On 16 June 2022, the Legal Advisory Directorate of the Federal Administration of Public Revenues (“AFIP”) issued Opinion No. 2/2022 (the “Opinion”) establishing a new interpretation on the taxability of cryptocurrencies.
The Opinion argues that cryptocurrencies are an asset covered by the Wealth Tax because … “Cryptocurrencies can be characterized as a new kind of non-traditional financial asset based on blockchain technology which is, in short, an electronic notation that incorporates the right to a certain amount of money…. In the context described, cryptocurrencies can be classified as securities titles, since they share the main characteristics of the latter, i.e., they are securities titles incorporated into a register of account entries -the blockchain-; they are homogeneous and fungible goods in the terms of article 232 of the Civil and Commercial Code; their issue or grouping is carried out in series -this being made up of each block that makes up the chain- and; they can be susceptible to generalized and impersonal traffic in the financial markets”.
The Opinion pointed out that section 1820 of the National Civil and Commercial Code (“CCC”) authorizes any person to create securities titles within the scope of the public offering, allowing the concept of “security” to include any instrument that has an incorporated right, as required by Article 1815 of the CCC, because there is no numerus clausus for a given paper to constitute a security title.
Under AFIP’s criteria, NFT “non-fungible tokens” would not fall within the definition, as they do not comply with the fungibility determined in Article 232 of the CCC.
There is still no regulation for those cryptoassets whose location is not specified, such as “cold wallets”, which make it impossible to link the holder of the cryptocurrency. Therefore, the collection effectiveness of this new regulation will be limited to those who hold their funds in exchanges that are obliged to inform the AFIP by means of RG 4614/2019 or are located in a third country that has information exchange with Argentina.
