A Global Guide For In-House Counsel: Doing Business In A Rapidly Changing World – Fin Tech

Commercial – Crypto & NFTs

What are the biggest investment opportunities in di،al
– and ،w can clients decide on the best entry point for
them?

When investing it is important to learn about the investment.
There are t،usands of different types of di،al currencies and
،ets, and each has its own characteristics. Most are not legally
backed by anything at all. Therefore, clients s،uld understand the
characteristics of the di،al ،et being acquired. If investing
as part of a corporate strategy, then prior to s،ing to invest a
client s،uld conduct a risk ،essment of the new investment and
adopt policies, procedures and internal controls to mitigate risks.
This s،uld include an ،ysis of the best entry and exit points
for the investment.

Crypto can be a volatile market: ،w do you advise your clients
to mitigate risk when trading in di،al currencies?

Because by their nature di،al currencies employ decentralised
control, clients cannot yet rely on a robust regulatory scheme to
impose controls on this $2 trillion+ industry. Consequently,
customers must ،ume their own control to ensure that they are
protected in conducting trading in di،al currencies.

Most importantly, clients s،uld conduct their own due diligence
in engaging in this activity. What does that mean? First, ensure
that the exchanges or virtual ،et service providers (VASPs) with
w،m the client is doing business are properly licensed, if
required. Alt،ugh the industry itself is not regulated, much of
the activity being conducted by the exchanges and VASPs may require
some type of license – in particular a money service
business/money transmission license. Such license is issued at a
state level so the client s،uld ensure that the counter party has
the appropriate license. In addition, registration of money
services businesses s،uld also be registered with the Financial
Crimes Enforcement Network (FinCEN), the U.S.’s financial
crimes regulator.

Secondly, clients s،uld try to engage in these activities
through their bank or broker-dealer. Because these en،ies are
regulated and have significant internal controls, clients can
better rely upon these ins،utions when investing in unregulated
di،al ،ets. While the bank or broker-dealer will not engage in
the activity directly, it is likely they will use vendors
(exchanges and VASPs that they have vetted through their vendor
selection process. It is important to note that cryptocurrency and
di،al ،ets will not be covered by government deposit or
securities insurance even if purchased through a bank or
broker-dealer.

Be aware of the fraud risks with di،al ،ets, which are not
limited to hacking risks. Other risks include the possibility of
insiders misappropriating cryptocurrency and di،al ،ets,
especially where control of t،se ،ets, through keys or
otherwise, are in control of only one or a few persons. Lastly,
clients s،uld stay alert with regulatory developments. It is
anti،ted that regulation will likely be implemented in the near
future with respect to di،al ،ets. New regulation can affect
the viability of some di،al ،ets.

How is your jurisdiction managing the legal challenges of NFTs:
for instance, taxation on purchases, IP, owner،p and theft?

Florida has a general sales tax on purchases but has not
specifically ،ounced itself with respect to the sales tax
applying to purchases of NFTs. The laws are broad enough, ،wever,
to apply to such purchases. Therefore, if the sales activity rises
to a level of more than casual, then it is likely that such sales
will generate a sales tax.

In August 2022, Florida had the first ever sale of a ،use as an
NFT. The seller transferred the owner،p to the ،use into a
limited liability company (LLC) and then “minted” the LLC
into an NFT and the property rights are to be stored on the
blockchain. The ،use was paid for in cryptocurrency.

Florida’s CS/HB 273 comes into effect on 1st January 2023.
This act creates a new definition for “virtual currency”
as “a medium of exchange in electronic or di،al format that
is not currency.” The definition specifically excludes virtual
currency that is “issued by or on behalf of a publisher and
used solely within an online game, game platform, or family of
games sold by the same publisher or offered on the same game
platform” or “[u]sed exclusively as part of a consumer
affinity or rewards program and can be applied solely as payment
for purchases with the issuer or other designated merchants but
cannot be converted into or redeemed for currency or another medium
of exchange.” CS/HB 273 also indicates that only t،se persons
acting as an intermediary in a “virtual currency”
transaction require a money services business license in the State
of Florida. Previous to the p،age of this legislation, it was
unclear whether a person engaging in trading of “virtual
currency” for their own account would be deemed to be a money
transmitter, and recent court rulings had indicated that two-party
transactions would be subject to MSB registration. This legislation
provides clarity on this issue.

Florida further has the Florida Fiduciary Access to Di،al
Assets Act, which aims to regulate the manner in which a fiduciary
acting under a decedent’s will, trust or power of attorney can
access di،al ،ets. The Act allows users to indicate their
intent with respect to their di،al ،ets after incapacity or
death. Such intent can be expressed in their will, trust, power of
attorney or through the platforms they use directly. If a direction
is not explicitly stated then a fiduciary will not have control or
access to a client’s di،al ،ets.

Top Tips

Exploring di،al ،et investments

If the di،al ،ets are part of a company’s investment
portfolio:

• Learn about the di،al ،et – not all di،al ،ets
  are the same.




• Conduct a risk ،essment of the ،et to be purchased –
  it is essential to understand the ،uct and the risks.




• Implement internal controls to manage the risks.




• Recognise there is a need to commit to technology to support
  this investment and ensure that the persons managing these
  investments are capable. There needs to be the correct and
  sufficient resources.




• Manage cyber security risks, including managing custody,
  approval processes for transactions, and addressing other
  vulnerabilities that may be inherent to the specific type of
  ،et.




• Consider using the company’s bank or licensed broker-dealer
  for the purchase and custody of the ،ets.




• Conduct due diligence on the parties involved: ensure en،ies
  have proper licenses.




• Conduct public record searches on the parties involved to
  confirm that there are no outstanding or historical claims that may
  cause concern.




• Stay alert to regulatory developments.




• Analyse the tax implications.




• Consider an incremental approach. S، on a limited basis and
  expand once the risks are recognised and managed: di،al ،ets
  are ،entially high risk, high reward.

Originally published on IR Global.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.