Supreme Court of Canada declines to weigh in on the tax treatment of poker winnings

On June 4, 2026, the Supreme Court of Canada (“SCC”) dismissed the application for leave to appeal of three poker players in Philippe D’Auteuil, et al. v. His Majesty the King (case number 41975). The application for leave followed the Federal Court of Appeal (“FCA”) decision in Fournier-Giguere 2025 FCA 112, which dismissed the related appeals of the three poker players from the decisions of the Tax Court of Canada (“TCC”): (“Fournier-Giguere” 2022 TCC 132, “D’Auteuil” 2023 TCC 3, and “Berube” 2023 TCC 12).

Tax Court decisions on the tax treatment of poker winnings

The TCC held that the poker winnings of each of the three players constituted taxable business income on the basis that each of the players engaged in their poker play in a sufficiently commercial manner.

While the particular facts for each of the three poker players differed, each of the players had the following facts in common: they played predominantly online poker, they spent significant amounts of time playing poker, and they experienced consistent winnings over the years. Each player earned aggregate profits from poker ranging from $1.7 million to $4.4 million over the three to four year period under review.

In holding that the three poker players’ winnings constituted business income, the TCC relied on the following findings of fact with respect to each of the three poker players:

• they experienced consistent and sustained success, demonstrating that their poker play had the capability of generating profit;
• their consistent profits also allowed them to play poker to earn a living, and poker winnings were their main or only source of income;
• they behaved in a businesslike manner by implementing strategies depending on their opponents, and by using software programs to (a) gain insight on their opponents, (b) analyze their own strategies, and (c) track their earnings;
• they adopted objective standards of risk management or minimization and income maximization, namely: profit sharing agreements and having their play staked by other individuals; and
• they devoted almost all their time to poker, apart from when they were sleeping, eating or partying.

The judgment in Fournier-Giguere stood in stark contrast to the TCC decision in Duhamel 2022 TCC 66, which was rendered only five months earlier. In Duhamel, the TCC held that the taxpayer was not engaged in a business, with the result that his significant poker winnings did not constitute taxable income. In that case, Mr. Duhamel:

• won the majority of his winnings from a single, large tournament win at the World Series of Poker Main Event;
• incurred a total loss of approximately $1.3 million from playing poker between 2010 and 2018, excluding his large tournament win;
• had sources of income other than poker, including sponsorships, investments, and rental income;
• spent significant time on activities other than playing poker; and
• did not use software programs to assist his poker play, nor did he follow any business plan or serious strategy to help him win.

The differing outcomes in Fournier-Giguere and Duhamel demonstrate that the tax treatment of poker winnings requires a case-by-case analysis. Differences in the underlying facts can lead to markedly different tax consequences.

Federal Court of Appeal decision 

The FCA dismissed the appeals of the three poker players on the basis that there was no palpable and overriding error in the TCC decisions. Importantly, the FCA affirmed that the tax treatment of poker winnings is determined on a case-by-case basis through an analysis of the relevant facts.

The FCA clarified the legal test for determining whether an individual’s poker play was undertaken in a sufficiently commercial or “businesslike” manner. In particular, the indicia and sub-indicia to be applied in determining whether an individual’s poker play is undertaken in a sufficiently commercial manner are: (i) the profit and loss experience in past years; (ii) the taxpayer’s training; (iii) the taxpayer’s intended course of action; (iv) the capability of the venture to show a profit; (v) the management and minimization of risk; (vi) the taxpayer’s skill; (vii) the taxpayer’s calculating and disciplined engagement in the venture; and (viii) the time committed to the venture.

In dismissing the appeal in Fournier-Giguere, the FCA addressed the contrasting facts that were before the TCC in Duhamel to explain the differing outcomes. Specifically, the FCA emphasized that the facts in Duhamel differed materially from those of the three poker players.

Conclusion and takeaways

There is no bright-line test to easily determine whether a poker player is required to pay tax on their winnings. The FCA’s decision in Fournier-Giguere, in contrast to the decision in Duhamel, demonstrates that the case-by-case approach to the tax treatment of poker winnings can yield opposite conclusions in cases that may seem similar. Unfortunately for poker players, the SCC has declined to provide more clarity.

As such, Fournier-Giguere remains the only appellate-level decision in Canada regarding the tax treatment of poker winnings. The decision reinforces that the central question in each case is whether the individual conducted their poker activities in a sufficiently commercial manner, having regard to the various indicia the courts have identified as relevant. However, it is important to bear in mind that even the list of indicia provided by the FCA is non-exhaustive; thus, in a given case, other factors could also be relevant. Active poker players should consider obtaining advice regarding the reporting requirements in their particular situation.