By Jay Newman
The Futures Exchange (FTX), a cryptocurrency exchange platform, strutted onto the crypto scene in early 2021 and launched a large marketing campaign that featured flashy commercials and a host of celebrities. In one such commercial, NFL superstar quarterback, Tom Brady, uses a flamethrower to melt a block of ice that appears to be about five feet tall, in order to obtain a similarly sized Bitcoin token. While melting said ice boulder, NFL superstar quarterback, Tom Brady, informs the audience, presumably much to their relief, that they need not obtain a flamethrower to get Bitcoins. Instead, he says, it is as easy as downloading the FTX app. However, and most unfortunately, there will likely not be a 2023 sequel to this commercial in which NFL superstar quarterback, Tom Brady, informs the audience that getting their money out of FTX is just as easy as putting it in. This is because a more apt celebrity for the flamethrower commercial would have been Butner Federal Correctional Complex superstar financier, Bernie Madoff.
Despite being run by a relatively young man who looks like he lives in his mom’s basement and sustains himself with a diet consisting of only Bagel Bites and Mountain Dew Code Red, Sam Bankman-Fried, FTX managed to garner assets and liabilities each in the range of $10–50 billion. However, in early November of 2022, it was reported that Bankman-Fried’s quantitative trading fund, Alameda Research, was heavily invested in the FTX native coin, the FTX Token (“FTT”). This raised concerns about the solvency of both FTX and Alameda Research because FTT is not a fiat currency or cryptocurrency supported by an outside entity. This means that FTT does not hold value independently of FTX, and, thus, the finances of FTX and Alameda Research were deeply intertwined, and the demise of one of the organizations would doom the other. To put it simply, FTT was to Alameda Research and FTX what hydrogen was to the Hindenburg and vice versa.
A few days after learning of Alameda’s $5 billion position in FTT, FTX’s rival platform, Binance, decided to liquidate its $529 million position in FTT. Binance’s liquidation of its FTT position raised serious concerns among FTX investors, and, despite Bankman-Fried’s efforts to reassure investors, there was a $6 billion run on FTX. In the wake of the Binance liquidation and the subsequent run, the value of FTT fell by nearly 80 percent. In the midst of this crises, Bankman-Fried unsuccessfully attempted to find venture capital to bail FTX of the liquidity crisis caused by the sudden liquidation and the subsequent run. A few days later, on November 8, 2022, Binance announced that it reached a non-binding agreement to acquire FTX’s United States business. The following day, after conducting due diligence, Binance backed out of the agreement. This effectively left FTX up a certain proverbial creek without a paddle.
The following day—November 10—the Bahamian government froze the assets of FTX’s Bahamian subsidiary, and the California Department of Financial Protection and Innovation launched an investigation into FTX. Bankman-Fried subsequently stepped down as CEO of FTX, and the company filed for Chapter 11 Bankruptcy. Less than a day after filing for Bankruptcy, FTX allegedly fell victim to a hacking scheme that removed $477 million from FTX’s assets.
Additionally, it was later discovered that FTX diverted user funds from the trading platform into Alameda Research in order to keep it afloat after its investors became unsatisfied with the collateral Alameda had supporting some its positions. As a result, FTX’s assets equaled less than the total amount of money that users had on the platform. As a result, FTX user account balances were just numbers on a screen and were not actually supported by liquid assets within FTX. Notably, taking money from user accounts and moving them off the platform was explicitly against FTX’s own policies.
In the wake of this disaster, many of FTX’s more than one million users may be wondering when, if ever, they can recover the assets they had in FTX and whether they can find relief in the form of tax breaks. Some users may have also considered whether they could take a worthlessness or theft deduction. The rationale for taking one or both of these deductions is that the cryptocurrencies rapidly decreased in value, and FTX funds are currently inaccessible becasue of the funds diversion and the bankruptcy stay.
Regarding the first possibility of the worthlessness deduction, the Internal Revenue Service (IRS) released a memorandum in January 2023 providing that taxpayers who lose money while trading in cryptocurrencies are unable to avail themselves of this deduction for two reasons. First, the general worthlessness deduction under Section 165(a) of the Internal Revenue Code (IRC) is unavailable to taxpayers until 2026 under IRC § 67(g), which was enacted as part of the Tax Cuts and Jobs Act (TCJA). Second, the deduction is also unavailable to taxpayers who lose money while trading in cryptocurrencies because cryptocurrencies are not “securities” as defined in IRC § 165(g).
The memorandum’s assertion that § 165(a) deductions are disallowed until 2026 is not in dispute. IRC § 67(g) provides that no miscellaneous itemized deductions will be allowed for taxable years 2018 through 2025. IRC § 67(b) defines miscellaneous deductions, in relevant part, as those covered by § 165(a) other than casualty and theft losses incurred in a transaction entered into for profit but not in connection with a business and wagering losses. Thus, assuming that § 165(a) covers cryptocurrency losses and because losing money in cryptocurrency trading is neither a theft, casualty, or wagering loss, it would fall into the miscellaneous category and would thereby be disallowed by IRC § 67(g) until 2026 .
The memorandum’s second assertion that cryptocurrencies are not “securities” and therefore not covered under § 165(g) is slightly less cut and dry and slightly less settled but nonetheless very likely to be true. IRC § 165(g) defines securities as a share of stock in a corporation, the right to subscribe for or receive a share of stock in a corporation, or a evidence of indebtedness issued by a corporation or a government, such as a bond, with interest coupons or in registered form. As the memorandum notes, cryptocurrencies do not seem to fit within this definition. Although IRC § 165(g) appears to provide a simple answer, one could conceivably argue that there are broader definitions of “security” in the IRC and that the language of § 165(g) is dated. Thus, because cryptocurrency trading bears a substantial resemblance to security trading it should be included within the definition of security.
However, this argument would likely fail as cryptocurrency does not appear to fit under the broader definitions either. IRC § 1236(c) defines a security as “[a]ny share of stock in any corporation, certificate of stock or interest in any corporation, note, bond, debenture, or evidence of indebtedness, or any evidence of an interest in or right to subscribe to or purchase any of the foregoing.” Cryptocurrency clearly does not fit under this definition. Further, while IRC § 475(c)(2) expands the definition in IRC § 1236 by including items such as “derivatives” and “currency,” caselaw surrounding what constitutes a security has focused on whether the capital in question subjects the holder to the risks associated with a certain business and/or whether it involves a guaranty to pay a sum certain on a specified date with a fixed interest rate. Cryptocurrencies do not have these attributes and are thus unlikely to be classified as securities, especially for purposes of a loss deduction in which context security has a particularly narrow definition. Thus, the memorandum seems to accurately state that taxpayers cannot take an IRC § 165(g) deduction for either cryptocurrency losses or worthlessness.
Additionally, despite noting these two points, the memorandum further explains that even if taxpayers were presently allowed § 165(a) deductions, or if cryptocurrencies did qualify as securities under § 165(g), taxpayers would likely still be ineligible for the deduction. To be eligible for a worthlessness deduction under IRC § 165(a) or (g), the asset in question must suffer more than a substantial diminution in value. It must be entirely worthless, and there cannot be a possibility that it regains value.
To support this assertion, the memorandum cites to Morton v. Commissioner, in which the Board of Tax Appeals stated, “The ultimate value of stock, and conversely its worthlessness, will depend not only on its current liquidating value, but also on what value it may acquire in the future through the foreseeable operations of the corporation.” In Morton, the Board of Tax Appeals granted a deduction for shareholders in a company that was liquidated after becoming insolvent. As the memorandum notes, although certain cryptocurrencies have suffered significant decreases in value, such as FTT, which has lost over 90 percent of its peak value, they are nonetheless not worthless, and the fact that they are still being traded provides a possibility that they will increase in value. The circumstances surrounding declines in cryptocurrency value stand in stark contrast to shares in a liquidated company. Thus, FTX users who are unable to access their money during the bankruptcy process will almost certainly be unable to take the IRC § 165(a) or (g) deduction.
II. Theft Deduction
Although the IRC § 165(a) and (g) deductions are unlikely to materialize for FTX users, some users might want to take advantage of the IRC § 165(e) theft deduction. Notably, personal theft losses in excess of gain are disallowed for tax years 2018–2025. However, theft losses resulting from transactions entered into for profit, by both corporate and noncorporate taxpayers, are still allowed. Thus, if a taxpayer proves that he put money into FTX with the intent of gaining a profit, then the user might successfully claim the deduction. The IRC provides no definition for “a transaction entered into for profit.”
However, caselaw on the subject sets fourth several principles to consider when establishing whether a profit motive existed. The two primary considerations include first, that the desire to profit from the transaction be the primary motive and, second, that a profit motive will be presumed if the nature of the transaction is ordinarily thought to generate profits. Users of FTX will likely overcome these hurdles as trading cryptocurrency is ordinarily seen as a profit-driven transaction. Thus, FTX users might receive a theft deduction if they can prove the elements of the theft deduction.
The traditional elements of the theft deduction include: (1) the loss was caused by a theft; (2) the amount of the loss; and (3) the year in which the loss was claimed is the year in which the loss occurred or was discovered. Regarding the first element, the IRS has provided that to prove a theft the taxpayer must “[p]rove that his loss resulted from a taking of property that is illegal under the law of the state where it occurred, and that the taking was done with criminal intent.” Notably, the Tax Court has held that the theft must occur under state law and that theft under federal is insufficient to support the existence of a theft for the purposes of the theft deduction. Thus, to establish the first of the traditional elements, FTX users must prove that Bankman-Fried violated criminal statue in their state and that he did so with criminal intent.
However, in the wake of the of 2008 financial crisis and the fallout from the 2009 Bernie Madoff Ponzi scheme, the IRS released guidance on whether victims of Ponzi schemes are eligible for the theft deduction. Specifically, the IRS provided that there is a theft loss when the promoter of a Ponzi scheme specifically intended to deprive the victim of money by criminal acts. Thus, if Bankman-Fried is found to have perpetrated a Ponzi scheme, the finding will relieve users of the requirement to prove a theft under state law. Although Bankman-Fried has yet to be found guilty of any crimes, it is not outside the realm of possibility that he may be found guilty of perpetrating a Ponzi scheme if he diverted money out of FTX and into Alameda research. This is because such a diversion of funds bears a strong resemblance to the typical structure of a Ponzi scheme which involves taking clients’ money for a certain stated intent, often to invest or to hold, and then diverting the money out of client accounts without their consent for purposes different than or counter to the stated purpose.
In the case of FTX, the company allegedly took user money for the stated purpose of facilitating cryptocurrency trading, and the company diverted the money to support Alameda Research. The company also did not obtain user consent for the funds diversion. Thus, users may have a credible claim that they are entitled to a theft deduction under the Ponzi scheme guidance and, therefore, may have two avenues for meeting the first element.
The second element may be more difficult to prove while the bankruptcy proceedings are still ongoing, as it is unclear how much, if any, of user funds will be redistributed to them. This could prove to be an obstacle to securing the theft deduction. In a 2019 case, the tax court disallowed a theft deduction for a taxpayer who purchased stock in a company that filed for bankruptcy because the taxpayer could not meet the second element until the bankruptcy proceedings had concluded. Given the notoriety of the FTX, proving the third element, the dates on which the theft was discovered, will likely not be difficult. Thus, although the first and third elements may be easy to prove, taxpayers may still have difficulty receiving a deduction through the IRC § 165(c) theft deduction because proving the second element will be hard while FTX is in Bankruptcy.
The unfortunate events surrounding the collapse of FTX will likely have lasting impacts on both those who trusted FTX with their money and the cryptocurrency industry as a whole. Additionally, recent legislation, the ongoing bankruptcy proceedings of FTX, and IRS guidance have made recouping losses through the IRC a bit complicated, with the 2017 Tax Act disallowing miscellaneous personal losses and the IRS decision to treat cryptocurrencies as a property rather than a security. Thus, FTX users likely do not have a way to offset their losses in the wake of the FTX collapse, and the ultimate lesson from this situation may be the classic “better safe than sorry.”
 Stacy Elliot, FTX Is Spending Big on Marketing Because ‘We’re Behind on Name Rcognition’: CEO, Decrypt (Nov. 10, 2021), https://decrypt.co/85744/ftx-is-spending-big-on-marketing-because-were-behind-on-name-recognition-ceo [https://perma.cc/47MS-MWTQ].
 PlanXRP, Tom Brady FTX Flamethrower, YouTube (Nov. 29, 2022), https://www.youtube.com/watch?v=VPa-g33qL8s [https://perma.cc/54EG-WEWU].
 Butner Federal Correctional Complex is a federal prison in Butner, North Carolina. Michelle Fax, The Best Places to go to Prison, CNBC (Jan. 19, 2012, 1:12 PM), https://www.cnbc.com/2012/01/19/The-Best-Places-to-Go-to-Prison.html [https://perma.cc/JQA3-TYFN].
 The author is aware that Bernie Madoff is no longer with us.
 Nathan Reiff, The Collapse of FTX: What Went Wrong with the Crypto Exchange, Investopedia (Feb. 27, 2023), https://www.investopedia.com/what-went-wrong-with-ftx-6828447#:~:text=FTX%20filed%20for%20bankruptcy%20on,reserve%20to%20meet%20customer%20demand [https://perma.cc/6Y6D-KE84].
 Quantitative trading is trading that uses algorithms and programs to take advantage of trading opportunities. Shobhit Seth, Quants; What They Do and How They’ve Evolved, Investopedia (Sept. 29, 2022), https://www.investopedia.com/articles/active-trading/111214/quants-what-they-do-and-how-theyve-evolved.asp [https://perma.cc/TE34-QMQU] Alameda Research used quantitiave trading to arbitrage price the differences of cryptocurrencies in different markets. For example, its programs could recognize that a cryptocurrency was trading for $9 in one market and $10 in another and then take advantage of the price difference. Jeff Kauflin et al., How Did Sam Bankman-Fried’s Alameda Research Lose So Much Money?, Forbes (Nov. 19, 2022, 9:15 AM), https://www.forbes.com/sites/jeffkauflin/2022/11/19/how-did-sam-bankman-frieds-alameda-research-lose-so-much-money/?sh=55c2700344c9 [https://perma.cc/RL88-B3GY].
 Id. Note that fiat currency is a government-issued currency that is not back by a commodity such as gold. James Chen, Fiat Money: What It Is, How It Works, Example, Pros and Cons, Investopedia (Mar. 28, 2023); https://www.investopedia.com/terms/f/fiatmoney.asp [https://perma.cc/ZD6Y-NFBF].
 Id. See also Reuters Staff, Static Charge, Hydrogen Caused Hindenburg Disaster – Report, Reuters (Mar. 4, 2013), https://www.reuters.com/article/us-britain-hindenburg/static-charge-hydrogen-caused-hindenburg-disaster-report-idUSBRE9231B420130304 [https://perma.cc/5Q5Q-CHU7].
 Nathan Reiff, The Collapse of FTX: What Went Wrong with the Crypto Exchange?, Investopedia (Feb. 27, 2023), https://www.investopedia.com/what-went-wrong-with-ftx-6828447#:~:text=FTX%20filed%20for%20bankruptcy%20on,reserve%20to%20meet%20customer%20demand [https://perma.cc/5Q5Q-CHU7].
 Phil Helsel et al., An FTX Co-Founder and the Former CEO at Alameda Research Plead Guilty to Fraud, NBC News (Dec. 21, 2022, 10:30 PM), https://www.nbcnews.com/business/business-news/ftx-co-founder-former-ceo-alameda-research-plead-guilty-fraud-rcna62891 [https://perma.cc/2U57-FTV7].
 See David Yaffe-Bellany et al., Prosecutors Say FTX Was Engaged in a ‘Massive, Yearslong Fraud, N.Y. Times (Dec. 13, 2022), https://www.nytimes.com/2022/12/13/business/ftx-sam-bankman-fried-fraud-charges.html [https://perma.cc/TVV7-X5UY].
 Chris Arnold, FTX Investors Fear They Lost Everything and Wonder If There’s Anything They Can Do, NPR (Nov. 18, 2022, 2:13 PM), https://www.npr.org/2022/11/18/1137492483/ftx-investors-worry-they-lost-everything-and-wonder-if-theres-anything-they-can- [https://perma.cc/XM5F-9BEC].
 I.R.S. Gen. Couns. Mem. 202302011 (Jan. 10, 2023).
 I.R.C. § 67(g).
 Id. § 67(b).
 Id. §§ 67(g), 165(a).
 Id. § 165(g).
 I.R.S. Gen. Couns. Mem. 202302011 (Jan. 10, 2023); I.R.C. § 165(g).
 See I.R.C. §§ 475(c)(2), 1236(c).
 Id. § 1236(c).
 See id. §§ 1236(c), 475(c)(2).
 See generally id. § 475(c)(2).
 I.R.S. Gen. Couns. Mem. 202302011 (Jan. 10, 2023).
 Id.; Morton v. Comm’r, 38 B.T.A. 1270, 1278 (1945).
 Morton, 38 B.T.A. at 1278.
 I.R.S. Gen. Couns. Mem. 202302011 (Jan. 10, 2023).
 See David Yaffe-Bellany et al., supra note 24.
 I.R.C. § 165(h)(5).
 Id. § 165(h)(3)(B).
 Id. § 165(c)(2).
 Ewing v. Comm’r, 213 F.2d 438 (2d Cir. 1954), aff’d 20 T.C. 216 (1958); Tyler v. Comm’r, 6 T.C.M. 275 (1947); Lavin v. Comm’r, 3 T.C.M. 228 (1944).
 Anthony Diosdi, The 2023 Tax Guide to Cryptocurrency and NFTS, SF Tax Counsel Blog (Apr. 12, 2023); https://sftaxcounsel.com/tax-guide-for-cryptocurrency-and-nfts/#:~:text=Under%20these%20rules%2C%20an%20individual,g)%20worthless%20security%20loss%20rules [https://perma.cc/FHW4-2MVU].
 Gerstell v. Comm’r, 46 T.C. 161 (1966); Monteleone v. Comm’r, 34 T.C. 688 (1960); McKinley v. Comm’r, 34 T.C. 59 (1960).
 Rev. Rul. 72-112, 1972-1 C.B. 60.
 Crowell v. Comm’r, 51 T.C.M. 1556, 1558 (1986).
 Rev. Rul. 2009-9, 2009-1 C.B. 735 (Issue 1).
 See generally James Chen, Definition, Examples, and Origins, Investopedia (Aug. 27, 2022), https://www.investopedia.com/terms/p/ponzischeme.asp [https://perma.cc/LV6P-7959].
 See David Yaffe-Bellany et al., supra note 24.
 Dietrich Knauth, FTX Bankruptcy Judge Rejects Call for New Investigation Into Crypto Exchange’s Collapse, Reuters (Feb. 15, 2023, 12:19 PM), https://www.reuters.com/legal/ftx-bankruptcy-judge-rejects-call-new-investigation-into-crypto-exchanges-2023-02-15/ [https://perma.cc/7HWV-VMEE].
 Baum v. Comm’r, 121 T.C.M. (CCH) 1315 (2021).
 See David Yaffe-Bellany et al., supra note 24.