Wash sale in cryptocurrencies: the 2-month rule in Spain
A "wash sale" consists of selling an asset at a loss and immediately repurchasing it to maintain market exposure while "realizing" the tax loss. In Spain, there is an anti-abuse rule to prevent this practice in the securities market, but its application to cryptocurrencies has nuances.
The anti-abuse rule for homogeneous securities
Article 33.5 of the IRPF states that when securities are transferred at a loss and homogeneous securities (identical or similar) are acquired within the 2 months before or after the transfer, the loss is deferred. It cannot be deducted immediately; instead, it is added to the cost of the repurchased securities.
In listed securities: It clearly applies (2 months before or after for shares and funds from the same issuer).
Does it apply to cryptocurrencies?
This is the million-dollar question. Article 33.5 speaks of "homogeneous securities" and the DGT has indicated that cryptocurrencies are "movable assets" (bienes muebles), not "securities". Strictly speaking, the rule would not be applicable.
However:
- The AEAT may argue that the spirit of the anti-abuse rule applies by analogy.
- Legal uncertainty is sufficient for some advisors to recommend applying the rule as a precaution.
- If the legislator intended to prevent it, they could explicitly extend the rule to crypto.
Conservative vs. Aggressive Stance
| Stance | Criterion | Risk |
|---|---|---|
| Conservative | Apply the 2-month rule to crypto | None (you don't take advantage of the window) |
| Neutral | Wait for a binding ruling | Moderate |
| Aggressive | Do not apply the 2-month rule | Possible tax adjustment with interest |
Crypto tax loss harvesting in Spain
Tax loss harvesting (realizing losses before the end of the year to offset gains) is perfectly legal in Spain for cryptocurrencies, provided you do not repurchase the same asset immediately if you decide to follow the conservative interpretation.
Practical alternative:
- You sell BTC at a loss.
- You immediately buy ETH (a different asset) → there is no problem.
- You can buy BTC again after 2 months.
Conclusion
The 2-month rule probably does not technically apply to cryptocurrencies under current law, but legal uncertainty means the safest stance is to wait for that period between the sale at a loss and the repurchase of the same asset. The AEAT could change its position at any time.