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    In the last decade, cryptocurrency has gone from a little-known or understood commodity to a common investment and a source of payment used by some of the world’s biggest corporations. As more people buy and sell these virtual currencies and use them for everyday purchases, some fail to understand the significant tax ramifications, including detailed reporting requirements, that can come with investing in or merely utilizing crypto. This can be a major mistake, as the IRS has been more attentive to failures to file proper tax returns related to virtual currencies in recent years. The penalties for failing to report or pay taxes on exchanges of cryptocurrency accurately can be quite steep and can even lead to criminal tax liability if perceived to be willful.

    At the Tax Law Offices of David W. Klasing, many of our tax professionals are both licensed tax attorneys and certified public accountants. We provide the best of both worlds in terms of helping you keep records and properly file tax returns related to virtual currency, as well as defending you against any civil or criminal issues that arise.

    If you have multiple years of substantial non-reported taxable cryptocurrency transactions, it is in your best interest to reach out to the government rather than wait around for them to reach out to you.

    Understanding the Evolving Landscape of Cryptocurrency Taxation

    Cryptocurrencies represent a unique form of digital value. They can function as mediums of exchange, units of account, or stores of value, similar to traditional currencies in some respects. However, unlike government-issued currencies, they don’t hold legal tender status globally. The concept of ‘convertible’ virtual currencies is particularly significant, as these types of cryptocurrencies can be exchanged for real-world currencies, thereby intertwining with traditional financial systems.

    The dynamic nature of cryptocurrency values, exemplified by the fluctuating prices of prominent cryptocurrencies like Bitcoin, underscores the importance of accurate and timely reporting in compliance with tax regulations. Understanding and adapting to these value fluctuations is crucial for accurate tax reporting.The closing price for Bitcoin (BTC) as of December 2023 is $42,261.09.

    Tax implications for virtual currency transactions are significant. For instance, mining activities, where individuals successfully extract cryptocurrencies, result in taxable income equivalent to the fair market value of the mined currency at the time of receipt. In broader terms, cryptocurrencies that can be converted into traditional currencies are considered property for federal tax purposes, necessitating adherence to the general tax principles applicable to property transactions.

    Cryptocurrencies are primarily underpinned by blockchain technology, a form of distributed ledger technology. This technology involves multiple digital systems recording and synchronizing transaction details across a network of nodes, ensuring transaction security and transparency. Understanding blockchain’s role is fundamental to comprehending the operational mechanics of cryptocurrencies.

    Updates to IRS Notices on Virtual Currency

    IRS Notice 2023-34 brings notable updates to the earlier Notice 2014-21 regarding the status of virtual currency. The essential modifications include:

    1. Revised Stance on Legal Tender Status: The Notice amends the previous assertion in Notice 2014-21 that virtual currency does not have legal tender status in any jurisdiction. This revision reflects a more nuanced view of virtual currencies in light of their growing acceptance and recognition in some foreign jurisdictions;
    1. FAQs Remain Unchanged: Despite this significant alteration in the Background section of Notice 2014-21, the Notice clarifies that the answers to the frequently asked questions (FAQs) provided in section 4 of Notice 2014-21 are not affected by these changes;
    1. Distinction from Traditional CurrenciesRev. Rul. 2019-24, referenced in the Notice, further clarifies that virtual currencies are distinct from traditional representations of the U.S. dollar or foreign currencies;
    1. Limited Use as “Real” Currency: Although certain contexts see virtual currencies serving functions similar to “real” currency (like coins and paper money), their utilization in this manner is limited. This points to virtual currencies’ unique position in the financial ecosystem, straddling the line between property and currency.

    These updates signal an evolving understanding and regulatory approach to virtual currencies, recognizing their complex role in the global financial landscape. For taxpayers and practitioners in the field of cryptocurrency, these changes emphasize the importance of staying informed about the latest regulatory developments.

    Non-Compliance with Cryptocurrency Reporting

    Large Amounts of Unreported Income

    As of 2023, the Internal Revenue Service (IRS) has significantly intensified its efforts to ensure compliance in cryptocurrency reporting, focusing especially on large amounts of unreported income. This enhanced focus can be attributed to the increasing mainstream acceptance and usage of digital assets, which necessitates more robust regulatory oversight to ensure tax compliance.

    Enhanced IRS Measures and Digital Asset Reporting

    The IRS continues to emphasize the necessity for taxpayers to report all digital asset-related income. This includes a broad range of activities, such as trading cryptocurrencies, regardless of whether these transactions result in a gain. The responsibility for calculating and reporting these gains falls on the individual users, as currently, the platforms on which these digital assets are traded do not provide this information directly to the IRS

    Proposed Regulations and Compliance Challenges

    In 2023, the Department of the Treasury and the IRS proposed comprehensive regulations to enhance reporting requirements for digital asset transactions. These regulations extend the scope of information reporting under § 1.6045–1 to various entities involved in the digital asset space. They encompass brokers acting as agents, principals, or digital asset middlemen who facilitate sales or exchanges of digital assets for cash, broker services, or other property. The regulations specifically include digital asset trading platforms, payment processors, certain hosted wallet providers, and entities involved in the issuance and redemption of digital assets. 

    In addition to clarifying the broker definition under section 6045 of the Internal Revenue Code, these regulations propose that real estate transactions using digital assets be reported, detailing both the sellers of real estate and the fair market value of digital assets exchanged. Moreover, the transaction involving the exchange of digital assets for goods or services (excluding other digital assets) will be reportable under section 6050W, with the disposition of digital assets falling under the purview of proposed § 1.6045–1. These changes, aimed at providing clarity and enhancing compliance, have been met with mixed reactions from the cryptocurrency industry, reflecting concerns about potential complexities and challenges in implementing these new rules.

    Infrastructure Investment and Jobs Act (IIJA) and Reporting Requirements

    The IIJA, effective December 31, 2022, introduced new reporting requirements for cryptocurrency transactions. These provisions are designed to ensure that large cryptocurrency transactions in excess of $10,000 are reported to the IRS. This move parallels the existing reporting requirements for large cash transactions. The Act extends the definition of “broker” to include various parties involved in the transfer of digital assets, not limited to traditional cryptocurrency exchanges. These measures are expected to improve tax reporting compliance for digital asset transactions, thereby aiding in revenue generation to fund the IIJA spending.

    Anticipated Changes in FBAR Requirements for Virtual Currencies

    Currently, virtual currencies do not typically require reporting on the FBAR, but FinCEN’s recent communications suggest changes may be forthcoming. Without current penalties for non-reporting of virtual currencies, the landscape remains penalty-free. However, this is expected to shift soon, with FinCEN indicating a move to include virtual currencies as reportable assets under FBAR regulations, aligning with the broader enforcement of the Bank Secrecy Act.

    Enforcing Tax Compliance in Cryptocurrency: The Role of John Doe Summonses

    As part of its “Operation Hidden Treasure,” the IRS has been intensifying its efforts to monitor and enforce tax compliance on cryptocurrency transactions. The complexity arises mainly due to the perceived anonymity associated with many crypto wallets, making it challenging to track and tax transactions between unknown parties.

    To overcome this obstacle, the IRS has been effectively utilizing John Doe summonses. This legal instrument allows the IRS to petition a federal court to compel exchanges to release user information. This information is crucial for the IRS to determine the identity of U.S. taxpayers who may have failed to report their earnings from cryptocurrency transactions.

    What is a John Doe Summons? 

    A John Doe summons is an investigatory tool used by the IRS to identify individuals suspected of tax law violations where their identities are not known. It requires a third party, like a crypto exchange, bank, or credit card company, to provide specific information to the IRS. The issuance of such a summons follows a legal procedure, which includes federal court approval. This process is outlined in IRM 25.5.7, specifying the criteria for issuing a John Doe summons.

    List of Key IRS John Doe Summonses in Cryptocurrency

    Here’s a concise overview of key John Doe summonses issued to date and the broader implications for national and international enforcement:

    • Coinbase (2016, enforced in 2018): This was a landmark case where the IRS initially faced resistance from Coinbase but ultimately succeeded in enforcing the summons. It set a significant precedent for future actions against other exchanges.
    • Kraken (2021): Following the success with Coinbase, the IRS secured a John Doe summons against Kraken, another major crypto exchange, continuing its trend of targeting high-profile platforms.
    • Poloniex (2021): In the same year, Poloniex also came under the IRS’s scrutiny with a John Doe summons, marking yet another step in the IRS’s comprehensive approach towards crypto exchanges.
    • sFOX (2022): The most recent in this series of actions, the summons against sFOX, indicates the ongoing commitment of the IRS to monitor and regulate the cryptocurrency market.

    The utilization of John Doe summonses by the IRS in the realm of cryptocurrency showcases not only its commitment to ensuring tax compliance within the United States but also its capabilities to extend these efforts internationally. This global approach is crucial in the cryptocurrency sector, where the nature of transactions often transcends national boundaries.

    If you think you are exposed to being the subject of the IRS’ crackdown on cryptocurrency tax evaders, contact The Tax Law Offices of David W. Klasing today to set up a consultation by calling (888) 637-7690. We will help you develop a legal strategy to deal with unreported cryptocurrency income. Let us get you ahead of the stiff civil and criminal penalties that are being pursued by the IRS through Operation Hidden Treasure. We will effectively remove the risk of criminal tax prosecution provided you are willing to knock on the IRS’s door before they come knocking on yours.

    National and International Enforcement Efforts

    At the national level, the IRS has been proactive in implementing strategies such as Operation Hidden Treasure, specifically designed to target unreported income from cryptocurrency transactions. This operation is part of a broader initiative that leverages specialized IRS agents trained in tracking and analyzing virtual currency transactions. In addition to direct enforcement actions, the IRS has updated tax reporting forms to include specific queries regarding cryptocurrency, aiming to increase transparency and compliance.

    Internationally, the reach of the IRS extends beyond the U.S. through coordinated efforts with global tax authorities. Collaboration platforms like the Joint Chiefs of Global Tax Enforcement (J5) facilitate the exchange of information and joint actions against tax evasion involving cryptocurrencies. Moreover, the adoption of Common Reporting Standards (CRS)for cryptocurrencies, following the OECD model, has been gaining traction globally. This standard mandates the automatic exchange of financial account information, including cryptocurrency transactions, between participating countries.

    These concerted national and international efforts reflect a significant shift towards greater regulatory oversight in the cryptocurrency market. They represent a collaborative approach to addressing the challenges posed by the digital nature of these assets, ensuring that tax compliance is maintained across borders. Such measures are pivotal in aligning the cryptocurrency sector more closely with traditional financial systems in terms of transparency and regulatory compliance.

    Warning:The undisclosed cryptocurrency information that the IRS may obtain from John Doe summonses to entities like Coinbase or other trading platforms is a critical component in its civil and criminal tax enforcement strategies. Such information can reveal instances of willful tax fraud, potentially leading to high-risk IRS Eggshell Audits or exponentially worse IRS-CI clandestine criminal tax investigations. It’s important for taxpayers who may have concerns about their past reporting to understand the gravity of these matters. Willful tax fraud, particularly if it occurs over several years, carries the risk of criminal tax charges.

    At the Tax Law Offices of David W. Klasing, our Skilled Tax Attorneys and CPAs can work with you before you file to ensure you are paying as little tax as possible without opening yourself up to civil or criminal tax liability down the line. Reaching out to our skilled dual-licensed Criminal Tax Defense Attorney and CPAs before a tax audit or criminal tax investigation is initiated gives us an almost guaranteed chance of getting the issues resolved civilly with little to no risk of criminal tax prosecution, such as through a domestic or offshore voluntary disclosure program. However, if a civil audit, eggshell audit, or criminal tax investigation has already been initiated, we will do our utmost to help you survive it.

    What is the Voluntary Disclosure Program?

    The voluntary disclosure program allows taxpayers who have committed past tax crimes to be brought back into compliance in almost all cases without facing criminal tax charges. The key is that you must disclose your fraudulent behavior and correct the returns before the IRS opens an audit or a criminal tax investigation into your returns. At the Tax Law Offices of David W. Klasing, our skilled Tax Lawyers and CPAs have years of experience successfully guiding our clients through the voluntary disclosure program and bringing them back into compliance. In fact, at times, our voluntary disclosure work has accounted for 80% of our book of business.

    Note: As long as a taxpayer that has willfully committed tax crimes (potentially including non-filed returns coupled with affirmative evasion of payment) self-reports the tax fraud (including a pattern of non-filed returns) through a domestic or offshore voluntary disclosure before the IRS has started an audit or criminal tax investigation/prosecution, the taxpayer can ordinarily be successfully brought back into tax compliance and receive a nearly guaranteed pass on criminal tax prosecution and simultaneously often receive a break on the civil penalties that would otherwise apply.

    It is imperative that you hire an experienced and reputable criminal tax defense attorney to take you through the voluntary disclosure process. Only an Attorney has the Attorney-Client Privilege and Work Product Privileges that will prevent the very professional that you hire from potentially being forced to become a witness against you, especially where they prepared the returns that need to be amended in a subsequent criminal tax audit, investigation or prosecution.

    Moreover, only an Attorney can enter you into a voluntary disclosure without engaging in the unauthorized practice of law (a crime in itself). Only an Attorney trained in Criminal Tax Defense fully understands the risks and rewards involved in voluntary disclosures and how to protect you if you do not qualify for a voluntary disclosure.

    As uniquely qualified and extensively experienced Criminal Tax Defense Tax Attorneys, Kovel CPAs, our firm provides a one-stop shop to efficiently achieve the optimal and predictable results that simultaneously protect your liberty and your net worth. See our Testimonials to see what our clients have to say about us!

    To set up a consultation, call us today at (888) 637-7690 or schedule online at your convenience.

    Voluntary Disclosure and the Crypto Wash Sale Rule

    The concept of wash sales, well-known in the realms of stocks and securities, is emerging as a point of discussion in cryptocurrency transactions. A wash sale typically occurs when an investor sells an asset at a loss and quickly repurchases the same or a similar asset to reap tax benefits. Currently, the IRS’s wash sale rule, which prevents claiming tax losses in such situations for stocks and securities, does not explicitly apply to cryptocurrencies, which are classified as property.

    As of 2023, the absence of a specific crypto wash sale rule presents a gray area for investors. While technically legal at present, the practice of executing crypto wash sales poses a risk, given the increasing scrutiny of the IRS and the potential for future regulatory changes. The Biden administration’s heightened focus on cryptocurrency cases suggests that the loophole allowing crypto wash sales might soon be closed.

    In this evolving regulatory environment, the voluntary disclosure program becomes particularly relevant. Taxpayers who have engaged in crypto wash sales, under the assumption that these transactions were not subject to the wash sale rule, might find themselves at risk if the IRS decides to alter its stance. The voluntary disclosure program offers a pathway for taxpayers to amend past tax returns and rectify any non-compliance preemptively.

    This proactive approach is especially prudent for those who have engaged in frequent buying and selling of cryptocurrencies, as it mitigates the risk of penalties and interest that could accrue if the IRS retrospectively applies a crypto wash sale rule. It highlights the importance of staying informed and compliant with IRS regulations, even in areas currently deemed as gray.

    What does the IRS Consider “Cryptocurrency?”

    Cryptocurrency is a type of virtual currency that can be traded and transferred directly from person to person, such that transactions involving this type of currency do not need to go through a centralized bank or financial institution. As such, transactions can be both safe and anonymous, and users avoid having to pay bank and transfer fees. The “cryptocurrency” itself, the most popular type of which is Bitcoin, is just a piece of code that exists as a secure computer file powered by an open-source code known as the blockchain.

    Blockchain is a type of virtual ledger that keeps track of all the individual transactions involving each unit of virtual currency. The “blocks” are the individual transactions that make up the “chain” of the underlying code. Most forms of cryptocurrency were designed with an artificial scarcity in the model. For example, no more than 21 million bitcoins will ever exist. This has made these investments attractive for those looking to diversify their portfolios in recent years. Also, companies are slowly beginning to accept Bitcoin as a form of payment, and some employers are even paying their workers or offering bonuses in Bitcoin.

    How Do Taxes on Cryptocurrencies Work?

    For the purposes of federal taxation, cryptocurrencies are considered property, like a house, rather than an actual currency like U.S. or Canadian dollars. As such, you are required to keep track of all capital gains and losses associated with the selling or trading of the cryptocurrency on Schedule D of your return. While purchasing the cryptocurrency does not qualify as a taxable event, whenever you sell, exchange it for another Cryptocurrency, or use it to purchase something, a taxable event occurs. You will need to subtract the fair market value of the cryptocurrency at the time of purchase from the selling price or the value of whatever you traded it for to calculate the capital gains.

    In terms of the IRS, the rate at which capital gains on cryptocurrency will be taxed will depend on how long you have held the cryptocurrency. If you owned the cryptocurrency for less than a year before selling it, the gains would be taxed at a rate equal to your income tax rate. If you held the cryptocurrency for a year or longer, the gains would be subject to a rate of up to 20 percent, depending on your income bracket. Losses can be written off on your returns up to $3,000. Note that separate rules may apply if, for example, you were paid for a service in cryptocurrency. You should always consult with an experienced tax attorney like those at the Tax Law Offices of David W. Klasing before filing any return so we can assess the particulars of your situation.

    Tax Implications of Emerging Digital Assets

    Non-Fungible Tokens (NFTs), a once-obscure digital asset class, have rapidly ascended to prominence, capturing the attention of both the public and tax authorities. In 2021, the NFT market experienced explosive growth, skyrocketing from a capitalization of $91 million at the start of the year to an estimated $30 billion in sales. This unprecedented surge has led experts to predict that the NFT market could expand to $80 billion by 2025 and approach $350 billion by 2030.

    NFTs are unique digital assets, often recorded and transferred on a blockchain. They can represent a diverse range of items, from digital art and trading cards to tokens in the metaverse or proof of ownership. Their value, intrinsically tied to what buyers are willing to pay, is determined in a marketplace where NFTs are typically sold for cryptocurrency.

    IRS Focus on NFTs as Collectibles

    The IRS has particularly concentrated on whether certain NFTs should be taxed as “collectibles.” This approach differentiates NFTs into two categories: the digital file itself and the property or rights it provides access to. The IRS’s Notice 2023-27 outlines this dual nature of NFTs, focusing on the item or right that the digital file represents. This notice is pivotal, as it signifies a cautious governmental approach to providing guidance on digital assets and acknowledges that some forms of IRS sub-regulatory guidance must adhere to the Administrative Procedure Act.

    For taxation purposes, if an NFT certifies ownership of a traditional collectible, such as a gem, it is taxed as a collectible. Conversely, NFTs linked to non-collectible items, like virtual land in the metaverse, are not considered collectibles for tax purposes.

    Implications for Retirement Accounts and IRAs

    The tax treatment of NFTs becomes particularly significant in the context of retirement planning. Under Code Sec. 408(m)(1), purchasing a collectible with an individual retirement account (IRA) or individually directed account results in a taxable distribution equal to the cost of the collectible. This regulation directly impacts IRAs and qualified retirement plans that invest in NFTs classified as collectibles, triggering a taxable distribution.

    Further complicating matters, the Department of Labor has issued cautionary guidance on the risks of cryptocurrencies in 401(k) plans. However, this guidance does not explicitly extend to IRAs, which have seen a rise in offering digital assets as investment options. The popularity of self-directed IRA products that include cryptocurrencies necessitates careful analysis under Code Sec. 408(m) and Notice 2023-27.

    Understanding the IRS’s current stance on NFTs as collectibles and the implications for retirement accounts and IRAs is crucial.At the Tax Law Offices of David W. Klasing, our dual-licensed Virtual Currency Tax Attorneys and CPAs always stay ahead of IRS guidelines regarding NFTs as collectibles, especially considering their impact on IRAs and retirement planning. Our focus is on ensuring clients are well-informed and compliant with these evolving tax regulations in the digital asset landscape.

    Understanding Hard Forks and Airdrops in Cryptocurrency Taxation

    What is a Hard Fork?

    hard forkin the realm of distributed ledger technology, such as blockchain, is a significant event. It occurs when a cryptocurrency undergoes a protocol change, leading to a permanent split from the original blockchain. This results in the creation of a new cryptocurrency on a separate ledger while the original continues on the existing ledger. Hard forks are pivotal moments in cryptocurrency, often reflecting major shifts or updates in the technology or philosophy underpinning the currency.

    Forks can occur for a variety of reasons, but most are commonly related to disagreements among the crypto-currency community about the way that transactions should be validated. When a group of miners decide to alter their software to reflect such a change, a fork occurs. After a fork, an owner of that particular crypto-currency has ownership in the currency along the historic blockchain and the new chain caused by the fork. For instance, some Bitcoin Core (commonly referred to as plain “Bitcoin”) miners altered their software, and the resulting hard fork created Bitcoin Cash. Immediately after the hard fork, a person who owned one Bitcoin also owned one Bitcoin Cash.

    The particularity of the hard fork and the way in which a crypto-currency owner holds their digital currency play a role in determining the tax consequences. It is in your best interest to contact a tax attorney with experience in representing taxpayers who invest in Bitcoin and other digital currencies. Any uncertainty regarding a cryptocurrency tax position (our firm has identified several) should be adequately disclosed on the return, taking the uncertain tax position to avoid penalties, but this could result in an audit.

    Airdrops and Their Tax Implications

    An airdrop is another crucial concept in cryptocurrency. It involves distributing units of a cryptocurrency to multiple ledger addresses, often as part of promotional or reward schemes. When a hard fork is followed by an airdrop, it leads to the distribution of the new cryptocurrency to holders of the original currency.

    The tax implications of receiving cryptocurrency through an airdrop are nuanced. Generally, the recipient is considered to have received the cryptocurrency at the time it is recorded on the ledger. However, the actual control, or “dominion and control,” over the cryptocurrency is a key factor. If a recipient cannot exercise control over the airdropped cryptocurrency (for instance, due to limitations of the exchange or wallet where it is held), then they are not considered to have received it for tax purposes until such control is established.

    Taxpayer’s Control and Receipt of Airdropped Currency

    For tax purposes, the moment a taxpayer gains the ability to transfer, sell, exchange, or dispose of the airdropped cryptocurrency is crucial. This is the point at which they are treated as having received the cryptocurrency, with corresponding tax implications. For instance, if the cryptocurrency is airdropped to a wallet on an exchange that does not support the new currency, and the taxpayer later gains access to it, the point of taxation is when they gain access, not when the airdrop initially occurred.

    As these events can have significant tax consequences, it is essential for taxpayers dealing with cryptocurrencies to be aware of these occurrences and understand their tax obligations accordingly. Our dual-licensed Virtual Currency Tax Attorneys and CPAshave extensive experience representing taxpayers from all walks of life in a variety of tax situations. Don’t let your uncertainty about the tax treatment of your crypto-currency transactions keep you up at night. Contact the Tax Law Offices of David W. Klasing today for a reduced-rate consultation.

    How Can A Skilled California Cryptocurrency Tax Attorney and CPA Assist Me with Matters Related to Virtual Currency?

    As noted earlier, our skilled tax professionals at the Tax Law Offices of David W. Klasing offer the unique perspective of being both licensed attorneys and certified public accountants. Our CPA training can help us to reconstruct past records and set up a system for you to record the detailed information required on your tax return regarding the buying and selling of virtual currencies, including the aforementioned need to keep track of the fair market value of the cryptocurrency on the date you purchased it. We can use these records to help calculate your capital gains and losses for the year from the buying, selling, and trading of cryptocurrency and to assist you in filling out your returns in a complete and timely manner. Our legal background will give us the skills needed to be sure nothing we do exposes you to civil fines or criminal liability.

    As skilled and experienced tax lawyers, we can also assist you if you have failed to report capital gains from cryptocurrency on past returns and are facing the potential of an audit or criminal investigation by the IRS. Typically, if you retain us before an audit begins, we will be able to get you back into compliance with minimal penalties imposed. If the audit has already started, we will represent you with the IRS and work to get you back into compliance, potentially through voluntary disclosure, without you having to face the most severe civil or criminal penalties.

    Call Our Knowledgeable California Cryptocurrency Tax Attorneys and CPAs Today

    Many folks who are thinking of dipping their toes in the water of cryptocurrency investment might be scared away by the seemingly-daunting tax reporting requirements required when buying and selling virtual currency. At the Tax Law Offices of David W. Klasing, our skilled California cryptocurrency tax attorneys and CPAs have years of experience helping make things easy for our clients who have cryptocurrency tax reporting requirements. We will help you maintain the necessary records and report properly in the first place. If issues already exist related to past returns that were inaccurate or incomplete, we can work to bring you back into compliance with minimal financial damage and without subjecting you to criminal penalties. Call our firm today at (888) 637-7690 to set up a consultation.

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