The first and fundamental question to ask is: is the artist-creator of NFT – or the (re)seller – a VAT taxable person?
If it is, and the transaction falls within the scope of VAT (transfer or concession of copyright or sale of a work of art), then VAT is in principle due. However, there are exemptions from VAT (article 44 CTVA).
According toArticle 4 of the VAT Code, “A taxable person is anyone who, in the course of an economic activity, habitually and independently,, on a principal basis or as an adjunct, with or without a profit motive, supplies goods or services as referred to in this Code, regardless of where the economic activity is carried out.”
The VAT taxable person can therefore be that writer, musician or artist of modern times who creates an NFT or original artistic work as long as he intervenes in a habitual and independent way as an agent of the economic activity against remuneration.
The liability is automatic and does not require any formality. This means that even if the artist does not complete any formality or declaration with the VAT administration, the VAT is due.
Thus, the author of literary or artistic works acquires the status of a taxable person and must be registered in this capacity from the moment he expresses, by unequivocal acts, his intention to sell them in a regular and independent manner, with or without a spirit of profit, on a principal or secondary basis, even if these sales must take place at irregular intervals (Question no. 282 of Mr. De Seny of August 18, 1989, Q.R. Senate, Ordinary session, 1988-1989).
On the other hand, salaried artists are never considered to be liable because of the existence of a subordinate relationship.
Theobligations of a VAT taxpayerare numerous:
A company subject to VAT is obliged to (except for those who only carry out transactions exempted under Article 44 of the VAT Code):
- to be identified for VAT purposes before the start of the activity
- to file VAT returns
- to pay back the VAT it invoices to its customers
- to file an annual list of clients
- to keep accounts and issue invoices.
The advantage of being a taxable person is that the taxable person is entitled to deduct from the tax for which he is liable the taxes that have been charged on the goods and services supplied to him insofar as he uses them to carry out transactions that allow the deduction.
It is the taxable person who pays to the Treasury (the FPS Finance) – after deduction of the tax he has borne – the tax due on the goods he has supplied or the services he has rendered.
The non-taxable person cannot deduct the VAT charged on the goods or services supplied to him. His own supplies of goods (sales of NFTs) or services (assignment or granting of copyrights to these NFTs) are not subject to VAT.
While the basic system provides for a VAT of 21% (in principle, this amount is added to the price invoiced by the taxable person and must be paid by the customer, in this case the buyer of the NFT), the cultural sector often benefits from a more favorable system with a VAT of 6%, or even an outright exemption if certain conditions are met (Article 44 of the VAT Code – see below but in principle not applicable to sales of NFTs).
