Tuesday, March 28, 2023

IRS Issues Guidance Related To The Treatment Of Certain Nonfungible Tokens (NFT) As Section 408(M) Collectibles

In Notice 2023-27 the Treasury Department and the IRS announced that they intend to issue guidance related to the treatment of certain NFTs as section 408(m) collectibles. 

This treatment is also relevant for other purposes of the Code, including the long-term capital gains tax rate under section 1(h). The notice also describes how the IRS intends to determine whether an NFT constitutes a section 408(m) collectible, pending the issuance of that guidance, and requests comments generally on the treatment of NFTs as a section 408(m) collectible, as well as comments on specific questions listed in the notice.

A Nonfungible Token (NFT) Is A Unique Digital
Identifier That Is Recorded Using Distributed Ledger
Technology And May Be Used To Certify Authenticity
And Ownership Of An Associated Right Or Asset.

Distributed ledger technology, such as blockchain technology, uses independent digital systems to record, share and synchronize transactions, the details of which are recorded simultaneously on multiple nodes in a network. A token is an entry of data encoded on a distributed ledger. A distributed ledger can be used to identify ownership of both NFTs and fungible tokens, such as cryptocurrency, as described in Rev. Rul. 2019-24.

Section 408(m)(2) of the tax code provides for a specific list of items that constitute collectibles for certain purposes. Acquisition of a collectible by an individual retirement account (IRA) or individually-directed account of a qualified plan is treated as a distribution from the account equal to the cost to the account of the collectible. Generally, collectibles also do not have as advantageous capital-gains tax treatment as other capital assets.

Until additional guidance is issued, the IRS intends to determine when an NFT is treated as a collectible by using a “look-through analysis.” Under the look-through analysis, an NFT is treated as a collectible if the NFT’s associated right or asset falls under the definition of collectible in the tax code. For example, a gem is a collectible under section 408(m); therefore, an NFT that certifies ownership of a gem is a collectible.

In Notice 2023-27, the Treasury Department and the IRS are requesting comments on any aspect of NFTs that might affect the treatment of an NFT as a collectible as well as certain comments specifically set out in the notice.

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