As early as 2014, the Administration had taken a position on the category of taxation of gains resulting from the use of bitcoins either by exchange for another asset or value (example of the conversion of bitcoins into euros), or to acquire a consumer good.
According to the Administration (comments to the BOI), these gains were in the BICs when the activity of using bitcoins was used as usual, while the profit made by occasional use of bitcoins fell within the NCBs.
The State Council very partially censures this position, stating that the gains from the use of bitcoins are the responsibility of the NCBs, unless the proceeds (profit) from the use of bitcoins are part of a commercial activity, which supposes the meeting of two cumulative conditions, a purchase for resale
The two passages of the comments are thus annulled, which indicated, in identical terms: ” the income derived from this activity, when it is exercised on an occasional basis, is income falling within the provisions of Article 92 of the General
Fiscally, the difference is not trivial (rate, calculation of the base), even if it is unreasonable to say that it is, in the absolute, better since it will depend on the individual situations, and that it will not satisfy no longer the fringe of users considering that these “new” goods should escape taxation.
On the other hand, anyone who invests in crypto-currencies on a platform (therefore acquires them) will be in the position of a purchase for resale: the store of value (the economic utility therefore) is only realized by an assignment of the assets. Resale is thus consubstantial with the operation; the BIC category will therefore apply if it is done as usual.
Should however escape the acquisition of a good of consumption. In fact, the use of bitcoin, which is an intangible item, places the transaction in the category of the exchange contract (“one thing for another”, Article 1702 Civil Code ), and not the sales contract. Except to redraw the outline of the notion of “pay” of article 1582 of the Civil Code .
Legal nature of cryptocurrencies:
This decision, which in no way disrupts the legal characterization of bitcoins in particular, and crypto-currencies in general, is the result of a reasoning that is required in the state of positive law. The tax administration did not depart from it, just forgetting a condition of application drawn … the Commercial Code!
Analysis of the Administration (validated by the Council of State): the bitcoin is a unit of account (the BOI precise “virtual”, which leaves a little dreamy because, if is virtual what exists without manifesting itself, a unit of account is always virtual: it is an intellectual operation).
The BOI’s comment indicates that this unit is “stored on an electronic medium allowing a community of users to exchange goods and services among themselves without resorting to legal currency”. Their acquisition is done either for free “in return for participation in the operation of the system” (mining)
This last point is crucial, without being limited to cryptocurrencies, because if one decides that one of the characteristic features of the assets in question is to be a speculative instrument in essence, this informs the legal regime (and possible qualifications). This is particularly the element that makes them fall into the category of “various goods” that can only be offered by intermediaries in various goods within the meaning of the Monetary and Financial Code ( article L550-1 and s). It is also an additional element to the impossible approximation of the bitcoins of the “electronic money” within the meaning of this same code, because “it is forbidden to any emitter of electronic money which raises funds to pour on these funds interests, any remuneration or any other advantage related to the length of detention “
It is also on the legal qualification of bitcoin that this judgment is useful (it will be also useful for their users proceeding to their tax declaration!).
The Conseil d’Etat confirms the dominant analysis according to which a cryptocurrency such as bitcoin is an intangible personal good . The affirmation is undoubtedly an open door depressed
In other words, it is an asset that has a value, determined by a market mechanism. This is certainly not a currency (in the legal sense), and certainly not a financial instrument . In particular, bitcoin is not a right of claim, in the absence of any debtor of an obligation (within the meaning of the Monetary and Financial Code and the Civil Code). On the other hand, it can effectively be the subject of a financial contract by being an underlying asset.
The future uses of these assets are limited only by the imagination of the actors, and this promises beautiful constructions from the classical notions of goods and obligations.
In short, passed the flon-flon of a mystic fascination for the so-called blockchain technology , the attraction of the poetry of the digital rebels, the inconsistent valuations of the speculative outbreaks nourished by the current moral horizon dominated by the easy enrichment and without reason the reality, banal but rooted in the economic and social functioning, is entitled to quote. And the right accompanies him …