Today the topic is taxation and coin-operated claw machines that are amusement games from which the player tries to pick up a toy with the claw and drop it in the chute. I’m not sure these are all coin-operated today as some likely only take folding money and some might take your credit or debit card.

A ruling from the Texas Comptroller of April 24, 2024 caught my attention. There are all types of taxes and one in Texas is the coin-operated machine tax! It defines the machine and like many taxes, has at least one exemption that then creates added complexity to define that exception. Here the exception is for “amusement machines designed exclusively for a child.” This means a “machine that can only be used for skill or pleasure by a child under 12 years of age.”

Well, what does exclusively mean and how does one really know if a machine is for ages 11 and below rather than ages 12 and more? Well, in a 2002 ruling, the comptroller defined “exclusively” as a machine “designed such that no person other than a child can use the machine.” Also, “it doesn’t matter if an immature adult or older child actually uses the machine” because it is the design that is relevant and the kind of prize a player can win is not relevant.  That seems odd, what if the prize is a pack of cigarettes?

I’m sure the Texas comptroller must have better things to do than determine if a coin-operated machine is for kids age 11 and under rather than for immature adults or for anyone.

Ok, this is a bad way to draft a tax rule. At least two problems here. Coin-operated is too limiting if that means actual coins are dropped into a machine as these machines will certainly get converted to Apple Pay or debit/credit card tap as fewer people carry real money around. And there is no need for any exception here (I think that is true for most taxes – exceptions should be avoided).  If there is some need to provide relief to certain machine operators, find another way such as have them apply for a grant based on financial need (I’d say an income tax credit but Texas doesn’t have a personal income tax).

And before leaving these claw machines, back in 2001, the IRS had a funny TAM on the topic. The issue was whether the items inside the machine such as stuffed animals or novelty toys or other prizes were inventory to which the unicap rules of §263A would apply. The conclusion was yes!

The taxpayer claimed that the prizes were supplies for tax purposes, but called them inventory on its balance sheet. The IRS also found that the taxpayer was selling these items and title transferred to the winner, making them merchandise!

I call this funny because either the drafter of TAM 200121006 was very skilled at using these claw machines or had never used one. I think most people put money in and don’t get anything making it clear this is not the way a retailer sells goods. These should have been treated as supplies consumed in the process of providing entertainment services. The TAM does provide a good review of code, regs and cases on inventory for tax purposes.

One more relevant tax here is sales tax. As supplies, sales tax would be paid by the buyer (owner of the machine) when they buy the prizes.

Tax policy relevance here … the Texas ruling is a reminder that just about anything can have a special tax on it, but if too special and with exceptions, it gets complicated quickly. It would be better to find a more simple and equitable way to generate revenues (equitable in that similar businesses might not have a special tax).

What do you think? Professor Annette Nellen, San Jose State University, San Jose, California.