IS BITCOIN LEGAL?
As the market capitalization of the cryptocurrency market shoots up, through price movements and a surge in new tokens, regulators around the world are stepping up the debate on oversight into the use and trading of digital assets.
Very few countries have gone as far as to declare bitcoin illegal. That does not, however, mean that bitcoin is “legal tender” – so far, only Japan has gone as far as to give bitcoin that designation. However, just because something isn’t legal tender, does not mean that it cannot be used for payment – it just means that there are no protections for either the consumer or the merchant, and that its use as payment is completely discretionary.
Other jurisdictions are still mulling what steps to take. The approaches vary: some smaller nations such as Zimbabwe have few qualms about making brash pronouncements casting doubts on bitcoin’s legality. Larger institutions, such as the European Commission, recognize the need for dialogue and deliberation, while the European Central Bank (ECB) believes that cryptocurrencies are not yet mature enough for regulation. In the United States, the issue is complicated further by the fractured regulatory map – who would do the legislating, the federal government or individual states?
A related question in other countries, to which there is not yet a clear answer, is: should central banks keep an eye on cryptocurrencies, or financial regulators? In some countries they are one and the same thing, but in most developed nations, they are separate institutions with distinct remits.
Another divisive issue is: should bitcoin be regulated on a national or international basis? There needs to be a further distinction between regulation of the cryptocurrency itself (is it a commodity or a currency, is it legal tender?) and cryptocurrency businesses (are they money transmitters, do they need licenses?). In a few countries the considerations are tied together – in most others, they have been dealt with separately.
Below is a brief summary of pronouncements made by certain countries. This list was last updated in July 2020.
The Australian government has been supportive of cryptocurrency and blockchain technologies. In 2017, it declared that cryptocurrencies were legal, and they would be treated as assets subjected to Capital Gains Tax.
In 2018, the Australian Transaction Reports and Analysis Centre announced new regulations that require exchanges operating in the country to register with AUSTRAC, maintain records and verify users. To combat money laundering and terrorism financing in the future, unregistered exchanges will face charges and monetary penalties in the future.
Under Argentina’s Constitution, bitcoins aren’t considered legal currency because they are not issued by the central bank. In spite of a strong bitcoin ecosystem, Argentina has not yet drawn up regulations for the cryptocurrency, although the central bank has issued official warnings of the risks involved.
In 2015, Bangladesh expressly declared that using cryptocurrencies was a “punishable offence.” Authorities have been on the hunt for illegal bitcoin traders in the country.
In 2014, the central bank of Bolivia officially banned the use of any currency or tokens not issued by the government.
Canada was one of the first countries to draw up what could be considered “bitcoin legislation.” In 2014, the Governor General of Canada passed Bill C-31 in 2014, which designated “virtual currency businesses” as “money service businesses,” compelling them to comply with anti-money laundering and know-your-client requirements. The law is pending issuance of subsidiary regulations.
The government has specified that bitcoin is not legal tender, and the country’s tax authority has deemed bitcoin transactions taxable, depending on the type of activity.
While China has not banned bitcoin (and President Xi Jinping has continued to praise in blockchain developments as critical to technical innovations), financial regulators have cracked down on bitcoin exchanges – all major bitcoin exchanges in the country, including OKCoin, Huobi, BTC China, and ViaBTC, suspended order book trading of digital assets against the yuan in 2017.
It also appears to be withdrawing preferential treatment (tax deductions and cheap electricity) for bitcoin miners.
In 2014, the National Assembly of Ecuador banned bitcoin and decentralized digital currencies while the central bank stated that the online trading of cryptocurrencies is not forbidden. Still, bitcoin is not legal tender and is not an authorized payment method for goods and services..
In January 2018, the Grand Mufti of Egypt declared that cryptocurrency trading was forbidden under Islamic religious law due to the risk associated with the activity. While this is not legally binding, it does count as a high-level legal opinion.
However, that ban was lifted in May 2019, easing restrictions by allowing companies with licenses to operate.
The European Union is taking a cautious approach to cryptocurrency regulation, with several initiatives underway to involve sector participants in the drafting of supportive rules. The focus appears to be on learning before regulating, while boosting innovation and taking into account the needs of the ecosystem.
In April 2018, the parliament’s members voted by a large majority to support a December 2017 agreement with the European Council for measures aimed, in part, to prevent the use of cryptocurrencies in money laundering and terrorism financing. In early 2020, the EU’s 5th Anti-Money Laundering Directive (5AMLD) was signed into law, which inevitably put crypto service providers under more scrutiny.
The Indian central bank has issued a couple of official warnings on bitcoin, and at the end of 2017 the country’s finance minister clarified in an interview that bitcoin is not legal tender. The government does not yet have any regulations that cover cryptocurrencies, although it is looking at recommendations.
The central bank, however, has barred Indian financial institutions from working with cryptocurrency exchanges and other related services (a ban recently upheld by the country’s Supreme Court).
In June 2020, there were rumors of a new ban on crypto, which industry experts later said were premature.
In April 2018, Iran’s central bank and one of its principal market regulators said that financial businesses should not deal in bitcoin or other cryptocurrencies. Furthermore, CoinDesk reported on government censorship of cryptocurrency exchange websites operating in the country. In May 2020, the Iranian parliament proposed to include cryptocurrency in currency smuggling laws.
Japan was the first country to expressly declare bitcoin “legal tender,” passing a law in early 2017 that also brought bitcoin exchanges under anti-money laundering and know-your-customer rules (although license applications have temporarily been suspended as the regulators deal with a hack on the Coincheck exchange in early 2018).
Japan’s Financial Services Agency (FSA) has been cracking down on exchanges, suspending two, issuing improvement orders to several and mandating better security measures in five others. It has also established a cryptocurrency exchange industry study group which aims to examine institutional issues regarding bitcoin and other assets. In October 2019, the FSA issued additional guidelines for funds investing in crypto.
According to 2018 reports, the National Bank of Kazakhstan recently hinted at plans to ban cryptocurrency trading and mining, although as yet no strict regulations have been passed.
The central bank of Kyrgyzstan declared in 2014 that using cryptocurrencies for transactions was against the law. In August 2019, the Ministry of Economy drafted a law to impose crypto mining taxation.
Malaysia’s Securities Commission is working together with the country’s central bank on a cryptocurrency regulation framework. In early 2019, the country’s Securities Commission began to mandate approvals for ICOs as securities offerings.
In June 2018, The European island passed a series of blockchain-friendly laws, including one that details the registration requirements of cryptocurrency exchanges. Earlier in 2020, Malta Financial Services Authority published a document addressing issues related to offerings of security tokens.
In 2014, Mexico’s central bank issued a statement blocking banks from dealing in virtual currencies. The following year, the finance ministry clarified that, although bitcoin was not “legal tender,” it could be used as payment and therefore was subject to the same anti-money laundering restrictions as cash and precious metals.
At the end of 2017, Mexico’s national legislature approved a bill that would bring local bitcoin exchanges under the oversight of the central bank.
Towards the end of 2017, Morocco’s foreign exchange authority declared that the use of cryptocurrencies within the country violated foreign exchange regulations and would be met with penalties.
Namibia is one of the few countries to have expressly declared that purchases with bitcoin are “illegal.”
While Nigerian banks are prohibited from handling virtual currencies, the central bank is working on a white paper which will draft its official stance on use of cryptocurrencies as a payment method.
In April 2018, Pakistan’s central bank issued a statement barring financial companies in the country from working with cryptocurrency firms. In April 2019, the federal government introduced new regulations and licensing schemes for crypto firms.
While cryptocurrencies are used in Russia for various payments and services, the Russian authorities have continued to propose new legislation that would crack down on crypto development around the country. In November 2019, the central bank said it would support a ban on crypto payments. New regulatory draft bills rolled out in early 2020, which would prohibit the issuance and operations of digital currencies in the country, including distributing crypto news.
Hailed as a crypto haven of the world, Singapore has embraced an innovative approach toward cryptocurrency and blockchain, thanks to the leadership of the Monetary Authority of Singapore (MAS). In January 2020, the MAS announced a new regulatory framework to cover all Singapore-based crypto businesses and exchanges under anti-money laundering and counterrorist-financing rules. It later added a six-month grace period of license exemption for a number of crypto companies such as Binance, Coinbase, Gemini and Bitstamp.
In 2017, the South Africa Reserve Bank implemented a “sandbox approach,” testing draft bitcoin and cryptocurrency regulation with a selected handful of startups. In April 2020, the Intergovernmental Fintech Working Group proposed that would increase oversight of crypto activities and mandate business to register with AML watchdog the Financial Intelligence Centre.
Johannesburg, South Africa
In early 2018, South Korea banned anonymous virtual currency accounts. And in an effort to curb cryptocurrency speculation, the authorities are working on increased oversight of exchanges, although the governor of the Financial Supervisory Service has said the government will support “normal” cryptocurrency trading.
In an interesting shift in strategy, a recent report in the South Korean press indicated that the country’s financial authorities are in talks with similar agencies in Japan and China over joint oversight of cryptocurrency investment.
In April 2018, the Fair Trade Commission ordered 12 of the country’s cryptocurrency exchanges to revise their user agreements. In 2020, lawmakers voted on new requirements for crypto exchanges, which would potentially kick out small players who can’t afford new regulatory burdens.
After allegedly declaring bitcoin illegal, the Bank of Thailand issued a backtracking statement in 2014, clarifying that it is not legal tender (but not technically illegal), and warning of the risks.
In March 2018, the government’s executive branch provisionally passed two royal decree drafts, establishing formal rules to protect cryptocurrency investors (as well as setting KYC requirements), and setting a tax on their capital gains. The drafts have yet to receive final cabinet approval. There were plans in August 2019 to include cryptocurrencies in the country’s anti-money laundering regime.
United States of America
The U.S. is plagued by a fragmented regulatory system, with legislators at both the state and the federal level responsible for layered jurisdictions and a complex separation of powers.
Some states are more advanced than others in cryptocurrency oversight. New York, for instance, unveiled the controversial BitLicense in 2015, granting bitcoin businesses the official go-ahead to operate in the state (many startups pulled out of the state altogether rather than comply with the expensive requirements). In mid-2017, Washington passed a bill that applied money transmitter laws to bitcoin exchanges.
New Hampshire requires bitcoin sellers to get a money transmitter license and post a $100,000 bond. In Texas, the state securities commission is monitoring (and, on occasion, shutting down) bitcoin-related investment opportunities. And California is in bitcoin regulation limbo after freezing progress on Bill 1326 which – while criticized for issues such as overly broad definitions – was seen as less oppressive than New York’s BitLicense.
At the federal level, the Securities and Exchange Commission’s focus has been on the use of blockchain assets as securities, such as whether or not certain bitcoin investment funds should be sold to the public, and whether or not a certain offering is fraud.
The Commodities Futures Trading Commission (CFTC) has a bigger potential footprint in bitcoin regulation, given its designation of the cryptocurrency as a “commodity.” While it has yet to draw up comprehensive bitcoin regulations, its recent efforts have focused on monitoring the nascent futures market. It has also filed charges in several bitcoin-related schemes, which underlines its intent to exercise jurisdiction over cryptocurrencies whenever it suspects there may be fraud.
The Uniform Law Commission, a non-profit association that aims to bring clarity and cohesion to state legislation, has drafted the Uniform Regulation of Virtual Currency Business Act, which several states are contemplating introducing in upcoming legislative sessions. The Act aims to spell out which virtual currency activities are money transmission businesses, and what type of license they would require. Critics fear it too closely resembles the New York BitLicense.
Britain’s Financial Conduct Authority (FCA) sees bitcoin as a “commodity,” and therefore does plan to regulate it. It has hinted, however, that it will step in to oversee bitcoin-related derivatives. This lack of consumer protection has been behind recent FCA warnings on the risks inherent in cryptocurrencies.
In July 2019, the Financial Conduct Authority finalized its guidance on crypto assets, clarifying which tokens would fall under its jurisdiction.
The government of Ukraine has created a working group composed of regulators from various branches to draft cryptocurrency regulation proposals, including the determination of which agencies will have oversight and access. Also, a bill already before the legislature would bring cryptocurrency exchanges under the jurisdiction of the central bank. The Ministry of Digital Information said in February 2020 that it won’t be regulating the crypto mining sector.
Late in 2017, a senior official from Zimbabwe’s central bank stated that bitcoin was not “actually legal.” While the extent to which it can and cannot be used is not yet clear, the central bank is apparently undertaking research to determine the risks. CoinDesk recently produced a podcast series about the future of bitcoin in Africa, including in Zimbabwe.