Yesterday's news that the DoJ and IRS are digging into Binance amid whispers about allegations of tax fraud, manipulation and AML violations was just the latest indication from the government that it is taking enforcement of securities taxes tied to crypto wealth very seriously. In case that wasn't already clear, WSJ published a story in its "Tax Report" section (with the federal tax deadline just days away at May 17) reminding readers that the IRS under President Joe Biden is coming for your crypto wealth - and those that don't cough it up might be subject to harsh penalties, both financial and criminal.
It starts by reminding readers that two new IRS investigations to catch crypto tax cheats targeting various exchanges have been launched in recent months. In April, a judge in Boston approved an IRS summons to the payments company Circle and its affiliates, including the crypto exchange Poloniex. In May, a judge in San Francisco approved a similar summons for records from Kraken, another exchange based in California. Both summonses apply to customers who have traded more than $20K in crypto in any single year between 2016 and 2020.
"With these summonses and other actions, the IRS is mounting a full-court press to show taxpayers how seriously it takes cryptocurrency compliance," says Don Fort, a former chief of IRS criminal investigation now with Kostelanetz & Fink. "Taxpayers should take it seriously too."
Crypto exchanges don't report client information to the IRS like discount digital brokerages do, so there's temptation for traders to try and skate by. But if this approach worked in the past, be warned: that could change this year now that the Dems are back in power.
Binance doesn't even allow American customers to trade on its platform (though it has been accused of illegally doing so by turning a blind eye to users trying to skirt this rule), but other investigations and summonses of note go back even further. In 2016, the IRS received approval for a similar summons for Coinbase and obtained information for about 13K customers. The agency sent letters urging many of them to make sure their crypto taxes were paid, as the IRS might soon be taking a hard look.
Admissions from the IRS in court filings suggest this tactic has been working for the agency. In one filing to justify its summonses, the the agency said it had received more than 1,000 amended tax returns and collected $13 million from crypto holders with more than $20,000 of transactions, plus another $12 million from other crypto notices, and audits are ongoing.
Remember, those who are caught skirting taxes often are forced to enter the IRS's Voluntary Disclosure program for taxpayers with criminal liability, a program that usually lets participants out of prosecution but imposes large penalties.
Another filing hinted at a different strategy being employed by the agency: the agency plans to compare data it receives from Kraken to data on offshore crypto transactions. It didn’t identify the source of this offshore data to look for discrepancies. Kraken may also soon need to turn over phone numbers, email addresses, DoBs, tax ID numbers and other sensitive details as part of the subpoena.
With all this in mind, here's a few quick reminders from WSJ:
When it comes to crypto tax laws, here are the basics: In 2014, the IRS declared that cryptocurrencies are property, not currencies like the dollar, and therefore are treated like an investment property akin to stocks. If an investor sells crypto after holding it for longer than a year, the profit is a typically considered a long-term capital gain, and taxed at lower rates than ordinary income under current law (although Congress may soon change this for the highest earners).
If the holding period is a year or less, the profit is a taxed as a short-term capital gain as the same rate as ordinary income like wages. Capital losses on crypto investments can offset taxable capital gains on other assets as well as crypto, plus up to $3,000 of ordinary income such as wages a year—a valuable benefit. Unused losses can be carried forward to future years.
Tax triggers: Any time a cryptocurrency is bought or sold or spent is a taxable transaction. If you trade bitcoin for dogecoin, that transaction has tax exposure.
If you buy a tesla, you will owe an additional tax on the transfer on top of any sales taxes you pay. These rules make bitcoin difficult to use for payments, something that regulators no doubt intended.
Lot identification: Investors who bought the same coin at different prices can often minimize taxes by selling the lot that would give them the smallest tax exposure. For example, say that someone sold bitcoins at $22,000 each in December 2020 and had coins bought in 2016 for $600 and 2017 for $16,000. Selling the 2016 coins would mean a taxable gain of $21,400 each, while selling the 2017 coins would mean a gain of $6,000 each—a big difference.
Offshore holdings: In late 2020, the Financial Crimes Enforcement Network, a Treasury Department unit known as FinCEN, announced that it may soon require US taxpayers holding more than $10,000 of cryptocurrencies offshore to file FinCEN Form 114, known as the FBAR, to report these holdings. But this rule has yet to be adopted, and wasn't in effect for 2020.
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