Monitoring obligations

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We reiterate: the question that arises is whether virtual currencies can really be considered “foreign assets of a financial nature” – subject to the obligation to complete part RW, based on article 4 of Legislative Decree 167/1990 – certainly not falling within the concept of “investments abroad”.

In particular, the doubt revolves around the concept of ‘foreign assets’. The fact is that cryptocurrencies and tokens do not objectively have any connection with a territory, be it national or foreign. It can be said, in simplistic but still effective terms, that cryptocurrencies are in the “network” (in fact, in the blockchain), for which there is neither a concept of “foreign” nor of national territory.

Thus their non-territorial dimension cannot be assimilated, in most cases, to that of foreign financial activities. Consequently, the provision of the director of the Revenue Agency with which the declarative models are approved that provide for the obligation to indicate cryptocurrencies in the RW framework

(most recently the provision 28928/2021 of last January 29 for the 2021 models) and the instructions for completing part RW which provide for the obligation to indicate also virtual currencies, without the need to report the foreign State of detention, is in contrast with the primary reference standard (article 4 of Legislative Decree 167/1990).

There should be no doubt that the obligation of fiscal monitoring should not exist in the event that the natural person resident in Italy has the availability of the private key, given that in this case the place of holding of the virtual currencies can only coincide with the State where the taxpayer is resident for tax purposes and, in this case, one cannot speak in any way of assets held abroad.

On the other hand, as noted: 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, with sentence 1077/2020 affirmed that: “the deeds with which, in approving the instructions for the compilation of the Single Individual Model 2019, are indicated as to be included in the RW part, among the financial income of foreign origin,

even virtual currencies, do not have a constitutive nature of the corresponding tax obligation, but are merely acknowledgment of already existing declaratory obligations, as defined pursuant to art. 1 and 4 of Legislative Decree 167/1990, converted into l. 227/1990 (amended by Legislative Decree 90/2017) and within the relative limits “.

However, it does not seem to have been clarified whether, in the case of virtual currencies, the monitoring obligation does not exist for wallets whose total maximum value reached during the tax period does not exceed € 15,000, the threshold envisaged for current accounts and bank deposits held abroad.

By assimilating wallets to bank deposits, for declarative purposes, the same value limits should apply.

On the other hand, it could be argued that the purchase of cryptocurrencies would be subject to  even if of a value of less than 15 thousand euros (Article 4, paragraph 3, Legislative Decree 167/1990) as the aforementioned limit is aimed only at “deposits and accounts bank currencies “,

while the Bank of Italy (communication of 30 January 2015) stated that cryptocurrencies are not legal tender currencies (” Virtual Currencies are not legal tender and must not be confused with electronic money “).

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