Edited version of private ruling

Authorisation Number: 1011738954983

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Ruling

Subject: Am I in business - Gambling syndicate

Question 1

Is the income you receive from the gambling syndicate assessable?

Answer

No.

Question 2

Can you claim deductions for any losses from this gambling syndicate?

Answer

No.

Question 3

Do you need to disclose the income from this gambling syndicate?

Answer

No.

This ruling applies for the following periods:

Year ending 30 June 2011

Year ending 30 June 2012

Year ending 30 June 2013

Year ending 30 June 2014

The scheme commences on:

1 July 2010

Relevant facts and circumstances

You wish to become a member of a gambling syndicate.

The syndicate uses computer programs to sort, compare and analyse the available data to gamble in an attempt to predict probable outcomes.

The primary focus of the syndicate is betting on horse and greyhound racing in both Australia and overseas.

The syndicate also bets on the outcome of other sporting events.

The syndicate bets through totalisators and betting exchanges, although the use of traditional bookmakers may be considered in the future.

The syndicate has no employees although it contracts various people or companies for computer programming and operational resources on arms length terms.

The syndicates gambling activities are not undertaken in association with any other related activities such as horse breeding.

The syndicate bets seven days a week.

The syndicate holds bank accounts to accommodate the betting transactions in syndicate member's names.

The software program generates the recommended bets. However, the syndicate members can manually vary the amounts bet on any particular transaction.

The computerised setup of the syndicate can be accessed by any member via the internet.

One of the purposes of using the program is to introduce a layer of objectivity into the betting process. All the inputs into the betting program are assumptions and factors developed by human input.

You will have no day to day involvement with the syndicate unless input is required.

Reasons for decision

Summary

We have determined that your participation in the gambling syndicate is not considered to be carrying on a business. Therefore, the winnings you receive in relation to this activity will not be assessable and the expenses related to the activity will not be deductible.

Detailed reasoning

Under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997), the assessable income of an Australian resident includes ordinary income derived directly or indirectly from all sources during the income year.

Ordinary income has generally been held to include three categories, namely, income from rendering personal services, income from property and income from carrying on a business.

Section 6-10 of the ITAA 1997 provides that amounts that are not ordinary income but are included in assessable income by another provision, are called statutory income and are also included in assessable income.

Section 8-1 of the ITAA 1997 allows a deduction for all losses and outgoings to the extent that they are incurred in gaining or producing assessable income, or necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income, except where the outgoings are of a capital, private or domestic nature, or relate to the earning of exempt income.

Betting and gambling wins are not assessable under section 6-5 of the ITAA 1997 and losses are not deductible under section 8-1 of the ITAA 1997, unless you are carrying on a business of betting or gambling.

Income Tax Ruling IT 2655 discusses the Commissioner's opinion on whether betting and gambling can be considered to be carrying on a business. This ruling states at paragraph 7:

Ultimately each case will depend on its own facts. There is no Australian case in which the winnings of a mere punter have been held to be assessable (or the losses deductible). As Hill J stated in Babka v FC of T 89 ATC 4963; (1989) 20 ATR 1251, although mere punting may constitute a business, the intrusion of chance into the activity as a predominant ingredient will generally preclude such a finding. If a taxpayer is involved in other business activities in the racing industry, it will be more likely that betting activities are of a business nature.

The court in Brajkovich v. FC of T 89 ATC 5227;(1989) 20 ATR 1570 (Brajkovich's case), identified the following criteria for determining whether or not a person is in the business of gambling. These criteria are:

1. Whether the betting is conducted in a systematic, organised and businesslike way

Courts have held that to determine this issue, it is necessary to examine the manner in which the gambling activities are conducted. For example, did the taxpayer rent an office, employ staff, use a database to calculate odds, take steps to lessen and exclude the element of chance and maintain adequate records?

2. The scale of the gambling activities

The volume and size of bets are significant in most forms of gambling. However, the Court in Evans v. FC of T 89 ATC 4540; (1989) 20 ATR 922 found that scale itself is not determinative of the outcome.

The taxpayer in Brajkovich's case did not carry on a business of gambling. The taxpayer bet over $950,000 in three years and was involved in horse training.

3. Whether betting is related to or part of other activities of a businesslike character

Generally where a taxpayer is carrying on a business of betting or gambling, the betting transactions are connected with some other activity which itself constitutes a business carried on by the taxpayer, for example, breeding or training horses (Prince v. FC of T (1959) 7 AITR 505; 12 ATD 45). The taxpayer in that case conducted a business as a bookmaker and also had interests in a horse training businesses.

4. Whether the gambling activity is principally for profit or principally for pleasure?

Issues such as attending race meetings and having a passion for gambling need to be considered when determining if the activities are conducted for profit or pleasure.

In Brajkovich's case the Court said "the gambler who seeks to demonstrate that he is a businessman has more to show than those who engage in more conventionally 'commercial' activities".

5. Whether the form of betting chosen is likely to reward skill and judgement or depends purely on chance

In Brajkovich's case the Court said:

Gambling which involves a significant element of skill, for example a professional golfer's betting on himself, is more likely to have tax consequences than gambling on merely random events. It is difficult to imagine how people in the latter category could be regarded as in a gambling business. Particularly this is so where the house takes a percentage, so that the overall result is necessarily a continual diminution of the collective funds of the customers. Although many roulette players sometimes earn substantial sums by their efforts, it is hard to see how one could characterise as a business playing a game in which the results are (or should be) purely random and in which there is a high probability that each player will lose in the long run…

6. Whether the gambling activity is of a kind ordinarily thought of as a hobby or pastime

Betting on horse racing and other sporting events is ordinarily thought of as a hobby or pastime rather than engaging in a business.

In Babka v. FC of T 89 ATC 4963; (1989) 20 ATR 1251 (Babka's case) it was held:

A taxpayer who did no more than bet could never be regarded as carrying on a business, regardless of the frequency, scale or system-based nature of the betting. A pastime does not turn into a business merely because a person devotes considerable time to it and has retired from a previous full time profession.

In Babka's case, the taxpayer's activities were not so considerable, systematic and organised that they could be said to exceed those of a keen follower of the turf and that the element of chance as a dominant ingredient will usually preclude such a finding.

We have determined in your circumstances that you will not be carrying on a business of gambling. Although the syndicate will have a computer program, there is still a high element of chance involved. By using your techniques to choose which events to bet on, you may have reduced the odds on your gambling activities, however, your overall gains will be dependant on chance rather than skill.

The amount of future time and effort involved in your betting and gambling, do not turn your activities into a business. While your proposed activities will have some elements of being systematic and organised, mainly due to the software package you intend to use, the use of a software package alone does not lend itself to the existence of a business. As in Babka's case your activities can not be said to exceed that of a keen follower of sports.

Therefore, as you will not be carrying on a business of betting or gambling, the winnings you will receive in relation to this activity will not be assessable under section 6-5 of the ITAA 1997 and the expenses related to the activity will not deductible under section 8-1 of the ITAA 1997.