Il TUIR alla prova delle cripto-attività: indicazioni europee e il discutibile intervento della prassi

The emergence of new forms and methods of wealth creation and transfer, combined with the development and application of new computer techniques, models, and tools, has influenced the structure of assets, already significantly dematerialized. This has fostered the emergence of digital assets issued on Distributed Ledger Technology (DLT) or crypto-assets. Hence there is a need for legal qualification to identify the applicable tax discipline. A fundamental contribution to solving this problem was provided by the MiCA Regulation, which formulated a definition, also referenced in the Directive on the exchange of information on operations related to crypto-assets DAC (8). In both cases, the European legislator, for the sake of different purposes pursued, reserved the possibility of selecting the crypto-assets subject to sector-specific disciplines, with the consequence that the scope of application of different regulations does not coincide. In 2023, national legislation, to introduce the tax regime for direct taxation, adopted the definition formulated by the European legislator without making any choices and, above all, without distinguishing in terms of discipline between financial crypto-assets and others. This task was implicitly delegated to the tax administration, which, through a circular, excluded from the scope of Article 67, paragraph 1, letter c-sexies), of the Income Tax Consolidation Act (TUIR) financial crypto-assets issued through DLT to which it deemed the discipline of capital income and other income of a financial nature, as provided in Article 67, paragraph 1, letters from c) to c-quinquies), of the same consolidated text, should apply. This conduct contrasts with the founding principles of the tax system, especially with the principle of the rule of law (Article 23 of the Constitution), according to which the tax liability must be determined by law or acts equivalent to it. These acts can at most delegate to secondary sources, by legislatively identified criteria and limits, the determination of the levy amount. Parliament and the Government should intervene to reclaim a role that currently seems occupied by the tax administration and that could pose challenges to the maintenance of the democratic system.

Analisi della disciplina impositiva dei cripto asset alla luce delle indicazioni europee, internazionali sullo scambio di informazioni ( DAC8) e orientamento di prassi