Will new US SEC rules bring crypto companies onshore?
Once, long ago, cryptocurrency companies operated comfortably in the US. In that quaint, bygone era, they would often conduct funding events called “initial coin offerings,” and then use those raised funds to try to do things in the real and blockchain world.
Now, they largely do this “offshore” through foreign entities while geofencing the United States.
The effect of this change has been dramatic: Practically all major cryptocurrency issuers started in the US now include some off-shore foundation arm. These entities create significant domestic challenges. They are expensive, difficult to operate, and leave many crucial questions about governance and regulation only half answered.
Many in the industry yearn to “re-shore,” but until this year, there has been no path to do so. Now, though, that could change. New crypto-rulemaking is on the horizon, members of the Trump family have floated the idea of eliminating capital gains tax on cryptocurrency, and many US federal agencies have dropped enforcement actions against crypto firms.
For the first time in four years, the government has signaled to the cryptocurrency industry that it is open to deal. There may soon be a path to return to the US.
Crypto firms tried to comply in the US
The story of US offshoring traces back to 2017. Crypto was still young, and the Securities and Exchange Commission had taken a hands-off approach to the regulation of these new products. That all changed when the commission released a document called “The DAO Report.”
For the first time, the SEC argued that the homebrew cryptocurrency tokens that had developed since the 2009 Bitcoin white paper were actually regulated instruments called securities. This prohibition was not total — around the same time as The DAO Report’s launch, SEC Director of Corporate Finance William Hinman publicly expressed his views that Bitcoin (BTC) and Ether (ETH) were not securities.
To clarify this distinction, the commission released a framework for digital assets in 2019, which identified relevant factors to evaluate a token’s security status and noted that “the stronger their presence, the less likely the Howey test is met.” Relying on this guidance, many speculated that functional “consumptive” uses of tokens would insulate projects from securities concerns.
In parallel, complicated tax implications were crystallizing. Tax advisers reached a consensus that, unlike traditional financing instruments like simple agreements for future equity (SAFEs) or preferred equity, token sales were fully taxable events in the US. Simple agreements for future tokens (SAFTs) — contracts to issue future tokens — faced little better tax treatment, with the taxable event merely deferred until the tokens were released. This meant that a token sale by a US company would generate a massive tax liability.
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Projects tried in good faith to adhere to these guidelines. Lawyers extracted principles and advised clients to follow them. Some bit the bullet and paid the tax rather than contriving to create a foreign presence for a US project.
How SEC v. LBRY muddied waters
All this chugged along for a few years. The SEC brought some major enforcement actions, like its moves against Ripple and Telegram, and shut down other projects, like Diem. But many founders still believed they could operate legally in the US if they stuck to the script.
Then, events conspired to knock this uneasy equilibrium out of balance. SEC Chair Gary Gensler entered the scene in 2021, Sam Bankman-Fried blew up FTX in 2022, and an unheralded opinion from Judge Paul Barbadoro came out of the sleepy US District Court for the District of New Hampshire in a case called SEC v. LBRY.
The LBRY case is a small one, affecting what is, by all accounts, a minor crypto project, but the application of law that came out of it had a dramatic effect on the practice of cryptocurrency law and, by extension, the avenues open to founders.
Judge Barbadoro conceded that the token may have consumptive uses but held that “nothing in the case law suggests that a token with both consumptive and speculative uses cannot be sold as an investment contract.”
He went on to say that he could not “reject the SEC’s contention that LBRY offered [the token] as a security simply because some [token] purchases were made with consumptive intent.” Because of the “economic realities,” Barbadoro held that it did not matter if some “may have acquired LBC in part for consumptive purposes.”
This was devastating. The holding in LBRY is, essentially, that the factors proposed in the SEC framework largely do not matter in actual securities disputes. In LBRY, Judge Barbadoro found that the consumptive uses may be present, but the purchasers’ expectation of profit predominated.
And this, it turned out, meant that virtually any token offering might be considered a security. It meant that any evidence that a token was marketed as offering potential profit could be used against you. Even the supposition that it seemed likely that people bought it to profit could be fatal.
Regulation and hope drove firms offshore
This had a chilling effect. The LBRY case and related case law destabilized the cryptocurrency project landscape. Instead of a potential framework to work within, there remained just a single vestige of hope to operate legally in the US: Move offshore and decentralize.
Even the SEC admitted that Bitcoin and ETH were not securities because they were decentralized. Rather than having any promoter who could be responsible for their sale, they were the products of diffuse networks, attributable to no one. Projects in 2022 and 2023 were left with little option but to attempt to decentralize.
Related: Ripple celebrates SEC’s dropped appeal, but crypto rules still not set
Inevitably, the operations would begin in the United States. A few developers would create a project in a small apartment. As they found success, they wanted to fundraise — and in crypto, when you fundraise, investors demand tokens. But it’s illegal to sell tokens in the US.
So, their VC or lawyer would advise them to establish a foundation in a more favorable jurisdiction, such as the Cayman Islands, Zug in Switzerland, or Panama. That foundation could be set up to “wrap” a decentralized autonomous organization (DAO), which would have governance mechanisms tied to tokens.
Through that entity or another offshore entity, they would either sell tokens under a Regulation S exemption from US securities law or simply give them away in an airdrop.
In this way, projects hoped they could develop liquid markets and a sizable market cap, eventually achieving the “decentralization” that might allow them to operate legally as an entity in the US again.
Several crypto exchanges were incorporated in friendlier jurisdictions in 2023. Source: CoinGecko
These offshore structures didn’t just provide a compliance function — they also offered tax advantages. Because foundations have no owners, they aren’t subject to the “controlled foreign corporation” rules, under which foreign corporations get indirectly taxed in the US through their US shareholders.
Well-advised foundations also ensured they engaged in no US business activities, preserving their “offshore” status.
Presto: They became amazing tax vehicles, unburdened by direct US taxation because they operate exclusively offshore and are shielded from indirect US taxation because they are ownerless. Even better, this arrangement often gave them a veneer of legitimacy, making it difficult for regulators to pin down a single controlling party.
After the formation, the US enterprise would become a rump “labs” or “development” company that earned income through licensing software and IP to these new offshore entities — waiting for the day when everything would be different, checking the mail for Wells notices, and feeling a bit jumpy.
So, it wasn’t just regulation that drove crypto offshore — it was hope. A thousand projects wanted to find a way to operate legally in the United States, and offshore decentralization was the only path.
A slow turning
Now, that may change. With President Donald Trump in office, the hallways of 100 F Street in Washington, DC may just be thawing. SEC Commissioner Hester Peirce has taken the mantle and is leading the SEC’s Crypto Task Force.
In recent weeks, Peirce has expressed interest in offering prospective and retroactive relief for token issuers and creating a regulatory third way where token launches are treated as “non-securities” through the SEC’s Section 28 exemptive authority.
At the same time, evolutions in law are beginning to open the door for onshore operations. David Kerr of Cowrie LLP and Miles Jennings of a16z have pioneered a new corporate form, the decentralized unincorporated nonprofit association (DUNA), that may allow autonomous organizations to function as legal entities in US states like Wyoming.
Eric Trump has proposed favorable tax treatments for cryptocurrency tokens, which, though it might be a stretch, could offer a massive draw to bring assets back onshore. And without waiting on any official shifts in regulation, tax attorneys have come up with more efficient fundraising approaches, such as token warrants, to help projects navigate the existing system.
As a16z recently put it in a meeting with Commissioner Peirce’s Crypto Task Force, “If the SEC were to provide guidance on distributions, it would stem the tide of [tokens] only being issued to non-U.S. persons — a trend that is effectively offshoring ownership of blockchain technologies developed in the U.S.”
Maybe this time, they’ll listen.
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Blockchain infrastructure provider Figment has been selected as the staking provider for 3iQ’s newly approved Solana exchange-traded fund (ETF), underscoring Canada’s continued efforts toward adoption of digital asset financial products.
Figment will enable institutional staking for the 3iQ Solana (SOL) Staking ETF, which launches on the Toronto Stock Exchange on April 16 under the ticker SOLQ, the companies said in a statement. In addition to 3iQ, Figment provides staking infrastructure solutions to more than 700 clients.
The Ontario Securities Commission (OSC), a provincial regulator, green-lighted 3iQ’s SOL fund on April 14. The approval was also extended to other fund managers seeking to offer SOL ETFs, including Purpose, Evolve and CI.
As Bloomberg ETF analyst Eric Balchunas reported at the time, the funds are permitted to stake a portion of their SOL holdings through TD Bank, Canada’s second-largest financial institution by assets.
Source: Eric Balchunas
3iQ estimates that its SOL fund will provide yields of between 6% and 8%, according to its website.
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3iQ leads Canadian crypto ETFs as US regulators drag their feet
As US regulators continue to consider various crypto-related fund offerings, Canada has been leading the curve in adoption going back to 2021. That was the year that 3iQ debuted its spot Bitcoin (BTC) ETF, which crossed $1 billion in net assets almost immediately.
It would take nearly three more years before spot Bitcoin ETFs were approved in the United States. Like their Canadian counterparts, the US ETFs saw overwhelming success in their first year, generating more than $38 billion in net inflows.
In October 2023, 3iQ launched an ETF tied to Ether (ETH), giving investors direct access to the smart contract platform. Unlike the Ether ETFs that US regulators approved the following year, 3iQ’s fund offers staking rewards.
As Cointelegraph recently reported, US regulators may be on the cusp of approving staking rewards after they authorized exchanges to list options contracts tied to ETH.
Source: James Seyffart
Related: SEC delays staking decision for Grayscale ETH ETFs
Synthetic stablecoin developer Ethena Labs is winding down its German operations less than a month after regulators identified “deficiencies” in its dollar-pegged USDe (USDE) stablecoin, signaling heightened scrutiny around crypto assets in Europe’s largest economy.
Ethena Labs reached an agreement with Germany’s Federal Financial Supervisory Authority, also known as BaFin, to cease all operations of its local subsidiary, Ethena GmbH, according to an April 15 announcement.
Source: Ethena Labs
As such, Ethena Labs “will no longer be pursuing MiCAR authorization in Germany,” the company said, referring to the Markets in Crypto-Assets Regulation.
The company reiterated that Ethena’s German subsidiary has not conducted any mint or redeem activity for USDe since March 21, the day BaFin halted the stablecoin’s activities. As Cointelegraph reported at the time, the German regulator identified compliance failures and potential securities law violations tied to USDe.
“All whitelisted mint and redeem users previously interacting with Ethena GmbH have at their request been onboarded with Ethena (BVI) Limited instead and have no ongoing relationship with Ethena GmbH whatsoever,” the company said.
Unlike popular stablecoins USDt (USDT) and USDC (USDC), Ethena’s USDe maintains its dollar peg through an automated delta-hedging strategy that includes a combination of spot holdings, onchain custody and liquidity buffers.
USDe is the fourth-largest stablecoin with a total circulating value of $4.9 billion, according to CoinMarketCap.
The $233-billion stablecoin market is dominated by USDT and USDC. Source: CoinMarketCap
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MiCA tightens the noose around stablecoin usage
MiCA is a comprehensive framework for cryptocurrency usage across the European Union, enforcing strict compliance standards and consumer protections.
To meet the new requirements, stablecoin issuers must have adequate reserves backing their tokens, ensure reserve assets are segregated from users’ assets and fulfill regular reporting obligations.
As of February, 10 stablecoin issuers have been approved under MiCA, including Circle, Crypto.com, Societe Generale and Membrane Finance.
Patrick Hansen, Circle’s senior director of EU strategy and policy, told Cointelegraph that a total of 10 euro-pegged stablecoins and five US dollar-pegged stablecoins have been approved so far.
However, notably absent from the list is USDt issuer Tether, which has decided not to pursue MiCA registration at this time.
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The crypto industry’s inability to access banking services still concerns many industry observers despite recent policy victories.
In past years, financial services firms and banks concerned about fiduciary risk, reporting liabilities and reputational risk often would refuse to offer service to crypto firms — i.e., “debanking” them.
Legislative efforts in the United States and Australia are attempting to remove these barriers for the crypto industry. In the former, legislators repealed guidelines that made it difficult for banks to custody crypto assets, as well as those stating that crypto carried “reputational risk” for banks. In the latter, the Labor Party has introduced a bill to create a legal framework for crypto, giving banks the clarity they need to interact with the crypto industry.
Despite these tangible efforts, some crypto industry observers say that the crypto’s debanking problem is far from over.
US crypto execs say debanking is still an issue
The crypto industry has long decried “Operation Chokepoint 2.0,” its nickname for a suite of policies that they claim constrained the crypto industry from growing under the administration of former President Joe Biden. Among these were measures making it more difficult for crypto firms to access banking services.
The early days of the second administration of President Donald Trump have seen many of these repealed or changed. One of the first was the repeal of Staff Accounting Bulletin 121, which required banks offering custody for customers’ cryptocurrencies to list them as liabilities on their balance sheets — this made it very difficult for banks to justify offering such services.
The administration also appointed a new head of the Office of the Comptroller of the Currency (OCC), Rodney Hood. Dennis Porter, CEO of the Bitcoin-focused policy organization Satoshi Action, told Cointelegraph that under Hood’s tenure, the OCC has already said banks can offer crypto-related services like custody, stablecoin reserves and blockchain participation.
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“This opens the door for broader adoption of digital asset technology and custodial services by traditional financial institutions, signaling a major shift in how banks engage with crypto,” he said.
Despite these victories, Caitlin Long, founder and CEO of Custodia Bank, said on March 21 that debanking is likely to remain a problem for crypto firms into 2026.
Long said the non-partisan board of governors of the Federal Reserve is “still controlled by Democrats,” alluding to Democrats’ more skeptical stance on crypto. Long claimed that “there are two crypto-friendly banks under examination by the Fed right now, and an army of examiners was sent into these banks, including the examiners from Washington, a literal army just smothering the banks.”
Long noted that Trump won’t be able to appoint a new Fed governor until January, meaning that, while other agencies may be more crypto-friendly, there are still roadblocks.
Australia’s Labor Party to create crypto framework
Stand With Crypto, the “grassroots” crypto advocacy organization started by Coinbase that has spread to the US, UK, Canada and Australia, said that “in Australia, debanking is quietly shutting out innovators and entrepreneurs — particularly in the crypto and blockchain space.”
In a post on X, the organization claimed that debanking results in “reputational damage, loss of revenue, increased operational costs, and inability to launch or sustain services.” It also claimed that it forces some companies to move offshore.
In response to these concerns, the ruling center-left Labor Party in Australia has proposed a new set of laws for the cryptocurrency industry. The changes to current financial services law seek to tackle the issue of debanking in the country’s cryptocurrency industry.
Australia’s Treasury says its new crypto regulations have four priorities. Source: Australian Department of the Treasury
Edward Carroll, head of global markets and corporate finance at MHC Digital Group — an Australian crypto platform — told Cointelegraph that in Australia, debanking decisions were “not the result of regulatory directives.”
“Rather, they appear to stem from a more general sense of risk aversion due to the current lack of a clear regulatory framework.”
Related: US gov’t actions give clue about upcoming crypto regulation
Carroll was optimistic about the Labor Party’s proactive stance. The major political parties were “showing a shift in sentiment and a shared commitment to establishing formal crypto regulation.”
“We are hopeful that this will give banks the confidence to reengage with crypto businesses that meet compliance standards,” he said.
Canada unlikely to relieve crypto firms
In Canada, “debanking remains a serious and ongoing challenge for the Canadian crypto industry,” according to Morva Rohani, executive director of the Canadian Web3 Council.
“While some firms have successfully established relationships with banking partners, many continue to face account closures or denials with little explanation or recourse,” she told Cointelegraph.
While debanking actions aren’t explicit, financial institutions’ interpretation of Anti-Money Laundering and Know Your Customer regulations “creates a risk-averse environment where banks weigh compliance and reputational concerns against the relatively low revenue potential of crypto clients.”
The end result, per Rohani, is a systemic debanking problem for the digital assets industry.
But unlike in the US and Australia, the Canadian crypto industry may not find relief anytime soon. Prime Minister Mark Carney, whose more crypto-skeptic Liberal Party is surging in the polls ahead of the April 28 snap elections, is himself a crypto-skeptic.
Polls show Carney firmly in the lead. Source: Ipsos
Carney has stated that the future of money lies more in a “central bank stablecoin,” otherwise referred to as a central bank digital currency.
Rohani said that “no comprehensive legislative solution has been implemented” with regard to debanking. “A more structured approach, including mandated disclosure of reasons for account termination and regulatory oversight, is needed,” she said.
Critics claim crypto is “hijacking” the debanking issue
There is another side to the debanking debate, which claims that crypto’s debanking “problem” is a non-issue or a vehicle for crypto firms to get what they want in terms of regulation.
Molly White, the author of Web3 Is Going Just Great and the “Citation Needed” newsletter, has noted that, in the US at least, crypto firms have claimed to be victims of debanking while lauding Trump’s efforts to end protections for debanking at the same time.
In a Feb. 14 post, White stated that the crypto industry had “hijacked” the discussion around debanking, which contains legitimate concerns regarding access to financial services — particularly regarding discrimination due to race, religious identity or industry affiliation.
She claims the crypto industry has used debanking as a means to deflect legitimate regulatory inquiries into crypto companies’ compliance efforts.
Further of note is the fact that Coinbase CEO Brian Armstrong has applauded the efforts of the Department of Government Efficiency (DOGE), with Elon Musk at the helm, to dismantle the Consumer Financial Protection Bureau (CFPB).
One of the CFPB’s responsibilities is to investigate claims of debanking. But when DOGE instructed the agency to halt all work, Armstrong said it was “100% the right call,” in addition to making dubious claims about the agency’s constitutionality.
In the meantime
Whether the industry’s debanking concerns stem from legitimate discrimination or an attempt at regulatory capture, crypto firms are developing solutions in the interim.
Porter said that, as an alternative to banking services, “many crypto companies have leaned on stablecoins as a primary tool for managing finances,” while others have worked with “smaller regional banks or specialized trust companies open to digital assets.”
Rohani said that this kind of “patchwork of relationships” can increase operational costs and risks and are “not sustainable long-term solutions for growth or to build a competitive, regulated industry.”
Porter concluded that the banking workarounds could actually strengthen the industry’s position, stating that they may “continue evolving into fully integrated relationships with traditional financial institutions, further cementing crypto’s place in mainstream finance.”
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