Within the framework of the Budget Law for 2023, in force as of 1 January 2023, specific provisions dealing with the tax profiles of Crypto-Assets have been introduced in the Italian legal system.[1] Until then, in the lack of specific rules set for by the law, it was possible to refer only to the clarifications of the Italian Revenue Agency provided over time and in several instances, which had inter alia deemed the Crypto-Assets assimilable to foreign currencies and from which the new legislation in many aspects departs.

Considering the wide definition of Crypto-Assets adopted,[2] the new rules, whose main provisions will be herein briefly summarised, should apply to a broad spectrum of assets including the non-fungible tokens.

INCOME TAX

Non-entrepreneur taxpayers

The new legislation provides that the income realised by non-entrepreneur taxpayers from the redemption, disposal, exchange or holding of Crypto-Assets and exceeding the threshold of EUR 2,000 in a given fiscal year, qualifies as miscellaneous income[3] and is subject to a 26% substitute tax.

The taxable income is determined as difference between the consideration received (or the market value of the assets received) and the tax cost.[4]

In case a capital loss exceeding the above threshold of EUR 2,000 is realized in a given fiscal year, it can be carried forward in the following four fiscal years and offset against income of the same nature.

The new rules should also apply to the staking rewards while it is expressly provided that the exchange of Crypto-Assets having the same characteristics and functions does not represent a taxable event.

Taxpayers who realise income from Crypto-Assets will have to show such income in their annual income tax return and pay the 26% substitute tax. Alternatively, the payment of the 26% substitute tax can be carried out throughout an Italian financial intermediary (like a bank) or a Crypto-Asset service provider (like a wallet provider).

Further to the amendments brought by the Budget Law for 2023 it is now expressly provided by the law the possibility for non-entrepreneur taxpayers to opt for the administered savings regime (“regime di risparmio amministrato”) and for the asset management regime (“regime di risparmio gestito”) in relation to the income under consideration.[5]

Entrepreneurs

In relation to corporate income tax (“IRES”) and Italian regional income tax (“IRAP”), the new rules only provide that the gains and losses resulting from the accounting valuation of Crypto-Assets at the end of a given fiscal year are not relevant for the purposes of determining the taxable income.

 

WEALTH TAXES APPLICABLE TO CRYPTO-ASSETS

In case of Crypto-Assets held with an Italian intermediary, a 0.20% stamp duty[6] applies to any periodic reporting communications sent by the financial intermediary to their clients and referable to the Crypto-Assets hold with the intermediary.[7]

With reference to Crypto-Assets not held with an Italian intermediary (e.g. Crypto-Assets held with a foreign intermediary or stored in USB sticks, PC or smartphone), a 0.20% wealth tax applies on an annual basis.

Both the stamp duty and the wealth tax should apply to all taxpayers that are resident in Italy for tax purposes. However, in case of taxpayers different from natural persons, the amount of tax cannot exceed EUR 14,000.

REPORTING OBLIGATIONS FOR THE TAXPAYERS

Individuals, non-commercial partnerships and non-commercial entities resident in Italy for tax purposes that hold (or qualify as the beneficial owners of) Crypto-Assets will have to annually report their ownership, providing details of the Crypto-Assets in the so called “RW” reporting form, which is part of the Italian income tax return form.[8]

From the wording of the law, the above reporting obligations should apply also when the Crypto-Assets are held with an Italian intermediary.[9]

STEP-UP OF THE TAX VALUE OF CRYPTO-ASSETS

Article 1, paragraph 133 of the Budget Law for 2023 allows the taxpayers to step-up the tax value of the crypto- assets held on 1 January 2023 through the payment, by 30 June 2023, of a 14% substitute tax on the market value of the Crypto-Assets on 1 January 2023.

This step-up opportunity, which from the wording of the law seems to be reserved only to non-entrepreneur taxpayers, is relevant for the purposes of determining the capital gains realised by the taxpayers while it does not allow to achieve deductible capital losses.

The substitute tax can be paid in a single instalment or in 3 annual instalments from 30 June 2023. A 3% interest applies to the sums due as second and third instalment.

VOLUNTARY DISCLOSURE PROGRAM

The Budget Law for 2023 provides for a voluntary disclosure program reserved to non-entrepreneur taxpayers who did not report in their annual tax return the holding, within the 31 December 2021,[10] of Crypto-Assets and, if any, the related income.

The regularisation is finalised by the taxpayer with the submission of a specific request, whose form will be defined and approved by the Italian tax authorities.[11]  

If the taxpayer has omitted to report in the tax return the holding of Crypto-Assets but no income has been generated, a reduced penalty equal to 0.5% of the value[12] of the non-disclosed assets at the end of the fiscal year under consideration applies.

In case income has been generated, the regularisation requires the payment of a substitute tax equal to 3.5% of the value of the assets at the end of each fiscal year or at the time of disposal, plus a 0.5% increase in the aforesaid value as sanction and interest for the tax reporting omissions.

The completion of the procedure at stake, which requires the taxpayer to demonstrate the lawfulness of the sums invested in Crypto-Assets, takes away the effects of the income tax breaches and excludes the application of sanctions for the tax reporting omissions referred to in article 5, paragraph 2 of Legislative Decree no. 167 of 1990.

Edited by Lodovico Bolis

[1] The new rules are provided by article 1, paragraphs 126 ff. of law no. 197 of 2022 (“Budget Law for 2023”).

[2] The term Crypto-Asset refers to “a digital representation of value or rights which may be transferred and stored electronically, using distributed ledger technology or similar technology”.

[3] Referred to in article 67 of the Italian Income Tax Code (“TUIR”).

[4] The tax cost is deemed to be zero if it is not supported by definite and accurate documentation by the taxpayer. Regarding Crypto-Assets gifted and inherited, the tax cost is respectively equal to the tax cost relevant for the donor and the value declared for inheritance tax purposes.

[5] Even when the Crypto-Assets are held with non-financial intermediaries referred to in letters i) and i-bis) of paragraph 5 of article 3 of Legislative Decree no. 231 of 2007 (supplier of services which refer to the use of virtual currencies and digital wallets).

[6] On the value of the Crypto-Assets hold with the financial intermediary.

[7] The law provides that the reporting communication is deemed to be sent at least once a year even if the intermediary is not obliged to prepare or send it.

[8] Although the law does not clarify how the value of Crypto-Assets must be determined.

[9] Indeed, the law provides that the tax reporting obligations at stake apply irrespective of the way in which the Crypto-Assets are stored and the place in which the storage system is located. 

[10] Thus not necessarily on 31 December 2021, being the Crypto-Assets able to be sold before the 31 December 2021.

[11] From the wording of the rules under consideration the voluntary disclosure program should also be applicable to those taxpayers who have omitted in full to file their tax return.

[12] See footnote 8.