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Dec. 28, 2017, 11:20 a.m. EST

Here’s how the U.S. and the world regulate bitcoin and other cryptocurrencies

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By Francine McKenna, MarketWatch

AFP/Getty Images

Regulators all over the world have begun to address the challenges presented by virtual currencies that mostly bypass regulated banks, financial firms, exchanges and central clearinghouses.

“Digital currencies, token sales and blockchain initiatives of all types have ignited a global phenomenon unlike anything I have ever seen,” said J. Dax Hansen, a partner at law firm Perkins Coie who leads its Blockchain Technology & Digital Currency industry group. “As the technology underpinning these developments disrupts products and services in nearly every industry, law makers, regulators and law enforcement are scrambling to keep up.”

Because the current players in virtual currencies including the most popular bitcoin /zigman2/quotes/31322028/realtime BTCUSD +0.03%      largely operate outside of the conventional financial system, regulators are concerned about money laundering, terrorist financing, tax evasion and fraud.

Read: South Korea mulls bitcoin exchange shutdown to quell speculative frenzy

And: Bitcoin tumbles 10% as South Korea moves to curb crypto trade

In the U.S., the Securities and Exchange Commission and the Commodity Futures Trading Commission have sent out a flurry of announcements in the last few months on the subject, including some strong statements by Jay Clayton, the SEC chairman.

“Where we see fraud, and where we see people engaging in offerings that are not registered, we are going to pursue them because these types of things have a destabilizing effect on the market,” said Clayton at a meeting at the Federal Reserve Bank of New York at the end of November.

Read: After bringing ICO case, SEC’s Clayton promises more cryptocurrency enforcement

Here’s what U.S. regulators are currently doing:

Regulator Current summary Key developments
Securities and Exchange Commission SEC has not approved any exchange-traded products (such as ETFs) holding cryptocurrencies or other assets related to cryptocurrencies for listing or trading. SEC has not registered any initial coin offerings. On July 25, 2017, the SEC issued an investor bulletin about initial coin offerings, saying they can be “fair and lawful investment opportunities” but can be used improperly. The SEC has issued three enforcement actions against ICO sponsors- one halt and exposure of two alleged frauds. SEC Chairman Clayton has also expressed concern about market participants who extend to customers credit in U.S.
Commodity Futures Trading Commission The CFTC has designated bitcoin as a commodity and announced that fraud and manipulation involving bitcoin traded in interstate commerce and the regulation of commodity futures tied directly to bitcoin is under its authority.  The CFTC allowed the CME and CBOE to launch bitcoin futures. CFTC also approved a platform for the trading and clearing of virtual currency derivatives for LedgerX, LLC, a swap execution facility and derivatives clearing organization.
Internal Revenue Service The IRS says bitcoin must be treated as property for tax purposes. That means a capital gain or loss should be recorded as if it were an exchange involving property. It should be treated like inventory if it is held for resale, and therefore an ordinary gain or loss recorded. If it is used as payment, it should be treated like currency, but must be converted, and its fair market value checked on an exchange.
States Several U.S. states plan to approve the acceptance or promotion of the use of bitcoin and blockchain technology, while some have already passed them into law according to Bitcoin magazine, including Arizona (recognition of smart contracts), Vermont (blockchain as evidence) and Delaware (pending initiative authorizing registration of shares of Delaware companies in blockchain form). The National Conference of Commissioners on Uniform State Laws voted in July to approve a model act providing for the regulation of digital currency businesses at the state level.
Department of Treasury In November the U.S. Treasury Department’s inspector general said it planned to review FinCEN’s cryptocurrency practices as they relate to money laundering and terrorism financing risks. FinCEN’s Guidance FIN-2013-G001 declared that “virtual currency does not have legal tender status in any jurisdiction.” Treasury Secretary Steven Mnuchin said in November he had established working-groups at treasury looking at bitcoin and that it is something they will be watching “very carefully.”

Here’s what happening overseas, as compiled by law firm Perkins Coie:

Country Current summary Key developments
Abu Dhabi Issuers and intermediaries of virtual currencies and “security” tokens may be subject to regulation—depending upon the nature of the product and service. On Oct. 9, 2017, the Financial Services Regulatory Authority (FSRA) of Abu Dhabi issued guidance on the regulation of initial coin/token offerings (ICO) and digital currency as supplemental guidance to the existing 2015 Financial Services and Markets Regulations.
Argentina Virtual currencies are not legal tender under the country’s National Constitution, which designates the Central Bank as the only authority that may issue legal tender. On Nov. 2, 2017, Argentina’s largest futures trading market, the Mercado de Termino de Rosario (Rofex) has been considering offering services to investors in digital currencies and plans to make an announcement by the end of 2017.
Austria Austria regulates financial services involving virtual currencies.
Australia Digital currency exchanges will be subject to registration and regulation in mid-2018, once amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act of 2006 take effect. Digital currency transactions are no longer subject to goods and services taxes (GST) but remain subject to incomes and capital gains taxes. On December 7, 2017 the Australian Parliament passed amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act of 2006. On Dec. 8, 2017, The Australian Taxation Office updated its guidance on GST and digital currency to address tokens and ICOs. On Oct. 18, 2017, Australia approved legislation introduced on September 14 to remove the double taxation on digital currency. On Aug. 8, 2017, Australian senators from both major political parties announced that the Reserve Bank of Australia (RBA) should formally recognize bitcoin and other digital currencies as official forms of currency. On March 20, 2017, Australia’s securities and investments regulator, ASIC, released guidance on the use of distributed ledger technology (including blockchain) in financial services and financial markets.
Bangladesh Bangladesh Bank issued a warning against conducting transactions in cryptocurrency, and reportedly stated that such use is punishable by up to 12 years in jail
Belgium The National Bank of Belgium has warned investors and the public of the dangers of virtual currencies and declared that they are not legal tender, and the Minister of Justice has announced his intention to impose strict regulations on virtual currency activities. On June 16, 2017, the National Bank of Belgium issued a report on the threat of digital currencies to monetary policy—concluding that “any threats to monetary stability caused by digital currencies issued by private players are rather limited at this point.”
Bermuda Government intends to begin regulating virtual currencies and ICOs in 2018. The Government of Bermuda announced it will begin to regulate virtual currency exchanges, coins and securitized tokens, in early 2018. The new regulation would include the activities of firms, operating in or from Bermuda, that use distributed ledger technologies (DLT) to store or transmit value.
Bolivia Virtual currency has been explicitly banned.
Brazil The Central Bank of Brazil has not yet regulated virtual currencies, but has issued the now-standard warnings about their use.
Bulgaria Personal income from the sale or exchange of bitcoin is taxable, and will be treated as income from sale of financial assets.
Canada Canadian lawmakers seem to be taking a lighter approach to regulating virtual currencies, with a ‘regulate-and-embrace’ policy, focusing primarily on anti-money laundering concerns In Nov. 2017, the Bank of Canada has issued a discussion paper addressing whether a central bank should issue digital currency (CBDC) that could be used by the general public. On Nov. 2, 2017, the Ontario Securities Commission granted regulatory relief to Toronto-based Funder, Inc. to allow Ontario’s first regulated ICO/ITO. On May 25, 2017, the Bank of Canada stated that its experiment with blockchain, or distributed ledger technology, showed it is currently not compatible with operating the country’s centralized interbank payment systems
China Financial institutions and third-party payment providers are banned from accepting, using, or selling virtual currencies. Although its use remains legal, the People’ s Bank of China has required exchanges to register with the appropriate regulatory authorities and has suggested it will closely watch the markets. The People’s Bank of China has allegedly warned banks from working with virtual currency-related businesses. On Sept. 4, 2017, China banned all companies and individuals from raising funds through ICO activities, reiterating that ICOs are considered illegal activity in the country.
Colombia Colombia’s financial regulatory body (SFC) has prohibited banks from working with virtual currency. The SFC and the Central Bank have also indicated that bitcoin is not a currency.
Croatia Informal statements by the Croatian National Bank are favorable regarding the legality of bitcoin.
Cyprus Virtual currencies are not illegal in Cyprus, but Central Bank has warned about their use.
Czech Republic Czech Ministry of Finance has indicated that virtual currency transactions are subject to anti-money-laundering laws and reporting requirements.
Denmark Financial Supervisory Authority has issued warnings about the risks of virtual currencies, similar to other European nations, and has suggested there may be amendments to regulations regarding virtual currencies. Currently, it does not appear that virtual currencies are regulated, at least under money laundering or financial institution regulations.
Ecuador Ecuador has banned issuance, promotion, or circulation of virtual currencies, and plans to issue its own digital currency for use as legal tender.
Estonia Informal cautions regarding use of bitcoin in response to email inquiries; bitcoin income is treated as capital gains. On Aug. 23, 2017, Estonia proposed the launch of its own state-managed cryptocurrency, “estcoin,” which would be launched using an ICO.
European Union European Banking Authority issued warnings to the public about the risks associated with virtual currencies, and recently indicated it will apply anti-money laundering and anti-terrorist financing rules to virtual currencies. On Sept. 7, 2017,European Central Bank President Draghi rejected Estonia’s plans to launch its own state-run digital currency, “estcoin,” and indicated that the ECB would not allow Estonia or any other EU member state to introduce its own currency
Finland Based on informal interviews, the best indication is that virtual currencies are treated as commodities in Finland. On Nov. 22, 2017, Finland’s Financial Supervisory Authority (FSA) issued a warning that initial coin/token offerings (ICOs/ITOs) and cryptocurrencies are risky and highly speculative investments.
France Bank of France has issued warnings similar to other European nations. There were informal indications that France might have been willing to allow virtual currency companies to operate as payment service providers under French law, and France has now indicated it will implement customer identity verification rules for virtual currency platforms.
Germany Virtual currencies are financial instruments under German law and, more specifically, are a form of “private money” that can be taxed as capital. Certain uses may also require a license or permit. On Nov. 15, 2017, Germany’s Federal Financial Authority (BaFin) released a statement warning consumers of the risks of initial coin offerings (ICOs).
Hong Kong Informal guidance suggests that regulatory authorities are monitoring virtual currencies, particularly with regard to money laundering. Virtual currency considered a virtual commodity and not legal tender.
Iceland Regulates virtual currencies as electronic currency through the Icelandic Exchange Act, which effectively prohibits entities from engaging in the exchange of virtual currency.
India The Indian government does not (yet) regulate cryptocurrency exchanges. Reserve Bank of India has issued warnings to the public about the risks associated with virtual currencies and has suggested it is examining virtual currencies under India’s existing legal framework. On Nov. 16, 2017, the Indian Supreme Court issued a notice to the central bank and several other agencies asking them to respond to a petition made to the court to regulate bitcoin. The petition called on the Court to make cryptocurrencies accountable to the exchequer, expressing concerns about the untraceablility of digital currency transactions
Indonesia Virtual currencies are not legal tender, and using virtual currencies violates the country’s information and electronic transaction laws and currency laws.
Iran Iran intends to implement strict regulations for digital currencies. On Dec. 2, 2017, bucking international sanctions, the High Council of Cyberspace in Iran (HCC) announced that it will accept the use of bitcoin but the digital currency will be subject to strict regulation.
Ireland The Central Bank of Ireland does not regulate bitcoin. Ireland’s Revenue Commissioners are monitoring bitcoin for tax-related developments.
Isle of Man The government intends to put economic infrastructure in place promoting virtual currency businesses, subject to anti-money-laundering requirements. In 2016, the Gambling Supervision Commission (GSC) and Treasury approved regulation to allow digital currencies including bitcoin to be accepted as cash.
Israel The Israeli central bank and Finance Ministry has issued warnings to the public about the risks associated with virtual currencies. On December 27 media reports said Israel’s markets regulator will propose regulation to ban companies based on bitcoin and other digital currencies from trading on the Tel Aviv Stock Exchange. In Jan. 2017, Israel’s government said it was set to apply capital gains tax to bitcoin sales, categorizing digital currencies as a type of property.
Italy A law requiring identification of parties in bitcoin transactions has been proposed in the Italian Parliament, but no regulation yet. Virtual currency is not legal tender.
Japan Japan approved a law regulating Virtual Currencies on May 25, 2016 which was promulgated on June 3, 2016. The law was enacted and came into effect on April 1, 2017. On Sept. 30, 2017, the Financial Services Agency (FSA) of Japan granted its first licenses for digital currency exchanges to 11 companies. On April 1, 2017, Japan’s Financial Services Agency enacted a new law authorizing the use of digital currency as a method of payment, essentially granting it the same legal status as any other currency. The law follows months of debate which ultimately brought Bitcoin exchanges under anti-money laundering/know-your-customer rules, and resulted in the categorization of Bitcoin as a kind of prepaid payment instrument.
Jordan Virtual currencies are not legal tender in Jordan and the Central Bank has warned against their use. Banks, currency exchanges, financial companies, and payment service providers operating in Jordan are prohibited from dealing in virtual currencies.
Lebanon Bank of Lebanon has issued warnings to the public about the risks associated with virtual currencies, and has said that financial institutions and exchanges cannot, be decree, deal in virtual currencies as “e-money.”
Luxembourg The issuance of virtual currency is not regulated “from a monetary point of view.” Financial services providers, which could include virtual currency businesses, must receive authorization from the Minister of Finance.
Malaysia Virtual currencies were previously not legal tender in Malaysia, but the government will enforce new cryptocurrency regulation soon. On Nov. 6, 2017, the chairman of Securities Commission Malaysia (SC) said at a finance conference that the SC is working on regulations and guidelines for the use of digital assets and cryptocurrency.
Malta Malta’s government is reportedly developing a broad national strategy that will see the government embrace bitcoin and blockchain innovation to promote and adopt the technology. On Oct. 23, 2017, the Malta Financial Services Authority (MFSA) published draft regulation for collective investment schemes investing in virtual currencies, which would be narrowly applicable to Professional Investor Funds (PIFs) that have investing in virtual currencies as their objective.
Mexico Virtual currencies are not legal tender currency, and the Bank of Mexico has warned of risks of using virtual currencies.
Morocco The use of cryptocurrencies is outlawed in Morocco. On Nov. 21, 2017, Morocco’s foreign exchange authority, the Office des Changes, stated in a press release that transacting with cryptocurrencies within Morocco violates existing regulations.
Netherlands The Netherlands do not regulate bitcoin under its Act on Financial Supervision, but its national bank has released consumer warnings regarding the use of virtual currency.
New Zealand Informal warnings about the risks associated with virtual currencies; suggestion from Commerce Commission that virtual currency may be regulated. On Oct. 25, 2017, New Zealand’s Financial Markets Authority (FMA) published commentary on initial coin offerings (ICOs) and cryptocurrency services to supplement its online resources for investors. The FMA indicated that the specific characteristics and economic substance of an ICO determine whether the coins/tokens offered are a financial product and how (or if) it should be regulated.
Norway Indications are that virtual currencies are not “money” or “currency” but are assets subject to capital gains taxes. On Feb. 9, 2017, following a recent European Court of Justice ruling, the Directorate of the Norwegian Ministry of Finance reviewed its position on the applicability of VAT exemptions to Bitcoin, and recently concluded that services relating to the exchange of Bitcoin are covered by the VAT Act’s exemption for financial services.
Philippines Exchanges are not regulated by the Philippines Central Bank or other regulatory authorities in the country. The Philippines Government has been moving towards legalizing and regulating digital currencies, which would be deemed securities and placed under the supervision of the Philippines Securities and Exchange Commission.
Poland Virtual currencies are not illegal, but are also not legal tender. They are subject to capital gains taxes and value-added tax. On Feb. 22, 2017, Poland’s Financial Ombudsman called on the country’s Ministry of Finance to regulate the local cryptocurrency industry, claiming that as Poland’s cryptocurrency market is experiencing rapid growth, it should be subject to regulations that would protect customers of cryptocurrency exchanges.
Portugal Warnings from the Bank of Portugal about the risks of virtual currency, while clarifying that the Bank does not regulate bitcoin.
Russia Digital currencies were previously banned as money surrogates under federal law, however, 2017 has seen a softening of Russia’s regulation of cryptocurrency. Plans to regulate cryptocurrency have made headway, and procedures for buying cryptocurrency are scheduled to be announced by the end of 2017. The Russian Ministry of Finance prepared a bill to be submitted on December 28. Deputy Finance Minister Alexei Moiseev said the bill, as reported by Tass on Wednesday includes a limit of 1 billion rubles [~ USD$17.3 million] that can be raised through an ICO, and a limit of 50,000 rubles [~$864] that each unqualified investor will be able to invest.
Serbia Warning from the National Bank of Serbia that Bitcoin is not legal tender and cannot be subject to sale and purchase by banks and licensed exchange dealers. Warning that lack of legal protections over Bitcoin constitutes a risk and may result in financial losses.
Singapore Virtual currencies are not “money” or “currency.” However, virtual currency businesses may be subject to anti-money-laundering regulations. Informal reporting suggests that virtual currency sales are taxed as income, investments are taxed as capital gains, and may be subject to goods and services tax. On Nov. 21, 2017, the Monetary Authority of Singapore (MAS) published a consultation paper proposing legislation for payment services. The proposed bill would expand the scope of regulation to include the purchase and sale of virtual currencies and other innovations used in domestic money transfers and merchant transactions via point-of-sale or online payment gateways.
South Africa South African Reserve Bank has warned that virtual currencies have no legal status and are subject to lack of security, may lose value, and may not be convertible to legal tender.
South Korea Virtual currencies are not legal currency, are volatile and risky, and have no intrinsic value. South Korea’s government said on December 27 it will impose additional measures to regulate speculation in cryptocurrency trading within the country. On. Dec. 6, 2017, Korea’s Financial Services Commission issued a ban on the trading of bitcoin futures, prompting several securities firms to cancel seminars scheduled in December for bitcoin futures investors.
Spain Virtual currencies are reportedly taxable as an electronic payment system under gambling law, but its treatment under other areas of law is unclear.
Sweden Informal statement from a tax official suggests that virtual currencies are not currencies in Sweden but instead will be treated as assets.
Switzerland Swiss financial regulator has defined licensing requirements for bitcoin kiosk operators and said that virtual currency platforms are subject to anti-money laundering act, but other regulation unlikely because virtual currencies are perceived as a marginal phenomenon. Swiss ski resort St. Moritz announced it will begin accepting Bitcoin payments for lift passes, likely in response to the influx of cryptocurrency investors expected to visit the resort in January for the Crypto Finance Conference. On Sept. 29, 2017, Switzerland’s Financial Market Supervisory Authority (FINMA) issued guidance on the increase in initial coin offerings (ICOs) within the country. Additionally, FINMA is investigating several ICOs to determine whether the issuers of those ICOs violated current regulations
Taiwan Central Bank and Financial Supervisory Commission warned that virtual currencies are not currencies, but commodities and have no legal protection. Both plan to regulate virtual currencies.
Thailand Thai law probably does not regulate virtual currencies, but that does not mean that exchanges are free to operate in Thailand.
Turkey Turkey’s recently enacted law on payment services and electronic money does not apply to bitcoin.
United Kingdom Reportedly, exchanges do not have to register under money laundering regulations. Virtual currencies are taxed under goods and services taxes based on profits from a sale. The UK is planning stricter regulations on Bitcoin. On. Nov. 14, 2017, the Financial Conduct Authority in the UK published a warning to consumers about the risks of investing in cryptocurrency contracts-for-differences. On Oct. 27, 2017, the UK Parliament discussed amendments to the European Union’s current Anti-Money Laundering Directive, which would include cryptocurrency. . The proposed amendments would bring digital currency exchange platforms and custodian wallet providers under the purview of existing legislation.
Venezuela On Dec. 3, 2017, Venezuela launched its own digital currency, the “petro”, backed by oil, gas, gold and diamond reserves. President Nicolas Maduro announced the launch, which he said would Help Venezuela advance its sovereignty and overcome the burdens of global economic sanctions.
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Francine McKenna is a MarketWatch reporter based in Washington, covering financial regulation and legislation from a transparency perspective. She has written about accounting, audit, fraud and corporate governance for publications including Forbes, the Financial Times, Accountancy and the American Banker. McKenna had 30 years of experience at banks and professional-services firms, including at PwC and KPMG, before becoming a full-time writer.

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