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In brief

Blockchain’s interface with traditional institutions and financial systems provides revenue authorities with a digital trail, and with the growing risk of tax evasion and fraud in crypto-investments, authorities are incentivized to pursue recalcitrant taxpayers. Aside from good governance considerations, the financial risks of tax non-compliance are high. Revenue authorities are also increasingly utilizing information from other revenue authorities through both automatic exchange of information rules and specific requests for information. Taxpayers should not discount the risk of otherwise anonymous transactions being revealed to a revenue authority. This article looks at recent developments in tax regulations for cryptocurrency in South Africa.

This article was written by Tsanga Mukumba, Tax Associate, and Simon Mateus, Candidate Attorney, with oversight from Ashlin Perumall, IPtech Partner, Johannesburg.


In depth

Tax and blockchain are niche, technical fields, and solving the puzzles encountered where these two complex systems interact can be daunting, even for the initiated. The ever-evolving spectrum of use cases for blockchain technology and investment types has generated an equivalent number of tax compliance permutations. For example, the scope of tax compliance obligations of cross-border digital service providers, such as exchanges, is far removed from those of an individual trading in crypto-currency, let alone institutional investors structuring crypto-focused funds or investment products for the retail market.

The decentralized nature and anonymity inherent in blockchain technology create the impression that such transactions fly under the radar of revenue authorities. However, blockchain’s interface with traditional institutions and financial systems provides revenue authorities with a digital trail. With the heightened risk of tax evasion and fraud in crypto-investments, authorities are incentivized to pursue recalcitrant taxpayers. Aside from good governance considerations, wherever the values involved are material, the financial risks of tax non-compliance are equally high.

Tax compliance

Tax compliance for crypto-investments incorporates the standard considerations, viz correctly determining the amount of tax payable, compliance with the applicable disclosure requirements for the tax payable to be confirmed by a revenue authority, and finally, timely payment of the relevant amount of tax.

SARS’ position has been that gains and losses arising from crypto-investments can be dealt with under the ordinary tax rules and principles applicable to any other transaction. Given the flow of value between taxpayers, this is correct, and the normal rules of income tax will seamlessly apply. In 2018, ‘Cryptocurrency’ as a concept was introduced into the definition of ‘financial instrument’ in the Income Tax Act 1958. This brought cryptocurrencies within the scope of a broad range of targeted provisions of the Income Tax Act, including certain anti-avoidance rules dealing with tax avoidance using financial instruments. In 2020, the definition of ‘financial instrument’ was further broadened by amending ‘cryptocurrency’ to ‘crypto asset’, bringing a wider range of intangible assets within the scope of these targeted provisions.

Despite their inclusion within the SA tax law framework, applying these tax rules in a crypto-investment environment can be challenging. The evolving nature of crypto-investments generates novel tax compliance scenarios that require professional expertise to navigate. Where the amount of tax owed has been incorrectly determined, SARS is empowered to levy understatement penalties of between 0% and 200% of the shortfall.

Although the existing law can capture all relevant transactions, there are practical shortfalls with respect to enforcement. SARS requires taxpayers to disclose crypto-investment gains and losses as the primary source of information. Where a taxpayer does not voluntarily disclose and refuses requests for disclosure, SARS may rely on its potent information-gathering powers to force the taxpayer, their advisors who do not benefit from attorney-client privilege, and third-party service providers to produce the relevant information.

For SARS to apply relevant tax laws and determine compliance requirements, it must first be aware of the transaction. This may prove complex, given that without a taxpayer’s blockchain address or wallet ID, it is difficult to assess their on-chain digital trail. With the advancement of technology, such activity may become easier to track. For off-chain audits, some tax authorities have begun leveraging the information available at digital currency exchanges and peer-to-peer facilitators. Clearly, tax authorities are becoming more dynamic in their assessment of crypto asset transactions.

Aside from technology, revenue authorities are increasingly utilizing information from other revenue authorities through both automatic exchange of information rules and specific requests for information. This has been facilitated over time by developments such as the Foreign Account Tax Compliance Act, country-by-country reporting, the Convention on Mutual Administrative Assistance in Tax Matters, and the Multilateral Convention to Implement Tax Treaty-Related Measures to Prevent Base Erosion and Profit Shifting. Taxpayers should, therefore, not discount the risk of otherwise anonymous transactions being revealed to a revenue authority. Considering the significance of tax compliance risks, external tax professionals are playing a critical role in safeguarding economic returns from crypto against unnecessary tax costs.

Author

Ashlin Perumall is a partner in Baker McKenzie's corporate/M&A and IPTech practice groups in Johannesburg. Ashlin specialises in technology-focused matters, including M&A and venture capital transactions, and the commercial aspects of intellectual property (IP). His practice extends to advising on emerging technology business models and establishing legal, compliance or diligence assessment frameworks for novel targets in various industries, where a high degree of technical expertise is required. These include acting as key advisor to clients entering the fintech (including paytech, open banking, digital banking and financial APIs), blockchain and distributed ledger tech, AI/Machine Learning as a Service (MLaaS) in the auditing industry and digital asset sector. He has over a decade of experience is assessing emerging technology and novel IP acquisition targets. Ashlin has also worked in the Firm's London office and served as a Fellow to the World Economic Forum's Centre for the Fourth Industrial Revolution (4IR) in San Francisco as part of our partnership with the forum to address global, regional and industry policy issues in respect of 4IR technologies, conducting regulatory and policy research, and paper writing as part of the Digital Currency Governance Consortium (DCGC).

Author

Tsanga Mukumba is an associate in Baker McKenzie's Tax Practice Group in Johannesburg.

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