Forks and airdrops are a prevailing trend that has been ramping up ever since Bitcoin Cash successfully emerged as a result of a fork in August 2017.

What Is A Fork?

Actually there are two types of forks – “hard forks” and “soft forks”. A hard fork is when a single crypto currency splits in two. It occurs when a crypto currency’s existing blockchain diverges into two potential paths forward — either with regard to a network’s transaction history or a new rule in deciding what makes a transaction valid. So when you own one form of crypto currency and another form is now being created as a result of a hard fork you should now become the hold of two forms of crypto currency. Bitcoin Cash was a hard fork. A soft fork essentially follows some same variation in the blockchain; however, only one blockchain (and thus one coin) will remain valid as users adopt the update. So under a soft fork you still only hold one form of crypto currency. Segwit was a soft fork.

What Is An Airdrop?

An airdrop occurs when a crypto currency is distributed to the community for free. This is usually done in connection with new offerings of a crypto currency to spread awareness to future investors. You don’t need to be a current owner of the crypto currency but you do need to be in the community to receive whatever crypto currency is being distributed. The community could developed from investors who were included in other crypto currency blockchains or even lists developed from social media. Byteball, Stellar Lumens and OmiseGo started out as airdrops.

Taxation Of Crypto Currency

Crypto currency transactions are apparently wildly taxable – far more so than investors may think. Although the IRS has not issued much formal guidance, the position of IRS is that any transaction involving virtual currency can trigger a taxable event including air drops and fork transaction as well as conversions or trades from one virtual currency to another virtual currency.

The IRS in 2014 issued Notice 2014-21 stating that it treats crypto currency as property for tax purposes. Therefore, selling, spending and even exchanging crypto for other tokens all likely have capital gain implications. Likewise, receiving it as compensation or by other means will be ordinary income.

Some would think that if bitcoin is property, trades should be tax deferred under the like-kind changes rues of IRC Sec. 1031. Under that theory someone who owned Bitcoin could diversify their holdings into Ethereum or Litecoin, and plausibly tell the IRS it created no tax obligations. Unfortunately, the new Tax Cuts & Jobs Act of 2017 does away with that loophole making it clear that “like kind exchanges” which lets people swap an asset for a similar one without triggering a tax obligation are not available for non-real estate assets.

While bitcoin receives most of the attention these days, it is only one of hundreds of crypto currencies. Everything discussed with regard to bitcoin taxation applies to all crypto currencies.

Here are the basic tax rules followed by IRS on specific crypto currency transactions:

• Trading crypto currencies produces capital gains or losses, with the latter being able to offset gains and reduce tax.
• Exchanging one crypto currency for another — for example, using Ethereum to purchase an altcoin — creates a taxable event. The token is treated as being sold, thus generating capital gains or losses.
• Receiving payments in crypto currency in exchange for products or services or as salary is treated as ordinary income at the fair market value of the coin at the time of receipt.
• Spending crypto currency is a tax event and may generate capital gains or losses, which can be short-term or long-term. For example, say you bought one coin for $500. If that coin was then worth $700 and you bought a $700 gift card, there is a $200 taxable gain. Depending on the holding period, it could be a short- or long-term capital gain subject to different rates.
• Converting a crypto currency to U.S. dollars or another currency at a gain is a taxable event, as it is treated as being sold, thus generating capital gains.
• Air drops are considered ordinary income on the day of the air drop. That value will become the basis of the coin. When it’s sold, exchanged, etc., there will be a capital gain.
• Mining crypto currency is considered ordinary income equal to the fair market value of the coin the day it was successfully mined.
• Initial coin offerings including certain forks do not fall under the IRS’s tax-free treatment for raising capital. Thus, they produce ordinary income to individuals and businesses alike.

Given the limited guidance by IRS, there are still tax positions that can be advocated or structured so that taxpayers dealing with crypto currency can defer gains and minimize taxes. That is why it is essential you seek qualified tax counsel.

Penalties For Filing A False Income Tax Return Or Under-reporting Income

Failure to report all the money you make is a main reason folks end up facing an IRS auditor. Carelessness on your tax return might get you whacked with a 20% penalty. But that’s nothing compared to the 75% civil penalty for willful tax fraud and possibly facing criminal charges of tax evasion that if convicted could land you in jail.

Criminal Fraud – The law defines that any person who willfully attempts in any manner to evade or defeat any tax under the Internal Revenue Code or the payment thereof is, in addition to other penalties provided by law, guilty of a felony and, upon conviction thereof, can be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than five years, or both, together with the costs of prosecution (Code Sec. 7201).

The term “willfully” has been interpreted to require a specific intent to violate the law (U.S. v. Pomponio, 429 U.S. 10 (1976)). The term “willfulness” is defined as the voluntary, intentional violation of a known legal duty (Cheek v. U.S., 498 U.S. 192 (1991)).

And even if the IRS is not looking to put you in jail, they will be looking to hit you with a big tax bill with hefty penalties.

Civil Fraud – Normally the IRS will impose a negligence penalty of 20% of the underpayment of tax (Code Sec. 6662(b)(1) and 6662(b)(2)) but violations of the Internal Revenue Code with the intent to evade income taxes may result in a civil fraud penalty. In lieu of the 20% negligence penalty, the civil fraud penalty is 75% of the underpayment of tax (Code Sec. 6663). The imposition of the Civil Fraud Penalty essentially doubles your liability to the IRS!

What Should You Do?

The IRS has not yet announced a specific tax amnesty for people who failed to report their gains and income from Bitcoin and other virtual currencies but under the existing Voluntary Disclosure Program, non-compliant taxpayers can come forward to avoid criminal prosecution and negotiate lower penalties.

With only several hundred people reporting their crypto gains each year since bitcoin’s launch, the IRS suspects that many crypto users have been evading taxes by not reporting crypto transactions on their tax returns. 

And now that like–exchange treatment is prohibited on non-real estate transactions that occur after 2017, now is the ideal time to be proactive and come forward with voluntary disclosure to lock in your deferred gains through 2017, eliminate your risk for criminal prosecution, and minimize your civil penalties.  Don’t delay because once the IRS has targeted you for investigation – even if it is a routine random audit – it will be too late voluntarily come forward. Let the tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), San Francisco Bay Area (including San Jose and Walnut Creek) and offices elsewhere in California get you qualified into a voluntary disclosure program to avoid criminal prosecution, seek abatement of penalties, and minimize your tax liability.

It is believed that as of September 2017 at least 80% of all Americans have heard of bitcoin. Unfortunately, a lot of myths have been circulating on bitcoin and other crypto-currencies so here are the top eight myths to consider.

1. Crypto-currency Is A New Phenomenon – FALSE. Bitcoin which is the world’s most popular crypto-currency has been around for a decade. An entity by the name of Satoshi Nakamoto published the designs of bitcoin in the whitepaper “Bitcoin: A Peer-to-Peer Electronic Cash System” in the midst of the U.S. financial crisis in 2008.

2. Crypto-currency Is Not Legal – FALSE. Bitcoin is a legally accepted means of payment in many countries. There are 200,000 to 250,000 transactions per day. While some companies have expressed an outright rejection of payment in crypto-currency, other companies embracing it include, Microsoft, Intuit, DISH Network, Expedia and even Playboy Media.

3. The Federal Government Does Not Deal In Crypto-currency – FALSE. The U.S. government is the biggest auctioneer of bitcoin. And the FBI manages one of the world’s biggest wallets with as much as $120 million worth of BTC. In 2013, the FBI seized 144,000 bitcoins connected to Silk Road which was a notorious narcotics network.

4. Crypto-currency Transactions Do Not Get Reported To IRS – FALSE. Coinbase which is the virtual currency exchange in the United State and based in San Francisco has started the policy to issue 1099-K tax forms for a certain of its U.S. clients who following under the terms issued by the Federal District Court’s order have received cash above the required reporting threshold, which is more than 200 receipt transactions or greater than $20,000 during 2017. Clients caught in this reporting net will also include “business use” accounts and GDAX accounts. The issuance of 1099-K’s by Coinbase which will be distributed by email to its clients is no different than the 1099-K’s issued by Uber and Lyft to its drivers.

5. U.S. Tax Laws Do Not Require Taxpayers To Report Crypto-currency – FALSE. Although both the public and the crypto community refer to bitcoin, altcoin, etc. as “virtual currencies”, the IRS in 2014 issued Notice 2014-21 stating that it treats them as property for tax purposes. Therefore, selling, spending and even exchanging crypto for other tokens all likely have capital gain implications. Likewise, receiving it as compensation or by other means including mining, air drops and initial coin offerings will be ordinary income.

6. The Penalties Are Nominal If You Get Caught For Failing To Report Income From Crypto-currency – FALSE. Failure to report all the money you make is a main reason folks end up facing an IRS auditor. Carelessness on your tax return might get you whacked with a 20% negligence penalty but that’s nothing compared to the 75% penalty for willful tax fraud and possibly facing criminal charges of tax evasion that if convicted could land you in jail. Any person who willfully attempts in any manner to evade or defeat any tax under the Internal Revenue Code or the payment thereof is, in addition to other penalties provided by law, guilty of a felony and, upon conviction thereof, can be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than five years, or both, together with the costs of prosecution (Code Sec. 7201).

7. It Is Futile That IRS Will Get Information On Crypto-currency Transactions – FALSE. IRS already successfully pierced Coinbase. A John Doe Summons issued by IRS was ruled enforceable by U.S. Magistrate Judge Jacqueline Scott Corley in November 2017 (United States v. Coinbase, Inc., United States District Court, Northern District Of California, Case No.17-cv-01431).  Under the order, Coinbase will be required to turn over the names, addresses and tax identification numbers on 14,355 account holders. The Court has ordered Coinbase to produce the following customer information over the period of 2013 to 2015: (1) taxpayer ID number, (2) name, (3) birth date, (4) address, (5) records of account activity, including transaction logs or other records identifying the date, amount, and type of transaction (purchase/sale/exchange), the post transaction balance, and the names of counterparties to the transaction, and (6) all periodic statements of account or invoices (or the equivalent).

8. Waiting For IRS To Catch You Is The Best Strategy – FALSE. Now is the ideal time to be proactive and come forward with voluntary disclosure to lock in your deferred gains through 2017, eliminate your risk for criminal prosecution, and minimize your civil penalties.  Once the IRS has targeted you for investigation even if it is a routine random audit , it will be too late voluntarily come forward.

What Should You Do?

The IRS has not yet announced a specific tax amnesty for people who failed to report their gains and income from Bitcoin and other virtual currencies but under the existing Voluntary Disclosure Program, non-compliant taxpayers can come forward to avoid criminal prosecution and negotiate lower penalties.

With only several hundred people reporting their crypto gains each year since bitcoin’s launch, the IRS suspects that many crypto users have been evading taxes by not reporting crypto transactions on their tax returns. 

And now that like-exchange treatment is prohibited on non-real estate transactions that occur after 2017, now is the ideal time to be proactive and come forward with voluntary disclosure to lock in your deferred gains through 2017, eliminate your risk for criminal prosecution, and minimize your civil penalties.  Don’t delay because once the IRS has targeted you for investigation – even if it is a routine random audit – it will be too late voluntarily come forward. Let the tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. located in Orange County (Irvine), the San Francisco Bay Area (including San Jose and Walnut Creek) and offices elsewhere in California get you qualified into a voluntary disclosure program to avoid criminal prosecution, seek abatement of penalties, and minimize your tax liability.