Saturday, March 11, 2017

Gambling Taxation Part 2 -- Limits on Deductions

This is the second in a series of blog posts about the tax treatment of gambling. The first post applauded the decision by the Treasury Department to propose revised withholding regulations that adversely affected bettors who made big scores on exotic wagers. This one looks at the deductibility of gambling losses and of gambling-related expenses, like buying the Daily Racing Form. Future posts will examine the constitutionality of treating gambling differently from other kinds of economic activity, the application of the “hobby loss” rules to gambling, and the difficulties involved in fairly determining gambling gains and losses. Eventually, it may all end up in a law review article, the first such critical survey of gambling taxation since I originally tackled the subject back in 1995.

Deductions are something every taxpayer wants to have. Every allowable $100 deduction reduces the taxpayer’s tax bill by a substantial fraction of that $100, depending on the taxpayer’s marginal tax rate (that is, the rate she pays, under our somewhat graduated tax system, on her last dollar of income). Because the tax rate table is graduated, a deduction is worth more – lots more – to a rich person than to a poor one. Those with incomes under $9,325 in 2017 will get only a $10 benefit from that $100 deduction, since their marginal rate is 10%, while those with incomes over $418,400 will get a benefit of $39.60.

Deductions are allowable for gambling losses, but not to the extent that one would think, given the broad language in Internal Revenue Code Sec. 165(a). That section allows a deduction for any losses incurred in a transaction entered into for profit, even if that transaction is not part of a trade or business. Thus, in the absence of a specific statutory limitation, one could reasonably presume that all gambling losses, or at least those that were the result of profit-oriented transactions, and not mere self-indulgent consumption, would be deductible against income from other sources, like a salary for the gambler’s day job or, to match horse racing’s demographic, a taxable pension. But that reasonable presumption is denied by Code section 165(d), which provides, in its entirety, that “losses from wagering transactions shall be allowed only to the extent of the gains from such transactions.
This limitation, as it has been elaborated by the courts in the nearly a century since its initial enactment, imposes a burden on gamblers that is not borne by other similarly situated taxpayers. Traders in commodity futures, or even in stock options, for example, don’t face the same limitation on losses; if they lose money in a year on their “trading” activities, which are economically nothing more than placing bets, they can fully deduct those losses against other kinds of income, like a bonus from their employer. But a full-time horseplayer who has a losing year at the track can’t do the same.
A more equitable approach would be for Congress to repeal section 165(d) and to rely on other generally applicable Tax Code provisions to protect the Treasury against over-reaching by gamblers, in the same way that the “at risk” and “hobby loss” provisions of the Code (to be discussed in future posts) generally act to limit the deductibility of expenses and losses.
Before the enactment in 1934 of what is now section 165(d), the principal distinctions regarding deductibility of gambling losses (whether against gambling winnings or against other income) were whether the losses had been incurred in legal or illegal gambling and whether gambling transactions had been entered into for profit. For example, an early Bureau of Internal Revenue (the predecessor of the IRS) ruling took the position that losses incurred in betting on horse races in Arkansas, where such wagers were then illegal, were nondeductible, while wagers across the state line in Louisiana, where they were legal, could give rise to deductible losses.

Under that early case law, even those losses incurred in legal gambling were deductible only if the taxpayer could show that the gambling transactions were entered into for profit. Thus, an independently wealthy taxpayer, with a steady record of losses at fashionable resort casinos in Europe, was found to lack the requisite profit motive, although his gambling was legal, because his real motive, at least the way the court saw it, was “the thrill and exhilaration  . . . inherent in taking a chance.” In contrast, a poorly paid journalist, who lost money at the racetrack while covering the races, was permitted a deduction, based on his testimony that he did not much enjoy watching the races and bet only in order to make money. Even then, apparently, the ink-stained wretches in the press box couldn’t resist a trip to the window.

Congress originally enacted what is now section 165(d) in 1934. That original version of the statute left open the question of whether the limits on deducting losses applied to all gamblers or only to casual gamblers (i.e., those for whom gambling is an occasional recreation and who are not in the trade or business of gambling). As we’ll see shortly, the courts have applied the rule to all gamblers, though only professionals can deduct expenses.

That left it up to the courts to decide, based on how they interpreted the statute. They did so very restrictively, refusing to allow anyone, including a fulltime gambler, to deduct gambling losses against anything other than gambling winnings. This restrictive interpretation appears to have been based on the courts’ view that gamblers were inherently immoral. For example, the Court of Claims described gamblers in the following terms:

In practically all countries, a distinction has been made in the public mind and in legislative enactment between the occasional wagerer and the professional who undertakes, without work, to wring a living from the wages of others. The professional or common gambler has never occupied a high position in society. . . . The churches have generally opposed gambling as immoral. The Talmud classes gambling winnings with thievery.

That Talmudic reference might be news to some of the most renowned figures in horse race betting, from Arnold Rothstein to Steve Davidowitz, Len Ragozin, Len Friedman and many other successful Jewish bettors.

On the basis of this moral disapproval of gambling, any interpretation of the new statute that would apply the gambling-loss limitation only to the occasional recreational wagerer and not to the parasitic, thieving, professional gambler bookmaker was foreordained to fail.

In 1947, in Humphrey v. Commissioner, the first significant appellate court interpretation of the new limitation, the Court of Appeals for the Fifth Circuit held that the 1934 legislation had eliminated the distinction between legal and illegal gambling to the extent that a gambler did not have to show a profit motive to be eligible to deduct gambling losses up to the amount of gambling winnings. But by holding that what is now section 165(d) was the exclusive provision for treating gambling losses, the court also treated professional gamblers, whether in the bookmaking business or gambling full-time for their own accounts, differently from most other taxpayers, who are generally able to use losses incurred in one activity to offset income from another activity.

In addition, the courts on occasion confused the gambler’s ordinary business expenses with wagering losses, refusing to permit gamblers to deduct not just their losing bets, but also the reasonable expenses incurred in order to place those bets, like purchasing the Daily Racing Form or paying admission to the track, from anything other than their winnings. Fortunately, for the full-time bettor at least, that interpretation was just recently rejected by the Tax Court, in the 2011 case of Mayo v. Commissioner. There, the taxpayer made $131,000 in bets, cashed tickets for $120,000, and tried to deduct both the $11,000 wagering loss and his additional $11,000 in expenses, including $4,000 for vehicle and transportation costs, $1,960 for handicapping data (this data should be free if we want to grow racing!), $1,251 for track admission fees, $1,056 for subscriptions, $670 for telephone and internet charges and, perhaps in a bit of chutzpah, $148 in ATM fees at the track. The court said that Section 165(d) prohibited the deduction from other income of the actual betting losses, but allowed the expenses, which had the effect of wiping out any tax attributable to the wagering. Some small consolation, if not a total victory.

One might, in analyzing gamblers, distinguish among three types: (1) those for whom gambling is clearly central to their trade or business – for example, “shills” hired by poker rooms to create the illusion of activity and to attract real, paying customers; (2) those who gamble with a sincere and genuine profit motive (whether, in fact, they win or lose in a particular time period); and (3) those for whom gambling is primarily recreational, although most people would probably prefer to win rather than lose. The application of section 165(d), however, recognizes no difference among these three categories. As a result, in many cases, the section 165(d) limitation operates unfairly. While some courts have expressed uneasiness at the strict application of the wagering-loss limitation, they have generally followed the advice of Justice Brandeis that “ it is usually more important that a rule of law be settled, than that it be settled right.” The broad reach of the gambling loss deduction, as the courts have interpreted it, may be a settled rule, but it is almost certainly wrong.

A possible justification for such a broad reach for section 165(d) might be that the statute, at least when read together with section 162(a), is ambiguous and that, in the light of such ambiguity, courts are justified in interpreting the statute in a manner consistent with an underlying legislative policy that gambling, as a supposedly unproductive activity, should not be accorded the slightest degree of favorable tax treatment. There are, however, two problems with such an approach. First, the legislative history is somewhat lacking in evidence that Congress has ever made such an explicit judgment. Second, the presumed dichotomy between the economic and social utility of the financial markets on the one hand and the unproductive nature of gambling remains to be proven. In fact, if you’re looking for economic impact, horse racing, supported by gambling, employs many more people per dollar than does Wall Street. And, as US Attorney Preet Bharara’s investigations have proved, there are probably more thieves per capita on Wall Street than on the backstretch.

In a parallel universe, tax reform might well include the repeal of Section 165(d), putting professional bettors on a par with professional pork-belly traders. In the actual universe we live in right now, I’m happy to lay you 100-1 that Section 165(d) and its discrimination against full-time handicappers is still in place when we’re all dead.

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