The action was not limited only to cryptocurrencies, but also extended the benefit to tokensboth to the security tokens like the Utility Tokens leaving both assets outside the orbit of the patrimonial lien.
We understand that the criteria of the AFIP advisory body is not in accordance with the law and does not adequately interpret the economic reality of operations linked to crypto assets.
In 2020, the Organization for Economic Co-operation and Development (OECD) published a work called “Taxes on virtual currencies in which an overview of tax treatments and emerging issues of tax policy is given”, responding to the request of the leaders and finance ministers of the G20 countries to analyze the risks posed by crypto assets.
This report was prepared and endorsed by the 137 members of the OECD/G20 BEPS Inclusive Framework, providing a comprehensive analysis of the approaches and gaps in the main types of taxes (income, VAT and property), in relation to more than 50 jurisdictions that participated in the study.
The OECD concluded not only that it would be desirable to move towards a necessary coordinated or consensual tax treatment at the international level, but that it would also be important incorporate crypto-assets within the financial assets achieved by the Common Reporting Standard (CRS), which will allow transparency in their holding.
In our country, Law 27,430 substantially reformed the Income Tax and, in particular, it advanced on the taxability of income from digital currencies within the schedular taxation scheme shared with other financial income.
This reform introduced the concept of “digital currencies” within the income reached by the 15% progressive tax. This fixed a clear position: our country seeks to collect taxes on the digital economy and considers crypto assets to be within the scope of taxation of our system.
In this sense, the AFIP Opinion itself recognizes that “Cryptocurrencies are used as means of payment and try to imitate the functioning of conventional money.”
In this context, the interpretation that must be made by the Collection Agency must not be simply literal and must be made within the framework of the principle of economic reality provided for in the Tax Procedure Law: crypto assets have a broader legal nature than a simple intangible asset and, therefore, must pay the tax on Personal Assets like the rest of the financial assets that are not specifically exempted by law.
This broad interpretation, from the tax point of view applicable to crypto assets, is in accordance with comparative law.
Law 10/2010 of Spain defines “virtual currency” (also called “cryptocurrency”) as a “digital representation of value… which is accepted as a medium of exchange and can be transferred, stored or traded electronically”.
Consequently, the Collection Agency of said country also considers virtual currencies as immaterial goods, but since they are used as a means of payment since they can be exchanged for other goods, rights or services and because they have economic content must pay the tax like the rest of the assets by application of article 24 of the Wealth Tax Law.
As a conclusion, it is clear that This biased criterion of the AFIP Legal Advisory Directorate must be quickly contextualized by the Agency with the rest of the regulatory legal framework of our country.
Dr. Guillermo MICHEL. Lawyer (UBA). Public Accountant (UBA). Tax Law Specialist (Austral). Master in Finance (Torcuato Di Tella University).
Source: Ambito
