Clifford Chance

The Italian Government published the bill of the Budget Law for 2023 envisaging the introduction of a set of rules for the taxation of crypto assets.

As from they were first launched in 2009, cryptocurrencies and, more in general, crypto assets have not been the object of specific tax laws. Their tax treatment has been based on general principles and (heavily criticized) guidance issued by the tax authority.

BACKGROUND

The new tax definition of "crypto assets" would be that of the Markets in Crypto Assets Regulation (MiCA), thus encompassing any "digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology". (See our article: Crypto regulation: the introduction of mica into the eu regulatory landscape )

Due to this wide definition, the proposed tax framework would cover address several sources of income, including those derived from cryptocurrencies, tokens (including NFTs) and related activities such as staking and airdrops, regardless of whether they have an investment purpose.

The draft is currently under review of the Italian Parliament for discussion and, possibly, amendments. The entry into force is expected as of 1 January 2023, although the effectiveness of certain specific measures may be delayed.

KEY ELEMENTS

The bill of the Budget Law for 2023 contains provisions addressing:-

• tax treatment of income generated by private (i.e. not business) taxpayers
• the introduction of reporting obligations for crypto holders
• a tax step-up regime for crypto assets held as at 1 January 2023
• a voluntary disclosure program for crypto assets and related income not reported and/or not taxed in previous years
• the introduction of a stamp duty on crypto assets
• tax treatment of accounting write-ups and write-downs of crypto assets by Italian companies.

Taxation of income

Income derived by private taxpayers upon redemption, disposal, exchange or holding of crypto assets and exceeding a threshold currently set at EUR 2,000 will be treated as capital gains subject to tax at a 26% flat rate.

The taxable capital gain would be equal to the (positive) difference between the consideration received or, in case of an on-exchange transaction, the market value of the crypto assets received and the purchase price. Where a redemption, disposal, exchange or holding of crypto assets results in a capital loss exceeding EUR 2,000, such loss can be offset against capital gains of the same kind subsequently realised in the same year or in the following years up to the fourth.

The exchange between crypto assets having the same characteristics and functions would not be considered as a taxable event. While it is not entirely clear how to establish alignment on characteristics and functions of different crypto assets, it is reasonable to believe that this safe harbor would be applicable to exchange of cryptocurrencies, while capital gains realized upon exchange of cryptocurrencies with fiat currency, NFTs and other tokens would be subject to the 26% capital gain tax.

Moreover, the reference to the "holding" of crypto assets as a table event should cover proceeds deriving from activities connected to the holding of crypto assets, such as airdrops and staking rewards (as to stacking transactions, in the past the Italian tax authority took the position that staking rewards should qualify for tax purposes as interest income rather than capital gains).

Private taxpayers realizing taxable capital gains under the new tax framework will be required to report yearly capital gains and losses in their tax return to be filed with the tax authorities and pay the 26% flat tax on such capital gains. Alternatively, taxpayers may elect to pay the 26% capital gain tax through an Italian financial intermediary (e.g. a bank or other qualified intermediary) or a crypto-assets service provider (including wallet providers). If such election is made, the relevant intermediary/service provider shall be responsible for accounting for the 26% capital gain tax and for the payment of the relevant amount to the Italian tax authorities on behalf of the taxpayer.

The tax regime of income derived from crypto assets, as described above, departs from the guidelines provided over time by the tax authority. Indeed, according to the tax authority proceeds arising from “speculative” exchanges between cryptocurrencies or from cryptocurrencies to fiat currencies should be subject to a 26% flat tax; similar rules apply to proceeds arising from trades of utility tokens. An activity is considered to be "speculative" if, during a given year, the total value of the cryptocurrency's portfolio exceeds EUR 51,645.69 for seven or more consecutive days. Accordingly, while in general terms the proposed tax regime may prove to be more burdensome than the current practice, it would arguably be more favorable with specific reference to exchanges between cryptocurrencies (which under the bill of Budget Law would not be taxable).

Reporting obligations

Based on the current version of the bill of the Budget Law for 2023, Italian resident individuals, non-commercial entities, non-commercial partnerships and similar institutions will be required to report in their yearly income tax return crypto assets held during the year.

The requirement applies also where the persons above, being not the direct holders of the crypto assets, are the actual owners of the instrument.

Under the proposed wording, the reporting obligation should concern all crypto assets, regardless of whether they are held in Italy or abroad (whereas reporting obligations on other assets are triggered only when the same are held abroad).

Exemptions from reporting obligations may apply in specific cases, such as with respect to crypto assets deposited for and managed by qualified Italian financial intermediaries or crypto-assets service providers.

Tax step-up regime

The bill of the Budget Law 2023 envisages the possibility for private taxpayers to opt, by paying a step-up tax, to stepup the tax value of the crypto assets held as of 1 January 2023. The step-up will allow to increase the tax basis.

The stepped-up basis would however not apply when it results in capital losses. The step-up tax is applied at the rate of 14% on the market value of the crypto assets. The step-up tax must be paid in a single instalment by 30 June 2023 or in three annual equal instalments.

Voluntary disclosure program

The bill of the Budget Law for 2023 also provides for a voluntary disclosure program for taxpayers that did not report in their annual tax return the holding of crypto assets and related income (if any) as of 31 December 2021. The holding of unreported crypto assets that did not give rise to taxable income can be regularized by paying a reduced penalty equal to 0.5% per year on the value of the undisclosed crypto assets.

Where the taxpayer realized income from the unreported crypto assets, the voluntary disclosure program provides for the payment of a 3.5% substitute tax to be applied on the value of the undisclosed crypto assets at the end of each year or at the date of disposal, plus an additional amount to be paid as interest and penalties equal to 0.5% of said crypto assets' value.

As currently drafted, the measure seems to apply retrospectively, also for years in which taxpayers were not obliged by law to declare the ownerships of crypto assets and is therefore in breach of the statute of taxpayers' charter of rights which deny the retrospective application of laws which are unfavorable for taxpayers. The relevant reporting obligations were indeed derived by way of interpretation by the Italian tax authorities, which are not a source of law. Moreover, such interpretation was only limited to cryptocurrencies and not to other forms of crypto assets.

Additionally, the criteria to quantify the taxable income of the undisclosed crypto assets is unclear, as the bill of the Budget Law for 2023 does not clarify whether it should be assessed based on the "old" rules provided by the tax authority for cryptocurrencies or according to the new ones envisaged by the new piece of legislation.

Stamp duty

A 0.20% stamp duty will be due on an annual basis to any periodic reporting communications which may be sent by a financial intermediary to their clients in respect of any crypto asset which may be deposited with such financial intermediary in Italy (mimicking the stamp duty on financial assets). The 0.20% stamp duty would be due even if no periodic communications are sent to the taxpayer. As currently drafted, the stamp duty should not exceed EUR 14,000 for taxpayers which are not individuals. This stamp duty should be determined on the basis of the market value of the crypto assets.

Where the crypto assets are not held through Italian intermediaries (e.g. crypto assets stored in digital or physical wallets) Italian taxpayers must pay, in lieu of the above-mentioned stamp duty, a 0.20% tax to be applied on the value of the said crypto assets.

Tax treatment of write-ups and write-downs

The bill of the Budget Law for 2023 also provides for write-ups and write-downs of crypto assets deriving from evaluation procedures (i.e. not effectively realized) and accounted by Italian companies in their financial statements not being taxable/deductible for the purposes of corporate income tax and regional tax on business activities. 

FINAL CONSIDERATIONS

The bill of the Budget Law for 2023 has the merit to signify an active role of the Italian lawmaker in attempting the framing of a comprehensive set of tax rules for crypto assets, as well to make up for the lack of tax framework thus far. However, the proposed tax framework, if approved as currently drafted, leaves with several critical issues for taxpayers. In particular:

• in terms of direct tax treatment of cryptocurrencies, the tax rules set out by the bill of the Budget Law for 2023 would likely be more burdensome than the tax regime possibly applied in the past on the basis of the guidelines provided by the tax authorities. The only exception would arguably be represented by the safe harbor envisaged for exchanges of crypto assets having the same functions and characteristics (such as an exchange o cryptocurrencies)
• the voluntary disclosure program is aimed at regularizing the tax position of taxpayers for previous fiscal years. However, due to the lack of legislation in the past, introducing new tax rules with retrospective effects that will unfavorably affect taxpayers for their past tax positions would in principle be in breach of law
• the introduction of stamp duties for the holding of crypto assets of any kind and regardless of any reasonable criteria, such as their nature and function, may interfere with the marketability of crypto assets in Italy, as their value is subject to frequent and consistent fluctuation during the year.