It wasn’t
too long ago I was speaking with a friend who has a high-level position in the
financial industry. The conversation included a reference to Bitcoins and how they
might impact what he and his company do. We spent a moment on what Bitcoins are
and how they are used.
I am still a
bit confused. Bitcoins are a “virtual” currency. They are not issued or backed
by any nation or government. They took off as a vehicle for wealthy Chinese to
get money out of the mainland, and their market value over the last year has
bordered on the stratospheric: from approximately $13 to over $1,000 and back
down again. Understand: there is no company in which you can buy stock. To own Bitcoins,
you have to own an actual “Bitcoin,” except that Bitcoins is a virtual currency.
There is no crisp $20 bill in your wallet. You will have a virtual wallet,
though, and your virtual currency will reside in that virtual wallet. I suppose
some virtual pickpocket could steal your virtual wallet crammed with virtual
currency.
You can own
a gold miner stock, for example, although the decision to do that would have
proved disastrous in 2013. Then there are Bitcoin “miners,” if you can believe
it. Bitcoins presents near-unsolvable mathematical problems, and – if you answer
them correctly – you might receive Bitcoins in return. That is how new Bitcoins
are created. There a couple of caveats here, though: first, the problems are so
complicated that you pretty much have to pool your computer with other people
and their computers to even have a prayer of solving the problem. There is also
a dark side: the computer security firm Malwarebytes discovered that there was malware
that would conscript your computer and its processing power to aid others mine
for Bitcoins. Second, only 21 million Bitcoins are supposedly going to be
created. Call me a cynic, but look at our government’s fiscal death wish and
tell me you believe that assertion.
Bitcoins are
tailored made for illegal activities. The currency is virtual; there are no
bank accounts or financial institutions to transfer information to the
government - yet. China has banned their financial institutions from using
Bitcoins, and Thailand has made it illegal altogether. Bitcoins was tied into
Silk Road, which was an eBay (of sorts) for drugs and who knows what else. One
apparently had to be a computer geniac to even get to it, as Silk Road resided
in the dark web and required specialized access software (such as Tor) to access.
Its founder was known as Dread Pirate Roberts (I admit, I like the pseudonym),
and Silk Road accepted only Bitcoins as payment. The Pirate gave an interview
to Forbes and was subsequently arrested by the FBI. You can draw your own
conclusion on the cause and effect.
Did you know
that there are merchants out there who will accept payment in Bitcoins, and in
some cases only in Bitcoins? There is even a small town in Kentucky that agreed
to pay its police chief in Bitcoins.
So how would
Bitcoins be taxed? It depends. Let’s say you are trading the Bitcoins
themselves, the same way you would trade stocks or baseball cards. You then need
to know whether the IRS considers Bitcoins to be a currency or a capital asset.
There is a
downside to treating Bitcoins as a currency: IRC Section 988 treats gains and
losses from currency trading as ordinary gains and losses. This means that you run
the tax rates, currently topping-out at 39.6% before including the effects of
the PEP and Pease phase-outs and as well as the ObamaCare taxes.
What if
Bitcoins are treated as a capital asset? We would then have company. Norway has
decided that Bitcoins is not a currency and will charge capital gains taxes.
Germany has said the same. Sweden wants to subject Bitcoins to their VAT. The
advantage to being a capital asset is that the maximum U.S. capital gains tax
is 20%. However, remember that capital losses are not tax-favored. Capital
losses can offset capital gains without limit, but capital losses can offset
only $3,000 of other income annually.
There is a
capital asset subset known as commodities. Futures trades on a currency (as
opposed to trading the actual currency itself) are taxed under Section 1256,
which arbitrarily splits any gain into 60% long-term and 40% short-term. Now
only 60% of your gain is subject to the favorable long-term capital gains tax. However,
futures contracts on Bitcoins do not yet exist.
What if you
are not trading Bitcoins but rather receiving them as payment for merchandise
or services? This sounds like a barter transaction, and the IRS has long
recognized barter transactions as taxable. What price do you use for Bitcoins?
There are multiple exchanges – Mt. Gox or coinbase, for example – with
different prices. One could take a sample of the prices and average, I suppose.
I also
question what to do with the price swings. Say you received a Bitcoin when it
was trading at $900. Under barter rules, you would have $900 in income. You
spend the Bitcoin a week or month later when the Bitcoin is worth $700. You have
lost $200 in value, have you not? Is there a tax consequence here?
If it were a
capital asset, you would have “bought” it for $900 and “sold” it for $700. It
appears you have a capital loss.
This doesn’t
necessarily mean that that the loss is deductible. Your home, for example, is a
capital asset. Gain from the sale of your home is taxable if it exceeds the
exclusion, but loss from the sale of your home is never deductible.
If it were a
currency AND the transaction was business-related, you would have a deduction,
but in this case it would be a currency loss rather than a capital loss. A
currency loss is an ordinary loss and would not be subject to the $3,000 annual
capital loss restriction.
If it were a
currency AND the transaction was NOT business-related, you are likely hosed.
This would be the same as vacationing in Europe and losing money from converting
into and out of Euros. The transaction is personal, and the tax Code disallows
deductions for personal purposes.
What do you
have if you “mined” one of those Bitcoins? When are you taxed: when you receive
it or when you dispose of it?
Bitcoins are
virtual currency. Do you have to include Bitcoins when you file your annual
FBAR for financial accounts outside the U.S. with balances over $10,000? Where
would a Bitcoin reside, exactly?
The IRS has
not told us how handle the taxation of Bitcoins transactions. Until then, we
are on our own.
