4th July 2018

Cryptocurrency Regulations in the United States

Cryptocurrency Regulations in the United States

Cryptocurrencies: Not considered legal tender
Cryptocurrency exchanges: Legal, regulation varies by state

While it is difficult to find a consistent legal approach at state level, the US continues to make progress in developing federal-level cryptocurrency legislation. The Financial Crimes Enforcement Network (FinCEN) does not consider cryptocurrencies to be legal tender but considers cryptocurrency exchanges to be money transmitters on the basis that cryptocurrency tokens are “other value that substitutes for currency.” The Internal Revenue Service (IRS) does not consider cryptocurrency to be legal tender but defines it as “a digital representation of value that functions as a medium of exchange, a unit of account, and/or a store of value” and has issued tax guidance accordingly.Cryptocurrency exchanges are legal in the United States and fall under the regulatory scope of the Bank Secrecy Act (BSA). In practice, this means that cryptocurrency exchange service providers must obtain the requisite license from FINCEN, implement an AML/CFT and Sanctions program, maintain appropriate records, and submit reports to the authorities. Meanwhile, the US Securities and Exchange Commission (SEC) has indicated that it considers cryptocurrencies to be securities, and applies securities laws to digital wallets comprehensively in an approach that will affect both exchanges and investors alike. By contrast, The Commodities Futures Trading Commission (CFTC) has adopted a friendlier, “do no harm” approach, recognising Bitcoin and Ethereum as commodities and allowing other virtual and cryptocurrency derivatives to trade publicly on exchanges that it regulates or supervises.

In response to guidelines published by FATF in June 2019, FinCEN has also made clear that it expects crypto exchanges to comply with record-keeping requirements and the “Travel Rule” by sharing information about the originators and beneficiaries of cryptocurrency transactions. The US  places virtual currency exchanges in the same regulatory category as traditional AML/CFT gatekeepers, financial institutions, and money transmitters:  accordingly, it applies the same regulations, including those set out in the 2021 amendments to the Bank Secrecy Act (which has established its own version of the Travel Rule).The US Treasury has emphasized an urgent need for crypto regulations to combat global and domestic criminal activities. In 2018, Treasury Secretary Steve Mnuchin announced a new FSOC working group to explore the increasingly crowded cryptocurrency marketplace and  in December 2020, FinCEN proposed a new data collection requirement for persons responsible for managing cryptocurrency exchanges, digital assets, DTLs, and crypto payments and on certain private digital wallets. If implemented, the regulation would also require exchanges to submit suspicious activity reports (SAR/CTR) for transactions (over the current threshold of $10,000) and require non-registered financial institutions or MSB wallet owners to identify themselves when sending $3,000 or more in a single or series of linked transactions. 

The Justice Department continues to coordinate with the SEC, CFTC, and other agencies over future cryptocurrency regulations to ensure effective consumer protection and more streamlined regulatory oversight. However, with the Covid-19 crisis hampering (yet adding urgency to) efforts to advance cryptocurrency regulation, the federal approach continues to be gradual. Despite setbacks, US lawmakers remain keen to bring cryptocurrencies under regulatory oversight in anticipation of their potential destabilizing effect on the globally dominant US dollar, and of the impact that private and centrally banked currencies might have. 

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