How controversial crypto tax found its way into US infrastructure bill

The crypto provision in the U.S. infrastructure bill was one of a handful of issues that nearly delayed the entire package.

A crypto-specific provision that would raise $28 billion for a $1 trillion infrastructure package before the U.S. Congress was so contentious that it briefly held up the entire bill. 

Much of the controversy hinges on a technical detail: the definition of the term “broker.” The provision, which would define a “broker” as any person who provides a service “effectuating transfers of digital assets on behalf of another person,” has been questioned by industry participants due to the possibility that it will include non-custodial companies, such as decentralized exchanges and miners, that would be unable to file broker-specific tax reporting forms.

The crypto provision was one of a handful of issues that held up the entire 2,702-page infrastructure bill, according to an individual familiar with the situation. The Senate hoped to introduce the bill late last week, but it wasn’t published until Sunday night.

The holdup appears to be at least partly driven by concerns that removing certain businesses from the bill would change its “scoring.” 

The way the provision is currently worded, non-custodial businesses are part of the scoring, or how the Joint Committee on Taxation (JCT) evaluated the amount of revenue it could bring in. It’s possible that explicitly excluding miners, for example, could change the scoring, meaning the provision would no longer be expected to generate $28 billion. This in turn could impact the rest of the bill, forcing lawmakers to find new ways of funding the overall package. Though the JCT published its overall score for the bill, the way the JCT arrived at the $28 billion figure is currently unknown.

Designating DEXs

The bipartisan infrastructure bill has been a priority for U.S. President Joe Biden. The $1 trillion bill would send funds to public transit (including passenger rail), bridges, roads, energy transmission and electric vehicle infrastructure, water rights, tunnels and more. 

To fund these initiatives, the bill includes more than a dozen “pay-fors,” or provisions that would pay for the $550 billion in new spending. In addition to crypto, the bill looks to generate revenue by extending government-sponsored enterprise fees, sales from the Strategic Petroleum Reserve, reducing Medicare spending on discarded medications, reinstating some Superfund fees and several other areas.

The crypto information reporting requirements for tax purposes, as originally drafted, designated decentralized exchanges (DEXs), and seemed to designate miners, hardware manufacturers, software developers and others as “brokers” required to report transactions, despite the fact that some of these entities don’t have customers with know-your-customer information.

To be clear: The provision did not suggest a new tax. The contentious issue was the expanded broker definition, which seemingly went beyond what would normally be considered a broker in similar financial sectors.

“It’s not actually a tax, it’s increasing reporting rules,” said Reid Yager, a former lobbyist and current director of communications at Blockhaus. “Whoever came up with this is actually pretty crafty. It’s easy to say ‘hey, I don’t want to increase taxes on something’ but if it’s just increasing reporting, it’s pretty hard to get a senator to turn their back.”

The provision was apparently inserted by Sen. Rob Portman (R-Ohio), according to multiple individuals familiar with the negotiations. Portman said he was working on a crypto tax provision after a congressional hearing with IRS Commissioner Charles Rettig in April, but a spokesperson declined to provide further details at the time.

On Sunday, Sen. Ron Wyden (D-Ore.), the chair of the Senate Finance Committee, pushed back on the provision, tweeting that it “fails to understand how the technology works.”

Similarly, Sen. Cynthia Lummis (R-Wyo.) said in a statement that it’s “easy to get [this industry] wrong.” 

“This is why we need a real committee process to consider these issues, instead of secret drafting. We’re working on making it better,” she said through a spokesperson last week.

Sen. Patrick Toomey of Pennsylvania, the ranking Republican on the Senate Banking Committee, likewise announced his opposition to the provision on Monday.

Process

The infrastructure bill is moving quickly. The bill was announced last Wednesday, and the Senate held a procedural test vote within a day. Yager pointed to Congress’ COVID-19 relief bills in 2020, many of which were voted on very shortly after their texts were published, as a precedent for this sort of speed.

Moreover, the bulk of the infrastructure bill has already been decided, with debate and amendments largely focusing on some details.

It’s not unusual for the text of a bill like the infrastructure legislation to be written until just before it’s fully introduced, Yager said, even as procedural votes are held to open debate on the bill. 

Most lawmakers may not have had a chance to read through the full bill ahead of last week’s procedural vote, and the text itself wasn’t made available to the general public until late Sunday.

Indeed, much of the negotiation likely happened within a small group.

Typically, “there’s four old white dudes in a Senate chamber talking through the bill,” Yager said.

Alongside Portman, the infrastructure bill was largely negotiated by a group, including Sens. Kyrsten Sinema (D-Ariz.), Susan Collins (R-Maine), Joe Manchin (D-W.V.) and Mitt Romney (R-Utah), according to a joint press statement.

Over the next few days, lawmakers can propose amendments as they debate the merits and costs of the bill. It’s possible, though not guaranteed, that amendments to strip or modify the language will be included, though it’s unclear whether they’ll be adopted should that happen.

What is clear is that the provision fills a needed funding hole, and therefore may not be easily replaceable.

“For this infrastructure bill by itself, we have honestly seen some of the most convoluted attempts to find money in the U.S.,” Yager said. “They pretty much spent all their ammunition to find money across the U.S. government.”

Still, the actual methodology behind the $28 billion figure from crypto taxes is unknown, said Kristin Smith, executive director of the Blockchain Association. 

“Given all the other entities, miners, software developers, the others wrapped up in the language [who] have no ability to report on the revenue or the tax obligations, we don’t think it’s going to substantially change the score if we clarify that those entities are no longer part of the [definition],” she said. 

Centralized exchanges may be able to provide the total amount by themselves, depending on how exactly the data was scored.

Perianne Boring, the president of the Chamber of Digital Commerce, expects the bill to be finalized roughly around the end of this week. 

Even after that, however, the House of Representatives still has to discuss and vote on the bill before it can head to the President for a signature.

In other words, the bill may not be finalized before September or October. During that time, the House may also try to amend the provision. Rep. Tom Emmer (R-Minn.) has already tweeted that he’s “on it.”

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