• Image rights and wrongs: Payroll Tax applied to image rights of AFL players and coaches in landmark case

The Commissioner of State Revenue for Queensland has been successful in including payments made for image rights of players and coaches as taxable wages for payroll tax purposes.

The decision comes following a high profile case between the Brisbane Lions Football Club and the Commissioner of State Revenue, where Judge Bond concluded that the use of image rights was “necessarily integral” to the performance of promotional or marketing services by the player or coach for the club.

The case

As part of the collective bargaining agreement between players, clubs, the AFL, and the AFL Players’ Association, all players and coaches are required to make a certain number of appearances to promote the League and their club.

Players and coaches are also permitted to monetise the rights to their image by entering into an Additional Services Agreement directly or through an intermediary company with their club.

Such payments are separate to the player's or coach’s contract for playing or coaching with their club.

The Brisbane Lions Football Club asserted that this was a separate payment for the exploitation of an asset, or otherwise not representing a payment for services performed.

The judge agreed with the Commissioner of State Revenue that the use of a player’s or coach’s image, as set out in the terms of the Additional Services Agreements, was related or connected to the actual performance of promotional or marketing activities, and therefore should be part of the player’s or coach’s taxable wages for payroll tax purposes.

Implications

While the decision handed down on 14 October 2016 may be appealed, the implications could be significant and far-reaching:

  • Following the harmonisation of the State payroll taxes that commenced in 2007, the decision is likely to be supported and applied by the other State Revenue offices
  • The case considered the application of payroll tax on image rights from 1 July 2007. As such, the impact could be applied retrospectively to those directly involved in the case as well as other taxpayers (the period of review for payroll tax purposes is generally five years)
  • The application is not limited to football clubs, with the employers of many other sports people, film, theatre and performing artists likely to be impacted by the case decision
  • The broader employment taxes implications of this decision also need to be considered

It is also important to note that the decision may have been different if the arrangements had been structured differently.