To remain competitive, companies find themselves increasing their efforts to digitally transform their businesses by developing new offerings based on emerging technologies and integrating these technologies into existing product and service offerings.
This is our sixth monthly bulletin for 2021, aiming to help companies identify important and significant legal developments governing the use and acceptance of blockchain technology, smart contracts and digital assets.
While the use cases for blockchain technology are vast, from copyright protection to voting, most of the current adoption is in the financial services section and the focus of this bulletin will be primarily on the use of blockchain and or smart contracts in that sector. With respect to digital assets, we have organized our approach to this topic by discussing it in terms of traditional asset type or function (although the types and functions may overlap), that is, digital assets as:
- Securities
- Virtual currencies
- Commodities
- Deposits, accounts, intangibles
- Negotiable instruments
- Electronic chattel paper
- Digitized assets
Digital assets can themselves be assets or instead can reflect the ownership of an underlying asset. For example, electronic records that are the equivalents of negotiable instruments and electronic chattel paper would be digital assets, as would an electronic recording of a security interest in the underlying asset, such as recording title to real or personal property and the use of tokens to represent revenue streams from otherwise illiquid assets such as patents and commercial real estate (sometimes referred to as a tokenized or digitized asset).
In addition to reporting on the law and regulation governing blockchain, smart contracts and digital assets, this bulletin will discuss the legal developments supporting the infrastructure and ecosystems that enable the use and acceptance of these new technologies.
Each issue will feature in-depth insight on a timely and important current topic. In this issue, we discuss how cryptocurrency assets are addressed in the Biden Administration’s tax compliance plan.
INSIGHTS
Biden Administration tax compliance plan targets cryptocurrency assets
In The American Families Plan Tax Compliance Agenda issued by the US Treasury Department on May 20, 2021, the Biden Administration announced its intention to cut the annual tax gap by doubling the size of the Internal Revenue Service and providing the IRS with greater authority to collect information on Americans’ financial assets and transactions, including cryptocurrency transactions. Find out more.
FEDERAL DEVELOPMENTS
Digital assets
Bi-partisan group of senators launch US Senate Financial Innovation Caucus. Senators Cynthia Lummis (R-WY) and Kyrsten Sinema (D-AZ), as co-chairs, launched the US Senate Financial Innovation Caucus to highlight responsible innovation in the financial system and using financial technologies to make markets more inclusive and safe. The caucus will focus on a number of critical issues, including:
- Distributed ledger technology (blockchain)
- Digital assets
- Artificial intelligence and machine learning
- Consumer protection
- Combating money laundering
- Faster payments
- Central bank digital currencies
On June 3, Senator Lummis published an editorial entitled Why I’m Founding the Financial Innovation Caucus further explaining her reasons for establishing the Caucus.
FDIC issues request for information and comment related to digital assets. On May 21, 2021, the FDIC issued a request for information and comment regarding insured depository institutions’ current and potential activities related to digital assets. The FDIC stated that digital asset use cases may fall into one or more broad categories:
- Technology solutions
- Asset-based activities
- Liability-based activities
- Custodial activities
The FDIC is asking insured depository institutions for responses to questions regarding (i) current and potential use cases; (ii) risk and compliance management; (iii) supervision and activities; (iv) deposit insurance and resolution; and (v) additional considerations.
Comments must be received by July 16 to the agency website or by email to [email protected]
Digital Assets Working Group formed in House Committee on Financial Services. On June 16, Congresswoman Maxine Waters (D-CA), Chairwoman of the House Committee on Financial Services, announced that she has organized a Digital Assets Working Group of Democratic Members “that will examine the issues at hand in the digital assets space.” The Working Group will “focus on making sure there is responsible innovation in the cryptocurrency and digital asset space” and “plan to work together on legislation and policy solutions on such matters as cryptocurrency regulation, the use of blockchain and distributed ledger technology, and the possible development of a U.S. Central Bank Digital Currency.”
Taxation
IRS 2022 budget seeks $32 million for crypto enforcement. On June 8, the IRS released its Congressional Budget Justification & Annual Performance Report and Plan – Fiscal Year 2022 which seeks $32 million ($3 million on IT specialist compensation, $6 million on hardware and software and $23 million on contractual services) to enhance cryptocurrency-related enforcement operations. The $32 million will enable the IRS’s Criminal Investigation division to engage in such functions as:
Expanding the use of specialized contractor support service provided by a group of cyber/crypto experts
Building an internal dashboard for cryptocurrency/blockchain analytics (STRIKES)
Establishing a One-IRS approach to cryptocurrency non-compliance around both tax and non-tax case development and
Seeking private sector expertise in applied analytics, cybercrime, forensic accounting/discovery support, investigative support, and related consulting services.
Congressional Blockchain Caucus members seek IRS guidance on cryptocurrency donations. On June 10, members of the Blockchain Caucus wrote a letter to the IRS seeking clarification on ambiguities regarding appraisals for charitable donations of cryptocurrency. The letter describes the inconsistency between the IRS FAQ on virtual currency which permits a taxpayer to provide evidence of fair market value at the time of sale or receipt using the exchange rate, with the requirement for determining fair market value of donated virtual currency in excess of $5,000 through “a written qualified appraisal by a qualified appraiser.” The letter suggests eliminating the appraisal requirement to incentivize charitable giving.
Virtual currency
FTC announces spike in cryptocurrency investment scams. On May 17, the Federal Trade Commission (FTC) published an article entitled FTC Data Shows Huge Spike in Cryptocurrency Investment Scams which describes a loss of more the $80 million by consumers to cryptocurrency investment scams since October 2020. The FTC asserts the losses have increased more than ten-fold year-over-year.
HFSC announces hearings on CBDC implications and virtual currency impact. On June 3, the House Committee on Financial Services (HFSC) announced the following meetings:
- June 15 at 10:00 am ET: The Task Force on Financial Technology will convene for a virtual hearing entitled “Digitizing the Dollar: Investigating the Technological Infrastructure, Privacy, and Financial Inclusion Implications of Central Bank Digital Currencies.”
- June 30 at 10:00 am ET: The Subcommittee on Oversight and Investigations will convene for a virtual hearing entitled “America on “FIRE”: Will the Crypto Frenzy Lead to Financial Independence and Early Retirement or Financial Ruin?”
Governor Brainard gives update on CBDCs. On May 24, Federal Reserve Governor Lael Brainard spoke at the CoinDesk 2021 Conference, discussing how the Fed is stepping up its research and engagement on central bank digital currencies (CBDCs) due to the growing role of digital private money, the migration to digital payments, plans for the use of foreign CBDCs in cross-border payments, and concerns about financial exclusion. Governor Brainard further discussed policy considerations in CBC issuance, such as preserving general access to safe central bank money, improving efficiency, reducing cross-border frictions, complementing currency and bank deposits, preserving financial stability and monetary policy transmission, protecting privacy, safeguarding financial integrity, and increasing financial inclusion.
CFTC and SEC issue investor alert on funds trading in bitcoin futures. On June 10, the US Commodity Futures Trading Commission (CFTC) Office of Customer Education and Outreach and the Securities and Exchange Commission (SEC) Office of Investor Education and Advocacy issued an Investor Alert: Funds Trading in Bitcoin Futures on investing in funds trading in virtual currency futures markets. The alert encourages potential investors to carefully consider:
- The investor’s risk tolerance
- The fund’s disclosure of its risks
- Potential loss of the investment and
- Difference in investment outcome of bitcoin vs. bitcoin futures
Securities
SEC delays review of bitcoin ETF. On May 26, the Securities and Exchange Commission (SEC) designated a longer period for review of the Cboe BZX proposed rule change to list and trade shares of the WisdomTree Bitcoin Trust, an exchange-traded fund (ETF). The date for the SEC to issue its decision on the proposal has been extended to July 14. For more information on pending bitcoin ETFs, see our May issue and our April issue.
Broker-dealer petitions SEC for rulemaking regarding NFTs. On April 12, Arkonis Capital, LLC, a subsidiary of Sustainable Holdings, PBC, sent a letter petitioning the SEC to “provide regulatory clarity with respect to the regulation of a new form of digital assets – non-fungible tokens (‘NFTs’).” According to the letter, Arkonis believes that certain NFTs may be securities, yet NFTs have not been the subject of interpretive guidance by the SEC and the SEC has not initiated an enforcement action against the creator of any NFT or the operator of an NFT platform. Arkonis recommends that the SEC publish a concept release on the regulation of NFTs and that it propose rules to address when NFTs are securities.
SEC announces regulatory agenda. On June 11, the SEC Office of Information and Regulatory Affairs announced the release of the Spring 2021 Unified Agenda of Regulatory and Deregulatory Actions. Notable proposed and final SEC rulemaking areas include disclosure relating to climate risk, human capital, including workforce diversity and corporate board diversity, and cybersecurity risk, and mandated electronic filings and transfer agents.
SEC Commissioners identify omissions in SEC agenda. On June 14, SEC Commissioners Hester M. Peirce and Elad L. Roisman issued a public statement on the recently released SEC regulatory agenda, describing their disappointment “that the Agenda is missing … important rulemakings, including rules to provide clarity for digital assets,” and speculates that “[p]erhaps the absence of these rules is attributable to the regrettable decision to spend our scarce resources to undo a number of rules the Commission just adopted” which rules were the result of “an even more extended and rigorous process to obtain public input.”
STATE DEVELOPMENTS
Digital assets
Nebraska establishes digital asset depository institutions, expands UCC to address controllable electronic records. On May 26, 2021, the Nebraska governor signed into law the Nebraska Financial Innovation Act, which creates digital asset depository institutions as a new financial institution. The Financial Innovation Act provides for the following:
- Establishes procedures for incorporation, chartering, operation, regulation, liquidation, conservatorship and voluntary dissolution of digital asset depository institutions
- Prohibits lending of fiat currency by digital depository financial institution
- Provides for regulation and examination by the Nebraska Department of Banking and Finance
- Requires principal operating headquarters and office of chief executive officer in Nebraska
- Allows digital asset depositories to be held by a bank holding company and allow existing bank investment in a digital asset depository institution
- Specifies compliance with applicable federal laws (including Know Your Customer, Beneficial Ownership, Bank Secrecy Act and Anti-Money Laundering) and requires operation in a safe and sound manner to benefit its customers
The bill also revises the Nebraska Uniform Commercial Code by adding a new section, Article 12, to address controllable electronic records. The new article 12 sets forth, in part, when a person has “control” of a “controllable electronic record.”
Virtual currency
Arkansas and Texas modify UCC to address virtual currency. The following states adopted bills to modify the state’s Uniform Commercial Code (UCC) to address virtual currency, enabling a party to perfect a security interest in virtual currency by filing or by control. The bills define virtual currency as “a digital representation of value that: (A) is used as a medium of exchange, unit of account, or store of value; and (B) is not legal tender, whether or not denominated in legal tender,” and excludes from the definition forms of value that cannot be taken from an originating platform or exchanged for legal tender, bank credit, or virtual currency.
- Arkansas adopted HB1926 on April 20 and
- Texas adopted HB4474 on June 5.
Texas authorizes state-chartered banks to provide virtual currency custody services. On June 10, the Texas Department of Banking (TDB) issued a notice affirming that Texas state-chartered banks may provide customers with virtual currency custody services, in either a fiduciary or non-fiduciary capacity, so long as the banks have adequate protocols in place to effectively manage the risks and comply with applicable law. The notice confirmed that such authority exists under Texas Finance Code §32.001, but cautioned banks proposing to offer custody services in a fiduciary capacity to ensure their charter includes trust powers and the bank complies with 7 Texas Administrative Code § 3.23.
Distributed ledger technology
Iowa revises UETA to expressly include distributed ledger technology. On May 20, 2021, the governor of Iowa signed into law a bill that amends Iowa’s Uniform Electronic Transactions Act to expressly include distributed ledger technology and smart contracts.
Blockchain
Arizona establishes blockchain study committee. On May 7, Arizona enacted HB2544, which established a blockchain and cryptocurrency study committee to review the status of Arizona law on blockchain and cryptocurrency, as well as to submit a report regarding the committee’s recommendations of legislative priorities that will foster a positive blockchain and cryptocurrency economic environment in the state.
INDUSTRY DEVELOPMENTS
Chamber of Digital Commerce publishes report on digital tokens in the EU. On May 27, the Chamber of Digital Commerce published the next report in its series on Understanding Digital Tokens, entitled Legal Landscapes Governing Digital Tokens in the EU. This report provides a survey of European Union (EU) laws and legal framework, and the application of those laws and framework to digital tokens. The report covers:
- Digital tokens that qualify as e-money and financial instruments within the EU’s financial laws
- An overview of the legislative proposal to regulate markets in crypto-assets (MiCA) and its impact on digital tokens, such as utility tokens, payments tokens, and stablecoins, and service providers
- Tax-related considerations for digital tokens, including a case study on decentralized finance (DeFi) and
- AML-related considerations, including the EU’s Fifth Anti-money Laundering Directive.
AP auctions 10 NFTs celebrating photojournalism. On May 25, the Associated Press (AP) announced it will auction off 10 NFTs of the “AP ARTiFACTS: The 175 Collection,” one-of-a-kind digital artistic representations of notable historic photographs. The first NFT currently being auctioned is “a representation of AP’s iconic photo of US soldiers raising the American flag on Iwo Jima in 1945.”
Google requires cryptocurrency advertisers to be registered. On June 2, Google announced updates to its financial products and services policy to require advertisers offering cryptocurrency exchanges and wallets targeting the US to be “duly registered with (a) FinCEN as a Money Services Business and with at least one state as a money transmitted; or (b) a federal or state chartered bank entity.” The update becomes effective August 3 and applies to ads promoting the purchase sale or trade of cryptocurrency as well as ad destinations that aggregate or compare issuers of cryptocurrencies.
ENFORCEMENT ACTIONS AND LITIGATION
Federal
Virtual currency
California man sentenced for operating unlicensed bitcoin ATM network. On May 28, the Department of Justice (DOJ) announced Kais Mohammad, aka Superman29, was sentenced to 24 months in federal prison after pleading guilty in 2020 to operating an unlicensed money transmitting business, money laundering, and failing to maintain an effective anti-money laundering program. Mohammad agreed to forfeit 17 bitcoin ATMs, $22,820 in cash, 18.4 bitcoin and 222.5 ethereum. For information on the allegations, see our August 2020 issue.
DOJ seizes $2.3 million in cryptocurrency paid in Colonial Pipeline cyberattack. On June 7, the DOJ announced the seizure of 63.7 bitcoins valued at ~ $2.3 million which represent proceeds of the May 8 ransom payment made to DarkSide, which had targeted Colonial Pipeline with a ransomware attack. The bitcoin had been transferred to a wallet for which the FBI had the private key and was recovered under a seizure warrant.
FinTech
Second Circuit dismisses NYDFS challenge to OCC FinTech charters. On June 3, the US Court of Appeals for the Second Circuit held that the New York Department of Financial Services (NYDFS) lacked standing to challenge the Office of the Comptroller of the Currency’s (OCC) program to issue special-purpose national bank charters to nondepository financial technology companies (FinTech). The court also found NYDFS’s claims to be premature, as NYDFS filed suit before the OCC began accepting applications for the special-purpose charters. The court’s holding did not explain whether federal law permits the OCC to grant special-purpose bank charters to nondepository entities. The ruling overturns the decision of the New York district court that the National Bank Act “unambiguously requires” companies to take deposits for charter eligibility.
Securities
SEC charges promoters of $2 billion global crypto lending securities offering. On May 28, the SEC announced it filed a complaint against persons connected to the BitConnect lending program, alleging the lending program was an unregistered securities offering and the promoters offered and sold the offering without being registered as broker-dealers. The program allegedly used investor funds to trade in and profit from the volatility of bitcoin, paying investors interest from lending bitcoin tokens to the program. The SEC seeks an injunction, disgorgement, and civil monetary penalties.
SEC charges unregistered investment advisor in fraudulent token offering. On June 11, the SEC announced the filing of a complaint against Edgar M. Radjabli of Florida and Apis Capital Management LLC, an entity Radjabli controlled, alleging a fraudulent and unregistered offering of Apis Tokens, a digital asset representing tokenized interests in Apis Capital’s main investment fund. The complaint includes two other allegations against Radjabli and another entity he controlled related to securities market manipulation and an unregistered, fraudulent securities offering. Radjabli and the other defendants agreed to settle the charges, without admitting or denying the allegations, with payment of a total of $600,000 in monetary relief. The settlement also permanently enjoins Radjabli and the other defendants from violating the charged provisions of the federal securities laws, imposes a conduct-based injunction and penny stock bar on Radjabli, and bars Radjabli from the securities industry.
State
Securities
NFT marketplace faces NY class action allegations that it sold securities. On May 13, a class action complaint was filed against Dapper Labs, Inc. and Roham Gharegozlou, operators of NBA Top Shot, in the Supreme Court for the State of New York. The complaint alleges that Dapper Labs promoted, offered and sold unregistered securities in the form of “NBA Top Shot Moments,” which are NFTs depicting video clips of highlights from NBA basketball games. The complaint alleges that the defendants “used their control over NBA Top Shot to prevent investors in the NFTs from withdrawing their funds for months on end…, propping up the market for Moments as well as the overall valuation of NBA Top Shot.”
Block.one settles lawsuit with investors. On June 11, Block.one announced it entered into a settlement to resolve the class action complaint filed by Crypto Assets Opportunity Funds in May alleging violation of federal securities laws related to Block.one’s ICO of $4 billion in EOS tokens which occurred in 2017. Block.one maintains that the suit was without merit but agreed to pay $27.5 million to resolve the dispute. For more information on the complaint, see our June 2020 issue. For information regarding the SEC’s settled charges related to the same ICO, see our October 2019 issue.
Taxation
IRS sued for refund of taxes paid on staking rewards. On May 25, Joshua and Jessica Jarrett filed a complaint against the Internal Revenue Service (IRS) in the US District Court for the Middle District of Tennessee to recover income tax paid for rewards earned from staking 8,876 Tezos tokens in 2019. Jarrett had not sold the tokens in 2019 but paid disputed federal income taxes on $9,407 in income earned from staking rewards, and filed a request for refund. Jarrett argues that mining is an act of creation and therefore not taxable. Instead the IRS must wait until cryptocurrency is sold or exchanged for a taxable event to have occurred. The complaint seeks judgment in the amount of $3,293 in taxes paid and $500 due to an increase in tax credits based on the reduction in income, plus statutory interest.
SPOTLIGHT ON INTERNATIONAL DEVELOPMENTS
International banking standards organization proposes tough capital requirements. On Jun 10, the Basel Committee on Banking Supervision (BCBS) published a public consultation on proposals for the treatment of banks’ cryptocurrency exposures. The consultation proposes that banks holding cryptocurrencies meet more stringent capital requirements, even higher than those for conventional stocks and bonds. According to the consultation, banks should apply a “conservative” risk weight of 1250 percent, as “the growth of crypto assets and related services has the potential to raise financial stability concerns and increase risks faced by banks. … Certain crypto-assets have exhibited a high degree of volatility, and could present risks for banks as exposures increase.” However, the consultation proposed that stablecoins pegged to existing national currencies provide risks similar to “traditional assets,” such as stock and bonds, and should be subject to the same capital and liquidity requirements. The BCBS excluded CBDCs from the scope of the consultation proposals. The BCBS invites submissions on the proposals to be submitted by September 10. This public consultation follows from the BCBS discussion paper on the design of a prudential treatment for cryptoassets published December 12, 2019. See our February 2020 issue for more information on the discussion paper.
Australian Tax Office urges taxpayers to report virtual currency gains and losses. On May 28, assistant commissioner Tim Loh of the Australian Tax Office (ATO) asserted that the ATO is writing approximately 100,000 taxpayers with cryptocurrency assets to urge them to review previously filed returns, and the ATO will prompt 300,000 people to report cryptocurrency gains and losses on their 2021 tax returns. Loh explained that the ATO traces information from cryptocurrency exchanges to match with tax return filings.
Ontario Securities Commission pursues trading platforms for failure to register. The Ontario Securities Commission (OSC) has filed Statements of Allegations against the following cryptoasset trading platforms for operating unregistered cryptoasset trading platforms, allowing Ontario residents to trade cryptoasset products that the OSC asserts are securities and derivatives:
May 25: Polo Digital Assets, Ltd. (Poloniex), a token trading platform incorporated in the Republic of Seychelles. The enforcement proceeding has been scheduled for a hearing on June 18.June 7: Mek Global Limited, incorporated in the Republic of Seychelles, and PhoenizFin Pte. Ltd., incorporated in Singapore (collectively, KuCoin). The enforcement proceeding has been scheduled for a hearing on July 6.
Chinese banking associations ban cryptocurrency. On May 18, the National Internet Finance Association of China, the China Banking Association and the Payment and Clearing Association of China issued a directive prohibiting banks from providing insurance to cryptocurrency businesses or investments, and from allowing customers to access cryptocurrency trading or storage. The directive also prohibits web platforms from hosting cryptocurrency coin companies, and from allowing ads for cryptocurrency-related activities.
El Salvador becomes first country to adopt bitcoin as legal tender. On June 9, President Nayib Bukele tweeted that the legislation he proposed to adopt bitcoin as legal tender in El Salvador was approved by the Salvadoran Congress. In 90 days, bitcoin will reportedly join the US dollar as the official legal tender of the country, and all Salvadoran business must accept bitcoin as well as the US dollar for goods as services.
European Central Bank report on international role of the euro. On June 2, the European Central Bank (ECB) published a report entitled International Role of the Euro which includes a discussion of the impact of a CBDC on the international role of currencies, indicating that characteristics specific to digital means of payment, including safety, low transaction costs and bundling effects, could promote the international adoption of a CBDC. However, the report concludes that a CBDC would support cross-border payments “but is not necessarily a game changer.”
Hong Kong financial regulator discloses results of consultation on AML/CTF amendments. On May 21, the Hong Kong Financial Services and Treasury Bureau (FSTB) announced consultation conclusions on legislative proposals to amend the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (AMLO). The conclusions include requirements that all cryptocurrency exchanges operating in Hong Kong should be licensed by the Securities and Futures Commission and will only be allowed to provide services to “professional investors” as opposed to retail investors. A government spokeman stated that the FSTB “will fine-tune the legislative proposals as appropriate to address stakeholders’ concerns.”
South African Reserve Bank announces CBDC feasibility study. On May 25, the South African Reserve Bank announced it is studying the feasibility, desirability and appropriateness of a CBDC for general-purpose retail use. The study will include practical experimentation across different emerging technology platforms, taking into account a variety of factors, including policy, regulatory, security and risk management, and is expected to be concluded in 2022.
South Korean tax service announces reporting requirements for foreign crypto exchanges. On June 3, the South Korean National Tax Service (NTS) reportedly announced that Korean residents with accounts in foreign crypto exchanges may have to report their holdings for tax purposes in 2022. Korean citizens will be required to pay taxes if the aggregate amount of their account balances in foreign virtual asset businesses exceed 500 million won ($447,900 US) at the end of each month. The new rule will be applied starting January 1, 2022, with reporting required starting June 2023. Violations will be subject to fines of 10-20 percent of the amount not reported. If unreported amounts exceed ₩5 billion (US$4.47 million), the taxpayer may be subject to criminal punishment.
South Korean Central Bank seeks partner for CBDC pilot. The Bank of Korea reportedly announced it is seeking a technology partner in an open bidding process to research the practicalities of launching a pilot CBDC. The pilot will run from August to December 2021 and could extend in to a second phase in 2022.
Thai SEC bans several tokens. On June 11, the Thailand Securities and Exchange Commission (SEC) announced, effective immediately, a ban on the purchase, sale or training of several types of tokens including meme tokens, fan tokens, NFTs and exchange tokens.
UK financial regulator extends temporary registration regime for cryptoasset firms. On June 3, the UK Financial Conduct Authority (FCA) announced the extension of the end date for the Temporary Registrations Regime (TRR) to March 31, 2022. The TRR allows existing cryptoasset firms who applied for registration, but whose applications are still pending, to continue trading. The FCA explained the extension results from firms being unable to meet Money Laundering Regulations and withdrawing their applications.
Bank of England publishes discussion paper on stablecoins. On June 7, the Bank of England published a discussion paper, New Forms of Digital Money, that describes the Bank’s thoughts on regulatory models for stablecoins and CBDCs. The discussion paper poses questions for discussion on the following topics:
- The role of money in the economy
- Public policy objectives
- A propose illustrative scenario
- Implications for macroeconomic stability
- The regulatory environment.