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Executive summary

The Commissioner-General (CG) of the Ghana Revenue Authority (GRA), the officer responsible for the administration of the tax laws, has issued a "Practice Note on the Taxation of Gross Gaming Revenue and Winnings from Lottery Operations" under the Income Tax (Amendment) Act, 2023, Act 1094, which was passed pursuant to the tax measures that the Government introduced in the 2023 Budget Statement and Economic Policy (the 2023 Budget) to raise revenue to support various sector reforms and for other matters.

This Alert highlights the key matters set forth in the Practice Note.

Detailed discussion

Under the CG's powers to issue Practice Notes (PN) for the interpretation of tax laws under the Revenue Administration Act, 2016, Act 915 (as amended), the CG has issued a PN interpreting provisions on the taxation of gross gaming revenue and winnings from lottery operations under Act 1094.

The PN is titled "Practice Note on Taxation of Gross Gaming Revenue and Winnings from Lottery Operations under the Income Tax Act, 2015, Act 896 (as amended)" and numbered DT/ Lottery/01/2023. The PN was issued and signed by the CG of the GRA on 5 June 2023. Key points in the administrative guidelines include:

1.0 Taxation of Gross Gaming Revenue (GGR) and Winnings from Lottery Operations

The PN seeks to

• Provide direction and guidance on the acceptable tax treatment of the provisions on gross gaming revenue and gross winnings from lottery operations
• Achieve consistency in its treatment
• Address administrative and operational challenges that may arise from the interpretation and scope of gross gaming revenue and gross winnings from lottery operations other than business incomes and investments

1.1 Definition of terms

The PN defines the following terms:

• "Lottery operations" include sports betting, casinos, route operations, remote interactive games, marketing promotions, national lotto betting, private lotto betting and other games of chance.
• "Stake/Wager" includes free bets and bonuses offered to players.
• "Payout" means the total amount of money, or the value of the prize paid to player/punter at the end of each betting, gaming and any game of chance including the value of stake/bet/wager/bonus/free wins. The total amount or the value of the prize paid includes:
• Payment to punters/players before the game ends prematurely (cash-out during the game)
• Payment/prizes to participants of marketing promotion
• "Gross Winnings from Lottery for purpose of determining GGR" is the payout at the end of each betting, gaming and any game of chance.
• "Gross Winnings from Lottery for the purpose of calculating withholding tax" is the payout at the end of each betting, gaming and any game of chance less the amount of the stake/wager/bet, if any, (but no other cost or expense) that directly results in winnings.

Types of gross winnings of lottery operations:

• "Retail Scheme" is a special dispensation granted by the CG to a sports betting operator who runs a retail outlet to aggregate winnings on virtual games to apply the withholding tax rate on the aggregated winnings instead of withholding on each win per player.

1.2 Application of the PN

The PN applies to

• Obligations of lottery operators with respect to the tax treatment of:
• GGR
• Withholding tax on gross winnings from lottery
• Calculation of GGR amount
• Calculation of withholding tax amounts on gross winnings

1.3 Determination of GGR

GGR for the respective lottery operation shall be determined as follows:

To adhere to the methods in calculating GGR as outlined in the table above, the operators must keep records and follow procedures that are verifiable in accordance with international standards.

1.4 Tax treatment of GGR

• The GGR determined from lottery operations is subject to tax at the rate of 20%.
• The chargeable income of a person from lottery operations is the GGR, and the GGR is "the total amount staked or wagered less prizes or gross winnings paid or payable."
• Where a person has earned chargeable income other than income from lottery operations, the person would be taxed separately in accordance with Section 1 of the Income Tax Act, 2015, Act 896 (as amended) (ITA).

1.5 Sources of gross winnings

The sources of gross winnings include lotto from the National Lottery Authority (NLA), lotto from private lotto operations, sports betting, casino games, route operations, marketing promotions, remote interactive games and other games of chance.

1.6 Operators required to pay tax on the GGR

Operators who are required to pay a 20% tax on the GGR include private lotto operators, sports betting operators, casino operators, route operators, remote interactive games and other games-of-chance operators.

1.7 Withholding tax on gross winnings from lottery

• A resident person who pays an amount from a source in Ghana as winnings to a punter/player/wager through lottery operations must withhold tax from the gross winnings at the rate of 10%. For casino and route operations, the withholding tax is on the final gross payout by the player/punter.
• If a resident person pays gross winnings to a punter/player/wager through lottery operations and the payment is a prize other than money, the person is required to withhold tax based on the prevailing market value of the prize.
• It should be noted that if payment of gross winnings to punter/player/wager through lottery operations consists of both money and nonmonetary considerations, the person must follow the treatments of payments in cash and prizes separately as stated in 1.7 (a) and (b), above.

1.8 Withholding tax on gross winnings by retail scheme operators

• If transaction volumes are usually high and the value of the winnings at the retail outlet is so small¹ that it is reasonably or administratively impracticable to withhold from such winnings, the operator may apply to the CG for approval to operate a retail scheme.
• A retail lottery operator who has been granted approval from the CG to operate a retail scheme shall keep daily records of all stakes/bets/wager and the gross winnings paid/payable on all transactions.
• A sports betting operator must follow the steps below to calculate the tax on gross winnings from virtual games:
• Aggregate all gross winnings paid/payable for the month
• Apply the withholding tax rate (10%) to the aggregated amount (i.e., gross winnings)
• Follow the withholding tax payment obligation as stated in paragraph 2.3, below

1.9 Monthly negative GGR

An operator who realizes a negative GGR in a particular month may carry forward the negative GGR to the subsequent month and deduct it from a positive GGR realized.

In effect, the operator may not be liable for the tax in the month in which the operator realized a negative GGR.

2.0 Monthly GGR transaction return

Persons engaged in lottery operations are required to file a GGR transactions return and pay the GGR tax monthly. The filing of the GGR transaction return and payment of applicable taxes are due on or before the 15th day of the month following the month to which the transaction return and payment relate.

2.1 Annual return

Persons engaged in lottery operations are required to file their annual GGR tax returns and pay any outstanding taxes on or before the last day of the fourth month following the year of assessment to which the returns and payments relate.

2.2 Over/underestimating GGR tax

The GRA may issue an assessment notice to a lottery operator where it determines that the lottery operator underpaid the GGR tax² for a given year of assessment. The assessment notice will cover the difference to be paid by the lottery operator, including any applicable interests and penalties.

Where the GRA determines that the lottery operator overpaid the GGR tax³ for a given year of assessment, the GRA will allow the operator to take the excess payment as credit in the month(s) following the determination of the overpaid GGR tax.

2.3 Withholding on gross winnings

Lottery operators are required to withhold tax on gross winnings, file a withholding tax return, and make payment for amounts withheld monthly not later than the 15th day of the month following the month to which they relate. A "nil" return is required to be filed by a lottery operator who has no withholding tax payment for a particular month not later than the 15th day of the month following the month to which it relates.

2.4 Revenue Monitoring System

For assessing the correct tax from lottery operations, the CG may

• Establish a Revenue Monitoring System (RMS) to verify the actual revenue that accrues to lottery operators, as well as
• Obtain physical access to the physical infrastructure or system of the lottery operator at an equivalent point in the infrastructure or system where the operator's system is connected

2.5 Modification of software

The PN provides that lottery operators are to modify their software to display bet/stake amount, possible winnings before tax, tax rate, tax withheld and possible winnings after tax on the bet slip and store the values for reporting. This measure is to ensure that the Act is effectively implemented and administered.

2.6 Illustrations

Paragraph 7 of the Practice Note provides some illustrations on how the GGR and GGR tax are to be calculated.

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For additional information with respect to this alert, please contact the following:

Ernst & Young Chartered Accountants, Accra

• Isaac Sarpong | isaac.sarpong@gh.ey.com

Ernst & Young Société d'Avocats, Pan African Tax — Transfer Pricing Desk, Paris

• Bruno Messerschmitt | bruno.messerschmitt@ey-avocats.com
• Alexis Popov | alexis.popov@ey-avocats.com

Ernst & Young LLP (United Kingdom), Pan African Tax Desk, London

• Kwasi Owiredu | kwasi.owiredu@uk.ey.com
• Byron Thomas | bthomas4@uk.ey.com

Ernst & Young LLP (United States), Pan African Tax Desk, New York

• Brigitte Keirby-Smith | brigitte.f.keirby-smith1@ey.com
• Dele A. Olagun-Samuel | dele.olaogun@ey.com

Published by NTD’s Tax Technical Knowledge Services group; Carolyn Wright, legal editor

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ENDNOTES

¹ "Small" means gross winning below GHS 100

² "Underestimation of the GGR" means the total amount of the GGR tax payment made for the year is less than the total monthly GGR tax liability for that year.

³ "Overestimation of the GGR" means the total amount of payment made by the lottery operator for the year exceeds the GGR tax liability due.