The creation of a new tax framework applied to crypto-assets
is one of the new features of the State Budget for 2023 (OE2023). This new
crypto-asset taxation regime will cover both the IRS income tax and Heritage
Tax (IMP) and, according to the proposal delivered to Parliament, it promotes
the “security and legal certainty” of these businesses.
According to a report by idelaista/news, the Government’s
idea is to create a “broad and adequate” tax framework that is applicable to
crypto-assets, in terms of income and property taxation. This legislative
initiative by the Socialist Executive will completely change the world of
business in digital assets since, until now, investors' gains were not subject
to any taxation.
Income taxes
“In terms of the IRS, it is proposed to tax income from operations
with crypto-assets as business and professional income (in the case, for
example, of issuing crypto-assets, such as through mining activity) or as an
increase in equity, without prejudice to the classification in the other
categories, depending on the case”, says the report of the OE 2023 proposal.
Business and Professional Income (Category B of the IRS):
operations related to the issuance of crypto-assets are now considered commercial
and industrial activities, taxable in category B of the IRS. Issuing digital
assets means validating cryptocurrency transactions and mining. “Within the
scope of the simplified taxation regime, taxable income is calculated by
applying a coefficient of 0.15 to sales of crypto assets”, according to PwC and
reported by idealista/news.
Equity increase or capital gains (Category G of the IRS):
the gain on capital gains is calculated by the difference between the realisation
value (which is assumed to be the market value at the date of sale) and the
acquisition value, being that expenses associated with the business are
deductible. “For capital gains referring to crypto-assets held for a period of
less than one year, a rate of 28 percent is applied (without prejudice to the
option of aggregation), with capital gains referring to crypto-assets held for
more than 365 days exempt from taxation” . As for the timing, it is anticipated
that crypto assets purchased before January 1, 2023 will be taken into account.
“The losses determined in these operations, in a given year, may be deducted in
the following five years, when the taxable person opts for their aggregation”,
explains PwC.
Still on income taxation, the proposal also provides for a
simplified regime for crypto-assets in terms of IRC. According to the PwC
experts, “the inclusion of income from crypto-assets (which are not considered
income from capital and do not result from the positive balance of capital
gains and losses and other equity increases) is foreseen in the determination
of the taxable income of the simplified regime with the application of a
coefficient of 0.15”.
Stamp duty
“In terms of assets, it is expressly provided for the
taxation of free transfers of crypto-assets, as well as the levy of Stamp Duty
on commissions charged in the intermediation of transactions related to
crypto-assets, subject to a rate of 4 percent (in in line with most financial
operations)”, explains the OE2023 proposal.
In other words, the value of crypto-assets is part of the
taxable base of the Municipal Tax on Onerous Property Transfers (IMT). And to
determine the taxable basis of IMT, the value of the act or contract is
considered to be the value of the crypto-assets given in exchange, determined
in accordance with the Stamp Duty Code.
The OE2023 also proposes the taxation of crypto-assets in
Stamp Duty, at the rate of 10%. The idea is to tax “free transmissions of
crypto-assets, when they are deposited in institutions in Portugal or, if not
deposited, if the author is domiciled in Portugal, in the case of inheritance by
death, or if the beneficiary is domiciled in Portugal”, the case of other free
broadcasts”, explain from PwC.
As in most financial transactions, investors who use
intermediation and brokerage services will be required to pay an 4% Stamp Duty.
Therefore, “taxation at the rate of 4% of commissions and considerations
charged by or with the intermediation of crypto-asset service providers is at
issue, when the provider or the customer is domiciled in Portugal, with the
charge of the tax being imputed to the customer”.
When the service provider is outside Portugal, the
intermediary in Portugal must pay the tax. But if there is no intermediary, who
has to settle the tax is a representative appointed by the service provider.
Selling houses in
cryptocurrencies
To improve communication and transparency of cryptocurrency
operations, the Government also wants those involved in these deals to be
obliged to report them to the Tax Authorities.
“Natural or legal persons, bodies and other entities without
legal personality that provide custody and administration services for
crypto-assets on behalf of third parties or manage one or more crypto-asset
trading platforms are required to submit a model declaration official to the
AT, until the end of January of each year, for each taxable person,
communicating the operations carried out with its intervention in relation to
crypto assets”, explain the PwC lawyers.
About time too! Capital gains from crypto should be taxed like any other gain on a financial asset. Pity the government took so long to get round to this, but better late than never.
By Billy Bissett from Porto on 13 Oct 2022, 15:50