"Gary Gensler, chairman of the Securities and Exchange Commission, writes, "There's no reason to treat the crypto market differently from the rest of the capital markets just because it uses a different technology" ("The SEC Treats Crypto Like the Rest of the Capital Markets," op-ed, Aug. 20). Mr. Gensler should apply this same logic when determining what is or isn't a security.
The SEC differentiates securities from commodities according to the convoluted legal precedent of the Howey test, but the traditional rationale is much simpler: securities make payments, while commodities don't.
Like a stock or bond, any crypto tokens that make payments should be treated as securities. Most tokens, however, are not -- and never will be -- capable of making payments because the tokens' code doesn't allow it. Once the token is issued, the code can't be changed. These tokens should be treated as commodities under the law, like foreign currencies.
If Mr. Gensler believes in treating crypto and traditional assets equally, then most crypto tokens should be classified as commodities. If he refuses, Congress should intervene to ensure these assets are equal under the law.
Thomas Hogan
American Institute for Economic Research
Great Barrington, Mass.” [1]
1. How to Know If a Crypto Token Is a Security
Wall Street Journal, Eastern edition; New York, N.Y. [New York, N.Y]. 24 Aug 2022: A.16.
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