FTX Founder Fred Bankman received Sam Bankman Formal criminal charges After the collapse of the cryptocurrency exchange, which is more than just a moral victory for nearly a million individual investors on the exchange. Although not yet tied up, things seem to be on track for these investors to take a more favorable tax stance as the SBF’s fate continues to unravel.
What types of losses can FTX investors claim on their taxes?
Earlier this fall, it appeared that assets lost in the FTX crash would be considered a capital loss under US tax law for the 2022 tax year. This capital loss could be used to offset capital gains. But in a year when the cryptocurrency market as a whole took a beating, most investors won’t get a capital gain to make up for it in 2022.
A capital loss can also be used to offset “ordinary income,” such as money gained from a business or job—up to $3,000 per year. The loss is carried forward indefinitely, but if your loss in the FTX crash was significant, it may take some time to claim it all.
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The most favorable scenario for many investors is to claim the theft loss deduction, which can match ordinary income without any limit. A theft loss claim is usually a somewhat difficult task that can attract scrutiny from the Internal Revenue Service. But the theft loss tax law contains a “safe haven” for Ponzi schemes. For the most part, if the investor is able to prove a loss in the Ponzi scheme, the IRS will not require additional documentation.
Was FTX a Ponzi Scheme?
Since the investors’ assets were illegally transferred to Alameda Research, SBF’s hedge fund, it seems likely that the IRS will eventually view FTX as a Ponzi scheme. To activate Safe Harbor, a fraud charge must match this description in the tax for the FTX company or its “principal number” in the SBF guidance:
“A specific fraudulent arrangement is an arrangement in which a party (the principal number) receives cash or property from investors; claims to earn income for the investors; reports the income to the fictitious investors in part or in whole; makes payments, if any, of the purported income or principal to certain investors of amounts invested by other investors in the fraudulent arrangement; and appropriating some or all of the investors’ money or property.”
The charges brought by the SEC against SBF focus on stock investors, not retail investors. But the SEC specifically refers to “the undisclosed transfer of FTX clients’ funds to Alameda Research.” While it’s not an official green light for safe harbor, it’s very close — closer than we expected to see in 2022.
Outside of the criminal charges, a criminal complaint with a confession also activates a safe haven Ponzi scheme. While he was very vocal after the collapse of FTX, he introduced SBF There is no indication that he intends to admit anything.
What should FTX investors and their tax experts do?
With the individual tax filing deadline on April 18, 2023, investors who have lost their assets in FTX have some time to see how that plays out. It seems very likely that the SEC will file additional charges against SBF or FTX that would remove any doubt about the safe haven Ponzi scheme.
The IRS may also influence whether current fees are sufficient to operate Safe Harbor, hopefully 2022 being the year to take it. Theft loss can also be claimed in a future year, but most FTX investors will probably be keen to recoup some of their losses by offsetting the income on their taxes as soon as possible.
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For investors who have lost their assets in FTX, planning for a capital loss claim at this point is probably unwise. Even if, by some miracle, the investor has a capital gain to make up for in 2022, the tax rate on ordinary income is much higher. The only scenario where this might make sense is if the individual does not have a normal income but does have a capital gain in 2022.
basis for comparison
In both scenarios – a loss of principal or a safe harbor for a Ponzi scheme – it is important to note that the amount of loss allowed is the cost basis of the asset. Assuming the value you were able to extract from your FTX after the crash is zero, you can claim the full amount you originally paid for the asset.
From the IRS’s point of view, your loss in theft includes not only the total cost basis you paid – you also get a payment factor for the income you paid taxes on. If you made trades on the stock exchange or had an income stream and found income for it on previous tax returns, and didn’t withdraw from the stock exchange before the crash, you can account for that in knowing your cost basis. A certified public accountant and/or coin trading software would likely be helpful here.
For some investors, the basis is likely to be more than the value of the asset when the FTX caught fire – it probably was a bit more. This might be a bit of a silver lining here. And while it looks like investors will have to wait until 2023 to see if charges are filed in this matter, the SEC appears to have handed them an early Christmas gift.
Justin Wilcox Partner at Connecticut accounting and advisory firm Fiondella, Milone & LaSaracina. He established the firm’s cryptocurrency practice in 2018, providing tax and advisory services to Web3 organizations and cryptocurrency investors. Mining and trading cryptocurrency.
This article is for general information purposes and is not intended and should not be considered legal or investment advice. The views, ideas and opinions expressed herein are those of the author alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.