Fintech Market Overview

This article does not constitute legal advice.

Cryptocurrencies in Australia

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While there are currently no specific regulations dealing with cryptocurrencies, ASIC's regulatory guidance informs businesses of their approach to the legal status of coins or tokens offered in Australia. The legal status of these coins is dependent on product structure and any attached rights. Depending on the circumstances, this may comprise managed investment schemes, securities, derivatives, NCP facilities or fall into a category of more generally defined financial products. If a coin is a financial product, the operator and promoter will need to comply with financial services regulatory requirements under the Corporations Act. Cryptocurrencies are also subject to the general consumer protection provisions, prohibiting false or misleading representations and unconscionable conduct.1

Digital currency exchange (DCE) providers are captured under the AML/CTF Act, which requires providers to enrol and register with AUSTRAC and apply AML/CTF processes to DCE services (e.g., customer identification, transaction monitoring).1

For income tax purposes, the Australian Taxation Office (ATO) currently views cryptocurrencies as neither money nor a foreign currency. Instead, each cryptocurrency is treated as a separate asset. The tax implications for holders of cryptocurrency depends on the purpose for which the cryptocurrency is acquired or held. If a holder of cryptocurrency is carrying on a business that involves the sale or exchange of cryptocurrency, the cryptocurrency will be held as trading stock. Gains on the sale of the cryptocurrency will be assessable and losses will be deductible (subject to integrity measures and 'non-commercial loss' rules). Even if a holder of cryptocurrency did not invest or acquire the cryptocurrency in the ordinary course of carrying on a business, profits or gains from an 'isolated transaction' involving the sale or disposal of cryptocurrency may still be assessable where the transaction was entered into with a purpose or intention of making a profit, and the transaction was part of a business operation or commercial transaction. If cryptocurrency is not acquired or held in the course of carrying on a business, or as part of an isolated transaction with a profit-making intention, a profit on sale or disposal should be treated as a capital gain. In this regard, the ATO has indicated that cryptocurrency is a capital gains tax (CGT) asset, and a CGT event occurs when there is a sale or disposal of cryptocurrency. CGT events include selling cryptocurrency for fiat currency, exchanging one cryptocurrency for another, gifting or trading, or using it to pay for goods or services. In some instances where a cryptocurrency is held as an investment for at least 12 months, taxpayers may be entitled to a CGT discount to reduce the capital gain made on the disposal of the cryptocurrency. Also, certain capital gains or losses may be disregarded where there is a disposal of a cryptocurrency that is a personal use asset (i.e., an asset kept or used mainly to purchase items for personal use or consumption).1

In the context of an ICO, a coin issuance by an entity that is either an Australian tax resident or acting through an Australian 'permanent establishment' may be assessable in Australia. However, if the issued coins are characterised as equity for tax purposes or are issued in respect of a borrowing of money, the ICO proceeds may not be assessable to the issuer. The ATO's views on the income tax implications of transactions involving cryptocurrencies is in a state of flux due to the rapid evolution of both cryptocurrency technology and its application.1

Goods and services tax (GST) is not payable on the sale, including ICOs, or purchase of cryptocurrencies (namely those fulfilling the requirements for 'digital currencies' in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), such as Bitcoin, Ethereum, Litecoin, Dash, Monero, ZCash, Ripple and YbCoin). However, entities registered for GST may generally (subject to certain exceptions) be restricted from claiming input tax credits for the GST component of costs associated with the sale or purchase of cryptocurrencies. No GST will be payable if the cryptocurrency is acquired by a non-resident for its overseas business because this will be a GST-free supply. The GST treatment is different still for businesses that receive cryptocurrency in return for their goods and services – in these circumstances, they will be subject to the normal GST rules. In other words, where taxable supplies of goods and services are made by businesses for which cryptocurrency is received as payment, there will be a requirement for that business to report and remit one-eleventh of the payment received for that taxable sale to the ATO (expressed as an amount of money in Australian currency). This is because cryptocurrency is treated as a method of payment and the GST consequences of using it as payment are the same as the GST consequences of using money as payment.1

Digital assets in Australia

Fintech in Australia

Fintech in other countries

  1. https://thelawreviews.co.uk/title/the-financial-technology-law-review/australia
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