NFT creation: economic activity or capital gain?

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. It should further be noted that being paid in ether or in another token rather than in euros opens a second taxable moment. That crypto-asset enters the creator’s estate at its market value on the date of receipt, so that its later disposal —sale for euros, exchange for another crypto-asset or payment with it— will generate a separate capital gain or loss, to be included in the savings base, taking that same value as the acquisition cost (DGT V0999-18; Articles 33 and 34 LIRPF). It is an effect that easily goes unnoticed in the creator paid in crypto. 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 —income from an economic activity (Article 27 LIRPF) as against, where applicable, investment income from the assignment of the exploitation right (Article 25.4.a) LIRPF).

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. It should be noted that, on a sale channelled through a marketplace that sets the general terms or authorises the charge, the presumption of Article 9a of Implementing Regulation (EU) 282/2011 applies —confirmed by the CJEU judgment of 28 February 2023, Case C-695/20, Fenix International—: the platform is deemed to supply the service to the final consumer in its own name and is the taxable person vis-à-vis that consumer. The creator then supplies its service to the platform (a transaction between taxable persons), not subject to VAT in Spain where the platform is not established in the territory of application of the tax (DGT V1753-23 and V2274-22). The B2C analysis that follows is therefore reserved for a genuinely direct sale to the final consumer with no platform acting in its own name. 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 general rule locates the service in the consumer’s State, with taxation through the One-Stop Shop regime (OSS). However, so long as the creator does not exceed the common annual threshold —single for the Union as a whole, not country by country— of EUR 10,000 in Article 70.One.8 LIVA —which aggregates these supplies together with intra-Community distance sales of goods—, the transaction is deemed to take place in Spain and Spanish VAT is charged, unless the creator voluntarily opts to be taxed at destination. In transactions with traders or professionals, by contrast, 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. And, just as in IRPF, charging VAT presupposes acting as an entrepreneur or professional (Articles 4 and 5 LIVA): in a genuinely occasional sale with no organisation of means, the individual may not be a taxable person for the tax, so that the transaction would fall outside its scope.