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Crypto Losses Are Not All Alike

Nov 21, 2022

With the Crypto Winter as well as recent bankruptcies of various exchanges, taxpayers want to know how to best report their losses for tax purposes. There is no simple answer, and the proper tax reporting will depend on how the loss was incurred. Below, in a Q&A format, are some scenarios and possible tax reporting positions.

  1. The value of my holdings went down substantially due to market conditions but they are still tradeable. Can I take a deduction for the diminution in value without selling the coins so as to avoid trading costs? A. No. While for GAAP accounting purposes declines in market value are expensed on the financial statements, for tax purposes there must be a sale. But the good news is that digital assets currently are not subject to the ”wash sale” rules that securities are subject to, so if you still want to keep the investment, you can buy it back immediately and “harvest” a tax loss.
  2. Does the loss realized include the highest fair market value of the digital asset (“DA”) less the selling price or is it limited to the actual cost of the DA? A. The loss is limited to actual cost. So if your cost was $1,000, the DA became worth $10,000, and now its worth only $500, your true deductible loss on sale is $500, not $9,500.
  3. The exchange I entrusted to hold my DA is frozen and is the process of being liquidated. Meanwhile, I don’t have access to my DA but they have declined substantially in value and are still traded on other exchanges. Can I take a loss for the decline in my cost basis? A. Likely not as they are still traded on other exchanges and the fact that they are locked into the frozen exchange does not allow you to create a completed transaction to take your loss. You may have to wait till the liquidation finalizes and the DA is tradeable again to calculate your loss.
  4. I loaned my DA to a Defi exchange to stake or lend onwards and now the DA have become worthless and are no longer tradeable. Can I take a tax loss on the loan? A. You may be able to take a non-business bad debt deduction for the loan which is treated as a short-term capital loss. Such a loss is deductible against ordinary income to a limit of $3,000 per year but deductible against other capital gains to no limit. Any carryover of loss is carried over forever until used. These rules are complex and your specific facts would need to be addressed.
  5. I placed my DA into an exchange, and they became worthless just based on market conditions. They are no longer trading. Can I take a “worthless” security deduction for the loss? A. DA are treated like property for tax purposes, not like securities. As such, they have to be “sold or exchanged” to trigger the loss, unlike securities where a “worthless” designation would allow the loss.
  6. The exchange I used to hold my DA closed due to a “hack” of its assets. It is in liquidation, and I may have to wait several years to recoup a fraction of my investment. Can I deduct my loss as a theft/casualty loss? A. This is a controversial area. If it is a casualty or theft loss that triggered the closing of the exchange, the Internal Revenue Code does not allow such losses presently under a law that is effective through 2025. If the previous law, allowing theft losses, becomes law again as scheduled, and that is when the loss is crystallized, you should be able to take the loss then.
  7. When the Madoff Ponzi scheme was discovered, the IRS issued several Revenue Procedures in 2009 allowing for ordinary losses to be taken at varying percentages depending on certain factors. Why wouldn’t the current bankruptcies or “hacks” qualify for similar treatment? A. The Madoff theft losses were direct losses by investors who had placed money with him, which he embezzled. Also, theft losses were allowed as ordinary deductions at the time. Present “hacks” of an exchange where individual DAs are stolen would seem to qualify for a direct theft but theft losses are not currently deductible at all until the present law sunsets in 2025. Also, if general embezzlement or theft of an exchange’s assets lead to its demise for lack of capital but there is not a direct link to the theft of assets of an individual, that is not considered a “theft” loss. These rules are complicated and each set of facts must be examined to determine what tax law might apply to allow some current tax loss.

Please note that this Q&A is focused on federal tax law implications, State tax law implications may be different. Please consult your tax advisor.

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Murray Alter

Murray Alter is a Tax Partner specializing in investment partnerships, venture capital funds, hedge funds, distressed debt funds, funds of funds, and the ancillary entities associated with these types of investments.

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