ICO – Overview of Legal and Tax Implications of the sale of Tokens.

What is an ICO?

An Initial Coin Offering (ICO) is a campaign similar to the idea of crowdfunding.

Everybody thinks ICOs are an unregulated means used to raise funds for start-up ventures. Start-ups launch ICOs  in order to avoid bureaucratic capital-raising processes required by venture capitalists or banks. Early investors of the project invest in tokens in exchange for legal tender or cryptocurrencies. An Initial Coin Offering Campaign, is simply on selling the currency (Token) used for the service. This is the first interesting part. The sale of the currency, to use a service,  happens prior to the existence of the service. Actually, the capital raised from the sale of tokens, funds the development of the idea into a working Concept. Now who would have seen that coming? Hence why the evolution of Crypto currencies, and their relevant uses, will be very interesting to follow in the coming years.

Usually, a start-up wishing to raise funding through an ICO provides a white paper. This describing the plan of the project and its relevant specifications and time frames. It will also include the target amount required. Your T&Cs as well as Finally, mention of how much of the virtual tokens the pioneers of the project will keep for themselves, the type of currency accepted,  the duration of the ICO campaign, etc.

ICO Campaign

During the ICO campaign, enthusiasts and supporters of the firm’s initiative buy some of the distributed cryptocoins, called tokens.  In Layman terms, they similar to shares of a company sold to investors in an IPO. There is, however 1 major difference. While through an IPO the company gives away shares (ownership & voting rights), through a typical ICO you do not.  If the funds raised do not match the target required amount, the ICO is unsuccessful and the money raised goes back to the backers. Alternatively, you can use the funds to initiate the project.

There are, however, Legal and Tax implications of launching an ICO.  If overlooked, they can create huge legal headaches to Promoters. This is why E&S, and our ICO Lawyers, are an essential addition to your team from the beginning.

Legal Implications of an ICO

While still unregulated, this does not mean a promoter is free to issue a token sale without consideration. Many ICO Founders seem to rely solely on the Howey test. The Howey test bases itself on a 1946 U.S. Supreme Court case of SEC Vs W.J. Howey Co. To summarise, an instrument is only a security if it involves an investment with a reasonable expectation of profits. Such profits derive from the work of others. The form of the security is actually irrelevant. As we all know, most tokens have no share of profit backing them. This means that token holders do not have a reasonable expectation of profits on these token. Thus, tokens are not a security and thus not regulated. Easy isn’t it? Well, simple but not quite as easy.

Firstly, designing a token (from a legal perspective) is one of the most important aspects of your ICO. Even though you believe your token is a utility token, the wording of your documents might say otherwise.  Following that, draft the white paper in a clear and concise manner. You must explain all the parameters going into the sale of the tokens. Also, Other laws exist that indirectly regulate the relationship between the issuer and the person subscribing for the tokens. You must thus ensure that your terms and conditions and all other offering documents cater for these.

Legal Services we offer:
  1. Initial legal analysis and basic overview of the White Paper with recommendations.
  2. Token design to ensure it is in line with current laws.
  3. Assistance in the drafting of a Risks for Token Purchaser document.
  4. Drafting of the Privacy Policy for your Offer.

For a more detailed description of the Legal Services we offer, visit our ICO Services Page.

Typical questions (that need answers)  on a Token sale, through an ICO:
  1. How exactly can these tokens be used?
  2. What are the conditions of acceptance of the tokens?
  3. What rights have you attached to the token?
  4. Also, where will you spend the money? Make sure to include a Clear and Concise breakdown of where and when.
  5. What if the ICO misses it’s target? What will happen?
  6. Where will you hold money raised during the ICO or Pre-ICO? on Escrow?

Not being legally correct and clear could, on these and many other points, leave you exposed to huge legal risks. Also, Our ICO Lawyers have the required experience. We have several ICOs under our belts and more in the pipeline.  Contact us on ([email protected]) to help you get your ICO document drafted in a concise and correct manner.

Taxation of ICOs (Token Sale)

This is the million dollar Question for every ICO. What is your tax exposure on the sale of the Tokens? What are your subscribers’ tax implications on buying and redemption of tokens? Also, do you have a duty to withhold tax on the sale of the token? Well, we have studied these scenarios and have come up with various solutions that can reduce the tax of token sale to zero! Interested in learning more? Contact us on [email protected] or you can just chat with us below!

Country to set up ICO?

Following all those considerations, it is also important to choose the right country to launch your ICO. Malta, is the ideal jurisdiction to set up your structure. Firstly, Malta embraced blockchain technology from day 1. You can lower your effective tax rate to as little as 5%. Also,  funds raised through ICO may attract 0% tax. Malta is also an EU state.  This thus gives you (and the token subscribers) more comfort. English is one of Malta’s official language.

E&S Group can assist you in setting up of an ICO for your start-up to raise required financing quickly and efficiently. Therefore, contact us to speak to our ICO Lawyers.

Contact us directly on +356 20103020 or by mail at [email protected] to find out how E&S can help you in ‘making things happen’.