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Section 181 of the Internal Revenue Code

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Section 181 of the Internal Revenue Code Domestic Film Production Incentive Program Revised Section 181 of the Internal Revenue Code applied to productions with production costs qualifying low-income areas. The first under $15 million. test is based upon production costs and establishes a 20% threshold for • A higher expenditure cap of $20 million the test. It compares production costs Section 181 applies to productions the aggregate costs incurred in first-unit principal photography of which are “significantly incurred” in: a) that takes place in a designated area to How this Revised Provision areas eligible for designation as a low- all productions costs incurred in first- Can Lower Production Budgets income community under the New Markets unit principal photography. This does and Keep Film and Television 1 Production in the United States. Tax Credit program, or b) areas eligible not include preproduction, editing and for designation by the Delta Regional post-production costs. The second test PRIMARY BENEFITS Authority as a distressed county or isolated is based upon the number of days of area of distress. principal photography. If at least 50% of In 2004, Congress Qualifying Film Expenses Immediately the total days of principal photography enacted Section 181 Deductible. Producers or active financial • As defined take place in the designated area, the of the Internal Revenue participants in qualifying film and television by the New production will be deemed to satisfy the Code to create a productions may elect to immediately deduct Markets significantly occurred test. federal tax incentive the cost of qualifying film expenditures in the Tax Credit designed to combat year the expenditure occurs. program, Definition of Qualifying Production. runaway film and qualifying To qualify, at least 75% of the total television production. In • Qualified film and television productions low-income compensation expended on the production 2008, Section 181 was include any film or video tape production communities include any census tract if must be for services performed in the United significantly expanded of a motion picture or television show (a) the poverty rate for such tracts is at States. to cover larger whose costs would otherwise be required least 20%; or (b) (1) in the case of census productions. to be capitalized but for Section 181. tracts not located within a metropolitan • Qualifying compensation includes Only the first 44 episodes, including the area, the median family income for the payments for services performed in This brochure is to help pilot production, of a television series are tract does not exceed 80% of statewide the United States by actors, directors, directors, producers eligible under the law. median family income, or (2) in the case producers, and other relevant production and production of a tract located within a metropolitan personnel. Compensation does not 2 executives understand • In the case of a film co-produced by area, the median family income for the tract include participations and residuals. how Section 181 multiple investors, the deduction for does not exceed 80% of the greater of can help reduce their qualifying expenditures must be allocated statewide median family income or the Tax Benefit Duration. film and television among the owners of the film in a manner metropolitan area median family income. This revised domestic production costs when that reasonably reflects each owner’s Information on qualifying communities film production incentive shooting projects in the proportionate investment and economic can be found at: program – covering the United States. interest in the film. http://www.cdfifund.gov/what_we_ first $15 million of costs do/programs_id.asp?programID=5 of all productions -- will • Qualified films do not include sexually be in effect for qualifying explicit productions as defined in section • A list of areas eligible under the Delta productions commencing 2257 of title 18 of the U.S. Code. Regional Authority statute as distressed after December 31, 2008 counties or isolated areas of distress can and before January 1, 2012. Qualifying Expenses Include the be found at: First $15 Million of Expenditures. The http://www.dra.gov/about/maps.aspx THIS HANDOUT IS FOR INFORMATIONAL proposal applies to the first $15 million • The IRS temporary regulations (T.D. 9312) PURPOSES ONLY AND SHOULD NOT BE VIEWED in production costs for qualifying film or AS TAX ADVICE WITH RESPECT TO YOUR television productions. This is a major outline two alternative tests to determine PRODUCTION ACTIVITIES. FOR SUCH ADVICE, YOU expansion from the previous law which only if costs are “significantly incurred” in SHOULD CONSULT WITH YOUR TAX ADVISOR. 1 As defined in section 45A of the Internal Revenue Code. 2 As defined in section 167(g)(7(B) of the Internal Revenue Code FREQUENTLY ASKED Q: What tax form do I need to fill out to get the A: The $15 million ($20 million) threshold refers incentive? to the qualifying film. The benefits of the provision QUESTIONS must be allocated among the owners of a film in A: Currently, there is no specific form to fill a manner that reasonably reflects each owner’s Q: What out. The IRS temporary regulations require proportionate investment in and economic interest are the key that you declare in a separate statement that in the film. changes to you are electing to utilize Section 181. The Section 181 legislative history also states that: “deducting that were qualifying costs on the appropriate tax return shall Q: In order to qualify for the higher ($20 enacted in constitute a valid election.” Therefore, deducting million) deduction, what does it mean to require 2008? the production costs (that would otherwise be that a “significant” amount of the expenditures be The DGA and IFTA have worked with a capitalized) on your tax return will qualify as incurred in an eligible area? coalition of film industry organizations Section electing to take advantage of this incentive. A: for over ten years to stem the tide of 181, was first enacted by Congress in 2004 to A: The IRS temporary regulations outlined two apply only to films with total production costs alternative tests to determine if the “significantly runaway production. The current effort under $15 million. In 2004, it was significantly Q: Does it apply to all productions (e.g., big occurred” requirement is met. One test is focused on amending Section 181 to modified so that the first $15 million ($20 million budget productions)? based upon production costs and establishes make the United States a competitive in the case of productions in certain low-income a 20% threshold for the test. It compares place for film and television production. Yes, as mentioned above, the immediate and eligible areas of the country) of all qualifying A: production costs incurred in first-unit principal Combined with the incentives that many write-off provision now applies to the first $15 photography that takes place in a designated film and television shows may be immediately states have enacted, DGA and IFTA written-off for tax purposes. This now makes million (or $20 million in low income or distressed area to all productions costs incurred in first-unit believe that the federal incentive will the incentive available for film and television areas) of costs for all productions regardless of principal photography. This does not include productions of all sizes, small or large. the aggregate cost of the project. preproduction, editing and post-production costs. serve as an effective tool to keep more The second test is based upon the number of television and film production in the days of principal photography. If at least 50% of United States. Q: When do productions need to commence to Q: What is the real benefit of this incentive? the total days of principal photography take place qualify for the new incentive? in the designated area, the production will be A: This is a significant Federal tax incentive deemed to satisfy the significantly occurred test. A: The incentive, is one of a number of that allows producers of qualifying productions Runaway Production Alliance Members: temporary tax provisions in the Internal Revenue to take an immediate tax deduction for the full Code which must be extended on a periodic or partial costs of a production in the year the Q: How will other practical issues related to Academy of Television Arts and Sciences basis. The current provision is in effect cost is incurred (as opposed to having to spread this broadened incentive be determined? American Federation of Musicians for qualified productions commencing after or amortize those costs over a period of years American Federation of Television and Radio Artists December 31, 2008, and before January 1, 2012. beginning after the film goes to market). A: Like other tax issues, producers should Association of Independent Commercial Producers consult with their professional tax advisors on any Association of Talent Agents issues related to this new Federal tax incentive. The Caucus for Television Producers, Writers Q: Can the immediate write-offs be taken in Q: How do I determine if it is beneficial to my In light of the new legislation, the Treasury and and Directors more than one year? production? IRS may revise their temporary regulations, which Directors Guild of America may come in the form of Notices and Regulations. Film Musicians Secondary Markets Fund Since the new incentive is elective, A: Yes, if an election is made to use the A: A number of groups that worked on this important Hollywood Post Alliance producers can run numbers with or without the incentive, the immediate deduction takes place in legislative change are expected to continue International Alliance of Theatrical Stage Employees new incentive and determine whether or not to the year the expenditure is incurred. Therefore, working with the Treasury Department and the Producers Guild of America if production expenditures are incurred in more elect to immediately expense the production costs IRS to ensure the incentive fulfills its objective and Independent Film & Television Alliance than one year, the immediate tax deduction will be in the first year(s).
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