There are a variety of businesses that are operating using cryptocurrency and NFT’s. Many entrepreneurs are pushing new ways to generate income from this unique area, such as play-to-earn gaming (P2E) businesses, bot trading strategies, launching non-fungible token (NFT) collections and infinite other possibilities.

Currently, many people are making significant money operating P2E guilds for Axie Infinity and other blockchain games – it is essential for these businesses to be structured just like any business for tax efficiency and asset protection.

These businesses do not fit neatly within the Australian tax system. Special care is needed to structure them to be tax-efficient and not get a nasty surprise with the impending ATO crackdown on cryptocurrency.

Owning wallets owned by entities

Before anything can be structured, the core moving part of a crypto-based business is the wallet which controls and accesses the crypto assets. It is certainly possible to have a company, trust, or partnership own a cryptocurrency wallet. This can either be:

– a custodial wallet with Binance, Independent Reserve or a variety of other exchanges, registered in the name of the entity (or the trustee in the case of a trust);

– A non-custodial wallet like MetaMask or Trust Wallet, owned by the company or trust and documented as such by a resolution; or

– A ‘cold wallet’ or hardware wallet, like a Ledger or Trezor wallet. Ownership of the wallet can be documented like any piece of physical property.

It will always come down to evidence. All wallets are recommended to be acknowledged in a legal form, such as a trust or director resolution and the accounts of the entity prepared to show the crypto value. It may also impact your ability to claim insurance.

In many ways, accounting is as vital as the legal structuring to show a coherent picture of where the crypto is owned.

Structure basics

The structuring of crypto businesses is the same as traditional businesses in many ways. The tax and asset protection considerations are key.

Often a business is recommended to be carried on in a company to take advantage of the corporate tax rate. The rate is either 25% or 30%, depending on whether the income is business income or capital gains. This is relevant for trading-based businesses, which need to consider if their activities meet the carrying on business tests.

The company will commonly be owned by a trust to allow for income splitting. Care should be taken with accounting for dividends paid in cryptocurrency and dealing with Division 7A issues for director drawings.  

Takeaways

Crypto businesses are treated like regular businesses in many ways, with a few specific issues that a lawyer will almost certainly be required. If not dealt with, these issues can cause substantial tax problems where they could otherwise be avoided.