Minnesota and Wisconsin include income from NFT sales within the sales tax base
The taxability of non-fungible tokens (NFTs) has been subject to significant debate throughout their relatively short existence. As reported in this newsletter previously, some states (eg, Washington and Pennsylvania) have announced their intention to subject NFTs to sales tax. Wisconsin and Minnesota recently made similar announcements.
An NFT is a unique digital code that is non-interchangeable, representing one specific item of media and potentially the rights to that media. While there is no clear federal or state tax guidance for NFTs, investors in NFTs should expect that the sale of an NFT should be treated as the sale of a capital asset, although some NFTs could meet the definition of “collectibles” (which would result in a 28 percent capital gain rate). There are other tax implications for how NFTs are bought and sold – whether bought/sold for cryptocurrency or otherwise – which are generally covered in existing IRS guidance.
On October 28, 2022, the Wisconsin Department of Revenue (DOR) released its state tax bulletin and became the fourth US state to include NFTs in its sales tax base. The bulletin was not accompanied by any additional guidance or discussion on some key implementation points such as timing, sourcing, what constitutes a sale, and whether the DOR’s position will be applied retroactively. According to the bulletin, the sale or purchase of an NFT may be taxable if the purchase or sale of the underlying good, product, or service is taxable. This includes NFTs that entitle the purchaser to download music or movies, be admitted to a sporting event, or own a tangible piece of artwork.
For purposes of sourcing a sale, based on guidance from the DOR, Wisconsin indicates it may use the customer’s billing address as a proxy for where the sale occurs. For situations where the customer’s address is not known, the sale may be sourced to the location where the NFT was first available for transmission by the seller. The sales tax rate in Wisconsin is currently 5 percent of the purchase price.
In August 2022, Minnesota also published guidance on the taxation of digital products and specifically on NFTs.
Under rules similar to those in Wisconsin, Minnesota will apply sales tax to NFTs when the underlying product (either goods or services) is taxable in the state. Under the sourcing guidelines, a sale or purchase of an NFT or any digital product occurs when the seller transfers possession to the purchaser, or when the product is first used, whichever comes first. For tax purposes, Minnesota considers the source of a sale to be the purchaser’s address that the seller has on file. It is unclear what the sourcing rules will be if the purchaser’s address is unobtainable. The sales tax rate in Minnesota is currently 6.875 percent.