Digital asset taxation: 2023 update

On July 31, 2023, the IRS issued guidance outlining its position on the taxation of staking rewards, stating: 

“If a cash-method taxpayer stakes cryptocurrency… and receives additional units of cryptocurrency as rewards when validation occurs, the fair market value of the validation rewards received is included in the taxpayer’s gross income in the taxable year in which the taxpayer gains dominion and control over the validation rewards.”

Dominion and control, in this context, generally means the ownership or right to the validation rewards along with the power or authority to manage, regulate or oversee its use.

Staking defined

Blockchains use peer-to-peer networks to validate and record transactions. This validation is performed via one of two consensus mechanisms – proof-of-work (a process referred to as mining) and proof-of-stake (a process referred to as staking). In both systems, the user who correctly validates the transaction is rewarded with new cryptocurrency tokens. However, these validation processes are inherently different.

• Mining – a process by which participants solve extremely complex mathematical problems, which often requires the use of sophisticated devices, for the opportunity to validate a block on a blockchain. The first to solve an equation is given the opportunity to validate the block.  If the participant successfully verifies the block, they are rewarded with the issuance of new coins, referred to as mining rewards. The mining process has come under significant scrutiny for the energy consumption associated with the considerable computing power needed to validate transactions.  
• Staking - a process in which participants stake capital (or pledge coins or tokens) as collateral for the opportunity to validate a block on a blockchain. The platform will choose a participant to confirm a block based on the pledged coins or tokens, with the more capital staked leading to a higher likelihood of being chosen. If the participant successfully verifies the block, they are rewarded with the issuance of new coins, referred to as staking rewards. If they do not successfully confirm and record the block, they can lose their staked capital. Staking consumes significantly less energy than mining.

The recently issued guidance asserts the fair market value is determined at the time the taxpayer gains dominion and control over the validation rewards. The IRS makes clear that this concept applies to cryptocurrency staked both on a blockchain or through an exchange.

Though dominion and control usually transfer at the time the transaction is recorded on the distributed ledger, that is not always the case. Taxpayers are not considered to have dominion and control unless they have the ability to transfer, sell, exchange or otherwise dispose of the virtual currency. 

Digital asset question on income tax returns

Beginning with the 2020 tax year, Page 1 of Form 1040, U.S. Individual Income Tax Return has included a question regarding whether the taxpayer has transacted with virtual currency or digital assets during the tax year. For the 2023 tax year, the IRS appears poised to expand this question to other income tax returns, including Form 1120 (U.S. Corporation Income Tax Return), Form 1120-S (U.S. Income Tax Return for an S Corporation), Form 1065 (U.S. Return of Partnership Income), and Form 1041 (U.S. Income Tax Return for Estates and Trusts), based on draft versions of these forms.

Chief Counsel Advice

In addition to the question on tax return forms, the IRS has also issued two Chief Counsel Advice (CCA) memoranda related to digital assets. While the advice contained in CCAs is not binding on the IRS and is subject to change without notice, they do offer a window into the IRS’s thinking on a particular issue. As a result, they can be useful in determining how a particular item or area should be handled for tax purposes.

Reduction in cryptocurrency value

In the first CCA, the IRS explains that a substantial reduction in cryptocurrency value is not eligible for a loss deduction unless there is evidence of a closed and completed transaction, a fixed and identifiable event and is actually sustained during the tax year. As a result, merely holding an investment in some form of cryptocurrency while waiting for a bankrupt exchange (i.e., FTX, Voyager, BlockFi, Celsius, Bittrex) to process itself through the courts does not entitle a taxpayer to a loss deduction on their tax return.

Qualified appraisal requirement for cryptocurrency donations

A second CCA issued in 2023 outlines the IRS’s position that a qualified appraisal is required for taxpayers who wish to claim a charitable contribution deduction for donations of cryptocurrency in excess of $5,000 in a taxable year.  Additionally, the IRS states they do not believe that a taxpayer who determines the value of the donated cryptocurrency based on the value reported by the cryptocurrency exchanges on which the cryptocurrency is traded (rather than obtaining a qualified appraisal) will qualify for the reasonable cause exception.

In general, for contributions of property for which a deduction of more than $5,000 is claimed, the taxpayer must obtain a qualified appraisal of such property. There is an exception provided for donations of certain readily valued property, including publicly traded securities. The CCA acknowledges that cryptocurrency is not considered a “publicly traded security,” and does not meet any other exception provided. Taxpayers who fail to obtain a required appraisal and do not meet the reasonable cause exception may have their charitable contribution deduction denied.

Tax advisors are using the available IRS guidance, general tax principles and other tax law precedent to develop positions and report digital asset transactions. Any taxpayer who receives, buys, sells or gifts digital assets should consult with their Baker Tilly advisor on the tax and reporting implications prior to filing a return.