DocketNumber: Docket No. 18289-15S.
Citation Numbers: 2016 T.C. Summary Opinion 73, 2016 Tax Ct. Summary LEXIS 74
Judges: PANUTHOS
Filed Date: 11/8/2016
Status: Non-Precedential
Modified Date: 11/21/2020
PANUTHOS,
In a notice of deficiency dated April 20, 2015, respondent determined a deficiency in petitioners' Federal income tax of $3,922 for tax year 2013. After concessions,2 the issue for decision is whether and to what extent petitioners incurred deductible gambling losses.
Some of the facts have been stipulated, and we incorporate the stipulation of facts by this reference. Petitioners resided in California when the petition was timely filed.
Peter Phuong K.*75 Pham (petitioner husband) and Bach T. Nguyen (petitioner wife) each were employed by El Dorado Enterprises d.b.a. Hustler Casino (Hustler Casino) as a house player or host (house player) during part of the year at issue.
The parties agree that casinos sometimes hire house players to ensure that there are enough players to start and maintain card games or to gain an additional source of revenue from the player's winnings.3 Petitioners explained that as house players for Hustler Casino they would start a game of "Texas Hold 'Em" poker (Texas Hold 'Em). The goal was to attract other players/customers. Petitioners each received an hourly wage.4
Petitioners further explained that they were required by*76 Hustler Casino to use their own funds for betting in the games of poker, including paying the same table fees as customers not employed by that casino. The table fees included a regular table fee of $5 per hand and a collection for a "bad beat jackpot", which was $1 per hand. Hustler Casino set aside one dollar from each hand for the bad beat jackpot. Under certain circumstances not described in this record, Hustler Casino would decide that a player had "hit the jackpot". Hustler Casino would then redistribute the accumulated bad beat jackpot funds to the winner of that jackpot.5
Petitioners estimate that they each played six hours per day, 21 days a month, for seven months in 2013. Petitioners brought their*77 own funds to play poker each day. When petitioners won, they would receive chips from Hustler Casino. They used chips for further gambling or cashed them in. Petitioners assert that Hustler Casino did not reimburse them for table fees, bad beat jackpot fees, or gambling losses incurred in their respective roles as house players. Petitioners assert that initially they tried to keep track of their poker winnings and losses by writing down the amount won or lost at the end of each day, but after a while they gave up that practice because it is "bad for your psyche * * * you need to be strong mentally" when playing cards.
Hustler Casino did not train petitioners to play poker, nor did it require them to pass an exam relating to their poker skills in order to be hired as house players; instead they were hired to sit at poker tables and play cards. According to petitioners, Hustler Casino wanted players who would look neat and make a good appearance for the game. Petitioners asserted at trial that Hustler Casino would not hire "professional gamblers" because such persons would win too much and could not be trusted.
Petitioners together received $16,800 in gambling winnings from Hustler Casino*78 as house players in 2013. Occasionally petitioners gambled at other casinos. In October 2013 petitioners won $6,600 from Commerce Casino. Petitioners' gambling activity at Commerce Casino was recreational, and they were not house players there.
Petitioners resigned from their positions as house players for Hustler Casino in July 2013. Petitioners' income for 2013 consisted of wages from Hustler Casino, gambling winnings from both Hustler Casino and Commerce Casino, and a California State income tax refund. Since resigning from their positions at Hustler Casino, petitioner husband has retired and receives Social Security benefits while petitioner wife performs odd jobs.
Petitioners timely filed a joint Form 1040, U.S. Individual Income Tax Return, for 2013. On their Form 1040 they reported $15,402 in total wage income ($6,641 for petitioner husband and $8,671 for petitioner wife) from Hustler Casino and the $6,600 of gambling winnings from Commerce Casino. Petitioners received a Form 1099-MISC, Miscellaneous Income, from Commerce Casino issued to petitioner wife reflecting the $6,600 in gambling winnings. Petitioners also received a Form W-2G, Certain Gambling Winnings, issued to petitioner*79 wife for the $16,800 in winnings from Hustler Casino. Petitioners did not report the $16,800 on their Form 1040. Petitioners claimed a standard deduction of $13,400.
Respondent issued the notice of deficiency including the $16,800 in gambling winnings from Hustler Casino in petitioners' taxable income for 2013. Petitioners timely filed a petition asserting that they did not report this income because their gambling losses as house players at Hustler Casino exceeded their gambling winnings. Petitioners assert that they were forced to resign from their positions as house players in July 2013 for this reason. Petitioners estimate that they had each lost $1,000 per month for seven months on Texas Hold 'Em games played in their roles as house players. They also assert that they paid an estimated $7,056 into the bad beat jackpot and that their gambling losses totaled $21,056.6*80 Petitioners have not provided any receipts or other documentation of these fees or losses.
In general, the Commissioner's determination set forth in a notice of deficiency is presumed correct, and the taxpayer bears the burden of proving that the determination is in error. Rule 142(a);
In unreported income cases, the Commissioner must base the deficiency on some substantive evidence that the taxpayer received unreported income.
Gross income includes all income from whatever source derived, including gambling.
Section 162(a) allows as a deduction all ordinary and necessary expenses paid or incurred in carrying on any activity that constitutes a trade or business. An individual may be in the trade or business of being an employee.
If an expense can be considered*82 either a gambling loss under section 165(d) or a business expense under section 162, section 165(d) as the more specific statute controls.
While petitioners were employees of Hustler Casino and were paid a salary to play cards at the poker table, we might also view them as independent contractors to the extent that they gambled with their own funds, retained their winnings, and absorbed their losses. Regardless of whether petitioners were employees or independent contractors, they were engaged in a gambling activity and are required to substantiate their reported gambling losses.
Deductions and credits are a matter of legislative grace, and taxpayers must prove entitlement to the deductions and credits claimed. Rule 142(a);
When a taxpayer establishes that he paid or incurred a deductible expense but does not establish the amount of the expense, we may estimate the amount allowable in some circumstances.
We have held that where a taxpayer failed to keep a record of either winnings or losses from gambling and did not otherwise have evidence of losses, he could not deduct gambling losses.
Petitioners assert that they incurred $14,000 in Texas Hold 'Em poker gambling losses in 2013 on the basis of their estimate that they each lost $1,000 per month over a seven-month period, but they did not provide any documentation or other proof to support their estimated losses. Petitioners also assert they incurred $7,056 in gambling losses, estimated from the $1-per-hand fees for the bad beat jackpot and the number of hours they worked.
Petitioners have not provided evidence of their losses, such as a personal log of daily winnings and losses, win/loss statements, or bank records. Although petitioners had a modest income in 2013, they did not provide testimony or other evidence at trial to corroborate the claimed losses.
We have considered all of the parties' arguments, and, to the extent not addressed herein, we conclude that they are moot, irrelevant, or without merit.
To reflect the foregoing,
1. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code (Code) in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Petitioners concede that they received $16,800 of unreported gambling winnings income in 2013.↩
3. The parties stipulated a copy of a printout from the PokerZone Web site which provides the following definition of a house player: "A[n] player who is employed by the casino or cardroom; a proposition player, stake player, or shill * * * [c]ardrooms sometimes employ house players in order to ensure that there are enough players to start and maintain games or to gain an additional source of revenue from the player's winnings."↩
4. Petitioners asserted at trial that they believe they were paid $15 per hour in 2013.↩
5. The parties also stipulated a copy of the law enforcement advisory from the California Division of Gambling Control dated May 24, 1999, titled "Jackpot Poker". This advisory describes how jackpot poker games involve having a fixed sum of money withdrawn at each game and placed into the jackpot fund. When a particular combination of cards is achieved, the player with that hand wins all the funds in the jackpot. The advisory also mentions that "[s]ome variations include" bad beat jackpots.↩
6. Petitioners estimate that Hustler Casino collects on average $4 per player per hour in bad beat jackpot fees. Therefore, $4 per hour x six hours per day x 21 days per month x seven months x two house players = $7,056 in bad beat jackpot fees.
7. We note that petitioners did not file a Schedule C, Profit or Loss From Business, to report their gambling winnings and losses, nor did they claim that they were "professional gamblers". Consequently, any allowable gambling loss deduction could be claimed as an itemized deduction.
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W. Horace Williams, Sr., and Viola Bloch Williams v. United ... , 245 F.2d 559 ( 1957 )
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