To tax or not to tax? Free Bets and Free Plays

To tax or not to tax? Free Bets and Free Plays

Introduction 20 May 2014 At the start of the consultation regarding the introduction of the new place of consumption ( POC ) rules for gambling duties, H.M.Treasury ( HMT ) and H.M.Revenue & Customs ( HMRC ) made it clear that only those changes that were necessary to move the existing legislation onto a POC footing (from a place of supply footing) would be implemented. Several drafts of POC duty legislation later it can be seen that HMT and HMRC have applied this approach only selectively; some reasonably material changes, which have nothing at all to do with moving it onto a POC footing, are proposed to be made to the existing legislation. Whilst HMT / HMRC have taken the opportunity to make some changes, other opportunities (including the opportunity to rationalise all of the UK s gambling duty rules) have gone begging. The existing rules in the Betting and Gaming Duties Act 1981 ( BGDA ) are a hotchpotch of provisions which have been amended and re-amended almost every year since its enactment (and the BGDA itself consolidated the various enactments that preceded it). The result is an Act which contains an inconsistent set of rules which deal with four of the UK s seven gambling duties (the three other duties live elsewhere in various Finance Acts). The Finance Bill 2014 (which is expected to be enacted in July 2014) now makes it clear that the majority of the BGDA will be repealed, leaving only those parts relevant to bingo duty (which applies to bricks and mortar bingo operations) remaining. Those duties to be moved on to a POC footing (i.e. general betting duty ( GBD ), pool betting duty ( PBD ) and remote gaming duty ( RGD )), will now live in Finance Act 2014. It s a real shame that the Government has not taken this (seemingly perfect) opportunity to recreate the entire code to make it consistent (and put it in a single Act). For the most part, the proposed (non-poc related) changes to GBD, PBD and RGD are positive. Some of these changes have resulted from operators pointing out where the existing rules are deficient (e.g. in relation to PBD) and others where HMT / HMRC have looked to introduce a measure of uniformity across the rules (e.g. accounting periods are to be rationalised, the use of the term bookmaker is now used more much more widely and there are now provisions dealing with the pooling of stakes which should apply consistently across all of GBD, PBD and RGD). However, at least one very stark inconsistency remains - the various duty treatments of offers, free bets, free plays, bonus credits and other incentives. Many operators, quite understandably, feel that taxing non-existent stakes is unfair. Accepting that the status quo will be carried across into the new POC duty rules is not made easier when free bets and credits are treated so differently across the spectrum of different types of duty. These incentives are used widely by remote operators, the majority of whom, being outside the UK, have not previously been within the scope of UK gambling duties. As such, for remote operators, the duty treatment of these incentives will become relevant for the first time when the new POC duty rules go live (due to be on 1 December 2014).

The way in which the various duty provisions deal with free bets, free plays and other incentives is entirely inconsistent and, in our experience, commonly misunderstood. We explain the position below using a traffic light system as follows: where (i) free bets, free plays or other incentives do not result in a deemed stake being received and being subjected to duty; AND (ii) the legislation does not include powers whereby a Government department can easily reverse that position, we explain our conclusions in GREEN; where (i) free bets, free plays or other incentives do not currently result in a deemed stake being received and being subjected to duty; BUT (ii) the legislation does include powers whereby a Government department can easily reverse that position, we explain our conclusions in ORANGE; where free bets, free plays or other incentives do result in a deemed stake being received and being subjected to duty, we explain our conclusions in RED. The comments below on GBD, PBD and RGD are based on the latest draft of the new POC legislation contained in the Finance Bill 2014. The comments made in respect of other duties are based on the legislation in force today (which is not expected to change). 1 General betting duty Not only is it important to note that the UK s seven gambling duties are separate taxes (strictly, excise duties) which are subject to different rules, it is also important to note that GBD is, itself, not one type of duty but many. Depending on your view, there are up to five (or more) discrete types of GBD, all of which are different. There is: (a) GBD on fixed odds bets; (b) GBD on pool bets on horse and dog racing (other forms of pool betting are subject to PBD); (c) GBD on spread betting (although, in practice, GBD on spread betting has two forms, one for financial spreads and another for other spreads (mainly sports)); (d) GBD on the commission charged by betting exchanges; and (e) GBD as it is charged to bet-brokers (and there are, at least in theory, two different varieties of bet-broker).

(a) GBD on fixed odds bets Free bets - that is to say, the situation where a person makes a bet in pursuance of an offer which permits him to pay nothing or less than the amount which he would have been required to pay without the offer result in the full amount of the stake which would have been required in absence of an offer being deemed to have been received by the bookmaker for GBD purposes. Put simply, the full amount of a free or discounted bet (when placed with a fixed odds bookmaker within the scope of GBD) is subject to GBD. Unlike RGD (see further below), GBD legislation does not distinguish between free bets and bets made using bonus credits (explained in paragraph 3 below). Whilst the position is not completely clear, we consider that a court would interpret the GBD legislation so that the full amount of any stake paid using bonus credits would also be brought into account for GBD purposes (the courts have taken this approach in the context of gaming duty - see the discussion of Aspinalls Club Ltd v Revenue and Customs Commissioners below). As such, bonus credits used to place bets are also subject to GBD. (b) GBD on pool bets made on horse or dog racing Likewise, the full amount of a free or discounted pool bet on horse or dog racing is subject to GBD. (c) GBD on spread bets (financial or sports) Again, the full amount of a free or discounted spread bet (whether financial, sports or other) is subject to GBD. (Note that GBD on spread bets will remain on a place of supply footing even after the new POC duty legislation comes into force). (d) GBD on betting exchange commission Unlike in the situations described above, where a betting exchange offers customers reduced or no commission on bets, there are no provisions which deem the exchange to have received commission for GBD purposes. As such, commission-free exchange bets are not subject to GBD (and, in contrast to the RGD position, described below, there are no provisions whereby the Government can easily introduce a charge to GBD on such bets via secondary legislation). (e) GBD as it is charged to bet-brokers Where a bet is placed via a bet-broker (typically a person placing a bet with a bookmaker when acting as the agent of a punter), the bet-broker is (for GBD purposes) treated as a bookmaker with the result that there are deemed to be two identical bets; one placed with the bet-broker and a second placed by the betbroker. If the bet placed is a free bet, there will be deemed to be two bets, each of which (to the extent that such bet is within the scope of GBD) will be subject to GBD (i.e. in the hands of (i) the bet-broker; and (ii) the bookmaker).

2 Pool Betting Duty PBD is payable on all pool bets, other than those placed on horse or dog racing. Free or discounted pool bets of this kind are not subject to PBD (and in contrast to the RGD position, described below, there are no provisions whereby the Government can easily introduce a charge to PBD on such bets via secondary legislation). 3 Remote Gaming Duty RGD is payable in respect of online casino games, online poker and online bingo. Free plays describe the situation where players are allowed to play a game without having to place a stake or where the stake required to be placed is less than the amount which would otherwise be payable. Bonus credits describe the situation where quasi-cash is credited to a player s account (e.g. if you deposit 20 into your account with us we will match it by adding another 20 ). Neither free plays nor bonus credits currently give rise to a liability to pay RGD. However, the current legislation (which is duplicated in the latest draft of the proposed POC legislation in the Finance Bill) provides an opportunity for different Government departments to make either or both of free plays and bonus credits subject to RGD. These opportunities are different for each of free plays and bonus credits. Free plays In order for free bets or free plays to be subject to gambling duty, the legislation needs to include a provision deeming a stake to have been placed (for the purposes of the applicable duty) when, in fact, none has. This is currently the case for GBD on fixed odds bets (as described above). Whilst (in contrast to GBD) the RGD provisions currently contain no such provision, the legislation provides specifically that HMT may make an order introducing such a provision (with the result that operators would be subject to RGD on stakes which are waived for free plays ). Such an order (being secondary legislation) could be introduced at any time with little warning. The order in question has to be laid before the Commons (but not the Lords since this is a tax provision) and unless it is annulled (i.e. unless a resolution is passed by the Commons to stop it) it becomes law.

Bonus credits Bonus credits are not currently subject to RGD because the legislation provides that the act of crediting amounts (including bonus credits) to a customer s account is treated as the payment of winnings. This gives a RGD neutral result, as demonstrated by the following simple example. Assume for a moment that a customer s account contains only bonus credits (say 20). If he stakes all of such credits (and loses), the RGD calculation is as follows: Stakes of 20 less winnings of 20, results in no RGD payable. Despite the legislation treating the payment of the winnings as preceding the placing of the stakes, this is the result. However, the legislation gives HMRC (not HMT this time) a power to prevent bonus credits from being treated as winnings for RGD purposes. If HMRC were to exercise this power, it would mean that bonus credits would cease to be neutral for RGD purposes. HMRC has published a statement indicating that it will exercise this power where this is considered necessary to counter possible abuse (paragraph 6.5 of HMRC Notice 455 "Remote Gaming Duty" - April 2010). HMRC does not clarify what constitutes abuse in this context. As such, operators might want to consider creating a documentary audit trail (e.g. minutes of meetings, internal memoranda) which sets out the business / economic justification for offering customers particular amounts of bonus credits (with a view to being able to demonstrate that they are not doing anything abusive ). 4 Gaming duty Gaming duty is paid on the gross gaming yield (broadly, amounts staked plus participation charges, less winnings paid out) arising from the operations of bricks and mortar casinos. Bonus credits (in this context meaning chips which are given to customers at bricks and mortar casinos without charge or for a reduced charge) are subject to gaming duty. The recent decision of the Court of Appeal in Aspinalls Club Ltd v Revenue and Customs Commissioners (a more in-depth discussion of this case can be found here) confirmed that, for the purposes of computing the gross gaming yield (on which gaming duty is payable), bonus credits must be brought into account as an amount staked (when staked in dutiable gaming) and do not constitute winnings when credited to customers. As such, bonus credits staked in bricks and mortar casinos are subject to gaming duty.

To the extent that any bricks and mortar casinos offer customers free plays (e.g. by treating customers as having staked chips of a given value in a game when in fact no chips, or chips of a lesser value, were staked), this should not result in a stake being deemed to be received for gaming duty purposes. However, HMT may, by statutory instrument, amend the provisions that compute the gaming duty liability and so one assumes that they could introduce provisions deeming full stakes (re free plays or discounted plays) to be received and so subject to gaming duty. 5 Bingo duty Bingo duty is paid on the bingo promotion profits of operators (broadly bingo receipts taken less bingo winnings paid out) running bricks and mortar bingo operations. Where discounts are offered, bingo duty is computed by reference to the discounted amount. As such, free / reduced plays are not subject to bingo duty. 6 Machine games duty Machine games duty ( MGD ) is paid on the net takings from machines on which games can be played for a prize (e.g. FOBTs). Where a game is played pursuant to an offer which allows the player to pay less than the charge (if any) which would otherwise apply, it is the lower charge (which can be nil if there is no charge) which is included in net takings (on which MGD is due). The relevant legislation on this point is very ambiguous. However, HMRC interprets these provisions in its guidance notes on MGD as follows: Everything that is a free play won t be included in the calculation of net takings. As such, free / discounted plays on dutiable machines are, in practice, not subject to MGD. 7 Lottery duty The lottery duty provisions state specifically that, where a price is shown on a lottery ticket (or other receipt or proof of purchase), and no, or a lesser, payment is made for the ticket, lottery duty is payable by reference to the price shown on the ticket. In short, therefore, free / reduced lottery plays are subject to lottery duty. HMRC s guidance notes, however, make no mention of this. Stephen Hignett Partner T: +44 20 7067 3397 E: stephen.hignett@olswang.com

Berlin Brussels London Madrid Munich Paris Thames Valley Singapore +49 (0) 30 700 171 100 +32 2 647 4772 +44 (0) 20 7067 3000 +34 91 187 1920 +49 89 206 028 400 +33 17 091 8720 +44 (0) 20 7067 3000 +65 67208278 www.olswang.com 17531632-1