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US NFT Regulation in 2024: The Developments to Watch For

September 21, 2023

Non-fungible tokens (NFTs) have exploded in popularity over the past couple of years. As interest and adoption of NFTs have grown, so too have calls for more oversight and regulation of these digital assets. There are rising concerns around securities laws, taxation, consumer protection, and anti-money laundering with regard to certain NFT practices and platforms. This article will provide an overview of the latest developments and discussions happening around potential NFT regulations from US government agencies and regulatory bodies like the SEC, IRS, FTC, and the Treasury Department. It will analyze the possible impacts of increased regulation on NFT marketplaces and creators based in the US.
With the surging interest in NFTs, there has been an equal boom in nft marketplace development services as platforms rush to capitalize on this new market. However, many of these newly launched NFT marketplaces may not have implemented sufficient protections and safeguards. As regulators have warned, the pseudonymous nature of NFT transactions creates risks for consumers and opportunities for fraud without proper oversight.
With 2024 right around the corner, understanding the current trajectory of regulatory efforts can help US platforms and developers prepare for the road ahead. This will ensure that American innovation and leadership continue in the NFT space safely and responsibly.

SEC Regulations
The Securities and Exchange Commission (SEC) has significant implications for the NFT space, as they have implied certain NFTs may qualify as securities subject to securities laws. A key consideration is the Howey Test, used by the SEC to determine whether an asset constitutes an investment contract and would be regulated as a security. The test analyzes factors like whether buyers expect to profit from the efforts of others, and requires an investment of money in a common enterprise. Many NFTs likely fall outside this definition, but the SEC warns platforms about making blanket assumptions. They point to NFTs that grant owners rights to participate in a platform’s revenue sharing as examples that may count as securities.
Recent SEC warnings to top NFT marketplaces like OpenSea about unregistered securities offerings have created uncertainty. If certain NFT sales are deemed illegal securities offerings, it could severely impact major platforms. Complying with securities regulations would add legal and operational costs for platforms like identity verification, disclosures, and reporting. It may also limit the offerings they can host, and require registration as a securities exchange. For NFT creators and nft development companies, more SEC scrutiny could mean tighter restrictions on token functionality and distribution methods to avoid their NFTs being classified as securities.
The SEC has also taken enforcement actions against specific NFT projects they allege are fraudulent security offerings, like the “Frosties” NFT collection promoted by celebrity Floyd Mayweather. Securities fraud cases related to NFT sales are likely to increase. Additionally, the SEC cautioned that celebrity endorsements of NFTs must disclose compensation, as failure to do so violates anti-touting provisions. More formalized SEC guidance is still needed regarding NFTs and securities laws. However, expectations are that increased regulation will encourage changes in practices like stricter review processes and compliance procedures on major NFT marketplaces.

IRS Tax Guidance
The IRS has key implications for NFT creators and owners through their tax treatment and guidance. Currently, NFTs are generally treated as capital assets, with profits from sales subject to capital gains taxes. But questions remain around specifics. For instance, certain NFTs more akin to collectibles face a higher 28% capital gains rate. Others that provide true utility and functional access could be taxed differently than basic NFT art and profile pictures. There are also open questions about tax obligations related to NFT airdrops, giveaways, and staking rewards.
For NFT creators, proper tax reporting is crucial for revenues from primary and secondary sales. If an artist makes and sells NFTs at a profit, this counts as taxable income. The costs of creating and selling NFTs can be deducted as expenses. But if NFTs appreciate and are sold later for more, capital gains taxes apply. Royalty payments from secondary sales are also taxable. In all these cases, documenting transactions on the chain and with U.S. dollars is key.
Uncertainty remains about whether collateral tokens or promises of future tokens, bundled with NFT sales should be taxed differently. These complexities have led to calls for expanded IRS guidance on NFT tax obligations. Clearer rules could greatly help taxpayers accurately report NFT profits, losses, and income. But it would also impose constraints on certain NFT practices that take advantage of current ambiguities. Overall, the IRS signaling increased scrutiny around NFT taxes could alter incentives and behavior for platforms and creators.

Consumer Protection Concerns
NFT marketplaces have seen rising instances of fraud, scams, intellectual property theft, and hacking. Consumer recourse is often limited. The pseudonymous nature of transactions and difficulty tracing certain blockchain wallets make protecting consumers a challenge. These issues have led to growing calls for regulations to implement stronger consumer protections in the NFT space.
The FTC warned celebrities and influencers promoting NFT projects to disclose if they have a financial stake after several high-profile scams were promoted without proper disclosures. NFT scam projects have defrauded consumers out of millions already. The FTC has also raised concerns about lax verification checks on NFT marketplaces allowing stolen and plagiarized NFTs to proliferate. Their warnings signal tighter regulations around disclosures and checking NFT legitimacy could be forthcoming.
Additionally, the issue of clear terms and conditions on NFT platforms has been raised by consumer advocates. Vague terms could allow platforms to engage in anti-consumer practices without repercussions. Calls for regulations requiring transparent terms and conditions have grown louder. There are also concerns about minors gaining access to NFT sites, and potential gambling dApps built around certain NFT collections. Expect regulations aimed at stronger consumer protections through mandated transparency, identity verification, and blocking access for minors. However, the challenge will be balancing these goals with limited oversight over decentralized platforms.

Anti-Money Laundering Regulations
The pseudonymous nature of crypto transactions enables money laundering risks, as seen with certain artwork and luxury asset purchases made using crypto. Treasury Department regulators have expressed similar concerns about the potential for NFTs to enable money laundering.
Currently, regulations require exchanges and financial institutions dealing with conversions between cryptocurrencies and national currencies to implement strict anti-money laundering (AML) and know-your-customer (KYC) policies. However, most major NFT platforms do not yet face the same level of AML and KYC obligations. There have been increasing calls for regulators to close this loophole and apply AML and KYC rules to NFT marketplaces.
For platforms, this would require collecting identifying information on all customers engaging in transactions over a certain threshold. They may also have to report suspicious transactions, implement transaction monitoring, and conduct customer due diligence. These added costs and frictions could be significant for NFT platforms aimed at pseudonymous transactions. But regulators argue it is necessary, pointing to instances of money laundering using NFTs they claim to have identified.
Overall, AML regulations applied strictly to the NFT space could alter behaviors and business models. Limiting anonymity and restricting certain transaction patterns could dampen some perceived advantages of using NFTs. But mandatory KYC may also improve confidence for mainstream institutions to engage. Finding the right balance will be crucial.

Self-Regulatory Efforts by NFT Industry
Recognizing the need to address issues proactively, segments of the NFT industry have launched self-regulatory initiatives. These include projects aimed at establishing best practices, improving transparency, and reducing fraud.
For example, a group of NFT platforms and merchants formed the Proof of Stake Alliance to share ideas around sustainability, fraud detection, KYC requirements, and other areas. Leading NFT marketplace OpenSea has also enacted more stringent listing policies, requiring verification for larger collections to combat fraud. Additionally, some major marketplaces have voluntarily adopted royalty fee standards to protect content creators.
These self-regulatory efforts by platforms can be an important part of the nft marketplace development process, ensuring core protections are built in from the start. However, self-regulation only goes so far, as bad actors can operate outside voluntary frameworks. But in combination with thoughtful government rules, it could help advance protections while enabling innovation.
Projects like PixelPin are creating verified identity procedures for NFT creators and owners, while companies like ARTiVAR are embedding encrypted IDs into NFT metadata to deter forgeries. Other initiatives aim to standardize NFT disclosures, like the Universal NFT Tags system.
Regulatory bodies have acknowledged the efforts taken so far by some platforms. However, they argue formal oversight and legal authority are still needed in cases where self-regulation fails or falls short of addressing all concerns. However, regulators also emphasize that the most effective long-term solutions will require close coordination with industry stakeholders.

Impact on US-based Platforms and Creators
While reasonable regulations around issues like fraud and consumer risk have public support, concerns persist around impacts on US NFT platforms and creators. There are worries that an overly complex or restrictive regulatory approach could significantly hamper American innovation and leadership in the NFT space.
Increased regulatory costs and burdens could put certain US NFT ventures at a disadvantage compared to overseas competitors. Some warn that overzealous regulation could simply drive more activity to “offshore havens” with more welcoming regulatory regimes. However, measured regulations could also increase confidence for large US institutions to engage with NFTs.
Policymakers have a difficult balancing act in protecting consumers while enabling creators and entrepreneurs. Rules made without sufficient feedback from the NFT community risk stifling innovation. However, involving a diversity of perspectives in the policymaking process improves outcomes. Platforms developing proactive internal controls and showing a willingness to collaborate with regulators also help influence favorable regulations.
There are also arguments that reasonable regulations could benefit the NFT ecosystem long-term by improving confidence, preventing damaging incidents of fraud or theft, and opening doors to greater mainstream adoption. But for US regulators to enact policies enabling sustainable growth, they must understand the nuances and consider the unique properties of NFTs and blockchain-based platforms. With a thoughtful approach, increased regulation does not have to come at the expense of advancing American leadership.

As NFT adoption accelerates, US agencies like the SEC, IRS, FTC, and Treasury Department are analyzing the need for tailored regulations around securities laws, taxes, consumer protection, and anti-money laundering. This article provided an overview of proposals under discussion, pending guidance, and the complex issues regulators face. It also analyzed the potential impacts increased regulations may have on innovation and activity in the American NFT space.
With 2024 on the horizon, regulators have a tight window to enact policies enabling sustainable growth while protecting broader public interests. Success requires striking the right balance and providing clarity without excessively restricting new technologies and platforms. Active engagement with industry participants is key to shaping balanced rules. As the regulatory landscape continues to evolve, adapting to comply while innovating within clear guardrails will determine who leads the next generation of the NFT market. With a thoughtful approach, the US can cement its position at the forefront of this emerging space.
As the NFT space grows and evolves, having a trusted blockchain development partner can help companies adapt to changing regulations. RWaltz Software is one firm equipped to help clients build next-generation NFT marketplaces and decentralized finance (DeFi) applications compliant with emerging rules. With expertise in token development, cryptocurrency creation, blockchain integration, and NFT marketplace building, RWaltz Software empowers organizations to innovate within regulatory guardrails. Their technical skills and hands-on experience make RWaltz Software an ideal collaborator for firms looking to develop cutting-edge Web3 products and crypto platforms while adhering to regulations. As the regulatory landscape advances in 2024 and beyond, leveraging partners like RWaltz Software will become increasingly valuable for building legally compliant and successful decentralized technologies.

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