(Finance) – The phenomenon of cryptocurrencies has been regulated, limited to tax aspects, in the 2023 budget law, which expressly provides for the taxation of “crypto-assets”, introducing a new category of “different income”. There has been much debate in recent years about the legal framework of all the realities developed on the basis of blockchain technology, including cryptocurrencies (Bitcoin, Ethereum, etc.) but also NFTs and metaverse. The recent failure of some decentralized finance projects or in any case linked to these technologies (such as the collapse of the earth/moon and the FTX scandal) has meant that many parties have clamored for a legal regulation of these phenomena and , in October 2022, the European Council approved the proposed Regulation on cryptocurrency markets (markets in crypto-assets -MiCA). The Italian legislator has not dedicated an organic discipline to these issues, even if in 2018 a definition of blockchain (as technologies based on distributed ledgers) and smart contracts was given (by Decree-Law 135/2018). But the first sector of the Italian legal system that inevitably had to deal with these issues is the tax sector. For some years now there has been a practice of the Revenue Agency which deems capital gains achieved thanks to cryptocurrencies subject to taxation, and today the budget law that has just been approved provides for a specific discipline. We asked the prof. Carlo Cicala, lawyer and director of Criptolex.it to explain the main innovations of the new legislation.
What are the most important aspects defined by the new rules on “Crypto-assets” contained in the 2023 budget?
“First of all, we must appreciate the effort that has been made in conceiving the regulatory system, which presupposes knowledge of technologies derived from the blockchain, as emerges from reading the explanatory report. First of all, it is certainly positive that we have taken care to give a definition of crypto-asset as ‘digital representation of value or rights that can be transferred and stored electronically, using distributed ledger technology or similar technology’.That said, we can divide the new rules into two groups: on the one hand there they are those that look to the future, i.e. that regulate taxation for operations carried out from 1 January 2023 (date of entry into force of the Budget Law), and on the other hand those applicable to what happened in the past”.
Let’s start with the present. What are, in summary, the rules in force today?
“As regards the present and the future, a new category of ‘other income’ has been specifically envisaged to be subject to taxation at the rate of 26% (art. c-sexies of art. 67 TUIR). It consists of capital gains achieved thanks to crypto-assets, but only for the part higher than 2,000 euros in the tax period. Capital losses are also fiscally relevant, specific rules are envisaged to deduct them in subsequent tax periods (no later than the fourth) to those in It is then established that the possession of crypto-assets must be subject to tax monitoring (regardless, therefore, of the fact that capital gains have been achieved) and that the taxpayer can choose the option of administered savings or that of savings managed through authorized banking and financial intermediaries.It is possible to exercise the option for administered savings even in the case in which the key rivata is held by non-financial operators (for example, the exchange). Finally, the stamp duty is introduced”.
Can we therefore say that the new discipline has followed the orientation that the Revenue Agency has followed in the past?
“Surely this seems to be the intention of those who wrote the new rules. We know that the Agency, in its circulars, has always assimilated, of course only from a fiscal point of view, the possession of cryptocurrencies to that of foreign currencies, so to subject the relative and possible capital gain to the taxation of 26% envisaged for “other income”, but only if – as in the case of the possession of foreign currencies – the average balance in the wallets had exceeded a value of Euro 51,645.69 for at least seven continuous working days in the tax period.The new rules, therefore, classify in a specific and new category of “different incomes” what the Agency, in an interpretative way, assimilated to an already existing category of “different incomes”. The rate is the same, but the criteria for its application are different. With the new forecasts, the need to have exceeded the stock of 51,645.69 euros disappears. So, for example, from today on, a gi allowance of 10,000 euros to trigger the tax obligation, but the tax-relevant capital gain will only be that greater than 2,000 euros. But the most interesting, and also problematic, aspect of the entire subject, again with regard to the past, concerns the legitimacy of the behavior of the Agency which, in the absence of a specific regulatory provision, deemed a phenomenon subject to taxation, that of the capital gains deriving from cryptocurrencies, by virtue of an assimilation of the latter to foreign currencies, an assimilation which has been criticized by many, precisely due to the fact that the two cases are structurally distinct.
We are therefore faced with a rather singular phenomenon, even if not new to the logic of tax law: a rule of law regulates a subject in a partially different way (although in some respects similar) to the way in which the Tax Agency revenue considered considered the same phenomenon”.
Does the new discipline also include rules applicable to past years?
“Yes. Whoever wrote the new regulations, as can also be seen from reading the explanatory report, is well aware of the opinion expressed by the Agency, and the intention also emerges to save the payment of taxes, which has already taken place, by the taxpayers who have complied with this opinion, following what is reported in the Circulars. This can be clearly understood by reading the provisions concerning the “regularization”, paragraphs 140 to 143, as well as those relating to the “redetermination of the value” (paragraphs 133 to 139 It is clear that, with the provision of a specific procedure for regularization, the fact that the non-payment of taxes, in the past, constituted an irregularity is assumed. But even more important, on the subject, is the paragraph 127: here it is expected that the capital gains made ‘before the effective date of this law’ are considered realized pursuant to the discipline of other income (art. 67 TUIR).In the same sense the R is very clear illustrative statement, according to which, as a result of the new forecasts, capital gains from crypto-assets ‘will no longer be included’ in the forecasts applicable to foreign currencies, thus assuming that, in the past, they should have been considered included in this category”.
Has the assimilation to foreign currencies been criticized?
“The assimilation of cryptocurrencies to foreign currencies has been, in my opinion, rightly contested several times in the past, and some have come to argue that, in the absence of a specific regulatory provision, no tax could be legitimately requested”.
If the legislator has felt the need to provide for a new tax, can this mean that no tax was actually due in the past?
“To answer, we need to immerse ourselves in the complex (and sometimes counter-intuitive) logic of tax law. In my opinion, paragraph 127 cannot, in itself alone, legitimize, for the past, a tax claim, hypothetically, not It cannot do so because this provision does not have the nature of an interpretative rule, also because it does not qualify itself as such, as instead would be required by the Taxpayer’s Statute. In other words, the legislator today did not say that, for the past, the rules on foreign currencies must be interpreted in such a way as to include cryptocurrencies as well.The question, in essence, falls between two constitutional principles: the one established by article 23, according to which no personal or patrimonial performance can be tax if not on the basis of the law, and that contained in article 53, according to which everyone is required to contribute to public expenses on the basis of their ability to pay. this case, the principle expressed by the art. 53, it is clear that capital gains realized in the past, as an expression of a capacity to pay, should in any case be subject to taxation. Which does not exclude that, as some have already observed, the question can be examined by the tax justice”.
So how can those who, having paid the tax on capital gains made with crypto-assets in the past, now believe they are entitled to a refund, regulate themselves? And who, having not paid taxes for the past, believes they have nothing to regularize?
“Let’s start with the second question. In this, as in all relations with the tax authorities, behaviors that comply with the utmost caution and consideration must be adopted. This is also due to the fact that the tax authorities have the possibility of issuing executive deeds without any preventive judicial control. The taxpayer can certainly submit each tax claim to judicial verification, but, failing that, the Agency’s claim becomes definitive. which are equal to at least 90% of the unpaid tax). The most prudent solution therefore consists in complying with the provisions of current legislation, also with regard to the legitimization that the same carries out with regard to the orientation of the Agency for the years prior to the entry into force, perhaps making use of the active repentance, when it is more convenient than the regularization provided for by paragraphs 140 – 1 43 or the redetermination of the value, provided for by paragraphs 133 – 139. It will then be possible to proceed with the request for reimbursement, evaluating to proceed with the appeal of the possible, and very probable, negative answer, but with this avoiding the application of sanctions. The same solution may concern cases of tax already paid, for which reimbursement can be requested by submitting the relative application within the established deadline (48 months from the date of payment of the tax).