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Bitcoin is virtual money held in a virtual account. Rather, transactions are peer-to-peer, made directly between sender and receiver. There is no entity that issues bitcoin. There is a finite number of bitcoins available, about 21 million when all are mined. The value of a bitcoin is not tied to the value of the dollar or any other currency but rather fluctuates based on the market.
Because the bitcoin system maintains daily historical pricing information, purchase and sale prices can be easily tracked. Bitcoin is not the first virtual currency. It has, however, garnered the most attention by being embroiled in several scandals.
With transfers made peer-to-peer, anonymously, encrypted, and without the use of an administrative clearing house, bitcoin has proven to be the currency of choice for those who want to purchase illegal goods or services anonymously. Sales were kept anonymous by using a special computer setup that concealed the identity of the users and using bitcoin to make purchases. Eventually the site was shut down and Ulbricht convicted of seven different crimes including distribution of narcotics, engaging in a continuing criminal activity, computer hacking, and conspiracy to commit money laundering.
Transfers are anonymous in that they are recorded using user addresses. For tax purposes, bitcoin is, in essence, nothing more than a medium used to carry out barter exchanges.
Those who pay with or otherwise dispose of bitcoins have a disposition of property on which gain or loss generally must be recognized.
They began by visiting a peer-to-peer bitcoin exchange used by potential bitcoin sellers and buyers. The detective contacted the seller and arranged a meeting where he purchased 0. The seller explained he made a profit by buying and selling bitcoins. He would buy at 10 percent below-market prices and sell at 5 percent above-market prices. He also asked the seller if the seller would be willing to accept stolen credit card numbers as payment for bitcoin purchases. The seller was noncommittal.
He showed the seller a wad of cash. During that meeting, the seller was arrested and charged with unlawfully engaging in a money services business 29 and money laundering. The seller-defendant filed a motion to dismiss the information. With respect to the charge of being unlawfully engaged in a money services business by being a money transmitter, the court easily determined that the charge did not fit the transaction.
The seller was not receiving currency in order to transfer it to a third party; he did not act as a middleman. That type of service more closely resembled the services offered by businesses like Western Union. Rather, the court concluded seller-defendant was more akin to a day trader, buying low and selling high to make a profit on bitcoin transactions. The government then alleged the defendant-seller was a payment instrument seller. With respect to the money laundering charge, the court first considered the nature of money laundering.
Bitcoin, a form of property, is not a monetary instrument. The court ended by observing that the seller-defendant was not promoting any illegal activity: The court dismissed the money laundering charge. In the case discussed, the seller explained to the detective what he was doing. He was selling appreciated property. Gain from the sale of appreciated property must be recognized by the seller. The reason he bought and sold bitcoins was to make a profit. Valuation—the issue that usually complicates determining the amount of gain from the disposition of property—is not present in bitcoin purchases and sales.
Valuation issues arise when there is no easily administrable means for determining what something is worth. When enough points are accumulated, customers can cash them in for a free ticket or use them to pay for food or hotel rooms or other items. The ability to earn points has since expanded. Given the administrative burden of tracking and valuing the airline-awarded points, the Service announced it would not seek to tax points received as the result of business travel and used for personal purposes.
Because bitcoin tracks daily pricing information that is publicly available, the bitcoin value on the day of purchase and day of sale easily can be determined, without the use of experts or competing opinions on value or great uncertainty. Moreover, the Service has shown no hesitation in basing a tax deficiency on receipt of virtual currency.
He redeemed some of the points to purchase a plane ticket. The Tax Court held the points were given in exchange for the use of his money, making them interest.
Because interest is taxable, 44 Shanker had income equal to the value of the ticket. For the seller-defendant, the only real difficulty would have been determining which bitcoin he sold. To the extent he held multiple bitcoins purchased on different days and at different prices, he would have needed to determine which bitcoins were sold to know the basis in each and, from there, the amount of gain or loss from each sale.
Notice 46 does not provide guidance on how a seller makes this determination. Presumably, a seller could merely identify which bitcoins he sold. If he failed to do so, the fungibility of bitcoins suggests that an analogy could be made to stock sales. When a seller sells stock and does not adequately identify which stock was sold, the stock identification regulations treat the seller as having sold the last stock that was purchased last in, first out.
When identical stock is purchased on the same day through a single trade order with an aggregate total cost reflected on the confirmation report, the stock identification regulations provide that the taxpayer can determine basis by averaging the cost of each share. Not only would the seller-defendant be liable for the tax on the gains generated from the sales, but if he failed to report the gain, he would be liable for the negligence penalty.
From the information provided in the opinion, it is difficult to determine if the peer-to-peer bitcoin exchange 55 would be classified as a barter club or barter exchange subject to the rules applicable to such organizations. The website does not fit neatly into what might traditionally be thought of as a barter club. In the past, such organizations advertised themselves as that—barter clubs—for the purpose of attracting people who wanted to engage in barter transactions.
The Service defines a barter exchange as. Any person or organization with members or clients that contract with each other or with the barter exchange to jointly trade or barter property or services.
To the extent bitcoins are purchased and sold for cash, the organization is a money transmitter business and not a barter club. If bitcoins are being exchanged for property or services, as with the Silk Road website where bitcoins were being exchanged for illegal and illicit goods and services, the exchange would be a barter club.
In Espinoza , if most transactions resembled those suggested by the detective, bitcoin for stolen credit card numbers, the peer-to-peer exchange likely is a barter club. Without more information about the nature of the transactions, it is not possible to draw any conclusion about whether the website was a barter club. If the website is a barter exchange that has more than transactions in a year, it is required to issue Forms B, Proceeds From Broker and Barter Exchange Transactions.
Form B is an informational return 59 provided to taxpayers so they can correctly complete their tax returns and verify that the amount reported to the Service is accurate and complete. A barter club may incur a penalty if it either fails to file an information return with the Service or fails to provide a copy of an information return to the payee. In Espinoza , the detective and the members of the Task Force seemed to equate the buying and selling of bitcoin with engaging in an illegal activity.
Certainly, their suspicions were not completely without foundation, as others who had bought and sold bitcoin had been convicted of the crimes with which they charged the seller-defendant. The most well-known cases are likely those involving the Silk Road website. Thomas and Amanda Callahan served as a bitcoin exchanger exchanging fiat currency into bitcoins and vice versa for users of the Silk Road website.
Callahan cash, and he converted the cash into bitcoins. Robert Faiella also was involved in the Silk Road website. He was charged with operating an unlicensed money transmitting business. One of its responsibilities is implementation of the Bank Secrecy Act BSA , 69 which includes a comprehensive federal anti-money laundering and counter-terrorism financing statute. The requirement to register a money transmitting business is part of the BSA. A money transmitting business is a business that transmits funds between parties: The customer pays a fee for the service.
The facts in Espinoza were different from the Silk Road cases. There was no evidence the seller was accepting cash to create a bitcoin account on behalf of the buyer, as Callahan and Faiella had done.
In short, there was no evidence of anything other than that the seller was selling bitcoin for cash. The fact the seller was selling bitcoin for cash should have raised the question of whether he was complying with the tax laws. Any potential tax implications from bitcoin as currency were put to rest when the Service ruled that bitcoins do not meet the definition of currency but are, instead, property. Did he report the gain? This question seems to represent the lowest hanging fruit in terms of establishing the seller had done something wrong.
However, nothing in the case suggests that avenue was pursued. Going forward, it might make more sense to first consider the more straight-forward tax implications of selling bitcoin. Moreover, by tracing how the bitcoin are being sold, the detective would have had the basic information needed to determine if the seller was in an unlicensed money transmitting business. If the information supported such an allegation, then the seller could have been so charged.
The traits that make bitcoin the virtual currency of choice for those engaged in illegal activities—peer-to-peer transfers, anonymity, encryption, and absence of an administrative clearing house—make bitcoins difficult to monitor for proper tax reporting and compliance purposes.
Certainly, it will be favored by those involved in tax evasion schemes and illegal activities. The potential for misuse, however, goes well beyond that. With the tax consequences associated with using bitcoin mostly settled, the focus can shift to whether taxpayers are properly reporting their gains when disposing of bitcoins.
This is especially true because, of all the avenues that might be pursued when considering a bitcoin seller engaged in shady behavior, not reporting gain from the bitcoin sales might have been the only case that was winnable. How Does Bitcoin Work? For information on cryptocurrency market capitalization, see Crypto-Currency Market Capitalizations.
These equations serve to verify the validity of bitcoin transactions by grouping several transactions into a block and mathematically proving that the transactions occurred and do not represent double spending of a bitcoin. Bitcoin is not the only cryptocurrency used to carry out illegal activities. On May 23, , the government brought an indictment against the operators of Liberty Reserve, a popular virtual currency, charging the operators with money laundering and operating an unlicensed money transmitting business.
Liberty Reserve, 13 Crim.