Are Poker Winnings Taxable In Canada
On August 29, 2013, the Federal Court rendered its judgment in Radonjic v. Canada Revenue Agency, 2013 FC 916. It is the latest decision on the (non-)taxation of poker winnings following the Tax Court of Canada decision in Cohen v. The Queen, 2011 TCC 262. Radonjic is a judicial review of the Minister of National Revenue’s discretion to allow or disallow taxpayer-requested adjustments to past income tax returns. Although an important distinction from the ordinary appeals to the Tax Court of Canada, Radonjic is still a noteworthy case because the Federal Court applied the facts of Mr. Radonjic to the relevant law in the aftermath of Cohen.
- More than $5,000 in winnings (reduced by the wager or buy-in) from a poker tournament; Any winnings subject to a federal income-tax withholding requirement; If your winnings are reported on a Form W-2G, federal taxes are withheld at a flat rate of 24%. If you didn’t give the payer your tax ID number, the withholding rate is also 24%.
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The heart of the issue in cases such as these is whether poker players are “carrying on a business” – a factual issue to be determined on a case-by-case basis. Both the Tax Court of Canada (in Cohen) and the Federal Court (in Radonjic) determined that the taxpayers in question were not carrying on a business. Although these decisions do not set a general precedent for all poker players across the country, they do present important factual signposts in the landscape between poker players who are hobbyists and poker players who are carrying on a business.
In Cohen, the taxpayer quit his day job as a lawyer to become a professional poker player. He read books and articles about poker, set up online accounts to play online, attended a seminar, testified that he had devised a strategy to play against inexperienced players, testified that he had programs to take notes on players as he was playing against them online and that he adhered to a playing schedule of 6 to 8 hours per day, 7 days a week. Although he intended to play small stakes poker, Mr. Cohen deviated from that strategy for the allure of higher stakes. The Tax Court concluded that Mr. Cohen was a hobby poker player.
In Radonjic, the taxpayer stopped accepting contract work from the federal government because he thought he could support himself with his poker winnings. He did so successfully for more than 3 years. He set up online accounts to play poker and played on a regular basis. As is common for online poker players, he played at multiple tables simultaneously. Contrary to conclusion reached by the Canada Revenue Agency, the Federal Court found Mr. Radonjic to be a hobby poker player, stating that he was “the usual enthusiastic and everhopeful poker player engaged in a personal endeavour”.
In the analysis of whether Mr. Radonjic carried on a business, the Federal Court made the following statements that appear to have general application to online poker players:
- Success at playing poker online on a computer on an intense and regular basis over an extended period of time does not, by itself, equate to a “system” of increasing poker winnings and minimizing the risk of losses.
- Everyone who competes in online poker does so to win and attempts to narrow odds in their favour (which is somewhat of a bland statement as most poker players, hobbyists and businesspersons alike, will know that a pair of aces will have a better success rate than 7-2 off-suit in Texas Hold’em). By studying, practicing, and improving their skills to narrow the odds, it does not mean that the taxpayer has devised a system of winning; chance remains the predominant factor in whether they amateur poker players win or lose, as it did on Mr. Radonjic’s facts.
- Setting up a method of payment to collect online winnings is not an indicator of a system.
These cases are a double-edged sword. While Mr. Radonjic’s winnings were not taxable, Mr. Cohen’s losses (being losses that did not result from a business) could not be deducted against other sources of income. It will be interesting to see what facts will be necessary in order to tip the balance and turn the amateur poker player into someone that is carrying on a taxable business.
Taxation of Gambling Winnings in Canada
Time for a blog post about taxes. How are gambling winnings in Canada generally taxed? What if you play in a poker tournament in Canada? Are those winnings taxable? Does it matter if you’re a professional poker player or not?
In each case it will depend on a factual determination of whether you are carrying on the business of being a poker player or a gambler.
Source Income
Very generally, the “income” in respect of which one is taxed in Canada is one’s “income from source” as set out in the Income Tax Act[1] (the Canadian equivalent of the Internal Revenue Code). What is income from source? It is a productive source of revenue from an office, an employment, a property, a business, or (without limiting the generality of the foregoing) an “other source.” Income from betting or wagering isn’t from an office or employment, and it’s not conceptually like the rents, interest, royalties, or dividends that come from property. The courts in Canada have demonstrated a reluctance to extend tax liabilities to cover unenumerated sources (the “other source” referred to above) of income; it’s unlikely that any gambling activities would be included in unenumerated sources.
That leaves income from business. When one carries on business in Canada, whether as a resident or a non-resident, one is generally taxable on the profit associated with that business. So, can a gambler be carrying on the business of gambling? The answer is that it’s conceptually possible, but it’s not easy.
In order to carry on business as a gambler based on the decided cases, one has to carry on a business with a fairly high level of skill. The two most prominent cases where a person was found to be taxable on gambling winnings involved a professional golfer who made money wagering on his own performance in matches[2] and a snooker player who hustled drunks in money games.[3]
There is an old paragraph of the Act called “right to a prize” that provides as follows: “a taxpayer’s gain or loss from the disposition of (i) a chance to win a prize or bet, or (ii) 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 referred to in section 205 of the Criminal Code, is nil.”[4] While this language appears straightforward, this paragraph is of limited assistance and raises more questions than it answers; section 205 of the Criminal Code was repealed in 1985.
Lotteries, Games of Chance & Sports Betting
It’s safe to say that a person in Canada winning a lottery prize or winning at a game of pure chance (e.g., craps, roulette, or slots) is not subject to Canadian income tax on those receipts and, in fact, no modern reported case that I am aware of has found such receipts to be taxable. This makes intuitive sense as it would be difficult to imagine anyone actually making a commercial living based on pure chance.[5]
What about sports betting? In perhaps the leading case on the taxation of gambling winnings in Canada right now,[6] these kinds of winnings were not held to be taxable. The taxpayers in that case played the provincial sports lotteries. Even though they were financially successful, devoted themselves to the activity full-time, and had an organized and systematic approach to playing the lotteries and comparing posted odds to the Vegas odds, the court concluded that they were compulsive gamblers “continually trying their luck at a game of chance.”
The Poker Situation
Poker, however, provides an interesting possible counterpoint. Again, for most people, and certainly for the casual player, there will be a presumption against taxation of poker winnings as they will not be from a business. But what of the professional[7] poker player? Although there is no remotely recent case holding that a professional player is taxable on her profits from poker, it’s possible to see how such a case could be made by the government. Among other indicia, if a resident in Canada is successful in poker with solid and consistent profits from the activity over a number of taxation years, has no material income-earning occupation other than playing poker (or related to playing poker – sponsorships, for example), and is a student of the game and works at learning and improving her game, then it seems likely that that resident would be classified as carrying on the business of being a professional poker player and be taxable on her profits from the game.
Making an actual determination like this would be extremely difficult. Where is the tipping point at which a taxpayer makes the leap from an amateur player to a professional sufficiently devoted to poker, consistently winning, and making good money? These things are much easier to nail down in theory than in practice. This is part of the reason that the Canada Revenue Agency is reluctant to assess people as having income from carrying on the business of playing poker; if business profits are taxable, then business losses can be also used to reduce income from that business and (in the case of individuals) from other businesses or from employment. If the government gets overly aggressive with taxing poker players, it could eventually find that it results in a net drain on Canada’s tax revenues.
How could the tax laws in Canada apply in a land-based poker tournament being held in Canada pursuant to applicable provincial laws and regulations? This is an interesting question. An amateur player would likely not be taxable, but let’s assume that a professional poker player who is resident in Canada wins such a tournament. Again, based on an analysis that the player has the hallmarks of a professional poker player discussed above, those winnings would likely be included in the player’s income from a business.
What of a United States resident professional player winning such a tournament? Non-residents are generally taxable on income earned from carrying on a business in Canada, and “carrying on business” in this context is broadly defined.[8] However, the Canada-US Income Tax Convention (the “Treaty”) provides that where a US resident is carrying on business in Canada, the business profits are taxable by Canada only if the US resident is carrying on business through a permanent establishment. Permanent establishment in the Convention is an inclusive definition, which means the examples given are not exhaustive – things can be permanent establishments even though they’re not specifically itemized. However, this enumerated list includes structures and relationships like a branch, an office, a factory, a construction site, and an agent in Canada habitually exercising authority to conclude contracts in the name of her principal. It’s highly unlikely that a non-resident coming to Canada and playing in one land-based tournament and then leaving the country would be seen to have a permanent establishment in Canada.
Therefore, it doesn’t appear that a US professional playing at a Canadian land-based tournament would be subject to tax in Canada under the terms of the Treaty, which also suggests that the tournament would not withhold on any payments to that non-resident. Indeed, there appears to be no withholding obligation for such a payment to a non-resident in the Act. (In each case of a non-resident, it will be important to know what her home country’s tax convention with Canada says, if in fact the two countries have signed one.)
Are Poker Winnings Taxable In Canada
Income Derived From an Illegal Source
One other comment should be made: If one has income from an illegal activity, in Canada that income is still generally taxable even though ill-gotten.[9] Accordingly, players and gaming operators (including poker operators and players) committing offences under the Criminal Code, whether in bricks-and-mortar facilities or online, may still very well be taxable on their activities. Given that criminals often hide their incomes, this note is more technical and of less practical use to most people.
[1] R.S.C. 1985, c. 1 (the “Act”). There is an excellent and recent article addressing the income tax aspects of poker in Canada: Income Taxation of Poker Winnings in Canada by Benjamin Alarie. Alarie addresses many of the issues in much more detail than I do here. However, I will also talk about non-residents participating in land-based poker tournaments, which Alarie did not discuss.
[2]Dowling v. R., [1996] 2 T.C.J. No 301 (T.C.C.).
[4] Paragraph 40(2)(f).
Are Gambling Winnings Taxable In Canada
[5] This ignores any possible ‘breaking’ of the provincial lotteries or some other way of systematically reducing or eliminating the odds of losing. See the interesting article in Wired by Jonah Lehrer for some perspective on this. This could, at least conceptually, make a “random” game, if pursued systematically and consistently, a business or adventure or concern in the nature of trade for tax purposes.
[7] By this I don’t mean a professional in the sense that one is regulated by a governing body to which one pays dues, has professional insurance, etc. I use the term more loosely to describe any individual that receives income that is compensation for or attributable to the individual’s activities as a player in a sport or activity.
[9] See for example R. v. Poynton (1972), D.T.C. 6329 (Ont. C.A.).