A Manhattan-based federal judge ruled on Monday (PDF) that a man accused of running an illegal Bitcoin exchange website could not have two charges of running an unlicensed money transfer business dropped because Bitcoin is money.
The defendant is Anthony Murgio of Florida, who was arrested in July 2015 in connection with a number of other American and Israeli men who allegedly hacked into JP Morgan Chase, ETrade, and News Corp., among others. Murgio was not directly charged with conducting any of the hacks, but the Justice Department did claim that Murgio ran a sketchy Bitcoin exchange website called Coin.mx with Gery Shalon, the alleged mastermind of the JP Morgan hacks. According to a 2015 indictment, Murgio and others were able to accept shady money from co-conspirators through Coin.mx.
Murgio is also accused of misrepresenting his business to financial institutions by creating a front for Coin.mx called the “Collectables Club,” as well as with bribing a small New Jersey credit union to process its electronic payments. Judge Alison Nathan’s Monday order did not impact those charges.
In his motion to dismiss the unlicensed money transfer business charges, Murgio claimed that, because Bitcoins are not considered “funds,” he was not operating an illegal business.
In her order, Nathan denied Murgio’s argument writing, “Bitcoins are funds within the plain meaning of that term. Bitcoins can be accepted as a payment for goods and services or bought directly from an exchange with a bank account. They therefore function as pecuniary resources and are used as a medium of exchange and a means of payment.”
Whether Bitcoin is considered money or not has been inconsistently decided in a variety of legal and regulatory settings. In July, a Florida judge ruled that cryptocurrency is not money in a case involving a Bitcoin vendor caught in a sting set up by a Miami police detective. In 2013, however, a Texas-based federal judge came to the opposite conclusion in a case involving a Bitcoin-based hedge fund. The Financial Crimes Enforcement Network (FinCEN) also advised in 2013 that Bitcoin-based businesses should be considered Money Services Businesses under US law, but the Internal Revenue Service treats the cryptocurrency as property rather than currency, meaning it’s subject to capital gains tax.
Judge Nathan responded to the IRS argument in her Monday order. “The fact that the IRS treats virtual currency as ‘property,’ rather than ‘currency,’ for tax purposes is irrelevant to the inquiry here,” she wrote. “In fact, the IRS Notice that Murgio cites makes clear that it ‘addresses only the US federal tax consequences of transactions in, or transactions that use, convertible virtual currency.’”