Standing On the Shoulders of LLCs: The Tax Entity Status and Decentralized Autonomous Organizations
Since the formation of the first decentralized autonomous organization (DAO) in 2016, their use has exploded. Thousands of DAOs now try to take advantage of smart contracts to solve a problem that plagues business entities: the gulf between ownership and management. Armed with smart contracts and requiring token-holders to vote on any change in strategy, DAOs dispense with the management layer so necessary in traditional business entities. DAOs owe their existence to technology. Without blockchain, without cryptocurrency, and without smart contracts, there would be no DAOs. But they owe their explosiveness to something much more unexpected: Treasury regulations. In the wake of limited liability companies (LLCs), the last major new entity to emerge, Treasury created the check-the-box regulations. Prior to these regulations, a business entity had to determine whether it had more partnership or corporate characteristics to determine whether it would be taxed as a partnership or a corporation. LLCs did not fit comfortably into either category, so businesspeople did not adopt the form. When enacted, the check-the-box regulations allowed most business entities to decide how they wanted to be taxed and file an election with the Internal Revenue Service (IRS) for that treatment. This certainty futureproofed entity taxation. New business forms--including DAOs--no longer have to look like previous forms. They can choose their tax status. And without the impediment of taxes, people can--and did--adopt the DAO structure. Tax entity status comes with obligations, though. And while DAOs do not have to worry about their entity status, they also must *604 meet the obligations attendant to the status they choose. This Article discusses several of those obligations--obligations which, at times, run counter to the ethos of DAOs.
Samuel D. Brunson, Standing on the Shoulders of LLCs: Tax Entity Status and Decentralized Autonomous Organizations, 57 GA. L. REV. 603 (2023).