미국 디지털자산의 포괄적 규제를 위한 「책임있는 금융혁신법안」에 관한 소고

On Ju ne 7, 2022, U.S. Senators Cy nthia Lu m m is(R) a nd Kirsten Gillibrand(D) introduced the Lummis-Gillbrand Responsible Financial Innovation Act(hereinafter the “RFIA”), the first bipartisan attempt to bring stability and clarity to digital assets industr y through the comprehensive legislative proposal that would create a regulator y framework for digital assets in the United States. Even though it is unlikely that the RFIA will be legislated in its current form in the near term, the bill touches myriad of issues relating to taxes, securities, commodities, consumer protection, payments and stablecoins, banking laws and interagency coordination involving digital assets and will serve as a benchmark and starting point for negotiations for future legislation. The RFIA consists of eight titles and 54 sections and integrates digital assets into the existing legal framework by way of long and detailed amendments to tax, securities, commodities, banking and other laws and clarification, expansion and adjustment of the jurisdictions of the existing agencies over digital assets. In this article, the author focuses on, among others, three main elements of the RFIA. First, the RFIA proposes a clear standard to determine whether a digital asset is deemed a “security” or a “commodity”-an important distinction because securities are regu lated by the Securities and Exchange Commission(SEC) under securities laws and commodities are regulated by the Commodities Futures Trading Commission(CFTC) under the Commodity Exchange Act. Under the bill, most digital assets including “ancillary assets” would be considered to be commodities, not security, unless those have security-like characteristics, and the CFTC would have “exclusive” jurisdiction over such assets, although it would preserve certain SEC reporting requirements. Also it provides a robust framework for digital asset exchanges to register with the CFTC and clarifies certain points regarding the treatment of digital assets in bankruptcy of such exchanges. Second, the RFIA proposes a set of regulations covering the “payment stablecoins”(PS), separate from the securities or commodities regime. The bill would authorize depository institutions(DI, both insured by the FDIC and uninsured) to issue, redeem, and conduct all incidental activities relating to PS, subject to obtaining prior approval from federal or state banking regulators, neither the SEC nor the CFTC. Notably PS issued by a DI would not be regulated as a commodity or a security. It mandates that all issuers of PS maintain 100% backing of any issued PS in highquality liquid assets and provides that the claims of the PS holders would have priority over claims of all other creditors including depositors. It also provides that regulated entries that are not depository institutions would not be prohibited from issuing and redeeming PS and engaging in related incidental activities, subject to the asset maintenance, disclosure and redemption requirements applicable to DI issuers. Third, the RFIA attempt to modify existing tax law treatment with respect to digital assets. It allows for a de minimus exemption for purchases with virtual currency and establishes that decentralized autonomous organizations(DAOs) are business entities for U.S. tax purposes and digital asset lending transactions should generally not be taxable. It also provides for a deferral of income tax on digital assets obtained from mining and staking until the time of the disposition of such assets. It establishes that digital asset miners and validators should not be considered brokers for income tax purposes. Further it requires the Treasury(i.e., IRS) to adopt guidances on taxation of digital assets. The author concludes that in Korea ther is currently no comprehensive regulatory framework on digital assets and we need to be prepared for the upcoming legislations in conformity with the international standards including those in the United States such as the RFIA.