With the emergence of digital assets, the question has arisen whether digital assets held in “wallets” in foreign exchanges need to be reported on Internal Revenue Service (IRS) Form 8938, Statement of Specified Foreign Financial Assets. Form 8938 is the IRS counterpart for the FBAR, or Foreign Bank Report, which certain holders of foreign bank accounts must file with FinCEN. Form 8938 was added as part of the HIRE Act at the same time the Foreign Account Tax Compliance Act (commonly known as FATCA) was adopted in 2010. The penalty for a failure to file Form 8938 is $10,000. However, it is not clear that Form 8938 applies to digital assets.
The answer requires one to dig through the underlying statutes and the instructions to Form 8938. We start with Internal Revenue Code Section 6038D, which requires reporting of “specified foreign financial assets.” Under Code Section 6038D, a “specified foreign financial asset” is (1) a financial account maintained by a foreign financial institution and (2) one of the following foreign financial assets if they are held for investment and not held in an account maintained by a financial institution: (a) any stock or security issued by a person other than a United States person; (b) any financial instrument or contract held for investment that has an issuer or counterparty other than a United States person, and (c) any interest in a foreign entity. The term “financial account” means, with respect to any financial institution, (a) any depository account, (b) any custodial account and (c) any equity or debt interest in such financial institution (other than interests regularly traded on an established securities market).
One issue for digital asset holders is whether a person who holds such assets in a wallet maintained at a foreign exchange is holding an asset in a “foreign financial institution.” What is a financial institution? This is defined in Code Section 1471(d)(5) as an entity that (a) accepts deposits in the ordinary course of a banking or a similar business, (b) as a substantial portion of its business, holds “financial assets” for the account of the others, or (c) is engaged (or holds itself out as being engaged) primarily in the business of investing, reinvesting or trading in securities, partnership interests, commodities or any interests in such securities, partnership interests or commodities. A foreign financial institution includes investment vehicles such as foreign mutual funds, foreign hedge funds and foreign private equity funds. Very generally, financial assets are securities, commodities, notional principal contracts, insurance contracts, or annuity contracts or interests in any of the foregoing. Both the terms “security” and “commodity” are defined by reference to Code Section 475, a section of the Code that was adopted in 1993, preceding the emergence of digital assets. For example, gold is a commodity under this provision, and anyone holding gold in an offshore account would need to report the account. Should the same rules apply to bitcoin or bitcoin gold held in a wallet in an offshore exchange? The IRS has not yet taken a position on whether cryptocurrency is a security or a commodity, which it could do by a regulation or a notice. This is key to the analysis of whether or not the crypto exchange is a foreign financial institution.
At least one recent, unofficial statement provides insight into the IRS’s thinking on the reporting obligation on Form 8938. Recently, according to Tax Notes, an IRS official was asked if the IRS will assess penalties against taxpayers who haven’t been disclosing digital assets on Form 8938, and the official responded that, if taxpayers had been reporting taxable cryptocurrency transactions on their returns during prior years and properly filed Form 8938 going forward, the IRS probably would not pursue them for prior tax years. Of course, this is merely an unofficial statement, and the IRS could formally decide otherwise or examiners could take different positions during the course of an exam. Either way, taxpayers that have not been reporting their cryptocurrency transactions should file Form 8938 as soon as possible and consider filing amended returns.
Information reporting is certainly a key issue for the IRS that will drive the tax compliance process. In a sign of the attention that the IRS is giving to the reporting, the draft version of IRS Form 1040, Schedule 1, now includes a question regarding financial interests in “virtual currencies,” much like the question relating to ownership of foreign bank accounts presently on Schedule B.