Blockchain Takes Over the Cyberlaw Podcast

On May 21st, Alan Cohn hosted the 217th episode of The Cyberlaw Podcast. We took a deep dive into all things blockchain and cryptocurrency discussing recent regulatory developments and the current state of play of the industry. Jack Hayes discusses the status of regulation surrounding cryptocurrencies including anti-money laundering and sanctions compliance, the Department of Treasury’s letter regarding initial coin offerings (ICOs), and the New York Attorney General’s questionnaire for cryptocurrency exchanges. Lisa Zarlenga provides an overview of tax issues surrounding cryptocurrency from establishing basis to hard forks to airdrops. Lisa also highlights the changes in regulation surrounding like-kind exchanges due to the 2018 Tax Reform Bill and questions surrounding the taxation of tokens. Chelsea Parker discusses trends coming out of New York Blockchain Week 2018 and Consensus 2018, including a large international presence and a focus on regulation that still encourages innovation. The panelists also highlight where they see the industry going next in terms of adoption and regulation.

You can read the full summary and listen to the podcast here.

President Imposes First US Economic Sanctions Against Venezuelan Digital Currency

On March 19, 2018, US President Donald Trump issued Executive Order 13827 (the EO), which for the first time targets US economic sanctions against a virtual currency – namely, a digital currency colloquially known as the “petro” that has been issued by the Government of Venezuela (GOV). Specifically, the EO prohibits “all transactions related to, provision of financing for, and other dealings in, by a United States person or within the United States, any digital currency, digital coin, or digital token, that was issued by, for, or on behalf of the [GOV] on or after January 9, 2018.”

As justification for these sanctions, the EO cited recent actions undertaken by the Maduro regime to circumvent US sanctions by issuing a digital currency. This alert discusses the key aspects and potential implications of the new GOV Digital Currency sanctions.

Click here to read more.

Information on 13,000 Coinbase Customers Turned Over to IRS – Was Your Information Among Them?

After a year-long fight with the IRS on turning over customer data, Coinbase both won and lost.  It won in that the court significantly narrowed the type of information that it was ordered to turn over to the IRS.  It lost in that it was still required to turn over data on approximately 13,000 customers.  For the 13,000 customers this means that the IRS may now be contacting you to let you know that you may owe additional tax. Continue Reading

Investing in Cryptocurrency: Tax Implications Workshop

On March 1, Steptoe is hosting a workshop in New York on the tax consequences of investing in cryptocurrency, as well as common methods of tax structuring for individuals and entities using, trading, and investing in cryptocurrency and tokens. The workshop will feature discussions on a range of topics from determining basis, income, and capital gains to common on-shore and off-shore tax structuring mechanisms.

In addition to hearing from Steptoe’s cryptocurrency tax specialists, you will hear from outside panelists, including:

  • Brian Kelly, Founder and CEO, BKCM LLC
  • James Morgan, General Counsel & Chief Compliance Officer at Genesis Global Trading
  • Houman B. Shadab, Professor of Law and Co-Director of the Center for Business and Financial Law, New York Law School

You can learn more and sign up for the workshop here.

Bitcoin Captures the Attention of Yet Another Regulator

The Federal Communications Commission (FCC or Commission) last week added itself to the list of regulators that have issued guidance or raised warnings about crytpocurrency when it sent a notification about interference with wireless broadband signals from a Bitcoin mining device.

The FCC is the independent agency that regulates communications in the United States, and it has responsibility for regulating spectrum and radio waves in the United States to ensure, among other things, that licensed users of spectrum do not suffer from interference.  While seemingly a remote concern from Bitcoin, the mission of the FCC collided with a miner in New York City.  Continue Reading

A “One-Stop” Guide to Blockchain Regulation and Best Practices for Responding to Investigations

Government regulators are increasingly focused on blockchain and cryptocurrency activity, a development that some, such as IMF head Christine Lagarde have called inevitable. In the US, the Financial Crimes Enforcement Network (FinCEN), the Commodity Futures Trading Commission (CFTC), and the Securities and Exchange Commission (SEC) have issued statements, enforcement actions, and penalties involving blockchain and cryptocurrency activities, and they are not the only agencies monitoring these activities.  As a result, it is important for industry participants to be prepared to respond to potential regulatory inquiries.

This is why Steptoe has partnered with Thomson Reuters to publish a “one-stop” guide to the regulatory landscape and best practices for responding to blockchain and cryptocurrency-related investigations. Continue Reading

Can Your Cryptocurrency Get a Clearance?

You know that federal entities like the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), the Financial Crimes Enforcement Network (FinCEN), and the Internal Revenue Service (IRS) have all issued guidance concerning cryptocurrencies.  But get ready to add a new agency to the list—the Department of Defense’s Defense Security Service (DSS).

Standard Form 86 (SF-86), “Questionnaire for National Security Positions,” is the lengthy form that anyone applying for a security clearance from the US government must complete.  Question 20A of the SF-86 asks whether the applicant or immediate family members have ever “had any foreign financial interests (such as stocks, property, investments, bank accounts, ownership of corporate entities, corporate interests or businesses) in which you or they have direct control or direct ownership? (Exclude financial interests in companies or diversified mutual funds that are publicly traded on a U.S. exchange.)”

We know that FinCEN considers cryptocurrency to be currency, the CFTC considers it a commodity, and the IRS considers it to be property, but is it also a “foreign financial interest” for the purposes of the SF-86?  Continue Reading

Steptoe Applauds CFTC Decision on Cryptocurrency Rulemaking

Today, Steptoe & Johnson LLP’s Blockchain and Digital Currency practice applauded the Commodity Futures Trading Commission’s (CFTC) decision to propose, through the rulemaking process, an interpretation defining the term “actual delivery” in the context of retail commodity transactions involving cryptocurrencies like Bitcoin.

“We are pleased that the commission has chosen to respond to Steptoe’s petition for rulemaking, along with other requests for guidance, by proceeding in this manner,” said Micah Green, chair of Steptoe’s Financial Services practice and co-head of Steptoe’s Government Affairs and Public Policy Group. “We look forward to reviewing the proposal and working together with the industry to find the right approach for businesses that handle, trade, and exchange cryptocurrency.”

In July of 2016, Steptoe filed its petition requesting that the CFTC proceed with a rulemaking on this subject rather than continued enforcement actions, so that there would be visibility to the industry and an opportunity for the industry to comment and participate in the process. Specifically, the petition called for a commission rulemaking to set forth the requirements for effectuating a transfer of ownership under the Commodity Exchange Act (CEA). Under the CEA, retail commodity transactions within the terms and intent of such provision are required to be traded on a commission-regulated exchange, unless the transaction falls within one of the stated exceptions, such as a transaction that results in “actual delivery” of a commodity within 28 days. Accordingly, the petition also requested that a CFTC rulemaking outline the elements necessary to satisfy the requirements of “actual delivery” under the CEA as applied to leveraged or financed retail cryptocurrency transactions.

“Cryptocurrency and crypto-assets represent a new asset class, and we applaud the CFTC and other regulatory agencies who have chosen to evaluate their approach to innovation and investor protection to make sure it fits with this new type of asset,” said Jason Weinstein, co-chair of Steptoe’s Blockchain and Digital Currency practice.

Steptoe is among the leaders in the evolving legal and regulatory landscape surrounding blockchain technology and digital currency. The firm’s multidisciplinary, global practice features experience in a range of disciplines that will be impacted by blockchain technology in the coming years – including corporate and fund formation, financial services, international regulation and compliance, trade, IP, government contracts, public policy, tax, cyber, and government investigations and enforcement. Steptoe helped create and serves as counsel to the Blockchain Alliance and the Digital Assets Tax Policy Coalition. The firm also serves as the legal services partner of the Global Blockchain Business Council, and as an advisor to industry-leading advocacy groups Coin Center and the Chamber of Digital Commerce. The firm’s Blockchain and Digital Currency practice has advised venture capital firms, financial institutions, established companies, startups, and governments on issues surrounding digital currencies and blockchain technology.

Alan Cohn Featured on the Future Tech Podcast

Alan Cohn was recently featured on the Future Tech Podcast. In an interview with Richard Jacobs, Editor of Crypto News Insider and Organizer & Host of the Bitcoin, Ethereum, and Blockchain Super Conference 2018, Alan discusses the recent regulatory changes and guidance related to cryptocurrency such as the recent Securities and Exchange Commission (SEC) Investigative Report on the Distributed Autonomous Organization and Investor Bulletins along with the need for clearer tax treatment of cryptocurrencies. Listen to the podcast here.

Blockchain and Cryptocurrency: The Emerging Regulatory Framework

This summer, US and international regulators have brought enforcement actions, issued guidance and explanatory documents, and sharpened previously-taken positions regarding regulation of cryptocurrency and crypto-tokens under the anti-money laundering, derivatives, securities, and tax laws. These actions provide a better sense of the way in which US regulators will approach the blockchain and digital asset space going forward, but also leave many unanswered questions.

These recent actions indicate increased regulatory risk for certain types of activities. Companies that have made or are contemplating making initial coin offerings or cryptocurrency investments should assess these activities in light of these new regulatory pronouncements. But overall, this latest round of regulatory actions may provide greater regulatory certainty and a better understanding of regulatory priorities, which in turn can provide innovators and early adopters a clearer legal framework within which to operate.

Steptoe’s advisory covers four areas of recent regulation and guidance:

  1. Anti-Money Laundering
  2. Commodities and Derivatives Regulation
  3. Securities and Initial Coin Offerings
  4. Taxation

Read the full advisory here.

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