Agent-of-the-payee and Crypto Seller MSB Status

1. Agent-of-the-payee up for comment in California: On February 8, 2019, the California Department of Business Oversight published an invitation for comments on possible amendments to the California Financial Code / Money Transmission Act concerning the agent-of-the-payee exemption. The exemption allows agents of the payee to be exempt from money transmitter status if they meet certain specific criteria, including contracting with the payee and accept funds for goods or services sold by the payee and received by the payor. The good news is that the exemption itself is not on the chopping block. Instead, DBO is wondering whether key defined terms should be narrowed or more precisely defined. Specifically, “goods or services” and “receive”. The invitation distinguishes between the types of goods sold at online marketplaces like Amazon and Airbnb (see agent language for each) and other goods sold at (perhaps less popular) marketplaces that handle housing, real estate, insurance etc… Any attempt to distinguish between one kind of payee, giving some the right to the exemption and others not, will create a flurry of requests for guidance and, perhaps, niche processors that try to walk a line between permitted processing and processing that needs a license. The deadline for comments is April 9, 2019.

Agent-of-the-payee is expressly available in only a handful of states, tolerated in many other states and downright confusing the the remainder of states that take a case by case approach. At least under the BSA, the availability of the exemption is fairly clear thanks to guidance produced as a result of an enquiry by our firm.

2. Florida Bitcoin Sellers Need MSB Licenses: In the long-observed Espinoza case, on January 30, 2019, the Florida Court of Appeals has ruled that simply selling Bitcoin in Florida was equivalent to selling payment instruments and therefore requires MSB licensure under Florida law. The court held that, unlike the BSA, the Florida statute does not require transmission to a third party for MSB activity to occur. The case yields the awkward outcome that Espinoza was not an MSB under the BSA but was one under the Florida statute. This ruling contradicts a number of guidance letters from the Florida DFS holding that merely selling Bitcoin was not MSB activity, including the cases of Grapefruit and Cryptobase. 

3. All Bitcoin Sellers Must Register with FinCEN as MSBs: In direct contradiction of the Espinoza case, the February 1, 2019 case of US v. Sterkiwheld that a mere seller of Bitcoin was an MSB under the BSA. Not only does this contradict the Espinoza case but it also puts in jeopardy FinCEN’s guidance exempting investors, who buy and sell for their own account.

 4. Security Policy Case Study. The now defunct virtual currency exchange,, fell apart because its CEO passed away in India with private keys controlling $250 million of crypto. This is a case study in why payments companies (not just crypto exchanges) need security policies and disaster recovery policies. It goes without saying, that no single person should have the unique keys to substantial reserves of client assets.

Adam Atlas Attorney at Law is licensed in New York and Quebec. This email is ATTORNEY ADVERTISING. Nothing in this e-mail should be construed as a legal opinion or commentary on laws other than in the two jurisdictions where the author is admitted.  

4 Questions not to ask banking regulators

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State and federal regulators do excellent work in keeping up with payments models. However, some of their excellent work has led to legal dead-ends. Here are five quandaries that regulators might rather not face.

1. California DBO: Does a non-California money transmitter need a California MSB license to send money to California?

Cutting right to the chase, the California Money Transmission Act requires all those who “receive money for transmission” 2003(q)(3) “in this state”, meaning in, to or from California 2003(k) to have a money transmitters license from the DBO. So, every money transmitter in the U.S., and possibly the whole world, that sends money to California may need a license from DBO. If this were true, a lot of U.S. payments would instantly be ‘shutdown’, so to speak.

2. New York DFS: Are NYDFS-approved stablecoins being used in OFAC-sanction jurisdictions? 

[Rant Alert] Stablecoins are virtual currency backed by real currency. For example, one Tether is backed by one USD. Earlier this month, the Texas DOBupdated its very elegant memo 1037 on virtual currency regulation and included discussion of stablecoins. OFAC, other federal and state regulators and the compliance professionals who answer to them, spend a lot of time trying to prevent bad actors from abusing the privilege of accessing the U.S. financial system. In plain English, bad guys are not supposed to bank in USD or through US-licensed financial institutions. NYDFS has sanctioned the issuance of a USD-backed stablecoin. Unlike USD, virtual currency tokenized stablecoins can generally be held and transferred without a bank account or any KYC and using a virtual currency wallet. Regardless of the amount of KYC and OFAC-checking of the first buyer of stablecoin and the first redeemer (i.e. the distant-future theoretical person who finally asks for a USD in exchange for their token), it’s not clear what controls are in place in between. The ‘in between’ is where the majority of stablecoin transactions will occur and is the whole purpose of stablecoins. We don’t understand how NYDFS’ position on the majority of stablecoin transactions, some being licensed USD instruments and potentially de-coupled from OFAC oversight. In a test transaction, we were able to purchase stablecoin and send it to an unverified recipient. But don’t take my word on this, check out this news item this blog, this blog, and, humorously, this shutterstock image that, effectively, pose the same question by depicting stablecoin as an opportunity for sanction countries.

There are lots of stablecoins out there. Here are links to a handful of popular ones:

Gemini Dollar



USD Coin

Tether (ECR20)

3. Pennsylvania DBS: Why are Pennsylvania virtual currency exchanges able to hold USD in their own bank accounts without an MSB license while prepaid issuers and money transmitters need licenses to do the same? 

The Pennsylvania Department of Banking and Securities has, helpfully, published guidance answering a number of key questions concerning virtual currency regulation in the state. The guidance says, concerning virtual currency exchanges or Platforms: “These Platforms never directly handle fiat currency; any fiat currency paid by or to a user is maintained in a bank account in the Platform’s name at a depository institution. […] Under the MTA, these Platforms are not money transmitters. The Platforms, while never directly handling fiat currency, transact virtual currency settlements for the users and facilitate the change in ownership of virtual currencies for the users. There is no transferring money from a user to another user or 3rd party, and the Platform is not engaged in the business of providing payment services or money transfer services.” The language of that guidance suggests, perhaps mistakenly, that because money of the exchange is held at a bank, the exchange is somehow not a money transmitter. This is, of course, not true of other money transmitters, who require licenses in Pennsylvania regardless of where they keep their money.

4. FinCEN: Exactly where is the line between virtual currency investor (not MSB) and a virtual currency exchanger (MSB)? 

FinCEN has published excellent guidance on number of aspects of virtual currency, including key definitions, mining, investing, software, trading platform and processors. Taken as a whole, however, the guidance comes up as somewhat inconsistent on the practice of buying and selling virtual currency for your own account (as a user or investor). A person or company that buys and sells virtual currency for their own account (not involving third parties) in only two-party transactions, in any quantity, at any speed and for any volume, should naturally be exempt from MSB status. If they were not, a few hedge funds could be promptly indicted. 

Owing to the ever-growing methods of exchanging value, regulators will never achieve perfection in regulating each of them. It is perfectly normal for the ‘range of the possible’ to be much broader than the ‘range of the regulated’. That said, it is incumbent on payments businesses to help regulators understand the latest payment methods so that they can be, where necessary, subject to oversight for the security and soundness of the financial system and weed-out bad actors.

Is there any startup that is not a payments company?

Leave a founder and a calculator alone in a room for 10 minutes and out comes a unicorn payments company. Let’s test this theory.

1. UberDidi Kauaidi, Lyft. Uber and most of its competitors are classic biller models. Some, such as Uber, may actually be going further and becoming MSBs. The Uber Gift Card terms, for example, allow a payer to deliver up to $2,000 of value from one user to another through a promotion code. Uber still has no FinCEN registration.

2. Airbnb. Using classic biller model language, Airbnb terms state: “Airbnb Payments serves as the limited authorized payment collection agent of the Host for the purpose of accepting, on behalf of the Host, payments from Guests […].” Airbnb has had its FinCEN MSB registration since 2014.

3. Palantir. According to Techcrunch reporting, one of the three industries serviced by this big data company is the finance sector, making Palantir payments support business.

4. Snapchat. With Snapcash, a Paypal collaboration, Snapchat hops on the band-wagon of other startups eyeing the presumed billions in P2P transactions.

5. Flipkart. Ebay & PayPal for India? This India-focused platform for sellers and buyers includes the following in itsTerms of Use: “You have specifically authorized Flipkart or its service providers to collect, process, facilitate and remit payments and / or the Transaction Price electronically or through Cash on Delivery to and from other Users in respect of transactions through Payment Facility.”

6. WeWork. WeWork is perhaps the unicorn that best distinguishes itself from a payments company, because its members are tenants of WeWork and actually purchase WeWork services, as per its terms of service.

7. Stripe.  At first blush, Stripe looks like a plain, vanilla PSP.Stripe is, however, registered with FinCEN as an MSB despite the fact that Strip’s terms of use say: ” Stripe is not a bank or a money services business (“MSB”) and Stripe does not offer banking or MSB services as defined by the United States Department of Treasury.”

8. ApplePay. In the inverse of all the other examples, everyone thinks of ApplePay as a payments business except Apple itself which thinks it’s just a gateway. The ApplePay terms refer to it as creating a virtual representation of a card for which Apple is not responsible.

5 Currency and Payments Law Mysteries Solved

1. Can a money transmitter license be rented? No. Licensed MSBs, such as money transmitters are licensed based on their specific business model, financial position, AML procedures and overall compliance profile. Some licensed money transmitters will, however, appoint authorised delegates or agents that assist in operating their licensed business.  Here are money transmitters licensed in New York and California.

2. Can and ISO Aggregate? Sort of. In the old days, ISOs had to treat merchants as stand-alone entities, each getting their own unique merchant account. The new Payment Services Provider (PSP) concept has allowed ISOs to step into the shoes of acquiring banks and actually create sub-merchants and MIDs for each of them.  The PSP remains liable for the transactions of each of the sub-merchants, but the PSP has the ability to quickly board merchants. See, for example, Square, Stripe and WePay.

3. Why isn’t ApplePay an MSB? Good question. It looks like ApplePay has managed to soak up all four corners of a payment transaction, less only the settlement of funds. It stores and tokenizes cardholder data, merchant transaction data within a proprietary gateway. Apple might eventually have to slog through the licensure process like everyone else in at least some states that cast the net wide on what constitutes money transmission, like Maine.

4. How much is your payments business worth? Generally, a multiple of the monthly revenue net of agent payouts. You should also look at the residuals on a static pool of clients. For example, look at the monthly revenue on your clients of one year ago and compare that to the revenue on those same old clients today. The difference between those two numbers is called ‘attrition’. You’ll want attrition to be as low as possible. There are many other factors, but concentration of clients of one kind or another will put downwards pressure on valuations.

5. Is Bitcoin Illegal. No it’s not. Just like other forms of barter, it is not illegal to sell goods or services in exchange for Bitcoin.  For example, a merchant selling computers can sell a computer for Bitcoin and not be in breach of the law. Where legal issues arise is on the accounting and tax treatment of the Bitcoin received and the process by which, if any, the merchant then elects to turn the Bitcoin into ‘real’ currency. Virtual currency exchanges, being businesses that exchange Bitcoin for real currency are also likely to need MSB licensing.

ETA. Our next show is the acquiring industry’s annual gathering, Transact15 March 31-April 2.

Adam Atlas Attorney at Law is licensed in New York and Quebec. Nothing in this e-mail should be construed as a legal opinion or commentary on laws other than in the two jurisdictions where the author is admitted.