|
JohnyBigs
|
 |
June 26, 2013, 03:21:21 AM |
|
Hi Santori,
This was what I was wondering also where it mentions any user that exchanges coins for fiat is an MSB. Does that mean that businesses who accept BitCoin and then exchange them for Fiat are MSB's?
For example businesses using BitPay are having BitPay do this on their behalf therefore they would still be considered MSB's. Maybe FinCen doesn't really care about users but just about the Exchanges.
Is it possible you being a lawyer to ask for some clarification on this specific paragraph of FinCens guidance? Can users who exchange their currency through an exchange are they exempt from MSB laws, or are they covered under MSB's licenses of the exchanges?
Also send you a PM about another topic
Thanks and this Thread as been wonderful to read, makes me think sometimes I should become a lawyer haha.
|
|
|
|
|
|
|
|
|
|
|
|
|
Advertised sites are not endorsed by the Bitcoin Forum. They may be unsafe, untrustworthy, or illegal in your jurisdiction.
|
|
|
|
|
|
MSantori (OP)
|
|
July 01, 2013, 01:26:11 AM |
|
Hi Johny,
FinCEN's guidance states that persons who accept BTC in payment for goods or services - even as a business - are not MSBs.
BitPay's position is that it falls under the "payment processor" exemption to MSB registration.
Does that help?
|
Marco Santori is a lawyer, but not your lawyer, and this is not legal advice. If you do have specific questions, though, please don't hesitate to PM me. We've learned this forum isn't 100% secure, so you might prefer to email me. Maybe I can help! Depending upon your jurisdiction, this post might be construed as attorney advertising, so: attorney advertising  |
|
|
Nagle
Legendary
 Offline
Activity: 1204
Merit: 1000
|
|
July 01, 2013, 01:50:42 AM |
|
Let's take a look at Mt. Gox's legal status. Mt. Gox has now registered with FinCen. They have a registered agent in Delaware. So, can they now be sued in Delaware courts? Japan regulates payment services under the Payment Services Act. This allows non-banks to engage in payment services, and most of the wireless carriers in Japan now offer payment systems. There's a registration requirement, and various audit and capital requirements. Does Mt. Gox need to register? Have they? |
|
|
|
|
|
Viceroy
|
|
July 01, 2013, 02:20:07 AM |
|
FinCEN's guidance states that persons who accept BTC in payment for goods or services - even as a business - are not MSBs.
Isn't it true that if my "good" is $US Dollars and I accept bitcoin payments for them then I'm an MSB by definition right? |
|
|
|
|
|
MSantori (OP)
|
|
July 01, 2013, 02:37:26 AM |
|
Let's take a look at Mt. Gox's legal status. Mt. Gox has now registered with FinCen. They have a registered agent in Delaware. So, can they now be sued in Delaware courts? Japan regulates payment services under the Payment Services Act. This allows non-banks to engage in payment services, and most of the wireless carriers in Japan now offer payment systems. There's a registration requirement, and various audit and capital requirements. Does Mt. Gox need to register? Have they? I can't speak to Japanese law. As to US law, there are two levels of money transmission regimes: state and federal. In practice, registration with the federal government (via FinCEN) is a fairly ministerial act: fill out a form, click a button. The more interesting question is whether MtGox will register with any or all of the states. Registration as a money transmitter with the states is required for any state in which the business has a physical presence. More and more state are stating explicitly, however, that even soliciting or servicing their citizens makes you a money transmitter in that state. Thus, MtGox will have to register under state law as well. This is a financially burdensome and time-consuming process that can cost millions and take over eighteen months. Each state has its own complex regulatory regime, including bonding requirements and personal financial investigation. As such, MtGox might instead seek to team up with already-existing money transmitters in each state. That kind of agency relationship comes with its own costs to be paid to those money transmitters, and will likely cut into its bottom line. So, I don't know whether Mt. Gox is compliant with Japanese law. As to US law, I don't know whether they will seek state licenses. That will be the test of how compliant it is willing to become. |
Marco Santori is a lawyer, but not your lawyer, and this is not legal advice. If you do have specific questions, though, please don't hesitate to PM me. We've learned this forum isn't 100% secure, so you might prefer to email me. Maybe I can help! Depending upon your jurisdiction, this post might be construed as attorney advertising, so: attorney advertising |
|
|
yu77889
Newbie
Offline
Activity: 8
Merit: 0
|
|
July 01, 2013, 03:47:21 AM |
|
Hi Johny,
FinCEN's guidance states that persons who accept BTC in payment for goods or services - even as a business - are not MSBs.
BitPay's position is that it falls under the "payment processor" exemption to MSB registration.
Does that help?
MSantori, thank you for offering guidance here. In my mind, it is "chilling" and sadly squelching innovation by simply producing contextual uncertainty to any entrepreneurial assessment about future obligations. What does it mean when BitPay says it is "payment processor"? What exemption is this? Aren't they subject to MSB and MTB considerations in the US. I think I heard the have over 8,000 companies using their platform. Aren't they are target for licensing within any of the 50 US states? This thread does a good job dissecting some of the law and I think I am following it. More specifically, what is the law for a "payment processor" which might possibly be used for an exemption? It seems many of us would like to sit in that exception. |
|
|
|
|
ProfMac
Legendary
Offline
Activity: 1246
Merit: 1001
|
|
July 02, 2013, 12:53:09 AM
Last edit: July 02, 2013, 01:07:39 AM by ProfMac |
|
|
I try to be respectful and informed.
|
|
|
darkmule
Legendary
Offline
Activity: 1176
Merit: 1005
|
|
July 02, 2013, 07:50:52 PM |
|
Let's take a look at Mt. Gox's legal status. Mt. Gox has now registered with FinCen. They have a registered agent in Delaware. So, can they now be sued in Delaware courts? To the extent they were previously doing business in Delaware and had "sufficient minimum contacts" with the state, they could have been sued previously. Having a registered agent just makes it easier to accomplish service and establish personal jurisdiction. It seems they will probably have to register in other states as well if they want to do business, though I am not certain what penalties they face in each jurisdiction if they don't. But generally, if a corporation is doing business with the people of a state, those people are generally going to be able to argue "specific jurisdiction," that is, they can take that corporation to court at least over their own business transactions, even if Joe Random who had an unrelated beef with the corporation couldn't. That's a good general rule, even though it is possible to imagine exceptions: i.e. you sign up with Gox in Delaware, give a Delaware bank account info, then move to Wyoming, where you are their only customer, and don't update your address. (Of course if they run afoul of "Know Your Customer" rules by not keeping track of them there might be an issue there.) |
|
|
|
|
|
MSantori (OP)
|
|
July 03, 2013, 03:46:41 AM |
|
This thread does a good job dissecting some of the law and I think I am following it. More specifically, what is the law for a "payment processor" which might possibly be used for an exemption? It seems many of us would like to sit in that exception.
I can give a thoughtful explanation of the payment processor exemption. Or, I can relay on Bitpay to do it! Check out this blog post: http://blog.bitpay.com/2013/03/how-fincen-guidelines-affect-bitpay.htmlBitpay says it's a payment processor because it sits between the merchant and the customer, only accepting enough value from the customer to pay for the good or service purchased from the merchant. It then transfers that, and only that, value to the merchant. therefore, Bitpay says, it is a mere payment processor. I'm not saying Bitpay is right (in fact, I see one particular reason why they may not be a mere payment processor, but I won't get into that now). I'm saying that this is the exemption upon which their business model is premised. In any event, to rely upon that exemption, all a bitcoin business need do is facilitate the payment of a merchant's good or service, accepting funds only integral to that payment. |
Marco Santori is a lawyer, but not your lawyer, and this is not legal advice. If you do have specific questions, though, please don't hesitate to PM me. We've learned this forum isn't 100% secure, so you might prefer to email me. Maybe I can help! Depending upon your jurisdiction, this post might be construed as attorney advertising, so: attorney advertising |
|
|
|
sbfree
|
|
July 03, 2013, 04:44:13 AM |
|
|
|
|
|
|
TheButterZone
Legendary
Offline
Activity: 3052
Merit: 1031
RIP Mommy
|
|
July 03, 2013, 05:56:21 AM
Last edit: July 03, 2013, 08:40:10 PM by TheButterZone |
|
|
Saying that you don't trust someone because of their behavior is completely valid.
|
|
|
|
|
|
MSantori (OP)
|
|
July 05, 2013, 07:52:00 PM |
|
There are a few threads on this, but I have posted here: https://bitcointalk.org/index.php?topic=241314.320I believe that is the definitive thread. |
Marco Santori is a lawyer, but not your lawyer, and this is not legal advice. If you do have specific questions, though, please don't hesitate to PM me. We've learned this forum isn't 100% secure, so you might prefer to email me. Maybe I can help! Depending upon your jurisdiction, this post might be construed as attorney advertising, so: attorney advertising |
|
|
|
MSantori (OP)
|
|
July 10, 2013, 03:47:41 AM |
|
|
Marco Santori is a lawyer, but not your lawyer, and this is not legal advice. If you do have specific questions, though, please don't hesitate to PM me. We've learned this forum isn't 100% secure, so you might prefer to email me. Maybe I can help! Depending upon your jurisdiction, this post might be construed as attorney advertising, so: attorney advertising |
|
|
|
btceic
|
|
July 10, 2013, 04:45:00 AM |
|
Congrats Marco! The community thanks you for taking this bold step! |
|
|
|
NewLiberty
Legendary
Offline
Activity: 1204
Merit: 1002
Gresham's Lawyer
|
|
July 10, 2013, 06:39:43 AM |
|
Nicely done counselor! Welcome to the club, we'll make an honest man out of you yet.  |
|
|
|
RapidCoinz
Member
Offline
Activity: 81
Merit: 10
|
|
July 10, 2013, 08:49:29 PM |
|
Nice one mate! Great to see!! Take my hat off to you! Buena Suerte!! |
|
|
|
|
|
|
|
QuantumQrack
|
|
July 12, 2013, 07:10:07 AM |
|
Interesting that a law firm crawls out of their fucking hole so soon after the FinCEN guidance.
Involved in cryptocurrency for a while you say?
You are just a benevolent community member, right?
What were the key words that convinced your law firm to accept bitcoin?
What a sad circus regulation and the law are.
|
|
|
|
|
|
Viceroy
|
|
July 12, 2013, 11:26:48 AM |
|
Interesting that a law firm crawls out of their fucking hole so soon after the FinCEN guidance.
Involved in cryptocurrency for a while you say?
You are just a benevolent community member, right?
What were the key words that convinced your law firm to accept bitcoin?
What a sad circus regulation and the law are.
Go away criminal moron. Yea, let's all live in in anarchy  |
|
|
|
|
|
