GST on Contest Entry Amount for Online Gaming not in Line with the International Best Practices Report by India’s leading law firm

Press Release

• 06-01-2023

A report by Lakshmikumaran & Sridharan provides a detailed overview of the taxation regime followed by leading countries in the world

• Observes that most leading economies including the the UK, US, Australia and Singapore follow the ‘Tax on Gross Gaming Revenue (GGR)’ model
• Warns of loss of revenue to GoI & proliferation of illegal offshore betting and gambling platforms

Mumbai/Thiruvananthapuram, December 14, 2022: Ahead of the GST council meeting on December 17th, Lakshmikumaran & Sridharan (LKS), a premier full-service Indian law firm specialising in taxation, in a detailed whitepaper has  showcased international best practices in GST for online gaming. According to the report, most countries with a thriving online gaming industry follow a ‘Tax on Gross Gaming Revenue (GGR)’ model. It also cites examples of countries where high taxation and /or incorrect levy on the contest entry amount (CEA) led to revenue loss for the Government and encouraged the growth of the unauthorised offshore betting and gambling platforms.

In India, the online gaming industry currently pays GST at the rate of 18% on GGR amounting to over INR 2,200 crore per year. The report comes at a time when the Group of Ministers’ panel  on Casinos, Race Courses and Online Gaming (GoM) is likely to recommend a GST levy of 28% on online gaming, irrespective of whether it is a game of skill or chance, and may leave the final decision on the calculation method to the GST Council. The GoM panel had earlier recommended a levy of 28% on CEA for the online gaming industry, which may make the industry unviable.

Commenting on the report, L Badri Narayanan, Executive Partner, LKS said “Countries globally are adopting progressive tax practices that benefit both the industry and the Government. Through our research, we found out that the ‘Tax on GGR’ model for online gaming provides the most efficient, win-win arrangement - that allows the industry to grow in a responsible manner while also adding revenues for the exchequer.”

He added, “In India, a departure from international best practices will not only blur the well-established variance between games of skill and games of chance, but also eventually lead to value erosion for more than 500+ Indian start-ups currently valued over USD 20 billion, which have attracted more than USD 2.5 billion in investments and FDI. A prudent taxation regime for the sector will plug the potential of revenue leakage and funding of illicit activities while supporting the growth of India's digital economy ambitions.”

The report also highlights important case studies from the UK and France and recommends that it must be considered by the GST Council. Earlier, the UK was levying 6.75% on CEA. However, it soon shifted to 15% GST on GGR as the earlier tax model was causing the movement of bookmakers to offshore tax havens, leading to a loss of revenue for the government. The report, further, noted that the shift from turnover tax at the rate of 7% to GGR at 15% in the UK led to new investments and created employment opportunities.

France, one of the largest nations by GDP that has regulated online gaming, was following the model of taxing on CEA. However, in 2020, the French Senate proposed a Budget Bill to amend the tax model from CEA to GGR with respect to the calculation of tax on gaming, as it realised that the industry was being unfairly taxed on money that wasn't their revenue.

The report observes that the proposed increment in tax structure from 18% on GGR to 28% on CEA will increase the tax liability for gaming companies by more than 1455 % of the current amount, closing the curtains on legitimate operators, and giving rise to proliferation of illegal offshore operators. As global markets unilaterally move to the GGR model, the report affirms that India needs to consider sustainable international practices and favour progressive laws over a prohibitive taxation regime to realize the collective vision of a ‘Digital India’.

Currently, India has over 950 gaming companies and more than 500 online skill gaming start-ups with at least 15,000 game developers with the potential to create 1.6 lakh skilled workforce. With over INR 20,000 crore in FDI, the industry boasts of one listed company, three unicorns and hundreds of ‘soonicorns’. Further, the Supreme Court of India and multiple High Courts, have consistently held online skill gaming to be distinct from gambling and betting, opining the former to be a legitimate business activity protected under Article 19 (1) (g) of the Constitution of India.

About Lakshmikumaran & Sridharan

Lakshmikumaran & Sridharan (LKS) is a premier full-service Indian law firm specialising in areas such as corporate & M&A/PE, dispute resolution, taxation and intellectual property. The firm, through its 14 offices across India, works closely on litigation and commercial law matters, advising and representing clients both in India and abroad. The firm has handled more than 30,000 litigation cases before various forums including 2,000 cases before the Supreme Court of India. Over the last 37 years, the firm has worked with over 15,500 clients which range from start-ups, small & medium enterprises, to large Indian corporates and multinational companies.

The professionals within the firm bring diverse experience to service clients across sectors such as commodities, automobile, manufacturing, healthcare, IT/ITeS, FMCG, hospitality, real estate, petrochemicals, e-commerce, fintech, big data, renewables, cryptocurrency, gaming and sports. The firm takes pride in the value-based, client-focused approach that combines knowledge of the law with industry experience to design bespoke legal solutions.

The firm’s driving principles to achieve our vision are integrity, knowledge, innovation, and collaboration.

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