B Law & Tax
31 July 2023

Tax advisor: Portals that sell NFTs must face VAT, not the creators

The Directorate General of Taxes imposes the VAT return on the electronic platforms intermediary in the sale of NFTs instead of on the artists who create them and use these portals for their commercialization. According to Tributos’ June 15 response to a query raised by a taxpayer, “digital art” services involving the sale of NFTs from an online platform or marketplace are considered to be electronically supplied services and should be taxed at the general VAT rate of 21%.

However, due to the lack of information that prevents the creator of the NFTs from directly invoicing end customers through these platforms, the platform itself must act on its own behalf in the sale of the NFTs vis-à-vis the end buyers.

Tributos, in answering the query, relies on a recent judgment of the Court of Justice of the European Union (CJEU) of February 28, which analyzes the Council Implementing Regulation 282/2011 related to the European VAT Directive. According to this ruling, when circumstances prevent the electronic service provider from knowing the necessary information about the acquirer to comply with its tax obligations, it is considered that it is the platform that provides the electronic service on its own behalf to the final recipient, and therefore, it has the status of VAT taxable person in relation to the recipients of the service.

However, it is clarified that these platforms, even if the creator of the NFT is of Spanish nationality, will only be obliged to pay VAT in Spain if they have their place of business, a permanent establishment or domicile or habitual residence in the country.

The Spanish VAT Law considers the creator of NFTs as a businessman or professional whose sales of goods and services are subject to VAT. NFTs are classified as works of art, as they are unique digital files created using blockchain technology, although there is still no European court ruling on their nature. Tributos emphasizes that NFTs are not cryptocurrencies or any form of digital currency, so they are exempt from VAT. In addition, it stresses that the object of the transaction of these tokens is the digital certificate of authenticity itself, without the physical delivery of the file.

B Law & Tax International Tax & Legal Advisors.

 https://www.blaw.es/

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