Bitcoin ruling still doesn’t answer which country has the right to tax

The ATO considers Bitcoin property, but rulings in other countries leave room for debate. Pierre Sibileau/Flickr, CC BY-NC-ND

It’s been about five years since bitcoin emerged online, claiming to be the world’s first digital cryptocurrency. Bitcoin functions as a form of digital cash; really, it is a technology, using cryptography to ensure the validity of transactions and periodically generate new bitcoins. Bitcoin has grown into an industry now worth more than US$6 billion.

Last week, the ATO published long-awaited guidance on the Australian tax treatment of bitcoin, in the form of draft rulings regarding income tax, Goods and Services Tax and Fringe Benefits Tax.

The ATO’s position is that bitcoin is property. So bitcoin’s tax treatment for income tax, GST, and FBT, follows that of a valuable commodity such as gold or shares. Where bitcoins are exchanged for other property or services, this is treated as a barter transaction. Both the supply of bitcoin and the AUD (Australian dollar) value of the property received may be taxable.

Income tax of bitcoin holders and traders

Where a taxpayer holds bitcoin as an investment, capital gains tax (CGT) may apply to gains or losses made on the disposal of the bitcoin. This requires the taxpayer to track the purchase and sale price of bitcoin in Australian dollars.

If the transaction remains under the A$10,000 CGT personal-use threshold, individuals who use bitcoin to purchase goods or services for personal use will not be subject to CGT. Equally, individuals are not required to report or collect GST when using bitcoin to purchase items for personal consumption.

However, businesses will be taxable where bitcoin is received as payment for an ordinary business transaction, as the business must report as income the AUD value of the bitcoin received. Where bitcoin is paid to an employee, it is a property fringe benefit and FBT may apply to its AUD value. And if a business acquires and exchanges bitcoin in the ordinary course of business, the bitcoin is treated as trading stock.

The ATO says bitcoin mining can be a business, depending on the scale and nature of the bitcoin operations. Mining could be treated as generating services income, as miners verify the validity of bitcoin transactions; but if bitcoin is really an intangible commodity, perhaps this is a business of acquiring or producing that commodity itself.

How do we value bitcoin?

The CGT treatment of bitcoin means bitcoins are not fungible. For example, over time, a business or investor acquires three bitcoins for a cost of $100, $500, and $1000 respectively. Later, one bitcoin is valued at $500, and the business wishes to use one bitcoin to pay for a $500 transaction. This could generate very different tax consequences depending on which bitcoin is sold: a taxable gain, a loss, or no net tax. This produces tax planning opportunities, as for other investments such as shares.

Valuing bitcoin is difficult as it has “no intrinsic value” (as noted in an OECD working paper). It is also highly volatile. Determining market value at receipt and disposal of each bitcoin will result in administrative costs.

GST on bitcoin exchanges

GST will apply to a supply of bitcoin by a registered business and it is not treated as an input-taxed financial supply or as money. When bitcoin is used in a transaction with another business, two GST events occur: the supply of the product and the supply of the bitcoin. If cash were used, GST would be charged only on the product.

While a business purchaser is entitled to an input credit for both the bitcoin and product supplies, this approach presents a commercial disincentive for using bitcoin as a means of exchange compared to Australian dollars. It is likely to be more costly and difficult for businesses to reuse bitcoin in business-to-business transactions.

What is the alternative?

The ATO’s approach is broadly consistent with the tax rulings issued to date by many other countries. US IRS guidance issued in March this year acknowledged bitcoin is a “convertible virtual currency” but states that for tax purposes it should be treated as property. Since then, a range of software has been created that helps automatically complete administrative tasks like valuing bitcoin.

But other countries have taken a more flexible view. The UK has avoided giving a blanket tax classification to bitcoin, instead stating tax rules would be applied depending on the facts. HMRC guidance also notes that, given their volatility, bitcoin investments could be considered as gambling gains or losses (and therefore gains may not be taxable - or losses deductible). Most significantly for businesses, the UK takes the view that VAT will not be chargeable on bitcoin mining or on most trading transactions. Uncertainty about VAT and bitcoin in Europe has led Sweden to recently request that the EU Court rule on the VAT status of bitcoin.

The ATO considered whether bitcoin should be treated as a foreign currency or “money” for tax. Some Australian and English courts have taken a functional approach to defining money as a “generally accepted medium and means of exchange, without being legal tender” [Emmett J, Travelex]. However, this is not widely accepted and other courts indicate that money must be issued or authorised by an act of sovereignty.

A fundamental feature of bitcoin and other cryptocurrencies is that they are non-fiat, that is, not established or backed by a government. But what if bitcoin was to gain recognition as a currency by governments in future? This would undermine the ATO approach. California recently legislated to remove impediments for corporations to put bitcoin into circulation although its not legal tender in the US.

Bitcoin in the global digital economy

The ATO rulings do not discuss jurisdiction to tax bitcoin and nor do they address the challenges of secrecy and tax evasion or money laundering potential of bitcoin. These and other issues are raised in a recent OECD report on tax and the digital economy and an OECD working paper.

The question of which country has a right to tax (and ability to enforce tax rules) is increasingly difficult to answer in the digital world. If mining, or trading, bitcoin is a business or service, where does this occur, given that bitcoin operates on a global peer-to-peer network?

It’s possible that countries will treat bitcoin differently for tax and other regulatory purposes. The German Federal Financial Supervisory Authority classifies bitcoin as a financial instrument or “unit of account” that functions as a form of private money, for regulatory purposes. The inability to identify bitcoin owners is a serious problem for regulators, who may treat bitcoin as currency or cash for transaction reporting purposes even though tax authorities view it as property - and that could help tax authorities with enforcement. The tax and regulatory challenges of cryptocurrencies are only just beginning.