Tomasz Makaruk

Organizers of promotional lotteries are not obliged to submit IGH-1 and IGH/1A

Exactly a year ago, on 16 October 2017, I posted a discussion on the blog about the issue related to doubts with the audiotex lottery organizer regarding IGH-1 and IGH/1A. At that time, I focused on the properties of the authority, which is provided with information on the functioning of office entities arranging and operating in the field of gambling, and the way of presenting the data with doubts whether it should be done cumulatively or quarterly. The full text can be found at the link http://www.marketingbusinessblog.pl/watpliwosci-organizatora-loterii-audioteksowej-dotyczace-igh-1-oraz-igh1a/

It would seem that the subject was exhausted and closed, but life usually writes different scenarios from what we think. To discuss further doubts regarding IGH-1 and IGH/1A, it is necessary to quote the relevant art. 79 par. 2 and par. 3 of the Act of November 19, 2009 on gambling (Journal of Laws of 2018 item 165) – further “UOGH”. It has the following wording :

 

Art. 79

2. Entities arranging and operating in the field of gambling are obliged to submit, to the Minister responsible for public finance competent for granting permissions or to the director of the tax administration, by the 21st day of the month following each calendar quarter, a compilation of economic and financial data in the scope of activity with particular emphasis on turnover, financial results, economic indicators and in particular employment rates and statistical indicators obtained by these entities.

3. The minister responsible for public finance shall specify, by means of a regulation, the mode of submission and the detailed scope of data referred to in par. 1 and 2, having the need to monitor the correctness of the business operations based on issued licenses and permits as well as policy development in the field of gambling.

In accordance with par. 3 of the Regulation of the Minister of Development and Finance (June 28, 2017) on the submission of information regarding the functioning of entities arranging and operating in the field of gambling (Journal of Laws of 2017 item 1304), further “Regulation on IGH” was issued. In par. 1 of its content it was repeated in the footsteps of UOGH that the discussed law provisions are applicable to “entities operating in the field of gambling”. I quote the full text of the provision below :

 

§ 1. The Regulation defines the detailed scope of data referred to in art. 79 par. 1 and 2 of the Act of November 19, 2009 on gambling, hereinafter referred to as “the Act”, and the mode of their submission by the entity arranging and operating in the field of gambling, hereinafter referred to as “the Subject”.

Why am I writing about it ? Because in accordance with the Act on gambling, there are three other categories of games among other games of chance, including promotional lottery. Therefore, the organizer of a promotional lottery is the organizer of gambling games and in accordance to the wording of the aforementioned art. 79 UOGH  and par. 1 of the Regulation on IGH he should (in the literal sense of the provisions) be subject to the reporting obligation referred to in the Regulation on IGH. Should, but as it turns out, it does not apply.

In the letter of August 21, 2018, the Department of Sectoral and Local Taxes, and Taxes from the games of the Minister of Finance issued a letter to the Director of the Treasury Administration Chamber in Łódź, where he asks for “an instruction on the information obligation or its lack” resulting from the Act on gambling in case the promotional lottery organizer submits the IGH-1 form despite the lack of such obligation. This position was confirmed in the letter of August 29, 2018 by the Department of Taxes from Games of the Treasury Administration in Łódź, in which the position is presented that “IGH-1 forms for issuing permits for organizing audiotex lotteries are submitted only in the case of obtaining such permits for carrying out the above lotteries in a given quarter. The information obligation resulting from the Act on gambling arises when the permits are obtained, otherwise there is no such obligation”.

Despite the fact that such a position does not result from the literal wording of UOGH, it is difficult to imagine, having the two aforementioned letters containing the position of two authorities, to not defend the thesis that there is no obligation to submit IGH-1 and IGH/1A during an eventual inspection. Summarizing therefore – the organizers of promotional lotteries are not obliged to submit IGH-1 and IGH/1A.

Finally I want to reserve that the position of the Minister of Finance or the tax authority is not a source of law. Even if it has been expressed in writing. In this specific case, I share the Company’s experience with you, whose work I manage.  It is difficult to say whether this position will apply in the case of other entities organizing promotional lotteries, especially those for which decisions on granting permission to arrange promotional lotteries are issued by the Directors other than the Łódź Tax Administration Chambers.

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