Bitcoin is the largest decentralized digital currency in the world, with an estimated market cap of $183B (CoinMarketCap May 8, 2020). In the nearly twelve years since the publication of Satoshi Nakamoto’s famous white paper, Bitcoin has become the most well-known example of a cryptocurrency and is responsible for sparking the blockchain revolution.
More than half a million peer-to-peer transactions have been recorded in the bitcoin blockchain, a public and verifiable distributed ledger. The network’s Proof of Work consensus algorithm confirms transactions and produces new blocks without the need for a third party. Bitcoin is revolutionary technology, but the network's massive energy footprint is comparable to the entire country of Ireland’s electricity consumption.
Luckily, the blockchain ecosystem today is more diverse than ever: Proof of Stake based blockchains now account for a growing number of blockchains and billions of dollars in value, without a comparable environmental impact. Proof of Stake blockchains have numerous advantages over Proof of Work: they are more scalable, less resource-intensive, and they incentivize tokenholder participation in network security.
Despite the wave of Proof of Stake blockchain innovation and the fundamental economic and incentive differences of these networks, many still assume that all blockchains are created equal and that Proof of Stake blockchains should still be taxed and regulated in the U.S. in the same manner as Bitcoin and Proof of Work blockchains. This regulatory environment inhibits Proof of Stake innovation, pushing groundbreaking projects away from the U.S.
In order to continue to drive technological innovation and growth of this new financial ecosystem, tax laws need to be crafted with a deep understanding of the underlying technology and the incentives of these new networks, to better reflect developments in blockchain technology since Bitcoin’s introduction over a decade ago.
The only guidance on cryptocurrency taxation from the IRS is in Notice 2014-21 and Notice 2014-16 IRB 938. This guidance mentions that mining rewards are treated as ordinary income at the date of receipt of the mining rewards. The problem is these guidelines were written in 2014, preceding most Proof of Stake blockchains in existence today.
Can taxation guidance drafted prior to the existence of Proof of Stake based protocols adequately regulate the Proof of Stake industry? No. Proof of Stake blockchains, and their economic incentives, are fundamentally different by design and should be regulated accordingly.
The 2014 IRS guidance should not be confused with statutes passed by Congress or authoritative interpretations of law and regulations issued by federal courts. Well-intentioned entrepreneurs and innovators, who are interested in building networks based on Proof of Stake technology, would benefit greatly from regulatory clarity. And it’s critical that regulators understand the technological distinctions.
In Proof of Work protocols, power-intensive mathematical problems need to be solved in order to create the next block. The miner that solves the mathematical problem and creates the next block also creates the block reward, in the form of newly generated tokens (think of this as “network inflation”). In essence, miners are incentivized to put in a tremendous amount of computational work to potentially get rewarded with brand new tokens.
With Proof of Stake protocols, individuals “stake,” or show ownership of the tokens, by locking up a set amount of tokens for a set time period and are randomly selected to verify transactions on the protocol. Network participants are incentivized to maintain the integrity of transactions on the network, by being rewarded with new tokens. This process is known as “forging” or “minting” in Proof of Stake protocols. The protocol has built-in mechanisms to penalize anyone who falsely, or negligently, verifies transactions by “slashing” this activity, meaning the individual loses a portion of their staked tokens.
Proof of Stake protocols have a built-in inflation mechanism that increases the supply of coins. New coins are distributed proportionally to those that have been staked. If everyone were to participate in staking, everyone’s “stake” would remain the same as the new supply is distributed pro-rata. Anyone who does not stake is not helping secure the network and is effectively punished with token dilution. Staking, by design, encourages every owner of tokens to participate in the network. In Proof of Work protocols such as Bitcoin, not every Bitcoin holder is also a miner (the great majority do not have the ability or resources to mine). But with Proof of Stake protocols, each holder of the token is incentivized to participate in the network or risk having their ownership diluted.
If the participation rate (i.e. the amount of tokenolders who stake) is low, then those who receive staking rewards will enjoy outsized returns, not just their pro-rata share of the network inflation.
As a token holder, not participating in a Proof of Stake network results in a financial loss. In some networks, individuals need to stake coins just to break even against inflation. Nevertheless, in applying 2014 IRS guidance, staking rewards are considered ordinary income. In Proof of Work protocols, network security is completely separate from token ownership. In Proof of Stake protocols, individuals work to maintain the same level of the network.
The 2014 Guidance introduced several taxation issues for Proof of Stake network participants as they earn rewards. These issues concern taxation as it relates to the timing of taxable events, network inflation, and network participation rates.
Timing of taxation: In volatile cryptocurrency markets, coin values can fluctuate widely. Taxes on staking rewards are calculated at the moment token rewards are received under current IRS guidance. By the time a network participant pays taxes, the value of the coin could have dropped significantly. The coins aren’t worth what they were when they were received, yet they are taxed based on the value when they were received, leaving the network participant with a huge tax burden.
Network inflation: In order for a network participant to earn staking rewards, they need to bond those tokens to the network. If all tokenholders bond their tokens to participate in securing the network, the token rewards are distributed evenly based on the network inflation rate. For example, if John stakes 100 tokens and the network inflation rate is 10%, assuming there is 100% staking participation, John would earn 10 new tokens when rewards are issued by the network. In this scenario, staking effectively enables John to recapture the dilution of his pro-rata share of the network. But, under current IRS guidance, John is required to pay taxes on the total dollar value of these tokens (at the time the rewards are received), even if his pro-rata share of the network did not increase.
Network participation: While Proof of Stake network participation is extremely high (both Cosmos and Tezos have participation rates over 70%), in reality networks rarely see 100% of tokenholders participating in staking. For example, if Alice owns 100 tokens in the same network as John, and Alice does not participate in staking, the 10 tokens Alice would have earned for securing the network (given the same 10% network inflation rate) will be redistributed to all those tokenholders who chose to stake, including some to John who will now earn slightly more than 10 tokens for staking. Under current IRS guidance, John is taxed on the dollar value of all of these rewards (the 10 tokens corresponding to the network inflation rate plus his portion of the tokens Alice would have earned) even though the majority of these rewards only cover the recapturing of the dilution of his pro-rata share of the network.
The current IRS Guidance, as applied to Proof of Stake networks, creates an excessive tax burden for network participants. Applying 2014 bitcoin mining guidance would strongly discourage network participation in the U.S. today. If left unaddressed, this could eventually drive innovators to leave the U.S. for countries with more forward thinking tax regulations.
University of Virginia Law Adjunct Professor Abraham Sutherland recently published a research paper in Tax Notes that argues staking rewards should be treated as “created property.” This is a new application of a decades-old concept of taxpayer-created (or taxpayer-discovered) property such as crops, minerals, livestock, artworks, and even widgets off an assembly line. In these examples, the property logically isn't taxed at creation, but when it is sold. Taxing staking rewards as created property will ensure that tokenholders are not on the receiving end of excessive tax bills.
Tax laws, when tailored to promising new technologies, can actually foster innovation. In 1998, Congress passed the Internet Tax Freedom Act (ITFA; P.L. 105-277), which bars federal, state, and local governments from taxing Internet access and from imposing discriminatory internet-only taxes such as bit taxes, bandwidth taxes, and email taxes. ITFA also bars multiple taxes on electronic commerce, a huge stimulus to growing the internet economy in the U.S.
More than 30 years later, the U.S. is now a well-established leader of the global movement in internet innovation with Google, Facebook, Microsoft, Netflix, and Amazon growing into some of the most valuable publicly traded companies in the world. The U.S. is still benefiting to this day from the regulatory foresight that ensured the internet had the opportunity to grow here.
From a policy perspective, U.S. regulators play an important role in carefully considering tax laws so that they provide an environment that cultivates these protocols. Like the early days of the internet, we are still in the beginning stages of blockchain. It’s not too late to enable innovation and businesses to prosper in the U.S.
Evan Weiss is Head of Business Operations at Bison Trails, the leading blockchain infrastructure provider, and the Founder of the Proof of Stake Alliance (POSA), a non-profit focused on bringing legal and regulatory clarity to the Proof of Stake industry through education and dialogue with regulators and policymakers. Prior to Bison Trails and POSA, Evan was an Associate at Holland & Knight LLP where his practice focused on mergers & acquisitions and venture financings. Evan received his J.D. from the George Washington University Law School and his B.S. from the University of Mary Washington.
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