The purpose of the study is to identify the legal position of virtual assets in accordance with the tax law based on their economic substantiality, to clarify their legal characteristics as taxable objects, and to establish a fair taxation system whic...
The purpose of the study is to identify the legal position of virtual assets in accordance with the tax law based on their economic substantiality, to clarify their legal characteristics as taxable objects, and to establish a fair taxation system which corresponds to the legal nature of virtual assets. Although virtual assets were originally invented as a means of payment to replace currency, they have been widely used as an investment method to generate returns by exploiting the rapid price fluctuations of virtual assets.
However, due to the instability of the value of virtual assets and the bankruptcy of virtual asset trading platforms, it has become necessary to strengthen the stability of the virtual asset market and protect investors. Consequently, the legal nature of virtual assets—in particular, the analysis of financial investment products and the application of financial regulations--has emerged as an important issue in the media, politics, and academia.
The current legal definition of virtual assets does not conform to the definition of financial investment instruments specified in financial regulations. However, considering the fact that virtual assets are being widely used as investment means, they can be considered as new types of financial investment instruments or similar financial investment instruments. For the purpose of financial regulation, a financial investment instrument refers to a right acquired by paying or agreeing to pay funds with property value based on a reasonable expectation of return on investment, while providing a possibility of loss of the original investment funds. Virtual assets contain those characteristics as well.
The issues with the existing taxation of virtual assets and the suggested solutions for them are described as follows. According to the Korean tax authorities, virtual asset income can be classified as other income rather than financial investment gains. The reason for this is that the Korean tax authorities did not comprehend the characteristics of virtual assets as financial investment instruments. Due to its incompatibility with the substantial taxation and ability to pay principles of taxes, the existing system for taxing virtual asset income violates the principle of equal taxation. Virtual asset income should be taxed as financial investment income rather than other income, since its economic substance is similar to that of financial investment instruments. Horizontal equity in taxes can be enhanced by defining income from virtual assets as financial investment income and applying the same tax rate and taxation methodology as other types of financial investment income. Applying a progressive tax rate to gross investment income can raise vertical equity as well.
Currently, virtual asset transactions are not subject to VAT in Korea. However, the tax authorities did not clarify why virtual asset transactions are exempt from VAT. To promote the virtual asset market and secure international compatibility with other systems that do not collect VAT, this study proposes a VAT exemption for transactions related to virtual assets. Virtual assets are explicitly treated as "goods" that are subject to VAT by the Korean tax authorities. In addition, the Supreme Court treats online game money transactions as “supply of goods” and the same decision can be applied to virtual assets that are similar to game money in that they do not accompany the delivery of real goods. Therefore, it appears that the taxation of VAT on virtual assets seems to be reasonable according to the literal interpretation of the current VAT laws. Nevertheless, in terms of policy, virtual asset transactions should be exempted from VAT. This is based on the following key rationales: (1) the objective of the VAT exemption system for financial and insurance services, (2) the equity with other services related to financial investment instruments, and (3) the enhancement of global compatibility of virtual asset taxation.
The virtual asset industry advocates for the imposition of transaction taxes on transactions involving virtual assets. The key reasons for introducing a virtual asset transaction tax are as follows: levying a transaction tax will increase transaction costs, thereby suppressing speculative transactions, preventing market distortion caused by high-frequency trading, and enabling taxing virtual assets until the infrastructure for taxing capital gains tax is in place.
However, if both the income tax and the transaction tax are imposed on virtual assets, from the point of view of virtual asset service providers and investors, it can be a burden of double taxation on virtual asset transactions. In addition, as the need to abolish the current securities transaction tax system has emerged, the securities transaction tax system is being phased out. Therefore, the introduction of the transaction tax system for virtual assets is against the tax policy of the tax authorities. In addition, considering the characteristics of virtual assets traded in the global market, it is required to avoid taxation of transaction tax on virtual assets, because imposing transaction tax shall hinder the development of domestic virtual assets market due to a decline in trading.
The proposed virtual asset taxation system, which taxes virtual asset income as financial investment income, exempts virtual asset income from value-added tax, and not introduces a transaction tax system, could enhance the tax equity between virtual asset income and other financial investment income. Moreover, it can provide international consistency while offering a positive impact on preventing the outflow of capital to foreign countries through virtual assets. At the same time, it is expected to contribute to the promotion of the domestic virtual asset market by alleviating taxpayers' burden, and to accelerate the development of Korea's virtual asset industry and virtual asset-related technical innovation.