TC09643 - [2025] UKFTT 01117 (TC)

By its skeleton argument the Appellant contended that the gaming payment which had been waived in respect of Free Spins was excluded from being treated as a gaming payment for the purposes of section 159(4) by virtue of section 159A either by way of operation of the conditions of section 159A(1) – (3) or (4) – (5).

On section 159A(1) – (3) it was contended “excluded winnings” are not limited to situations in which a gaming payment has been waived as the conditions prescribed in subsection (2)(a) and (b) are in the alternative. The Appellant accepted that the terms of (2)(a) were not met (on the basis that they lose the Waiver part). However, it was claimed, without substantive reasoning, that the provisions of (2)(b) were met, if interpreted through the lens of the explanatory note which focused on identifying how participation in the Free Spins was funded. As participation in the Free Spin was facilitated through winnings from the MR Spin and Free Spins, by their nature, had to be used for the purposes of further participation it met the terms of (2)(b)/(3).

In the alternative, it was contended that the terms of 159A(4) and (5) were met again, as interpreted through the lens of the explanatory note. Even less was said to elucidate this argument in the skeleton argument. In oral submissions, Mr De Haan contended that it was uncontentious that the Free Spin met the terms of subparagraph 4(a) and that a Free Spin, by its very nature was won in circumstances in which there was no choice of an alternative benefit, it was a case of play or don’t and that was not a relevant choice. As there was no restriction in the language of the first sentence of section 159A(4)(b) that the Free Spin had to have been won in a particular game, or through an offer in which the gaming payment was waived, it was plain that the Free Spin had been won through participation in remote gaming i.e. the MR Spin. Mr De Haan emphasised that where the draftsperson had wanted to be specific in their reference to a particular form or nature of gaming, they had been so specific by way of example he referred to section 159(5).

To support that the Free Spins were excluded under one or both of section 159A(1) – (3) or (4) – (5) it was contended that the consultation and responses to that consultation demonstrated that the overarching intention of the 2017 amendments were to bring within the scope of RGD only promotional free gaming. All subsequent free gaming was to be excluded and that should actively inform the interpretation to be put on the provisions.

Further support was said to be derived from an example of disproportionate taxation arising from an assumed situation where the Customer only ever deposits £10. Where that Customer then wins 500 Free Spins on the MR Spin, RGD would end up being paid on the 500 Free Spins which, if the stake on the relevant game were 10p, would result in more RGD having been paid than the total deposit taken from that Customer.