Spain Sets Binding Criterion on NFT Taxation: Personal Income Tax, VAT, and Contrast with MiCA
- Business Expats
- Sep 27
- 3 min read
The Binding Ruling V0138-25 of the Spanish Directorate-General for Taxation (DGT) establishes, for the first time, an explicit framework for the tax treatment of non-fungible tokens (NFTs) in Spain. The case concerns a digital artist who creates and sells NFTs through marketplaces and metaverses, raising questions about their taxation under Personal Income Tax (IRPF) and Value Added Tax (VAT).
As a binding ruling, it generates precedent with immediate practical effects for artists, developers, and platforms.
IRPF: Business Income vs. Savings Base
The DGT applies to NFTs the same reasoning already used for cryptocurrencies: they are intangible assets. The key lies in the context in which income is generated:
Professional activity: If the sale of NFTs takes place within an organized, professional activity (e.g., a digital artist who regularly creates and markets works as NFTs), the income is classified as business income (Arts. 27, 45, and 48 of the IRPF Law). It is integrated into the general tax base and subject to progressive rates of up to 47%.
Occasional investment: If the transfer of NFTs is occasional and does not constitute a professional activity (e.g., an individual who buys an NFT as an investment and later sells it for profit), the income is treated as a capital gain or loss and integrated into the savings base (Arts. 33 and 46 LIRPF). These are taxed at 19–28%.
The case resolved concerned a creative professional, and therefore the ruling placed the income in the general base. However, it implicitly recognizes that an investor or collector could fall within the savings base, consistent with the treatment of cryptocurrencies.
VAT: Electronic Services at 21%
The DGT rules out classifying NFT sales as a supply of goods (Art. 8 VAT Law), since no tangible property is transferred. The object of the transaction is the digital certificate of authenticity represented by the NFT.
Thus, NFT sales are deemed electronic services (Art. 69.3.4 VAT Law and Art. 7 Reg. 282/2011), subject to the general VAT rate of 21% in Spain, unless the place-of-supply rules determine otherwise.
Key points highlighted:
Marketplace intermediation: If the platform acts in its own name (as is often the case), it is deemed to be the supplier vis-à-vis the final purchaser, bearing the obligation to charge and remit VAT (reinforced by the CJEU in Case C-695/20, Fenix International).
Tax base: When consideration is paid in crypto, it must be converted to euros at the transaction date, using the value provided by the platform managing the seller’s wallet.
The Contrast with MiCA: Uniqueness vs. Uniform Taxation
The ruling explicitly acknowledges the EU framework. Regulation (EU) 2023/1114 (MiCA) excludes genuinely unique and non-fungible NFTs (Art. 2.3 and Recitals 10–11), but warns that the exclusion is not automatic: fractionalized collections or “pseudo-unique” assets may be deemed fungible and subject to supervision.
This creates regulatory tension:
Spain, fiscally: Applies a unitary approach — every NFT is an intangible asset, taxable either as business income or as a capital gain.
EU, under MiCA: Requires a substance-based analysis distinguishing artistic NFTs, serial collections, or economically functional NFTs, applying transparency, registration, and in some cases treatment as financial instruments.
As a result, the same NFT could be taxed in Spain as a simple electronic service with 21% VAT, while simultaneously classified under MiCA as a financial asset subject to regulatory obligations.
Practical Conclusions
The ruling establishes a clear tax framework:
For IRPF, NFT income may be taxed under the general base (professional activity) or savings base (occasional investment).
For VAT, NFT sales qualify as electronic services, taxed at the general 21% rate, unless exceptions apply.
Platforms may be deemed VAT taxpayers when intermediating transactions.
The tax base must be determined in euros, even if consideration is in cryptocurrency.
The Spanish framework, strictly fiscal, falls short of MiCA’s substantive approach, which opens the door to NFTs being treated as financial assets.
At Business Expats, we believe the real challenge for artists, marketplaces, and investors lies in reconciling national tax rules with the EU’s regulatory classification, anticipating possible conflicts of criteria. This will be one of the central themes of our upcoming October 10 event, where we will explore how to structure NFT and crypto-asset operations in a landscape where taxation and regulation can no longer be addressed separately.
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