NFT refers to 'Non-Fungible Token', a digital certificate of authenticity that, through blockchain technology, proves the ownership of a digital asset, such as a video, image or a piece of music. The particularity of this token is that it represents a unique and non-fungible value (it is not consumed with use).

NFTs are not regulated, although due to the value they represent, questions could arise regarding intellectual property or image rights. They do not fall into the classification of tokens made by the MiCA regulation, distinguishing between "utilities" (which offer access to goods or services) and "securities" or "money-tokens" (which serve as a means of payment or store of value or used as a payment method).

Recently, through a binding consultation issued by the General Directorate of Taxes (GDT) on March 10 (V0486-22), the Treasury has for the first time addressed the legal and tax nature of the NFT market.

On the one hand, the GDT differentiates between the token and the underlying digital asset to identify that in the transmission of an NFT there is a transfer of rights over the asset, but never underlying rights to the property of the work.

On the other hand, the transmission of an NFT is classified as a service provided economically for VAT purposes, so that its sale would be subject to 21% VAT in the event that the seller acts as an entrepreneur or professional and the recipient resides in Spanish territory. Now, given that in most cases it is not possible to locate the buyer, it is understood that the transferring businessman will have to pay 21% VAT for these operations.

Nothing is said about other possible assumptions, such as taxation in the event that the seller was an individual.

Precisely this current legal vacuum makes NFTs a way to escape financial regulation. Will there be a MICA 2?