10. June 2025 Since the introduction of the crypto tax regime on March 1, 2022, profits from the disposal of cryptocurrencies are generally subject to the special tax rate of 27.5%. However, as is often the case in tax law, there are exceptions—especially regarding so-called non-certified derivatives. In this article, we shed light on when cryptocurrencies are subject not to the special tax rate but to the regular income tax rate, and which practical scenarios are affected.
Principle: Cryptocurrencies = Capital Assets
With the tax reform, it was clarified that cryptocurrencies (§ 27b EStG) fall under capital assets. Ongoing income and capital gains are therefore subject to 27.5% capital gains tax (KESt) (exception: old assets).
However, it is important to note that not every investment/arrangement/financial product that is listed or offered in cryptocurrency values is subject to the flat tax of 27.5%. Rather, it depends on the type of financial product.
Exception: Derivative Transactions Are Subject to the Regular Tax Rate (§ 27a Para. 2 No. 7 EStG)
According to § 27a Para. 2 No. 7 EStG, non-certified derivatives are not subject to the special tax rate. Profits from such transactions are not considered final taxed and are therefore subject to the progressive income tax rate (up to 55%).
What Does This Mean Specifically for Cryptocurrencies?
In practice, there are a number of crypto instruments and transactions that can have derivative characteristics, especially when they are not certified (i.e., do not have the status of securities):
- Crypto Futures & Perpetual Contracts
– Derivatives with leverage on the price of cryptocurrencies
– Not certified → subject to regular income tax rate - Options on Cryptocurrencies
– Call or put options, e.g., on Bitcoin or Ethereum
– Here too: if not certified, no capital gains tax applies—regular tax rate applies instead - CFDs on Cryptocurrencies (Contracts for Difference)
– Often offered by traditional brokers
– These products are not certified—regular tax rate applies here as well - Tokenized Derivatives (e.g., synthetic assets)
– The legal classification is complex—if not certified, they are also subject to the regular tax rate
Distinction in Practice: When Is a Non-Certified Derivative Present?
The distinction between certified and non-certified form is crucial:
- Certified: A security (e.g., certificate, ETN) with an ISIN is present → subject to 27.5% capital gains tax
- Non-certified: No security, e.g., direct contract with the platform or via smart contracts → subject to regular income tax rate
Tip: The exact classification can be difficult in individual cases. The decisive factor is whether a security in the legal sense exists or if it is merely a contractual agreement without certification.
Conclusion: Watch Out for Crypto Derivatives
While many crypto gains are conveniently taxed at 27.5% capital gains tax, there is an important exception in the area of derivatives: non-certified derivatives are subject to the progressive tax rate. This particularly concerns futures, options, CFDs, and synthetic tokens that do not have the status of securities.
For investors and taxpayers, it is crucial to correctly classify the respective products for tax purposes—especially if the platform does not withhold capital gains tax. Good documentation is essential here.
Do You Have Questions About Your Crypto Gains or Losses?
Contact us—we are happy to help you optimize the tax treatment of your investments (info@artus.at)!
