Cryptocurrency: Unclaimed Property Challenges & Implications

March 22, 2018

Over the last few years, the use of blockchain technologies and their associated cryptocurrencies has grown tremendously. As with many new areas, the growth is usually followed by an onslaught of challenges brought on as governments and regulatory agencies try to decide how to adapt or how to fit this new square peg into the round hole of already established laws and regulations.

Whether you are a company that has emerged as a part of the support system to the cryptocurrency world (e.g., coin exchanges) or simply a company that has begun to accept Bitcoin or other similar cryptocurrencies as payment, it will be important that you are prepared for these challenges and are proactively addressing potential issues that can emerge. One often overlooked area for consideration, are the impacts of various state unclaimed property regulations.

Our advice: Do not make the mistake of neglecting and not performing the necessary analysis to understand the impacts of unclaimed property regulations on your new and emerging business lines and practices!

Similar to the launch and revolution of gift cards and other stored value instruments, states will eventually come knocking and have already started taking note of the impact of unclaimed property regulations on cryptocurrencies. In fact, Coinbase, a top U.S. digital asset exchange, received a class action lawsuit, filed on March 2nd, 2018, alleging that the company violated unclaimed property laws in California. Addressing the potential regulatory impact proactively will be far less costly than having a state auditor or third-party audit agent rifling through your books and records.

What are some of the potential challenges?

  • Could cryptocurrency be included as unclaimed property in state “catch-all” provisions as undefined intangible property?
  • Does cryptocurrency meet the definition of “Virtual Currency” within the 2016 RUUPA?
  • Which states potentially require the escheatment of unclaimed cryptocurrency?
  • How would a holder remit the property to the state (i.e., would the holder liquidate the cryptocurrency and transfer the cash to the state or would the holder send the cryptocurrency in its native format)?
  • Would the state be required to liquidate the cryptocurrency after a particular period of time, similar to escheated securities?
  • What would be the appropriate NAUPA property code?

Are you a potential holder of unclaimed cryptocurrency? Having a fundamental understanding of the core principles of unclaimed property and the corresponding state statutes is important when considering the escheatment of a new property type.If you need additional unclaimed property resources, visit the Knowledge Vault for educational and support materials.

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