The AFIP’s sights fall on cryptocurrencies

The AFIP’s sights fall on cryptocurrencies

The Personal Property Tax Law makes no mention of crypto assets. It was due to this legal vacuum that different interpretations arose regarding the tax treatment that should be granted to this type of assets.

Thus, while some understood that cryptocurrencies are similar to financial assets and therefore were subject to tax, many others classified digital currencies as “immaterial goods” that, for the tax in question, are exempt. This last position is the one that the AFIP itself had assumed in 2019 through an internal legal opinion.

However, the inexhaustible fiscal pressure has resulted in Opinion 2/2022, through which the National Treasury changed its criteria considering that “cryptocurrencies” could be classified as “financial assets” or “improper securities” and, therefore, Therefore, it concluded that they are affected by the personal property tax. This comes to change once again the rules of the game in the adventure of the taxpayer to know what he will have to pay as taxes in the face of a new interpretation, which brings more confusion than certainty.

The aforementioned opinion reveals an interpretation of the treasury, which in no way translates into a modification of the law. It is an opinion that advances the tax treatment that technological assets would receive in the eyes of AFIP, but the law says nothing about crypto assets, so that, eventually, the tax interpretation could be questioned with legitimate and reasonable arguments.

The fiscal voracity of the AFIP falls on cryptocurrencies

The opinion includes in the definition of “financial asset” -indiscriminately- all types of cryptoactive. Thus, it considers all of them as “the representation of a homogeneous and fungible value or credit right that is included in a record of entries that allows its negotiation and generalized traffic”. It describes them as “an electronic notation that incorporates the right to a certain amount of money.”

This turns out to be a conceptual error insofar as species that do not meet the aforementioned requirements are placed on an equal footing.

The fiscal voracity of the AFIP falls on cryptocurrencies

Far from providing precision, this generalized inclusion generically mentions “financial assets” encompassing Cryptocurrencies, Blockchains, NFTs (non-fungible tokens), digital assets representing securities, Tokens of the so-called “green” to mention the main genera, not counting the respective species.

The Opinion forgets that, in general, the cryptocurrency lacks an asset that supports its value, since the latter results from the combination of factors such as scarcity, credibility, supply and demand. In turn, said value is “certified” if you will by the users that make up the “Blockchain” and that record all the transactions carried out between two users. We see then the absence of two essential characteristics of “financial assets” or “securities” such as the objective support of its value and an identifiable issuer or guarantor.

Unlike securities, crypto assets do not represent, in all cases, a share capital or equivalent, nor are they all issued by public or private entities, here lies the novelty of the Blockchain, since transactions can be carried out on immaterial goods, such as tokenized collectible items issued by human persons, such as “NFTs”.

All these issues show how unreasonable it is to assimilate financial assets with crypto assets, which seems to be an analogical application, prohibited in tax matters.

The consequence is none other than forcing taxpayers to pay a tax for holding crypto assets even when the law does not consider them.

The extensive interpretation carried out by AFIP puts in check the constitutional guarantee according to which: “no one is obliged to do what the law does not mandate.”

Samuel Edwards
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