Under U.S. tax law, cryptocurrencies are treated like property.  As a result, each time someone buys, sells or exchanges a digital asset, it is considered a taxable event and the capital gains tax applies.  The Internal Revenue Service is of the view that many reportable transactions go unreported.  One method it is adopting to try capture such taxes is that, starting in 2020, the very first question on the standard 1040 Form is whether “at any time during 2020 did you receive, sell, send, exchange, or otherwise acquire any financial interest in any virtual currency.”

In 2019, the cryptocurrency question was on Schedule 1, which many filers do not use.  The prominent placement on the 2020 form means that the 150 million people who use the Form 1040 will have to answer the question. An inaccurate answer could be used against the filer.

The IRS recently issued draft instructions that explain who has to answer the question in the affirmative.  The instructions explain that the “yes” box should be checked for:

  • The receipt or transfer of virtual currency for free (without providing any consideration), including from an airdrop or hard fork;
  • An exchange of virtual currency for goods or services;
  • A sale of virtual currency; and
  • An exchange of virtual currency for other property, including for another virtual currency.

It is not necessary to report on the holding of virtual currency in a wallet or account, or the transfer of virtual currency from one wallet or account to another that is owned or controlled by the same person.

Further guidance from the IRS on cryptocurrency may be found here.

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David Zaslowsky has a degree in computer science and, before going to Yale Law School, was a computer programmer. He is currently the Chairman of the Litigation Department of the firm’s New York office. His practice focuses on international litigation and arbitration. He has been involved in cases in trial and appellate courts across the United States and before arbitral institutions around the world. Many of David’s cases, including some patent cases, have related to technology. Since 2008, David has been included in Chambers for his expertise in international arbitration.