To remain competitive, companies find themselves increasing their efforts to digitally transform their businesses by developing new offerings based on emerging technologies and integrating these technologies into existing product and service offerings.
This is our second monthly bulletin for 2020, aiming to help companies identify important and significant legal developments governing the use and acceptance of blockchain technology, smart contracts and digital assets. In this issue, we feature our Spotlight on Developments in Asia, and expand our reporting to include significant international developments.
While the use cases for blockchain technology are vast, from copyright protection to voting, most of the current adoption is in the financial services section and the focus of this bulletin will be primarily on the use of blockchain and or smart contracts in that sector. With respect to digital assets, we have organized our approach to this topic by discussing it in terms of traditional asset type or function (although the types and functions may overlap), that is, digital assets as:
- Virtual currencies
- Deposits, accounts, intangibles
- Negotiable instruments
- Electronic chattel paper
- Digitized assets
Digital assets can themselves be assets or instead can reflect the ownership of an underlying asset. For example, electronic records that are the equivalents of negotiable instruments and electronic chattel paper would be digital assets, as would an electronic recording of a security interest in the underlying asset, such as recording title to real or personal property and the use of tokens to represent revenue streams from otherwise illiquid assets such as patents and commercial real estate (sometimes referred to as a "tokenized" or digitized asset).
In addition to reporting on the law and regulation governing blockchain, smart contracts and digital assets, this bulletin will also report on the legal developments to support the infrastructure and ecosystems enabling the use and acceptance of these new technologies.
Each issue will feature in-depth insight on a timely and important current topic. In this issue, we look at some of the tax issues arising around cryptocurrency: in the US, reporting of charitable donations of cryptocurrency assets, and in the UK, new guidance from HRMC.
For related information regarding digital transformation, please see our monthly bulletin, eSignature and ePayment News and Trends.
SEC Commissioner Peirce proposes bold new safe harbor for digital tokens
On February 6, 2020, SEC Commissioner Hester Peirce gave a speech in which she proposed a regulatory solution for crypto entrepreneurs through new Securities Act Rule 195 and several related Exchange Act rules. The proposed rules would create a three-year safe harbor during which token projects that meet certain requirements could enjoy exemption from SEC registration and other requirements. Peirce explained that network creators currently may eschew certain token projects that temporarily, while in development, might trigger application of the securities laws − even though, once fully mature, the ultimate token products might not constitute securities. To encourage innovation, the proposed laws would provide the time-limited exemption from registration to allow creators to develop their networks to “maturity,” ie, either decentralization or functionality, at which point the underlying tokens may have transcended classification as securities and thus application of SEC regulation, allowing for certain token transactions without required registration as a broker-dealer or exchange. Commissioner Peirce’s proposed rules have received significant attention, with some speculating that such rules could stimulate the US market for digital assets. In this article, we summarize the impetus for Commissioner Peirce’s proposed rules, the rules themselves, and their possible fate and impact. Read more.
FINRA 2020 priorities will include digital asset activities. On January 9, the Financial Industry Regulatory Authority released its 2020 Risk Monitoring and Examination Priorities Letter, describing the areas on which FINRA intends to focus its risk monitoring, surveillance and examination programs in 2020. In its letter, FINRA reflected on the increasing number of firms seeking to engage in digital asset-related activities, including private offerings of digital asset securities, secondary trading platforms, trades of products such as private funds investing in cryptocurrencies, and clearance and settlement of digital asset transactions, and stated that it would continue to work with the SEC to understand such businesses and determine how the securities laws apply. FINRA noted that, when reviewing its member firms’ digital asset activities, it will consider, among other things, whether firms have obtained appropriate FINRA permission for the activities; whether they provide accurate, fair and balanced presentations in marketing materials and communications; and whether firms have controls and procedures to support digital asset transactions. For more detail, see our client alert.
Treasury Department identifies digital assets as a key vulnerability in National Strategy for Combating Terrorism. On February 6, the Department of the Treasury published the National Strategy for Combating Terrorist and Other Illicit Financing 2020, explaining how illicit proceeds enter the US and the US financial system and how the AML/CFT framework may be strengthened against such vulnerabilities. The report identifies as one of the most significant vulnerabilities, “the growing misuse of digital assets and failure of foreign jurisdictions to effectively supervise digital asset activity,” and advises key actions to strengthen the US legal framework, including “revising, clarifying and updating our regulatory framework to expand coverage of digital assets.”
White House budget includes financing and legislation to address virtual currency and cybercrime threats. On February 11, the White House announced the Trump Administration’s budget for fiscal year 2021, “A Budget for America’s Future – President’s Budget FY 2021,” which includes $127 million for the Financial Crimes Enforcement Network to prevent and address financing of terrorism, money laundering, and other crimes, and expand its efforts to combat emerging virtual currency and cybercrime threats. The budget also proposes legislation to return the US Secret Service to the purview of the Department of the Treasury to create new efficiencies in the investigation of these crimes and threats.
GAO publishes report on IRS Virtual Currency Guidance. On February 12, the US Government Accountability Office (GAO) issued a report entitled “Virtual Currencies: Additional Information Reporting and Clarified Guidance Could Improve Tax Compliance.” The report discusses the current challenges to tax compliance for virtual currency users and recommended actions the IRS can take to improve tax compliance and increase reporting. Recommendations included clarifying the 2019 IRS-provided guidance and increasing information reporting, as well as recommending that FinCEN work with the IRS to provide guidance on the application of the foreign account reporting requirements of the Bank Secrecy Act apply to virtual currency.
Federal Reserve speaks on the future of payments. On February 5, Lael Brainard, member of the Board of Governors of the Federal Reserve System, spoke at the Symposium on the Future of Payments, outlining issues for consideration with the digitalization of payments and currency, including calls for the public sector to “engage actively with the private sector and the research community” over evaluation of potential needs for new guardrails and existing regulatory parameters.
- Bigtech and Bfintech’s entry into payment systems - Bigtech and fintech players bring benefits to payment systems, including heightened innovation, introduction of new business models, increased competition, enhanced product offerings and lower transaction costs. However, potential risks exist with this transformation, as the Federal Reserve has limited oversight of nonbank players who reduce or eliminate the nexus to banks through use of digital wallets and digital currencies.
- Real-time retail payment system - Due to the critical need to provide safety and security while increasing speed and efficiency, the Federal Reserve is building the FedNow Service as a new payments rail and, coupled with the Clearing House’s RTP, will “mov[e] the U.S. banking system to real-time retail payments.” FedNow is currently under comment review.
- Digitalization of currencies – As a medium of exchange, private digital-currency-based payment systems could “magnify concerns surrounding illicit activity and consumer risk, while potentially creating challenges for the public sector’s ability to safeguard financial stability and use monetary policy to buffer the economy.” With Stablecoins, it is still not clear what consumer protections are available or “how much price risk consumers will face.”
- Central bank digital currencies (CBDC) – Due to rapid adoption globally of stablecoin payment systems and the need for stability, central banks are evaluating and researching “issu[ing] digital currencies in order to maintain the sovereign currency as the anchor of the nation’s payment systems.” While 80 percent of surveyed central banks are engaged in some type of CBDC work, there are policy and design issues, and legal considerations, the US must consider in determining if there would be overall net benefits from a US CBDC.
House holds subcommittee hearing on the use of virtual currency to finance terrorism. On January 15, the House Committee on Financial Services Subcommittee on National Security, International Development and Monetary Policy held a hearing entitled, “A Persistent and Evolving Threat: An Examination of the Financing of Domestic Terrorism and Extremism” where witnesses provided unique perspectives on how virtual currencies are used with domestic terrorism, discussed the challenges financial institutions and law enforcement officials have in tracking the financing of domestic terrorist groups, and gave recommendations on countering this financing.
Federal Reserve Board announces two new fintech innovation offerings. On December 17, the FRB announced:
- The launch of a new fintech innovation section of its website to provide a “resource for stakeholders interested in engaging with the System on innovation-related matters.” The website includes the supervisory information, speeches and publications, and recent developments for fintech innovation within the Federal Reserve and
- The FRB is hosting a series of fintech innovation office hours for banks and fintech firms to meet with Federal Reserve staff members in various locations across the US to discuss fintech developments and ask questions. Fintech innovation office hours will kick off at the Federal Reserve Bank of Atlanta on February 26. Appointments are required and may be made through the website.
Illinois Blockchain Technology Act now in effect. The Illinois Blockchain Technology Act took effect January 1, defining “blockchain” or “smart contracts” and recognizing the enforceability and admissibility of smart contracts and other blockchain-based records. The act also states that such records are exempt from local taxation.
Michigan adds “distributed ledger technology” to law prohibiting forgery of certain records. On December 31, 2019, the governor of Michigan approved HB4106, which makes it a crime to falsely make, alter, forge, or counterfeit certain public records made utilizing distributed ledger technology.
Vermont Agency of Agriculture to implement blockchain platform for hemp supply chain. On February 10, the Vermont Agency of Agriculture, Food and Markets announced it will utilize a blockchain-based platform provided by a Vermont-based company for the 2020 hemp season for “secure soil-to-shelf hemp registration, licensing and enforcement tracking” for efficient management of the hemp program and active monitoring of the state’s hemp quality.
SEC v. Telegram Group, Inc. − court battle continues to progress with dueling summary judgment motions and an upcoming preliminary injunction hearing. Both the SEC and Telegram/Ton Issuer (“Telegram”) have continued to press their cases before Judge Castel in the Southern District of New York. The SEC has sought summary judgment on Telegram’s alleged liability for conducting a non-exempt, unregistered securities offering, is pressing its case for a preliminary injunction, and has moved to strike Telegram’s first affirmative defense that the SEC’s interpretation of the term “investment contract” is unconstitutionally vague as applied to the yet-to-be-issued “Gram” tokens (Grams). Telegram has responded to the SEC’s motions and separately sought summary judgment on the basis that Grams are not a security and that Telegram did not conduct an illegal unregistered securities offering. Telegram asserts that, once launched, Gram will be either a currency or a commodity subject to oversight by the CFTC and will not be investment contracts. Telegram further contests the claim that the private placement was, in fact, a public distribution. Telegram is urging the court to reject the SEC’s “regulation through enforcement” approach. The SEC has responded to Telegram’s motion.
Separately, the Chamber of Digital Commerce has submitted an amicus curiae brief highlighting the stifling impact of the US’s lack of legal clarity and urging the court to examine the digital asset as distinct from the investment contract used to distribute it. The Chamber argues that digital assets may be the subject of an investment contract without being a security, and that the court should look to the facts and circumstances of the digital asset as opposed to the investment contract used to distribute the digital asset. Per the Chamber, if a digital asset is not inherently a security, then it is a commodity which may be the subject of a commercial transaction, and transactions involving such digital assets are not part of a securities distribution even if the digital assets were initially distributed pursuant to an investment contract.
On February 6, after the motions were fully briefed, Judge Castel issued an order inviting the Office of the General Counsel of the CFTC to express its views on the issues pending before the Court “in which its interests may be implicated.” The hearing on the SEC’s preliminary injunction motion is currently scheduled to begin on February 19.
For more information on the SEC’s Complaint and Telegram’s Answer, see our November 2019 issue.
SEC pursues blockchain platform for unregistered ICO. On January 21, the SEC announced that it filed a complaint this week against Opporty International Inc. and its founder, Sergii Grybniak, on allegations of a fraudulent and unregistered initial coin offering of “OPP Tokens.” Opporty raised approximately $600,000 from nearly 200 investors, allegedly by making false and material misrepresentations about the success of the platform, including claiming that the ICO was “SEC registered.” The SEC seeks permanent injunctions, disgorgement and civil penalties.
SEC charges convicted criminal with fraudulent ICO. On January 17, the SEC announced it filed a complaint against Boaz Manor, Edith Pardo, CG Blockchain Inc., and BCT Inc. SEZC, alleging that the defendants held a fraudulent initial coin offering as part of a “brazen scheme … to take over $30 million from investors’ pockets” by claiming to be developing and testing technology for hedge funds to record transactions on a blockchain. Manor also had been previously convicted of criminal charges arising from the collapse of a Canadian hedge fund. The SEC seeks disgorgement, plus interest, penalties and injunctive relief. In a parallel action, the US Attorney’s Office for the District of New Jersey announced criminal charges against Manor and Pardo.
SEC charges founder of digital currency trading company with fraud. On February 11, the SEC announced that it filed charges against Michael Ackerman and two business partners in connection with a cryptocurrency scheme. Ackerman raised at least $33 million by claiming to investors that he had developed a proprietary algorithm that allowed him to generate profits while trading in cryptocurrencies. The complaint alleges that Ackerman misled investors about the performance of his digital currency trading, his use of investor funds, and the safety of investor funds. Further, Ackerman has used $7.5 million of investor funds to purchase and renovate a house, purchase high-end jewelry and multiple cars, and pay for personal security services. The SEC seeks a permanent injunction, disgorgement plus pre-judgment interest, and a civil penalty.
Longfin CEO settles with SEC. The SEC announced on January 3 that Longfin Corp. CEO Venkata Meenavalli agreed to pay $400,000 in disgorgement and penalties to resolve SEC’s fraud action against him. The settlement is pending court approval. For more information on the case, see our October and June issues.
NY court sentences head of virtual currency trading company. On January 16, the US Attorney’s Office for the Eastern District of New York announced that Patrick McDonnell was sentenced to 33 months’ imprisonment after pleading guilty to wire fraud in June 2019 for defrauding investors in virtual currency. McDonnell, both as an individual and through his company CabbageTech, Corp. (AKA Coin Drop Markets), fraudulently promised investors trading advice on virtual currencies and to provide virtual currency investment services including trading on investors’ behalf, falsified financial statements, and stole the investments for his use. McDonnell was also ordered to pay $224,352 in restitution. We reported the indictment in our April 2019 issue.
Dismissal and refiling of suit against Tether and Bitfinex. A class action lawsuit against Tether and Bitfinex filed in Washington in November 2019 was voluntarily dismissed by plaintiffs and refiled in the Southern District of New York on January 8 with the addition of a new plaintiff. Plaintiffs allege the defendants “monopolized and conspired to monopolize the bitcoin market” through publishing inaccurate information on bitcoins, amounting to fraud, money laundering, and wire fraud through improperly issuing stablecoins. For further information on related cases against Tether and Bitfinex, see our October issue. For further information on the criminal cases pending against the defendants, see our May issue.
SPOTLIGHT ON ASIAN DEVELOPMENTS
Initial phase of digital currencies project complete. Reportedly, on January 22, the Hong Kong Monetary Authority and Bank of Thailand announced the completion of the initial phase of their sovereign digital currencies project. The next stage will be to conduct real-world testing of the blockchain-backed digital currency in cross-border payments. The HKMA and BOT launched the Project LionRock-Inthanon in November 2019, which will enable commercial banks to make cross-border payments using the sovereign digital currencies to settle bilateral trade for their corporate clients, thereby reducing the layers of institutions involved in fund transfer and settling foreign exchange. Currently, ten banks from Hong Kong and Thailand have been involved in the project. The HKMA hopes to expand the network to include more currencies and more central banks.
Japan to discuss CBDC with international central banks. Reportedly, in April the Bank of Japan will meet to discuss central bank digital currencies with five other central banks, including those of the UK, Canada, Sweden and Switzerland, and the European Central Bank. The BIS announced the formation of the group on January 21. According to a board member of the Bank of Japan, the development of a central bank digital currency is in response to an increasing public demand.
Payment Services Act now in effect. The Monetary Authority of Singapore on January 28 announced that the new Payment Services Act 2019 came into effect. The new law brings effectively all crypto businesses and exchanges based in Singapore under the current anti-money laundering and counterterrorist-financing regulatory regime. As such, crypto businesses are required to first register and then apply for a license to operate in Singapore. From the commencement of the PSA, crypto businesses will have a month to register with the Monetary Authority of Singapore.
Malaysian Securities Commission publishes guidelines on digital assets. On January 15, the Malaysian Securities Commission published its Guidelines on Digital Assets that establish the framework for digital token offerings in Malaysia. The Guidelines establish governance and capital requirements for prospective issuers, as well as requirements for offering documents. All token offerings must be carried out on IEO platforms approved by the Commission, and the guidelines describe the requirements platforms must meet to obtain approval. A later announcement will be made once the Guidelines become effective.
First projects announced for PBOC FinTech Sandbox. On January 14, China’s PBOC announced the first 6 projects for the PBOC FinTech Sandbox. The use cases for these six new projects include supply chain management and finance, credit lending and mobile point of sale, all of which are powered by either artificial intelligence or blockchain. They are either backed by state-owned banks or commercial banks, whether on their own or in collaboration with Chinese technology giants. It is anticipated that another 40 projects will be ready for the Sandbox in 2020.
China’s National Intellectual Property Administration (CNIPA) revised guidebook for blockchain. The CNIPA announced the revision of its guidebook regarding patent examination to specify processes for new technologies such as blockchain. The new rules require the CNIPA to consider the proposed technology, the challenges it seeks to address, and the expected technical outcomes as a package in its examination. The new rules came into effect on February 1.
Shenzhen Stock Exchange launches a blockchain index. The Shenzhen Stock Exchange announced the launch of a new index, named SZSE Blockchain 50 Index, in late December 2019, which comprises 50 of the largest publicly listed companies with blockchain ventures by market capitalization. Some of the big names in the Blockchain 50 Index include major Chinese brands.
Singapore government to cooperate globally in order to digitize trade. According to its press release, the Singapore government signed a cooperation agreement to form a consortia, comprising the International Chamber of Commerce and other key private, international companies, and leverage their respective blockchain know-how in order to reduce its reliance on paper-based trading in international trade and finance.
OTHER INTERNATIONAL DEVELOPMENTS
Basel Committee seeks comments on treatment of cryptoassets. On December 12, a global committee of banking supervising authorities and regulators, the Basel Committee on Banking Supervision, announced its publication of a discussion paper on the design of a prudential treatment for “crypto-assets.” The paper proposes a prudential approach to how regulators should incorporate cryptoassets, such as virtual currencies, into bank supervision, and proposes broad principles for how bank regulators should treat bank exposure to these assets. The Committee asserts that the growth of cryptocurrencies can raise bank financial stability concerns and increase risks faced by banks, and recommends that cryptoassets should not be eligible as financial collateral for purposes of credit risk mitigation, or as high-quality liquid assets for purposes of the bank’s liquidity coverage ratio or net stable funding ratio. Furthermore, according to the Committee, cryptoassets held in the trading book should be subject to a full deduction for market risk and credit valuation, reflecting a “high degree of uncertainty about the positive realisable value of crypto-assets in times of stress.”
The Committee seeks public comment and feedback by March 13 on the features and risk characteristics of cryptoassets, including:
- The features and risk characteristics of cryptoassets that should inform the design of a prudential treatment for banks' cryptoasset exposures and
- General principles and considerations to guide the design of a prudential treatment of banks' exposures to cryptoassets, including an illustrative example of potential capital and liquidity requirements for exposures to high-risk cryptoassets.
Committee on Payments and Market Infrastructures publishes report on wholesale digital tokens. On December 12, the CPMI, a global standards setter for central bank payment, clearing and settlement arrangements, announced it published a report on wholesale digital tokens. The report identifies a non-exhaustive list of considerations for the design of digital tokens for use in settling wholesale, large-value, transactions, made possible by distributed ledger technologies. Such considerations include availability, issuance and redemption, access, underlying assets/funds and claims, transfer mechanism, interoperability, and privacy and regulatory compliance. The report supports central bank money or commercial bank money as sufficiently safe and reliable to back digital tokens, and concludes that success would be determined by whether the digital tokens provide improved safety and increased efficiency over traditional settlement assets.
EU financial markets regulator identifies cryptoassets as a priority. On January 9, the European Securities and Markets Authority published its ESMA Strategic Orientation 2020-22, identifying as a priority the development of a sound legal framework for cryptoassets in conjunction with other governmental entities such as the European Central Bank and the European Commission.
France approves first ICO. On December 19, the France Financial Markets Authority (AMF) announced it granted its first optional approval for an initial coin offering (ICO). The approval was granted to French ICO, a company which has developed a platform for fundraising in cryptoassets, and is granted until June 1, 2020.
Switzerland approves first articles of incorporation allowing shares on the blockchain. Overfuture SA, a Swiss IT company, on January 29 announced that it received regulatory approval of its articles of incorporation, which establish company shares in digital form as tokens and the use of the blockchain as the shareholder registry for such shares. Overfuture issued a prospectus for its initial offering for more than 5 million token shares in an offering of up to €6,405,347.50.
Canadian Securities Administrators issue guidance on cryptoassets. On January 16, the Canadian Securities Administrators issued CSA Staff Notice 21-327, “Guidance on the Application of Securities Legislation to Entities Facilitating the Trading of Crypto Assets.” The CSA has determined that securities laws apply when such platforms provide users with a contractual right or claim to any underlying crypto asset. However, platforms will not be subject to securities laws when the following are met:
- The underlying crypto asset is not a security or a derivative and
- The contract for the purchase/sale/delivery of the crypto asset results in an obligation to make immediate delivery of the crypto asset and
- The contract is settled with the immediate delivery of the crypto asset to the platform user.
German BaFin publishes guidance on regulatory classification of crypto tokens and virtual currencies. On January 21, the German Financial Supervisory Authority (BaFin) published a “Second Advisory Letter on Prospectus and Authorisation Requirements in Connection with the Issuance of Crypto Tokens.” The guidance deals with the nature of crypto tokens and their classification as a security or an investment product under certain German financial laws. The guidance further informs market participants providing services related to tokens, dealing with tokens or publicly offering tokens, on potential obligations and authorization requirements.
UK amends anti-money laundering regulations. On December 20, the UK published Money Laundering and Terrorist Financing Regulations (Amendment) Regulations 2019 (the Amendment Regulations). The Amendment Regulations add providers of cryptoasset exchange services or custodian wallet providers as covered by UK money laundering regulations. On January 10, the UK Financial Conduct Authority (FCA) announced it is the anti-money laundering/counter terrorist financing supervisor for businesses carrying out certain cryptoasset activities.
UK court freezes 96 bitcoins after finding bitcoins to be property. In the case of AA and Persons Unknown, Case no. CL-2019-000746, the High Court of Justice Business and Property Courts of England and Wales enjoined Bifinex from the transfer of 96 bitcoins which were traced to the proceeds of a ransomware attack and required Bitfinex to provide information about the account holder. The opinion sets forth the court’s detailed analysis concluding that the bitcoins were property capable of being subjected to a proprietary and/or a freezing injunction.
WEF publishes Policy-Maker Toolkit on CBDC. On January 22, the World Economic Forum (WEF) published a Central Bank Digital Currency Policy-Maker Toolkit, which outlines a framework for policymakers’ consideration when determining whether to deploy a CBDC. The Toolkit assists policymakers’ evaluation of alternative solutions, risks, deployment and governance strategies, multistakeholder input and other salient factors.
WEF announces initiative to create a global regulatory framework for governance of virtual currencies. On January 24, the WEF announced plans to develop a Global Consortium for Digital Currency Governance to design a framework for governance of digital currencies. The goal of the group is to bring together representatives from the public and private sectors to call for regulatory approaches to achieve efficiency, speed, inter-operability, inclusivity and transparency in the use and governance of digital currencies.
Australia publishes national blockchain roadmap. On February 7, the Australian Department of Industry, Science, Energy and Resources published “The National Blockchain Roadmap: Progressing Towards a Blockchain-empowered Future.” The Roadmap highlights some opportunities blockchain technology can enable across the Australian economy, including in the financial sector, supply chains and logistics, agriculture, education, trusted credentials, and smart contracts.
FSI publishes survey results on policy responses to fintech developments including DLT and cryptoassets. The Financial Stability Institute of the Bank for International Settlements published on January 30 an insight paper entitled “Policy Responses to Fintech: a cross-country overview,” which reviews technological innovations in fintech and the policy response of multiple jurisdictions to such developments, including use of distributed ledger technology and implementation of cryptoassets, with the most common policy response being warnings and clarifications of regulatory treatment of such technology and assets.
New record keeping obligations under Canada’s changing anti-money laundering regime
In the crosshairs — New reporting entities caught by changes to Canada’s anti-money laundering regime
OCIE announces 2020 examination priorities
More from DLA Piper
DLA Piper is pleased to announce the release of a special report, "Cryptocurrency and its impact on insolvency and restructuring," prepared on behalf of INSOL International. Among its findings: the rise in the use of cryptocurrencies has begun to create difficulties for the administration of bankruptcy cases.
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Learn more about our Blockchain and Digital Assets practice by contacting any of our editors:
Margo H.K. Tank
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