Feds Expand Definition of ‘Cash’ to Include Stored Value Cards

by Mark Nestmann The Nestmann Group, Ltd.

Recently by Mark Nestmann: Uour Money Isn't Safe in Any U.S. Financial Institution

For the last three days, I’ve been in bustling downtown Panama City, Panama, speaking at an offshore conference. Panama is as dynamic as ever, and I’ve made considerable progress filing my application for permanent residence.

My exit from the United States was relatively hassle-free, other than the mandatory scan of my genitalia by the TSA before I boarded my flight. However, I’ve now learned that the Treasury’s Financial Crimes Enforcement Network (FinCEN) plans to add another obstacle to leaving (or entering) the United States: declaring the value of any “tangible prepaid access devices.” In case you’re wondering, TPADs are otherwise known as stored value cards.

U.S. law has long required you to declare the value of cash or other monetary instruments you carry across a U.S. border if the value exceeds $10,000. FinCEN Form 105 is used for this purpose. While there’s the possibility of a five-year prison sentence for failing to comply with the law, along with forfeiture of the “monetary instruments,” enforcement of these requirements is inconsistent.

Entering the United States, you must complete Customs Form 6059B, which explicitly asks if you are carrying more than $10,000 in cash or monetary instruments. Leaving the United States, I’ve only seen one or two warnings red-flagging this requirement.

However, one time several years ago, I was boarding a flight in Baltimore bound for Paris. On the jet way, several men in poorly fitting suits confronted me. They identified themselves as Treasury agents and asked me how much cash I was transporting. I told them I wasn’t sure but that it was less than $200. They insisted on rifling through my carry-on, presumably to search for undeclared cash, and going through my wallet. After a relatively brief interlude, they allowed me to board my flight.

To enforce the new rules to declare TPADs, the Department of Homeland Security is developing high-tech card readers to deploy at U.S. ports of entry. The readers will identify whether the cards in your wallet are credit cards, debit cards, or TPADs. Only the value stored on a TPAD need be declared, assuming the total value of monetary instruments carried across the U.S. border exceeds $10,000.

As is usual in efforts of this type, FinCEN’s efforts to expand the definition of cash will only inconvenience law-abiding travelers. A real criminal – or anyone seeking financial privacy – will use the “brainwallet” concept to silently move value across increasingly irrelevant national frontiers. (A brainwallet requires that you memorize a unique passphrase to gain access to an online store of value, such as Bitcoin.) Indeed, The Department of Homeland Security has proposed to FinCEN that:

“[B]order declaration should not apply to codes, passwords and other intangibles…The structure of the currency and monetary instruments declaration regime, hinges on the existence of a physical object. The language requires something that can be passed from one individual to another in order to be presented to a third party for execution/payment.”

Bitcoin and similar digital currencies make FinCEN’s currency reporting rules, and their expansion to encompass TPADs, obsolete before they’re even finalized. But don’t think for a minute that technological innovation will prevent these rules from coming into effect. After all, Boobus Americanus must believe the government is doing something – anything – to fight the wars on drugs, terrorism, money laundering, immigration fraud, etc. Whether the initiative actually accomplishes anything is much less important than whether it appears to be accomplishing something. And it’s simply inconceivable to ask whether the wars are worth fighting at all, and if we should simply allow individuals to move their assets anywhere in the world, as they see fit, without government imposed restrictions.