Legal Implications of Secondary SAFT Sales

Although there were variations, in a quintessential SAFT offering, an issuer raised funds to finance the development of a platform that would be driven by tokens by selling investors a SAFT that represented the right to receive an allotment of tokens once the platform was launched. The purchase price was paid upon receipt of the SAFT and the number of tokens to be delivered in settlement was determined on the date of the token generation event, usually at a discount to the public purchase price. For many issuers, numerous delays in launching the platform have caused SAFT holders to look for pre-launch exits and, as anticipated launch dates approach, other investors to look for ways of buying tokens at discounted prices. Thus, there is a natural supply and demand for secondary transfers of SAFTs. However, such secondary sales are complicated by a number of contractual and regulatory factors which are discussed in turn below.

Secondary Sales of SAFTs vs. Secondary Forward Contracts

Most SAFTs are subject to contractual transfer restrictions that prohibit the assignment of the SAFT contract or any rights thereunder to a third party without the prior written consent of the issuer. While it may be feasible to acquire the issuer’s consent to transfer a SAFT, many holders of SAFTs may feel constrained by relationship considerations from signaling to the issuer that they are seeking to exit their investment. Similarly, issuers of SAFTs may be disinclined from consenting to such transfers to avoid (i) any implication that they are encouraging the growth of a secondary market, (ii) the complexities of policing transfer restrictions and (iii) the cost of reviewing and approving transfers, and may only agree to transfers to affiliates. Some transfer restrictions contain exceptions for partnerships or funds that wish to distribute assets pro rata to their partners or investors. To the extent such entities were the initial investors in a SAFT, distributions to their investors, whether old or new, may be possible within the contractual restrictions.

Alternatively, holders of SAFTs may gain liquidity by entering into a forward contract with a secondary investor for the tokens underlying the SAFT (a Secondary Forward Contract). Whether this approach is permissible or not depends in large part on how strict the transfer restrictions are defined in the SAFT. Questions that would need to be answered include, but are not limited to: (i) do the transfer restrictions apply to transfers of the underlying tokens or only the SAFT itself; and (ii) do the transfer restrictions encompass indirect transfers or transfers of the economic rights under a SAFT? Assuming counsel can get comfortable that a Secondary Forward Contract is permissible under the SAFT’s transfer restrictions, a number of difficult regulatory issues then arise.

Regulatory Issues with Secondary Forward Contracts

A Secondary Forward Contract can be understood as a physically settled contingent prepaid forward contract obligating the seller to deliver certain tokens, if and when issued, to the buyer in exchange for the payment of an upfront purchase price. The regulatory treatment of this type of prepaid forward contract will depend in large part on the legal characterization of the underlying tokens: are they securities, commodities or “something else.”

Tokens as Securities. Whether a digital token is a security under the U.S. securities laws has been the central issue facing initial coin offerings and SAFTs since inception and has been the primary subject of many court cases and regulatory writings, including the SEC’s Report of Investigation on the DAO, numerous SEC enforcement actions and the SEC’s Framework for “Investment Contract” Analysis of Digital Assets. The legal analysis of whether a digital token is a security hinges on the application of the Howey test, as set out in the 1946 case SEC v. W.J. Howey Co. Much has been written on this question, and so we do not review the application of the Howey test to digital assets here, but note that many SAFTs were based on the legal theory that, although the SAFT itself was a security which would be sold to investors in a private placement exempt from the registration requirements of the Securities Act, the tokens, once generated, would not be securities. However, in a number of cases, the SEC and courts have found that the tokens underlying SAFTs were securities.

Assuming that the tokens, when generated and issued, are securities, the question becomes how do the securities laws apply to the forward sale of such tokens by the holder of a SAFT to a third party buyer? If we assume that the holder of the SAFT is on-selling “restricted securities” (i.e., securities that were acquired in a transaction or chain of transactions not involving a public offering), the conventional analysis would proceed as follows: Under the Securities Act every offer and sale of a security requires registration with the SEC unless a valid exemption from registration is available. Section 4(a)(1) exempts transactions “by a person other than an issuer, underwriter, or dealer.” A person is an “underwriter” under Section 2(a)(11) of the Securities Act if they acquire securities with a view to “distribution” or are participating in a “distribution,” which, as a practical matter, can be understood to mean an offering that is not a private offering. A holder of securities who wishes to resell them privately under section 4(a)(1) therefore must sell in a transaction that is sufficiently “private” to avoid their being considered an underwriter. The SEC and securities lawyers have come to accept a practice of imposing various restrictions on sale as permitting a resale to be eligible under Section 4(a)(1). This practice is referred to as “Section 4(1-1/2).” (Alternatively, a safe harbor from “underwriter” status is provided by Rule 144 for public resales by holders of securities who have held securities for a minimum holding period and meet certain other requirements.) Analyzed this way, a Secondary Forward Contract would simply need to comply with the well-developed private resale restrictions under Section 4(1-1/2). An interesting question is whether the seller is offering to sell and deliver those particular tokens that they will receive upon settlement of the SAFT or instead offering for sale generic tokens of the same class. If, at or around the time of settlement of the Forward Contract, the seller were able to sell the tokens it receives in settlement of the SAFT in a valid public sale and use the proceeds to purchase new “clean” tokens (i.e., a “double print”) to be delivered under the Forward Contract, then arguably the seller is not offering restricted securities under the forward contract.

A potential and significant roadblock, however, is the legal analysis applied by the Southern District of New York in the Telegram case. In the Telegram case, the court found that the initial placements of the SAFTs were not valid private placements and that the investors in those SAFTs were statutory underwriters with respect to the sale of the underlying tokens to the ultimate buyers once the token generation event occurs. This raises the question of whether the status of such investors as underwriters would also apply to such investors acquiring tokens through Secondary Forward Contracts prior to the token generation event. If so, resales by such investors that are not registered under the Securities Act might be subject to SEC enforcement actions or eventual claims for rescission by disappointed buyers under section 12(a)(1) Securities Act. The court’s interpretation may also create additional pitfalls for the unwary Secondary Forward Contract participant. For example, Rule 101 of Regulation M prohibits underwriters, among others, from bidding for, purchasing, or attempting to induce any other person to bid for or purchase a covered security for a specified period of time. Under the court’s interpretation, investors reselling tokens received in settlement of the SAFT, as underwriters, would be required to comply with the requirements of Rule 101 of Regulation M. Such investors would also need consider whether their resale activity constitutes “broker” activity as defined in Section 3(4) Securities and Exchange Act of 1934 (the Exchange Act). Non-compliance with Regulation M and the broker registration requirements of the Exchange Act is punishable by both fine and sanction.

Tokens as Commodities. Assuming the underlying tokens acquired through Secondary Forward Contracts are “commodities” within the meaning of the Commodities Exchange Act (the CEA), then the Commodity Futures Trading Commission (the CFTC) may have regulatory authority over Secondary Forward Contracts, depending on whether the contract falls within the CFTC’s existing transactional jurisdictional buckets.

Since its enforcement action against Coinflip Inc. in September 2015, the CFTC has consistently taken the position in other enforcement actions, interpretive guidance and public statements that virtual currencies are “commodities,” as that term is defined in the CEA. The CFTC addressed the scope of the term “virtual currency” in its March 2020 Final Interpretive Guidance on Retail Commodity Transactions Involving Certain Digital Assets. There, the CFTC declined to create a bright line definition but instead adopted a broad interpretation:

“[V]irtual or digital currency encompasses any digital representation of value … that functions as a medium of exchange, and any other digital unit of account that is used as a form of a currency (i.e., transferred from one party to another as a medium of exchange); may be manifested through units, tokens, or coins, among other things; and may be distributed by way of digital ‘smart contracts,’ among other structures.”

Assuming counsel concludes that the tokens underlying a Secondary Forward Contract are “commodities,” then how should the Secondary Forward Contract be analyzed under the CEA? As a first principle, the CFTC’s regulatory jurisdiction is limited to certain transactional buckets. Generally, these buckets include futures contracts, options on futures contracts and swaps, although the CFTC does have limited anti-fraud and anti-manipulation authority over spot contracts on commodities. One would like to think that a forward sale of tokens should be no different from any commercial sale of a commodity – like, for example, a manufacturer of a sweet beverage buying corn syrup where the delivery is delayed for some period of time. Surely, these are not regulated by the CFTC! However, the analysis is much more nuanced. Such commercial forward contracts are unregulated only by virtue of specific, limited exclusions under the CEA.

Under these exclusions, a forward contract is a commercial merchandizing contract between commercial parties contemplating deferred delivery of a non-financial commodity (such as an agricultural, energy or metals commodity) where delivery routinely occurs. These types of forward contracts are explicitly excluded from regulation as futures contracts. In addition, forward contracts on “non-financial commodities” (and on securities) are excluded from the definition of “swap” so long as the parties intend to physically settle the transactions. Thus, there are at least two possible reasons that the tokens underlying a Secondary Forward Contract might not benefit from these exclusions: (i) they may be considered financial commodities and (ii) investors or speculators may not be considered commercial merchants. Without an exclusion, a Secondary Forward Contract would likely be deemed a “swap” by the CFTC.

The most immediate consequence of this determination is that swaps may only be entered into between eligible contract participants (ECPs). For individuals, this means having at least $10 million of gross assets invested on a discretionary basis or $5 million if the swap is to hedge an existing position. A swap entered into by parties who are not ECPs would be in violation of the CEA and CFTC regulation and both parties could face penalties and sanctions. In addition, swaps are subject to certain reporting requirements. Thus, if Secondary Forward Contracts are swaps, the number of potential qualified counterparties for such transactions may be limited.

Tokens as “Something Else.” The lines between different types of digital assets can be complex and confusing. Industry commentators have pointed out technical distinctions between tokens, coins, digital currencies and virtual currencies. Some commentators have argued that certain tokens may be “utility tokens” with the implication that they are neither securities nor commodities. While it is possible that some tokens underlying SAFTs may fall between the jurisdictional cracks of the SEC and CFTC and therefore not be subject to any federal regulatory scrutiny, this appears highly unlikely.

U.S. Federal Income Tax treatment of SAFTs and Secondary Contract on a SAFT

The IRS and Treasury Department have published minimal guidance on the tax treatment of virtual currency and no guidance on SAFTs or secondary forward contracts on SAFTs. Accordingly, it is difficult to determine the appropriate U.S. federal income tax treatment of a secondary forward contract on a SAFT.

In 2014, the IRS issued Notice 2014-21 and updated it with FAQs that provided that convertible virtual currency is treated as “property and general tax principles applicable to property transactions apply to transactions using virtual currency”. Thus, a corporation’s issuance of such virtual currency tokens is taxable for U.S. federal income tax purposes. Although there is no definitive guidance, it is likely that digital tokens underlying SAFTs would be considered property for U.S. federal income tax purposes. In light of limited guidance classifying tokens as property, some practitioners have attempted to embed terms and rights into the token instrument that cause the token to be classified as equity or, less frequently, debt under fundamental tax principles. A corporation that issues equity or debt is not taxable on the issuance of either.

If a virtual currency token is classified as property for U.S. federal income tax purposes, a SAFT which entitles the holder to receive a certain number of tokens upon issuance might be characterized as an executory contract, or a forward contract, to buy the virtual currency token. A “traditional forward contract” has been defined as an executory contract pursuant to which the buyer agrees to purchase from the seller a fixed quantity of property at a fixed price, with payment and delivery to occur on a fixed future date. Section 1259(d)(1) of the Internal Revenue Code of 1986, as amended (the Code), discussed below, provides that for purposes of section 1259, “forward contract means a contract to deliver a substantially fixed amount of property (including cash) for a substantially fixed price.”

Several federal tax cases and published rulings provide that forward contracts to acquire property are open transactions for federal income tax purposes and no taxable event should occur until the seller delivers legal title and possession of the property to the buyer. However, almost all of these authorities address circumstances in which a buyer, upon entering into the contract, either: (1) does not make an upfront payment, (2) pays a refundable deposit to the seller or (3) pays a non-refundable amount which represents a relatively low percentage of the ultimate purchase price.

In contrast, many SAFTs require upfront payments which constitute a significant portion of the ultimate purchase price of a fixed number of tokens that are subject to the SAFT. Even though this factor weighs against open transaction treatment for a SAFT (because a significant non-refundable prepayment suggests that a taxable sale has occurred and authority is distinguishable), if the token does not yet exist because it is under construction, it is possible that even with the substantial upfront payment, the SAFT might still be considered to be a forward contract subject to open transaction treatment for federal income tax purposes. (In Revenue Ruling 2003-7, the IRS held that a seller of stock that is the subject of a variable prepaid forward contract escapes constructive sale treatment both under common law principles and because section 1259 of the Code is inapplicable due to the variable amount of stock that is required to be delivered to buyer pursuant to the contract.) Thus, the corporate issuer might be able to defer income until the date of the issuance of the token to the SAFT holder in satisfaction of the SAFT. (A different conclusion might be reached if the issuance of tokens is imminent.)

Secondary Forward Contract on a SAFT

What happens when the holder of a SAFT enters into a forward contract and accepts payment for the future delivery of a fixed number of the tokens underlying the SAFT? At issue is whether the SAFT holder is treated as constructively selling the SAFT upon entering into the prepaid forward contract in exchange for a significant cash payment approximately equal to the purported fair market value of the SAFT.

The taxation of the secondary forward contract seller may differ from the taxation of the corporate seller/issuer of the SAFT, which cannot provide the token because it does not exist yet. The SAFT itself may be an appreciated financial position because later issued SAFTs with respect to the same to-be-issued token cost more (i.e., are issued at a smaller discount to the face value of the token) or because the fair market value of the SAFT on the secondary market has appreciated.

A secondary forward contract with respect to a SAFT seems to be much closer to the constructive sale fact pattern outlined by section 1259 of the Code and is distinguishable from common law and IRS authorities which permit open transaction treatment either due to a small upfront payments or due to the terms of a limited class of variable prepaid forward contracts.

Currently, section 1259 of the Code applies to an appreciated position (including a forward contract) in stock, a debt instrument or a partnership interest, “if there would be gain were such position sold, assigned, or otherwise terminated at its fair market value.” Section 1259 does not currently appear to apply to an interest in virtual currency tokens. However, there is significant risk that a prepaid secondary forward contract on a SAFT could be a constructive sale, if Congress extended section 1259 to apply to virtual currency tokens, or the IRS determined that, based on the certain compelling facts, the common law constructive sale rules apply to cause a secondary forward contract on a SAFT to trigger a constructive sale of such SAFT.

The lack of guidance on tokens, SAFTs, and secondary forward contracts on SAFTs means that it is virtually impossible to determine the U.S. federal income tax treatment of the various instruments with certainty and whether or not a constructive sale occurs upon entering into one or more of these agreements. Therefore, SAFT holders who enter into a secondary forward contract on the SAFT should consult their tax advisors to determine whether, based on the specific facts of the transaction, entering into the secondary forward contract likely results in a constructive sale of the SAFT for tax purposes and the applicable tax reporting requirements.

Conclusion

From their inception, the issuance of SAFTs presented difficult and controversial legal issues under the securities, commodities and tax laws in the United States. In the meantime, secondary transfers of interests in existing SAFTs similarly present a set of difficult issues and risks that should be carefully considered by both prospective sellers and buyers in consultation with their legal advisers.