According to the art. 4 of the Legislative Decree. of the 2025 budget, the substitute tax at a rate of 42% should be applied on capital gains relating to crypto-assets realized from next January 1st instead of the current one at a rate of 26%.
For these purposes, theart. 67 paragraph 1 letter c-sexies) of the TUIR, which provides for the taxability of capital gains realized through reimbursement, transfer for consideration, exchange or holding of crypto-assets, provided that the sums earned do not, overall, amount to a total of less than 2,000 euros.
According to the indications provided by the circular. Revenue Agency 27 October 2023 n. 30 (§ 3.1), please note that:
– the exchange between virtual currencies is exempt as is the exchange between NFTs (even different ones);
– while the use of a crypto-asset for the purchase of a good or service, the use of a virtual currency for the purchase of an NFT and the conversion of a virtual currency into euros or other FIAT currencies are taxed .
As clarified by the circular. n. 30/2023 (§ 3.1), in the event of an exchange between crypto-assets having the same economic functionality, the purchase value to be attributed to the crypto-asset acquired as a result of the exchange corresponds to the carrying value in euros of the crypto-asset sold in exchange . Suppose, for example, that a taxpayer purchases 10 ether by exchanging 5 bitcoins of the 20 bitcoins originally owned and that the 20 bitcoins had a purchase value of 2,000 euros at the time of the exchange. The 10 ether acquired with the exchange must have a purchase value of 500 euros, i.e. a value equal to that of the 5 bitcoins sold in the exchange.
Pursuant to paragraph 9-bis of theart. 68 of the TUIR:
– the capital gains referred to in art. 67 paragraph 1 letter. c-sexies) are determined on the basis of the difference between the consideration received, or the normal value of the exchanged assets, and the cost or purchase value of the same;
– income deriving from holding crypto-assets is determined on the basis of what is received, without any deduction.
Furthermore, the purchase cost or value, to be documented by the taxpayer, is based on “certain and precise elements”. In their absence, the cost is zero.
Returning to the new rate of 42%, the rationale for its introduction is unclear.
This higher taxation could be justified by adopting the taxation on dividends received by natural persons as a yardstick. In fact, in these cases, the 26% rate, previously foreseen also for crypto-assets, presupposes the existence of an income tax paid on the same wealth by the company that pays the dividend.
To give an example, if the company’s income is equal to 100, the company is subject to an IRES tax of 24%.
On the net dividend of 76, the recipient would be subject to a tax of 26% (76 x 26% = 19.76). In this case, therefore, the company’s income is subject to an overall tax rate of 43.76% (24 + 19.76).
This levy therefore approximates what would be obtained by subjecting the company’s gross income to the maximum marginal rate.
From this perspective, since the taxation of crypto-assets does not presuppose any previous taxation of the gross amount received (in fact there is no underlying), the increase in the rate to be applied to the income generated would be justified.
Even in this case, in fact, we arrive at a total taxation close to the maximum IRPEF rate even if it is borne by a single person (the investor).
A possible alternative, more inherent to the principle of progressivity, would be to subject income deriving from crypto-activities to ordinary IRPEF taxation, without the provision of any exemption threshold.
Probably, it was preferred to leave the possibility to the taxpayer to opt for the administered savings or managed savings regime.
In this regard, it should be highlighted that the technical formulation used by the DDL. of the 2025 budget is such that the rate of the substitute tax referred to in theart. 5 of the Legislative Decree. 461/97, or that provided for under the declaration regime.
By virtue of the fact that theart. 6 of the Legislative Decree. 461/97, on the subject of administered savings, refers to the taxation referred to in art. 5, it should be deduced that the proposed increase in the levy would also burden taxpayers who decide to adopt this taxation method, channeled through intermediaries.
