Swiss tax authorities change VAT treatment of Governance Tokens

What is a governance token?

Governance tokens give their holders a voting right to influence the decision making of a DAO or another decentralised platform. Often such tokens do not offer much additional utility other than voting rights, at least in an early phase of a project.

How did the VAT qualification change?

In the past, such governance tokens were  typically qualified as utility tokens, since this was the closest of the existing token categories. As consequence, the sale of such tokens to Swiss recipients was subject to Swiss VAT. In return, the Swiss seller was able to fully recover its input VAT in connection with the token sale. The latter was very important for Swiss-based projects, which often incur large input VAT on their development costs.

It seems that the Federal Tax Administration is now changing this practice and qualifies governances tokens differently. They recently revoked a tax ruling of a Swiss issuer, stating that a governance token “cannot be classified in any of the existing token categories and proceeds from the sale of such tokens should be treated as donations”. Donations are not subject to VAT but also do not grant a right to reclaim input VAT on associated costs.

What is the consequence for Swiss issuers of governance tokens?

On a positive note, Swiss issuers do not need to worry about VAT on tokens sold to Swiss investors or granted to Swiss employees or contributors. On the other hand, a Swiss issuer who’s sole revenue comes from the sale of governance tokens would be denied to register for VAT and would not be able reclaim its input VAT. This could lead to a significant VAT hit. To make a numerical example: If a Swiss association sells governance tokens for CHF 10m and spends the same amount on invoices from the developers abroad, those invoices would be subject to CHF 770’000 reverse-charge VAT which could not be reclaimed anymore.

How can Swiss issuers react to new practice?

Swiss issuers who obtained a tax ruling confirming that tax treatment as utility token will be protected for the past. However, the ruling might be revoked at any time with effect of future tax years. Issuers who did not obtain a tax ruling are at risks of being deregistered retroactively and might have to return the input VAT they already reclaimed a received.

Going forward the following three measures might help to mitigate the adverse VAT treatment:

  • Include additional functionality into the token mechanics to make it clearly a utility token;
  • Add additional revenue streams to the Swiss entity which entitles the entity to reclaim input VAT outside of the token sale;
  • In certain situations it might make sense to merge or group existing Swiss entities into one to improve VAT recovery. Historically issuers have often separated the token sale and the operating activities in distinct entities. Such a separation might not be beneficial anymore in the future.

If you have issued a governance token with limited or no additional utility please reach out to discuss how your business can best react to the changed practice.