Beware the CGT loan trap

What is the CGT loan trap?

The Capital Gains Tax (CGT) loan trap, is where you take a bitcoin-backed loan, expecting that providing the collateral does not trigger CGT, only to find that it does trigger CGT.

Oof.

It's a particularly dangerous trap for plebs because bitcoin collateralised lending typically requires over-collateralisation which is often 2x the amount being borrowed. This means if CGT is triggered on the provision of the collateral, your CGT is 2x the CGT bill had you just sold down the bitcoin for the amount you borrowed.

That's without adding the additional cost of the interest on the loan; more oof.

Why it's important to pay attention to this

Firstly because if you're caught in the trap, you're the one who is liable and not the Lender.

Secondly, because all bitcoin transactions are permanent records and you can reasonably assume that future tax collection sleuths will backtrack through yesterday's transactions. Lenders who KYC their customers provide an easy data collection point for tax collectors, and that data doesn't go away.

And lastly, because there is no emerging signs of fiscal responsibility at the sovereign level, so it's reasonable to assume tax agencies are being directed to increase collections .. and bitcoiners aren't going to get any sort of pass there.

And of course, the bigger the Bitcoin network grows, the more attractive bitcoin collateralised lending will be, and the the more attention it will garner .. and some of that will be from tax collectors.

So, what determines if CGT is applicable?

The concept of beneficial ownership is the relevant term to understand and pay attention to. A **change in beneficial ownership **is what tax authorities use as the trigger to determine if a CGT event has occurred. This isn't a term or concept isolated to my country (Australia) or the US or the UK or Europe - it's one that's been actively harmonised across the G20. It applies to all asset classes.

The *beneficial owner *is the one who enjoys the benefits of the asset. It's slightly different to the concept of legal owner which is the person or entity on a government register as the "owner" of the asset.

And if you're a bitcoiner reading this, you're probably already aware that there is no government register of the "ownership of bitcoin" - that's very literally what the timechain, and your bitcoin private keys, are .. but we digress.

Where there is a change in the beneficial owner of an asset, that triggers a CGT liability. This isn't new, it's not related to bitcoin specifically but to all asset classes, and it is consistent over a wide group of countries. The way that each jurisdiction legislates, enforces and applies it will vary somewhat.

So let's explore how that relates to providing collateral in bitcoin-backed loans.

Types of bitcoin backed loans

Bitcoin represents pristine and unimpeachable collateral, so any dollar lender should be happily accepting it as collateral from their perspective. But let's focus on the issue of changing beneficial ownership and how that ties into the borrower's CGT liabilities.

There are loans available from platforms that provide the dollar liquidity, and there are loans from peers.

Loans from platforms

Loans from platforms are going to require KYC information because there is a centralised lender and that will come with a legal construct. The three things to pay attention to are:

1. Legal terms and conditions

   Ideally, the platform terms should have a statement that acknowledges the unchanged beneficial ownership of the collateral by the borrower, as long as the borrower does not default on the loan.

   There may not be such a statement, and if there is not, then the next point on how the collateral is managed needs some careful attention.

   The immediate red-flag is if the terms categorically state that there is a change of beneficial ownership of the collateral; being a party to such a contract would legally acknowledge that you transferred beneficial ownership, triggering CGT.

   **NB: **The legal terms and conditions should be generally accessible. If they aren't available then request them from support. If they're not forthcoming, then it's a giant red flag and I'd recommend you exit stage left.

2. How the collateral is custodied

   A key test that is used to determine if beneficial ownership has changed is the custody of the asset(s). If bitcoin as collateral is kept in a discrete location, and is not pooled with other collateral, then there is a strong case to maintain the chain of unbroken beneficial ownership.

   By contrast, collateral that is sent into a "pool" can be deemed to be disposed of, since it's not the same bitcoin that is being returned on successful completion of the loan. I am personally aware of plebs who have been "bitten" by using lending services who "pool" collateral from multiple loans into a pool, and consequently receive different bitcoin on loan completion. The safe assumption is that collateral that is pooled, will be deemed a disposal for CGT events.

3. Whether collateral can be re-hypothecated

   Ignoring the very dubious issues around re-hypothecation more generally, (who remembers BlockFi, Celsius, Genesis, 3Arrows Capital etc), from a CGT trigger event perspective, if collateral can be re-hypothecated, it will likely be deemed a disposal for CGT purposes.

Loans that are peer-to-peer

There are other borrowing mechanisms that are based on enabling borrowing interaction directly between peers. These typically do not need to introduce the privacy and security risks of KYC, and so consequently do not require a specific legal contract between the peers.

The "terms" of the agreement are defined in the code that implements the contract between the parties, with the collateral held in a multi-party escrow, and returned to the Borrower should they successfully repay their loan. Only if the loan is NOT repaid, or needs to be liquidated, does the collateral change ownership.

In an ideal world, the usage terms for such platforms would acknowledge that the collateral provided by the Borrower remains their unchanged beneficial ownership unless the contract is liquidated, or the loan is not repaid.

Examples of platforms that allow peers to connect and create contracts for borrowing between themselves include Debifi, Lend at HodlHodl,* Firefish *and Lendasat.

How did I end up down this rabbit hole?

I narrowly avoided falling into precisely this trap recently when I was considering a loan from https://ledn.io I was curious that the Loan terms weren't available to review on their site, or from the customer dashboard after I signed up.

They happily provided them on request (https://www.ledn.io/legal/usd-loan-agreement), and once I got to Section 7 (b), it became clear this wasn't a product I wanted to use because every supply of collateral to Ledn, for any loan, would automatically trigger a CGT event.

Ledn, like every other lending platform, do not offer tax advice, and are clear to state the tax implications of using their products are up to the borrower to assess with their appropriate advisors.

Like many things in Bitcoin, this then made me curious about how widespread this practice was, what the underlying legal definitions were, how widely and harmoniously they were applied .. and here we are .. writing (and reading) blog posts!

So why borrow against your bitcoin at all?

Bitcoin-backed loans can potentially provide a mechanism to access dollars, without selling your bitcoin, and thereby deferring CGT on the sale of bitcoin.

For bitcoiners who've humbly stacked sats for several cycles, borrowing against your bitcoin, may provide a mechanism to further delay spending or selling sats, thereby increasing your purchasing power further.

When you borrow against your bitcoin, you are expecting bitcoin to continue to increase in purchasing power, and at a higher rate than the cost of the interest on the loan. Based on 16 years of bitcoin price history, this is a pretty safe assumption.

Don't however, make assumptions on CGT events that can potentially undermine the entire financial logic of going down this route in the first place; check carefully.

What will definitely trigger a CGT event?

Firstly and most obviously, if you take a bitcoin collateralised loan, and fail to repay the loan or are margin called and liquidated, then that portion of the collateral required to extinguish your loan will be sold. That's clearly a change of beneficial ownership, and that transaction will trigger a CGT liability.

Next, any service or product which explicitly requires you to acknowledge a change of beneficial ownership of the collateral on lodgement, will also trigger a CGT event.

After that, as we outlined earlier, pay close attention to collateral custody mechanisms and transparency and clarity on re-hypothecation - both of which are potential CGT trigger events.

So what's worth checking out?

Currently these are the lending offers that I'm aware of that are worth considering and I understand don't fall foul of the three key aspects outlined above.

• https://debifi.com

• https://firefish.io

• https://lend.hodlhodl.com

• https://lendasat.com/

As always, do your own checking, and validate with your accounting/legal advisors; the consequences of getting this wrong are potentially significant.

To be clear, I've no financial interest in any of these platforms, nor have I been paid to write this article, nor do I use referral codes. I have used some of these platforms, and believe them all to be operated by reputable teams with high integrity.

Final thoughts

Lastly, for those coming to the @bitcoinbushbash at the end of July in Palm Cove Queensland, I'll be presenting a session on this topic.