Bitcoin investors should be taxed like any other investor

By Chris Berg, Sinclair Davidson and Jason Potts

Despite its name, cryptocurrency isn’t just money. It could also be debt or equity and so it should be regulated and taxed in the same way as other finance.

The tokens investors get when they buy a cryptocurrency, like Bitcoin, can be used to buy into blockchain startups (businesses that use the same online ledger as cryptocurrencies). When blockchain startups issue shares in their businesses using cryptocurrency, it’s called an initial coin offering. For investors, this is like any other equity investment.

Cryptocurrency can also be used to finance specific assets, like debt. So what we have is a single financial instrument that has the advantages of both debt and equity.

So startups issuing their own tokens for investment purposes should have to comply with the same rules and regulations that startups issuing more traditional instruments must comply with. Cryptocurrency investors should be taxed on the same basis as traditional investors.

Why cryptocurrency is a mix of money, debt and equity

Money is very often defined by its functions: a medium of exchange, a unit of account (used to represent the real value or cost of any economic item), and a store of value (that can be saved, retrieved and exchanged at a later time). The early consensus about Bitcoin among economists is that it’s not money.

At best cryptocurrencies are a medium of exchange. But many economists doubted that Bitcoin, given its volatility, could ever serve as a unit of account, let alone as a store of value.

So if cryptocurrency isn’t money, is has to be something else. It could be an asset of some sort.

Usually if investors acquire or sell an asset, it would be liable to tax, such as the GST. This means people using Bitcoin would be taxed twice when using it.

It would be taxed when the person buys the Bitcoin and taxed again when they used it to buy something. Luckily the federal government realised this was a bad idea and moved to repeal the double taxation of Bitcoin.

Clearly the federal government’s view is that cryptocurrency is not legal tender – so don’t try pay your income tax in Bitcoin anytime soon. And there are important differences between money, specifically legal tender, and cryptocurrency.

Cryptocurrencies tend to strictly rules bound. How they’re created, when they can be earned, how they’re distributed and how many there ever can be, is all determined by rules. In fact, users like strict rules.

By contrast government controlled money is not rules bound. Government employs substantial discretion in exercising control over money. So while the US dollar has the words “In God we trust” printed on it, this system actually requires substantial trust in government.

This trust has been repaid by a substantial reduction of value over the past century. It seems that government-backed money may also be a poor unit of account and store of value.

Debt and equity are financial instruments used to raise money to finance economic activity. It is something of a puzzle to financial economists why firms use debt in some instances to raise finance while using equity in other situations.

An important 1988 paper by the 2009 economics Laureate Oliver Williamson provides a possible answer to that question. Williamson argues that debt, being a strict rules bound financial instrument, is best used to finance general assets, while equity is best used for so-called specific assets. Specific assets are those assets that cannot be cheaply or easily redeployed from their current use to alternate uses without a substantial loss of value.

As it turns out Williamson had speculated about the existence of such an instrument (that he labelled “dequity”) and then rejected that instrument as being unworkable. The reason dequity was unworkable was due to opportunism – investors simply could not trust dequity issuers.

The ledger that cryptocurrencies use – the blockchain – is a actually “trustless” technology because it’s decentralised. It allow users to see each other’s ledgers and transactions, negating the need for a trusted third party to manage risk. Instead it relies on cryptographic verification.

With the absence of the ability for investors to game the system, cryptocurrencies are the dequity Williamson first imagined and it could become an efficient financing mechanism.

How dequity should be regulated

The idea of regulating or taxing cryptocurrency finance may not be to the liking of many crypto-enthusiasts who are likely to argue that traditional rules and regulations are very onerous. They are correct, of course. Yet the solution to over-regulation is not a carve-out for special interests but rather regulatory reform that reduces the burden for all business.

The good news for crypto-enthusiasts is that some governments appear willing to engage in genuine regulatory reform and tax competition to attract investment in this space. For example, the Singaporean government is relaxing existing regulation to accommodate cryptocurrency. Its proposed framework would require applicable companies to obtain a license from the Monetary Authority of Singapore, and divides payment activities into several categories.

But regulators should really regulate cryptocurrencies in much the same way as they do existing financial instruments. It shouldn’t be given special treatment.

Despite all the complexity of cryptocurrency it really is simple: it’s a financial instrument that combines all the advantages of money with debt and equity. It’s none of those well known concepts in isolation, but a viable and workable hybrid of all three.

Kevin Rudd guaranteed bank deposits and gave us something we already had

In October 2008, as credit markets seized up around the world, then-Labor Prime Minister Kevin Rudd and Treasurer Wayne Swan introduced the Australian bank deposit guarantee, to ensure that no depositor in an Australian bank could lose their money. Since at least the 1980s, some academics and many commentators had been calling for such a scheme to prevent bank runs. In 2008, the Rudd government satisfied those demands.

However, my research has found that Australia already had what was believed to be, at least at the time of its introduction, a fully-fledged guarantee of deposits at Australian banks, and has had since 1945.

This deposit guarantee was forgotten, either accidentally or deliberately, by the agency that was intended to implement it – then the Commonwealth Bank, and now the Reserve Bank of Australia – even though the provisions passed in 1945 remain in substance today.

This episode is more than an historical curiosity. It tells us some interesting things about the fallibility of government, the need for careful, clear legislative drafting, and (possibly) the dangers of independent agencies disagreeing with parliament.

The guarantee emerges

Banking was largely unregulated in Australia before the Great Depression. The 1937 Royal Commission on Monetary and Banking Systems was the first time the Commonwealth seriously considered how the government ought to respond if a bank failed under its watch.

The Royal Commission recommended that illiquid or insolvent banks ought to be taken over by the Commonwealth Bank, which was being reconstituted as a warts-and-all central bank. If the bank was merely illiquid, then the Commonwealth Bank should try to revive it. One possible action might be to temporarily guarantee the stricken bank’s deposits. But if the bank was truly insolvent, the Royal Commission recommended it then be liquidated and the Commonwealth Bank ought to “announce its estimate of the amount which the depositors may expect to receive”.

In 1938 the conservative Lyons government translated this recommendation faithfully into legislation, however political turmoil prevented the bill from passing. The Curtin government introduced banking controls through national security regulation in 1941, although did not immediately consider the question of failed banks. Concerned these regulations would expire at the end of the war, John Curtin and his Treasurer Ben Chifley turned their mind to a new Banking Act at the end of 1944.

It is clear from cabinet papers and the Commonwealth Bank’s archives that the Curtin government had a drastically different idea of the government’s responsibility to depositors. Advocates for the new Banking Bill in cabinet told the assembled ministers that the government would offer depositors a “guarantee against loss which would be incorporated into the Banking Act”.

The cabinet debated the consequences of this guarantee – including how it might undermine the competitive advantage of the Commonwealth Bank’s deposit services – but finally agreed that “the depositors shall be guaranteed the security of their deposits”.

This shocked Commonwealth Bank officials, who, when informed of the Curtin government’s intention in late January 1945, realised that if they took over a bank whose assets were less than its liabilities, it might have to backstop depositors’ funds out of its own pocket. The post-war regulatory apparatus of prudential supervision – the system of inspections and controls over private banks – came from the demands of the Commonwealth Bank in response to its new responsibility for depositors’ funds.

Yet in practice the legislation was deeply ambiguous as to the Commonwealth Bank’s responsibility for deposits in failed banks. The only difference between the Lyons government legislation and the Curtin government’s legislation was the heading of the provision and marginal notes, which changed from “provisions with respect to Banks unable to meet their obligations” to “protection of depositors”, and from “supply of information” to “Commonwealth Bank to safeguard depositors”.

Nevertheless Labor members claimed throughout the parliamentary debate over the Banking Bill that it offered “real and an effective guarantee of the safety of bank deposits”. Cabinet, the Commonwealth Bank, and parliament believed that it had introduced a deposit guarantee in 1945.

The guarantee disappears

Indeed, the idea that the Curtin government had guaranteed the banks remained Labor lore for decades. In 1973, Gough Whitlam told parliament:

“No bank registered under Australian Parliament legislation can go bankrupt. In return for that guarantee against loss, banks pursue a lending policy which the government of the day approves”.

The relevant provision in the Banking Act did not change, yet by the mid-1980s the Reserve Bank was explicitly denying any deposit guarantee existed.

So what happened? The Commonwealth Bank might have just forgotten about the guarantee. Central banks are human institutions, and to be fair the legislation on the page is deeply ambiguous. A more concerning explanation is that the Commonwealth Bank might have deliberately forgotten about the guarantee – contrary to the intention of parliament – given how unhappy it was with its introduction.

Until the global financial crisis, academics and commentators used to bemoan the stubborn belief held by the public that bank deposits were guaranteed by the government, apparently contrary to Australian law.

But rather than demonstrating the ignorance of the public, the story of the 1945 deposit guarantee reveals more the fallibility of government, as the Commonwealth government either accidentally or intentionally forgot its own policy.