Category: Guest Article of the Month

Sales and trading of nonfungible tokens (NFTs) are soaring recently. With the emergence of major marketplace platforms such as Opensea, NFTs are no longer an obscure segment of the blockchain technology world. Even old guard auction houses such as Sotheby’s are getting in on the action. In early September, the auction house facilitated the sale of a set of “Bored Apes” NFTs that sold for more than $24.4 million.

While the emerging space of NFTs is full of excitement, risk and opportunity, there’s the boring tax side of the equation. Unlike most other forms of assets or income, creating, trading and investing in NFTs can trigger a tax event.  

Creators

NFTs are classified as “self-created intangibles” like other works of art. The IRS allows the artist to deduct the expenses of creating the NFT immediately – even if the artwork is not sold. As a result, the creator typically has zero “basis” in their work. This mean when they do sell their work, they’ll have no deductions, so a $100,000 sale means $100,000 of taxable income.

There is little formal guidance, but general principles indicate that NFTs are their creator’s inventory instead of a capital asset. This means that this income is treated as ordinary income and not capital gains – and it is subject to self-employment taxes as well.

Lastly, with certain NFTs, while the NFT itself is a unique blockchain token, the creator might retain copyright to whatever underlying artwork was used to make the NFT. Here, the creator may sell multiple NFTs based on the same original artwork as limited-edition, signed reprints. When the copyright is retained and copies are sold, the income is considered a royalty.

Traders and Investors

Trading NFTs is not as simple as trading stocks.

NFTs are purchased with cryptocurrency (most commonly Ethereum). Since the IRS treats cryptocurrency as property instead of currency, the purchase itself creates a taxable event. Swapping your Ethereum for an NFT means you’ll have to pay tax on any gain you have in your Ethereum position between its value at acquisition and the moment of using it to acquire the NFT.

Second, taxpayers will trigger a taxable event when they sell the NFT, thereby subject to capital gains taxes on the sale of the NFT at the 28 percent collectibles rate.

Conclusion

NFTs offer fantastic opportunities at tremendous risk. As a result, there will be winners and losers, but one thing is certain: the IRS should love NFTs for the taxes.

Senate rules and procedures have a major impact on how tax laws are drafted and amended, especially when it comes to those related to the budget reconciliation process.

Budget reconciliation is a separate Senate procedure established by the Congressional Budget Act (CBA) of 1974. The main differentiator is that the reconciliation process changes the vote threshold to a simple majority of 50 instead of 60, essentially negating the filibuster.

Not every bill can be taken up under this process, though – including tax provisions. There are guidelines that govern what tax provisions can be included in laws passed using the budget reconciliation process in the form of both rules and precedent.

Impact of the Act

The CBA may help expedite passing new tax legislation, but there are drawbacks and limitations. For example, administrative provisions are often a very important aspect of the policy objective behind tax laws, but using the reconciliation process strips out these measures since it prohibits “extraneous matters.” All an opposing senator needs to do is make a point of order; if it is sustained by the committee chair, then the material deemed extraneous is removed from the bill.

In addition to the removal of extraneous material, there is a prohibition on out-year deficit effects. This means that tax provisions that pass as part of a reconciliation package are often temporary and given expiration dates.

The Role of Precedent

The precedents of the Senate are often just as important as the rules themselves. Senate rules are often vague, but the practices of the Senate regarding these rules are well developed, effectively becoming the rules themselves.

The most important procedural rules can be found in a publication called Riddick’s Senate Procedure. These Senate rules and precedents are not automatic, however. The system relies on senators to raise a point of order to challenge a possible violation of the rules.

Conclusion

The budget reconciliation process makes passage of the bill more efficient for the majority party, but it comes with certain drawbacks by design. The intent is to make sure that the powers are not too broad and cannot be abused by the majority party.