Polygon Advisory Group LLC

Introduction: The collapse of Celsius, a major cryptocurrency lending platform, left many investors facing significant financial losses. In such cases involving potential fraud, the Internal Revenue Service (IRS) allows victims to claim a "Ponzi scheme loss deduction" under certain conditions. This deduction can provide tax relief, but navigating the requirements can be complex, especially when it involves cryptocurrencies.

The Ponzi Scheme Loss Deduction: A Ponzi scheme is a type of fraudulent investment operation where returns are paid to earlier investors using funds from newer investors rather than from legitimate profits. When such schemes collapse, the IRS recognizes these losses as theft losses under Internal Revenue Code (IRC) § 165, potentially allowing more favorable tax treatment than standard capital losses. The specific conditions are outlined in IRC § 165(c)(2) and further clarified in Revenue Procedure 2009-20.

Eligibility and Requirements: To qualify for the Ponzi scheme loss deduction, the investment loss must meet several criteria, including:

1. The loss must result from a specified fraudulent arrangement deemed as such by federal or state authorities.

2. The arrangement involved a lead figure receiving investor funds, purportedly to generate returns, but instead engaging in fraudulent activities.

3. The fraud was discovered in the tax year authorities identified the fraudulent arrangement and filed charges or indictments related to the fraud.

If these conditions are met, taxpayers may be eligible for a "safe harbor" provision under Rev. Proc. 2009-20, allowing them to deduct a portion of their qualified investment loss without extensive documentation. This includes:

• Deducting 95% of the qualified loss if not pursuing third-party recovery, or 75% if seeking recovery from third parties.

• Electing the safe harbor treatment by attaching a statement to the federal income tax return for the discovery year.

• Consistently treating the loss as a Ponzi scheme loss on tax returns and in dealings with the IRS.

• Forgoing the right to pursue other claims for reimbursement, except to the extent of recovering the difference between the total loss and the safe harbor deduction.

The Celsius Situation: With the arrest of Celsius CEO Alex Mashinsky on fraud charges in July 2023, many investors are questioning whether their losses qualify for the Ponzi scheme loss deduction. The key factor is whether the Celsius collapse meets the criteria of a "specified fraudulent arrangement" recognized by legal authorities as a Ponzi scheme.

While Mashinsky's charges suggest a potential basis for claiming the deduction under the safe harbor rules, the IRS has not yet officially deemed the Celsius case a Ponzi scheme. This creates uncertainty for investors considering the deduction, as there is a risk the IRS may disallow it in the future.

To mitigate this risk, investors should consult with a qualified tax professional – a CPA, EA, or tax attorney – and obtain a written opinion stating the factual basis for claiming the Ponzi loss deduction. While this opinion does not guarantee the deduction's acceptance, it may provide relief from penalties if the IRS ultimately disallows the deduction.

Ponzi Loss vs. Capital Loss: Typically, crypto investment losses are treated as capital losses, subject to specific limitations and tax treatment. However, if the loss is due to fraud, claiming it as a Ponzi scheme loss may be more beneficial. Unlike capital losses, which are limited to $3,000 per year against ordinary income if net losses exceed gains, Ponzi scheme losses can be deducted in full in the year the fraud is discovered as an itemized deduction on Schedule A.

This distinction is crucial for investors to understand, as the timing and impact of the deduction can vary significantly. Ultimately, each taxpayer must carefully evaluate their specific situation to determine whether the Ponzi scheme loss deduction is more advantageous than treating the loss as a capital loss.

Conclusion: The Celsius collapse has left many crypto investors grappling with substantial losses and complex tax implications. Determining whether to claim a Ponzi scheme loss deduction or treat the loss as a capital loss requires thoroughly examining the circumstances surrounding the investment and subsequent events. Given the evolving landscape of cryptocurrency regulation and taxation, consulting with a qualified tax professional experienced in crypto assets and theft loss deductions is essential for effectively navigating this intricate terrain.