Posts Tagged ‘exceptions’

Beware of Wolves In Expert Clothing!

Thursday, March 3rd, 2016

By Robyn Guilliams, Esq.   

Dear Law & Disorder,

I am a member of a band in Canada, and we do quite a few performances in the U.S. each year.  Our accountant has always told us that we don’t need to file income tax returns in the U.S., because the band is incorporated, and also because our U.S. fees are exempt from tax in the U.S. under the U.S. / Canada tax treaty.  We haven’t had any problems for the past four years, but now the IRS is contacting each of the venues for our U.S. shows, and telling them that they have to withhold tax of 30% of our gross.  The IRS also says that each band member must file individual U.S. tax returns for the past seven years, AND that our corporation doesn’t shield us from U.S. taxes.  Help!  Our Canadian accountant claims that he is an expert regarding U.S. taxes, but I’m worried he might not be.

Oh dear – I’m sorry to hear about your tax mess.  It certainly sounds as if your Canadian accountant is no expert!  I’m afraid I hear this sort of story quite often.  Many of our clients have come to us after a so-called “expert” handled their U.S. taxes (or visas) and got them into a world of trouble with the IRS (or USCIS).

The IRS is correct in telling you that any nonresident individual who works in the U.S. must file an individual U.S. tax return.  (There are a few VERY LIMITED exceptions to this rule, but none apply here.)  You may owe no tax.  Perhaps your net income was below a certain limit (or sadly, nonexistent), or perhaps you qualify for an exemption from U.S. tax under the U.S. tax treaty with Canada.  Still – you must file a return to report your income!  After a certain amount of time, you lose the right to deduct your expenses (i.e., you’ll be taxed on your gross income), and you’ll lose your right to claim a tax treaty exemption.

U.S. tax laws and regulations are extremely complex, especially concerning taxation of nonresidents.  As an example, this regulation is just one of many concerning nonresident tax withholding. Welcome to my world!

A knowledgeable tax advisor can help an individual to reduce his or her tax liability, which may save a performer or group a substantial amount in U.S. taxes.  On the other hand, an incorrectly prepared return can trigger an IRS audit!  At the moment, I’m working with five – FIVE – nonresident clients who are being audited.  In each case, the return was prepared a self-professed “expert”, and it included numerous errors, including mischaracterizations of income and/or expenses, claiming exemptions or deductions to which my client was not entitled, and failing to include required schedules and attachments.

Here are a few helpful hints for those in search of assistance in preparing a U.S. nonresident (or any other) return:

  • Check out the IRS’s “Tax Tip” on choosing a preparer at https://www.irs.gov/uac/Choose-Your-Tax-Preparer-Wisely.
  • Before hiring any tax preparer, check his or her credentials on the IRS website at http://irs.treasury.gov/rpo/rpo.jsf.
  • Be aware that, by law, anyone who receives payment to prepare a tax return is required to obtain a Preparer Tax Identification Number (PTIN) from the IRS, and to sign and include their PTIN on all client returns.  A PTIN always begins with “P” and is followed by eight numerical digits.  If your preparer does not have a PTIN – run away!

I hope this is helpful to you!

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For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

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Posted in Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Uncategorized, Visas | Comments Closed

International Touring: More Tales From The Front Lines

Thursday, December 10th, 2015

By Brian Taylor Goldstein, Esq.   

I realize there are other equally important issues out there than visas and international touring. However, in the wake of the recent terrorist attack in California, and as U.S. politicians and political candidates roll out a “Keep the Hate Alive” campaign, we are constantly receiving alarming updates from clients as well as from the American Immigration Lawyers Association of artists encountering new obstacles and challenges. Here are the latest changes and challenges you need to be aware of:

1.  A Visa Cannot Be Valid Beyond The Dates In The Approved Visa Petition

When a visa petition is approved by USCIS, it is approved for a specific classification period. When an artist then goes to a U.S. Consulate to apply for her or her visa, the visa issued is supposed to reflect the classification period of the approved petition. For example, if a violinist is approved for an O-1 classification period of August 1, 2015 to July 31, 2016, then the O-1 visa stamped into her passport should reflect an expiration date of July 31, 2016. If you examine an O or P visa, you will most often see the letters “PED” followed by a date. “PED” refers to the “Petition Expiration Date.” The PED date “should” coincide with the expiration date of the visa itself.

Unfortunately, some U.S. Consulates have erroneously been issuing O-1 visas that expire beyond the classification period of the approved petition—in some cases, O-1 visas have been issued for with a validity period of up to five years in the future! If this happens, your artist has not won the immigration jackpot! Under U.S. law, the maximum validity period of an O-1 visa for an artist cannot exceed three years. Moreover, it cannot exceed the classification period of the approved petition.

Recently, a prominent artist was turned away because she attempted to enter the U.S. under just such circumstances. A visa petition had been filed for her in 2014 and the petition was approved for an O-1 classification period of 8 months. However, the U.S. Consulate issued her an O-1 visa that did not expire until 2019. She and her management reasonably presumed that this meant she was free to use her O-1 visa until 2019 and no further visa petitions were required. Indeed, until recently, she had been entering the U.S. on the visa ever since 2014 without any trouble. Her past entries were the result of luck and inadvertence on the part of U.S. Immigration Officers at the port of entry. This will no longer be the case. All U.S. Immigration Officers will be scrutinizing all visas far more closely.

When USCIS approves a visa petition, it issues an I-797 Approval Notice with the specific dates of the approved visa classification period. If you or your artist ever receives a visa from a U.S. Consulate that expires beyond the dates of the classification period or beyond the PED date on the visa, ignore all dates beyond the PED date! Assume the visa expires on the PED date and do not use it for any work or travel beyond that date.

(For those of you who are actually interested in legal minutiae, there ARE, in fact, legitimate categories of 5 year O and P visas—they just don’t apply to artist categories. This is why the consulates can get easily confused.)

2.  All Artists Should Travel With A Copy of Their I-797 Petition Approval Notice

Another artist was recently detained at a U.S. airport for attempting to enter the U.S. on an erroneous “5-year O-1 visa.” Ultimately, he was permitted to enter only because he happened to have a copy of his I-797 O-1 Petition Approval Notice indicating that his upcoming U.S. engagement was within the approved classification period. However, he was reminded not to travel on his O-1 visa after the expiration date of the classification period.

Earlier this week, an artist was actually refused entry on his P visa because a U.S. Immigration Officer claimed that he needed to have a copy of his I-797 approval notice. The U.S. Immigration Officer was wrong. The artist had to fly home and be booked on a return flight to the U.S. the next day. Aggravatingly, but not surprisingly, when the artist flew back to the U.S. the next day with a copy of his approval notice, the U.S. Immigration Officer on that occasion didn’t even ask for a copy of the approval notice and the artist was admitted without any questions.

Also this week, a Canadian artist arrived in the U.S. with a copy of her I-797 approval notice (which is all that is required for Canadians) and was refused entry because the U.S. Immigration Officer claimed that she needed to have the original I-797 approval notice. The U.S. Immigration Officer was wrong on this occasion as well. Fortunately, a supervising officer was able to step in and resolve the matter so that the artist was ultimately able to enter.

Except for Canadians, artists and others are not required to travel with a copy of their I-797 petition approval notices—much less the original I-797 approval notice itself. Nonetheless, given that U.S. Immigration Officers have been placed on high alert (without always knowing exactly what they are looking for), we are recommending that all artists travel with a copy of their I-797 approval notice. Should any artist be asked for an “original” approval notice, he or she should calmly and politely ask to speak with a supervising immigration officer. More often than not, the supervising officers are better trained than the officers assigned to the inspection desks.

3.  Changes To The ESTA/Visa Waiver Program

Congress is in the process of adding additional restrictions to the Visa Waiver Program—the program which permits citizens of 38 countries to travel to the United States for business or tourism for stays of up to 90 days without a visa. This is often erroneously referred to as an “ESTA visa.” The term “ESTA” stands for “Electronic System For Travel Authorization” and is merely the registration process through which an individual indicates their intent to enter the U.S. without a visa. It is not a visa. This is important because artists are required to have a visa whenever they enter the U.S. to perform—even if they perform for free; even if no tickets are sold; even if they are performing for a non-profit; even if they are performing for a festival; or even if they are performing for a college or university. In short, performers can never enter the U.S. to “perform” under the Visa Waiver Program.

While most of the propose changes to the Visa Waiver Program should not have any impact on artists (unless the artist is from or has ever travelled to certain counties in the past 5 years), United States Customs and Border Patrol has already begun significantly seeking out artists who may be registering for ESTA and attempting to enter the U.S. on the visa waiver program with the intention of performing. We are getting almost daily reports of artists being stopped, refused entry, and having their ESTA/Visa Waiver privileges revoked for life!

I cannot emphasize this enough: any artist who attempts to enter the U.S. under the Visa Waiver Program for any purposes that involves actually performing does so at his or her own peril!

The only limited exceptions—and they are very narrowly construed—are competitions, auditions (including non-public showcases at arts conferences) and speaking (but not performing) at a college or university.

4.  There Continue To Be Significant Delays In Processing Visa Petitions  

USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers and there appears to be no end in sight to these delays. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

On the bright side, dealing with international touring at the moment makes all those other topics we write about–cancellations, copyright infringement, taxes, commission disputes–a little less daunting.

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For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

 

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

 

 

 

 

 

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Never Play Chess With Pigeons

Thursday, October 1st, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

I’ve been asked sign a bad performance review with a number of inaccuracies. Can I be fired if I don’t sign it? Or should I insist that it be amended to reflect the truth? Our Executive Director is very emotional and hard to deal with, but I’m thinking that I should at least try and sit down and get her to change her mind rather than just give in.    

Unless you have an employment contract—or, in some cases, an employee manual—that specifically sets forth the circumstances and conditions under which you can be terminated, then it probably doesn’t matter whether you sign it or not. Many states, such as the State of New York, are what are referred to as “employment at will” states. You would need to check the laws in your specific state. However, “employment at will” means that an employer can pretty much hire and fire as he or she pleases and a discharged employee usually will have no legal recourse even when the discharge is unfair or unreasonable. The only exceptions would be termination based on statutorily defined discrimination—such as race, religion, gender, age, or disability. (Certain more enlightened jurisdictions, such as New York City, also include sexual orientation and marital status in this list.) Other than that, an employer in an “employment at will” state can walk in one day and fire anyone for any reason. In other words, unless one of the exceptions apply, you can be fired whether you sign the bad review or not.

Ideally, it would great if you could correct the record. A bad review that indicates you failed to follow instructions or disregarded office policies could negatively impact your eligibility for unemployment compensation should you be fired. However, correcting the record may not always be practical or realistic.

If your boss is “very emotional and hard to deal with”, you are not alone. There is no shortage in our industry of exceptionally talented and creative individuals who, nonetheless, should be heavily medicated. Many of these souls find themselves unfettered and autonomously in charge of distinguished arts organizations and businesses.

I am constantly amazed at how many people cling to the belief that a logical argument, persuasive reasoning, or “the right words” will magically transform an otherwise irrational person into Socrates. In fact, whether you are negotiating a contract or trying to mollify an artist, attempting to reason with an emotional or irrational person is like playing chess with a pigeon: it doesn’t matter how brilliant you are, the pigeon is still going to knock over all the pieces and poop on the chess board. Getting such a person to admit he or she is wrong about anything will only be met with defensiveness, paranoia, reminders of how you should be more appreciative of their past largess with regard to your past transgressions (most of which you will have never been told about before), and accusations that you are being argumentative, not a team player, exasperating, and disrespectful.

The best, and only, way to begin any conversation with someone being unreasonable or emotional, and who also happens to be in charge, is to validate, never confront. Assuming you want to remain employed, you need to accept that your boss “owns reality” at the moment and learn to live and work within that fantasy land. You don’t have to admit the facts to admit that your boss’s perception that you have done a poor job or failed to meet expectations is a perception you are enthusiastically willing to correct. Like a bad review of a concert or performance, thank the critic and then move on.

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For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

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Posted in Arts Management, Employees, Law and Disorder: Performing Arts Division | Comments Closed

Showcasing: A Rare Visa Exception

Wednesday, August 28th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder

Do non-US artists need artist visas when they come in to perform a showcase at a booking conference? They don’t get paid. Its just to get bookings. In fact, the artists lose money doing this. Can they enter on a tourist visa or do they have to spend even more money and go through the process of getting an artist visa?

Its rare that someone asks us an immigration question where they actually might like the answer…this may be one of those instances.

However, its first always worth remembering that, under current U.S. immigration law, whether or not a foreign artist is required to have an artist visa (almost always either an O or a P) is not related to payment. What triggers the need for an artist visa is performance. Whether or not an artist is paid, whether or not tickets are sold, whether or not the performance is public or private, whether or not the performance is for a non-profit educational or a cultural organization, if an artist performs, and there is someone watching the performance, he or she is required to have an appropriate artist visa.

Except for rare and limited exceptions, an artist can never perform on a visitor visa or, if applicable, under the visa waiver program. One exception is a competition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of participating in a competition where there is no payment other than expenses and a prize, monetary or otherwise. Another exception is an audition. An artist is not required to have an artist visa if the artist is coming to the U.S. for the sole purpose of auditioning or meeting with producers or presenters in the hopes of being hired to perform in the future.

While there is no official codification of a showcase being regarded as an audition, the U.S. State Department in conjunction with U.S. Citizenship and Immigration Services have long taken the position that a showcase is regarded as an audition if it meets the following criteria: The showcase is not open to the public, no tickets are sold or available, attendance is open only to registered members of the booking conference, and the artists are not paid and are responsible for their own expenses. Also, the artist cannot perform any other engagements in the U.S. while on the same trip. In other words, they need to get in, perform the showcase, and get out. If these criteria are met, then an artist may enter the U.S. and perform at the showcase on a visitor visa or, if applicable, a passport issued by a “visa-waiver” country.

Be forewarned: simply calling a performance a “showcase” is not sufficient. Nice try, but that won’t work. If an artist books a venue, sells tickets or otherwise makes tickets available to the public, but allows booking conference attendees to attend free, that is NOT a showcase for purposes of the artist visa exception and the artist will be required to have an appropriate artist visa. Similarly, booking an engagement with a low fee simply because the artist or the artist’s agent/manager believes such engagement will be an opportunity to showcase or introduce the artist’s talents to the U.S. market in the hopes of getting future bookings is also NOT a showcase.

If you believe that you or an artist you represent may qualify for the showcase exception, then, if the artist is traveling on a passport from a “visa waiver” country, he or she needs to travel with a letter from the artist’s agent/manager or, even better, from the booking conference itself, confirming that all the elements of the exception are met. If the artist is traveling on a passport from a “non-visa waiver” country, then he or she will need to apply for a visitor visa at a U.S. consulate, but should bring the appropriate letter with them explaining that the showcase exception applies.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Can A Visitor Record An Album?

Wednesday, October 3rd, 2012

By Brian Taylor Goldstein

So glad I found your page on the internet, so far it’s been the most helpful out of all my Google searches! I have just a couple of questions. We are from Australia and I have a 14 year old son who has signed a recording contract in the US. Currently we are traveling back and forward on the Visa Waiver Program. I understand he is not aloud to perform until he has an “O” visa. However, is he aloud to record music in his producer’s studio for the album and take label meetings in the hope of placing a major recording contract? When I say meeting, its meeting with music labels for an interview/audition and you normally have to sing a song so that they can hear you and see if they like you in their office.

First of all, congratulations on the recording contract. Those are NOT easy to come by these days.

The visa waiver program allows citizens of certain countries (with Australia being among them) to enter the U.S. for up to 90 days as a “visitor” without first having to obtain an actual B1/B2 (visitor) visa from a U.S. Consulate. Citizens of visa waiver countries only need to have a valid passport to enter the U.S. as a visitor. When an individual enters on the visa waiver program, he or she is subject to all of the same rules and restrictions as if they had an actual visitor visa.

A “visitor” to the U.S. is allowed to do all of the normal visitor activities (sightseeing, shopping, visiting friends, etc.) as well as have business meetings. Visitors cannot work or look for work. Artists who enter as visitors are allowed to attend competitions and auditions (which, as we all know, is a heck of an amount of hard work!), as well as have meetings with producers, agents, and other arts professionals. However, with limited exceptions, they are not permitted to perform in front of an audience–even if they perform for free and/or no tickets are sold! An artist must have an appropriate artist visa (either an O or a P) in order to perform. When it comes to recordings, there’s a limited exception: A recording artist is permitted to come to the U.S. as a visitor to use recording facilities in the U.S., for recording purposes only, provided the recording will be distributed and sold only outside the U.S., and no public performances will be given. Otherwise, when recording artists enter the U.S. to record albums, they are required to obtain an appropriate artist visa.

In your situation, it is perfectly fine for you son to enter the U.S. on the visa waiver program to meet with his agents, producers, and representatives of his label. He can even have interviews and auditions. However, he cannot record music in his producer’s studio for purposes of a publicly released and distributed album unless it’s for an album that will be sold and released outside of the U.S.

You’re fortunate in that Musical America just released a fantastic downloadable report on the complex issue of obtaining U.S. visas for artists, full of helpful tips and explanations. You’ll also want to check out artistsfromabroad.org which has become the definitive resource tool on the issue and which contains an exhaustive array of information and materials.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Law and Disorder: Performing Arts Division, Recordings, Visas | Comments Closed

When You’re Right, You’re Right!

Wednesday, September 19th, 2012

By Brian Taylor Goldstein

I wonder if you would mind giving me some advice on a visa situation with one of my artists. To summarise, I represent a British artist who was commissioned to write a 7 minute piece for a university in the United States which will be premiered in 2013. The artist will be traveling to the United States around the premiere for various events, including attending concerts and also one or two workshops led by the artist. Primarily, the new piece will also be conducted by the artist himself. In the past, this artist has always held an O-1 visa to work in the United States. However, the university is insisting that, because it is a university, the artist only needs a visitor visa and they are refusing to obtain an O-1 visa for him. The university is not only paying the artist for the commission (which has already been settled through his publishers) but for his visit and performance as a conductor. Therefore, I should think we need a visa and that it’s not really possible for him to travel on the visa waiver scheme – is that correct? If so, am I right in thinking that he really should get an o-1 visa as he always has before?

Because so many legal questions involve the application of broad legal concepts to issues of specificity and nuance, its customary to qualify certain answers by saying “it depends.” That is not the case here. Based on the details you have provided, you have made this extremely easy for me: you are correct. The university is wrong. Plain and simple.

Yes, he needs an O-1 visa. No, he cannot enter and perform on the visa waiver scheme. The visa waiver program allows citizens of certain countries (including the UK) to enter the US as visitors solely using their passports and without the need of obtaining an actual visitor visa. However, they are must abide by the same rules and restrictions applicable to all visitors—namely, no work. For artists, work is not defined by payment. ANY performance of any kind or nature, even if no tickets are sold and the artist receives no fee, is, nonetheless, defined as “work” While there are, indeed, certain exceptions, they are very narrow and limited and, in this case, are inapplicable. I suspect the university is relying on a narrow exception that permits individuals to enter the US as visitors in order to give a lecture or demonstration at an educational institution and receive travel reimbursement and an honorarium. However, that is not the case here. Your artist has clearly been “hired” to conduct. The fact that he is conducting an orchestra at a university does not qualify for a visa exception any more than the fact that music is being performed at a university exempts the need for licensing it (though many erroneously believe this to be the case!). The fact that the university may have convinced other artists to perform for them without the proper visa just means these artists did not get caught. Your artist may not be so lucky.

I would direct the university to www.artistsfromabroad.org. Also, Musical America is about to unveil a special visa issue which will be jammed packed full of insights and tips on bringing foreign artists into the US. Stay tuned!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

Do Competitions Need To Withhold Taxes On An Artist’s Prize Money?

Wednesday, June 6th, 2012

By Robyn Guilliams

We hold a piano competition where artists, some from abroad, pay their own way to come here to compete.  If they win any prize money, do we need to withhold taxes?

For artists who are nonresidents of the U.S., I’m afraid you are required to withhold taxes! The general rule is that any payment of “U.S. income” made to a nonresident of the U.S. is subject to the 30% withholding requirement. In effect, 30% of the gross income paid to the artist must be withheld by the payer and deposited with the U.S. Treasury.  This deposit will be credited toward any taxes the artist may owe at the end of the year.

Depending on the artist’s country of residence, however, there may be an exception to the withholding requirement.  The U.S. has entered into tax treaties with many countries (68 at last count.)  The terms of each treaty control where a particular person’s income is taxed when the person resides in one country, but the income has a connection to another country (the treaties prevent the person from being taxed twice, in two different countries, on the same income.)

Whether or not an exemption from tax in the U.S. exists is very fact-specific.  Obviously, the nonresident artist must reside in a country with which the U.S. has entered into a tax treaty.  But (just to keep things interesting), the terms of each treaty are different, so the treaty in question must be reviewed to determine if there is a provision that exempts his type of income from U.S. tax, and whether that exemption can be claimed at the withholding stage!

A more detailed explanation of how the tax treaties work is available at the Artists from Abroad website:

http://www.artistsfromabroad.org/tax-requirements/exceptions-to-nra-withholding-requirement/tax-treaties/

You may also want to check out the IRS’s Publication 901, “U.S. Tax Treaties”, (http://www.irs.gov/pub/irs-pdf/p901.pdf), which provides a summary of each treaty currently in force, as well as a few helpful charts to determine what types of income are exempt under each treaty (but be sure to read the footnotes carefully!)

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.com.

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Arts Management, Law and Disorder: Performing Arts Division, Taxes | Comments Closed

I Want To Engage A Foreign Artist. Tell Me Everything I Need To Know!

Wednesday, May 30th, 2012

By Brian Taylor Goldstein

Dear FTM:

What needs to be done to bring a performing artist from a foreign country to play in a US concert? How is their pay reported to the IRS? Is withholding required? Do they have to pay taxes on the money that they earn in the US? Etc.

Wow, this is a pretty broad question. In general…and this is very general…in order for a foreign artist to perform legally in the US, he or she will need to obtain a visa. In most cases, this will be either an O or a P visa. (There are almost no instances when a foreign artist can legally perform in the US on a visitor visa—regardless of whether or not the artist is paid or tickets are sold.) In order to obtain the necessary visa, someone in the US—such as the presenter or the artist’s US-based manager or agent—will need to file a visa petition on the artist’s behalf with United States Citizenship and Immigration Services (USCIS). The petition consists of the forms, evidence, and documents required for USCIS to “approve” the artist for the requested visa. As you may imagine, USCIS also requires a petition fee. Once approved, USICS will issue an “approval notice.” The artist will then use this “approval notice” to apply for the actual visa at a US Consulate. This will involve more forms…and fees.

Depending on where the artist is from, and how much they earn, they may or may not have to pay taxes on money that they earn in the US. With some exceptions, all artists who perform in the US are subject to 30% withholding from their gross engagement fees. Then, the artist is then required to file a tax return (just like you and I), declare all payments and withholdings, claim any applicable deductions and exemptions, and seek either a full or partial refund. Alternatively, an artist can apply to the IRS in advance of his or her performance and seek a withholding deduction. As you may imagine, all withholding is reported to the IRS on a form. The artist will also need to obtain either a social security number or a taxpayer identification number. This, too, involves forms.

While this can all seem overwhelming, the good news is that everything you need to know is contained in a website: artistsfromabroad.org. Produced by the League of American Orchestras and Association of Performing Arts Presenters, and authored by FTM Arts Law, artistsfromabroad.org is the most complete and up-to-date online resource for engaging foreign guest artists and non-US arts professionals, and includes essential guidance, forms, sample documents, and useful links. Even better—the entire website has recently been fully updated, redesigned, and re-launched, making it even easier to find the information performing arts organizations and artist managers need to successfully navigate the U.S. visa and tax procedures required when engaging international artists for performances in the U.S.

________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.com.

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Central Withholding Agreements, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed