On June 7, 2022, a bill was introduced in the U.S. Senate that would provide greater clarity regarding the taxation and regulation of digital assets. Here are some of highlights.
Definitions
The bill would provide definitions in connection with digital assets that would be generally applicable in such areas of law as federal income tax, commodities regulation, and securities regulation. Terms that the bill would define would include the following:
- “Digital asset” would be defined as “natively electronic asset that . . . confers economic, proprietary, or access rights or power . . . and . . . is recorded using cryptographically secured distributed ledger technology.”[1]
- “Distributed ledger technology” would mean “technology that enables the operation and use of a ledger that . . . is shared across a set of distributed nodes that participate in a network and store a complete or partial replica of the ledger; . . . is synchronized between the nodes; [and] . . . has data appended to the ledger by following the specified consensus mechanism of the ledger . . . .”[2]
- “Smart contract” would mean “computer code deployed to a distributed ledger technology network that executes an instruction based on the occurrence or nonoccurence of specified conditions . . . or any similar analogue . . . and . . . may include taking possession of a digital asset and transferring the asset or issuing executable instructions for these actions.”[3]
- “Virtual currency” would be defined as “a digital asset that . . . is used primarily as a medium of exchange, unit of account, store of value, or any combination of such factors; . . . that is not legal tender . . .; and . . . does not derive value from or is backed by an underlying financial asset . . . .”[4]
Federal Income Tax
Taxation of Mining and Staking Activities
Under the bill, income relating to mining and staking activities would be deferred until the taxable year in which there was a disposition (i.e., sale or exchange) of the assets produced or received in connection with those activities.[5] Thus, the bill would effectively reverse the Internal Revenue Service’s (IRS’s) guidance in Notice 2014-16 that a taxpayer must include the fair market value of virtual currency received from mining activities in gross income on the date of receipt. For more information on the current IRS guidance, see our post Taxation of Crypto Mining.
Exclusion for Personal Transactions
The bill would exclude from gross income the first $200 (as adjusted for inflation) of gain or loss from the disposition of virtual currency in a personal transaction for the purchase of goods or services other than dispositions in which virtual currency is sold or exchanged for cash, cash equivalents, digital assets, or other securities or commodities.[6] The IRS also would be required to issue regulations regarding information returns on virtual currency transactions.[7]
Effectively Connected Income
The bill would provide that the trading of digital assets for a taxpayer’s own account or through a resident broker, commission agent, custodian, digital asset agent would not constitute a trade or business for purposes of determining whether income is effectively connected with a trade or business in the United States.[8] Determining whether income is effectively connected with a trade or business in the United States is principally relevant for determining the federal income tax treatment relating to specific items of income of foreign persons.[9]
Decentralized Autonomous Organizations (DAOs)
The bill would define a “decentralized autonomous organization” as “an organization . . . which utilizes smart contracts . . . to effectuate collective action for a business, commercial, charitable, or similar entity, . . .the governance of which is primarily on a distributed basis, and . . . which is properly incorporated or organized under the laws of a State or foreign jurisdiction as a decentralized autonomous organization, cooperative, foundation or any similar entity.”[10] The bill would provide that the default classification of a DAO would be as a business entity which is not a disregarded entity and that mining and staking digital assets and raising funds for a charitable purpose would not be considered a business activity of a DAO for purposes of determining whether the DAO is a social club under section 501(c)(7) of the Internal Revenue Code.[11]
Commodities v. Securities
The bill would cause certain investment contracts under which an ancillary asset is provided by the issuer to be presumed to be a commodity subject to the Commodity Exchange Act rather than a security subject to the Securities Act of 1933 or the Securities Exchange Act of 1934.[12]
For these purposes, an “ancillary asset” would be defined as “an intangible, fungible asset that is offered, sold, or otherwise provided to a person in connection . . . an investment contract . . . .”[13] However, an ancillary asset would not include a debt or equity interest in a business entity, business rights with respect to that entity, an entitlement to an interest or dividend payment from that entity, a profit or revenue share in that entity derived solely from the entrepreneurial or managerial efforts of other, or any other financial interest in that entity.[14]
The bill would also expand the jurisdiction of the Commodity Futures Trading Commission to cover digital asset transactions other than those involving “digital collectibles and other unique digital assets.”[15] Additionally, the bill would require the registration and regulation of certain “digital asset exchanges.”[16]
Stablecoins
The bill would allow a depositary institution to issue, redeem, and conduct all incidental activities relating to payment stablecoins, provided that the institution maintained high-quality liquid assets equal to at least 100 percent of the face amount of the payment stablecoins issued by the institution.[17]
Eligible “high-quality liquid assets” would mean 1) U.S. legal tender, 2) demand deposits at a depository institution, 3) balances held at a Federal Reserve bank, 4) foreign withdrawable deposits consistent with any foreign unit of account to which a payment stablecoin is pegged, 5) a security that is issued or unguaranteed by the Treasury Department with an original maturity date of not more than one year (or a reserve repurchase agreement relating to such a security), and 7) any other high-quality liquid asset that the appropriate Federal banking agency or State bank supervisor determines to be consistent with safe and sound banking practices.[18]
The depository institution would be required to publicly disclose a description of the assets backing the payment stablecoins.[19] A depository institution also would be required to obtain permission from the appropriate Federal banking agency or State bank supervisor before issuing the payment stablecoin.[20]
Cryptocurrency and Blockchain Attorneys
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[1] Lummis-Gillibrand Responsible Financial Innovation Act, S. 4356, 117th Cong. § 101 (2022) (hereinafter “RFIA”) (proposing 31 U.S.C. § 9801(2)). While the text of the bill has yet to be added to Congress’s website, a copy can be found here.
[2] Id. (proposing 31 U.S.C. § 9801(4)).
[3] Id. (proposing 31 U.S.C. § 9801(8)).
[4] Id. (proposing 31 U.S.C. § 9801(10)).
[5] RFIA, supra note 1, § 208 (adding 26 U.S.C. § 451(l)).
[6] Id. sec. 201(a) (proposing 26 U.S.C. § 139J).
[7] Id. sec. 201(c).
[8] Id. sec. 203(a) (amending 26 U.S.C. § 864(b)(2), which provides a safe harbor for certain securities and commodities trading activities in the United States by foreign persons).
[9] See 26 U.S.C. §§ 871, 881, 882.
[10] RFIA § 204(a) (adding 26 U.S.C. § 7701(a)(51)).
[11] Id. § 204(a).
[12] Id. § 301 (adding 15 U.S.C. § 41(b)(4)).
[13] Id. § 301 (adding 15 U.S.C. § 41(a)).
[14] Id.
[15] Id. §§ 401-403.
[16] Id. § 404 (adding 7 U.S.C. 5i). For these purposes, a “digital asset exchange” would mean “a trading facility that lists for trading at least 1 digital asset.” Id. § 401 (7 U.S.C. § 1a(15B).
[17] RFIA § 601 (adding 12 U.S.C. § 4810(a), (b)). A “depository institution” would be defined by reference to the section 19(b)(1) of the Federal Reserve Act (12 U.S.C. § 461(b)(1)). Id. (adding 12 U.S.C. § 4810(m)). A “payment stablecoin” would mean a digital asset that is redeemable on demand on a one-to-to one basis for legal tender, issued by a business entity, accompanied by a statement from the issuer that the asset is redeemable, backed by one or more financial assets other than digital assets, and intended to be used as a medium of exchange. See id. §§ 101(a) (adding 31 U.S.C. § 9801(5), defining “payment stablecoin), 601 (adding 12 U.S.C. § 4810(m)(2), defining “payment stablecoin” by reference to 31 U.S.C. § 9801).
[18] RFIA sec. 601 (adding 12 U.S.C. § 4810(b)).
[19] RFIA sec. 601 (adding 12 U.S.C. § 4801(c)).
[20] RFIA § 601.
