CFTC Issues New Guidance Relating to Virtual Currency Regulations: CFTC Issues Guidance on “Actual Delivery” Requirements for Virtual Currency Retail Commodity Transactions and Releases Backgrounder on Virtual Currency Regulatory Framework

Sullivan & Cromwell LLP - January 31, 2018
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The Commodity Futures Trading Commission continues its focus on virtual currencies and virtual currency futures contracts.  On December 20, 2017, the CFTC published a proposed interpretation of the actual delivery requirements in the context of virtual currency retail commodity transactions.  The CFTC noted that it will continue to follow previous guidance on actual delivery requirements, and that virtual currency retail commodity transactions will be exempt from CFTC oversight only when (1) the buyer has the ability to (a) take possession and control of the entire amount of virtual currency transferred through the transaction, regardless of whether the transaction involved a financing arrangement and (b) use the transferred virtual currency freely in commerce, and (2) The seller (including any affiliates or other persons acting in concert with the seller) does not retain any interest or control in the virtual currency transferred.  Following the release of the proposed interpretation, the CFTC, on January 4, 2018, published the Backgrounder, a memorandum addressing the various sources of virtual currency regulation, the CFTC’s “heightened review” of virtual currency self-certifications, and the CFTC’s approach to virtual currency regulation more generally.