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The State of Crypto Legislation

Published
November 23, 2020
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    The crypto industry has experienced a lot of growing pains throughout its short history, ranging from high-profile security breaches to initial coin offering (ICO) pyramid schemes. While these problems come with the territory to some extent, the industry’s greatest source of frustration has been the lack of regulatory clarity and inconsistent enforcement actions.

    Let’s take a look at what lawmakers are doing to improve the crypto legislation and how federal agencies are cracking down without clear laws in place.

    Lawmakers Push for More Clarity on Crypto Legislation

    The crypto industry has faced a lot of regulatory uncertainty. Rather than providing clarity, legislators have remained largely silent thus far and the resulting ‘regulation by enforcement’ has disenfranchised both entrepreneurs and investors. A growing chorus of lawmakers is concerned that the disenfranchisement could leave the U.S. behind in innovation.

    There are two recent bills that aim to provide clarity and clean up the mess:

    Securities Clarity Act

    Congressman Tom Emmer (R-NC) introduced the Securities Clarity Act to eliminate ambiguity regarding ‘security’ classification. The act states that an asset sold pursuant to an investment contract that is not otherwise security under the Securities Act does not become security as the result of being bought or sold. In practice, the act would exempt crypto transactions from securities laws.

    Digital Commodity Exchange Act

    The Digital Commodity Exchange Act would address the patchwork of regulations surrounding crypto or digital assets by putting all crypto exchanges under the purview of the Commodity Futures Trading Commission (CFTC), which would preempt state crypto laws. The move would make it much easier to govern crypto assets but could experience pushback from New York and Wyoming.

    These bills are the latest in a long line of legislation aimed at providing greater transparency in how crypto assets are treated. Before the COVID-19 pandemic, there were several crypto bills introduced in the House and Senate that sought to do everything from defining what federal agencies regulated what crypto assets, to specifying that transactions wouldn’t be taxed.

    Legislatures have also pushed the Internal Revenue Service (IRS) on multiple occasions to clarify ambiguous positions on crypto taxation. The Blockchain Caucus recently sent a letter to the IRS asking for guidance on the taxation of block rewards in a proof of stake network. These efforts aim to improve documentation for tax professionals and individual taxpayers.

    Crypto Legislation In 2021

    Let’s take a look at a few crypto legislations of 2021

    State Bill Summary
    Alabama Exempts virtual currency from ad valorem taxation
    Arizona Establishes a blockchain and cryptocurrency study committee
    Arkansas Amends the Uniform Money Services Act and includes virtual currency
    Florida Relates to money services businesses
    Hawaii Adopted a resolution requesting the department of commerce and consumer affairs to reconsider its 2016 ruling on asset reserve requirements for virtual currency companies and cryptocurrency companies to conduct business in Hawaii
    Idaho Relates to digital assets
    Illinois Amends the State Treasurer Act
    Indiana Includes virtual currency
    Kentucky Added the definitions for "medium of exchange" and "virtual currency"; deletes definition for "monetary value"; amends definition of "money transmission"
    Massachusetts Establishes a special commission (including members of the General Court) on blockchain and cryptocurrency.
    Missouri Modifies the offense of money laundering, and includes virtual currency
    New York Establishes a task force to study the impact of a state-issued cryptocurrency on the state of New York and states that state agencies are allowed to accept cryptocurrencies such as bitcoin, ethereum, litecoin, and bitcoin cash as payment
    Pennsylvania Relates to public officers, in ethics standards and financial disclosure; provides for definitions, for restricted activities, and for penalties. Includes virtual currency in the definition
    Rhode Island Establishes an economic growth blockchain act, sets regulations for the sale of hemp, regulates virtual and digital assets, and establishes depository banks for these purposes
    South Carolina Enacts the "South Carolina Blockchain Industry Empowerment Act of 2021" in order to establish this state as an incubator for tech industries seeking to develop innovation by using blockchain technology
    Texas Relates to the control of virtual currency and the rights of purchasers who obtain control of virtual currency for purposes of the Uniform Commercial Code
    Washington Establishes a 1% wealth tax on intangible financial assets of more than $1 billion. Includes virtual currency
    West Virginia Includes virtual currency
    Wisconsin Adopts the Revised Uniform Unclaimed Property Act (the act), as approved by the Uniform Law Commission, also known as the National Conference of Commissioners on Uniform State Laws
    Wyoming Relates to digital assets; amends the definition of digital asset; amends provisions related to the nature of digital assets under commercial law

    Federal Agencies Step Up Enforcement

    Lawmakers may be trying to improve regulatory clarity, but prosecutors have only become more aggressive. Attorney General William Barr recently published guidelines in a memo titled, Cryptocurrency: An Enforceable Framework, to guide prosecutors nationwide following the Department of Justice (DOJ) and CFTC’s actions against BitMEX.

    The report asserted U.S. jurisdiction over individuals whose crypto transactions interact with U.S.-based servers and specifically mentioned that Zcash, Monero, and DASH usage is indicative of possible criminal behavior. While the goal is to curb the use of crypto to pay for illicit goods and services, the move could also discourage privacy innovations.

    Crypto Legislation Enforcement
    Excerpt from IRS Warning Letters - Source: IRS

    In addition to the DOJ, several other federal agencies have stepped up enforcement:

    Internal Revenue Service (IRS)

    The IRS has sent tens of thousands of notices to taxpayers and introduced a new tax form in 2020 to root out taxpayers that aren’t declaring their digital assets and paying capital gains taxes on any increase in value. In addition, the agency recently sought to hire blockchain experts, likely in an effort to find potential tax evaders.

    U.S. Securities and Exchange Commission

    The U.S. Securities and Exchange Commission continues to crack down on initial coin offerings (ICOs) and other investment-related activities that it deems criminal. While its goal is to protect investors, these efforts could result in fewer entrepreneurs willing to assume the risk of legitimate activity in fear of prosecutions.

    Many of these enforcement efforts are well-intentioned, but without regulatory clarity, they can have a chilling effect on entrepreneurs and investors in the space. That said, these enforcement efforts will likely continue until lawmakers add clarity by defining what taxpayers owe, what counts as security, and answering other questions.

    What Does It Mean For You?

    Crypto traders and investors have been dealing with regulatory ambiguity for years. While the IRS has issued some guidance and lawmakers are pursuing changes, there are some steps that individuals can take to lower their risk and avoid any run-ins with the law.

    Crypto Legislation Enforcement
    Twitter Hack Pushes a Common Crypto Scam - Source: Twitter

    Some best practices to reduce your risk include:

    File Accurate Taxes

    Crypto traders and investors should ensure that they accurately report transactions each year to the IRS. Fortunately, ZenLedger can simplify the process by aggregating transactions across exchanges, calculating capital gains or losses, and even pre-filling popular tax forms for your accountant.

    Be Wary of Scams

    Crypto remains a relatively unregulated market that’s subject to a lot of regulatory oversight. By being aware of potential scams, traders and investors can avoid digital assets that end up subject to regulatory concerns and minimize their chances of losing money to either fraud or regulatory actions.

    Consult an Expert

    Individuals that aren’t sure about the legal consequences of a particular action should consult an expert to provide an opinion. If you aren’t sure about the legitimacy of a particular crypto project, consult a financial advisor or crypto expert for a second opinion to avoid fraud.

    The Bottom Line

    The crypto industry operates under a patchwork of legislation that creates a lot of ambiguity for traders, investors, and entrepreneurs. While lawmakers work to provide more clarity, traders and investors should ensure that they accurately calculate what they owe the IRS, remain wary of scams, and consult experts when they need help.

    If you’re looking for ways to reduce your tax liability, ZenLedger can help find tax-loss harvesting opportunities at any point during the year.

    FAQs

    1. Is crypto regulated by the SEC?

    The authority of the U.S. Securities and Exchange Commission is restricted to securities and products or asset managers that might invest in cryptocurrencies.

    2. Will there be regulations on Crypto?

    Currently, cryptocurrencies are regulated in the US by several institutions: CFTC, SEC, IRS, making it difficult to create overarching regulatory guidelines.

    3. Will the United States ban Cryptocurrency?

    An attempt to curb Bitcoin's growth might slow economic growth in the U.S. and could also threaten the status of the dollar as the world's reserve currency.

    ZenLedger easily calculates your crypto taxes and also finds opportunities for you to save money and trade smarter. Get started for free now or learn more about our tax professional prepared plans!

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