Newsletter: Moore Media 360 | October 2022

27 September 2022 / Insight posted in Newsletter

Welcome to the latest edition of Moore Media 360, which is our collection of topical content from our Moore Global member firms and clients from around the world.

While this edition continues our focus on ESG – in particular, its relevance to value creation in the advertising sector – it also seeks to highlight the hot topics within the media sector across the world. From the UK, we reveal key trends in the media sector, as well as looking at the dominant question in the marketing services sector – what does post-Covid financial recovery look like? Taking a different perspective, in Nigeria, how has the pandemic triggered a major boost to the film industry and fledgling media tech sector?

As an international network, working with clients across the world, cross-border taxation is always front of mind. In this edition, we look at tax planning for inbound entertainers to the US. From a corporate point of view, we also explore the funding arrangements for cross-border film financing for taxation purposes.

We are proud to hear more about Moore Tejero’s development of a training program to complement that of the Ministry of Education of Buenos Aires City’s, which seeks to improve opportunities for students in the marketing services sector in response to the economic challenges Argentina currently faces. We are also pleased to hear from Moore Beirut how they can help clients in the media sector, which is a well established market that is experiencing a resurgence.

Although it is a time of uncertainty, our experts across the world are working together to give confidence to you and your business. I hope that this edition gives you a picture of this, as we welcome articles from those countries who have not previously featured here.

As always, we hope you find Moore Media 360 insightful.

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How is the financial performance of marketing services companies faring?

Francesca Robe, Media Director at Moore Kingston Smith discusses the trends we are likely to see in the 2022 annual survey on the financial performance of marketing services companies, ahead of its launch later this year. By analysing key performance indicators, here Francesca looks at how the marketing services companies have fared in the face of the pandemic, what growth opportunities have since opened and what challenges persist in the sector.

The significance of ESG in the advertising sector

 

KEY CONTACT: Charlie Killingbeck | Assistant Manager, Moore Kingston Smith

Just how significant is ESG within the advertising sector? Here, we look at examples of how a company’s position on ESG can either erode value or provide opportunity to create value. With clear long term implications, a robust and agile ESG strategy is becoming increasingly essential.

ESG materiality

Materiality is not a new concept, and its definition remains unchanged. Information is material when it can be reasonably expected to make a difference to the conclusions drawn and decisions made by reasonable stakeholders when reviewing the related information.

However, the information sets which are considered material are expanding to include ESG factors resulting in new materially concepts being defined: Double Materiality and Dynamic Materiality.

Double Materiality captures the concept that ESG is directional. Firstly, there are the internal ESG factors that impact the environment, economy, and society. Emissions or employment practices for example. Secondly, there are the external ESG factors that will have a material impact on a company’s ability to create value. Climate change or Brexit for example.

The two directions are interlinked in the long term – the failure of companies to address their internal ESG factors in the short to medium term will increase the risk of external ESG factors eroding company value in the long term.

Dynamic Materiality seeks to describe this directional relationship and how external ESG factors move from the immaterial to the material. The are plenty of examples: #MeToo, Black Lives Matter, COVID-19, and the myriad of natural disasters occurring on an annual basis. The speed and increasing frequency of these events reinforce the need for a robust and agile ESG strategy, governance structure, and reporting practices to ensure swift responses.

Advertising sector ESG progress

As with most sectors, advertising management teams and shareholders have begun their focus on the external ESG factors that are eroding value or providing an opportunity to create value. Most notably in the sector, social movements such as #MeToo and Black Lives Matter have seen Equity, Diversity, and Inclusivity (EDI) risks move to the top of the agenda.

While the effects of these movements have already come to fruition, others are undoubtedly on the horizon. Organisations and their clients throughout the sector are increasingly looking to improve the EDI qualities of content, reach more diverse audiences, and better understand how audiences are engaging with and influenced by content.  To deliver these end goals media companies are addressing the internal root cause, workplace EDI.

Similarly, the environment is fast becoming an increasing area of focus. Globally governments are setting net-zero targets. In the UK, the target for decarbonising our economy is 2050[1]. For the mid-market (those not captured by TCFD) the environment presents an opportunity to differentiate and create value in the short run and avoid value erosion in the long run. Companies are increasingly looking to calculate and offset their carbon emissions from travel and content production. Supporting offsetting programmes are strategies to reduce emissions to zero by 2050 or earlier.

An area considered less within the mid-market is data protection, intellectual property (IP) rights and content verification. However, management teams would argue that GDPR and IP law compliance is sufficient on this front. While this is true from the UK perspective, operating in jurisdictions outside the UK, and in particular those which do not have sophisticated, transparent regulatory environments, increases exposure to breaches. The UK mid-market whilst compliant is not yet considering how governance and reporting practices are incorporating these risks.

[1] Net Zero Strategy: Build Back Greener | Gov

ESG value creation – the big picture

ESG is growing across all sectors and when utilised correctly can create stakeholder value within organisations, both financially and commercially. Fundamentally, companies failing to embed ESG will leave value on the table in the short term and cease to exist in the long term.  We are already seeing evidence of this in the advertising mid-market:

Supply chains

Organisations up and down the advertising value chain beginning to incorporate ESG factors within existing supplier due diligence frameworks. As these frameworks evolve any early adopters who have identified, incorporated and measured their material ESG risks will begin to capture market share.

Investors

The immediate pressure is top-down with institutional investors demanding ESG strategies and data from PE funds. PE funds and PE-backed businesses making acquisitions are now considering ESG factors, albeit inconsistently. We have already seen investment opportunities fall through due to a lack of diversity within senior management teams or a high concentration of customers from negative industries such as oil & gas or tobacco[2]. On the other hand, those organisations that are measuring and reporting on ESG may be able to earn a premium.

Regulation

Advertising is already subject to the strict GDPR and IP laws within the UK. However, compliance should not be taken for granted as both legislation and advertising are continually evolving. It is essential for organisations to have strategies in place to be constantly evaluating and monitoring regulatory risks, reducing exposure wherever possible.

The Taskforce for Climate-related Financial Disclosures (TCFD) is now mandatory for organisations with more than 500 employees and a turnover of more than £500m. Commencing in reporting periods after the 6th April 2022, qualifying companies are now required to report on the material climate-related (environmental) risk, the governance of these risks and the strategies in place to mitigate.

Agencies which have been able to adopt and integrate ESG will be in a better position for future regulatory changes.

Reputational

ESG issues now have the potential to create significant reputational damage to companies and brands. Organisations that fail to act or act irresponsibly through greenwashing will quickly erode the reputational goodwill from both customers and suppliers.

[2] The growing importance of ESG in M&A | Moore

Celebrating the production sector in Latin America

Gary De Souza, Media Director at Moore Kingston Smith has recently returned from his visit to São Paulo and Buenos Aires. Here, Gary gives us insight into some of the highlights of his trip, including getting together with colleagues from the Moore Global network, meeting clients and celebrating the thriving production sector at the CICLOPE LATINO festival.

Inclusion and community care through education

Matias Tejero, Partner at Moore Tejero, gives an overview of the program set up by the Ministry of Education of Buenos Aires City to help improve job opportunities for students in the marketing services sector. Here, he also gives details of how Moore Tejero have developed an additional special training program to enhance the Ministry’s offering.

Tax planning for the inbound entertainer

 

KEY CONTACT: Leon Dutkiewicz | Citrin Cooperman

The United States (U.S.) is a key destination for many entertainers as it comprises a large, global market for musicians, actors, DJs, athletes, and other artists. Many non-U.S. entertainers receive inconsistent, incomplete, or otherwise inaccurate U.S. tax advice, and as a result they often suffer an excessive tax burden.

The following discusses several pertinent issues that should be considered by foreign artists and entertainers coming to the U.S. either for limited engagements or permanent relocation. International tax planning for such creative individuals is a balancing act which should consider not only the ways to reduce U.S. tax exposure, but also the effects that such planning may have in the artist’s home country and globally. Proper global tax planning should be undertaken prior to U.S. engagements or moving to the U.S.

Who is a U.S. tax resident and why is it important?

A foreign national is treated as a United States tax resident in any year during which they have a green card or spend a sufficient amount of time in the U.S., generally in excess of 183 days in a given year or a combination over three years. Non-green card holders who wish to avoid becoming U.S. residents should carefully monitor the amount of time spent in the U.S. Retaining competent tax advisors to ensure compliance and management of U.S. residency rules is important. The issue is particularly relevant for foreign entertainers as they are often not in control of their travel schedules and may become U.S. residents inadvertently because of frequent U.S. engagements.

Once an individual is treated as a U.S. tax resident, they are subject to U.S. federal income tax on all income, regardless of where it was earned. Due to robust U.S. foreign asset reporting rules, foreign entertainers who own companies and/or other foreign assets can also be subject to a host of additional U.S. reporting and tax filing requirements.

Tax considerations for nonresident entertainers

1. Taxation of nonresident entertainers generally

Nonresident aliens who earn Effectively Connected Income (ECI) with a U.S. trade or business are taxed at a net basis and are required to file an annual tax return.

Most non-U.S. entertainers working in the U.S. on a temporary basis will have ECI since the performance of services in the U.S. is one of the few enumerated activities that definitively constitutes a U.S. trade or business. Promoters and venues who pay foreign entertainers are required under general rules to withhold 30% of the gross payment and remit the tax to the IRS. In most cases, the final tax liability can be reduced by filing a U.S. tax return and claiming the appropriate expenses against gross income.

While some U.S. treaties may reduce or eliminate the final tax owed, withholding is required even if payment is made to a loan-out entity used by the entertainer for contracting purposes. It is important to note that even though treaties are largely beneficial for foreign persons receiving U.S.-source income, there are significant limitations on benefits available to actors, entertainers, and athletes. In addition, while the artists’ and entertainers’ articles of several U.S. tax treaties do not apply to behind-the-scenes production staff, writers, directors, and coaches, there is considerable ambiguity as to whether these articles apply to other nonresidents engaged in less obvious creative endeavors in the U.S. such as models, stage and costume designers, choreographers, and other creative professionals. Any inbound entertainer who falls in this grey area should carefully consider whether the artist and entertainer article of a treaty applies to them as it will undoubtedly influence their exposure to U.S. federal income tax.

2. Central Withholding Agreements

The imposition of the 30% withholding tax on gross U.S.-source services income can create significant cash restraints for entertainers who likely already operate on a tight budget. They often rely on ample cash flow to pay service providers and their management team. Where a reduced rate under a U.S. treaty does not apply, some entertainers may be able to reduce the rate of withholding tax by entering into a Central Withholding Agreement (“CWA”) with the IRS.

The applicant must submit documentation to the IRS substantiating the U.S. engagements, budgets, and expenses which support a lower withholding rate. If approved, payments are made to a designated withholding agent who is responsible for withholding tax at an agreed-upon rate and remitting it to the IRS.

Although CWAs can ease the cash-flow burdens faced by some foreign entertainers, they require meticulous record keeping and expense projections. Furthermore, applications must be submitted 45 days prior to the first U.S. engagement and contain a complete list of all anticipated U.S. work on a specified tour. This can be problematic for some musicians, in particular, as scheduled gigs are often cancelled, and new shows are added to a U.S. tour with little notice.

3. Global tax leakage

Stranded Foreign Tax Credits (FTCs) often present a real and substantial cost to the nonresident entertainer performing services in the U.S. through a loan-out structure. The issue commonly arises where an entertainer utilizes a transparent company for U.S. engagements (typically a single member LLC) which is regarded as a corporate entity in the entertainer’s home country. For example, with very narrow exceptions, the United Kingdom (UK) regards U.S. LLCs as corporations. Therefore, U.S. taxes paid personally by a UK tax resident to the IRS with respect of fees paid to an LLC are not creditable against the individual’s UK tax liability because Her Majesty’s Revenue and Customs (HMRC) views the company as the technical taxpayer, not the individual. Similarly, when profits are extracted from the company, HMRC may view them as dividends which do not have an associated U.S. tax available for crediting in the UK.

While loan-out structures are commonplace and critical for most artists and entertainers for both liability purposes and to allow for the deductibility of expenses, tax advisors should consider the taxpayers overall global tax structure to prevent or minimize any global tax leakage.

Tax considerations for nonresident entertainers relocating to the U.S.

Foreign entertainers who become U.S. tax residents face an array of complicated U.S. tax issues which can quickly become burdensome and costly if not managed properly. It is difficult to describe all these rules, and their various permeations, exceptions, and qualifications in this short article but we will discuss the most relevant to inbound entertainers.

1. Dual Residents

In certain cases, foreign nationals who are treated as both a U.S. resident and resident of a country with which the U.S. has entered into a bilateral income tax treaty may be able to rely on the treaty’s “tie breaker rules” to avoid being subject to the full ambit of U.S. taxation. Generally, the tie breaker rules look to assign a single country of residence based on where the individual’s ties are strongest or “closer connection” exists.

Because foreign actors and entertainers may spend a considerable amount of time in the U.S. without developing very significant ties to the country, it is important to consider the applicability of the tie breaker rules. For example, a touring musician may spend more than the allowable number of days in the U.S. on a U.S. tour, but during that time he or she may stay primarily in hotels, have no family in the U.S., and may fail to develop any meaningful ties to the U.S. outside of their periodic work here. In this case, assuming a treaty applies, the musician may be able to avoid being treated as a U.S. tax resident by taking a dual resident treaty position with a timely-filed U.S. income tax return.

2. Anti-Deferral Regimes

The Internal Revenue Code is replete with rules that attempt to discourage U.S. persons from using foreign corporations in low-tax jurisdictions to shelter foreign income. Unfortunately, many of these rules are broad and will generally encompass foreign entertainers earning income abroad once they are considered a U.S. tax resident. The scope of the rules applicable to the taxation of controlled foreign corporations (“CFCs”) was significantly expanded by the Tax Cuts and Jobs Act (“TCJA”) such that it is nearly impossible to earn income abroad through a CFC without the imposition of some current U.S. tax.
Many foreign actors, musicians, and athletes use foreign loan-out entities to provide services outside of the United States. Others may own foreign holding companies that own a variety of passive investments, or which service their royalty income streams. If a foreign loan-out company is treated as a foreign corporation under U.S. entity classification rules (which is usually the case) and the entity is more than 50% owned by a U.S. person or persons who individually own 10% or more of the company, the entity is treated as a CFC. As a CFC providing the personal services of one or more of its owners, any foreign source income earned by the corporation will generally be immediately taxable to its U.S. owners as Subpart F income, regardless of whether any actual distribution was made. In addition, foreign entities that are used to house a performer’s trademarks, image rights, and other intellectual property (IP) rights can be subject to the Subpart F rules depending on how the company is organized and managed.

There are various exceptions to the Subpart F rules and certain elections that a U.S. shareholder can make to ameliorate the impact of the rules. However, since the enactment of the Global Intangible Low-Taxed Income rules (“GILTI”) in 2017, many of these exceptions simply convert what would be Subpart F income into GILTI, which is also subject to immediate taxation, albeit at a lower rate.

There are several strategies and planning options that a foreign entertainer can use to mitigate the CFC rules; however, these strategies generally require prospective planning. This planning should be implemented prior to becoming a U.S. tax resident. It is essential for foreign entertainers and their tax advisors to have comprehensive knowledge of their structures and the intersecting rules which may impact how they are treated for U.S. tax purposes.

3. Foreign Tax Credit Planning

To reduce the burden of double taxation of foreign income, the U.S. permits U.S. taxpayers to take a foreign tax credit (“FTC”) or deduction for certain foreign taxes paid to a foreign country with respect to non-U.S. source income. FTCs are also guaranteed by U.S.-model income tax treaties. FTCs are vitally important to entertainers who earn income overseas because it enables that such income is not subject to tax in two countries if the structured properly.
With respect to U.S. resident actors and entertainers who earn income abroad, one of the most significant changes is that for foreign withholding taxes on personal services income to be creditable absent a treaty, the foreign country imposing the tax must do so using sourcing rules that are reasonably similar to the U.S. rules. This means that the income must be sourced according to where the services were performed rather than the location of the payor, for example.

The issue is particularly relevant to entertainers who receive royalty income from foreign payers. If those payors are resident in a non-treaty country and that country sources the income based on where the payor resides rather than where the property giving rise to the income was exploited, then the foreign tax may not be creditable.

In addition, for a foreign income tax to be creditable, it must be “non-compulsory.” Generally, this means that there is no opportunity under foreign law or an applicable treaty to reduce the burden of foreign taxation. For example, if a U.S. musician earns income in Canada, they are generally required to file a Canadian tax return to attempt to offset the withholding tax with allowable credits before an FTC can be claimed against their U.S. tax liability on that income. For this reason, it is important that entertainers who are U.S. persons work closely with both their U.S. and non-U.S. tax advisors to ensure that the requisite steps are taken in all countries to minimize tax leakage.

Conclusion

Whether a foreign national entertainer is considered a U.S. tax resident or a nonresident alien, the importance of prospective tax planning cannot be overstated. The tax issues endemic to entertainers operating in the international space are unique and highly fact specific. Foreign entertainers coming to the U.S., be it on a temporary or permanent basis, should work closely with their U.S. tax advisors to ensure that their tax affairs are managed in the most efficient and effective manner possible. A goal of any good tax advisor should be to manage the technical issues and to work closely with the entertainer’s management team to understand the facts particular to the individual and craft a custom plan to minimize the clients overall global tax liability while minimizing where possible any tax leakage. This will maximize the entertainer’s profitability, but it will also allow them to focus on their creative endeavors rather than esoteric international tax issues.

How Citrin Cooperman can help

Our dedicated International Tax Services Practice professionals are prepared to assist you in tax planning for inbound entertainers. For more information, please visit our website or contact Leon Dutkiewicz, ldutkiewicz@citrincooperman.com, or Connor Southwell, csouthwell@citrincooperman.com.

About Citrin Cooperman

“Citrin Cooperman” is the brand under which Citrin Cooperman & Company, LLP, a licensed independent CPA firm, and Citrin Cooperman Advisors LLC serve clients’ business needs. The two firms operate as separate legal entities in an alternative practice structure. Citrin Cooperman is one of the nation’s largest professional services firms. Clients are in all business sectors and leverage a complete menu of service offerings. The entities include more than 200 partners and over 1,500 employees across the U.S.

Cross-border film financing

 

KEY CONTACT: Doris Yau | Partner, Holthouse Carlin & Van Trigt LL

Non-U.S. investors have increasingly provided financing to U.S. film productions in various forms. This article discusses equity financing by non-U.S. investors in U.S. film production. Generally, a co-production arrangement is entered into among investors from multiple territories where each investor contributes either funding or production services in exchange for their profit share. The arrangement could be structured as a partnership or corporation for U.S. income tax purposes.

Partnership structure

Under a partnership structure, profits and losses of the co-production partnership entity are passed through to its partners.  The partnership structure provides parties with flexibility to allocate profits and losses based a distribution waterfall that reflects their economic deal. If applicable, a deduction under IRC §199A for domestic qualified business income passed through from the co-production partnership may be available to an individual with income under a certain threshold.  However, if it is determined that the partnership generates income effectively connected with a U.S. trade or business (“ECI”), non-U.S. investors would be required to obtain a U.S taxpayer identification number and file a U.S. income tax return to report their distributive shares of the ECI. Also, quarterly federal withholding tax would be required by the partnership on the ECI allocated to non-U.S. investors, and state withholding tax may apply.

Corporate structure

The co-production entity could be set up as a corporation.  Alternatively, non-U.S. investors could set up a corporate entity and invest in the co-production partnership entity through the corporate entity (commonly called a blocker structure). Under a corporate structure, tax would be imposed at the corporate level and annual reporting may not be required at the non-U.S. investor’s level.  If any film rights are held by the U.S. co-production entity and would be licensed to a person outside of the U.S., Foreign-Derived Intangible Income (“FDII”) deduction may be available to the U.S. corporation or U.S. corporation owner if the income qualifies.  However, any net operating losses generated or passed through to a corporation would be trapped at the corporate level. Also, there is a potential for double taxation since the investors may be subject to tax on any dividends received. Tax on dividends paid to non-U.S. investors depends on whether an income tax treaty between the U.S. and the applicable foreign jurisdiction applies.

Certain states in the U.S. offer production tax incentives that could be considered for film financing. If productions occur outside of the U.S., other U.S tax provisions such as Global Intangible Low-Tax Income applicable to controlled foreign corporations and Base Erosion Anti-Abuse Tax would need to be considered for U.S. investors.

There are pros and cons under each structure.  While the partnership structure provides one level of tax and flexibility in profit allocation, the corporate structure may protect non-U.S. investors from filing in the U.S., and certain tax provisions such as FDII deduction are only available to corporations. Investors should analyze the potential ramifications and exit strategies in setting up the initial structure.

Media sector in Lebanon

Lebanon’s media sector is thriving, with great media outlets, impactful advertising and outstanding screen talent. Moore Beirut are on hand to help clients in the sector. Here Samantha Boutayeh provides an overview of how they can help.

The evolution of technology and media in Nigeria

KEY CONTACT: Shalom Ndulaka | Moore Bishop & Rooks Nigeria

It is no news that the media and technology sectors greatly evolve year after year but more significantly after the Covid-19 pandemic year (2020) which resulted in a shift in the trends adopted worldwide. Upon the incited discoveries of employment opportunities in these sectors such as, the exponential increase in the demand of information technology (IT) services fueled by the excessive Increase in the demand of smartphones, availability, and accessibility of the internet, and the trend of online retail markets which has resulted in an increase in the modern concept of virtual businesses, these sectors are on their way to be ranked as the top revenue-generating industries in Nigeria second to oil and gas as these have turned out to become highly profitable ventures.

Many indigenous companies have started earning high revenues by providing various IT services including developing new apps, development of programs to enhance online payment methods, online transactions, and customer experience. IT provides an immense business opportunity for investors as most of the private businesses, government agencies, and other organizations are looking forward to getting their transactions automated. Another benefit that the foreign IT companies can enjoy is the availability of young, talented and skilled manpower. As stated by Obi Asika in his article, he expressed rightly that the advent of technology and new media brought about a market disruption in Nigeria, creating significant opportunities for players in these industries that have and still are producing Nigerian success stories.

One of such stories is that of Paystack, a giant amongst the over two hundred financial technology (fintech) companies in Nigeria. This initiative greatly revolutionized Nigerian businesses by better equipping them for online commercialization. The natural response for them was to leverage on popular streams of media to drive traffic to their online businesses by means of online advertising and content creation. Since its acquisition by Stripe, Paystack has relaunched its ecommerce store for sole entrepreneurs and small businesses, updated a feature for subscription-based businesses to better track customer cards that are about to expire, and has become a preferred payment option for vendors. Another industry giant worthy of recognition in terms of growth is Nollywood.

Nigeria’s media scene is one of the liveliest in Africa and a keynote contributor to this is Nollywood, Nigeria’s resilient and omnipresent film industry. It has become a global powerhouse with an enormous following in Africa and among the African diasporas. Shooting movies has a huge impact on the locations in which they are filmed. As crews descend on a location, they bring in hefty streams of revenue for businesses in the area. Filming directly generates revenue for a destination through spending on accommodation, transportation, equipment, local labor, and fees and taxes. Statistics express that, Nollywood is the second-largest film sector globally with a projected worth of $6.4 billion in 2021, and the continent’s largest in terms of value, number of annual films, revenue, and popularity. Nigeria produces around 2,500 films annually.

The importance of Nollywood to the Nigerian economy, noted Steve Omanufeme in a 2016 International Monetary Fund (IMF) report as highlighted by Business Day, “was only fully realized when the Nigerian GDP was rebased in 2014”. The sectors captured in the rebasing exercise were arts, entertainment, and recreation; financial institutions and insurance; real estate, professional, scientific, and technical services; administrative and support services; public administration, education, human health, and social services; and other services—these had previously not been included in GDP at all. “Among the segments included for the first time”, noted the report, “were Nollywood, the information technology sector, the music industry, online sales, and telecommunications. As a result of this rebasing exercise, Nigeria’s GDP in 2013 jumped from an initial estimate of $285.5 billion to $510 billion”.

It was reported by the Premium times, that the federal government of Nigeria is finalizing work on the Motion Picture Council of Nigeria (MOPICON) Bill to create a proper regulatory environment for the sub-sector of the creative industry. In addition to this statement made by the Minister of Information Mr. Lai Mohammed at the opening of the 2019 Africa International Film Festival (AFRIFF), he further disclosed that the government would establish the Endowment Fund for the Arts to create a legal framework for the financing of the creative industry.

For any investor, the technology and media sectors in Nigeria are filled with several opportunities to be explored. Over the years, Moore Bishop & Rooks has had the privilege of partnering with new entrants and existing organizations in these sectors, both locally and internationally.

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