The bear and the poker players; on the taxation of poker winnings in Finland By Pekka Albert Aho*

Finland is home to probably one of the most efficient tax systems in the world.

Finland is home to probably one of the most efficient tax systems in the world. Due to their efficiency and the fear-laden respect the Finns have for them, the Tax Authorities are commonly known as the “tax bear”, a reference to the fearsome beast that dwells in the forests of Finland rather than the Teddy variety. Nothing, it is said, escapes the bear’s attention.

Finland is also home to some of the most successful poker players in the world. With the highest profile players winning and losing seven-figure sums monthly on the internet and making tabloid headlines due to their rather lavish life-styles, it was only a matter of time before “the bear” would take more interest in the activity. Duly, late July 2008 a number of Finnish poker players received a letter from the Tax Authorities asking them for information on their poker games in the period between 2003-2007. Apparently the Tax Authorities identified the players to whom letters were sent through research of internet databases that follow the performances of poker players worldwide. The bear, it seemed, had once again lived up to its reputation.

It would, however, be a misrepresentation of the Finnish Tax Authorities should they be described only as efficient in searching for every bit of tax revenue available. While the rest of the public administration is busy entrenching its positions against the EU Commissions’ attack on Finland’s gaming monopoly, the Tax Authorities have to deal with the reality that an ever increasing number of Finns play poker on the internet and that the fiscal considerations of the activity are far from simple. In a commendable demonstration of the service the public authorities are expected to provide, in October 2008 the Tax Authorities drafted a guideline instruction on how poker winnings are treated according to the laws on taxation. Such instructions are formally indicated to the local Tax Administration offices, but are public and also serve the purpose of giving tax payers information on how their income will be taxed. An instruction was very much needed to unify the taxation practice at the local tax offices as well as clarify the confusion that reigned amongst poker players concerning the taxation of their winnings. The bear, it turns out, is less than the horrible beast everyone thought it to be.

Contents of the instruction

The instruction in question, titled “On the taxation of poker income”, is a well written document that offers an accurate description of how poker winnings are considered in taxation. The information is also presented in a very understandable manner and accompanied by examples, so that even those less familiar with legal language should be able to interpret the instruction. What is more, a lot of background work has obviously been put into the document as it goes to some detail in the analysis presented. In addition to winnings resulting directly from playing poker, the treatment of sponsorship deals and rake-back are among the issues discussed. The key points of the instruction can be summarized as follows:

1) Poker is considered a game subject to the Lotteries Act (Arpajaislaki) and therefore article 85 of the Income Tax Act (Tuloverolaki) applies to poker income

According to the Finnish Lotteries Act, a lottery is an activity in which winnings of monetary worth are distributed entirely or in part on the basis of chance. According to Article 85 of the Income Tax Act, winnings from lotteries organized in Finland or in a member state of the European Economic Area and according to the member state’s legislation are not taxable income. Although admitting to poker containing a skill element, it is considered to be covered by the Lotteries Act and therefore article 85 of the Income Tax Act is applicable to winnings from poker.

The background of the tax freedom of winnings from the EEA is the EC Court ruling in C-42/02 Lindman which directly involved Finland and the system of taxation of lottery winnings. The court ruled it contrary to Article 49 EC to subject winnings from games of chance organized in other member states to income tax, when similar winnings from the member state in question are not taxable. In order to comply with EU-law, Finland chose to amend the Income Tax Act provision of the tax-freedom of lottery winnings to cover games organized in a member state of the EEA. Winnings from games organized outside the EEA, on the other hand, remain taxable.

2) Poker winnings are considered earned income as opposed to capital income

According to the Income Tax Act, the income of a natural person is either earned income or capital income. According to the instruction, in the systematic of the Income Tax Act as well as in fiscal practice, lottery winnings are considered earned income. This, along with the fact that the outcome of the game is decided by chance along with the skills of the player means poker winnings are to be considered earned income, even though the game involves the investment of a monetary stake. This somewhat formalistic interpretation might not entirely silence the claims, that winnings should be considered capital income and therefore subject to a lower taxation percentage.

3) The basis of taxation is the net income of a fiscal year

Income from poker is mostly considered in the same way as random income from hobbies, where costs of the hobby may be deducted from income originating from the same hobby, but not from other income. Placed bets in poker are therefore deductible from poker winnings, with the result being that the yearly net winnings from poker are taxed. Should the result be negative, the player may not deduct his losses from other income.

The above said is naturally subject to the game being taxable according to Article 85 of the Income Tax Act in the first place. Winnings from games organized in the EEA are not taxable and losses from those games are not deductible, due to the provision of the Income Tax Act prescribing costs incurred due to pursuit of tax free income as non-deductible.

4) The taxability of rake-back and other bonuses received depends on the taxability of the winnings from the same game

Rake-back and other forms of bonuses are considered discounts from participation fees given afterwards to the player. They are therefore treated in the same manner as fiscal adjustment items and can be either taxable or tax free, depending on whether the game they are connected to is organized in or outside the EEA.

5) Deals on distribution of winnings between players can be taken into account

When two or more players make a deal concerning the distribution of winnings, the effects of the deal can be considered in the player’s taxation. The conditions are that the deal is made before the game takes place and is genuinely reciprocal.

6) Income from sponsorship deals is taxable

When someone sponsors a player, for instance by paying the entry fee of a tournament on the player’s behalf, the amount received from the sponsor is considered taxable income of the player. When the object of the arrangement is a game from which winnings are taxable, the participation costs are correspondingly deductible in the player’s taxation. When the object is a tax free game, costs are not deductible due to being considered costs incurred in pursuit of tax free income. This interpretation can be considered susceptible to criticism, but due to the domestic nature of the provisions in question, further analysis is not suitable to be presented here.

7) Different rules for professional poker players

Somewhat unexpectedly, the Tax Authorities confirm that playing poker can be considered a professional activity. In order to be considered a professional, poker playing must be continuous and intensive and, further more, the person has to have received the majority of his income from poker in the course of several fiscal years. Professional status effects the fiscal consideration of losses incurred from playing poker. Whereas an amateur has the right to deduct losses incurred from playing poker only from his winnings resulting from the same activity, a professional has the right to deduct poker losses from all of his taxable income. This also means that should the yearly net income of a professional be negative, he may deduct losses from the fiscal year also from his future income, whilst the wins and losses of an amateur are always considered on the basis of a single fiscal year.

Some might wonder how a game, which according to the lotteries act is considered a game of chance, can be practiced professionally. Undeniably, the Finnish lotteries act definition of a lottery as a game of which the outcome is decided entirely or in part by chance, can be considered to cover poker. The overwhelming evidence of a number of people being consistent winners in poker and practicing it as their main source of income despite the element of chance, however, seems to have led to common sense prevailing and the Tax Authorities recognizing the possibility of poker being played professionally.

Tax-free, within the EEA

Where most was expected of the instruction, however, it falls short. Well noted amongst poker players, even before any instruction was given, was the provision of the Income Tax Act on the non taxability of winnings from games organized within the EEA. Confusion reigned, instead, on what defines a game as organized within the EEA when the game is on offer in the internet. The poker players expecting a solution were to be somewhat disappointed by what was to come.

In discussing the significance of the article 85 of the Income Tax Act, the organizing of a lottery is considered a concept to be evaluated according to Finnish legislation and deemed to be the offering and selling of games as well as other concrete actions taken by the organizer to enable players to take part in the game. In order to be considered organized in an EEA member state, some of these actions must have been performed in that member state. The meaning given to “organized in an EEA member state and according to the state’s legislation” is that the organization of such games must be legal in the member state in question and that the relevant authorizations and licenses have been acquired by the organizer, should the legislation of that state so require.*

Admitting the difficulty a player might have in determining whether a game on the internet satisfies the afore mentioned requirements, the Tax Authorities provide general guidelines on resolving the question. According to the instruction, a poker game on the internet can be considered organized within the EEA, when the service provider has its registered office in a member state and the authorization to organize games in that member state, when an authorization is required. A game can also be considered tax free, when it is organized in a permanent place of business of the operator situated in an EEA member state. In uncertain cases, the Tax Authorities advise the players to declare the income and provide information on the organization of the game.

Hardly the clear-cut rule the poker players were hoping for. In order to find out the taxability of winnings from a certain game, one needs to inform himself of other member states’ legislation. The information required is, what sort of an authorization, if any, the member state where the organizer is registered requires for organizing the games in question and, further more, does the operator in question satisfy those requirements. It is likely, that the average Finnish poker player might have some difficulties with all this, therefore leaving a player little way of determining if winnings, past or future, from a certain game are taxable or not. While the local Tax Administration offices can be considered better equipped for the task, the difficulty of interpreting foreign legislation means there is a distinct risk of incoherent taxation practice between different offices.

A part from the advice being somewhat unsatisfactory for the above mentioned reasons, also the interpretation of the law provided can be criticized. While linking the organization of the game with the registered office of the provider can be considered correct, the additional requirement of the game being organized according to the laws of the member state of registration can be seen as dubious. Although not entirely clear on what “the relevant authorizations and licenses, should the legislation of that state so require” means in practice, it seems the Tax Authorities are willing to consider tax free only winnings from operators who have acquired an authorization to organize the game from the same country where the company is registered. While at first glance this seems in line with the wording of the article 85 of the Income Tax Act, the interpretation can be considered problematic for two reasons.

First of all, authorization or licensing in the country of origin was not intended by the Finnish legislator to be a condition for the applicability of Article 85 of the Income Tax Act. In the government proposal for the modification freeing winnings from games organized in the EEA from tax, it was specifically stated that an authorization or public control of the games in the country of origin are not required for the applicability of the provision. It is unclear as to why the Finnish Tax Authorities chose to ignore this when drafting the instruction, considering the propensity of Finnish jurisprudence to assign the intent of the legislator a lot of weight when it comes to interpreting the law.

Further more, the interpretation can be seen as problematic from the point of view of EU-law. The intent of Article 85 of the Finnish Income Tax Act is to realize the freedom to provide services. Therefore the basis of any interpretation should be Community law, all the more so considering the origin of the provision. Article 49 EC, as interpreted in the Lindman ruling, requires that winnings from games organized by operators protected by the freedom to provide services are to be treated equally to winnings from domestic games. According to the EC Treaty, the freedom to provide services is, in addition to nationals of member states, extended to all companies and firms formed in accordance with the law of a member state and having their registered office, central administration, or principal place of business in the Community. The rather ambiguous Article 48 EC that provides this is, in fact, a compromise between the various private international law theories applied in different member states for defining the nationality of a company and as such, extremely prone to legal disputes. An analysis of the extensive case law regarding the interpretation of the article accompanied by an equally extensive and often disagreeing commentary can not be presented here. It is enough to say, that a company formed according to the laws of a member state which has at least one of the three meaningful connections to the Community, that is, registered office, central administration, or principal place of business in a member state, can be considered protected by the freedom to provide services.

On the other hand, how a company organizes its activities and where it in reality produces the services offered plays no part in this consideration. While the member states have the right to deny the benefits of Community law from companies abusing the rights conferred to them by the EC Treaty as well as limit the treaty freedoms in other ways, this is to be held distinct from the initial question of the applicability of the treaty freedoms. Any restrictions to the company’s freedom to provide services based on how it has organized its activities are considered on the basis of the appropriateness and proportionality of the restrictions, as set out in the EC Treaty and the EC Court practice.

It is not uncommon for a gaming operator, formed according to the laws of a member state and being for all intents and purposes considered a company under that member states jurisdiction, to be providing games of chance on the internet under the authorization acquired from another member state or even from outside the EEA. While this might be considered politically problematic, from the point of view of the EC Treaty this has no significance. As long as the member state under the jurisdiction of which the company belongs permits this, the company is considered to be protected by the freedom to provide services.

Therefore, a gaming operator satisfying the conditions set out in Article 48 EC is protected by the freedom to provide services and this extends to, as stated in the Lindman ruling, the taxation of winnings originating from the games it provides. Should the winnings be considered taxable in Finland due to the operator holding its authorization for providing the games in a country other than where it is registered, this would probably be seen as a restriction to the company’s freedom to provide services and therefore risk constituting a breach of Article 49 EC.

Conclusions

The Tax Authorities have taken a commendable initiative in drafting an instruction and thereby clarifying the somewhat obscure situation that reigned in Finland concerning the taxation of poker winnings. An authoritative opinion on the matter was very much needed and makes the situation far better than it was before from the point of view of the poker players as well as the local Tax Administration offices. The in depth analysis of almost all of the questions related to the matter is an excellent demonstration of the efficiency of the Tax Authority.

While for the most part doing a commendable job, the interpretation of Article 85 of the Income Tax Act can be considered erroneous. With regard to both the will of the Finnish legislator and the problems it causes with EU-law, it can be said that the requirement of an authorization to organize the games in the country of origin should not be considered a condition for the applicability of the article. Instead, tax freedom should be applied to all winnings from games organized by a company satisfying the conditions set out in Article 48 EC and therefore protected by the freedom to provide services. Whether the Tax Authorities will eventually implement the requirement will probably be found out soon enough, as more and more poker players start reporting their winnings in fear of “the bear’s” watchful eyes.

Pekka Albert Aho
Lawyer
AA Legal Finland
Helsinki (Finland)
AALegalFinland@gmail.com

*) A good deal of consideration is also given to the controversial ruling of the Finnish High Court in which PAF, although operating entirely from the autonomous island province of Åland, was considered to be organizing lotteries also in mainland Finland. The ruling was based on the fact that PAF had marketed the games aggressively in the mainland, created Finnish language web pages, and organized a possibility of a direct bank transfer between Finnish banks and the gaming account at PAF. While theoretically interesting, the case seems to have little significance to the taxation of poker winnings and can therefore be overlooked here.