Can You Write Off Casino Losses

• Can You Write Off Gambling Losses In Nj
• Can You Write Off Gambling Losses In Michigan

There are laws require that you declare your winnings in games including gambling as part of your income. But what about the losses? How do you account for the losses you made in gambling when it comes to tax filing?

For instance, you can continue to deduct gambling losses, up to the amount of winnings, on 2017 returns and beyond. The TCJA did, however, modify the gambling loss deduction, beginning in 2018. For this purpose, the definition of gambling losses has been broadened to include other expenses incurred in gambling activities, such as travel back. In other words, you can use your losses to compensate for your winnings. So, let’s say you won $200 on one bet, but you lost $400 on one or a few others, you can only deduct the first $200 of losses. Meaning if you didn’t win anything for a year, you won’t be able to deduct any of your gambling losses.

It wouldn’t be fair to be taxed for the winnings and not account for the losses. Gambling after all is like running a business but with considerably lower chances for success. It’s easier making money by investing in a business compared to spending money on slots, dice, poker, or baccarat.

Based on data from H2 Gambling Capital, as reported on The Economist, global gambling losses in 2016 amounted to $385 billion with Australia topping the list of countries with the highest losses. By the way, loss here refers to the losses of players or the gains of gambling operators.

Source: The Economist, citing data from H2 Gambling Capital (website screenshot, fair use)

Tax Significance of Casinos, Online Casinos in Particular

It’s worth discussing the idea of tax on casino winnings mainly because online gambling is something common nowadays. Based on numbers from Statista, the online gaming market will have doubled in 2018 from its figure in 2009. The forecast is that it will become a $51.96 industry by 2018. A 2016 survey conducted by Nielsen Scarborough found that nearly 83 million Americans went to a casino in the past 12 months. That’s a truly massive number representing gamblers in the US alone. However, it is expected that this number of gamblers who visit physical casinos is bound to shrink over time as more prefer to play at online casinos.

Online casinos provide convenience any gambler would surely appreciate. It allows playing without the limitations of location and time. It is a major advantage for modern gambling. Some may doubt its reliability, questioning the fairness of the games being offered, but with the help of systems like random number generation and provably fair testing, players are assured that the games they play are not being manipulated. There are companies or institutions that provide certifications for random number generation to vouch for the reliability of online casinos.

The games on online casinos have also been standardized to establish credibility. Most online casinos nowadays rent or buy their software from renowned gaming service providers like Playtech, Microgaming, Realtime Gaming, Amaya, Softswiss, and International Game Technology. The use of games from this well-known companies makes it easier for players to trust casinos as compared to offering completely new in-house developed games.

Moreover, online casinos have invested time, money, and effort in improving the looks and usability of their websites. Online casinos now look indubitably better than how they looked in the past. They also employ better technologies to ensure a smoother playing experience. Flash has slowly been abandoned in favor of HTML5. At present, it is estimated that only around 4.6% of all websites are still using Flash. The same dwindling numbers can be observed when it comes to Flash use in online casinos.

Online casinos have also been designed to be accessible across multiple devices, from desktops to laptops and mobiles including tablet computers and smartphones. Online gambling operators have made sure that their online casinos are easily accessible using mobile devices, which is obviously an acknowledgment of how big the number of mobile internet gamblers is. As of February 2017, it was estimated that mobile internet access (not including access through tablet computers) accounted for 49.73% of the total page views across different parts of the world.

It’s not surprising that online casinos put emphasis on improving their looks, usability, accessibility, overall performance, and distinctiveness. They seek to provide a better casino experience that lets players enjoy quality games, snappy performance, reliability, intuitiveness, and the assurance that they will be paid of their winnings. 888 Casino, for example, has recently introduced a brand new sleek website design that makes it a one of a kind casino online.

Online gambling has come a long way and is being patronized by a growing number of people worldwide. While problem gambling is still the top issue associated with it, many are now recognizing that taxation of winnings is also an important issue to raise. After all, online casino winnings are still earnings worth subjecting to taxation. That’s why it’s worth discussing the tax implications of online casino winnings as well as the corresponding losses.

Deductible to a certain extent

The good news is that your gambling losses are actually deductible from your taxable income. Regardless of where you won and lost, be it in a traditional brick and mortar casino or in an online casino, you can deduct the losses you made from your taxable income. It does not matter if you gambled at a traditional brick and mortar casino where you made successive wins or you lost money at a dubious online casino. Your winnings and losses are supposed to be accounted for based on tax laws and regulations.

The main idea here is that you can subtract your gambling losses from the amount you won. Of course, you can’t just directly deduct the amount of your losses from your tax due. It’s similar to how you compute taxes for your business income. Your expenses and losses are deducted from your gross income first before multiplying the applicable tax rate to come up with the due amount of tax. The winnings are comparable to the gross income (in business) while the losses are comparable to the expenses and the actual losses of a business.

It’s important to remember, though, that this deduction can only be allowed if you are qualified for itemized deductions. You need a detailed listing of your winnings and losses to come up with the net amount that will be subjected to the tax rate. These details are to be listed under Other Income and Other Miscellaneous Deductions sections of Form 1040. If you opt for the standard deduction, your gambling or casino losses will no longer be subtracted from your total taxable earnings.

Source: IRS

Itemized deduction vs standard deduction

Taxpayers automatically qualify for standard deduction except when the itemized deductions they claim are greater than the standard deduction. Tax authorities are responsible for deciding if you qualify for standard or itemized deduction. You will not be compelled to choose either standard or itemized deduction, though. If you find standardized deduction more convenient, you will not be forced to choose itemized deduction even if you qualify for it. Around a third of the taxpayers in the United States use itemized deduction.

Naturally, you will have to choose the deduction scheme that is more advantageous for you, the one that yields the lower tax due. You may want to do calculations, which shouldn’t be difficult now since there are many tax computation tools online. Just do a search using the phrase “tax calculator” and Google should be able to show you a number of online tax tools to help you get a good estimate of the tax you should be paying.

Bets are not expenses

Another important detail to remember here is that bets cannot be deducted as expenses. Gambling is not like running a business wherein you put out money for the acquisition of something (cost of goods sold) to be sold later on. In business, the cost of goods sold is deducted from the gross revenues, thereby reducing the amount (net income) that will be subjected to the appropriate income tax rate. This concept is not comparable to the bets placed when gambling.

Bets are personal expenses that cannot be deducted from the taxable income. Only the amounts for gambling winnings and losses are used for the computation of the net amount that will be added to your other income figures to come up with the final taxable income amount that will be subjected to the tax rate.

Can You Write Off Gambling Losses In Nj

Documentation requirements

If you want to account for your gambling losses to calculate your tax, the Internal Revenue Service (IRS) needs you to maintain a comprehensive listing of your winnings and losses. Gambling winnings, by the way, include winnings from raffles, lotteries, sports betting, poker games, horse racing, canine racing, and various casino games online or offline. Income derived from any form of gambling ideally should be included.

Your record of winnings and losses have to be clearly detailed. The listings should include information on the date and type of gambling involved, the name and address of the establishment where you gambled, and the exact amount you won or lost. You will also be asked to list the names of the people you played with.

Moreover, you need to have supporting documents for the gambling winnings and losses you have in your record. These supporting documents include wagering tickets, form W-2G, form 5754, cancelled checks or credit records, and official receipts from the gambling establishment. You will be required to submit original documents.

Source: IRS

If your winnings and losses are from an online casino, you can ask for a win/loss statement from the online casino you played in. You may be required to submit other documents to verify the authenticity and accuracy of the details presented in the statement.

Limitations

Tax laws set a limit on the maximum amount that can be claimed as losses. Basically, you cannot claim losses that exceed your winnings. For instance, if you made accumulated winnings of $10,000, you cannot claim losses amounting to $10,001 or higher even if you actually lost more than you won. If you won $10,000 but your accumulated losses for a tax year amounting to $30,000, you cannot claim a net loss of $20,000. You cannot end up recording a negative number (net losses from gambling) that can then be deducted from your other taxable income. If this were to be allowed, it’s would be like the government somewhat subsidizing the gambling activities of taxpayers.

In conclusion

It’s important to emphasize that you cannot simply claim a net amount of winnings or losses. You need to have detailed records with all the information mentioned earlier. Gambling losses can help lower your tax due but it’s unlikely going to be by a significant amount unless your finances largely consist of gambling winnings and/or losses.

Image: Pixabay.com

The ability to deduct expenses was curtailed by last year’s tax overhaul.

Professional gamblers' decadelong streak of being able to deduct a net loss from gambling as a trade or business was ended this year by P.L. 115-97, known as the Tax Cuts and Jobs Act of 2017 (TCJA). Although a relatively minor facet of the wide-ranging tax reform package, the TCJA's amendment to Sec. 165 overturning a 2011 Tax Court decision and 2008 IRS memo is momentous for taxpayers who claim to be engaged in the trade or business of gambling by virtue of their participation at card tables, racetracks, or other wagering venues, real or virtual.

CHANGING FORTUNES

While all taxpayers are required to report gambling winnings in gross income, what related deductions they can claim and in what way depends on whether their gambling rises to the level of a trade or business. A gambler not in the trade or business of gambling (a 'casual gambler') can deduct wagering losses as a deduction not subject to the 2%-of-adjusted-gross-income threshold (i.e., not among miscellaneous itemized deductions the TCJA suspended for tax years 2018 through 2025) on Schedule A, Itemized Deductions, but only to the extent of the winnings. On the other hand, a gambler engaged in the trade or business of gambling ('professional gambler') can net gambling winnings against losses and business expenses on Schedule C, Profit or Loss From Business.

Before amendment by the TCJA, Sec. 165(d) stated only, 'Losses from wagering transactions shall be allowed only to the extent of the gains from such transactions.' For many years before 2008, the IRS interpreted 'losses from wagering transactions' to include professional gamblers' business expenses, so that they were deductible, along with wagering losses, only to the extent of gambling winnings. Consequently, professional gamblers were not allowed to generate a net operating loss (NOL) from gambling activities. The Tax Court in Offutt, 16 T.C. 1214 (1951), sustained the IRS's perspective and followed this ruling in subsequent cases.

But the Tax Court did not do so consistently, as discussed below. Meanwhile, the Supreme Court in Sullivan, 356 U.S. 27 (1958), allowed business deductions of an illegal gambling enterprise (generally denied previously on public policy grounds). Then, in Groetzinger, 480 U.S. 23 (1987), the Supreme Court distinguished between Sec. 165(d) wagering losses and Sec. 162(a) business expenses of a taxpayer in the trade or business of gambling.

In 2008, the IRS in Chief Counsel Advice Memorandum AM 2008-013 concluded that the IRS should no longer follow Offutt. The Tax Court in Mayo, 136 T.C. 81 (2011), then likewise abandoned its Offutt holding, allowing a professional gambler to deduct business expenses in excess of net gambling winnings (while maintaining that direct wagering losses could still be deducted only to the extent of wagering gains under Sec. 165(d)). Therefore, professional gamblers were able to generate an NOL from gambling activities — until the TCJA amended Sec. 165(d). (For more on Mayo and factors by which courts determine whether gambling is a trade or business, see 'Better Odds for Pro Gamblers' Business Deductions,' JofA, April 2012.)

TAX REFORM RESETS THE RULES

The TCJA, however, put an end to professional gamblers' ability to deduct nonwagering business expenses in excess of net wagering income. It amended Sec. 165(d) by inserting the following sentence after the original one:

For purposes of the preceding sentence, in the case of taxable years beginning after December 31, 2017, and before January 1, 2026, the term 'losses from wagering transactions' includes any deduction otherwise allowable under this chapter incurred in carrying on any wagering transaction.

The House of Representatives described this provision in its committee report (H.R. Rep't No. 115-409, 115th Cong., 1st Sess. 167 (Nov. 13, 2017)):

The provision is intended to clarify that the limitation on losses from wagering transactions applies not only to the actual costs of wagers incurred by an individual, but to other expenses incurred by the individual in connection with the conduct of that individual's gambling activity. The provision clarifies, for instance, an individual's otherwise deductible expenses in traveling to or from a casino are subject to the limitation under section 165(d). [footnote omitted]

The report further noted that the provision was intended to reverse Mayo (id., fn. 135). Consequently, the deduction of professional gamblers' nonwagering business expenses is limited by Sec. 165(d) under the new law. The following example and the chart, 'Before and After the TCJA,' illustrate the amendment's effects.

Before and after the TCJA

Example

Assume that G had the following expenses related to his gambling activities in both tax years 2017 and 2018:

Gambling winnings: $10,000

Losing wagers: $12,000

Transportation: $3,000

Meals and entertainment: $1,500

Legal and professional services: $1,000

Lodging: $2,500

Subscriptions and books: $900

Telephone and online charges: $600

Depending on whether G is a professional or casual gambler, either of two tax treatments could result for each year. If G is a casual gambler, the amendment of Sec. 165(d) has no effect on him. He should report his gambling income of $10,000 on Form 1040, U.S. Individual Income Tax Return, and $10,000 of his wagering losses on Schedule A in both 2017 and 2018. If G is a professional gambler, he could claim an NOL of $9,500 from gambling activities in 2017, as shown in the chart. However, under the amended Sec. 165(d), G may deduct his wagering losses and nonwagering gambling-related business expenses only to the extent of his gambling winnings, for a net zero income from gambling activities in 2018.

GAINS FROM WAGERING TRANSACTIONS

Amended Sec. 165(d) changes the definition of 'losses from wagering transactions' but not the meaning of 'gains from wagering transactions,' which may not always be clear. Courts generally have held that 'gains from wagering transactions' within the meaning of Sec. 165(d) must be the actual product of wagers entered by the taxpayer.

Gross income does not include the return of capital (Doyle v.Mitchell Bros. Co., 247 U.S. 179 (1918)). A gambler thus would be entitled to exclude the cost of a winning ticket from its associated gross winnings. Nevertheless, such recovery of capital could not include the cost of tickets that did not win (Hochman, T.C. Memo. 1986-24). In the past, courts have considered various items as gains from wagering transactions. The annual payments lottery winners receive are treated as their gambling winnings in the year the payments are received (Rusnak, T.C. Memo. 1987-249). However, an excess gambling gain in one year cannot be offset by an excess gambling loss in another year (Skeeles, 118 Ct. Cl. 362 (1951)).

The Fifth Circuit in Humphrey,162 F.2d 853 (5th Cir. 1947), held that wagering transactions include all gambling activities, regardless of whether they are legal or illegal, or whether they are business or personal. As long as the losses derive from wagering transactions, they could be used to offset gains from any such transaction.

It is not necessary for the wagering gains to be related in any way to the losses (Scott-Nickels Bus Co., T.C. Memo. 1956-120). For example, the taxpayer in Presley, T.C. Memo. 1979-339, an owner of an illegal casino, was allowed to use the losses from his other personal gambling activities to offset his gains from the casino (see also Jennings, 110 F.2d 945 (5th Cir. 1940), and Joseph, 43 B.T.A. 273 (1941)).

Gamblers could use gambling losses to offset the value of complimentary goods and services ('comps') they receive from a casino. Comps constitute gains from wagering transactions because the relation between the comps and the gambler's wagering is 'close, direct, evident, and strong' (Libutti, T.C. Memo. 1996-108).

Can You Write Off Gambling Losses In Michigan

INCOME THAT IS NOT GAINS FROM WAGERING TRANSACTIONS

In addition, courts have considered the following income sources to not be gains from wagering transactions:

Tokes

Traditionally, casino dealers receive 'tokes' from patrons who play at their tables, in the form of bets the patron places for the dealer's benefit. Tokes are considered compensation for the recipient's services and, thus, should be treated as ordinary income rather than either wagering gains or gifts (Bevers, 26 T.C. 1218 (1956); Allen, 976 F.2d 975 (5th Cir. 1992); Olk, 536 F.2d 876 (9th Cir. 1976); and Williams, T.C. Memo. 1980-494).

Take-offs

A take-off is the fee that the house charges card players to play poker at the casino. Because take-offs serve as seat rental charges, those the house receives are not gains from wagering transactions and cannot be used to offset the house's losses from such transactions (Nitzberg, 580 F.2d 357 (9th Cir. 1978)). Similarly, the taxpayer in Boyd, 762 F.2d 1369 (9th Cir. 1985), ran the poker room in a casino that awarded him a portion of the take-off collected in the card room. The contractual share of take-offs the taxpayer received was not his gains from wagering transactions and could not be offset by his losses from those transactions.

Theft income from stolen betting tickets

The taxpayer in Collins, T.C. Memo. 1992-478, aff'd,3 F.3d 625 (2d Cir. 1993), worked as a ticket seller at an off-track betting station. Without making any payment, he placed several personal bets that had a fair market value of $80,280 and resulted in winnings of $42,175 (for a net loss of $38,105). He returned the entire winnings to his employer and turned himself in at the end of the day. The Tax Court ruled that the taxpayer should recognize net theft income of $38,105. Further, the court held that the theft income from the stolen tickets was ordinary income and not gain from a wagering transaction. Therefore, the taxpayer could not use his losses from wagering transactions to offset his theft income.

LOSSES FROM WAGERING TRANSACTIONS

Professional gamblers can deduct business expenses against their gains from wagering transactions (again, subject now to limitation under the TCJA) even if illegal gambling activities are involved. For example, in Harbin, T.C. Memo. 1958-190, the owner and operator of an illegal lottery business was allowed to deduct gambling losses, business expenses, and the federal excise tax on gambling against his income from the gambling operations. When the losses from wagering transactions exceed the gains, the excess losses cannot be carried back to previous years (Estate of Todisco, T.C. Memo. 1983-247). Casual gamblers cannot claim a gambling loss deduction for nonwagering expenses, such as transportation, meals, and lodging (Whitten, T.C. Memo. 1995-508).

Courts have considered the following items losses from wagering transactions, such that their deduction is limited to wagering gains:

Unsold tickets

The taxpayer in Miller, 792 F.2d 392 (3d Cir. 1986), was a lottery dealer in the Virgin Islands, where the lottery distribution system did not allow dealers to return unsold tickets. The Third Circuit noted that the taxpayer retained the tickets and continued to buy more tickets than he could sell, indicating that he was betting that one or more of the unsold tickets would be drawn. Therefore, the cost of these unsold tickets should be treated as gambling losses rather than ordinary business expenses, the court held.

Losses by shills

Typically, casinos engage persons referred to as 'shills' to whom they agree to provide a certain sum of money or chips to play. The casino will absorb any loss, but gains are split between the shill and the casino. The Tax Court in Nitzberg, T.C. Memo. 1975-228, held that when shills' losses were greater than their winnings, the net loss was deductible as the casino's ordinary and necessary business expense under Sec. 162. However, on appeal, the Ninth Circuit (Nitzberg, 580 F.2d 357 (9th Cir. 1978)) reversed the ruling, noting that shills acted on the casino's behalf when placing bets and, therefore, the casino's losses were losses from wagering transactions.

State tax assessment

A state income tax assessment on gambling income of an individual in the trade or business of gambling is tied directly to a taxpayer's gambling activities and, hence, is subject to the limitation of Sec. 165(d) (Estate of Todisco, 757 F.2d 1 (1st Cir. 1985)).

Buy-in and rake

Tournament poker players are required to pay the tournament organizer a 'buy-in,' or entrance fee. The casino retains a portion of this amount as an administrative fee, and the remainder goes directly into the prize fund 'pot' that will be paid out to the tournament's winners. The Tax Court in Tschetschot, T.C. Memo. 2007-38, considered tournament poker a wagering activity and treated poker players' loss of the buy-in as losses from wagering transactions. However, the IRS in Hom, T.C. Memo. 2013-163, conceded that poker entry fees and rake fees (charged per hand to play poker online) were business expenses of a professional gambler. While the Tschetschot and Hom cases are inconsistent, this inconsistency is irrelevant under amended Sec. 165(d). Regardless of the nature of buy-in and rake fees, both are subject to the Sec. 165(d) limitation under the TCJA.

Takeout

In horse-race betting, 'takeout' refers to the share of the entire betting pool that the event manager (the track) is specified to receive. The track uses the takeout to pay its expenses, such as purse money for the horse owners, taxes, license fees, and other state-mandated amounts, and keeps any remaining amount as its profit. As a professional gambler, the taxpayer in Lakhani, 142 T.C. 151 (2014), aff'd, Nos. 14-72576, 14-72577 (9th Cir. 5/10/18), argued that his pro rata share of the takeout the track remitted to the state and local tax authorities constituted his business expense and was not a loss from wagering transactions. The Tax Court noted that the taxes, license fees, and other expenses discharged from the takeout were expenses imposed upon the track, not the bettors. Therefore, the taxpayer was not allowed to deduct his share of the takeout.

POTENTIAL ISSUES

Taxpayers should be aware of the following potential issues, some of which may require more clarification by either courts or the IRS:

Treatment of 'fee to play'

The courts treat the 'fee to play' inconsistently, as it may be referred to as take-off, buy-in, or rake. The Ninth Circuit in Boyd held that take-offs the casino received or awarded to a contract player were not gains from wagering transactions. The Tax Court in Mayo implied that take-offs gamblers paid were nonwagering business expenses. On the other hand, the Tax Court in Tschetschot considered poker players' losses of the buy-in as losses from wagering transactions, while in Hom, rake was treated as a business expense.

This inconsistency raises two issues. First, there is no statute or theory to support the different tax treatments of the entry fees based simply on whether the taxpayer is the recipient or the payer. Second, for professional gamblers, the inconsistency between the Tschetschot and Hom cases does not matter under Sec. 165(d) as amended by the TCJA. For casual gamblers, however, this inconsistency has created chaos. Naturally, casual gamblers prefer to follow the Tschetschot case and treat their fees to play as losses from wagering transactions, as they are not allowed to deduct any gambling-related nonwagering expense.

Treatment of tokes

Are tokes that dealers receive considered the giver's winnings and losses? The courts have held that tokes are not dealers' gains from wagering transactions, as noted above. However, there is no precedential ruling with respect to the giver's treatment of the toke. As a toke belongs to the giver until the bet is won (Bevers, 26 T.C. at 1219), theoretically, the loss or winning of the toke should be considered the giver's gambling loss or winning.

Reportable gambling winnings

In Regs. Sec. 1.6041-10, the definition of 'reportable gambling winnings' for information-reporting purposes depends on the type of game. In bingo and slot machines, the amount of the reportable gambling winnings includes the amount wagered. Conversely, it is reduced by the amount wagered for keno. Taxpayers should be aware of this difference when they receive Form W-2G, Certain Gambling Winnings.

AN END TO NOLs

Before the TCJA, under the Tax Court's holding in Mayo, professional gamblers were allowed to fully deduct their nonwagering business expenses beyond wagering gains. By amending Sec. 165(d) in the TCJA, Congress reversed Mayo, allowing professional gamblers to deduct their wagering losses and nonwagering business expenses only to the extent of their gambling winnings, and no longer allowing them to generate an NOL from their gambling activities. Although, under the TCJA, the amendment to Sec. 165(d) is scheduled to expire at the end of 2025 along with most of its other provisions affecting individual taxpayers, Congress may extend it further. In the meantime, professional gamblers' winning streak apparently has come to an end.

About the authors

Wei-Chih Chiang, CPA, DBA; Yingxu Kuang, DBA; and Xiaobo Dong, Ph.D., are all associate professors of accounting in the School of Business Administration, University of Houston—Victoria at Katy, Texas.

To comment on this article or to suggest an idea for another article, contact Paul Bonner, a JofA senior editor, at Paul.Bonner@aicpa-cima.com or 919-402-4434.

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