The Tax Court has ruled that although a taxpayer spent more than 1,000 hours playing video poker in 2003, he was not a professional gambler.As part of its decision, the court implied that playing video poker might never constitute a trade or business under Section 162 of the tax code. After noting that the petitioner, a Chicago building operating engineer, never adjusted his gaming strategy even when it became apparent that he never had a winning year, the court also said that it remained unconvinced that the petitioner’s gambling activity meets the standard for being a trade or business.

“We are not persuaded that an individual who gambles against a machine that is programmed by a casino can have, as his or her primary purpose, income or profit [one of the requirements for an activity to be considered a trade or business],” the court wrote. “After all, such a machine is on the floor to make money for the casino and is not there to provide income or profit for the casino’s patrons.”

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