Translation disclaimer
This translation was prepared by Tax Interpretations Inc. The CRA did not issue this document in the language in which it now appears, and is not responsible for any errors in its translation that might impact a reader’s understanding of it or the position(s) taken therein. See also the general Disclaimer below.
Principal Issues: [TaxInterpretations translation]
Can large sports betting winnings be taxed as business income?
Position:
Yes, but it's a question of fact.
Reasons:
According to certain criteria established by case law and those set out in paragraph 10 of IT-334R2, gambling activity may be considered a business. Net winnings are therefore taxable under subsection 9(1) of the Act.
December 20, 1999 XXXXXXXXXX TAX SERVICES OFFICE
Attention: XXXXXXXXXX
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Headquarters
Martine Filiatrault, CA
Tel.: (613) 957-8953
7-992130
1999-000353
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Request for interpretation
Taxation of sports betting winnings
This is further to your request of July 26, 1999 for our opinion on the above subject.
Facts
XXXXXXXXXX
Questions
You wish to know whether net sports betting winnings determined by net worth, XXXXXXXXXX should be considered business income and taxed under subsection 9(1) of the Income Tax Act (the "Act").
The Taxpayers' Position
According to the taxpayers, winnings from sports betting are not taxable because they are winnings from a hobby. The taxpayers claim that they do not run their gambling activity as a business and, in their opinion, the income generated from that activity should not be taxable.
Your Position
You stated that the only reference in the Act to lottery winnings is in paragraph 40(2)(f) of the Act. That paragraph states that no capital gain or loss results from the disposition of a chance to win a prize or bet, or a right to receive an amount as a prize or as winnings on a bet, in connection with a lottery scheme or a pool system of betting. You concluded that a lottery or sports betting win would not be taxable as a capital gain but could be taxable under other provisions of the Act, such as subsection 9(1), as business income, or subparagraph 56(1)(n), as a prize for achievement in a field of endeavour ordinarily carried on by the taxpayer.
You are of the view that XXXXXXXXXX will not be able to claim that their sports betting winnings should be considered as windfall gains because they do not meet several of the criteria listed in paragraph 3 of Interpretation Bulletin IT-334R2, Miscellaneous Receipts, including, among others, the criteria in paragraphs (b), (f) and (h).
You stated that paragraph 10 of IT-334R2 provides a great deal of clarification on profits from gambling by stating that an individual may be subject to tax on income derived from gambling itself, if the gambling activities constitute carrying on the business of gambling. You wonder, however, whether the business referred to in that paragraph is limited to the activities of gaming houses and bookkeepers. In your view, if paragraph 10 of IT-334R2 on profits from gambling also includes all types of gambling and specifically that of sports betting used by XXXXXXXXXX, their gambling winnings should be taxable under subsection 9(1), since it seems obvious to you that the conditions set out in paragraphs (a) to (d) of IT-334R2 really demonstrate that the taxpayers are carrying on a business. Consequently, you are of the view that paragraphs 40(2)(f) and 56(1)(n) will not apply since, in your opinion, the taxpayers are carrying on a business. In addition, you stated that subdivision b of the Act, which deals with business income, does not include any exception for lottery and pool betting winnings.
XXXXXXXXXX. However, you are concerned about our position set out in paragraph 3 of Interpretation Bulletin IT-404R, Payments to Lottery Ticket Vendors. That paragraph states that we will not consider income represented by a percentage of the winnings on a winning ticket that a retailer receives for selling that ticket to be taxable. You are wondering whether our taxpayers' winnings should be taxable despite the fact that the payment of a percentage of a winning ticket is not taxable for the retailer.
Our Opinion
We agree with you that income from sports betting may be taxable under subsection 9(1), notwithstanding the provisions of paragraph 40(2)(f). Furthermore, we agree that it would be difficult for a taxpayer to argue that gambling income constitutes a windfall in a situation where the level of organization of the gambling is obvious and the taxpayer is making sustained efforts to obtain this income.
A) Business income
As you noted, paragraph 10 of IT-334R2, Miscellaneous Receipts, sets out our policy with respect to gambling profits. In our view, that paragraph deals not only with winnings realized by bookkeepers and gaming houses, but also with winnings realized by an individual who derives the individual’s income from gambling itself. In our view, that could be a gambler who engages in pool betting, such as sports betting, or who buys lottery tickets. If that activity constitutes a business for the gambler, the profit from it is included in the individual’s income under subsection 9(1).
As you stated, paragraph 10 of IT-334R2 sets out the criteria to be considered in determining the existence of a business in a case such as this. It states that "the following criteria must be considered in making the determination:
(a) the degree of organization that is present in the pursuit of this activity by the taxpayer,
(b) the existence of special knowledge or inside information that enables the taxpayer to reduce the element of chance,
(c) the taxpayer's intention to gamble for pleasure as compared with any intention to gamble for profit as a means of gaining a livelihood, and
(d) the extent of the taxpayer's gambling activities, including the number and frequency of bets.
You have highlighted several facts of XXXXXXXXXX's situation by comparing them with the criteria set out in paragraph 10 of IT-334R2. We agree with your conclusion that, in XXXXXXXXXX's case, the income generated from sports betting is taxable. We wish to add certain additional arguments following our analysis of the relevant case law.
Case law clearly shows that each case is an individual case that must be decided on the basis of the facts of the particular situation. On this point, Justice Hyndman comments on his analysis of the case law in Walker at page 1003:
"I deduce from an examination of these decisions that each case must depend on its own particular facts, the important feature being whether or not there was an intention on the bettor's part to make profit, and not as a form of amusement or hobby."
Degree of organization
In Badame v. MNR, 51 DTC 29, the taxpayer wagered on horse racing, owned and bred racehorses, and personally moved his horses to races in which they participated. He bet on his own horses as well as on other horses. He had no other occupation and spent approximately 30 weeks a year at a racetrack. In No.364 v. MNR, 56 DTC 513, at page 516, the judge cites Badame, supra, as follows:
"It was held that the answer to the question of whether or not the betting activities of the taxpayer were such as to constitute a business or an occupation depended entirely on the facts. The facts indicated that betting constituted an integral part of the appellant's occupation and that the income therefrom was taxable."
In a recent case, Luprypa v. The Queen, 97 DTC 1416, the taxpayer was involved in pool games from 1989 until the purchase of his farm in 1991. He admitted that for three years he played pool for money. He practised all day and went to a bar at night to play against drunken customers. He earned between $200 and $300 a night. The judge states, at page 1419:
"With this background, I have no difficulty in concluding that the Appellant carried on a business of playing pool for profit. He had a system and a reasonable expectation of profit. It was his principal source of income during the years in question. He approached his business in a professional manner:
a) He carefully managed the risks.
b) He was a skilled player.
c) He played Monday through to Friday each week.
d) He spent his afternoons playing snooker to perfect his skills.
e) He played inebriated opponents after 11:00 p.m. to minimize his risk.
f) He won most of the time earning, approximately $200 daily.
g) He drank alcoholic beverages only on weekends when not playing pool to give him a sober advantage over his inebriated opponents.
h) He was calculating and disciplined.
i) It was his primary source of income and he relied on this steady income.
This is a fact-driven case. Considering the facts, there is no doubt that pool playing was not a hobby for the Appellant. It was his livelihood and his business. He had income from a source as required in section 3 of the Act."
Risk reduction
In Chapman v. MNR, 82 DTC 88, at page 91, the judge states the following:
"The question as to the taxability of gambling winnings is one of considerable complexity. It is clear from an examination of the various decisions to which my attention has been directed that each case must depend on its own particular set of facts, the important factor being whether or not there was an organized intention on the bettor's part to minimize his chances of loss and to make a profit from his activities rather than merely pursue them as a form of amusement."
In The Queen v. Balanko, 88 DTC 6228, the Federal Court judge states, at page 6230:
"While risk-taking is necessary in a business, it is management or minimization of risk which is the characteristic of business activity. (...) There is a total absence of any evidence here which indicates the presence of any organized system for the minimization or management of risk. This lack of system distinguishes the Appellant, an intemperate gambler, from the professional gambler."
Taxpayers' Intentions
In Markowitz v. MNR, 64 DTC 397, Snyder J. states at page 399 that the onus is on the taxpayer to prove intent with respect to gambling:
"In the presentation of this appeal it was obvious that counsel for the appellant was fully aware that the onus of proving the case rested on the appellant as it does in tax cases of this character."
In MNR v. Morden, 61 DTC 1266, a leading gambling case, the judge ruled that for the years in question (1949, 1951, 1952 and 1953), Mr. Morden's gambling activities amounted to a hobby. However, at page 1267, he had the following comments for the earlier years:
"His gambling activities up to the year 1948 were so extensively organized and occupied so much of his time and attention that, had they continued throughout the years in question, any net gain therefrom might possibly have been income from a business within the definition of "business" contained in s. 127(1)(e)."
The judge in the Morden case, supra, went on to quote, at page 1269, a passage from the case of Lala Indra Sen (1940) 8 I.T.R. (Ind.) (a case in the Indian jurisprudence). In his view, it appears that intention is one of the determining factors:
"If there is one test which is, as I think, more valuable than another, it is to try to see what is the man's own dominant object - whether it was to conduct an enterprise of a commercial character or whether it was primarily to entertain himself."
Scale of activities
Furthermore, it seems that despite the fact that the taxpayers' stakes are very high, this factor can be considered without being decisive in itself. In No. 469 v. MNR, 57 DTC 541, at page 547, Fisher J. endorsed the conclusion of the judge in Badame, supra, regarding the importance of the amounts at issue in such situations:
"The learned Chairman stated, further, a point which I think cannot be too strongly stressed when dealing with an appeal from this or any other taxpayer who happens to have been in receipt of fairly large amounts of winnings, either from gambling at race tracks, playing various card games, or from some other similar activity, when he said:
. . . It must be well understood that a large number of bets, or the large amount of earnings made by the appellant did not in any way influence the decision arrived at, which was entirely arrived at on the appreciation of the facts pertinent to this very case and on my understanding of the law as it is."
B) Nature of commission sharing income
XXXXXXXXXX. However, you are concerned about the impact that our position set out in paragraph 3 of Interpretation Bulletin IT-404R could have on the decision to tax XXXXXXXXXX's sports betting winnings.
A retailer of lottery and sports betting tickets may receive two types of commissions. The first type is linked to the volume of ticket sales made by the retailer. This is business income to the retailer, as he receives an amount based on a fixed percentage of his sales. The second type of commission relates to a winning ticket sold by the retailer. The retailer receives a percentage (usually 1%) of the winning ticket sold. The retailer has no control over the retailer’s chances of selling a winning ticket. The position set out in paragraph 3 of IT-404R applies to this second type of commission.
XXXXXXXXXX
Conclusion
In our view, XXXXXXXXXX are running a business. They manage and organize their gambling activity like a business. Gambling is an integral part of their lives and occupations and they try to minimize risk by managing their activities seriously. They run that business with the aim of making a profit and they have taken the means to make it work as well as possible. XXXXXXXXXX. We believe that the case law cited above supports our position that net gains are taxable income.
For your information, a copy of this memorandum will be severed using the Access to Information Act and will be available in the Legislative Access Database (LAD) located on the mainframe of the Canada Customs and Revenue Agency. A severed copy will also be distributed to the commercial tax publishers for inclusion in their databases. The severing process will remove all material that is not subject to disclosure, including information that could disclose the identity of the taxpayer. Should your client request a copy of this memorandum, the Legislative Access Bank version can be provided. Alternatively, the client may request a severed copy using the Privacy Act criteria, which does not remove client identity. Requests for this latter version should be made by you to Ms. Jackie Page at (613) 957-0682. A copy that has been severed in accordance with the Privacy Act will be sent to you for delivery to the client.
Best regards,
Ghislain Martineau
Acting Manager
Individuals and Business Section
Business and Publications Division
Income Tax Rulings Directorate
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