Jimmie Clemons, retired, received a Form W-2G reporting $44,800.00 in winnings from a casino. As his gambling losses for the year were more than $44,800.00, he did not report any winnings or losses on his 1040.

The Tax Court, in Jimmie L Clemons T.C. Summary Opinion 2005-109, upheld the IRS position that gross gambling winnings must be reported as income on Page 1 of the tax return, with losses, to the extent of winnings, allowed as a "miscellaneous" Itemized Deduction. The losses can be deducted in full on Schedule A, and are not subject to the 2% of AGI exclusion.

While Jimmie was able to deduct $44,800.00 in losses to wipe out his $44,800.00 of income, the fact that the winnings were included in his Adjusted Gross Income caused 85% of his Social Security benefits to be taxed!

As a tax professional with a practice in New Jersey, and my share of regular lottery players and senior citizens who frequent the casinos of Atlantic City as clients, I have seen many examples where a taxpayer with net gambling losses for the year is royally screwed by "Uncle Sam".

* Because of the way Social Security and Railroad Retirement benefits are taxed, there often exists a situation where you would be taxed on $1.85 for every additional $1.00 of income. If you have $3,000.00 in gambling winnings and $4,000.00 in substantiated gambling losses you could end up increasing your AGI by $5,550.00 ($3,000.00 x 185%). Even if you can take full advantage of an itemized deduction of $3,000.00 in losses, you still could end up paying $383.00 in federal income tax in the 15% bracket, or $638.00 in the 25% bracket, on a net loss for the year of $1,000.00.

* Even if you can deduct enough losses to wipe out your gambling income, an increased AGI could reduce your allowable medical and miscellaneous job and investment related deductions, reduce or even wipe out a multitude of deductions and credits that are affected by AGI, and even cause you to fall victim to the dreaded Alternative Minimum Tax (AMT).

* You can only receive the full tax benefit from deducting gambling losses if the total of your other Itemized Deductions equals or exceeds the allowable Standard Deduction. What if a single taxpayer with $5,000.00 in winnings and $6,000.00 in losses has only $2,000.00 in other deductions (i.e. state and local taxes and charitable contributions). While he can deduct $5,000.00 in gambling losses, he only gets a tax benefit for $2,000.00 of the losses: $5,000.00 losses + $2,000.00 other deductions = $7,000.00 Schedule A - $5,000.00 Standard Deduction = $2,000.00 tax benefit. If he is in the 25% bracket he still ends up paying $750.00 in federal income tax on $1,000.00 in losses.

I should point out that losses from any type of wagering transaction can be deducted against your gambling winnings. If you win in the slots your deduction is not limited to losses from slot machines. You can deduct losses from the lottery, 50-50s, bingo, table games such as poker and blackjack, charity raffles, horse racing, keno, etc., up to the amount of your total winnings. It is a good idea to keep your losing lottery, raffle and racetrack tickets for the year, and keep track of slot activity by using a player's card, in case you make a big score. If you are unlucky enough to be chosen for an audit of your losses here is a word of advice - make sure your losing racetrack tickets to not have footprints on them.

You should also know that winnings from a "no purchase necessary" marketing sweepstakes or contest are not considered to be gambling winnings for the purpose of calculating deductible gambling losses. The IRS defines gambling winnings as winnings from a "wagering transaction". A recent IRS "Technical Advice Memorandum" (TAM 200417004) states that such winings are not gains from a "wagering transaction" because the winner did not furnish "consideration" for the chance to win the prize. If you win the Publisher's Clearing House sweepstakes, or a trip to Club Med by being the 10th caller to a radio station, you must report the winnings, or the market value of the trip, as income on your Form 1040, but you cannot deduct any losing lottery tickets, slot machine losses, or any other kind of gambling losses against this income.

The unfair way gambling winnings and losses are treated on the 1040 is similar to the unfair way most taxable legal awards and settlements and the related legal fees are treated. Let us hope that the President's Advisory Panel on Federal Tax Reform will address these inequities in the tax code in its report.