Does the tax qualification change if an NFT is a digital asset only or a digital asset with a physical counterpart?
While an NFT is a token according to a certain standard – and within this standard uniform – the
underlying rights and claims represented through that NFT vary widely. German Tax Law starts from
civil law qualifications but eventually takes an economic perspective. Therefore, every NFT must be
assessed on its own and the underlying rights and claims must be classified for tax purposes.
Accordingly, yes, tax qualifications change and are surely not the same for every NFT.
It can be considered merchandise depending on the State tax, such as the Tax
Consultation 22.841 of 2020 of the State of São Paulo. The key point here is to understand if
the main thing in the operation to be carried out is the supply of the physical product or if this
is just a gift linked to the NFT. This analysis involves the evaluation of cost, form of disclosure
and delivery to the acquirer. There is no specific legislation on the subject, only separate state
decisions on equitable or similar situations.