CFTC interpretive guidance concerning the term "actual delivery" for virtual currency retail transactions was published in the Federal Register. The guidance went into effect on June 24, 2020.
In order to prove the "actual delivery" of virtual currency in connection with retail commodity transactions, the interpretive guidance requires a market participant to demonstrate that:
- a customer has the ability to (i) take possession and control of the entire quantity of the commodity, whether it was purchased on margin, by using leverage, or through any other financing arrangement, and (ii) use the currency freely in commerce (both within and away from any particular platform) no later than 28 days from the date of the transaction; and
- the offeror and counterparty seller (including any of their respective affiliates or other persons acting in concert with the offeror or counterparty seller on a similar basis) do not retain any interest in or control over any of the commodities purchased on margin, leverage or other financing arrangements at the expiration of 28 days from the date of the transaction.
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