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Crypto Bill’s Tax Measures Answer Many of Industry’s Demands

June 9, 2022, 8:45 AM

Tax measures included in a sweeping US crypto bill introduced this week would go a long way toward clarifying how the IRS treats digital assets and hand industry much of what it has been seeking, tax experts say.

The measures are included in broad-ranging legislation introduced Tuesday by Sens. Cynthia Lummis (R-Wyo.) and Kirsten Gillibrand (D-N.Y.) that aims to finally bring consistent regulation to the young and volatile asset class. They address the de minimis tax exemption for small transactions and clarify the definition of a broker for tax information reporting. They also address staking, mining, and airdrops—key areas for which the industry has been seeking clarity.

The bill was welcomed by the industry, but some critics said they were concerned about some of the tax measures.

“You would have a hard time proving that this kind of tax treatment exists elsewhere, or is justified by something else going on in the economy,” John Buhl, a senior communications manager at the Tax Policy Center, said of the bill. “I think it would be very unique—and quite possibly the only business where you’d have this kind of tax advantage.”

The de minimis exemption—for gains or losses on transactions of up to $200—would help to protect people who have a hard time gathering records to report all of their crypto at the end of the year for small personal transactions.

“It just makes cryptocurrencies literally more favorable for daily consumption than US dollars,” said Omri Marian, a tax professor at the University of California, Irvine, School of Law. “It’s just ridiculous.”

That approach might have originated from the way foreign currency transactions are treated, and how the IRS doesn’t make taxpayers report when they get favorable exchange rates, said Seth Wilks, director of government relations at TaxBit, a crypto software company. Wilks, who worked with Lummis and Gillibrand’s teams on the bill, said the legislation aimed at encouraging people to use crypto in their everyday lives.

In a bow to one of the industry’s main demands, the bill would also make clear that cryptocurrency rewards created through the processes known as “staking” and “mining” would be taxed when the rewards were sold, rather than when they were created. The question—at least when it comes to staking—is at the heart of Jarrett v. United States, one of the key tax cases currently confronting the industry.

That clarification would align the tax treatment of digital assets with that of other newly-created property, according to Alison Mangiero, the acting executive director for the Proof of Stake Alliance.

“A baker isn’t taxed when he bakes a loaf of bread—it’s when he sells it,” Mangiero said.

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While the passage of the bill before midterm elections is unlikely, the legislation represents an attempt to create more clarity in the industry and to guide future negotiations. But some critics have expressed concern about the tax avoidance opportunities that will potentially result from the bill.

In February, the Treasury Department shared plans to change who would be required to turn over client information to the IRS. The language defining a digital asset broker was criticized for being impossibly broad, asking for information from miners and stakers who didn’t have access to the required information.

The Lummis-Gillibrand bill would narrow the definition of a broker to “any person who (for consideration) stands ready in the ordinary course of a trade or business to effect sales of digital assets at the direction of their customers.”

“So this sort of fine tuning—who a broker is—makes it fairer, makes it easier to administer and makes it easier for the regulated parties, that is the people who fall under the definition, to be able to comply,” Stephen Turanchik, attorney at Paul Hastings, said. “And, frankly, for me as an adviser to advise my clients whether or not the law will apply to them.”

The proposed legislation would also require Treasury to issue guidance within a year on when various events involving cryptocurrency are taxable. That would include the protocol changes within a cryptocurrency network known as “forks,” as well as “airdrops” of cryptocurrency units to people.

“They’re pushing them to adopt guidance on forks and airdrops and, you know, things that people have been wanting guidance on for some time, so I think all of that is helpful,” Mangiero said.

To contact the reporters on this story: Erin Slowey at eslowey@bloombergindustry.com; Aysha Bagchi in Washington at abagchi@bloombergtax.com

To contact the editors responsible for this story: Patrick Ambrosio at PAmbrosio@bloombergindustry.com; David Jolly at djolly@bloombergindustry.com