AN ACTOR INQUIRES
An Actor Inquires is a section devoted to actors and the questions they have about the business and legal aspects of the film and theatre industry. In a nod to Stanislavski and his book, An Actor Prepares, these blog posts are meant to prepare you about the other equally important areas of the acting profession. A talented actor who knows his or her craft AND the business is a force to be reckoned with. If you have questions for future postings, please e-mail them here.
“I’ve heard that a lot of
Hollywood actors have a loan-out company for their acting services. What is a
loan-out company and should I form one?”
A loan-out company
is a business entity formed by entertainers like actors, musicians, directors,
producers, etc. (“owner”) to provide their services under the guise of “employee” to a third party like a studio,
production company, television network, record label, etc. Although usually a
C corporation (one that is taxed separately from its owners), the loan-out can be an LLC (limited liability company) or an S corporation. It is called a
loan-out because the company “lends” the services of the “owner”/“employee” via
contract with the third party. Instead of the entertainer, the loan-out is the
signatory to the contract. The loan-out company then “hires” the entertainer to do the
job. However, note that many third party companies like studios make the
entertainer sign an inducement which is basically an additional document that
creates an obligation to the third party, i.e. it makes the entertainer
promise to live up to the promise made by the loan-out.
I know you’re
probably asking, What’s the point of doing all that?
In a nutshell,
entertainers set up loan-out companies for the following reasons:
• To take advantage of favorable tax breaks that
are available to corporations and LLCs (such as medical reimbursements and
other employee benefits) but not to self-employed individuals.
• To allow the loan-out to provide the
“owner”/“employee” with essential services (everything from accounting to legal
to coaching to agency representation) and then deduct them as business expenses.
• To pay a lower tax rate. Under the progressive
income tax system, wage earners pay a higher tax rate as their income goes up.
However, corporations are taxed at a flat rate and that flat rate is usually
lower than the rate for a person earning the same amount.
• To set up an IRS-qualified pension plan that
offers tax benefits to “owner”/“employee” contributors.
• To initiate a profit-sharing plan that lets the
“owner”/“employee” contribute a certain amount from year to year towards their
retirement.
• To protect the company’s assets from the entertainer’s
creditors and lawsuits. Technically, any money the entertainer earns through
the loan-out as an “owner”/“employee” belongs to the loan-out. Only the property the entertainer possesses,
as an individual separate from the loan-out, is accessible to creditors.
By now you’re
probably thinking, This loan-out sounds like a good idea, help me form one.
But here’s the reality check:
• You need to be making a good amount of money
first; at least $75,000 and preferably over $100,000 a year to truly benefit.
• It takes money and work to maintain a
loan-out company. You have to make annual filings and tax payments to the state you
formed it in to maintain your company’s status. And you probably have to make
payments to the states where you operate in as well. So if you live in New York but
work in Los Angeles then you can see how it adds up.
• If your company is a corporation (or your
LLC elects to be classified as a corporation) then you will face double
taxation. That means the loan-out pays taxes on its net earnings and then the “owner”/“employee”
pays taxes on the wages and bonuses the company pays the “owner”/“employee.”
• It can all be for naught as there is a
possibility you end up paying the higher personal rate of taxation instead of
the lower corporate tax rate because the Internal Revenue Service (IRS) considers your loan-out as a
tax-avoidance scheme. The IRS is aware of loan-outs and what they are used for
and so if the company is not properly established and maintained then the IRS
will be suspicious of the loan-out. To avoid suspicion, the entertainer should
form the loan-out BEFORE signing the contract.
The loan-out is
simply a business and legal strategic tool to protect and manage your earnings.
While it can provide substantial tax benefits and other bonuses, a loan-out
requires proper planning, formation, maintenance and administration. Otherwise,
it can end up being a major headache. Therefore, it’s worth the time and money
to seek out professional help from a tax advisor familiar with the
entertainment industry, as well as, an entertainment lawyer who understands the
industry and your needs.
Danny Jiminian is an attorney who specializes in Entertainment Law, Intellectual Property, Business Law and Nonprofits and practices out of New York. For a free consultation, reach him at his website.
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1 comment:
Your article is very informative and I wasn't sure about creating a loan-out company. Thanks for penning the ideas down here.
Regards,
Apoorva
HCBL Bank - Tathastu
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