THE TAXATION OF CRYPTO VIRTUAL CURRENCIES – IRS ENFORCEMENT INITIATIVE

Data from CoinMarketCap.com shows that the market capitalization for all crypto virtual currencies is currently at approximately 300 billion dollars. Of that amount bitcoin’s market share represents about 158 billion dollars, and the second largest cryptocurrency, ethereum/ether has about a 50 billion dollars market share.  Furthermore, virtual currency (ex. bitcoin, ethereum/ether) trading and the related block chain trading technology platforms have been dominated by retail investors which has played a significant role in pushing cryptocurrencies to record highs in 2017.  In that regard, Coinbase, the world’s largest on line crypto wallet, adds about 100,000 new users every week.

It is estimated that millions of U.S. taxpayer bitcoin/transactions have occurred, yet the IRS has stated that only 800 Americans had reported their bitcoin gains from 2013 through 2015. (https://www.the street.com/story/14257905/2bitcoim.investors-must-report-gains-to-the-irs.htmh)

Taking notice of what appears to be widespread tax noncompliance, the IRS is pursuing enforcement actions, and the IRS Criminal Investigation Division believes that virtual currency has increasingly become a tax evasion issue. Consequently, the tax defense community can expect more enforcement actions in the future.

In that regard, the IRS recently caused a U.S. District Court in San Francisco to issue a “John Doe Summons” to the Coinbase virtual currency exchange. The Coinbase summons seeks a wide variety of records including, for example, taxpayer identities for all of its customers engaging in transactions of $20,000 or more from 2013 to 2015, transaction logs, and correspondence.  Accordingly, taxpayers using virtual currency transactions involving Coinbase who are not in tax compliance should consult experienced criminal tax counsel as soon as possible for advice.

With respect to the substantive tax aspects of crypto virtual currency, the IRS addressed emerging issues of the growing digital economies and how existing general tax principles apply to transactions using virtual currency to pay for goods or services, or held for investment when it issued IRS Notice 2014-21.

IRS Notice 2014-21 begins by acknowledging that virtual currency that has an equivalent value in real currency, or that acts as a substitute for real currency, is referred to as convertible virtual currency. Bitcoin is one example of a convertible virtual currency – Bitcoin can be digitally traded between users and can be purchased for, or exchanged into, U.S. dollars, Euros, and other real or virtual currencies.

The Notice goes on to state that in general, the sale or exchange of convertible virtual currency or the use of convertible virtual currency to pay for goods or services in a real-world economy transaction has tax consequences that may result in a tax liability.

Specifically, the IRS has taken the position for federal tax purposes, that virtual currency should be characterized as property, not as a foreign currency recognized by any government.

Accordingly, when using bitcoins for example, to purchase products, if the bitcoin appreciated in value since it was acquired, there may be tax owed on the gain if the fair market value of property received in exchange for virtual currency exceeds the taxpayer’s adjusted basis of the virtual currency.

The character of the gain or loss depends on whether the virtual currency is a capital asset in the hands of a taxpayer. A taxpayer generally realizes capital gain or loss on the sale or exchange of virtual currency that is a capital asset in the hands of the taxpayer.  For example, stocks, bonds, and other investment property are generally capital assets.  A taxpayer generally realizes ordinary gain or loss on the sale or exchange of virtual currency that is not a capital asset in the hands of the taxpayer.  Investors and other property held mainly for sale to customers in a trade or business are example of property that is not a capital asset.  Thus, since characterized as property, normal tax consequences flow.  Therefore, if an employer pays an employee in virtual currency the employee must report the fair market value of the virtual currency measured in U.S. Dollars as compensation income as of the date of the virtual currency payment and the employer must report that value on a Form W-2.  Moreover, the fair market value of virtual currency paid as wages is subject to federal income tax withholding (FICA) and FUTA.

Many questions remain unanswered such as for example, whether virtual currencies need to be reported on foreign bank account reports and IRS Forms 8938 purposes.

Unfortunately, the IRS has not issued any further guidance up to date beyond IRS Notice 2014-21, but instead is pursing enforcement actions.

In view of the foregoing, those U.S. taxpayers who have engaged in transactions involving digital currency and have neglected to report their virtual currency (ex. bitcoin) related taxable gains, etc. to the IRS because they mistakenly thought they were not subject to the regulation, should contact experienced tax controversy type counsel to preemptively address their tax obligations and tax reporting requirements since the omission of income, or failure to file required tax returns, if willful, could be a criminal tax offense, even innocent or negligent non-compliance can subject a taxpayer to the assessment of tax, interest and severe civil penalties.