BOSTON (SHNS) – Don’t bother trying to make plans with anyone from the Mass. Gaming Commission in December.
Beginning with a meeting Thursday morning, commissioners and agency staff are poised to meet in public on 13 of the 17 business days between the start of December and Christmas as they try to make good on their projected “late January” start of sports betting while also dealing with matters at the state’s casinos, slots parlor, simulcast centers and horse racing track. The meetings will be a mix of regular commission business, public input sessions and hearings on individual sports betting license applications, which kick off next week.
Hearings on the applications for in-person sports betting licenses from the casinos and slots parlor that the commission already regulates will be up first with Plainridge Park Casino on Tuesday, MGM Springfield on Wednesday and Encore Boston Harbor on Thursday, chairwoman Cathy Judd-Stein said Wednesday. The applicant will have about an hour to make a presentation and then commissioners will dive into questions for the applicants and commission staff members.
Similar hearings for the five applications that came in for mobile betting operations tied to one of the casinos or the slots parlor are slated to start the following week (Dec. 13, 14, 15, 19 and 20) and hearings on the six applications for “untethered” mobile betting are likely to come in January, according to commission documents.
During an agenda-setting session Wednesday, Commissioner Brad Hill raised an issue that others agreed should be added back to the commission’s plate. Last month, when first discussing a regulation that details the taxation of sports wagering revenue, commissioners flagged promotional play credits as a major policy issue they would soon have to reckon with. Hill asked Wednesday that commissioners get a briefing to better understand the issue so they can decide how their regulations will actually address the issue.
“If we could have the staff actually explain to us what promotional play is, explain to us how it is used in other jurisdictions, certainly [Chief Financial Officer] Derek [Lennon] I know you can explain to us how it’s taxed or not taxed,” Hill said. “I have a concept of how it works, but I think we need to get into the weeds just a little bit.”
To attract customers and keep them betting, operators offer promo play credits — “Bet $5 to get $150 in free bets!,” DraftKings advertised on its website Wednesday morning — that bettors can use largely as cash. The question of whether the $150 in free bets that a customer places counts as part of an operator’s taxable revenue base has significant implications.
Commissioners agreed Wednesday that they will dive into promo play in much greater detail on Dec. 12, during the second of two meetings planned for that day. Judd-Stein agreed that it was a good time to revisit the promo play issue and cited comments that have come into the commission since it was last brought up at a public meeting.
The chairwoman also acknowledged that the commission has a “wide spectrum of choices” as to how it will address promotional play, like allowing all, none or some of it to be excluded from an operator’s taxable revenue.
The Legislature, which spent years debating sports betting before legalizing it this summer, did not make a clear statement about promotional play in its compromise betting bill despite analysis showing that the issue could have a dramatically effect on sports betting taxes.
The original House bill explicitly allowed operators to exclude promo credits from their taxable revenue. The Senate bill did not, and directed the Gaming Commission to promulgate regulations to ban “advertising, marketing and branding through certain identified promotional items … which may include giveaways, coupons or promotional gaming credits.” The final compromise bill kept only the Senate’s definition of “promotional gaming credit,” but the term does not appear anywhere else in the law.
An official representing BetMGM told the commission in a public comment on the regulation that whether free bets and other promos are considered a “thing of value” and therefore subject to taxation “may be worth clarifying in the regulation.”
The commission also got a detailed letter from MGM Springfield to “strongly advocate” for the dollar value of promos and bonuses to be excluded from the definition of taxable gross sports wagering revenue. The casino said that including promo play credits as taxable revenue could in some cases double the effective tax rate an operator would pay.
In the example MGM Springfield provided, a bettor places and loses a $100 wager using $50 of their own cash and $50 in promo play credits. If the promo play credits are allowed to be excluded from the taxable revenue total, the casino’s $50 in adjusted revenue would translate to a $7.50 tax levy if the wager was placed in person or $10 in taxes if it was placed online. But if all $100 of the wager is counted as the casino’s revenue, the tax on the wager would be $15 if placed in person and $20 if placed online.
“A regime that does not permit tax exclusions for promo play would essentially exact significant penalties on operators for promoting and developing their legal products,” Vice President and Counsel Gus Kim wrote. “Taxing promotional play also distorts economic incentives in a way that severely undermines the state’s public policy objectives in legalizing and regulating sports wagering in the first place, including capturing to the greatest extent possible existing demand that is currently flowing into the illegal sports betting market.”
Fanatics Betting & Gaming, which has applied for a mobile sports betting license, has also asked the commission to both allow promotional play credits and allow operators to exclude those credits from their taxable revenue calculations. The company, which branched out from the popular sports apparel and memorabilia retailer Fanatics, said promo play is particularly important to its strategy for competing with other sports betting outlets.
“While other online sports wagering operators attract players from their existing Daily Fantasy Sports (‘DFS’) or casino userbases, FBG brings the ability to tap into our over two million Massachusetts consumers within our existing commerce space. Many who have purchased licensed sportswear, memorabilia, NFT’s, and other merchandise from our retail outlets, but may not have been otherwise introduced to the online sports wagering market. To achieve this full potential for both our organization and the state, we need to be able to operate equitably with other national operators who have had years to build brand recognition and familiarize consumers with their platforms,” the company said. It added, “A state that taxes promotional play imposes a tax burden on nonexistent money, exponentially increasing the effective tax rate to an operator. … In sum, when a consumer places a wager using promotional credits and loses the wager — no money changes hands between the consumer and the operator.”
DraftKings sent a similar letter and, like the others that weighed in on the commission’s regulation, pointed out that the Gaming Commission already allows the casinos and slots parlor it regulates to exclude the dollar value of promotional wagering credits from the calculation of gross gaming revenue.