Unchained - Your 2021 Crypto Taxes: How to Handle NFTs, DAOs, Airdrops and More - Ep.320

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Starting point is 00:00:26 crypto taxes for 2021. One of the first guests will be. be someone who, until recently, was the crypto person at the IRS. Join now for $4.99 a month, or $4.4999 a year, at laura shin.b bulletin.com slash subscribe. For those of you who don't have Facebook accounts, we are figuring out another way for you to at least join the Discord. I will keep you posted. Again, to sign up for the premium offering, head to laura shin.b bulletin.com slash subscribe. Also, if you become a premium bulletin subscriber, plus do what it takes to receive a signed bookplate, which you'll hear how to do below, then you will receive a POAP.

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Starting point is 00:02:10 I'm your host, Laura Shin, a journalist with over two decades of experience. I started covering crypto six years ago, and as a senior editor at Forbes, was the first mainstream media reporter to cover cryptocurrency full-time. This is the February 15th, 2022 episode of Unchained. Bosonic is the new decentralized financial market infrastructure. Want real best execution? Want to keep your assets at your custodian? Want zero counterparty risk? You need Bosonic.

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Starting point is 00:03:18 Link in the description. This episode of Unchained is brought to you by Beefy Finance, the multi-chain yield optimizer. Beefy is the easiest way to earn more from your crypto. Deposit funds into Beefy's secure vaults to auto-compound yield across 12 blockchains. Got crypto? Choose Beefy. Today's topic is 2021 Taxes for Crypto People. Here to discuss are Shihon Chandra Sekira,

Starting point is 00:03:49 certified public accountant and head of strategy tax at CoinTracker, and John Cardone, Senior Director of Washington National Tax at RSM-US LLP. Welcome, Sheehan, and John. Good afternoon. Yeah, thanks for having us. Can you each briefly describe your background and how you came to know this area of crypto taxes? Sheehan, why don't we start with you?

Starting point is 00:04:13 Sure. So I've been a CPA ever since I started my career. Got into crypto on 2016, 217 time period. and then joined CoinTracker in the early days as the head of tax strategy, and I started building the software there. Yeah, so that's a little bit about my background. And John? I have a long history of government service in tax controversy,

Starting point is 00:04:38 representing the IRS in court and then district court and tax court. I also served as an executive at the IRS, and I first got introduced to digital assets in cryptocurrency back when the IRS was issuing a John Doe, summons to Coinbase and I was supervising the agents that were involved with that. I then continued on with some of the IRS enforcement programs around digital assets before coming to RSM. Great. All right. So let's start our discussion with a quick overview of crypto taxes.

Starting point is 00:05:13 Let's first start with the main taxable events. What are those? Sure. I'll go ahead. So crypto currency is are traded as property according to the IRS, notice that 2014-21. So that treatment results in your different types of taxable event when you do different different things. So let me break down the five different types of events that could lead to a taxable event. So number one, just cashing out crypto, pretty self-explanatory. You could have Bitcoin, you were cashing it out. You got to pay capital gain taxes. Number two is when you trade one cryptocurrency to another. So you could be going from Ethereum to Bitcoin or Bitcoin to Litecoin.

Starting point is 00:05:55 You don't necessarily have to realize any cash, but the property treatment gives rise to a taxable event. Number three is when you spend cryptocurrencies to buy a good or service, you could be buying a subscription or you could be buying a Tesla. That triggers a taxable event. And number four is when you earn cryptocurrencies. There are so many ways that you can earn cryptocurrencies. It could be through wages, interest income, you know, mining income. staking income, which is somewhat arguable, we'll get into that later. So whenever you earn cryptocurrency, that triggers a taxable event.

Starting point is 00:06:28 And then the last one is when you go through a hard fork and receiving a new type of cryptocurrency or you're getting airdropped a new type of token, that triggers a taxable event. So those are the five situations that you need to remember. If you go to any of the situation, you could have a taxable or reportable thing to that you need to report on your taxes. And John, do you want to expound on how those different events are taxed and how people should think about their tax rates? Sure. Generally, and some of the events that Xihan described when you cash out or when you exchange cryptocurrency, that's when you exchange property. When you could exchange property, you sell property, you exchange one piece of property for another piece of property, which would be barter. generally if it's property that you've held, that you've acquired and held and sold, that would be taxed as a capital gain.

Starting point is 00:07:26 If it's property that you earn, like income or proceeds, then that's taxed is ordinary income. Sheehan also talked about that there's some of the questions that are unclear involve, certain kinds of coins, what they call staking, is that created? Are you creating property or are you earning property through your work? So generally, though, it's a capital treatment. Okay, yeah, we will definitely discuss staking in more depth later on in this episode. But first, let's talk about kind of some of the things that will probably be top of mind for crypto people for this year's tax season. And I personally think that this discussion probably will start with NFTs.

Starting point is 00:08:15 So let's give an overview of. how NFTs are taxed. And we can look at both how they're taxed for creators as well as buyers. Sure. 2021, I think it was the year of the NFTs. If anybody asked me what was the hardest topic, it wasn't Bitcoin, it wasn't DFI, it was NFTs. And those people who made money to NFTs and also who lost money through NFDs are going

Starting point is 00:08:41 to the tax filing season right now. So it's really important for them to know what needs to be reported and how to get those numbers. So speaking of NFT taxes, there are two ways that you can interact with NFTs. One, as a trader, you can just flip NFTs and make money. The other ways, as a creator, you can create NFTs and put it on marketplaces like OpenC so people can buy it and you can earn royalties. So let me kind of walk through NFD trader taxes.

Starting point is 00:09:11 So NFTs are very similar to cryptocurrencies, at least in terms of how, you know, when it comes to tax implications. So you have a purchase price, you have a sales price, fancy terms, you know, cost bases and the sales proceeds. If you make a profit, those profits are subject to capital gain taxes, similar to any other, you know, cryptocurrency. So pretty, you know, clear that area. And obviously, if you bought an NFT and that NFT loss in value and then you're disposing that NFT at a loss, you're also eligible to get that kind of capital loss. So that's how NFT taxes work, you know, at a high level for traders. is one thing to note is that, you know, some of these NFTs are based on artwork, like,

Starting point is 00:09:54 you know, both a yard club and there are so many other projects. So those artwork-based NFTs could be treated as a collectible under the IRS tax code. And if they're deemed as collectible, those collectible gains are subject to a higher long-term capital gains up to 28% versus the highest capital gain tax rate that subject, which is 20% that's applicable to regular crypto coins and stuff. So something to keep in mind if you're specifically dealing with art-based NFTs. So yeah, in an international, that's how, you know, an NFT taxes work for, you know, for creators.

Starting point is 00:10:32 And for creators, obviously you can, you know, hire some people and, you know, create like, you know, I don't know, like certain types of images within a certain characteristics. It could be, you know, a thousand of certain type of character, and you can put it on sale for, It's places like often C and super rare. If you're a creator, every time you sell those NFTs, that triggers a taxable event for you. And the amount of taxes, amount of income you need to report is the market value that you receive at the time you're selling that NFT to somebody. And that could also be subject to self-employment taxes, which is another layer of taxes you need to pay if you're in the business of, you know,

Starting point is 00:11:17 So if you're a creator, if you're a full-time creator, you've got to pay income taxes and also self-employment taxes because that's your trade of business. Again, so you get income, you report income, and obviously if you have any business-related expenses, you get to use those expenses to offset your income. In some cases, you could also get royalty income, you know, when that NFD gets traded in the secondary market, and that also constitutes income to you at the time you receive those reward. So the trick for both creators and the traders is that kind of, you know, capturing those income events and converting those tokens into the market value every time you receive them and

Starting point is 00:11:56 figure out your capital gains that you need to pay taxes on, which is a very, very cumbersome task. But if you went through the NFD that saga in 2021, I don't think it's a saga. I think it's a saga. I think it's going to continue to happen. Make sure you have, you know, good records so you can compile your capital gains and capital losses. So one issue related to NFTs that I wanted to discuss was people are also using them as kind of like way like tickets almost to get into Dow's or for access to chat groups or whatever it might be. Are those pretty much taxed the same way as you just outlined or because they have a different usage or are they taxed any differently?

Starting point is 00:12:38 So I think you're talking about using your NFD to authenticate into some type of platform or get access to some type of thing. I don't see that creating a taxable event. I mean, obviously you're using an asset that you have to access something valuable. You're not disposing of that asset. You know, you see a loan it. So it shouldn't create a taxable event. Oh, well, but what if they sell like for FTIP for Friends with Benefits?

Starting point is 00:13:08 if they sell there. I mean, if you, I agree with you, you know, the initial purchase of the NFT and the use to get into an event or then, then I agree that that wouldn't be a taxable event. However, if, you know, if the event turns out to be a historic occasion that 10 years later maybe is, it has a value in and of itself as a momento of that event or separate, then it might fall into the collectability realm. where if you just sold it, I'm not, you know, that that looks more like it's a collectible, that something is sold. But even then, if there's no history, it would just be a, it would be a

Starting point is 00:13:48 sale or exchange of the NFT. Okay. And but also for something like Friends with Benefits where I'm just trying to, because a part of me is like, wait, do they burn those? But I don't think they do. I think people just buy and sell them. I mean, if it's something like a, like a club or membership club, then, I think those have those have value and you sell those. You would deduct your basis. You would deduct your basis in those. But then those could be taxable on a resale.

Starting point is 00:14:20 Okay. Yeah, which is, you know, because the price of those is definitely fluctuated. So people weren't buying and selling them for the same price. So, okay. So it sounds like then they are taxed. If anybody's using an NFD as a ticket, like in simple example, and, you know, you're waiting out of the stadium and you're buying a ticket for $100 and, you know, selling it for $200, it is a taxable event because you're profiting from that thing. So if we apply the same scenario into NFTs and if people are flipping an FD tickets or access to some type of event, technically it's a taxable event.

Starting point is 00:14:56 Okay. Just so I understand about the collectible issue, it sounds like different NFTs would be treated differently depending on the nature of that NFTs. So obviously, you know, everybody, when they think about NFTs, goes first to JPEGs or art, but obviously there's, you know, things like domain names or, you know, now music or, I mean, there's just a huge variety. So, like, how would the IRS think about what is a collectible or how would you determine it when you go to pay your taxes or your accountant or whoever? I would want to see more of a history of a market for a collectible. I don't think, given that there isn't a lot of guidance on point, I'm not really sure that

Starting point is 00:15:46 the IRS will want to wade into the collectibility, whether something is a collectible, so early on in the life of an NFT. I'm not to say that that won't change later on or that there won't be more specific guidance out there. But I think at this point that if a taxpayer, you know, records a reasonable purchase price, you know, records their basis and recognizes the income one if it is sold or traded, that I think that they're probably in a pretty sound position. And the IROS won't start looking at a collectible, you know, a determination. So you would actually think that that's kind of a less likely scenario? I do.

Starting point is 00:16:32 I think really until these their NFTs are older, until there's a history of them, you know, almost like artwork, you know, like a providence that you can see the history of the sales that people are doing this as a, as an appreciation or collectible versus now. I think the market is just too early. They're more like an investment at this point in time. And then just to go back, I wanted to make sure I understood it. And Shihon, you may have misspoke because you were saying that. So even though it seems like the collectible thing isn't an issue for now,

Starting point is 00:17:10 did you say that even the long-term capital gain on that would be 28%? Or did you mean short-term? So just to add to what Joan mentioned, And, IRIS has not issued any NFD-specific tax guidance, but there are code sections that define what a collectible is, and that code section is very broad. It says, you know, any type of artwork or any type of, I don't know, music and etc. could be treated as a collectible. So some conservative taxpayer, they have started, you know, creating some of these art-based

Starting point is 00:17:42 NFTs as collectible just to be on the safe side. But I completely agree with what John mentioned. You know, IRS hasn't said anything if you're reporting something, even if it's not like a, even if it's not treated as a collectible, that would be the better way to go about things. Coming back to your question, Laura, so if it is deemed as a collectible, then your long-term capital gain tax rate goes from 20% to 28% if you're a high net worth individual. So the idea is that, you know, IRS came up with this in a collectible, you know, tax code section in the 90s. So the idea is that, you know, if you have collectible gains, you're considered to be like a super high nature of the individual. So I guess it's reasonable to have them subject to a higher tax rate, like 8% higher tax rate than regular stocks and crypto coins are subject to. So that's where that, you know, the tax rate difference comes from.

Starting point is 00:18:35 Okay. And then for people who have been trading exchanges, I know the forms that they might have gotten over the years may have changed. For this year, what forms could people expect to get and how would they then use those forms? Yeah, I mean, even this year, like, you know, we see different types of forms issued by different exchanges and wallets. 10-9 and miscellaneous is a pretty common form that you're going to see if you staked or earn some type of reward inside any of these exchanges, and if your reward income was more than $600 in a given year.

Starting point is 00:19:12 So you're going to get that form, and that form typically goes on the same. Schedule 1 that considered other income. Another form that we see that has caused a lot of confusion is the form 1099K, which reports your gross proceeds every month, and it doesn't report your cost basis. So and as soon as the taxpayer gets, they're like, okay, these numbers are wrong. These numbers are, you know, highly inflated and they naturally, they blame at the exchange. But the reality is that the form 1099K doesn't have any place to report. the cost basis, so the exchanges are doing what they're supposed to do under the 1099K reporting

Starting point is 00:19:50 rule, then your job is to kind of figure out the cost basis and pay the taxes on your actual net capital gains or claim a net loss. So something to keep in mind, so just because you get a 1099K doesn't mean that you had to pay taxes on that entire gross amount. As soon as you add the cost basis, your tax liability is going to go down a lot. a form we see today, in some exchanges, they issue form 1099Bs. That has a lot of valuable information for the taxpayer. It has your purchase date for your coins, sold date for your coins, purchase price, and in some cases, the cost basis is as well. If you get a form 109 and B,

Starting point is 00:20:34 that's a very friendly form to you. If the form is complete and if you believe the numbers look right, your job is to just put that information from that form to Schedule D and the form 8949 of the tax union. And if you're using like a DIY software, it's just a easy way to kind of file your taxes. Now, that said, there could be some 10-9-9 base you're going to be receiving this tax season with missing cost bases. We can talk about, you know, why, you know, some exchanges cannot figure out the cost phases because, you know, how this phase works.

Starting point is 00:21:06 But if it says, you know, missing cost bases or zero cost phases, you got to find out the cost base. If you do not find the cost spaces, you're going to be paying more taxes on that gross amount because you're not accounting for how much you paid for that coin. So just to summarize, you're going to see 10-9-1-miscolaneous, 10-9-Ks, 10-9-9-Bs. And then finally, this is not a tax form, but some exchange is going to issue like a transsection history report.

Starting point is 00:21:33 It's mainly the overseas funds. So you can go to their tax center, just download all the transactions you did throughout the year. So that's another type of, I guess, a form that you can expect. And then finally, no forms at all, right? If you trade it in MetaMask, there's nothing for you to download. So yeah, so those are the variations that you can expect this tax season. I hope someday that, you know, that the IRS will prescribe a 1099 for digital assets so that it will be a lot easier for taxpayers.

Starting point is 00:22:04 And I think Sheen went through the list of forms. I think when I was at the IRS, we recognize that there's imperfections in the way that the forms report now that they don't prescribe basis. I think the 1099K is probably the least accurate of the ones your 1099B. If you've sold on one exchange will be the most accurate. As Sheehan said, the most important thing for the taxpayer to do is to do their best to report the income and their basis as accurately as possible. And if it doesn't exactly match up with what's on the form and your 1099K will never show basis, that's okay. If you have your downloads, if you have your other records to substantiate that, because there's not exactly a one-to-one match, you know, that's okay. You can still accurately or do your best effort to, you know, to report the liability.

Starting point is 00:23:00 You know, as you mentioned, there's a whole plethora of different forms that people might get. and in some situations they may not even get a form. So would you recommend that people, and obviously, well, nothing that we say in the show is advice for any particular person, but how should people decide which type of accountant to use if one at all? I don't know if, you know, tax software is good enough, but how should people think about this decision? Yeah, I think, first of all,

Starting point is 00:23:30 I think you're going to need some type of tax software tool because this software tool help you kind of reconcile all the activity across multiple wallace and exchanges. Unless you're just using one exchange, which is not the case. A typical crypto user have two to three exchanges. They have transfers in and out.

Starting point is 00:23:47 They have coins purchase at different time periods at different prices. Reconciling this activity manually or even using an accountant is virtually impossible. So just know that there are tax software that's going to help you kind of reconcile your entire tax profile. So you need that. And then the second, you can use a DIY software, like, you know, to have a taxing

Starting point is 00:24:10 conjunction with one of these tax software. Or you can use like a dedicated and accountant to help you file your taxes. So do not expect your accountant or accounting firm to kind of do these reconciliations. It's impossible, especially if you're a complicated taxpayer. So just know that they're tax software. and after you connect everything to a tax software, you can either use a DIY tool or dedicated crypto, you know,

Starting point is 00:24:37 specialized accounting to file and be compliant with your taxes. Yeah, I would say, you know, especially if you have a complicated situation, you know, accounting firm is at RSM, we're, you know, able to help out in very complicated situations. It sometimes it might take, you know, an expert to help you reconcile the data you get, especially if you're trading in multiple exchanges or in multiple protocols.

Starting point is 00:25:06 All right. So obviously the other big hot topic from 2021 that involves crypto taxes was the provision from the infrastructure bill that addressed this issue. And it's sort of unclear what the outcome of that was. So can you outline what it is that people need to know about what happened there and what things should do for this year's taxes and also, I guess, probably future taxes? Sure. So the infrastructure bill passed and it had some language that's affecting the crypto community. I think the main one is that the infrastructure bill is mandating

Starting point is 00:25:43 cryptocurrencies to issue 10-9-9Bs for the 2023 tax year and onwards. So I'm sure you guys have seen the form 109B. This is the form that you get. if you trade stocks and securities in a brokerage, like in a Robin Hood or TDM, it trade. So at the end of the year, you get this form. It has your sales price. It has your cost phases. Your job is to just put those numbers into tax return and you're done. But in the crypto space, it doesn't happen.

Starting point is 00:26:11 So infrastructure bill is trying to change that. From the taxpayers' point of view, it's actually a good thing. Because if you're just using just one centralized exchange, starting 2024, taxisers, and onwards, you're going to get that nice form 109 and B. And hopefully that has your correct sales price and the correct cost basis. And your tax compliance is going to be super easy, assuming you're just using just one cryptocurrency exchange. But in most cases, that won't be the case due to the nature of this space.

Starting point is 00:26:45 Like, for example, let's think about stocks. Like in stocks, every stock that you need to buy is in just one brokerage. Like, I don't need to go from Robin Hood to Td Amort Trade. or I don't need to transfer anything in between brokerages. The other thing is that the stocks don't allow you to buy another type of stock using another type of stock. For example, if I want to buy Apple and I have Google, I cannot exchange my Google to Apple directly. I got to come into cash and then buy the second stock. But in the crypto, it's a reverse of what I said.

Starting point is 00:27:19 You see a lot of transfers and people have multiple wallace in exchanges because this exchange offers you higher-staking rewards. or this exchange has this coin. And 90% majority of the crypto transaction we see today, they are crypto to crypto trades. So when you have these complex transfers going in and out, and when you see these token to token transes and especially between centralized and DIPI exchanges, it's good that these centralized exchanges are required

Starting point is 00:27:47 to should form 10-9NVs, but capturing the cost basis is going to be nearly impossible in many cases, especially if you're dealing with defyed, which you can't enforce these rules in a defy environment because these are protocols, right? There's no teams or anything like that. So in that case, you know, you're going to see a 109 and V, but the cost base is going to be either missing or inaccurate. The other situation where that the 109 is going to be incorrect would be if you're self-custodying

Starting point is 00:28:18 your asset. A lot of people are self-custoding their assets for privacy and security reasons. So imagine, you know, I have my Bitcoin in my ledger wallet. I transfer it to say Coinbase and I sell it for 50,000. Coinbase would issue me a 50,000, you know, sell for C, 109 and B, but it wouldn't know my cost spaces. So there are so many areas where that the 109 and V regime could fail in the crypto space, but in my opinion, like it's a right, it's good that the regulators are thinking about it, and

Starting point is 00:28:53 especially if you're just doing crypto exchanges in just one exchanges, 109NV is going to help people with tax funding obligations. But just don't blindly rely on 109NBs. That's my advice. I agree with she. And I think the IRS will use this opportunity in the infrastructure bill, probably again, to issue a different kind of form, a 1099 for digital assets that will be a little more specific. The infrastructure bill does provide for reporting.

Starting point is 00:29:24 If you stay on the major exchanges, they will report transfers to the IRS. So in a lot of ways, that will be beneficial to taxpayers. They will see that you transferred from one exchange to another, and they will have a record of that, of the acquisition and the basis. Where there will be gaps is when you move to where there isn't a third party, where it's a decentralized, as Sheehan said, really decentralized exchanges will, is where there will be a problem, or if you transfer money off of the exchange into a cold wallet or your own storage, then the IRS will lose visibility into that. The chance of getting misreported proceeds that don't match up to your basis will increase. So there are limitations, I think, though, that the infrastructure bill will help

Starting point is 00:30:12 improve the accuracy of the reporting. And what about businesses that transact in crypto? Are there any particular forms that they might need to file? Yeah, so there's another provision in the infrastructure bill, Code Section 6050I. So that's mandating businesses who are accepting cryptocurrencies in exchange of $10,000 to file this form called Form 8300. Essentially, like, let's say, you know, I want to go to a dealership, I want to buy a car,

Starting point is 00:30:46 and instead of giving that person, you know, $50,000, I'm just sending one Bitcoin, which is worth $50,000. So now that business is required to file Form 8300 disclosing my identity, you know, who I got paid from my social security and the reasons for the transaction, etc. It doesn't involve any taxes. It's more about disclosure. So infrastructure bill, you know, at that, actually that Form 8300 existed for cash transactions. Infrastructure bill expanded that into digital assets as well. And John? Yeah, I was just because the 8300 is, that part of the law is driven by the financial enforcement, Treasury's Financial Enforcement Center. And the, you know,

Starting point is 00:31:37 I think the challenge will be for businesses, because I know a lot of businesses are worried about the burden of, you know, filing multiple forms. It's not, it's not uncommon to receive, you know, have activity greater than $10,000. So the challenge will be to get the regulators to try and mimic the regulations to as much as possible to cash. And right now, if you receive payment in a check that's traceable, you don't file the form. So hopefully we will kind of reach a reporting situation where it mimics cash as much as possible and not just every single transaction of greater than $10,000 in virtual currency.

Starting point is 00:32:15 Yeah, and I know there was concern that this would affect individuals who made trades of more than $10,000 worth, which I think happens pretty often in crypto. So, you know, does it look like individuals will have to report on personal identifying information of their transaction partners? To my knowledge, Laura, this 480300 is applicable only to trade our businesses. So you have to be in a business of doing something. And what is a trade of business is a matter of facts and circumstances? There's no like a bright line rule or anything like that. So I think the confusion came from like, you know, what about some of these staking pool providers and et cetera?

Starting point is 00:33:00 Those could be treated as a trade of business. Again, defending on the facts and circumstances, you know, how we involved there. Is it really a trade of business or something else? but it doesn't apply to to individual participants. It's for trade or businesses. All right. So in a moment, we're going to talk more about specific scenarios involving crypto transactions.

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Starting point is 00:37:01 there was a very big tax topic that everyone was discussing recently, and that was a case involving Joshua and Jessica Jarrett. Can one of you recap that case and the recent development? I don't know if outcome is quite the right word. And then talk about what that means for crypto investors who participate in staking. Sure. So Jarrett, they're a couple from Tennessee. They were staking tasers during 2019.

Starting point is 00:37:32 And they received roughly $9,000 worth of, you know, tasing rewards. and then they reported that staking rewards as income at the time they received it in their 2019 tax return. And then, you know, 2020, they amended the tax return saying that staking rewards should not be taxed at the time of the receipt because staking revolt is a newly created property. So their argument was that, you know, if you're an author and if you're creating a new book, and actually, Laura, you had your, you know, of newly created book recently. At the time of this recording, it'll be coming out a one week later. Okay, great. So you didn't have to pay taxes at the time you're done authoring the book.

Starting point is 00:38:17 You know, you pay taxes when you sell your book on Amazon over error and when you receive the cash. So that's a valid argument. And if you look at the other areas of taxation, like, you know, imagine that you're like a miner that's actually, you know, mining for gold or mineral or something like that. you don't pay taxes at the time you take, you might, you know, resources out of the ground. You pay taxes at the time you sell those, you know, newly created property at the market. Same thing goes with farmers.

Starting point is 00:38:46 You know, you don't, you don't pay taxes at the time you see your crops coming out of the ground. You pay taxes at the time you take the harvest and go sell it in the market. So they had the same argument about, you know, staking rewards. And then around 2020, 2021, IRS said, okay, it's fine. You know, you're right. We're going to refund you that whatever the excess taxes, they had to pay because they reported that staking rewards at the time they received it. Interestingly, Jared said, no, I don't want to accept the refund.

Starting point is 00:39:23 I actually want to know the reason why you are issuing me a refund. So Jared's wanted to have the refund, the reason for the refund, because if they can get a reason from the IRS, that can set preceding for like, you know, other stakeholders. As you know, the proof of stake has become so popular lately. So that's very weird today. So the latest, you know, news in that case was that Jared's declined to accept the refund. They're taking this to the court so they can figure out the exact reason. and that reason is going to be super valuable for other stakers to rely on. So that's the case.

Starting point is 00:40:02 The case is not finalized yet, and IRS didn't issue any, you know, staking specific tax guns or anything like that because that's what you see a lot of people are talking about. But it's a very interesting development in this space. Yeah, I would just say what she and, I agree with she and at one point, that was part of the problem. The IRS didn't say you're right, Jared.

Starting point is 00:40:23 The IRS just said, here's your money, Jarrett. So now let's just call it a day and move on. And the Jarrett's are like, well, what about next year? So it'll be interesting to follow to watch and to see if we can get more specific guidance. John, and what's your take on why they didn't provide a reason? I really don't know. I just know that when I was litigating cases, I would like something more to rely on. than like a Q&A or question and answer from the IRS. I think federal judges, they look to the regulations, they look to the law. And really kind of the strongest point that the IRS has out there now is a question pertaining to mining that was issued back in 2014.

Starting point is 00:41:16 And I just know that, you know, if I went into federal court and I gave the judge a question and answer from the IRS that wasn't a regulation. they would not, you know, they would look askance upon that. I think so. I'm not exactly sure why they didn't give an answer. But it really is reflective. I think that the guidance isn't very strong. You know, leaves a possibility an opening for the taxpayers to take a position that staking income is created property and it's not recognized until you actually sell or exchange it, just like when you sell your book or when you sell your crops. And so, you know, as we said earlier, nothing in this show is tax advice, but for all the different people who did earn stinking income this year, how would you expect most of them

Starting point is 00:42:08 or their accountants to decide how to handle this? I see like, you know, taxpayers, you know, some taxpayers are conservative. So they are still fine reporting income at the time they receive it. And then they will recognize income when they later sell it. honestly, it's a matter of timing. Let me give an example, because when I say it's a matter of timing, like, you know, that people wouldn't understand. So let's say you receive like a taser's reward today, which is for $2.

Starting point is 00:42:35 And then you decide to go on the conservative route and you report that $2 today at the time you received it. And then later you're selling it for $20. And when you sell it for $20, you would report $18 worth of capital gains because you establish the cost basis by reporting that $2 worth of income. So that's a conservative route. And that's what a lot of people have been doing up until this case. Now, in case, if you want to be, I don't want to say aggressive, I want to say non-conservative and follow the Jared's case, you could decide not to report any income at the time

Starting point is 00:43:10 you receive that taser reward in my case. So we received $2 worth of tasers reward, but you decide not to report any income. income, so zero income. And a couple of years later, you would sell that tasos for $20. In that case, you would report $20 worth of capital gains. So if you compare the two transactions, you would end up recognizing the same amount of income subject to taxes, but it's just a matter of timing. In the conservative one, you report a little bit of income today, and then you defer that other

Starting point is 00:43:42 income to later. In the non-conservative way, you don't pay taxes today whatsoever, but It doesn't mean that you're completely immune from taxation. You've got to pay taxes for the entire month and you later sell it. I don't mean to interrupt you shame. But I would say that when you sold it, if you didn't recognize gain upon receipt, then it would be ordinary gain. It would be ordinary income if your sales were later on if you treated it as created property.

Starting point is 00:44:15 Well, it makes sense. So those are the two efforts that I see, like, in a lot of people, are taking up and I've also seen from some of my accounting colleagues that they're getting requests from taxpayers asking can they amend the return based on you know the case you know law because typically you can only amend up to the past three years and request a refund so you know it's also a timing thing right because if you have been proof of stake you know earning rewards for a while now that the small window that you have to amend the return and get back the refund is closing. So that's another thing the accountants are dealing with.

Starting point is 00:44:56 I would say talk to your accountant and see if it's worth amending the return. For example, if it costs you $1,000 to amend the return and your refund is going to be $800, it doesn't make any sense because you're going to be at a net loss position. So talk to an accountant amending is a somewhat complex process. I would not encourage you to do it on your own. Talk to and a counter, you know, weigh the pros and cons and see what's right for you. All right. So let's also now talk about tokens that get rebased and what that means would be tokens

Starting point is 00:45:28 where the circulating supply of those tokens has changed. How should people who own such tokens calculate their taxes? I think the right answer is nobody knows and I would love to get Jones' thoughts as well. IRS hasn't issued any, you know, guidance on this. Again, whenever there's, you know, gray areas and in the crypto space, there's so many gray areas, I like to take two positions. You know, conservative position needs to report income at the time you're receiving it. Income under the IRS code, it's covered by Section 61.

Starting point is 00:46:03 It's a very broad code section. So unless something is specifically excluded from that, it's typically or it's safe to say that's income. I know it's not super tax payer-friendly, but that's how it is. So if you're going to that super conservative, I don't want to get into any type of, you know, even like a remote travel from the IRS, I will report those, you know, rebasing tokens at the time you receive it, establish the cost basis, and when you later sell it, you would have a capital gain or capital loss event. Again, it's a timing difference.

Starting point is 00:46:33 And if you want to kind of rely on this, you know, Jared's case, because most of these rebasing tokens are based on, you know, some type of staking type of mechanism, you can, could decide not to report an income and then, you know, recognize the full gain when you later sell those rebasing tokens into cash or another type of token. So those are the two approaches that I would take. I would agree. I think you would definitely want to talk to an accountant, especially if the, based upon the protocol of the case, and some of the rebasing tokens, the amount, the fluctuation, the rebasing can occur quite rapidly. So, I mean, I want to say that the answer can't be, you have to do it, you know, every single time that there is a rebase. But we don't

Starting point is 00:47:17 really know for certain. I think you'd need to talk to an accountant to examine the protocol of these actual token. But what, you know, kind of what she and describes is if there isn't a lack of guidance, and if the taxpayer takes a reasonable and consistent position, I think that then the taxpayer is probably in a safe place on an audit or clearly in a safe place for any kind of accuracy-related penalties. As long as they're, you know, if they do what's practical, what's reasonable, and they're consistent. You can't take one position on one year and then take an inconsistent position or a different position on another year. Okay. And there were a couple other big events. One was that this past year, there were a few different groups that received

Starting point is 00:48:04 airdrops. And there are slightly different types of airdrops from years past. One was for users of Ethereum name service and the other was for users of OpenC, how would those airdrops be taxed for the different groups affected by those? I actually tweeted about this as well, but just to kind of keep it at a high level. So the way that we're seeing air drops are happening today, in my opinion, has changed a lot if you compare it to past, you know, three, four years. I remember back in 2016, 2017, you would set up something. to have a wallet and next day you open up your wallet and your balance has increased because of an ad drop. So it just get credit automatically. But 2020 and even 2021, the way that these

Starting point is 00:48:56 protocols conduct these adrops have changed a lot. So typically they announce and then you got to go to a dedicated website and pay some gas or some type of fee and claim the ad drop. So the question is, when is it tax? Is it at the time you have to be? have the knowledge of the adrop, or is it at the time you actually claim the adrop? The answer, it depends. It depends, again, there's no exact rules that have been issued by the IRS on the adrops. Some people believe that the 2019-24 remedy ruling issued by the IRS address airdrobs, I don't believe so.

Starting point is 00:49:36 If you read the remedy ruling, they're talking about an air drop that happens after, and a hard fork. So the wording there is a little bit confusing because airdrops and hardfolks are, you know, two mutually exclusive things. You know, airdrop don't happen enough for hard folk. I mean, obviously, as you get free coins, but that's not anirdrop. Now, that said, some of the concept that we mentioned in that revenue ruling is important for us to kind of form an opinion on, you know, how these new types of adrops should be taxed.

Starting point is 00:50:06 So just kind of by relying on IRS's logic, if it's a claimable air drop, it should be tax, in my opinion, at the time you claim it, because when you claim it, you gain dominion and control over the asset. And you claim it and you report income equal into the market price at the time you claim it, and that's a taxable event for you. And if you decide not to claim it, then you don't have a taxable event and you let it expire. And that's completely fine too. I'm pretty sure there's so many people who didn't claim these things because they had no knowledge.

Starting point is 00:50:44 And if we keep saying that, okay, you got a tax adrop at the time you receive it, what about the people who don't even know about? It just doesn't make any sense. I've also seen people claim them, but because they're so new, because they're almost impossible to value, that they give a minimal value at the time of receipt, recognizing that if they later sell it, that they will, you know, they have basically, they have little or no basis where they actually sell it and they will recognize the gain. So I think that that's also another, you know, a reasonable position.

Starting point is 00:51:22 If it's a brand new coin that many of them just go valueless very quickly anyways, just assigned it a minimal value upon receipt. So due to high gas fees this past year, there were also a lot of people that were transacting on layer two moving, you know, money there. How are those transactions taxed, if at all? Yeah. So if we strictly follow the IRS rules, again, I would love to see here.

Starting point is 00:51:51 Jones' opinion here as well. You're spending gas fee, meaning you're disposing of a property, in this case, Ethereum. Disposing of a property creates a taxable event. So, you know, so each time we pay gas fees, you're disposing of an Ethereum, and if that Ethereum has appreciated in value, that gas fee creates a capital gain.

Starting point is 00:52:13 And if that Ethereum or like a small portion of the Ethereum has depreciated in value, that gas fee creates a capital loss. So that's how I would approach gas fees. I would agree that if you pay your gas fees with a coin that is a disposition of the coin and it can create a gain or a loss, the actual proceeds from that transaction, though, the actual fee itself, you may be able to. to capitalize into the acquired coin as a cost of the transaction. All right.

Starting point is 00:52:44 And then there was another big phenomenon this year. It really started the year prior, but I guess we could say, you know, earlier it might have been limited to other geographies. There were a lot of people playing play-to-earn games such as Axi Infinity. And for those players, how would their earnings or losses be taxed? Again, I would rely on the section 61 of the IRS code. I encourage everybody to just Google section 61 and see what it says. Section 61 defines, you know, gross income.

Starting point is 00:53:19 Again, it's a very broad court section. Anything that you receive is generally created as income, otherwise unless it's otherwise specifically excluded from that code section. So if you're playing a game and if you're earning something in, if you rely on the general tax principle, that constitutes a taxable income. Now, there's an argument. I mean, is it newly created property, right?

Starting point is 00:53:43 If it's newly created property, you can take two positions. So generally speaking, if you want to be conservative, I would report those, you know, new tokens that you receive when you win something or when you achieve certain milestones as income. Again, going into conservative approach, that established the cost base, and when you later sell it, that creates a gap again. Or you can take that other approach. okay, these are newly created tokens, and I want to kind of rely on the Jared's case and

Starting point is 00:54:11 I'm not going to report anything at the time I receive it. I'm going to pick up that entire income when you later sell it. So those are the two ways that I would approach that question. I think the second point is a variation of the Jarrett's argument that if it's in the game, the coins earned in the game are created property and until it actually leaves the game or leaves the protocol that it's not taxable. Okay, so because we're kind of running out of time, I'm going to into lightning rounds. So I'll just ask one of you to discuss each of the next scenarios.

Starting point is 00:54:46 When people have bought or sold virtual land in different virtual realities, how are those transactions taxed? And John, do you want to take this one? Sure. Virtual land is not real property. virtual land is personal property and it's tax like any other token. Okay. And for when people wrap tokens, such as wrapping Bitcoin on Ethereum or wrapping ETH on Solana,

Starting point is 00:55:14 how would those transactions be taxed, Sheehan? I hate to give this answer, but it depends. If you're going from Bitcoin to wrap Bitcoin, it's more likely, it's very like that. It's not a taxable event because an exchange has an awkward. In order for an exchange to happen under the IRS regulations, your tax ownership need to go from you to another person. If I'm giving one Bitcoin to the rap protocol, if I'm receiving a rap Bitcoin, I haven't exchanged anything.

Starting point is 00:55:45 I'm in the same economic position as I was earlier. So in that case, that's not a taxable event. But there could be other wrapping situations that could trigger a taxable event. So I'm not going to go into that because everything is different. So we've got to talk to your economy. Okay. And so for people who use credit cards that give crypto rewards, how are those taxed, John? I think for the most part that they are treated as rebates from purchases, just like your cashback on your current cards.

Starting point is 00:56:14 So those aren't considered taxable because it's really just a reduction in purchase price that's borne by the card issuer or the vendor. But then is that income, though? Because if you receive crypto, is it like a, you know? So when you receive the crypto, it would be a rebate. If you then later sell it, then it would be a taxable sale. And you would not have had any basis in that coin that you sold. Oh, got it. Okay.

Starting point is 00:56:46 In general, what problems would you say crypto people face each year when they go to pay their taxes? Like, what are some of the kind of trends that you, like common pitfalls that you see, Sheehan? Yeah, I think a lot of people, they don't even know where to start. I think that's the common pitfall and common thing that we see. A lot of people are getting different types of tax room, the exchanges and some exchanges are not providing any tax firms and people get confused, okay, what should I rely on type of thing?

Starting point is 00:57:17 I would say those are the main things. And last but not least, like just kind of blind. you're relying on tax forms issued by the exchanges. I wouldn't do that. Just make sure they look right to you because, by the way, don't blame on the exchanges and exchanges are doing the best they can. If they don't do that, they're going to get penalized as well and just know that they're working with limited information that they have

Starting point is 00:57:39 because they only have access to what you're doing inside that exchange. So just don't blindly rely on any of the 1099s. Just make sure you reconcile them and talk to a Necunerun, use a crypto tax software tool to get to the truth. And John, what are some ways that people can save on their taxes, particularly if they are heavy crypto users? If they're heavy crypto users, I would encourage people to use a lot of the available software that are out there.

Starting point is 00:58:09 They enable you to, right now, crypto, since it's specific, you can specify if you want to sell high-basis assets or low-basis assets. You have a lot of flexibility on which lots you want to sell when you use the software. And some of them even allow you to program in. I want to sell high this week. I want to sell low next week. In that case, that's perfectly fine as long as you don't sell the same lot twice. So I would encourage people that are heavy uses of crypto to use a software program to help track basis.

Starting point is 00:58:47 And what about wash sales in crypto and other ways of tax loss harvesting? What would you recommend there? You know, I know Shea has written a lot about that. There are no provisions involving wash sales. I'm a little concerned with sales that happen instantaneously that the IRS might take the position that the sale, they could ignore the economic substance of that transaction. I would prefer to see a little period of time between a buy and a sell before you, you know, you harvest your tax losses because that it looks more like a realistic, you know, that they are two independent transactions. So that is true that there is no wash sale rule, but there's also a danger of the IRS ignoring the economic substance of your transaction if it happens instantaneously.

Starting point is 00:59:41 Okay, so in general, I have done a show on crypto taxes pretty much every year for the last, I think, like, I'm not sure, four or five years. I don't remember how many years. But the point is that it's definitely an evolving space. So going forward, how would you, and both of you now can answer this, how would you expect that crypto taxes will evolve in the future? Let me start here, I guess. I think the taxes need to be rethought in a decentralized role. I actually tweeted about that, Laura, I think you shared that. I think the world is moving from an account-based financial system to a wallet-based financial system.

Starting point is 01:00:27 So in an account-based financial system, which is the one that we are living today, if you want to start your financial journey, you would go to Robin Hoods or Coinbase of the world. You set up an account using a username and a password. and your account is tied to your actual real-val identity to this process called KYC, know your customers. So you have the exchanges, you have you, and then you have the IRS. The exchanges or the brokerages, they work as a third-party information reported to the IRS, and that's why you get these Form 1099.

Starting point is 01:00:59 So whenever you get a Form 1099, that information has already been reported to the IRS by the intermediary, the third-party, in this case, the exchange. Now, the tax works in that type of environment because of that third-party information system, right? Because you get triggered to file taxes when you get some type of tax form, you know, that's a simple story. Now, that's an account-based system. So the tax compliance is very high when you get that tax form because there's a third-party to kind of see your transaction reported to the IRS, which, you know, imposes taxes. Now, we're seeing, you know, more and more protocols and, you know, founders, they're building stuff on Web 3, which is based on wallets. Like, take a look at, you know, platforms like wallets, open C.

Starting point is 01:01:45 Like, you can sign up for, you know, OpenC using a pseudonymus wallet. And you're interacting directly with other people. And then the OpenC as a protocol kind of facilitated that transaction. But then not a third party that who knows who you, that knows who you. that knows who you are or they don't do any type of KYC because of how the Web3 functions. So in that type of environment, this whole 10-9N-T slash, you know, third-part information reporting system breaks because you're literally doing transaction peer-to-peer facilitated by some type of protocol but not an intermediary.

Starting point is 01:02:21 In that type of environment, so we really have to set the right incentives for people to pay taxes. You know, regulators have to be very, very creative when it comes to figuring, not even taxable events and not only coming up with new regulations, but just to make sure that those are enforceable in that type of pseudananimous environment. So I would say the next several years, you know, we can see a lot of people talking about this issue, and hopefully we can find out a solution that's beneficial for everybody. And, John, with your years of experience at the IRS, do you think that's possible?

Starting point is 01:02:55 I think it will take a lot of cooperation or a lot of work with developers in the industry. The issue really with the, you know, wallet-based taxes is not third-party reporting. So the answer won't be third-party reporting. The answer will be, you know, proper development of protocols to help taxpayers that use wallet-based systems to actually report their tax liability. Oh, so, okay. But, right. I mean, that's the thing. I feel like it's a little bit more like an honor system.

Starting point is 01:03:24 It is an honor system, but I actually, that, you know, if it's a true independent wallet-based system, is not maybe pseudo-anonymous, but I think eventually there are, you know, the taxpayers, if they might need to leave the system, they would need to convert to Fiat. I think taxpayers run the risk of assuming just because I'm operating in a defy environment and a wallet-based environment that there's no third-party reporting that I don't need to report my gains and losses from, that. Eventually, those assets need to be converted. Those assets are exchanged. Eventually, there's something that could trigger a recognition or an audit. Yeah. I think the other thing I wonder about is as the industry moves more toward privacy, what that is really going to mean,

Starting point is 01:04:20 because then I think it will be even harder. But I think that's a bit further down the road. We'll see. One other thing I wanted to mention was I happened to notice that the IRS posted a job, or it might have been like a contractor position. And essentially they were looking for someone who could exploit, develop exploits for crypto wallets for seizure. Can you talk a little bit more about what you think that might mean and what the IRS is looking to do with this posting? I don't know for certain. But just based upon what I've read publicly, in other instances, is that the IRS will aggressively seize assets for a taxpayer or a recalcitrant taxpayer. And that could involve a cold wallet. That could involve investigatory techniques. So the IRS will use other means to actually seize property of taxpayers' property, especially if they believe the taxpayer is attempting to move the property outside of the reach or to hide it. So I think the IRS recognizes some of the limitations of third-party reporting

Starting point is 01:05:34 and is not going to rely solely on that to enforce the tax laws. All right. To wrap up, is there anything else that you either of you feel that crypto people need to know about paying their taxes this year? Or did we manage to cover all the important issues? I think, again, do you make your best efforts? Use the information you have. And when you're stuck, consult someone in an accountant, and that you'll be well positioned should you be audited by the IRS.

Starting point is 01:06:10 All right. Okay. And Shihon, is there anything else that you wanted to add? No, I mean, lastly, just, I don't know, taxes suck. Unfortunately, we had to, you know, report them and pay your fair share of taxes. At the same time, just know that there are so many legal ways that you can save your tax bills, like, you know, taxless harvesting, you know, getting a loan against money and, you know, earning credit card versus and et cetera. So just use the tax go-to advantage going forward. Don't think about

Starting point is 01:06:41 taxes only at the tax time. Think about taxes throughout the year. That's the way to minimize your tax bill. Okay. Great. We're going to do it. Can people learn more about each of you and your work? I'm pretty active on Twitter. My handle is at the CryptoCPA. You can find me writing on the coin record at IEOBlock and Forbes as well. And we're at RSMUS.com. We have an excellent digital asset practice and we're willing, you know, can help any taxpayers with their liabilities.

Starting point is 01:07:12 Perfect. Well, thank you both so much for coming on Unchained. Thank you. Thank you. Thanks so much for joining us today to learn more. about Sheehan, John, and Crypto Taxes, be sure to check out the show notes for this episode. Unchained is produced by me, Laura Shin, with help from Anthony Yoon, Daniel Ness, Mark Werdock, Shishonk, and CLK Transcription. Thanks for listening.

Unchained - Your 2021 Crypto Taxes: How to Handle NFTs, DAOs, Airdrops and More - Ep.320

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