Capital gains tax refund on realized losses from an investment in a Crypto Basket Index ETP.
The situation is as follows:
I have acquired the 21Shares Crypto Basket Index ETP Index certificate with several purchases WKN: A2TT3D ISIN: CH0445689208. The purchases took place from 13.8.21 to 25.5.22, with a partial sale on 19.6.22.
Due to a significant drop in the stock price, the partial sale was made on 19.06.2022 at a loss, and capital gains tax, solidarity surcharge, and church tax were refunded in the bank statement.
Unfortunately, this transaction was cancelled on 26.06.2023, and the refunded tax amounts were deducted again, in my opinion, unjustly.
The bank stated upon inquiry that a change was not possible, and we should contact the tax office for a refund.
In the meantime, I have researched the tax treatment of ETPs and found the following:
Physically backed crypto ETPs are treated tax-wise as direct investments in cryptocurrencies. A delivery option is required - which is not the case for all crypto ETPs. The basis for this is the BMF letter dated 10.05.2022. In income tax terms, they are treated not as capital income, but as speculative gains. There is a parallel here with the taxation of physical gold ETCs.
Crypto ETPs - without delivery option
The taxation differs for crypto ETPs without a delivery option. These products are tax-wise considered as bearer bonds of the issuers, subject to the flat-rate withholding tax (25 percent plus solidarity surcharge and possibly church tax) like ETFs. This applies typically to ETPs on crypto strategy indices and basket products regardless of the issuer.
If the crypto ETP is not exempt from withholding tax, realized losses can be offset against gains from ETFs, funds, and other securities.
I inquired with the issuer of our ETP, 21Shares, and was informed that the ETP in question initially did not have a delivery option, but this was changed in a new prospectus on 13.12.2022. Since then, there is a delivery option, which was not the case before!
Since all actions I took occurred before 13.12.2022, I believe the original booking was correct.
The tax office, in an initial statement, considers the corrected settlement by my bank to be tax-correct.
My question is whether my view is correct, and if so, on what grounds I could base my argumentation against the tax office.
