Topic: Filed a request for an administrative ruling with FinCEN this morning. (Read 7490 times)
January 14, 2018, 02:47:42 AM
The miners' money launcher permit is a bunch of stupid garbage. No third party handles the money for the miners.
November 07, 2017, 11:10:55 PM
Thanks for your effort, it is greatly appreciated. I hope in time you'll share your findings with us. I'm engaged in a similar endeavor, though I have found through the general help line that quality accurate information seems to be unavailable from Fincen. It seems to be more lack of training than malicious intent though the jury remains out for the time being.
Scott Emick
Scott Emick
February 13, 2014, 10:59:26 PM
You have my applause. It is a well drafted document and an intelligent request to make. Hope the response is as prudent.
January 30, 2014, 06:56:20 PM
January 29, 2014, 12:40:21 AM
Would you be willing to post the text of the request for clarification and your recent revision of it?
On advice of counsel I decided not to make their response public while it is still openly being reviewed.
January 28, 2014, 12:28:25 PM
Read through this thread again with great interest. Many thanks to DeathAndTaxes for pursuing this.
Would you be willing to post the text of the request for clarification and your recent revision of it?
Hopefully eventually an answer will be produced.
Would you be willing to post the text of the request for clarification and your recent revision of it?
Hopefully eventually an answer will be produced.
January 23, 2014, 10:02:21 PM
Thank you for this information, DeathAndTaxes. I commend anyone who goes directly to primary sources for information, even if the information one receives is underwhelming.
January 23, 2014, 09:06:38 PM
That's unfortunate. Please do update us if they end up replying. Thanks.
January 23, 2014, 03:04:02 PM
yes, bumping this thread. DeathandTaxes, did you get a response?
Yes, but it was a request for clarification. What they wanted clarified was clearly articulated in the original so my unsupported belief is that the request was merely a way to reset the clock and allow them to be compliant with their own rules.
Sounds like the federal bureaucracy all right
January 23, 2014, 12:37:30 PM
yes, bumping this thread. DeathandTaxes, did you get a response?
Yes, but it was a request for clarification. What they wanted clarified was clearly articulated in the original so my unsupported belief is that the request was merely a way to reset the clock and allow them to be compliant with their own rules.
January 23, 2014, 11:50:19 AM
Since Bernanke doesn't consider gold to be money I imagine buying gold coins online with bitcoins is not affected by the FinCEN guidance. 
That's not true. Gold in the appropriate format is considered currency. Normalized ingots, and common bullion gold coins are currency.
What Bernanke says in public has to be taken with skepticism...
For the purpose of FinCEN regulations gold dealers are not considered money transmitters. Selling gold bullion for Bitcoins (or dollars) would not be considered a money service business.
While our Constitution says that gold is the only valid money.
January 23, 2014, 07:02:17 AM
yes, bumping this thread. DeathandTaxes, did you get a response?
December 31, 2013, 10:25:12 PM
Did you receive a revised response?
September 27, 2013, 01:32:24 PM
The first bolded section is somewhat out of context. In the guidance FinCEN has NOT said that the transmission of virtual currency makes one a money transmitter*. The guidance states that exchanging virtual currency for real currency (or another virtual currency) may (in some instances) be classified as money transmission. It is important to note that money transmission has a specific legal meaning beyond just money and a transfer. For example a merchant which accepts credit card payments and issues refunds or affiliate payments is transmitting money. In most cases they aren't a money transmitter. All commerce involves the transfer of money but the overwhelming majority of commerce doesn't fall under FinCEN definition of a money transmitter.
Then again FinCEN guidance on virtual currencies is so vague and nonsensical at times it is hard to know if they even know what they are saying or if what they wrote means what they think it means. Honestly I don't think FinCEN fully understands Bitcoin and decentralized virtual currencies in general.
It was unrelated to this administrative ruling (I filed two others) but FinCEN "guidance" on virtual currencies even contradicts its prior guidance on the exchange of real currencies. In at least three separate cases FinCEN concluded that a company which offers as a service to its clients the exchange of one real currency for another real currency is not a money transmitter even if it engages in the transmission of money IF that transmission is integral to another business motive, namely the conversion of foreign currencies (FOREX).
So if both the guidance on virtual currencies and the prior administrative rulings on foreign exchange are taken at face value:
The service to exchange one real currency for another real currency ( USD -> EUR or EUR->USD ) = NOT A MONEY TRANSMITTER (in some instances)
The service to exchange one real currency for one virtual currency ( USD -> BTC or BTC->EUR ) = MONEY TRANSMITTER
The service to exchange one virtual currency for another virtual currency ( BTC -> LTC or LTC->BTC ) = MONEY TRANSMITTER
A case can be made that FinCEN ruling is overly broad and capricious.
Then again FinCEN guidance on virtual currencies is so vague and nonsensical at times it is hard to know if they even know what they are saying or if what they wrote means what they think it means. Honestly I don't think FinCEN fully understands Bitcoin and decentralized virtual currencies in general.
It was unrelated to this administrative ruling (I filed two others) but FinCEN "guidance" on virtual currencies even contradicts its prior guidance on the exchange of real currencies. In at least three separate cases FinCEN concluded that a company which offers as a service to its clients the exchange of one real currency for another real currency is not a money transmitter even if it engages in the transmission of money IF that transmission is integral to another business motive, namely the conversion of foreign currencies (FOREX).
So if both the guidance on virtual currencies and the prior administrative rulings on foreign exchange are taken at face value:
The service to exchange one real currency for another real currency ( USD -> EUR or EUR->USD ) = NOT A MONEY TRANSMITTER (in some instances)
The service to exchange one real currency for one virtual currency ( USD -> BTC or BTC->EUR ) = MONEY TRANSMITTER
The service to exchange one virtual currency for another virtual currency ( BTC -> LTC or LTC->BTC ) = MONEY TRANSMITTER
A case can be made that FinCEN ruling is overly broad and capricious.
September 27, 2013, 12:43:37 PM
I also brought up the scenario of operating an eWallet which involve only a single virtual currency and no real currency:
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
That's the question I had, since the guidance states:
Quote
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.
It doesn't matter if no "real" currency is handled. The more recently released comments from FinCEN say it a bit more clearly:
https://bitcointalksearch.org/topic/new-fincen-report-on-bitcoin-181708
Quote
Those who are intermediaries in the transfer of virtual currencies from one person to
another person, or to another location, are money transmitters that must register with FinCEN as
MSBs unless an exception applies. Some virtual currency exchangers have already registered
with FinCEN as MSBs, though they have not necessarily identified themselves as money
transmitters.
another person, or to another location, are money transmitters that must register with FinCEN as
MSBs unless an exception applies. Some virtual currency exchangers have already registered
with FinCEN as MSBs, though they have not necessarily identified themselves as money
transmitters.
Is it the end of unregistered exchanges?
This makes it more of a pain in the rear to operate any kind of Bitcoin/crypto-currency (or other virtual currency) exchange if you're based in the U.S., at least in a complying above ground way.
Still, I think this quote deserves emphasis:
Quote
The guidance explains how FinCEN’s “money transmitter” definition applies to certain exchangers and system administrators of virtual currencies depending on the facts and circumstances of that activity. Those who use virtual currencies exclusively for common personal transactions like receiving payments for services or buying goods online are not affected by this guidance.
Since Bernanke doesn't consider gold to be money I imagine buying gold coins online with bitcoins is not affected by the FinCEN guidance.
The first bolded section is interesting. An intermediary simply means one that acts as a link between two people. Taken at face value, wouldn't anyone who operates a Bitcoin node be considered an intermediary?
September 27, 2013, 12:27:30 PM
Did you ever receive a response?
I'd like to know this also.
I did receive a response but it contained factual errors. I had a revised clarification drafted and sent back to FinCEN per their procedures.
Ty for the update, keep us posted!
Will do. They are suppose to respond within 30 days but it took more like 50 on the first response. The clarification was sent back about 3 weeks ago. On advice of counsel I decided not to make their response public while it is still openly being reviewed.
September 27, 2013, 12:24:01 PM
Did you ever receive a response?
I'd like to know this also.
I did receive a response but it contained factual errors. I had a revised clarification drafted and sent back to FinCEN per their procedures.
Ty for the update, keep us posted!
September 27, 2013, 11:20:35 AM
Since Bernanke doesn't consider gold to be money I imagine buying gold coins online with bitcoins is not affected by the FinCEN guidance.
That's not true. Gold in the appropriate format is considered currency. Normalized ingots, and common bullion gold coins are currency.
What Bernanke says in public has to be taken with skepticism...
For the purpose of FinCEN regulations gold dealers are not considered money transmitters. Selling gold bullion for Bitcoins (or dollars) would not be considered a money service business.
September 27, 2013, 11:19:28 AM
Did you ever receive a response?
I'd like to know this also.
I did receive a response but it contained factual errors. I had a revised clarification drafted and sent back to FinCEN per their procedures.
September 27, 2013, 02:40:03 AM
Since Bernanke doesn't consider gold to be money I imagine buying gold coins online with bitcoins is not affected by the FinCEN guidance.
That's not true. Gold in the appropriate format is considered currency. Normalized ingots, and common bullion gold coins are currency.
What Bernanke says in public has to be taken with skepticism...
September 27, 2013, 01:32:32 AM
Did you ever receive a response?
I'd like to know this also.
September 26, 2013, 03:24:17 PM
I actually called the IRS and asked about having to be registered as a money transmitter.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
Calling the IRS...
And talking to someone so unimportant that they field public phone calls...
Is just about the dumbest way to get reliable information.
As for the last part...
Does the IRS arrest hookers/pimps that declare their income?
Basically, the Government is not responsible for "helping" you obey the law...
The onus is on entirely on YOU to hire specialists like Securities Lawyers or Certified Accountants...
But you will certainly get a variety of opinions... and that, again, is YOUR problem.
September 25, 2013, 11:18:25 PM
Money transmitter licenses for miners is a bunch of stupid garbage. There is no 3rd party handling money for miners. To put miners on the same level as Western Union is silly.
Miners are just moving bits of data. How does that make us any different than someone selling word documents through e-mail, or pdf's, or excel spreadsheets or STL data for 3d printers? Should ISP's be considered money transmitters too because they move bits of data? Aren't they profiting from "selling" bandwith? Maybe ISP's should be forced to get a 48-state transmitter license because data sent from them can move to anywhere?
Miners are just moving bits of data. How does that make us any different than someone selling word documents through e-mail, or pdf's, or excel spreadsheets or STL data for 3d printers? Should ISP's be considered money transmitters too because they move bits of data? Aren't they profiting from "selling" bandwith? Maybe ISP's should be forced to get a 48-state transmitter license because data sent from them can move to anywhere?
September 25, 2013, 06:51:37 PM
Did you ever receive a response?
June 06, 2013, 06:02:24 PM
You probably are going to have to ask coinbase. I doubt anyone outside of the company can tell you how/why they believe they are not a money transmitter.
For what it is worth Coinase registered as a type 409 and 499 MSB which is Money Transmitter and "Other" respectively. Registration was last updated 04/23 after FinCEN guidance came out.
http://www.fincen.gov/financial_institutions/msb/msb.registration.letter.html?ID=3928810
For what it is worth Coinase registered as a type 409 and 499 MSB which is Money Transmitter and "Other" respectively. Registration was last updated 04/23 after FinCEN guidance came out.
http://www.fincen.gov/financial_institutions/msb/msb.registration.letter.html?ID=3928810
Thank you! I realized this might not be the appropriate venue for this question but since it was topically similar and the question came to me while slogging through the insanity that is regulatory documents, I figured I'd give it a shot.
On an unrelated note I appreciate all the work you are doing to help bitcoin. Keep it up!
June 06, 2013, 05:49:07 PM
You probably are going to have to ask coinbase. I doubt anyone outside of the company can tell you how/why they believe they are not a money transmitter.
For what it is worth Coinase registered as a type 409 and 499 MSB which is Money Transmitter and "Other" respectively. Registration was last updated 04/23 after FinCEN guidance came out.
http://www.fincen.gov/financial_institutions/msb/msb.registration.letter.html?ID=3928810
For what it is worth Coinase registered as a type 409 and 499 MSB which is Money Transmitter and "Other" respectively. Registration was last updated 04/23 after FinCEN guidance came out.
http://www.fincen.gov/financial_institutions/msb/msb.registration.letter.html?ID=3928810
June 06, 2013, 05:44:23 PM
OK so this whole discussion has me a little bit confused so please forgive my ignorance. It seems to me that a company like Coinbase should have to register as a money transmitter. Yet from their terms of service I find the following:
https://coinbase.com/legal/user_agreement
"1.1 Coinbase helps you make payments to and accept payments from third parties [...] Coinbase is not a money transmitter. Coinbase assists its users in Bitcoin transactions.
"3.5 When buying or selling bitcoin, you are buying or selling from Coinbase directly. Coinbase does not act as an intermediary or marketplace between other buyers and sellers of bitcoin."
How can they buy and sell bitcoins directly to users and not be a money transmitter?
The guidance describes an exchanger as: "a person engaged as a business in the exchange of virtual currency for real currency, funds, or other virtual currency."
Followed By:
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person"
It seems to me that no matter how you read the parts of the guidance DeathAndTaxes is asking for clarification on, Coinbase would meet the requirements regardless. I know a lot of people on this forum don't like Coinbase for a variety of reasons and I really don't want to get into that here. What I am wondering is how they are circumventing this. It might be easy to just say they are operating illegally but Union Square Ventures has been looking into investing in a bitcoin company for 3 years and recently dropped $5 million Coinbase's way. While $5 million isn't much for a VC firm like them I have worked with these guys in the past and they don't mess around. They obviously think that the company's argument has some legs or they wouldn't be investing in them.
I may have missed a really simple point somewhere here and if that is the case I apologize, regulatory documents make my head hurt. Can anyone provide clarification on this?
https://coinbase.com/legal/user_agreement
"1.1 Coinbase helps you make payments to and accept payments from third parties [...] Coinbase is not a money transmitter. Coinbase assists its users in Bitcoin transactions.
"3.5 When buying or selling bitcoin, you are buying or selling from Coinbase directly. Coinbase does not act as an intermediary or marketplace between other buyers and sellers of bitcoin."
How can they buy and sell bitcoins directly to users and not be a money transmitter?
The guidance describes an exchanger as: "a person engaged as a business in the exchange of virtual currency for real currency, funds, or other virtual currency."
Followed By:
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person"
It seems to me that no matter how you read the parts of the guidance DeathAndTaxes is asking for clarification on, Coinbase would meet the requirements regardless. I know a lot of people on this forum don't like Coinbase for a variety of reasons and I really don't want to get into that here. What I am wondering is how they are circumventing this. It might be easy to just say they are operating illegally but Union Square Ventures has been looking into investing in a bitcoin company for 3 years and recently dropped $5 million Coinbase's way. While $5 million isn't much for a VC firm like them I have worked with these guys in the past and they don't mess around. They obviously think that the company's argument has some legs or they wouldn't be investing in them.
I may have missed a really simple point somewhere here and if that is the case I apologize, regulatory documents make my head hurt. Can anyone provide clarification on this?
June 06, 2013, 03:50:18 PM
You will note the word "virtual" or "decentralized" don't appear anywhere in the actual law. What FinCEN provided in April was guidance. The simple version is that guidance is FinCEN way of saying "this is the way we interpret EXISTING law". No new law was created in April. Not a single line of public code.
In this regard, I am very curious what Mt. Gox's plans are. Rather than simply complying with FinCEN guidance, it would be nice if a big exchange, like Mt. Gox, which could afford it, decides to challenge them in court.
June 06, 2013, 03:37:57 PM
I just laughed reading the OP. You're causing some schmuck a whole lot of headache. Not that I have any sympathy for these types. How to fit a square peg in our round holes?
Its the government.. they buy a $10,000 hammer and hire 50 engineers at $150K a year to plan how to make that peg fit, and they will find a way to make it fit, if it pleases the right people. They don't care who they destroy or what laws the break or ignore to do so. They will just hind behind immunity and most people not having the wealth to fight them.
June 06, 2013, 01:19:55 PM
I wonder if my kid would get in trouble if he traded his World of Warcraft gold through an intermediary so that he could move his character from one server to another.
June 06, 2013, 02:25:15 AM
I just laughed reading the OP. You're causing some schmuck a whole lot of headache. Not that I have any sympathy for these types. How to fit a square peg in our round holes?
June 04, 2013, 01:47:33 PM
That makes 9,999 so I guess I need to stop now.
Save that 10,000th post for something important and memorable. It would be such a waste to use it on something like "+1".
Of course, you could go back and delete old unnecessary posts to free up a little room if you want to say something pedantic.
June 04, 2013, 01:42:25 PM
I will be looking forward to what they have to say. This could either be very good, or very bad.
There are challenges with reasonableness and enforceability, if FINcen can't manage both, they will need to keep working on refining the rule. Thank you for providing them some guidance on their guidance. Helping them figure this out with some sense of sanity is a work of heroism, which is going to keep accounts open and businesses operating.
June 04, 2013, 01:35:47 PM
over 20 posts of mis-understandings and waffle..
so lets put it into laymans terms for like the 5th thread of misunderstandings.
bitcoin itself is not regulatable.
FIAT is.
fiat is the bank notes and coins with the trademarked symbols of the government EG $ and £. the regulations call these REAL Currencies.
the SUBSTITUTE / CONVERTIBLE currencies are those that are easily recognised and convertable into bank notes and coins because their balance amount equals the same as a bank note
EG 10$ on a digital database can be easily converted into a $10 bank note
EG 46 bunny coins CANNOT be easily recognised and converted into a $10 bank note
those online penny per click websites and services offering digital balances that are recognisable have to be regulated. so advertising firms, with dollar/pound balances need regulation.
those websites and services offering credits, chips, coins where the numeric balance value does not instantly relate to a FIAT value do not need regulation.
so in short bitcoinQT, electrum, cgminer,etc does not need regulation, world of warcraft, does not need regulation, and so on.
FIAT gateways that handle FIAT or the digital form of FIAT DO need regulation.
so this is why amazon is trying amazon coins. so that it only has one 'office' that converts fiat to amazon coins (i beleive it to be in ireland due to cheap licences) and the rest of the planet it just moves amazon coins around. thus not requiring licences for every country on the planet.
so lets put it into laymans terms for like the 5th thread of misunderstandings.
bitcoin itself is not regulatable.
FIAT is.
fiat is the bank notes and coins with the trademarked symbols of the government EG $ and £. the regulations call these REAL Currencies.
the SUBSTITUTE / CONVERTIBLE currencies are those that are easily recognised and convertable into bank notes and coins because their balance amount equals the same as a bank note
EG 10$ on a digital database can be easily converted into a $10 bank note
EG 46 bunny coins CANNOT be easily recognised and converted into a $10 bank note
those online penny per click websites and services offering digital balances that are recognisable have to be regulated. so advertising firms, with dollar/pound balances need regulation.
those websites and services offering credits, chips, coins where the numeric balance value does not instantly relate to a FIAT value do not need regulation.
so in short bitcoinQT, electrum, cgminer,etc does not need regulation, world of warcraft, does not need regulation, and so on.
FIAT gateways that handle FIAT or the digital form of FIAT DO need regulation.
so this is why amazon is trying amazon coins. so that it only has one 'office' that converts fiat to amazon coins (i beleive it to be in ireland due to cheap licences) and the rest of the planet it just moves amazon coins around. thus not requiring licences for every country on the planet.
Then file an administrative ruling with FinCEN asking them if Bitcoin is a convertible currency. If your right they will say no and you will be a hero. Ultimately it doesn't matter what you think is a convertible currency or what I think is a convertible currency what matters is what FinCEN thinks is a convertible currency. Well taken to the end game it matters what FinCEN can convince a judge is a convertible currency.
<----- That makes 9,999 so I guess I need to stop now.
June 04, 2013, 01:32:23 PM
over 20 posts of mis-understandings and waffle..
so lets put it into laymans terms for like the 5th thread of misunderstandings.
bitcoin itself is not regulatable.
FIAT is.
fiat is the bank notes and coins with the trademarked symbols of the government EG $ and £. the regulations call these REAL Currencies.
the SUBSTITUTE / CONVERTIBLE currencies are those that are easily recognised and convertable into bank notes and coins because their balance amount equals the same as a bank note
EG 10$ on a digital database can be easily converted into a $10 bank note
EG 46 bunny coins CANNOT be easily recognised and converted into a $10 bank note
those online penny per click websites and services offering digital balances that are recognisable have to be regulated. so advertising firms, with dollar/pound balances need regulation.
those websites and services offering credits, chips, coins where the numeric balance value does not instantly relate to a FIAT value do not need regulation.
so in short bitcoinQT, electrum, cgminer,etc does not need regulation, world of warcraft, does not need regulation, and so on.
FIAT gateways that handle FIAT or the digital form of FIAT DO need regulation.
so this is why amazon is trying amazon coins. so that it only has one 'office' that converts fiat to amazon coins (i beleive it to be in ireland due to cheap licences) and the rest of the planet it just moves amazon coins around. thus not requiring licences for every country on the planet.
the trick is this.
show a balance of 10.00 (even without trademarked government symbols) which can be redeemed for $10. you need regulations
show a balance of 0.078125($10 of bitcoin) which requires calculations to calculate a fiat value, you dont need regulations. UNLESS your service also touches FIAT
so lets put it into laymans terms for like the 5th thread of misunderstandings.
bitcoin itself is not regulatable.
FIAT is.
fiat is the bank notes and coins with the trademarked symbols of the government EG $ and £. the regulations call these REAL Currencies.
the SUBSTITUTE / CONVERTIBLE currencies are those that are easily recognised and convertable into bank notes and coins because their balance amount equals the same as a bank note
EG 10$ on a digital database can be easily converted into a $10 bank note
EG 46 bunny coins CANNOT be easily recognised and converted into a $10 bank note
those online penny per click websites and services offering digital balances that are recognisable have to be regulated. so advertising firms, with dollar/pound balances need regulation.
those websites and services offering credits, chips, coins where the numeric balance value does not instantly relate to a FIAT value do not need regulation.
so in short bitcoinQT, electrum, cgminer,etc does not need regulation, world of warcraft, does not need regulation, and so on.
FIAT gateways that handle FIAT or the digital form of FIAT DO need regulation.
so this is why amazon is trying amazon coins. so that it only has one 'office' that converts fiat to amazon coins (i beleive it to be in ireland due to cheap licences) and the rest of the planet it just moves amazon coins around. thus not requiring licences for every country on the planet.
the trick is this.
show a balance of 10.00 (even without trademarked government symbols) which can be redeemed for $10. you need regulations
show a balance of 0.078125($10 of bitcoin) which requires calculations to calculate a fiat value, you dont need regulations. UNLESS your service also touches FIAT
June 04, 2013, 01:05:40 PM
FinCEN doesn't pass laws so you are free to disagree.
I'm thinking this could end up being defended in the U.S. as a free speech issue someday.
If I create words for a Twitter post and am paid cash for those words, there is no money transmission. I created words and broadcast them.
If I cryptographically sign a message using my own software and computing device and am paid cash for that message, there is no money transmission. I created the message and broadcast it.
Bitcoin is the square peg of money.
June 04, 2013, 11:43:57 AM
I'm glad you did this D&T. I hope they actually respond to this because it remains a head-scratcher. But, I'm not sure if they know the answer. Maybe they need the courts/congress to decide?
They don't need the courts or Congress to decide. There are no laws on virtual currency at the Federal level. The existing laws related to MSB are all here:
http://www.ecfr.gov/cgi-bin/text-idx?SID=4ed28aff321d97007276a7736cae032e&c=ecfr&tpl=/ecfrbrowse/Title31/31cfrv3_02.tpl
Look for section starting with 1010.
Section 1022 relates to MSB (and a MT is a type of MSB).
Section 1010 has definitions on various terms (including MSB & MT)
Section 1020 is rules for banks but some of those rules apply to MSB as well.
You will note the word "virtual" or "decentralized" don't appear anywhere in the actual law. What FinCEN provided in April was guidance. The simple version is that guidance is FinCEN way of saying "this is the way we interpret EXISTING law". No new law was created in April. Not a single line of public code. FinCEN has researched and reached the conclusion that EXISTING MT laws/regs apply equally to decentralized virtual currencies like Bitcoin. The pages of guidance are a way of forcing a square peg (virtual currency exchangers) into a round hole (money transmitters). However FinCEN didn't pass any new law and their guidance is just that guidance. If you disagree you certainly can ignore it (I wouldn't without legal counsel) and if/when FinCEN takes you to court they will layout a case according to that guidance. Now remember again guidance isn't law. Ultimately a judge however is either going to agree with FinCEN or they won't. If they do well you might be going to jail and if they don't then the guidance isn't worth the paper it was written on.
Sadly this process could have be avoided. Canada's regulator for example hasn't said they "don't" want to regulate virtual currencies like Bitcoin instead they looked at existing regs and rather than trying to do some legal gymnastics to make the existing law fit a new scenario declared "nope the existing laws don't cover this". Now does this mean in Canada Bitcoin can not and forver shall not be regulated? Of course not. It simply means the LEGISLATURE in Canada (aka the elected body who's duty it is to pass laws) will need to pass new laws if and when they want to regulate virtual currencies. Those laws won't need complicated legal gymnastics and pages of guidance because the laws will be written specifically for Bitcoin. The US Congress & FinCEN "could" have done the same thing. There are six categories of MSBs. Congress could have given FinCEN the authority to create new one "virtual currency dealer" or expanded the scope of "currency dealer" to include virtual currencies. Of course that process would be much slower, it would rely on the will of the people (though their elected officials).
The reason the guidance is nonsensical is because it is trying to apply regs written for one entity onto another entity. As an analogy imagine when the first passenger plane was built, there were no regs on passenger travel by aircraft. Of course there were regs on cars. The FTA at the time could have said. "well planes need regs and it is outside our Congressional authority so planes are cars. All regs on cars apply to planes". Of course that would create a lot of confusion given that for example planes don't (normally) travel on highways, have turn signals, etc. So the FTA could have provided pages and pages of guidance, creating from whole cloth entire new terms, definitions, and scenarios to try an fit a plane into the regulatory structure for cars. Thankfully they didn't. New regs were created dealing specifically with aviation.
TL/DR:
Guidance is FinCEN way of saying "this old law applies to this new stuff and here is how and why".
FinCEN doesn't pass laws so you are free to disagree.
One should expect to find themselves in court if your interpretation and FinCEN interpretation are not in alignment.
Depending on how strong your case is this could be a very good thing or a very bad thing.
Only legislature can pass new law and ultimately the courts will decide if the law is applicable.
June 04, 2013, 11:09:27 AM
Individuals who have low value transactions for personal purchases of goods or services appear to be exempt . I assume that the $1000 threshold would not apply as what can you buy for $ 1000 these days???
There is no threshold in MT regulation. MT begins at the first dollar in money transmission unless any exception applies. This goes beyond just virtual currencies and is the actual regs on the book. I don't see that changing as it would affect non virtual currency money transmitters.
June 04, 2013, 10:17:11 AM
If you get PAID or make money then you WILL be regulated. If not under these regulations then under others.
THERE IS NO ESCAPE!!!!! LOL
Unless you operate in a clandestine parallel economy which answers to no one but also has no legal protection.
Which is what many believe bitcoin should be. We should decide one way or the other.
June 04, 2013, 10:09:02 AM
Thus by the letter of the guidance above this would be a regulated entity
BTC: Person A -----> Exchanger ----> Person B
USD: Person B -----> Exchanger ----> Person A
Here there is an acceptance of BTC from on person and transmission of BTC BTC to another person.
However by the guidance as written above, the following would not be regulated entity:
BTC: Person A ----> Buyer
USD: Buyer ----> Person A
There is acceptance of virtual currency by the buyer but no transmission to another person. If this looks familiar to a certain company business model well that is the point.
So if it's confirmed this would basically mean that if and exchange become a market maker instead of just facilitating exchange p2p I would not require any kind of regulation ?
June 04, 2013, 10:04:55 AM
The guidance doesn't make "anyone" an exchanger because there is an explicit exemption for "users" purchasing goods and services who are not in the business of buying and selling currency, so I disagree on that point as well.
You miss the point. Anyone who exchanges virtual currency for real currency is an exchanger is one way to interpret the guidance. So say MtGox becomes a MSB. Great now every on of MtGox clients would need to also. They all are "exchanging virtual currency for real currency". The guidance provides no exclusion that those exchanging with regulated exchangers are themselves exempt. This would make anyone who ever has or ever will exchange real currency need to register as an MSB. It seems implausible that is FinCEN intent however by the letter of the guidance it is what is stated.
The guidance is unclear, it is just my opinion but only clarity from FinCEN will resolve that lack of clarity for me. That is the point of an administrative ruling. It certainly is possible that the AR will result in more clear guidance one that advises that the example in section c is not binding any such trade of BTC for USD constitutes an "exchanger". The good news is it would remove ambiguity from the definition and force FinCEN to clean up their guidance. Is it FinCEN intent that anyone who ever buys or sells Bitcoins for real currency needs to register as a MSB? I really doubt it but if so the AR will require them to state so in black and white.
I suspect they will alter the wording to encompass anyone who buys or sells bitcoin for "real" currency (legal tender as defined by US law) no matter where or how they obtained them and remove the "creates" part which is confusing and open to challenge/ debate.
Individuals who have low value transactions for personal purchases of goods or services appear to be exempt . I assume that the $1000 threshold would not apply as what can you buy for $ 1000 these days???
The threshold to require registration as a transmitter will probably be clarified at $1000 dollars. This begs the question is that $1000 per transaction or cumulative over a specified period? ie. if an individual for non commercial use buys or sell bitcoins for cash to values under $1000 ...no need to register as a transmitter.
This would be nice to get an answer to if you get a chance to follow up on any reply they make.
Any entity engaged in the BUSINESS of transmitting (for reward/payment) will definitely be covered with no minimum threshold.
Their response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
June 04, 2013, 07:31:37 AM
I will be looking forward to what they have to say. This could either be very good, or very bad.
June 04, 2013, 05:57:25 AM
I'm glad you did this D&T. I hope they actually respond to this because it remains a head-scratcher. But, I'm not sure if they know the answer. Maybe they need the courts/congress to decide?
June 04, 2013, 03:56:46 AM
Quick question, vaguely on topic - is it legal for two US citizens to exchange fiat currencies with each other? (e.g. pay USD receive EUR, etc)? Or is that technically illegal? Or does it require some sort of registration?
There is an exemption for transacting "infrequently".
Authority: 12 U.S.C. 1829b and 1951–1959; 31 U.S.C. 5311–5314, 5316–5332; title III, sec. 314, Pub. L. 107–56, 115 Stat. 307.
Subpart A—General Definitionstop
§ 1010.100 General definitions.
(ff) ( 8 ) (iii)
( 8 ) Limitation. For the purposes of this section, the term "money services business'' shall not include:
(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.
And the "infrequent basis" threshold in a McGladrey paper shows "fives times or less" per year:
- http://mcgladrey.com/pdf/review_florida_bankers_aml_conference.pdf
June 04, 2013, 03:38:26 AM
Quick question, vaguely on topic - is it legal for two US citizens to exchange fiat currencies with each other? (e.g. pay USD receive EUR, etc)? Or is that technically illegal? Or does it require some sort of registration?
June 04, 2013, 12:23:14 AM
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.html
Some 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...
Code:
(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.
(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.
June 03, 2013, 05:38:42 PM
The guidance doesn't make "anyone" an exchanger because there is an explicit exemption for "users" purchasing goods and services who are not in the business of buying and selling currency, so I disagree on that point as well.
You miss the point. Anyone who exchanges virtual currency for real currency is an exchanger is one way to interpret the guidance. So say MtGox becomes a MSB. Great now every on of MtGox clients would need to also. They all are "exchanging virtual currency for real currency". The guidance provides no exclusion that those exchanging with regulated exchangers are themselves exempt. This would make anyone who ever has or ever will exchange real currency need to register as an MSB. It seems implausible that is FinCEN intent however by the letter of the guidance it is what is stated.
The guidance is unclear, it is just my opinion but only clarity from FinCEN will resolve that lack of clarity for me. That is the point of an administrative ruling. It certainly is possible that the AR will result in more clear guidance one that advises that the example in section c is not binding any such trade of BTC for USD constitutes an "exchanger". The good news is it would remove ambiguity from the definition and force FinCEN to clean up their guidance. Is it FinCEN intent that anyone who ever buys or sells Bitcoins for real currency needs to register as a MSB? I really doubt it but if so the AR will require them to state so in black and white.
OK, I did miss that point on virtual -> real currency exchanges (as opposed to real->virtual) as that would not be entitled to the "Users" exemption as written, but I also think the regulation is clear enough on that activity, as I shall explain.
Even if you sell bitcoins for dollars, whether on an exchange or in a park in NYC, I disagree that "Anyone" is a money transmitter for that reason. The wording is: "An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person.10"
You still have to be an "administrator" or "exchanger" to fit that definition. Those terms are defined near the top of the guidance and both definitions state the person is "engaged as a business". That is the core issue from a legal point of view.
If I sell some bitcoins for dollars occasionally on mt gox, I consider that a personal activity. I'm not engaged as a business when I perform these actions. This is also why selling some Euros to a friend after a vacation is not a felony. However, if I advertised and held an auction for my bitcoins to a group of exchanges every week, then I'd be a business and would be covered by regulation.
It comes down to the definition of "business" and FinCen seems pretty confident that these terms have sufficient legal precedent (see the following link). I tend to agree. I know I am not engaged as a business with respect to my bitcoin activities and am confident a judge or jury would agree.
As I stated earlier, it is not clear how miners escape these regulations and that is where further clarification might help. One could argue that they are engaged as a business.
http://www.americanbanker.com/issues/178_104/fincen-chief-q-and-a-what-we-expect-from-digital-currency-firms-1059485-1.html?zkPrintable=1&nopagination=1
June 03, 2013, 04:57:55 PM
The guidance doesn't make "anyone" an exchanger because there is an explicit exemption for "users" purchasing goods and services who are not in the business of buying and selling currency, so I disagree on that point as well.
You miss the point. Anyone who exchanges virtual currency for real currency is an exchanger is one way to interpret the guidance. So say MtGox becomes a MSB. Great now every on of MtGox clients would need to also. They all are "exchanging virtual currency for real currency". The guidance provides no exclusion that those exchanging with regulated exchangers are themselves exempt. This would make anyone who ever has or ever will exchange real currency need to register as an MSB. It seems implausible that is FinCEN intent however by the letter of the guidance it is what is stated.
The guidance is unclear, it is just my opinion but only clarity from FinCEN will resolve that lack of clarity for me. That is the point of an administrative ruling. It certainly is possible that the AR will result in more clear guidance one that advises that the example in section c is not binding any such trade of BTC for USD constitutes an "exchanger". The good news is it would remove ambiguity from the definition and force FinCEN to clean up their guidance. Is it FinCEN intent that anyone who ever buys or sells Bitcoins for real currency needs to register as a MSB? I really doubt it but if so the AR will require them to state so in black and white.
June 03, 2013, 04:38:38 PM
June 03, 2013, 04:25:11 PM
I actually called the IRS and asked about having to be registered as a money transmitter.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
You're talking about something different. The IRS is not FinCEN.
Registering as a money transmitter is necessary to comply with anti-money laundering and other regulations.
Income and capital gains taxes is another matter.
I believe the point was that if you report your income, then you get audited, that audit includes seeing if you were acting as a transmitter.
aka - you can't only be "partially legal" in a worst case scenario.
A lot of this hinges on the semantics of things, but one thing is clear: fincen has considered it a "convertible virtual currency" which means anyone on either end of the cash <-> bitcoin exchange was acting as a transmitter via:
"An administrator or exchanger that ... (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
They're using the terms administrator, exchanger and person interchangeably here. Are they? Everyone in the US that bought or sold bitcoins at all, directly or indirectly, is being considered? BUT the semantic issue is what are those "limitations to or exemptions from?" in that case?
TC states "If FinCEN wants to define regulation then they are obligated to provide clear and exact lines. Regulation which is vague, arbitrary, capricious, and overbroad is generally overtuned. "
That's what's bizarre about the current wording. Last I checked someone going to a bank or currency exchange to exchange currency isn't considered a "money transmitter." Why would bitcoiners be now?
In a recent speech, Fincen Director Jennifer Shasky Calvery said the new guidance aims "to protect [digitial currency] systems from abuse and to aid law enforcement in ensuring that they are getting the leads and information they need to prosecute the criminal actors." She reiterated that the guidance does not apply to everyday users who pay or accept bitcoin for goods and services.
But what about paying bitcoin to buy a good, then selling the good for some other currency? And so on...
June 03, 2013, 04:22:42 PM
You seem fixated on the definitions within the Decentralized Virtual Currency section. What about the definitions that are present elsewhere, like this one:
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
Well that is the entire point. This "guidance" on virtual currencies is incompatible with the specific guidance given for decentralized virtual currencies (which of the three subclasses is the only one even remotely applicable to Bitcoin).
It is possible since this is just a guidance letter than the phrasing used in the "section c" is an error however it warrants clarification from FinCEN rather than an assumption. However the general definition is overly broad. It would by the letter of the guidance make anyone an "exchanger" even if they use a licensed "exchanger" maybe that is FinCEN intent but once again it seems excessive and vague.
If FinCEN wants to define regulation then they are obligated to provide clear and exact lines. Regulation which is vague, arbitrary, capricious, and overbroad is generally overtuned. Now FinCEN may lack sufficient understanding of the mechanics of Bitcoin to properly define those lines and hence provide conflicting and confusing guidance but if they intend to regulate it they damn better understand it in order to answer very exact questions on which activities fall inside or outside of their scope.
I disagree that the different sections of guidance are incompatible. If ANY of the definitions apply to you and there is no exception defined, then you are covered. You can't cherry pick parts of the guidance.
The guidance doesn't make "anyone" an exchanger because there is an explicit exemption for "users" purchasing goods and services who are not in the business of buying and selling currency, so I disagree on that point as well.
Also I disagree with your last point. The guidance is not that bad from my point of view. They are capturing the activity they want to regulate with language that is about as precise as I would expect from a regulation of this sort.
The only vague definiton in my view is whether a miner or mining pool who confirms transactions is a money transmitter. The question is whether a miner "accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency." It is hard to see how miners who confirm transactions avoid this definition. And they can't use the purchasing exemption that regular "Users" could to avoid regulation. You can ask for further clarification on this but you may not like the answer.
June 03, 2013, 04:10:35 PM
You seem fixated on the definitions within the Decentralized Virtual Currency section. What about the definitions that are present elsewhere, like this one:
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
Well that is the entire point. This "guidance" on virtual currencies is incompatible (or at least illogical) with the specific guidance given for decentralized virtual currencies (which of the three subclasses is the only one even remotely applicable to Bitcoin). It is possible since this is just a guidance letter than the phrasing used in the "section c" is an error however it warrants clarification from FinCEN rather than an assumption. However the general definition is overly broad. It would by the letter of the guidance make anyone an "exchanger" even if they use a licensed "exchanger" maybe that is FinCEN intent but once again it seems excessive and vague.
If FinCEN wants to define regulation then they are obligated to provide clear and exact lines. Regulation which is vague, arbitrary, capricious, and overbroad is generally overtuned. Now FinCEN may lack sufficient understanding of the mechanics of Bitcoin to properly define those lines and hence provide conflicting and confusing guidance but if they intend to regulate it they damn better understand it in order to answer very exact questions on which activities fall inside or outside of their scope.
June 03, 2013, 04:04:50 PM
Perhaps you should also include in your request the possibility of bitcoin autonomous agents that send and receive bitcoins who have no human persons controlling them and see how they respond. These autonomous agents could buy bitcoins with litecoin or ripple and could potentially be MSBs.
https://en.bitcoin.it/wiki/Agents
https://en.bitcoin.it/wiki/Agents
June 03, 2013, 03:28:03 PM
I actually called the IRS and asked about having to be registered as a money transmitter.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
You're talking about something different. The IRS is not FinCEN.
Registering as a money transmitter is necessary to comply with anti-money laundering and other regulations.
Income and capital gains taxes is another matter.
June 03, 2013, 03:27:52 PM
#1: Answer: Who creates the bitcoins is irrelevant to the transmission and exchange functions. The special case of "creating and selling" is really a subcase of exchanging and probably was unnecessary to call out as it is already covered by other guidance. Regardless, it does not seem to apply to bitcoin miners unless they are in the business of selling their bitcoins for currency.
Miners who create currency and keep it or buy things are not covered in the guidance, as far as I can tell. A lot of your post seems confused by that issue and seems to be fishing for different definitions in order to understand how the act of creating the currency, by itself, is regulated. But it isn't. That is not the money transmission or exchange function that FinCen is interested in.
#2: Answer: If you don't sell the units to another person, then you are NOT covered by this clause: "a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter." BUT YOUR MAY BE COVERED BY OTHER CLAUSES.
Based on the following it does not seem like you are reading the entire guidance:
The "accepted" interpretation of FinCEN guidance is that anyone who exchanges virtual currency for real currency is an "exchanger" (unless an exception applies as defined by existing MSB & MT regulations).
However the actual text of the guidance does NOT say that:
You seem fixated on the definitions within the Decentralized Virtual Currency section. What about the definitions that are present elsewhere, like this one:
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
Miners who create currency and keep it or buy things are not covered in the guidance, as far as I can tell. A lot of your post seems confused by that issue and seems to be fishing for different definitions in order to understand how the act of creating the currency, by itself, is regulated. But it isn't. That is not the money transmission or exchange function that FinCen is interested in.
#2: Answer: If you don't sell the units to another person, then you are NOT covered by this clause: "a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter." BUT YOUR MAY BE COVERED BY OTHER CLAUSES.
Based on the following it does not seem like you are reading the entire guidance:
The "accepted" interpretation of FinCEN guidance is that anyone who exchanges virtual currency for real currency is an "exchanger" (unless an exception applies as defined by existing MSB & MT regulations).
However the actual text of the guidance does NOT say that:
Quote
In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.
You seem fixated on the definitions within the Decentralized Virtual Currency section. What about the definitions that are present elsewhere, like this one:
"An administrator or exchanger that (1) accepts and transmits a convertible virtual currency or (2) buys or sells convertible virtual currency for any reason is a money transmitter under FinCEN's regulations, unless a limitation to or exemption from the definition applies to the person."
June 03, 2013, 03:25:25 PM
Nice work!!
June 03, 2013, 03:21:49 PM
I actually called the IRS and asked about having to be registered as a money transmitter.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
There response was that ANYONE who buys, then re-sells, etc IS A MONEY TRANSMITTER AND MUST FILE IF EXCHANGE OVER $1,000.
If you report your BitCoin income, then audited, and not registered you will be in trouble.
June 03, 2013, 03:05:14 PM
Nice work.
Possible minor edit:
Issue #2: What isf the exchanger doesn't involve a "another person"?
Possible minor edit:
Issue #2: What i
June 03, 2013, 03:03:06 PM
I also brought up the scenario of operating an eWallet which involve only a single virtual currency and no real currency:
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
That's the question I had, since the guidance states:
Quote
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.
It doesn't matter if no "real" currency is handled. The more recently released comments from FinCEN say it a bit more clearly:
https://bitcointalksearch.org/topic/new-fincen-report-on-bitcoin-181708
Quote
Those who are intermediaries in the transfer of virtual currencies from one person to
another person, or to another location, are money transmitters that must register with FinCEN as
MSBs unless an exception applies. Some virtual currency exchangers have already registered
with FinCEN as MSBs, though they have not necessarily identified themselves as money
transmitters.
another person, or to another location, are money transmitters that must register with FinCEN as
MSBs unless an exception applies. Some virtual currency exchangers have already registered
with FinCEN as MSBs, though they have not necessarily identified themselves as money
transmitters.
Is it the end of unregistered exchanges?
This makes it more of a pain in the rear to operate any kind of Bitcoin/crypto-currency (or other virtual currency) exchange if you're based in the U.S., at least in a complying above ground way.
Still, I think this quote deserves emphasis:
Quote
The guidance explains how FinCEN’s “money transmitter” definition applies to certain exchangers and system administrators of virtual currencies depending on the facts and circumstances of that activity. Those who use virtual currencies exclusively for common personal transactions like receiving payments for services or buying goods online are not affected by this guidance.
Since Bernanke doesn't consider gold to be money I imagine buying gold coins online with bitcoins is not affected by the FinCEN guidance.
June 03, 2013, 02:51:20 PM
I also brought up the scenario of operating an eWallet which involve only a single virtual currency and no real currency:
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
That's the question I had, since the guidance states:
Quote
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.
June 03, 2013, 01:20:54 PM
Filed a request for an administrative to FinCEN this morning. It is something which has been in the works for the last month and is overshadowed by other news today but I thought some Bitcoin related enterprises would be interested. The administrative ruling seeks clarification on if certain scenarios require registration as an MSB. FinCEN guidance on virtual currencies (FIN-2013-G001) includes a number of confusing and contradictory statements.
Issue #1: Who creates Bitcoins?
The first area I asked clarification on was the creation of Bitcoins. It is "strange" that Fincen makes creators of Bitcoins a special case. I believe FinCEN has an incomplete understand of what mining is and how it work. Who exactly creates Bitcoins in the Bitcoin network? Is it the entity which produces and broadcasts a new block? Is it the entity that has ownership of the address in the coinbase transactions? If the case of "pool mining" are the "miners" which only paid for contributing computing resources to a pool operator the creator? Is the pool operator the creator? Or is neither?
In the administrative ruling I provided an explanation of the Bitcoin block generation process and the scenario where individuals don't directly mine blocks, rather they attempt to potential solutions provided by a pool operator who receives newly "minted coins". The "miners" which I deemed "Computing Power Providers" or CPPs are merely contracting to provide computing power to the pool operator. The key point is that when a solution is found and a new block broadcast that block's newly minted coins are transferred to an address under the control of the operator not the CPPs.
The mining pool operator contracts with CPPs and pays them an agreed upon amount (either a preset about per unit of work or a % of any rewards found based on computing power). The CPPs never receive newly generated coins (yes there are exceptions but they were not included in this scenario). I asked FinCEN to provide clarification on who is the creator. I also included the scenario where a mining pool operator pays these CPPs directly in real currency. I stated that by the guidance the pool operator wouldn't be considered an exchanger. The pool operator is paying for computing power and while that computing power may produce Bitcoins that is distinct from actually exchanging BTC for USD.
There are a lot of potential scenarios on exactly who is the creator. All of these are plusible but FinCEN just leaves the question open with a vague "creator" reference:
a) "Satoshi" as a result of the protocol providing entities that solve a block a preset amount of subsidy
b) nobody - the protocol defines the compensation for miners and miners merely collect it
c) the entity in charge of pool mining that creates the blockheader to be hashed.
d) everyone contributing computing power to a pool reward
e) the entity which has ownership & control of the address in coinbase tx (generally today this is the same as c but it doesn't have to be)
If FinCEN indicates the creators selling virtual currency for real currency are regulated they have an obligation to provide specific and exact guidance on exactly what make one the "creator" and thus potentially under regulation. Otherwise the regulation is vague, arbitrary, capricious, and overbroad.
Issue #2: What is the exchanger doesn't involve a "another person"?
The reason I started taking a closer look at "creators" of virtual currency is because FincEN makes creators of virtual currency who exchange it for real currency a "special case".. Why? If indeed Fincen is stating in the guidance that any EXCHANGER of virtual currency for real currency is regulated then why also mention creators?. If the creator exchanges virtual currency for real currency they would already fall under the commonly accepted (and IMHO incorrect) "exchanger" anyways. While define them seperately. There is no additional restriction on them no enhanced oversight. Both "exchangers" and "creators who exchange virtual currency for real currency" both are subject to exactly the same definition and oversight.
Hopefully this provides some clarity:
All persons* who exchange virtual currency for real currency are regulated (unless an exception applies).
All creators who exchange virtual currency for real currency are regulated (unless an exception applies).
All creators are persons.
* persons generally means any real person, corporation, partnership, or other legal construct given "personhood" under existing law. The law rarely makes a distinction between a "real person" (a human being) and a corporation for example.
The second definition is redundant by scope. This is "strange". Regulations rarely define already completely inclusive subclasses. The selective service laws don't both say "all males over 18 need to register" and "all males over 18 which have brown hair need to register". The first class is inclusive of the second. There is no need to even mention it. If this doesn't seem strange to you please reread the section above as it is important to understand the basis for the rest.
What if not all trades involving virtual currency and real currency meet the definition of an "exchanger" then it would make more sense to define the "special case" for issuers if FinCEN wanted (dubious as it may be) to hold them to a higher standard. The "accepted" interpretation of FinCEN guidance is that anyone who exchanges virtual currency for real currency is an "exchanger" (unless an exception applies as defined by existing MSB & MT regulations).
However the actual text of the guidance does NOT say that:
Now guidance isn't law, but by the letter of the guidance a trade of BTC for USD between two individuals is not an exchanger. You will notice in the definition above there are three distinct entities. The regulated entity, the entity that it accepts Bitcoins from AND the entity that it transmits Bitcoins to. FinCEN is clear to say "one person" and "another persons". Per the quote above it is accepting BTC from person A AND transmitting it to person B combined with the acceptance of real currency which makes one a regulated entity.
Thus by the letter of the guidance above this would be a regulated entity
BTC: Person A -----> Exchanger ----> Person B
USD: Person B -----> Exchanger ----> Person A
Here there is an acceptance of BTC from on person and transmission of BTC BTC to another person.
However by the guidance as written above, the following would not be regulated entity:
BTC: Person A ----> Buyer
USD: Buyer ----> Person A
There is acceptance of virtual currency by the buyer but no transmission to another person. If this looks familiar to a certain company business model well that is the point.
I also brought up the scenario of operating an eWallet which involve only a single virtual currency and no real currency:
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
Lastly this would clarify some nagging inconsistencies about the accepted definition of "exchangers". I have seen a lot that people have made claims that FinCEN doesn't regulate people who exchange virtual currency for real currency on a regulated exchange. While in may make common sense, FinCEN made no except for an entity which exchanges virtual currency using a regulated money transmitter. IF ALL exchanges of USD->BTC or BTC->USD are regulated entities by the letter of the guidance it wouldn't matter if a person exchanged with a regulated entity they would STILL need to be a regulated entity themselves. Now I am not arguing that is the case, I am arguing that this weird scenario exists because the accepted definition of "exchanger" is incorrect.
However if the mere act of trading virtual currency for real currency wasn't the regulated activity then it would make sense that for example the users/clients of MtGox (or any other exchanger) would not be regulated entities themselves. While they are trading virtual currency for real currency they don't meet the definition of an acceptance of virtual currency and transmission of that virtual currency to another party. Anyways it will be at least 30 days and possibly 90 before I get a response but I thought people might want to start thinking about the issue and looking closer at the guidance. I am not saying this "is" the proper interpretation but rather that people should take an independent look at the guidance and existing regulations.
DISCLAIMER: The post is not legal counsel. You should not rely on it for legal advice. The definitive response will come from FinCEN or the courts in a legal challenge. The point of an administrative ruling to to ask FinCEN to provide clarification when existing guidance isn't clear. I believe that existing guidance isn't clear in these two scenarios. Lastly I believe the second scenario only exists because FinCEN chose to use existing MSB/MT regulation rather than ask Congress to give them regulatory oversight over "virtual currency" brokers as they do with real currency brokers. However "brokers of foreign currency" while regulated as an MSB are not MT and generally are not regulated at the state level so even that would be a marginal win.
Quote from: FIN-2013-G001
c. De-Centralized Virtual Currencies
A final type of convertible virtual currency activity involves a de-centralized convertible virtual currency (1) that has no central repository and no single administrator, and (2) that persons may obtain by their own computing or manufacturing effort.
A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter. In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.
A final type of convertible virtual currency activity involves a de-centralized convertible virtual currency (1) that has no central repository and no single administrator, and (2) that persons may obtain by their own computing or manufacturing effort.
A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter. In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.
Issue #1: Who creates Bitcoins?
The first area I asked clarification on was the creation of Bitcoins. It is "strange" that Fincen makes creators of Bitcoins a special case. I believe FinCEN has an incomplete understand of what mining is and how it work. Who exactly creates Bitcoins in the Bitcoin network? Is it the entity which produces and broadcasts a new block? Is it the entity that has ownership of the address in the coinbase transactions? If the case of "pool mining" are the "miners" which only paid for contributing computing resources to a pool operator the creator? Is the pool operator the creator? Or is neither?
In the administrative ruling I provided an explanation of the Bitcoin block generation process and the scenario where individuals don't directly mine blocks, rather they attempt to potential solutions provided by a pool operator who receives newly "minted coins". The "miners" which I deemed "Computing Power Providers" or CPPs are merely contracting to provide computing power to the pool operator. The key point is that when a solution is found and a new block broadcast that block's newly minted coins are transferred to an address under the control of the operator not the CPPs.
The mining pool operator contracts with CPPs and pays them an agreed upon amount (either a preset about per unit of work or a % of any rewards found based on computing power). The CPPs never receive newly generated coins (yes there are exceptions but they were not included in this scenario). I asked FinCEN to provide clarification on who is the creator. I also included the scenario where a mining pool operator pays these CPPs directly in real currency. I stated that by the guidance the pool operator wouldn't be considered an exchanger. The pool operator is paying for computing power and while that computing power may produce Bitcoins that is distinct from actually exchanging BTC for USD.
There are a lot of potential scenarios on exactly who is the creator. All of these are plusible but FinCEN just leaves the question open with a vague "creator" reference:
a) "Satoshi" as a result of the protocol providing entities that solve a block a preset amount of subsidy
b) nobody - the protocol defines the compensation for miners and miners merely collect it
c) the entity in charge of pool mining that creates the blockheader to be hashed.
d) everyone contributing computing power to a pool reward
e) the entity which has ownership & control of the address in coinbase tx (generally today this is the same as c but it doesn't have to be)
If FinCEN indicates the creators selling virtual currency for real currency are regulated they have an obligation to provide specific and exact guidance on exactly what make one the "creator" and thus potentially under regulation. Otherwise the regulation is vague, arbitrary, capricious, and overbroad.
Issue #2: What is the exchanger doesn't involve a "another person"?
The reason I started taking a closer look at "creators" of virtual currency is because FincEN makes creators of virtual currency who exchange it for real currency a "special case".. Why? If indeed Fincen is stating in the guidance that any EXCHANGER of virtual currency for real currency is regulated then why also mention creators?. If the creator exchanges virtual currency for real currency they would already fall under the commonly accepted (and IMHO incorrect) "exchanger" anyways. While define them seperately. There is no additional restriction on them no enhanced oversight. Both "exchangers" and "creators who exchange virtual currency for real currency" both are subject to exactly the same definition and oversight.
Hopefully this provides some clarity:
All persons* who exchange virtual currency for real currency are regulated (unless an exception applies).
All creators who exchange virtual currency for real currency are regulated (unless an exception applies).
All creators are persons.
* persons generally means any real person, corporation, partnership, or other legal construct given "personhood" under existing law. The law rarely makes a distinction between a "real person" (a human being) and a corporation for example.
The second definition is redundant by scope. This is "strange". Regulations rarely define already completely inclusive subclasses. The selective service laws don't both say "all males over 18 need to register" and "all males over 18 which have brown hair need to register". The first class is inclusive of the second. There is no need to even mention it. If this doesn't seem strange to you please reread the section above as it is important to understand the basis for the rest.
What if not all trades involving virtual currency and real currency meet the definition of an "exchanger" then it would make more sense to define the "special case" for issuers if FinCEN wanted (dubious as it may be) to hold them to a higher standard. The "accepted" interpretation of FinCEN guidance is that anyone who exchanges virtual currency for real currency is an "exchanger" (unless an exception applies as defined by existing MSB & MT regulations).
However the actual text of the guidance does NOT say that:
Quote
In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.
Now guidance isn't law, but by the letter of the guidance a trade of BTC for USD between two individuals is not an exchanger. You will notice in the definition above there are three distinct entities. The regulated entity, the entity that it accepts Bitcoins from AND the entity that it transmits Bitcoins to. FinCEN is clear to say "one person" and "another persons". Per the quote above it is accepting BTC from person A AND transmitting it to person B combined with the acceptance of real currency which makes one a regulated entity.
Thus by the letter of the guidance above this would be a regulated entity
BTC: Person A -----> Exchanger ----> Person B
USD: Person B -----> Exchanger ----> Person A
Here there is an acceptance of BTC from on person and transmission of BTC BTC to another person.
However by the guidance as written above, the following would not be regulated entity:
BTC: Person A ----> Buyer
USD: Buyer ----> Person A
There is acceptance of virtual currency by the buyer but no transmission to another person. If this looks familiar to a certain company business model well that is the point.
I also brought up the scenario of operating an eWallet which involve only a single virtual currency and no real currency:
BTC: Person A -----> Wallet Provider -----> Person B
USD: None
Lastly this would clarify some nagging inconsistencies about the accepted definition of "exchangers". I have seen a lot that people have made claims that FinCEN doesn't regulate people who exchange virtual currency for real currency on a regulated exchange. While in may make common sense, FinCEN made no except for an entity which exchanges virtual currency using a regulated money transmitter. IF ALL exchanges of USD->BTC or BTC->USD are regulated entities by the letter of the guidance it wouldn't matter if a person exchanged with a regulated entity they would STILL need to be a regulated entity themselves. Now I am not arguing that is the case, I am arguing that this weird scenario exists because the accepted definition of "exchanger" is incorrect.
However if the mere act of trading virtual currency for real currency wasn't the regulated activity then it would make sense that for example the users/clients of MtGox (or any other exchanger) would not be regulated entities themselves. While they are trading virtual currency for real currency they don't meet the definition of an acceptance of virtual currency and transmission of that virtual currency to another party. Anyways it will be at least 30 days and possibly 90 before I get a response but I thought people might want to start thinking about the issue and looking closer at the guidance. I am not saying this "is" the proper interpretation but rather that people should take an independent look at the guidance and existing regulations.
DISCLAIMER: The post is not legal counsel. You should not rely on it for legal advice. The definitive response will come from FinCEN or the courts in a legal challenge. The point of an administrative ruling to to ask FinCEN to provide clarification when existing guidance isn't clear. I believe that existing guidance isn't clear in these two scenarios. Lastly I believe the second scenario only exists because FinCEN chose to use existing MSB/MT regulation rather than ask Congress to give them regulatory oversight over "virtual currency" brokers as they do with real currency brokers. However "brokers of foreign currency" while regulated as an MSB are not MT and generally are not regulated at the state level so even that would be a marginal win.
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