The tax and financial regulatory landscape for non-fungible tokens is rapidly evolving, with the impact of MiCAR on the horizon
The rise of cryptocurrencies (fungible tokens) and non-fungible tokens (NFTs) has ushered in a new era of digital assets, and presents unique challenges for legislators and governments around the world, including the Netherlands. And the scene is set to evolve further when the EU Regulation on Crypto Asset Markets comes into force.
Dutch tax development at a high level
Guidance relating to NFTs has mainly been initiated at EU level, for example through DAC8 and the recent EU VAT Committee working document on NFTs.
DAC8 focuses on the exchange of information: crypto exchanges and certain other online platforms will be required to share detailed user information with tax authorities to ensure that tax enforcement is strengthened.
The EU working paper on NFTs addressing the value added tax (VAT) implications of NFTs aims to help taxpayers, tax authorities and market participants understand the VAT considerations relating to NFTs, recognizing the evolution of this market and the potential need for future updates. to the VAT regulations.
No definition of NFTs in tax rules
There is no definition of an “NFT” in EU law or Dutch national laws.
The EU’s recent working document on NFTs recognizes the need to determine the VAT treatment of NFTs based on the specific characteristics and purpose of the transactions. It describes an NFT as a digital entity (often referred to as a token) on a “distributed ledger“, consisting of an identification code and metadata. The identification code is used to identify the token and the metadata refers to what the NFT represents: the asset. This resource can, for example, contain a digital portrait painting or the ticket to a physical concert depending on NFT.
Generic Dutch tax rules and NFTs
Determining the correct tax treatment of NFTs can be challenging due to the absence of clear guidance, although the generic Dutch tax rules provide clarity in certain cases.
The Dutch tax consequences, including complications and uncertainty, in relation to certain uses of NFTs include:
Payroll tax
An NFT received by an employee (in relation to employment activities) is generally considered as wages in kind subject to ordinary Dutch payroll deduction.
Accordingly, the Dutch employer should withhold the applicable Dutch payroll tax on the value of the NFT and remit the tax in EUR to the Dutch tax authorities. In this regard, valuation implications may arise as the value of NFTs may be difficult to determine in EUR (unlike a crypto such as Bitcoin (BTC).
Gift tax
Donations in the form of NFTs are treated no differently than regular donations in cash or in kind. Valuation implications may also arise in respect of the donations in NFTs (which should be valued at fair market value at the time of the donation).
Personal income tax
The tax treatment of NFTs depends on whether the person is a passive investor or does business with the NFTs.
A Dutch passive investor individual who owns the NFTs will not normally be subject to tax on income and capital gains realized on the NFTs. Instead, this Dutch person is taxed at a flat rate of 32% (2023) on deemed income equal to 6.17% (2023) of the value of the NFTs at the beginning of the calendar year.
A Dutch person conducting business in relation to NFTs may be subject to tax on income and gains from NFTs at progressive tax rates of up to 49.50%. In practice, this means that it will have to be decided, taking into account all relevant facts and circumstances, whether minting, owning and/or selling NFTs goes beyond normal asset management activities, but instead gives rise to conducting business activities.
Business tax
The tax consequences for a corporate taxpayer are quite simple: Any income from NFTs should in principle be included in taxable income, and company costs in connection with minting or selling NFTs should in principle be deductible or entered on the balance sheet.
Property transfer tax
Is Dutch property transfer tax (RETT) payable by the buyer of an NFT representing 100% of the economic ownership of Dutch property? We expect that given that existing Dutch RETT laws will generally tax financial ownership transfers, regardless of the instrument on the basis of which the financial ownership transfer takes place.
Explicit guidance from the Dutch tax authorities will provide certainty and may also address the application of RETT exemptions.
VAT
What is the view of the Dutch tax authorities on the VAT consequences of transactions related to NFTs? Can we expect the Dutch tax authorities to follow the view in the EU’s working document on NFT? Based on this document, each transaction related to an NFT may be subject to a different VAT treatment depending on whether (i) it is a supply of services or goods, (ii) the supply is made for consideration and (iii) the supply is made by a taxable person acting as such.
In comparison, it is interesting to see how Spain, Belgium and Norway view the VAT treatment of NFTs.
In a Spanish binding ruling, it was held that the sale of an NFT that gives rights to use Photoshop-edited images is classified as a service supplied electronically and is thus subject to VAT at the general rate of 21%. In Belgium, the Minister of Finance officially stated that transactions involving NFTs should be subject to VAT at a rate of 21% if they take place in Belgium, and NFTs are not considered a means of payment, but rather digital collections or objects of digital art. The Norwegian tax authorities regard the delivery of an NFT as an electronically delivered taxable service. They specify that the sale of digital art in the form of an NFT does not qualify for the VAT exemption that applies to material art. Embossing an NFT is not subject to VAT.
In our view, the Working Paper on NFTs rightly concludes that the prevailing consensus categorizing NFTs as electronic services may not capture the full complexity of the situation, and urges caution in jumping to conclusions.
Without precise categorization of NFTs, taxpayers are left to interpret existing Dutch tax laws, which may not adequately cover the unique characteristics of an NFT. Explicit guidance on this topic from the Dutch tax authorities on NFTs would be beneficial. The Dutch tax laws can be complex and subject to change. It is therefore advisable for taxpayers to consult with a tax attorney about how the Dutch tax laws will apply to specific situations.
Financial regulatory laws and NFTs
At EEA level, there is currently limited legislation on crypto and NFT. Crypto and NFTs are mostly handled locally, and requirements vary by EEA jurisdiction. However, this will change with the upcoming EU Markets in Crypto Assets Regulation (MiCAR), most of the provisions of which are expected to apply from January 2025. MiCAR contains a uniform set of rules for the entire EEA and will apply directly in all EEA jurisdictions.
Current landscape
Under current regulations in the Netherlands, NFTs as such are unregulated. However, NFTs or NFT-related services may fall within the scope of other regulated products and/or services:
- Regulated products: depending on its characteristics, for example, an NFT can be considered as (i) a security (effect), (ii) an investment object (coating object) (iii) a derivative (derived), (iv) e-money (electronic money) or (v) an object of art (art object).
- Regulated services: an NFT-related service may under certain circumstances also be regulated, for example if one has a role in the payment or exchange flow regarding the purchase and sale of the NFTs, or has funds or NFTs belonging to clients.
NFTs come in a variety of forms and despite the fact that NFTs as such are unregulated in the Netherlands, it is not inconceivable that an NFT or NFT-related service falls within the scope of other regulated products or services. Organizations that intend to issue, offer NFTs or provide services such as operating an NFT platform or NFT broker should analyze whether the NFTs or services are covered by Dutch financial legislation and, if so, which financial regulatory requirements will apply.
Expected effect of MiCAR
In essence, MiCAR will regulate issuers of cryptoassets and cryptoasset service providers who provide services in the EEA.
The term cryptoassets is broad and in principle also includes NFTs, with the exception of cryptoassets which are “unique and not interchangeable with other crypto assets“.
For an NFT to fall under this exception, not only the NFT itself, but also the assets or rights represented must be “unique and non-fungible“. Fractional parts of a unique and non-fungible crypto-asset are not covered by the exemption and are therefore in principle covered by MiCAR. For the determination of whether an NFT is unique and non-fungible, the actual characteristics and characteristics of the NFT are decisive, not the classification as NFT of the issuer.
How MiCAR will relate to other existing legal frameworks is not entirely clear yet. For some existing frameworks, MiCAR defines the relationship. For example: crypto-assets that qualify as financial instruments are excluded from MiCAR and will continue to be covered by existing frameworks, such as the EU’s Markets in Financial Instruments Directive (MiFID II). Excluded from MiCAR or not, it will also need to be assessed whether an NFT or NFT-related service falls within the scope of other legal frameworks.
