The business landscape is continually evolving, with technology being a major catalyst for fostering progress, increasing capabilities, and maintaining a competitive edge.

Among the recent innovations capturing the interest of businesses is the rise of cryptoassets and the blockchain technology that underpins them. Major brands such as Microsoft and Sotheby’s, as well as independent companies from travel agencies to cafés, are increasingly adopting cryptoassets and harnessing their potential, seeking to position themselves to benefit immensely from these distinctive digital assets.

What’s in it for businesses?

One of the main appeals of cryptoassets is the swift and transparent payment transaction mechanism that they provide. In an age where cash payments are on a significant decline, the ability to facilitate fast, transparent and secure payments is appealing to consumers and businesses alike.

Additionally, transactions with crypto often attract fewer charges compared to traditional payment methods. Cryptoassets do not require intermediaries to facilitate transactions and the elimination of these intermediaries like banks and payment gateways in favour of a decentralised verification system (in other words, the blockchain) minimises the costs associated with traditional payment processing. Also, by merit of being exclusively digital, cryptoassets negate the need for physical payment infrastructures such as card machines.

An undeniable upside for businesses adopting cryptocurrency payment is virtually zero risk of chargebacks. With every transaction confirmed and immortalised on the blockchain forming a secure, tamper-proof and transparent record, they cannot be reversed. Consequently, businesses no longer need to wrestle with drawn-out, expensive chargeback processes.

Adopting cryptoassets also offers a broader customer outreach. By bypassing traditional financial institutions, businesses can access the 1.7 billion unbanked population globally, as well as the 1.2 million unbanked individuals in the UK. Allowing for cryptoasset payment also caters to the growing population of cryptoasset enthusiasts,  granting a unique selling proposition amidst a competitive market.

Moreover, due to the borderless nature of cryptoassets, such transactions do not require conventional currency conversions and can be sent to or from anyone in the world with a smart device and internet connection. This makes cryptoassets an ideal form of payment for businesses that wish to expand their operations into new jurisdictions, without the usual friction points involved in optimising cross border payments.

What are the challenges for businesses?

Whilst there are a number of advantages for businesses, integrating cryptoassets as a form of payment is not without its risks. One such risk comes from the fact that cryptoassets are extremely volatile, and it is not unheard of to have massive fluctuations in a cryptoassets value over a relatively small time frame of days and hours. This volatility can present challenges for businesses in being able to predict how much it will generate from cryptoasset payments, and it can also expose the business to losses if the value of its cryptoassets falls. In the same vein, it can also present opportunities for gains if there is an increase in the price action of a cryptoasset.

For example, a retailer may sell an item for 0.035 Bitcoin (BTC), which at the time of writing is around £766. In the days after the sale the value Bitcoin may increase, such that 0.035 BTC is now worth £800. On the flipside, the value of BTC may decrease, such that the 0.035 BTC is now worth £735.

Another challenge is security. Whilst cryptoassets are secured utilising complex cryptographic algorithms, they aren’t invincible against cyberattacks, phishing or fraudulent schemes. Thus, businesses using cryptoassets need to be proactive in establishing robust cybersecurity defences and countermeasure proecdures.

The developing regulatory environment around cryptocurrencies presents another challenge. As the legislative and regulatory landscape is still maturing, businesses adopting cryptoassets as a form of payment may need to comply with unforeseen regulatory requirements and make an effort to stay informed of ongoing developments in this area.

However, with diligent planning and careful strategies, these challenges and risks can be substantially offset and mitigated.

What must businesses consider?

For businesses considering cryptoasset integration, an effective policy and strategy should take into account the specific nature and operation of the business, its goods/services, geographical scope, and clientele. Particular consideration should be given the following points:

• Choice of cryptoassets: Given the plethora of cryptocurrencies available, it is important to consider which cryptoassets in particular should be allowed to facilitate payment for the business. Important points to consider here would be the cryptoassets stability, liquidity, popularity, and confirmation times.
• Payment processing: It may be worth trying an external payment processor who can simplify the process of cryptoasset acceptance, albeit at a cost. Alternatively, it is entirely possible to set up your own crypto payment processing system, but will require some technological expertise and knowledge.
• Formulating guidelines: Businesses adopting cryptoassets should have defined guidelines addressing transaction disputes, and refund mechanisms. There should also be procedures in place for handling price volatility, for example, through stablecoins or immediate fiat conversion upon receipt.
• Continuous transaction oversight: Businesses allowing cryptoasset payments will need need to be able to track, record, and report transactions for tax compliance. Cryptoassets are taxable, and businesses will need to consider whether they choose to hold cryptoassets on their balance sheet as an asset, or if they would rather liquidate the cryptoassets to fiat upon receipt or at regular intervals.
• Selecting an appropriate digital wallet: Considering the scale of operations, anticipated crypto holdings, and security requirements is vital when choosing a digital wallet. There are a variety of different wallets including cold wallets, hot wallets, custodial wallets, non-custodial wallets, multi-sig wallets and many other variations. It is important for businesses to choose a wallet which is compatible with their needs, and which they are confident with and able to keep secure.

How Lawrence Stephens can assist with your crypto challenges

While venturing into the world of cryptoassets does bring its set of challenges and intricacies, the potential benefits are substantial. As with any business decision, prudent planning, accompanied by knowledgeable legal consultation, is key to ensure regulatory compliance and adept risk management.

At Lawrence Stephens, our team is adept at assisting diverse businesses in harnessing the potential of cryptoassets. With our bespoke legal insights, we ensure your cryptocurrency adoption journey is seamless, safeguarded, and aligned with the developing digital finance sector.

For UK traders, investors and businesses dealing with cryptoassets, it is important to understand the complex tax implications for this rapidly evolving sector. For many industry participants, the line between fact and fiction regarding the taxation of cryptoassets is blurred, often leading to confusion.

Having clarity and understanding on the UK’s approach to the taxation of cryptoassets is therefore vital for individuals and businesses to better plan their transactions and strategy, thereby optimising their tax burden.

The Tax Treatment of Cryptoassets in the UK

The UK’s tax authority, HMRC, recognises that there are a number of different types of cryptoassets, and have adopted a taxonomy that aligns closely with the FCA’s regulatory position. However, the tax treatment of cryptoassets is dependent on the nature and use of the assets in question, as opposed to their classification.

To put to rest a common misconception, HMRC does not consider the buying and selling of cryptoassets to be comparable to gambling. Whether a transaction can be properly characterised as gambling will be a question of fact and will instead be considered on a case-by-case basis.

Importantly, HMRC does not consider cryptoassets to be currency, and therefore treats them as a traditional asset for tax purposes. Consequentially, profits made from cryptoasset activities are taxable.

What taxes are applicable?

For individuals dealing with cryptoassets, the two main types of tax applicable would be Capital Gains Tax (CGT) and Income Tax.

Capital Gains Tax

Capital Gains Tax is essentially a tax on the profit made when an asset that has increased in value has been sold or disposed. It is the gain that is made which tax is applied against, rather than the whole amount that it has been sold for. For example, if you bought Bitcoin at £16,000, and later sold for £25,000, the gain on which tax would be applied would be £9,000.

Disposal of cryptoassets does not just include selling the cryptoasset for fiat, but also trading it for another cryptoasset, spending it on goods or services, or gifting it.

There is also an annual tax-free allowance, for such instances. For the 22/23 tax year, this allowance is £12,300, and for 23/24 it is £6,000. This means that gains up to the amount of the annual allowance are not subject to any CGT.

If the profits exceed this amount, then CGT will be payable on the amount above the tax-free allowance, with the rate payable depending on your taxable income.

Income Tax

In some instances, cryptoassets, and activities relating to them, can be treated as income in nature; for example, payment for services with cryptoassets, receiving cryptoassets as employee remuneration, or earning cryptoassets from mining or staking activities.

In other circumstances, trading cryptoassets may also be subject to income tax, especially if the trading activity is particularly frequent and regular. Again, whether an individual’s trading activity would constitute treatment as income for taxation purposes will be highly fact dependent and assessed on a case-by-case basis.

Cryptoassets received by an airdrop might also be liable for income tax if the individual has taken an action in exchange for the airdrop, for example promoting or moderating the socials for a particular project.

In relation to mining or staking taxes, if the activity is professional in nature profits may be subject to income tax under trading income rules. If the activity is more casual, it would likely be subject to income tax as miscellaneous income.

If cryptoassets are mined, then the amount of tax will be based on the value of the cryptoasset at the time it was mined. If the mined cryptoasset is later sold and its value has increased, there may also be CGT applicable on the profit made from the increase in value.

The rate of income tax payable would be dependent on the individual’s income for the particular tax year.

It is therefore important to keep detailed records of cryptoasset transactions, as it is possible to reduce the gain, and therefore the tax burden, by deducting allowable costs such as transaction fees.

Cryptoasset Tax Treatment and Businesses

For businesses engaged in cryptoasset activity, the tax treatment would depend on the nature of activities and transactions. A business involved in cryptoasset activity may be liable to pay a number of different taxes such as CGT, Corporation Tax, Income Tax, VAT, and Digital Services Tax. For example, if a business’s primary function is the trading of cryptoassets, then profit and losses will be subject to corporation tax at the applicable rate.

The tax treatment of businesses will depend on the particular facts of its activities, and will take into account a range of factors.

Lost Cryptoassets

If the private key to a cryptoasset wallet is lost, HMRC does not view this as a disposal of the asset. Whilst you may have lost access to the cryptoassets within the wallet, you still technically own the assets.

However, in situations where there’s no realistic chance of recovering the cryptoassets, it may be possible to file a negligible value claim and seek relief for a capital loss.

Gifts

Gifting cryptoassets is viewed by HMRC as a disposal, and therefore will attract a tax liability in the form of CGT. In other words, you would be subject to CGT on the difference between what you originally paid for the cryptoasset and its market value at the time it was gifted.

However, there are advantageous carve-outs when it comes to gifting cryptoassets to your spouse or civil partner, as transfers between spouses/civil partners are not usually subject to CGT at the time of the gift.

Rather, the recipient takes on the original cost basis and will then be liable for any CGT if they later sell or dispose of the cryptoassets.

Conclusion

Taxation and cryptoassets can be a complex and nuanced area, with many considerations, and failure to report crypto gains or losses could lead to penalties and interest charges on unpaid tax liabilities.

It is therefore important to note that, although the nature of cryptoassets and the decentralised framework in which they operate allows for pseudonymity, HMRC has invested significant time and effort to ensure cryptoasset tax compliance.

HMRC has been known to request customer information from centralised exchanges, and also utilises technology and analytics to analyse data and transactions which can establish connections between cryptoasset wallets and transactions and the individuals behind them. 

With this in mind, it is imperative that individuals engaged in the crypto sector seek professional advice to ensure that tax liability is calculated correctly and is optimised in line with their strategy and objectives.

With many crypto firms suspending their services in the UK, Senior Associate Asim Arshad comments on the FCA regime concerning the investment of cryptoassets.

Asim’s comments were published in CoinDesk, 4 October 2023, and can be found here.

“Essentially, all communications to U.K. consumers in relation to crypto assets which could be seen as an invitation or inducement to invest, must comply with the rules.”

With the increasing adoption of cryptoassets, it is inevitable that we will see a rise in interactions between this sector and more traditional asset markets, such as real estate.

An increased awareness of cryptoassets, and their growing availability over the past decade have presented both individuals and enterprises with access to a risk-on environment, characterised by high risk and reward profiles. Consequently, numerous investors have experienced significant returns on their initial, sometimes modest, investments. One notable trend we have observed is the convergence of crypto wealth with the traditional real estate market, particularly in the form of crypto gains being utilised towards real estate acquisitions.

There are primarily two methods by which individuals and businesses are using crypto wealth to enter the real estate market.

The first and most common approach involves utilising the fiat proceeds from crypto gains to cover part or the whole cost of a property purchase. This approach aligns closely with established conveyancing practices.

The second approach entails the direct use of the cryptoassets themselves to facilitate the property purchase. The property’s purchase price, whilst still being pegged to a fiat value, is not settled in fiat currency but rather in an agreed-upon amount of specified cryptoassets.

Both approaches have their own complexities and advantages, including risk tolerance, market conditions and legal considerations.

Using fiat proceeds of cryptoassets

The approach of using fiat proceed of crypto gains in property purchases is a method which strongly resembles established conveyance process, albeit with some nuances in the process brought on by additional financial planning and legal considerations. This is by far the most common method by which parties are utilising cryptoassets in order to purchase property.

Generally, the process will involve several key considerations.

Conversion to fiat

The first step of this process is to convert cryptoassets comprising part or the entirety of a cryptoassets portfolio into a fiat currency, as the British Pound Sterling.

This will usually occur through a centralised exchange and, given the volatility of the crypto markets, timing may be an important consideration.

Parties will often aim to convert their cryptoassets at a peak value, so as to maximise the return into fiat. If substantial sums are being converted and off-ramped, then it is likely that it will be done in tranches and using multiple centralised exchanges to get the best rates and mitigate slippage.

It is also possible to convert cryptocurrencies into fiat currencies using OTC trades, facilitated by a specialised broker.

Banking considerations

Whilst banks and other financial institutions are undoubtedly more familiar with cryptoassets than they were several years ago, it is still important to note that not all financial institutions are crypto friendly.

As such, when off-ramping substantial sums from an exchange to a bank account, it is vital to consider whether the bank in question is willing to accept the funds into the account, and buyers must be prepared for the bank to make enquiries about the source of funds in line with standard anti-money laundering and know-your-customer requirements.

Legal and tax implications

A conversion between cryptoassets (e.g. Bitcoin to USDC) or a conversion from cryptoassets into fiat is also likely trigger a tax liability, and crypto investors may be subject to capital gains tax or income tax, depending on the nature of the activity.

Solicitors assisting with the purchase of  property in such cases will be aware that they will be taking these fiat funds into their account in furtherance of the purchase. As such, they will have a responsibility to determine that these fiat proceeds of cryptoassets activity is genuine and not illicit funds or an attempt to launder money.

In other words, the solicitor must be able to verify the source of funds – a key consideration  due to the sector specific knowledge that this requires. Before instructing solicitors with the conveyance of the intended property, potential buyers should ensure they are comfortable and able to verify source of funds coming by way of cryptoassets.

At Lawrence Stephens, our dedicated cryptoasset and blockchain team within the firm works closely with our conveyancing department to be able to review and verify source of funds deriving from cryptoassets activity seamlessly.

Application of the funds

Depending on how fiat funds are intended to be applied, if a cash amount is being used to cover the entire cost of the property, then standard conveyancing procedures will apply to the rest of this process.

However, if funds are intended to be used as a partial deposit, with the rest of the purchase price to be financed through a mortgage, lenders will likely require an overview of your finances including cryptoassets gains.

Completion

Once the parties arrive at the completion stage, the buyer will transfer the fiat funds to their solicitors, as will the mortgage provider if applicable. The solicitors on either side will then ensure the timely transfer of funds and completion of formalities to record the transaction and change of ownership of the property.

Using cryptoassets to purchase property

Whilst certainly a less common route to purchase property, it is also possible to utilise cryptoassets themselves for a property purchase. Whilst this route to acquire property comes with additional considerations, complexities and advantages, it can often be a desirable option particularly for those with large crypto portfolios.

Agreement with seller

One of the main considerations and challenges with such an approach is finding a seller who not only has a property to sell that fits the requirements of the buyer, but is also willing to accept cryptoassets as a form of payment.

Much like any other property purchase, parties will need to arrive at an agreed figure for the purchase price of the property and, even though cryptoassets will be used in the transaction, the purchase price agreed must be agreed in fiat currency. This is not just crucial for contractual clarity between the parties, but it is also important for the calculation of Stamp Duty Land Tax (SDLT) liability, if applicable.

Agreeing the cryptoasset

Both parties will also need to agree the cryptoassets to be used in the transaction, and this will require due diligence on the assets involved. It may also be necessary to the current regulatory environment to ensure there are no restrictions on using the cryptoassets of choice. If a particular cryptoassets was regulated, for example, then strictly speaking it would technically not be permitted to deal in the same without regulatory approval.

From the seller’s perspective, they will have undoubtedly have additional considerations for the cryptoassets to be used, and may likely only want to deal in a cryptoassets that has sufficient liquidity.

For example, assuming the purchase price of the property is agreed in the sum of £800,000, the parties will then need to agree which cryptoasset (or assets) are to comprise the purchase price. In this example, we will assume that the parties agree to transact in Bitcoin and, as of September 2023, the value of 1 Bitcoin is approximately £20,000.

Due to the volatility of cryptoassets, it is not uncommon for parties to reach their own agreed upon conversion rate for the cryptoassets being used. In this example, if we assume that the parties agree that the Bitcoin used for the purchase will be valued at £19,500, the buyer will have to pay the seller 41.02 Bitcoin.

Due to the nature of using cryptoassets in such a transaction, separate agreements may be required that addresses the particular characteristics of these assets. For example, given the volatility of cryptoassets, both parties assume a market risk until the transaction is completed. To mitigate this, specific clauses can be inserted into agreements to address scenarios where the cryptoassets value changes dramatically before completion.

Specialised mechanisms or escrow type services for the actual transfer of the cryptoassets would also likely need to be agreed upon and catered for in a specific agreement. In typical transactions, buyers would usually send the purchase monies to their solicitors, who would then forward it over to the seller solicitors. In a crypto transaction, alternative mechanisms would need to be utilised to ensure that the transaction occurs properly, and payment is sent and confirmed to the relevant parties so subsequent steps in the conveyance procedure can take place.

Solicitors with expertise in cryptoassets transactions are crucial in such instances, to ensure legal compliance and clarity.

Post-completion formalities

After the transaction is complete, the usual formalities such as land registration will follow, and these may require special annotation to indicate the use of cryptoassets in the purchase. The land registry, in the past, has recorded the sale price of property in cryptoassets.

SDLT may also be applicable and will usually be calculated in relation to the value of the cryptoassets on the day of completion, as evidenced by reputable data sources.

From the seller’s perspective, they will want to ensure that they can continue to securely hold and access the cryptoassets or convert them into fiat, depending on their intentions. Oversight in this regard could lead to difficulties in them accessing the proceeds of the sale.

Conclusion

The purchase of property using the fiat proceeds of cryptoassets, or cryptoassets themselves is not only feasible but can also be an attractive option for both buyers and sellers.

Such transactions are accompanied by a unique set of legal considerations that require specialised knowledge and understanding of the cryptoassets sector; from due diligence on the cryptoassets used and their liquidity, to understanding the additional legal mechanisms required to ensure a compliant and clear transaction, the process necessitates an expert legal perspective.

Our cryptoassets team is equipped with specialised knowledge in the cryptoasset sector, enabling us to guide clients through each step of this innovative transaction method. If you are contemplating diving into the world of property purchases via cryptoassets, we are here to assist and advise.