How Bankruptcy Courts Will Treat Cases Involving Cryptocurrency Exchanges

Some cryptocurrencies function like currency. Some serve as an investment for speculators. Other cryptocurrencies are used like stocks or bonds, such as when an entity wishes to sell an interest in its enterprise through an initial coin offering or "ICO." Still others are referred to as "utility coins" and can be exchanged for specific goods or services, usually from the issuer.

In different legal contexts cryptocurrencies have been treated like currencies, securities, property or commodities. The Internal Revenue Service treats cryptocurrency as property (IRS Notice 2014-21). FinCEN treats cryptocurrency like government-issued currency (see, Application of FinCEN's Regulations to Persons Administering, Exchanging or Using Virtual Currencies (March 18, 2013)). One court has treated cryptocurrency as a commodity and subject to U.S. Commodity Trading Futures Commission (CFTC) regulations (see, CFTC v. McDonnell, 287 F.Supp. 3d 213, 228 (E.D.N.Y. 2018)), and another, in response to a motion to dismiss an indictment, recognized that a finder of fact could conclude that the cryptocurrency at issue was a security and the subject of securities fraud (see, U.S. v. Zaslavskiy, 2018 WL 4346339 (E.D.N.Y. 2018). One commentator has concluded that under the U.C.C., cryptocurrency is not money but a general intangible and, in some circumstances, an uncertificated security. See, Schroeder, Bitcoin and the Uniform Commercial Code, 24 U. of Miami L. Rev. 1, 22 (2016) (http://bit.ly/2Hs60QW). For an overall discussion, see, "Is Bitcoin a Currency, Security, Property, Commodity, or 'Mirage?'"