ITG FAQ #5-Under IGRA, what conditions must be met to distribute net gaming revenue to tribal members in the form of Per Capita payments?


Section 11(b)(3) of the Indian Gaming Regulatory Act, 25 U.S.C. 2701 (1988) provides that:

Net revenues from any class II gaming activities conducted or licensed by any Indian tribe may be used to make per capita payments to members of the Indian tribe only if --

      (A) the Indian tribe has prepared a plan to allocate revenues to uses authorized by paragraph (2)(B);
      (B) the plan is approved by the Secretary as adequate, particularly with respect to uses described in clause (i) or (iii) of paragraph (2)(B);
      (C) the interests of minors and other legally incompetent persons who are entitled to receive any of the per capita payments are protected and preserved and the per capita payments are disbursed to the parents or legal guardian of such minors or legal incompetents in such amounts as may be necessary for the health, education, or welfare, of the minor or other legally incompetent person under a plan approved by the Secretary and the governing body of the Indian tribe; and
      (D) the per capita payments are subject to Federal taxation and tribes notify members of such tax liability when payments are made.

Note: Concerning (C) above, FAQ #2 above refers to a qualifying deferral option such as a grantor trust arrangement outlined in Revenue Procedure 2011-56.

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