Non-Fungible Tokens, known by the acronym NFT, are becoming a real and operational alternative for entrepreneurs, artists or creators to protect and monetise their innovations, works or creations.
With this new way of protecting and at the same time monetising, the art world, and specifically crypto-art, is experiencing spectacular growth. The year 2021 has marked a turning point with important operations such as the auction of the work “The First 5000 Days” by Mike Winkelman, better known as Beeple, for 69.3 million euros; or the sale of the first tweet that Jack Dorsey, founder of Twitter, typed on 21 March 2006, “Just setting up my twttr” for a value of 2.5 million dollars.
This exponential increase in NFT purchases raises questions about regulation and in particular the legal implications for taxation.
There is currently no specific regulation governing the buying and selling of CFTs, but this does not mean that these transactions are exempt from taxation. NFTs are unique digital assets, which, like any other cryptoasset, have to be taxed, as they represent a capital gain.
What taxes are payable on the sale of NFTs?
Like any similar transaction, the sale of NFTs is subject to taxation and depending on the person making the sale, different taxes are payable.
Where the person making the sale is a businessman or professional acting in the course of his economic activity, VAT will generally apply. For all other sales, with certain exceptions, the transfer tax applies.
The user who buys an NFT will be the one who will have to pay VAT or transfer tax.
On the other hand, with regard to the tax rate to be applied, the law distinguishes between movable goods, real estate and rights in rem. For this purpose, each type of NFT must be analysed to determine to which category it belongs.
NFTs in the income tax, how is their sale taxed?
The first question we can ask ourselves is: Does the sale of an NFT have to be included in personal income tax? The answer is yes, and the way in which they should be taxed will depend on the activity of the person making the sale.
If the person making the sale of the NFT is a professional and his business is related to the sale of NFTs, in this case the profits obtained from the sale derive from his business and professional activity, and will therefore be included as income from his economic activity.
However, when the person making the sale is a private individual who does not engage in a professional activity related to NFTs, in this case it would be considered a capital gain. This type of taxation, depending on the capital, will vary between:
- 19% if taxable income is between 0 and 6000 euros
- 21% if taxable income is between 6000 euros and 50.000 euros
- 23% if the taxable income is between 50.000 euros and 200.000 euros
- 26% if the taxable income is more than 200.000 euros
In addition, it should be noted that since the entry into force of Law 11/2021, of 9 July, on the prevention and fight against tax fraud, the supplier or taxpayer is obliged to notify the Inland Revenue of the ownership of the NFT, when it exceeds the value of 50,000 euros. The notification to the Tax office will be made through form 720 of the Informative Declaration on Assets and Rights Abroad.
Should non-residents in Spain be taxed on gains from the purchase and sale of NFTs?
Non-resident income tax is levied on income obtained in Spanish territory by non-residents in Spain, relating to capital gains or losses, income from work, movable and immovable capital and income from economic activities.
The sale of NFTs generates a gain in the value of crypto-assets, and if a sale of crypto-assets in exchange for euros takes place, losses or gains could arise.
Thus, non-residents must pay tax in Spain when the capital gain from the sale of the NFT is obtained in Spain or when the exchanger is located in Spanish territory.
It is necessary for any user who intends to enter the world of Crypto Art to know all the tax aspects that revolve around it, in order to avoid possible penalties that may arise from the purchase and sale of NFTs.
At Navas Cusi Abogados we are aware of the impact of NFTs on our society and the value they generate, and therefore offer comprehensive advice on all tax aspects regarding the purchase and sale of NFTs in accordance with current legislation.