Bitcoin: Are You Ready for This Change for a Dollar?

Probate & Property Magazine: Volume 29 No. 02

Sasha A. Klein is senior vice-president and director of trust and wealth services for Sabadell Bank & Trust in Palm Beach, Florida. She serves as vice-chair of the Individual and Fiduciary Income Tax Committee and is a member of the Communications and Continuing Legal Education Committees. Andrew R. Comiter is an associate with Comiter, Singer, Baseman & Braun, LLP in Palm Beach, Florida.

Welcome to a world that includes virtual currency. You can’t pass the “water-cooler” without hearing the word “bitcoin”—from discussions on its fluctuating value, alleged identification of its creator, collapse of the main exchange to the likelihood of its success.

Welcome to a world that includes virtual currency. Whether you are a skeptic or supporter, virtual currency is unavoidable. The most prominent virtual currency is bitcoin. One can’t pass the water cooler without hearing the word “bitcoin”—from discussions on its fluctuating value, alleged identification of its creator, and collapse of the main exchange, to the likelihood of its success. Bitcoin continues to gain consumer confidence and become more accepted as a legitimate medium of exchange, resulting in the world’s heightened interest, including that of the IRS. How will bitcoin be taxed in the United States? This article provides an overview of the taxation of bitcoin under Notice 2014-21 (the “Notice”), issued by the IRS on March 25, 2014, and the resulting tax issues. Before discussing the tax implications, this article first provides background on bitcoin.

What Is Bitcoin?

Bitcoin is a convertible form of virtual currency, such as digital coins or electronic cash. It is an encrypted code that has an equivalent value to, and can act as a substitute for, real currency. A bitcoin can be divided into eight decimal places (0.00000001 BTC, also known as a satoshi). Bitcoin does not rely on the banking system, but instead is transferred digitally between users and purchased or exchanged over the Internet for U.S. dollars, Euros, and other real or virtual currencies separate from any government or financial institution. Several currency exchanges currently exist for bitcoin.

Bitcoin is decentralized, meaning its value is not derived from a specific government or an underlying commodity, but instead from

  1. its finite nature (the maximum number of bitcoin that will ever exist is approximately 21 million; currently 12.8 million are in circulation, representing $8.2 billion dollars),
  2. its value as perceived in the marketplace,
  3. its acceptance as a legitimate medium of exchange, and
  4. the effort required to generate a new bitcoin.

Basically, the value of a bitcoin at any given moment is determined through old school supply and demand, as only a finite number will ever exist. A bitcoin is created through a process known as “mining,” in which people known as “miners” with specific computing hardware and software find solutions to complex mathematical problems that result in a bitcoin. The value of one bitcoin has fluctuated significantly in the last year from a high of $1,200 to a low of $130. For estate planners, bitcoin ownership and bitcoin’s fluctuating value create numerous wealth transfer opportunities, such as GRAT planning, but, as discussed below, transfers also may trigger an income tax.

How Does a Bitcoin Transaction Work?

To purchase a bitcoin, one needs to acquire at least one bitcoin address. The address identifies to whom the bitcoin should be transferred, similar to a bank routing number on a check. An address can be generated and assigned by using an on-line exchange or a “wallet” service, for example, Coinbase. Each address also has a corresponding private key, which is known only to the owner and which the owner must use to authorize a future transfer. There are two addresses per transaction, one for the sender and one for the recipient. Addresses are made public through the “block-chain,” which is a public registry that (1) records all bitcoin transactions and ownership interests and (2) verifies that the sender sent his public key to the recipient and certified the transaction by signing with his private key. Miners verify the transaction on the block-chain, but anyone on the network also can verify the transaction. Such public transparency supports the integrity of the bitcoin system and provides a safety measure because bitcoin transactions are irreversible. Accordingly, proper precautions should be taken when owning a bitcoin because it functions like cash—if a bitcoin is stolen, it is practically impossible to recover or determine who stole it.

A bitcoin usually is kept in a “wallet.” The purpose of the wallet is to save the bitcoin address and private key, that is, the information needed to access and transfer a bitcoin. In addition, one of the goals of a bitcoin wallet is to secure the bitcoin so others cannot gain unauthorized access. A bitcoin can be stored in the following types of bitcoin wallets: (1) a virtual wallet, which can consist of a program on a smartphone or personal computer;(2) an on-line wallet hosted through a third-party company; and (3) a paper wallet, which is a piece of paper containing a bitcoin address and private key. Some of the bitcoin excitement results from bitcoin’s ability to be transferred from person to person anonymously anywhere in the world without the added currency cost of exchange rates and bank fees. In addition, an account or wallet currently cannot be frozen by a creditor, and there are no prerequisites to bitcoin ownership or arbitrary limits on how much bitcoin a person can own. These facts have made bitcoin of interest to those with good intentions and bad.

How Is Bitcoin Treated for Federal Income Tax Purposes?

As a result of bitcoin’s increased popularity, the IRS issued the Notice to provide guidance on the tax treatment and character attributes of virtual currency. The Notice states that virtual currency will be treated as property, as opposed to currency, for federal income tax purposes. As a result, the basic tax principles that are applicable to property transactions apply to virtual currency transactions. Thus, when transacting with bitcoin, the parties must take into account the character, holding period, and basis of their bitcoin.

The character of the gain or loss realized on the sale or exchange of a bitcoin depends on whether the bitcoin was a capital asset in the hands of the taxpayer. The term “capital asset” includes all classes of property not specifically excluded by IRC § 1221. The Notice suggests that a bitcoin held by a taxpayer for purposes similar to that of stocks, bonds, and other investment property will be treated as a capital asset. By contrast, a bitcoin held by a taxpayer as inventory or for sale to customers in a trade or business is likely not a capital asset. The basis of a bitcoin received by a taxpayer is its fair market value in U.S. currency as of the date received, regardless of whether it is mined or exchanged for goods or services.

A taxpayer who successfully mines bitcoin usually will include the fair market value of such bitcoin as ordinary income on the date received. Furthermore, a miner or dealer in bitcoin likely will recognize ordinary income when he or she later sells or exchanges the bitcoin for goods or services. Mining bitcoin may trigger some unintended tax consequences as well. For example, if a taxpayer is deemed to be in the trade or business of mining or dealing in bitcoin, and such efforts are not in the taxpayer’s capacity as an employee, the net earnings resulting from his activities constitute self-employment income and, therefore, are subject to self-employment tax.

The Notice also provides that wages paid to employees in bitcoin must be reported by the employer on a Form W-2 and are subject to federal income tax withholding and payroll taxes. Payments made to independent contractors in bitcoin are treated similarly, in that the payments are taxable, subject to self-employment tax, and generally require a Form 1099 if the payment is in excess of $600. It is important to note that payments made in bitcoin are subject to information reporting to the same extent as any other payment made in property. Financial Crimes Enforcement Network (FinCEN), which issues regulatory guidance pertaining to Reports of Foreign Bank and Financial Accounts (FBARs), publicly stated that bitcoin is not reportable on the FBAR, at least for the 2013 (June 30, 2014) filing season.

Example of a bitcoin transaction:

Bob purchases one bitcoin(1 BTC) for US $500 from the online exchange and downloads a wallet to his smartphone, which will contain a bitcoin address (that is, a string of 30+ letters and numbers and looks similar to 1yTRPUmXWpkDHaBr84ToxVH7WRnvHer) and a private key. One month later, 1 BTC is worth US $600 and Bob wants to purchase a fine Bordeaux from Sam, who is willing to sell it for 1 BTC. Sam creates a bitcoin address to which Bob can send the payment. Bob transfers the 1 BTC to Sam by using his public address and signing with Bob’s private key. Miners verify the transaction on the block-chain. Once Sam receives the payment, he sends the wine to Bob. The bitcoin transaction is complete. It is no surprise that Sam, as the seller, may have a taxable gain, but with bitcoin being treated as property, even Bob, as the buyer, may have to pay tax because he recognized a capital gain in the amount of US $100 as a result of this transaction. Note, if Bob were a miner or dealer in bitcoin, the gain would trigger ordinary income.

What Happensto Bitcoin at Death?

Bitcoin may (or may not) die, but bitcoin owners will. And when they do, bitcoin may trigger three complications avoidable with proper planning. Although virtual currency is novel to many estate planning attorneys, they can glean lessons from parallels to things they already know.

First, bitcoin wallets are not bank accounts. Loved ones cannot make an appointment and visit the bitcoin operator, as they could a bank teller. Most bitcoin exchanges and wallet companies operate outside the United States, and operators likely do not have access to login information. Further, the transfer of a bitcoin at death is more complex compared to other digital assets because of its pseudo-anonymous, highly intricate security measures, including multilayer encryption and authentication. Although such security measures are required to prevent unauthorized access to a bitcoin, those very same security measures cause additional complications at death unless the owner leaves clear, legally enforceable instructions.

Second, bitcoin will be included in the owner’s estate and governed by his will or revocable trust (or pass by intestacy). Because a bitcoin is intangible personal property, absent a specific bequest, the bitcoin will be part of the residue and pass under its direction. If the owner wishes to give a bitcoin to a specific person, such specific bequest should be included in the will or trust.

Third, like bearer bonds or cash, bitcoin may be overlooked at death because the bitcoin may not be known to the executor, trustee, or anyone else, including the owner’s loved ones. This isssue is a crucial one that needs to be addressed at the planning stage. Advisors should ask clients if they own bitcoin and who has (or should have) access to the bitcoin wallet after the client’s death. With this knowledge, advisors can help their clients plan for the transfer of bitcoin to the proper beneficiary.

It is worth noting that if no planning is done, and the owner is the only person with knowledge of the bitcoin and access to the wallet, then, at the owner’s death, such bitcoin could be lost in cyberspace forever.

Fourth, bitcoin owners would be well advised to contemplate the bitcoin’s value when planning for transfer and capital gains taxes, just as the owners would do for a stock portfolio.

  1. Transfer Taxes: The fair market value of an owner’s bitcoin will be includable in his gross estate for estate and GST tax purposes, which raises possible planning needs for gift, estate, and GST taxes.
  2. Capital Gains and Basis: Under IRC § 1014, the basis of a bitcoin for a person acquiring it from a deceased owner will be the fair market value as of the date of death. Bitcoin that have increased in value will receive a step-up in basis, while bitcoin that have decreased in value will receive a basis step-down.

Bitcoin owners need to be aware of these basis rules to avoid triggering unnecessary tax. For example, by using appreciated bitcoin instead of cash to purchase an asset, a taxpayer will (1) trigger a taxable gain (or ordinary income if he is a dealer), (2) lose the benefit of a step-up in basis at death, and (3) diminish the estate by the tax paid on the appreciated bitcoin. In such a case, a taxpayer and his heirs instead may have benefited from a cash purchase. In contrast, if the bitcoin has depreciated in value, the taxpayer and his heirs will benefit from the use of bitcoin, as such use will trigger a tax loss and avoid the basis step-down.

Bitcoin’s Foundation—Enough to Support Its Future Existence?

Nobody knows the future potential of bitcoin. Will it take off and flourish to become mainstream or fade away to become a vague memory, as did eight-tracks, MySpace, and Palm Pilots? What is known is that the supporters of bitcoin, from computer geeks to drug dealers, champion bitcoin as change for a dollar.


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