SMSFs warned on emerging compliance challenges with NFTs

She noted that while many SMSF trustees are familiar with investing in cryptocurrency, an NFT is different because it allows investors to purchase and own digital images, artwork, documents, tweets, domain names, and anything digitally imaginable.   

“An NFT lives on the ethereum blockchain, stored differently from ethereum because of the additional information required to prove digital ownership. While other blockchain platforms have also implemented their version of NFTs, ethereum NFTs are the most common,” Ms Banton said.

“An SMSF will never physically own the digital asset because the token is just a series of ‘0’s and ‘1’ s living on the blockchain.

“But it does give the fund a digital certificate of ownership that is traceable on the blockchain and comes with the right to sell the asset. It can be anything from a digital image of a pet rock that went for US$46,000 to a video by Beeple, a US digital artist, sold earlier this year for US$6.6 million.”   

Non-fungible means a unique, one-of-a-kind token untradable for another token of the same type. By contrast, Ms Banton said a cryptocurrency coin, like bitcoin, is a fungible token because you can trade it for another bitcoin.

“While an NFT is self-contained, uniquely identifiable and has a value, the NFT owner doesn’t own the copyright. As the asset cannot be adapted or reproduced, it effectively means that it is not a collectible or personal use asset within the meaning of r13.18AA SISR,” she noted.

“Regardless of the type of digital assets an SMSF holds, they all have one thing in common: they must satisfy the SIS and tax rules.”

When it comes to NFT SMSF record keeping, trustees have to keep very comprehensive records when acquiring or disposing of any digital asset, according to Ms Banton. This means when a fund buys, sells, swaps, or exchanges one digital asset for another, there are tax obligations. All these transactions will be subject to capital gains tax and reportable to the ATO.   

The ATO is also aware that crypto trading in SMSFs has increased and recently released a warning that digital assets are under the microscope by using data matching to ensure that the proper tax is paid, including NFTs.  

NFT cost base and market value 

SMSFs must ensure that the cost base is correct. Regardless of how a digital asset comes into an SMSF, including a purchase, receipt of income or gift from a promoter, it is crucial to record the cost base and ensure all documentation is accurate, according to Ms Banton.

“Trustees should not be disposing of any records or losing important login information to their account/s because they will have a massive pain point at tax time,” she said.

“To this end, all passwords and login access details to personal computers, NFT marketplaces and wallets should be safely stored and documented because it will keep fund assets safe.”

A requirement under r8.02B SISR is to value all fund assets at market value. While the value of an NFT at acquisition is the cost, Ms Banton noted the value afterwards is unclear. Unlike cryptocurrency, there are no NFT price checkers available online to confirm their value.

“Determining the market value at June 30 will be next to impossible, especially given the high-risk nature of NFTs due to their price volatility, liquidity issues, lack of authentication, being traded in an unregulated market and multiple scams,” she explained.

“SMSF auditors cannot meet their professional obligations under r8.02B where acceptable, appropriate audit evidence is lacking. It will result in a Part A qualification of the audit report where the value is material and may also be a breach of R8.02B SISR.”

Tangible v intangible NFTs  

SMSFs owning NFTs will also need to understand the crucial difference between how it is tangible or intangible, which can affect compliance requirements.

“The SMSF reality of owning an NFT means they are subject to the same SIS requirements as cryptocurrency. But with a twist,” Ms Banton continued.

“The COVID-19 pandemic has sparked tremendous interest in shared virtual environments, now nicknamed the ‘metaverse’.

“The metaverse is where real people can buy and sell virtual land, buildings, avatars, names and build their environments using NFTs and crypto to pursue profit.  

“Does this sound like online gaming? It is precisely like online gaming, where users can build and explore in a virtual world and create digital assets to generate a return on their investment.

“Tangible digital assets, therefore, refer to NFTs such as digital artwork held outside the metaverse. In contrast, intangible digital assets such as virtual land are created, sold or purchased within the metaverse.”

There is a significant difference between an SMSF owning tangible and intangible NFTs. While a tangible NFT can meet the SIS rules, Ms Banton observed intangible NFTs are unlikely to be a complying SMSF investment.

She noted that given the entire point of the metaverse is to provide a monetised gaming experience for the user, such an investment would not pass the sole purpose test.

“The reason is that this type of investment is not for the sole purpose of maximising the benefits of members in their retirement as outlined under s62 SIS but to provide a present-day benefit for members or their relatives,” Ms Banton explained.

“The trustees could make such an investment if they purchased an intangible NFT and did not develop the environment, create any other asset or do anything else with it inside the metaverse but keep it for capital appreciation purposes.  

“Proving this at audit would be virtually impossible (pun intended), and it would most likely end up in a breach of s62 SIS anyway.  

“As s62 SIS does not require the financial threshold test to be applied, it requires reporting to the ATO in an Auditor Contravention Report.