It's right there in the guidance, near the beginning, in clear language:
"A user who obtains convertible virtual currency and uses it to purchase real or virtual goods or services is not an MSB under FinCEN's regulations.8 Such activity, in and of itself, does not fit within the definition of "money transmission services" and therefore is not subject to FinCEN's registration, reporting, and recordkeeping regulations for MSBs.9"
Perhaps folks are only aware of parts of the guidance for some reason, so here it the link to the entire document:
http://fincen.gov/statutes_regs/guidance/html/FIN-2013-G001.htmlSome definitions have exemptions. It is easy to get the wrong impression if you only read parts of the guidance. The guidance should be read and understood in it's totality.
I know its right there, I'm saying that the point of the regulation is missed: they don't hinder what they're supposedly trying to stop from happening at all, and the wording is vague and unclear.
The portion of when a user becomes an exchanger only applies to "users" who "create coins." Some people have argued that "mining" isn't creating coins at all. How is anyone going to determine which coins were mined? This is why i brought up the purchase of goods.
bitcoins -> cash = no
bitcoins -> goods -> cash = ok
really? gosh, that'll stop all the crooks.
Here is the section on exemptions, from 31 CFR § 1010.100(ff)(1-7) which is cited...
(ff) Money services business. A person wherever located doing business, whether or not on a regular basis or as an organized or licensed business concern, wholly or in substantial part within the United States, in one or more of the capacities listed in paragraphs (ff)(1) through (ff)(7) of this section. This includes but is not limited to maintenance of any agent, agency, branch, or office within the United States.
(1) Dealer in foreign exchange. A person that accepts the currency, or other monetary instruments, funds, or other instruments denominated in the currency, of one or more countries in exchange for the currency, or other monetary instruments, funds, or other instruments denominated in the currency, of one or more other countries in an amount greater than $1,000 for any other person on any day in one or more transactions, whether or not for same-day delivery.
(2) Check casher--(i) In general. A person that accepts checks (as defined in the Uniform Commercial Code), or monetary instruments (as defined at § 1010.100(dd)(1)(ii), (iii), (iv), and (v)) in return for currency or a combination of currency and other monetary instruments or other instruments, in an amount greater than $1,000 for any person on any day in one or more transactions.
(ii) Facts and circumstances; Limitations. Whether a person is a check casher as described in this section is a matter of facts and circumstances. The term "check casher'' shall not include:
(A) A person that sells prepaid access in exchange for a check (as defined in the Uniform Commercial Code), monetary instrument or other instrument;
(B) A person that solely accepts monetary instruments as payment for goods or services other than check cashing services;
(C) A person that engages in check cashing for the verified maker of the check who is a customer otherwise buying goods and services;
(D) A person that redeems its own checks; or
(E) A person that only holds a customer's check as collateral for repayment by the customer of a loan.
(3) Issuer or seller of traveler's checks or money orders. A person that
(i) Issues traveler's checks or money orders that are sold in an amount greater than $1,000 to any person on any day in one or more transactions; or
(ii) Sells traveler's checks or money orders in an amount greater than $1,000 to any person on any day in one or more transactions.
(4) Provider of prepaid access--(i) In general. A provider of prepaid access is the participant within a prepaid program that agrees to serve as the principal conduit for access to information from its fellow program participants. The participants in each prepaid access program must determine a single participant within the prepaid program to serve as the provider of prepaid access.
(ii) Considerations for provider determination. In the absence of registration as the provider of prepaid access for a prepaid program by one of the participants in a prepaid access program, the provider of prepaid access is the person with principal oversight and control over the prepaid program. Which person exercises "principal oversight and control'' is a matter of facts and circumstances. Activities that indicate "principal oversight and control'' include:
(A) Organizing the prepaid program;
(B) Setting the terms and conditions of the prepaid program and determining that the terms have not been exceeded;
(C) Determining the other businesses that will participate in the prepaid program, which may include the issuing bank, the payment processor, or the distributor;
(D) Controlling or directing the appropriate party to initiate, freeze, or terminate prepaid access; and
(E) Engaging in activity that demonstrates oversight and control of the prepaid program.
(iii) Prepaid program. A prepaid program is an arrangement under which one or more persons acting together provide(s) prepaid access. However, an arrangement is not a prepaid program if:
(A) It provides closed loop prepaid access to funds not to exceed $2,000 maximum value that can be associated with a prepaid access device or vehicle on any day;
(B) It provides prepaid access solely to funds provided by a Federal, State, local, Territory and Insular Possession, or Tribal government agency;
(C) It provides prepaid access solely to funds from pre-tax flexible spending arrangements for health care and dependent care expenses, or from Health Reimbursement Arrangements (as defined in 26 U.S.C. 105(b) and 125) for health care expenses; or
(D) (1) It provides prepaid access solely to:
(i) Employment benefits, incentives, wages or salaries; or
(ii) Funds not to exceed $1,000 maximum value and from which no more than $1,000 maximum value can be initially or subsequently loaded, used, or withdrawn on any day through a device or vehicle; and
(2) It does not permit:
(i) Funds or value to be transmitted internationally;
(ii) Transfers between or among users of prepaid access within a prepaid program; or
(iii) Loading additional funds or the value of funds from non- depository sources.
(5) Money transmitter--(i) In general.
(A) A person that provides money transmission services. The term "money transmission services'' means the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means. "Any means'' includes, but is not limited to, through a financial agency or institution; a Federal Reserve Bank or other facility of one or more Federal Reserve Banks, the Board of Governors of the Federal Reserve System, or both; an electronic funds transfer network; or an informal value transfer system; or
(B) Any other person engaged in the transfer of funds.
(ii) Facts and circumstances; Limitations. Whether a person is a money transmitter as described in this section is a matter of facts and circumstances. The term ``money transmitter'' shall not include a person that only:
(A) Provides the delivery, communication, or network access services used by a money transmitter to support money transmission services;
(B) Acts as a payment processor to facilitate the purchase of, or payment of a bill for, a good or service through a clearance and settlement system by agreement with the creditor or seller;
(C) Operates a clearance and settlement system or otherwise acts as an intermediary solely between BSA regulated institutions. This includes but is not limited to the Fedwire system, electronic funds transfer networks, certain registered clearing agencies regulated by the Securities and Exchange Commission ("SEC''), and derivatives clearing organizations, or other clearinghouse arrangements established by a financial agency or institution;
(D) Physically transports currency, other monetary instruments, other commercial paper, or other value that substitutes for currency as a person primarily engaged in such business, such as an armored car, from one person to the same person at another location or to an account belonging to the same person at a financial institution, provided that the person engaged in physical transportation has no more than a custodial interest in the currency, other monetary instruments, other commercial paper, or other value at any point during the transportation;
(E) Provides prepaid access; or
(F) Accepts and transmits funds only integral to the sale of goods or the provision of services, other than money transmission services, by the person who is accepting and transmitting the funds.
(7) Seller of prepaid access. Any person that receives funds or the value of funds in exchange for an initial loading or subsequent loading of prepaid access if that person:
(i) Sells prepaid access offered under a prepaid program that can be used before verification of customer identification under § 1022.210(d)(1)(iv); or
(ii) Sells prepaid access (including closed loop prepaid access) to funds that exceed $10,000 to any person during any one day, and has not implemented policies and procedures reasonably adapted to prevent such a sale.
(8) Limitation. For the purposes of this section, the term "money services business'' shall not include:
(i) A bank or foreign bank;
(ii) A person registered with, and functionally regulated or examined by, the SEC or the CFTC, or a foreign financial agency that engages in financial activities that, if conducted in the United States, would require the foreign financial agency to be registered with the SEC or CFTC; or
(iii) A natural person who engages in an activity identified in paragraphs (ff)(1) through (ff)(5) of this section on an infrequent basis and not for gain or profit.
(6) U.S. Postal Service. The United States Postal Service, except with respect to the sale of postage or philatelic products.
(7) [Reserved].
(8) Limitation. For the purposes of this section, the term "money services business'' shall not include:
(i) A bank or foreign bank;
(ii) A person registered with, and functionally regulated or examined by, the SEC or the CFTC, or a foreign financial agency that engages in financial activities that, if conducted in the United States, would require the foreign financial agency to be registered with the SEC or CFTC; or
(iii) A natural person who engages in an activity identified in paragraphs (ff)(1) through (ff)(5) of this section on an infrequent basis and not for gain or profit.
The portion relevant to "human individuals", is the exemption to them as "money service businesses."
(iii) A natural person who engages in an activity identified in paragraphs (ff)(1) through (ff)(5) of this section on an infrequent basis and not for gain or profit.So where is frequency and what "not for gain or profit" means 'clearly stated'?
Is it a sound defense that someone sold their bitcoins FOR FUN because "bitcoins are neato"! and they just happened to profit? Likewise purchasing? Even your statement of "its not a business, its a personal activity" is not so clear when you look at their definition of an MSB as applicable to btc.
