Keyword: virtual currency

The Token Taxonomy Act: A Fatal Drafting Ambiguity

As we’ve previously written, the Token Taxonomy Act (TTA) is an ambitious and potentially impactful piece of legislation that, by exempting digital tokens from the securities laws, might remove regulatory inhibitions from the maturing digital token industry. The bill is not without fault, however. As it stands, the language of the bill requiring that a digital token’s consensus be inalterable is ambiguously written and the SEC could use a strict interpretation to preclude many digital assets from qualifying as digital tokens.

The proposed additional language of Section 2(a)(20)(B) of the Securities Act of 1933 reads that to qualify for the exemption, a digital token:

(i) must be recorded in a distributed, digital ledger or digital data structure in which consensus is achieved through a mathematically verifiable process; and

(ii) after consensus is reached, cannot be materially altered by a single person or group of persons under common control.

In other words, a digital token must use an inalterable and objectively verifiable process. This language is designed to include in the definition only those digital tokens that are or will be in widespread enough use so that no one single party can influence the nature of the outstanding tokens in a way that adversely affects digital token holders.

The proposed language creates the possibility that the SEC could strictly apply the requirement that a token “cannot” be materially altered. As it stands, proof-of-work and even proof-of-stake digital assets are susceptible to a 51% attack, which could alter the digital token’s consensus. “Proof-of-work” and “proof-of-stake” refer to different systems used to verify and process transactions on a blockchain.

A “51% attack” is an event in which a party takes control of the requisite computer power underlying a token’s blockchain such that the party can control the token platform’s operation. Typically, a party seeking such control needs to possess 51% of the outstanding tokens, but the threshold amount can be lower for individual digital assets. A party that has successfully executed a 51% attack can change the ledger history so that it can, for example, double-spend tokens.

The SEC could negate the potential application of the TTA because the recent 51% attack against Ethereum Classic shows that the risk of attack against proof-of-work digital assets, especially those with a low market capitalization, is real. And although the proof-of-stake system makes a 51% attack prohibitively expensive, the SEC could justifiably claim that it is theoretically possible. An irrational, non-economic actor could still stage a 51% attack against a proof-of-stake digital asset with an intent to destroy it rather than to make profit.

In the end, the ambiguity in the bill’s language might not have a deleterious effect. It is hoped that a regulator would not strictly interpret the bill’s language to exclude the intended beneficiaries because of a hypothetical possibility of a 51% attack. So, too, the digital asset industry will likely continue to innovate new and more secure protocols that could potentially eliminate the threat of 51% attacks, making potential exclusion from the bill’s benefits a moot point. Nonetheless, as the TTA undergoes revision, the potential ambiguity in the proposed language should be remedied.

FCA Proposes Guidance on Cryptoassets, but Questions Remain

In January, the UK’s Financial Conduct Authority (FCA) released a consultation on potential guidance on cryptoassets that provides useful direction on how cryptoassets fall within the current regulatory regime. This consultation, one of the publications resulting from the Cryptoasset Taskforce’s October 2018 final report, does not drastically alter the current regulatory landscape, but rather provides clarity on the FCA’s current regulatory perimeter. The consultation also references a consultation by Her Majesty’s Treasury (HMT) that is expected in early 2019, which will explore legislative changes and potentially broaden the FCA’s regulatory remit on cryptoassets.

The FCA consultation on guidance asks for responses to the questions it poses by April 2019. The FCA does not intend to publish its final guidance until this summer; the guidance noted in this consultation paper is subject to change and should not be considered the FCA’s definitive position. However, subject to the feedback that is received, the consultation gives a good indication of the FCA’s thinking with regards to the regulation and classification of cryptoassets. Some of the points highlighted in the consultation are discussed below.

Exchange Tokens / Anti-Money Laundering

The FCA has confirmed that exchange tokens, such as Bitcoin, Litecoin or Ether, do not fall within the regulatory perimeter. This had already been expressed in the Cryptoasset Taskforce’s report, but it is useful to have it repeated here.

However, exchange tokens will be caught (along with other cryptoassets) by the 5th Anti-Money Laundering Directive (5AMLD), which will be transposed into UK law by the end of 2019. HMT will formally consult on this, but the FCA expects that 5AMLD will catch exchange between cryptoassets and fiat currencies or other cryptoassets, transfer of cryptoassets, safekeeping or administration of cryptoassets and provision of financial services related to an issuer’s offer and/or sale of cryptoassets. Being caught by the 5AMLD does not, by itself, mean the cryptoasset will be subject to FCA regulation.

Security Tokens

The FCA’s discussion on the classification of security tokens is arguably the most anticipated part of its guidance on cryptoassets. The discussion makes clear that cryptoassets that fall within the definition of a security will be treated as such. However, given that cryptoassets can provide a range of rights and other characteristics, it can be difficult to determine whether they do fall within such definition. While noting that it can be difficult to categorize tokens, the guidance describes the most relevant traditional forms of specified investments that security tokens may fall into. The guidance also notes that products that derive their value from or reference cryptoassets, such as options, futures, contracts for difference and exchange-traded notes, are likely to fall within the regulatory perimeter, even if the underlying cryptoasset does not.

The FCA states in its guidance that tokens that are issued in exchange for other cryptoassets, and not for fiat currency, will not necessarily be exempt from the regulatory regime if they are considered security tokens.

Issuing of one’s own security tokens does not require the issuing company to have a regulatory licence, in the same way that issuing one’s own shares does not require a licence. However, authorization must be obtained by any exchanges in which the tokens are traded, advisers and brokers, and the financial promotions regime will need to be complied with.

Shares / Debt instruments

According to the consultation, if a cryptoasset has the features of a share then it will be considered a specified investment and certain activities involving it will require authorization or exemption. In determining whether a cryptoasset is classed as a share, the FCA has noted that a separate legal personality, and a body which survives a change of member, are significant but not determinative factors in classifying the cryptoasset. Other factors include whether the cryptoasset provides voting rights, control, ownership, access to a dividend based on the performance of the company or rights to distribution of capital on liquidation. Interestingly, the FCA has noted that the definition is dependent on company and corporate law.

There is a trend for token offerings to be packaged as “security token offerings” and promoted in accordance with security requirements, as ICOs are no longer attractive to investors. However, many of these “security token offerings” do not give equity rights. Calling a token a “security token” will not change the nature of the token itself. The FCA has not been clear on this subject, but arguably a security token that does not meet the company law and corporate law definition of a share can be treated as a utility token and not require the trading platform, broker or advisers to be licensed.

A cryptoasset that represents money owed to the token holder will be considered a debt instrument, and therefore will be considered a security token.

If the cryptoasset is considered a share or debt instrument, and is capable of being traded on the capital market, it will be considered a transferable security under the Markets in Financial Instruments Directive (MiFID), and the MiFID regime will apply. As with traditional securities, this does not require the security to be listed. If the cryptoasset is able to be transferred from one person to another in such a way that the transferee will acquire good legal title, it is likely a transferable security. It is important to note that a cryptoasset may be considered a share under the UK law, but not a transferable security under MiFID.

Warrants, certificates representing certain securities and rights and interests in investments

Warrants may be issued as cryptoassets in situations where an issuing entity issues A tokens, which will provide the token holder the right to subscribe for B tokens at a later date. If the B tokens represent shares or debentures (or other specified investments), then the A tokens will be considered warrants and therefore specified investments. It is important to note that for the A tokens to be warrants, the B tokens will need to be new cryptoassets issued by the issuing entity. If the A tokens provide a right to purchase B tokens from a secondary market, the A tokens will not be considered warrants.

Similarly, A tokens that provide the token holder with a contractual or property right over other investments (either in cryptoasset or traditional form) will be considered certificates representing certain securities. Cryptoassets which represent a right to or interests in other specified investments are also classified as securities.

Units in collective investment schemes

Certain cryptoassets may be considered units in a collective investment scheme, notably tokens that allow investors to invest in assets such as art or property. Provided the investments in the cryptoassets are pooled, and the income or profits that the cryptoasset holders receive are also pooled, it will likely be considered a unit in a collective investment scheme. Importantly, if the token holders have day-to-day control of the management of the investment, it will fall outside this definition.

Utility Tokens

Tokens that represent rewards, such as reward-based crowdfunding, or the access to certain services, will be considered utility tokens. Utility tokens do not have the features of securities, and therefore fall outside the regulatory perimeter. The FCA has noted that the ability to trade utility tokens on the secondary market will not affect the classification of the token – even though this may mean individuals purchase these as investments.

Payment Services and Electronic Money

The guidance confirms that the use of cryptoassets is not covered by the payment services, unless the cryptoasset is considered electronic money. However, where cryptoassets act as a vehicle for money remittance (i.e. the transfer of money from one account to another, perhaps with a currency exchange) then the fiat sides of the exchange will be caught by the payment services regulations.

While cryptoassets do not fall within the payment services regime, they may fall within the e-money one. To the extent that the cryptoasset is issued on receipt of funds (i.e. fiat currency, not other cryptoassets) and the cryptoasset is accepted by a person other than the electronic money issuer, it may be considered electronic money (unless it is excluded). This would include cryptoassets that are issued on receipt of GBP and are pegged to that currency, as long as the cryptoasset is accepted by a third party. Therefore, stablecoins that meet the definitions set out above may fall within the definition of electronic money.

Issues Outstanding

None of the guidance’s declarations is new, but the guidance does provide useful clarification. What is not clear is how utility or payment tokens wrapped in a security token wrapper but not containing traditional security/equity rights will be treated. In our view, if the token is a utility token dressed in a security token wrapper, it should not necessarily be treated as a security, for UK regulatory purposes including requiring an authorized multilateral trading facility (MTF) to carry out secondary trading. The FCA says nothing here conflicting with this, but it would be useful to have clarity in this regard.

The CFTC Wants to Know More About Ether: Your Feedback Could Impact Ether Futures in 2019

The CFTC is giving the public an opportunity to influence its views as they relate to Ethereum, Ether or similar virtual currencies or projects. On December 11, 2018 the CFTC issued a Request for Information (the “Request”) seeking public comments and feedback on Ether and the Ethereum Network. The Request “seeks to understand similarities and distinctions between certain virtual currencies, including Ether and Bitcoin, as well as Ether-specific opportunities, challenges, and risks,” according to the accompanying press release. The version of the Request published in the Federal Register states that public comments must be received on or before February 15, 2019.

Individuals and companies involved in cryptocurrency, especially if related to the Ethereum Network or one of its competitors, should consider making a submission. The Request states that information submitted to the CFTC will be used to inform the work of LabCFTC (a dedicated function of the CFTC, launched in 2017 to “make the CFTC more accessible to FinTech innovators”) and the CFTC as a whole. It appears likely that the CFTC will look to the submissions to assist it in deciding whether to green light Ether futures trading.

Of the over 2,000 cryptocurrencies currently in circulation, Bitcoin is the only one for which futures contracts are traded on regulated futures exchanges. Bitcoin is also the only cryptocurrency which the SEC (through Chairman Clayton’s testimony) has officially deemed not to be a security. As mentioned in the Request, a certain SEC senior official recently stated that offers and sales of Ether, in its current state, are not securities transactions. The SEC’s stance on Ether likely paves the way for the CFTC to green-light regulated futures exchanges, such as the Chicago Board Options Exchange, to offer Ether futures contracts.

The cryptocurrency market is desperate for some good news to pull it out of the prolonged bear market it is currently enduring. Many had hoped that the announcement of Ether futures would be the catalyst that turns the market around. It appears possible that the CFTC will authorize Ether futures contracts, once it has reviewed the comments submitted in response to this request.

 

HMRC Publishes UK Tax Guidance on Cryptocurrency for Individuals

On December 19, HM Revenue and Customs (“HMRC”), the UK’s counterpart to the US Treasury, published long-awaited (and arguably long overdue) guidance on the taxation of cryptocurrencies (which it refers to as “cryptoassets”), building on the UK government’s Cryptoassets Taskforce’s report that was published last year. This guidance is welcome in an area of law that needs to play catch-up to apply to income and gains on technology and digital assets. It is important to note that this guidance is limited to HMRC’s view in relation to individuals holding cryptoassets and does not extend to tokens or assets held by businesses. However, HMRC states its intention to publish further guidance in relation to the taxation of cryptoasset transactions involving business and companies sometime in the future.

The guidance confirms that HMRC does not consider cryptoassets to be currency or money for tax purposes and separates cryptoassets into three categories of “tokens”: exchange tokens, utility tokens and security tokens. This guidance focuses on the taxation of “exchange tokens,” a term encompassing assets such as Bitcoin, which presumably it considers to be the most prevalent and widespread. The approach is very similar to the IRS’ approach in this area in Notice 2014-21. HMRC considers that in the “vast majority” of cases, individuals hold (and acquire and dispose of) cryptoassets as part of a personal investment and will, therefore, be liable to capital gains tax. The analysis of whether the cryptoassets are held in the nature of a trade or an investment, and the consequential tax treatment, will largely follow the existing approach and case law but HMRC only expects individuals to be buying and selling cryptoassets with such frequency, level of organization and sophistication such that it amounts to a financial trade in itself in “exceptional circumstances”. If, following the application of the traditional analysis, the cryptoassets are considered to be held as part of a trade, then the Income Tax provisions will take priority over the capital gains tax provisions.

Individuals will be liable to Income Tax (and national insurance contribution, where appropriate) on cryptoassets which they receive from their employer as a form of non-cash payment (and which may be collected via withholding tax) and/or in return for “mining” the cryptoassets, “transaction confirmations” or “airdrops” The guidance describes these transactions and the applicable taxes. As discussed in the guidance, miners are the people that verify additions to the blockchain ledger. They may receive either cryptocurrency or fees for this function. An airdrop is where someone receives an allocation of tokens or other cryptoassets, for example as part of a marketing or advertising campaign in which people are selected to receive them. As pointed out in the guidance, while the receipt of cryptoassets is often subject to the income tax, appreciation will be subject to capital gains tax upon disposition.

In addition to the tax analysis, HMRC points out that cryptoasset exchanges might only keep records of transactions for a short period, or the exchange might no longer be in existence when an individual completes their tax return. The onus is, therefore, on individuals to keep separate and sufficient records for each cryptoasset transaction for the purposes of their tax records.

IRS Advisory Committee Identifies the Need to Enforce Compliance on Cryptocurrency Transactions

A recent report (the “Report”) of the IRS Commissioner’s Information Reporting Advisory Committee (“IRPAC”) has identified the need for additional guidance on cryptocurrency transactions to enforce compliance on cryptocurrency transactions. The Report heavily relies on the recent experience the IRS had in enforcing the Coinbase summons, as recently reported in On the Chain. The IRS explained the problem earlier this year: because transactions in virtual currencies can be difficult to trace and have an inherently “pseudo-anonymous” aspect, some taxpayers may be tempted to hide taxable income from the IRS. IRS News Release, IR-2018-71, March 23, 2018. Taxpayers in this situation are at risk, given that, as recently reported in On the Chain, there is no voluntary disclosure program for taxpayers that have failed to report crypto related income.

In the Report, the IRS estimates that potentially unreported cryptocurrency tax liabilities represent approximately 2.5% of the estimated $458 billion tax gap. The calculation relies upon a recent article by Fundstrat Global Advisers, which sets cryptocurrency-related labilities at $25 billion, based on taxable gains of approximately $92 billon and a noncompliance rate of 50%. The Fundstrat Report estimates that approximately 30% of the investors in cryptocurrency are in the U.S., which is more than $500 billion at the end of December 2017 (up from about $19 billion at the start of January 2017!), according to data from CoinMarketCap.

While the IRS previously addressed certain issues in Notice 2014-21, there remain significant open issues that will need additional analysis and further guidance to refine the reporting of these transactions.  For example, the reports cites the following:

  1. whether virtual currency held for investment is a capital asset;
  2. whether the virtual currency ought to be treated as a security, subject or not subject to the wash sale rules, or affected by mark-to-market implications under section 475 of the Code;
  3. whether a taxpayer may use LIFO or FIFO to determine the basis of virtual currency sold;
  4. how to track basis through activities in the blockchain;
  5. whether broker reporting is required under section 6045 of the Code for transactions using virtual currency;
  6. whether a taxpayer may contribute virtual currency to an IRA; and
  7. whether virtual currency is a commodity.

Also, while an initial reading would suggest that virtual currency would not be considered a financial account for FATCA purposes, various guidance notes issued by foreign jurisdictions for purposes of implementing the Common Reporting Standard (CRS) have indicated virtual currency does represent a financial account.  This inconsistency, the Report notes, between regimes that purportedly try to maintain a high level of consistency will be confusing to withholding agents and subject to inherent error.

Citing the recent Coinbase summons and the failures to report income identified in that case, the Report opines that many, if not most, taxpayers will report their virtual currency activities correctly if they are able to determine their tax implications.  Some taxpayers will be tempted to do otherwise, however, because anonymity is inherent in the structure of the block chain activities.  In light of Coinbase, these taxpayers are likely to use exchanges outside the jurisdiction of the U.S.  The Report notes that it is unclear at present whether the U.S. may obtain information from foreign exchange activities (determining the exact nature of residence of the virtual activities of an exchange is itself vexing under existing source and jurisdiction rules, and leads to issues of whether the activities are sourced to any jurisdiction or are stateless income).

The Report concludes with IRPAC stating that it would be very interested in helping develop information reporting and withholding guidance on these important issues.

https://www.irs.gov/pub/irs-pdf/p5315.pdf

IRS to Virtual Currency Traders: No Formal Voluntary Disclosure Program

The IRS recently announced that it is not planning to establish a formal voluntary disclosure program for taxpayers who have unreported income derived from virtual currencies. Specifically, Daniel N. Price of the IRS’s Office of Chief Counsel stated on November 8, 2018 that he needed to dispel the rumor that had been circulating since last year that the IRS intended to establish a separate voluntary disclosure program for unreported income related to offshore virtual currencies. This is in contrast to the voluntary program that the IRS established for unreported income from offshore financial accounts.

Under IRS guidance from 2014, the IRS classified Bitcoin and other virtual currencies as property (rather than foreign currency). Accordingly, any income from virtual currency transactions is treated as either ordinary income or capital gains, whichever is applicable based on the activity that gave rise to the income (e.g. investment or mining). Because the IRS requires a U.S. taxpayer to report its worldwide income regardless of where that income was generated or where the taxpayer lives, a U.S. taxpayer could have significant income tax liability for its cryptocurrency activities that were conducted and remain offshore. In spite of this substantial U.S. taxpayer exposure, and despite the potentially enormous amount of unreported income from virtual currency activities, the IRS has provided relatively little guidance to taxpayers and tax professionals, given the complexity of the tax issues and reporting requirements triggered by virtual currencies. At the same time, as discussed previously in On the Chain, the IRS is preparing to collect the massive amount of tax from unreported income from Bitcoin-related trades.

The IRS is Closing in on Cases Regarding Bitcoin Income Reporting

Following a several-year court fight, the Internal Revenue Service (the IRS) appears to have obtained a substantial amount of information regarding individuals’ transactions in cryptocurrency, and the agency might be in a position to make criminal referrals of failures to report income from such transactions. In December 2016, the IRS, believing that virtual currency gains have been widely underreported, issued a summons demanding that Coinbase, the largest U.S. cryptocurrency exchange, produce a wide range of records relating to approximately 500,000 Coinbase customers who transferred Bitcoin, a virtual currency, from 2013 to 2015. Formed in 2012, Coinbase has served at least 5.9 million customers and handled $6 billion in transactions. Coinbase did not comply with the summons.

In seeking to enforce the summons in the Northern District of California, the IRS cited the fact that while approximately 83 percent or 84 percent of taxpayers filed returns electronically, only between 800 and 900 persons electronically filed a Form 8949, Sales and Other Dispositions of Capital Assets, that included a property description that was “likely related to bitcoin” in each of the years 2013 through 2015. Presumably, the IRS believes that more than 900 people made gains on bitcoin trading during that period.

On November 28, 2017, the court enforced but modified the summons by requiring Coinbase to provide documents for accounts with at least the equivalent of $20,000 in any one transaction type (buy, sell, send or receive) in any one year from 2013 to 2015. The order required Coinbase to provide: (1) the taxpayer’s ID number, name, birth date and address; (2) records of account activity, including transaction logs or other records identifying the date, amount and type of transaction, i.e., purchase/sale/exchange, the post-transaction balance and the names of counterparties to the transaction; and (3) all periodic statements of account or invoices (or the equivalent).

The IRS appears to be getting closer to the prospect of criminal cases:

  • In March 2018, Coinbase informed 13,000 of its customers that it would be giving information on their accounts to the IRS.
  • At the recent Tax Controversy Institute in Beverly Hills, Darren Guillot, Director (Field Collection), IRS Small Business/Self-Employed Division, said that “[he] has had access to the response to the John Doe summons served on Coinbase, Inc. for two months and has shared that information with revenue officers across the country.”
  • Bryant Jackson, Assistant Special Agent in Charge (Los Angeles), IRS Criminal Investigation Division, recently said that CI has been expecting fraud referrals from the Coinbase summons response.
  • CI and the Justice Department Tax Division have been discussing those anticipated cases and issues that may arise in them, such as proof of willfulness.

It is noteworthy that in Notice 2014-21, the IRS answered a series of questions related to the taxation of cryptocurrency (which it refers to as “virtual currency”). In the Notice, the IRS indicated that penalties would apply for failures related to the reporting of gains under section 6662 and failure to file information returns under sections 6721 and 6722. While the Notice specifically provided that penalty relief may be available to taxpayers and persons required to file an information return who are able to establish reasonable cause, it did not provide any indication as to whether reasonable cause relief would be available for taxpayers who failed to report cryptocurrency-related gains. More recently, on July 14, the Large Business and International division of the IRS initiated a Virtual Currency Compliance Campaign to address noncompliance issues.

While there may be valid reasons for failure to report cryptocurrency-related gains, taxpayers who are among the 13,000 Coinbase customers should be particularly concerned about the penalties that might apply due to the failure to report their gains.

Recent Reports Show UK and EU (Slowly) Progressing Towards Virtual Currency Regulation

Currently there is no EU-harmonized approach for the specific regulation of virtual currency. In September 2018, the UK’s Treasury Committee released a report on crypto-assets as a part of its ongoing Digital Currencies Inquiry, in which the Committee strongly and unanimously recommended that the UK regulate virtual currencies and initial coin offerings (“ICOs”) as a matter of priority. It will be important for the UK not to be too restrictive as this could drive innovative business away from the UK. The EU Parliament’s All-party Innovation Group has drafted a proposal examining potential new rules that would bring ICOs within the scope of the EU-wide harmonizing crowdfunding regulation that is currently being drafted. While it is certain that any regulation needs to be carefully considered, the lack of a harmonized approach to regulation of ICOs will lead, as is happening currently, to a piecemeal approach across member states that will hamper blockchain developments.

Learn more from this recent Orrick-authored alert.

Virtual Currencies Fall Within Scope of EU’s Fifth Anti-Money Laundering Directive

The fifth iteration of the Anti-Money Laundering Directive (MLD5) took effect in July 2018. In addition to several updates covering a wide range of anti-money laundering objectives, MLD5 extends its coverage to include certain cryptocurrency service providers.

Learn more about the updates under MLD5, including further details regarding the inclusion of cryptocurrencies within the scope of EU anti-money laundering and terrorist financing regulations, in this recent alert.

CFTC Chairman Includes Fintech and Virtual Currency in Agency’s Priorities

On July 25th, 2018, CFTC Chairman Giancarlo addressed the House Committee on Agriculture regarding the agency’s priorities and recent work. A significant portion of his testimony focused on the CFTC’s oversight of fintech and cryptocurrencies.

Learn about the CFTC’s regulatory approach to cryptocurrency and distributed ledger technology in this recent derivatives post.