Cryptocurrency: Tax Is Not Virtual

Bank Negara has held that digital currencies are a payment instrument that is not regulated by Bank Negara and therefore cannot be considered legal tender in Malaysia. However, the Securities Commission of Malaysia (“SC”) recognises digital currencies as an investible class of assets and has prescribed digital assets as securities that is regulated under the SC’s laws. 

Is cryptocurrency subject to Malaysian income tax?
The Inland Revenue Board of Malaysia (“IRBM”) has yet to issue definitive guidelines on how to subject the cryptocurrency transactions to tax. However, the IRB has cited Section 3 of the Income Tax Act 1967 (“ITA”) and indicated the said provision can be applied to active cryptocurrency traders. Therefore, the current provisions of the ITA can be applied to active cryptocurrency traders. 

The IRB went on to say that the determination of whether the profits from cryptocurrency activities is taxable would depend on the facts and circumstances of the case to determine whether there is a pattern of the badges of trade. If one is determined as an active trader of cryptocurrency, then the net gains from the cryptocurrency activities would be subject to income tax and would be required to be disclosed in their income tax returns under the “any other income” section. Therefore, they would need to keep proper books of accounting and business records in Malaysia for the purpose of being audited by the relevant law enforcement agencies. 

Notwithstanding, there are a few arguments that taxpayers can raise to argue against the imposition of tax on their gains from cryptocurrency as we will discuss below.

1. FOREIGN SOURCE INCOME
Taxpayers can argue that the income gained from the cryptocurrency transaction is foreign-sources income, and therefore not subject to tax i.e. that it is derived from outside Malaysia. This argument will likely be challenged by the IRBM – in which case the taxpayer would need to prove that the transaction was indeed performed outside Malaysia. With travel restrictions on account of the pandemic, this task is made that much more difficult for the taxpayer. 
The nature of cryptocurrency is such that the transaction can be performed at a click of a button on a laptop or smartphone anywhere in the world. As such, the taxpayer would have a hard time proving that the location of the transaction or the originating source of the cryptocurrency lies overseas. 

2. TAX RESIDENCY
The taxpayer can move around the world to avoid being classified as a tax resident in Malaysia. As mentioned, given the global nature of the cryptocurrency in general, these Malaysian taxpayers can sell their Bitcoins from anywhere without the hefty cross border transaction fees. These taxpayers could argue that they are not tax resident of Malaysia and therefore are not subject to Malaysia income tax. However, one should take guidance from the case of Hii Yii Ann v Deputy Commissioner of Taxation of the Commonwealth of Australia & Others [2017] MLJU 2302 a Malaysian taxpayer derived income from Australia and was taxed on the said income by the Australian revenue authorities. The taxpayer however claimed he is not chargeable to income tax in Australia. His appeal against the assessment was rejected by the Australian court. 
Another issue to consider is who is actually making the profits. In the age of Virtual Private Networks, the identity of the person making those gains may not be clear. The money when remitted back from utilisation is an ancillary issue.

3. INCOME FROM HOBBY OR FROM INVESTMENT
The taxpayers can argue that they brought cryptocurrency merely as a hobby or as a long0term investment. However, if a business arises as a by-product of a hobby or other non-commercial activities, its profits could also be subjected to tax. 

This is seen in the tax case of Hawes v Gardiner (37 TC 671) where a taxpayer bred and trained dogs as his hobby. The General Commissioners found that the selling of puppies for substantial prices by the taxpayer was in the nature of trade and subjected the profits from the sale of puppies to tax. 

Applying this principle, in the current circumstances, the trading of cryptocurrency may be subjected to tax. The taxable transactions occur every time the cryptocurrency is traded in virtual exchanges. The blockchain ledger will have records on the transacted prices and time of transfer. The taxpayers have to subtract the cost of the cryptocurrencies against the selling price to determine the gain or loss. In this regard, the taxpayers must keep track their cryptocurrency transactions continuously to report the gain or loss one each cryptocurrency transaction properly.

i. Subject matter of the transaction 
Cryptocurrency is a speculative instrument that is extremely difficult to value and as such is normally the subject of investment. However, even gains from investment can be subject to income tax if they are performed actively.

This is seen in the tax case of Dr.Zanariah Binti Ramli v Ketua Pengarah Hasil Dalam Negeri Civil Appeal No. W-01-711-12/2011, where the Court of Appeal held that the gains made from the bond market is subject to income tax based on the grounds that the appellant had in fact been actively trading in bonds during the period.

Numerous or repetitive acts done by the appellant would suggest the action was in the nature of a trade. In view of the above, holding cryptocurrency would likely have the characteristic of an assert held for the trading in the eyes of the IRB. 

ii. Period of ownership
The period of ownership of the cryptocurrency is one aspect which is in total control by the taxpayer. The benefit of holding cryptocurrency is that there are virtually no holding costs unless the taxpayers has borrowed money to purchase this cryptocurrency. If a taxpayer has held the cryptocurrency for a long period of time, he could argue that he is a long-term investor of the currency. However, for all recent transactions, it would likely be considered an adventure in the nature of a trade and be subjected to tax. 

iii. Frequency of transactions
This is a significant consideration to identify speculators of cryptocurrency. There will be multiple cryptocurrency transactions to and from the same address or wallet within a short period of time. Most cryptocurrency transactions are public, traceable and stored on a network base don blockchain technology. In the present case, if the IRB can look behind the cryptocurrency pseudonyms and identify the owner of the cryptocurrency wallet, the IRB can further investigate the owner of cryptocurrency and tax them accordingly.

iv. Alteration of property to render it more saleable 
Due to the nature of cryptocurrency, the taxpayer is unlikely to be able to alter the cryptocurrency to make it more saleable. 

v. Methods employed in disposing of property
If special exertion was made to find or attract purchasers for the cryptocurrency, it might indicate an intention to sell it for profit. However, in the case of cryptocurrency, the taxpayer has easy access to buying and selling of cryptocurrency via the numerous cryptocurrency exchanges available. Further, cryptocurrency is currently a very liquid asset that can be spent on goods and services just like conventional currency, albeit it not being recognised as legal tender by Bank Negara. Arguably, this badge of trade may not paint a clear picture of the intention of the taxpayer. 

vi. Circumstances responsible for sale 
The principle here is that if the sale of cryptocurrency is occasioned by a sudden emergency or unanticipated need for fund, such facts will tend to indicate that the cryptocurrency was not acquired for the purpose of resale at a profit and that the sale was no pursuant to a profit-making undertaking or scheme. 
This principle involves a subjective study into the surrounding circumstances relating to the sale of cryptocurrency and will be determined according to the merits of each individual case. 

vii. Financing
Generally, the source of financing can indicate whether an asset was purchased with the intention to trade. If the taxpayer has taken a short-term loan to purchase the cryptocurrency, it will tend to indicate that the cryptocurrency was acquired for the purpose of resale for profit and subject the gains to tax. 

Based on the analysis of badges of trade above, the cryptocurrency speculator may be considered as engaging in an adventure in the nature of a trade and their gains will be taxable.