A toss of a bitcoin the uncertain nature of the legal status of cryptocurrencies

Cambridge Centre for Alternative Finance, University of Cambridge; Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” https://blogs.duanemorr

A Toss of A (Bit)Coin:

The Uncertain Nature of the Legal Status of

Cryptocurrencies

Julie Cassidy

University of Auckland, New Zealand

Man Huang Alvin Cheng

The University of Nottingham, UK

Fintech is becoming mainstream in facilitating transactions Blockchain technology, from itshumble beginning as a decentralised encrypted form of record keeping has moved to themainstream The advent of cryptocurrencies as a result of blockchain technology is a morenovel Fintech development Based on similar technology, hundreds of cryptocurrencies arebeing created and traded Bitcoins are by far the most popular cryptocurrency, but manyothers exist The popular “coins” fluctuate dramatically in “prices”, where realised andunrealised gains are being made by coin-holders

This paper is the first part of a two part broader analysis of the tax treatment of cryptocurrencies.The current analysis is confined to four key Asian Nations, China, Vietnam, South Korea and Japan.These nations have been specifically selected as they represent the extreme positions that havebeen taken in this context At one end of the spectrum, China has effectively banned trading incryptocurrencies, particularly bitcoin Vietnam has cautiously approached the issue, reflecting itsinfancy in the area of cryptocurrencies, by banning payment by cryptocurrencies Payment bycryptocurrency is considered illegal Nevertheless, the government has not totally bannedcryptocurrency It still recognises it as property, thus an asset that may be invested and traded.Japan, by contrast, has taken the polaristic view that cyroptocurrencies are “currency” and sought tosupport and foster trading in same Korea had originally followed the lead of Japan, but recently hasdone a back flip in this regard In a way the Korean government has embraced a hybrid view While

no longer treating cryptocurrency as a “currency”, the government has asserted it will not bantrading in cryptocurrencies It will, however, highly regulate this market Concerned for the use ofsuch transaction to launder money, the identity of participants to a trade must match the names ofthe holders of local bank accounts.This is to prevent

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anonymous trades and trading by non-nationals Vietnam has cautiously approached the issue, reflecting its

infancy in the area of cryptocurrencies, by banning payment by cryptocurrencies Payment by cryptocurrency

is considered illegal Nevertheless, the government has not totally banned cryptocurrency It still recognises it

is property, thus an asset that may be invested and traded

Keywords: Cryptocurrencies; Bitcoin; Tax; Currency; Trade; Asia nations.

1 Introduction

Fintech is becoming mainstream in facilitating transactions Blockchain technology, from itshumble beginning as a decentralised encrypted form of record keeping has moved to themainstream The advent of cryptocurrencies as a result of blockchain technology is a morenovel Fintech development Based on similar technology, hundreds of cryptocurrencies arebeing created and traded Bitcoins are by far the most popular cryptocurrency, but manyothers exist.1 The popular “coins” fluctuate dramatically in “prices”, where realised andunrealised gains are being made by coin-holders 2

The economic substance of cryptocurrencies give them value, but to date the law has notdefinitively defined this substance The difficulty is that the transfer of value between theparties involves the transfer of a unique digital file that in itself has no intrinsic value 3Regulating cryptocurrency is a difficult task for regulators, as the definition of “cryptocurrency”and which aspect requires regulation are not settled At the moment, there is no clear andauthoritative definition of cryptocurrency, making it difficult for regulators to control andmonitor activities This difficulty exists at two levels: initial coin offerings (ICO) that brought thecryptocurrency into existence and trading in the cryptocurrencies themselves

Defining the legal nature of cryptocurrencies and in turn ascertaining what gives them value

is important for many reasons At its most fundamental level the answer to these matters willdetermine the regulatory framework within which trading in cryptocurrencies may or may notoccur At one extreme the government may simply prohibit trading in cryptocurrencies, evenmaking such transactions illegal, as in China and Vietnam At the other end of the spectrumtrading may not only be legal, but be facilitated by government concessions The mostimportant of these concessions is recognising cryptocurrencies as “currency” To this end it iscrucial from the outset to understand that that the term “cryptocurrency” is in itself amisnomer If it is to obtain the status of “currency”, whether that be foreign currency orequivalent to local currency, will be determined by the government of the relevant jurisdictions.The government, as in the case of Vietnam, may determine that transactions involvingcryptocurrencies merely involve the sale of property, akin to the sale of shares, futures, or insome cases the parallel that is drawn is gold bullion or oil 4 Alternatively, as in Japan, it may betreated as “currency” that has the same status as foreign currency or, in extreme cases,equivalent with currency issued by the local sovereign state

1 Hileman, G., & Rauchs, M (2017) Global Cryptocurrency Benchmarking Study Cambridge Centre for

Alternative Finance, University of

Cambridge; Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” ( https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of- vietnam-just-turn- its-back-on-the-future-of-commerce ) at 1.

2 The value of Bitcoin had increased approximately 750% between Augus 2016 and August 2017 As to the volatility of the currency and the “bubble” at times bursting see Laura Davidson and Walter Block, “Bitcoin, the Regression Theorum, and the Emergence of New Medium of Exchane” (2015 18(3) Q J Austrain Econ 311 at 327; Adam Hartung, A Bitcoin is worth $4,000-Why you probably should not own one” Forbes (15 August 2015); Fitz Tepper, “The reward for mining Bitcoin was just cut in half” Tech Crunch (9 July 2016) (wwwtechcrunch.com).; Jeff John Roberts, “5 Big Bitcoin Crashes: What we Learned”, Fortune (18 September 2017).

3 Ghassan Karame et al, “Two bitcoins at the price of one? Double-spending attacks on fast payments in Bitcoin” (2012).

4 Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?”

vietnam-just-turn- its-back-on-the-future-of-commerce) at 2.

(https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of-254

As discussed in this paper, this has significant ramifications to the tax treatment of gainsand losses from such transactions As property, not only will transactions made in the ordinarycourse of business be subject to tax as ordinary/business income, but non-business tradingsmay also be subject to income/capital gains tax The umbrella of transactions caught under thisapproach may not only include the purchase of cryptocurrencies with the purchase of profit to

ad hoc dabblings in such trading Even in this context, the category of property into whichcryptocurrencies are placed will be important Are they a form of tangible or intangibleproperty? 5 Are they a financial products? Trading in financial products are generally regulated

by relevant government securities regulators 6 In the tax context, financial products aretraditionally exempt / “zero rated” in terms of value added taxes (VAT)/ goods and servicestaxes (GST)? By contrast, if it the crytocurrency is akin to local currency it will normally beexempt from taxes such as capital gains tax and, again, value added taxes (VAT)/ goods andservices taxes (GST) As to which way a government might turn is anyone’s guess: A toss of a(bit)coin!

This paper is the first part of a two part broader analysis of the tax treatment of cryptocurrencies.The current analysis is confined to four key Asian Nations, China, Vietnam, South Korea and Japan.These nations have been specifically selected as they represent the extreme positions that havebeen taken in this context At one end of the spectrum, China has effectively banned trading incryptocurrencies, particularly bitcoin Vietnam has cautiously approached the issue, reflecting itsinfancy in the area of cryptocurrencies, by banning payment by cryptocurrencies.7 Payment bycryptocurrency is considered illegal.8 Nevertheless, the government has not totally bannedcryptocurrency It still recognises it as property, thus an asset that may be invested and traded.9Japan, by contrast, has taken the polaristic view that cyroptocurrencies are “currency” and sought tosupport and foster trading in same Korea had originally followed the lead of Japan, but recently hasdone a back flip in this regard In a way the Korean government has embraced a hybrid view While

no longer treating cryptocurrency as a “currency”, the government has asserted it will not bantrading in cryptocurrencies It will, however, highly regulate this market Concerned for the use ofsuch transaction to launder money, the identity of participants to a trade must match the names ofthe holders of local bank accounts.10 This is to prevent anonymous trades and trading by non-nationals Vietnam has cautiously approached the issue, reflecting its infancy in the area ofcryptocurrencies, by banning payment by cryptocurrencies.11 Payment by cryptocurrency isconsidered illegal.12 Nevertheless, the government has not totally banned cryptocurrency It stillrecognises it is property, thus an asset that may be invested and traded.13

The paper begins with a brief introduction to the technology underpinning cryptocurrencies.This is important to understanding the very nature of cryptocurrencies and how transactionsoccur It considers the legal position(s) in China, Vietnam, Japan and Korea, exploring inparticular the tax implications of same A subsequent paper will consider the positions in theUnited Kingdom, United States, Australia and New Zealand

5Cryptocurrencies have no physical form There foundation in the data strings that represent the coin: Corin Faife,

“Bitcoin Hash Functions Explained” Coindesk (online ed, 19 February 2017).

6 See for example, the Australian regulatory authority, ASIC, when considering the relevant misleading and deceptive conduct provisions determined that the offering of was not the offering of a financial product: ASIC website,

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2 A Brief Technical Outline of Cryptocurrencies

As noted above, there is no clear and authoritative definition of Cryptocurrency The bestway to understand cryptocurrenies is to highlight its unique features First, cryptocurrenciessuch as Bitcoin, are entirely digital Cryptocurrencies have no physical form As discussedbelow, their foundation lies in no more than the data strings that represent each ‘coin’.14 A 64-character long identifier represents each coin 15 The final coin is a ‘chain’ of data strings aseach transaction is recorded, adding a new link to the chain.16 By contrast, other forms ofelectronic representation of money, known as fiat currencies, may be involved in digitalenvironment, but they still have a physical form, namely coins and notes.17

Slattery suggests that a cryptocurrency is “loosely defined as a decentralized system ofexchange, or electronic money, which uses cryptography to provide the program’s security.”18Thus a second feature of cryptocurrencies is the use of cryptography; hence the crypto prefix.Crypotocurrencies are “an electronic payment system based on cryptographic proof instead oftrust, allowing any two willing parties to transact directly with each other without the need for atrusted third party.”19 Each Bitcoin is effectively the solution to a complex algorithm 20 Thesolution to the encryption is partially in a public key, and partially in the owner’s private key 21These keys are both required to confirm the validity and ownership of a Bitcoin 22 In turn, youmust have the private key, like a pin code, to transfer a Bitcoin While the private key is needed

as proof of ownership, ultimately the system is based on cryptographic proof alone it provides asystem of, albeit recorded, anonymity

Third, and arguably foremost, they are a form of ‘currency’ that is not issued by a sovereignnation; thereby having no connection to a government or state bank.23 Instead each cryptocurrency

is contained in its own network Each time a person interacts with a cryptocurrency, the computerjoins that network to record the transaction More correctly, the transaction is recorded in a publicledger that is constantly ‘talking’ to all the computers in the network Computers in the network areconstantly updating the information and sealing of the recorded parts of the digital ledger byencrypting the record using the above discussed complex mathematical algorithm.24 To incentivisethe recording and sealing off of a block in the ledger, computers are rewarded with new currency,known as “native tokens”.25 In turn, the process of recording and sealing of

14 Cryptocurrencies have no physical form There foundation in the data strings that represent the coin: Corin Faife, “Bitcoin Hash Functions Explained” Coindesk (online ed, 19 February 2017).

15 Andreas Antonopoulos Mastering Bitcoin: Programming the Open Blockchain (2017, O’Reilly Media Inc,

18 Thomas Slattery, “Taking a Bit out of Crime: Bitcoin and Cross-Boarder Tax Evasion” (2004 39 Brook J Intl L 829

at 831 To this end some other terms commonly used may have the same meaning, including digital currency, virtual currency and digital token There are some differences in their nature, but in the context of this paper, they are grouped together as cryptocurrenies

19 Satoshi Nakamoto, “Bitcoin: A Peer-toPeer Electronic Cash System” (2008) (www.Bitcoin.org).

20 CorinFaife, “Bitcoin Hash Functions Explained” Coindesk (online ed, 19 February 2017).

21 John McGinnis and Kyle Roche “Bitcoin: Order Without Law in the Digital Age” Northwestern Public Law Research Paper No 17-06 at 27

22 Adam Chodorow “Bitcoin and the Definition of Foreign Currency” (2016) Flor Tax Rev 19(6) 365 at 374.

23Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” ( https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of- vietnam-just-turn- its-back-on-the-future-of-commerce ) at 2.

24Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” ( https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of- vietnam-just-turn- its-back-on-the-future-of-commerce ) at 2.

25 Above note 1, at 13.

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blocks in the ledger is known as “mining.” 26 The ledger is stored on every computer in thenetwork rather than a central server 27

This sealing off process of new transactions in turn relies on the information contained inpreviously sealed off blocks in the ledger.28 Thus each block is a link which relies on earlier links Thelinking of the blocks in this way provides the reason why the technology used by cryptocurrencies isknown as ‘blockchain’.29

In each cryptocurrency’s blockchain system, there are different players These players arecryptocurrency exchanges, who facilitate the “purchase, sale and trading of cryptocurrencies”,digital wallets that stored cryptocurrencies, payment systems that facilitate payments usingcryptocurrencies (where the cryptocurrencies are used to purchase goods and services) andthe above discussed miners who secured the public ledger.30

Definitions of what a blockchain is vary, but the general consensus is that it is a database orledger of transactions which is distributed over a peer to peer network (such as the internet) Ituses a variety of cryptographic techniques and validity rules to reach consensus betweenparticipants over changes to the shared database without needing to trust the integrity of any

of the network participants

There are many misconceptions about blockchain as a technology These misconceptionsinclude that blockchains are “trustless”, tamperproof and 100 per cent secure In regards to

“trustless”, the misconception is that people transact without having to trust the party they aretransacting with This “trustless” nature is guaranteed because every user of the blockchainkeeps a record of the transaction and a consensus by the block is needed before thetransaction goes through This is true, but while there is no trusted third party (ie a bank), adegree of trust will always be required in the underlying code and the cryptography applied inthe algorithm

With regard to tamper-proof, while transactions on the blockchain are more tamper resistantthan mainstream transactions, transactions can be reversed if enough nodes on the networkcollude Nodes are participants on the blockchain This is often perceived as the doublespending problem, once more than 50 per cent of computational power on the blockchaincollude, the blockchain can be tampered with

With regard to being 100 per cent secure, while blockchains use cryptography, it is only assecure as how well the cryptographic “keys” are managed This factor is no different tocentralised technologies; colluding actors can tamper with the records on the chain if theycould solve the cryptography in the algorithm

3 China

26 Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” ( https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of- vietnam-just-turn- its-back-on-the-future-of-commerce ) at 2.

27 Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” ( https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of- vietnam-just-turn- its-back-on-the-future-of-commerce ) at 2.

28 Hileman, G., & Rauchs, M (2017) Global Cryptocurrency Benchmarking Study Cambridge Centre for

Alternative Finance, University of

Cambridge; Oliver Massman, “Did the State Bank of Vietnam Just Turn its Back on the Future of Commerce?” ( https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of- vietnam-just-turn- its-back-on-the-future-of-commerce ) at 2.

29 Sean Ross, “What does block chain record in a Bitcoin exchange transaction?” Investopedia (online ed, 30 June 2015) Oliver Massman,

“DidtheStateBankofVietnamJustTurnitsBackontheFutureof Commerce?”

( vietnam-just-turn- its-back-on-the-future-of-commerce ) at 1.

https://blogs.duanemorris.com/vietnam/2017/12/11/vietnam-bitcoin-and-cryptocurrencies-did-the-state-bank-of-30 Hileman, G., & Rauchs, M (2017) Global Blockchain Benchmarking Study Cambridge Centre for Alternative

Finance, University of Cambridge.

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Due to the rapid growth of the digital economy, the taxation of cryptocurrencies presents agreat challenge to the existing tax system In particular, the nature of cryptocurrencies oftenposes problems in determining the source of tax and tax collection.31

In August 2009, the People’s Bank of China issued the “Administrative Measures forElectronic Currency Issuance and Clearing Measures: Exposure Draft (“Exposure Draft”)”, whichdefined the term “electronic currency” as “the prepaid value stored on a client’s electronicmedia for the purpose of payment” Article 3 of Chapter 1 of the Exposure Draft states thatelectronic currency can be divided into two categories: card-based electronic currency andnetwork-based electronic currency Card-based electronic currency is defined as a form ofelectronic currency stored in a computer-chip (ie a debit card), while network-based electroniccurrency is defined as the electronic currency stored in software (ie cryptocurrencies) Article 3also states that electronic currency excludes any prepaid currency used for inter-departmentalpayments The definition is consistent with the one suggested by the Basel Committee onBanking Supervision.32

The State Administration of Taxation (SAT) issued the Letter No 818 [2008] of the StateAdministration of Taxation, responding to a query submitted by the Beijing Municipal Bureau ofLocal Taxation regarding the collection of individual income tax on virtual currency The LetterNo.818 confirms that any gain from the transfer of the virtual currency should be subject to theindividual income tax under the item of “incomes generated from property transfer” UnderArticle 2(9) of the Individual Income Tax Law of the People's Republic of China (2011Amendment), the capital gains on the exchange of capital assets are subject to the individualincome tax under the item of “incomes generated from property transfer” and are generallytaxable at a flat rate of 20 percent In the context of cryptocurrencies, the original value (or thecost base) includes the price and any taxes that the taxpayer initially paid for the virtualcurrency If the taxpayer cannot provide the evidence regarding the original value of virtualcurrency being traded, then the taxation authority will determine the original value

On 3 December 2013, due to the rapid growth of Bitcoin in China and the increasing riskassociated with the Bitcoin’s transactions, the People's Bank of China, the Ministry of Industryand Information Technology, the Securities Regulatory Commission, the China BankingRegulatory Commission and the China Insurance Regulatory Commission jointly issued the

“Circular of the People's Bank of China, Ministry of Industry and Information Technology, ChinaBanking Regulatory Commission, China Securities Regulatory Commission, and China InsuranceRegulatory Commission on the Prevention of Risks from Bitcoin (“2013 Circular”)” in order tomore tightly regulate Bitcoin The 2013 Circular referred to Bitcoin as a specific “virtualcommodity” It states that Bitcoin cannot be used as a legal tender in China, prohibiting Bitcoinfrom acting as a payment medium for the purchase of any goods or services, and prohibitingany financial institution and payment institution from conducting transactions associated withBitcoin Added to this, it is required that the trading platform implement compulsoryregistration and should be subject to the anti-money laundering law.33 In order to preventmoney laundering, China warned that it would take future action, further the private ownership

of Bitcoin in the future.34

In September 2017, the People's Bank of China “issued the “Announcement of the People'sBank of China, the Office of the Central Leading Group for Cyberspace Affairs, the Ministry ofIndustry and Information Technology and Other Departments on Preventing the Financing Risks

of Initial Coin Offerings” to ban any

31 Yang, The Impact and Countermeasures of Enterprise Income Tax in the Era of Digital Economy Based on the International Comparison Perspective (2017) MSc Dissertation Guizhou University of Finance and Economics.

32 Pu, L J & Zhang, Y.(2018) Internet Financing (WangLuo JinRon Xue) China: Southwestern University of Finance and Economics Press; Zhao, Z L (2010) Research on the legal issues of virtual currency MSc Dissertation China University of Political Science and Law.

33 People'sBankofChinaetal.(2013).“NoticeonPreventionofBitcoinRisks”

(http://www.pbc.gov.cn/goutongjiaoliu/113456/113469/2804576/index.html).

34Sparkes, M (5 December 2013) Bitcoin plunges 29pc as China bans banks from trade The Telegraph,

(https://www.telegraph.co.uk/technology/news/10497146/Bitcoin-plunges-29pc-as-China-bans-banks-from-trade.html).