Cryptocurrencies in contracts: legal possibility in Argentina
Cryptocurrencies in contracts is a phenomenon of relatively recent emergence and growing use that, at this point, cannot be ignored by national laws. The so-called cryptocurrencies or virtual currencies (bitcoins being the best known) are denominations of the same reality: the creation of goods, in a digital and decentralized manner, which “intend” to become units of value or measure for the exchange of goods and services.
To explain what cryptocurrencies are from the point of view of the information and communications technology goes beyond the boundaries of these brief thoughts, and for that purpose there exists specialized technical literature. We will only try to make a very basic framing of this global and transborder current phenomenon, with the very limited tools that Argentine law contemplates and which, of course, were not intended to capture their specific characteristics. With these limitations we can state:
- Cryptocurrencies are legally intangible or immaterial goods, with economic value, all within the meaning of articles 15 and 16 of the Civil and Commercial Code of the Nation. Some consider them as part of the category of securities.
- They can perfectly be the object of contracts. Cryptocurrencies are lawful objects, possible and not currently prohibited by law, or contrary to morality, good customs, and public order, or harmful to the rights of others (Civil and Commercial Code of the Nation, articles 279 and 1003). They are also determined, and susceptible of economic valuation (Civil and Commercial Code of the Nation, article 1003);
- They can not be considered as legal tender, nor foreign currency either, since they lack the support of any state (Civil and Commercial Code of the Nation, article 785); and
- Contracts including cryptocurrencies as their object would give rise to obligations to give goods that are not movable property (Civil and Commercial Code of the Nation, article 764), obliging in case of default as an obligation derived from a contract.
As possible objects of legal acts and contracts, cryptocurrencies, for example, could be part of payments in kind to workers, and provided that they do not represent more than 20% of the total remuneration, posing a problem for the valuation to the purposes of the employment relationship itself as well as the social security contributions (Contract of Employment Law, articles 105 and 107), and of contributions in kind to companies, far easier in terms of their valuation in the case of modern simplified corporations.
There are no regulations for cryptocurrencies in Argentina but for specific and punctual rules for some issues, such as the prevention of money laundering and the financing of terrorism, and taxes.
Resolution No. 300/2014 of the Financial Information Unit requires certain obligated parties “… to pay special attention to the risk involved in transactions carried out with virtual currencies and to establish a reinforced follow-up regarding these operations, evaluating that they adjust to the client’s profile that performs them, in accordance with the know-your-client policy that they have implemented. “
Article 2 of the Income Tax Law, a text ordered by Law No. 27,430, deems as profits to: “4) the results derived from the sale of shares, representative securities and certificates of deposit of shares and other securities, quotas and company participations – including shares of mutual funds and certificates of participation of financial trusts and any other rights over trusts and similar contracts -, digital currencies, securities, bonds and other securities, whatever the subject obtaining them”. Many questions are raised as to the source of the gain, and the cost of acquisition and the liquidation of the tax, among others.
It seems therefore that, regardless of the future of cryptocurrencies and their consolidation and regulation as currencies, securities, goods, or with the legal framework that the legislator at some point decides to give, in relation to crypto currencies in contracts, the issues to take into account are very few and concrete, and, at least currently and in Argentina, its legality as an object of legal acts and contracts cannot be doubted.
Mario E. Castro Sammartino
Our publications exclusively express the author´s opinion and do not purport to be legal counsel on any case. Should you need it, you must consult with your trusted lawyer.
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