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the Oneida Tribe and therefore are not per capita payments under
the Indian Gaming Regulatory Act (IGRA), Pub. L. 100-497, 102
Stat. 2467 (1988), 25 U.S.C. secs. 2701-2721 (2000).
The record in this case is insufficient for us to draw a
conclusion regarding whether these payments would constitute per
capita payments as that term is used in the IGRA. Mr. Doxtator
testified at trial that all Tribe members under age 59-1/2
received identical $1,500 payments, while older Tribe members
received larger payments. There is no evidence corroborating Mr.
Doxtator's testimony that payments to Tribe members varied
according to age. Under the IGRA, revenues from Indian gaming
activities may be used to make per capita payments to tribe
members only under arrangements that have been approved by the
Secretary of the Interior. See 25 U.S.C. sec. 2710(b)(3),
(d)(1)(A)(ii); 25 C.F.R. secs. 290.2, 290.5 (2004). On this
record, we are unable to determine whether the payments were
distributed without the Secretary's approval, in contravention of
the IGRA, or whether the Secretary approved per capita payments
that varied by age. In these circumstances, we conclude that
petitioners have failed to meet their burden of showing error in
respondent's determination that the payments were per capita
payments.
In any event, these payments would be subject to Federal
income tax regardless of their status as per capita payments.
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