Digital wallet service providers

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Now it must be considered that private keys can also be managed by third parties (custodial wallet). In this case, the anti-money laundering discipline of Legislative Decree 231/

2007 is relevant, which has identified the figure of “”, that is, those subjects who provide “services for the protection of private cryptographic keys on behalf of their customers, in order to hold, store and transfer virtual currencies ».

The indication in part RW should exist only for cryptocurrencies for which the private keys are managed by the custodial wallet, if the latter is a resident or domiciled abroad. The indication would not make sense, however, for cryptocurrencies managed through custodials residing in Italy, as there is no link with foreign countries.

This interpretation is also strengthened in consideration of the sanzonatory aspect.

Pursuant to Article 5, paragraph 2, of the Legislative Decree 167/1990 the violation of the obligation to declare investments abroad or foreign activities of a financial nature, capable of producing taxable income in Italy, is punished with a pecuniary administrative sanction ranging from 3 to 15 per cent of the amount of the amounts not declared.

The above violation relating to the holding of investments abroad or foreign assets of a financial nature in the States or territories with a privileged tax regime referred to in the decree of the Minister of Finance of 4 May 1999

(identification of States and territories with a privileged tax regime ), published in the Official Gazette no. 107 of 10 May 1999, and the decree of the Minister of Economy and Finance 21 November 2001 (identification of the

States or territories with a privileged tax regime pursuant to art.127-bis, paragraph 4, (Deleted by: Legislative Decree of 344 of 12/12/2003 Article 1) of the consolidated income tax law (so-called “black list”), published in the Official Gazette no. 273 of 23 November 2001, is punished with a pecuniary administrative sanction from 6 to 30 percent of the amount of the undeclared amounts.

The fact that the penalties provided for the violation of the declaration obligation are linked to the “type” of States or territories can only be relevant for virtual currencies held through custodial wallets located abroad and not for the natural person residing in Italy which directly holds the private key.

Another problem that arises for cryptocurrencies and tokens is that of the indication in the RW part of the tax return.

Obligation, if any, which concerns individuals, non-commercial entities and simple and equivalent companies (pursuant to Article 5 of the TUIR). From 2019 (tax period 2018), the instructions for completing part RW provide for the obligation to also indicate virtual currencies, without the need to report the foreign state of detention. The Lazio TAR expressed itself in similar terms, with sentence 1077/2020. The Revenue also stated that VAT is not due.

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