Crypto staking rewards and their unfair taxation in the US

The United States Internal Revenue Service (IRS) stretches the tax rules to fit its cryptocurrency agenda. At no time in tax history has pure creation been a taxable event. Yet, the IRS seeks to tax new tokens as income at the time they are created. This is an infringement on traditional tax principles and problematic for several reasons.

In 2014, the IRS stated in an FAQ within IRS Notice 2014-21 that mining activities would result in taxable gross income. It is important to note that IRS notices are mere guidances and are not the law. The IRS concluded that mining is a trade or business and the fair market value of the mined coins are immediately taxed as ordinary income and subject to self-employment tax (an additional 15.3%). However, this guidance is limited to proof-of-work (PoW) miners and was only issued in 2014 — long before staking became mainstream. Its applicability to staking is especially misguided and inapplicable.

A newly filed lawsuit now underway in federal court in Tennessee challenges the IRS’s taxation of staking rewards at their creation. Plaintiff Joshua Jarrett engaged in staking on the Tezos blockchain — staking his Tezos (XNZ) and contributing his computing power. New blocks were created on the Tezos blockchain and resulted in newly created Tezos for Jarrett. The IRS taxed Jarrett’s newly created tokens as taxable gross income based on the fair market value of the new Tezos tokens. Jarrett’s attorneys correctly pointed out that newly created property is not a taxable event. That is, new property (here, the newly created Tezos tokens) is only taxable when it is sold or exchanged. Jarrett has the support of the Proof of Stake Alliance, and the IRS has yet to answer the Jarrett complaint.

A taxable income

In the history of the United States income tax, newly created property has never been taxable income. If a baker bakes a cake, it is not taxed when it comes out of the oven, it is taxed when sold at the bakery. When a farmer plants a new crop, it is not taxed when harvested, it is taxed when sold at the market. And when a painter paints a new portrait, it is not taxed when completed, it is taxed when sold at a gallery. The same holds true for newly created tokens. At creation, they are not taxed and should only be taxed when sold or exchanged.

Cryptocurrency is new and there are a lot of evolving terminologies that go along with it. While calling newly created token blocks “rewards” is commonplace, it’s a misnomer and could be misleading. Calling something a reward suggests that someone else is paying for it and makes it sound a lot like taxable income. In actuality, no one is paying a new token to a staker — it’s new. Instead, staking produces truly new-created property.

Some suggest that new tokens are taxable (at creation) because there is an established market where value is immediately quantifiable. Said differently, they argue that the baker’s cake is not taxable upon creation because there is no established market price that determines what the cake is worth. It is true that Tezos tokens have an immediate market value, but even this fact should be put into context: Prices can vary across marketplaces and not all markets are accessible to everyone. But the existence of a market price is often true about new property — and not just for standardized or commodity products. If the standard is whether an identifiable market value exists, then other newly created property would indeed be taxable, including unique property. When Andy Warhol completed a painting, there was a market value for his artwork; it had value with every stroke of his brush. Yet, his paintings were not taxed upon creation. Newly created property — in any context — has never been taxable, not because its value might be uncertain, but because it isn’t income yet. Cryptocurrency should be treated…