Phoebe Jonas, Docket No. 575-22S, filed 2/9/24, certainly worked as a performing artist. But Phoebe applied her performing skills, not to Shakespeare, Ibsen, and Sophocles, but to the more remunerative “appearing in commercials and doing voiceover work.” Order, at p. 1.

To get work, Phoebe needed a talent agent, who in turn dealt with a payment agent. The last-named extracted Phoebe’s bucks from the ad agency or commercial production company, passed same to the talent agency, who paid the payroll taxes, took their cut, and paid Phoebe the balance, with a W-2 at no extra charge. Phoebe deducted the talent agent’s fees (she used more than one in year at issue) as an employee business expense, as it certainly was, until.

Until TCJA put Section 67(g) in the cooler.

STJ Jennifer E. (“Publius”) Siegel takes up the story. “Because of this change, petitioner sought to deduct the expenses pursuant to other statutory authority.

“Section 62(a)(2)(B) allows a deduction for ‘expenses paid or incurred by a qualified performing artist in connection with the performances by him of services in the performing arts as an employee.’ Among other things, to be considered a ‘qualified performing artist,’ a taxpayer’s gross income may not exceed $16,000. See § 62(b)(1)(C).” Order, at p. 2.

Phoebe lived in NY when she petitioned, and presumably did so during year at issue. Most commercials and the like are filmed in NYC Metro. $16K doesn’t go far there.

“Petitioner reported adjusted gross income of $135,215 in [year at issue], exceeding the income limit.” Order, at p. 2. That’s bare survival for any free-market renter on this Minor Outlying Island off the Coast of North America, who also wants to eat occasionally.

Phoebe claims the $16K cutoff is unfair, and disproportionately affects certain classes of performers. STJ Publius: “The Tax Court cannot evaluate the law’s fairness, however, and must apply it as it is written.” Order, at pp. 2-3. Pore l’il ol’ Tax Court has no equitable jurisdiction, so it is up to Congress “to address questions of fairness and to make any improvements to the law.” Order, at p. 3.

I cannot comment in a blog intended for reading round the family dinner table on the possibility of any useful action of Congress.

And it doesn’t matter that Phoebe never got her hands on the cash the agent(s) took; that’s not relevant to whether she is a qualified performing artist.