04 Sep Bitcoin Lawyers Argentina
Bitcoin Lawyers Argentina
Bitcoin is of interest to law enforcement agencies, tax authorities, and legal regulators, all of which are trying to understand how the cryptocurrency fits into existing frameworks. The legality of your bitcoin activities will depend on who you are, where you live, and what you are doing with it.
Bitcoin has proven to be a contentious issue for regulators and law enforcers, both of which have targeted the digital currency in an attempt to control its use. We are still early on in the game, and many legal authorities are still struggling to understand the cryptocurrency, let alone make laws around it. Amid all this uncertainty, one question stands out: is Bitcoin legal?
The answer is, yes, depending on what you’re doing with it.
What are the concerns about bitcoin?
Government agencies are increasingly worried about the implications of bitcoin, as it has the ability to be used anonymously, and is, therefore, a potential instrument for money laundering. In particular, law enforcers seem to be concerned about the decentralized nature of the currency.
As early as April 2012, the FBI published a document highlighting its fears around bitcoin specifically, drawing a distinction between it and centralized digital currencies such as eGold and WebMoney. It voiced concerns that while US-based exchanges are regulated, offshore services may not be. In addition, this could be a haven for criminals to use bitcoin for illicit activities without being traced.
Bitcoin was the only form of currency accepted on Silk Road. It is an anonymous marketplace that was only accessible over the TOR anonymous browsing network. Then, the FBI closed it in October 2013. Silk Road was commonly used to sell goods that are illegal in many countries, including narcotics. This prompted US Senator Charles Schumer to shut down the site. Explicitly linking it to bitcoin, he called it a “surrogate currency.”
Who regulates it?
Regulators will vary on a per-country basis, but you can expect to see national financial regulators interested in bitcoin and other virtual currencies, potentially along with regional regulators at a sub-country level.
In the US, the Financial Crimes Enforcement Network (FinCEN), which is an agency within the US Treasury Department, took the initiative. It published guidelines about the use of virtual currencies. FinCEN’s March 18, 2013 guidance defined the circumstances under which virtual currency users could be categorized as money services businesses (also commonly known as a money transmitting businesses or MTBs). MTBs must enforce Anti-Money Laundering (AML) and Know Your Client (KYC) measures, identifying the people that they’re doing business with.
The US Commodity Futures Trading Commission (CTFC), which looks after financial derivatives, hasn’t announced regulation yet but has made it clear that it could if it wanted to.
The US Securities and Exchange Commission (SEC) hasn’t issued solid regulations on virtual currencies, but its Office of Investor Education and Advocacy published an investor alert to warn people about fraudulent investment schemes involving bitcoin. In particular, it warned of Ponzi schemes, after charging Texas resident Trenton T Shavers (aka ‘pirateat40’), founder and operator of Bitcoin Savings and Trust, with allegedly raising 700,000 bitcoins by promising investors up to 7% weekly interest.
The SEC case has forced the legislative branch of government to consider bitcoin’s legal status. Shaver’s had claimed that he could not be prosecuted for securities fraud, as bitcoin wasn’t money. However, Judge Amos Mazzant issued a memorandum arguing that bitcoin can be used as money.
In August 2013, the US Senate wrote to several law enforcement agencies, inquiring about the threats and risks relating to virtual currency. The letters included this one to the Department Of Homeland Security, fretting about the lack of a paper trail for regulators and enforcement agencies to follow for virtual currency transactions. It requested policies and guidance related to the treatment of virtual currencies and information about any ongoing strategic efforts in the area.
The Department of Homeland Security was the most worried about the criminal threat from the illicit use of bitcoin. But the Department of Justice, the Federal Reserve and the Department of Justice all acknowledged the legitimate uses of virtual currencies. The SEC argued that “any interests issued by entities owning virtual currencies or providing returns based on assets such as virtual currencies” were considered securities and thus fell under its remit.
Each US state has its own financial regulators and laws, and each approaches bitcoin differently. California and New York have been particularly aggressive in their pursuit of bitcoin-related organizations, for example, while others, such as New Mexico, South Carolina, and Montana, don’t regulate money transmitting businesses.
In May 2013, California’s state financial regulator issued a letter to the Bitcoin Foundation, a nonprofit organization designed to promote Bitcoin, warning it that it may be a money transmission business, and threatening people there with potential fines and jail time.
Then, on August 2013, the New York Department of Financial Services issued subpoenas to 22 bitcoin-related companies, although these letters were more conciliatory, asking for a dialogue to develop appropriate regulatory guidelines for the digital currency industry. Since then, New York has acted more positively, with the state’s Superintendent of Financial Services, Benjamin M. Lawsky, announcing that it will accept applications for digital currency exchanges. Lawsky indicated that these businesses will be regulated under New York regulation, which he committed to having in place by the end of the second quarter of 2014.
Private sector companies (banks)
Several banks have stopped accounts owned by people operating bitcoin exchanges. In at least one case, this was because the bank was unhappy that the company involved did not have a money transmitting business (MTB) account.
The US Senate addressed the issue of banking and federal regulation in a set of hearings held in November. The hearings were exploratory in nature and may not lead to legislation, but feedback from agencies included acknowledgments that there were legitimate uses for the coin.
What this means to you
The legality of bitcoin depends on who you are, and what you’re doing with it.
There are three main categories of bitcoin stakeholder. Someone may fall under more than one of these categories, and each category has its own legal considerations.
These are individuals that obtain bitcoins, and either hoards them or spend them. Under the FinCEN guidance, users who simply exchange bitcoins for goods and services are using it legally.
FinCEN: “A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter.”
According to the FinCEN guidance, people creating bitcoins and exchanging them for fiat currency are not safe.
FinCEN: “By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter.”
Miners seem to fall into this category, which could theoretically make them liable for MTB classification. This is a bone of contention for bitcoin miners, who have asked for clarification.
Exchanges are defined as MTBs.
FinCEN: “In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.”
In 2009, the US Internal Revenue Service (IRS) posted information about the tax applications of using virtual currencies inside virtual economies, arguing that taxpayers can receive income from a virtual economy and may need to report it as taxable income.
However, the IRS has not yet posted guidance on ‘open flow’ virtual currencies that can be used outside of virtual economies. In a 27-page report [PDF] published in May 2013, the US General Accounting Office (GAO) called for more guidance from the IRS on this issue.
The IRS added that it was also looking at the potential tax compliance risks from anonymous electronic payment systems, and was working with other federal agencies on the topic.
In June 2013, the director of an IRS unit that investigates cyber threats also told the Financial Times that the use of “cyber-based currency and payment systems” to hide unreported income from the IRS is a threat that it was “vigorously responding to”. In short, don’t expect to evade taxes by earning bitcoins instead of fiat currency.
What is the industry doing?
The industry has responded to growing regulatory concerns in several ways.
- Several companies created a committee to form a self-regulatory called datadDATA, designed to encourage open conversation with regulators.
- The Bitcoin Foundation formed committees to offer legal guidance, steer policy, and liaise with regulators.
- Exchanges have been attempting to secure MTB licenses at the state and federal levels, and some have avoided doing business with US customers until this is resolved.
Few governments have announced any explicit intention to prevent bitcoin use completely. However, around the end of 2013 and start of 2014, there were a series of warnings and directives from central banks and regulators to varying degrees of severity. They ranged from the simple “be careful, bitcoin is neither regulated nor officially a currency”, to blocks on financial institutions and even raids on bitcoin businesses.
Many worry about the effect that large-scale bitcoin adoption might have on the stability of the financial system, especially if prices are volatile.
Currently, Iceland, Bolivia, Ecuador, Kyrgyzstan, and Vietnam are the only countries that seem to have some level of Bitcoin ban in place – see the list below for more details; while others such as Russia and Thailand seemed to have outlawed digital currencies then backtracked.
North America (Non-US)
Canada has announced that it will tax Bitcoins in two ways. Transactions for goods or services will fall under its barter transaction rules. But its “Transactions in Securities” document says that profits from commodity transactions could be income or capital.
The Canada Revenue Agency (CRA) outlined its position on the taxation of digital currencies. It highlighted out the differences between personal and business activities.
In essence, Canada will view the matter subjectively, on a case by case basis. When authorities deem the activities were undertaken for profit, the taxpayer’s income will be taxed with reference to the taxpayer’s inventory at the end of the year. Barter transactions are allowed, but the CRA states that the value of goods or services obtained by bartering digital currencies must be included in the taxpayer’s income, if business-related. Losses through theft or embezzlement may be deductible.
El Banco Central de Bolivia, the central bank of the South American nation, has officially banned any currency or coins not issued or regulated by the government, including bitcoin and a list of other cryptocurrencies including the same coin, per coin, Quark, prime coin, and leather coin.
Issued on 6th May 2014, the new policy states: “It is illegal to use any kind of currency that is not issued and controlled by a government or an authorized entity.” The bank went on to say that citizens are prohibited from denominating prices in any currency that is not previously approved by its national institution.
In April 2014, the Receita Federal, Brazil’s tax authority, established how it would treat the holding and usage of Bitcoin and other digital currencies. Taking a stance similar to the one announced by the US Internal Revenue Service in March, Brazil is considering digital currencies as financial assets, with the Receita Federal imposing a 15% capital gains tax at the time of sale. However, there are some key differences that have been generally viewed positively by bitcoin users in the country.
Those who sell fewer coins with a value of fewer than 35,000 reals (R$), which is almost $16,000, will not have to pay the tax. This means that bitcoin users in Brazil won’t have to calculate capital gains taxes when making small consumer purchases. The Receita Federal is also requiring annual account declarations from those who possess more than R$1,000 in digital currency holdings.
The Superintendencia Financiera de Colombia (SFC) may be close to outlawing bitcoin transactions in the South American country, a newspaper claimed on 20th March 2014. The report said that the SFC, in conjunction with Banco Central de Colombia, Colombia’s central bank, and the Ministerio de Hacienda y Crédito Público, the executive body responsible for budgetary concerns, is preparing to issue a document outlining the government’s stance on bitcoin and bitcoin-related activities.
A source connected to the Colombian Ministry of Finance told El Tiempo that the ban may very well focus on bitcoin handling activities, rather than outright purchase by consumers. CoinDesk is monitoring the situation and will update this guide as the story develops.
In July 2014, the National Assembly of Ecuador effectively banned Bitcoin and other decentralized digital currencies while, in a novel move, establishing guidelines for the creation of a new, state-run currency. The law gives the government permission to make payments in ‘electronic money’, but digital currencies like Bitcoin will now be prohibited.
On 12th March 2014, the Bank of Mexico issued its first statement on the issue of cryptocurrencies. The bank warned the public via a statement on its website about the “the inherent risks of acquiring these assets and using them as substitutes for conventional methods of payment”. The warning was generally similar to those issued by many of the world’s central banks in recent months.
However, most notable were potential restrictions for domestic financial institutions, that some reports implied might strangle bitcoin businesses. Translations of the statements suggest that financial institutions regulated in Mexico “are not authorized to use or carry out any operations with [digital currencies]”. Whether that means banks may not deal directly in cryptocurrencies, or may not have relationships with companies that deal with them, is not yet clear.
The EU’s banking regulator, The European Banking Authority (EBA), issued a warning statement on 13th December 2013 warning of investment risk, but focusing mainly on issues of fraud, tax evasion and other crime connected to virtual currency use.
The EBA published an ‘opinion’ warning for financial institutions to stay away from digital currencies. The EBA set out new requirements for the regulation of digital currencies. Also, it instructed financial institutions not to buy, hold or sell digital currencies until new rules are in place.
The National Bank of Belgium has no intention of intervening in bitcoin business or regulating it, says the Belgium Bitcoin Association. However, on 16th January 2014, the central bank issued a joint warning with the Belgian Financial Services and Markets Authority (FSMA). It stated that digital currencies are not issued by any central authority. Therefore, as such, they are at risk of volatility, fraud, and business non-acceptance.
Bulgaria’s National Revenue Agency (NRA), the government organization in charge of administering state taxes and social security contributions in the eastern European nation, has issued new taxation guidelines for the digital currency. In a post on 2nd April, the NRA indicated that income from the sale of digital currencies such as bitcoin will be treated as income from the sale of financial assets and taxed at a rate of 10%. Effectively, earnings from bitcoin trades are subject to taxation as ordinary and corporate income in Bulgaria.
Long an offshore financial services hub, Cyprus has entered the bitcoin fray with enthusiasm and aims to be a hub for bitcoin business in the EU and surrounding territories. It is also home to the world’s first brick and mortar bitcoin savings institution, Neo(and its payment processing partner Bee). Still, the Central Bank of Cyprus issued a statement on 7th February 2014 warning about bitcoin’s volatility and reminding citizens it is not recognized as legal tender.
So far the Danish authorities have stopped short of regulating digital currencies. Although a stern warning compared bitcoin et al. to “glass beads.” Indeed, it is a reference presumably to an ancient method of trading baubles of little worth.
More significant is the nation’s stance on the taxation of bitcoin for general transactions. However, since it is not “real”, physical money, Bitcoin is considered a private asset and any gains are tax-exempt. Similarly, losses are not deductible. However, for companies whose sole business is trading or speculating in digital currencies, gains are subject to taxation.
Estonia’s central bank has not issued a formal statement on bitcoin. However, one of its managers wrote to Bloomberg on 31st January 2014 calling bitcoin a “problematic scheme.” Also, it warned investors about all risks. Additionally, it reminded people that bitcoin businesses tend to disappear overnight with customers’ money.
Finland issued a regulatory guide to bitcoin in September 2013, which imposed capital gains tax on bitcoins, and taxes bitcoins produced by mining as earned income.
In January 2014, bitcoin was classified as a commodity. The Scandinavian country’s central bank declared that it did not meet the definition of a currency.
The French Senate held hearings into bitcoin and digital currencies in mid-January 2014. Above all, the focus was mainly on the opportunities of the new technology and how existing laws and organizations could help to catch wrongdoers. Making bitcoin illegal was not an option, according to observers, and France needed to catch up to neighboring countries in its approach.
More recently, on 5th April, the French Ministry of Economy and Finance said that, while bitcoin is not officially recognized by the state, revenues from digital currency transactions are subject to taxation.
“All taxpayers have to declare all their revenues, including those originating from abroad. This said, there is a certain tolerance [from the state authorities] regarding minor and irregular revenues, for instance from occasional sales,” a spokesperson for the French Ministry told Le Monde.
Germany is perhaps the most advanced country when it comes to regulating Bitcoin and virtual currencies. Although some issues remain unresolved, the German government has exempted bitcoin transactions held for over one year from 25% capital gains tax. It also categorized bitcoin as a form of private money. In early January 2014 the Bundesbank repeated a warning that Bitcoin was “not an alternative to national currencies”, and values were “highly speculative”.
Greece, quite remarkably, has also taken time out from its years-long government spending-related financial crisis to warn you about the dangers of bitcoin.
One of only two countries to have instigated a ban on bitcoin and other digital currencies due to capital controls resulting from the banking crisis of 2008. Personal ownership does not seem to be an issue, rather buying (importing) bitcoins from outside the country is illegal because it constitutes a movement of capital out of the country. Furthermore, selling products or services for cryptocurrencies is also prohibited
The locally created digital currency aurora coin recently made headlines with its ‘Airdrop’. It is not illegal due to its provenance within the country.
However, Iceland’s Economic and Trade Committee of Parliament warned about the risks of using the altcoin. Also, they said it is not a currency. Nor it is subject to the regulations of the central banking authorities.
Lithuania, wedged between the European Union and its largest trading partner, Russia, issued a warning at the end of January. Consequently, it hinted at a ban on non-government currencies. However, later it tempered the statement by saying new regulation was “under discussion”.
Holland accepted the use of digital currencies. It issued guidelines on their tax status. Logically, bitcoin and other crypto coins are like any other currency for tax purposes.
Slovenia is one of the more permissive governments towards digital currency use. In addition, the statement of 24th December 2013 reminded people that bitcoin is neither a currency nor a financial instrument. The country’s Tax Administration and Ministry of Finance also said that bitcoin is subject to income tax. It should be based on the bitcoin-Euro exchange rate. Selling bitcoin would not be subject to capital gains tax.
Sweden’s Finansinspektionen financial regulator now considers bitcoin as a means of payment, following guidance issued last year. Exchanges must register with the regulator and meet the requirements faced by other financial institutions.
“The official Russian currency is the ruble. The use of any other monetary instruments or surrogates is forbidden,” announced Russia’s General Prosecutor’s Office. “The anonymous payment systems and crypto-currencies, incBitcoin[…] are monetary surrogates. As such, their use by private citizens or legal entities is not allowed.” So, bitcoin and other digital currencies seemed to have a ban in Russia.
However, the aim was for “combating crimes in the sphere of the economy devoted to the use of anonymous payment systems and cryptocurrencies on the territory of Russia.” Furthermore, the goal was also to “develop a unified approach to the determination of the legal status of cryptocurrencies.”
The exact status of cryptocurrencies in Russia is still a grey area. However, the Ministry of Finance announced proposals to ban the issuance of bitcoin. Also, any operations involving cryptocurrency.
Ukraine’s central bank said that related businesses “should register with the agency. Also, they should abide by existing laws on the management of electronic money.”
The UK suggested that bitcoins wouldn’t be treated as money. Instead, they would be as single-purpose vouchers. It could carry a value-added tax (sales tax) liability on any sold bitcoin.
The UK tax department treats bitcoin like any other form of payment for tax purposes. “In all instances, VAT will be due in the normal way from suppliers of any goods or services sold in exchange for bitcoin or another similar cryptocurrency.”
The Treasury will work on a program on cryptocurrencies, examining their potential risks and benefits. The results can create a new regulatory framework for cryptocurrencies in Britain.
Isle of Man
As a UK Crown dependency, the Isle of Man is self-governing and has also made moves over recent months to set itself up as a regulated but bitcoin-friendly jurisdiction. The Financial Supervision Commission indicated that digital currency businesses will not be subject to conduct of a business or prudential regime. Unless they engage in activities under the Financial Services Act of 2008. For example, money transmission services.
China: People’s Republic of China
China’s authorities have had arguably the biggest impact on bitcoin adoption and values in the past months. The People’s Bank of China (PBoC) warned about the risks of bitcoin. It also banned financial institutions from engaging in bitcoin business. It prohibited the transfer of funds to/from bitcoin exchanges. Then, it blocked third-party payment processors from dealing with exchanges. Thus, the price of bitcoin worldwide crashed from its record by about 50%.
Also, exchanges have permission to remain open for business. However, there does seem to be an official campaign to limit bitcoin trade to the fringes.
China: Hong Kong
Hong Kong’s Secretary for Financial Services and the Treasury warned about the risks of bitcoin. The Special Administrative Region (SAR) of China said that bitcoin is not a risk to the financial system if it is not widely adopted.
Indonesia’s central bank, Bank Indonesia, issued a warning on 16th January 2014 that bitcoin was not regarded as a currency. Also, accepting it as payment might even break national currency laws. However, there was no subsequent action against exchange businesses up to date.
India’s central bank is a sort of “watching” bitcoin. Afterward, the Reserve Bank of India (RBI) issued a warning about bitcoin in late December 2013. Thus, almost immediately there were exchanges to suspend operations. For example, one exchange had its premises raided. Also, another received a “friendly” visit by tax officials to investigate how to manage and tax digital currencies. Some exchanges have since re-opened for business.
At present, there are no laws covering cryptocurrencies in the country. However, since the collapse of bitcoin exchange Mt. Gox and the attention that garnered from the international media, Japan seems to have been pressured into taking some action.
Initially, it appealed for a coordinated effort from the international community to agree on regulation. More recently, Japan’s ruling party, the Liberal Democratic Party (LDP) established a committee to investigate cryptocurrencies. Later, it issued a statement saying it is “not a currency, but taxable.”Currently, it seems to be that bitcoin will be treated as a good. Also, it may be subject to taxation if transactions fulfill standing tax requirements. Gains in exchange rates are taxable too.
The government has also blocked related banks from “brokering bitcoin transactions or opening accounts holding the virtual unit.” A ‘bitcoin account’ presumably refers to one with a known bitcoin service. For instance, Blockchain.info or Coinbase.
For the National Bank of the Kyrgyz Republic, bitcoin as a form of payment is currently illegal. The only legal tender in Kyrgyzstan is the som (KGS). Therefore, any use of bitcoin for payment violates this policy.
Malaysia’s central bank, Bank Negara Malaysia (BNM), cautioned people about investing in bitcoin. “The Central Bank does not regulate the operations of bitcoin,” it said.
Singapore is another major international financial services hub. Also, it may be one of the world’s most permissive environments for bitcoin. The Monetary Authority of Singapore has stated it “will not interfere” with bitcoin business. The Inland Revenue Authority of Singapore (IRAS) sent a statement to local brokerage Coin Republic. It includes tax details for bitcoin business.
Bitcoin will be treated not as a currency. Rather as a good or asset, said IRAS. Then, as a good, it would be subject to GST (VAT or sales tax) when traded to and from the local currency by Singapore-resident businesses. Also, goods purchased with bitcoin would also be subject to sales tax. However, as an investment asset, bitcoin is not subject to taxation. Mainly, because Singapore does not have a capital gains tax.
Most recently, MAS announced it will regulate virtual currency exchanges and ATMs. This is to handle potential money laundering and terrorist financing risks. Such intermediaries will have to verify the identities of their customers and report any suspicious transactions.
Taiwan (Republic of China)
The Financial Supervisory Commission and the Central Bank issued a joint statement against bitcoin use in Taiwan. Regulators, there have also said they will block any attempt to install Robocoin bitcoin ATMs.
On March 18th, 2014, the Bank of Thailand issued its first clear statement on bitcoin. It stated that it is not a currency and that it has inherent risks. The statement bears similarities to others from central banks around the world.
Thailand does not question the legality of owning bitcoin. But whether exchanges qualify for a license to trade in cryptocurrencies. This could be a foreign exchange activity and therefore illegal.
Vietnam’s central bank forbade financial institutions from using digital currencies as a means of payment. Also, from offering services in exchange for them back in February 2014. The country had previously warned against their use. It stated that the government and the State Bank did not recognize bitcoin as a legitimate method of payment.
The Israeli Tax Authority was considering a tax on bitcoin. Then, the Bank of Israel (BoI) and the Israeli Ministry of Finance issued a joint statement in February 2014. In fact, it was a warning about investment risks. Also, about the dangers digital currencies posed as vehicles for fraud, money laundering, and terror financing. However, the Israel Bar Association ruled in August 2013 that bitcoin “is an appropriate form of payment for attorneys.”
Also, it authorized its members to accept it.
The Central Bank of Jordan has also issued a similar warning of digital currencies’ unregulated status in February 2014. It prohibited banks, financial companies, payment processors and currency exchangers from dealing with them, particularly bitcoin.
The country’s central bank, the Bank of Lebanon, issued a warning statement on 2nd January 2014. It stated that bitcoin did not offer consumer protections and had a volatile price. Also, very often it involves criminal transactions. It advised people not to use digital currencies.
Both the Governor and Assistant Governor at the Reserve Bank of New Zealand (RBNZ) issued personal warnings in mid-December 2013. They warned about the risks of volatility and that the technology was “interesting.”
The Governor of the Reserve Bank of Australia previously warned of “speculative excesses.” Now, the Australian Tax Office (ATO) provided businesses with guidelines on how to deal with bitcoin. Also, it states that income and profits from bitcoin transactions are taxable.
ATO said that transferring bitcoins to a private company in return for shares would count as income. Transferring bitcoins to another party would be subject to Goods and Services Tax (GST). Bitcoin profits would also be subject to capital gains tax, it said.