Bitcoin Thomas Spaas- BFC 15 Oct

Report
BITCOIN, THE BLOCKCHAIN
AND THE LAW
tax & legal framework
impact of blockchain-based technologies on the legal space
1
TABLE OF CONTENTS
•
Introduction
•
Cryptocurrencies & the law
•
Impact of blockchain-based technologies on
the legal space
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THOMAS SPAAS
•
° 1980
•
Director of Belgian Bitcoin
Association
•
Lawyer at Bar of Antwerp,
specialising in:
•
Belgian and international taxation
•
cryptocurrencies
•
[email protected]
•
+32 477 36 49 33
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CRYPTOCURRENCIES
& THE LAW
or
?
4
CRYPTOCURRENCIES
& THE LAW
focus on selected problems:
financial regulations & tax law
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CRYPTOCURRENCIES
& THE LAW
•
Important reminder: regulations are splintered, definitions are not
consistent
•
Example: “Bitcoin is money” (agree or disagree)
•
“Money” in the economic sense
•
≠
•
“Money” in civil law
•
≠
•
“Money” in financial regulations
•
≠
•
“Money” in VAT legislation
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CRYPTOCURRENCIES
& THE LAW
•
EU Financial
regulations
•
E-money Directive
•
Payments Services
Directive
•
Mifid-Directive
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•
CRYPTOCURRENCIES
&
THE
LAW
E-money Directive (Directive 2009/110/EC)
•
Art.2.2: “electronic money” means electronically, including
magnetically, stored monetary value
•
as represented by a claim on the issuer which is issued on
receipt of funds for the purpose of making payment
transactions as defined in (the Payment Services Directive),
and which is accepted by a natural or legal person other than
the electronic money issuer;
•
NO “ISSUER” -> bitcoin ≠ e-money as defined in the
directive
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CRYPTOCURRENCIES
&
THE
LAW
• Payment Services Directive (Directive 2007/64/EC)
•
Execution of payment transactions ? or
•
Money remittance ?
•
Using the bitcoin network as such, w/o interaction w fiat
money ≠ payment transaction ≠ money remittance
•
BUT… using the bitcoin network to execute a classic
payment transaction or to remit classic money =
payment service
•
-> bitcoin exchanges may qualify as payment service
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providers
•
CRYPTOCURRENCIES
& THE LAW
MIFID Directive (Directive 2004/39/EC)
•
“Financial instruments” -> broad definition, but always
seems to require a right on the issuer
•
Bitcoin ≠ financial instrument
•
but bitcoin derivatives = financial instrument
•
NOTE: bitcoin derivatives cannot be marketed to the
public in Belgium (FSMA) - selling bitcoin as such is
not restricted
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CRYPTOCURRENCIES
&asTHE
LAWout of scope of
• Conclusion: bitcoin
such is currently
most (EU) financial regulations
•
At the edge (interaction with classic system) financial
regulations may apply
•
•
E.g. bitcoin exchanges -> probably a payment service
provider, with relevant AML/KYC provisions and
guarantees
NOTE: watch out for other regulations, such as 3.000 EUR
cash limit for merchants (relevant for bitcoin ATM
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operators)
•
CRYPTOCURRENCIES
& THE LAW
TAX LAW
•
Income taxes: income is income, regardless of whether
obtained in bitcoin, fiat, gold…
•
VAT: buying something with bitcoin = normal VAT rules
applicable
•
BUT: buying bitcoin with fiat money = VAT-able
transaction?
•
EU Court of Justice to decide
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•
IMPACT OF BLOCKCHAIN-BASED
TECHNOLOGIES ON THE LEGAL
SUSKIND “Embedded
legal knowledge” = programs
SPACE
and IT systems that incorporate legal rules (laws &
contracts)
•
What else is bitcoin than (inter alia) “possession vaut
titre”?
•
No government or central organisation to enforce these
rules
•
Bitcoin-rules are self-executing
•
Could we use the blockchain for other purposes?
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•
IMPACT OF BLOCKCHAIN-BASED
TECHNOLOGIES ON THE LEGAL
SPACE
Some other applications of the decentralised blockchain in the legal
sphere:
•
land titles
•
votes
•
patents
•
ID documents
•
professional certifications
•
…
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IMPACT OF BLOCKCHAIN-BASED
TECHNOLOGIES ON THE LEGAL
SPACE
•
Smart contracts
(ETHEREUM)
•
Contract, terms and
conditions kept in
blockchain-like system and
automatically executed in a
decentralised way
•
Contract is not running on
single computer but “as if”
on many computers at once
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FINAL NOTE
•
What we often hear from bankers
•
“I like the blockchain, but I don’t like bitcoin.”
•
OK, but…
•
decentralised ≠ free
•
parties that secure the network need an incentive
•
blockchain & currency go hand in hand
•
difficult to have one w/o the other
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