Can you avoid capital gains tax by taking out a loan and not repaying debt? Let's say I have 1 bitcoin and I am selling it for $100k, and I bought it for $0 at the time. Assuming a Capital Gains Tax rate of 33% I would owe $33k, leaving me with only $66k. Could I instead get a loan of $100k backed by bitcoin as collateral + some fee for the loan provider. I can then spend that full $100k. Oh no! I'm not able to pay the loan back because I spent it all. How unfortunate... Now the loan provider has no choice but to sell of my bitcoin to get their $100k back, and it looks like I'm after avoiding capital gains tax. Is this legal? I live in Ireland so it would be nice to know what the laws are like here, but it would also be interesting to know what it's like in the US. Or do you have to pay capital gains tax before using something as collateral for a loan?
Yes, you can borrow tax-free Bitcoin (or really, any currency not your home currency) is a security like a stock or bond. Whenever you take a loan using a security as collateral, that is not a taxable event, and so you do not owe taxes on the money you borrowed. Perfect world, you pay it back and this is not taxable either: the loan/repayment is a non-event to the tax authorities. (Although interest might be tax deductible). When this goes wrong: you default If you default and keep your collateral, at some point, the lender decides you'll never pay, and forgives aka &quot;writes off&quot; the loan. This forgiveness is considered ordinary income and it is taxable in the year forgiven. In the US this is waived if you can show that you were insolvent at the time of default. When this goes wrong: forced sale of collateral The collateral is still your property. The bank just has a lien on it or other form of control, like it's in your brokerage account in their bank such that they can flag it, force sale, and intercept funds. When the bank forces sale of your collateral to pay your debt, that is a sale of the security for tax purposes. The proceeds go to you (as far as the tax person is concerned), even though the bank certainly will intercept the proceeds. So the tax liability goes to you. Note that standard capital gains rules apply, so if you owned it less than 1 year when you signed up for the loan, yet the bank forced the sale after 1 year of ownership, then it counts as holding the security longer than 1 year for tax purposes. (e.g. qualifying for the lower &quot;long term capital gains&quot; rate in the US).
The linked Bloomberg story quotes the rule as: The recipient is allowed to keep the funds if they [the funds] discharge a valid debt, the recipient made no misrepresentations to induce the payment, and the recipient did not have notice of the mistake. If the recipient, or somone acting on behalf of the recipient, hacked the sender to induce the payment, that sounds like a form of misrepresentation to me. If the hacker is unconnected with the recipient there seems no way that the hacker benefits financially, although I suppose a hacker might simply want to cause an amusing disruption. As I understand it this rule only applies when the sender in fact owes a debt to the recipient that the transfer pays off. If the hacker were working for one of a large group of recipients, most of whom are innocent, and subsequent analysis establishes that there was a hacker, but not who the hacker was or which of the many recipients the hacker was working for, I suspect, but cannot prove, that the doctrine would not apply, because the transfer was not a valid but incorrect act by the sender, but was a fraudulent intervention in the sender's procedures.
“Real property” is land and things attached to land Everything else (including Bitcoin) is personal property. Therefore, since the 2017 amendment, Bitcoin is not captured by the s1031 like-kind transfer exemption. However, the article you link to is discussing its treatment before the amendment.
In germany inheritance tax (Erbschaftsteuer) taxes someone receiving an inheritance (or a gift - they are treated the same). If the heir is (inheritance tax) resident in Germany, German inheritance tax is due in principle on the whole received property, regardless of where that property is. Paid foreign inheritance tax on particular types of property and in accordance with tax treaties can be deducted. (Details: see §21 ErbStG and §121 BewG) Wrt the scenario in the question: if that foreign country collects low/no inheritance tax, the heir gets accordingly low or no deduction from the due German inheritance tax. Whether the &quot;more mobile&quot; property in the question counts as foreign property or not depends on whether the deceased was German resident in the sense of inheritance tax law or not (e.g. moved their residence to the foreign country &gt; 5a before their death), but again, that wouldn't lower the total amount of taxes due, it only shifts who gets them. In order to actually avoid German inheritance tax on the mobile property of the question, the heir would need to move their tax residency away from Germany.
This is not theft, this is a contract dispute. You gave them money, they promised to do certain things, the contract says what that is. I surmise that they wanted a deposit to cover their costs in further dealing with you (moving is more complicated and costly than buying a loaf of bread), so in walking away from the deal, you've economically damaged them to some amount. The deposit is &quot;liquidated damages&quot;. Your recourse is to sue them for that amount, because... Perhaps you didn't understand why you were giving them this deposit (an act that constitute some level of agreement), but any time you hand over a deposit, there is a circumstance under which you will not get that money back, and you have to understand what that circumstance is.
I have heard that this interest rate is illegally high for a loan. Is this correct? Yes. This is an annualized interest rate of 715,586,124,880,210%, which is far, far in excess of the maximum interest rate allowed by law. The maximum legally allowed interest rate in British Columbia is 60% per annum. So, an interest rate of 65 cents or more in a five day period on a loan of $100.00 is illegal. I don't know his current address. Lending money without collateral to people without knowing their current address is just plain stupid when it comes to lending practices. Nobody does that without a primarily donative intent. Would have holding collateral been a legal solution? Potentially. This is essentially the business model of a pawn shop. In the case of a pawn shop, the borrower delivers tangible personal property to the pawn shop owner who takes custody of it, which serves as collateral for a small loan with a set, legal interest rate, for a fixed period of time much greater than five days (typically several weeks or to several months). If the loan is not repaid, the collateral becomes the property of the lender in full payment of the loan, and the parties haggle in advance over the fair market value of the collateral against which the customer may borrow the full amount. A pawn is essentially equivalent to an outright sale of tangible personal property (almost always used) in exchange for cash, with a right to rescind the deal for a modest interest charge within X number of days after the sale. Since the pawn shop owner has some asset of the borrower to collect from in the event of non-payment, and the loan is &quot;non-recourse&quot; (i.e. collection rights are limited to taking ownership of the collateral), it isn't important to even know the address of the borrower, and no lawsuits are necessary for the lending pawn shop owner to be made whole if the loan is not repaid. The down side of running a pawn shop is that the owner needs to have considerable skill to value the collateral at a price sufficient to repay the loan together with a fair share of the administrative expenses of the operation on a case by case basis, for the very modest profit margin associated with a typical pawn shop. Most people who are skilled enough to value tangible personal property accurately enough to make money running a pawn ship are also skilled enough to do other things that pay better. Late Charge: Any payment not remunerated within 10 days of its due date shall be subject to a belatedly charge of 5 percent (%) of the payment, not to exceed $500 for any such late installment. Late charges are considered in the maximum interest rate calculation, so you need a much longer term loan and a much lower interest rate for this to be legally permissible. Collection fees: If this note is placed with a legal representative for collection, then Borrower agrees to pay an attorney's fee of ten percent (10%) of the voluntary balance. This fee will be added to the unpaid balance of the loan. Not sure what is meant by the &quot;voluntary balance.&quot; It isn't inherently improper to include the costs of collection in a loan agreement, and indeed, I think that this may be the default rule of law in British Columbia without any contractual term under loser pays rules of civil procedure. But, a court can decline to award more than the &quot;reasonable&quot; legal fees incurred to collect a debt, and it is not at all clear that even the minimal amount of legal fees one could incur to collect a debt would be reasonable to collect a loan of $100 and interest. Likewise, while there are &quot;hard money loans&quot; (i.e. loans secured only by collateral and no personal obligation to pay that can be enforced against an individual's assets in court), where it is customary for the legal costs of drafting the loan documents to be paid by the borrower rather than the lender, for the most part, this simply makes no sense, because even 12 minutes of legal time (0.2 hours in the typical legal billing format) is an excessive amount to charge for a $100 loan for a five day period of time. This would typically be $50-$60 or more. It would probably be treated as an interest charge and hence would be illegal in British Columbia. Would a term like &quot;if the lender needs to resort to legal action to enforce a term of this agreement, the borrow will reimburse him for all related expenses and his time&quot; be enforceable? Reimbursement for out of pocket court filing fees and any photocopying costs and process server costs is likely to be enforceable. Reimbursement for the lenders own time to enforce the loan in the event of a default is probably not enforceable in the case of a $100 loan, even at minimum wage. Making small loans has historically been a marginal economic sector for precisely this reason. Even if the default rate is low, the administrative costs associated with making and enforcing (in the event of defaults) a small loan and the administrative costs associated with making and enforcing these promise for a much larger loan are similar. But the dollar amount of interest generated by a small loan is much smaller relative to the administrative costs involved than the interest on a large loan. Credit card companies and similar lenders make small loans affordable by automating the lending process, screening borrowers based upon credit ratings, making many loans each month to the same borrower, and making loans to many, many borrowers to spread the risk out. But making small loans on a one-off basis is not a profitable venture. Business models that charge enough to be profitable with small loans, like payday lenders and car title lenders in the United States, usually have some sort of collateral or de facto collateral (like a post-dated check), and tend to be shut down by regulators because their interest rates typically need to be on the order of 150%-400% per annum to make a profit, due to high administrative costs involved in making small loans relative to the amount of the loan. But interest rates this high are considered exploitive and are illegal. Another business model, which essentially describes the business model in the question except for the enforcement method, is called &quot;loan sharking&quot;. The main difference between legitimate or almost legitimate small loan lending and loan sharking, is that loan sharks enforce their loans by having organized crime enforcers beat up people who don't pay, rather than using lawsuits to deal with loan defaults. This is, of course, completely illegal and a serious crime.
Suppose I obtain the ability to access someone else's cryptocurrency. This sounds like fraud e.g. I overheard them saying the password to their wallet out loud or I am a custodian of their assets. Nope, STILL fraud, possibly even Computer Misuse aka hacking... and because you use internet: it's Wire Fraud I now borrow those assets, keep them for some period of time, and then return them, without the owner's consent. hmmm, let's take california... Luckjy you, it is not embezzlement because you were not entrusted with the cryptocurrency, you gave yourself access. 503. Embezzlement is the fraudulent appropriation of property by a person to whom it has been intrusted. No it is plainly... theft under California law: 484. (a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft. In determining the value of the property obtained, for the purposes of this section, the reasonable and fair market value shall be the test, and in determining the value of services received the contract price shall be the test. If there be no contract price, the reasonable and going wage for the service rendered shall govern. For the purposes of this section, any false or fraudulent representation or pretense made shall be treated as continuing, so as to cover any money, property or service received as a result thereof, and the complaint, information or indictment may charge that the crime was committed on any date during the particular period in question. The hiring of any additional employee or employees without advising each of them of every labor claim due and unpaid and every judgment that the employer has been unable to meet shall be prima facie evidence of intent to defraud. Giving it back doesn't matter. The person taking the crypto for any amount of time without being entitled to them is committing theft. You see, California doesn't interest that you just want to borrow. They don't even require Mens Rea for the mere taking - only for fraudulent pretense there is an intent question. In fact, it might even be automatically Grand Theft: 484d. As used in this section and Sections 484e to 484j, inclusive:[...] (2) “Access card” means any card, plate, code, account number, or other means of account access that can be used, alone or in conjunction with another access card, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by a paper instrument. 484e. (a) Every person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder’s or issuer’s consent, is guilty of grand theft. YIKES! and now, intent to defraud comes in, but that is actually minimal: that just means taking without being allowed to by the owner in many cases.
If you had an agreement that amounts to a contract, it is binding even if it was informal. However, if your agreement was not in writing, it might be hard to prove. You can easily prove that you transferred money to the other party. But can you prove that it was a loan an not a gift? And even if it is agreed to be a loan, if no repayment time was specified, what says that the debt is due now? Was the agreement really for a loan repayable on demand? The court would have to determine what your real contract was, or what contract can be implied from the actions of the parties. Also, if you are in a common-law jurisdiction, there could be a question of what consideration there was for the loan. Without consideration, there is no valid contract in such a jurisdiction. Perhaps a promise to repay could be treated as sufficient consideration. Small-claims courts do deal with unclear verbal contracts on a regular basis, but the outcome will depend on the facts of the case, and on the details of local law. It might be wise to consult a local lawyer with small-claims experience. A single consultation should not be too expensive. In response to comment If the &quot;written binding agreements&quot; include a statement from the other person that this is a loan, and a promise to repay it, you are in a stronger position than I had thought from the original question. The question for the court would be, since there was no due date agreed, what is a reasonable date to impose. The court might treat it as a loan repayable on demand, or specify some particular date for repayment.