Crypto-Enabled Charity Donations Raise As Many Questions as Dollar Signs
Charities that incorporate blockchain into their organizations could allow for donations that are more transparent and secure, but the regulatory risks could outweigh the monetary rewards.
July 15, 2019 at 11:00 AM
3 minute read
Major charities such as the Red Cross have already taken advantage of the transparency benefits offered by cryptocurrency donations, which use blockchain's distributive ledger technology to allow for secure payments without the involvement of a bank or intermediary.
Still, there are some serious regulatory question marks related to tax and privacy laws that might—at least for the time being—make the whole endeavor more trouble than it's worth.
“You can assume and imagine that there are a lot of charities out there that don't really understand what [is] cryptocurrency… You have to make sure that they are totally set up to intake and process this, and I think that most of them are very, very much behind the curve,” said Katya Fisher, a partner and leader of the blockchain, digital assets and technology transactions practice group at Greenspoon Marder.
One of the more prevalent complications is that the valuation of cyrptocurrency, such as Bitcoin or Ethereum, can vary wildly depending on the fluctuating state of the market. Fisher indicated that organizations receiving payment in cryptocurrency should convert to fiat—government-established paper money—almost immediately in order to maintain the value as it stood at the time of submission.
Such an objective is difficult for a charitable organization to accomplish without the proper infrastructure in place, but failure to do so could have serious repercussions come tax season for non-profits and donors alike. In the U.S., for example, donors who contribute to charity using a cryptocurrency have to determine the fair market value of the donation as it stood on the date of payment.
“An open question currently is whether a qualified appraisal is necessary for a crypto donation above $5,000—and if it is necessary, it will certainly be difficult to identify a qualified appraiser in this field,” Fisher said.
Putting aside the IRS for second, there are also a multitude of privacy regulators operating in different jurisdictions across the globe who might also have something to say about the way a charitable organization conducts its crypto-donations.
One of the major selling points of blockchain is the immutability of its ledger, meaning that the data contained therein can't be changed. But this could actually prove to be an inadvertent liability for a charity operating under the prerogative of the European Union's General Data Protection Regulation (GDPR), where citizens have the right to opt out or be forgotten.
“How you have an immutable piece of data about an EU citizen making a charitable contribution then gets very complicated,” said Peter Vogel, of counsel at Foley & Lardner.
Further complicating matters is the corresponding newness of both blockchain technology and many of the international laws surrounding privacy. There's not yet a great deal of case law involving distributive ledger technology for charities to fall back upon for guidance when drafting their terms of service or click agreements. Vogel said these agreements are typically tailored to reflect to expectations of whatever jurisdiction the charitable organization expects to either collect donations from or use to store data.
A few countries such as Malaysia have already put regulations into place regarding cryptocurrency, but Vogel doesn't expect to see all of the moving parts around blockchain synchronized any time soon.
“I don't think it's happening tomorrow,” he said.
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