Nowadays, the adaptation to the digital world is increasing rapidly with technological developments and the effects of the Covid-19 epidemic. Accordingly, virtualization of money, investing in the virtual environment, and earning profits from virtual investments have also become possible. We would like to point out that although cryptocurrency was firstly introduced in 2009, it started to become widespread all over the world in a short time due to reasons such as not being affiliated with any authority and being anonymous. In our country, especially in 2017, cryptocurrencies that became more popular are included in our lives as an investment and/or payment method. Although cryptocurrencies are included among the payment methods in international trade agreements today, crypto-assets were defined for the first time in Turkish law and regulations have been introduced that they cannot be used directly or indirectly in payments with the Regulation on not Using Crypto Assets in Payments (“Regulation”) published in the Official Gazette dated 16.04.2021 and numbered 31456.
According to the Regulation, crypto-assets refer to intangible assets that are created virtually using distributed ledger technology or similar technology and distributed over digital networks; however, crypto assets are not classified as credit money, bank money, electronic money, payment instrument, security, or other capital market instrument.
Within this scope, even though there is a Regulation that crypto-assets cannot be used as a payment method in our country; cryptocurrencies are accepted as a legal payment instrument and determined as a financing method in many countries and there is no doubt that cryptocurrencies are used as accumulation and investment method in Turkey. Existing legal regulations are insufficient in the taxation of earnings from crypto assets, this Article is about the evaluations regarding the taxation of cryptocurrencies in the Turkish tax system.
II. INTERNATIONAL APPROACHES AND THE CURRENT SITUATION IN TURKEY
In 2018, in the EU Anti-Money Laundering Directive, cryptocurrency is defined as a digital value that is not issued and guaranteed by any central bank or public authority, is not tied to local currencies accepted by law, does not have the same legal status as foreign currency or money, is transferred, stored, purchased and sold in the electronic environment, and accepted as a means of exchange by natural or legal persons.
It should be noted that different taxation systems are applied to cryptocurrencies around the world. Cryptocurrencies are defined by the United States Internal Revenue Service as “transferable virtual money” and stated that the difference between purchase and sale of cryptocurrencies is the profit from purchase and sale and should be taxed. Within this context, while income tax is levied on cryptocurrency holders in the USA, taxes are only imposed on values higher than six hundred euros in Germany. It has been announced by the HM Revenue and Customs (“HMRC”) that crypto assets are not accepted as currency and cryptocurrencies are mostly used as individual investment instruments. In this regard, it has been stated by the HMRC that cryptocurrencies are considered as intangible assets and will be subject to an increase in value in case of disposal, and it has been stated that the relevant income tax laws will be applied if cryptocurrency activities are carried out within the scope of a business. Studies have already been started on a 20% tax on income from South Korea. In addition to these, similar to Turkey, taxation has not yet started in Malta, Portugal, Hong Kong and Singapore.
On the other hand, in a worldwide study on cryptocurrency taxation conducted by the Organization for Economic Co-operation and Development (“OECD”); it has been determined that cryptocurrencies are defined as intangible or financial assets in many countries, as commodities in some countries and as money in some countries and it has been pointed out that the tax law dimension of cryptocurrencies is notably unstable. According to OECD’s G20 Tax Report; the exchange of cryptocurrencies and credit currencies is considered as a “taxable event” by almost all countries except Italy, the Netherlands, Portugal and Switzerland.
Turkey is one of the countries that use cryptocurrency the most, with a daily transaction volume exceeding 1 billion dollars. It should be remarked that although there is no regulation on the taxation of cryptocurrency in our country;
- In 2013, it was stated by the Banking Regulation and Supervision Agency (“BRSA”) that cryptocurrencies are not electronic money.
- According to the New Economy Program published towards the end of 2020, it has been announced that tax regulation is planned for the “acquisition, purchase, sale and transfer” of crypto financial assets between 2021 and 2023.
- Within the scope of the “Economic Reform Package” and “Economic Reforms Action Plan” announced on March 12, 2021, the studies conducted to create the economic, technological and legal infrastructure of digital money will be completed by the Capital Markets Authority, the Turkish Revenue Administration, the Central Bank of the Republic of Turkey (“CBRT”) and the BRSA in coordination with the Ministry of Treasury and Finance until 31.12.2021.
As it is understood, studies on the taxation of cryptocurrencies have been accelerated due to a significant income potential for our country. While regulations are being made regarding tax legislation in our country, it will be important to determine how to qualify cryptocurrencies first, and the procedures and principles regarding the taxation of cryptocurrencies will only be determined after the qualification.
III. TAXATION METHODS OF CRYPTOCURRENCIES IN TURKEY AND APPLICABLE TAX TYPES
As explained above, discussions on the qualification and taxation of cryptocurrencies continue in Turkey as in many countries, and the subject of the earnings must be determined in order to tax the earnings from cryptocurrency. In this context, cryptocurrencies may be considered as “security”, “commodity” or “money”.
- Security: Security is a legal instrument that provides the right of partnership or credibility used as an investment tool in the medium and long term. In order for cryptocurrencies to qualify as securities, they must be treated as “financial assets”. In this case, the purchase and sale of cryptocurrencies will generally be the subject of income tax. The increase in value of the income obtained as a result of the purchase and sale transaction and the commissions earned by cryptocurrency exchanges will represent commercial earnings. When cryptocurrencies are evaluated as securities, they are not subject to VAT, but if the value increase exceeds TRY 19,000 for 2021, the excess will be subject to income tax. However, some problems will arise due to the qualification of securities, these are the main ones; difficulties in determining the law of the country where the exchanges are made and drawing international borders regarding taxation.
- Commodity: It is stated that two types of taxation can be made if cryptocurrencies are considered as commodity. If there is no continuity component in the activity, it is considered as incidental gain. If it is accepted as an incidental gain, TRY 43,000 of the income will be considered as an exception for 2021 and if it exceeds this amount, the excess will be subject to income tax. However, if the purchasing and selling process is carried out continuously in order to benefit from the increasing exchange rate of cryptocurrency, and is being used continuously within commercial activities, the profit will be commercial gain. In addition, as a result of the evaluation of cryptocurrencies as commodities, the event that gives rise to VAT will occur in terms of the Value Added Tax Law, and cryptocurrencies will be subject to VAT. In this case, determining whether these purchasing-selling transactions are commercial gains or incidental gains may create problems.
- Money: Money in a broad sense is a document with both tangible and intangible qualities that includes the functions of exchange, storage of value and being a unit of account. As stated in the definition, the money has three functions which are; being an exchange instrument, storing value and being an account unit. If the cryptocurrency is accepted as a currency, it will be evaluated within the jurisdiction of the CBRT and will not be subject to any taxation. Since cryptocurrencies do not have all the features in the definition of money and are not subject to any taxation if they are qualified as such, the possibility of being qualified as money seems distant.
If assessments should be made based on the approaches in Turkey, since it is stated by the Capital Markets Board that the existence of a security depends on the existence of a real asset on which it is based, it is seen that the security approach of our financial system and cryptocurrency do not correspond. In addition, it is considered that cryptocurrencies cannot be qualified as a currency, since they should not be printed by the CBRT and should be printed for a value. As a result, it seems possible to qualify cryptocurrencies as commodities considering the ongoing discussions in Turkey and the assessments of institutions.
Based on all the statements above, cryptocurrencies are preferred due to their liberal and decentralized structures and create competition due to their limited number, and it is clear that they will take place more actively in our lives in the future. In this respect, it is inevitable that the disputes arising from cryptocurrencies will increase and new legal regulations must be made. First of all, the nature of cryptocurrencies should be determined and action should be taken at the point of taxation of the income obtained from cryptocurrencies. On the other hand, considering the difficulties of identifying the owners of cryptocurrencies and tracking transactions, it will be substantial to impose a level of taxation that will not lead investors to be unregistered.
Kılınç Law & Consulting
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