Tuesday, October 14, 2008

Do I Have to Pay Taxes on This?

You jumped on the Barack Obama bandwagon early, and you're currently counting your Intrade earnings as you smile from ear to ear while checking the latest poll numbers. Obama's 14-point margin in today's NY Times poll (and his 80.3 price on Intrade today, his highest ever) seems so insurmountable that you're less concerned at this point about any so-called Bradley Effect than you are about one other pesky question about your profits: Do I actually have to pay taxes on this?

This was the question I posed last year to Philip Cleary, my good friend, who also happens to be a tax law expert and attorney at the IRS. At my urging, Philip decided to investigate the issue in depth in a law review article, which was recently published in the Virginia Tax Review. His paper, which is available in its entirety here, is the first of its kind - a thorough legal analysis of how prediction market investments should be treated under current tax law. Should they be treated as mere gambling earnings or taxed like other tangible commodities?

Philip is the first to acknowledge that the tax treatment of prediction markets is complicated. As a result, he is far more qualified to explain his paper than I, which he has graciously agreed to do in a forthcoming post. In the meantime, here is his Bottom line

"Prediction derivatives are logically seen as instruments of finance and taxed as their natural predecessor forward contracts based on tangible commodities. This approach is the correct one under current tax law."

"Prediction markets simply do not follow in the stead of online poker and off-track betting. They are targeted to different markets. The events of prediction markets are not one-time games but are connected to the socioeconomic events which shape our well-being. Even the nature of the return is more like that of financial instruments and not some oversized jackpot. Whereas wagering involves vice, prediction derivatives exhibit genuine social usefulness. At the very least, they help disseminate useful information."

Do you agree with Philip's approach? Have you been paying taxes on Intrade investments? Let us know in the comments.

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