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ARTICLE · 19 DECEMBER 2017

CFTC Requests Comment On Proposed Interpretation Of "Actual Delivery" In Virtual Currency Transactions

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The CFTC requested comment on a Proposed Interpretation of the term "actual delivery" in the context of virtual currency retail transactions.

United StatesTechnology
Hogan Lovells Cadwalader
Hogan Lovells Cadwalader
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The CFTC requested comment on a Proposed Interpretation of the term "actual delivery" in the context of virtual currency retail transactions. The CFTC describes the "actual delivery" exception to regulation of leveraged transactions in virtual currencies as retail commodity transactions.

The CFTC restated the position that a virtual currency is a commodity, which means that leveraged, margined or financed transactions in virtual currencies with non-eligible contract participants ("non-ECPs") are "retail commodity transactions" subject to CFTC oversight under Section 2(c)(2)(D) of the Commodity Exchange Act. Regulation of retail commodity transactions is subject to a statutory exemption for transactions in which actual delivery of the commodity occurs within 28 days of the transaction. In connection with virtual currency, the CFTC pointed to an Eleventh Circuit decision finding a virtual currency trading platform liable for failing to register with the CFTC on the

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