Navigating Dutch tax and financial regulatory laws on NFTs

The emergence of cryptocurrencies (fungible tokens) and non-fungible tokens (NFTs) has ushered in a new era of digital assets, presenting unique challenges for legislators and authorities worldwide, including the Netherlands. And the scene is set to develop further once the EU Markets in Crypto Assets Regulation comes into effect.

High level Dutch tax developments

Guidance relating to NFTs is mainly initiated at EU-level, such as through DAC8 and the recent EU VAT committee working paper on NFTs.

DAC8 focuses on the exchange of information: crypto exchanges and certain other online platforms will be required to share detailed user information with tax authorities to ensure that tax enforcement is strengthened.

The EU Working paper on NFTs addressing the value added tax (VAT) consequences of NFTs aims to assist taxpayers, tax authorities and market participants in understanding the VAT considerations associated with NFTs, acknowledging the evolving nature of this market and the potential need for future updates to VAT regulations.

No definition of NFTs in tax rules

There is no definition of an "NFT" in the EU legislation or Dutch domestic laws.

The EU's recent working paper on NFTs recognises the need to determine the VAT treatment of NFTs based on the specific characteristics and purpose of the transactions. It describes an NFT as a digital unit (commonly referred to as a token) on a "distributed ledger", consisting of an identification code and metadata. The identification code is used to identify the token and the metadata refers to what the NFT represents: the asset. This asset might, for instance, contain a digital portrait painting or the ticket to a physical concert depending on the NFT.

Generic Dutch tax rules and NFTs

 Determining the appropriate tax treatment of NFTs can be challenging due to the absence of clear guidance, although in certain cases, the generic Dutch tax rules provide clarity.

The Dutch tax consequences, including complications and uncertainty, in relation to certain uses of NFTs include:

Wage tax

 An NFT received by an employee (in relation to employment activities) is generally considered wage in kind subject to regular Dutch wage withholding tax.

Accordingly, the Dutch employer should withhold the applicable Dutch wage withholding tax on the value of the NFT and remit the tax in EUR to the Dutch tax authorities. In this regard, valuation implications may arise as the value of the NFT may be difficult to be determined in EUR (as opposed to a crypto such as Bitcoin (BTC).

Gift tax

Donations in the form of NFTs are not treated differently from regular donations in cash or in kind. Valuation implications may also arise in respect of the donations in NFTs (which should be valued at fair market value at the moment of the donation).

Personal income tax

The tax treatment of the NFT depends on whether the individual is a passive investor or is conducting business activities with the NFTs.

A Dutch passive investor individual owning the NFTs would normally not be subject to tax on income and capital gains realised on the NFTs. Instead, this Dutch individual is taxed at a flat rate of 32% (2023) on deemed income equal to 6.17% (2023) of the value of the NFTs at the beginning of the calendar year.

A Dutch individual conducting business activities in relation to NFTs may be subject to tax on the income and gains derived from the NFT against progressive tax rates up to 49.50%. In practice this means that it will have to be determined, taking into account all relevant facts and circumstances, whether minting, owning and/or selling NFTs goes beyond normal asset management activities, but instead gives rise to conducting business activities.

Corporate income tax

The tax consequences for a corporate taxpayers are fairly straightforward: any income derived from the NFTs should in principle be included in taxable income and corporate costs in relation to minting or selling NFTs should in principle be deductible or capitalised.

Real estate transfer tax

Will Dutch real estate transfer tax (RETT) be due by the acquirer of an NFT representing 100% of the economic ownership of Dutch real estate? We would expect so given that existing Dutch RETT laws would generally tax economic ownership transfers, regardless of the instrument on the basis of which the economic ownership transfer takes place.

Explicit guidance from the Dutch tax authorities would provide certainty and could also address the application of RETT-exemptions as well.

VAT

What is the view of the Dutch tax authorities on the VAT consequences of transactions linked to NFT? Can we expect that the Dutch tax authorities will follow the view set out in the EU working paper on NFTs? Based on that paper, each transaction linked to an NFT may be subject to a different VAT treatment depending on whether (i) it is a supply of services or goods, (ii) the supply is made for a consideration and (iii) the supply is made by a taxable person acting as such.

By comparison, it is interesting to see how Spain, Belgium and Norway view the VAT treatment of NFTs.

In a Spanish binding ruling, it was determined that the sale of an NFT granting rights to use edited pictures with Photoshop is classified as a service provided electronically, thus subject to VAT at the general rate of 21%. In Belgium, the Finance Minister officially stated that transactions involving NFTs should be subject to VAT at a rate of 21% if they take place in Belgium, and NFTs are not considered a means of payment but rather digital collections or objections of digital art. The Norwegian tax authorities consider the supply of an NFT as an electronically supplied taxable service. They clarify that sales of digital art in the form of an NFT do not qualify for the VAT exemption applicable to tangible art. The minting of an NFT is not subject to VAT.

In our view, the working paper on NFTs correctly concludes that the prevailing consensus categorising NFTs as electronic services may not capture the full complexity of the situation, and urges caution in drawing hasty conclusions.

Without precise categorisation of NFTs, taxpayers are left to interpret existing Dutch tax laws, which may not adequately cover the unique characteristics of an NFT. Explicit guidance on this subject from the Dutch tax authorities on NFTs would be beneficial. The Dutch tax laws can be complex and subject to change. It is therefore advisable for taxpayers to consult with a tax lawyer on how the Dutch tax laws would apply to specific situations.

Financial regulatory laws and NFTs

At EEA-level, there currently is limited legislation on crypto and NFTs. Crypto and NFTs are mostly dealt with locally and the requirements vary per EEA jurisdiction. However, this will change with the upcoming EU Markets in Crypto Assets Regulation (MiCAR), most of which provisions are expected to apply from January 2025. MiCAR contains a uniform set of rules for the entire EEA and will directly apply in all EEA jurisdictions.

Current landscape

Under the current regulatory framework in the Netherlands, NFTs as such are unregulated. NFTs or NFT-related services may however be caught within the scope of other regulated products and/or services:

• Regulated products: depending on its characteristics, an NFT may for example be considered (i) a security (effect), (ii) an investment object (beleggingsobject) (iii) a derivative (derivaat), (iv) e-money (elektronisch geld) or (v) an art object (kunstvoorwerp).
• Regulated services: an NFT-related service may under certain circumstances also be regulated, for example if one has a role in the payment or exchange flow regarding the buying and selling of the NFTs, or holds funds or NFTs belonging to clients.

NFTs come in a variety of forms and despite the fact that NFTs as such are unregulated in the Netherlands, it is not unthinkable that an NFT or NFT-related service falls within the scope of other regulated products or services. Organisations that intend to issue, offer NFTs or provide services such as the operation of an NFT platform or NFT brokerage should analyse whether or not the NFTs or services are caught by Dutch financial regulatory laws and if so, which financial regulatory requirements will apply.

Expected impact of MiCAR

In essence, MiCAR will regulate issuers of crypto-assets and crypto-asset service providers that provide services in the EEA.

The term crypto-asset is broad and, in principle, also includes NFTs, with the exception of crypto-assets that are "unique and not fungible with other crypto-assets".

For an NFT to fall under this exception, not only the NFT itself but also the assets or rights represented must be "unique and non-fungible". Fractional parts of a unique and non-fungible crypto-asset are not covered by the exception and are therefore in principle in scope of MiCAR. For the determination as to whether an NFT is unique and not fungible the actual features and characteristics of the NFT are decisive, not the classification as NFT by the issuer.

How MiCAR will relate to other existing legal frameworks is not fully clear yet. For some existing frameworks, MiCAR does define the relationship. By way of example: crypto-assets that qualify as financial instruments are excluded from MiCAR and will continue to be covered by existing frameworks, such as the EU Markets in Financial Instruments Directive regime (MiFID II). Excluded from MiCAR or not, it will also have to be considered if an NFT or NFT-related service falls within the scope of other legal frameworks.

For more details on the treatment of NFTs under MiCAR, please see our Osborne Clarke blog post "MiCAR and NFT – a controversy".

If you would like to discuss any of the issues raised in this Insight, please contact one of our experts below