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

The three officials tapped by the Biden administration for CFTC roles come with promising crypto credentials, but can they live up to the promise?

On Sept. 14, United States President Joe Biden revealed his picks to fill two vacant seats at the United States Commodity Futures Trading Commission (CFTC). In addition, the president nominated Rostin Behnam, who has run the derivatives regulator as acting chairman since January, to assume the office on the permanent basis.

The appointments are unlikely to face serious obstacles on their way to confirmation, as nominees will have to secure a simple majority vote in a Senate currently controlled by Democrats. What can the crypto industry expect of the CFTC if Behnam assumes permanent chairmanship and Kristin Johnson and Christy Goldsmith Romero join the agency as commissioners?

Bringing the commission up to strength

In 2015, the CFTC came forward and defined Bitcoin (BTC) and other digital currencies as commodities under the U.S. Commodity Exchange Act, joining the ranks of U.S. government agencies engaged in the regulation of the cryptocurrency space. The agency also asserted jurisdiction in cases when “a virtual currency is used in a derivatives contract, or if there is fraud or manipulation involving a virtual currency traded in interstate commerce.”

The CFTC, which is designed to be five-strong when fully staffed, has been down to acting chairman and two commissioners this year. Heath Tarbert, the former chairman, departed in March, and Brian Quintenz stepped down at the end of August. Furthermore, Dan Berkovitz, one of the remaining commissioners, has announced his intention to leave on Oct. 15.

Nominations come amid the Biden administration being criticized for taking its time to fill vacant positions in several key regulatory agencies, including the CFTC. If confirmed, the new additions to the agency will give Democrats a 3-1 majority on the panel.

From acting to permanent chairman

Acting Chairman Behnam has been with the CFTC since July 2017 when he had been sworn in as a commissioner. Serving under the crypto-friendly Chairman Giancarlo, Behnam has spoken favorably of digital currencies and their transformative potential on several occasions.

For one, speaking at a regulatory summit in 2018, Behnam opined that cryptocurrencies — or virtual currencies in the CFTC parlance — were set to become “part of the economic practices of any country, anywhere,” aptly observing that “some places, small economies, may become dependent on virtual assets for survival.” Finally, Behnam acknowledged limits to regulators’ reach if digital currencies continue to proliferate:

“These currencies will be outside traditional monetary intermediaries, like government, banks, investors, ministries, or international organizations.”

More recently, the acting CFTC boss talked about the need for maintaining a constructive conversation between policymakers and innovators in the field of financial technology and how it is urgent for keeping U.S. innovation at home. In remarks in March 2020 regarding a crypto-related Commission action, Behnam stated:

“I have long advocated for a more inclusive conversation regarding the advent of financial technology, believing that a thorough examination and discussion of the technology within our current legal and regulatory framework will best serve technologists, market participants, and customers.”

It sounds like what the industry is longing for, doesn’t it? Yet, it would be premature to base expectations of the derivatives regulator’s future policies on these declarations alone. After all, like any U.S. financial regulator whose statutory goal is market participants’ protection in the first place, the CFTC can always be expected to err on the side of caution when innovation is perceived to be at odds with consumer safety.

Commenting on the recent settlement between BitMEX with both the CFTC and FinCEN, Behnam noted: “The CFTC will take prompt action when activities impacting CFTC jurisdictional markets raise customer and consumer protection concerns.”

New commissioners

Biden’s two picks for the vacant CFTC commissioner seats are Emory University law professor Kristin Johnson and Christy Goldsmith Romero, the current special inspector general of the Troubled Asset Relief Program, a federal law enforcement agency that deals with financial crimes related to the U.S. government’s bailout program.

Professor Kristin Johnson’s recent work focuses on the implications of emerging financial technologies including distributed digital ledger technology (DLT) and artificial intelligence (AI) for financial regulation. Prior to her academic appointments at Emory and, before that, Tulane, she worked in corporate finance, most notably as assistant general counsel and vice president at JP Morgan.

In her capacity as the TARP Inspector General, Christy Goldsmith Romero investigates financial institution crime related to bailouts executed under the program. In this role, she works closely with the SEC, an agency where she previously served as senior counsel in the enforcement division.

Great expectations

On the surface, the trio appears to be a winning combination of an innovation-friendly chairman, a legal scholar with a deep understanding of cutting-edge financial technology and an expert financial crime investigator.

Daniel Davis, a partner at law firm Katten Muchin Rosenman LLP and former general counsel for the CFTC, believes that each of Biden’s picks has the potential to bring positive changes for crypto regulation. Acting Chairman Behnam, if he assumes the office permanently, will be in an excellent position to move the regulatory conversation forward.

Related: Slow to start: Crypto regulators lagging behind blockchain industry

In addition to that, Ms. Johnson and Ms. Goldsmith Romero each bring excellent crypto-related credentials to their potential roles as commissioners. Davis further noted regarding the two nominees:

“Both have taught law school courses related to crypto. Ms. Johnson has also written extensively on topics such as financial services regulation and how decentralized finance (DeFi) could fit within the current regulatory structure with some innovative ideas. One would expect that crypto-related issues would form an important part of their respective agendas if confirmed.”

In this light, it is indeed tempting to view the prospective CFTC reinforcements with optimism, but with some reservations. For one, as the example of the current SEC boss Gary Gensler shows, being knowledgeable about digital finance and teaching blockchain classes at a top university does not necessarily translate into becoming the crypto industry’s ally when the person assumes a high office at a regulatory agency.

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

“The labeling of the offering as decentralized and the securities as governance tokens did not hinder us from ensuring that DeFi Money Market was immediately shut down and that investors were paid back,” said the SEC.

A Cayman Islands-based company and two individuals may be the first subjects in decentralized finance, or DeFi, to face enforcement action from the United States Securities and Exchange.

According to a Friday announcement, the Securities and Exchange Commission, or SEC, said that this is the first case involving securities using DeFi technology which resulted in an enforcement action. The agency said it charged the company Blockchain Credit Partners as well as Florida residents Gregory Keough and Derek Acree, alleging they were involved in offering and selling more than $30 million in unregistered securities from February 2020 to February 2021.

DeFi Money Market, according to the project’s white paper, was “a permissionless and fully decentralized protocol to earn interest on any Ethereum digital asset backed by real-world assets represented on-chain.” Billionaire Tim Draper also backed the project.

The SEC claimed that Keough and Acree misrepresented how the company was operating to investors and did not reveal that it would be unlikely to pay interest and profits from offering and selling mTokens as well as DeFi Money Market’s DMG governance tokens. Instead of purchasing car loans, as the project claimed, the SEC alleged the pair used personal funds as well as funds from Blockchain Credit Partners to make interest payments for mToken redemptions.

However, the DeFi project closed its doors in February, saying at the time it was the “result of regulatory inquiries.” The announcement led to a huge price drop in DMG, making it more unlikely that investors would be able to redeem their tokens.

Related: SEC enforcement actions cost crypto firms and individuals $1.7B in penalties

“The federal securities laws apply with equal force to age-old frauds wrapped in today’s latest technology,” said Daniel Michael, chief of the SEC Enforcement Division’s Complex Financial Instruments Unit. “The labeling of the offering as decentralized and the securities as governance tokens did not hinder us from ensuring that DeFi Money Market was immediately shut down and that investors were paid back.”

The SEC said that Keough and Acree have agreed to a cease-and-desist order regarding their company’s token offerings that included more than $12.8 million in disgorgement as well as $125,000 penalties each. The pair have funded DeFi Money Market smart contracts to allow token holders to receive any funds due.

At the time of publication, the DMG governance token has a market capitalization of more than $2.3 million, according to data from CoinMarketCap.

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