|
Title: [No] Did FinCEN overstate the money transmitter definition in their guidance? Post by: DeathAndTaxes on August 08, 2013, 11:46:18 PM On edit: DOH. I realized somehow I had window open with outdated (2009) version of the regs. Well prior to 2011 when the reg was updated it would have been a decent argument. The latest version of the regs however are symmetric so no joy there.
Quote 5) Money transmitter —(i) In general. (A) A person that provides money transmission services. The term “money transmission services” means the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means. “Any means” includes, but is not limited to, through a financial agency or institution; a Federal Reserve Bank or other facility of one or more Federal Reserve Banks, the Board of Governors of the Federal Reserve System, or both; an electronic funds transfer network; or an informal value transfer system Since you can't delete anything from this forum I will leave the original incorrect post below so everyone can see my mistake. Quote I was rereading the Bitcoin Foundation's response to DFI and the section dealing with the asymmetry of the MT law in CA. At first it caused me to first say "man I wish the federal law was written similarly" and then made me check to see what the wording actually was. In the guidance dated FinCEN states Quote The term "money transmission services" means "the acceptance of currency, funds, or other value that substitutes for currency from one person and the transmission of currency, funds, or other value that substitutes for currency to another location or person by any means."11 11) 31 CFR § 1010.100(ff)(5)(i)(A). http://www.fincen.gov/statutes_regs/guidance/html/FIN-2013-G001.html However what does the actual regulate states. Quote 31 C.F.R. 103.11(uu)(5) (5) Money transmitter— (i) In general. Money transmitter: (A) Any person, whether or not licensed or required to be licensed, who engages as a business in accepting currency, or funds denominated in currency, and transmits the currency or funds, or the value of the currency or funds, by any means through a financial agency or institution, a Federal Reserve Bank or other facility of one or more Federal Reserve Banks, the Board of Governors of the Federal Reserve System, or both, or an electronic funds transfer network; http://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=a7e1bef2c8dbac0d6893186f0c01390c&n=31y3.1.6.1.2&r=PART&ty=HTML#31:3.1.6.1.2.1.3.1 Removing the aspects not in dispute it becomes: Quote accepting currency, or funds denominated in currency, and transmits the currency or funds, or the value of the currency or funds The actual definition doesn't provide three criteria for accepting and transmitting as the guidance indicates but rather two criteria for accepting and a third criteria for transmitting. Accepting: a) currency b) funds denominated in currency AND Transmitting a) currency b) funds c) the value of the currency or funds Note that despite the statement in the guidance the actual reg does not define a money transmitter as one who accepts "the value of the currency or funds" that is only included in the definition for transmission. One could argue this is merely an oversight by FinCEN however this particular reg has been updated three times. If the reg was intended to state the following as FinCEN claims they why doesn't it? Quote Any person, whether or not licensed or required to be licensed, who engages as a business in accepting currency, or funds denominated in currency, or other value that substitutes for currency and transmits the currency or funds, or the value of the currency or funds, by any means through a financial agency or institution, a Federal Reserve Bank or other facility of one or more Federal Reserve Banks, the Board of Governors of the Federal Reserve System, or both, or an electronic funds transfer network Reg 31 CFR § 1010.100(ff)(5)(i)(A) as implied by FinCEN's guidance (the bolded portion is absent from the actual regulation). Title: Re: [No] Did FinCEN overstate the money transmitter definition in their guidance? Post by: MSantori on August 09, 2013, 03:06:10 AM Don't be embarrassed. Be embarrassed when you do that in a brief and then have to dance around it in front of a judge on oral argument.
But call me first. I've done it more times than I care to admit. I can pretty much walk you through it ;) Title: Re: [No] Did FinCEN overstate the money transmitter definition in their guidance? Post by: TheButterZone on August 09, 2013, 06:10:21 AM D&T, haven't you already argued people out of your initial interpretation, or was that someone else? LOL
|