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Not So Safe After All? SAFT May Increase Risk of Token Sale, New Report Argues

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The SAFT protocol has been heralded by some as the newest form of self-regulation in the cryptocurrency market. But according to researchers at the Cardozo Blockchain Project, SAFTs may carry more legal risk than otherwise assumed.

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Legal Risks

The Simple Agreement for Future Tokens (SAFT) project aims to streamline investor accreditation and verification, but may actually create more legal burden from the perspective of securities law. In a 15-page report, the Cardozo Blockchain Project argues that SAFTs “could heighten the exuberance manifesting in markets for blockchain-based tokens and make it even more difficult to provide consumers access to potentially impactful new technology.”

That’s not to say that the researchers are necessarily opposed to the project; they just believe that it could have the opposite effect when it comes to consumer protection.

They go on to say that, “the SAFT Approach ultimately fails to deliver a simplified and binary compliant token sale framework as advertised. Tokens underlying a SAFT may be more likely to be deemed securities, thus potentially subjecting token sellers to significant legal or economic risks.”

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Against this backdrop, the authors suggest that SAFTs would heighten the probability of token raises being labelled securities. Although this isn’t inherently bad, most ICO issuers don’t want to go down this path. After all, any token deemed a security is subject to federal oversight by the Securities and Exchange Commission (SEC). This could have a devastating impact on a token raise if regulators determine after the fact that it is indeed a security token.

A New Regulatory Approach?

As the debate over security tokens intensifies, the cryptocurrency community is looking for new ways to navigate the regulatory landscape. Token compliance platform iComplyICO recently published a whitepaper where it argues for a “systematized version of the Howey Test” to determine if a security token can be quantified from the perspective of validation and legal review. This protocol includes automated KYC and identity verification on both sides of the transaction.

Despite a lack of regulatory certainty, the blockchain community has attained several legal milestones in just a few years. According to iComplyICO, these include the Coinbase framework, the Howey Test, the SEC ruling on Slock.it and the Canadian Securities Administrators (CSA) ruling on cryptocurrency offerings.

The CSA notice, which was published in August, suggested that many token offerings fall under the definition of securities under Canadian law. As such, these projects must issue a prospectus before launching. The CSA also said these products may also have the characteristics of derivatives, which would subject them to derivatives laws.

This approach is consistent with the one taken by the SEC in the United States and regulators in Singapore.

As the regulatory issues get ironed out, it’s abundantly clear that the ICO market is still running hot. It remains to be seen whether SAFTs are the answer to an increasingly complex web of regulation or whether industry participants will create a new alternative to drive the market forward.

Disclaimer: The author owns bitcoin, Ethereum and other cryptocurrencies. He holds investment positions in the coins, but does not engage in short-term or day-trading.

Featured image courtesy of Shutterstock. 

Important: Never invest money you can't afford to lose. Always do your own research and due diligence before placing a trade. Read our Terms & Conditions here.



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Op-Ed

Can a New Generation of Regulated Token Sales Save ICOs?

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The bad news first: ICOs are in big trouble.

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You wouldn’t think so just by looking at the stats: just last week, 400 ICOs were announced according to one of the many ICO newsletters that have gained traction. Last quarter, over $ 1,5 bln were raised by projects accepting primarily or exclusively cryptocurrencies and handing out a token in return. The cottage industry around this new vehicle has grown exponentially, with entire marketing firms and PR agencies rearranging their business to exclusively serve the ICO market.

Upon closer inspection though, a rather different picture emerges. More and more ICOs are missing their funding goals (source: Architect Partners).

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And some of the most successful ICOs of the past months are in turbulences, too. One of them is already fighting over money. A second one is having trouble delivering the promised tokens to investors, leading some to speculate on its impending implosion. Compared to startups, most crypto ICOs have failed to deliver on a minimum viable product and real adoption, even with millions of funding in the vaults. And of those startups that successfully raise funds, only 1 in 10 actually use the token in their network.

What about that cottage industry? It’s not looking much better. From scam artists to shady “ICO advisors”, from rampant FB marketing to pump & dump Telegram groups, Russian bots, false followers, fake endorsements, email phishing, and insecure Slack channels with millions stolen from investors as a consequence.

This is very much still a wild, wild west.

But the problems run much deeper.

Originally, blockchain evangelists promised us greater decentralization, democratization and true financial freedom, independent from institutions such as banks and governments. But has this vision of the world really come to pass, or even taken a good step closer to being realized? Is the world more equitable thanks to crypto & blockchain?

In reality, most, or many of the projects are even more inequitable than the broader economy. If you take a look at the Gini coefficient of a couple projects using the ICO Transparency Monitor, here’s what you find:

Gnosis:

EOS:

district0x:

Bancor:

At present, ICOs go mostly to savvy old world investors through pre-sales with the smaller investors often times ‘holding the bag’.

What’s still sorely missing are industry level institutions that take on the task of self-regulation. Any functioning branch of the economy has watchdogs, industry associations, quality certificates, and auditors. Ultimately, any economy needs trust and reliable rules in order to function.

For the first seven years, the crypto world talked mostly about technical innovation and societal critique-by-creating. Now, the conversation has started to shift. The enormous sums of money involved created an urgent demand for answers to questions of legality. What are we to expect from regulators? How will governments treat this new technology? The crypto community is realizing that if it wished to maintain and further develop its reach into mainstream society, tech was not enough to get the job done.

This solves a big problem: how do you enable non-blockchain companies to make use of the technologies advantages? Surveying the current blockchain landscape, the large majority of ventures in the space are themselves blockchain projects.
Current ICOs are also near exclusively run by on-chain companies. They offer utility tokens which you can use for on-chain products. Neufund however allows investors to invest into off-chain companies by putting shares on-chain.On first sight, this is something impossible because shares are some piece of paper or a certificate. Anybody who takes this on faces a huge legal challenge.
But there is a solution: the nominee structure. The nominee holds the shares, the nominee issues the tokens. That is per se totally legal in Germany and any other European jurisdiction.

The first seeds of this self-regulation efforts are forming: the Ethereum Enterprise Alliance (EEA) has been successful at gathering the large corporates under its wings. There are now several initiatives starting the work of educating the public and regulators alike, and crafting policy recommendations for the relevant authorities to adopt (e.g. Blockchain Policy Initiative). Some have even been successful in convincing local and state governments to run entire campaigns for attracting startups in the space to their jurisdiction. Forward thinking mayors and governments are quickly realizing the value of competing early in the coming trend of jurisdictional arbitrage.

Rulesets are a competitive advantage, and an increasingly necessary one in a globalized world. Estonia was one of the earliest to realize this and begin its modernization. In the 90s, the tiny country (1.3M residents) upgraded its governmental and business infrastructure to the internet, making it possible to sign contracts, open bank accounts, and file taxes without ever having to visit a notary or governmental office. Now, the country takes it one step further and offers the benefits of its infrastructure to anyone via the “e-Residency program”. It has attracted thousands of entrepreneurs and digital nomads, many of which also innovating in the cryptocurrency and blockchain space. With the ground prepared for instant adoption, Estonia is even considering to launch an “Estcoin” in their efforts to open source their rulesets for the benefit of all. Many other countries all over the globe have joined the race to be the new ‘silicon valley of crypto’, with Switzerland currently in the lead.

Stricter regulation can benefit startups looking for funding via token sales as well. As Andre Eggert, partner at Lacore LLC, puts it: “Securities law is making sure that the market has the information it needs. An informed market is more liquid and that might even result in increased prices and demand for tokens.”

And already there are a number of companies rising to the challenge. In the US, Equibit and t0 work on bringing equity and financial instruments more generally into the token era. Filecoin, in collaboration with Coinlist, pioneered the SAFT agreement which has since been adopted by a large number of ICOs. Now, Pegasus Fintech is floating the idea for a novel type of token-assisted fundraising they call PIBCO: Public Initial Blockchain Offering.

“The PIBCO model advances the ability of Blockchain and Cryptocurrency based businesses to raise funding in a global environment and meet jurisdictional regulatory compliance.”

~ David Lucatch, Founder & Chair of Pegasus Fintech

In this model, Listed corporates will be able to release Class A shares for conventional currency and Class B shares for cryptocurrency tokens. The tokens are then redeemable for Class B shares, which in turn will be redeemable for Class A shares. Clever!

Over in Europe, a number of ICO platforms routinizing the tech and marketing, but none have brought much legal innovation to the table. The German financial authority BaFin recently announced that it is watching the ICO space closely, warning both ICO organizers and investors to be careful. So far Neufund is the only player in the European market to explicitly push forward the legal and regulatory aspects. A German GmbH (private limited company), Neufund has created what they call Equity Token Offerings (ETO). They plan to make this mechanism available to any number of companies, independent of whether their business model is based on blockchain.

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Regulation

Trump’s Proposed Tax Changes Could Impact Cryptocurrency Investors

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Trump presents tax reform

As the Trump administration nears a historic overhaul of the U.S. tax code, cryptocurrency investors should be on high alert for changes that could impact their holdings. As it turns out, both versions of the new tax bill include tidbits that could impact holders of bitcoin and other cryptocurrencies.

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As a refresher, the House of Representatives and Senate have each passed their own versions of the tax bill. Though considerable overlap exists, there are important differences that need to be reconciled.

Tax Impact on Crypto Investors

Neither versions of the proposed tax legislation make any direct mention of cryptocurrencies, but they do peel back the so-called “like-kind” exchange that many investors used previously.  Under the proposed legislation, like-kind exchanges apply to real property only, which excludes cryptocurrency.

This essentially means that the new bill will remove the ability to defer capital gains taxes on property by switching one asset for another, similar asset. This provision was a boon to crypto investors, who could take advantage of the swap.

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Meanwhile, the Senate version is looking to implement a first-in, first-out (FIFO) framework, which could make it more arduous to report back on crypto holdings.

Both versions of the bill are promising major tax cuts to the tune of trillions of dollars spread out over a decade. This includes a permanent 15 percentage point cut to the corporate tax rate and temporary reductions for individual tax brackets. President Trump has also pushed hard to reform international tax rules and create more leeway for U.S. multinationals to repatriate their profits.

Cryptocurrency Tax Fairness Act Left Out of Bill

Bitcoin investors may be disappointed to learn that the Cryptocurrency Tax Fairness Act was omitted from both versions of the bill. The Act, which is co-sponsored by Arizona Republican David Schweikert, promised to create a de minimis exception for crypto payments below $600. This provision would have applied after Dec. 31.

The text of the bill stipulated that:

“Gross income shall not include gain from the sale or exchange of virtual currency for 5 other than cash or cash equivalents….[if the amount of gain excluded from gross income under subsection (a) with respect to a sale or exchange shall not exceed $600.”

Schweikert is also a member of the Congressional Blockchain Committee, which focuses on crypto regulation, and the Ways and Means Committee, which is concerned with taxation.

The new Republican tax bill, if passed, would be implemented Jan. 1, 2018. If the process is delayed, there’s still a change that the new tax code will be retroactive back to Jan. 1. President Trump had previously vowed to pass tax reform in time for Christmas. That leaves very little time left before Washington shuts down for the holidays.

Crypto investing has exploded in the United States, with San Francisco-based CoinDesk registering more than 13 million trade accounts. This includes more than 100,000 signups during Thanksgiving weekend.

Disclaimer: The author owns bitcoin, Ethereum and other cryptocurrencies. He holds investment positions in the coins, but does not engage in short-term or day-trading.

Featured image courtesy of Shutterstock.

Important: Never invest money you can't afford to lose. Always do your own research and due diligence before placing a trade. Read our Terms & Conditions here.



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Market News

Companies are Lining Up to Launch Bitcoin ETF, According to SEC

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Two companies have stepped forward with applications to the U.S. Securities and Exchange Commission (SEC) to launch a bitcoin exchange-traded fund (ETF), according to a recent report from CCN. The renewed push toward ETFs comes as more institutional investors look to enter the burgeoning cryptocurrency market.

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Bitcoin ETF

According to the SEC’s public filing system, regulators received new applications for the REX Bitcoin Strategy ETF and Rex Short Bitcoin Strategy ETF, as well as the VanEck Vectors Bitcoin Strategy ETF.

REX, which is based in Connecticut, filed its application on Dec. 8. The New York-based VanEck filed its application on Dec. 11 in a sign that more market players were looking to capitalize on a booming market.

VanEck had previously filed to create a bitcoin ETF before the SEC struck down a similar proposal. That being said, VanEck will reportedly provide the pricing data for an upcoming bitcoin futures contract to be made available via the Nasdaq exchange. Unlike the CBOE and CME futures contract, the Nasdaq version will pull pricing information from 50 sources provided by VanEck.

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A bitcoin ETF would make the digital currency widely available to millions of investors through common retirement accounts, such as IRAs and 401(k)s.

The highly coveted but elusive bitcoin ETF has been tried before by Tyler and Cameron Winklevoss, who failed to earn SEC approval earlier this year. Regulators disapproved the ETF on several grounds, including lack of regulation and a general inability to enter necessary surveillance-sharing agreements.

The SEC’s ruling on the Winklevoss ETF puts considerable doubt over whether the new products will ever get approved. Analysts say that ETFs could spark an even bigger rally for an asset class that has already added hundreds of billions of dollars to its value this year alone.

Bitcoin Trade Volumes

Bitcoin’s market cap surged past $290 billion on Monday as institutional money flowed into the asset class following the launch of the CBOE futures contract. Trade volumes over the past 24 hours reached $12.6 billion, according to CoinMarketCap.

Bitcoin-dollar transactions on Bitfinex accounted for 11.6% of the daily transaction. South Kore’as Bithumb accounted for nearly 11% of the daily turnover. Coinbase’s GDAX also saw 6.5% of the daily turnover, data showed.

At press time, BTC/USD was trading north of $17,100. Prices skyrocketed past $19,000 last week.

Disclaimer: The author owns bitcoin, Ethereum and other cryptocurrencies. He holds investment positions in the coins, but does not engage in short-term or day-trading.

Featured image courtesy of Shutterstock. 

Important: Never invest money you can't afford to lose. Always do your own research and due diligence before placing a trade. Read our Terms & Conditions here.



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