Taxation of Gambling: Professional Versus Amateur Gambler Taxation of Gambling: Professional Versus Amateur Gambler

Part 2 of our new series on tax for professional poker players.

Last week I noted that, in general, a taxpayer cannot simply net all gambling winnings and losses from the tax year and report the resulting amount. Instead, a taxpayer must separate gambling winning sessions and gambling losing sessions.

Takeaway #1: The Internal Revenue Code permits the deduction of gambling losses only to the extent of gambling winnings.

A taxpayer with an overall loss from gambling for the year cannot use the net loss to offset other income, create a net operating loss carryback or carryover, or be carried to a previous or future tax year to offset gambling winnings in such year.

Takeaway #2: Casual gamblers report total gambling winnings on line 21 of Form 1040 (Other Income), and report total gambling losses as an itemized deduction on Schedule A.

There are several possible tax consequences from separate reporting of winnings and losses. I will mention a few.

First, if a taxpayer’s total itemized deductions are less than the standard deduction, then the gambling losses have no tax benefit. Second, gambling winnings are included in a taxpayer’s Adjusted Gross Income (AGI), but gambling losses are not. An inflated AGI can further limit a taxpayer’s ability to take other deductions. For example, medical expenses, an itemized deduction, can be deducted only to the extent they exceed 7.5% of the taxpayer’s AGI. Third, a taxpayer’s gambling losses may trigger the Alternative Minimum Tax.

A certain type of taxpayer, however, treats gambling winnings and losses differently from above: The professional gambler.

Takeaway #3: The professional gambler reports gambling winnings and losses on Schedule C, Profit or Loss From Business.

A professional gambler is viewed under the tax code as engaged in the trade or business of gambling. The taxpayer “nets” all gambling winning and losing sessions, and reports the result (either zero or greater) as gross receipts on the Schedule C. The limitation on deducting gambling losses still applies.

Because the professional gambler is viewed as self-employed, the taxpayer may also deduct “ordinary and necessary” business expenses incurred in connection with the business. I’ll expand on business expenses for professional gamblers in next week’s post.

The professional gambler is also subject to the self-employment tax, which is a social security and Medicare tax primarily for individuals who work for themselves. It is similar to the social security and Medicare taxes withheld from the pay of most wage earners. For the 2011 tax year, the self-employment tax was 13.3% for the first $106,000 of business income, and 2.9% thereafter. A taxpayer may deduct one-half of the self-employment tax as an above the line deduction.

Takeaway #4: The professional versus amateur gambler status for tax purposes is a facts and circumstances determination.

A taxpayer cannot choose the status that produces a lesser tax bill. There is Supreme Court of the United States precedent governing this issue. In Commissioner v. Groetzinger, 480 U.S. 23 (1987), the Court established the professional gambler standard (emphasis added):

[I]f one’s gambling activity is pursued full time, in good faith, and with regularity, to the production of income for a livelihood, and is not a mere hobby, it is a trade or business within the meaning of the statutes with which we are here concerned.

Despite receiving other forms of income in 1978, Mr. Groetzinger was held to be a professional gambler for the year because he spent 60 to 80 hours per week at dog races gambling solely for his own account. Gambling was his full-time job and livelihood. Notably, Mr. Groetzinger had a net gambling loss in 1978. Thus, actual profit is not a requirement for professional gambler status.

Since Groetzinger, the IRS and several state tax agencies have challenged the professional gambler status claimed by many taxpayers. There’s a common theme among losing taxpayer cases that go to trial: Substantial time was devoted to generating non-gambling income.

In addition to applying the standard established by the Supreme Court, the U.S. Tax Court and state tax courts sometimes apply the following non-exhaustive nine factor test found in the Internal Revenue Code regulations:

  • Manner in which the taxpayer carries on the activity;
  • The expertise of the taxpayer or his advisers;
  • The time and effort expended by the taxpayer in carrying on the activity;
  • Expectation that assets used in the activity may appreciate in value;
  • The success of the taxpayer in carrying on other similar or dissimilar activities;
  • The taxpayer’s history of income or losses with respect to the activity;
  • The amount of occasional profits, if any, which are earned;
  • The financial status of the taxpayer; and
  • Elements of personal pleasure or recreation.

The burden of proof is on the professional gambler to prove such status. Again, whether one should file as a professional gambler is a facts and circumstances determination. In most cases, it should be pretty clear where the taxpayer falls.

Author’s note: 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 purposes 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.