For years, the Israel Tax Authority has been trying to lay hands on the profits of Israelis active in the cryptocurrency market that are liable to tax in Israel. A week ago, a report by the State Controller indicated that taxing these profits could yield NIS 3 billion annual revenue, which is being lost because of lack of enforcement in this area.
As far back as 2018, the Israel Tax Authority published a position paper according to which a digital currency is considered an asset for tax purposes, and investors in digital currencies will be assessed for capital gains tax at 25% of their profits, as long as the activity does not amount to a business. Now, a few days after the release of the State Comptroller’s report, the Israel Tax Authority has published a new draft bill to anchor the stance it declared six years ago in legislation. The bill also clarifies when gains from dealing in cryptocurrencies are considered "Israeli" for tax purposes.
The draft bill, published by the Israel Tax Authority and the Accountant General’s Office in the Ministry of Transport, defines a digital asset, and determines that cryptocurrencies and other digital assets, among them digital tokens and NFT, will be classed as assets under the Tax Ordinance, and liable to capital gains tax. If the activity amounts to a business, it will taxed as a company, or at the trader’s marginal rate of tax.
A capital gain on the sale of a digital asset will be considered to arise in Israel if the seller was an Israeli resident when the asset was bought. In addition, if the digital asset embodies a direct or indirect right to property situated in Israel, or for an Israeli resident, the seller will be liable to capital gains tax on its sale.
Adv. Itay Bracha, managing partner of taxation specialist firm Bracha & Co., says, "The amendment concerning the location where the income is produced is intended to overcome interpretation of the law according to which the asset is located outside Israel, which can sometimes lead to an exemption from taxation in Israel. The amendment is also designed to regularize the vague legal situation of a new immigrant who holds cryptocurrencies and sells them after immigration. Under the proposed amendment, as long as the currencies possessed by the immigrant do not confer any direct or indirect ownership of an asset or company in Israel, he or she will be exempt from tax in Israel on the sale of currencies bought before immigration."
Bracha points out that if the new immigrant buys cryptocurrencies after the immigration date, then, since he or she will already be considered an Israeli resident, gains on the sale of these currencies will be liable to tax in Israel, contrary to the existing exemption for new immigrants that applies to foreign securities bought even after the immigration date. "This is a taxation distortion," he says.
"The amendment will affect all traders in and holders of cryptocurrencies who thought until now, by themselves or because of a legal opinion they received, that cryptocurrencies could be classified as currencies rather than as assets, and that the rise in value of the bitcoins they hold would be exempt from tax in Israel," he adds.
The Israel Tax Authority estimates that state revenues have been deprived of taxation on billions of shekels in gains on sales of cryptocurrencies, and hopes that the legislation will provide greater certainty in this area, and also ensure better management of the risks this activity poses to the economy, such as tax evasion and the use of digital assets to launder money.
Criticizing the amendment, Adv. Bracha says, "The Israel Tax Authority has completely ignored the obstacles in this area and the legislative failures in Israel that cause difficulties for crypto traders. The right legislative amendment should on the one hand bring some greater degree of certainty, but on the other hand it should lead to the solution of existing problems and remove existing obstacles. The main obstacle in Israel is the inability to deposit proceeds from crypto trading in the banking system in Israel. This is a substantial obstacle that causes crypto traders to hold their profits outside Israel, or to find alternative solution for transferring the money to Israel costing extremely high commissions to the companies involved."
Adv. Idan Ben-Yacov, a member of the Israel Bar Association national crypto committee, adds, "The language of the bill creates a material lacuna in the way the liability to tax is created and determined. Under the bill, the Israel Tax Authority bases the liability to pay on the connection to the State of Israel, unlike capital gains, for example, where taxation is generally based on the taxpayer’s place of residence - a substantial point when it comes to digital assets. Furthermore, the reference point should be the date of sale, when the tax event occurs, and not the date of purchase, and the tax should be calculated accordingly. That is the norm in most assumptions relating to tax liability and collection, and the same should apply to a digital asset."
Publication of the draft law follows the State Comptroller's report last week which slammed the Israel Tax Authority for not acting effectively to reach the billions of shekels concealed in the cryptocurrency market, with the state missing out on collecting an estimated NIS 3 billion in taxes. State Comptroller, Matanyahu Englman blamed the Tax Authority, which had not taken most of the necessary steps to improve the ability to collect taxes, at a time when Israel's debt burden is increasing due to the war and security needs. The State Comptroller stressed the need to examine how to realize full taxation of the cryptocurrency market, before the government raises the tax burden on the public.
Published by Globes, Israel business news - en.globes.co.il - on November 11, 2024.
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