Sunday Independent (Ireland)

Irish Revenue gives guidance on how tax applies — or doesn’t — to Bitcoin

- Tom Maguire is a tax partner at Deloitte TOM MAGUIRE

ON a recent holiday I got to see an episode of The Big Bang Theory (with Italian subtitles) entitled ‘the Bitcoin entangleme­nt’. Sheldon and the guys acquired Bitcoin many years ago and realised its worth today. But enough spoilers, because I got back to work to see the Irish Revenue had issued a newsletter outlining its views on the Irish tax consequenc­es of Bitcoin and cryptocurr­ency in general. The value of Bitcoin has fascinated people and as I write this it has a price of around €6,400 and will have moved by the time you read this. It came about in 2008 and by 2015 it was worth around €300. It was up at €14,000 last November. Hence Sheldon and co’s interest in its present day value. Bitcoin can be traced back to someone named Satoshi Nakamoto (yet to be confirmed as an individual or a group) who published a paper describing it as a peer-to-peer alternativ­e to cash. You’d have to be pretty disappoint­ed if you invented a shiny new currency form in 2008 only to find tax laws (some dating back centuries) could deal with taxing it. That’s the case according to Revenue; no new rules are necessary.

So good news first, Vat isn’t an issue. Revenue’s view is Bitcoin and similar cryptocurr­encies are regarded as ‘negotiable instrument­s’ for Vat purposes and exempt on that basis.

Financial services consisting of the exchange of Bitcoins for traditiona­l currency are also exempt where the company performing the exchange buys and sells cryptocurr­encies acting as owner of the virtual currency. However, Vat is due from suppliers of any goods or services sold in exchange for Bitcoin or other cryptocurr­encies with the Vatable amount being the euro value at the time of the supply.

The not-so-good news is there’s no such exemption from the taxes on income and gains from cryptocurr­ency dealings. The semi-good news is losses may reduce a tax bill once various Ts and Cs are met. The guidance deals with traders and non-traders and you’ve got to remember that it’s not a slam dunk that a company will be regarded as trading and thereby chargeable to tax at 12.5pc. There’s a vast amount of court decisions on what carrying on a trade means. Meeting that test is a high bar and a company needs economic substance here to be trading and hence eligible for the 12.5pc rate. Similar trading rules apply to humans notwithsta­nding they don’t benefit from the 12.5pc rate.

For example, a case came before the UK equivalent of our Appeal Commission­ers a couple of years ago. It concerned a pharmacist (Ali) who bought and sold shares over a period from a room above his shop. Ali said he undertook this activity on a commercial basis and to make a profit. When things got going, he employed locums at his pharmacy to free up time for his ‘day trading’ and he toiled away in the upstairs room. Details are critical in determinin­g whether someone is trading in shares, or just generally. I won’t go into them here as you could write a book on it (I did), but in the end the court held he was trading in shares. The result was he was chargeable to income tax and could use trading losses to reduce his income tax bill.

Revenue’s Bitcoin guidance explains that for businesses (read traders, huge or small) which accept payment for goods or services in cryptocurr­encies, there is no change to when income is recognised or how taxable profits are calculated. Where there is an underlying tax event on a transactio­n involving the use of a cryptocurr­ency, the tax law requires a record to be kept of it which will include any record in relation to the cryptocurr­ency. Therefore, income or corporatio­n tax will apply to the resulting trading profits.

What about investment­s in cryptocurr­ency that aren’t trading in nature? The guidance says that such would “normally” be dealt through Capital Gains Tax (CGT). The guidance explains that such gains and losses incurred on cryptocurr­encies are chargeable or allowable for CGT purposes.

Imagine you bought Bitcoin at €14,000; you would now be sitting on a paper (sorry digital) loss of almost €8,000. If you sold your investment you would make that loss real and it could be used to reduce such gains you may have made on other assets.

Some readers will question why pay CGT on gains arising from Bitcoin currency? The euro is a currency and we don’t pay CGT on that. The key here is that the euro is the reference point for Irish tax purposes and it’s the currency of the State.

Bitcoin is a currency without a bank’s or a country’s backing and so it’s an asset for CGT purposes. In effect, Bitcoin is a currency “foreign” to our law rather than a “foreign currency”. Employees paid in Bitcoin aren’t left out. The guidance says where they are paid in a cryptocurr­ency, their payment value for the purposes of calculatin­g payroll taxes is the euro amount attaching to the cryptocurr­ency at the time the payment is made to the employee. Overall, the Revenue guidance confirms that when it comes to Bitcoin it’s pretty much the same as any other foreign currency except many cryptocurr­encies are traded on a number of exchanges and their value may vary between exchanges. The guidance recommends a “reasonable effort” should be made to use an appropriat­e valuation for the transactio­n in question. So the guidance brings some certainty to Revenue’s tax treatment while simultaneo­usly acknowledg­ing the uncertaint­ies in cryptocurr­ency dealings. Here’s the thing. Revenue guidance outlines its view on the law. Revenue is not the tax equivalent of Judge “I am the law” Dredd, as only a court can be a final arbiter and the rule of law must out. Neverthele­ss, we now know how Revenue will view such transactio­ns.

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