Marco Santori of Pillsbury Winthrop is a FinTech attorney for companies using digital currencies and blockchain technology. He is also the chairman of the Bitcoin Foundation’s Regulatory Affairs Committee and author of CoinDesk’s series on bitcoin law (find parts 1, 2 and 3 here).
Not a single month passed in 2015 without some groundbreaking new development in the world of digital currency regulation.
I’ll count down some of the ones that have been most influential on my own practice.
10. New Jersey: The Digital Currency Jobs Creation Act
In June, the New Jersey Digital Currency Jobs Creation Act was introduced into the New Jersey Legislature. 2015 brought us the beginnings of several new state initiatives, but this bill is the first to offer both carrots and sticks to digital currency businesses.
The sticks are modest: Instead of applying for a license, a digital currency business need only register with the state. The carrots are significant: significant tax breaks and fast-tracked operational incentives. (In full disclosure, I was honored to be chosen to draft the text of the act).
As of this writing, the legislation is still being considered in the state.
9. Hong Kong: No Need for Bitcoin Regulation
In March, the Hong Kong government laid to rest some concerns that the jurisdiction would crack down on digital currencies, when it released official guidance stating that bitcoins “do not pose a significant threat to the financial system”.
Thus, the Secretary for Financial Services and the Treasury concluded “there is no need to introduce legislation to regulate virtual commodities trading or to prohibit people from participating in such activities”.
Hong Kong is a local hub of digital currency activity, and this affirmative statement provides much-needed certainty to the businesses operating there.
8. CFTC: Bitcoins are Commodities
Since 2013, we’ve known that, for the purposes of anti-money laundering regulation, the federal government considers bitcoin to be a currency. But, in September, the Commodity Futures Trade Commission (CFTC) announced its first civil enforcement action against a bitcoin options trading platform, Coinflip.
In doing so, CFTC confirmed what many within the community had long believed: CFTC considers bitcoin to be a commodity subject to its supervision. As a result, Coinflip was liable for failing to register its bitcoin options exchange as a swap facility.
We can now expect CFTC to exercise oversight over bitcoin derivatives as well as mischief in their markets.
7. BSA Audits: FinCEN is Serious about AML Enforcement
If there were any doubt that the US federal government is serious about enforcing its digital currency regulations, 2015 put those doubts to rest. In May, the Financial Crimes Enforcement Network (FinCEN) announced its first round of Bank Secrecy Act audits of those companies which had registered as money transmitters in digital currencies.
FinCEN delegates its investigative activity for anti-money laundering (AML) violations to the Internal Revenue Service, which – as of this year – is now conducting regular audits of digital currency companies to ensure compliance.
Multiple companies in the space have reported that they are, in fact, under audit.
6. California: A License for Digital Currency Businesses
When it comes to moving money, or when it comes to technology, California is among the most important jurisdictions in the US.
Yet, it has refused to license bitcoin companies, refused to enforce its existing money transmission licensing laws against bitcoin companies operating in the state and refused to interpret how those laws might apply to the bitcoin industry in general.
Finally, in March, the state introduced AB 1326, an act that would explicitly bring bitcoin companies under licensing guidelines.
The bill has passed the California Assembly and will be reintroduced into the California Senate when it reconvenes in 2016.
5. SEC: Some Mining Contracts Are Securities
Just this month, we learned that bitcoin mining contracts can be securities, according to the Securities and Exchange Commission (SEC).
In its enforcement action against Josh Homero Garza and his bitcoin mining company, GAW Miners, the SEC alleged that Garza and GAW were engaged in a Ponzi scheme where they sold contracts called ‘Hashlets’ to the public.
The agency explicitly alleged that the Hashlets were securities regulated under the Securities Act, and therefore the SEC had jurisdiction over the fraud.
The SEC went out of its way to note that not all mining contracts are securities, and described the particular characteristics of the Hashlets that crossed the line.
4. New York: The BitLicense
If you’ve been following one story in bitcoin law this year, it’s probably been the ‘BitLicense’.
The BitLicense is the media-friendly name for an amendment to New York’s money services laws that sought to create a brand new technology license for bitcoin and other virtual currency companies operating in the state.
The BitLicense saga began in 2013, when the New York State Department of Financial Services (NYDFS) rolled out the red carpet for the glitterati of the bitcoin industry to offer their testimony on the new proposal.
The project was first welcomed by many as a shining badge of legitimacy for the industry. For some, though, it began to lose its luster in 2015, when it became clear that the language of the license would prove vague and ultimately over-inclusive.
The final license became effective in August of this year.
3. ItBit: An Alternative to the BitLicense
Where some zigged, others zagged.
In addition to offering a BitLicense, New York provided an alternative route to operating legally in the state. In 2015, the NYDFS awarded its first trust charter to a bitcoin business: the bitcoin exchange operated by itBit.
The trust structure puts itBit in a different position than that of a BitLicensee.
For example, where a BitLicense holder could merely take custody of a client’s bitcoins, itBit must act as a fiduciary to its clients, putting their interests above its own.
2. ECJ Bitcoin Sales Are Not Subject to VAT
In October, the European Court of Justice ruled definitively that sales of bitcoin are exempt from VAT. Following an initial dispute between a member of the bitcoin community and Sweden’s tax office, the European court first addressed the bitcoin taxation issue in June of last year.
The matter was elevated to the European court after a Swedish court found against the tax office and ruled bitcoin transactions there should be exempt from VAT.
Had the court decided otherwise, retail bitcoin activity might have been all but snuffed out in Europe.
1. UK Treasury: AML Rules for Wallets and Prudential Regulations for Exchanges
It may be a controversial call, but I believe the most important regulatory development of 2015 came from the UK.
In response to a call for comments, the UK Treasury announced in March that it plans to require digital currency exchanges in the UK to implement AML standards similar to other regulated financial intermediaries.
However, the prudential requirements (like minimum capitalization requirements and bonding) applicable to some financial services companies will only apply to custodial operations, and will be opt-in. Custodians won’t be required by law to satisfy the requirements, but those who do can tout a presumably confidence-inspiring ‘seal of approval’ developed by the British Standards Institute.
This places UK businesses under a very different – and frankly much more reasonable – regime than their neighbors across the Atlantic.
2016: What to expect?
If 2016 proves itself even half as interesting as 2015, the industry is in for an eventful year. I can think of at least two developments to anticipate in 2016.
First, I predict we will see a federal Virtual Currency Transaction Report or VCTR. Admittedly, this is more of a report than a prediction, since FinCEN has suggested as much in informal comments.
Currently, bitcoin exchanges and custodial wallets must report any cash or coin (paper or metal) transactions above $10,000 in a so-called Currency Transaction Report (CTR). Because few digital currency companies have a brick-and-mortar presence, the industry as a whole files few CTRs.
This represents a blind spot in FinCEN’s financial surveillance. FinCEN has already dropped hints that it is considering extending the CTR requirement to bitcoin. We might see that as soon as this year. It might even be a part of a more comprehensive rulemaking.
Second, we will see states start to make laws concerning not only digital currency businesses, but also blockchain technology businesses. A tremendous amount of capital is flowing into the blockchain tech space.
I believe that states will begin making attempts to capture some of this revenue by offering incentives to businesses to home within their borders.
Computer law image via Shutterstock
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Disclaimer: The views expressed in this article are those of the author and do not necessarily represent the views of, and should not be attributed to, CoinDesk.
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