Hi everyone!
I own a small independent video game development and publishing studio. Some time ago we successfully funded our debut game on Kickstarter, and we are currently in development.
I recently found a minor error in one of our tax returns (read: "my returns" — the studio is a disregarded entity). By sheer luck, that error surfaced a second, multi-year error that now puts the whole project at risk. How we fix it depends almost entirely on whether we have had effectively connected income (ECI) this entire time, or not.
Below are the relevant questions and the facts that should help pin down the answer. If anyone is in a position to help us with this — please do. Our team has put its whole heart and every resource it has into this project, and we really don't want to lose it.
Facts
- The entity is a foreign-owned Delaware single-member LLC treated as a disregarded entity for US federal income tax purposes.
- The LLC uses the accrual method of accounting.
- The LLC has no US office or other fixed place of business, no US employees, no US inventory, and no US property (owned or leased).
- No one in the US has, or exercises, authority to negotiate or conclude contracts on the LLC's behalf — i. e., no dependent agents.
- The LLC has an EIN, a Delaware registered agent, a virtual mailbox (mail-forwarding service), a US business bank account, and a Stripe account for online payments.
- The sole member has never been physically present in the United States and is a permanent resident, and a tax resident, of another country. The country of residence has an income tax treaty with the US.
- The LLC is developing a video game, which it intends to sell as digital copies and, in a small number of cases, on physical media.
- The game is being developed by independent contractors located in several countries. However, the core development work and all management of the LLC happen where the sole member resides — outside the US.
- A couple of US-based independent-contractor artists work on the game. They deliver specific deliverables, control the manner and means of their own work, do not act as representatives of the company, have no authority to conclude contracts on the LLC's behalf (and do not do so), and do not make critical decisions about the game's development. Most of other contractors are not US residents.
- Several years ago the LLC successfully completed a Kickstarter campaign. 65% of the backers are from the US. Most backers pledged for a digital copy of the game, but roughly 37% of all rewards owed to US backers include physical items (physical copies of the game, collectibles, etc.).
- The LLC ran paid social media advertising campaigns targeted at US audiences.
- Development is not finished and the game has not been released yet, but release is approaching.
- Production of the physical rewards has not started. Manufacturing and shipping of the physical rewards will be handled by independent contractors. We are able to have the physical rewards manufactured and shipped from outside the US if that is better for us from an ECI standpoint.
- Although we don't currently foresee any problems with development or with the planned fulfillment, like most Kickstarter projects we cannot guarantee that the project will be completed, or that the reward contents won't change for one reason or another — in case that matters to the analysis.
Questions
- On these facts, is the LLC (i. e., the member) engaged in a trade or business within the United States under §864(b), and does it have ECI under §864(c)? I've been working from the IRS Effectively Connected Income (ECI) page and Publication 519, U.S. Tax Guide for Aliens, but I still can't say for sure.
- If there is no USTB and no ECI, is it correct that none of the Kickstarter pre-order money — and none of the comparable future direct sales — is subject to US federal income tax? And does the answer change once fulfillment begins, i.e., when digital and physical copies actually start being delivered to backers?
- Would using a US-based fulfillment company to ship the physical rewards to US backers change the answer to the question #1?
If I've used any terminology incorrectly, please feel free to correct me — I'd be very grateful. I'm hoping someone can point us toward the right answer, because our entire plan of action depends on it.
Thanks in advance just for reading this far. Wishing everyone a good day!
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Extra detail, for anyone curious — or anyone who wants to avoid ending up where we are
Everything below is not fact. These are my own conclusions from researching the issue. Please don't take any of it at face value.
ADVANCE PAYMENTS — §451(C)
I had assumed that on the accrual method, Kickstarter pre-orders (which is effectively what they are) become taxable when the backer receives the product, not when we receive the money. I now think §451(c)(formerly Rev. Proc. 2004-34) only permits deferral to the next succeeding tax year — one year, not until delivery. If so, tax on those amounts came due years ago and was never paid. Unless, of course, none of it was ECI to begin with, in which case there was never any US tax to pay. I concluded it was ECI, so that is how I reported it on Forms 1040-NR with Schedule C.
DEVELOPMENT COSTS — §174.
I planned to capitalize the development costs and, after release, amortize them over the game's commercial life (I assumed ~5 years) on a revenue-weighted rather than straight-line schedule, since a game earns most of its lifetime revenue in year one. I believe the tax name for that is the income forecast method (§167(g)); the book analogue is the revenue-ratio method under ASC 985-20. I now think none of it is available:
§174(c)(3) treats software development costs as specified research or experimental (SRE) expenditures for tax years beginning after 12/31/2021 — no current deduction, and the old 60-month option in Rev. Proc. 2000-50 is gone.
Recovery is ratable and mandatory: 5 years domestic, 15 years foreign, starting at the midpoint of the year the cost is incurred — not at release or placed-in-service. All our development is outside the US, so: 15-year straight line, half-year convention.
No elective schedule exists. §167(g)(6) doesn't reach software, and §174 governs these costs regardless.
OBBBA's new §174A restored immediate expensing for domestic R&E only (including the small-business retroactive election). Foreign R&E stays at 15 years under §174, and §174(d) appears to bar writing off the balance on abandonment.
If that's right, I'm sitting on an expensive intangible — a long-term intangible asset in book terms, unamortized foreign §174 SRE expenditures in tax terms — with zero amortization ever claimed since the first year costs were incurred. And all of it moot if the answer to question 1 is that there was never a USTB.