Autor Cointelegraph By J.W. Verret

My story of telling the SEC ‘I told you so’ on FTX

“I hate to say I told you so” is a phrase oft-repeated but rarely sincere. It’s a delightful feeling to claim credit for warning about a problem in advance. That’s a liberty I’m taking with federal financial regulators at the United States Securities and Exchange Commission.In January of this year, while serving as a member of the SEC Investor Advisory Committee that advises SEC Chairman Gary Gensler on crypto and other matters, I filed a petition with the SEC. I asked them to open a formal public comment about unique issues presented by crypto and other digital assets. I pointed to crypto custody and intermediary conflicts of interest as key issues the SEC should address. I called this fresh start a “Digital Asset Regulation Genesis Block” that would help the SEC improve crypto regulation. The SEC aggressively ignored me.Upon my term ending on the SEC’s advisory committee last week, I took the chance to give Chair Gensler some strong words about his abuse of digital assets. Check out Gensler’s response. pic.twitter.com/3oa5xJU1Ch— J.W. Verret, JD, CPA/CVA (@JWVerret) March 15, 2022The SEC and U.S. bank regulators’ failure to adapt rules to crypto intermediaries didn’t directly cause the blowup at FTX. Yet their failure to create working rules for U.S. crypto intermediary exchanges to custody crypto has enabled an environment where scammers like Sam Bankman-Fried could thrive overseas.Let’s start with the basics. The point of crypto is not to have a new product trade within the traditional financial system. Crypto is a revolution in finance that empowers asset owners. The point is individuals get the same control over their assets that Goldman Sachs partners enjoy over their assets as they transfer, lend and exchange crypto in a decentralized financial system.Related: Federal regulators are preparing to pass judgment on EthereumDoing that right is an awesome responsibility for new users. It requires knowing something about the smart contract code you’re interacting with, familiarity with cold storage wallets and basic operational security for encryption keys. The full revolution will take time. The revolution will not be brought to you by JPMorgan (so, don’t buy the JPMorgan Coin). Yet most new users will initially enter crypto through custodial intermediaries that look a bit like traditional financial intermediaries. Intermediaries that custody crypto for newbie retail users need a rule book to protect customers from conflicts of interest and custody shell games — i.e., the FTX/Alameda playbook. Yet the cookie-cutter application of rules promulgated for paper stock holdings under 1933 and 1934 statutes just won’t cut it.Federal bank and securities regulators have created artificial frictions for banks and brokers trying to custody crypto assets under existing rules. On the other hand, they insist that federal regulation is essential to protect customers. While crypto exchanges navigated between that rock and hard place created by U.S. regulators, the FTX fraud thrived overseas.Crypto exchanges need intelligently designed custody rules. While that would not have solved the problems at FTX’s overseas exchange, it would have helped more international retail activity flow into the U.S. instead. Efforts by existing crypto exchanges to get clarity from the SEC about crypto custody have hit a brick wall. States such as Wyoming developed a path for bank custody of crypto, but the Fed refuses to give those banks access to Fed master accounts.Related: 5 reasons 2023 will be a tough year for global marketsThe Federal Deposit Insurance Corporation informed banks that any efforts to custody crypto will require the bank to explain themselves to their bank examiners. That’s regulator-speak for “don’t touch it.” Many crypto exchange lawyers tell a similar story about applying to the SEC for an alternative trading system license that was slow-walked to death.We will soon hear regulators complain that if only they had a little more power, and a little more funding, they could protect customers from crypto. That style of illusionist misdirection is no different from Bankman-Fried dodging diligence requests from investors.Keep your eye on my lovely assistant (not what’s under the table).Crypto needs protection from the regulators. Innovators in crypto are developing solutions like multisignature wallets and Merkel tree root-based reserve proofing that are light years ahead of customer protections in traditional banking and exchange custody. The fact that Bankman-Fried did not use them does not mean they’re not real.If the SEC and bank regulators want to be part of the solution, rather than part of the problem, they should do two things. First, start the Digital Asset Regulation Genesis Block process across agencies. Then, when securities and banking lawyers for crypto intermediaries knock on the door with good ideas for how to comply with adapted rules, listen.J.W. Verret is an associate professor at the George Mason Law School. He is a practicing crypto forensic accountant and also practices securities law at Lawrence Law LLC. He is a member of the Financial Accounting Standards Board’s Advisory Council and a former member of the SEC Investor Advisory Committee. He also leads the Crypto Freedom Lab, a think tank fighting for policy change to preserve freedom and privacy for crypto developers and users.This article is for general information purposes and is not intended to be and should not be taken as legal or investment advice. The views, thoughts, and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

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Crypto notches a win among professional accountants

In his regular column, J.W. Verret, a law professor, attorney, CPA, and head of the Crypto Freedom Lab covers law and regulation of cryptocurrency with a focus on decentralized finance (DeFi) and financial privacy.Institutional adoption is an exciting yet frustrating topic in crypto. The true modern-day crypto inheritors of the 90s cypherpunk legacy have a vision for crypto as human empowerment through decentralization. That vision includes breaking down the intermediaries that charge rents and threaten human freedom and privacy. On the other hand, Crypto Twitter becomes abuzz when a large financial institution makes new moves into crypto.Dogecoin (DOGE) mooned on the hopes that Elon Musk would use Twitter to help the cryptocurrency’s adoption. The cognitive dissonance extends to the institutions themselves, as banks start crypto projects without considering how a crypto payment system built on the Bitcoin Lightning Network or an Ethereum layer 2 is intended to make that very bank obsolete.Those broader philosophical questions aside, the United States-based Financial Accounting Standards Board, or FASB, instituted a change to accounting standards in October that will help public companies hold digital assets on their balance sheet. For now, that’s good for both institutions and crypto.The old method of accounting for crypto on company books was to account for it as software. It went on the balance sheet at its historical cost and then was written down as a value impairment on every price drop (but not written up again when prices went up). This was a deterrent to public company holdings for anyone but the die-hard Michael Saylors of the world. It’s hard to hold an asset that might remain recorded on your books at the bottomed-out price of the last bear market.Related: Before ETH drops further, set some money aside for surprise taxesThe new rules take a more reasonable approach and implement the same fair value accounting rules that apply to company holdings of publicly traded stock. Crypto covered by the rule will simply be valued at the publicly listed price.This shouldn’t be the end of accounting standard deliberation over crypto, however, and there are still many questions left to consider. For one, stablecoins backed by other assets are not included in the new accounting methodology.Many public companies that are willing to accept crypto from customers do so to humor the customer and immediately convert that crypto into fiat dollars. That may not always be the case, and if companies start using crypto as currency themselves, then inclusion in some kind of new balance sheet quasi-case or digital cash category would be appropriate.Another thing to consider is the differences in asset-backed stablecoins. USD Coin (USDC) is basically just a cash equivalent and would readily fit the standard cash equivalent category in generally accepted accounting principles, or GAAP. Tether (USDT) is a closer case and was historically backed by riskier commercial paper, though that is changing. Maker’s Dai (DAI) is a very different form of stablecoin, partially backed by USDC and partially by other cryptocurrencies. Dai seems like it would need a novel quasi-cash or quasi-currency category. And what about cryptocurrencies such as Bitcoin (BTC) or Ether (ETH) that a company holds for the purposes of using it to pay for things, like cash, and not for investment purposes? Will Bitcoin used as a means of payment be accounted for in a new quasi-currency category, or will it remain in an investment category despite its partial payment use case? While it is designed for payments, it is highly volatile, unlike stablecoins.Related: Biden is hiring 87,000 new IRS agents — and they’re coming for youFair valuation methods will be relatively straightforward to apply to liquid, highly traded currencies like Bitcoin and Ether, which is most of what companies are holding. But as companies start holding and using other types of cryptocurrencies, there will be a wealth of questions to consider. For those digital assets not in actively traded markets, it will be a challenge to apply classic financial valuation models to their valuation. Existing financial valuation methods for assets like stock in public companies may not entirely carry over to cryptocurrencies because of the unique design of the asset class.The FASB should be saluted for its thoughtful adaption of accounting principles to this new technology, an approach the Securities and Exchange Commission and other financial regulators might learn from. The FASB hired crypto-native experts and adapted their rules to the reality of this new technology in a short period of time, ensuring that in the crypto revolution, GAAP is going to make it.Many questions remain in GAAP accounting for crypto. Crypto natives will need to continue to develop their own accounting methods once we decentralize finance. For now, it’s a helpful change to encourage institutional crypto holding.J.W. Verret is an associate professor at the George Mason Law School. He is a practicing crypto forensic accountant and also practices securities law at Lawrence Law LLC. He is a member of the Financial Accounting Standards Board’s Advisory Council and a former member of the SEC Investor Advisory Committee. He also leads the Crypto Freedom Lab, a think tank fighting for policy change to preserve freedom and privacy for crypto developers and users.This article is for general information purposes and is not intended to be and should not be taken as legal or investment advice. The views, thoughts and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

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