(Français) Fiscalité Crypto-Actifs : La fiscalité arrivera-t-elle à cerner cet outil révolutionnaire international ?

Posted by on 12, 2022 in crypto currencies, בלוג, crypto monnaies, חברות בישראל, מסים ישראל-צרפת

(Français) Fiscalité Crypto-Actifs : La fiscalité arrivera-t-elle à cerner cet outil révolutionnaire international ? 1

Fiscalité Crypto-Actifs

Continuing a frantic race between a fiscal will to regulate the market of digital assets in constant movement

Will taxation manage to pin down this revolutionary international tool?


In the midst of this tax brouhaha put to the test by the endless innovation that crypto-currencies represent, the legislator is gradually trying to clarify a borderless subject that is ever more attractive in terms of tax controls in view of the sums involved, but more easily crumbly in terms of evidence.

Therefore, this article is intended to set out in a simplified manner the law in force but also the changes introduced by the French legislator which will be applicable as of January 1, 2023.

The first step will be to make a clear distinction between gains on the sale of digital assets by individuals and those by companies.

Indeed, in the latter case, it will be a question of applying a tax regime that is quite different from the one applied to private individuals, known as “professional capital gains”, but which will not be developed in this article for the sake of simplification.

 

What tax regimes apply to capital gains realized by individuals?

As a result, and until December 31, 2022, three tax regimes are applicable to capital gains realized by individuals on the sale of digital assets, namely

  • For transactions carried out on an occasional basis, taxation at a flat rate of 12.8% in addition to social security levies at 17.2%, i.e. 30%,
  • If the capital gain is realized within the framework of the usual exercise of a purchase activity with a view to reselling the said assets, it will be subject to the industrial and commercial profits regime,
  • Finally, if the activity is called “mining”, i.e. the gains realized by the taxpayer do not constitute a capital gain resulting from an investment operation but are the counterpart of the taxpayer’s participation in the creation and operation of this virtual unit of account system, the non-commercial profits regime will apply.

As of January 1, 2023, and subject to change in the meantime :

  • Capital gains realized in a professional context will be taxed according to the non-trading profits regime and no longer according to the trading profits regime. If the purpose remains a taxation at the progressive scale of the income tax, the methods of calculation of the profit will be quite different.
  • The capital gains realized in a non-professional context and taxed in principle at a flat rate (12.8%) in addition to the social security deductions (17.2%), may under option be taxed at the progressive income tax scale according to the tax optimization to be obtained.

What are digital assets?

As a result, it will be necessary to inquire about the definition of digital assets on the one hand and taxable operations on the other.

Indeed, starting from a postulate of tax neutrality with regard to transactions having as counterpart another digital asset and applicable to individuals carrying out operations in an occasional way, it is imperative to lay the foundations of a good tax understanding of this tool.

Indeed, transfers of digital assets are only taxable when the counterparty is not a digital asset, thus excluding asset swap transactions.

In other words, the taxable event will only be triggered when the consideration for the transfer transaction is :

  • A legal tender (fiat),
  • The exchange of a good (other than a digital asset) or a service,
  • The exchange of a digital asset with a balance.

Concerning the digital assets to be included in the definitions of the tax legislator, articles L 54-10-1 and L 552-2 of the Monetary and Financial Code, state:

“1° The tokens mentioned in Article L. 552-2, excluding those fulfilling the characteristics of the financial instruments mentioned in Article L. 211-1 and the savings bonds mentioned in Article L. 223-1 ;

More specifically, a token is “any intangible asset representing, in digital form, one or more rights that can be issued, registered, retained or transferred by means of a shared electronic recording device that makes it possible to identify, directly or indirectly, the owner of said asset.

(Article L 552-2 of the Monetary and Financial Code)

Any digital representation of value that is not issued or guaranteed by a central bank or public authority, that is not necessarily attached to legal tender and that does not have the legal status of money, but that is accepted by natural or legal persons as a medium of exchange and that can be transferred, stored or exchanged electronically.

Also, the law excludes digital assets with the characteristics of financial instruments or security tokens.

What are the tax uncertainties and questions related to digital assets?

Stablecoins backed by fiat currencies may not be considered as digital assets because of a conditional definition “which is not necessarily attached to a legal tender”.

Finally, there is some uncertainty regarding NFTs (Non-Fungible Tokens) since they are neither “a right” nor a “medium of exchange” but rather represent the characteristics of a physical asset.

As a result, transactions that do not involve digital assets as defined by the texts would then be subject to one of the following tax regimes, namely

  • Regime for works of art or collectors’ items :
  • Taxation of the sale price at the rate of 6.5
  • Taxation of the capital gain (sale price – acquisition price) at the rate of 36.2%.
  • Regime for movable property – taxation at the rate of 36.2%.

Finally, it should be noted the declarative form of the operations related to the transfer of digital assets:

  • Form 2086 for the calculation of capital gains or losses inherent in transactions involving the sale of digital assets,
  • Form 2042 C showing the final amount of capital gains or losses on digital assets,
  • Form 3916-Bis in connection with the declaration of an account of digital assets opened, held, used or closed abroad.

The result is that, although the French tax authorities have made numerous administrative clarifications/changes, there are still many uncertainties and questions that will undoubtedly be addressed in future.

The case is therefore to be followed, and in the meantime, Abitbol & Associes, always at the forefront of the news, is at your disposal for any information and legal and/or tax support.

(Français) Fiscalité Crypto-Actifs : La fiscalité arrivera-t-elle à cerner cet outil révolutionnaire international ? 2
ABITBOL & ASSOCIATES, with its strong expertise in this field, is at your disposal for any information and legal and/or tax support.

NB : This article is given as an indication, consequently each file/case will have to be the subject of a detailed study, in this direction the information contained in this article could not constitute a legal consultation.

(Français) Fiscalité Crypto-Actifs : La fiscalité arrivera-t-elle à cerner cet outil révolutionnaire international ? 3

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