On 22 March 2022, the Organisation for Economic Co-operation and Development (“OECD”) published a public consultation document proposing new and amended reporting requirements with respect to cryptoassets and electronic-money products, as well as proposed amendments to the Common Reporting Standard (“CRS”) for the automatic exchange of financial account information between countries.

Rationale

The rapid adoption of cryptoassets for a range of financial and investment activities has posed challenges for national tax administrations in recent years. In contrast to traditional financial products, cryptoassets can be transferred and held without the intervention of traditional financial intermediaries. There is no central global organisation or regulator that commands full visibility on the transactions carried out by, or the cryptoasset holdings of, individuals, companies or funds. It is unsurprising, therefore, that national and global tax administrators have concerns that cryptoassets may be exploited to undermine existing international tax transparency initiatives, such as the CRS.

Framework for cryptoasset reporting

The OECD’s publication of its Cryptoasset Reporting Framework (the “Framework”) has been requested by the G20 to serve as a stand-alone framework for the automatic exchange of information on cryptoassets. A cryptoasset is defined in broad terms in the Framework as “a digital representation of value that relies on a cryptographically secured distribution ledger or similar technology to validate and secure transactions.” The definition used for “cryptoasset” is broad, encompassing stable coins, derivatives issued in the form of a cryptoasset and some non-fungible tokens. In order to future-proof the Framework as far as possible, the scope of cryptoassets covered includes asset classes relying on similar technology that may emerge in the future.  

The Framework provides for the collection and exchange of tax-relevant information between tax administrations, with respect to persons engaging in certain transactions in cryptoassets. Draft rules, and commentary on those provisions, are included in the Framework and cover cryptoassets that can be held and transferred in a decentralised manner, without the intervention of traditional financial intermediaries.    

Scope of the Framework

Individuals and entities that provide a business service to transfer cryptoassets, or that exchange cryptoassets against other cryptoassets or against fiat currencies, will be required to apply the due diligence procedures in the Framework to identify their customers, and then annually report the aggregate values of the transfers and exchanges for such customers. The scope of reporting under the Framework therefore is intended to extend to a wide range of intermediaries that facilitate transactions exchanging and transferring cryptoassets. Brokers and dealers, custodians, financial exchanges, cryptoasset-accepting merchants, electronic-wallet services and even cryptoasset-ATMs will therefore be included in the reporting required under the Framework. A limited range of assets is excluded from the reporting framework – including central bank digital currency and closed-loop cryptoassets – where these are not considered by the OECD to pose a systemic risk to tax administrations.

The intention is for the Framework to be transposed into domestic law to facilitate the collection of information from resident cryptoasset intermediaries. Local provisions will be supplemented by bilateral or multilateral competent authority agreements for the automatic exchange of information collected under the Framework, based on double tax treaties and the Convention on Mutual Administrative Assistance in Tax Matters.

Proposed amendments to the CRS

In addition, the OECD has also proposed certain changes to the CRS, with the aim of further improving the operation of the CRS to cover various digital financial products, including electronic money products and Central Bank digital currencies. Those proposals include changes to cover indirect investments in cryptoassets, which is achieved through proposed changes to the drafting of “Investment Entity” and “Financial Asset.” The intention is to ensure that the CRS embraces derivatives referencing cryptoassets that are held in custodial accounts, and investment entities investing in cryptoassets. The proposal also contains new provisions to ensure an efficient interaction between the CRS and the Framework, in particular to limit instances of duplicative reporting and improve the due diligence procedures and usability of CRS information for tax administrations and financial institutions.

The public consultation closes on 29 April 2022, and will be followed by the OECD reporting back to the G20 in October 2022.