tax_for_bitcoiners
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NFT creation: economic activity or capital gain?

Economic activity vs gain · VAT electronic services (V0486-22, V2274-22, V1753-23)
Income TaxVAT 2 min

IRPF: income from an activity or a capital gain?

The classification in IRPF depends on whether or not there is a genuine economic activity. For a creator who mints, promotes and markets NFTs in an organised way, with continuity and a profit motive, the natural fit will be an economic activity, with taxation in the general base and deductibility of the related expenses. In isolated sales with no structure, the classification is open to debate and calls for more caution. In any event, the automatic equation of “occasional” with a capital gain and “habitual” with an economic activity should be avoided: what is decisive is the organisation of means.

The amount to be declared is the market value received —in ether or in the payment token— on the date of the sale. The royalties received from secondary-market sales must be analysed according to the context: they approach an economic activity where they are the continuation of an organised exploitation of the work, and admit a different reading in more passive cases.

VAT: the NFT as an electronically supplied service

For VAT, the available doctrine on NFTs draws on rulings such as V0486-22, V2274-22 and V1753-23, which treat certain tokens linked to digital content as services supplied electronically. The place-of-supply rules depend on the recipient: on a sale to a final consumer in Spain, Spanish VAT is charged; on a sale to final consumers in other Member States, the VAT of the consumer’s State, using the One-Stop Shop regime; and in transactions with traders or professionals, the analysis shifts to the rules applicable to dealings between taxable persons. The creator who sells directly must check who bears the charging of the tax, because the platform does not always handle it.

DGT rulings — VAT
  • V0486-22 · V2274-22 · V1753-23 — certain NFTs linked to digital content are classified as electronically supplied services.

IRPF criterion: economic activity or capital gain depending on whether or not there is an organisation of means (Article 27 LIRPF). No automatic rules.

Criterion available for VAT (electronically supplied services). For IRPF, the classification of the creator calls for a case-by-case analysis, not to be reduced to mere habituality.