).
Why do I think the children are incurring a loss? On Amazon, a one-pound Hershey’s Bar sells for $19.99, so getting $3 for that bar (assuming anyone is handing out something like that) is far from generating gross income. Walmart sells a 40 ounce bag of small candy bars for $23.96, which is $9.58 per pound, a better deal than the one-pound Hershey’s bar but still much less than $3 per pound. I checked these prices when reader Morris sent his email so they may have increased or decreased, there may have been sales, there may be different prices at other retailers, but as a general proposition, $3 per pound is not generating realized gain for the children who sell their candy loot to the dental office.
Two years ago, Kelly Phillips Erb addressed the tax consequences of Halloween candy buy back transactions. She did so by examining exchanges of the candy “for other stuff.” She addressed the income question only by noting that if the “candy is exchanged for a similar item, there should be no gain and no tax consequences.” As a practical matter that is true, but if a child found someone willing to fork over a one-pound Hershey’s bar for half of the candy in that 40 ounce bag, that would generate gross income of $8.01. If “similar item” means candy of an equal value, she is correct both theoretically and pragmatically. Though she doesn’t mention a sale for cash, her reasoning would bring us to the same conclusion that my reasoning did. She also notes, as I have, that the children handing over the candy at a loss would not be allowed a deduction.
As for a deduction by the dental office, which is, of course, a trade or business, the question is whether the amount paid for the candy is an ordinary and necessary business expense. Is it? One argument in favor of a deduction is that the business is paying for some combination of advertising and public health information. The program is designed to reduce the amount of candy that children (and their parents) eat during Halloween season, and because the cost of publishing a “don’t eat or don’t eat too much candy” message would be deductible by a dentist, sending that message through a buy-back program would also be deductible. An argument in favor of denying the deduction would rest on the nature of what is being purchased. Unlike dental care supplies, dental tools, and similar items, dentists do not need to purchase candy in order to operate their businesses.
There are two twists to the tax consequences faced by the dental businesses that buy the candy. One is that under the national program the candy is donated to a charitable organization that distributes the candy to members of the Armed Forces. So instead of a trade or business deduction, the business would claim a charitable contribution deduction in an amount equal to what it paid (because the property is short-term capital gain property in the hands of the business). The other twist is that some businesses making the purchases do so with donated money. In this instance the business would not get a deduction because it is not expending any money for the candy. Determining whether the sponsors get a charitable contribution deduction requires identifying additional facts and is beyond the scope of the question that was asked. So, too, is the non-tax issue of why it makes sense to reduce the amount of candy in the hands of the children while increasing the candy in the hands of members of the Armed Forces, and I leave readers to explore what the national candy buy back program shares as an explanation.