Tax Guidance On Digital Assets Seen As High Priority

In their priority guidance suggestions, both the Tax Law Center at New York University and the American Bar Association Section of Taxation assigned a high priority to the tax treatment of digital assets.

The Tax Law Center asked for guidance under section 6038D, while the ABA tax section called for guidance under sections 6045, 6045A, 6050I, 864(b)(2), 475(f), and 170(f)(11)(E).

Section 6038D

The Tax Law Center suggested that Treasury and the IRS clarify treatment of digital assets as specified foreign financial assets under section 6038D.

Under section 6038D(a) and reg. section 1.6038D-2(a)(1), a specified person having any interest in specified foreign financial assets must disclose information about these assets on Form 8938, “Statement of Specified Foreign Financial Assets,” if their aggregate fair market value exceeds a threshold.

Treasury and the IRS published regs under section 6038D (T.D. 9706) on December 12, 2014, and requested comments on the treatment of virtual currency.

However, they have not issued guidance on the application of that section to digital assets. Priority guidance should include a description of the circumstances under which a digital asset would meet the definition of a specified foreign financial asset.

Section 6038D(a) provides that individuals who hold interests in specified foreign financial assets must attach information about the assets to their tax returns if the aggregate value of all those assets exceeds $50,000.

Section 6038D(b) defines a “specified foreign financial asset” as a financial account (as defined in section 1471(d)(2)) maintained by a foreign financial institution (as defined in section 1471(d)(4)); and as any of a list of assets not held in an account maintained by a financial institution (as defined in section 1471(d)(5)). These assets are:

• a stock or security issued by a person other than a U.S. person;
• a financial instrument or contract held for investment that has an issuer or counterparty other than a U.S. person; and
• an interest in a foreign entity (as defined in section 1473).

Section 6038D(c)(1)–(4) describes the information required to be attached to the owner’s tax return as:

• for an account, its number and the name and address of the financial institution in which it is maintained;
• for a stock or security, the name and address of the issuer and information necessary to identify the class or issue of which the stock or security is a part;
• for another instrument, contract, or interest, information necessary to identify the asset and the names and addresses of all issuers and counterparties; and
• the maximum value of the asset during the tax year.

Section 6038D(d) imposes a $10,000 penalty on individuals who fail to disclose the required information. If the failure continues for more than 90 days after the Treasury secretary mails notice of failure, the individual will owe an additional $10,000 penalty for each 30-day period (or fraction thereof) in which the failure continues for up to a maximum penalty of $50,000.

Section 6038D(e) contains a presumption that the FMV of specified foreign financial assets exceeds the dollar threshold. If the secretary determines that an individual has an interest in one or more specified foreign financial assets and the individual does not provide sufficient information to demonstrate the aggregate FMV of the assets, then the aggregate FMV of the assets is presumed to exceed $50,000.

Section 6038D(f) provides that any domestic entity formed to hold (directly or indirectly) specified foreign financial assets is subject to the disclosure requirements in the same manner as if the entity were an individual.

Section 6038D(g) says that no penalty is imposed on a failure because of reasonable cause and not willful neglect. The fact that a foreign jurisdiction would impose a civil or criminal penalty on the taxpayer (or any other person) for disclosing the required information is not reasonable cause.

Section 6038D(h) calls on the secretary to prescribe regs or other guidance necessary to carry out section 6038D, including regs or other documentation that provides exceptions to these disclosure requirements for specific classes of assets (including disclosure of assets that would be duplicative of other disclosures), nonresident aliens, and bona fide residents of any U.S. possession.

Reg. section 1.6038D-3(a)–(e) provides a lengthier definition of specified foreign financial assets that supplements the definition in section 6038D(b).

A specified foreign financial asset includes any financial account maintained by a foreign financial institution. An asset held in a financial account maintained by a foreign financial institution is not required to be separately reported on Form 8938. A specified foreign financial asset also includes a financial account maintained by a financial institution that is organized under the laws of a U.S. possession.

Reg. section 1.6038D-3(a)(3) provides an exception for financial accounts maintained by a U.S. payer as defined in reg. section 1.6049-5(c)(5)(i) (including assets held in such an account). A financial account is not a specified foreign financial asset if the mark-to-market rules of section 475(a) apply to all the holdings in the account or an election under section 475(e) or (f) is made for all the holdings in the account.

Reg. section 1.6038D-3(b) addresses specified foreign financial assets other than financial accounts and is similar to section 6038D(b)(2). A specified foreign financial asset includes any of the following assets that are not financial accounts and that are held for investment and not held in an account maintained by a financial institution:

• stock or securities issued by a person other than a U.S. person (including stock or securities issued by a person organized under the laws of a U.S. possession);
• a financial instrument or contract that has an issuer or counterparty other than a U.S. person (including a financial instrument or contract issued by a person organized under the laws of a U.S. possession); and
• an interest in a foreign entity.

Like financial accounts, an asset is not a specified foreign financial asset if the mark-to-market rules of section 475(a) apply to the asset or an election under section 475(e) or (f) is made.

Reg. section 1.6038D-3(b)(3) provides that an asset is held for investment if the asset is not used in, or held for use in, the conduct of a trade or business of a specified person. Under reg. section 1.6038D-3(b)(4), an asset is used in, or held for use in, the conduct of a trade or business and not held for investment if the asset is:

• held principally to promote the conduct of the trade or business;
• acquired and held in the ordinary course of the trade or business (for example, an account or note receivable arising from the trade or business); or
• otherwise held in a direct relationship to the trade or business as determined under paragraph (b)(5).

Reg. section 1.6038D-3(b)(5) provides that, in determining whether an asset is held in a direct relationship to the conduct of a trade or business by a specified person, principal consideration is given to whether the asset is needed in the trade or business of the specified person. An asset is considered needed only if it is held to meet the present needs of the trade or business and not its anticipated future needs.

An asset is considered as needed in the trade or business if, for example, the asset is held to meet its operating expenses. Conversely, an asset is considered not needed in the trade or business if, for example, the asset is held for the purpose of providing for future diversification into a new trade or business, future plant replacement, or future business contingencies. Stock is never considered used or held for use in a trade or business.

An asset will be treated as held in a direct relationship to the conduct of a trade or business of a specified person if:

• the asset was acquired with funds generated by the specified person’s trade or business or the specified person’s affiliated group;
• the income from the asset is retained or reinvested in the trade or business; and
• personnel who are actively involved in the conduct of the trade or business exercise significant management and control over the investment of the asset.

Reg. section 1.6038D-3(c) provides that an interest in a foreign trust or a foreign estate is not a specified foreign financial asset of a specified person unless the person knows (or has reason to know based on readily accessible information) of the interest. Receipt of a distribution from the foreign trust or foreign estate constitutes actual knowledge of the interest.

Reg. section 1.6038D-3(d)(1)–(6) provides examples of assets other than financial accounts that may be considered other specified foreign financial assets including:

• a stock issued by a foreign corporation;
• a capital or profits interest in a foreign partnership;
• a note, bond, debenture, or other form of indebtedness issued by a foreign person;
• an interest in a foreign trust;
• an interest rate swap, currency swap, basis swap, interest rate cap, interest rate floor, commodity swap, equity swap, equity index swap, credit default swap, or similar agreement with a foreign counterparty; and
• any option or other derivative instrument related to any of the items listed as examples or to any currency or commodity that is entered into with a foreign counterparty or issuer.

The Tax Law Center suggested that Treasury and the IRS issue guidance under the grant of regulatory authority in section 6038D(h) that describes when a digital asset qualifies as a specified foreign financial asset that must be reported on Form 8938.

The 2023 green book notes that the global digital asset market yields opportunities for U.S. taxpayers to conceal assets and income by using offshore digital exchanges and wallet providers and considers adding digital assets to the reporting regime.

However, Treasury and the IRS have regulatory authority to clarify treatment of digital assets and combat tax evasion without new legislation.

The ABA tax section’s Cryptocurrency Task Force identified five digital-asset-related projects that warrant priority guidance status. They are:

• regs under sections 6045, 6045A, and 6050I to implement section 80603 of the Infrastructure Investment and Jobs Act of 2021 (P.L. 117-58);
• guidance on the tax treatment of staking rewards;
• guidance on classification of cryptocurrency as a commodity or security qualifying for the U.S. trade or business safe harbor in section 864(b)(2) or the mark-to-market election in section 475(f);
• guidance on taxation of common decentralized finance transactions; and
• regs under section 170(f)(11)(E) providing an exemption from qualified appraisal requirements for donations of actively traded digital assets.

The first project on the list was assigned a high priority, while the remaining four were assigned medium priority.

P.L. 117-58

This statute added digital assets to lists of specific assets in code provisions that require disclosure of those assets, transfers of those assets to brokers, and cash receipts in tax returns and statements furnished to counterparties. The new provisions are all effective for returns filed and statements furnished after December 31, 2023.

Section 6045

The general rule in section 6045(a) is that every person doing business as a broker must make a return showing the name and address of each customer with details regarding gross proceeds.

Section 6045(b) provides that every person required to make a return must also furnish to each customer whose name is included in the return a written statement showing the name, address, and phone number of the person required to make the return and the information shown on the return for that customer.

The written statement must be furnished to the customer on or before February 15 of the year following the calendar year for which the return was required to be made.

In the case of a consolidated reporting statement (as defined in regs) for any customer, any statement that would otherwise be required to be furnished on or before January 31 of a calendar year for any item reportable to the taxpayer is instead required to be furnished on or before February 15 of that calendar year if furnished with a consolidated reporting statement.

Section 6045(c)(1)(A)–(C) defines a broker as:

• a dealer;
• a barter exchange; and
• any other person who (for consideration) regularly acts as an intermediary for property or service transactions.

The definition of broker in new section 6045(c)(1)(D) (as added by P.L. 117-58) includes a person who (for consideration) is responsible for regularly providing service effectuating transfers of digital assets on behalf of another person.

Section 6045(c)(2) defines “customer” as a person for whom the broker has transacted business. Section 6045(c)(3) defines “barter exchange” as an organization of members providing property or services that jointly contract to trade or barter the property or services. Section 6045(c)(4) defines “person” to include any governmental unit, agency, or instrumentality.

Section 6045(d) requires statements for substitute payments if a broker transfers a customer’s securities for use in a short sale or similar transaction and receives (on behalf of the customer) a payment in lieu of a dividend, tax-exempt interest, or other item prescribed in regs. During the period the short sale or similar transaction is open, the broker must furnish to the customer a written statement identifying the payment as being in lieu of a dividend, tax-exempt interest, or other item. The written statement must be furnished on or before February 15 of the year following the calendar year in which the payment was made.

Section 6045(e)(1)–(4) requires returns for real estate transactions. Section 6045(f) requires returns for payments to attorneys. Section 6045(c)(1) provides that farm managers are not brokers.

Section 6045(g) requires additional information for securities transactions if a broker is otherwise required to make a return of the gross proceeds from the sale of a covered security. The additional information includes the customer’s adjusted basis in the security and whether any gain or loss is long term or short term (within the meaning of section 1222).

The customer’s adjusted basis is determined for a security (other than any stock for which an average basis method is permissible under section 1012) in accordance with the first-in, first-out method unless the customer notifies the broker and makes an adequate identification of the stock sold or transferred.

For a stock for which an average basis method is permissible under section 1012, basis is determined in accordance with the broker’s default method unless the customer notifies the broker that he elects another acceptable method under section 1012 for the account in which the stock is held.

The customer’s adjusted basis is determined without regard to section 1091 (related to loss from wash sales of stock or securities) unless the transactions occur in the same account for identical securities.

The customer’s adjusted basis is determined by treating any incorrect dollar amount that is not required to be corrected by reason of section 6721(c)(3) or section 6722(c)(3) as the correct amount.

Section 6045(g)(3) defines covered security as a specified security acquired on or after an applicable date (as defined in section 6045(g)(3)(C)) if the security was acquired in a transaction in the account in which the security is held or was transferred to the account from an account in which the security was a covered security, but only if the broker received a statement under section 6045A for the transfer.

A specified security is:

• a share of stock in a corporation;
• a note, bond, debenture, or other evidence of indebtedness;
• a commodity, contract, or derivative related to a commodity if the secretary determines that adjusted basis reporting is appropriate; and
• other financial instruments if the secretary determines that adjusted basis reporting is appropriate.

Section 6045(g)(3)(B)(iv) (as amended by P.L. 117-58) defines specified security to include any digital asset.

Section 6045(g)(3)(C) defines the applicable date as January 1:

• 2011, for a specified security that is stock in a corporation for which an average basis method is not permissible;
• 2012, for stock for which an average basis method is permissible under section 1012; and
• 2013, for any other specified security.

Section 6045(g)(3)(C)(iii) (as amended by P.L. 117-58) adds January 1, 2023, to the applicable date definition for any specified security that is a digital asset.

New section 6045(g)(3)(D) (as added by P.L. 117-58) defines digital asset as any digital representation of value that is recorded on a cryptographically secured distributed ledger or any similar technology.

Section 6045(g)(4)–(6) provides rules for treatment of S corporations, short sales, and stock held in connection with a dividend reinvestment plan. Section 6045(h) provides rules for the application of section 6045 to options on securities.

Section 6045A

Section 6045A requires every applicable person that transfers a covered security to a broker to furnish to the broker a written statement to enable the broker to meet the basis requirements of section 6045(g).

Section 6045A(a) (as amended by P.L. 117-58) incorporates the revised definition of broker in section 6045(c)(1) that includes a person that provides services to facilitate transactions in digital assets. Section 6045A(b) defines applicable person as any broker (as defined in section 6045(c)(1)).

Section 6045A(c) provides that any statement required by subsection (a) must be furnished not later than 15 days after the date of the transfer.

New section 6045A(d) (as added by P.L. 117-58) addresses the return requirement for transfers of digital assets not otherwise subject to reporting. It applies when any broker conducts a transfer (that is not part of a sale or exchange executed by the broker) during a calendar year of a covered security that is a digital asset from an account maintained by the broker to an account that is not maintained by, or an address not associated with, a person that the broker knows or has reason to know is also a broker. The first broker must make a return for that calendar year showing the information otherwise required to be furnished for transfers that are subject to section 6045A(a).

Section 6050I

Section 6050I provides that any person who is engaged in a trade or business and receives more than $10,000 in cash in one transaction (or two or more related transactions) related to the business must make the return described in subsection (b) reporting the transaction (or related transactions).

Section6050I(b)(2)(A)–(D) provides that a return must be in the form the secretary prescribes and contain:

• the name, address, and taxpayer identification number of the person from whom the cash was received;
• the amount of cash received;
• the date and nature of the transaction; and
• any other information the secretary prescribes.

Regs under section 6050I require persons to report information about financial transactions to the IRS, and section 5331 of title 31 of the Bank Secrecy Act requires persons to report similar information about transactions to the Financial Crimes Enforcement Network. The regs provide that this information may be reported on the same form. Form 8300, “Report of Cash Payments Over $10,000 Received in a Trade or Business,” satisfies the IRS and FinCen reporting requirements.

Section 6050I(c) provides exceptions to the filing requirement for cash received by financial institutions and transactions occurring outside the United States. Subsection (a) does not apply to cash received:

• in a transaction reported under title 31 if the secretary determines that reporting under section 6050I would duplicate the reporting to the Treasury Department under title 31;
• by any financial institution (as defined in subparagraphs (A)-(G), (J)-(K), and (R)-(S) of section 5312(a)(2) of title 31); and
• from any transaction if the entire transaction occurs outside the United States.

Section 6050I(d) provides that cash includes foreign currency and any monetary instrument (whether or not in bearer form) with a face amount of not more than $10,000 but does not include any check drawn on the account of the writer in a financial institution referred to in paragraph (c)(1). Section 6050I(d) (as amended by P.L. 117-58) provides that cash includes any digital asset (as defined in section 6045(g)(3)(D)).

Section 6050I(e) requires every person that makes a return under subsection (a) to furnish to each person whose name is included in the return a written statement showing the name, address, and phone number of the person required to make the return and the aggregate amount of cash received by the person required to make the return. The written statement must be furnished to the person on or before January 31 of the year following the calendar year for which the return was required.

Section 6050I(f) prohibits taxpayers from structuring transactions to evade reporting requirements. Section 6050I(g) requires every clerk of a federal or state criminal court who receives more than $10,000 in cash as bail for specific offenses to make a return.

The ABA tax section suggests that high priority guidance be assigned to regs that reflect the inclusion of digital assets in these reporting regimes for broker accounts, security transfers, and cash receipts.

Staking Rewards

The ABA tax section identified a need for guidance on the tax treatment of staking rewards, including source of income and whether staking activity is a U.S. trade or business.

Proof of stake is a consensus mechanism, or a way for a blockchain to validate transactions. The nodes in a blockchain must agree on the present state of the blockchain and which transactions are valid.

Staking is a method used by cryptocurrencies to verify transactions and involves committing cryptocurrency assets to support a blockchain network and confirm new transactions.

Staking is available with cryptocurrencies that use a proof-of-stake model to process payments. Proof of stake is more energy efficient than a proof-of-work model, which requires mining devices that use computing power to solve mathematical equations.

Participants first pledge their coins to a cryptocurrency protocol. The protocol then chooses validators from the participant pool to confirm blocks of transactions. The more coins a participant pledges, the more likely that participant will be chosen as a validator.

Each blockchain has a set amount of cryptocurrency rewards for validating a block of transactions. When a participant stakes cryptocurrency and is chosen to validate transactions, the participant receives those cryptocurrency rewards.

Every time a block is added to the blockchain, new cryptocurrency coins are minted and distributed as staking rewards to that block’s validator. In most cases, the staking rewards are the same type of cryptocurrency that the participants are staking. However, some blockchains reward validators with cryptocurrency of a different type than the currency staked.

The staked coins remain in the possession of the participant, who must unstake them to trade them. Some cryptocurrencies require participants to stake coins for a minimum amount of time.

The ABA tax section suggests guidance on the source and character of income from staking rewards and whether staking can generate effectively connected income if the taxpayer operates its own node or, alternatively, delegates that function.

Section 864(b)(2)

Section 864(b)(2) generally provides that trading in securities or commodities does not constitute a U.S. trade or business or generate ECI.

Section 864(b)(2)(A)(i) provides that trading in stocks and securities through a resident broker, commission agent, custodian, or other independent agent qualifies for the safe harbor.

Section 864(b)(2)(A)(ii) provides that trading in stocks or securities for the taxpayer’s own account also qualifies, whether by the taxpayer or his employees or through a resident broker, commission agent, custodian, or other agent, and whether any employee or agent has discretionary authority to make decisions in effecting the transactions. However, the safe harbor does not apply to transactions by a dealer in stocks or securities.

Section 864(b)(2)(B)(i)–(ii) uses identical language to define trading in commodities that qualifies for the safe harbor to include trading through a resident agent or for the taxpayer’s own account, and to exclude commodities dealers.

Section 864(b)(2)(B)(iii) limits the safe harbor to include commodities trading only if the commodities are of a kind customarily dealt in on an organized commodity exchange and the transaction is of a kind customarily consummated there.

Section 864(b)(2)(C) limits the safe harbor to include trading in stocks, securities, and commodities through a resident agent only if, at no time during the tax year, the taxpayer has an office or other fixed place of business in the United States through which or by the direction of which the transactions are effected. The ABA tax section identifies a need for guidance on whether trading digital assets qualifies for the safe harbor.

Section 475(f)

Section 475(f)(1)(A) allows a person who is engaged in the business of trading in securities to elect to recognize gain or loss on any security at the close of any tax year as if the security were sold for its FMV on the last business day of the year and take into account any gain or loss. Taxpayers must adjust gain or loss subsequently realized for gain or loss taken into account because of the election.

Section 475(f)(1)(B) disallows the election for any security that is established to have no connection to the activities of the person’s role as a trader and that is clearly identified in the person’s records as having no such connection before the close of the day on which it was acquired, originated, or entered into.

If a security begins to have a connection at any time after it was identified as having no connection, the mark-to-market election will apply to any changes in the security’s FMV occurring after the connection is established.

Section 475(f)(1)(C) addresses coordination of section 475(f) with the rules in section 1259 addressing constructive sales of appreciated financial positions. Any security described in section 475(f)(1)(A) and that was acquired in the normal course of the taxpayer’s activities as a trader in securities is not taken into account in applying section 1259 to any position to which subparagraph (A) does not apply.

Section 475(f)(1)(D) provides that rules like the rules of sections 475(b)(4) and (d) apply to securities held by a person in any trade or business for which an election is in effect. However, section 475(d)(3) won’t apply for the self-employment tax rules in section 1402 and the publicly traded partnership rules in section 7704. Section 475(f)(2) allows commodities traders to make a mark-to-market election in the same manner as securities traders.

The elections for securities and commodities traders may be made separately for each trade or business and without the consent of the secretary. However, an election applies to the tax year made and all subsequent tax years unless revoked with the consent of the secretary. The ABA tax section identifies a need for guidance on whether taxpayers may elect to mark to market their digital assets.

Decentralized Finance Transactions

Decentralized finance (often called DeFi) describes peer-to-peer banking and financial services conducted using blockchain technology.

DeFi does not require traditional financial intermediaries like banks or brokers. Investors can send money quickly and access their funds via digital wallets without paying banking fees.

DeFi functions through smart contracts, which are executable codes that can store cryptocurrencies and interact with the blockchain.

When a smart contract’s conditions are fulfilled, it self-executes its instructions. Smart contracts replace intermediaries like banks or brokerage firms and facilitate peer-to-peer transactions that can include payments, investments, and lending.

Common DeFi transactions include loans of cryptocurrency, liquidity pools, and token wrapping. Guidance on these transactions should clarify when any income is realized and its character.

Wrapped tokens address the difficulties caused by the inability of blockchains like bitcoin and ethereum to communicate directly, because they have different protocols, functionalities, and algorithms.

Wrapped tokens are cryptocurrencies pegged to the value of another original cryptocurrency or to assets like gold, stocks, shares, or real estate.

The original asset is “wrapped” into a digital vault, and a newly minted token is created to transact on other platforms. Wrapped tokens bridge networks and allow nonnative assets to be used on any blockchain.

For example, a user transfers an original amount of bitcoin to a custodian address on the bitcoin blockchain, and the custodian locks the bitcoin. The custodian mints the bitcoin amount in an ethereum token and holds it in custody. Later, the user may request that the wrapped token be converted back into the original token.

Wrapped tokens can represent art and collectibles, commodities, cryptocurrency assets, equity, stocks, fiat currencies, or real estate. Because wrapped tokens are pegged to another asset, they must be regarded and managed by a custodian entity that will wrap and unwrap the asset.

Wrapped tokens can be cash-settled or redeemable. Cash-settled tokens cannot be redeemed for the underlying asset, while redeemable tokens allow investors to exchange the wrapped token for the underlying asset.

The ABA tax section identifies a need for guidance on income realization and character when earned from conducting DeFi activities.

Section 170(f)(11)(E)

Section 170(f)(1)–(18) provides deduction disallowances and special rules for charitable contributions. Section 170(f)(11) calls for qualified appraisals and documentation of specific types of charitable contributions.

Section 170(f)(11)(A) provides that no deduction is allowed for any contribution of property for which a deduction of more than $500 is claimed unless the donor meets the requirements of paragraphs (B)–(D).

Paragraph (B) requires individuals, partnerships, and personal service or closely held C corporations to include a description of the donated property with their tax returns for the year in which the contribution is made.

Paragraph (C) requires individuals, partnerships, and corporations to obtain a qualified appraisal of the donated property and attach information about the property to the return if a deduction of more than $5,000 is claimed.

Paragraph (D) requires individuals, partnerships, and corporations to attach the qualified appraisal itself to the return if a deduction of more than $500,000 is claimed.

Section 170(f)(11)(E) (the subject of the ABA tax section’s guidance suggestion) defines qualified appraisal as an appraisal conducted by a qualified appraiser in accordance with generally accepted appraisal standards. A qualified appraiser is an individual who has earned an appraisal designation from a recognized professional appraiser organization or has otherwise met minimum education and experience requirements and regularly performs appraisals for compensation.

An individual is not treated as a qualified appraiser for any specific appraisal unless the individual demonstrates verifiable education and experience in valuing the type of property appraised and the individual has not been prohibited from practicing before the IRS under section 330(c) of title 31 at any time during the three-year period ending on the date of the appraisal.

The ABA tax section has suggested that taxpayers making charitable contributions of actively traded digital assets be exempt from the qualified appraisal requirement.