“Free Play,” which is not revenue to Tribal Government Casinos. Free Play is paid to patrons to generate wagers that qualifies as “amounts paid for prizes awarded,” yet the Dear Tribal Leader letter seems to indicate that it is intended to figure into into the calculation of Gross Gaming Revenues for the purpose of assessing NIGC fees. 1 Some tribal leaders and Chief Financial Officers in trying to discern the NIGC’s intent have raised several concerns. Some have indicated that this is a legal issue and not an accounting issue concerning the proper calculations of NIGC fees. Others fear that this is an attempt by the NIGC to increase fee collections during a national pandemic. Still others are concerned that this effort represents a change in policy or the precursor to a change in policy. As a result, this data collection effort has placed a burden on tribal governments in terms of both time and expense, including legal, accounting, and professional fees. It is not a negligible burden and if the NIGC intends to change its policy in relation to the calculation of its fees, for prior years and future years, tribal consultation is necessary. As you are aware, some states have attempted to include free play as gaming revenue for purposes of calculating “net win,” having the effect of increasing fees to states. In Pueblo of Isleta v. Grisham , six different Pueblos challenged the issuance of notices of non-compliance in which the State asserted that the Pueblos have miscalculated their revenue sharing obligations under identical Compact provisions. Specifically, the State asserted that the Pueblos excluded the face value of free play and deducted the value of prizes won by patrons as a result of free play wagers from Class III gaming machines’ “net win.” Specifically, the issue here was whether, according to GAAP, a gaming entity must exclude the face value of free play and deduct the value of prizes won as a result of free play wagers from its “net win.” In siding with the Pueblos on this particular issue, the Court found that under GAAP, the face value of free play must be excluded, and the value of prizes won by patrons as a result of free play wagers must be deducted, from net win. 2 Both the Governmental Account Standards Board (“GASB”) and the American Institute of Certified Public Accountants’ (“AICPA”) 2018 Audit and Accounting Guide – Gaming (“Gaming Guide”), were the authoritative sources of GAAP for the Pueblos’ gaming operations at the relevant times and both supported this conclusion. 3 In short, “free play is not revenue and neither is money (or the cost of non-cash prizes) the Pueblos paid out to patrons as a result of free play wagers.” 4 Accordingly, because IGRA does not authorize these additional revenue sharing payments, such required payments would be considered an illegal tax. In 25 CFR 514(c), the NIGC provides: (c) For purposes of computing fees, assessable gross revenues for each gaming operation are the total amount of money wagered on class II and III games, plus entry fees (including table or card fees), less any amounts paid out as prizes 1 In Nevada, the definition of Gross Gaming Revenue does not include free play. NV Rev. Stat. Sec. 463.0161.
2 Pueblo of Isleta v. Grisham, 2019 U.S. Dist. LEXIS 55049 at *54, *65 (D.N.M. 2019). 3 Id. at *26-27. 4 Id. at *68.
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