Keyword: cryptocurrencies

Infrastructure Law Adds Important Crypto Provisions

The Infrastructure Investment and Jobs Act, enacted on November 15, 2021, also known as the Bipartisan Infrastructure Law (the “BIL”), adds many important provisions regarding the development of the United States’ infrastructure network. These provisions are sorely overdue and are welcomed by many.

But lesser attention has been given to several provisions related to the taxation of cryptocurrency transactions. Unlike prior IRS guidance, the provisions all deal with the reporting of crypto transactions. The proper reporting of crypto transactions is important to the U.S. Treasury, as it serves to ensure that taxpayers properly report and pay tax on crypto-related income.

Three crypto-related tax provisions were added to the Internal Revenue Code (the “Code”). While each of the provisions has a delayed effective date, the information gathering required by some of the provisions will take place beginning January 1, 2023, less than 12 months from now.

1. Amendment to Broker Reporting. Code Section 6045 deals with reporting requirements imposed on brokers to the IRS. Brokers are required to report the gross proceeds from transactions in which they are involved to both the taxpayer and the IRS. The reporting is made on Form 1099-B, “Proceeds From Broker and Barter Exchange Transactions.” The definition of broker is very broad under Code Section 6045, and includes a dealer, a barter exchange and any person acting as a middleman. If the item subject to reporting is a “covered security,” the broker must report the customer’s adjusted basis in such security and whether any gain or loss with respect to such security is long-term or short-term. Covered securities are further defined to include “specified securities.” These include stocks, bonds, commodities and any financial instruments with respect to which the Secretary of the Treasury determines that adjusted basis reporting is appropriate.

The purpose of reporting under this provision is to allow the IRS to cross-check the information filed by the broker with the information filed by the taxpayer. The failure to report or the failure to provide the statements to the named taxpayer may subject the broker to penalties of up to $3 million a year, or more, if the failure is due to the intentional disregard of filing requirements. Willful failure to file is a misdemeanor.

The BIL makes two significant changes to Code Section 6045. First, the BIL modifies the definition of broker to include “any person who (for consideration) is responsible for regularly providing any service effectuating transfers of digital assets on behalf of another person.” The use of the phrase “on behalf another person” is perplexing because the broker already includes a “middleman” concept. On its face, the updated provision would require miners, software developers, transaction validators and node operators to provide the required information as such parties provide services in connection with crypto transactions.

The BIL also amends Code Section 6045 by including “digital assets” in the list of specified securities. Under the BIL, the term “digital asset” means “any digital representation of value which is recorded on a cryptographically secured distributed ledger or any similar technology as specified by the Secretary.” As enacted, the provision would include a fairly broad category of digital assets, including traditional cryptocurrencies, such as bitcoin, as well as non-fungible tokens. The Secretary of the Treasury has broad authority to exempt types of transactions.

The definition of digital asset is significant as that term is used in a number of other provisions in the Code.

The amendments to this provision have a delayed effective date. The amendments are effective for returns required to be filed, and statements required to be furnished, after December 31, 2023. However, the information gathering will need to commence beginning January 1, 2023.

2. Amendment to Broker-to-Broker Reporting. Code Section 6045, discussed above, deals with broker transactions with customers. Code Section 6045A, in turn, deals with the reporting of transactions between brokers. It is designed to allow the transferee broker to report the information that the originating broker would otherwise be required to report. It requires every applicable person who transfers to a broker a security which is a covered security to furnish information so that the transferee can provide the gain or loss and basis reporting information that is required under Code Section 6045. The BIL includes an amendment to Code Section 6045A providing that returns shall be furnished with respect to any transfer (which is not a part of a sale or exchange executed by such broker) which is a digital asset from an account maintained by such broker to an account not maintained by, or an address not associated with, a person that such broker knows or has reason to know is also a broker. Thus, the provision expands the reporting to “broker-to-non-broker” transactions.

The amendment is effective for returns required to be filed, and statements required to be furnished, after December 31, 2023. But, once again, the information gathering systems must be in place for transactions taking place beginning January 1, 2023.

3. Reporting of Cash Transactions. Code Section 6050I requires any person receiving cash to report the receipt of the cash to the IRS. It applies when a person in the course of a “trade or business” receives cash of $10,000 of more. Cash includes foreign currency. It also includes, “to the extent provided in regulations,” any monetary instrument (whether or not in bearer form) with a face amount of not more than $10,000. The provision would apply, when say, a person goes into a car dealer and buys a car for cash. The person receiving the cash is required to file a Form 8300, Report of Cash Payments Over $10,000 in a Trade or Business, within 15 days of receipt of the cash. The return requires the reporting of the name of the person from whom the cash is received, the taxpayer identification number, the person’s address and occupation. Form 8300 may be filed with the IRS or electronically through FINCEN. The person making the return must also provide a copy of the return to the person whose name is on the return.

The requirement to report cash transactions is buttressed with fairly steep penalties. Penalties apply for the failure to file Form 8300 with the IRS and the failure to provide a copy to the named taxpayer. Failure to comply can result in penalties of up to $3 million a year, or the greater of $25,000 or the amount received if the failure is due to the intentional disregard of filing requirements. Willful failure is a felony.

The BIL amends Code Section 6050I to apply to persons receiving digital assets, cross-referencing the definition contained in Code Section 6045. On its face, this would include digital assets received for validating transactions or other services relating to crypto transactions. One of the problems that this introduces in the world of decentralized finance transactions is the difficulty of identifying the purchaser if the transaction is made through a smart contract rather than from an identifiable person.

Here, again, the amendment is effective for returns required to be filed, and statements required to be furnished, after December 31, 2023.

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Several legislators, including Senator Wyden, Chair of the Finance Committee, have introduced bills seeking to narrow the provisions, most notably the definition of “broker,” but these bills did not gain traction. As matters now stand, the impact of these provisions is uncertain, as much will depend on whether Treasury issues regulations seeking to narrow the scope of the provisions.

The Next Step: FinCEN Proposes to Require Reporting of Cryptocurrency Positions Held in Foreign Accounts

FinCEN recently took another important step toward bringing virtual currency into the financial assets reporting scheme.

Taxpayers that have $10,000 or more in a foreign bank account have long been required to file a foreign bank account report (or “FBAR”) on FinCEN Form 114. The penalties for failing to report foreign bank accounts are significant: $10,000 for a non-willful failure and the greater of $100,000 and up to 50 percent of the unreported account balance for willful failures. While the rules requiring the reporting are issued under the authority of the Bank Secrecy Act, the IRS administers the rules—and the IRS has been aggressive in assessing penalties for failures to report such holdings.

The application of the filing requirement to cryptocurrency has been the subject of some uncertainty. The uncertainty arises because the reporting requirement only applies to a “financial account.” A financial account includes, but is not limited to, a se­curities, brokerage, savings, demand, checking, deposit, time deposit or other account maintained with a financial institution (or other person performing the services of a financial institution). A financial account (per 31 CFR 1010.350(c)) also includes a commodity futures or options account, an insurance policy with a cash value (such as a whole life insurance policy), an annuity policy with a cash value and shares in a mutual fund or similar pooled fund (i.e., a fund that is available to the general public with a regular net asset value determination and regular redemptions). The regulations reserve “other investment fund,” presumably for a definition to come. However, in response to questions raised by the AICPA Virtual Currency Task Force in 2019, FinCEN stated that virtual currency was not subject to FBAR reporting. This was confirmed by FinCEN in 2020 as well.

Whether or not cryptocurrencies are subject to FBAR filing, such holdings may have to be included on the IRS’s Form 8938, Statement of Specified Foreign Financial Assets. Form 8938 is the counterpart to FinCEN 114.

Recent FinCEN Proposed Rule

On December 31, 2020, FinCEN issued Notice 2020-2 that announced a proposed rule that would amend the regulations implementing the Bank Secrecy Act regarding reports of foreign financial accounts (FBAR) to include virtual currency as a type of reportable account under 31 CFR 1010.350. The proposed rule does not specify an effective date.

The decision to treat cryptocurrency as subject to FBAR reporting significantly increases the potential penalties against those who fail to properly identify these accounts. Holders of virtual currency in foreign accounts should review this rule and prepare to report such holdings once the rule becomes effective.

FinCEN’s New Guidance for Cryptocurrency Businesses – Some Questions Answered, Some New Questions Raised, Careful Consideration a Must

Earlier this month, the Financial Crimes Enforcement Network (FinCEN) released new guidance to clarify when the Bank Secrecy Act (BSA) will apply to businesses that involve cryptocurrencies (what FinCEN refers to as convertible virtual currencies, or CVCs). The BSA imposes anti-money laundering obligations on various U.S. financial institutions, including “money services businesses” (MSBs). Under the BSA, businesses that transact in cryptocurrencies may qualify as money transmitters, a type of MSB. Whether a business qualifies is important. An MSB must register with FinCEN, implement anti-money laundering controls, and ensure ongoing compliance with recordkeeping and reporting requirements (potentially an expensive and burdensome exercise) – the consequences of failing do so can be severe. But determining which such businesses qualify has been difficult, leaving many in the crypto industry uncertain as to their regulatory status.

FinCEN previously sought to aid in this analysis when it issued guidance in 2013 on the application of the BSA to “persons administering, exchanging, or using virtual currencies.” Although it provided some insight into how FinCEN viewed the cryptocurrency industry, that guidance seemed to raise as many questions as it answered. Various administrative rulings – in which FinCEN publicly advised certain businesses as to whether they were MSBs – helped to answer some of those questions. But those narrow rulings have been few and far between and can provide only limited guidance for a rapidly evolving industry. Through public statements, government officials have also sought to clarify how the BSA might apply to crypto businesses. In particular, a February 2018 letter from a senior Treasury Department official to Senator Ron Wyden suggested that almost all ICOs will constitute BSA-regulated money transmission.

FinCEN’s new guidance “consolidates current FinCEN regulations, and related administrative rulings and guidance issued since 2011, and then applies these rules and interpretations to other common business models involving CVC engaging in the same underlying patterns of activity.” In doing so it takes a step in the right direction, providing greater clarity as to FinCEN’s interpretation of its own regulations (at least to the extent your business model is one of the many covered). For example, the guidance describes why the provider of a hosted wallet likely will be an MSB by virtue of its exercise of total independent control over a customer’s cryptocurrency, whereas the provider of an unhosted wallet that vests the customer with total independent control likely will not. Similarly, the guidance explains that the operator of a trading platform that merely provides a forum where buyers and sellers can post bids and offers likely would not be an MSB, while the operator of a trading platform that additionally acts as an exchanger in consummating transactions between buyers and sellers likely would be. But gaps in FinCEN’s analysis still linger, new questions are raised, and it remains to be seen how useful this guidance will be as technology continues to advance and new and creative business models get off the ground.

And although the guidance signals that FinCEN is thinking about how the federal anti-money laundering laws apply to the cryptocurrency community, it does not signal how aggressive FinCEN will be in enforcing those laws against businesses that deal with cryptocurrency. To date, there have been just a handful of enforcement actions in the industry, including a civil penalty assessed against a peer-to-peer exchanger in April, which we previously discussed. One thing certain is that, in assessing potential BSA enforcement actions, FinCEN will rely heavily on this new guidance and expect businesses dealing in cryptocurrency to do the same. Persons and entities operating in this industry should evaluate (or reevaluate) whether they qualify as an MSB because of crypto-related activities in light of this new guidance.