New Jersey Law Journal     October 2, 2017   

All Digital Assets are Not Legally Equivalent

By Jonathan Bick   Bick is of counsel at Brach Eichler in Roseland. He is also an adjunct professor at Pace and Rutgers law schools.

The Internet has generated a new set of assets know as "digital assets." Broadly defined, a digital asset is an electronic record in which an individual has a right or interest. This definition erroneously implies that digital assets should be treated as a legally equivalent set of assets when, in fact, failure to differentiate digital assets into one of three distinct classes will result in legal difficulties.

• The first class of digital assets is contained on a device that is in the owner's control. Usually, this device is a computer or storage device. Class-one digital assets include e-mails, software, content and data stored in tangible property, typically a decedent's home computer.

• A second class of digital assets are access rights and use rights to Internet assets located in a computer or other storage device owned by a person other than the digital asset owner. Class-two digital assets are e-mails, software, content and data stored in tangible property on a third party's computer or other tangible property.

• Class-three digital assets are access and use rights related to Internet assets, but unlike class-two digital assets, class-three digital assets do not have any physical point of presences (i.e., their existence is not dependent upon storage), hence they need not stored anywhere. A domain name is an example of a class-three digital asset.

These three classifications are based on the location, if any, of the digital asset. Unlike traditional assets, which normally reside in one physical location and under the control of the owner (documents in a home or a bank safety-deposit box) digital assets, such as e-mails, may reside in multiple physical locations and under the control of more than one party.

Failing to treat digital assets located in the owner's possession (such as the owner's personal computer) differently from digital assets located in the possession of a third party (such as on a Google server) may result in contract breach, copyright infringement and privacy violations to name a few legal complications.

Similarly, digital assets that have no location, such as a domain name, must be treated differently from digital assets that have a physical location (such as on a local personal computer or a third party's server). Otherwise, legal issues such as jurisdiction, venue and governing law legal matters may arise.

All digital assets share two characteristics: They are generated by the Internet; and they are intangible personal property, i.e., they cannot be seen felt or perceived by the ordinary senses.

All three types of digital assets are susceptible to traditional regulation, estate and tax planning and policing. The treatment of each of the three types of digital assets is generally analogous to the treatment of certain traditional assets for legal purposes including distribution and taxation.

The treatment of class-one digital assets may be analogized to the treatment of traditional assets that are intangible in nature and stored in a tangible asset that is in the possession of the decedent at the time of his or her death. Thus, a party with the lawful right to the tangible property within which the Internet assets are contained, is normally granted the rights to them. For example, e-mails are typically distributed with the home computer that holds them.

Digital assets are becoming increasingly more important for estate tax purposes. For tax purposes, the gross estate includes value of all property in which decedent had interest, including intangible and tangible personal property, wherever located. In accord with I.R.C. §2033 and Treas. Reg. §20.2033-1(a), all personal property, both tangible and intangible, is included in the gross estate as long as the decedent has a beneficial ownership interest in it at the time of death.

As indicated by Stewart v. Commissioner, 49 F.2d 987 (10th Cir. 1931), regardless of who holds title to a decedent's property, it is the beneficial ownership interest in property that determines whether it is included in the gross estate, which has tax ramifications. Thus, even if the class-one Internet property is contained in a computer owned by a party other than the decedent's beneficiary, the beneficiary is the owner of the class-one Internet property.

It should be noted that even trustees are not the owner of class-one Internet assets because of the principle that legal title does not control estate inclusion in the case of the decedent acting as trustee. Whether a trustee under a valid trust instrument or under a resulting trust due to state law, a trustee is not the owner of class-one Internet assets and said assets should be includable in the decedent's gross estate.

A legal difficulty may arise with respect to the disposition of class-one Internet assets if a number of family members, including the decedent, pooled their income and purchased a computer in the name of the decedent, on which the class-one Internet assets resided, and there are no records of how much each family member contributed. In this case, the class-one Internet assets must be included in the deceased's estate, according to Estate of Brickert v. Commissioner, 37 T.C. 57 (1961).

If each member of the family documents the amount contributed toward the purchase of the computer, the result may be different. Additionally, if state law allows, a resulting trust can be established for each of the contributors. In that case, only the portion of the property attributable to the decedent-titleholder's contribution is included in his gross estate, according to Rev. Rul. 78-214.

If a beneficiary is in possession of a class-one digital asset—because said beneficiary saved a copy or because he owned or inherited the decedent's computer within which the desired e-mail still resides—the beneficiary would own the digital asset to the same extent that the original owner owned the class-one digital asset.

With respect to class-two digital assets, the original owner of said asset merely had access, not possession. Contracts normally govern access to class-two Internet assets. Consequently, the rights to class-two Internet assets are determined based on the assignment or non-assign clause associated with the class-two Internet assets.

In the event that class-two digital assets are in fact assignable, such assets are treated like other intangibles owned by the decedent and are included in gross estate. Thus, typically all assignable class-two digital assets belonging to the decedent at the date of his death are included in his gross estate. Assignable class-two Internet assets are included at face value unless the asset has some intrinsic value greater than its face value.

For example, the decedent could posses an assignable electronic contract stored in a third-party computer for 100 one-dollar non-circulating coins that are no longer minted. This electronic agreement, which is a form of class-two Internet asset, must be included in the gross estate at the fair market value rather than face value of $100, in accord with Rev. Rul. 78-360.

Class-two digital assets also include all money held in Internet bank accounts and PayPal accounts owned by the decedent. These class-two Internet assets are also included in the decedent's gross estate. Internet bank accounts are generally owned by the person whose name is on them; however, legal title does not always control. For example, a portion of the decedent's Internet bank account may be determined to be the property of a third party (such as when an amount authorized by the decedent to pay for an e-Bay purchase pending receipt of goods).

The legal difficulties associated with Internet bank accounts and other Internet fund storage are similar to the difficulties associated with checking accounts. In both instances, payments are authorized and delivered prior to a decedent's death but are not actually paid (i.e., they do not actually clear the decedent's fund storage area) until after his death. These payments are excluded from the gross estate if three conditions are met: (1) the payments are given to discharge a lawful obligation of the decedent; (2) the payments are subsequently honored by the Internet fund holder and charged to the decedent's account; and (3) the obligations are not claimed as deductions from the gross estate.

As in the case of traditional checks, a decedent making gifts, charitable or otherwise, delivered via the Internet before the decedent's death, but clearing the decedent's Internet fund storage area after his death, may result in a legal difficulty. The IRS and the Tax Court are still attempting to resolve such matters. It is presumed such funds would be included in decedent's gross estate if the courts rely on McCarthy v. United States, 806 F.2d 129 (7th Cir. 1986), rev'g 624 F.Supp. 763 (N.D. Ill. 1985).

The E-Sign Act (15 U.S.C. 7001-7006), was enacted to encourage the use of electronic signatures in interstate commerce. According to E-Sign, electronic signatures are lawful for any transaction that is "an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons."

Generally, a signature may not be denied legal effect, validity or enforceability solely because it is in electronic form; and a contract relating to such a transaction may not be denied legal effect, validity or enforceability solely because an electronic signature or electronic record was used in its formation.

Thus, Internet notes owned by and Internet loans made by the decedent must be included in the gross estate to the same extent as other intangible property. As in the case of traditional notes representing loans to family members, Internet loans are not included in the gross estate when the evidence indicates that the advances were in reality a gift.

Not all class-two digital assets are assignable. For example, a decedent's e-mail held by an Internet Service Provider (ISP) is only assignable if so stated in the agreement between the ISP and the deceased.

Like class-two Internet assets, contracts normally govern access to class-three digital assets. Under the common law's expansive "bundle of rights" conceptualization of property, a domain name (or, at least, the right to use the domain name) would be property because a holder has the right to use it, exclude others from using it, and transfer it to another entity. As such, the holder's rights in the domain name and/or in an Internet site access are substantially similar to the rights of a tenant or licensee. However, the holder of such Internet rights also has some of the same rights as the real estate owner and/or the investor, such as the rights associated with a creator or inventor.

Courts have not treated the domain name itself as property of the estate, but as an executory contract which can be transferred in a will just like other contracts involving tangible or intangible property. Thus it has been included in the estate.

This tax treatment, consistent with the Tax Code, includes generally nontransferable property in the estate and permits the trustee to sell the property. The trustee nonetheless must comply with any contractual provisions that place restrictions on the manner in which the original party can transfer the property, or conditions that must be satisfied before the property can be transferred. Thus an executor who seeks to transfer a decedent's Internet rights in the domain name or Internet site access rights must comply with appropriate contract transfer procedures.•