November 1, 2011
In what appears may be the first in a series of cases on the endorsement income of non-resident aliens, the Tax Court was tasked with characterizing and sourcing the endorsement income for golfer Retief Goosen. The court’s decision may impact how other athletes and entertainers structure their endorsement deals and indicates how taxpayers should expect the IRS to source royalty income in similar cases.
Goosen, a native South African who is a U.K. resident, is subject to U.S. tax because playing professional golf in the U.S. amounts to engaging in a U.S. trade or business. He had endorsement agreements with Acushnet (which makes Titleist golf balls), TaylorMade, and Izod to use or wear their products while playing golf (these are the “on-course” endorsements). He also had endorsement agreements with Rolex, Upper Deck, and Electronic Arts (the “off-course” endorsements).
There were three main issues before the Tax Court:
(1) Was Goosen’s on-course endorsement income personal services income or royalty income or some combination of the two? (The parties agreed that all of the off-course endorsement income was royalty income.) The personal services income of nonresident aliens is subject to regular U.S. tax rates; they typically owe less U.S. tax on royalty income under tax treaties.
(2) What portion of Goosen’s royalty income was U.S.-source income? Under section 872, the gross income of nonresidents includes U.S.-source income.
(3) What portion, if any, of that U.S.-source royalty income was effectively connected to a U.S. trade or business? While U.S.-source royalties are generally subject to a flat 30% withholding tax, if royalties are effectively connected to a U.S. trade or business, they are subject to the graduated rates that apply to U.S. residents.
On the first issue, Goosen argued that the on-course endorsements were paid for the use of his name and likeness, which is classic royalty income. The IRS argued that because the on-course endorsement agreements required Goosen to make personal appearances and to play in a minimum number of golf tournaments (all while using Titleist balls and TaylorMade clubs and wearing Izod), the on-course endorsements were paid for personal services. The court split the difference, deciding that the sponsors paid for both the use of Goosen’s image and likeness and for personal services.
On the one hand, the court found that the sponsors were paying for more than just Goosen’s golfing—that the sponsors wanted to be associated with Goosen’s image. The court cited the morals clause in a couple of Goosen’s endorsement agreements as evidence that the sponsorship was about more than just golfing. (This morals-clause discussion enabled the court—and, conveniently, this blog entry—to meet the requirement that anything written about golf must mention Tiger Woods.)
The court also cited expert testimony from Jim Baugh (formerly of Wilson Sporting Goods) for the proposition that image is sometimes more important than performance. Baugh testified that while Goosen has won more and consistently been ranked higher than golfer Sergio Garcia, the two have effectively identical endorsement agreements with TaylorMade. Baugh attributed this to Garcia’s “flash, looks and maverick personality.” This is notable testimony because Garcia has his own Tax Court case pending, which is set for trial in Miami in March 2012. By detailing this testimony, the court gifts Garcia with a tailor-made argument that, relative to Goosen, a greater portion of Garcia’s TaylorMade endorsement income is royalty income.
On the other hand, the court held that the endorsement income could not be solely attributable to Goosen’s image. After all, the on-course endorsements required Goosen to make personal appearances and to play in a specified number of tournaments, all while wearing or using the sponsors’ products. Acknowledging that precision in allocating between royalty and personal service income was unattainable, the court settled on a straightforward 50-50 split.
As for the second issue, the court was left to decide what portion of Goosen’s royalty income was U.S.-source income. Generally, the source of royalty income from an intangible is where the property (in this case, Goosen’s image) is used. With respect to the Upper Deck and EA endorsements, the court looked to the relative U.S.-to-worldwide sales percentages of Upper Deck’s golf cards (92% in the U.S.) and EA’s video games (70% in the U.S.) and then sourced Goosen’s royalty income accordingly. For the three on-course endorsements and the Rolex endorsement, the court determined that while Goosen was marketed worldwide, the U.S. constitutes about half of that worldwide golf market. The court therefore treated half of the income from those four endorsements as U.S.-source income.
Finally, the court had to decide whether any of that U.S.-source income was effectively connected to a U.S. trade or business. The court held that only the on-course endorsement royalty income was effectively connected to a U.S. trade or business. The court found that since the off-course endorsements didn’t require Goosen to play golf tournaments or to be physically present in the U.S., that royalty income was not effectively connected to the U.S.
The aspect of the decision that seems to have scared some practitioners (other than the existence of a worldwide market for collectible golf cards, which maybe scares only this practitioner) was how the court sourced royalty income according to the U.S.-to-worldwide sales percentages. The fear is that the IRS will simply apply those percentages in every case, and taxpayers will have no room to negotiate a more favorable allocation.
We’ll keep an eye on where this case heads and will post updates on the Sergio Garcia case.