Tax Law and the Musician: Q & A with the IRS

Tax Law and the Musician: Q & A with the IRS Antonio J. Garcia, w/sallie Goding l Jazz Educators Journal, March 2001 If I realize I've made an error on a tax form already filed, can I correct it without penalty; or am I better off just forgetting about it?. GARCÍA: Is a musician required to file a W-4 with every employer, no matter how infrequently employed by that person? GODING: Yes. All new employees are required to give their new employer a Form W-4 when they start work. If a new employee does not give the employer a completed Form W-4, the employer is required to withhold taxes as if the employee is single, with no withholding allowances.1 GARCÍA: Where do I claim my employee income on the 1040 form? GODING: If you are an employee, you should receive a Form W-2 from your employer showing the pay you received for your services. Depending on which form you use, report this income on the "Wages, salaries, tips" line of Form 1040, 1040A, or Form 1040EZ.2 GARCÍA: If I've received payment for performance by cash or check involving no W-2 or W-4, I should still claim the amount as income on my Form 1040. But where do I place such income on the form? GODING: Assuming this income is related to your being an employee, it should be reported on the "Wages, salaries, tips" line of Form 1040, 1040A, or Form 1040EZ, even if you do not receive a Form W-2.3 Independent Contractor GARCÍA: I attempted to file a W-4, but the person I'm working for says he hired me as an "independent contractor" and that I'll receive a Form 1099 at the end of the year. What does that mean? GODING: It means that the person who hired you is not treating you as an employee for employment tax purposes. Instead of receiving a Form W-2 you will receive a Form 1099. GARCÍA: But if I'm playing the same kind of music on this job that I play for other employers, how do I know if I am really an independent contractor or not on this engagement? GODING: If you are unsure as to whether you are an employee or an independent contractor you can submit Form SS-8 to the IRS. Based on the information submitted by both you and the person you are performing services for, the IRS will determine your work status for federal employment tax purposes. You can obtain a copy of Form SS-8 by calling (800) 829-3676. GARCÍA: Where do I claim my independent contractor income on the 1040 form? GODING: Income received as an independent contractor is generally considered nonemployee compensation and reported on Form 1099-MISC, Miscellaneous Income, Box 7. The payor considers you to be self-employed and usually will not be withholding any taxes from the income. If you are self-employed, the income would be reported on Schedule C or C-EZ. This income is generally subject to self-employment tax, reportable on Schedule SE. If you do not consider that you are selfemployed, report this income on the "Wages, salaries, tips" line on Form 1040. Call the IRS to determine how to report Social 1

Security (FICA) and Medicare taxes; and see the instructions on the back of Form 1099-MISC. Self-Employed GARCÍA: Sometimes I hire out myself as a soloist, composer, or educational clinician. Where do I claim my self-employed income on the 1040 form? GODING: You are self-employed for self-employment tax purposes if you carry on a trade or business as a sole proprietor, an independent contractor, or a member of a partnership. This income would be reported on Schedule C or C-EZ of Form 1040. It would also be subject to self-employment tax, reportable on Schedule SE, if net earnings are $400 or more. GARCÍA: I know that when I work as an employee, my employer and I contribute matching amounts towards my Social Security tax. But when I'm acting as self-employed, who pays that tax and where? GODING: As a self-employed person, you are responsible for paying self-employment tax. Your payments of SE tax contribute to your coverage under the Social Security system. You generally must pay this tax via filing Schedule SE if you were selfemployed and your net earnings from self-employment were $400 or more. You can deduct half of your SE tax in figuring your adjusted gross income. However, this deduction only affects your income tax, not your net SE earnings or SE tax. Deductions GARCÍA: What is a "deduction," and what are some typical deductions a musician might have? GODING: A deduction, for tax purposes, is an amount subtracted from one's adjusted gross income to arrive at a taxable income amount. To be deductible as a business expense, the item must be both "ordinary" and "necessary." An ordinary expense is one that is common and accepted in your trade or business, while a necessary expense is one that is helpful and appropriate for your trade or business. Some examples of typical deductions for a musician might include costs of music, uniforms, business insurance, musical instruments, advertising costs, business cards, auto expenses, parking and tolls, office and other business supplies, sound recordings, and CDs and cassettes. GARCÍA: Some musicians deduct a portion of their home as a "home office." What are the restrictions, advantages, and disadvantages of doing so? GODING: If you use part of your home in your business, you may be able to claim part of the expenses of maintaining your home as a business expense. These expenses include mortgage interest, insurance, utilities, repairs, and depreciation. To qualify to claim expenses for the business use of your home, the use must be exclusive and regular for your trade or business and the business part of your home must be either: Your principal place of business; A place where you meet or deal with patients, clients, or customers in the normal course of your trade or business; or A separate structure (not attached to your home) you use in connection with your trade or business. Beginning in 1999, your home office qualified as your principal place of business if you used the office exclusively and regularly for administrative or management activities of your trade or business and if you had no other fixed location where you conduct substantial administrative or management activities of your trade or business. Rehearsals would be examples of home office use for musicians that would not qualify, since these are generally not income-producing. However, the leader of the organization may conduct enough administrative or management activities to qualify. Using a section of one's home to teach lessons could qualify, unless the area is not used exclusively for that purpose.8 The advantages of such a home office deduction is a reduction in taxable income. However, there could be disadvantages. The home office deduction is subject to limitations if the expenses not specifically related to the business operations (including mortgage interest, insurance, repairs, and depreciation) exceed gross income from the activity. In addition, you must include any excess depreciation in your gross income for the first tax year you no longer use the property in a business use. This could include a change in the use of the property or a sale of the residence. GARCÍA: If I commute daily, driving on basically the same round-trip route, is that deductible? GODING: You cannot deduct the costs of public transportation, taxi, or of driving a car between your home and your main or regular place of work. These costs are personal commuting expenses. GARCÍA: But what if, in addition to my regular work commute, I also drive or take public transportation to other locales in the area to perform additional jobs for income? GODING: Local transportation expenses include ordinary and necessary costs of all of the following: 2

Getting from one workplace to another in the course of your business or profession, Visiting clients or customers, Going to a business meeting away from your regular workplace, and Getting from your home to a temporary workplace when you have one or more regular places of work. GARCÍA: Are there related expenses I might deduct, whether for local or distant travel? GODING: If you deduct travel, entertainment, business gift, or local transportation expenses, you must be able to prove (substantiate) certain elements of expense. These include documentary evidence showing amount, dates, times, places, and in certain cases the business purpose and business relationship. GARCÍA: Entertaining a guest in the course of business is only partially deductible? GODING: You can deduct entertainment expenses only if they are both ordinary and necessary and meet either the "directly related" test or the "associated" test. To meet the directly related test you must show that the main purpose was the active conduct of business: that you did engage in business with the person during the entertainment period and had more than a general expectation of getting income or some other specific business benefit at some future time. To meet the associated test you must show that the entertainment is associated with your trade or business and directly precedes or follows a substantial business discussion. Contemporaneous record-keeping in this area is crucial. The amount you can deduct may be limited: generally, you can deduct only 50% of your unreimbursed entertainment expenses, including meals. GARCÍA: While overnight travel is a common standard when considering related deductions, I understand that if a round-trip is extended enough even within one day, a taxpayer might still deduct certain travel expenses usually not deductible locally. GODING: For tax purposes, travel expenses are the ordinary and necessary expenses of traveling away from home for your business, profession, or job. Individuals are not "away from home" unless their duties require them to be away from the general area of their tax homes for a period substantially longer than an ordinary workday and it is thus reasonable for them to need to sleep or rest. In some such cases, then, travel expenses may be deductible even though the taxpayer is away from home for a period of less than 24 hours. GARCÍA: If I pay taxes to a foreign government for income I generate there, can I deduct that tax amount from my U.S. tax bill? GODING: Generally, you can take either a deduction or a credit for income taxes imposed on you by a foreign country or a U.S. possession. However, you cannot take a deduction or credit for foreign income taxes paid on income that is exempt from U.S. tax. GARCÍA: What are some items often mistakenly considered as an appropriate deduction that usually are not? GODING: Generally you cannot deduct personal, living, or family expenses like personal rent, home repairs, life insurance, or losses on the sale of personal items such as your home, furniture, or a personal car. Other items that are nondeductible would include capital expenses, hobby losses, value of one's time, club dues, lobbying expenses or political contributions, and personal legal expenses. GARCÍA: Do I list my deductions in different locations on my tax form if received as an employee vs. an independent contractor or self-employed? GODING: Yes. If you are self-employed, you must report your business-related deductions on the appropriate form used to report your business income (Schedule C or C-EZ). If you are an employee, you would generally deduct unreimbursed employee business expenses as miscellaneous itemized deductions on Schedule A. GARCÍA: There is a "special break for performing artists" with certain qualifications: their deductions have more impact on lessening their final tax owed. GODING: If you are a performing artist, you may qualify to deduct your employee business expenses as an adjustment to gross income rather than as a miscellaneous itemized deduction. This would allow your deductions to have more impact on lessening final tax due because deductions would be allowable even if you do not itemize and would not be subject to the "2% floor" applicable to most miscellaneous itemized deductions. To qualify, you must meet all of the following requirements: During the tax year, you performed services in the performing arts for at least two employers; You received at least $200 each from any two of these employers; Your related performing-arts business expenses were more than 10% of your gross income from the performance of those services; and Your adjusted gross income was not more than $16,000 before deducting these business expenses. 3

If you are married, you generally must file a joint return. GARCÍA: You've mentioned one of the terms that confuse many taxpayers. Deductions might be subject to a "2% floor," perhaps only usable "below the line," related to "AGI." What do these terms mean? Do they apply the same towards an employee vs. an independent contractor or self-employed? GODING: The term "below the line" refers to items such as itemized deductions that are deductions from a person's "adjusted gross income" (AGI). One's AGI is the result of income items, reduced by items which are adjustments to income. It is this AGI amount that is used to compute the 2% limitation, or "floor," by which you must reduce the total of most "Miscellaneous Deductions" unreimbursed employee expenses or other expenses shown on Schedule A of Form 1040. (Generally you apply the 2% limit after you apply any other deduction limit.) Only the excess of this amount is deductible on Schedule A. GARCÍA: Is there a circumstance under which a person is not required to file a tax return unless seeking a refund of withholding tax? GODING: Depending on your gross income, your filing status, and your age, as a citizen or resident of the U.S. you must file a federal income tax return even if you do not owe tax. In addition, you are required to file a return if you are self-employed and your net earnings from self-employment were $400 or more. Even if you do not have to file, you should file a return to get money back if you had income tax withheld from your pay or qualify for earned income credit or additional child tax credit. Depreciation GARCÍA: What is "depreciation," and how does it affect my final tax owed? GODING: Depreciation is a decrease in the value of property over the time the property is being used. Events that can cause property to depreciate include wear and tear, age, deterioration, and obsolescence. You can get back your cost of certain property by taking deductions for depreciation. This includes taking a deduction for tangible personal and real property used in your trade or business. It affects the final tax owed in the form of a deduction, which decreases one's taxable income. GARCÍA: I purchase considerable resources in order to keep up with the knowledge I need to do my job: books, sheet music, instruments and related supplies, computers, sound recordings, CD and cassette players, and more. Might any of these items be depreciable? What's the easiest process to claim them? Can I claim them all at once rather than over a schedule of numerous years? GODING: If property you acquire to use in your business has a useful life longer than one year, you generally cannot deduct the entire cost as a business expense in the year you acquire it. You must spread the cost over more than one tax year and deduct part of it each year as depreciation. To claim depreciation, you usually must be the owner of property and must use the property in your trade or business or for producing income. You can depreciate many different kinds of property: for example, machinery, buildings, vehicles, patents, copyrights, furniture, and equipment. However, it must meet all of the following requirements: It must be used in business or held to produce income. It must be expected to last more than one year (i.e., have a useful life that extends substantially beyond the year it is placed in service). It must be something that wears out, decays, gets used up, becomes obsolete, or loses its value from natural causes. You begin to depreciate your property when you place it in service for use in your trade or business or for the production of income. You stop depreciating property either when you have fully recovered your cost or other basis or when you retire it from service, whichever happens first. You can choose to deduct a limited amount of the cost of certain depreciable property in the year you purchase it for use in your business. This deduction, subject to specific rules, is known as the "Section 179 Deduction." Withholding/Estimated Taxes GARCÍA: If I am caught short each April 15, having to pay the government additional money beyond what was withheld from my checks as an employee, this is probably because of the income I make from spot-jobs where persons treat me as an independent contractor and from my self-employed work. How much of my year's tax owed should I already have paid to the government by April 15? At what point would I be required to file quarterly estimated tax payments during the year? GODING: In most cases, you must make estimated tax payments if you expect to owe at least $1,000 in tax for the year 2000 (after subtracting your withholding and credits) and you expect your withholding and credits to be less than the smaller of either 90% of the tax shown on your 2000 tax return or 100% of the tax shown on your 1999 tax return (covering all twelve months). 4

For estimated tax purposes, the year is divided into quarterly payment periods, each with a specific due date: April 15, June 15, September 15, and January 15 of the next year. If you do not pay enough tax by the due date of each of the payment periods, you may be charged a penalty even if you are due a refund when you file your income tax return. If, in addition to income not subject to withholding, you also receive salaries and wages, you can avoid having to make estimated tax payments by asking your employer to take more tax out of your earnings. To do this, file a new Form W-4 with your employer. Process & Penalties GARCÍA: If I realize I've made an error on a tax form already filed, can I correct it without penalty; or am I better off just forgetting about it? GODING: You should correct your return if, after you have filed it, you find that you either: Did not report some income, Claimed deductions or credits you should not have claimed, Did not claim deductions or credits you could have claimed, or Should have claimed a different filing status. Use Form 1040X, "Amended U.S. Individual Income Tax Return," to correct the return you have already filed. Generally, you must file your claim for a credit or refund within three years after the date you filed your original return or within two years after the date you paid the tax, whichever is later. GARCÍA: Not long ago considerable media attention was given to new taxpayer rights afforded to citizens involved in disputes with the IRS. What are these? GODING: The original Taxpayer Bill of Rights was signed into law in 1988, followed by the second Taxpayer Bill of Rights in 1996 (which amplified and extended certain provisions and protections contained within the original). The IRS Restructuring and Reform Act of 1998 contains the Taxpayer Bill of Rights 3. Under this Bill, taxpayer rights were expanded in several areas, including: Certain publications were rewritten to clarify taxpayer rights; Prohibitions from third-party contact without prior taxpayer notice were established; In certain cases, taxpayers may now be awarded damages and fees and get liens released; The IRS telephone help-line operations were strengthened to address the diverse needs of taxpayers; Collection actions now require supervisory approval prior to issuing a notice of lien or levy; A listing of local IRS office locations and telephone numbers has been added in local telephone directories; An explanation of the IRS examination and collection process is included with the first notice of deficiency sent to a taxpayer; Joint and several liability relief ("Innocent Spouse") requirements have been made less stringent; Taxpayers now receive annual status reports of their installment agreements; and There is equalization of interest rates for underpayments and overpayments. GARCÍA: If I have concealed taxable income and am later caught by the IRS, what penalties am I facing? GODING: Generally, the statute of limitations for assessing all income taxes is three years from the date the return is filed or due, whichever is later. For example, if the return is due on April 15th but is filed prior to that date, the statute of limitations begins on the due date of April 15th. But if an extension is obtained and the return is filed on August 15th, the statute would begin on the August 15th date, since it is later. When no return is filed, the statute of limitations does not begin until that return is actually filed. If a taxpayer omits from gross income (total receipts, without reduction for costs) an amount in excess of 25% of the amount of gross income stated in the return, a six-year limitation period on assessment applies. If a fraudulent return is filed, there is no statute of limitations. Depending on the amount and reason for the concealment of income, various civil penalties (such as failure-to-file, failure-topay, negligence, substantial understatement, and civil fraud) may apply. If the concealment is criminal, you may be subject to criminal prosecution and penalties. Resources GARCÍA: I've read an IRS Training Manual (MSSP Entertainment/Music Industry, TPDS 83411J, 3/94) used to prepare agents for interacting with tax issues in the music industry. Is this still the current document? GODING: Actually, there are two MSSP (Market Segment Specialization Program) Audit Technique Guides available for the entertainment industry on the Internet at the IRS web site, [www.irs.gov]. Select "Tax Info for Business," then "Market Segment 5

Specialization Program Audit Technique Guides," and choose either the Entertainment Guide for the Music Industry (3/94, providing an overview of the industry and covering songwriters, publishers, performers, record producers, managers, and video) or the Entertainment Guide for 1040 Issues (4/95, covering performers, producers, directors, technicians, and other workers in the film and recording industries and live performers), discussing performing for compensation, searching for work, and maintaining skills. These MSSP Audit Technique Guides are updated periodically to keep up with technical changes in the law and results of court decisions. There is also another technique guide available for persons who tour overseas and have extensive international exposure. GARCÍA: Would you consider these useful to musicians interested in learning the IRS' perspective regarding taxes and the music industry? GODING: Yes. The guides are quite informative and may provide excellent guidance for musicians and other entertainers regarding areas such as record-keeping and other audit issues. The IRS produces and provides publications, forms, and other tax materials and information to help taxpayers meet their tax responsibilities; and the IRS web site mentioned earlier is an excellent source of publications, forms, instructions, the latest tax law changes, and other information. It is accessible 24 hours a day, 7 days a week. Forms and publications can also be ordered by phone at (800) 829-3676 at no charge or by fax at (703) 368-9694. The IRS also offers recorded tax help on over 150 topics around the clock via its Tele-Tax: (800) 829-4477. You can talk with an IRS assistor by phone at any time of day or night throughout the week: the (800) 829-1040 call is also free. IRS Publication 910, "Guide to Free Tax Services," provides an index to various IRS publications. Publication 594, "What You Should Know About the IRS Collection Process," contains helpful information on all aspects of this process. The IRS also provides walk-in service at most IRS offices. Other helpful services provided by IRS include services provided by IRS Taxpayer Education, including Small Business Tax Education Programs and Outreach programs; call (800) 829-1040 for details. Sallie Goding / Antonio Garcia www.garciamusic.com 6