14 Aug 2021 · 5 min read

US Infra Bill Might Prompt Crypto Business Exodus, Treasury Has a Role Too

If the controversial US infrastructure bill is passed in its current form, it may force crypto companies to leave the country as there's no way to comply with the new requirements. However, the industry would also depend on the US Treasury as this institution would need to put the vague language into practice.

Source: Adobe/Gudellaphoto

The US Senate passed the bill with the original crypto tax provision this week and now it goes to the House next, which is in recess until September 20.

One of the major issues revolves around the use and the definition of the term ‘broker’ for information reporting purposes, as it currently includes node operators, developers, miners, and others who “don't even have access to the information that is needed for tax reporting, and definitely should not be in scope for this reporting,” Wendy Walker, solutions principal at global tax software provider Sovos, told Cryptonews.com.

According to her, the provision presents a risk to a massive segment of the industry and that the word on the street is that businesses, being unable to continue their operations in the US, would move offshore to a country that doesn’t tax them in this respect should the current language remain.

“There's no way that those folks can, not only comply with the requirement, but they won't be able to make a living here doing that,” she said.

Moreover, the US is one of the only jurisdictions that require this third party information reporting, with a similar framework being developed by the Organisation for Economic Co-operation and Development (OECD).

What’s noticeable in other regimes is more real-time tax validation, which is where the IRS and the US, in general, would like to get to as well, Walker said. “They've talked about [a more real-time tax system] for years.”

However, the bill still might change as the pressure is growing in Congress with crypto advocates hopeful of convincing the House of the need to amend.

In either case, what we’re further going to see is the legislation focusing on centralized exchanges and custodians for whom it is intended. But none of this will happen overnight, as there’ll likely be a period of proposed rulemaking that could take three to six months, while the implementation could take 18 months to three years.

Walker also suggested that there is an interconnectedness on this matter globally. For example, the OECD has been working on a change to the common reporting standards schema to include crypto since before the IRS started working on their issue. And when the OECD heard that IRS was prioritizing this and was going to get some legislative action done, they delayed making their changes, according to Walker.

The reason is that “everybody would flock to the US because the US wouldn’t report any non-US transactions. [...] So the idea is that they can't flock to any one country to hide, that everybody will be reporting,” she added.

The role of the US Treasury

Whatever the language is used in the bill, the US Treasury is going to take the statute and “this is where the rulemaking happens,” in conjunction with the IRS Chief Counsel, Walker noted, adding that this is when we'll first see proposed regulations – but also when a lot of details will come into focus as the Treasury will have to “take the vague language that's in the statute and put it into practice.”

Meanwhile, Treasury Secretary Janet L. Yellen reportedly spoke with lawmakers last week to raise objections to the efforts to weaken the legislation’s proposed crypto overhauls.

In either case, during this rulemaking process that will last for several months, they’ll have to clarify points such as whether the exchanges and the custodians should continue to report the gross amounts on the 1099-K form, or the 1099-B one – which has been creating confusion for taxpayers for years, even leading to audits and the John Doe Summons, which permits the tax body to obtain the names, requested information and documents concerning all taxpayers in a certain group.

Walker said that her clients are exchanges and custodians who use these exact forms.

“They really just want the IRS to tell them what to report, [and they say] 'if you would just tell us what to report, to begin with, we would report this and you wouldn't have to go and get these John Doe Summons'.”

Some questions tax consultants will be looking in for their clients and advising them on include: when is a digital asset a covered security, how to value a digital asset for tax purposes, whether the wash sale rules apply, etc. “I think those intricate like rulemaking details, that's what we're going to see” after President Joe Biden signs the bill, Walker said.

The IRS and the Treasury are going to have to define which digital assets are in scope for this new Internal Revenue Code (IRC) 6045 regime versus what they've already provided guidance on in the past.

Besides the regulatory side, one other area that keeps coming up is whether or not there should be a de minimis tax rule for crypto transactions, Walker noted. In the current traditional broker-dealer space, when they report to 1099-Bs, there is a de minimis exception on fractional share trading – and digital assets are bought and sold in fractional amounts.

Another fundamental issue is the valuation of crypto - how does a taxpayer know that the amount that they put on the tax return will be accepted, given that different exchanges show different values at the same time. So “there's a lot of room for arbitrage right now.”

Therefore, the IRS or the government, in general, should “come up with some kind of more consistent way to value that.”
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