For many years after they first emerged, cryptocurrencies were unregulated in most jurisdictions. Since Bitcoin represented a new type of asset not issued by any central entity, it presented a novel problem for lawmakers. The main question is whether cryptocurrencies should be classified and regulated within established frameworks that apply to traditional assets like securities or commodities. The alternative involves creating a new legal framework that can accommodate the specific properties of digital assets.
Even though the question is binary, the answer allows for many different regulatory approaches worldwide since not all countries operate the same financial rules for traditional markets. Furthermore, jurisdictions also have regulatory freedom to set their own frameworks for digital assets if they decide.
In response to the rapid growth in the digital asset markets in recent years, governments have taken divergent approaches to regulation. The result is that the legal landscape of cryptocurrencies is a patchwork of different laws and regulations, and depending on the jurisdiction, compliance can be a significant challenge.
Cryptocurrency Laws in Different Jurisdictions
There are many complexities governing the specific legalities of cryptocurrencies, including different asset types, in different jurisdictions. Below is a brief overview as of August 2023.
The US doesn’t have any regulation specifically governing cryptocurrency legislation. There is a tacit acceptance that BTC and ETH are treated as commodities. At the same time, the legal treatment of many large-cap digital assets, including SOL, ADA, and MATIC, is currently subject to formal legal dispute by the Securities and Exchange Commission, which alleges they are securities.
The outcome of these cases could provide some legal certainty as to the status of digital assets. Still, it may make it more complex and challenging for cryptocurrency service providers to continue operating in the US.
The EU’s landmark Markets in Crypto Assets Regulation (MiCA) came into force in June 2023, with the new regulations due to take effect in 2024. The regulation replaces individual laws from member states with an overarching framework of rules for digital asset service providers. These include the requirement for crypto asset businesses to register and for certain assets like stablecoins to demonstrate they have adequate reserves.
The UK has no laws governing digital assets, but their issuance and sale in the UK falls under the oversight of the Financial Conduct Authority. Firms registered with the FCA have confirmed a minimum level of anti-money laundering legislation. However, only security tokens (deemed to resemble shares or formal debt instruments) are officially regulated by the FCA.
Canada treats digital assets as securities and regulates them as such. Crypto exchanges are required to register with the provincial securities regulator, and all issuers of cryptocurrencies are required to have the asset undergo an “Investment Contract Test” to see if it should be formally classified as a security. Despite strict rules, the clarity has earned Canada a reputation as relatively crypto-friendly.
Some countries have gone the extra mile to implement policies and regulations that support blockchain innovation and development. For instance, Switzerland introduced the Blockchain Act in 2021 and has an active startup scene known as Crypto Valley, home to the Ethereum Foundation, Dfinity (developer of Internet Computer), and more. Singapore and the United Arab Emirates are also both known to be favorable regimes for crypto startups.
Two countries – El Salvador and the Central African Republic – have adopted Bitcoin as legal tender.
In a small number of countries, most notably China, Saudi Arabia, and Qatar, cryptocurrencies are outlawed entirely.
Legal Issues for Crypto Businesses and Investors
One of the most significant issues facing cryptocurrency businesses and investors is that the legal landscape remains uncertain in many jurisdictions. Countries such as the US and the UK still don’t have any concrete legislation for digital assets, and the future of their legal status is not guaranteed.
The absence of any legal framework and the ability of regulators to apply discretion in how they enforce existing laws also makes compliance a challenge.
Even in jurisdictions where there is a legal framework in place, such as the EU MiCA regulation, it’s still new in the statute books. The implementation will be subject to interpretation by member states, with infractions and disputes resolved through domestic courts. Therefore, some uncertainty remains.
On a global level, the lack of standardized regulatory frameworks creates several risks. Firstly, crypto assets become a point of weakness to be exploited by criminals since funds can be channeled through countries without regulation. The Financial Action Task Force has put in place recommendations designed to close loopholes for money launderers, such as KYC checks between crypto asset service providers, which are designed to mitigate this risk.
Secondly, blockchain innovators tend to take advantage of regulatory arbitrage and accumulate in locations with favorable laws and policies. For countries without an adequate regulatory framework in place, there is a risk of missing out on oversight, and on the innovation and investment opportunities of an emerging technology and asset class.
Cryptocurrency Tax Laws and Rules
Cryptocurrency tax laws are often far more comprehensively developed than the rules that govern the legal status of digital assets. For instance, in the United States, cryptocurrencies have been considered taxable assets since 2014.
However, tax rules also vary extensively between countries. Overall there are several ways that governments can choose to treat cryptocurrencies for tax purposes.
Cryptocurrencies as property (capital gains tax)
Many countries, including the US, UK, and most European countries, tax long-term gains on cryptocurrency as property through capital gains tax. Capital gains tax typically only applies to the difference between the purchase and sale price, so if someone purchased one ETH for $1,000 in 2020 and sold it for $4,000 in 2022, tax is due on the $3,000 profit from the transaction. It may be possible to offset losses against gains.
Cryptocurrencies as income
Cryptocurrencies may also be taxed as income. The classification of funds as income can vary somewhat, but in general, crypto may be treated as income in the following scenarios:
- Received as a salary or bonus by an employee or contractor
- Generated as gains in short-term trading activities
- Earned through staking, mining, or rewards programs
- Received via an airdrop or giveaway
The treatment of crypto as income can vary from country to country. For example, the United States determines whether crypto should be treated as income or capital gains based on the circumstances under which it is received. Germany applies income tax to crypto earned as income but doesn’t apply capital gains tax to profit from long-term holdings. In contrast, Canada doesn’t operate any system of capital gains taxes but subjects all profits and income from cryptocurrency to income tax.
The large variations in rules, along with additional complexities for those holding multiple nationalities or residences, mean that individual circumstances should always be checked and confirmed considering the most recent rulings.
Cryptocurrencies as private assets
Some countries, such as Singapore, Switzerland, and Germany, treat cryptocurrencies as private assets, and as such, there is no specific tax on gains from long-term holdings. However, even if capital gains tax doesn’t apply, there may be different rules regarding cryptocurrencies earned as income or other taxes applied to net wealth.
Furthermore, almost all countries require some kind of reporting of digital asset holdings and/or transactions for tax purposes, even if there is no taxation applied. Once again, the specific circumstances need to be checked for each individual case.
The Future of Cryptocurrency Regulation
The United States remains the largest jurisdiction with the most uncertainty regarding the future of cryptocurrency regulation, and as of 2023, several ongoing legal disputes with major crypto operators will have a significant impact on the legal status and treatment of digital assets in the future.
One of the biggest developments to affect the overall landscape of cryptocurrency regulation could be the arrival of central bank digital currencies (CBDCs). Cryptocurrencies, particularly stablecoins, could present a competitive threat to the adoption of CBDCs, and potentially spur the case for stricter regulation.
On the other hand, there is a recognition that particular assets like BTC and ETH cannot be controlled within the confines of any one jurisdiction. Ultimately, the decentralized nature of crypto’s flagship assets has proven to be the best protection against an outright ban.
Legal landscape of cryptocurrencies essentials
- Due to a historic lack of regulation, comprehensive frameworks for regulating cryptocurrencies have only recently begun to emerge.
- The European Union and Switzerland are two examples of jurisdictions with legal frameworks for digital assets. Canada regulates crypto under existing securities frameworks, while the US has no clear regulatory framework or policy for the treatment of crypto.
- Despite the nebulous legal status in many countries, digital asset transactions may still be subject to income or capital gains tax and/or tax reporting requirements.