Portal de Periódicos da CAPES

Everybody’s Got Something to Hide except Me and My NFT Monkey: Analysis of the European Commission’s DAC8 Proposal on Automatic Exchange of Crypto-Asset Information.

2023; RELX Group (Netherlands); Linguagem: Inglês

10.2139/ssrn.4323158

1556-5068

Bob Michel,

Intellectual Property Rights and Media

On 8 December 2022, the European Commission (EC) released a proposal for a seventh amendment of Directive 2011/16/EU on administrative cooperation in the field of taxation (DAC). The DAC8 proposal aims to broaden the scope of the current EU regime for automatic exchange of information (AEOI) on two areas. First of all, the bulk of the proposal is dedicated to the implementation of new AEOI rules in relation to crypto-assets. Secondly, the DAC8 proposal also contains new rules on the exchange of cross-border rulings regarding high net-worth individuals (HNWIs). The proposal also contains some general additions to the AEOI regime under the DAC.The article concludes that there are a few differences to be noted between the DAC8 proposal and the OECD's CARF, yet these are not of such a nature that they should refrain the EU Commission from declaring the to systems equivalent. Equivalence is needed to avoid third country CASPs to register in the EU. As such, the success of DAC8 will most likely depend on the succes of the CARF. If few relevant third countries adopt the CARF, it remains to be seen whether the EU will be able to police the obligations on foreign CARFs to register in the EU. Furthermore, given that the DAC8 proposal mostly incorporates the rules included in the CARF and in the FATF Recommendations, it also fails to resolve any of the problems faced in relation to those instruments, like the non-reporting of crypto-asset transactions on decentralized exchanges (DEX) and other decentralized blockchain based applications. DAC8 also does not solve the issue of non-reporting of crypto-asset ownership and transaction between private wallets. The article concludes that given the fact that the crypto-asset ecosystem is premised on disintermediation, DAC8 can only be a second-best solution. The first best solution avoids intermediaries and adopts a system of protocol-based reporting.