In recent months, the Office of Chief Counsel of the Internal Revenue Service (“IRS”) has published guidance concluding that Daily Fantasy Sports (“DFS”) contests are wagering transactions for U.S. federal tax law purposes. The IRS conclusions were not surprising, based on long-standing federal tax law authorities. On July 23, 2020, the IRS issued Legal Advice by Associate Chief Counsel (the “Memorandum”) addressing the applicability of wagering excise taxes to DFS operators. In the Memorandum, the IRS concluded:
- A DFS operator is liable for the excise tax on wagers under Section 4401 of the Internal Revenue Code of 1986, as amended (“IRC”).
- A DFS operator is liable for the wagering business occupational excise tax of IRC § 4411 and is required to register as a person liable for the excise tax on wagers under IRC § 4412.
- The rate of tax IRC § 4401(a)…