In the United States, cryptocurrencies have been the focus of much attention by both Federal and state governments. Within the Federal government, most of the focus has been at the administrative and agency level, including the Securities and Exchange Commission (the “SEC”), the Commodities and Futures Trading Commission (the “CFTC”), the Federal Trade Commission (the “FTC”) and the Department of the Treasury, through the Internal Revenue Service (the “IRS”), the Office of the Comptroller of the Currency (the “OCC”) and the Financial Crimes Enforcement Network (“FinCEN”). While there has been significant engagement by these agencies, little formal rulemaking has occurred. Generally speaking, Federal agencies and policymakers have praised the technology as being an important part of the U.S.’s future infrastructure and the need for the U.S. to maintain a leading role in the technology’s development. Many agencies have acknowledged the risk of overregulating, and cautioned policymakers from passing legislation that would drive investment in the technology overseas.
Several state governments have proposed and/or passed laws affecting cryptocurrencies and blockchain technology, with most of the activity taking place in the legislative branch. There have generally been two approaches to regulation at the state level. Some states have tried to promote the technology by passing very favorable regulations exempting cryptocurrencies from state securities laws and/or money transmission statutes. These states hope to leverage investment in the technology to stimulate local economies and improve public services. One example, Wyoming, has been mentioned as a state seeking a broader impact on its economy. Recently, its legislature passed a bill allowing for the creation of a new type of bank or special purpose depository institution. The new type of bank will act in both a custodial and fiduciary capacity and is meant to allow businesses to hold digital assets safely and legally. The state has been praised for becoming the most crypto-friendly jurisdiction in the country. Another state, Colorado, passed a bipartisan bill exempting cryptocurrencies from state securities regulations. Ohio became the first U.S. state to start accepting taxes in cryptocurrency. Oklahoma introduced a bill authorizing cryptocurrency to be used, offered, sold, exchanged and accepted as an instrument of monetary value within its governmental agencies. On the other hand, Iowa introduced a bill that would prohibit the state and political subdivisions of the state from accepting payment in the form of cryptocurrencies. Authorities in at least 10 other states, like Maryland and Hawaii, have issued warnings about investing in cryptocurrencies. New York, which passed laws once considered restrictive, has eased restrictions for attaining a BitLicense in the hopes of luring back cryptocurrency companies that previously exited the New York market.
There is no uniform definition of “cryptocurrency,” which is often referred to as “virtual currency,” “digital assets,” “digital tokens,” “cryptoassets” or simply “crypto.” While some jurisdictions have attempted to formulate a detailed definition for the asset class, most have wisely opted for broader, more technology-agnostic definitions. Those taking the latter approach will be better positioned to regulate as and when the technology evolves.
The sale of cryptocurrency is generally only regulated if the sale (i) constitutes the sale of a security under state or Federal law, or (ii) is considered money transmission under state law or conduct otherwise making the person a money services business (“MSB”) under Federal law. In addition, futures, options, swaps and other derivative contracts that make reference to the price of a cryptoasset that constitutes a commodity are subject to regulation by the CFTC under the Commodity Exchange Act. In addition, the CFTC has jurisdiction over attempts to engage in market manipulation with respect to those cryptoassets that are considered commodities. The likelihood of the CFTC asserting its authority to prevent market manipulation is much higher today as a result of both the Chicago Board Options Exchange (“CBOE”) and the Chicago Mercantile Exchange (“CME”) offering futures linked to the price of Bitcoin.
The SEC generally has regulatory authority over the issuance or resale of any token or other digital asset that constitutes a security. Under U.S. law, a security includes “an investment contract,” which has been defined by the U.S. Supreme Court as an investment of money in a common enterprise with a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. SEC v. W.J. Howey Co., 328 U.S. 293, 301 (1946).
In determining whether a token or other digital asset is an “investment contract,” both the SEC and the courts look at the substance of the transaction, instead of its form. In 1943, the U.S. Supreme Court determined that “the reach of the [Securities] Act does not stop with the obvious and commonplace. Novel, uncommon, or irregular devices, whatever they appear to be, are also reached if it be proved as matter of fact that they were widely offered or dealt in under terms or courses of dealing which established their character in commerce as ‘investment contracts,’ or as ‘any interest or instrument commonly known as a ‘security’.” SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 351 (1943). It has also been said that “Congress’ purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called.” Reves v. Ernst & Young, 494 U.S. 56, 61 (1990).
The SEC has been clear on its position that even if a token issued in an initial coin offering (“ICO”) has “utility,” the token will still be deemed to be a security that is regulated under the Securities Act if it meets elements of the Howey test. On February 6, 2018, in written testimony to the U.S. Senate Banking Committee, the Chairman of the SEC stated as follows:
Certain market professionals have attempted to highlight the utility or voucher-like characteristics of their proposed ICOs in an effort to claim that their proposed tokens or coins are not securities. Many of these assertions that the federal securities laws do not apply to a particular ICO appear to elevate form over substance. The rise of these form-based arguments is a disturbing trend that deprives investors of mandatory protections that clearly are required as a result of the structure of the transaction. Merely calling a token a ‘utility’ token or structuring it to provide some utility does not prevent the token from being a security.
In a more nuanced speech delivered in June 2018, William Hinman, the SEC’s Director of Corporate Finance, stated:
Returning to the ICOs I am seeing, strictly speaking, the token – or coin or whatever the digital information packet is called – all by itself is not a security, just as the orange groves in Howey were not. Central to determining whether a security is being sold is how it is being sold and the reasonable expectations of purchasers. When someone buys a housing unit to live in, it is probably not a security. But under certain circumstances, the same asset can be offered and sold in a way that causes investors to have a reasonable expectation of profits based on the efforts of others. For example, if the housing unit is offered with a management contract or other services, it can be a security.
Later in the same speech, Mr. Hinman made clear that a digital token that might initially be sold in a transaction constituting the sale of a security, might thereafter be sold as a non-security where the facts and circumstances have changed over time, such that the Howey test is no longer met. While such comments are not official policy of the SEC, they are a good indicator of it.
If a digital asset is determined to be a security, then the issuer must register the security with the SEC or offer it pursuant to an exemption from the registration requirements. For offerings that are being made under a Federal exemption from securities registration, the SEC places fewer restrictions on the sale of securities to “accredited investors.” An individual investor is an “accredited investor” only if he or she (i) is a director or executive officer of the company issuing the securities, (ii) has an individual net worth (or joint net worth with a spouse) that exceeds $1 million, excluding the value of the investor’s primary residence, (iii) has an individual income that exceeds $200,000 in each of the two most recent years, and has a reasonable expectation of reaching the same individual income level in the current year, or (iv) has a joint income that exceeds $300,000 in each of the two most recent years, and has a reasonable expectation of reaching the same joint income level in the current year. See SEC Rule 501(a)(5).
One enforcement action to note is SEC v. Telegram. In October 2019, the SEC filed a complaint against Telegram alleging the company had raised $1.7 billion through the sale of 2.9 billion GRAMS (the company’s native cryptocurrency) to finance its business. GRAMS were to allow customers of the messaging service to use the token as a means of payment for goods and services within the Telegram ecosystem. The SEC sought to enjoin Telegram from delivering the GRAMS it sold, which, using the Howey test, the regulator alleged were securities and were not properly registered. In March of 2020, the U.S. District Court for the Southern District of New York issued a preliminary injunction. The SEC argued that the Simple Agreement of Future Tokens (“SAFT”) – mirrored after the commonly used Simple Agreement for Future Equity – and the subsequent resale of GRAMS delivered pursuant to the SAFT, could not be viewed as two isolated phases, but rather should be viewed holistically as a single integrated scheme to issue securities that yield a profit. Ultimately, Telegram abandoned its plan to issue the GRAMS tokens, and agreed to repay the $1.2 billion to investors and pay an $18.5 million civil penalty. The SEC’s position could make it more difficult for token issuers to bifurcate between capital-raising activities and the bona fide sale of tokens intended to provide some utility other than as an investment.
In addition to Federal securities laws, most states have their own laws, referred to as blue sky laws, which are not always preempted by Federal law. Anyone selling digital assets likely to constitute a security should check with counsel about the applicability of blue sky laws. Of particular importance, there are certain exemptions from registration under Federal law that do not preempt the application of state blue sky laws.
Two other implications for a token constituting a security are (i) the requirement that a person be a broker-dealer licensed with the SEC and a member of the Financial Industry Regulatory Authority (“FINRA”) in order to facilitate the sale of securities or to act as a market maker or otherwise constitute a dealer in the asset, and (ii) the asset can only trade on a licensed securities exchange or alternative trading system (“ATS”) approved by the SEC. As of August 2020, several exchanges attained approval as an ATS and several firms have been registrated as broker-dealers, in each case, with the intent to deal in cryptocurrencies that are considered securities. To date, however, there are only a handful of security tokens actively trading on these ATS platforms. This is likely the result of the difficulties in harmonizing traditional securities laws around the transfer of securities and the notion of a peer-to-peer network that seeks to operate without intermediaries.
Under the Bank Secrecy Act (the “BSA”), FinCEN regulates MSBs. On March 18, 2013, FinCEN issued guidance that stated the following would be considered MSBs: (i) a virtual currency exchange; and (ii) an administrator of a centralized repository of virtual currency who has the authority to both issue and redeem the virtual currency. FinCEN issued guidance that stated as follows: “An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN’s regulations, unless a limitation to or exemption from the definition applies to the person.” See FIN-2013-G001, Application of FinCEN’s Regulations to Persons Administering, Exchanging or Using Virtual Currencies (March 18, 2013).
An MSB that is a money transmitter must conduct a comprehensive risk assessment of its exposure to money laundering and implement an anti-money laundering (“AML”) program based on such risk assessment. FinCEN regulations require MSBs to develop, implement, and maintain a written program that is reasonably designed to prevent the MSB from being used to facilitate money laundering and the financing of terrorist activities. The AML program must: (i) incorporate written policies, procedures and internal controls reasonably designed to assure ongoing compliance; (ii) designate an individual compliance officer responsible for assuring day-to-day compliance with the program and BSA requirements; (iii) provide training for appropriate personnel, which specifically includes training in the detection of suspicious transactions; and (iv) provide for independent review to monitor and maintain an adequate program.
All U.S. persons are prohibited from doing business with foreign nationals who are on the Specially Designated Nationals and Blocked Entities List (“SDN List”) of the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). OFAC provides an updated and searchable version of its SDN List at: sanctionssearch.ofac.treas.gov. OFAC requires all U.S. citizens to “block” (i.e., freeze) the assets of individuals and companies who are engaging in transactions with (i) countries that are subject to U.S. economic sanctions (“blocked countries”), (ii) certain companies and entities that act as agents for such countries (“blocked parties”), and (iii) certain individuals that act as agents for such countries (“specially designated individuals” or “SDNs”). It is important to have a compliance program in place to avoid (or mitigate) receiving civil and criminal penalties from OFAC for non-compliance. See 31 C.F.R. Part 501 (OFAC Reporting Regulations); OFAC Economic Sanctions Enforcement Guidelines (Nov. 9, 2009).
On February 13, 2018, in response to a letter from Senator Ron Wyden, an official within the Treasury Department issued a correspondence that called into question whether ICO issuers were de facto an MSB that was required to register with FinCEN. While there were several flaws in the logic set forth in the letter, it remains an area of concern for anyone considering a token sale. To add more confusion, speaking at a conference on November 19, 2019, FinCEN Director Kenneth Blanco, responding to a question about Facebook’s plan to issue a cryptocurrency pegged to the U.S. dollar, stated that stablecoin issuers and dealers are money transmitters and must follow BSA’s AML laws.
State laws on money transmission vary widely but can generally be grouped into a few categories. Most states define money transmission as including some or all of three types of activities: (1) money transmission; (2) issuing and/or selling payment instruments; and (3) issuing and/or selling stored value. A few states only regulate these activities when “money” is involved, and define money as “a medium of exchange that is authorized or adopted by a domestic or foreign government.” Generally, state money transmission laws apply to any entity that is either located in the state or is located outside of the state (including in a foreign jurisdiction) but does business with residents of the state. A novel solution to the redundancy of attaining state licenses is to become a New York limited purpose trust company. This may seem counterintuitive, as New York has the most onerous money transmitter licensing requirements for cryptocurrency companies, but this type of trust company charter exempts the company from many states’ money transmission laws and requirements, while also providing the ability to conduct a broad range of custody and fiduciary services related to cryptoassets. Nevada and Wyoming have since followed New York and now permit the creation of special purpose depository institutions.
Another tension point for AML laws is the emergence of decentralized finance (“DeFi”). DeFi is the permissionless decentralization version of various traditional financial instruments with a focus on exchanging assets, lending and borrowing and the creation of synthetic assets. For example, Uniswap is a decentralized exchange in the form of two smart contracts hosted on the Ethereum blockchain, as well as a public, open source front-end client. This ultimately allows for anyone with an internet connection to trade many Ethereum-native tokens with other users of the application. Inherent with its open source nature, Uniswap does not have a customer identification vetting process and, in fact, circumventing AML laws is touted as one of Uniswap’s foundational values amongst the cryptocurrency community. As of this writing, there is $5 billion locked into DeFi applications.
In March 2014, the IRS declared that “virtual currency,” such as Bitcoin and other cryptocurrency, will be taxed by the IRS as “property” and not currency. See IRS Notice 2014-21, Guidance on Virtual Currency (March 25, 2014). Consequently, every individual or business that owns cryptocurrency will generally need to, among other things, (i) keep detailed records of cryptocurrency purchases and sales, (ii) pay taxes on any gains that may have been made upon the sale of cryptocurrency for cash, (iii) pay taxes on any gains that may have been made upon the purchase of a good or service with cryptocurrency, and (iv) pay taxes on the fair market value of any mined cryptocurrency, as of the date of receipt.
For an individual filing a Federal income tax return, the gains or losses from a sale of virtual currency that was held as a “capital asset” (i.e., for investment purposes) are reported on (i) Schedule D of IRS Form 1040, and (ii) IRS Form 8949 (Sales and Other Dispositions of Capital Assets). Any realized gains on virtual currency held for more than one year as a capital asset by an individual are subject to capital gains tax rates. Any realized gains on virtual currency held for one year or less as a capital asset by an individual are subject to ordinary income tax rates. The IRS requires, on Form 8949, for each virtual currency transaction, the following information be disclosed: (i) a description of the amount and type of virtual currency sold; (ii) the date acquired; (iii) the date the virtual currency was sold; (iv) the amount of proceeds from the sale; (v) the cost (or other basis); and (vi) the amount of the gain or loss. It should be noted that the record-keeping requirements of IRS Form 8949 can be particularly onerous for those who have used cryptocurrency to make numerous small purchases of goods or services throughout the year.
For transactions completed on or after January 1, 2018, the Internal Revenue Code now prohibits the use of Section 1031(a) for cryptocurrency transactions, and requires a taxpayer to recognize taxable gain or loss at the time that any cryptocurrency is converted into another cryptocurrency. Section 13303 of P.L. 115-97 (the tax act signed into law on December 22, 2017) changes Section 1031(a) to state as follows: “No gain or loss shall be recognized on the exchange of real property held for productive use in a trade or business or for investment if such real property is exchanged solely for real property of like kind which is to be held either for productive use in a trade or business or for investment.”
For transactions completed on or prior to December 31, 2017, the IRS has not issued any guidance on whether different cryptocurrencies are “property of like kind” that would qualify for non-recognition of gain under Section 1031(a). Generally speaking, exchanges between different cryptocurrencies are usually done by either (i) a simultaneous swap of one cryptocurrency for another, or (ii) a deferred exchange, in which one cryptocurrency is sold for cash, followed by the purchase for cash, of a different cryptocurrency.
For transactions completed on or prior to December 31, 2017, Section 1031(a)(1) of the Internal Revenue Code states the following: “No gain or loss shall be recognized on the exchange of property held for productive use in a trade or business or for investment if such property is exchanged solely for property of like kind which is to be held either for productive use in a trade or business or for investment.” In 26 C.F.R. 1.1031(a)-2(b), “like kind” is defined as follows: “As used in section 1031(a), the words like kind have reference to the nature or character of the property and not to its grade or quality. One kind or class of property may not, under that section, be exchanged for property of a different kind or class.” It should be noted that, in order to attempt to utilize the tax treatment of Section 1031(a) for transactions done on or prior to December 31, 2017, (i) each transaction must comply with certain requirements set forth in IRS regulations (such as the use, in certain instances, of a “qualified intermediary”), and (ii) the taxpayer must file a Form 8824 with the IRS.
There is a risk that the IRS could use its prior revenue rulings on gold bullion as a basis for taking the position that, for transactions completed on or prior to December 31, 2017, different cryptocurrencies are not “property of like kind” under Section 1031(a). In Rev. Rul. 82-166 (October 4, 1982), the IRS ruled that an exchange of gold bullion for silver bullion does not qualify for non-recognition of gain under Section 1031(a). The IRS stated: “Although the metals have some similar qualities and uses, silver and gold are intrinsically different metals and primarily are used in different ways. Silver is essentially an industrial commodity. Gold is primarily utilized as an investment in itself. An investment in one of the metals is fundamentally different from an investment in the other metal. Therefore, the silver bullion and the gold bullion are not property of like kind.” The IRS also stated in Rev. Rul. 79-143 (January 5, 1979) that an exchange of $20 U.S. gold numismatic-type coins and South African Krugerrand gold coins does not qualify for non-recognition of gain under Section 1031(a). The IRS stated: “The bullion-type coins, unlike the numismatic-type coins, represent an investment in gold on world markets rather than in the coins themselves. Therefore, the bullion-type coins and the numismatic-type coins are not property of like kind.”
Arizona became the first state in the U.S. to adopt a “regulatory sandbox” to shepherd the development of new emerging industries like fintech, blockchain and cryptocurrencies within its borders. The law grants regulatory relief for innovators in these sectors who desire to bring new products to market within the state. Under the program, companies are able to test their products for up to two years and serve as many as 10,000 customers before needing to apply for formal licensure. Other states have since followed suit and created similar programs including Hawaii, Kentucky, Nevada, Utah, Vermont and Wyoming.
Cryptocurrency fund managers that invest in cryptocurrency futures contracts, as opposed to “spot transactions” in cryptocurrencies, are required to register as a commodity trading advisor (“CTA”) and commodity pool operator (“CPO”) with the CFTC and with the National Futures Association (“NFA”), or satisfy an exemption. Also, because of additions to the Dodd-Frank Act, cryptocurrency hedge fund managers that use leverage or margin would also need to register with the CFTC and NFA. The Dodd-Frank Act amended the Commodities Act to add new authority over certain leveraged, margined, or financed retail commodity transactions. The CFTC exercised this jurisdiction in an action against BFXNA INC. d/b/a BITFINEX in 2016. Fund managers should be cautious when using margin/leverage as it may require them to register as a CTA and CPO with the CFTC and register with the NFA.
The Investment Company Act of 1940 (the “Company Act”), the Investment Advisers Act of 1940 (the “Advisers Act”), as well as state investment advisor laws, impose regulations on investment funds that invest in securities. The Company Act generally requires investment companies to register with the SEC as mutual funds unless they meet an exemption. Cryptocurrency funds, and hedge funds generally, can be structured under one of two exemptions from registration under the Company Act. Section 3(c)(1) allows a fund to have up to 100 investors. Alternatively, Section 3(c)(7) allows a fund to have an unlimited number of investors (but practically it should be limited to 2,000 to avoid being deemed a publicly traded partnership under the Securities Exchange Act) but requires a significantly higher net-worth suitability requirement for each investor (roughly $5 million for individuals, $25 million for entities). As a general rule, most startup funds are structured as 3(c)(1) funds because of the lower investor suitability requirements.
Until the SEC provides more guidance on classifying individual cryptocurrencies as securities or commodities, the likelihood of many cryptocurrencies being deemed securities is high. As such, we recommend that cryptocurrency funds that invest in anything other than Bitcoin, Ether, Litecoin, and the handful of other clearly commodity coins, comply with the Company Act preemptively. For most startup funds, this would mean limiting investors within a given fund to less than 100 beneficial owners.
Regardless of whether a startup cryptocurrency fund manager is required to register as a CPO/CTA with the CFTC under the Commodities Act, register or seek exemption from the SEC as an investment advisor (under the Advisers Act), or investment company (under the Company Act), every cryptocurrency fund manager will be subject to the fraud provisions of the CFTC and/or the SEC. In September 2017, the CFTC announced its first anti-fraud enforcement action involving Bitcoin. These anti-fraud actions can be taken by the SEC and CFTC regardless of the cryptocurrency fund’s exempt status.
In July of 2020, the OCC affirmed in an interpretive letter that national banks and savings associations can provide custody services for cryptocurrency. The letter noted that banks can also provide related services such as cryptocurrency-fiat exchanges, transaction settlement, trade execution, valuation, tax services and reporting. The effort supplements a patchwork of state regulation and guidance that to date has encouraged only a select few national banks and financial services companies to embrace cryptocurrency (see above: Money transmission laws and anti-money laundering requirements). While the OCC agreed that underlying keys to a unit of cryptocurrency are essentially irreplaceable if lost, it said that banks could be a part of the solution by offering more secure storage services compared to existing options.
The general rule of thumb regarding Bitcoin mining remains relatively straightforward. If you are able to own and use cryptocurrency where you live, you should also be able to mine cryptocurrency in that location as well. If owning cryptocurrency is illegal where you live, mining is most likely also illegal. There are few, if any, jurisdictions in the U.S. where possession of cryptocurrency is illegal. Plattsburgh, New York, however, is likely the only city in the U.S. to impose a ban (temporary) on cryptocurrency mining. Also, the U.S. Marine Corps banned crypto mining apps from all government-issued mobile devices.
A group of U.S. lawmakers have proposed a requirement that individuals declare their cryptocurrency holdings when entering the U.S., but to date no such requirement has gone into effect.
We are not aware of any broadly applicable reporting requirements specific to cryptocurrency in the U.S.
Cryptocurrency, such as Bitcoin, has value and therefore is increasingly likely to become an estate asset. While there are few, if any, laws specific to cryptocurrency, due to the nature of cryptocurrencies, typical wills and revocable living trusts may not be well suited to efficiently transfer this new type of asset. Consequently, new estate planning questions and clauses may be needed.
While cryptocurrency is not sufficiently mature to allow existing legal structures to promulgate a complete set of rules and regulations, cryptocurrency’s technological character allows estate planning to protect the intent of clients holding cryptocurrency. However, the lack of statutory structure necessitates proactive steps. Accordingly, someone who wants greater certainty of bequeathing cryptocurrency to their heirs will need to provide specific and detailed written instructions in their estate planning documents. The information they will need to include will depend upon the type of virtual currency wallet that they have.
There is wide range of cryptocurrency wallets that are available at this time. The current types of cryptocurrency wallets include: (i) a single device software wallet in which you hold the private keys (example: bitpay wallet); (ii) a multiple device web wallet in which you hold the private keys (example: blockchain wallet); (iii) a multiple device web wallet in which you do not hold the private keys (example: coinbase wallet); (iv) a USB hardware dongle wallet in which you hold the private keys (example: trezor wallet); and (v) a “paper wallet” in which the private keys and public keys are written down (which can be later loaded into a software wallet of your choice to be spent).
The instructions that you provide in a will (for your personal representative) or in a declaration of trust (for the successor trustee of a revocable living trust) should be written in a manner that is easy to understand for individuals who are not familiar with cryptocurrency. For example, in the case of a single device software wallet in which you hold the private keys, instructions could include (i) a description of the name and version of the wallet software, (ii) a description of the name and version of the operating software system of the wallet device (i.e., iOS, Android, MacOS, Windows or Linux), (iii) a description of the types of virtual currency held by the wallet, (iv) either the long-form private and public keys for the wallet or the 12-word “seed” BIP39 or BIP44 recovery phrase for the wallet, and (v) step-by-step instructions (which may include screenshots) showing how the wallet can be restored onto a new device, if the current wallet device cannot be accessed.
As transfers from a Bitcoin wallet and most other wallets are irrevocable, private key information about cryptocurrency accounts will need to be kept in a secure manner. Security can be enhanced by storing the private key information in a safe-deposit box or vault, which could only be accessed after the holder’s death by the personal representative designated in their will (or the successor trustee designated in their revocable living trust).
28 Mar 2021
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