CFTC commissioner: agency doesn’t have enforcement resources without Congress

“We’re not necessarily looking for more authority without more resources,” said Dan Berkovitz in regards to crypto markets.

Dan Berkovitz, one of three commissioners currently serving at the U.S. Commodity Futures Trading Commission, said while the agency is suited to futures contracts, swaps, and options trading, it would need additional resources to handle the cash market for crypto assets.

Speaking at the Managed Funds Association Digital Assets Conference on Tuesday, Berkovitz said the Commodity Futures Trading Commission, or CFTC, enforcement actions in the crypto space have been “aggressive,” citing a $100 million civil monetary penalty against derivatives exchange BitMEX. Though he said the agency had the “capability and the expertise” to further regulate crypto assets, it was currently unable to do so due to a “resource issue.”

“If congress were to determine that our jurisdiction should be expanded to somehow regulate the cash market, we would really need additional resources to do that,” said Berkovitz. “Cryptocurrency markets, we’re not necessarily looking for more authority without more resources. We’re staying in our lane.”

Berkovitz noted there was “a lot of coordination” between the agency, the Securities and Exchange Commission, Financial Crimes Enforcement Network, Federal Reserve, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, and Department of the Treasury. The CFTC worked with the Financial Crimes Enforcement Network to settle the case against BitMEX, and has coordinated with the SEC to investigate trading apps dealing in crypto.

“We’re all pretty familiar with the lanes that we go in,” said Berkovitz, referring to the jurisdictions of the respective agencies. “I think coordination is actually excellent.”

The CFTC commissioner also doubled down on his comments from June that decentralized finance platforms were likely illegal under the Commodity Exchange Act. According to Berkovitz, there was a “spectrum of centralization” around projects in the DeFi space that could make them subject to registration at the CFTC.

Related: CFTC renewed: What Biden’s new agency picks hold for crypto regulation

Five commissioners normally serve at the CFTC, but the agency has been shaken up by the departure of former chair Heath Tarbert in January and Brian Quintenz on Aug. 31. Berkovitz has also announced he plans to leave the commission on Oct. 15, leaving only acting chair Rostin Behnam and Dawn Stump.

Earlier this month, President Joe Biden said he planned to nominate Behnam to assume his position on a permanent basis in addition to filling the remaining seats with law professor Kristin Johnson and former SEC enforcement division senior counsel Christy Goldsmith Romero. All must be confirmed by the Democrat-controlled Senate, but the White House has not yet announced a possible replacement for Berkovitz.

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US lawmakers propose adding digital assets to ‘wash sale’ rule and raising capital gains tax

If passed, the plan would raise the capital gains tax rate for “certain high income individuals” to 28.8%, while eliminating the “wash sale” loophole for crypto users.

Democrats in the U.S. House of Representatives have proposed tax initiatives to fund a $3.5 trillion spending package which could potentially affect crypto users. 

According to a document released by the House Committee on Ways and Means on Monday, the proposal would increase the tax rate on long-term capital gains from the existing 20% to 25% for “certain high income individuals.” A surtax of 3.8% on net investment income would seemingly apply to the proposed changes, bringing the U.S. capital gains and dividends tax rate to 28.8% for wealthy crypto users.

In addition, the tax plan would add digital assets to the “wash sale” rules, which prohibit investors from claiming capital gains deductions on certain assets repurchased within 30 days of a sale, “previously applicable to stock and other securities.” Existing tax laws under the IRS consider cryptocurrencies as property in wash sales — which some crypto users have been able to use to avoid capital gains — while the proposal from U.S. lawmakers would close this loophole.

If passed and signed into law, the plan would require crypto users to report taxes according to the new wash sale rules starting on Dec. 31, while the capital gains tax rate would apply to transactions made after Sept. 13. However, the bill for the $3.5 trillion spending package has not yet been finalized. In April, President Joe Biden’s administration suggested raising the capital gains tax rate for wealthy individuals to 43.4%.

Related: Senators add crypto taxes to infrastructure deal to raise $28B in extra revenue

The tax plan from House Democrats follows the passage of an infrastructure bill in the Senate suggesting implementing tighter rules on businesses handling cryptocurrencies and expanding reporting requirements for brokers. Many Democratic and Republican lawmakers have pushed for amending the language in the bill to clarify the role of cryptocurrencies, while the House is scheduled to vote on the proposal by Sept. 27.

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2 Senators introduce pro-crypto amendment to infrastructure bill; industry says it’s not enough

Perianne Boring, the founder and president of the Digital Chamber of Commerce, provided details about the proposed amendment Saturday afternoon.

United States senators Mark Warner and Kyrsten Sinema, both Democrats from Virginia and Arizona, respectively, have introduced a new amendment to the infrastructure bill that would lessen the burden on cryptocurrency tax reporting for miners and wallet providers. 

As Perianne Boring reported Saturday afternoon, the senators are endorsing an amendment that would exclude cryptocurrency miners and hardware and software wallet providers from being subject to new tax reporting provisions. The amendment would broaden an earlier update proposed by the same lawmakers, along with Ohio Republican Rob Portman.

The current version of the bill considers these entities to be “brokers” that facilitate the transfer of cryptocurrencies between users. If these entities are indeed classified as brokers, they would have to monitor and track user transactions despite them not being actual customers. Opponents of the proposed law say it would be nearly impossible for miners and protocol developers to fulfill these obligations adequately.

The cryptocurrency community has, with few exceptions, banded together to form a united front against the proposed infrastructure bill. Many influencers have urged their followers to contact state and local representatives to voice their opposition. In their view, the new tax reporting requirements are unworkable for cryptocurrency miners, wallet providers and protocol developers, which means their implementation would stifle innovation in the industry and may lead to an exodus to other jurisdictions.

Related: Treasury Secretary reportedly against amending crypto language in infrastructure bill

Twitter CEO Jack Dorsey opposed Warner’s previous iteration of the bill, arguing that the “amendment makes it worse, especially for open source developers.”

Jerry Brito, who heads Coin Center, a D.C.-based crypto think tank, wrote a detailed thread explaining two competing amendments and how they would impact the digital asset market. He contrasted Warner’s initial amendment, which he described as a “misguided [attempt] to pick technological winners and losers,” with an alternative proposal put forth by a bipartisan group that includes Ron Wyden, Cynthia Lummis and Pat Toomey.

Regarding Warner’s revised proposal submitted on Saturday, Brito said it’s “still not as good as the Wyden-Lummis-Toomey amendment,” which excludes protocol developers from the tax reporting requirement.

Barring any further delays, the Senate is expected to vote on the bill late Saturday or on Sunday.

Related: SEC claims first enforcement action in $30M fraud case involving DeFi project

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SEC accuses XRP Army of issuing ‘false statements’ against its leadership on social media

The commission argued that Ripple’s motion, if granted, would open the floodgates for the company to request testimony from high-ranking government officials.

The ongoing lawsuit between Ripple Labs and the U.S. Securities and Exchange Commission, or SEC, continues with the regulatory body claiming that XRP token holders are targeting its members on social media platforms with allegedly false statements.

In a Thursday motion addressed to Judge Sarah Netburn in the Southern District of New York, the SEC has requested a conference to discuss quashing the motion from Ripple to subpoena the former director of the regulatory body’s division of corporation finance, William Hinman. The SEC argued that Ripple’s motion, if granted, would set a precedent for the company to be allowed “a parade of requests for the testimony of high-ranking government officials,” and interfere with U.S. government operations.

“Allowing Defendants [Ripple] to depose Director Hinman would likely result in Director Hinman being served with multiple deposition subpoenas by the many other persons alleged to have violated the registration provisions of the securities laws during his tenure at the SEC,” said the motion. “Such a result would not only create significant burdens for Director Hinman, but would make other qualified individuals reluctant to serve in high-ranking roles at the SEC for fear of being embroiled in litigation for years following their terms of service.”

However, one of the SEC’s arguments in the motion against letting Ripple depose Hinman is XRP token proponents — also known as the XRP Army — allegedly using social media “to disseminate negative and false statements about members of SEC leadership,” including the former director. The commission claimed that the deposition coupled with the social media attention could deter individuals from seeking positions in public service.

The SEC filed a lawsuit against Ripple in December, alleging the firm, CEO Brad Garlinghouse and co-founder Chris Larsen had been conducting an “unregistered, ongoing digital asset securities offering” with their XRP token sales. In the aftermath of the commission’s announcement, several crypto exchanges have suspended the trading of XRP or delisted the token entirely. Garlinghouse also said in March that Ripple had agreed to “wind down” its partnership with global money transfer service MoneyGram.

Related: US isn’t prepared to regulate new industries like crypto, says Ripple CTO

In response to the SEC lawsuit, Ripple has claimed that XRP is more like Bitcoin (BTC) or Ether (ETH), both of which the regulatory body has classified as commodities rather than securities. Members of the XRP Army have also seemingly focused much of their online activity around the SEC case with Ripple, specifically mentioning Hinman.

Some of the ideas on social media pushed by XRP token holders about the SEC leadership include that members of the commission are working to make China’s economy greater than that of the United States, requests that former chairperson Jay Clayton and Hinman be investigated, and the occasional comparison of one or more members to lizard people:

XRP Army members have also started an online campaign to get exchanges to relist the token amid the SEC lawsuit. In April, the price of XRP reached a yearly high of $1.78 and stayed above the $1.00 level for a month. At the time of publication, XRP is $0.63, having fallen more than 35% in the last 30 days.

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Mexico lawmakers aim to follow the example of neighboring countries with proposed Bitcoin legislation

“We are going to lead the shift to crypto and fintech in Mexico,” said one senator.

Eduardo Murat Hinojosa, a senator of the federal government of Mexico, has said he will be submitting a proposal to lawmakers seemingly aimed at crypto adoption in the country.

In a tweet today, Hinojosa changed his profile picture to feature the senator speaking into a microphone with the iconic “laser eyes,” indicating support for crypto. The lawmaker said he would be “promoting and proposing a legal framework for crypto coins in Mexico’s lower house,” specifically mentioning Bitcoin (BTC).

Hinojosa was not the only Mexico lawmaker indicating their support for crypto. Indira Kempis Martinez, a senator representing the state of Nuevo León, has also switched her profile to show laser eyes, with Hinojosa referring to her as a friend to the cause.

“We are going to lead the shift to crypto and fintech in Mexico,” said Hinojosa.

The social media activity comes as countries in Latin America have seemingly been taking steps towards greater adoption of crypto. In a video announcement to attendees of the Bitcoin 2021 conference last week, El Salvador President Nayib Bukele said he would send a bill to the country’s legislature demanding that Bitcoin be made legal tender.

On Sunday, Paraguayan congressperson Carlitos Rejala hinted that crypto would be connected to “an important project to innovate Paraguay in front of the world” starting this week. Yesterday he added that he was working with local crypto figures “in order for Paraguay to become a hub for the crypto investors of the world.”

Though Mexico has many individual investors who back Bitcoin, authorities in the country reported last year that cartels had been increasing their use of crypto to launder funds. At the time, the head of the Mexican attorney general’s Cyber Investigations Unit said the country’s law enforcement lacked the resources needed to tackle money laundering when crypto was involved.

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