In review: licensing and taxation of gambling activities in Macau

All questions

The licensing process

i Application and renewal

Casino concessions are awarded pursuant to a mandatory public tender and granted through an administrative concession contract.

Applicants must be limited liability companies by shares incorporated in Macau, with a minimum registered share capital of 5 billion patacas; and shall include in their scope of business the operation of casino games of chance, and a Macau permanent resident holding at least 15 per cent of the applicant's share capital as managing director.

Applicants (as well as their shareholders holding 5 per cent or more of the share capital, directors and key casino employees) need to be found suitable to be granted a casino concession (through the assessment of suitability by DICJ), and to demonstrate adequate financial capacity to operate the casino concession (through proper guarantees provided either by financial institutions or the applicant's dominant shareholders).

The suitability assessment is based on specific forms following closely the multi-jurisdictional personal history disclosure form of the International Association of Gaming Regulators. Suitability and financial capacity must be maintained throughout the concession period, meaning casino concessionaires are subject to permanent and continuous monitoring by DICJ.

The Gaming Law only allows for up to six casino gaming concessions to be awarded. No sub-concessions are now allowed.

A public tender may be simple or restricted with prior qualification and include one or more consecutive consultation stages with applicants, which are intended for the submission of award proposals and their consideration.

The Chief Executive appoints a tender commission to conduct the public tender.

The tender programme shall specify, inter alia, the minimum requirements for applicants' admission and the award proposals. It shall also contain the criteria for awarding casino gaming concessions. Pursuant to Macau law, awards can only be made to applicants that, in addition to being deemed suitable and with financial capacity, present the most advantageous conditions for the MSAR in the proper operation of casino games of chance.

To be admitted to the tender, bidders shall provide a guarantee deposit for admission to tender in an amount determined by order of the Chief Executive.

Casino concessions are granted by means of an order of the Chief Executive based on a substantiated report by the tender commission through an administrative concession contract, and for a period not exceeding 10 years. Moreover, once the maximum term has been reached, the Chief Executive may, exceptionally, extend the duration of the concession, one or more times, provided that does not exceed in total three years.

As for pari-mutuels and operations offered to the public, in the absence of regulations on the granting of concessions for operating these types of gaming, the incumbent concessionaire is chosen by direct award following the discussion and negotiation of the terms and conditions under which the operation is to be conducted.

ii Sanctions for non-compliance

The government authorities that enforce prohibitions on gaming activities are DICJ, as the primary regulator of all types of gaming, and the judiciary police.

Sanctions of a criminal nature

The Basic Law and the Criminal Code establish the principle of legality by which a criminal offence must be previously declared in law.

Gaming-related crimes are not an exception, and the laws and regulations setting out criminal offences strictly related to or arising from gaming activities comprise:

1. Law No. 8/96/M of 22 July 1996 (illegal gambling), which sets the sanctions applicable to a significant number of unlawful gaming-related activities;
2. Law No. 9/96/M of 22 July 1996 (criminal offences related to animal racing), which sets the sanctions applicable to unlawful animal race-related activities;
3. Law No. 6/97/M of 30 July 1996 (organised crime), which defines what shall be considered as a criminal association and sets the sanctions applicable to activities carried out by individuals who are part of criminal organisations;
4. Law No. 2/2006 of 3 April 2006 (AML), which sets the sanctions applicable to money-laundering activities, as supplemented;
5. Law No. 3/2006 of 3 April 2006 (terrorism financing), which sets the legal framework and the sanctions applicable to individuals involved in terrorism financing; and
6. Law No. 6/2016 of 29 August 2016 (enforcement of freezing of assets), which sets the legal framework to enforce UN Security Council sanctions involving the freezing of assets and funds of identified terrorists.

The Gaming Law establishes the crime of simple disobedience (Article 48-B), applicable to whoever refuses to allow the inspection staff of DICJ or the Financial Services Bureau to enter and remain in places subject to inspection, until the conclusion of the inspection actions, or the exhibition and supply of documents and data requested, under the terms of the law, by the inspection staff.

Law No. 16/2022 establishes the crime of illicit deposit (Article 40), applicable to the casino concessionaires, gaming promoters, management companies, and the directors or representatives, or persons under their authority, or a collaborator, that deposit funds not meant for gaming, where 'deposit' defined as the act of depositing funds with the concessionaire, gaming promoter, collaborator or management company. The crime of illicit deposit is punishable with two to five years of imprisonment for individuals and pecuniary fines up to 10.5 million patacas or judicial dissolution for legal persons.

The crime of disobedience (Article 41) is also established under the same terms as the Gaming Law.

Sanctions of an administrative nature

Until the legislative and regulatory reform of 2022, administrative offences provisions relating to gaming activity could only be found in Law No. 8/96/M of 22 July 1996 (illegal gambling), Law No. 10/2012 of 27 August 2012 (entry, work and gaming restrictions in casinos), as amended, and Administrative Regulation No. 6/2002 of 1 April 2002 (gaming promotion activity), as amended, and in other ancillary legislation such as Law No. 7/89/M of 4 September 1989 (advertising activity), Decree Law No. 47/98/M of 26 October 1998 (administrative licensing of certain economic activities), Law No. 2/2006 of 3 April 2006 (AML), as amended, and Law No. 5/2011 of 3 May 2011 (ban on smoking), as well as DICJ instructions that foresee the application of sanctions.

Since the amendment to the Gaming Law, administrative offences with penalties have been defined. Fines vary between 100,000 and 500,000 patacas for less serious offences (e.g., breach of the duties of accounting and internal controls), between 600,000 and 1.5 million patacas for serious offences (e.g., failure to increase the share capital), and between 2 and 5 million patacas for most serious offences (e.g., operation of other games of chance without authorisation and operation of games in properties not owned by the concessionaire). Additional penalties may be imposed, including the closure of casinos or the publication of administrative sanctions decisions.

Law No. 16/2022 also establishes administrative offences with pecuniary fines varying from 100,000 to 500,000 patacas (e.g., failure to submit the management contract), 600,000 to 1.5 million patacas (e.g., failure to establish a mechanism of communication with the gaming promoters) and 2 to 5 million patacas (e.g., accepting gaming promotion services from unlicensed entities, payment of commissions in an amount higher than the limits established). Additional penalties may also be imposed, including the partial or total closure of the gaming zones for one month to one year.

Sanctions of a contractual nature

Casino gaming concession contracts stipulate sanctions, with the nature of penalty clauses, in the case of assignment, transfer, disposal or encumbrance of the operation of a casino or gaming area. The penalty may vary between 600 million and 2 billion patacas.

Moreover, termination of concessions may occur (see Section I.ii) and contractual sanctions include casino concession sequestration, redemption, rescission or termination (based on non-compliance or upon public interest).

Sequestration may be actioned whenever an unjustified operational interruption occurs or is imminent, or disturbances or serious organisational deficiencies to the functioning of the concessionaires or in the general assets' condition occur.⁶

Redemption is a unilateral option right of the MSAR to resume the operation of the gaming reserved to the Region by an act of the government.⁷ Concessionaires have the right to be compensated.

The government may unilaterally terminate the concession (see Section I.ii). It may also exercise the right of termination of the concession irrespective of the concessionaire's compliance with its legal and contractual obligations (termination upon public interest grounds).⁸ In this case, the casino concessionaire is entitled to fair compensation, taking into account its investments and the remaining time of the concession.⁹

Taxation

i Casino gaming

Casino concessionaires are bound to pay a special gaming tax, an annual premium, a special premium and two special contributions. They are also subject to the payment of complementary income tax.

Special gaming tax

Casino games of chance are subject to a special gaming tax of 35 per cent levied on the GGR, applicable to all games, including gaming machines.

No offset of uncollectable gaming debts is allowed.

Annual premium

As a consideration for the operation of casino games of chance, an annual premium comprising a fixed and a variable portion is due.

The fixed portion is determined by order of the Chief Executive. The variable portion takes into consideration the following criteria: number of casinos, number of tables and gaming machines, games operated and location of the casinos, as well as other relevant criteria that the government may determine.

Currently, the fixed portion is determined by the Order of the Chief Executive No. 215/2001 of 30 October 2001 and is set at 30 million patacas. The variable portion is based on the number and type of gaming tables and gaming machines operated: 300,000 patacas per VIP gaming table; 150,000 patacas per non-VIP gaming table; and 1,000 patacas per gaming machine.

Concession contracts also establish, regardless of the number of tables operated at a given time, a minimum guaranteed amount for the variable portion.

Special premium

A special premium was introduced with the amendments to the Gaming Law. It is due if a gaming table or machine does not reach the annual minimum gross revenue determined by a dispatch of the Chief Executive. The special premium is currently set at 7 million patacas per gaming table and 300,000 patacas per gaming machine (Dispatch of the Chief Executive No. 162/2022 of 26 August 2022). The special premium corresponds to the special gaming tax due on the difference between the GGR generated and the minimum GGR per gaming table and machine set.

Special contributions

Casino concessionaires are required during the term of a concession to make two different contributions: one of an annual amount corresponding to 2 per cent of the GGR to a public fund whose purpose is the promotion, development or study of actions of cultural, social, economic, educational, scientific, academic and philanthropic nature, and another of an annual amount corresponding to 3 per cent of the GGR to urban development, tourism promotion and social security.

The Gaming Law states the possibility of the Chief Executive reducing or exempting the special contributions in the case of:

1. expansion of customer markets by the casino concessionaires; and
2. negative impacts on the overall economy of the MSAR and the operation of the casino concessionaires of extraordinary, unforeseen events or force majeure.

Chief Executive Dispatch No. 216/2022 of 26 August 2022 sets out the concrete criteria, stating that a reduction or exemption takes into consideration the calculation of the GGR generated by the expansion of foreign customers' markets by casino concessionaires.

Complementary income tax

Casino concessionaires are subject to complementary income tax levied on their profits.

Although the Gaming Law allows the Chief Executive to temporarily and exceptionally exempt concessionaires from the payment of the complementary income tax, as of April 2023, no exemption was granted.

The payment of dividends is also subject to complementary income tax.

ii Pari-mutuelsHorse racing

Horse-racing operators are subject to paying an annual rent of 15 million patacas and a tax on the total annual amount of the bets registered in the totaliser as follows:

1. on the difference between 2.5 billion and 3 billion patacas, 0.5 per cent;
2. on the difference between 3 billion and 3.5 billion patacas, 1 per cent;
3. on the difference between 3.5 billion and 4 billion patacas, 1.5 per cent;
4. on the difference between 4 billion and 4.5 billion patacas, 2 per cent; and
5. above 4.5 billion patacas, 2.5 per cent.

Moreover, in consideration for the (last) renewal of the concession (until 31 August 2042), the concessionaire has agreed to be bound to gradually increase its share capital until 31 December 2023, up to a minimum of 1.5 billion patacas.

On 31 December 2018, new obligations and deadlines (up to 31 December 2026) for completion were imposed on horse-racing concessionaires to comply with a 1.5 billion patacas investment plan. These commitments include renovating the equine swimming pool, stables, central building, stands, tote board and tracks (turf and sand). Other ancillary obligations include constructing hotels, apart-hotels and tennis courts, shopping malls, offices and parking, a theme park and riding school, and other surrounding public areas access. Non-compliance with the deadlines constitutes a violation of the concession and may cause the termination of the concession contract.¹⁰

iii Operations offered to the publicInstant lotteries

The instant lotteries operator is subject to paying an annual rent of a minimum of 1 million patacas, calculated in accordance with the following:

1. sales of zero to 10 million patacas, rent of 1 million is due;
2. sales of 10,000,001 to 30 million patacas, rent of 12 per cent of the excess is due;
3. sales of 30,000,001 to 45 million patacas, rent of 13 per cent of the excess is due;
4. sales of 45,000,001 to 60 million patacas, rent of 14 per cent of the excess is due;
5. sales of 60,000,001 to 80 million patacas, rent of 16 per cent of the excess is due;
6. sales of 80,000,001 to 100 million patacas, rent of 18 per cent of the excess is due; and
7. sales of 100,000,001 patacas and above, rent of 20 per cent of the excess is due.

Sports lottery (football and basketball)

The sports lottery operator is subject to paying an annual rent, with the minimum being 6 million patacas, calculated in accordance with the following:

Gross revenue (patacas)	Rate (per cent)	Rent due (patacas)	Rent due, accumulated (patacas)	Average rate (per cent)
Zero to 30 million	20	6 million	6 million	20
30,000,001 to 40 million	22	2.2 million	8.2 million	20.5
40,000,001 to 50 million	24	2.4 million	10.6 million	21.2
50,000,001 to 60 million	26	2.6 million	13.2 million	22
60,000,001 to 70 million	28	2.8 million	16 million	22.86
70,000,001 to 100 million	30	9 million	25 million	25
100,000,001 and above	25

Gross revenue is defined as the difference between the total amount of sales and the amount that, under the concession contract, shall not be retained by the operator.

Chinese lotteries

The Chinese lotteries operator is subject to paying an annual premium of 500,000 patacas, an annual rent of 23 per cent of the GGR (defined as the difference between the ticket sales and the premiums paid), and an additional 5 per cent for the Macau Foundation and 1 per cent for the Montepio Oficial de Macau.

iv Gaming promoters

Gaming promoters are also subject to paying a special tax on the commissions received by the casino concessionaires. The tax rate is 5 per cent and is discharging in nature.

The limit of the commissions to be paid to gaming promoters is set at 1.25 per cent of the net rolling, regardless of the basis for calculation.

v Gamblers

No taxes are levied on gamblers' winnings.