The short answer is yes. FinCEN guidance issues in 2014 addresses marijuana related business relationships, as follows: The obligation to file a SAR is unaffected by any state law that legalizes marijuana-related activity. FinCEN recognizes that a financial institution filing a SAR on a marijuana-related business may not always be well-positioned to determine whether the business implicates one of the Cole Memo priorities or violates state law, and thus which terms would be most appropriate to include (i.e., “Marijuana Limited” or “Marijuana Priority”).
For example, a financial institution could be providing services to another domestic financial institution that, in turn, provides financial services to a marijuana-related business. Similarly, a financial institution could be providing services to a non-financial customer that provides goods or services to a marijuana-related business (e.g., a commercial landlord that leases property to a marijuana-related business). In such circumstances where services are being provided indirectly, the financial institution may file SARs based on existing regulations and guidance without distinguishing between “Marijuana Limited” and “Marijuana Priority.”
Whether the financial institution decides to provide indirect services to a marijuana-related business is a risk-based decision that depends on a number of factors specific to that institution and the relevant circumstances. In making this decision, the institution should consider the Cole Memo priorities, to the extent applicable.
*NOTE: Please note as of January 4th, 2018, the Department of Justice (DOF) repealed the Cole Memorandum. However, there is no new guidance from FinCEN as to how to proceed if your financial institution banks marijuana related businesses. It is recommended that banks proceed with their current policies and procedures until FinCEN addresses the repeal with new guidance.
Reference: FinCEN Guidance, FIN-2014-G001, footnote 7, p. 4