Recently we have witnessed an exponential increase in transactions carried out with cryptocurrencies (in regulatory language, “virtual currencies”), which is why, together with the fact that it is difficult to trace by Public Administrations, it has forced them to create a regulatory framework that still has many relevant issues to resolve.
Broadly speaking, the following groups of transactions with cryptocurrencies can be distinguished:
- Trading and swaps.
- Staking, custody and deposit
The tax obligations will vary depending on what transaction is carried out and also on who is carrying it out, whether it is a legal entity, a self-employed or an individual.
Trading and swaps:
a) For oneself: it is not considered an economic activity, so it will not be necessary to register with the IAE; It is also an activity subject to but exempt from VAT based on article 20.Uno.18.j) of the Spanish VAT Law. It will be taxed as a capital gain or loss in the Personal Income Tax (“IRPF”) savings base (“base del ahorro”) and the tax will accrue when the sale takes place. On the contrary, if we are looking at capital gains from forks, airdrops, referrals or NFTs, it will go to the general base (“base general”).
b) Service provided by a third party (exchanger): the exchanger that provides this service to third parties must register with the IAE for the economic activity that it carries out. it carries out transactions subject to but exempt from VAT based on article Uno.18.m) of the Spanish VAT Law.
Mining: it consists of unlocking existing cryptocurrencies, for which a return is obtained.
It is considered that whoever carries it out must register with the IAE; Based on the doctrine of the General Directorate of Taxes (hereinafter, “DGT”), these transactions are not subject to VAT. The VAT borne by the activity cannot be deducted.
Custody: consists of the storage of third-party cryptocurrencies. The performance is obtained by charging a commission.
The administrative doctrine equates this activity to the rental of safe deposit boxes. It is an activity subject to and not exempt from VAT.
Staking: consists of acquiring and blocking cryptocurrencies in deposits to be randomly selected. The performance is obtained by receiving cryptocurrencies as a reward for this block.
It is exempt from VAT if it is done directly by the investor, while it is not exempt if it is a service offered by an exchanger to third parties. It is not clear whether the return must be taxed as a return on capital (“base del ahorro”) or as a capital gain to the general base (“base general”), this matter must be clarified by the tax legislator.
Since 2021, a new box has been created in Form 714 of the Wealth Tax to declare the amount in cryptocurrencies at the end of the year.
In addition, as of the fiscal year 2022 (to be presented in March 2023) it is mandatory to include it in Form 720 if they are deposited abroad, and the specific thresholds established by the regulations of said Form are exceeded.
The regulation and doctrine in this regard are especially limited, so it is expected that in the future the currently existing doubts will be clarified.
One of the pending questions to be resolved is the accounting of cryptocurrencies in companies. Although further development is expected in the future, for the time being, following the Resolution of March 5, 2014, of the ICAC and Consultation 4 No. 120/2019 of the BOICAC, it is established that:
- When cryptocurrencies are held for sale in the ordinary course of business, they should be accounted for as Inventory.
- Otherwise, it is a long-term investment and accounted for as an Intangible Asset. In this case, although nothing is specified in this regard, it is understood that it can be depreciated in 10 years for accounting purposes and in 5 years for tax purposes, provided that the requirements for the application of the Small Entities Regime (“Entidades de Reducida Dimension”) are met.
The speed at which new formulas for the use of cryptocurrencies are created makes it inevitable that accounting and tax regulations constantly lag behind economic reality.
The importance of the correct application of tax obligations on cryptocurrencies is even greater since the approval of Law 11/2021, of July 9, against Tax Fraud, which establishes the obligation to inform the Tax Administration of the services provided on behalf of third parties about the transactions carried out with cryptocurrencies, in which the codes of the transaction, the NIF of each client and the date of initial registration in the platform of each user must also be informed.
Regulatory changes of tax relevance are currently being processed through the Royal Decree of 06-17-2022, which is still pending approval, as well as at a European Union level, work is being done on the MICA Directive, aimed mainly at investor protection.
For any questions about the current regulation and the changes that occur in this regard, do not hesitate to contact our tax advisors in Barcelona by email or phone.