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Intrastate iGaming: Interstate Compacts and Revenue Sharing

January 30th, 2013 No comments

One of the most not only fascinating but also critical issues for state-by-state iGaming legalization is whether states will let their virtual fences down and enter into iGaming compacts with other states. If so, how may states share tax revenue from gaming activity?

Interstate iGaming Compacts

Before evaluating tax revenue sharing possibilities, we must grasp some of the dynamics surrounding interstate compacts.

Look no farther than the State of Nevada, which appears poised to open its doors to intrastate online poker sometime in 2013. But with a population of approximately 2.76 million, Nevada presents profitability concerns for online poker operators offering its product only to customers physically present in the state. This viability issue is compounded many times over as more than a dozen companies have already received preliminary approval to operate in the state.

Sure, some committed poker players may move to Nevada to play online full-time, but it seems unreasonable to expect many recreational players to do so. Certainly not enough to make online poker in Nevada a robust business on its own. And interested parties know this.

In his 2013 State of the State address, Nevada Governor Brian Sandoval urged lawmakers to approve a bill authorizing him to enter into interstate iGaming compacts without first requiring federal legislation authorizing it.

Larger states, however, may not have as strong an incentive to negotiate compacts with smaller states. Consider California, for instance. With a population of over 38 million, the Golden State is larger than every country in Europe but eight.

The Internet Gambling Consumer Protection and Public-Private Partnership Act of 2012 did provide California legislators the alternatives to opt into a federal iGaming system or enter into compacts with other states. The problem with either alternative coming to fruition is that special interest groups in California are mightily struggling to get on the same page for iGaming. That’s why the bill failed to reach committee vote last year. And these groups may hold the belief that if the State reaches compacts for interstate online play, other smaller states would reap the benefits of the pooled liquidity far more than California would.

Another compact concern for California involves losing its residents to partner states. (Note: Expatriation is already a problem for California.) Suppose, however unlikely, that NV presented an attractive proposal to CA for pooling liquidity, such as NV giving CA a significant percentage of gross gaming revenue (“GGR”) generated by the NV players. Once the pooled sites go live, some CA players would move to establish residency in NV and thus avoid paying CA income tax. The analysis of this issue could narrow to whether the additional gaming revenue paid to CA as result of liquidity would exceed the lost income tax revenue from CA expats.

Even if states agree to share revenues based on location of players, as discussed below, there’s likely still an overall benefit to pooling liquidity. By substantially increasing the number of virtual players on a given site, a greater variety and quantity of tables become available for players to choose from. The challenge is figuring out how to distribute the increase in overall benefit so interstate compacting is agreeable to lawmakers and their supporters on all sides of the negotiating table.

With the above in mind, how would states seek to share tax revenues pursuant to interstate iGaming compacts?

Revenue Sharing Pursuant to Interstate Compacts

States that have or are considering legalized online gaming are including their own licensing and taxation regimes in the legislation. We should expect any state’s iGaming legislation to permit an operator to operate in the state only if licensed in the state. In other words, foreign operators in general seem unlikely, at least in the early stages of this emerging industry.

The natural progression to interstate iGaming compacts would seem to involve an operator licensed in more than one state to pool its liquidity among those states. But it’s not necessarily a smooth ride to get there.

New Jersey’s pending iGaming bill, for instance, requires all iGaming servers to be located in Atlantic City in order to comply with the New Jersey State Constitution. If PokerStars is licensed in both NV and NJ and pools its liquidity, for example, then PokerStars would have to ensure all servers running virtual tables with NJ players are located in Atlantic City. If NV players were on these tables as well, would such conduct run afoul of the NV interactive gaming laws? I suspect this type of issue would need to be addressed in the interstate compacts themselves.

As an aside, the notion of requiring operators pursuant to an interstate compact to be licensed in each state it seeks to operate ironically defeats another purpose for compacts: Avoiding paying license fees in multiple states.

With the above considerations in mind, how would states share gaming revenue pursuant to an iGaming compact? Let’s assume, as discussed, that each state will have in place its own gaming taxation model. The result is that operators could be required to apply more than one state’s taxation model to activity taking place on the same online poker table.

Suppose again that PokerStars is licensed in both NV and NJ. NV’s tax is 6.75% of GGR. The pending NJ iGaming bill calls for a 10% tax on GGR. If liquidity is pooled between the states, there could be both NV players and NJ players on the same PokerStars cash game tables. Gaming revenue to PokerStars would be the collected rake for each hand played.

The question then becomes, how do the two state’s gaming taxation models apply to each online poker hand played? A few possible approaches:

  1. The rake is subject to tax in both states;
  2. The rake is subject to tax in the state that the winning player of the hand resides; or
  3. A proportion of rake is subject to tax in state “A” based on the ratio of total wagers made by players in state “A” to total wagers made by players in both states “A” and “B.”

Approach #1 obviously requires modification, otherwise operators would pay GGR tax of the full amount to both states. Operators could be entitled to some tax credit for GGR paid to another jurisdiction. The states would need to negotiate the mechanics of the tax credits as applied to each state.

Approach #2 would seem to be the easiest to implement. Operators would already be required to know the location of all of its players, so the added step of attributing a location to rake collected for each hand does not seem too burdensome. Of course, split pots present more complex situations, but are likely far from insurmountable.

An interesting issue arises with Approach #2, however. States themselves would then be biased with respect to the outcome of each hand in favor of its own residents. The more its own residents win over nonresidents on the pooled tables, the more overall gaming revenue to the state. The bias would be more pronounced with poker tournaments, as the prize distributions are more skewed. Clearly, states themselves should not have preferred winners for quantifiable reasons in games they are regulating.

Approach #3 would be more complicated to implement than #2, but it removes the state bias issue. Let’s try an example for #3 to clarify the mechanics.

Suppose there are three NJ players and three NV players at the same online poker table with a rake of $5 for each hand played. At the conclusion of one hand of Texas Hold’em, player 1 (NJ) wagered $5, player 2 (NJ) wagered $0, player 3 (NJ) wagered $10, player 4 (NV) wagered $25, player 5 (NV) wagered $25, and player 6 (NV) wagered $10. Player 4 won the hand. NJ players wagered a total of $15, and NV players wagered a total of $60. The percentage of rake attributable to NJ would be 15/(15+60), or 20%. Percentage of rake attributable to NV would be 80%. For this hand, $1 of rake would be subject to the 10% GGR tax in NJ, and $4 of rake would be subject to the 6.75% GGR tax in NV.

Any of the three above approaches are viable if each state has a similar GGR model. How would states share revenue if one state taxes gaming revenue based on GGR and another imposes a deposit tax? I will leave that question open for us to think about.

I’m very interested in hearing reactions to this post. Does anyone envision a different path to pooling virtual liquidity in the U.S.? Are there more efficient or agreeable ways that states could seek to share revenue? Consider contributing your thoughts at the LinkedIn group U.S. Internet Gaming: Tax Considerations.

I plan to revisit this topic sooner than later. In about one week, we’ll learn whether iGaming becomes legal in New Jersey. If it does, I’ll cover that next time. If not, I’ll delve into state income tax considerations for both iGaming operators and players.

PokerStars and Full Tilt Poker Settle Civil Suits

July 31st, 2012 No comments

Last September, the likelihood that customers would retrieve their frozen funds from the online poker site Full Tilt Poker was grim at best. At the time, the Department of Justice alleged that the site was $330 million short in funds owed to its players.

Fast-forward to today. The Department of Justice announced it has entered into settlement agreements with Full Tilt Poker and PokerStars, two of the three online poker companies accused of money laundering in a civil forfeiture complaint unveiled in April 2011.

The mechanics of the agreements are a bit complex. Full Tilt has agreed to forfeit its assets to the DOJ in exchange for settling the forfeiture and civil money laundering claims against the company. PokerStars, meanwhile, has agreed to forfeit $547 million to the DOJ and to reimburse non-U.S. Full Tilt customers the approximately $184 million owed to them. In exchange, PokerStars settles its forfeiture and civil money laundering claims and will acquire the forfeited Full Tilt assets.

It’s quite remarkable that one company accused of money laundering (PokerStars) obtained DOJ approval to acquire the assets of its formerly primary competitor (Full Tilt), which also happened to be accused of similar conduct (to a more egregious degree) in the same civil complaint.

Several reasons come to mind why the DOJ would sign off on this. The most critical reason, to me, relates to a rather significant component to the deal that I’ve yet to mention: The DOJ has agreed to enable U.S. Full Tilt customers to retrieve their balances by submitting a claim to the government. The government plans to use the funds collected from PokerStars to make the payouts.

To this point, few details have emerged regarding the DOJ payout process. What we do know is that victims of a judicial forfeiture can make a claim for lost funds by submitting a “petition for remission.” A sample form looks like this.

I think the DOJ is waiting to release payout details because it first must receive the funds from PokerStars to make the payouts. According to the agreement, PokerStars must transfer $225 million to the U.S. Marshals Service within six business days of the court’s entry of the Stipulation and Order. Six business days from today is August 8. Because $225 million is enough to cover the alleged $150 million owed to U.S. Full Tilt customers, we could see a follow-up DOJ press release addressing player payouts as soon as next week. But that’s pure speculation.

I doubt players will simply be permitted to log into their Full Tilt account and request a withdrawal because a petition must first be submitted to the DOJ and approved by the Attorney General through the Asset Forfeiture and Money Laundering Section.

This leaves the following open-ended questions:

  • Will the DOJ implement a screening process for each petition (e.g. tax compliance)? If so, will the level of scrutiny, if any, depend on the amount claimed?
  • If a petition is approved, how will the DOJ verify the person submitting a petition is in fact the person who controlled the account claimed on Full Tilt?

Keep in mind Full Tilt and PokerStars are represented by reputable law firms. I’d be beyond shocked if these questions haven’t already been asked and answered by the parties involved. But I’m not privy to that information, so I, like the rest of us, must wait to find out.

Poker and Taxes: 2011 Year in Review

January 8th, 2012 No comments

2011 was anything but a boring year in the poker world. With tax season approaching, it’s time to review some noteworthy events during the year that may impact items on a poker player’s 2011 U.S. income tax return.

Mayo Decision

In general, the tax code is very harsh towards gamblers. In January, however, the U.S. Tax Court issued a pro-gambler decision. In Mayo v. Commissioner, the court held that a professional gambler may deduct “ordinary and necessary” business expenses beyond the extent of a taxpayer’s “net” gambling winnings.

Here’s a simple example to illustrate. Suppose during 2011 I had $50,000 of gambling winnings, $70,000 of gambling losses, and $20,000 of ordinary and necessary business expenses incurred in connection with my gambling activity. Section 165(d) of the Internal Revenue Code limits the deductibility of my gambling losses to $50,000, producing “net” gambling winnings of $0. Because of Mayo, I may further deduct the $20,000 of business expenses, producing a $20,000 business loss, which may be applied against other income.

If there was any concern over the IRS appealing the decision, it’s now gone. In a recent Action on Decision, the IRS explicitly acquiesced to the tax court’s Mayo opinion. Victory for professional gamblers.

For more comprehensive commentary on the case, click here.

Black Friday

On April 15, the Department of Justice seized the internet domains of Absolute Poker, Full Tilt Poker, and PokerStars. At the time, players’ funds on each of these sites were also frozen and inaccessible. To date, only PokerStars has repaid its customers. Absolute Poker is in bankruptcy, and may or may not repay customers. Full Tilt has agreed to forfeit its assets to the U.S. Department of Justice, and French investment firm Groupe Bernard Tapie is currently in the process of purchasing the assets from the DOJ. It has been reported that the DOJ will repay Full Tilt’s U.S. customers, but nothing has been finalized.

With 2011 behind us and a lot of uncertainty remaining, it’s no surprise the number one tax question on poker players’ minds is how to treat the frozen funds on their tax returns. Of course, PokerStars customers have been fully repaid, so the tax treatment of its customers’ gambling winnings is no different this year. With respect to Absolute Poker and Full Tilt accounts, however, the current state of affairs warrants careful consideration of a couple of tax principles.

  1. Constructive Receipt

As I discussed back in April, the doctrine of constructive receipt sometimes requires cash method taxpayers to include an item in income even if no cash, services, or property are actually received in hand during that year. When are some of those times? A taxpayer has constructive receipt of income in the taxable year during which it is:

  • credited to the taxpayer’s account;
  • set apart for the taxpayer; or
  • otherwise made available such that the taxpayer may draw upon it during the taxable year if notice of intention to withdraw had been given.

Now, if an online casino maintains segregated accounts for each customer, as in the case of PokerStars, then it’s pretty clear that constructive receipt is triggered when a customer earns winnings on the site, and not when the funds are actually withdrawn. But what if an online casino pays its customers through a general operating account? Further, what if that casino’s operating account balance is far less than the total amount owed to players? According to the amended civil complaint filed against Full Tilt Poker, that was precisely the case: At the end of March 2011, Full Tilt owed $390 million to its players but had less than $60 million in its bank accounts. Does constructive receipt still apply?

I would argue that it doesn’t. Constructive receipt does not apply if the taxpayer’s control of its receipt is subject to substantial restrictions or limitations. Gambling winnings in Full Tilt accounts on April 15, 2011 were, in my view, subject to substantial limitations because Full Tilt didn’t have the money to pay the balances. With the Department of Justice alleging in a press release that Full Tilt was operating a “massive Ponzi scheme” against its own players, it would be rather inconsistent for the IRS to then assert that winnings in Full Tilt player accounts not actually received in 2011 are still taxable.

Although we have less evidence to make the same case for winnings in Absolute Poker player accounts, a pending bankruptcy without the return of player funds seems like a strong argument for no constructive receipt.

  1. Claiming a Loss for Unpaid Funds

May a poker player write off unpaid Full Tilt and Absolute Poker funds? For 2011, the answer is no. I covered this issue in detail back in May. What has changed? Now there’s a pending sale of Full Tilt assets by the DOJ to Groupe Bernard Tapie. It seems more likely players will be repaid.

Ultimately, because it’s still possible Absolute Poker and Full Tilt will pay its players back, no loss may be realized. I suspect sometime in 2012 we’ll learn the final fate of unpaid accounts.

  1. Possible IRS Examination of Online Poker Players

Back in April, I explored the possibility of the IRS examining U.S. customers of Absolute Poker, Full Tilt Poker, or PokerStars. To my knowledge, the IRS has not pursued these individuals.

With reports that the DOJ may handle the repayment process of Full Tilt funds to U.S. players, it’s not far-fetched to speculate that some tax examination process will take place. Players may have to apply to the DOJ to obtain unpaid funds. The DOJ or IRS may very well take a look at applications of taxpayers claiming significant balances, perhaps $10,000 or greater.

Another possible alternative is the DOJ offering an amnesty program to poker players who have unpaid balances and are not in compliance with U.S. tax laws. We’ve seen similar programs far greater in scope. In 2011, for example, U.S. taxpayers with certain unreported foreign financial accounts may have came forward under the 2011 Offshore Voluntary Disclosure Initiative.

World Series of Poker

In November, Pius Heinz took home $8,715,638 after capturing the 2011 World Series of Poker Main Event bracelet. And I say “took home” in the literal sense. Because Mr. Heinz was a resident of Germany, he was able to take advantage of the U.S.-Germany Tax Treaty, which exempts from U.S. income tax gambling winnings earned in the U.S. by German residents.

For a complete breakdown of how much tax each of the Main Event’s final nine players had to pay, be sure to check out Russ Fox’s article.

Legislative Developments

In December, the Department of Justice released a memorandum opinion taking the position that the Wire Act applies only to sports wagering. Not exactly a tax event, but an event worth mentioning nonetheless. Although the opinion itself addresses only online state lotteries, states now have been shown a green light for intrastate online gaming. Although player liquidity issues remain for online poker under an intrastate regime, state compacts combining player pools is a realistic possibility. Because of the opinion, legislative developments for U.S. online gaming in 2012 became far more interesting.


Postscript:

I must remind all readers that it is impossible to offer comprehensive tax advice on the internet. Information I write on this blog is not legal advice, and is not intended to address anyone’s particular tax situation. Should you seek such advice, consult with a tax professional to discuss your facts and circumstances.

IRS Circular 230 Notice:

To ensure compliance with requirements imposed by the IRS, I inform you that any U.S. federal tax advice contained in this blog is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter that is contained in this blog.

DOJ (Finally) Reaches Agreement with Absolute Poker

May 12th, 2011 No comments

The deafening silence has ended.  Yesterday, the Department of Justice issued a press release announcing an agreement entered into with Absolute Poker to facilitate the return of funds to U.S. players.  Read the actual agreement here.  The announcement comes just less than a month after the DOJ seized the U.S. domains of Absolute Poker, Full Tilt Poker, and PokerStars.

Unlike the agreements the DOJ reached with Full Tilt Poker and PokerStars, this agreement does not expressly allow for Absolute Poker to utilize its U.S. domain to facilitate the return of player funds.  Instead, the U.S. Attorney’s Office provides “all necessary assurances” to third-party entities engaged with Absolute Poker that these third-party entities may work with Absolute Poker to facilitate the return of funds to U.S. players.  Because the U.S. domain of Absolute Poker has not been restored, it appears that players will not be able to request withdrawal of funds directly through Absolute Poker, but instead via some third-party site.  Whether or not this structure makes it more or less likely Absolute Poker players will ever see their funds returned, I cannot say.  I suspect poker bloggers Grange95, Billrini, or F-Train to weigh in on this issue in the near future with quality insight.  These gentlemen possess as strong an understanding of the online poker industry as anybody.

One common aspect among all three agreements is the “Records Preservation” clause.  It is paragraph 3 in the Absolute Poker agreement.  The wording of this paragraph is unsurprisingly identical (besides the name of the companies, of course) in all three agreements.  Last night, I discussed various possible purposes of this paragraph with @AgentMarco on the live QuadJacks radio show.  In my opinion, there are two primary purposes:

  • 1) The DOJ doesn’t want the companies to start shredding documents that may contain incriminating evidence pertaining to the allegations in the indictments;
  • 2) The DOJ wants to leave open the possibility of handing these records over to the IRS.

Regarding #2, I explored the likelihood of this possibility at length by comparing the Poker Company case to a recent tax evasion case involving a giant offshore bank and many of its account holders.  My stance on the issue hasn’t changed since then, not that much time has passed.  While I haven’t heard of any online poker players recently receiving audit letters from the IRS, it’s still probably too soon to expect any that relate to the indictments.

As I say time and time again, the IRS typically treats taxpayers far more favorably when they voluntarily come forward to declare previously unreported income as compared to the IRS making that discovery.  Keep in mind that just because frozen online poker funds have not yet been withdrawn does not necessarily mean the funds are not considered income that tax should have already been paid on.  If a taxpayer has frozen funds that should have been reported as income in prior years, he/she should strongly consider consulting a tax professional experienced in the area to discuss particular facts and circumstances.

The UBS Case and Potential IRS Examination of Online Poker Company Records

April 23rd, 2011 No comments

One of the many popular questions currently circulating the pokerverse:  Is it possible the Department of Justice internet domain seizures of Full Tilt Poker, PokerStars, and Absolute Poker will result in IRS audits of poker players who were using these sites?

The simple answer:  Of course it is possible.

But that reply is far from enough to satisfy my curiosity.  As I recently discussed, the fact that FTP and PS agreed with the DOJ to, among other things, maintain all U.S. related business records only strengthens the possibility.  But to what extent?

I conveyed these points on Twitter shortly after reading the agreements.  This caught the attention of Alexander Ripps, a legal analyst in Washington, DC for the independent gambling market analysis firm Gambling Compliance.  He pondered how closely the settlement between the Department of Justice and UBS bank in 2009 may parallel the agreements reached by the DOJ with Full Tilt Poker and PokerStars, particularly in terms of making available customer information to the government (and hence possible audits for tax evasion).  Great question.

The UBS U.S. Tax Evasion Controversy

A brief background discussion about the UBS U.S. tax evasion controversy is first necessary.  UBS is a Swiss-based financial services firm.  It’s one of the giants.  In July 2008, UBS was accused by a U.S. Senate panel of assisting U.S. residents with committing tax evasion by shielding assets in offshore accounts.

In February 2009, as a result of the ongoing Department of Justice investigation of UBS’s U.S. cross-border business, UBS agreed to pay $780 million to the U.S. government in fines, penalties, interest and restitution.  A substantial portion of the $780 million represented U.S. taxes that UBS failed to withhold on the accounts.  UBS also entered into a deferred prosecution agreement on charges of conspiring to defraud the U.S.  As part of the agreement, UBS agreed to immediately provide the U.S. government with the identities of and account information for certain United States customers of UBS’s cross-border business.

The UBS case was purely one of tax evasion.  Back in 2000, UBS entered into an agreement with the Internal Revenue Service requiring the bank to report to the IRS income of its U.S. clients holding U.S. securities in UBS accounts.  UBS also agreed to withhold income taxes from United States clients who directed investment activities in foreign securities from the United States.  Ultimately, UBS failed to deliver on these promises to the IRS, and paid the price.  As did several UBS account holders.

The day after UBS entered into the deferred prosecution agreement with the DOJ, the U.S. government sued UBS to compel disclosure of the identities of up to 52,000 UBS U.S. customers.  After some jostling between the U.S. government and Swiss lawmakers, a final deal was reached in June 2010 to provide to the DOJ and IRS the identities of thousands of Americans accused of tax evasion.  Further investigations commenced, and many U.S. taxpayers were caught.  To make examples of these tax evaders, the IRS has listed the identities and corresponding ramifications for several previous UBS bank account holders.

Comparing the Primary Purposes of the UBS and Poker Company Investigations

Again, the driving force behind the Department of Justice’s investigations of UBS was alleged tax evasion; UBS broke its promises to the IRS.  Alleged tax evasion is NOT the driving force behind the recent indictments of the poker companies and their associated payment processors; the offshore poker companies did not enter into agreements with the IRS to withhold income tax from online poker players.

Instead, the case against the poker companies and their associated payment processors is for alleged bank fraud and money laundering.  Eleven individuals are charged with setting up sham companies to shield the nature of their financial transactions.

The purpose of evaluating these driving forces is to obtain a clearer sense of the DOJ’s intentions with the Poker Company case going forward.  Here, the DOJ didn’t commence investigations in order to punish tax evaders.  This point is further highlighted by the fact that, as far as we know, the DOJ hasn’t yet proceeded to obtain the identities of U.S. poker player accounts.  In the UBS case, however, the DOJ took such action the day after UBS entered into the deferred prosecution agreement.  The Poker Company case is to make examples of money launderers.

Also noteworthy:  In the UBS case, the DOJ knew that some account holders committed tax evasion because the evidence was there at the bank level.  Here, however, there is no evidence of tax evasion by U.S. online poker players on the surface.  It could take far more effort to locate tax evaders in this case.

Concluding Thoughts

To this point, the only indication that the DOJ may be interested in making tax evasion inquiries is the “Records Preservation” paragraph in both of the agreements with Full Tilt Poker and PokerStars, requiring them to maintain their U.S. related business records.  On the one hand, this aspect of the agreements leaves the door open for the IRS to also get involved.  On the other hand, it’s very possible the paragraph is merely a “just in case someday we feel like investigating” provision.  Ultimately, the extent of record review for tax evasion may require more manpower than the IRS can afford to commit.

We shall see.

DOJ Reaches Agreement with Full Tilt and PokerStars

April 20th, 2011 No comments

Earlier today, the Department of Justice issued a press release announcing domain-name use agreements entered into with Full Tilt and PokerStars.  Read the respective agreements here and here.  The agreements restore access to these two sites to U.S. players only for purposes of facilitating the return of money that was frozen by the DOJ last friday.

This is great news for U.S. poker players who have funds frozen in accounts on these sites.  Although there hasn’t been any guarantee of fund retrieval, the news, at least on the surface, can’t be relatively any better, considering the state of affairs last Friday.  It’s looking much more likely the funds will be returned.

I say “on the surface” because of possible implications from the agreements.  In particular, observe paragraph 4 in each, entitled “Records Preservation.”  Essentially, Full Tilt and PokerStars are required to maintain all records relating to its business in the U.S.  Because the return of player funds will be overseen by a “Monitor” pre-approved by the DOJ, it is clear the DOJ will have access to these records of consumer activity on these sites.  Whether or not the DOJ decides to scrutinize the records or hand them over to the IRS, we probably won’t know for some time.

What’s also particularly interesting from the press release is the loud silence from the third offshore poker company whose domains were seized in the U.S., Absolute Poker.  The DOJ press release indicates that the same agreement offer was extended to Absolute.  I strongly suspect the reasons behind the delay of the agreement or rejection of the offer will emerge within the upcoming days.

All in all, a partial rebound from what my fellow Tweepers describe last friday as: #PokerPanic.

Offshore Online Casino-U.S. Casino Partnerships Could Facilitate Online Gambling Tax Audits

March 28th, 2011 No comments

I have been asked countless times the following question:  How can the IRS discover my gambling winnings from online poker?

As it stands, it’s not easy for the IRS to find out.  Either (1) you tell them on your tax return, (2) someone else tells them, or (3) you raise a flag by exhibiting a striking irreconcilability between your lavish lifestyle and your reported income.  With the increasing likelihood of federal legalization of online poker in the United States, however, the scope of risk of the second possibility, someone else telling them, may broaden exponentially.

As many of you know, the online pokerverse is abuzz following the announcement of a partnership between Wynn Resorts Ltd. and PokerStars late last week.  In short, here’s why:

“We are convinced that the lack of regulation of Internet gaming within the US must change,” said [Steve] Wynn, chief executive of Las Vegas casino company Wynn Resorts, in a statement. “We must recognize that this activity is occurring and that law enforcement does not have the tools to stop it.”

PokerStars and Wynn Resorts plan to work together to secure the passage of federal legislation that will regulate online poker in the U.S. with an eye toward setting up a joint venture, PokerStarsWynn.com, that will offer for-money online poker play in the U.S.

Other partnerships with similar intentions have also formed recently.  It’s clear that the movement towards federal Internet gaming legislation is getting closer to becoming a reality, and many online poker players are rightfully excited.  Yet, this same legislation will likely someday serve as a major buzzkill for many others.

If PokerStars, Full Tilt, or any other offshore online casino brings its operations to the U.S., then the IRS may be able to subpoena such entity for records of, among other things, consumer activity.  Alternatively, the IRS may enter into information sharing agreements with these entities, as part of the implementation of federal Internet gaming legislation.  Essentially, the avenues through which the IRS could learn of online poker activity could suddenly skyrocket.

It won’t take very long for IRS auditors to then ascertain which taxpayers have been and which have not been properly reporting their online gambling income (including past, present and future activity).  If you are among the latter group, I strongly advise you to consult a tax professional now to discuss your options.  Taxpayers are typically treated more favorably by a tax agency when they voluntarily disclose reporting errors, rather than being caught later.

Past activity, present activity, and future activity.
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