HOW TO KEEP ALL THAT MONEY YOU AREN’T MAKING AT ART!!!
aka How to run your business and do your taxes as an artist
(Updated for 2017 Tax Cut and Jobs Act)
Aka Christy Nicholas, CPA, MA
- WHAT STRUCTURE SHOULD I USE?
The first question to ask in setting up your art business is how you should set it up – i.e., what structure it should have. This may seem like a silly question, but it is a very important one, as it determines how you report your income and expenses. And report them you must!
There are several types of organization to choose from, and the determining factor is risk. How much risk are you willing to take? Are you willing to pay more for less risk? I will demonstrate what this means:
- SOLE PROPRIETORSHIP
The most risky organization is the sole proprietorship. This is because if someone sues you as a sole proprietorship, they can, theoretically, take your home, your car, and all your worldly possessions in a lawsuit. There is no separation between the business and you, so any lawsuit can take everything. However, most art businesses have little lawsuit risk attached to them. I am unlikely to get sued for damages unless I steal someone else’s art. (don’t do that!) If I was installing stairs, on the other hand, I would definitely want to limit my risk. The term for this characteristic is ‘unlimited liability.’
Now, there are advantages to being a sole proprietorship. There is little to no cost in setting it up, no legal forms to fill out, no paperwork to file with the state. When you report your income and expenses, it goes on the Schedule C of your own personal tax return (1040), and isn’t taxed separately.
There are also disadvantages, such as the aforementioned unlimited liability. There is also the fact that the company has a limited life – when you pass away, so does the business. (Ask Disney if this is important!). It is also more difficult to get financing from banks and therefore difficult to expand.
If you are willing to pay a little more money on a regular basis, you can get the advantage of limited liability with a corporate setup. A corporation is a separate entity from you as a person, therefore if it is sued, only those assets owned by the company can be taken, not your personal home and possessions. This is the main advantage of having a separate corporation. It is also easier to expand, as banks are usually more willing to offer financing for this. It can have a life beyond the life of the founder, as many corporations have (i.e., Sears, Disney).
Now to the disadvantages; The main one is the cost and complication of setting up and upkeep. There are fees to setting up the corporation with the state (none for the federal government), and annual fees to keep the license in good standing every year. In my home state of Florida, it is about $75 to set up the corporation, and $150 a year to keep it going. There is also additional paperwork, as you need to file a separate tax form every year (1120 or 1120S) with the federal government. You may also need to file one for your state. And, you may have to pay taxes at a corporate rate, which is usually higher than your personal rate.
I would like to go into the differences between a C corporation and an S corporation. C is the corporations we are most familiar with – corporate monsters like Microsoft, IBM, Disney, Sears, etc. These get taxed at a corporate rate, which is currently 15% up to $50,000 in profit, and goes up from there. An S Corporation (S stands for Small) has to have less than 100 stockholders (among other requirements) but does NOT get taxed at the corporate level. Let me repeat that – no tax is paid on the corporation itself. Instead, the income gets reported on each shareholder’s tax return, and is paid at their personal rate. This is usually the better deal for small companies, as personal returns are not taxed at all for the first $7000 in income.
- LLCs and LLPs
Many people ask me about Limited Liability Corporations and Limited Liability Partnerships. These are both fairly new entities, and as such, don’t have (as of yet) their own share of rules and laws by the IRS. The main benefit is, of course, limited liability – which means your personal house is safe if someone trips over your sculpture and sues you. However, you also get that with an S Corp, and both can be either single member or joint ownership between spouses. They can also have more members, unlike a Schedule C, but until they’ve ‘settled’ in as accepted entities, I cannot recommend them as corporate structures. Each state has different rules for these entities as well, so if you are interested in setting one up, you will want to consult with a lawyer or CPA in your state.
Usually, art is not a partnership style of business, but some of us are lucky enough to know the right person, and trust them enough to go into business with them. This person could be a spouse, a child or parent, or a good friend. However, do PLEASE set up the partnership rules in writing beforehand. Nothing ruins a relationship more easily than arguments about money! Partnerships file a 1065, and the business itself is not taxed. Like an S Corporation, the profits are listed on the Schedule K-1 and go to the partners’ individual tax returns, to get taxed there.
In my personal opinion, most artist would do best as a sole proprietorship, unless there is a significant possibility of liability (i.e., you do 3D installations that someone could trip and fall on). In that case, I would recommend S corporations as the best alternative.
Since sole proprietorship is usually the most beneficial to artists, I will continue the essay under the assumption that this is the structure chosen.
Tax Cuts and Jobs Act of 2017
Many changes were enacted on Dec. 22, 2017 with the Tax Cuts and Jobs Act, and the legislation was passed quickly, without much study on what the effects and implementation would mean in practical terms. Keep in mind that some, even many, of the tax changes as applied to individuals ‘sunset’ out or expire in future years. What is true for 2018 won’t be true for 2023.
Relevant tax changes include:
- The income level and tax rate for individual tax brackets were shifted, with most people paying lower taxes in 2018.
- Standard deduction nearly doubles from $12,700 MFJ to $24,000.
- Personal exemption is eliminated ($4,050)
- Child tax credit goes from $1000 to $2000 ($1400 refundable) and $500 for ‘other dependents’ and the phase-out has been raised considerably
- Mortgage interest deductions capped at $750,000 loans
- SALT (State and local income tax, sales tax, property tax) is capped at $10,000. Prepaying 2018 taxes in 2017 effectiveness varies by state. In NYS, as long as you had a bill (assessed) and paid it in 2017, you should have been able to deduct in 2017.
- No individual mandate for ACA
- Medical expense deduction floor lowered back from 10% to 7.5% for 2017 and 2018. Back to 10% for 2019.
- Casualty loss deduction limited to a federally-declared disaster area
- Alimony payments no longer deductible as expense or payments included in gross income
- Employment-related moving expenses no longer deductible except for military
- Miscellaneous itemized deductions (tax prep fees, employee expenses, etc.) eliminated
- AMT exemption level increased
- Bonus Depreciation of 100% through 2022.
- Meals and entertainment no longer deductible for businesses, except for bonafide business travel or employee celebrations
- Reduces pass-through taxes via a TEMPORARY (2018-2025) 20% deduction (after which 29.6% tax rate applies). This includes everything but C Corps.
- Currently small business owners of the above pay taxes at their individual rates. This varies from 10% to 39.6%
- No NOL over $250,000 is allowed for non-corporate owners in the current year. Any excess is carried forward to the next year.
- 20% of net income (qualified business income = net income except for reasonable compensation) is a new deduction
- S Corp: If you pay the owner no salary, reasonable compensation must be calculated and deducted from qualified business income.
- Phase-outs apply as total taxpayer gross income rises above $157.5/$315K for Single/MFJ, especially for ‘specified service businesses’ such as performing arts and accountants (no physical deliverable)
- The deduction is capped to the greater of: 50% of the W2 wages or 25% of W2 wages plus 2.5 % of qualified business property.
- You DON’T need to itemize to claim the deduction
- Deduction is limited to 20% of the household’s non-capital gains taxable income
- More information and examples: https://www.kitces.com/blog/pass-through-business-deduction-rules-qualified-business-income-qbi-limits/
- Corporate tax rate falls from 35% to 21%.
- Businesses making renovations or improvements must use 39 year depreciation rate instead of 15 year (due to drafting error)
Recommendations for changes:
- Check your withholding. It probably shifted in February due to the new laws, but if the laws change your tax situation to where you normally itemize and it’s better not to under the new laws (or vice versa) you don’t want to be unprepared at the end of the year with a big tax bill. Talk to your accountant about this!
- Check your business structure. It may be more advantageous to move from sole proprietor to S corp or vice versa.
South Dakota v. Wayfair, Inc., Supreme Court Decision 2018
In the past, as per the prior ruling under Quill Corp v. North Dakota, interstate internet sales were exempt from sales tax, as long as the seller had no physical presence (nexus) in the buyer’s state.
This new court decision has overturned that law. In this particular ruling, an exemption was set for South Dakota for small businesses. If the business has fewer than 200 customers in that state, and less than $100,000 in sales in that state, they are not required to collect and remit sales tax.
However, that exemption is ONLY for South Dakota. It leaves every state, county, and locality that charges sales tax free reign to set their own minimums… or none at all.
As an example, in the past if I sold a print from my website (I’m based in New York) to someone in Miami, Florida, no sales tax would be due. Now, however, I’ve got to research Miami, determine if there is sales tax due to the city, the county, the state, how much, register for that sales tax number, and collect and remit sales tax for that transaction on a monthly, quarterly, or annual basis – whatever the locality mandates. If there is no minimum, that means a $40 sale could result in ten hours or more worth of research, paperwork, and headaches. If I don’t make the required payments, I could get penalized with late fees and/or interest.
This is a huge change in how we do business and, as small businesses without a staff of tax accountants, places a huge undue burden upon us as internet retailers for research and paperwork.
Even if you DON’T actually owe money, it is possible you have to spend considerable time and energy proving it. Here’s an example that happened to a friend of mine, a professional artist who sells her art at conventions.
T goes to Los Angeles to sell her art at a convention. The convention is three days, and she has the required State of California seller’s permit. She collects and remits taxes as required, as per the information the convention provided.
She received a letter some time later from the RMS Tax Discovery Unit of the City of Los Angeles, insisting that she was delinquent in paying an obscure city tax she’d never heard of. She was exempt, but the Code mandates she needed to file for an exemption every year before Feb 28 – before she even knew she would be doing business in LA. This is only required for residents of LA, which she could prove she was NOT, but they wouldn’t listen to that part. They required her to physically come in with 1099s and IRS papers to calculate how big a penalty she owed. She lives in Colorado. They were told they had to PROVE they had no ongoing business in LA. How do you prove a negative? There is no mechanism set to clear yourself of the charges.
Countless hours spent on the phone with several different people at several different offices finally resulted in, days later, finding ONE person who was able to say no, you don’t owe this. Sorry.
The harshest part of this was the original collection effort was farmed out to a private collection agency, which are notorious for using scare tactics and strong-arm methods to collect the debt, no matter what. Add to that the byzantine and outdated communication channels of most government bureaucratic agencies, and you get a nightmare. Now multiply that not just by 50 states but by the cities and counties and other municipalities across the country that may do the same thing.
My friend T has shut down her online website sales completely until this is resolved. It’s a huge hurt on her small business, as that is a decent chunk of her income. However, she can’t risk wasting so much time on each incident until rules are in place.
Fair warning. This might be a huge chaotic mess for several years.
- WHAT IS INCOME?
In the common usage, Income means (literally) any money coming in – whether it be a loan from the bank, a paycheck from your job, a gift from Grandma, or a sale of a painting. However, in the accounting world, many words take on different meanings. This is one of them.
Income, for someone running a business, derives from operating the business. If it’s an art business, then sales from your art business is your main form of income.
That income can have several categories, though; you can have sales of existing art and art products, such as bookmarks, you can have commissioned sales of art, and you can have sales of excess supplies, or shipping, or display equipment. The majority of your income should come from the first two categories, though.
For those that are unfamiliar with commissions, it is when someone contracts with you to produce a piece of art to their own needs and desires, rather than purchasing art you created before you met them.
Another form of sales is consignment sales, which involves placing your artwork in someone else’s store, and only receiving money when it is sold. Sometimes this is a gallery, sometimes a gift shop, sometimes online – but the portion of income you receive is the only income you declare, not the total price. For instance, if I have a print on sale at the local gift shop for $30, and I get $20 from it when it sales (the other $10 goes to the gift shop) then I declare $20 income from the sale.
SELLING OTHER STUFF
Sometimes an artist has too much of a particular supply, and decides to sell off the excess on ebay, or doesn’t need a table anymore, or a particular display piece. This is called incidental income – not something you do on a regular basis in your business. It’s not the sale of art, but it is slightly related. These sales are income, but not always sales income – sometimes it’s called ‘gain’ rather than profit. It’s reported differently only if you are selling fixed assets, i.e., your computer, your desk, your display equipment. If it’s just paint or brushes, it’s regular income. Sometimes size DOES matter!
If you also charge shipping on your sales, this too is considered income. The cost of your shipping shows up in expenses, and usually these two cancel out. However, with the advent of so many businesses on Ebay making their profits from outrageous shipping fees, this could come back to bite you in no return customers if let out of hand!
Many people ask how Sales Tax comes into play with income. In reality, we never ‘earn’ sales tax – we merely collect it and hold it for the state government. Whenever we make a sale that is taxable, we collect the sales tax. Once a month, or once a quarter, or sometimes once a year, we tally up all the sales tax we SHOULD have collected and pay it to the state. That SHOULD is a very important word! If you did not collect sales tax, but should have, you are STILL liable to pay it to the state, out of your own pocket.
Also, the sales tax is defined by where you are conducting business in most states. For instance, if I sell something on my website, and my business is in Florida, I charge Florida sales tax for my county to someone I sell to in Florida. If it is across state lines, Florida law says I don’t have to charge sales tax. That may change in the future, though. If I move my place of business – like setting up a booth in Georgia – I charge and pay Georgia sales tax. Some states (like Georgia) have a one-time special event tax form so I don’t have to register to do so. Some don’t, you will need to check! If I sell at a booth in another county, I have to charge their sales tax rate.
Since Sales Tax is not income, when we collect it we do not include that as income (thus we don’t get charged income tax on that money). It’s not an expense that we can deduct, either… it doesn’t go on the federal income tax return at all!
All in all, income is any money coming in that is a result of a business transaction in your business. That sounds complex, but it helps differentiate between things that aren’t income – like a gift from your dad, or a loan from the bank. Those aren’t income, and you don’t pay taxes on it!
We wouldn’t want to be paying Uncle Sam MORE than he is asking for, now, do we???
- HOW DO I VALUE INVENTORY?
Inventory is one of those mysteries of the accounting world, an esoteric subject fit to backroom discussions by candlelight and adding machines, right? WRONG! Inventory is a very simple concept – the cost of the stuff you have that you can sell.
Inventory can include any number of things, but they should be things that can be traced to a particular piece. That means that you can include the canvas, paper, frame, matboard, and hanging hardware that you bought for that painting – but not the paint itself. The reason is that this tube of Titanium White has been used to paint on 12 other paintings, and is still only halfway used. There is no easy way to attach the cost of the paint to a particular piece, so it is instead deducted as ‘supplies expense’, along with the paintbrushes, turpentine, disposable pallet pages, etc.
If, however, you use 4 buckets of gesso for one installation, that can be traced to one piece, so you can use that as an inventory cost.
So, the cost of one of my digital prints would NOT include the computer, or the program, but would include the cost of printing, the matboard, and the bag. It wouldn’t include the ink from the pen to sign it. Be reasonable, and you’ll be ok.
This inventory cost is usually counted at the end of the year. The amount you have in inventory is the cost of each item you have that is ready for sale, plus unfinished pieces, which are considered ‘work-in-process’ inventory. Also include items that will be used for such pieces, like blank canvasses and uncut matboard, etc.
On your tax return, you list a beginning inventory amount (the amount of these items you had at the beginning of the year). You add the cost of purchases during the year, and you subtract the amount of these items you sold (at cost, not at sale price!). The ending figure should match how much you have on hand at the end of the year. If not, you make an adjustment so it does – this is breakage, spillage, spoilage, loss, etc. and can be deducted as an expense.
By structuring it this way, the expenses for inventory are only deducted when the item is sold, as opposed to when the items were purchased. This is an important difference to the IRS!
Here’s an example to illustrate:
At the beginning of the year, I had $120 in inventory, mostly matted and bagged prints. I bought $800 in new prints, $200 in mats and bags, and have assembled most of those into salable pieces. I have sold $500 worth of these items (that is the cost, NOT the sale price!). Based on this, my ending inventory should be $120 + $800 + $200 – $500 = $620
I have on hand at the end of the year $500 worth of salable items, and an additional $100 in unused mats. That means I have on hand $600 worth of inventory.
The difference between $620 and $600 is represented by 10 prints that were damaged in shipping, and I can write those off as Spoilage Expense. My cost of goods sold is $500 (this goes on the tax return, as well as the beginning inventory, ending inventory, and purchases).
As I mentioned earlier, items that are used for many pieces are supplies, not inventory. They are deducted when they are purchased, rather than when they are used.
Supplies typically include items used up over the course of time, such as paints, inks, regular paper (office supply rather than photographic paper), pencils, pens, erasers, tape, etc. You get the idea. Also, these are typically low cost items, where it would take more time to keep track of the cost than the deduction is worth!
One of the quirks of a sole proprietorship is that you, as the owner, cannot deduct wages for yourself. You can pay someone else and deduct those, but you simply take extra cash out of the company funds as a withdrawal – this is not deductible. If you are paying someone wages and they are directly responsible for creating inventory, you CAN include that portion of their wages in inventory cost. For example, you create painted vases – you have three apprentices doing the base work for you, prepping the vases for your master’s touch. Their wages can be added to the inventory cost for the vases they prepare.
Note: If you have an S corp and you do NOT pay yourself wages, you would have to deduct ‘reasonable salary’ from your business income before figuring the new 20% deduction from the 2017 Tax Act.
TIMING AND CASH BASIS
Timing is an important concept in the creation of inventory, and the sale thereof. The IRS likes to see an expense taken in the same month that the sale it is associated with is made (thus inventory). If you sell an item in December of 2016, and the payment is collected in January 2017, then you should record the sale in 2017 – and the associated inventory cost of goods sold. This is called ‘cash basis’ as opposed to ‘accrual basis’. Most sole proprietors and S corporations are on cash basis accounting.
Accrual basis accounting is when you made that sale in December 2016, reported it in 2016, and listed it as a receivable – a sale that is made but not paid for yet. When the payment is made in 2017, it is not a sale, but a payment of the receivable.
Cash basis is much simpler, and therefore much more common in sole proprietorships.
When you have inventory, you are on ‘modified cash basis’, and that is the preferred method for sole proprietorships, and the one I have found works best with artists.
- WHAT CAN I DEDUCT AS EXPENSES?
There are several things that people get confused about when considering what can be deducted on a tax return for your business. I will attempt to cover those items that cause the most questions.
One of the most confusing areas is equipment. According to the IRS, if a piece of equipment is a substantial cost (i.e., more than $100) and will last more than one year, you should ‘capitalize’ it. By capitalize, they mean list it as an asset, and take the expense as a deduction over several years, rather than all in the year you purchase it. This is called depreciation, and has several rules to follow.
Equipment can include computers, mat cutters, display booths, desks, software, any number of things. The main point is that it should last longer than one year. Do not include consumables such as pens, paint, paper, brushes, even if they last longer than one year – the cost of these are minimal and it is a waste of time and paperwork to keep track of them.
For example, I purchased a booth to display my art at art shows. The booth cost $700. I plan on getting several years worth of use out of it, and the IRS says it’s furniture (ok, sort of!) and therefore, according to a list they maintain, it should be used up in 7 years. Therefore I take the total cost ($700) and divide it by 7, getting $100. This is the amount I deduct every year for ‘depreciation expense’ on that item.
Many of you have heard of Sec 179 depreciation. That is a special rule by the IRS that says you can take the whole cost of such an item in the year you purchased it. That is ONLY allowed if you are making a profit. For the example given, the entire $700 would be taken the year it was purchased.
For 2017-2022 (part of the new tax act), a new Bonus Depreciation for 100% in the year purchased.
Furniture and fixtures are considered 7 year property, while cars, computers and other electronics are 5 year property. For other items, you can check out www.irs.gov for the list.
As mentioned previously, you can deduct wages paid to someone else, but not to yourself. Wages you take yourself are not deductible, and are considered a repayment on the loan you gave the company to start up.
If you have set up as a Corporation, however (C or S), you CAN deduct your wages – and you must declare them as income on your personal return. This is usually a wash.
TRAVEL AND MEALS
This is one of the more controversial aspects of IRS law and business deductions. The rules are fairly simple – it’s the interpretation that’s a bear!
You can deduct the costs of travel if you are primarily there on business. If there is some business and some pleasure, you should prorate the costs. For instance, I go to Dragoncon every year. If I didn’t have my art in the art show, I would still go, so there is some pleasure factor. However, most of my time is spent in or around the art show, either setting up, tearing down, attending panels, helping the art crawl, schmoozing with other artists, etc. In my interpretation, I spend 80% of my time on business – so I feel justified in deducting 80% of my costs (not my husband’s costs!!!!) of the trip.
That would include transportation there (we drive, so it’s actual gas expense or mileage at 54 cents a mile in 2016 and 53.5 cents a mile in 2017), the hotel room, the fee for renting the panel, the fee for attending Dragoncon, and 50% of MY meals there (again, not husband’s!)
This is always a sticky area, as it’s hard to prove I’ve spent my time in art-related activities. However, the fact that I keep my receipts, record my mileage, have art at the show, and keep my records in a business-like manner will prove to the IRS (should I ever get audited) that I approached the show as a business expense. It is still up to them to say yea or nay, but I’ve got a great case, so to speak.
Other expenses you can take in this area are fees for art shows and galleries, networking club dues, travel to such club meetings, client meetings, and installations. You can even deduct the mileage on trips to the craft store! If you are staying overnight on business travel you can deduct REASONABLE expenses for hotel and meals.
Any deductible meals are only allowable at 50%, and should be directly related to the business, i.e., entertaining potential or existing clients, or traveling on business. The new Tax Act ONLY allows travel meals and employee celebrations for deducting expenses, and business must be conducted. Many meal-related expenses (office snacks, water, coffee, etc.) are now 50% deductible when they were fully deductible. Meals at a conference during business travel is still 50% deductible.
There is also a per diem option for other travel expenses, similar to how mileage works. The IRS grants those traveling for business a set amount, or ‘per diem’ for each day of travel. The amount varies based on the location and time of year of travel. You can find charts for the US at https://www.gsa.gov/travel/plan-book/per-diem-rates.
Per Diem is available for Lodging, Meals & Incidental Expenses, or JUST Meals & Incidental Expenses, as you require. Usually the Per Diem rate is higher than actual (unless you’re spending a lot, and most of us aren’t!), and are therefore more useful to use for tax returns.
This is another area filled with confusion, but the IRS has gotten more and more lenient in this area over time, due to the increased popularity of telecommuting in today’s work environment.
However, you still need to have an area of your home devoted to art production to deduct the expenses related to it.
For instance, I have a room in my house that has my computer, my art supplies, my inventory, and my business records. I conduct most, if not all, of my art business at home in this area. Let’s say it is a 15X15 room (225 square feet), and I have a 2250 square foot house. That means I have 225/2250 = 10% of my house dedicated to the business – we use that percentage to prorate the indirect expenses.
Indirect expenses are those that are paid on the whole house, including mortgage interest, real estate taxes, utilities, homeowner’s insurance, rent, house repairs, etc. All of these get added up, and 10% of them is deductible.
Direct expenses would include a dedicated business phone line, repairs or utilities that are for the dedicated work area alone, etc. These are deducted at 100%. (i.e., the window in your studio was repaired).
If you have a net loss on your business, the deductions for home office expense can’t be taken that year, but can be carried over to next year’s tax return to be deducted when you DO have a profit.
A small percentage of depreciation on your house is also deductible, based on the value of the house and the land.
There are several other expenses that can be deducted that many people don’t think about. Here are some of them:
Health insurance for the artist can be deducted, and it is usually better deducted for the business (self-employed health insurance deduction) than on the Schedule A, where it is limited by your income level. This is one of those deductions you can only take if you’ve got a net profit.
Advertising – including mailings to your mailing list, business cards, etc.
Business insurance – something very important. This is separate from health insurance!
Legal or professional services – including the costs of setting up the corporation and doing the taxes each year.
Office supplies or rentals – do you have a water cooler? Postage machine? How about a credit card machine?
Rent of space or equipment – definitely deduct rental trucks or space fees. The booths at the art shows, if they are rented, and the space itself, certainly!
Repairs or maintenance of equipment – yes, this includes your computer if you use it for business! If it is also used for personal things, you should again prorate it. If I use my computer for 90% business, I can deduct 90% of the repairs.
Taxes and licenses – property taxes, business licenses, those can all be deducted. Sales tax, however, is NOT a business expense – nor is it income when you collect it. Technically, it is something you collect and hold in order to pass it on to the state government.
Taking responsibility for running your own business is a big step, but it can be done with a little organization and education. When you are out of your depth, contact a professional and let them help you. Most artists are afraid of the business side of art, and that is understandable. However, the more you know the better you can understand how the business works, and the more you can devote your time, energy and creativity to forming the art you love.
- What are some websites that can help me?
- Small Business Association www.sba.gov
b. Infernal Revenue Service www.irs.gov
c. Should you be an employee or a contractor https://www.irs.gov/newsroom/understanding-employee-vs-contractor-designation
d. Schedule C for your Form 1040 https://www.irs.gov/pub/irs-pdf/f1040sc.pdf
- Email meat firstname.lastname@example.org if you have any other questions… I do taxes for artists, and can do everything long distance via email!