New GST/HST Guidelines for NFT Sales

Despite what many sites advertise, yes, NFTs are subject to GST/HST.

The Excise Tax Act in Canada imposes GST/HST on “every recipient of a taxable supply made in Canada”, and Canada Revenue Agency (“CRA”) has recently provided updated guidance which clarifies that NFTs, specifically, will be subject to GST/HST.

NFT sellers are obligated to collect GST/HST from Canadian buyers if they earn more than $30,000 in annual gross revenue. This means that Canadian NFT sellers who earn more than $30,000 in sales of NFTs are required to register for GST/HST and pay these taxes to the CRA.

Under CRA guidance, unless you can prove that the sale of your NFT is made outside Canada (which, given the anonymity of the marketplace, is unlikely) you will be taxed as though you sold to Canadians and collected GST/HST on your gross sales. Since you cannot identify the geographical location of your buyer you will be deemed to charge and collect GST/HST in your own province.

Why is this guidance a big deal?

Under the current Excise Tax Act, sales made to non-Canadians buyers, who do not use the asset in Canada, are not subject to GST/HST. Until now, and given the international nature of NFT sales, NFT sellers may have been assuming that all or substantially all of their sales were international, and therefore exempt sales under the Excise Tax Act (this assumption could have been supported by online knowledge of the buyers, the geographical location or mix of the online marketplace or other factors). Now, this interpretation has specified that in the absence of proof of your buyer as OTHER than Canadian, the CRA will assume they are Canadian and have GST/HST apply on 100% of your gross sales.

Furthermore, as a buyer, since you cannot identify the seller as Canadian or otherwise, and without a GST number for your purchases, you will not be eligible to claim GST/HST paid on your cost of sales for the NFT transactions.

If your NFT portfolio did not net more than your provincial GST/HST rate, you could end up in a deficit and still owe GST/HST to CRA. This is specifically relevant in Ontario and the eastern provinces that have HST of 13-15%, as the GST/HST rate charged is a direct cut off of your profit.

These excise tax considerations are the same whether the NFT sales are classified as business or capital under the Income Tax Act. Technically, for excise tax this creates a GST/HST Collected obligation for the seller in the absence of GST Paid offsetting tax credit.

Functionally, for the industry this creates a cycle where GST/HST is paid on all transactions in the Canadian NFT industry and claimable on none. Regulators view it as the downside of participating in an anonymous ecosystem. Many view it as an assault on the NFT industry in Canada.

At Metrics, we believe this interpretation creates a strong disincentive for NFT businesses to continue to operate in Canada, and especially in provinces with HST. We will continue to work with regulators including the CRA to clarify NFTs as emerging digital assets that deserve unique interpretations under the Income Tax Act and Excise Tax Acts. Until change comes, we are dedicated to working with our clients to accurately interpret the tax laws as they apply to Canadian businesses.

For all Metrics clients, we will be working with you to establish the effects of this interpretation on your portfolios.

Planning opportunities

For planning purposes, we note the following opportunities and exemptions:

• If your NFT assets are not available for sale in Canada, the impossibility of Canadian sales will exempt those sales from Excise Tax.

• If you know the NFT purchaser, and can obtain a legal address, and that legal address proves them as non-Canadian, your sales will be exempt from GST/HST.

• If there are other pressing business reasons and regulatory considerations putting pressure on your NFT business, you could consider departing from Canada. This is a major tax event that would need to be examined carefully prior to being executed.

• In our considerations of NFT activity the only current and obvious case for exemption is NFTs issued for purposes of liquidity pool ownership and same or similar mechanisms that do not satisfy the criteria for a taxable supply under the Excise Tax Act.

• Given that tax considerations are not currently built into NFT smart contracts, the amount that a seller collects will not vary. This means that NFT sellers either have to raise their prices by 5-15% (depending on your provincial GST/HST rate), or have to plan to take that same 5-15% off the top of your sales and remit the cash to the CRA.

How does this compare to similar TradFi transactions:

In traditional finance transactions, say a BC company sells two pieces of art for value of $100,000 CAD each: Art Sale 1 is to a Canadian business in Victoria BC, and Art Sale 2 to an American business in Los Angeles.

Art Sale 1: Art sold to Canadians: The price is $100,000 and GST applies on the sale of the art. In this case GST of 5% or $5,000. The seller would collect $105,000, keep $100,000 and collect and remit $5,000 to the government for GST Collected.

Art Sale 2: Art sold to Americans: The price is $100,000 and this is an exempt transaction for GST/HST. The seller would collect $100,000, keep $100,000 and collect and owe $0 to the government for GST.

In other words, the TradFi system is set up to identify all sellers and buyers and share that information. This exchange of identity allows this system to work under the current regulations.

Now let’s examine this for NFT companies, say a BC company sells two pieces of NFT art for a value of $100,000 CAD each. No identification of the buyers is available, and in the absence of availability in Canada, the NFT is deemed to be sold to a BC company and 5% GST is required to be charged on the transaction.

Art Sale 1: The price is $100,000. The seller would collect $100,000 which would be deemed to be GST inclusive at BC’s rate of 5% or $4,762. The seller will keep $95,238 and remit $4,762 to the government for GST.

Art Sale 2: is the same as art sale 1: The price is $100,000. The seller would collect $100,000 which would be deemed to be GST inclusive at BC’s rate of 5% or $4,762. The seller will keep $95,238 and remit $4,762 to the government for GST.

Income Tax Effect

Example 1:
Assume you live in Ontario, and you bought a BAYC for $100,000 CAD (equivalent in ETH), and sold it for $120,000 (equivalent in ETH at time of sale). You may have thought you made $20,000. However, based on the GST/HST discussed above, you would owe $15,600 in HST, making your net profit $4,400 (less gas costs, exchange fees, etc), rather than $20,000. When you pay the HST on this transaction, it reduces your profit for income tax purposes, so you would only pay income tax on the profit of $4,400, rather than the $20,000 pre-HST amount.

Example 2:
If you bought a BAYC for $100,000 CAD (equivalent in ETH), and sold it for $1,200,000 (equivalent in ETH at time of sale) in Ontario, you would owe $156,000 in HST, making your net profit $944,000 (less gas costs, exchange fees, etc), rather than $1,100,000.

So, regardless of the price/profit when sold, the HST has the same effect. You would pay income tax on the net profit only, after the HST has been considered.

Learn More from Metrics

The digital world has witnessed an exciting and revolutionary development: the rise of non-fungible tokens (NFTs). Unfortunately, the cutting-edge nature of NFTs means that many NFT makers, buyers, sellers and investors are unaware of their tax obligations. Additionally, interpreting the current and evolving regulatory landscape can be extremely complicated. If you are looking for answers regarding NFTs and Canadian taxes, you can learn more by contacting us at [email protected].

If you need help navigating NFT taxation and reporting, CLICK HERE to book a consultation with our team.

Disclaimer: Any tax information published on this blog is based on the facts provided to us and on current tax law (including judicial and administrative interpretation) during the time of publication. This does not constitute legal advice. Tax law can change (at times on a retroactive basis) and these changes may result in additional taxes, interest, or penalties. Practice due diligence and if in doubt, speak with a member of our team.

USA Adopts Fair Value Accounting for Bitcoin

The U.S. Financial Accounting Standards Board (FASB) has officially adopted Fair Value Accounting for Bitcoin for fiscal years beginning after December 15, 2024. The shift will trigger major swings in value and will benefit companies with crypto on their balance sheets. As Canadians on the forefront of digital asset accounting and taxation, we urge CPA Canada to follow suit. New standards are required to allow stakeholders of all backgrounds to be able to better understand and use financial statements. Let’s look at the details.

The Details:

On December 13, 2023, the Financial Accounting Standards Board (FASB) issued ASU 2023-08 which addresses the accounting and disclosure requirements for certain crypto assets. The new guidance requires entities to measure certain crypto assets at fair value, with changes in fair value recorded in net income in each reporting period.

ASU 2020-08 requires entities with crypto asset holdings to:

Present on the balance sheet the aggregate amount of “crypto assets measured at fair value separately from other intangible assets” that are not measured at fair value.
Include in net income changes in the fair value of crypto assets separately from changes in the carrying amount (e.g., impairments and amortization) of other intangible assets, including other digital assets that are not measured at fair value.
Classify as cash flows from operating activities those cash receipts from the nearly immediate sale of crypto assets that were “received as noncash consideration in the ordinary course of business (for example, in exchange for goods and services transferred to a customer).”

For all entities, the ASU’s amendments are effective for fiscal years beginning after December 15, 2024, including interim periods within those years. Early adoption is permitted. If an entity adopts the amendments in an interim period, it must adopt them as of the beginning of the fiscal year that includes that interim period.

The Background:

Before ASU 2023-08, FASB standards required companies to report a loss if the crypto they hold is worth less than the purchase price, even if they haven’t sold the asset. Specifically, a crypto asset was required to be valued at its lowest observable fair value within a reporting period. No write-ups for fair value were allowed within this reporting regime.

FASB received approximately 500 letters from the digital asset community who raised concerns that, among other factors, this intangible asset model (1) did not faithfully represent the economics of crypto assets and (2) made the recognition of impairments needlessly complex by requiring entities to use a crypto asset’s lowest observable fair value within a reporting period

While the new guidance applies to assets that meet the scope criteria in ASC 350-60, not all digital assets will meet these criteria. Because Non-fungible, wrapped and created tokens are not captured in the scope of this guidance questions will remain about how entities should account for and disclose other types of digital assets.

The FASB Board anticipates that the guidance in the ASU will better reflect the economics of certain crypto assets held by entities as well as reduce the complexity and cost of complying with a historical-cost-less-impairment model under the existing requirements in ASC 350.|

The Board also acknowledged that some stakeholders were concerned about the net income volatility that could result from presenting fair value changes in net income. However, the Board believes that the benefits derived from holding a crypto asset are similar to those derived from holding equity securities that have a readily determinable fair value (i.e. holding and selling crypto assets at an appreciated value).

The Implications:

The shift will trigger major swings in value and will benefit companies with crypto on their balance sheets. Bitcoin’s price rose more than 1% after the guidance was released and it continues to rise as regulators signal to markets that BTC is to be taken seriously.

Michael Saylor, MicroStrategy’s founder and former CEO, tweeted: “FASB has officially adopted Fair Value Accounting for #Bitcoin for fiscal years beginning after Dec 15, 2024. This upgrade to accounting standards will facilitate the adoption of $BTC as a treasury reserve asset by corporations worldwide.”

Consider MicroStrategy (MSTR) as a case in point. In Q3 2023, the company possessed 158,400 bitcoins, acquired at an average historical price of $29,609 per bitcoin. With that said, under the previous FASB requirements, these holdings were reported at a impaired value of only $15,476 per bitcoin on average on their balance sheet. This depiction, however, falls short of capturing the true fair market value of $26,969 per bitcoin, a substantially higher figure that more faithfully represents the inherent value of the underlying assets being held by MSTR. With the new FASB requirements, MicroStrategy will be required to write their bitcoin up/down to fair market value, allowing for investors and the public alike to get a better representation of the companies holdings. Additionally, these changes in the valuation of digital assets on the balance sheet will occur regularly and will flow through the income statement, again, better reflecting the company’s position. These charts examine the changes in the balance sheet and retained earnings as a result of this change:FASB Chair Richard R Jones stated: “The new standard responds to feedback from stakeholders of all backgrounds who indicated that improving the accounting for and disclosure of crypto assets should be a top priority for the Board. It will provide investors and other capital allocators with more relevant information that better reflects the underlying economics of certain crypto assets and an entity’s financial position while reducing cost and complexity associated with applying current accounting.”

In our recent feedback publication to CPA Canada, we argue that a change like this is essential to inform and protect the Canadian public and to foster digital asset companies in Canada. If you are interested in this topic, we invite you to join us in writing to CPA Canada advocating for regulation in the digital asset space.

Digital Asset Markets will evolve as regulations and standards mature. If you are holding, trading or creating in the digital asset space, our industry-leading team can help. CLICK HERE to book a meeting.