TerraLex Cross-Border Guide to Crypto Assets
Welcome to the Terralex cross-border guide to crypto assets
Crypto assets have come to the forefront of society quickly. In an area where technology has surpassed the law in many jurisdictions, this guide aims to provide a current snapshot of the legal status of crypto assets around the world, current regulations, and forthcoming or proposed legislation.
Special thanks to Martin Sloan (Brodies) as well as the leaders of the TerraLex Technology & Digital Business Industry Sector Team and Finance & Banking Practice Group for developing the questions for this guide.
How to Use: You can use the tools below to create bespoke reports for the jurisdiction(s) and topic(s) covered. Click into single jurisdiction for one location or use the compare tool to compare multiple jurisdictions. Select the jurisdictions and topics of interest to create your unique report. You also have the option to print or download using the ellipsis button in the top right corner.
Spain TerraLex Cross-Border Guide to Crypto Assets Guide
- Firms:
- RocaJunyent
- Authors:
- Xavier Foz Giralt
- Date posted:
- 23/06/2022
- Last update:
- 23/09/2022
Guidance
What is the legal status of crypto assets in your jurisdiction?
Crypto assets qualifying as security tokens are considered financial instruments. Other types of crypto assets do not have a specific legal status beyond being considered as an intangible asset or a medium of exchange depending on their features.
Are crypto assets regulated in your jurisdiction?
Crypto assets are not regulated in themselves, but there is regulation concerning its advertising and anti-money laundering issues in connection with crypto exchanges and wallet custodians.
If crypto assets are regulated in your jurisdiction, which key regulatory authorities are responsible for the regulations and their enforcement in your jurisdiction? How are they regulated?
Bank of Spain is the regulatory authority concerning anti-money laundering issues. CNMV (Spanish Securities Exchange Commission) deals with security tokens and advertising of crypto assets presented as investment objects.
Have specific anti-money laundering measures been introduced in relation to crypto asset activities in your jurisdiction?
Crypto exchanges and custodian wallets are considered bound subjects for anti-money laundering purposes. Furthermore, both national and foreign individuals or legal entities providing such services in Spain need to register with the Bank of Spain.
How is the use of blockchain in the financial services sector regulated in your jurisdiction?
The Regulation (EU) 2022/858 of the European Parliament and of the Council, of 30 May 2022, on a pilot regime for market infrastructures based on distributed ledger technology establishes a legal framework for the operation of markets allowing to trade DLT financial instruments.
Furthermore, Spanish Law 7/2020, on the digital transformation of the financial system has created a regulatory sandbox where, inter alia, blockchain-based projects of innovation in the financial sector may be tested.
How are crypto assets taxed in your jurisdiction?
Transfers of crypto assets are generally exempt from VAT, except in the event of NFTs when transferred by its creators or by professionals/entrepreneurs.
Gains arising from transfers of crypto assets are considered capital gains for personal income tax purposes.
Holding crypto assets may also be subject an individual to wealth tax depending on the Autonomous Community of residence.
Are crypto assets recognized as a type of property in your jurisdiction?
No.
How does your jurisdiction deal with the application of property laws to intangible assets and conflicts of laws with other jurisdictions
In the event of conflicts of laws, those obligational aspects are subject to the Rome I Regulation (Regulation 593/2008, of June 17, on the law applicable to the contractual obligations), whereas the property (in rem) aspects are subject to the national law.
can smart contracts transferring ownership on a crypto asset be treated as legally binding in your jurisdiction?
As long as smart contracts transfers meet the requirements established by the Spanish Civil Code (object, cause, and consent of the parties) they may be treated as legally binding. The most challenging issues deal with the identification of the parties and the accreditation of their capacity.
Is it possible to take security over a crypto asset in your jurisdiction? If so, please provide a brief overview.
As regards fungible crypto assets, it is not very likely that a pledge may be directly created on them. However, if they grant certain credit rights to its holder, a pledge may be created on such credit rights.
Does inheritance tax relief exist in your jurisdiction for situations where fluctuations in the market result in a beneficiary paying disproportionate tax?
No.
Is there any forthcoming or proposed legislation in your jurisdiction relating to crypto assets?
Yes, there is a proposal of EU Regulation on markets in crypto assets, which will deal with issuance of tokens and crypto services providers.
Is there a supranatorial view on crypto assets in your region and if so, what is it?
Yes, both the European Bank Authority (EBA) and the European Securities Market Authority (ESMA) have issued guidelines on crypto assets. Besides, there are some proposals of regulations at the European Union level which will deal with crypto assets.
Is there anything else that you think is unusual or different about how your jurisdiction treats crypto assets or dealings in crypto assets?
No.
Disclaimer: This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.