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Taxation of individuals engaged in the irish film industry


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TAXATION OF INDIVIDUALS ENGAGED IN THE IRISH FILM INDUSTRY


Guidance note

TAXATION OF INDIVIDUALS ENGAGED IN THE IRISH FILM INDUSTRY


Issued by

Revenue Commissioners

Income and Capital Taxes Division

January 2009
Contents


1.EMPLOYED OR SELF-EMPLOYED 3

2.BENEFITS-IN-KIND 3

3. EXPENSES OF TRAVEL AND SUBSISTENCE 3

4.PRSI AND THE HEALTH CONTRIBUTION 4

5. DEFINITIONS FOR THE PURPOSES OF THIS GUIDANCE NOTE 4

5.1. PREMISES PROVIDED BY THE FILM COMPANY 4

5.2 PROVISION OF EQUIPMENT OR MATERIALS 4

6. POSSIBLE SELF-EMPLOYED OCCUPATIONS IN THE FILM INDUSTRY 5

Appendix 6

Occupations in the film industry that, subject to a relevant qualifying condition as outlined below, may be considered to be self-employments in the context of that industry 6





  1. EMPLOYED OR SELF-EMPLOYED


There is no statutory definition of employment or self-employment and the question of whether an individual is engaged under either:

(a) a contract of service [i.e., an employee and within the PAYE system]; or

(b) a contract for services [i.e., self-employed and within the Pay and File system]

is a question of fact and of general law.

Case law shows that there is no single formula under which a contract of service or a contract for services between parties can be identified. Regardless of how the parties may describe themselves, all the possible factors (including written, oral and implied details) that bear on the relationship between the parties must be examined, given their proper weight and a judgement made on their overall effect.

To try to provide some clarity as to whether an individual is employed or self-employed, the Employment Status Group (set up under the Programme for Prosperity and Fairness and including IBEC, ICTU, Revenue, the Department of Enterprise, Trade and Innovation, the Department of Finance, and the Department of Social Protection) published a Code of Practice for determining Employment or Self-employment status of Individuals.

This code has been updated by the Hidden Economy Monitoring Group under the Towards 2016 Partnership Agreement and is available on the Revenue website at:

http://www.revenue.ie/en/tax/it/leaflets/code-of-practice-on-employment-status.pdf

WRITTEN CONTRACTS
The written contact is not, in many cases, the sole or final determinant of the true relationship between parties and therefore one must also look at the oral and implied terms. Items that are omitted from the written contract but apply in reality must also be considered. Equally, as stated in the “Code of Practice”, certain statements such as “you will be responsible for your own tax affairs” have no contractual validity.
As stated above, when deciding whether an individual is employed or self–employed, all factors that bear on the relationship between the parties (including written, oral and implied details) must be examined.

  1. BENEFITS-IN-KIND


The Revenue Commissioners have produced a guide to benefits-in-kind, which is available on the Revenue website at http://www.revenue.ie/en/tax/it/leaflets/benefit-in-kind/index.html. This guide provides employers (including persons treated as such) with information on the main benefits-in-kind and other non-cash benefits. The guide assists employers in determining -

  • the amounts to be taken into account in calculating the PAYE, PRSI and Health Contribution, Income Levy and other liabilities;

  • the pay period(s) in which to take such amounts into account.

3. EXPENSES OF TRAVEL AND SUBSISTENCE

The Revenue Commissioners have produced a Statement of Practice that sets out the tax treatment of the reimbursement of expenses of travel and subsistence to office holders (including directors) and employees. It is available on the Revenue website at http://www.revenue.ie/en/practitioner/law/sp_it_2_07.pdf.


Employers should consult this document before paying travel and subsistence expenses to employees without deduction of tax.
Note – The Statement of Practice on travel and subsistence does NOT apply to individuals engaged under a contract for services (i.e., it does NOT apply to the self-employed).

  1. PRSI AND THE HEALTH CONTRIBUTION

PRSI contributions are payable on the employment income of all PAYE employees at the rates shown in the “Employer’s Guide to the Pay Related Social Insurance (PRSI) Contribution System – SW 3”. The guide is available on the Department of Social Protection website at http://www.welfare.ie/publications/sw3.html. [Please note: Revenue is not responsible for the contents of external Internet sites.] Enquiries regarding the contribution class of an employee should be addressed to the Department of Social and Family Affairs, Scope Section, Oisín House, 212-213 Pearse Street, Dublin 2 (Telephone: 01 704 3000).


Where the Revenue District issues an Exclusion Order to the employer confirming that the PAYE system does not apply to certain emoluments, the employer should remit any PRSI contributions due to the Department of Social Protection, PRSI Special Collection Section, Government Offices, Cork Rd, Waterford (Telephone: 051 356 000).
In the absence of an E101 certificate, certificate of coverage under a reciprocal arrangement or a PRSI exemption certificate from the Department of Social Protection, employers are required to make PRSI deductions and should note that PRSI is payable from the first day of insurable employment. In cases of doubt, employers should contact the Department of Social Protection.

5. DEFINITIONS FOR THE PURPOSES OF THIS GUIDANCE NOTE

5.1. PREMISES PROVIDED BY THE FILM COMPANY


These embrace studios, locations or any other facilities provided by or at the direct expense of the film company, whether or not the company is the occupier of those premises.

5.2 PROVISION OF EQUIPMENT OR MATERIALS


This means the provision of items which play an important and fundamental role in the work of the grade in question and which are of significant value, such provision being an integral requirement of the contract of engagement. It does not include tools of the trade (see note below). The significance of the provision of equipment or materials in determining tax status is the financial risk that such provision entails.

It follows that, in general, equipment or materials must be owned by or at the permanent disposal of the individual performing the work. Provision of hired equipment or materials, whether or not hired in the individual’s name, is relevant only if obtained entirely independently of the film company. Such provision should be disregarded if the film company effectively underwrites the financial risk. If an individual is treated as self-employed by virtue of the provision of equipment or materials of significant value, the film company must retain full details of the equipment or materials provided for production to Revenue on request.


The provision of a car is not regarded as the provision of equipment or materials for the purposes of treating an individual as self-employed, except in the cases of drivers and transport managers.
Note – Tools of the trade

It is customary for most craftsmen to provide their own tools, whether engaged as employees or as self-employed contractors. Such tools should be disregarded in considering the value of equipment or materials provided, even though, for example, the contents of a joiner’s or electrician’s toolbox may have substantial intrinsic value.


6. POSSIBLE SELF-EMPLOYED OCCUPATIONS IN THE FILM INDUSTRY


A list of occupations in the film industry that, subject to a relevant qualifying condition (if any) may be considered to be self-employments in the context of that industry is contained in the Appendix.
It is not intended that such list will have application in any other industry or to individuals engaged in ongoing open-ended engagements, such as a television series that is intended to run throughout a year or for most of a year.

Appendix

Occupations in the film industry that, subject to a relevant qualifying condition as outlined below, may be considered to be self-employments in the context of that industry








Occupation in the Film Industry

Qualifying Condition

1

Animal Handler




2

Animation Director




3

Animation Production Co-ordinator




4

Animator


Where the individual provides facilities and equipment or materials

5

Animatronics Model Designer





6

Art Director




7

Assistant Art Director

Where the individual provides equipment or materials, or a substantial part of the contract is carried out away from the premises provided by the company

8

Background Artist

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

9

Boom Operator

Where the individual provides equipment or materials

10

Camera Operator / Camera Person / Model Camera

Where the individual provides equipment or materials

(See also Lighting Director / Lighting Camera Person)



11

Casting Director




12

Choreographer




13

Clapper Loader

Where the individual provides equipment or materials

14

Composer




15

Construction Manager

Where the individual provides equipment or materials

16

Continuity

Where script breakdown is an integral part of the engagement and a substantial part of the contract is carried out away from the premises provided by the company

17

Costume Designer / Assistant Costume Designer

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

See also Wardrobe

18

Director




19

1st Assistant Director

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

20

2nd Assistant Director

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

21

Director of Photography




22

Dressmaker

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

23

Driver

Where providing own vehicle

24

Editor




25

Focus Puller

Where the individual provides equipment or materials

26

Gaffer

Where the individual provides equipment or materials

27

Graphic Artist / Graphic Designer

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

28

Grip

Where the individual provides equipment or materials

29

Hairdresser

Where the individual provides equipment or materials or makes a substantial provision of wigs

30

Language Assessor

When used occasionally to check the style and delivery of foreign language content

31

Lettering Artist / Designer

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

32

Lighting Director / Lighting Camera Person

Where responsible for designing lighting or photography and where the individual provides equipment or materials

(see also Camera Operator / Camera Person / Model Camera)



33

Line Producer




34

Location Manager

Where the individual provides facilities, equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company.

35

Make-up Artist

Where the individual provides a substantial make-up kit


36

Model Designer / Model Maker

Where the individual provides facilities, equipment or materials

37

Modeller




38

Musical Arranger / Copyist

Where the individual provides facilities, equipment or materials

39

Musical Associate




40

Musical Director




41

Musical Score Reader




42

Post Production Supervisor




43

Producer




44

Co-Producer




45

Executive Producer




46

Associate Producer




47

Production Accountant

Where the individual provides (and the company does not provide) specialist accounting, computer and payroll equipment

48

Production Assistant

Where the individual provides equipment or materials

49

Production Buyer




50

Production Co-ordinator




51

Production Designer / Head of Art Department




52

Production Manager




53

Production Supervisor




54

Property Master / Prop Hand

Where the individual provides substantial props, equipment or materials

55

Provider of Medical Services

Where the individual provides (and the company does not provide) a standard medical kit of significant value

56

Publicist




57

Rigger / Advance Rigger

Where the individual provides equipment or materials

58

Scenic Artist / Designer

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

59

Scriptwriter




60

Sculptor




61

Set Decorator / Set Dresser

Where the individual provides facilities, equipment or materials to design the set

62

Sound Maintenance Engineer

Where the individual provides equipment

63

Sound Recordist / Mixer

Where the individual provides equipment

64

Special Effects Supervisor / Senior Special Effects Technician / Wireperson

Where the individual provides equipment or materials

65

Stills Photographer

Where the individual provides cameras

66

Story Board Artist

Where the greater part of the work is performed other than on premises provided by the company

67

Story Writer




68

Stunt Co-ordinator

Where the individual provides equipment or materials/props

69

Tracer / Artist

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

70

Translator

When engaged for work undertaken in premises other than those provided by the company

71

Transport Manager

Where providing own vehicle(s)

72

Video Technician

Where the individual provides equipment

73

Wardrobe

Where the individual provides equipment or materials or a substantial part of the contract is carried out away from the premises provided by the company

See also Costume Designer/Assistant Costume Designer

74

Writer







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