Is there now a consensus on crypto taxation?
For a long time, the tax treatment of cryptocurrencies was marked by uncertainty. Differing views among tax authorities, the courts, and in the professional literature made tax planning particularly difficult for business owners and investors. However, consensus is now emerging on one key point: crypto assets are economic assets.
This article explains what that means in concrete terms—and why the final word on mining has not yet been spoken.
Crypto Assets as Economic Assets: The Consensus Stands
The Federal Fiscal Court (BFH), the tax authorities, and the prevailing opinion in the literature have agreed: Crypto assets—whether Bitcoin, Ethereum, or other tokens—are to be classified as economic assets for tax purposes.
It does not matter what specific purpose the individual token serves or how it works in detail. Rather, three objective criteria are decisive:
- The token represents a digital asset or a right.
- The transfer takes place via distributed ledger technology (DLT) or a comparable technology.
- There is a market value that can be regularly realized on platforms or exchanges.
The fact that such tokens are publicly traded and that a current price can be obtained at any time makes them realizable assets. This provides tax clarity for investors, entrepreneurs, and everyone who deals with crypto assets—both in terms of income tax and commercial activities.
Point of contention: Commercial nature of mining using the proof-of-work method
However, the question of whether so-called cryptocurrency mining—particularly in the Proof-of-Work process, as with Bitcoin—should be classified as a commercial activity under the Income Tax Act remains open.
An exciting debate is underway here: Mining involves numerous elements of chance that make classifying it as a commercial activity seem at least questionable. There is even discussion as to whether it is not, rather, a form of non-taxable gambling.
The Federal Ministry of Finance views mining as participation in economic activity
According to the letter from the Federal Ministry of Finance dated March 6, 2025 (§ 38 BStBl 2025 I p. 658), mining is indeed considered a “participation in general economic activity.” The Ministry justifies this by stating that miners make a contribution to others by providing computing power.
However, this interpretation has been criticized because it does not fully reflect the actual technical process of mining.
Why mining may be considered gambling under certain circumstances
The so-called proof-of-work process—for example, in Bitcoin—is based on a high degree of randomness:
- Random calculation (nonce): The miner must find a correct random number through trial and error.
- Processing speed: The block found must be transmitted as quickly as possible.
- Decision by other miners: If a block is transmitted by multiple miners nearly simultaneously, the subsequent process determines which version of the blockchain is continued. The “winner” receives the reward—the others come away empty-handed.
This process shows that miners have no influence over whether they will ultimately be rewarded with a valid block reward (so-called coinbase). Although multiple miners perform correct calculations, only one result is accepted by the system—all others are economically worthless despite identical performance.
This mechanism corresponds—in part—to the classic model of a game of chance. It lacks the predictable economic exploitation required by Section 15(2) of the German Income Tax Act (EStG) for a commercial activity.
Outlook: Tax Exemption for Miners?
If the argument that mining is equivalent to a game of chance prevails, this would have significant tax implications: income from mining would not be subject to income tax.
However, this has not yet been conclusively decided. The Federal Fiscal Court (BFH) is expected to address this issue in detail in an upcoming main proceeding. Until then, a certain degree of uncertainty remains for affected entrepreneurs and investors.
Conclusion: Crypto Assets Yes – Mining Maybe
The classification of crypto assets as economic assets is legally established. Anyone who trades in digital assets or holds them long-term must prepare for a clear tax assessment.
The situation is different when it comes to mining. Here, the question of tax treatment remains open. Entrepreneurs involved in mining—whether privately or for business purposes—should closely monitor developments in case law and, if in doubt, seek professional tax advice.
Tip: Anyone who has already generated mining income should, as a precaution, report it at this time but cite ongoing proceedings. A final ruling by the Federal Fiscal Court (BFH) could have far-reaching implications for taxpayers.
