Policy Forum: Canada's Proposed Cryptoasset Legislation

Cryptoasset miners verify and record transactions, maintaining the integrity and security of the blockchain network. The Department of Finance ("Finance") has recently proposed new Excise Tax Act (ETA) provisions regarding the goods and services tax (GST)/harmonized sales tax (HST) treatment of crypto mining. Under these proposed provisions, crypto mining activities provided to anonymous recipients will not be subject to GST/HST, but the crypto miners performing these activities will also not be eligible to recover any GST/HST paid on their business inputs (and thus will be forced to bear the brunt of the tax themselves). We believe that Finance's decision to tax what it can identify—the business inputs of Canadian crypto miners—is a roughly balanced but reasonable approach. Although Finance might be legitimately criticized as departing from Canada's decision to eliminate the cascading of tax found in the former origin-based federal sales tax, it seems impossible to administer a destination-based transactional tax such as the GST/HST when faced with "anonymous" recipients (the users of the crypto miner's services). Finance appears to have minimized the cascading of tax by including a carve-out for identifiable recipients of a crypto miner's services, allowing the regular zero-rating rules in the ETA to apply in limited circumstances. In the face of utter uncertainty, Finance's reactive approach is likely the best that it can do. Given the rapid evolution and inherent decentralization of the crypto space, a more broadly based proactive approach would seem imprudent at this time.