Author: Kelley R. Taylor
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The 2022 crypto price crash understandably has some investors concerned. But for those of you who haven’t run for the hills, it’s worth knowing that cryptocurrency currently has the attention of not only the Biden administration, and Congress, but the IRS as well. In terms of crypto news and taxes, the IRS recently proposed changes to cryptocurrency tax reporting question on the Form 1040. The agency will also receive $80 billion from the Inflation Reduction Act, some of which will be directed to digital asset enforcement—including cryptocurrency tax compliance.
Additionally, you may have heard that the IRS continues to successfully obtain court orders to require cryptocurrency brokers and exchanges to provide information to the IRS. That information concerns investors who failed to report and pay taxes on cryptocurrency transactions.
And while this IRS enforcement focus isn’t new, recent crypto announcements and developments from Congress, the Biden administration, and the IRS, mean that it’s important to stay up-to-date on crypto tax reporting and compliance. So, here’s some information to get you started.
How Crypto is Taxed
A common question about cryptocurrency concerns how crypto is taxed. The answer is that cryptocurrency is considered property, so it’s taxed by the IRS in the same way that other capital assets are taxed. As a result, when you sell or trade crypto, you can have asset losses and potential taxable gains depending on the fair market value of the virtual currency, and your basis in the crypto.
Given that, it’s important to remember that payments made using virtual currency are subject to IRS information reporting. For federal tax purposes that initially means that all taxpayers are supposed to provide a yes or no response to a virtual currency question on the top of the Form 1040.
For 2021, the check-the-box question asked: “At any time during 2021, did you receive, sell, exchange, or otherwise dispose of any financial interest in any virtual currency?”
You could answer “no” if you “merely owned” crypto, i.e., the cryptocurrency was in your own wallet or account or was transferred between your own wallets or accounts. You could also answer no to the virtual currency question if you purchased your crypto with real currency.
You were supposed to respond “yes” to the virtual currency question if you received cryptocurrency as a payment for goods or services. A yes answer would also be required if you received or transferred crypto for free (but didn’t receive it as a gift). Other reasons to answer yes included receiving new crypto due to mining and staking or because of a hard fork, or if you exchanged virtual currency for property, goods, or services, or for another virtual currency.
Proposed Cryptocurrency Tax Reporting Changes
Recently however, the IRS proposed a change to the virtual currency question. On the 2022 draft Form 1040, the proposed question reads: “At any time during 2022, did you: (a) receive (as a reward, award, or compensation); or (b) sell, exchange, gift, or otherwise dispose of a digital asset (or a financial interest in a digital asset)?”
That could be a signal that the IRS is interested in whether you’ve received or sent crypto as a gift. Or it could indicate a focus on other digital assets like NFTs.
For 2021, when the IRS didn’t ask about cryptocurrency received as a gift, the gift tax allowance was $15,000. So, a gift of cryptocurrency under that amount was not subject to tax. For 2022, the gift tax allowance is $16,000, so a crypto gift under that amount similarly wouldn’t be taxable. But keep in mind that if you were to sell or transfer the cryptocurrency that you received, it could later be subject to capital gains tax.
Final instructions for the 2022 Form 1040 should be coming soon from the IRS.
Is Cryptocurrency Reported to the IRS?
The IRS stresses the long-standing requirement that taxpayers maintain records that establish the positions they take on their tax returns. That means that with cryptocurrency, you should keep accurate and detailed records. Records should show any sales, exchanges or disposition of your cryptocurrency or other digital assets and show the fair market value of the assets.
And as was mentioned earlier, the IRS has repeatedly taken legal action through court orders (i.e., so-called John Doe summonses), to require cryptocurrency brokers to provide information about customers engaged in cryptocurrency transactions. One recent summons involves customers of SFOX, a cryptocurrency prime broker.
These summonses are due in part to the IRS’s focus on closing the tax gap (i.e., the difference between what taxpayers owe and what they actually pay). The agency has said that significant problems with tax compliance relate to cryptocurrencies and other digital assets.
On the legislative front, the Bipartisan Infrastructure Law, enacted earlier this year, requires cryptocurrency brokers to report more information on client’s trading activity. The requirement, which was opposed by some lawmakers and some in the crypto industry, it set to begin in 2023. However, a bipartisan group of Senators have recently proposed legislation to further clarify the definition of broker in the Infrastructure Law. If passed, that proposed legislation would essentially exempt digital asset mining and wallet providers, and software developers, from the information reporting requirements intended for cryptocurrency brokers.
The Inflation Reduction Act and Crypto
The newly proposed virtual currency question and stepped-up focus on digital assets, comes as the IRS is set to receive $80 billion under the Inflation Reduction Act—massive climate, energy, tax, and healthcare legislation that was signed by President Biden on August 16. About $46 billion of the IRS funding from the new law is designated for enforcement. And while enforcement will include a range of activities, the Inflation Reduction Act mentions that IRS funds could be used for digital asset enforcement—including cryptocurrency tax compliance.
Biden’s Cryptocurrency Framework: Also, in recent crypto news, President Biden, on September 16, released a comprehensive Digital Asset Framework. The framework follows Biden’s March 9 Executive Order calling for a whole-of-government approach to address risks associated with digital assets, including cryptocurrency. Biden’s digital asset regulation framework points to the instability of crypto—and the 2022 multi-trillion-dollar crypto crash—as reasons for increased scrutiny and enforcement of digital assets.
All these developments mean that significant resources and attention continue to be paid to cryptocurrency tax enforcement. Consequently, as a crypto investor, you’ll need to remain diligent and be accurate with your tax reporting and compliance. Also, stay tuned to digital asset enforcement and related crypto news from Congress and the Biden administration.