Which tax model applies, if an an independent artist sells his NFT via his corporation?
Select jurisdiction
Germany
Depending on the circumstances of the individual case, this can be either taxable income from artistic activity; according to sec. 18 (1) no. 1 EStG or a commercial activity within the meaning of sec. 15 EStG. Income from commercial activities according to sec. 15 EStG, can already exist by virtue of the legal form or can arise through the scope of the taxpayers activity, according to sec. 15 para. 2 EStG. According to sec. 15 para 1 nr. 2 EStG, the earnings must be taxed as income from commercial trade or business on the level of the partner (Transparenzprinzip). Income from commercial trade or business inevitably leads to trade tax, too.
France
The tax model would depend on the corporate structure: limited liability company (LLP being
subject to corporate tax itself) or partnership (members being subject to income tax on their
share of the partnership's profits).
But in both cases, the value in euros of the sales of NFT, calculated by reference to the
value in euros of the crypto-currencies received in payment at the date of the sales, will
constitute taxable operating income.
Note that the French Accounting Standards Authority (Autorité des normes comptables or
“ANC”) has provided guidelines regarding the accounting and tax framework for token sales.
In summary, when the issuer of tokens makes an explicit or implicit commitment to
subscribers to provide a good or service for the tokens, the sale proceeds are not taxed in
the year of issuance but based on the development of the project. These clarifications
usually prevent all the funds raised in the context of an ICO from being considered as
taxable turnover in the year of the operation. We have experienced situations where the
French tax authorities have accepted to apply this solution in the context of the sales of NFT.
Brazil
Sales of NFT by individuals are subject to IRPF (Brazilian income tax) entry, as described in the IRPF 2022 Manual – item 455, based on Normative Instruction RFB 2065/2022, article 11. In the case of a sale, capital gain must be calculated (positive difference between cost/acquisition and sale). The sale of an NFT assigned to a company that will carry out the sale subjects the artist to the receipt of royalties and/or a commission for the sale, depending on the specific case.
