The issue, according to a report by
Andrew Duehren at
The New York Times, is the interpretation of a restriction on the “
no tax on tips” deduction passed as part of the “One Big Beautiful Bill” Act that says that tips earned for prostitution or “pornographic activity” are not eligible.
The legislation didn’t offer much additional guidance, and the IRS has yet to issue any statements clarifying what exactly constitutes “pornographic activity,” leaving the taxing agency in a similar boat as Supreme Court Justice
Potter Stewart when he endeavored to define “obscenity” in the 1964 case of
Jacobellis v. Ohio: “I know it when I see it.”
And apparently, the IRS expects its agents to “know it when they see it” as far as determining eligibility for this deduction.
There are almost five million creator accounts on OnlyFans, reported the
Times, but it’s not clear how many of them are Americans and subject to U.S. tax laws, and not all of them are posting pornographic or sexual content. It’s also “unclear,” wrote Duehren, “whether strippers could claim the tips deduction,” because “[t]here is plenty of activity that an accountant or tax lawyer could argue is merely titillating.”
Enforcement of this “pornographic activity” exclusion, Duehren added, will require IRS agents and tax court judges to view the content:
Whether or not the I.R.S. tries to come up with its own definition of “pornographic activity,” enforcing the exclusion would most likely still involve auditing taxpayers who report tips from sources like OnlyFans. An I.R.S. agent would have to view a taxpayer’s content, decide if it was pornographic and then deny the deduction for tips, which is capped at $25,000.
“Ultimately, it would be the subjective determination of an I.R.S. examiner or a Tax Court judge,” Thomas Gorczynski, a tax preparer and educator. “Sometimes you look at something and it’s clearly pornography, but sometimes you look at something and you think, ‘Eh it’s subjective. Somebody might be really into it.’”
