The emergence of cryptocurrencies in global financial markets has become a magnet for investors of all kinds, but also a source of serious problems for governments due to their high potential for large-scale speculation, pyramid fraud, money laundering. capital and tax fraud. The regulatory initiatives that have been proposed so far in Spain – by the Bank of Spain regarding the registration of platforms or by the CNMV regarding advertising, for example – stem from a root difficulty: the fact that they are National regulations whose jurisdiction is limited to the Spanish market and are ineffective for a digital universe without borders, with operators that for the most part do not have establishments or offices in Spain.
The latest regulatory proposal so far is provided for in the new anti-fraud law, which requires the taxation of capital gains derived from transactions with crypto assets, but whose jurisdiction is once again limited only to operations carried out by Spanish platforms or that have permanent establishments in Spanish territory. The text, which imposes on these companies the duty to inform the Tax Agency about the transactions, obliges the investor to pay taxes on their capital gains at a rate of between 19%, for profits of up to 6,000 euros, and 26%, for those over 200,000 euros. In the case of capital gains of 6,001 to 50,000 euros, the rate will be 21%, and from 50,001 to 199,999 euros, 23%.
The legitimacy of taxing the obtaining of capital gains in operations with crypto assets, as well as of requiring platforms that operate with them to report on transactions, is indisputable, as is usually the case with banks and financial intermediaries when it comes to of stock market operations likely to have generated profits. But one thing is the legitimacy of a norm and another its effectiveness, and both are indispensable in the application of the laws. Although Spaniards who obtain capital gains with crypto assets traded by foreign platforms have a legal obligation to declare this increase in assets, the anti-fraud law cannot require these companies to report transactions, which greatly reduces the effectiveness of the standard. This is further proof of the need to move towards international and coordinated regulations that allow this market to be supervised with guarantees, limit those transactions for illegal purposes and develop sufficient protection for the most vulnerable investors.