BitcoinDood: First off, thanks a lot for taking time out of your busy schedule to answer these questions. I’m really excited about this interview. I’m just a trader, and have an extremely basic understanding of the legalities of cryptocurrency so it’s really exciting to talk to someone from this sector of the industry. Please excuse my basic terminology when asking legal questions. This topic can get pretty confusing for the average guy, and The Dood’s about as average as they come 🙂
BitcoinDood: To start with, could you please take a moment and introduce yourself, tell us a little about who you are and what you do?
Brian Innes: My name is Brian Innes. I am attorney practicing in Utah. My practice focuses on business and real estate transactions. I am also working to develop an expertise in the legal issues surrounding blockchains and cryptocurrencies.
Before starting, I need to make the following disclaimer. This interview does not constitute legal advice and should not be relied on by any person. This interview is designed for general informational purposes. You should seek advice from your own counsel, who is familiar with the particular facts and circumstances of what you intend to do and can give you tailored advice. No attorney client-relationship is created, nor is this intended to be attorney advertising in any jurisdiction.
BitcoinDood: From a lawyer’s perspective, what are your thoughts on Bitcoin and cryptocurrency in general?
Brian Innes: From a legal perspective, it feels like we are in uncharted territory when it comes to cryptocurrencies and blockchain legal issues. Current laws and regulatory frameworks are not adequate to address all of the challenges and issues raised by cryptocurrency and blockchain technology. These laws and frameworks will need to evolve to deal with these new challenges. Also, as a contract attorney, the potential for disruption of the legal industry by smart contracts is something I am watching with interest.
BitcoinDood: How did you first get involved with cryptocurrency?
Brian Innes: I first heard about Bitcoin a number of years ago. At the time, I didn’t really see the usefulness of Bitcoin and other cryptocurrencies. It wasn’t until I learned about blockchains that the light turned on. Once I understood the potential use cases and applications for blockchains, I became really interested in cryptocurrencies.
BitcoinDood: From a legal standpoint, what is bitcoin and cryptocurrency? Is it money, a commodity, a security, some sort of financial instrument? What legal category would cryptocurrency fall under?
Brian Innes: One of the first things I learned in law school was the answer to the nearly every question asked by a law professor is “it depends.” I think that’s applicable here. Depending on the context, a cryptocurrency or blockchain token could be any of the above. Some people are purchasing blockchain tokens to use as money, some are purchasing blockchain tokens like gold or another commodity, some are purchasing blockchain tokens as a store of value and others are purchasing blockchain tokens as investments in the same way they would a security. Depending on the applications and uses of a particular token it could be any or all of the above.
BitcoinDood: A really touchy subject in the cryptocurrency space is regulation. For an industry that was basically started by a group of self-proclaimed crypto-anarchists, “regulation” is a dirty word. I see the eventual regulation of cryptocurrency as inevitable. Overall, where do you see regulation heading in the future? What type of laws do you think we can expect in the future and why?
Brian Innes: Regulation of blockchain tokens is difficult, among other reasons, because of their hybrid nature. Tokens and currencies with different properties will likely need to be treated differently. There can’t be a one size fits all regulation scheme for all cryptocurrencies, any regulations will need to be flexible enough to account for the difference between currencies and their uses.
I think the regulation we will see first will be in the securities law arena. The frothy ICO marketplace has already attracted and will continue to attract people looking to make a quick buck by using blockchain tokens to perpetrate pyramid or other fraudulent schemes. Many ICOs are also looking very much like securities offering. Even the term ICO is confusingly similar to the term IPO, which is a securities offering. It’s not even just fraudsters that are running afoul of the law. There are legitimate ICOs out there that likely have violated securities laws. Any securities offering must be either registered with the SEC or exempt from registration. Any ICO that is deemed to be a securities offering must be registered with the SEC. Failing to get this approval or having a valid exemption to rely upon can result in serious consequences. The registration process is designed to protect investors by requiring the promoter of an offering to provide sufficient disclosures for an investor to make an informed decision. I expect the SEC to step in at some point and reign in ICOs.
BitcoinDood: We’ve seen many states begin to pass “cryptocurrency laws”. New York has the BitLicense, and I know a few other states have passed laws, or are in the process of drafting laws. Many cryptocurrency businesses will not deal with individual states for legal reasons. How can a small business or start up protect themselves from state by state compliance issues?
Brian Innes: I think the first step is for the business owner to do as much research as possible on their own to learn what potential laws and regulations apply to their business. The less jurisdictions the business owner is conducting business in, the easier it will be to keep up with compliance issues. The next step would be to hire an attorney with expertise in the area.
BitcoinDood: It will probably just be a matter of time before federal regulators get involved and draft additional legislation. My understanding is federal law, supersedes state law. What types of laws do you think the government will try to enforce with cryptocurrency, and would federal regulation straighten out a lot of the issues with state by state compliance?
Brian Innes: I agree with you. I think it’s a matter of when not if regulation comes. The SEC seems to be the organization most likely to take the lead with respect to cryptocurrency regulation. Federal securities laws do preempt state securities laws, but there are also in some circumstances additional rules and regulations imposed by state regulators that must be followed.
BitcoinDood: So we’ve covered state law and federal law, but cryptocurrency is a global phenomena without borders. Cryptocurrency is decentralized, without a single point of failure. For instance bitcoin miners all over the world keep the bitcoin network up and running. There technically is no way to stop bitcoin unless you shut off every mining rig around the globe. For example, if you cut off the Chinese miners, then the Venezuelan miners, Brazilian miners, and all the other global miners are now keeping the network running. Based on that fact, many argue that any regulation is unenforceable. What do you say to those people who think regulation is unenforceable? Are they correct or delusional?
Brian Innes: Coordinated international regulation would be difficult if not impossible to accomplish, but countries could definitely regulate (to some extent) the purchase and use of blockchain tokens in their own countries. In the United States, for example, the SEC could bring blockchain tokens under their purview and prohibit ICO organizers from selling blockchain tokens to any unaccredited investors in the United States without appropriate disclosures. Some blockchain token ICOs already restrict purchases from US citizens because they don’t want to deal with US securities laws. The decentralized and autonomous nature of cryptocurrencies makes it difficult for regulators and lawmakers to catch up and decide what do. Existing law is likely inadequate to deal with cryptocurrencies and will need to change and evolve to meet this new challenge. Because of the international nature of cryptocurrencies, governments will have a really tough time trying to shut cryptocurrencies down entirely. Also governments that try and overregulate cryptocurrencies run the risk of falling behind the times and other countries that are friendlier toward cryptocurrencies. Another area of potential regulation is with banking. If the US government wanted to discourage cryptocurrencies, they could make it difficult for banks to handle cash from cryptocurrency trading.
BitcoinDood: If an investor gets caught up in a blatant ICO scam, do they have any legal recourse? What can they do?
Brian Innes: I think it would be exceedingly difficult to have any meaningful recourse. Finding the promoter, suing the promoter, obtaining a judgment against the promoter, and collecting on the judgment, would be difficult but not impossible. Because of these risks, investors need make sure they’ve really done their homework before purchasing tokens in an ICO.
BitcoinDood: Anyone that’s been involved in altcoin trading for any length of time can see there’s all kinds of insider trading and market manipulation going on in this industry. I’ve seen several pump groups on twitter and different social groups. Most of these groups select a coin, pump up the price by buying large amounts of the coin while hyping it up on social networks, then when it reaches a certain price they dump the coin back into the market driving down the price. Are these groups legal? Wouldn’t this be considered inside trading? Should participants in these groups be worried?
Brian Innes: This type of conduct is definitely illegal under existing securities laws. Pump and dump schemes are common with thinly traded stocks and are heavily scrutinized by the SEC. Doing the same thing with cryptocurrencies doesn’t seem to be any different to me. People engaging in this conduct could be subject to both criminal and civil actions. I would be surprised if the SEC isn’t already aware of and investigating these types of schemes.
BitcoinDood: Cryptocurrency and taxes. As far as I know there really isn’t a tax code that deals with cryptocurrency. Most people in the industry want to pay their taxes, but don’t even know where to begin. I asked my accountant about it last year and she was at a complete loss. Do you have any suggestions on how cryptocurrency traders should be handling the taxes on their gains and losses?
Brian Innes: The IRS has provided some guidance on taxation of cryptocurrency: https://www.irs.gov/uac/newsroom/irs-virtual-currency-guidance and https://www.irs.gov/pub/irs-drop/n-14-21.pdf. For tax purposes, my understanding is the IRS treats cryptocurrency like property and not foreign currency. That means someone selling goods or services that are paid for in cryptocurrency must pay taxes on the value of the currency on the day received. Gain on cryptocurrency is also taxed. The tax treatment depends on whether the cryptocurrency is held as a capital asset or not. Cryptocurrency held as a capital asset is given capital gains treatment. Cryptocurrency that is not held as a capital asset is given ordinary income treatment. With respect to mining, the miner is required to recognize the revenue at fair market value on the date the coin in mined and appreciation would also be subject to additional tax.
BitcoinDood: The Dood really appreciates your time, thanks so much for answering these questions. I ask all my interviews the same last question. Where do you see cryptocurrency in general, heading in the future?
Brian Innes: I am really bullish on the future of cryptocurrency. I do expect some measure of price correction in the future, but long term, I think the outlook is positive. The potential of blockchain is limitless and I think people find some amazing ways to use it.
BitcoinDood: If people want to retain your services, how can they get in contact with you?
Brian Innes: Anyone interested can follow me on Twitter at @blockchain_law.
Thanks again to Brian Innes for taking the time to answer The Dood’s questions. Please remember nothing here, in this post, or on this website is meant as legal or financial advice. Please seek a duly licensed professional for such matters. Thanks for reading, and happy trading everyone!