Public Key Podcast

New U.S. Regulations for Crypto Tax Reporting: Roger Brown Ep. 80

October 31, 2023 | by Chainalysis Team

Episode 80 of the Public Key podcast is here and we are happy that you love the refreshed look.  When the IRS releases proposed regulations on brokers in the digital asset space, there is only one person to call when we need to dissect the new tax rules and in this episode, we have Roger Brown (Global Head of Tax Strategy, Chainalysis) to do just that.

You can listen or subscribe now on Spotify, Apple, or Audible. Keep reading for a full preview of episode 80.

Public Key Episode 80: Tax authorities focused on Digital Asset Middlemen in proposed regulations

When we want to understand the new IRS proposed regulations on digital asset brokers, Ian Andrews (CMO, Chainalysis) knows to speak to Roger Brown (Global Head of Tax Strategy, Chainalysis) before anyone else. 

Roger does an excellent job demystifying who is going to be captured by the proposed regs and defines key terms in the regulations such as brokers, digital asset middlemen and persons that will be impacted by the proposed legislation. 

He also dissects the impact of these new tax rules on crypto exchanges, digital asset payment processors, decentralized platforms, and even DAOs to and describes what facilitative services are that  are material to being captured under the regs. 

Ian and Roger also discuss how travel rule requirements may be sufficient enough to satisfy tax rule reporting and highlight the importance of assessing effective KYC obligations.

Quote of the episode

“Digital asset middlemen effectively are any person…that provides facilitative services with respect to any digital asset sale. Person means not only a company like an exchange, a centralized exchange, but it also can mean a decentralized platform that’s providing access to trading services, or a DAO that’s effectively… it does these facilitative services.” – Roger Brown (Global Head of Tax Strategy, Chainalysis)

Minute-by-minute episode breakdown

    • (2:13) – Overview of the recent IRS regulations on crypto tax reporting
    • (4:08) – Definition of a broker and digital asset middleman in the context of digital assets
    • (8:20) – Impact of the regulations on decentralized protocols and platforms
    • (11:45) – Importance of information reporting in crypto to tackle the tax gap 
    • (16:50) – IRS’s approach to regulating decentralized exchanges leading with guidance vs enforcement 
    • (19:02) – Questioning why stablecoin transactions are subject to reporting
    • (24:08) – Speculation on the reaction of payment processors to the reporting requirements
    • (28:27) – Potential overlap between travel rule compliance and tax reporting
    • (31:45) – Consideration of peer-to-peer exchanges and possibility of bypassing reporting requirements by directly interacting with smart contracts
  • (35:35) – Importance of assessing effective KYC obligations – It’s not a matter of if they will apply it’s a matter of when

Related resources

Check out more resources provided by Chainalysis that perfectly complement this episode of the Public Key.

Speakers on today’s episode

  • Ian Andrews * Host * (Chief Marketing Officer, Chainalysis) 
  • Roger Brown (Global Head of Tax Strategy, Chainalysis)

 

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Transcript

Ian:

Hey everyone. Welcome back to another episode of Public Key. This is your host, Ian Andrews. Today I’m joined by Roger Brown, the global head of tax strategy at Chainalysis. Roger, welcome to the program.

Roger:

Thanks so much, Ian. I appreciate it.

Ian:

Now, you were a guest way back on episode 41, whichthat was in preparation for crypto tax season. I think most of us survived, at least you and I did. We’re still here. In your first appearance, we talked about your background. You spent seven years inside the IRS in the Office of the Chief Counsel. You spent a decade at Ernst & Young working on domestic and international business tax law. You’ve been a professor at Georgetown, and more recently, you’ve become the best expert that I know in digital assets.

So, as we were talking before we started taping, you’ve lived on the road, it feels like, the last couple of years, but today I really want to talk about some updates to the domestic tax situation here in the US. You recently wrote a blog on this, which we’ll link to in the show notes for people that want to go even deeper than this conversation, but maybe let’s just start with the high level summary. What’s the news out of the IRS?

Roger:

The news out of the IRS, is the IRS has leaned very heavily into information reporting. In 2021, Congress passed the IIJA, and it effectively amended the information reporting rules that apply to crypto. In short, it said, brokers, is the term the statute uses, have to report basically trading information on people who sell… facilitate the sale of crypto assets for customers. And that was a 282-page proposed regulatory package, where that’ll take effect for sales after January 1st, 2025.

Ian:

So we’ve got a little bit of time to get ready.

Roger:

It’s a little bit of time, but for people who have to build systems, it’s a lot, because most people will tell you it takes a year to build and implement, and 2024 is around the corner. We don’t have final regulations yet. They’re just proposed. So the IRS has a public hearing, I believe in November, where they’ll solicit comments, they’ll take it on board. They’re required to give consideration for the comments, and they’ll put out a final or temporary regulatory package that has the force of law. These regulations do not. And then people will know exactly what the requirements are.

So people have already talked about that, “Please push back that 2025 date for transactions occurring after,” and we’ll see if the IRS is sympathetic, or whether they provide some kind of interim relief of, “Report this, but you don’t need to report everything.” But we’ll see. To be determined.

Ian:

Well, maybe let’s start with, who do these regulations really impact? Ultimately, it’s you and me and citizens of the United States who have to think about this in filing. But I think the burden with these regulations is really, as you said, on the brokers. Who’s defined as a broker in the context of digital assets?

Roger:

It’s a great question, Ian. The clearest example of a broker is an exchange, a crypto exchange, as everybody would accept, that’s what everyone thinks to be a broker. Even though we don’t call them brokers, because they quote affect sales of digital assets. That’s who is clearly within the scope.

Then it goes to others, like payment processors and ATMs/kiosks. But then a lot of the action is in the phrase of what the regulations call, digital asset middlemen. And that’s an important phrase to drill down on. Digital asset middlemen. Digital asset middlemen effectively are any person… I’m going to come back to what a person means… that provides facilitative services with respect to any digital asset sale. And you think, what is a facilitative service? Well, the regulations define a facilitative service. It means that a person… I’m going to come back to that, that’s really important again… is in a position to know the identity of the party making the sale, i.e., the customer. You’re in a position to know.

And then the second prong for who’s a digital asset middleman, is that the person is in a position to know the nature of the transaction giving rise to proceeds from the sale. So again, digital asset middleman are a person providing facilitative services, and facilitative services are services where you’re in a position to know the identity of the party and the nature of the transaction. I can get into, if you want, what those prongs mean, but I’ll first focus on person because I teased that a bit. A person means not only a company like an exchange, a centralized exchange, but it also can mean a decentralized platform that’s providing access to trading services, or a DAO that’s effectively… it does these facilitative services. So centralized…

Ian:

You’re blowing my mind a little bit here. The first part I followed with. So an exchange where I log in, they’ve got my identity, I’ve done my KYC, where they take a picture of my ID. Long time ago I bought some Bitcoin. Today I log in, decide to sell some of that Bitcoin. In that case, it makes total sense to me where that exchange falls under this definition. They’ve enabled me to sell that. They know both my cost basis, because I bought it there, and that gain. And they know my identity. So it seems to check off all the boxes that you listed there.

But when I think about a decentralized protocol, I’ve used a few of those in my day, and I can’t remember ever providing identifying information. In many cases, I can’t recall ever actually buying an asset on decks, although I suppose I could have. More often, it’s a swap of an asset that I held, that I acquired someplace else, I think, in most of those transactions. So it seems that you’re lacking both the cost basis information in a lot of those transactions, and certainly lacking identity information. What would a protocol do under these regs? It seems like this is suggesting a lot more than, “Oh, I just need to start sending out forms to my customers.” This would be a wholesale change of how that protocol’s operating. Or am I going too far with this?

Roger:

You’re spot on. It’s important to say the regulations are not really concerned about what their current state is. They’re telling you what you will need to do in the future. So that’s the first resting point.

The second resting point is identity, and then come to a knowing basis. So the regulations say that… I’m going to paraphrase. “If you are a decentralized protocol…” and they clearly, in the regulations, are looking at DAOs and decentralized platforms, “you’re in a position to know the identity of the person because you’re providing access to that particular protocol. And if you’re providing that access to an automated market maker, a trading platform…” again, emphasis, “you’re in a position to know,” then you satisfy that prong of you’re in a position to know the identity.

The second prong goes to, you’re also in a position to know that the nature of the transaction is a sale, because when you swap one asset for another asset, that’s a sale under the tax rules. So you clearly are recognizing gain or loss from that swap. You also have basis in a new asset, but you’re selling the first asset. You talked about, “But the broker may not know. The decentralized platform may not know what my basis is because I bought it somewhere else.” And you’re absolutely right, they don’t. But you can’t report what you don’t know. And if you don’t know that, then at least for the first year of the regulations’ operation, you won’t have to report the basis. And I suspect when the regulations are in final form, if you don’t know the basis, and there will be instances where you don’t, you don’t report.

But the important feature of this, and this is actually in the preamble to the regulations, the IRS, in an ideal world, would get a Form 1099. And for people in the US who are listening to this, it’s basically the forms that exchanges or brokers today give their customers. It just tells you what your gains and losses are. But at least providing one number on the sales proceeds. It tells you that Ian Andrews or Roger Brown has a gain transaction. And then you get a copy of that form, then the government gets a copy of that form, and you’re incentivized to report that income now, because you know the IRS is getting the same information. So that is really important.

The IRS says, where there’s inadequate or no information reporting, the incidence of non-reporting is more than 50%. So this is about tackling that tax gap, where if there’s no information reporting, that just people are not self declaring the income. There’s actually a government accounting office study that actually said only 900 people in the entire United States reported crypto gains between 2013, 2015. 900 people out of 150 million taxpayers. Coinbase alone had publicly said that they had 2 million customers. So if you just think about 900 over 2 million, and obviously Coinbase didn’t have every customer in the world, in the United States, it’s less than one half of 1% of people reporting crypto. So that’s what these are really in reaction to, the absence of effective third party reporting motivated Congress to act. And then these regulations are effectively the flesh on the bones put out by the framework of the Congress in 2021.

Ian:

Well, this makes a lot of sense to tackle this tax gap problem. I think in normal civil society, everyone paying reasonable share to support the public good, I’m fully supportive there. The thing that I’m still going back to though, is practically speaking, how do some of the entities that are going to fall under this broker definition, are they likely to be able to go about meeting this requirement? DeFi platforms are one. I wonder about things like network validators, people running a Bitcoin or an Ethereum node. Are they falling under this broker definition as well?

Roger:

Yeah, it is a great question, Ian, and people were very concerned about it. In the legislative history, two senators had a colloquy where they said, “It’s our intent that node miners, stakers, et cetera, are out.” The IRS respected that in the proposed regulations. And if all you’re doing is providing services around a consensus mechanism, then the fact of you’re doing that, you’re not in these rules. You do have to think about whether you could be in other information reporting rules that could apply, but these rules, you are not. So that is the first piece.

The second piece, you asked about how could they apply? The IRS, in their preamble, solicits comments on technology solutions that brokers, whether it be centralized or decentralized, could use to satisfy the information reporting. What these effectively are, are basically customer onboarding, getting your tax ID number, knowing who you are, and then reporting that information to the government. Importantly, it’s foreign and domestic brokers. They don’t distinguish at a high level. So they’re going to be imposing these obligations on it.

Technology solutions? I’d refer to any experience that you’ve had where you have onboarded to a centralized exchange, which I’m sure you have, and I bet you dinner or your choice, at a restaurant of your choice, you probably didn’t have to speak to a human in order to onboard.

Ian:

Correct.

Roger:

You had a fully technological experience with regard to putting in your name, KYCing yourself, and then being authorized to trade. I suspect that experience will exist for what is a decentralized exchange, and if you want, I can get into what could be out, but for today’s decentralized exchanges. The majority of the trading volume occurs on five of the largest decentralized exchanges, and I think those, in their current form, will be subject to the rules, and effectively have a customer onboarding experience that will resemble what you see in centralized exchanges.

Ian:

Really, this is pretty amazing if you think about it. The gridlock that we’ve seen in Congress, and various attempts to get through that gridlock to drive some meaningful forward progress on digital asset regulation. And the IRS seems to be sidestepping all of that and could be the ones that actually bring DeFi to the table on real, know your customer type implementations, is amazing.

Roger:

I want to touch on that because you’ve raised a really important point, Ian. We’ve seen a lot of regulatory actions around decentralized trading platforms that the CFTC, in particular, has brought. And a lot of the action has been, “You’re an exchange, you’re a person, you’re subject to CFTC’s rules.” The IRS has not brought litigation that I’m aware of applying any of the existing rules or information reporting, and there are some, to decentralized exchanges. They haven’t done that. They issue in proposed regulations, saying, “These are the rules that will apply to you at this future date. We welcome comments, but right now we’re not suing you for non-compliance.”

So putting aside whether or not they could do that under existing law, they’re literally regulating by notice and comment in the regulations, rather than enforcement action. And that is what some people in the industry have complained about with other regulatory agencies, to say, “You’re not publishing guidance, you’re suing me.” So I would think the IRS has been… It couldn’t be accused of being susceptible to that. I think a fact to the contrary should be applauded by putting out what they think to be the right approach and then soliciting comments, before they take enforcement action on the rules and fight about-

Ian:

It’s a great approach. I think it’s how we all feel government is supposed to operate. I’m curious, in your blog you have a section on what to report, and most of this, if you’ve ever seen a 1099, anyone that’s ever bought or sold equities in the US has probably gotten one of these 1099 forms. It’s fairly consistent. Of course, it adds things like the wallet address and the transaction hash, so this can be traced back to the on-chain activity, but the one that stood out for me here was that transactions involving stablecoins are subject to reporting here, which struck me as a little unusual given that a stablecoin shouldn’t vary in price, so therefore shouldn’t be a taxable event necessarily. But maybe I’m missing something here since I’m not the tax expert and you are. Why are they including stablecoin transactions as being something that needs to be included in the reporting?

Roger:

Well, I think a couple fold. Number one is, there can be volatility in stablecoins, as we saw that the Terra and Luna is an example where people lost money, and they need a complete universe of taxable gains and losses. And number two, when they are computing gains and losses, and there are many retail commercial products out there that people can access companies to compute their gains and losses in crypto, they need a complete universe of data. And stablecoins are effectively just another type of digital asset. When you’re swapping Bitcoin for stablecoin, and the stablecoin for Ethereum, and then XRP and back to stablecoins, you need an effective complete universe. And the IRS is going to have to have some, effectively data matching, data reconciliation process, much like the commercial tax calculators exist today, and they’re ingesting all that data.

In my mind, it goes to the data completeness, even though there may not be volatility in your stablecoin, and if all you’re doing is swapping one stablecoin for another, for retail goods and back, et cetera, yes, you’re going to have no gain and loss. But the vast majority of people are doing something with other crypto and their stablecoin. So I think it’s a matter of data completeness. I wasn’t surprised at that, quite frankly.

Ian:

Well, I’m thinking, and maybe this is future casting rather than present day, but using some USDC or some Tether to buy a cup of coffee at Starbucks, maybe when they start accepting retail payments in crypto. Under these proposed regulations, would that mean that that then makes Starbucks a broker in that context? Or perhaps an intermediate payment processor becomes a broker and is subject to reporting on that transaction?

Roger:

It’s a good question. The retailer itself is not a broker. The regulations are clear. They literally say if you pay your landscaper in Bitcoin, even Bitcoin that has volatility, clearly that is not a transaction that’s subject to these rules.

Ian:

Oh, great. Okay.

Roger:

So they’ve given you that clear out. For the payment processor, then they may have an information reporting rule obligation because they are in these rules and that’s their business anyway, but for normal retail products, the retailer itself is not subject to these rules. So that’s effectively, I think, a pro-crypto approach.

I think the notice and comment piece, people, I’m sure, will address the stablecoin aspect. Again, emphasis, these regulations are proposed, so they don’t have the force of law yet. Would the IRS carve it out? Possibly. Or could it be that the ecosystem, the brokers who are subject to it, they don’t want to be put in a position of differentiating between assets, and they just want to report everything. It could be just easier for them to say, if they’re offering functionality and payment for Bitcoin payment, for Ethereum payment, for USDT, it could be easier for them just to write one rule. Again, computers are doing all the reporting, obviously, not humans sitting behind some walls, pressing the buttons for what’s reportable, what’s not. So it’ll be interesting to see how people react to that.

Ian:

Yeah, and your point is a good one. It’s probably easier to report every interaction that I’ve had with my exchange, anytime I’m transacting, buying or selling, just include it. What I was thinking about when I first asked the question was really this retail or commerce type of use case, and that if suddenly it puts a burden on people who today don’t have to report any of their current transactions, it puts a hurdle to them starting to adopt or accept digital assets as a form of payment, if it did trigger that. So it’s good to realize that they don’t.

I’m curious, what are the payment processors’ reaction to this? Because I think today about Visa and MasterCard. I don’t get tax reporting from Visa and MasterCard today, but presumably, either the digital asset native payment processors or the ones that already exist in the ecosystem, I can’t imagine that they’re eager to take on this burden.

Roger:

Yeah, that’s right. But let me try this two pieces.

Ian:

Sure.

Roger:

There’s actually an existing rule in the tax code, that if you buy something from a retailer with more than $10,000 in cash, they effectively have to do reporting on you to the IRS and they have to KYC you. That’s an existing rule in this existing statute. That was amended, also, in 2021, to apply to crypto. So if you now were a retailer accepting cash or crypto more than 10K, the IRS, to my knowledge, just hasn’t come out with rules yet on the crypto more than valued in 10K, but they have for cash.

So that’s the first resting piece, that there will be certain people for big transactions. We said, then, for less than 10k, there’s no cash information reporting, there’s no crypto information reporting by the retailer. We will see where things end up with regard to the payment processors, because they could effectively have… When you onboard with them, and the payment processors today are effectively linking to your bank, so they’ve effectively KYCed you, and now affecting the payment, because they’re facilitating payments between bank to bank.

So, from my perspective, and again, I haven’t had the luxury of chatting with them, would they take the existing information where they’ve already KYCed you, or effectively have your banking information, and just effectively use this documentation for crypto payments as a result of this? In effect, if they’re facilitating the payments of things other than stablecoins, and obviously existing payment processors allow Bitcoin and other non-stable assets like that, then the IRS wants a complete picture. Ideally, our tax system is not built for enabling individuals… well, forcing individual IRS examiners, and putting the burden on the IRS to do really detailed tax calculations on a taxpayer by taxpayer by taxpayer basis. You really want the IRS computers to do that work.

So I think they want… if somebody is disposing of Bitcoin in exchange for a Tesla, if they don’t get that information, then the IRS systems won’t get it and somebody could be not reporting gains and losses, or they’ll be taking their built-in gain crypto and buying retail goods. So it’s about, from, I would say, a neutral perspective, the government to say, “Whether it’s gain or loss, we just want to know so the computers can do the calculation.”

Ian:

Yep. How does the travel rule intersect with this? I know that we’ve got, depending on the jurisdiction around the world, kind of variety of interpretations and timelines around travel rule, but this feels like the information that will eventually be collected as a result of travel rule solves some of this lack of information on identity and end user. Am I thinking about that correctly?

Roger:

I think you’re spot on, Ian.

Ian:

Yeah.

Roger:

In our blog, we refer to an insightful piece by Notabene on the state of the travel rule, and I welcome people to read it because it talks about really adoption around the world and what it requires. For travel rule compliance, exchanges, VASPs, payment processors, will effectively have to KYC not only the customers for whom they’re acting, but also know the beneficial owner of the accounts of where they’re sending. So it actually is broader than just the tax rule, where the tax rules are just saying, “Who is your existing customer?” So that’s the first piece.

The second piece is when you’re onboarding them and you’re taking that KYC for travel rule compliance, and the PII, personal identifiable information you’re requiring may vary per jurisdiction. If you’re getting tax ID number and address and documentation, you’re effectively satisfying that. It could be the case that the tax rules go a bit further, because if I see Ian Andrews, and let’s say Ian Andrews has a cousin who’s in Belgium, and that person says, “Hi, I’m Belgian. I’m a customer of this European exchange,” but there’s indicia of US status, which can occur by your cousin, your Belgian cousin, sending crypto to a US address that’s known as a US crypto address or US VASP, or they’re accessing their account from the US and there’s a US internet service provider providing that access. Now all of a sudden the tax rule say there’s US indicia. So now you’ve got to obtain effectively a W-8 BEN, which is just a tax form that says, “Hi, I really am foreign. I certify under penalty of perjury that I really am foreign.”

So, in answer your question in short, there is great overlap between the travel rule information and what is required for tax, but I could see the tax go a bit further. I think the technology solutions that allow people to comply will merge. There are a few vendors out there that do pieces of this, and I think whether it be the exchanges, or the payment processors, or the decentralized exchanges, I think they’re going to have to leverage those solutions, bundle them together, and then satisfy two birds with one stone. Satisfy travel rule and tax information reporting with the same stone.

Ian:

Yeah. How should we be thinking about a peer-to-peer exchange, or me sending some crypto from my wallet to your wallet, which, depending on the reports you read and the analysis, that’s a substantial part of transaction activity in crypto. It doesn’t involve a DeFi protocol, it doesn’t involve a centralized exchange. It’s just two people exchanging funds. Does that get addressed at all in these regulations?

Roger:

I think it would go down to, does it qualify as facilitative service? If the platform is in a position to know the identity because they are providing access to seeing the other person’s wallet, seeing what they’re going to do, and they’re in a position to know that it’s a sale, because they know they’re affecting a swap of one asset for another, I could see peer-to-peer exchanges being in.

The IRS is going to cast a broad net with regard to who’s going to be in. What I really see being out are people who write software and launch it into the ecosystem and no longer are providing access or the gateway to that. So if that’s what you’ve done, you’re a pure computer programmer and have published a protocol that you no longer have continuing interest, you’re not receiving ongoing fees, you’re not setting the terms and conditions for how people are interacting with it, those people will not be brokers. There’s going to be clear DeFi platforms, I think many of which exist today will be in, and then there’s going to be a migration of some of those activities towards DeFi, when it’s so sufficiently decentralized, they’re out. And that’s actually consistent with the FATF guidelines, the Financial Action Task Force guidelines, that are actually referenced in the preamble to the rules, to say there will be some DeFi that is so decentralized that it’s out.

Ian:

Yeah. It’s interesting on that topic of the range of decentralization versus centralization in the DeFi landscape. What we’ve seen a number of protocols do, as it relates to compliance and validating… keeping bad wallets off the platform, is they’ve implemented technology at the web app layer, but not really at the protocol layer. So if you’re a sophisticated technology user, you can go straight to the contract and interact with it, bypassing the web app layer. Less sophisticated act are probably using the web app, gets caught in, and has to pass through some of these compliance checks. Is it likely that a similar kind of model ends up here in the tax world, where if I’m using the web app, I might need to supply my personal identity and my tax ID for those KYC reporting purposes, but if I’m savvy enough to go direct to the contract, I can bypass all that?

Roger:

I think you’re right. I go back to the linchpin of, to whom do these regulations apply? They’re not applying to software programmers, if that’s all you’ve done. And they’re not applying to computer code. What they’re doing is they’re applying to persons, and someone controlling a web interface, a centralized company, is a person that’s providing that access. So they would be subject to it. And as you say, if a person is accessing directly the smart contract without a computer, and this has been some of the arguments you’ve seen in the litigation involving regulatory agencies that are not the IRS, where the argument is computer code is not a person. And that may be right, but a DAO probably is, because a DAO is probably a partnership under the US tax concepts. A regulation has been in the books for a long time that’s saying a group of people acting together in a business enterprise is a partnership, or a business entity is a better phrase. A business entity. And a business entity is a person.

Ian:

Yep. Well, this has been super informative, Roger. Last question for you. We have a lot of people who are in the compliance profession or run crypto businesses. It seems like there’s some time between now and when these regulations take effect, but what would you suggest that any one of those people listening does as a next step after enjoying this podcast?

Roger:

My suggestion would be to assess the effective KYC obligations. I don’t think it’s a matter of if they’ll apply, I think it’s a matter of when. Make sure that you have the right time to do that. Engage with the IRS and Treasury because they’re all years. Whether it be from a tax regulatory perspective or non-tax regulatory perspective, the trend is clearly towards KYCing people. So I think aligning to that trend, KYCing the people, and focusing on the core business venture, rather than have this regulatory obligation and similar regulatory obligations, travel rule, et cetera, control your business. And that may be technology solutions around putting identity on an NFT in your wallet that the protocol can read. That may be doing proper KYC, or using some of these technology solutions like CeFi is also using today. Getting ahead of these and making sure you have time to adopt.

Ian:

Amazing. Great advice. Roger, thank you so much for joining me on the program. We’ll have you back again soon.

Roger:

My pleasure. Thank you. All right, bye.

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