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Cryptocurrency in Financial Statements - a Comparative Analysis

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Cryptocurrency in Financial Statements - a Comparative Analysis Cryptocurrency in Financial Statements - A Comparative Analysis 14th June, 2021 By Aryan Gupta Edited by Vipul Kharbanda, Arindrajit Basu, Aman Nair The Centre for Internet and Society, India Shared under Creative Commons Attribution 4.0 International license 1 Executive Summary 2 Introduction 3 March MCA Notification 5 A Look at Other Jurisdictions 6 USA 7 UK 9 Japan 11 Policy Landscape in India 12 Definition 13 Accounting Practices 14 Taxation 15 Conclusion 16 2 Executive Summary The Ministry of Corporate Affairs (MCA) on March 24, 2021, came out with a notification inter alia mandating disclosures of cryptocurrency holdings by companies in their balance sheets. These changes have been effectuated by making requisite amendments to Schedule III of the Companies Act, 2013. The notification specified that companies are now required to report the profit or loss accrued due to trade or investment in any type of cryptocurrency or virtual currency, the amount of cryptocurrency that the company holds on the reporting date, and the deposits or advances from any person that have been made for the purposes of trading or investing in cryptocurrencies or virtual currencies. The decision on new disclosure requirements comes amidst parliamentary discussions on cryptocurrency and speculations of another attempt at prohibition. Meanwhile, this step has been welcomed by the cryptocurrency industry in India as it signals towards a more positive approach being taken by the government with regards to corporate cryptocurrency transactions in India. Moreover, while it opens up new possibilities of scrutiny of such transactions, this measure will also be beneficial in identifying key policy gaps in cryptocurrency regulation in India when we look at corresponding requirements in foreign jurisdictions. In this Issue Brief, the policy landscape in the United States of America (USA), United Kingdom (UK), and Japan is discussed and particular emphasis is placed upon definition, accounting practices, and taxation, with respect to cryptocurrencies. It is thus identified that such jurisdictions have taken concrete steps in this regard by providing clear guidance (such as through HMRC’s Cryptoassets Manual and ASBJ’s advisory notification on accounting for cryptocurrencies). Then, the regulations in India are looked into comprehensively and specific policy recommendations are made, as it is ascertained that no clear steps have been taken in the aspects that have been mentioned above. Although the March MCA Notification is a positive step on corporate cryptocurrency transactions, the following steps are needed further: firstly, a clear and comprehensive definition of cryptocurrency and cryptoassets must be laid down, preferably through a central legislation; secondly, a separate category for cryptocurrencies under the Indian Accounting Standards (Ind AS) should be created; and thirdly, complete guidance on applicable taxes on cryptocurrency transactions, by individuals and corporates, must be provided. 3 It is thus concluded that while the government is willing to engage with various stakeholders, with positive intent, comprehensive and definitive steps are the need of the hour. This is essential to safeguard the large number of cryptocurrency investors in India, and to quell the uncertainty that is created by speculative measures such as banks declining services for cryptocurrency transactions. Introduction In recent years, cryptocurrencies and cryptocurrency regulation have been frequently discussed topics in India. When the cryptocurrency market in India was still in its infancy, the Reserve Bank of India (RBI) was at the forefront of the regulation debate — starting with the first press release in 2013 cautioning the users of virtual currencies against risks,1 then two more press releases in 2017 reiterating the warning.2 This was followed by a 2018 Circular prohibiting RBI regulated entities from facilitating cryptocurrency transactions,3 a decision which was overturned by the Hon’ble Supreme Court of India (SC) in March 2020.4 While support for cryptocurrencies was slowly originating, a high level Inter-ministerial Committee was also set up in November 2017 by the Government of India to look into various issues pertaining to virtual currencies and to propose specific actions with respect to these.5 The Committee in its report in July 2019 recommended a ban on private cryptocurrencies in India,6 and a draft legislation was 1 Reserve Bank of India, Press Release: 2013-2014/1261, “RBI cautions users of Virtual Currencies against Risks” (Dec. 24, 2013), https://rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=30247. 2 Reserve Bank of India, Press Release: 2016-17/2054, “RBI cautions users of Virtual Currencies” (Feb. 01, 2017), https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=39435; Reserve Bank of India, Press Release: 2017-2018/1530, “Reserve Bank cautions regarding risk of virtual currencies including Bitcoins” (Dec. 05, 2017), https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=42462. 3 Reserve Bank of India, RBI/2017-18/154, “Prohibition on dealing in Virtual Currencies (VCs)” (Apr. 06, 2018), https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=11243&Mode=0. 4 Internet and Mobile Association of India (IAMAI) v. Reserve Bank of India (RBI), (2020) 10 SCC 274, the judgment can be accessed here: https://main.sci.gov.in/supremecourt/2018/19230/19230_2018_4_1501_ 21151_Judgement_04-Mar-2020.pdf. 5 “Cryptocurrency Regulation in India – A brief history”, The Centre for Internet and Society (Mar. 05, 2020), https://cis-india.org/internet-governance/blog/cryptocurrency-regulation-in-india-2013-a-brief- history. 6 “Report of the Committee to propose specific actions to be taken in relation to Virtual Currencies”, Department of Economic Affairs, Ministry of Finance (Feb. 28, 2019), https://dea.gov.in/sites/default/files/ 4 also prepared by the government to bring this into effect, but it was never introduced in the parliament.7 Come 2021, cryptocurrencies have achieved phenomenal levels of popularity and support around the world and India is no different, with Indian investments in cryptocurrency estimated to be over $1.5 billion in value.8 The government however, had other plans as it was set to propose another legislation titled ‘Cryptocurrency and Regulation of Official Digital Currency Bill, 2021’, which was slated to be introduced in Parliament in the Budget Session of 2021, but is yet to be introduced. While the draft of this Bill is not publicly available, news reports claim that it would be another attempt to ban private cryptocurrencies in India.9 Meanwhile, amidst parliamentary discussions on cryptocurrency and appeals from various stakeholders against its prohibition,10 the government took another significant step in a different direction when in March this year, the Ministry of Corporate Affairs (MCA) released a Notification providing for mandatory disclosure of cryptocurrency holdings by companies.11 The Notification has been noted to be a positive step which might signal the government’s intent towards regulation instead of complete prohibition. It is important to consider the implications that this Notification will have on companies holding cryptocurrencies, along with the issues associated with it, and this discussion forms the basis of this Issue Brief. Approved%20and%20Signed%20Report%20and%20Bill%20of%20IMC%20on%20VCs%2028%20Feb% 202019.pdf. 7 Ibid. 8 George Mathew & Sunny Verma, “RBI plans and an upcoming Bill: Where are digital currencies headed?” The Indian Express (Apr, 23, 2021), https://indianexpress.com/article/explained/ cryptocurrency-bitcoin-rbi-7285249/. 9 Ibid. 10 Rajeev Kumar, “Is there a future for Cryptocurrency in India? A look at recent discussions in Parliament”, The Financial Express (Apr. 03, 2021), https://www.financialexpress.com/money/is-there-a- future-for-cryptocurrency-in-india-a-look-at-recent-discussions-in-parliament/2226036/ ; “Internet and Mobile Association urges govt to regulate, not ban cryptocurrency”, Hindustan Times (Mar. 11, 2021), https://www.hindustantimes.com/india-news/internet-and-mobile-association-urges-govt-to-regulate-not-b an-cryptocurrency-101615457160624.html. 11 Amendment to Schedule III to the Companies Act, 2013, Ministry of Corporate Affairs, Government of India (Mar. 24, 2021), http://www.mca.gov.in/Ministry/pdf/ScheduleIIIAmendmentNotification_13042021. pdf. 5 Here, I first delve into the intricacies of the March 24 Notification released by the MCA. Second, I briefly look at some specific cryptocurrency regulations (definitions, disclosure requirements, accounting standards, and taxation being the relevant areas) in a few foreign jurisdictions. Finally, I bring the discussion back to India to identify the key policy gaps in these areas that need to be filled in light of the MCA Notification, and also focus on solutions that we can emulate from such foreign jurisdictions. March MCA Notification On March 24, 2021, the MCA came out with a Notification that inter alia mandated that any company that has traded or invested in any type of cryptocurrency or virtual currency during the financial year must disclose in their ‘Statement of Profit and Loss’, the profit or loss that has occurred due to these transactions — along with amount of cryptocurrency that the company holds on the reporting date.12 Additionally, the companies are now also required to disclose the deposits or advances from any person that have been made for the purposes of trading or investing in cryptocurrencies or virtual
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