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William Hinman, the Director of the Division of Corporation Finance of the Securities and Exchange Commission ("SEC") recently made remarks at a finance summit. In them, he stated that "current offers and sales of Ethers are not securities transactions."
This is big for crypto regulationy. Until now, we've only gotten guidance that Bitcoin isn't a security, and that every other token the SEC has seen is probably a security. But most of the initial coin offerings ("ICOs") that are brought to the SEC's attention are likely fraudulent. So there's got to be a good swath of tokens that are NOT securities, but veritable utilitarian assets. Most in the crypto industry have anticipated that the SEC would give more guidance by planting a flag on Ethereum. The fact a director has publicly stated Ethereum is probably not a security is seriously seriously seriously great news. Quick disclaimer - Hinman's statements do not reflect the SEC's final determination about Ethereum. As a Director, he is an influential person, but it's possible the SEC could ultimately come out the other way and say Ethereum is a security. But ok, why is it such a big deal? Guidance It's hard for the digital asset industry to develop when it knows regulation is aggressively ramping up. So Director Hinman's statements give us a better idea of the "utility-to-security" spectrum. As Director Hinman notes, don't look at the token - look at the circumstances around it. Too many ICOs claim they're not securities because their digital assets can only be used for utilitarian purposes. That's misguided - instead, they should be asking if people are buying into their ICOs with the expectation of selling the digital assets for profit. Based on Hinman's statements, the following suggest a digital asset is a security:
Digital Asset Conversion Director Hinman said he doesn't believe Ethereum is currently a security. But he makes an interesting statement before that: "putting aside the fundraising that accompanied the creation of Ether...." In other words, the launch and funding of Ethereum may have been centralized enough that it should be considered a security. But that means a digital asset can start as a security, and transition to non-security. This has been "theory" for a while, but Hinman's statements now strongly suggest it's the way forward. Which points us to... SAFTS If Ethereum is ultimately not a security, Simple Agreements for Future Tokens ("SAFT") are viable. There's been a lot of FUD since the SEC is targeting SAFTs. As a result, thought leaders have questioned whether the SAFT is a viable tool. SAFTs were built so that they're securities on the front-end, and non-securities on the back-end. But if the ultimate digital assets on the back-end are securities, there's no point in using a SAFT instead of a Simple Agreement for Future Equity ("SAFE"), and all the securities regulations it comes with on both the front- and back-end. But Hinman's statements strongly suggest SAFTs are indeed viable - an investment can begin as a security, and convert to non-security digital assets. Non-Securities Exchanges? If Ethereum is ultimately not a security, it's possible there can be crypto exchanges that only exchange utility tokens (note the word "exchange" and not "trade", as "trading" would be buying to profit). If an exchange doesn't have any securities...then it may not have to adhere to all the regulations securities exchanges have to (you can read about how crypto exchanges are regulated here). Next Up? The next big line to be drawn in the sand? Ripple. But the answer to whether XRP is a security might not come from the SEC... ** Reginald Young is a licensed attorney at Cole-Frieman & Mallon LLP, a boutique law firm at the forefront of cryptocurrency investment funds in San Fransisco. Want More? This Time Is Not Different: A Brief History of Private Money & Crypto Crypto Exchange Regulations
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"If a token forks in the woods...how should it be taxed?"
The taxation of forks is a vexing, unresolved issue right now. Consider for example, that a forked cryptocurrency is like a stock split (which is taxed one way) or a stock dividend (which is taxed another way). Or maybe it should be taxed like interest, and treated as a "capital" asset. The American Bar Association ("ABA") recently called on the Internal Revenue System ("IRS") to provide guidance on the issue. Specifically, the ABA has asked the IRS to provide a temporary safe harbor while they sort out just what the heck a fork is. The ABA proposed that the harbor treats forks as taxable events, and that the owner gets a basis of zero. This effectively means the owner is taxed on the full amount of the newly forked digital assets. Additionally, under these rules, the holding period starts at the time of the fork. This matters because once a "capital" asset is held for a year, it gets a much more favorable tax rate. So you could say that the ABA's proposal isn't exactly friendly to fork recipients. But since there's no guidance whatsoever on how to actually account for forks, it may be better for crypto holders to be able to comply with a tax law (even if it's unfavorable) than be potentially non-compliant depending on whatever the IRS later decides. Lately, there's been a flurry of activity from federal and state agencies targeting cryptocurrency exchanges lately. Exchanges have been the predicted "next target" by professionals in the industry that I've talked to ever since the Securities and Exchange Commission ("SEC") started sending letters related to initial coin offerings ("ICOs"). For example, New York sent a barrage of letters in April to crypto exchanges, probing for more information. Similar to the SEC's letters to investment funds, NY's letters seem to be aimed at educating regulators for the time being, rather than any type of actual enforcement or regulation. This makes sense; you can't regulate what you don't understand. But since digital asset exchanges are likely to only grow bigger and bigger (like how NASDAQ could add a crypto exchange soon) it's inevitable that regulators will start taking enforcement actions and actively regulating these exchanges with increasing frequency and intensity. But, as the crypto regulation refrain goes, this is OK because it's a crucial step in the growth, stability, and credibility of the crypto industry. But how, exactly, could exchanges be regulated?  Exchanges like Coinbase are experiencing increased regulation. Image courtesy of Wikipedia. SEC Exchange Registration
Exchanges must be registered with the SEC or qualify for an exemption. The most feasible exemption for crypto exchanges is the Regulation Alternative Trading System ("Reg ATS"). Reg ATS is the more likely option for crypto exchanges, since full registration with the SEC is extensive, and associated more with public stock exchanges like NYSE and NASDAQ. ATS exchanges don't need to fully register with the SEC. They must register as broker-dealers and make some initial filings and give some forms of notice to the SEC. But overall, they're more lightly regulated than fully registered exchanges. The SEC issued a release in March 2018 expressing concern over the fact that, currently, no crypto exchanges are registered or have qualified for the ATS exemption. Oops. Coinbase is leading the charge to be the first ATS, though. Internal Revenue Service ("IRS") The IRS has already imposed (some) user reporting requirements on crypto exchanges like Coinbase. How extensive their reporting and disclosure requirements will end up being are up for debate, given Coinbase successfully pushed back and limited the IRS request. FinCEN In 2013, FinCEN released a report on "virtual currencies". In this report, the agency determined that crypto exchanges must register as "money service businesses" ('MSBs"). One sub-type of MSB is a money transmitter, which you can read about more here, and is one of the main ways many crypto-related businesses are currently facing regulation. Any crypto exchange that has custody of users' cryptocurrencies will be regulated as an MSB, meaning it must register with FinCEN, collect certain information on its users, and have certain compliance policies in place. AML/KYC The Bank Secrecy Act ("BSA") imposes anti-money laundering ("AML") and know-your-customer ("KYC") requirements on exchanges. Many exchanges are currently self-imposing these requirements (think about that driver's license you had to upload when registering on Kraken). Generally, these requirements are aimed at identifying who actually owns assets and accounts, in order to minimize money laundering and/or other illegal behavior. Anti-Fraud The SEC may also target exchanges with anti-fraud tools. For example, this may include targeting exchanges that seem to be manipulating prices themselves. State Regulations And, of course, in addition to the above regulations, each state may impose its own regulations on exchanges that operate in-state. Want To Learn More? This Time Is Not Different: A Brief History of Private Money & Crypto Initial Coin Offering (ICO) Security Exemptions Questions? Comments? Let us know below! UPDATE - I spoke with a VC in San Francisco that confirmed he/she considerably saw the adverse selection effect in ICOs in 2017. As noted, this effect likely doesn't apply to all ICOs, but it is another layer to consider. *** Zhao Changpeng, the CEO of Binance, recently wrote a post claiming that initial coin offerings are "necessary" in light of the venture capital world. "[R]aising money through ICOs is about 100 times easier than through traditional VCs, if not more," he wrote. He focused on the absurdity of courting VCs, preparing business plans and presentations, negotiating terms with lawyers, VC control, and other "drawbacks" of the VC world. "ICO investors are early adopters (and learners)," Changpeng writes. Counter argument: VCs sift and winnow the good from the bad, so that companies that spurn VC funding and choose to do an ICO are actually subject to adverse selection. Viability Hurdle VCs function as hurdles many entrepreneurs need to face. Yes, it's additional work to making your idea reality. But maybe it's a necessary hurdle to proving your idea has some viability. Changpeng writes that having to come up with business plans and pitches is a "downside" of the VC process. But this ignores the fact that many entrepreneurs haven't fully formed their idea or even thought about logistically bringing it to market. The VC System Has Benefits Business plans force nascent companies to ask hard questions. For example, many tech entrepreneurs start by valuing their total addressable market with a top-down approach. They say "well, we think it's reasonable we could get 1% of the market, which is worth..." But that's lazy. That's the easy way. And a good VC will call it out by asking the hard questions, because they've likely seen the failure of companies that didn't ask those tough questions. "We can't get what we want so we're gonna make our own capital raising ecosystem!"  The VC system vets and snuffs out this self-deceiving naivety. It forces founders to learn skills like pitching, thinking through the true costs involved, actually verifying demand, etc. And VCs bring experience and networks. While ICO investors may be "early adapters", as Changpeng writes, what are they early adopters of? Most of them don't have the first-hand experience helping companies grow that VCs do. They don't add much value other than capital. They may be early adapters, but maybe they're early adapters of a system where the blind lead the blind. Throw irrational herd behavior on top of that and you should be skeptical that ICO investors can accurately choose and value tokens (see, for example, the current crypto market value despite very, very few validated test cases outside of a "store of value"). All an ICO needs to be successful is effective (...scammy?) marketing **cough** BitConnecct **cough**. Adverse Selection It's possible that ICOs attract the worst businesses, the ones that weren't good enough to get VC funding. There are many companies that truly and earnestly belong on blockchains and require native digital assets...but it's possible many token companies out there slapped a blockchain in their model so they don't have to face the hard, experience-earned vetting that venture capital requires. And so there may be an adverse selection ICO effect: it's possible the companies that choose ICOs over VC funding are companies that aren't viable since they couldn't (or wouldn't) have gotten funding under the VC model. Thoughts? Comments? Let us know below. Further Reading: This Time Is Not Different: A Brief History of Private Money and Crypto Initial Coin Offering (ICO) Security Exemptions Given increasing scrutiny from the Securities and Exchange Commission (“SEC”), Initial Coin Offerings (“ICOs”) are trying to limit their exposure to SEC regulation by placing themselves outside SEC jurisdiction. The main way ICOs are doing this (...or are unintentionally trying to do this) is by fitting into Regulation S (“Reg S”).  ICOs are trying to avoid the SEC via Regulation S Initial coin offerings ("ICOs") are facing increased regulatory scrutiny, and are likely to be seen as securities by agencies. We've written before about the securities exemptions ICOs may use to comply with the Securities and Exchange Commission (the "SEC"): Reg D, Reg CF and Reg A+.
Reg A+ (Tier 2, in particular) has started to get attention in the cryptocurrency world because it offers advantages over the others that make the most sense for digital assets. Well, there's good regulatory news (...which seems uncommon right now for most of crypto). The US House of Representatives has passed the "Regulation A+ Improvement Act" (the "Reg A+ Act") that increases the cap on investments under Reg A+. Increased Reg A+ Caps Reg A+ is divided into Tier 1 and Tier 2. If you issue an exempt security offering under Tier 1, you can raise up to $20m in a 12-month period. If you issue the offering under Tier 2, you can raise up to $50m in a 12-month period. The new Reg A+ Act would increase the investment cap by 50% ($30m for Tier 1, $75m for Tier 2). ICOs & Reg A+ Several ICOs have already used Reg A+: Gab, RideCoin and WeDemand. So Reg A+ has been shown to work in practice for crypto offerings. And with an increase in capital raising potential, it will likely increase. Limits There are still a few key limits on using Reg A+:
The cryptocurrency market is a prime targets for broker-dealer regulation. Brokers and dealers are people or businesses that are in the business of buying and selling securities. The formal definitions are below, but, in essence, a broker is an entity like E*Trade that acts as an intermediary between buyers and sellers. You want to buy, say, Tesla stock, so you go on E*Trade, place an order, and E*Trade finds someone selling it. This is the most traditional instance of a broker-dealer. The "less" traditional type of broker-dealer happens when a company is selling its own securities. If it's not an IPO, the company will want to promote the fact it's selling it's securities. It could hire a third party marketing agency that would go out and promote . . . but that would make the marketing agency "in the business" of buying/selling securities, even if it's not doing any buying or selling. It's still making those transactions happens, so the marketing agency would be a broker-dealer. So anyone a company has promote its securities would count as a broker-dealer. Broker-Dealer Requirements As a general rule, brokers and dealers are required to register with the SEC and joint a self-regulatory organization (“SRO”). The main US SRO is the Financial Industry Regulatory Authority (“FINRA”). There may also be state registration requirements, depending on your state. If you act as a broker-dealer without properly registering, the SEC or state securities regulators can seek significant monetary penalties and/or criminal sanctions. Also, they may require rescission (basically, an undoing of the investment). Why Broker-Dealer Laws Matter for Crypto Given Chairman Jay Clayton of the Securities & Exchange Commission’s (“SEC”) recent aggressive view that “every ICO I’ve seen is a security,” these broker-dealer laws (“B-D laws”) will apply to most cryptocurrencies, whether utility or not. Remember how a marketing agency that promotes a securities issuing would be a broker-dealer? Replace "securities issuing" with ICO. Now think of all the ads, tweets, emails, shills, etc. you have received and seen promoting ICOs. *cough* John McAfee *cough* Yeah . . . kind of a potentially big problem for crypto.  Don't worry, McAfee's days are probably numbered. Broker-Dealers, Defined
First off, remember that the SEC is viewing most crypto as securities. So when you see the word “security,” it would apply to a crypto or ICO that's being shilled. The Securities Exchange Act defines “broker” as any person:
Dealer is defined as any person:
The key difference is that brokers buy and sell securities for others, while dealers do so for themselves. Note that these definitions are really broad. You don’t have to be involved in the actual purchase or sale of a security, you just have be involved somehow. This can mean you promoted the security (read: ICO) or introduced the issuer to an investor. The “Finder” Exception The most cited exception to B-D registration is for a "finder," which is someone that finds investors or makes referrals. However, this is a very narrow exception. If a person has helped effect any securities (again, read: ICO) transaction more than once, this exception probably won't apply. The main factors in determining if someone is a “finder” or “broker-dealer” are:
The determination is made on a case-by-case basis, and if any of the factors weigh in favor of being a broker . . . you’re probably a broker. Again, circumventing B-D laws is not easy; these laws are meant to apply to a lot of situations. Other Exclusions There are a few other exclusions from this requirement to register. The most relevant for crypto are:
Best Options The most common way to be compliant with B-D laws is to hire someone as an employee, and pay them on a fixed, regular basis. That way they'll fit in the "associated persons of the issuer" exemption from registration. Often, these employment arrangements include bonuses. Whether this is transaction-based compensation that would trigger B-D registration depends on the circumstances, but it generally should not be tied to how much “business” an ICO promoter brings in. Key features include:
But Seriously, Consult Legal Counsel B-D activities have serious repercussions if handled incorrectly, and the exceptions are narrow. This is an area of law where anyone that does any investing-related activities should talk to a lawyer. Want To Learn More? This Time Is Not Different: A Brief History of Private Money & Crypto Initial Coin Offering (ICO) Security Exemptions Bitcoin Dip Frequency If a cryptocurrency or altcoin is a security, it must be offered to US investors in an offering registered with the Securities and Exchange Commission ("SEC") or fit into an exemption.
Registration can cost anywhere from hundreds of thousands of dollars to well over a million, and requires that you disclose a lot of information you may not want public. So finding an exemption is usually the preferred route. Right now, the main exemptions for securities offered in the US are: Reg D, Reg A+ and Reg CF. There is also Reg S for foreign securities offerings, and you’ll read about that in a separate post. Preemption & Disclosure Two quick notes before you learn about the exemptions:
Private Offerings Private offerings are the most common security exemption. The key feature that makes private offerings “private” is that you can’t “generally solicit” your offering, meaning you can’t publicly market it. There is a broad “private offering” exemption via Section 4(a)(2) of the Securities Act of 1933. But Section 4(a)(2) is open-ended and determined on a case-by-case basis, so most private offerings are done through Regulation D ("Reg D"). The digital asset industry is experiencing increased regulatory scrutiny.
For example, Jay Clayton, Chairman of the Securities and Exchange Commission (“SEC”) bluntly said in his Congressional testimony: “I believe every ICO I’ve seen is a security.” The upside of this attention is that you should want the Bitconnects of the world gutted by regulators. The downside is blockchain-based businesses need to start treating their native cryptoassets as securities. Even tokens created pursuant to a SAFT aren’t likely safe based on recent SEC stances and statements. As a result, you will likely see digital asset issuers increasingly relying on securities law exemptions. One option is for ICOs that wish to be compliant is to qualify as an exempt securities offering under Regulation Crowdfunding (“Reg CF”). Indeed, some ICOs, like Indeco, have already used this option since late 2017. Increasingly, traders use automated algorithms to execute trades, or at least track and flag indicators. And the use of this kind of code likely won’t slow down anytime soon.
In 2015, the Commodity Futures Trading Commission (“CFTC”) proposed Regulation Automated Trading (“Reg AT”) to deal with this trend. Reg AT Rules Reg AT is aimed at reducing market disruptions from automated trading. The best example is probably the May 6, 2010 “Flash Crash” when automated trading caused the S&P 500, Dow Jones and Nasdaq to crash and rebound almost 10% in 36 minutes (...tame compared to crypto, I know). If implemented, Reg AT could require pre-trad risk controls by:
The "pre-trade risk controls" would include requirements like:
The rule would also impose registration requirements on traders that electronically submit orders directly to a DCM, without routing them through a member of a derivatives (aka, futures) clearing organization. Chilling Concern Crypto-famous CFTC Chairman Christopher Giancarlo has expressed concern over Reg AT potential chilling effects. In legal context, "chilling" refers to the fact that too much regulation may slow or kill the development of innovation. E.g., regulation of crowdfunding is considered to have been implemented too quickly, stagnating the development of crowdfunding. Given Chairman Giancarlo’s favorable treatment of crypto, it’s not surprising he’s hesitant to clamp down before the CFTC has more time to watch the development of relatively new technology develop. Automated trading is valuable in and of itself, but all the algorithms, code and lessons learned in its development could transfer to other fields. It’s possible that a trading algorithm can pick up certain patterns that may surface in diseases, for example. Going Forward In early 2017, the CFTC extended the time period in which it was accepting comments on the proposed Reg AT to May 1, 2017. That day has come to pass, and no public developments have happened with Reg AT. Given that the Trump administration is keen on less regulation, and Chairman Giancarlo’s is hesitant to regulate new tech too quickly, we may not see any form of the proposed Reg AT implemented at all. It’s safe to say automated trading isn’t going anywhere. Eventually, regulations will need to be imposed to protect against flash crashes and fraud. But it doesn’t look like that will be happening any time soon. Want More? You can read about the history of non-government money like Bitcoin here You can read about Arizona's proposal to allow residents to pay taxes in crypto here |