Painter Brushes Off the IRS in Tax Court @BryanTukArtsLaw


Over the last couple of years I have written and talked a lot about labels – what they mean, who imposes them on us, and what labels one uses to describe oneself.  Are you an artist or musician just because you call yourself one?  What steps do you need to take in order to earn that title or label?  What kind of work must you produce to justify calling yourself an artist?

That very issue came up in the legal news this weekend,  in the matter of Susan Crile v. The Commission of Internal Revenue.  While the Crile case was a federal tax dispute between a taxpayer and the IRS, here is what the US Tax Court was asked to consider:  If a taxpayer says she is an artist, but doesn’t make  her primary living from selling artwork, can that taxpayer’s work as an artist be considered his or her profession for tax purposes?

Before we go any further, you may be wondering just what is the Tax Court, anyway?

The US Tax Court is a federal court that has jurisdiction over disputes between taxpayers and the IRS when the IRS determines that the taxpayer has underpaid his or her taxes.   So in other words, if the IRS has determined that you haven’t paid all the tax that you owe, you can take the IRS to court over the issue.

In the Crile case, the taxpayer appealed a decision of the IRS that she couldn’t deduct art-related deductions as business deductions.   If the IRS was correct, Crile would have underpaid her taxes by tens of thousands of dollars.  The IRS’s main argument was that the art related expenses were not proper business deductions because Crile was also employed by Hunter College as a professor, and that painting constituted a hobby, not a profession.  The significance of this is that under Section 162 of the Internal Revenue Code, a taxpayer can deduct from income those expenses which are “ordinary and necessary expenses” incurred in the carrying on of the taxpayer’s business.

Herein lies a common fact pattern for those engaged in their pursuit of the arts: earning a living at a “day job” while pursuing their passion – painting in Susan Crile’s case – which does not generate enough cash to pay the bills.

Judge Lauber, the Tax Court judge who decided the case, to his credit understood that painting was indeed part of Crile’s profession and ruled that the deductions were proper.

In his written opinion, Judge Lauber noted that: “[Crile’s] artwork hangs in the permanent collections of at least 25 museums. These include the Metropolitan Museum of Art, the Guggenheim Museum, the Brooklyn Museum of Art, the Phillips Collection, the Hirshhorn Museum, and art museums at eight colleges and universities. Museums have a rigorous vetting process for acquiring art. Museum acquisitions boost an artist’s reputation in the eyes of collectors and may contribute to price increases for the artist’s other works.”

For more detail, you can read Judge Lauber’s entire opinion here.

Bryan’s legal practice is focused on business & banking lawnonprofit organizationsfamily lawarts & entertainment law, and arts organization consulting.  He was a TEDx speaker in 2014 on how creative minded people can thrive in the business world and received an Arts Ovation Award from the Allentown Arts Commission in 2015. To contact Bryan about a legal matter, or book Bryan for a speaking or consulting engagement, email him at

 Be sure to check out these other articles by Bryan Tuk

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