Case study 1: Decentralised Autonomous Organisation (DAO) Legal Wrapper
What is a DAO?
In the past three years we have advised on and implemented more than 30 DAO projects. Each project has a different view as to what it means to be a DAO.
We describe a DAO as an organisation that is owned by no one and is controlled by a distributed network of stakeholders (also referred to as a ‘community’). Those stakeholders include developers of the underlying technology (e.g. the blockchain and protocol), developers who build on that technology (additional protocols, dApps) creators, users, suppliers and so on. To begin with the community may include a handful of founder developers. Over time, as there is adoption of the technology and development of an entire ecosystem, the community could grow to millions. Usually, the community will exercise their voice through ownership of tokens native to that particular project.
Some might argue, therefore, that a ‘true’ DAO would not operate within the construct of a legal entity (e.g. a company) or legal agreement (e.g. a partnership agreement).
However, absent a legal entity or legal agreement, there is no clarity over who is responsible for ensuring regulation and tax law is complied with. When something goes wrong (e.g. a hacking event or theft), who should be sued? Should someone be held accountable or should those acquiring tokens, working with, or using, a DAO accept there is no recourse? If the protocol generates transaction fees, who are these taxable on; the group of founders that funded and developed the project, or the token holders that decide how the funds are deployed?
The only common thread in our client DAO projects is that they recognise the aforementioned risks and the benefits of a legal wrapper to the DAO. Our scope of work has therefore been to identify a legal and operational structure that allows the project to demonstrate to the community that it is not conducted for the profit of ‘shareholders’ or controlled by a few.
Legal entity and jurisdiction
On the basis that a DAO will usually deploy a native token, which cannot be issued in most highly regulated jurisdictions, the legal wrapper will usually be established in a jurisdiction that has a more transparent and faster regulatory process, we typically use Dubai, Gibraltar, Malta, Singapore, Switzerland and the offshore financial centres in Cayman, BVI or Panama. However, we see both regulatory, tax and commercial (e.g. in terms of talent pool) merit in alternative jurisdictions including, in particular, Bulgaria.
It should be a not for profit vehicle (i.e. the entity is entitled absolutely to the profits it generates and is not acting for its shareholders or members, but rather a community objective). Suitable vehicles we routinely consider would include a company limited by guarantee that cannot distribute its profits to its members (commonly used by charities), a foundation, a purpose trust or an association.
Which type of entity to use will depend on the location of the founder team. For example, for UK resident founders, we may not use a Swiss or Panama foundation as these may bring into play complex anti-avoidance rules pertaining to trusts, settlements and settlors that can lead to double taxation and increased tax advisory and compliance costs to mitigate the double taxation risk. By contrast, for founders in civil law jurisdictions, a Swiss or Panama foundation may be preferable.
More often than not, the founder team will be wholly responsible for development of the technology and administering a path to full decentralisation. Typically this will be over a period of 2-3 years or else it might run the risk of limited or no development of the ecosystem. After which the community may decide whether they have an on-going role.
Many DAO projects would like the DAO legal wrapper to contract with employees and contractors directly. Since these parties are often spread across the globe, this exposes the DAO to local regulatory and tax risk.
Typically, the board of the DAO legal wrapper will outsource day to day functions to the founders’ development company that is often incorporated in their country of residence (Service Co). Such functions may include tech development, marketing, investor relations and so on. It will be Service Co that engages employees and contractors, helping to reduce the DAO’s regulatory and tax risk (although Service Co then has to consider its own overseas tax risk – permanent establishment, payroll obligations etc.). The Service Co builds a team of experts that can then launch new DAO projects, consult on others or develop their own ‘products’ (such as dApps) to generate on-going revenue and value.
The UK has extensive, long standing legislation and over 100 years of case law that seek to prevent UK resident individuals and companies from creating foreign entities in low or no tax jurisdictions with a view to parking profits there. The effect is to look through the foreign entity and deem income, gains or profits (depending on which piece of anti-avoidance legislation applies) to the UK resident individuals and/or Service Co, even if not distributed. This can lead to a ‘dry’ tax charge in the hands of the parties concerned at income tax rates of up to 45% or double taxation without relief.
Moreover, if there is an underpayment of tax, due to the offshore element, the penalties levied are up to 200% of the tax due.
If, and to what extent, these anti-avoidance rules apply will depend on a number of variables including (but not limited to):
- Community / DAO objectives
- Whether IP will be opensource
- Whether IP is owned in Service Co or the DAO legal wrapper
- How IP is transferred and for what price
- Whether there are any UK founders on the offshore board
- Whether Service Co and the DAO legal wrapper are ‘related parties’
- Whether there has been a transfer of assets by UK resident individuals or Service Co
- Whether there has been a gift (settlement)
- Rights that the native tokens have and if / how the founder team exercises those rights.
Most high tax jurisdictions have similar anti-tax avoidance rules to the UK. The Crypto Tax & Accountingteam is comprised of individuals that have specialised in international tax throughout their career. As such, we are able to advise on the most appropriate legal and operational structure for founder and employee teams spread globally.
Case study 2: Subsidiary structure
Many of our clients are Web2 businesses that are looking to move into the Web3 market, typically through NFTs and the metaverse. They may have a community element, but their goal is to generate profit and potentially seek an exit.
As such, orphan structures used for DAO legal wrappers (see Case Study 1) are not appropriate. Investors see value in the equity and less so tokens. They have an expectation that all value creating activity is under the ownership and control of the company in which they invest.
However, there is the perennial rub of what is acceptable from a UK regulatory perspective. Subject to advice from regulatory lawyers, in such cases, the UK company (UKCo) will incorporate a subsidiary company in a jurisdiction that has a more transparent and faster regulatory process, such as Dubai, Gibraltar, Malta, Singapore, Switzerland or the offshore financial centres in Cayman, BVI or Panama. These subsidiaries will then mint and issue tokens, operate within the metaverse, and operate the platform.
However, these jurisdictions either have no tax or operate a source basis of taxation that leads to no tax. These companies will, therefore, be considered ‘Controlled Foreign Companies’ (CFCs) for UK tax purposes. UK CFC rules will deem profits of the subsidiary to belong to UKCo, subject to UK corporation tax (CT) at 19%, with no opportunity to deduct costs incurred in the UK, leading to double taxation (known as the CFC charge).
It is possible to be exempt from the CFC rules if the main purpose or one of the main purposes for setting up offshore is not for the avoidance of tax. Whilst the UK regulatory landscape drives this activity offshore, we strongly believe this exemption cannot be satisfied where profits are left in the offshore subsidiary and no UK CT is paid, despite functions being carried on in the UK.
Under these structures, the offshore subsidiary must only earn a profit commensurate with the functions it performs. We will therefore usually see a nominal margin earned in the offshore subsidiary with UKCo earning the profit under licence and service agreements with its subsidiary.
Note, an area of caution, revenue from token sales by the offshore subsidiary may not be recognised for accounting purposes (e.g. where the token cannot be used for its primary utility). In such cases, the offshore company could have losses in the early years through licence and service fees due to UKCo and then recognise revenue in later years. Those losses can be carried forward but are subject to loss relief restriction and, where they exceed £5m, this could lead to tax leakage.
Case study 3: NFT workshop
Most (non-crypto) observers think of NFTs as only being digital images or something that is a “get rich quick” gimmick .
In reality, NFTs have numerous use cases and, in our view, will be an instrumental part of ‘Web3’.
Like any developing technology, correct interpretation of how trading or investing in them should be taxed, and how they should be valued, can be very challenging. Our approach is to identify the transaction’s primary stakeholders and the NFT’s attributes.
Primary stakeholders of tradeable NFTs can include: the creator; the buyer who may become a reseller; the marketplace; the NFT holder who lends or stakes their NFTs with a DeFi platform; the DeFi platform itself which may repurpose the NFT; or gaming, virtual reality, and music platforms.
Example attributes include:
- Restricted Digital: The NFT does not embody an original digital asset, but rather a copy thereof with restrictions or limited rights attached. Ownership in the original digital asset is not transferred. For example, artwork, music, sports clips, digital wearables.
- Unrestricted Digital: The NFT embodies the original digital asset. The NFT holder is the owner of the original digital asset and can exploit it in any way desired. For instance, artwork, other collectibles, digital wearables, gaming certificates, non-sovereign information / data.
- Real World Goods or Services: The NFT can be redeemed for physical goods (e.g. investment wine and spirits, merchandise etc.) or real-world services (e.g. spa day, airport lounge access, ticket for an event, subscription services). The NFT may cease to exist post redemption or have a self-burn date.
- Hybrid: A combination of any of the above. For example, an NFT that is redeemed for a real world good could provide the holder access to future merchandise “drops” and would still have a utility and some value even after redemption of the valuable goods.
This approach enables us to assess what rights the NFT carries, how value is created from it and who in the transaction is receiving the value from it. We can then form a view about the transaction’s character for direct tax purposes and apply a principles-based approach to determine the tax outcome for each stakeholder.
For Web3 business deploying NFTs in their offering or corporate NFT creators, we run workshops to analyse the proposed NFT’s attributes for corporate tax, withholding tax, indirect tax (i.e. VAT, GST, SALT) and accounting purposes and work with the creator to optimise the tax outcome.
Such an approach does not always succeed in resolving every issue. Real difficulties can arise in assessing the indirect tax consequences of NFT transactions. For example, certain supplies of NFTs may be considered an Electronically Supplied Service and, in a business to customer (B2C) context, sellers are obliged to register for VAT in the customer’s location. In many cases, the seller will not know where the customer is located and will struggle to source any evidence required to make a reasonable assessment. For many low value NFT supplies (e.g. a digital wearable) sourcing such information will not be commercially viable. Offshoring does not remove this issue as VAT treatment is relevant even when the seller is located in a jurisdiction that does not have a VAT system (e.g. BVI or Gibraltar) this is often misunderstood by start-ups.
It is highly likely that metaverse, gaming and other Web3 projects using NFTs will receive VAT enquiries from more than one tax administration. Without evidence to support where the customer is located and rebut a VAT (and GST / SALT) assessment this may lead to double taxation.
The OECD has proposed a reporting regime called the Crypto Assets Reporting Framework (CARF). Under CARF Web3 companies and NFT creators may be required to gather and report information on their customers. There is currently no planned exemption for low value NFTs and no phased approach for application to NFTs (which are still particularly nascent and fast changing).
Developments such as ‘soul bound tokens’ may change the utility of NFTs until then NFT stakeholders need to watch the development of the CARF and appreciate that traditional ‘know your customer’ requirements need to be built in.
Contact Zoe Wyatt for NFT tax advice or workshop support.
Contact Dion Seymour to help you get ready for your OECD CARF obligations.
Case study 4: Private client compliance – non trading
Please note in this section we refer to crypto to crypto ‘trades’. This does not mean that the person carrying on the transactions is trading, but rather they have exchanged one cryptoasset for another.
Unlike with regulation tax law continues to apply regardless if there is specific legislation. The existing tax rules, and case law, need to be considered as to how they apply to cryptoassets when having to calculate any income, gains or losses that need to be reported. HMRC guidance has been published, but this does not cover every eventuality as the crypto world continues to evolve and cannot be relied upon.
A number of common mistakes are made by many cryptoasset owners. For example some are still unaware that crypto to crypto trades are a taxable event or that that tax is only due when ‘cashing out’ back to fiat.
HMRC guidance states that it applies on a case-by-case basis and we agree with that. Tax advice is fact specific and one size does not fit all.
Calculating tax liabilities can be an onerous task. The work carried out needs to look at not only what is happening with the transactions but also to determine what the activity and associated values are. However, this is part and parcel of investing and trading in cryptoassets.
There is software available to help calculate the taxes; however, this is only as good as the data that is inputted. As the old phrase goes “rubbish in, rubbish out”. Where there are, for example, missing acquisitions or incorrect labels, these need to be examined to ensure the true position is reflected.
The complexity does not stop with the sometimes thousands of lines of data that needs to be reviewed. Other common difficulties arise elsewhere. NFTs, for example, have issues in respect of valuation and determining the correct tax treatment of airdrops.
We cannot merely rely on the data output from software and must check through the software reports and transactions. Where historic data is available, we can cross check all past and existing cryptoasset holds to ensure that all relevant transactions have been correctly included within the software calculations.
In respect to capital gains tax an individual is entitled to an annual exemption allowance of £12,500 per person (for 2022/23). However, calculations for the tax year still need to be carried out to determine whether the threshold is breached. Even if the threshold is not breached, it is critical to maintain accurate transaction records.
Capital losses can be set off against capital gains and, if not utilised, can be carried forward indefinitely once they have been claimed. You must claim capital losses in a return or as a standalone claim within the claim period. You have 4 years to claim your capital losses after they occur i.e. a capital loss in 2022/23 needs to be claimed by 5 April 2027 or they are lost.
If you have made a net gain (after setting off losses) over £12,500 you will have to pay capital gains tax at either 10% and/or 20% depending on what your income level is.
Miss X had an account with Exchange A and purchased BTC (Bitcoin) and ETH (Ether) in 2018 and did not sell them. In 2021/22, Miss X decided she wanted to trade the BTC and ETH and transferred them to Exchange B. She carried out a number of transactions between different cryptoassets. Miss X then decided to transfer some ETH that she held into fiat in May 2022.
Miss X needs to:
- Calculate her taxes for 2021/22 to take account of her crypto to crypto trades and to calculate her ‘S.104 pool’ (which calculates the base cost used against the disposal proceeds).
- Either track all her trades using her own system or can use software.
- Ensure she has loaded Exchange A data and Exchange B data together with any cold wallet transactions to ensure she has captured all her activity.
- Review the data and ensure there are no missing acquisitions and disposals and that the transactions are correctly characterised as either income or capital or transfers. Depending on the exchanges, and the software she is using, she may be able to use an “API” to pull data directly from the exchanges into the software. If not she could download the CSV files from the exchanges to add them into the calculations.
- Miss X will also have some transaction fees, including gas fees, and consider whether they are deductible for tax purposes against her gain.
Following this, if the gain is over £12,500, she will need to register for self assessment. This is even the case if the value of the cryptoassets are now worth less than the amount they were taxed on. To fulfil her obligations she needs to:
- notify HMRC by 5 October 2022 that she has a filing requirement for 2021/22;
- submit the tax return by no later than two months after the notice to complete a tax return is issued or by 31 January 2023; and
- pay any tax liability by 31 January 2023, otherwise interest and penalties will be levied.
If Miss X cannot afford to pay the full liability, as her assets are now at a fraction of the original amount, she can consider entering into a debt management plan with HMRC to pay the tax debt over a period agreed with HMRC.
Case study 5: HMRC Investigations
HMRC have sent nudge letters to taxpayers who have transacted with crypto exchanges. We expect that HMRC will use this approach again as more information is passed between tax administrations. You can find out more about the nudge letters here.
In this case study, we look at Miss X from Case Study 4 and what happens when she receives a nudge letter from HMRC.
Miss X did not complete a tax return for 2021/22 as she did not think she needed to as she didn’t ‘cash out’ any of her crypto until the next tax year.
Miss X receives a ‘nudge letter’ from HMRC that says they are aware that she has transacted with an exchange and makes her aware of the tax position. If there were taxable gains over £12,500 Miss X should have notified HMRC by 5 October 2022 and if she hasn’t she now could also face a failure to notify penalty.
Miss X engages an accountancy firm that understands the application of tax on cryptoassets and can help her to calculate if she has a tax liability on the crypto to crypto trades.
Miss X is found to have a capital gains tax liability of £25,000 for 2021/22 relating to the crypto to crypto transactions.
Miss X discloses to HMRC that she has a taxable capital gain of £12,500 (£25,000 less the annual exemption of £12,500) and has to pay capital gains tax at her marginal rate of 20%. Miss X pays over the £2,500, but as she was late filing her return and has also not paid her tax on time, this sum is now also subject to interest and penalties.
As Miss X has never filed a tax return, HMRC can go back up to 20 years (albeit in this scenario cryptocurrency has only been around since 2009) if she cannot demonstrate a reasonable excuse for the late filing. If Miss X could demonstrate a reasonable excuse this would limit HMRC’s ability to go back to 4 years.
If Miss X filed her tax returns, but did not include the crypto gains reporting, then HMRC can go back 6 years assuming Miss X facts are that she was careless and not deliberate. If HMRC consider that there was deliberate behaviour they can go back 20 years, but this requires more evidence than with a failure to notify.
Case study 6: Founder and employee tokens
Many Web3 projects raise funds to develop their technology and network through the sale of their native tokens via private or public sales or placing a limited number of tokens with market makers / exchanges.
Pre launch token allocations
Often, when tokens do not yet exist, a private sale is undertaken through issuing a Simple Agreement for Future Tokens (SAFT).
A SAFT typically provides an obligation on the issuing company to provide tokens when there is a token generation event (TGE). Absent a TGE, there is usually no obligation on the company to provide tokens or compensation in place of tokens.
In addition to investors, SAFTs can also be issued to founders, shareholders, contractors and employees. The tax treatment of tokens acquired under a SAFT will differ depending on which category the recipient falls within. Some will fall within more than one category (e.g. shareholder and employee). The facts will dictate which tax treatment applies and establishing a value for the SAFT is critical in assessing which tax applies and the amount thereof.
Independent third-party investors acquiring the tokens under a SAFT typically have a very clear tax position because they have a base cost (i.e., the price they paid). It doesn’t matter that subsequently, at the time their tokens are delivered, the tokens are trading publicly at a higher price.
In an ideal world, all of the remaining categories of recipients would enter into a SAFT under which they pay the unrestricted market value for their tokens at that time. Provided no value has been established for the token rights acquired under the SAFT (i.e. there are no agreements with third parties establishing a price per token), we would seek to establish the market value by using a cost based approach. This approach broadly involves identifying all relevant costs (including any sweat equity) divided by the expected total token supply. For early stage start-ups, this typically provides a nominal price per token. We would argue that a cost based approach is suitable since there are a number of hurdles to a TGE taking place (e.g. technology not yet fully developed, no revenue / no confirmed commercial traction, volatile market, competitors, regulatory risk etc.). Of course a relevant tax office may not agree.
However, the real world is not ideal. In practice founders will be the last to receive a SAFT as they are typically focused on developing the technology, raising funds, preparing for a token sale etc. and their attention is turned to their SAFT merely days or weeks before a launch.
They will then usually be subject to income tax on their token rights. The question is – at what point do they have a tax event – the date they enter into the SAFT (or token purchase agreement (TPA)), the date of the TGE or the date the tokens are delivered (they are typically subject to a lock up period of 6-36 months)?
A key planning point is to seek to defer the tax event until tokens are delivered (i.e. when they have an asset that may be sold to fund the tax). How to defer the taxing point differs depending on the country of residence of the recipient. For example, we have seen the Slovenian tax authorities take TGE as the tax point and the Portuguese tax authorities accept the date of delivery. For founders that are US citizens (even if not living or working in the US), strict language needs to be added to the SAFT/TPA to defer the taxing point.
Incentivising future employees
Usually there will be a desire to incentivise future employees with tokens. Such employees will not enter into a SAFT or TPA.
These employees will be subject to PAYE and the employer subject to employers NIC.
Many companies want to attract new talent by promising employees a number or percentage of tokens. However, this can lead to an immediate tax charge on the employee and the employer based on the value at that time.
Our preference is to have a pool of tokens to be used as a discretionary bonus. Provided this is structured correctly, the PAYE and employers NIC is only due when the bonus is made.
The token issuance is often undertaken by an ‘offshore company’, this might be a DAO legal wrapper or an offshore subsidiary. Care needs to be taken as to the circumstances in which the employer company has a right to tokens. If, for example, it is agreed that the employer company is entitled to 5% of the token supply to incentivise future employees, the employer company could be subject to income tax on the value of that 5% at the time such agreement is made, without a corresponding deduction for the employee bonus expense (since this may not occur until a later date).
Usually, the employer company is providing services to the DAO legal wrapper or offshore subsidiary and we would usually look to structure the service agreement to allow the employer company to include the provision of tokens to employees in its cost base.
Case study 7: UK self assessment where token sales are £10m or more in any tax year
Many jurisdictions levy withholding taxes on payments made for the use or purchase of IP, the provision of technical services, payment of dividends, interest or rental income. The responsibility for withholding the tax is usually on the payer.
In the UK, withholding tax (WHT) is levied at the basic rate of income tax (currently 20%) on royalties (payments for the use of IP). It is the payer that withholds the tax unless they are satisfied that the recipient is the beneficial owner and resident in a country that has concluded a Double Tax Agreement (DTA) that allows for a reduced or nil rate of WHT.
However, the UK introduced anti-avoidance rules in April 2019 where the obligation to withhold tax is passed from the payor to the recipient in certain cases, known as the Offshore Receipts in Respect of Intangible Property (ORIP) rules.
Where a non-UK resident company has UK sales derived from IP it owns, it must register for UK self assessment and pay income tax at 20% where those sales are £10m or more each tax year.
In our view, the sale of NFTs and fungible tokens will fall within the ambit of the ORIP rules.
These rules will be automatically blunted (i.e. no claim needs to be made) where there is a ‘full’ DTA between the UK and the recipient. A full DTA is one that contains a non-discrimination article.
Of course, most NFT and fungible token sales are conducted out of jurisdictions that do not have a DTA with the UK (e.g. Cayman and the BVI) – see case study 1 or 2 for typical jurisdictions.
Singapore has an appropriate DTA with the UK, but if the Singapore recipient is paying tax on a source or remittance basis, it will still be subject to the ORIP rules.
Gibraltar has a DTA with the UK containing a non-discrimination article, but it is a British Territory and, therefore, the DTA does not have the right language to benefit from the exemption. However, provided the terms of the DTA itself are met (i.e. that the Gibraltar recipient is the beneficial owner of the income and subject to tax in Gibraltar on its worldwide income not just Gibraltar source income), the Gibraltar recipient can make a claim to under the DTA to remove the 20% UK tax liability.
Case study 8: Implications for DeFi transactions
Decentralised Finance (DeFi) is an umbrella term used to provide products akin to traditional financial services through Distributed Ledger Technology. DeFi platforms can provide a wide range of services such as Decentralised exchanges (DEXs), saving, lending and derivatives. Most services are currently built utilising Ethereum smart contracts which can be used by anyone.
On 2 February 2022 HMRC updated the Cryptoasset Manual to provide their view on the tax consequences for DeFi lending and staking transactions. As mentioned in case study 4 the absence of regulation does not mean that there are no tax obligations; the same applies if there is no HMRC guidance – the existing tax rules, and case law, need to be considered as to how they apply to cryptoassets when having to calculate any income, gains or losses that need to be reported.
As is common with tax it is the facts that determine the treatment rather than the terminology that is used. If you have provided liquidity to a platform in order for it to have liquidity it does not matter if these are to a centralised or decentralised platform.
It is important to note, for capital gains tax purposes, that not all DeFi lending transactions will be taxable. The key aspect is determining whether a taxable event has occurred (or not) by reviewing with the terms and conditions for each arrangement to determine if factors such as a change in beneficial ownership has occurred. This is a complex matter for which it is the taxpayers responsibility to determine whether or not beneficial ownership has changed.
When there is a change in beneficial ownership this could lead to a tax charge at the point where liquidity is provided. In other words providing cryptoassets to the platform may create a tax liability. Examples of chargeable events are when cryptoassets are:
- Lent out, staked or provided to a liquidity pool
- When cryptoassets are repaid, unstaked or exit a liquidity pool
- Staked (or unstaked) or on receipt of any rewards.
Following the HMRC guidance these activities do not create new tax liabilities but do bring the point when they are taxable forward.
Further consideration needs to be given to the nature of the rewards that are reviewed for providing liquidity as HMRC has also indicated that this liquidity may not always be charged to income tax (as miscellaneous income) but as capital instead. This will depend on how the transaction is structured and this will be relevant even if there has been no change in beneficial ownership.
A case-by-case basis approach needs to be taken with each taxpayer for each activity to determine if there has been a change in beneficial ownership and if any rewards have been received if they are revenue or capital.
There have been questions if the tax treatment applies to before the guidance was published. It must be understood that HMRC guidance provides their view of the law and does create the law and HMRC cannot create tax obligations through this matter. The guidance does not represent a change in position in their view it does mean that any review needs to go back before the guidance was published. There will remain questions in terms of any penalties that could be applied by HMRC.