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Lisset López in Semana Económica: “Cryptoassets: A Fertile Ground for Regulation”

13/06/2022

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This is a translation of the original article from Semana Económica.

Regulation is urgently needed to clear up doubts on the tax treatment for operations using cryptoassets. Lisset López Miranda, Principal Associate at Payet, Rey, Cauvi, Pérez Abogados, provides a few options, such as using the preferential tax treatment on the sale of Peruvian stocks.

The appearance of cryptoassets has disrupted the traditional ways of exchanging goods and services through legal currency in Peru and the world, with many countries implementing regulations for operations using cryptoassets. The same should happen in Peru, where there are still no regulations or official pronouncements on the nature of cryptoassets or their tax effects. To this day, there are doubts that should be clarified by the implementation of regulations.

The sale and exchange of cryptocurrencies are not subject to taxation in Peru if the transaction is performed by individuals not acting as a company (i.e. not business income). The reason is because under law, only the sale of securities (stocks, bonds) or real estate can be taxed and cryptoassets do not fall under either of those categories. They act only as means of payment and they do not guarantee any rights.

Under what circumstances could an individual act as a company if they want to sell or exchange cryptoassets? Well, this would happen if an economic activity requires both capital (infrastructure or others) and services by personnel. Thus, it appears that frequently selling cryptoassets, which can be done almost instantaneously through mobile apps, would not trigger corporate taxation in Peru.

Although, there are specific cases involving certain infrastructure, personnel and other additional factors in the development of the economic activity of cryptoassets exchanges by individuals that would trigger the same tax treatment applicable to Peruvian companies. So, if the State wants to validly tax the profits earned from the sale of cryptoassets not related to a business activity, a regulation explicitly saying this is needed.

In this case, the potential regulation should consider a threshold amount for operations not subject to Income Tax (IR). The potential regulation should also consider IR payments only when the profits are converted into legal currency or should resemble the preferential tax treatment on the sale of Peruvian stocks to not discourage investments in cryptoassets. As long as cryptocurrency remains classified as an intangible asset, sales tax (IGV) does not apply.

However, there is still a lot of work to be done. Regulation is urgently needed. Although cryptocurrencies would not be recognized as fiduciary currency like in El Salvador, they could be classified as foreign currency to simplify tax treatment (neither IR nor IGV) or be classified as transferable securities, in which taxation would be levied on natural persons (IR), like in Argentina.