nOS founder Dean van Dugteren recently took to Twitter to explain how Binance Chain-based BNB (BEP2) coins could appear in the regulators’ crosshairs. He suggests that BEP2 could be classified as securities by the Securities Exchange Commission (SEC).
Long thread: How @binance "BEP2 Tokens" may always be securities, and subject to more regulatory obligations than other tokens.— Dean van Dugteren (@Deanpress) April 19, 2019
I'm also compiling this into a Medium post later today.
⚠️ This thread is not intended as negative towards @Binance. They do great things for crypto.
As reported by U.Today, crypto juggernaut Binance recently launched the mainnet of its private Blockchain dubbed Binance Chain. The move, which solidifies Binance’s status of one of the most influential companies in the industry, raised centralization concerns given that the exchange will now directly compete with Ethereum, the second largest cryptocurrency network.
All ERC-20 tokens will be replaced with BEP2 tokens that will be powered by Binance Chain after the migration that will take place on Apr. 19-22. However, the real question is whether these two tokens are really similar from the regulatory standpoint.
Facing regulatory obligations
Binance, like many cryptocurrency companies, is based in Malta that is commonly known as ‘Blockchain paradise’ because of its progressive crypto regulations. Under the 'Virtual Financial Assets' Act, all cryptocurrency assets are divided into Virtual Tokens (VTs) and Virtual Financial Assets (VFAs). Unlike VTs, VFAs are subjected to plenty of regulatory obligations.
BEP2 tokens cannot be classified as VTs since Binance Chain is described as an exchange platform.
23) "The issuer does not intend to list or admit a DLT asset to trading on an exchange (…) " - @MFSAComm VFA Regulation Guidelines pic.twitter.com/2Q30RBL8UO— Dean van Dugteren (@Deanpress) April 19, 2019
24) However, Binance Chain's official documentation has the following definition:— Dean van Dugteren (@Deanpress) April 19, 2019
"Binance Chain essentially is a digital asset creation and exchange platform." pic.twitter.com/s4ztIGzHFh
Passing the Howey Test
Dugteren also claims that it is very likely that BEP2 tokens will be recognized as securities by the Securities Exchange Commission (SEC). That could essentially mean a looming regulatory clampdown for Binance investors. Due to US Securities Law, you have to be an accredited investor in order to engage in the sales of securities.
29) === US Securities Laws ===— Dean van Dugteren (@Deanpress) April 19, 2019
According to US Securities Laws, tokens are considered securities if they are most likely to be issued with the intent to allow for speculation.
30) As Binance Chain describes itself as an exchange platform, and there are technical features made for trading BEP2 tokens, it's also very likely that the U.S. Securities and Exchange Comission (SEC) would consider any Binance Chain-issued token as a security.— Dean van Dugteren (@Deanpress) April 19, 2019
On March 12, SEC chairman Jay Clayton reaffirmed that Ethereum is not a security, but the cloud of uncertainty is still hovering above Ripple’s XRP.