Category Archives: Tax Strategy

Artists typically have financial challenges while they build a market for their artwork.  During the many years of likely tax losses, the IRS might re-characterize losses as nondeductible hobby losses.  So if an artist is an employee while also building a business as an artist, the IRS might disallow the losses to be deducted against employment income.  This can be very unfair since the artist could be in genuine pursuit of a business.

Tax Background: Business

Section 162(a) allows as a deduction “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” To be entitled to deductions under this section, the taxpayer must show that she engaged in the activity with an actual and honest objective of making a profit. Hulter v. Commissioner, 91 T.C. 371, 392 (1988).

However, “a reasonable expectation of profit is not required.” Sec. 1.183-2(a), Income Tax Regs. The Tax Coiurt determines whether the taxpayer has the requisite intent to earn a profit on the basis of all surrounding facts and circumstances. Golanty v. Commissioner, 72 T.C. 411, 426 (1979), aff’d without published opinion, 647 F.2d 170 (9th Cir. [*24] 1981); sec. 1.183-2(b), Income Tax Regs. In making this determination, greater weight is accorded to objective facts than to the taxpayer’s subjective statement of intent. Keanini v. Commissioner, 94 T.C. 41, 46 (1990); sec. 1.183-2(a), Income Tax Regs.;

Tax Background: Hobby

If an activity is not engaged in for profit, no deduction attributable to it is allowed except to the extent of gross income derived therefrom (reduced by deductions allowable without regard to whether the activity was engaged in for profit). Sec. 183(b). Thus, losses are not allowable for an activity that a taxpayer carries on primarily for sport, as a hobby, or for recreation. Sec. 1.183-2(a), Income Tax Regs.

Intent to Earn a Profit

The regulations set forth a nonexclusive list of nine factors relevant in ascertaining whether the taxpayer conducted an activity with the intent to earn a profit. They are:

1. the manner in which the taxpayer conducts the activity;
2. the expertise of the taxpayer or her advisers;
3. the time and effort spent by the taxpayer
   in carrying on the activity;
4. the expectation that assets used in the activity may appreciate in value;
5. the success of the taxpayer in carrying on other similar or dissimilar activities;
6. the taxpayer’s history of income or losses with respect to the activity;
7. the amount of occasional profits, if any;
8. the financial status of the taxpayer; and
9. elements of personal pleasure or recreation. Sec. 1.183-2(b), Income Tax Regs.

No factor or group of factors is controlling, nor is it necessary that a majority of factors point to one outcome. See Keating v. Commissioner, 544 F.3d 900, 904 (8th Cir. 2008), aff’g T.C. Memo. 2007-309; Engdahl v. Commissioner, 72 T.C. 659, 666 (1979) (taxpayer’s profit motive must be ascertained “not on the basis of any one factor but on the basis of all the facts and circumstances”); sec. 1.183-2(b), Income Tax Regs. Certain factors may be accorded more weight in a particular case because they have greater salience or persuasive value as applied to its facts. See Vitale v. Commissioner, T.C. Memo. 1999-131, 77 T.C.M. (CCH) 1869, 1874, aff’d without published opinion, 217 F.3d 843 (4th Cir. 2000); Green v. Commissioner, T.C. Memo. 1989-436, 57 T.C.M. (CCH) 1333, 1343 (noting that all nine factors do not necessarily apply in every case).

1. Manner in Which Activity is Conducted

Conducting an activity in a businesslike manner may show that the taxpayer intends to earn a profit from it. Sec. 1.183-2(b)(1), Income Tax Regs. Facts evidencing a businesslike manner include (among other things) the taxpayer’s maintenance of complete and accurate books and records; the taxpayer’s conduct of the activity in a manner resembling that in which successful practitioners conduct similar business activities; and the taxpayer’s change of operating procedures, adoption of new techniques, or abandonment of unprofitable activities in a manner consistent with a desire to improve profitability. Giles v. Commissioner, T.C. Memo. 2006-15; sec. 1.183-2(b)(1), Income Tax Regs.

In order to demonstrate a profit motive, a taxpayer need not keep records of the sort maintained by a Fortune 500 company. In many situations, informal recordkeeping is sufficient. See, e.g., Burrus v. Commissioner, T.C. Memo. 2003-285, 86 T.C.M. (CCH) 429, 435-437 (cattle activity); Fields v. Commissioner, T.C. Memo. 1981-550, 42 T.C.M. (CCH) 1220, 1225 (same); Edge v. Commissioner, T.C. Memo. 1973-274, 32 T.C.M. (CCH) 1291, 1298 (farming); [*30] Farrell v. Commissioner, T.C. Memo. 1983-542, 46 T.C.M. (CCH) 1290, 1295 (same); Harrison v. Commissioner, T .C. Memo. 1996-509, 72 T.C.M. (CCH) 1258, 1262 (gold mining and treasure salvaging activity). For creative artists in particular, our precedents indicate that the recordkeeping required to evidence a profit motive is not rigorous.

In Churchman v. Commissioner, 68 T.C. 696 (1977), the Tax Court held that a taxpayer who had been involved in art activities for 20 years had a profit motive. The taxpayer kept all receipts of her art-related expenses and kept a journal recording what works she had sold and to whom. The Court found that her record keeping was sufficient to show that she conducted her art activity in a businesslike manner even though she “did not keep a complete set of books pertaining to her artistic activities.” Id. at 702.4.

2. Expertise of the Taxpayer and Her Advisors

A taxpayer’s expertise, research, and study of the accepted practices in an industry, as well as her consultation with experts, may indicate a profit motive. Sec. 1.183-2(b)(2), Income Tax Regs. In cases involving artists, the Tax court has considered (among other things) the taxpayer’s education, teaching activities, public recognition, and skills.

In Churchman, 68 T.C. at 702, the Tax Court found that the taxpayer had the requisite expertise as an artist where she studied art for 2½ years, taught art at the college level, had her works shown in commercial galleries at least once a year, and was the subject of articles and critical reviews in newspapers and magazines. In Waitzkin, 63 T.C.M. (CCH) at 2745, the Tax Court found that the taxpayer had the requisite expertise as an artist where she devoted most of her time to producing artwork, promoted her art to collectors and museums, and sold art for many years through galleries and otherwise.

The term “advisors” means advisors relevant to the field of art, such as galleries not necessarily financial advisors..

3. Taxpayer’s Time and Effort

The fact that a taxpayer devotes considerable time and effort to an activity may indicate a profit objective. Giles v. Commissioner, T.C. Memo. 2006-15. Having another job does not necessarily detract from this conclusion–in section 183 cases, this is likely the rule rather than the exception–because a taxpayer may engage in more than one trade or business simultaneously. See Gestrich v.Commissioner, 74 T.C. 525, 529 (1980), aff’d without published opinion, 681 F.2d 805 (3d Cir. 1982); Sherman v. Commissioner, 16 T.C. 332, 337 (1951). In Churchman, 68 T.C. at 697, we noted that the taxpayer taught art classes at two [*37] colleges and had “given numerous workshops independently of any institution.” The Tax Court regarded this as a positive factor in concluding that she was engaged in the trade or business of art. Id. at 702.

4. Expectation of Appreciation in Value

An expectation that assets used in the activity will appreciate in value may indicate a profit motive. Sec. 1.183-2(b)(4), Income Tax Regs. Even if the taxpayer derives no profit from current operations, she may reasonably entertain an expectation of overall profit when asset appreciation is factored in. Ibid. The expectation of appreciation becomes less speculative when a taxpayer shows actual success in an endeavor that could plausibly lead to appreciation. Cf. Tinnell v. Commissioner, T.C. Memo. 2001-106; Hoyle v. Commissioner, T.C. Memo. 1994-592.

In Waitzkin, 63 T.C.M. (CCH) at 2745, where the artist likewise had a large inventory, the Tax Court found that she had the potential to “enjoy greater financial benefits from her work” as it gained recognition and that “at any moment, [she] might become even more commercially successful.” Cf. Allen v. Commissioner, 72 T.C. 28, 36 (1979) (finding ski lodge to be a trade or business where lodge had appreciated in value and taxpayers reasonably expected the value of their assets to continue increasing).

5. Taxpayer’s Success in Other Activities

A track record of success in other business ventures may indicate that the taxpayer has the entrepreneurial skills and determination to succeed in subsequent endeavors. This in turn may imply that the taxpayer, when embarking on these endeavors, does so with the expectation of making a profit. Sec. 1.183-2(b)(5), Income Tax Regs. On the other hand, the absence of prior business experience creates no inference that the taxpayer lacks a profit motive when undertaking a new venture. See Arwood v. Commissioner, T.C. Memo. 1993-352.

In a typical section 183 case, the taxpayer achieves considerable success in a business activity and later embarks on a new activity that the IRS regards as a hobby or sport.

6. History of Income or Losses

The fact that a taxpayer incurs a series of losses beyond an activity’s startup years may imply the absence of a profit objective. Sec. 1.183-2(b)(6), Income Tax Regs. This inference may not arise where losses are due to “customary business risks or reverses” or to “unforeseen or fortuitous circumstances which are beyond the control of the taxpayer.” Ibid. This inference may also be weaker in some fields of activity than in others. As we early recognized: “If losses, or even repeated losses, were the only criterion by which farming is to be judged a business, then a large proportion of the farmers of the country would be outside the pale. It is the expectation of gain, and not gain itself which is one of the factors which enter into the determination of the question.” Riker v. Commissioner, 6 B.T.A. 890, 893 (1927).

Because it often takes many years to achieve economic success in the creative arts, we have found that “a history of losses is less persuasive in the art field than it might be in other fields.” Churchman, 68 T.C. at 701-702. In Waitzkin, 63 T.C.M. (CCH) at 2745, the taxpayer was a “nationally recognized artist whose work ha[d] been shown and exhibited in many well-known galleries and famous museums.” We held that she was engaged in the trade or business of art even though she had never made a profit.

7. Amount of Occasional Profits

The fact that a taxpayer derives some profits from an otherwise money-losing venture may support the existence of a profit motive. See sec. 1.183-2(b)(7), Income Tax Regs. Moreover, “an opportunity to earn a substantial ultimate profit in a highly speculative venture is ordinarily sufficient to indicate that the activity is engaged in for profit even though losses or only occasional small profits are actually generated.” Ibid. The regulations cite a wildcat oil drilling venture as an example of an activity in which an honest profit motive may be founded on “a small chance that * * * [the taxpayer] will make a large profit.” Sec. 1.183-2(c), Example (5), Income Tax Regs.

8. Taxpayer’s Financial Status

The fact that a taxpayer lacks substantial income or capital from sources other than the activity may indicate that she engages in the activity for profit. Sec. 1.183-2(b)(8), Income Tax Regs. An activity that produces losses, if recognized as a trade or business, will normally generate tax benefits for a taxpayer with other income. The receipt of such tax benefits, standing alone, does not establish that the taxpayer lacks a profit motive for the activity. See Engdahl, 72 T.C. at 670; McKeever v. Commissioner, T.C. Memo. 2000-288.

9. Elements of Personal Pleasure

The fact that a taxpayer derives personal pleasure from an activity, or finds it recreational, may suggest that she engages in it for reasons other than making a profit. Sec. 1.183-2(b)(9), Income Tax Regs. The derivation of personal pleasure, however, “is not sufficient to cause the activity to be classified as not engaged in for profit if the activity is in fact engaged in for profit as evidenced by other factors.” Ibid. “Success in business is largely obtained by pleasurable interest therein.” Wilson v. Eisner, 282 F. 38, 42 (2d Cir.1922). Thus, “a business will not be turned into a hobby merely because the owner finds it pleasurable; suffering has never been made a prerequisite to deductibility.” Jackson v. Commissioner, 59 T.C. 312, 317 (1972); Giles v. Commissioner, T.C. Memo. 2006-15.

In Churchman, 68 T.C. at 702, the Court acknowledged that the taxpayer’s art activities “involved recreational and personal elements.” We nevertheless concluded that she conducted this activity with the intent to make a profit, noting that “her work did not stop at the creative stage but went into the marketing phase of the art business where the recreational element is minimal.” Ibid. These less pleasurable activities included maintaining a mailing list, sending out announcements, seeking representation from galleries, keeping receipts of business expenses, and maintaining records of sales and customers. Ibid.

Tax Tips

1. Pursue your talent, first and foremost, while also running it as a business.
2. Keep adequate tax records such as receipts from the purchase of materials and receipts from the sale of your artwork.
3. Document relationships with galleries by archiving emails and contracts.
4. Try to record the amount of time devoted to your art business: the more time the better for tax deductibility.