Going Solo Or Teaming Up: Define it
TEAMING up with others to develop a project seems to be the preferred course these days. Sharing the
burden allows individuals to pursue several different projects simultaneously. The advantage is that some of
the films and programs generate a cash flow while other projects are developed.
It is critical when you do work with others that you have a clearly defined relationship with respect to your
roles, fees, share of profits, credits etc. Too often people merely purchase shares in a company thinking that
the company structure will protect them when in fact those protections are extremely limited and not really
well suited to the entertainment industry.
Likewise, standard partnership/joint venture agree-ments, unless specifically addressing the practical issues
of developing film and television programs, will be found wanting.
Some suggestions:
∑ Pty Ltd companies are the most favoured vehicle, mainly to limit liability, which of course is a major
consideration in our industry.
∑ A comprehensive shareholders’ agreement should be drawn up at the beginning to specify the role to
be played by each individual involved and to determine what happens if they grow disinterested, die, fall
ill, etc.
∑ Be careful about “catch all” clauses which deem the activities of all the shareholders the property of
the company. This can be extremely dangerous if you go your separate ways or if there is a falling out.
Obviously the division of profits, fees to be earned, reimbursement of expenses etc. has to be properly
addressed. Don’t forget to address the matter of working capital - make sure your fellow shareholders have
the cash or the credit to get the enterprise operating properly.
∑ Sometimes to reduce the initial costs of setting up a company, and/or to avoid the obligations of corporate
responsibility (not to be underestimated), people prefer partnerships. Bear in mind, however, that partnership
liability is personal as well as joint and several, ie you will be responsible for your partner’s activities on a
personal basis. Just as with companies there should be a compre-hensive partnership agreement with a clear
delineation of responsibilities, profit splits, buyout provisions etc. A “joint venture~, if properly structured,
can limit the responsibilities and liabilities of “partnerships” but this needs to be very carefully devised.
∑ Where there are three or more individuals, day to day decisions should be able to be made by a “majority”,
but where structural changes to the company’s/partner-ship’s operations are to be made then unanimous
deci-sions should be required. This also applies to major business decisions which will have a dramatic
effect on the individuals. Obviously one party should not be able to frustrate business decisions that make
good sense from a financial point of view providing those decisions will not damage the reputations of
the individuals involved.
∑ Consult your financial advisers on the best tax struc-ture for you bearing in mind your overall circum-
stances. · The arrangements between parties, be they partner-ships, joint ventures or companies, should
ideally be on a “project by project” basis. If things work out well there is no reason why new projects cannot
be added to your official activities.
∑ Buyout provisions (if one party withdraws or cannot continue through bankruptcy, illness or death)
should be structured to accommodate economic realities with pro-visions for time to pay buyout moneys
over a reasonable period. Keyman insurance can provide automatic buyout funds in the case of death or
permanent disablement.
It is always better to settle these matters in the enthusiasm of forming a new team- don’t wait for power
games and disappointments to make negotiation impos-sible.
Getting Ready To Raise money: Plan For It
IT is a cruel business that can break a person’s spirit even before they get to first base. By their very
nature, film and television devour large quantities of money and so often raising the budget proves to be
the hardest task of all.
The source of production funding for Australian producers focuses on the AFC and FFC (10BA now has
limited potential for substantial fundraising) and the elusive search for presales, co-productions, corporate
sponsorship, etc, to top up the budget.
A professional approach to the producer’s task from a legal point of view gives a project a greater chance
of success. At the same time it avoids the aggravation and compromise often involved in renegotiation of
earlier mistakes.
Key points in raising finance:
∑ The production “entity” (“producer”) should be prop-erly established with defined rights, whether it be
a joint venture, partnership or limited liability company. The way in which the producer operates will be
critical: how it makes its decisions, splits its profits, copes with a mem-ber’s death or decision to be bought
out. These issues must be addressed as financiers will expect a well set up, clearly defined decision maker-
after all they are giving you their money. It also avoids problems later.
∑ · “Handshake agreements” and contracts subject to negotiation in “good faith” etc are usually unenforce-
able. If key arrangements do not eventuate a project can fail, as when a presale requires a certain director,
actor etc. Good paperwork is essential. It should be watertight and flexible, eg don’t lock yourself into
long term investment raising deals or one writer scriptwriting agreements unless the people or the deal
justifies it.
∑ Script rights must be obtained with the producer’s ownership and control. Options should be of sufficient
length with extensions (three years plus). Secure the rights to sequels and spin-offs, merchandising, sound-
track albums, etc. All agreements should permit the producer to assign its rights to third parties (sometimes it
is the only way to recoup costs and/or attract an investor.)
∑ In negotiating for key cast and crew, as well as your own fees, maintain the required production standard
but keep the budget as low as possible. Deferrals of up front fees for revenue participation should be
considered. In these difficult times it may be worthwhile considering giving away a larger proportion of the
usual share of producer’s entitlements if it will mean your project has a greater chance of being made.
∑ Preferential recoupment schedules can also entice key talent and crew to defer part of their up front fees.
While profits may be highly speculative the recoupment of the first third of a project’s budget is likely and
a share of those first returns is a commercial proposition to most personnel. These arrangements must be
carefully de-vised to avoid problems with financiers, eg the FFC, and should never take too great a slice
of these first dollars.
∑ Secure all the elements which are essential for the project, be it an actor, a title, a location, a director,
even a piece of music, but build into your contracts termina-tion rights if you can’t raise the production
finance.
∑ Provisional certification/professionally prepared budg-ets and cashflows will always be expected.
∑ Development financing from the AFC and the State film bodies can be useful not just for developing the
script, but to finance a pilot and/or showreel.
∑ Presales and advance guarantees should not be conditional on matters outside the control of the pro-ducer.
Technical standards and following a script are reasonable requirements but satisfying someone’s taste can
never be guaranteed. If the distributor can renege because it doesn’t like your finished product not only will
the money not flow but your reputation may be seriously damaged.
∑ Get good professional advice and recognise your weaknesses. If you are not financially experienced it may
be worthwhile engaging an executive producer/mer-chant banker/broker.
∑ Perfect your applications for finance. This means completeness, attention to detail, marketing analysis and
plans, well set out resumes, cast photographs, indexes, tabulated sections, contracts etc. These things are
important if you want to impress investors.
A word of comfort: if raising finance in show business was any easier, a lot more people would be doing it.
Tax Time
Avoid Unnecessary Income Variations
AT least once a year our minds necessarily all turn to the tax collector. Like death, tax is one of the great
certainties and if you ignore its consequences, you do so at your peril.
The approach of the Australian Taxation Office in the nineties is to accept income tax returns on face value
and subject individual companies and taxpayers to audit investigation. Investigations are not just random,
how-ever. With the use of sophisticated computer systems, the Tax Office has obtained profiles of industry
revenues and costs and if your return varies from your appropriate profile you may be automatically targeted
for an audit. The ramifications of a reassessment by the Tax Office are not just the penalties and fines that
might be imposed in a particular year, but the much greater likelihood that your financial affairs will come
under scrutiny for years to come.
Some suggestions:
∑ One of the traditional problems in the entertainment industry, from a tax point of view, is the often
wild variations in income that are experienced. Unlike people on a conventional salary or even in general
industry, income in the film and television industries varies dramatically during the year, and from year
to year. Accordingly, it is very important when you get a project up to consult your financial adviser so
that you ensure that the receipt of income is appropriately timed to avoid any exaggerated tax burden
being concentrated in a particular financial year. Be very careful about non arm’s length borrowings against
production budgets to provide cashflow as the Tax Office may take the view that in reality you have not taken
a loan but rather income. Unless those loans are on a bona fide basis, and are not a “scheme’ to effectively
defer tax, you should not rely upon them.
∑ Income splitting with spouses and children needs to be real. Just because you have a company does not
mean the Tax Office will not look at the whole structure and take the decision that only you are personally
earning all the income. For that reason, if you are paying your spouse a salary, make sure he or she actually
does some productive work which justifies it. The Tax Office is looking carefully at this particular area.
∑ Remember to keep proper accounts with all your expense records, receipts and invoices, it is critical that if
you are audited that you can prove every deduction.
∑ Don’t wait for an assessment to find the money to pay your tax bill. Your accountant should be able to
suggest an appropriate monthly allocation to save which should avoid a cash flow crisis.
∑ While not generally realised, intellectual property such as copyright is subject to capital gains tax and
needs to be carefully considered when acquiring and selling script rights etc. Avoid unnecessary sales and
always bear in mind the production company that will buy the rights and in doing so ring the tax bell.
∑ Project development expenses are most commonly claimed as deductions against actual production
income in a particular financial year when, in fact, the Tax Act says that some of these expenses should be
depreciated against the life of the copyright. Division 10B (separate to 10BA) can assist in reducing that
depreciation period to only two years for “Australian films”. In most cases, however, it is wise to consider
assigning your copyright interests to a distribution entity (with a proper royalty entitlement) as soon as the
main revenue has been earned on your project to minimise these potential problems.
Painful as tax can be, sensible, well organised planning can reduce the burden to tolerable limits.
Basic Rules For Survival: Put It In Writing
MANY of the problems which develop in our industry are compounded because important decisions are
made verbally and fail to be confirmed properly in writing. This is often due to bad office procedures and
a misplaced fear that confirming conversations will offend the other side no matter how diplomatically a
letter is written.
If a dispute develops, lawyers are often faced with the evidentiary problem that a client’s case cannot be put
forward without all sorts of doubts existing as to what was really said or what was meant to be said. As a
result disputes are harder to settle and/or win.
Set out below are some observations which may be useful in the way in which you approach the paper war
that seems to be the reality of film and television making today.
Some suggestions:
∑ As soon as your involvement in a project commences, set up an individual file which may in itself have
separate components for legal documents, general correspond-ence and financial accounts. Keep hard copies
and not just computer disks. A separate bank account for a particular project is wise, as once money starts to
flow it will greatly assist accounting for expenditure etc as well as keeping each project confidential to itself
which can be very important in the event a third party exercises audit rights.
∑ Avoid correspondence which unnecessarily lumps various projects together - separate letters for each
project avoids filing problems for both the sending and receiving parties. Once again it also keeps projects
separate which, if not now, may in the future, prove to be important for confidentiality reasons.
∑ When decisions of any significance are made, whether in development, production, the marketing phases
of a project or in general business, promptly confirm them as it greatly reduces the likelihood that there will
be misunderstandings or disputes in the future. Do not rely solely on your own file notes (sensible as they
are) as the courts tend to consider them to be self-serving and easily capable of concoction.
∑ Facsimile transmissions you send should be kept with the stapled transmission “OK” slip and important
faxed correspondence should also be sent by mail. Received faxes on archivally unstable thermal paper
should be photocopied to ensure they can be read in years to come. Intellectual property, by its nature,
lives for decades. I recommend that you keep all accounts and important correspondence for at least the
bureaucratic standard of seven years and legal documentation for the life of the copyright. Computer disks
(with safety copies) should also be properly stored.
∑ Formal notices, particularly involving disputes over contracts, should strictly comply with the relevant
notice provisions which are usually contained in agreements. Posted notices should always be by certified
mail with the relevant coupons attached to your file copies. Copies of courier sheets/dockets as well as a
mail book showing every posting is also good office procedure. File copies should ideally be photocopies of
signed correspondence (ie not carbon copies) and should include copies of all enclosures in the manner they
were despatched. Original contracts and received correspondence should be re-tained.
Now that I have bored you with such pedestrian advice, I will leave you with the latest joke about the
legal profession:
Q. What do lawyers use as a contraceptive?
A. Their personalities.
TAX PLANNING
a special contribution
by David Heidtman, Heidtman and Co.
THE law recognises a very important distinction be-tween tax avoidance (which is quite legal) and lax
evasion (which is quite illegal). Proper planning will minimise the tax burden from your next film and
maximise the dollars in your pocket
Planning should start early, even to the extent of deciding who should own the copyright in a work which
you may, or may not develop in the future. Tax planning should certainly be part of deciding who will
acquire the film rights for the film you intend lo make. But it may not be too late, even if you have not
started planning as early as you should.
Set out below are some useful points to consider in relation to income tax; capital gains tax and taxation
involving other countries
1. Income Tax - Everyone wants to keep as much as possible of their hard-earned income, and the following
points may help you do just that
(i) Probably the most important single planning item is lo earn your assessable income through the most
tax efficient business structure: for some this may be through a partnership (which enables some income
splitting); for some it will be a proprietary company with a properly structured shareholding (which enables
franked, or tax pre-paid dividends to be paid to some shareholders and not to others); and for some it may
be a trading trust (which enables pre-tax income to be distributed amongst a stated group of recipients). The
choice of the proper business structure can save a lot of money, so you should obtain professional advice as
to which trad-ing entity is best suited for you.
(ii) With film production, you are often able to delay receiving assessable income until the next tax year,
with the result that income taxis not payable on that money until 12 months later.
(iii) Division 16A of the Income Tax Assessment Act (ITAA) enables people such as artists, composers,
performers, production associates and writers to “average” their income. This is useful when taxable income
in a particular year is abnormally higher than in previous years. The entitlement is limited to defined
categories of taxpayers.
(iv) The cost of acquiring units of industrial property (such as copyright in a work which is to be made
in to a film) can be deductible under Division lOB of the ITAA. Provisions such as this can be useful
especially if the acquisition is planned so that the deduction is available to the business entity most able
to make use of it.
(v) Do not be tempted to use silly schemes or “shams”. They are usually very obvious and their use often
has highly unacceptable consequences.
2. Capital Gains Tax - The basis of the Capital Gains Tax (CGT) legislation is that gains made on the sale
of capital assets (eg copyright in a work) form part of one’s assessable income and, as such, are subject
to income tax Generally speaking, the capital gain is calculated by deducting from the sale proceeds, the
indexed cost of the items sold (that is the cost of that item after making allowance for consumer price index
inflation). Knowledge of the application of the CGT can be very important in dealing with assets owned
prior to Sep-tember, 1985 (which is when CGT started). For example, profit on the sale of copyright in a
work which was owned before September, 1985may not be taxable; i~ therefore, makes sense that in any
“package” deal being done in relation to that work, the maximum amount permissible is applied to the sale of
that asset. Some quick suggestions in relation to CGT are as follows:
(i) Deal carefully with pre-CGT assets; it would be a shame lo lose their pre-CGT benefit by transferring
them in an ill-conceived manner.
(ii) The timing of the realisation of capital assets can be very important For most taxpayers there can be
a distinct advantage in selling a capital asset in July, rather than the previous month. Also, as the taxable
capital gain is added to your ordinary income, there can be a benefit in planning the sale of a capital asset for
a time when the tax paying entity will otherwise have a low taxable income.
(iii) Plan the ownership of capital assets so as to maximise the benefit to you. Capital losses are not
deductible against assessable income but they are deductible against capital gains in the same or later years;
so proper planning can be important.
(iv) As CGT is only payable on the sale of, or granting an option in relation to, an asset, try to avoid dealing
with such assets unnecessarily. Proper planning can avoid or defer a CGT liability.
(v) Even if taxation on a profit is inevitable, it is frequently better to pay CGT than ordinary income tax as
you can get the advantage of indexation for inflation with CGT.
(vi) If possible, never acquire an appreciating asset in a company as you may not be able to get out of the
company the supposedly tax-free part of the indexed cost, without paying tax on it. There are often highly
preferable CGT and other taxation benefits by using an individual or a trust in these situations.
3. International Taxation - The general position is that for Australian residents, income tax is imposed on
their taxable income from all sources but for non-residents, only on certain types of their income from
sources in Australia.
Australia has entered into double tax treaties with most of the countries with which Australian filmmakers
will usually deal These tax treaties indicate which of the two countries is to have the first opportunity to tax
any given income, with a tax credit usually being given in the other country. The provisions of most of the
tax treaties are very similar and the following points should be borne in mind:
(i) In most cases, an overseas business person who is carrying out work in Australia will be taxed in
his home country, as long as he does not spend more than half the taxation year in Australia or have a
business base in Australia.
(ii) Special provisions apply to visiting entertainers, who are normally taxed in the country in which
their activities are performed, regardless of the length of their visit “Entertainer” includes theatrical motion
picture, radio or television artists but not producers, directors or technicians.
(iii) There are very clear obligations, in certain instances, on Australian taxpayers to deduct and hold tax
from money paid to overseas residents; and failure to comply results in the Australian taxpayer having to pay
the tax. This can be especially impor-tant when contracting with overseas talent.
(iv) There can be advantages in having entertainers use loan-out companies.
(v) There are advantages in having the contracts with entertainers properly constructed.
(vi) As entertainers in Australia are subject to the Australian taxation system, it is important to know what
deductions are available to them.
(vii) Substantial taxation savings can be achieved by knowing, and correctly applying, the provisions of
the double tax treaties.
The details involved in taxation planning can be fairly involved but an understanding of the general princi-
ples is quite straight forward When you know the type of results that can be achieved through proper tax
planning, you will have a better idea as to what questions to ask your lawyer or accountant; the time and
money spent is usually a very worthwhile investment.