On June 7, 2022, Senators Cynthia Lummis (Republican, WY) and Kirsten Gillibrand (Democrat, NY) introduced a highly anticipated bill, the Responsible Financial Innovation Act, which would if enacted establish a regulatory framework for digital assets and cryptocurrency.
Also included in the bill are a number of tax provisions that have been generating attention and support from various stakeholders. The proposed tax provisions would, if enacted, address at least a few of the industry’s largest complaints.
“Broker” definition
The Infrastructure Investment and Jobs Act enacted in November 2021 greatly expanded the reporting regime for cryptocurrency and digital assets, beginning in 2023.
With regard to the definition of “brokers” from the Infrastructure bill, opponents argued that the language was too broad and would capture developers, miners, and other industry players.
To remedy this complaint, the Lummis-Gillibrand bill would provide a much narrower definition of the term “broker” – “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.”
This new definition falls short of specifically limiting the reporting regime to cryptocurrency exchanges, but nevertheless seemingly excludes software and hardware developers, transaction validators, and individuals involved in developing digital assets for public use (provided they are not customers of such developer), which would be welcome news to the industry.
Importantly, if enacted, the bill would delay by two years the reporting requirements for those included in the broker definition (to 2025).
Mining and staking rewards
Since 2019, the IRS(Internal Revenue Service)’s position has been that cryptocurrency earned through mining is subject to tax when the rewards are earned, and the IRS seemingly would apply the same result to rewards earned through staking.
The bill would, if enacted, provide for a very different treatment of mining and staking rewards – that is, mining and staking rewards would not be taxable upon receipt, but rather only when the rewarded cryptocurrency is disposed of in a taxable transaction.
Specifically, the bill would amend Section 451 to provide that, “in the case of a taxpayer who conducts digital asset mining or staking activities, the amount of income relating to such activities shall not be included in the gross income of the taxpayer until the taxable year of the disposition of the assets produced or received in connection with the mining or staking activities.”
De minimis exception for cryptocurrency transactions
Additionally, the bill contains a de minimis exception, which gives cryptocurrency transactions parity with foreign currency transactions. This provision would establish an exclusion from gross income for gain realized from digital asset transaction where the gain is $200 or less, where the taxpayer is an individual, and the digital asset is disposed of in a “personal transaction.”
The exception would provide many taxpayers with a less burdensome tax accounting exercise and could encourage retailers to accept cryptocurrency as tender for transactions.
Security loans
Loans of cryptocurrency would be taxed in accordance with the securities lending rules under Section 1058, allowing such loans to be made without realized gain or loss in the exchange.
Safe harbors for securities and commodities trading
The bill would specifically extend to cryptocurrency and digital assets the current safe harbors for securities and commodities trading activity made by non-US persons who use a US financial institution their trading (under specified conditions, including that the non-US person does not have an office in the United States).
The extension of the safe harbor rule is a welcome reprieve for non-US persons with concerns that their trading of cryptocurrency in the United States would submit them to US tax and tax reporting.
DAOs
The bill provides that, for tax purposes, the default classification of a DAO is “a business entity which is not a disregarded entity.”
Practically, this results in DAOs having an individual tax identity and associated tax return filings. Any tax and reporting changes brought about by this provision would be effective after December 31, 2022, if the bill is enacted.
The next step for the bill is to advance in Congress.
The final bill may contain considerable revisions to the current version
As crypto market expands and more people join in this new sector, overall postion to crypto would be more optimistic preventing some critical bad impacts to traditional finance and protecting users.
This change would be good, but also take away some good chances and this policy should be more faster and accurate as crypto world evolution would be very speedy as we have been.