In Germany there are no explicit legal provisions governing the taxation of cryptocurrencies. In fact, the general tax regulations apply, although, due to the novelty of the assets concerned, their application is not always unproblematic. While some questions have already been consistently answered in practice, e.g. the classification of the private trade in cryptocurrencies as private disposal transactions, there are still various areas and new technologies, for example in the area of decentralized financing, that remain unresolved or controversial under tax law.
After a long wait, the German Federal Ministry of Finance (BMF) has now issued a statement on many taxation issues in a letter dated May 10, 2022, which binds the tax offices in Germany. In contrast, however, the contents of the BMF letter do not have any binding effect on the tax courts. If the legal opinions of the BMF are disadvantageous for investors or if they consider them to be wrong, they have the possibility to challenge the tax assessment issued against them in court. This is because whether and how a crypto matter is taxed is solely up to the decision of the fiscal courts.
Given this still uncertain legal situation and the various investment options, which may lead to different fiscal treatments, it is recommended to seek advice from a tax advisor or attorney at law in each specific case. WINHELLER's experts will be pleased to assist you.
In the following, we offer a general overview of the current fiscal situation in this area:
Cryptocurrencies are no legal tender. In fact, they are considered to be intangible assets – at least under income tax law.
In case of purchases or sales of cryptocurrencies by a private individual, Section 22 No. 2 and Section 23 (1) No. 2 of the German Income Tax Act (Einkommensteuergesetz; "EStG") will be applicable. The transaction is considered to be a private disposal of "other assets". Pursuant to Section 23 (3) 1st sentence of the German Income Tax Act, the gain or loss is defined as the difference between the selling price, on the one hand, and the acquisition costs and income-related expenses, on the other hand. Hence, the initial cost simply needs to be deducted from the selling price. This means that the fees for trading on the exchanges are deductible.
Section 23 (3) 5th sentence of the German Income Tax Act additionally provides for a tax exemption limit of 600 euros up to which all private disposal transactions within the assessment period are tax-free. If this limit is exceeded, however, the full amount, from the first euro, will be subject to taxation. In this case, income tax will not only arise when cryptocurrencies are exchanged into euros or other foreign currency, but even when they are exchanged into other cryptocurrencies or when they are used for buying products or services. If the time period between the purchase and sale is more than one year, then the holding period defined in Section 23 (1) No. 2 1st sentence of the Income Tax Act applies. In such cases, the full gain on disposal will be exempt from taxation.
Generally, the so-called FIFO method set out in Section 23 (1) No. 2 3rd sentence of the Income Tax Act is applied both to determine the acquisition costs and the gain on disposal and to verify adherence to the holding period. Although the law does not require the above referenced first in, first out method for cryptocurrencies, its application has become common practice. The BMF has also advocated the use of the FIFO method within the BMF letter. However, other opinions have also been voiced and it has been proposed that the calculation should be based on the LIFO method or - as concerns the determination of the acquisition costs - on average values.
In the event that cryptocurrencies are traded on a commercial basis (e.g. by providing a website for exchanging cryptocurrencies), the income from the trade business is subject to taxation pursuant to Section 15 of the Income Tax Act. Especially the holding period does not apply in this context. In addition to the income tax, trade tax will have to be paid in this case. However Section 11 (1) 3rd sentence No.1 of the German Trade Tax Act (Gewerbesteuergesetz; "GewStG") provides for a tax allowance in the amount of 24,500 euros. In addition, the dealer will have to deal with issues concerning the VAT taxation applying to his activity.
For the taxation of mining, it must be determined whether this is still carried out in the private sphere or whether it is carried out commercially. The Federal Ministry of Finance (BMF) follows a concrete case-by-case approach. Nevertheless, it tends to assume a commercial classification in most cases and to tax the profits according to § 15 EStG. If the threshold of commerciality is not exceeded, the earnings are taxed according to § 22 No. 3 EStG (income from other services), according to the BMF. For private mining, however, it is also argued that in the absence of a service, private mining is not taxable at all.
In the case of income from masternodes too, a distinction will have to be drawn between a private activity and a commercial activity. The threshold of a commercial activity is easily exceeded, which means that income, as defined in Section 15 (1) of the Income Tax Act, might be taxable. How income from a private activity will be taxed still remains unresolved. By analogy with private mining, it might be argued that such income is not taxable. A taxation as "other income" is, however, also conceivable.
The tax treatment of the 1,000 dash required as a condition for being recognized as a masternode operator also remains unresolved. Following the general principles, in case of a commercial activity, the dash would constitute business assets even if they have been previously purchased as part of private asset management. The contribution of private assets to business assets for the purpose of starting an activity as a masternode operator does not constitute a taxable disposal of dash. The dash will, in principle, have to be recognized at the current value at the time the contribution was made. However, if the dash have been acquired or manufactured within the last three years before their contribution, they will have to be recognized at a value not exceeding the acquisition or manufacturing costs. Any increases in value that may have occurred in the meantime would be assigned to the business assets. Prior to starting an activity as a masternode operator, the origin and use of the 1,000 dash should be discussed with a tax advisor or attorney at law.
In the event that, upon termination of the activity, the dash are retransferred to the private assets, the transfer will be considered as a withdrawal from business assets, which will be treated in the same way as a sale of business assets and can hence result in commercial profits. The holding period for the dash, set out in Section 23 of the Income Tax Act, will only start again after the withdrawal.
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This question, too, is still unresolved in Germany. In many cases, income from dash proposals results from a commercial activity and is hence subject to income tax or corporate income tax if a legal entity is concerned. Under VAT law, however, the question arises whether - given the absence of an identifiable recipient - a service that may be subject to VAT has actually been provided. As this question still remains unresolved, the tax office should be consulted in such cases.
From a VAT perspective, deliveries and other services paid in dash or other cryptocurrencies, have to be treated in the same way as deliveries and other services paid in legal tender (e.g. euros). For VAT purposes, the assessment basis for a delivery or other service of the above kind is determined based on the value of the cryptocurrency received.
From an income tax perspective, the sale of goods/proposal of services for cryptocurrencies is a barter transaction.
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