Royal Decree 249/2023, of April 4, has been published, introducing a series of regulatory modifications to implement various changes made by Law 11/2021 on measures for the prevention and combating of tax fraud related to cryptocurrencies. Among these modifications, those that comply with the new reporting obligations regarding the holding of virtual currencies and transactions carried out with them are particularly noteworthy. Furthermore, the obligation to report on virtual currencies held abroad is further developed through regulations. The first declarations related to the reporting obligations for virtual currencies must be submitted starting January 1, 2024.
We inform you that in the Official State Gazette (BOE) of April 5, Royal Decree 249/2023, of April 4, has been published, which, among other new features, introduces a series of regulatory modifications to implement various changes made by Law 11/2021 on measures for the prevention and fight against tax fraud regarding cryptocurrencies.
Among these modifications, those that comply with the new reporting obligations regarding the holding of virtual currencies and transactions carried out with them stand out. Likewise, the obligation to report on virtual currencies located abroad is further developed through regulations.
The first declarations relating to reporting obligations on virtual currencies must be submitted from 1 January 2024.
Information about balances in virtual currencies
Persons and entities resident in Spain and permanent establishments in Spanish territory of persons or entities resident abroad, that provide services to safeguard private cryptographic keys on behalf of third parties, to maintain, store and transfer virtual currencies, whether such service is provided as a main activity or in connection with another activity, will be obliged to submit an annual information declaration regarding all the virtual currencies that they hold in custody, in the terms established by the Ministerial Order that approves the corresponding model.
They will need to provide the following information:
- Name and surnames or company name or full name, address and NIF of the persons or entities to whom the virtual currencies correspond at any time of the year, whether as holders, authorized persons or beneficiaries.
- Balances as of December 31.
- Type of virtual currency.
- Number of virtual currency units as of December 31 and their valuation in euros.
- To carry out the valuation in euros, the obliged entities will take the quotation as of December 31 offered by the main trading platforms or price tracking websites or, failing that, will provide a reasonable estimate of the market value in euros of the virtual currency as of December 31, indicating the quotation or value used to carry out such valuation.
- Balances as of December 31 of fiduciary currency that, where applicable, they hold on behalf of third parties.
If, prior to December 31, the persons or entities to be reported had ceased to hold the virtual currencies in custody, the information to be provided will refer to the date on which such circumstance occurred.
Attention. The first declarations relating to this reporting obligation must be submitted from 1 January 2024 with respect to the information corresponding to the immediately preceding year.
Information about cryptocurrency transactions
It is also established that persons and entities resident in Spain and permanent establishments in Spanish territory of persons or entities resident abroad, that provide exchange services between virtual currencies and fiat currency or between different virtual currencies, intermediate in any way in carrying out such operations or provide services to safeguard private cryptographic keys on behalf of third parties, to maintain, store and transfer virtual currencies, will be obliged to submit an annual information return regarding the operations of acquisition, transmission, exchange and transfer of virtual currencies, whatever the agreed consideration, if any, as well as the collections and payments made in said currencies, in which they intervene or mediate, in the terms established by the ministerial order by which the corresponding model is approved.
The preceding paragraph shall not include persons or entities whose activity is limited to advising on virtual currencies, merely bringing together parties interested in carrying out operations with virtual currencies, or simply handling collection and payment orders in fiat currency from persons or entities that provide exchange services between virtual currencies and fiat currency or between different virtual currencies, or services to safeguard private cryptographic keys on behalf of third parties or their clients.
The information to be provided to the Tax Administration will include the name and surnames or company name or full name, address and tax identification number of the subjects who carry out the acquisition, transfer, etc. operations.
With respect to each transaction, the information to be provided to the Tax Administration will include the type of transaction, the date of the transaction, the type and number of units of virtual currency acquired, transmitted, exchanged or transferred, the value in euros for which the transaction is carried out and, where applicable, the fees and expenses associated with the transaction and which will be received by the person required to provide the information.
If consideration is involved and the party required to provide the information is the one who makes or receives it, acts as an intermediary in its receipt or delivery, or has knowledge of it, they must also indicate whether it consists of fiat currency, another currency or virtual asset, goods or services, or a combination thereof. When the transaction does not involve consideration entirely in fiat currency, and therefore it is necessary to value the transaction in euros, the reporting entities must use the exchange rate offered by the main trading platforms or price tracking websites on the date the transaction was carried out or, failing that, provide a reasonable estimate of the market value in euros of the virtual currency on the date the transaction was carried out. In this regard, they must indicate the exchange rate or value used to carry out such valuation.
Persons and entities resident in Spain and permanent establishments in Spanish territory of persons or entities resident abroad, who make initial offerings of new virtual currencies, will also be obliged to submit this annual information declaration with the information provided for in the previous section regarding the deliveries of new virtual currencies that they make in exchange for other virtual currencies or fiat currency, under the terms established by the ministerial order by which the corresponding model is approved.
However, when initial offerings of new virtual currencies are made through the intermediation of one of the entities required to report currency transfers, the annual information return must be made by the latter, regardless of the residence of the person or entity making the initial offering of new virtual currencies, and will include the identification of the latter and the information provided for in the previous section regarding all the operations referred to in section 1 of this article that are carried out, if applicable, within the framework of said initial offering, in accordance with the terms established by the ministerial order approving the corresponding model.
Attention. The first declarations relating to reporting obligations on virtual currencies must be submitted from 1 January 2024 for transactions carried out from 25 April 2023.
Information about virtual currencies located abroad
Natural and legal persons resident in Spanish territory, permanent establishments in said territory of non-resident persons or entities and the entities referred to in article 35.4 of Law 58/2003, of December 17, General Tax Law, will be obliged to submit an annual information return regarding all virtual currencies located abroad of which they are the owner, or with respect to which they have the status of beneficiary, authorized or in any other way hold power of disposal, or of which they are the beneficial owner in accordance with the provisions of the last paragraph of this section, held in custody by persons or entities that provide services to safeguard private cryptographic keys on behalf of third parties, to maintain, store and transfer virtual currencies, as of December 31 of each year.
This obligation also extends to those who have been holders, authorized holders, or beneficiaries of the aforementioned virtual currencies, or who have had power of disposal over them, or who were beneficial owners at any time during the year to which the declaration refers and who lost that status by December 31 of that year. In these cases, the information to be provided will correspond to the date on which such termination occurred.
The information to be provided to the Tax Administration will include:
- The name and surname or the company name or full name and, where applicable, tax identification number of the country of tax residence of the person or entity that provides services to safeguard private cryptographic keys on behalf of third parties, to maintain, store and transfer virtual currencies, as well as their address or website address.
- The complete identification of each type of virtual currency.
- The balances of each type of virtual currency as of December 31, expressed in virtual currency units and their valuation in euros.
To perform the valuation in euros, the obligated parties shall use the exchange rate as of December 31st offered by the main trading platforms or price tracking websites or, failing that, provide a reasonable estimate of the virtual currency's market value in euros. In this regard, the exchange rate or value used to perform such valuation shall be indicated.
Information on balances as of December 31 must be provided by the person who held the status of owner, beneficiary, authorized representative, or who otherwise had the power to dispose of the aforementioned virtual currencies or was considered the beneficial owner on that date. All other owners, beneficiaries, authorized representatives, persons with the power to dispose of the virtual currencies, or beneficial owners must indicate the balances of the virtual currencies on the date they ceased to hold such status.
The reporting obligation will not apply to the following virtual currencies:
- Those held by the entities referred to in Article 9.1 of Law 27/2014, of November 27, on Corporate Income Tax (State Administration and other public bodies).
- Those held by legal entities and other entities resident in Spanish territory, as well as permanent establishments in Spain of non-residents, registered in their accounting individually and identified by their name, value and custodian entity and country or territory in which they are located.
- Those held by natural persons residing in Spanish territory who carry out an economic activity and keep their accounts in accordance with the provisions of the Commercial Code, registered in said accounting documentation individually and identified by their name, value and custodian entity and country or territory in which they are located.
- There will be no obligation to report any virtual currency when the combined balances as of December 31, valued in euros, do not exceed €50,000. If this combined limit is exceeded, all virtual currencies must be reported.
This obligation must be fulfilled between January 1 and March 31 of the year following the year to which the information to be provided refers.
Filing a declaration in subsequent years will only be mandatory when the total balance has increased by more than 20,000 euros compared to the balance that determined the filing of the last declaration.
The corresponding declaration form will be approved by ministerial order.
Attention. The first declarations relating to this reporting obligation must be submitted from 1 January 2024 with respect to the information corresponding to the immediately preceding year.
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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