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Gambling License and Basic Considerations for Service Providers

Gambling License and Basic Considerations for Service Providers

Successful creation of a gambling service on the Internet: Why should you turn to our legal firm?

We are an international legal firm giving tax and legal advice and focus on international tax arrangements as well as international gambling law. Most of those offering a service on the Internet are either “local providers” and/or tax consultants or lawyers are not involved. Particularly in the case of purely local providers (e.g. the Isle of Man) there is the problem that although, admittedly, the legal and/or tax-law requirements in the country are known about, there is no international orientation. In this case there is the risk that those interested in/already providing games of chance on the internet will select structures that are illegal and/or fulfil the conditions involved in the abuse of arrangements from the point of view of tax law. In this case, making savings in the wrong place can have disastrous consequences, as relevant examples from the past impressively record. The services offered by our legal firm are:

legal advice with regard to international gambling law
selection of the right location for the gambling business
advice relating to tax law (prevention of the abuse of arrangements, tax arrangements within the context of the associated companies, designing the company with an intermediate holding company, prevention of a high rate of tax being paid at source when distributing dividends etc.)
application for a permit from the relevant authority up to and including the granting of the gambling licence
setting up of the company in the relevant country and, on request, the apppointment of a trust director or full-time director (a lawyer in the country where the company is to be domiciled), a proper registered office etc..
opening of an account in the name of the company, linking up with payment services providers (settlement by means of credit cards, Paypal etc.)
bookkeeping, advance VAT return, annual accounts, calculation of the gambling tax burden
procurement of providers of gambling software

General Remarks on the Subject of Gambling Licences

Anyone tackling the subject of “the provision of gambling services on the Internet” will quickly discover that it involves an extremely complex legal subject. Many countries (see the chart below) regulate gambling through internal laws, and in other countries the provision of gambling services is prohibited, as a matter of principle, and, on the other hand, other countries know nothing at all about the regulation of gambling. Providers of gambling services are first of all faced with the question as to which country is suitable for offering internet gambling. In so doing, a series of legal questions and problems relating to tax law must be borne in mind. In addition, creating a gambling service only makes sense if those participating in the gambling are convinced of the seriousness of what is being offered. If what is being offered does not appear to be serious or the whole thing reeks of deception, participants will switch to another provider and, possibly, post negative reports in the relevant internet forums for online gambling. To that extent it should be of huge interest to the provider of gambling services to chose as a location, as far as possible, a country which legally regulates gambling – that is, one where a gambling licence is required along with correspondingly strict conditions and demands.

Gambling License: Fundamental Legal Information

In simple terms, it can be stated that in the gambling sector the law of the country in which the company is domiciled applies (that is, the law of the country where the gambling licence is successfully achieved) and the law of the “state in which the service is being provided” (that is, the law of the country at which the gambling service is aimed). There is one advantage within the EU in this case: first of all the EU freedom of establishment and the decisions of the European Court concerning the freedom of establishment apply. Thus a company which has its headquarters within the EU and has a gambling licence at its disposal (e.g. Malta,England,Gibraltar) can direct the service that it provides to customers throughout the EU. However, there is, in many instances, a “conflict of law”, with the result that internal laws (the state within the EU in which the service is being provided) cannot, admittedly, prevent or stop such a service being offered but almost declare participation in such gambling to be illegal. Nevertheless, it can be more than sensible to acquire a licence in the EU, provided that the gambling service on offer is also aimed at EU residents: the fundamentally positive effect of the EU freedom of establishment (providers of gambling services may advertise throughout the EU etc), the strict conditions within the EU (e.g. in Malta) and, along with this, documentation showing the seriousness of what is being offered. And the “trust of the participant” in the case of services being offered within the EU will, by their very nature, be higher than for “services provided offshore”. If, on the other hand, the service offered is predominantly aimed at participants outside the EU, then other countries can also be extremely worthwhile considering. We also frequently look after clients who, for the reasons considered and outlined above, successfully achieve more than one licence, e.g. in Malta and on the Isle of Man.

Gambling License: Pure Reseller Services

If the client is planning to offer a purely reseller service (that is, becomes an affilinet partner of an existing gambling service provider with a licence), then the setting up of a limited company in Cyprus may also possibly be worth considering. In Cyprus (which is part of the EU) such reseller services are allowed without a licence. In many other countries there are special regulations (lizences) relating to reseller services, e.g. in Malta.

Gambling License: Tax and Tax-Law Considerations

Individual countries recognise very different regimes with regard to the taxation of business premises and gambling profits (gambling tax). We go into corresponding detail with regard to these on our country pages or in the exposé. As a rule, the following taxes are payable in relation to gambling businesses:

tax on the earnings of the gambling business (thus the profit of the operational facility is hereby taxed)
gambling tax, that is, as a rule, the turnover from gambling is taxed
POSSIBLY sales tax
tax at source on dividends flowing abroad or domestic income tax

Irrespective of these, due to considerations with regard to tax law, a check must be carried out for any suspected abuse of arrangements. The key words here are: an illegal intermediate company, whose only purpose is to circumvent domestic taxation, national regulations governing the prevention of the abuse of arrangements and/or DTA clauses aimed at preventing abuse. Many countries are also familiar with so-called additional taxation where a native of a country has a controlling influence: if a native of a country (taxpayer) has a controlling influence on the foreign company (country of domicile of the gambling business), if this foreign company is set up in a low-tax country and only deferred income is realised, then the profit is taxed at the place of the owner of the shares, that is to say, through income tax and not through the normally reduced rate of tax in many countries when distributing dividends. Thus a structure can quickly become a tax trap, if national tax laws plus regulations within the EU and/or DTA law are not observed.

“Tax traps” can also lurk in direct holdings. Thus many countries are familiar with tax being paid at source on dividends flowing out of the country that is only restricted through existing double-taxation agreements and/or, within the EU, due to the effect of the EU parent-subsidiary company directive. In summary, it can be stated that the tax arrangements should be an essential element of the planning stages. At the same time, it must also be borne in mind that tax-law aspects and issues of the “applicable gambling law” frequently work together: if it is discovered that the business premises are not even located abroad, then domestic law (that of the country in which the client is domiciled) applies.

Important Points of Gambling Law and Tax Law: Business Premises Abroad

It must be able to be proved that the business premises of the company with the gambling licence are located abroad. Thus, for example, if it involves a Maltese limited company with a gambling licence, the business premises must be located in Malta. The definition of business premises according to the OECD_MA can be of assistance in this connection, as a rule 5 DTA (double-taxation agreement). Accordingly, important features are:

-the location of the senior management of the company: someone who is resident in the country where the company is domiciled (in our example, Malta) must occupy the position of senior manager of the company. Either the client or an agent shifts the focus of his life to the country in which the gambling company is domiciled or our partner legal firm in the country of domicile can appoint a trust director or full-time director. Care is required in the case of so-called nominee directors who subsequently withdraw and hand over to the actual beneficiary/client who is then entered as a director in the local register. Even if the relevant country does not have a register available for public inspection, the “actual location of the senior management of the business” is discernible as the nominee director is no longer actively engaged. In addition, the G20 agreements and/or clauses in the double-taxation agreements concerning the exchange of information must be borne in mind.

Besides, many gambling laws prescribe that two directors are required. One who is not a resident of the state in which the company is domiciled could thereby act as the second director of the gambling company, provided that the gambling law in question provides for such a possibility. Provided, in that case, that the first director attends to the vast majority of the management duties, and the second director travels to the country in which the company is domiciled now and again in order to be involved in building consensus, the business premises should, nevertheless, for tax-law purposes, be located in the country where the company is domiciled (e.g. Malta).

-a proper place of business: simply having a registered office does not count as having a proper place of business. The international authorities are familiar, in most cases, with registered-office addresses in the countries as hundreds of companies frequently have their headquarters here. The minimum requirement would be to have at least a virtual office in a business centre in the country in which the gambling company is domiciled, that is, a company sign, its own telephone number, the taking of calls in person and a fax service. The ideal situation would be to rent an office or at least to book an office quota at the relevant business centre, e.g. the use of an office or conference room for 15 hours a month.

Tax Arrangements using an Intermediate Holding Company

An important tool for minimising tax can be the setting up of an intermediate holding company. The basic problem is that dividend distributions in many countries are subject to taxation at source, which can only be limited through a double-taxation agreement (DTA) or the effect of the EU parent-subsidiary company directive. An intermediate holding company (e.g. Cyprus, Holland, the UAE) collects the dividends of the subsidiary company (the gambling company) in the best case scenario free of tax at source and does not tax pure investment earnings. If this intermediate holding company is located in Cyprus, for example, then, as a matter of principle, Cyprus does not tax further distributions to non-Cypriots, irrespective of the existence of a double-taxation agreement (DTA) or not.

What costs must the client expect to pay?

First of all, a distinction must be made between the purely government fees payable to the relevant gambling authority (as a rule, we list these along with the descriptions relating to the relevant countries) and our legal fees for advice, applying for a permit, a business plan and a plan for the profit and loss account etc.. In addition, there are the fees for setting up the company in the relevant country plus, if applicable, a registered office and a head office, a trust director/trust directors and the opening of an account. The fees fluctuate very much, depending on the relevant country, the licence required and the arrangements for setting up the company.

Gambling License: Fundamental Questions for Our Customers

In order to be able to give you the right advice, we need, as a rule, the following information from you:

the type of gambling (that is, for example, an online casino, betting, betting on sports)
Are you providing the service yourself or are you simply the reseller of an existing service ? If you are a reseller: Who is offering the service, and in which country does this provider have a licence?
If you are providing a service of your own: Who is the programmer of the gambling software?
At which customers, in which countries, is the service aimed?
Where are you, as a natural person, subject to the payment of unlimited tax?
Who are intended to become shareholders of the gambling company? (natural and/or legal persons), and in which country are these persons subject to the payment of limited or unlimited tax?)
What is the budget that are you roughly planning for setting up the company, the gambling licence, advertising and marketing?

Gambling License- Sports Betting- Online Casino: International Licenses

Our law firm – i.e. the network partners of the Low Tax Network – form companies with gambling licenses on the Isle of Man, Malta, Gibraltar, England and other countries (for example: Belize, Antigua, Barbuda, Costa Rica, Kahnawake) for our clients, … key to the realization of an online gambling offering (online casino, online betting, lottery, sports betting, the company offers services itself or as a reseller). We welcome the opportunity to provide these services to companies who provide gambling software. We provide consulting in the selection of the seat country and the required license, as an additional service within the scope of the “tax planning” (seat country and/or “affiliated companies”).

Gambling License: Do not underestimate the costs!

In some Internet forums one can read entries which state, for example, that a license can be purchased in Malta for approximately 7,000 Euro per annum. This is of course total nonsense; one cannot just develop a lucrative business “on-the-fly”. He who wishes to be a successful entrepreneur must make certain investments. The following fees and taxes must be considered when pursuing a gambling license:

– Preparatory steps regarding the submittal of the approval process at the relevant agency in the seat country (these services are provided by our partner attorneys in the seat country). For this process numerous documents/proofs must be submitted depending on the seat country: Business plan and profit and loss plan for the first years, software, general terms and conditions of the gambling operation, measures for child and youth protection as well as addiction prevention, excellent credit record of the managing director, sufficient paid in capital in the event of distributions and many more considerations.

Approval process / accompaniment up to receiving the license
Formation of a company in the seat country, no bogus firms [as defined by term/act/provision]. In this process, for example, Gibraltar mandates a commercially structured organization.
Government fees to be paid to the relevant agency in the seat country, gambling taxes, corporate/company taxes
In many countries: Fees for the prescribed auditor, fees for accounting, preliminary value added tax return and annual financial statement.

Gambling License: Fundamental Differences and Issues

Within the context of Internet gambling or betting offerings one must first differentiate if the client only acts as an “agent”, i.e. as a reseller of existing web offerings or if the client wishes to realize its own platform/service. In the event a client wishes only to pursue “reseller activities”, in this case the client could, for example, form a Cypriot Limited which offers such services. It is true that gambling is illegal in Cyprus, however, reseller offerings are legal. In the event the client wishes to offer its “own offering” the laws of the target countries must be considered. Of course the domestic laws of the respective seat state must also be taken into account. Within the EU the a license can be obtained in an EU state (for example Malta), and that said license must , under certain conditions, be recognized by the other EU states. The legal basis for this opportunity is the effect of the EU freedom of establishment and the judicial decisions of the European Court of Justice The situation can become legally problematic, if the offering is to be made available to customers in different countries, also outside of the European Union. If a license is realized in a EU state (for example in Malta), then one must consider that the only applicable law is the law of the seat country and that no permanent establishment exists, as defined by an applicable double taxation agreement. This could lead to the application of the target country’s domestic law, which as a rule should be avoided., Consequently, at most only a representation may be installed “in other countries outside of the seat country” (no permanent establishment as defined by a an applicable double taxation agreement, only consulting activities). Based on different legal considerations we however are inclined to recommend against maintaining any connection to a target country, for example Germany or Austria (as a rule the seat country of the beneficiaries).

Popular Gambling License Jurisdictions

To operate an online casino, poker room or sports betting gaming site legally you will need to obtain a gambling license first. The actual gambling license to operate online gaming site is issued by many governments worldwide, but the most popular jurisdictions issuing such offshore gambling licenses are from the Caribbean and Pacific Island Governments such as Antigua and Barbuda, Costa Rica, St Kitts, Dominica, Curacau and Vanuatu. When selecting a gambling license jurisdiction, you should select one with a sensible approach to taxation, and license cost in combination with a strong licensing law and technical standards.

Why do you need the gambling license for your online casino, poker or sports betting site?

It is possible to make your online gaming business without a license, but most of major online casinos have license. Here are three main causes why it is worth to have a gambling license.

In player’s opinion gambling license guarantees reliability and straight dealing of the gaming company. Players have more confidence playing in casinos and poker rooms with license.
In case of a settlement account opening banks insist on gambling license and especially while concluding agreements for receiving payments from bank cards.
In many countries operating a gambling business without a gambling license is illegal and it may result in termination and criminal responsibilities.

You can apply for a gambling license in one of the countries listed below:

Gambling License: Antigua and Barbuda

Antigua and Barbuda is a twin-island nation located in the Eastern Caribbean. Antigua and Barbuda was one of the first jurisdictions to license interactive gaming and wagering companies in 1994. The internet gaming companies are classified as “Financial Institutions” and are subject to all the Anti-Money Laundering (AML) and Caribbean Financial Action Task Force (CFATF) requirements of the jurisdiction.

The licensing and regulation of online gambling services on the islands of Antigua and Barbuda is handled by the Financial Services Regulatory Commission’s Division of Gaming. The FRSC Gaming Division awards two types of licensees: interactive gaming and interactive wagering.

The gaming license is for casino and poker sites and the wagering license is for sports betting sites. It’s one of the offshore jurisdictions which contain the biggest number of registered online casinos.

For more information on Antigua’s interactive gaming and wagering laws and regulations see the following:

The Antiguan gaming regulations are enforced by the Antiguan Directorate of Offshore Gaming (the “Directorate”). For more information on obtaining a gambling license in Antigua and Barbuda please visit www.antiguagaming.gov.ag

Gambling License: Costa Rica

Costa Rica is the Mecca of online casinos and poker rooms because it has the best infrastructure available in the Caribbean basin – its reliable telecommunication system, its multilingual workers, and its lack of online gaming and Internet regulations. A lot of online casinos have chosen Costa Rica as registration country because of the fact that there are no direct prohibition on gambling business and no necessity to receive a special license.

There is no online gambling license in Costa Rica. A company incorporated under the laws of Costa Rica can operate an online gaming business. Companies operate under a “data processing” license.

Costa Rica is home to 200+ online gambling companies, without a legislation specifically dealing with gambling over the Internet. Legislation does exist to restrict land-based gambling, but these laws are not interpreted as extending to Internet gambling.

The requirements to obtain a license are:

Office Lease Contract
Health permit
Workers insurance policy

For more information please visit http://www.meic.go.cr

Gambling License: Kahnawake

Kahnawake is an Indian (native American) territory in Quebec, Canada.

The Kahnawake Gaming Commission is an organization that licenses a large number of online casinos and online poker rooms. The Kahnawáke Gaming Commission was established in June 1996. The Commission is empowered to regulate and control gaming and related activities within and from the Mohawk Territory of Kahnawáke. These gaming activities are regulated in accordance with the highest principles of honesty and integrity.

The fee for the initial application is C$15,000 plus an annual license fee of C$10,000

Visit http://www.kahnawake.com/gamingcommission for more information.

Gambling License: Panama

Panama adopted regulations governing the licensing of electronic games of chance and wagering activities in late 2002. Internet gaming companies domiciled in Panama enjoy complete tax exemptions. Customs duty concessions are given for imports needed to carry on Internet gaming. As long as the income made from Internet operations are to jurisdictions outside of Panama, there is no income tax, withholding tax, sales tax or VAT taxes. Offshore companies, such as online gaming companies are not subject to foreign exchange control. There is also a new call center incentive and training program that boast numerous qualified bilingual workers.

The regulations allow master licenses to be granted that are valid for up to seven years upon payment of a license fee of US$40,000. There is also an annual license fee of US$20,000. Master license holders may grant sub-licenses, which are subject to the annual fee. Applicants must pay all investigation costs incurred in the processing of the application. Operators must comply with money-laundering regulations and notify the Financial Analysis Unit of any suspicious transactions above US$10,000. An account must be maintained to guarantee payment to winners. Until now a very few companies have applied for the license, mainly due to the huge paper work and the cost of the gambling license.

Gambling License: Antilles Netherlands and Curacao

Within the Netherlands Antilles, Curacao offers gambling licenses for online casinos, poker rooms and sportsbooks. Gambling licenses are available through the Department of Justice or through sub-licensing from an existing gambling license holders. Licenses from the Department of Justice last for two years.

Gambling License: Gibraltar

All gaming operations in Gibraltar require licensing under the Gambling Ordinance 2005. Remote Gambling licenses, including for telephone and internet betting, are issued by the Government of Gibraltar.

Only companies with a proven track record in gaming, of reputable standing and with a realistic business plan can be granted gambling licenses. Gibraltar gaming licenses are generally difficult to obtain.

For more information on obtaining a gambling license in Gibraltar visit http://www.gibraltar.gov.gi/gov_depts/internet_gaming/internet_gaming.htm

Gambling License: Isle of Man

The Isle of Man specifically encourages the location of online gambling businesses: “The Isle of Man Government actively encourages the development of gambling and e-gaming business on the Isle of Man. It remains committed to delivering a stable government and strong regulatory environment, supported by a wide range of attractive Business Benefits.”

The Commission requires independent testing of software to ensure games offered are not rigged and will make accurate payment of player winnings. Games may only be offered by licensed, corporate operators. All operators must also establish bond arrangements to guarantee players will be paid in the event the licensee ceased operations for any reason.

Fees

GBP35,000 per annum
GBP1000 one off administration fee which is non-refundable

Duty

for gross gaming yield not exceeding £20 million per annum 1.5%
for gross gaming yield of more than £20 million per annum, but not exceeding £40 million per annum 0.5%
for gross gaming yield exceeding £40 million per annum 0.1%

For more information on how to obtain a gambling license in the Isle of Man please visit
http://www.gov.im/gambling/licensing/

Gambling License: Malta

Class 1 – Remote Gaming Licence for online gaming
Class 2 – Remote Gaming Licence for online betting office
Class 3 – Promotion and abet gaming from Malta
Class 4 – Hosting and managing only gaming operations, excluding licences itself.

Licences are issued for a minimum period of five years and may be extended for further periods of five years each.

Licensing Requirements

Obtaining a gaming licence in Malta is a serious affair and in the interest of the consumers and the local reputation, the Authority would require to know that the applicant can meet the licence obligations. The licensing procedure is quite extensive but thanks to the professionalism of the persons involved, this procedure should not take more than 5 to 6 weeks.

The application for a gaming licence requires the following documentation:

Detailed profile of the promoting company
A copy of the last audited accounts of the promoting company, where applicable
A business plan indicating the economic activity – including job creation if any – which will be carried out from Malta
A plan of the premises earmarked for adoption as a call centre.
Personal details of all shareholders having more than 5% interest in the local operations.

Basic Requirements

Both hardware and software involved in the operations must be located in Malta, and there exist companies that can provide this service without the need for the licensee to obtain its own premises.
The activities of the International Trading Company are limited to those carried outside Malta. No Maltese resident is permitted to place bets with such a company.

Licence Fees

On submission of application form – Lm1,000 (US$2,700) for any class of remote gaming licence.

On Issue of any Remote Gaming Licence – Lm3,000 (US$8100) per annum. Such a licence is normally issued for a 5 year period.

On application for renewal of any Remote Gaming Licence – Lm500 (US$1,350)

Taxation

On online gaming – Lm2,000(US$5400) per month for first six months and Lm3000(US$8100) per month for the entire duration of the licence period.

On Class 4 Licences – Lm0.0 (NIL) per month for first six months and Lm1,000(US$2700) per month for the next six months and Lm2000(US$5400) per month for the remaining period of the licence.

Online betting operations – one half of one per centum (0.5%) on the gross amounts of bets accepted

Online betting exchanges – one half of one per centum (0.5%) on the sum of all net winnings calculated per player per betting market.

Online pool betting – one half of one per centum (0.5%) on the aggregate of stakes paid.

Provided that in no case will the maximum of tax payable per annum by any licensee in respect of any one licence, exceed Lm200,000.

Company Registration

A Malta based gaming operation must be carried out by a Malta registered company as specified in Regulation 4 of the Remote Gaming Regulations (LN176/2004). Gaming companies are not subject to any special tax regime. In fact, online gaming operations may be carried out through a normal limited liability company registered in Malta under the Companies’ Act.

Taxation of Online Gaming Companies

Companies registered on or after 1st January 2007 are taxable at the rate of 35% however, shareholders are entitled to claim back a 6/7ths refund of the Malta tax upon distributions of profits. Alternatively, shareholders may claim a 2/3rds refund of the tax payable in Malta.

In addition, Malta does not levy withholding tax on any outbound distributions of dividends. The refund system and the absence of a dividend withholding tax ensures that profits derived by gaming companies are taxed and repatriated outside Malta in the most efficient manner.

EU Laws

The EU presently does not regulate gambling and in accordance with the EU principle of solidarity, EU member states are free to regulate the matter at a national level. In fact the EU welcomes Malta’s approach to attract and regulate the online gaming industry.

In a number of test cases, the European Court of Justice has held that the Treaty of Rome applies to the sector since online gaming is classified as a service and therefore guaranteed by one of the four freedoms enshrined in the treaty of Rome.

An important aspect to remember is that in order to benefit from the application of the Internal Market Principles and provide cross border services within the European Union one should be established in the EU. Malta, being an EU member since 1st May, 2004, offers such an opportunity which few other e-gaming jurisdiction can match.

What Malta Offers

Fiscal Benefits

Low taxation on gaming operations in Malta
Tax leakage in Malta may be as low as 5%
A wide network of double taxation agreements

Other Advantages

A sound legal and financial system
A sound ICT infrastructure
Legislation on betting and e-commerce
Strong regulatory bodies
A solid international reputation
Skilled work force
Low cost of doing business
State of the Art telecommunications facilities
An internal market of circa 500 million EU citizens.

Gambling License and Basic Considerations for Service Providers