Crypto-Currency; A Banking Blight By Kenneth J. Berke, PayQwick, LLC’s Co-Founder and CEO, and Sahar Ayinehsazian, PayQwick, LLC’s Manager of Regulatory and Governmental Affairs. he marijuana industry is a rap- by solving mathematical equations. Unlike appeals to state licensed marijuana businesses. idly expanding sector that has traditional currency, which has no finite limit Because of marijuana’s current status as a Sched- proven profitable for licensed and can be minted and multiplied as necessary, ule I controlled substance, many banks will marijuana businesses and the fi- once the maximum number of a type of crypto- not serve marijuana businesses. Consequently, Tnancial institutions that serve them. These currency has been mined, no new amount of these businesses rely heavily on cash, which is profits are often manifested by piles of cash that crypto-currency can be created. both cumbersome and extremely dangerous. that are costly and dangerous to handle. To To find a cash alternative, some marijuana busi- solve this problem, some marijuana busi- If this seems complicated, it is. In March 2014, nesses have turned to debit/credit card process- nesses have turned to crypto-currency as the Internal Revenue Service (IRS) released ing (swipe) machines that use crypto-currency. an alternative. However, crypto-currency Notice 2014-21 to explain “how existing 10 only complicates the marijuana industry general tax principles apply to transactions What are the Dangers? by exposing both crypto-currency users using virtual currency.” In Notice 2014-21, While crypto-currency may seem like a viable and the banks that serve them to liabil- the IRS stated that while “in some environ- cash alternative, in reality, it allows marijuana li- ity for money laundering and tax evasion, ments, [crypto-currency] operates like ‘real’ censees to launder money from illegal drug sales thereby putting Washington’s entire legal currency… it does not have legal tender sta- and avoid paying taxes. To minimize the risk, marijuana industry at risk. tus.” In the last few years, the United States the Washington Liquor and Cannabis Board Securities Exchange Commission has charged (LCB) has specified that marijuana businesses What is Crypto-Currency? numerous crypto-currency reliant compa- may only purchase marijuana with cash, checks, Neither paper nor plastic, crypto-currency is an nies with ongoing unlawful and fraudulent debit/credit cards, electronic funds transfers, anonymous and decentralized virtual medium activities, citing that “[f]raudsters may… prepaid accounts or via a licensed money trans- of exchange. By using encryption techniques to be attracted to using virtual currencies to mitter. See, WAC 314-55-115. However, mari- regulate currency unit generation and verify perpetrate their frauds because transactions juana retailers are not banned from accepting fund transfers, crypto-currencies like Bitcoin, in virtual currencies…have greater privacy crypto-currency as payment from consumers, Coinye, Decred, Gulden, Gridcoin, Litecoin, benefits and less regulatory oversight than exposing the banks that serve them to potential MazaCoin, Monero, Namecoin, Nxt, Peercoin, transactions in conventional currencies.” SEC liability for the retailers’ illicit actions. PotCoin and Ripple operate independently of a Pub. No. 153 (7/13). central bank. To use and store crypto-currency, Swipe machines that allow consumers to pay an individual creates a virtual “wallet” with a Who Uses Crypto-Currency? marijuana retailers using crypto-currency personalized username and password. Every Crypto-currency’s anonymity and decentral- could be used to facilitate money laundering in wallet has a unique address, which is linked to ization are especially convenient for drugs, arms just a few simple steps. For example, a retailer its owner’s username. The wallet does not store and child pornography sellers. As illustrated by sets up an account with the swipe machine pro- personal information about its owner, grant- the Silk Road, one of the dark web’s most no- vider and instructs the provider to send funds ing the owner complete anonymity. To obtain torious marketplaces, crypto-currency allows from crypto-currency transactions to a bank crypto-currency, individuals can buy existing these parties to anonymously engage in illicit account not held in the retailer’s name. Once crypto-currency units or “mine” new ones. transactions and avoid detection. the swipe machine is set up, the retailer has a Mining is the process by which individuals can Illicit actors are not alone in recognizing crypto- “strawman” purchase crypto-currency using a acquire undiscovered units of crypto-currency currency’s advantages. Crypto-currency also debit/credit card and reimburses the strawman www.communitybankers-wa.org WINTER 2017 using cash the retailer received from an illegal Memorandum), the federal government will currency use. Monitoring clients can be a (black market) sale of marijuana. The retailer not use its limited resources to prosecute timely and expensive task for banks. To alleviate then sells the crypto-currency back to the swipe marijuana businesses that abide by their state’s these costs, banks can work with third party machine provider, which transfers the funds to regulations and do not implicate the memo- compliance companies like PayQwick, which the retailer’s designated bank account. At this randa’s eight enforcement priorities. These ensure licensed marijuana businesses remain point, the funds from the black market sale of enforcement priorities include “preventing compliant and do not use crypto-currency. marijuana have been effectively laundered. revenue from the sale of marijuana from go- ing to criminal enterprises, gangs and cartels” No matter how banks monitor their clients, Marijuana retailers could also use crypto-cur- and “preventing state-authorized marijuana they should not accept funds that were ever rency to sell marijuana that does not comply with activity from being used as a cover or pretext held as crypto-currency and should further state regulations and divert the funds from these for…illegal activity.” ensure that none of their marijuana clients sales to an unaffiliated bank account. Finally, use crypto-currency. Moreover, if a bank if a marijuana retailer uses crypto-currency As illustrated above, use of crypto-currency discovers that one of its clients has been us- to divert funds from legal marijuana sales to could implicate the enforcement priorities ing crypto-currency, the bank should take an unrelated bank account, the business could from the Cole Memorandum by facilitating appropriate action. under-report its gross income and thereby avoid money laundering, tax evasion and the un- paying income and excise taxes. lawful diversion of marijuana sale revenues. PayQwick is a federally registered money services business, licensed as a money transmitter in both Consequently, crypto-currency’s use could Washington and Oregon. PayQwick provides BSA/ What are the Consequences? lead to widespread federal prosecution of AML and state law compliance, cash management and Crypto-currency’s penchant for unlawful marijuana businesses and eviscerate Wash- electronic payment services. For more information, contact Kenneth J. Berke at (818) 224-7776 ext. 710 transactions threatens Washington’s legal ington’s marijuana industry altogether. or Sahar Ayinehsazian at (818) 224-7776 ext. 722. marijuana industry. Under the guidelines outlined in Deputy Attorney General James What Can Banks Do? M. Cole’s 2014 memorandum titled Guidance To protect themselves, banks must vigilantly Regarding Marijuana Enforcement (the Cole monitor their marijuana clients for crypto- 11.