In a Regulatory Notice published July 6, 2018, the Financial Industry Regulatory Authority (FINRA) encourages its members to promptly notify FINRA if they, or their associated persons or affiliates, engage in activities related to digital assets such as cryptocurrencies and other virtual coins and tokens. The Notice also encourages firms to inform FINRA of changes in the event the firm, or its associated persons or affiliates, intends to begin or in fact begins engaging in activities relating to digital assets not previously disclosed, on a continuing basis through July 31, 2019. Continue Reading
The Internal Revenue Service (IRS) made a pair of announcements on July 2 that it is increasing its focus on taxpayers who avoid their tax obligations using cryptocurrency.
By way of background, in April 2014, the IRS issued Notice 2014-21, which generally provided that “convertible virtual currency” is treated as property, not currency, for tax purposes and explained, in question and answer format, the application of existing general tax principles to transactions using convertible virtual currency. The Notice defines virtual currency as “a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value.” It further provides that convertible virtual currency is “[v]irtual currency that has an equivalent value in real currency, or that acts as a substitute for real currency,” citing bitcoin as one example of a convertible virtual currency.
The Notice describes some of the tax consequences of receiving or exchanging virtual currency for property or services. If a taxpayer receives virtual currency in payment for goods or services, he or she has taxable income equal to the fair market value of the virtual currency. If the taxpayer uses virtual currency to acquire goods or services, and the fair market value of property received in exchange for virtual currency exceeds the taxpayer’s adjusted basis of the virtual currency, then the taxpayer has taxable gain.
The IRS became concerned that taxpayers were not reporting cryptocurrency transactions, and in November 2016, sought a court order to serve a John Doe summons on Coinbase, one of the world’s largest digital asset exchange companies. The summons sought broad information on all U.S. customers conducting transactions in cryptocurrency from 2013-2015. Although the court ultimately narrowed the scope of information that the summons could request, it did order Coinbase to comply with the summons. Click here to read Steptoe’s blog post about the Coinbase summons.
New IRS Announcements
On July 2, the IRS Large Business and International division (LB&I) announced a new audit campaign to address tax noncompliance related to the use of virtual currency. LB&I campaigns direct the IRS’s audit resources to specific areas the IRS believes have the greatest risk of noncompliance. Virtual currency is one of 40 campaigns that have been announced by the IRS since January 2017. The IRS’s announcement means that taxpayers who failed to report virtual currency transactions face an increased risk for audit. Continue Reading
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.
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.
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
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.
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
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
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
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.