The current state of blockchain regulation, Mobile Payments Today

The current state of blockchain regulation

With fresh technologies, it takes a while for regulation to catch up. Blockchain technology is no exception. While we are leisurely beginning to see standards emerge — for example, Fresh York state’s fresh BitLicense regulations — the reputation of blockchain is still marred by the criminal aspects of bitcoin.

Bitcoin itself recently took a hit when the SEC ruled against the Winklevoss twins’ proposal for an exchange-traded fund for bitcoin. The SEC voiced concern about the capability of powerful, unregulated Chinese exchanges to manipulate the price of bitcoin. This underscores a key aspect of virtual currency regulation: It is still in its infancy.

“The current regulatory landscape when talking about [distributed ledger technologies] is at the same time immature and complicated, and it depends on what component of the DLTs we are talking about: cryptocurrencies; blockchains; collective ledgers; clever contracts; etc.,” Javier Sebastian Cermeno said in a report by BBVA Research. “The regulatory treatment of each of these components is different, albeit [the] lack of specific regulation is a common factor.”

Presently, countries such as Brazil, Canada, the United States and many European nations at least permit bitcoin technologies. Others such as China and India have a less friendly relationship with bitcoin, and some — including Russia — are outright hostile, according to the BBVA report.

Even among governments that do permit trading in bitcoin and other virtual currencies, regulation can be inconsistent. For example, the European Parliament believes it should take a hands-off treatment to virtual currency regulation and should simply analyze it. However, the European Banking Authority, a regulator agency of the EU, recommends that banks stay away from virtual currency.

In the U.S., the Financial Crimes Enforcement Network was the very first government agency to release a statement on virtual currency. FinCEN was followed by the IRS, according to a blog by Liz Prehn, a tax attorney for Moskowitz LLP. The IRS regulations for taxation, however, leave a number of unanswered questions. For example, how should bitcoin mining be treated for tax purposes?

“Is virtual currency that is held by a merchant considered a capital or an ordinary asset?” Prehn wrote. Is it a “commodity” subject to mark-to-market accounting?”

Other questions relate to how virtual currency should be reported and how to determine the exchange rate of virtual currency for tax purposes.

While the IRS views virtual currency as property, other regulatory agencies see it differently. FinCEN treats it as money, whereas the Commodity Futures Trading Commission treats it as a commodity. This has led to difficulties in court cases related to bitcoin in which judges have had to determine exactly how to treat virtual currency, according to the BBVA report.

For example, in 2016, Judge Teresa Pooler of the 11th Judicial Circuit Court of Florida ruled on the case of a man charged with helping two undercover agents launder money with bitcoin. Judge Pooler threw out the case telling that bitcoin is not money, thus the defendant could not be charged with money laundering.

From a global perspective, regulatory initiatives around the broad field of distributed ledger technologies are in their initial stages, Cermeno said.

Most regulatory bods now have working groups and task coerces in place analyzing virtual currencies and DLTs, however, there still is relatively little progress toward enforceable regulation.

In the case of blockchain technology regulation, Cermeno asserts that it doesn’t indeed exist yet. But users of the technology will come up against existing regulations for activities — such as clever contracts — as they migrate to blockchain technology.

“Any wise contract defined on the blockchain will have to serve at least with the regulation on contracts applicable on the correspondent jurisdiction, as exposed in the commercial and trade law,” Cermeno said. “Then, depending on what kinds of financial services are being suggested on the blockchain (payments, lending, investment, etc.), regulation on these services will have to be applied. For example, KYC and AML regulation, capital markets regulation, lending regulation, and so on.”

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