Is Lost Crypto a Capital Loss?

In just the first four months of 2022, Australian investors lost more than $80 million to cryptocurrency scams. Suffice to say, losing crypto to scams, hacks or even just from misplacing private keys is rife. As a largely unregulated industry, there's not much you can do to recoup your losses, but from a tax perspective, lost crypto presents a small silver lining as the ATO may let you claim a capital loss - if you have enough proof. Learn everything you need to know about lost crypto and tax.

The crypto industry is rife with scams and hackers, and far too many investors have fallen foul of losing their private keys and access to their wallet. Well, it's good news for Aussies as you have a lot of avenues available to you to recoup your losses - whether that's by claiming for a capital loss or realising a loss through a transaction.

All this depends on the exact way you lost your crypto, so we'll cover some common scenarios.

Lost crypto and capital losses

If you lose your private key or your crypto is stolen by a hacker or scammer, you may be able to claim a capital loss.

The potential claim is based on whether the amount lost can be replaced. So if you've lost your private key and you'll never be able to access your crypto again, this is more likely to be a successful capital loss claim. Similarly, if you had your crypto stolen in a phishing scam and you had no hope of retrieving it, you would be more likely to successfully claim a capital loss with the ATO.

On the other hand, if your crypto was stolen in a major hack of an exchange - if the exchange is likely to reimburse you for your loss, you would be unlikely to be able to claim a capital loss with the ATO.

Furthermore, you'll need a lot of evidence to claim a capital loss due to loss or theft with the ATO. To claim a capital loss you’ll need evidence: 

• When you acquired and lost your private key
• The wallet address that the private key relates to
• What it cost you to acquire the lost or stolen crypto
• The amount of crypto in the wallet at the time of the loss of your private key
• That the wallet was controlled by you
• That you are in possession of the hardware that stores the wallet
• Transaction records to the wallet from an exchange you have an account with

Rug pulls and capital losses

Another common way investors lose out is through rug pulls or other similar scams where the price of a given token or coin is hyped, overinflated and then the creators quickly make off with investors money while the value plummets to zero. Some notable examples in recent years include the Squid Game rug pull and the Luna Yield rug pull. Of course, coins and tokens can also plummet to zero without an obvious sign of a scam - as with the Terra crash.

In this instance, you haven't actually lost your tokens, nor access to them (unless the blockchain is halted). So the likelihood of making a successful claim for a capital loss is low. Instead, you need to realise your loss in order. This means you need to make a capital disposal - by selling, swapping, spending or gifting your crypto. So you can:

• Sell your tokens on an exchange if possible.
• Swap your tokens for another token - potentially using a native wallet to do so if exchanges have halted transactions with a given token.
• Spend your tokens with a DeFi protocol if possible.
• Gift your tokens by sending it to a friend, family, or stranger.
• Send your tokens to a burn wallet.

Once you've realised your loss, you can use it as a capital loss and offset it against any capital gains for the year, or carry it forward to future tax years if you have more losses than gains. Remember, to best utilise capital losses, you should offset them against your short-term capital gains first! Careful though, if you sell and repurchase an asset purely to realise a loss within a short period of time, the wash sale rules may prevent you using any losses to offset against future gains. The ATO states there are a number of factors that may make a transaction a wash sale - it all comes down to intent.

Halted transactions and capital losses

In the rare instances where a blockchain or company halts transactions permanently and you're unable to move or transact with your crypto, you would potentially be able to make a claim for a capital loss should the company go into liquidation - but this takes time.

For example, Celsius investors are now unable to withdraw their assets from the platform since the company filed for Chapter 11 bankruptcy. Investors will be unable to claim a capital loss while these proceedings are on-going as it’s currently unclear how much, if any, of their investment they’ll get back. However, when proceedings are finished and any reimbursements have been made, investors may be able to claim any assets that were not reimbursed through bankruptcy proceedings as a capital loss later down the line and offset their gains at a later date.

How Koinly can help

If you've lost tokens due to a scam or hack - Koinly can help you when it comes to tax time. All you need to do is find the relevant transaction and use the tags on the right-hand side.

When you’ve tagged any stolen crypto, you’ll be able to see this in your tax report summary under ‘Gifts, donations & lost coins'. Koinly doesn't recognize any gains on these but it doesn't deduct them as a loss either. You'll need to make a claim with the ATO.

The information on this website is for general information only. It should not be taken as constituting professional advice from Koinly. Koinly is not a financial adviser. You should consider seeking independent legal, financial, taxation or other advice to check how the website information relates to your unique circumstances. Koinly is not liable for any loss caused, whether due to negligence or otherwise arising from the use of, or reliance on, the information provided directly or indirectly, by use of this website.