Решение SEC по криптовалютам вызывает хаос: $5B Потеряно, поскольку судьи выносят противоположные решения

A landmark report released by Dragonfly on March 11, 2025, exposes how contradictory SEC ruling on crypto has cost American users between $3.49 billion and $5.02 billion while destroying $525 million to $1.38 billion in tax revenue.

The 18-Day Contradiction That Broke Crypto Regulation

(Source: SEC)

The most damaging revelation in Dragonfly’s 2025 State of Airdrops Report centers on two SEC ruling on crypto cases that exposed regulatory chaos at the highest judicial level. On July 13, 2023, Judge Analisa Torres of the U.S. District Court, Southern District of New York, issued a landmark decision in SEC v. Ripple Labs. Judge Torres distinguished between institutional and retail token sales, ruling that programmatic sales to retail buyers did NOT qualify as securities offerings because retail buyers could not reasonably expect XRP sales would enhance the ecosystem and drive up price.

Eighteen days later, on July 31, 2023, Judge Jed S. Rakoff—sitting in the exact same district court—issued a contradictory SEC ruling on crypto in SEC v. Terraform Labs. Despite facing similar facts, Judge Rakoff classified ALL transactions, both institutional AND programmatic, as securities offerings. The Dragonfly report emphasizes this contradiction as the smoking gun proving that “regulation by enforcement” has created an environment where compliance is literally impossible.

This judicial schizophrenia has profound consequences. Crypto projects cannot know whether their token distributions will be classified as securities until after an SEC enforcement action and subsequent court ruling. By that time, millions in legal costs have been incurred, user bases have been destroyed, and corporate migration offshore has already occurred.

Gary Gensler’s Enforcement Regime: From Pro-Crypto to “Wild West”

The SEC ruling on crypto landscape transformed dramatically when Gary Gensler was sworn in as SEC Chairman on April 19, 2021. Gensler, who previously taught blockchain courses at MIT and was considered crypto-friendly, executed a complete reversal. He publicly described crypto as the “Wild West” and asserted that the “vast majority” of approximately 10,000 tokens likely constituted securities.

Gensler’s enforcement strategy—dubbed “regulation by intimidation” by industry critics—pursued high-profile cases without establishing clear, preexisting guidelines. The Dragonfly report documents key SEC ruling on crypto actions under Gensler’s leadership:

Major SEC Enforcement Timeline

September 2022: SEC v. Hydrogen Technology: Argued that token distributions via airdrops, bounty programs, and employee compensation could qualify as unregistered securities, even claiming gas fees for claiming tokens constituted “investment of money”

February 2023: SEC v. Terraform Labs & Do Kwon: Broadened enforcement reach to stablecoins, signaling intent to dominate industry-wide enforcement

March 2023: SEC v. Justin Sun, Tron, BitTorrent: Charged for unregistered offer and sale of TRX and BTT, alleging airdrop campaigns promoted ecosystems as securities (case pending in S.D.N.Y.)

March 2024: Beba LLC v. SEC: Pre-enforcement lawsuit challenging SEC overreach, seeking declaratory relief that $BEBA token airdrop is NOT a securities transaction and claiming SEC regulation-by-enforcement violates the Administrative Procedure Act

Why Airdrops Fail the Howey Test: Legal Analysis

The fundamental question in any SEC ruling on crypto involves the Howey Test, established by the Supreme Court to determine whether a transaction constitutes an “investment contract” and therefore a security. The test requires four prongs: (1) investment of money, (2) in a common enterprise, (3) with expectation of profits, (4) derived from efforts of others.

Dragonfly’s report systematically demonstrates why airdrops fail each prong:

Investment of Money: Airdrops are free distributions requiring no monetary payment. The SEC’s attempt to classify gas fees as “investment of money” in the Hydrogen case stretches logic beyond recognition—by this standard, paying postage to receive a promotional sample would constitute an investment.

Common Enterprise: Recipients hold no pooled financial interest with issuers or other recipients. Unlike traditional securities where investors pool capital, airdrop recipients independently receive tokens based on prior activity or random selection.

Expectation of Profits: Tokens distributed via airdrops typically serve consumptive purposes—governance participation, platform access, or utility functions. While secondary markets may emerge, this is incidental rather than the primary purpose, similar to how collectible items may appreciate but are not securities.

Efforts of Others: Airdrop recipients are not reliant on issuer’s ongoing managerial efforts for value. Many tokens are distributed precisely to decentralize governance away from issuers.

The report compares airdrops to loyalty programs like credit card rewards and airline miles, which are regulated by DOT/CFPB rather than SEC. In 2017, the SEC itself confirmed that NFL Fan Club memberships were NOT securities despite being purchased for recreational use—strikingly similar to many crypto token use cases.

$5 Billion in Lost Economic Opportunity

Dragonfly’s economic analysis reveals the staggering cost of unclear SEC ruling on crypto. The report analyzed 12 Ethereum-based airdrops (11 geoblocked from U.S. users, 1 control) representing approximately $7.16 billion in total value distributed to roughly 1.9 million claimers worldwide, with a median value of $4,600 per eligible address.

Key Economic Findings

$1.84B to $2.64B: Revenue lost to U.S. users from Dragonfly’s sample alone (2020-2024)

$3.49B to $5.02B: Extended estimate including CoinGecko’s broader airdrop dataset

$418M to $1.1B: Federal tax revenue lost

$107M to $284M: State tax revenue lost

$525M to $1.38B: Total tax revenue destroyed

These figures do NOT include capital gains taxes that would have been collected when tokens were eventually sold, meaning actual tax losses are substantially higher.

The report documents that approximately 22-24% of all active crypto addresses worldwide belonged to U.S. residents in 2024, yet aggressive SEC ruling on crypto enforcement has driven between 920,000 and 5.2 million active U.S. users to offshore platforms or out of crypto entirely.

Corporate Exodus: The Brain Drain Crisis

Perhaps the most concerning long-term consequence of chaotic SEC ruling on crypto is corporate migration destroying American technological leadership. The Dragonfly report documents a collapse in U.S. crypto developer share from 38% in 2015 to just 19% in 2024—a 50% decline in relative market position.

Corporate Migration Case Studies

Bittrex: Shut down all U.S. operations

Nexo: Phased out U.S. products entirely

Revolut: Halted crypto services for U.S. customers

Ripple Labs: 85% of open positions located offshore as of 2023

Beaxy: Shut down entirely after SEC lawsuit

Tether: Generated $6.2 billion profit in 2024, potentially representing $1.3 billion in federal corporate tax and $316 million in state tax—$1.6 billion annually—that would have accrued to U.S. treasuries if incorporated domestically

The report emphasizes that unclear SEC ruling on crypto creates a de facto censorship regime where U.S. developers and users are systematically excluded from participating in the global crypto economy.

Regulation by Enforcement Violates Administrative Procedure Act

Dragonfly’s legal analysis concludes that the SEC’s approach violates the Administrative Procedure Act (APA), which requires federal agencies to follow clear procedures for new regulations including public notice and comment periods ensuring democratic accountability.

The SEC pursued enforcement without establishing clear, preexisting guidelines. Ripple Labs operated for almost a decade assuming XRP was not a security, while Bitcoin and Ether received exemptions. This arbitrary and selective prosecution, without transparent rulemaking, constitutes textbook APA violation.

The Beba LLC v. SEC lawsuit, filed March 2024 in the Western District of Texas, directly challenges this overreach. If successful, this pre-enforcement action could establish that the SEC lacks authority to classify airdrops as securities transactions, providing the regulatory clarity the industry desperately needs.

Policy Recommendations for Regulatory Reform

Dragonfly proposes five concrete reforms to restore sanity to SEC ruling on crypto:

Safe Harbor for Non-Fundraising Airdrops: Establish clear criteria including decentralizing governance purpose, consumptive use rather than investment, and marketing/user acquisition strategy, with basic disclosure requirements but no caps on users or airdrop value.

Expand Rule 701: Extend existing exemptions for employee compensation to cover platform participants, allowing tokens as compensation for platform workers—an approach the SEC already explored in 2020 proposed rulemaking.

Grandfather Clause: Provide retroactive protection for prior airdrops to U.S. persons who can demonstrate compliance with basic disclosure and operational standards, utilizing the SEC’s broad authority to exempt transactions both proactively and retroactively.

Align Tax Treatment with Credit Card Rewards: Tax airdrops only upon sale/exchange when value is liquid and quantifiable, not upon receipt, following IRS precedent established in Rev. Rul. 76-96 and modified by Rev. Rul. 2005-28.

Congressional Modernization: End “regulation by enforcement” through proactive congressional action establishing clear frameworks developed in consultation with industry stakeholders.

Conclusion: The Cost of Regulatory Uncertainty

The Dragonfly 2025 State of Airdrops Report exposes how contradictory SEC ruling on crypto has cost the United States between $3.49 billion and $5.02 billion in direct economic opportunity and up to $1.38 billion in tax revenue. The 18-day contradiction between Judge Torres’s Ripple decision and Judge Rakoff’s Terraform ruling—issued by judges sitting in the same federal courthouse—epitomizes the regulatory chaos driving innovation offshore.

With 920,000 to 5.2 million active U.S. crypto users affected by geoblocking, American developer market share collapsed from 38% to 19%, and major corporations like Ripple Labs placing 85% of positions offshore, the consequences of regulatory uncertainty extend far beyond immediate financial losses. The United States is systematically surrendering technological leadership in one of the most important industries of the 21st century.

Modernized regulatory frameworks acknowledging that airdrops are fundamentally different from securities offerings—more akin to loyalty programs than investment contracts—are urgently needed to restore U.S. competitiveness and protect the billions in economic value currently being driven offshore by impossible-to-navigate enforcement regimes