Bitcoin – currency, the equivalent of U.S. dollars, or a commodity more similar to a product or stock? (What is Bitcoin?). If a Trustee sues to avoid and recover a transfer of Bitcoin, is the claim amount for the value of the transfer at the time of the transfer, or increased (or decreased) value at the time of the proceeding? That is the question in the adversary proceeding of Hashfast Technologies, LLC v. Lowe, Adv. Proc. No. 15-03011 (Bankr. N.D. Ca. filed February 17, 2015).
According to the Complaint, the Debtors “design, develop, manufacture and sell certain computer chips and equipment, including Application Specific Integrated Circuit, or ASIC, semiconductors, for the sole purpose of auditing transaction data for the Bitcoin networks, also known as ‘Bitcoin mining.‘” Defendant Lowe, a medical doctor, purchased “four terra-hash per second of hashing power through the acquisition of eight GN1 chips or three to four fully assembled BabyJets (the “Computers”) for the sum of $36,000, inclusive of sales tax—a $7,150 discount off of the list price (the ‘Sale’). The Defendant paid the discounted purchase price for the Computers by personal check dated July 29, 2013.‘” Defendant also agreed to promote the Debtors’ products on online forums (including bitcointalk.org) in exchange for 10% of the gross sale proceeds of the first 550 “BabyJets” sold by the Debtors, payable in Bitcoin (“BTC”). At the time, the BabyJets sold for $5,600, or 56 BTC.
Defendant ultimately posted 160 posts on the forums (many of which were allegedly useless “trolling”), Debtors pre-sold 550 BabyJets, and Defendant claimed he was owed $308,000 BTC based on the August 8, 2013 exchange rate. Debtors subsequently made three transfers of BTC, totalling 3000 BTC, to Defendant’s “virtual wallet” in September 2013. At the time, the transfers were worth $363,861.43 based on exchange rates. This was certainly a good return for Defendant’s “efforts.” Soon thereafter, Debtors were unable to deliver on the BabyJet units and issued refunds and 5% “bonuses” (via U.S. currency) to Defendant and other customers. After involuntary petitions and orders for relief, and an auction of assets, the Liquidating Trustee filed the adversary proceeding against Defendant alleging preferential transfer (for the refund) and fraudulent transfers (for the BTC commissions).
The Trustee alleged the BTC transfers were fraudulent conveyances because the services provided by Defendant (the 160 forum posts) were “less than reasonably equivalent value” for the more than $350,000 in BTC he received in exchange. The Complaint also alleges, importantly, that Defendant still holds the BTC in his “wallet.” The issue in the summary judgment pleadings is whether BTC is to be treated as currency or a commodity. The distinction is important because the 3,000 BTC increased in value from $363,861.43 at the time of the transfers to approximately $1.3 million as of January 2016. Should the Trustee prevail, would he be entitled to judgment for $363,861.43 or to the BTC worth $1.3 million? Not surprisingly, the Trustee argued in his summary judgment brief (click here for the brief) that Bitcoin are a commodity that fluctuate in price and pursuant to 11 U.S.C. §550 the Court can order the recovery of the property or current value of such property.
In this instance, it is true that bitcoin are described as a “virtual currency” and, in certain circumstances (illicit or otherwise), are accepted as a medium of exchange. Nonetheless, in practice, bitcoin operate as something other than mere currency. Bitcoin are a commodity, like gold, silver or pork bellies, that fluctuates in price based upon market conditions. This is the position of the U.S. Commodity Futures Trading Commission (“CFTC”), which recently issued an order finding that bitcoin are a commodity covered by the Commodity Exchange Act. The Internal Revenue Service (“IRS”) likewise has issued a formal notice stating that bitcoin are property, not currency, with the result that taxes must be paid on gains arising from the sale of bitcoin.
Conversely, the Defendant argues that liability would be limited to the value of the BTC at the time, as if it were currency (click here for Defendant’s response in opposition).
Starting from the beginning, the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued the first federal guidance covering bitcoins. In March 2013, FinCEN stated that virtual currencies, like bitcoin, are to be regulated the same as currency for the purposes of the Bank Secrecy Act and FinCEN regulations… Importantly, in doing so, FinCEN noted that the difference between virtual currency, like bitcoin, and “real” currency was essentially the fact that virtual currency is not issued by a sovereign government… In most other ways, FinCEN noted, virtual currency behaves the same as currency… The SEC has also staked out a position that supports Dr. Lowe. Soon after the FinCEN guidance was issued, in August 2013, the SEC successfully argued in a court in Texas that bitcoin should be considered money. Sec. & Exch. Comm’n v. Shavers, No. 2013 WL 4028182, at *1 (E.D.Tex. Aug. 6, 2013)… The SEC’s position is (and the district court so held) that when someone pays with bitcoin, they pay with currency for the purposes of SEC regulations, because, bitcoin’s purpose and the way it is utilized in the marketplace is as a currency…
In addition to the Treasury Department and SEC, the Consumer Financial Protection Bureau (“CFPB”) issued guidance in August 2014 that defines bitcoin (and other virtual currencies) as “a kind of electronic money.” … The Treasury Department, the SEC, and the CFPB’s position reflect the reality that bitcoin can and is spent and used like any other currency. Indeed, over 100,000 merchants accept bitcoin for payment, including Expedia and Overstock.com , and the list keeps growing.
The Court held a hearing on the limited summary judgment issue on February 19, 2016. The audio of the hearing is available by .mp3 attachment to .pdf or by clicking the .mp3 file below. As a bonus, the Judge and parties compare the value of Bitcoin to the fluctuating value of Golden State Warriors season tickets over the years.
The Court ruled on the Motion by Order entered on February 23, 2016. In a short and sweet Order, Judge Montali stated:
The court does not need to decide whether bitcoin are currency or commodities for purposes of the fraudulent transfer provisions of the bankruptcy code. Rather, it is sufficient to determine that, despite defendant’s arguments to the contrary, bitcoin are not United States dollars. If and when the Liquidating Trustee prevails and avoids the subject transfer of bitcoin to defendant, the court will decide whether, under 11 U.S.C. § 550(a), he may recover the bitcoin (property) transferred or their value, and if the latter, valued as of what date.
This essentially leaves the issue open for now, other than the Judge holding that Bitcoin are not U.S. Dollars. It seems to indicate that the Judge would consider BTC a commodity or personal property, and allow the Trustee to recover the property or value. Should BTC be considered the equivalent of Euros or other foreign currency? If it is not currency or cash, does it not have to be a commodity or personal property? The next question is the appropriate date on which value is determined pursuant to §550. If the Defendant still has the BTC, is the outcome different than if he had converted the BTC to U.S. currency and held the funds in an account?
On the other hand, what is the appropriate amount of a claim against the Debtors’ estates for creditors whose claims are based on BTC? Does the Code have to be consistent with the valuation of Bitcoin? Assuming these forms of “currency” are here to stay, these and other questions will have to be answered.
Scott Riddle’s practice focuses on bankruptcy and litigation. Scott has represented Chapter 7 and 11 debtors, creditors, creditor committees, trustees, court-appointed receivers and other interested parties in bankruptcy cases and bankruptcy litigation. For more information, click here.