Blockchain technology: opportunity or risk for tax consulting?

1. definition and function of a block chain

1.1 Introduction

For the first time Bitcoin - and thus also partly the Blockchain - was in the public eye at the end of 2017 when Bitcoin reached its all-time high. Since then, the share of investors holding crypto-currencies as a means of speculation or payment has increased. On the other hand, block chain technology is increasingly serving as a basis for business models of young companies. However, even long-established large corporations are addressing the topic and the technology behind it. They are examining whether they can use the technology in their existing business model and thus optimise or expand it. Accordingly, trust and investment in block chain technology is increasing significantly.01 More and more sectors in block chain technology are recognizing valuable components for their business models and examining them for individual advantages and disadvantages.

The central goal is always to use the properties of transparency, data integrity, anonymity and decentralization of the block chain technology and thus also the protection against manipulation. In this way, business models and processes can often be set up and designed more securely and efficiently. Since increasing efficiency and security are core tasks in many professional fields and companies, it is understandable that this technology can be interesting for many other industries outside the financial industry. Accordingly, the integration of a block chain should also be considered for tax issues.

1.2 Properties

The block chain itself is a system of databases that links transactions chronologically, digitally and encrypted.02 In the course of this connection, individual transactions are verified with the help of computing power and the solution of complex tasks. This creates a chain of data blocks in which corresponding transaction data is stored: The block chain.03

The central characteristics of a block chain are transparency, anonymity and validity. Moreover, it does not have a central authority. In other words, it has no monitoring or regulatory body and no central mediator.04 Instead, the individual participants communicate directly with each other. This means that such a network cannot be controlled from the outside. Accordingly, there are no intermediaries that individual persons have to trust, as is the case, for example, with the ECB in the traditional financial system. Furthermore, the network continues to exist without problems with its functionalities even if individual participants leave the network.

1.3 Active and passive participants

Computers that are connected to other computers in the corresponding network of a block chain, share information and execute instructions are called "full nodes". They are so-called active network participants and form the network. Full Nodes validate each block and transaction presented to them and check them for the appropriate network consensus.05 In addition, each individual Full Node has a copy of the entire transaction history of the block chain. This means that the data cannot be manipulated by individual participants or by a central instance. This results in a high level of protection against manipulation and failure of a block chain.06 Passive participants, on the other hand, are those who make purchases and sales and perform less extensive verification tasks. They simply verify whether a transaction exists in a block in the block chain. They do not download the entire transaction history, but only the relevant section.07 This saves them an enormous amount of memory capacity.

1.4 Consensus

For transactions to be verified at all and for individual blocks to be created, every network needs a consensus. This consensus contains the rules and instructions relevant to the network in question. It determines, for example, how transactions must run, how new blocks are created and attached, or how full nodes are rewarded for their verification tasks. Full Nodes contain this consensus, also known as "agreement on the truth of transactions in the network", check it with each transaction and vote on proposals based on it.08

1.5 Cryptography

Another special feature in a block chain is cryptography. Every block chain user has two keys: one public and one private. These guarantee that only authorized participants can carry out the corresponding transaction. The public key can be compared with a recipient address and is visible to everyone. The private key, on the other hand, represents a digital signature and is required to confirm transactions. So if a transaction is to be executed, it is encrypted with the public key of the recipient (A). The recipient (A) must then decrypt it with her private key in order to be able to view it. Since the original sender (B) has also provided this transaction with its private key, the receiver (A) can check whether the transaction actually comes from the sender (B).09 If the majority (at least 51%) of full nodes have verified this transaction in a block and the block itself, several transactions are combined and added to the block chain (on all nodes) as a new block.10 Since the longest block chain must always be extended when creating new blocks, the block chain is given a very high level of security. In the event of manipulation, the attacker would have to invest more computing power than all other miners combined. This would not be profitable in view of the high energy costs. This is the only way he could smuggle a fake block into the block chain.11

In addition to the transaction database, each of these blocks has a timestamp and a hash value, which corresponds to a checksum.12 The hash value is used to link the blocks to the transaction history and to prevent manipulation.13 Additionally, each of the blocks also contains the checksum of its previous block. This ensures data integrity and creates the block chain: a chain of validated blocks in chronological form.14 When a block is modified, this hash value no longer matches the original value and the network is alerted to the present manipulation.15 By storing all transaction data and checksums and comparing them with new transactions, it is also checked whether the corresponding value has already been output and therefore a transmission is still possible.16

1.6 Network and Token

There are open and private block chain networks. The Bitcoin platform, for example, is an open network and enjoys great trust because of its anonymity, freedom of access and transparency. Every participant can view and validate transactions. This absolute transparency is a core component of the network, but at the same time critical for many companies with regard to sensitive data. However, there are also block chains in private and hybrid form. These enable restrictions to be placed on usage, validation and decision-making rights. The hybrid block chain determines the number of network participants. Furthermore, it is possible not to publish its protocol. The private block chain, on the other hand, is only available to certain persons and is not publicly accessible.17 This means that the transaction data of a private block chain can only be viewed by the authorised participants. However, these restrictions also mean that there is no longer any real anonymity and decentralization. The stricter the access controls and restrictions, the lower the data integrity and decentralisation. In addition, changes to the way the block chain works can be made much more quickly, as it only requires the consent of certain authorised users.

Finally, it should be emphasized that various assets can be mapped and transferred using corresponding block chains. Therefore, before the block chain is set up, it is determined what type of assets or rights are represented by the corresponding token of a network.18 This can be money, shares, art, licenses or digital goods. The corresponding ownership rights can be directly assigned to the owner, which means that ownership relationships are clearly and transparently documented and forgery-proof.19

2. current fields of application

2.1 The Blockchain and Smart Contracts

As already indicated in the introduction, block chain technology does not only exist in the world of Bitcoin. There are now over 5000 crypto currencies (as of April 2020) in various forms.20 These are not always designed as means of payment. They can also take other forms and securitize rights of use or property rights, as described in the article "The Liechtenstein "Blockchain Law" (TVTG) from the perspective of tax consultants" by Matthias Langer.21

Furthermore, smart contracts or decentralized applications use block chain technology. Decentralized applications are user interfaces that establish a connection between block chain technology and the end user by accessing several Smart Contracts.22 Smart Contracts embody contracts that are executed automatically when certain conditions of the contracting parties are met. They contain the conditions for the fulfillment of the contract, check these conditions, and execute the predefined actions directly and automatically upon fulfillment. In addition, block chain technology is used to monitor compliance with the contracts.23 It offers the advantage here that contracts can be executed anonymously and intermediaries such as lawyers or banks are no longer required.24 This saves costs and time. In addition, block chain technology can be used wherever third parties were previously used to establish and guarantee trust. Furthermore, smart contracts can be used to manage and transfer property rights.

2.2 Block chaining in the financial industry

Some examples of the use of block chain technology are shown by the legal entity identifier check led by UBS or the automatic claims settlement of AXA.25 For example, the mandatory legitimacy check of new customers to prevent money laundering and terrorism can be simplified with cross-bank block chain technology and smart contracts. The lengthy legitimacy check would then only have to be run once. Subsequent institutions could then call up the verified customer data from the common block chain. This saves both banks and customers time and money. This has a positive effect on customer satisfaction. Another use case is the creation of a trading platform based on a block chain. Using such a platform, banks could exchange assets without intermediaries. This is possible because the exact transfer of ownership can be clearly updated and can be traced at any time. The use of smart contracts could also enable specific contractual agreements to be made.26

2.3 Blockchain in the administration and in communities

Digitisation possibilities based on the block chain are also being tested in administration. The city of Zug, for example, is active in this area. It has accepted Bitcoin as a means of payment since July 2016. In addition, it enables its inhabitants to create a digital identity based on a block chain. An app first creates a unique, unchangeable crypto address in the Ethereum block chain. This app also contains the citizen's safe deposit box, which is linked to the created crypto address. This identity is then authenticated by the city of Zug. Through this process, the user's data is not stored centrally, but remains with her. In addition, Zug conducted the first block-chain-based vote in June 2018. All citizens who possessed a digital identity were able to cast their vote on three questions. This was intended to check security-relevant aspects such as the protection of privacy, the unalterability of the vote, the verifiability and traceability of the results and the secrecy of the vote.27 One of the main advantages of block-chain-based voting is that the voting does not take place on a central server. The process is distributed over many computers. This increases security against failure or manipulation.

3. block chain in tax consulting

3.1 Common characteristics

Tax consultancies currently only deal with the topic of block chaining if it is actively demanded by their clients and their business models. The first tax consultants are starting to deal with the block chain and its functionality as well as the booking of crypto currencies and their tax representation. However, they are not yet using it themselves. The question often arises as to whether there are any application scenarios for the block chain technology in tax consultancies.

When considering the properties of a block chain, the central characteristics of transparency, anonymity, data integrity and security, as well as decentralization and efficiency, emerged. Even if anonymity plays a rather minor role in tax consulting, other values such as transparency, security, data integrity and efficiency are very important aspects in tax matters. This gives a first indication that there is potential in the block chain for the tax area as well. In addition, it should not be forgotten that individual municipalities let their administration take place on a block chain. Since this also involves sensitive information from citizens, it can be assumed that a corresponding mapping is also possible for tax firms.

3.2 Potentials of Smart Contracts and secure data exchange

Just as in other industries, Smart Contracts could be used to automate processes and map secure contractual relationships and their handling. Similar to the legitimacy check in the financial industry, they would also replace some intermediaries and thus increase efficiency. Transaction data and property rights could be securely stored in a decentralized network to which only the corresponding authorized users have access. This is possible by designing the block chain in private or hybrid form. As a result, this data would no longer have to be stored internally by each user individually, but could be shared and accessed online if required.

Depending on the type of data and network, users would be provided with the appropriate rights and/or restrictions. In addition to a high level of security, this also offers opportunities for cross-border data exchange between companies, tax experts and auditors. Sensitive data such as invoices, receipts and accounting transactions relevant for tax audits could be exchanged and stored in a forgery-proof manner. Since such a transnationally harmonised solution for data exchange is being sought in the context of automatic information exchange, but still faces many practical hurdles, the block chain with its decentralised nature could provide a solution.28 State actors would benefit from a more effective implementation of tax legislation and the prevention of tax fraud. Companies would enjoy advantages in proving that they act in compliance with the law and in real-time auditing.

3.3 Application scenario in the revision

This means that operational audits or revisions offer further application possibilities for the block chain. Currently, auditors need to understand the technologies used, how they work and their effects. Otherwise, serious errors can occur in the course of the audit. The block chain offers solutions here to support and facilitate the audit process. Cost-intensive confirmations from third parties involved, such as banks or debtors, would be eliminated and transactions on the block chain could be traced by the auditors without sending documents. In addition, a higher degree of standardisation would also increase efficiency, which in turn would enable the use of automated data analyses.29 Auditors would be able to access the data in real time and use artificial intelligence for its analysis and further processing.

3.4 Block chain technology for documentation and prevention of tax fraud

Other examples of tax consultancy applications include customs, transfer pricing documentation, capital gains tax and value added tax.30 For example, there is an approach to avoid Cum/Ex and Cum/Cum transactions. These are transactions in which a multiple refund of capital gains tax paid only once is deliberately caused by shifting securities back and forth several times around the dividend date. The block chain is intended to prevent the falsification of evidence justifying a tax refund claim and to provide transparency regarding capital gains tax already refunded.31 Similarly, in the area of value-added tax, there are approaches to reduce administrative work, increase efficiency and prevent criminal acts.

Blockchain and Smart Contracts are intended to prevent carousel transactions through electronic invoicing and its transparency.32 These are transactions in which the same goods are traded several times in order to obtain input tax refunds.33 In addition, evidence of goods sent and received, as well as of the payment or withholding of VAT can be displayed and stored unalterably and transparently. This simplifies compliance processes. The idea of validating the sales tax ID number (VAT ID number) with the help of block chain technology also contributes to this. The validity of this number could be ensured at a certain point in time and individual transactions could be assigned to it. This would be possible by linking the VAT ID number to a corresponding hash value of the invoice to be issued. In this way, the invoice would be clearly represented by the hash value without releasing its exact content. The transaction would then be validated by the network participants and, in the event of a positive check, would be combined with other transactions and added to the block chain as a block.34

In addition, the digitalization and automation of transfer pricing documentation can be carried out with the help of a block chain. This would replace the revision processes, which were often manual and therefore prone to errors. For internal company receivables and liabilities, Smart Contracts could take over the compliance with the relevant transfer prices, their appropriate determination and their documentation.35 As for the logistics sector, customs clearance using block chain technology offers potential for tax consultancy. This is the case, as efficiency increases in the tax area could be achieved by a corresponding digitalization.36

4. challenges and technical difficulties

4.1 Private vs. public block chain

With all the use cases and potentials, there are also some challenges when using a block chain in the tax area and handling crypto currencies. One of the problems is the scalability of open block chain technologies. Increasing data volumes have a negative effect on transaction speeds and waiting times.37 This is due to the increasingly complex consensus building in the block chain. In the case of the private block chain technologies presented, there is another problem: the lack of decentralization. An initial individual system participant takes on a trusted authority - namely the role of the operator. This does not represent an open block chain and the decentralization of the network is - as already mentioned above - greatly reduced.38

4.2 Challenges in the audit

Thanks to this decentralization, companies can use crypto-currencies for transactions without intermediaries and thus save costs. However, this also means that there is no evidence - such as bank statements - of the transaction.39 This makes the revision more difficult. Auditors must accordingly demand proof of the existing crypto currencies. It should also be noted that the high security of the block chain can also become a problem. The corresponding private keys are required to store the crypto currencies. If these are lost, it is impossible to access the crypto-currencies. Similarly, it is not possible to recover the losses if the crypto currency is skimmed off without authorization. For this reason, the audit attaches great importance to checking the safekeeping of the private key, as well as IT controls, the internal control system and the design of the duty of care.40 In addition, auditors must determine whether management has fully identified and verified the counterparty of a transaction. The auditors must also check whether transactions were carried out at arm's length. This can involve complicated audit processes.

4.3 Lack of legal basis

In addition, a number of legal conditions inhibit the use of a block chain. One problem is that a Smart Contract is not a contract in legal terms. It is only a computer-based implementation. While the documentation of the contract on the block chain is unproblematic, there is great disagreement regarding the automated fulfillment of contractual obligations.41 Even though the parties to the contract are basically free to choose the legal form and thus also the program code as the contractual language, Smart Contracts are not legally binding, for example, if a handwritten signature is required to make the contract effective.42 Swiss law does not contain any adaptations of the legal system with regard to Smart Contracts. The German Bundestag also confirms that the principle of Smart Contracts does not exist in German law. According to this, Smart Contracts by allocating assets to new owners by means of a software, would not correspond to a contract under German law.43

Due to the lack of a legal basis, further unintended consequences occur. For example, smart contracts that are set up on a permanent basis sometimes constitute a partnership under civil law (GbR). This leads to the situation that suddenly persons without the desire for a permanent connection legally represent a GbR with all its commercial and tax law arrangements (e.g. personal liability or changed classification of services and turnover).44 Persons who operate in such areas are therefore uncertain how they can act in conformity with the law.

4.4 The basic data protection regulation (DSGVO)

Another problem is data protection. Activities and stored data on a block chain are not easily erasable. Even if a data protection-compliant consent has been obtained in advance for the storage of the data, the problem of deletion remains when revoking or applying to be forgotten. The right to privacy and personal data protection to which every EU citizen is entitled under the Basic Data Protection Regulation (DSGVO) can become an obstacle in the design and operation of a block chain. Even though the transactions on many block chains are anonymous, some can still be traced back to their executors.45

4.5 Insufficient acceptance and incentives

In addition, there is still a lack of acceptance, trust and incentives regarding the effective use of block-chain technologies in tax consulting. Companies as well as public authorities have to provide additional resources for studying the technology and for the infrastructure. First and foremost: computing capacity, storage space and knowledge. In addition, decentralized operation of a block chain would require independent management of the required hardware and ensuring the availability of the block chain application.46 For this purpose, employees would have to be acquired or trained accordingly. The load capacity of the servers would also have to be tested. It quickly becomes clear that introducing the block chain technology involves a lot of costs, training and restructuring. This is not possible for many law firms in terms of time, expertise and technology.

This is particularly true as long as there are no incentives to use or test the block chain technology and as long as the authorities do not publish or support concrete measures to introduce the block chain technology. Furthermore, it should not be forgotten that many people and companies are generally still ignorant or sceptical about block chain technology. This scepticism is often reinforced by the handling and digital representation of sensitive data.

4.6 Accounting and valuation of crypto currencies

Some tax consultants have at least begun to deal with the accounting and tax treatment of crypto currencies. However, this does not yet apply to the general public and often leads to new kinds of problems. First and foremost, the intended use of the tokens must be clarified, since the corresponding accounting depends on it. The tax consequences for the company, the founders and the employees must also be considered in order to prevent reductions in input tax and other unfavourable consequences.47 To do this, the token must be classified. Since crypto currencies are not legal tender, they are not considered liquid assets.48 Instead, they are classified in the categories asset tokens, usage tokens, or means of payment tokens.49 In addition to the accounting treatment, the valuation also depends on this classification. This can also lead to difficulties, since the EStV does not issue price lists for less well-known tokens. These must therefore be determined otherwise. Furthermore, some tokens are not issued but held by the issuer itself. This is a difficulty because the price per token cannot be determined in an active market at this time. Therefore, events after the balance sheet date must be taken into account. The whole thing is reinforced by the fact that there is a time difference between the initiation and execution of a transaction, which requires special attention especially in times of the change of fiscal year.50

Unlike fiat currencies (the money issued by the central bank), which have standardised abbreviations, crypto currencies lack such widespread identification. Instead, exchanges use their own symbols for identification for the crypto-currencies listed on them. Thus, it is no exception that different exchanges use the same symbol for different currencies or identify the same currencies with different symbols. This makes it clear that an exact identification of the token is essential. It is also important to determine the exchange rates and market values applied to the individual transactions. Often the clients concerned cannot reliably determine or supply these. They need the support of the attending law firm.

Another challenge is the number of transactions carried out by clients. The number of one million transactions per year and upwards is quickly reached and virtually eliminates the need for manual processing and checking of transactions. Accordingly, this process should be automated. It should be noted, however, that different types of clients appear with different requirements for the preparation of their data. Such individual requirements must be taken into account and must be mappable. Similarly, when cryptocurrencies are entered for accounting purposes, it should be planned at an early stage so that they can be checked for traceability and completeness.

5. possible solutions

5.1 Design of Smart Contracts

With regard to the coming into effect of the Smart Contracts, it is possible in a first step to draft a classic contract in written form. A Smart Contract can then be programmed on the basis of this contract. If the conditions are met, this will then automatically implement what has been agreed. In addition, Smart Contracts would require legal capacity and capacity to act.51 After registration and examination of such a Smart Contract, the tax law question of the connecting factor and thus the taxation of profits would also be clarified. A registration would include the contracting parties and the algorithms on the basis of which the asset transfers take place.

5.2 Block chain and token design

Also with regard to data protection, companies would have to deal with the corresponding regulations in detail when setting up and planning the block chain in order not to run into difficulties later. The deletion of personal data could also be made possible by setting up a block chain that can be changed at a later date. However, you should be aware that a central characteristic of the block chain, decentralization, would be lost. In this case, trustworthy administrators would have the task of carrying out corresponding changes in the network without endangering the authenticity of the block chain.

In order to avoid inconvenience and additional expense that may arise later, token issuers should coordinate the accounting and tax conditions with the auditing department as early as the conception of the token.52 This applies not only to the tax situation of the legal entity, but also to that of the founders and employees. Founders often hold a certain proportion of the tokens themselves or pay their employees in tokens, which can have adverse tax consequences depending on the structure.53

5.3 Determining the value of the crypto currency

Equally important is the determination of the market value of the crypto-currencies, as this affects the assessment basis for wage tax and social security.54 In order to prove the crypto assets after issuing the tokens or when holding various crypto assets, one can log into the corresponding account (in the presence of the responsible tester). Alternatively, the auditor can send a message for signing to the customer's "public adress". After signing, the client returns the message to the auditor with her private key.55

As a third option, however, the management can also be instructed to carry out a specific transaction within the company. To ensure the traceability of this and other transactions carried out and to check that the contracting parties are sufficiently identified, the transaction can be traced on the block chain by means of data analysis. This is possible due to the public visibility of the block chain and facilitates the verification process.

5.4 Accurate accounting and valuation through automated processes and interfaces

With regard to the accounting and tax handling of crypto-currencies, it is important to ensure that the documents submitted by customers contain sufficient information on the individual crypto-currencies to enable them to be clearly identified. In order to avoid confusion due to ambiguous identification codes of different exchanges, an internally created mapping can be advantageous, depending on the application. This is also important to support clients in determining the exchange rates applied. The exchange rates can be automatically queried from the relevant exchange and assigned to the transactions via a technical interface.

Alternatively, other solutions exist in the form of a standardized interface to various exchanges or in the form of specific formulas that calculate and automatically query prices of corresponding crypto currencies. If the trades are in the past, the prices of the individual days are normally available in open and close prices. Since many crypto currencies also have a high volatility, it is important to determine the correct prices and to be able to prove their transparent calculation. In order to ensure an efficient process of transferring completed crypto transactions to the accounting department, this should be automated. Standard accounting programs do not yet support this procedure as things stand today. An investment in software development and server infrastructure is therefore required.

In order to keep the effort on the client's side low, close cooperation can also ensure that individual requirements and circumstances with regard to data quality and preparation are taken into account. These can take different forms depending on the type of token and the country of origin of the trade. The corresponding information is then prepared and processed for accounting purposes. A rough automated basic check of the completeness and traceability of the data can be carried out retrospectively by accessing the order books (list of all open buy and sell bids) of the exchanges. Nevertheless, it is important to carry out a comparison and to check whether the client has other tokens. Since there are no comprehensive statements or receipts in this area, a close exchange with the client is necessary to verify that no wallet has been forgotten or concealed.

6. conclusion

In summary, it can be said that block chain technology is attracting more and more attention. Its use is increasingly being examined by companies. Due to its presented advantages in terms of transparency, anonymity, validity and decentralization as well as its high security, it enjoys growing interest and trust. With regard to tax issues, it was pointed out that there are many application scenarios at different levels, especially with regard to auditing, and that increases in efficiency are certainly possible. We are eagerly awaiting the exact design as well as new ideas and projects - perhaps also from the government - to be developed. In order to simplify and speed up the whole process, it is also hoped that there will be a clear legal classification and legal definition of smart contracts, block chain technology and their design and handling. This applies equally to data protection issues. Financial and technical incentives for researching and implementing the technology in the tax field would also provide support. Meanwhile, it is important to perfect the accounting and tax law handling of crypto-currencies and their representation and to integrate them into the daily routine of a tax office.