This article was written by Patricia Tsang and Sophie Gerber (Director, TRAction Fintech Pty Ltd which provides services to report on behalf of OTC derivatives issuers).
The government and regulators are coming to grips with Bitcoin in Australia. The Australian Senate’s Economics References Committee released a report in August 2015 which effectively summaries the current regulatory framework. The Report also contains a number of recommendations which may inform the Government and regulators as to the future direction in the area.
Current regulatory framework
The Australian Taxation Office (ATO) released a suite of draft public rulings on the tax treatment of digital currencies on 20 August 2014. The ATO’s rulings, which were finalised on 17 December 2014, determined the following:
Transacting with bitcoins is akin to a barter arrangement, with similar tax consequences. The ATO’s view is that Bitcoin is neither money nor a foreign currency, and the supply of bitcoin is not a financial supply for goods and services tax. Bitcoin is, however, an asset for capital gains tax (CGT) purposes.
The Report sets out a summary of the taxation implication of the ATO’s rulings on digital currencies as follows:
- Capital gains tax (CGT)—Those using digital currency for investment or business purposes may be subject to CGT when they dispose of digital currency, in the same way they would be for the disposal of shares or similar CGT assets; individuals who make personal use of digital currency (for example using digital currency to purchase items to buy a coffee) and where the cost of the Bitcoin was less than AUD$10,000, will have no CGT obligations.
- Goods and Services Tax (GST)—Individuals will be charged GST when they buy digital currency, as with any other property. Businesses will charge GST when they supply digital currency and be charged GST when they buy digital currency.
- Income Tax—Businesses providing an exchange service, buying and selling digital currency, or mining Bitcoin will pay income tax on the profits. Businesses paid in Bitcoin will include the amount, valued in Australian currency, in assessable business income. Those trading digital currencies for profit, will also be required to include the profits as part of their assessable income.
- Fringe Benefits Tax (FBT)—remuneration paid in digital currency will be subject to FBT where the employee has a valid salary sacrifice arrangement, otherwise the usual salary and wage PAYG rules will apply.
The Australian government is in the process of preparing a white paper (a paper which embodies a statement of government policy) in relation to taxation in this area which could result in changes.
Financial Regulation and Consumer Protection
The current financial services regulatory regime under the Corporations Act 2001 applies to ‘financial products’.
According to the Report, the view of the Australian Securities and Investments Commission (ASIC) is that digital currencies themselves do not fall within the legal definition of ‘financial product’ under the Corporations Act (or the Australian Securities and Investments Commission Act 2001).
This means that ‘a person is not providing financial services when they operate a digital currency trading platform, provide advice on digital currencies or arrange for others to buy and sell digital currencies’.
Further, according to the Report, this means that a person does not need:
(a) an Australian market licence to operate a digital currency trading platform; and
(b) an Australian financial services (AFS) licence in order to: (i) trade in digital currency; (ii) hold a digital currency on behalf of another person; (iii) provide advice in relation to digital currency; and (iv) arrange for others to buy and sell digital currency.
Consistent with the ATO’s view, ASIC does not consider that digital currencies are money or currency for the purposes of the Corporations Act or the ASIC Act; instead they are more akin to a commodity. As such, the exchanges of digital currency and national currency are not treated as foreign exchange contracts.
Also according to the Report, ASIC advised that its understanding was that contracts for exchanging national currency for digital currency through online platforms or ATMs are typically settled immediately, and the normal licensing and disclosure requirements under the Corporations Act would not apply to digital currency exchanges.
However, while digital currency itself does not fit within the definition of financial products, ASIC considers that some digital currency businesses offer facilities, such as non-cash payment facilities, which may be financial products. ASIC noted that where regulated financial services providers have expanded their product offerings to include the use of digital currencies, these products are considered financial products.
For example, PayPal recently entered into an agreement with leading Bitcoin payments processors Bitpay, Coinbase and GoCoin to enable its merchants to accept Bitcoin. In this instance, the usual financial services licensing, conduct and disclosure obligations for financial products in the Corporations Act apply.
ASIC noted that intermediary facilities for paying for goods and services may be providing a facility through which non-cash payments are made in digital currency, regardless of whether the merchant accepts digital currency. Non-cash payments are a type of financial product and this type of digital currency intermediary facility may require an AFS licence. An example of this kind of facility is the recently announced CoinJar Swipe card, which allows CoinJar customers to convert the value in their CoinJar Bitcoin wallet to Australian dollars loaded onto an EFTPOS card.
Further, as set out above, ASIC currently considers Bitcoin as akin to a commodity. Presumably, whilst not referred to in the Report, a derivative in relation to Bitcoin may be considered by ASIC as a commodity derivative. Under the Corporations (Derivatives) Determination 2013 (the Ministerial Determination), five classes of derivatives were determined to be subject to the ASIC Derivative Transaction Rules (Reporting) 2013 as amended: (a) commodity derivatives other than electricity derivatives, (b) credit derivatives, (c) equity derivatives, (d) foreign exchange derivatives and (e) interest rate derivatives.
Even though the Explanatory Memorandum in relation to the Ministerial Determination states that the five derivative classes are intended to align with generally used industry derivatives taxonomies such as those issued by the International Swaps and Derivatives Association (which current version does not include a category for Bitcoin / digital currency derivatives), commodity derivatives are not defined in the Ministerial Determination or the Reporting Rules, and bitcoin derivatives may be potentially reportable as commodity derivatives under the Reporting Rules.
On 7 December 2014, the final report of the Australian government’s Financial System Inquiry (FSI) was released and the Australian Treasury is currently conducting a consultation process on the FSI recommendations. The FSI found that:
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Digital currencies are not currently widely used as a unit of account in Australia and as such may not be regarded as ‘money’. However, their use in payment systems could expand in the future. It will be important that payments system regulation is able to accommodate them, as well as other potential payment instruments that are not yet conceived. Current legislation should be reviewed to ensure payment services using alternative mediums of exchange can be regulated—from consumer, stability, competition, efficiency and AML [anti-money laundering] perspectives—if a public interest case arises.
While ASIC does not consider digital currencies to be currency or money for the purposes of the Corporations Act or the ASIC Act, the general consumer protection provisions of the Competition and Consumer Act 2010 apply to digital currencies, rather than the equivalent provisions in the ASIC Act. The Competition and Consumer Act 2010 is administered by the Australian Competition and Consumer Commission (ACCC).
The Reserve Bank of Australia (RBA) is the principal regulator of the payments system, and administers the Payment Systems (Regulation) Act 1998 (PSRA). According to the Report, the RBA currently considers digital currencies to be in limited use and do not yet raise any significant concerns with respect to competition, efficiency or risk to the financial system; and are not currently regulated by the RBA or subject to regulatory oversight.
However, the RBA informed the Senate committee in April 2015 that it would be assessing whether the current regulatory framework could accommodate alternative mediums of exchange such as digital currencies
According to the Report, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) currently only covers a very small proportion of the digital currencies. It does not cover digital currencies, such as Bitcoin, that are not backed by precious metal or bullion.
While a subsection of the AML/CTF Act enables the regulation of digital currencies backed either directly or indirectly by ‘a thing of a kind prescribed by the AML/CTF Rules’, no such rules have been issued to date. Further, Australia’s current AML/CTF regime allows for limited regulatory oversight of convertible digital currencies. Whenever they are exchanged for fiat currencies, or vice versa, the transactions will generally intersect with banking or remittance services which are regulated under the AML/CTF regime.
The Attorney-General’s Department is currently conducting a statutory review of the operation of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act) which is considering the emergence of digital currencies and whether they should be brought within Australia’s AML/ CTF regime.
Recommendations in the Report
The committee is of the view that digital currency should be treated as money for the purposes of the goods and services tax. As such, the committee recommends that the government consults with the states and territories to consider amending the definition of money in the A New Tax System (Goods and Services Tax) Act 1999 and including digital currency in the definition of financial supply in A New Tax System (Goods and Services Tax) Regulations 1999.
The committee recommends that further examination of appropriate tax treatment of digital currencies should be included in the taxation white paper process, with particular regard to income tax and fringe benefits tax.
Financial Regulation and Consumer Protection
The committee recommends that the Australian government consider establishing a Digital Economy Taskforce to gather further information on the uses, opportunities and risks associated with digital currencies. This will enable regulators, such as the Reserve Bank of Australia and ASIC, to monitor and determine if and when it may be appropriate to regulate certain digital currency businesses. In the meantime, the committee supports ADCCA (the Australian Digital Currency Commerce Association)’s continued development of a self-regulation model, in consultation with government agencies.
The committee recommends that the statutory review considers applying AML/CTF regulations to digital currency exchanges.
The Report’s recommendations may inform the Government and regulators as to future direction.