Do you like to gamble? Do you ever win? If the answers to these questions are 'yes,' you need to know about deducting your gambling losses.

1. Gambling Losses Deduction 2018 Form
2. 2018 Are Gambling Losses Deductible
3. Gambling Losses New Tax Law 2018
4. Gambling Income Losses 2018 Tax Law Changes
5. 2018 Tax Law On Gambling Losses

All Gambling Winnings Are Taxable Income

Gambling Loss Deductions Broadened Under New Tax Law. As a result, you can deduct $2,500, but you’re taxed on the $7,500 difference. If you incurred $5,000 in losses and have zero winnings, you get no deduction at all. The best you can hope to do tax-wise on your 2017 return is to break even.

All gambling winnings are taxable income—that is, income that is subject to both federal and state income taxes (except for the seven states that have no income taxes). It makes no difference how you earn your winnings, whether at a casino, gambling website, Church raffle, or your friendly neighborhood poker game.

It also makes no difference where you win: whether at a casino or other gambling establishment in the United States (including those on Indian reservations), in a foreign country such as Mexico or Aruba, on a cruise ship, Mississippi river boat, or at a gambling website hosted outside the U.S. As far as the IRS is concerned, a win is a win and must be included on your tax return.

All Your Winnings Must Be Listed On Your Tax Return

If, like the vast majority of people, you’re a recreational gambler, you’re supposed to report all your gambling winnings on your tax return every year. You may not, repeat NOT, subtract your losses from your winnings and only report the amount left over, if any. You’re supposed to report every penny you win, even if your losses exceeded your winnings for the year.

Gambling Losses May Be Deducted Up to the Amount of Your Winnings

Fortunately, although you must list all your winnings on your tax return, you don't have to pay tax on the full amount. You are allowed to list your annual gambling losses as an itemized deduction on Schedule A of your tax return. If you lost as much as, or more than, you won during the year, you won't have to pay any tax on your winnings. Even if you lost more than you won, you may only deduct as much as you won during the year.

However, you get no deduction for your losses at all if you don’t itemize your deductions—just one of the ways gamblers are badly treated by the tax laws.

You Need Good Records

As the above rules should make clear, you must list both your total annual gambling winnings and losses on your tax return. If you’re audited, your losses will be allowed by the IRS only if you can prove the amount of both your winnings and losses. You’re supposed to do this by keeping detailed records of all your gambling wins and losses during the year. This is where most gamblers slip up—they fail to keep adequate records (or any records at all). As a result, you can end up owing taxes on winnings reported to the IRS even though your losses exceed your winnings for the year.

This has happened to many gamblers who failed to keep records. For example, Bill Remos, a Coca-Cola delivery driver in Chicago, gambled for fun and got lucky: He won $50,000 in a single game of blackjack. When Remos filed his taxes for the year he didn’t report the $50,000 win as income. Why? He knew he had at least $50,000 in gambling losses during the year. He subtracted his losses from his winnings and ended up with zero; so he figured he didn’t have any gambling income to list on his return. Makes sense, doesn’t it? Not to the IRS. Remos was audited by the IRS. Because he failed to follow the rules and couldn’t document his losses, he had to pay income tax on his entire $50,000 blackjack win. He ended up owing the IRS $17,000 in back taxes. This on an annual income of only $32,000!

Will the IRS Know?

Gambling is a cash business, so how will the IRS know how much you won during the year? Unfortunately for gamblers, casinos, race tracks, state lotteries, bingo halls, and other gambling establishments located in the United States are required to tell the IRS if you win more than a specified dollar amount. They do this by filing a tax form called Form W2-G with the IRS. You’re given a copy of the form as well. When a W2-G must be filed depends on the type of game you play. For examplle, the casino must file a W2-G if you win $1,200 or more playing slots; but only if you win $1,500 or more at keno. Thus, if you have one or more wins exceeding the reporting thrseshold, the IRS will know that you earned at least that much gambling income during the year. If this income is not listed on your tax return, you’ll likely hear from the IRS.

The Rules Differ for Professional Gamblers

If you gamble full-time to earn a living, you may qualify as a professional gambler for tax purposes. Professional gamblers inhabit a different tax universe than those who gamble for fun. In general, gambling pros are treated better by the IRS than amateurs, but few people qualify as gambling professioanls.

Totaling a taxpayer's Forms W-2G, Certain Gambling Winnings, for the year would seem to be the straightforward way to determine the amount of gambling winnings to report on a tax return. Forms W-2G, however, do not necessarily capture all of a taxpayer's gambling winnings and losses for the year. How are these amounts reported and substantiated on a tax return? Does the answer change if the taxpayer seeks to make a living as a poker player? Do states tax gambling differently?

There are many nuances and recent developments under federal and state tax laws about gambling and other similar activities. With proper recordkeeping and guidance, a taxpayer with gambling winnings may significantly reduce audit exposure.

Income and Permitted Deductions

Under Sec. 61(a), all income from whatever source derived is includible in a U.S. resident's gross income. Whether the gambling winnings are $5 or $500,000, all amounts are taxable.

A taxpayer may deduct losses from wagering transactions to the extent of gains from those transactions under Sec. 165(d). For amateur gamblers, gambling losses are reported as an itemized deduction on Schedule A, Itemized Deductions. The law is not as kind to nonresidents: While nonresidents must also include U.S.-source gambling winnings as income, they cannot deduct gambling losses against those winnings. Nonresidents whose gambling winnings are connected to a trade or business may deduct gambling losses to the extent of winnings, however, under Sec. 873.

Case law and IRS guidance have established that a taxpayer may determine gambling winnings and losses on a session basis.

Neither the Code nor the regulations define the term 'transactions' as stated in Sec. 165(d). Tax Court cases have recognized that gross income from slot machine transactions is determined on a session basis (see Shollenberger, T.C. Memo. 2009-306; LaPlante, T.C. Memo. 2009-226).

What Is a Session?

In 2008, the IRS Chief Counsel opined that a slot machine player recognizes a wagering gain or loss at the time she redeems her tokens because fluctuating wins and losses left in play are not accessions to wealth until the taxpayer can definitely calculate the amount realized (Advice Memorandum 2008-011). This method is also recognized in both Schollenberger and LaPlante, as a by-bet method would be unduly burdensome and unreasonable for taxpayers. To this end, the IRS issued Notice 2015-21, which provides taxpayers a proposed safe harbor to determine gains or losses from electronically tracked slot machine play.

Under Notice 2015-21, a taxpayer determines wagering gain or loss from electronically tracked slot machine play at the end of a single session of play, rather than on a by-bet basis. Electronically tracked slot machine play uses an electronic player system controlled by the gaming establishment—such as the use of a player's card—that records the amount a specific individual won and wagered on slot machine play. A single session of play begins when a taxpayer places a wager on a particular type of game and ends when the taxpayer completes his or her last wager on the same type of game before the end of the same calendar day.

A taxpayer recognizes a wagering gain if, at the end of a single session of play, the total dollar amount of payouts from electronically tracked slot machine play during that session exceeds the total dollar amount of wagers placed by the taxpayer on the electronically tracked slot machine play during that session. A taxpayer recognizes a wagering loss if, at the end of a single session of play, the total dollar amount of wagers placed by the taxpayer on electronically tracked slot machine play exceeds the total dollar amount of payouts from electronically tracked slot machine play during the session.

There is little to no guidance defining a session for other casino games, such as poker. Furthermore, because there are different poker game formats (cash and tournament) and game types (Texas hold 'em, pot limit Omaha, etc.), it is unclear whether the one-session-per-day analysis would apply to poker in general. A taxpayer who plays different types of poker games may have to record separate sessions for each type of poker game played each day.

In a 2015 Chief Counsel memorandum (CCM), the IRS concluded that a taxpayer's multiple buy-ins for the same poker tournament could not be aggregated for purposes of determining the reportable amount on a taxpayer's Form W-2G (CCM 20153601F). This analysis implies that the IRS may view each poker tournament buy-in as a separate gambling session. A key point leading to the conclusion was that the buy-ins were not identical because the tournament circumstances were different each time the taxpayer made an additional buy-in.

Requirement to Maintain Accurate Records

In Rev. Proc. 77-29, the IRS states that a taxpayer must keep an accurate diary or other similar record of all losses and winnings. According to Rev. Proc. 77-29, the diary should contain:

• The date and type of the specific wager or wagering activity;
• The name and address or location of the gambling establishment;
• The names of other persons present at the gambling establishment; and
• The amounts won or lost.

It is hard to believe the IRS would disallow a taxpayer's gambling loss deduction solely because the taxpayer did not write down in her diary the names of other persons at her blackjack table. The IRS does acknowledge that a taxpayer may prove winnings and losses with other documentation, such as statements of actual winnings from the gambling establishment.

Special Rules for Professional Gamblers

The professional gambler reports gambling winnings and losses for federal purposes on Schedule C, Profit or Loss From Business. A professional gambler is viewed as engaged in the trade or business of gambling. To compute business income, the taxpayer may net all wagering activity but cannot report an overall wagering loss. In addition, the taxpayer may deduct 'ordinary and necessary' business expenses (expenses other than wagers) incurred in connection with the business.

Whether a gambler is an amateur or a professional for tax purposes is based on the 'facts and circumstances.' In Groetzinger, 480 U.S. 23 (1987), the Supreme Court established the professional gambler standard: 'If 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.' The burden of proof is on the professional gambler to prove this status.

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

In addition to applying the standard established in Groetzinger, courts sometimes apply the following nonexhaustive nine-factor test in Regs. Sec. 1.183-2(b)(1) used to determine intent to make a profit under the hobby loss rules to decide whether a taxpayer is a professional gambler:

Gambling Losses Deduction 2018 Form

• Manner in which the taxpayer carries on the activity;
• The expertise of the taxpayer or his advisers;
• The time and effort the taxpayer expended in carrying on the activity;
• Expectation that assets used in the activity may appreciate in value;
• The taxpayer's success 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, that are earned;
• The financial status of the taxpayer; and
• Elements of personal pleasure or recreation.

What if a professional gambler's ordinary and necessary business expenses exceed the net gambling winnings for the year? In Mayo, 136 T.C. 81 (2011), the court held the limitation on deducting gambling losses does not apply to ordinary and necessary business expenses incurred in connection with the trade or business of gambling. Therefore, a professional gambler may report a business loss, which may be applied against other income from the year.

Limitations on Loss Deductions

2018 Are Gambling Losses Deductible

Some states do not permit amateur taxpayers to deduct gambling losses as an itemized deduction at all. These states include Connecticut, Illinois, Indiana, Kansas, Massachusetts, Michigan, North Carolina, Ohio, Rhode Island, West Virginia, and Wisconsin. A taxpayer who has $50,000 of gambling winnings and $50,000 of gambling losses in Wisconsin for a tax year, for example, must pay Wisconsin income tax on the $50,000 of gambling winnings despite breaking even from gambling for the year.

Because professional gamblers may deduct gambling losses for state income tax purposes, some state tax agencies aggressively challenge a taxpayer's professional gambler status. A taxpayer whose professional gambler status is disallowed could face a particularly egregious state income tax deficiency if the taxpayer reported on Schedule C the total of Forms W-2G instead of using the session method under Notice 2015-21. In this situation, the state may be willing to consider adjusting the assessment based on the session method if the taxpayer provides sufficient documentation.

Gambling Losses New Tax Law 2018

Changes Ahead Likely

Tax laws addressing gambling and other similar activities will continue to evolve as new types of games and technologies emerge. Some related tax issues that will come to the forefront include session treatment for online gambling activity and whether daily fantasy sports are considered gambling. As more and more states legalize online gambling and daily fantasy sports, Congress or the IRS will have no choice but to address these issues.

EditorNotes

Gambling Income Losses 2018 Tax Law Changes

Mark Heroux is a principal with the Tax Services Group at Baker Tilly Virchow Krause LLP in Chicago.

2018 Tax Law On Gambling Losses

For additional information about these items, contact Mr. Heroux at 312-729-8005 or mark.heroux@bakertilly.com.

Unless otherwise noted, contributors are members of or associated with Baker Tilly Virchow Krause LLP.