What Is the Howey Test?

To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts." 

The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.

Understanding the Howey Test

The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land. 

The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.

This established four criteria for determining an investment contract. Investing contract:

1. An investment of money
2. n a common enterprise
3. With the expectation of profit
4. To be derived from the efforts of others

In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.

Howey Test and Cryptocurrencies

Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.

The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test. 

Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."

For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.

These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."

Special Considerations

If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register. 

In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry. 

Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities. 

Howey Test FAQs

How Do You Determine If Something Is a Security?

The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.

The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.

Why Is Bitcoin Not a Security?

Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.

Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities. 

A Security Defined by the SEC

In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.

The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:

• An investment contract's existence
• The formation of a common enterprise
• The issuer's profit promise
• Third-party promotion of the offering

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Let's examine the differences between the three main token types and their functions.

As Ethereum grew, the term "token" became a catch-all term for all assets built on the Ethereum blockchain. However, different tokens were grouped based on their applications and features, causing some confusion. Let's examine the modification of three main token types: security, utility, and non-fungible.

Utility tokens

They provide a specific utility benefit (or a number of such). A utility token is similar to a casino chip, a table game ticket, or a voucher. Depending on the terms of issuing, they can be earned and used in various ways. A utility token is a type of token that represents a tool or mechanism required to use the application in question. Like a service, a utility token's price is determined by supply and demand. Tokens can also be used as a bonus or reward mechanism in decentralized systems: for example, if you like someone's work, give them an upvote and they get a certain number of tokens. This is a way for authors or creators to earn money indirectly.

The most common way to use a utility token is to pay with them instead of cash for discounted goods or services.

Utility tokens are the most widely used by blockchain companies. Most cryptocurrency exchanges accept fees in native utility tokens.

Utility tokens can also be used as a reward. Companies tokenize their loyalty programs so that points can be bought and sold on blockchain exchanges. These tokens are widely used in decentralized companies as a bonus system. You can use utility tokens to reward creators for their contributions to a platform, for example. It also allows members to exchange tokens for specific bonuses and rewards on your site.

Unlike security tokens, which are subject to legal restrictions, utility tokens can be freely traded.

Security tokens

Security tokens are essentially traditional securities like shares, bonds, and investment fund units in a crypto token form.

The key distinction is that security tokens are typically issued by private firms (rather than public companies) that are not listed on stock exchanges and in which you can not invest right now. Banks and large venture funds used to be the only sources of funding. A person could only invest in private firms if they had millions of dollars in their bank account. Privately issued security tokens outperform traditional public stocks in terms of yield. Private markets grew 50% faster than public markets over the last decade, according to McKinsey Private Equity Research.

A security token is a crypto token whose value is derived from an external asset or company. So it is governed as security (read about the Howey test further in this article). That is, an ownership token derives its value from the company's valuation, assets on the balance sheet, or dividends paid to token holders.

Why are Security Tokens Important?

Cryptocurrency is a lucrative investment. Choosing from thousands of crypto assets can mean the difference between millionaire and bankrupt. Without security tokens, crypto investing becomes riskier and generating long-term profits becomes difficult. These tokens have lower risk than other cryptocurrencies because they are backed by real assets or business cash flows. So having them helps to diversify a portfolio and preserve the return on investment in riskier assets.

Security tokens open up new funding avenues for businesses. As a result, investors can invest in high-profit businesses that are not listed on the stock exchange.

The distinction between utility and security tokens isn't as clear as it seems. However, this increases the risk for token issuers, especially in the USA. The Howey test is the main pillar regulating judicial precedent in this area.

What is a Howey Test?

An "investment contract" is determined by the Howey Test, a lawsuit settled by the US Supreme Court. If it does, it's a security and must be disclosed and registered under the Securities Act of 1933 and the Securities Exchange Act of 1934.

If the SEC decides that a cryptocurrency token is a security, a slew of issues arise. In practice, this ensures that the SEC will decide when a token can be offered to US investors and if the project is required to file a registration statement with the SEC.

Due to the Howey test's extensive wording, most utility tokens will be classified as securities, even if not intended to be. Because of these restrictions, most ICOs are not available to US investors. When asked about ICOs in 2018, then-SEC Chairman Jay Clayton said they were securities. The given statement adds to the risk. If a company issues utility tokens without registering them as securities, the regulator may impose huge fines or even criminal charges.

What other documents regulate tokens?

Securities Act (1993) or Securities Exchange Act (1934) in the USA; MiFID directive and Prospectus Regulation in the EU. These laws require registering the placement of security tokens, limiting their transfer, but protecting investors.

Utility tokens have much less regulation. The Howey test determines whether a given utility token is a security. Tokens recognized as securities are now regulated as such. Having a legal opinion that your token isn't makes the implementation process much easier. Most countries don't have strict regulations regarding utility tokens except KYC (Know Your Client) and AML (Anti Money-Laundering).

As cryptocurrency and blockchain technologies evolve, more countries create UT regulations. If your company is based in the US, be aware of the Howey test and the Bank Secrecy Act. It classifies UTs and their issuance as money transmission services in most states, necessitating a license and strict regulations. Due to high regulatory demands, UT issuers try to avoid the United States as a whole. A new law separating utility tokens from bank secrecy act will be introduced in the near future, giving hope to American issuers.

The rest of the world has much simpler rules requiring issuers to create basic investor disclosures. For example, the latest European legislation (MiCA) allows businesses to issue utility tokens without regulator approval. They must also prepare a paper with all the necessary information for the investors.

A payment token is a utility token that is used to make a payment. They may be subject to electronic money laws. 

Because non-fungible tokens are a new instrument, there is no regulating paper yet. However, if the NFT is fractionalized, the smaller tokens acquired may be seen as securities.

NFT Tokens

Collectible tokens are also known as non-fungible tokens. Their distinctive feature is that they denote unique items such as artwork, merch, or ranks. Unlike utility tokens, which are fungible, meaning that two of the same tokens are identical, NFTs represent a unit of possession that is strictly one of a kind. In a way, NFTs are like baseball cards, each one unique and valuable.

As for today, the most recognizable NFT function is to preserve the fact of possession. Owning an NFT with a particular gif, meme, or sketch does not transfer the intellectual right to the possessor, but is analogous to owning an original painting signed by the author.

Collectible tokens can also be used as digital souvenirs, so to say. Businesses can improve their brand image by issuing their own branded NFTs, which represent ranks or achievements within the corporate ecosystem. Gamifying business ecosystems would allow people to connect with a brand and feel part of a community. 

Which type of tokens is right for you as a business to raise capital?

For most businesses, it's best to raise capital with security tokens by selling existing shares to global investors. Utility tokens aren't meant to increase in value over time, so leave them for gamification and community engagement. In a blockchain-based business, however, a utility token is often the lifeblood of the operation, and its appreciation potential is directly linked to the company's growth. You can issue multiple tokens at once, rather than just one type. It exposes you to various investors and maximizes the use of digital assets.

Which tokens should I buy?

There are no universally best tokens. Their volatility, industry, and risk-reward profile vary. This means evaluating tokens in relation to your overall portfolio and personal preferences: what industries do you understand best, what excites you, how do you approach taxes, and what is your planning horizon? To build a balanced portfolio, you need to know these factors.

Conclusion

The three most common types of tokens today are security, utility, and NFT. Security tokens represent stocks, mutual funds, and bonds. Utility tokens can be perceived as an inside-product "currency" or "ignition key" that grants you access to goods and services or empowers with other perks. NFTs are unique collectible units that identify you as the owner of something.

War's Human Cost
I didn't start crying until I was outside a McDonald's in an Olempin, Poland rest area on highway S17.

Children pick toys at a refugee center, Olempin, Poland, March 4, 2022.

Refugee children, mostly alone with their mothers, but occasionally with a gray-haired grandfather or non-Ukrainian father, were coaxed into picking a toy from boxes provided by a kind-hearted company and volunteers.
I went to Warsaw to continue my research on my family's history during the Holocaust. In light of the ongoing Ukrainian conflict, I asked former colleagues in the US Department of Defense and Intelligence Community if it was safe to travel there. They said yes, as Poland was a NATO member.
I stayed in a hotel in the Warsaw Ghetto, where 90% of my mother's family was murdered in the Holocaust. Across the street was the first Warsaw Judenrat. It was two blocks away from the apartment building my mother's family had owned and lived in, now dilapidated and empty.

Building of my great-grandfather, December 2021.

A mass grave of thousands of rocks for those killed in the Warsaw Ghetto, I didn't cry when I touched its cold walls.

Warsaw Jewish Cemetery, 200,000–300,000 graves.

Mass grave, Warsaw Jewish Cemetery.

My mother's family had two homes, one in Warszawa and the rural one was a forest and sawmill complex in Western Ukraine. For the past half-year, a local Ukrainian historian had been helping me discover faint traces of her family’s life there — in fact, he had found some people still alive who remembered the sawmill and that it belonged to my mother’s grandfather. The historian was good at his job, and we had become close.

My historian friend, December 2021, talking to a Ukrainian.

With war raging, my second trip to Warsaw took on a different mission. To see his daughter and one-year-old grandson, I drove east instead of to Ukraine. They had crossed the border shortly after the war began, leaving men behind, and were now staying with a friend on Poland's eastern border.
I entered after walking up to the house and settling with the dog. The grandson greeted me with a huge smile and the Ukrainian word for “daddy,” “Tato!” But it was clear he was awaiting his real father's arrival, and any man he met would be so tentatively named.
After a few moments, the boy realized I was only a stranger. He had musical talent, like his mother and grandfather, both piano teachers, as he danced to YouTube videos of American children's songs dubbed in Ukrainian, picking the ones he liked and crying when he didn't.

Songs chosen by my historian friend's grandson, March 4, 2022

He had enough music and began crying regardless of the song. His mother picked him up and started nursing him, saying she was worried about him. She had no idea where she would live or how she would survive outside Ukraine. She showed me her father's family history of losses in the Holocaust, which matched my own research.
After an hour of drinking tea and trying to speak of hope, I left for the 3.5-hour drive west to Warsaw.
It was unlike my drive east. It was reminiscent of the household goods-filled carts pulled by horses and people fleeing war 80 years ago.

Jewish refugees relocating, USHMM Holocaust Encyclopaedia, 1939.

The carefully chosen trinkets by children to distract them from awareness of what is really happening and the anxiety of what lies ahead, made me cry despite all my research on the Holocaust. There is no way for them to communicate with their mothers, who are worried, absent, and without their fathers.
It's easy to see war as a contest of nations' armies, weapons, and land. The most costly aspect of war is its psychological toll. My father screamed in his sleep from nightmares of his own adolescent trauma in Warsaw 80 years ago.

Survivor father studying engineering, 1961.

In the airport, I waited to return home while Ukrainian public address systems announced refugee assistance. Like at McDonald's, many mothers were alone with their children, waiting for a flight to distant relatives.
That's when I had my worst trip experience.
A woman near me, clearly a refugee, answered her phone, cried out, and began wailing.
The human cost of war descended like a hammer, and I realized that while I was going home, she never would

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Many believe Putin is simply sabre rattling and intimidating us. They see no threat of nuclear war. We can send NATO troops into Ukraine without risking a nuclear war.

I keep reading that Putin is just using nuclear blackmail and that a strong leader will call the bluff. That, in my opinion, misunderstands the danger of sending NATO into Ukraine.
It assumes that once NATO moves in, Putin can either push the red nuclear button or not.
Sure, Putin won't go nuclear if NATO invades Ukraine. So we're safe? Can't we just move NATO?

No, because history has taught us that wars often escalate far beyond our initial expectations. One domino falls, knocking down another. That's why having clear boundaries is vital. Crossing a seemingly harmless line can set off a chain of events that are unstoppable once started.
One example is WWI. The assassin of Archduke Franz Ferdinand could not have known that his actions would kill millions. They couldn't have known that invading Serbia to punish them for not handing over the accomplices would start a world war. Every action triggered a counter-action, plunging Europe into a brutal and bloody war. Each leader saw their actions as limited, not realizing how they kept the dominos falling.

Nobody can predict the future, but it's easy to imagine how NATO intervention could trigger a chain of events leading to a total war. Let me suggest some outcomes.
NATO creates a no-fly-zone. In retaliation, Russia bombs NATO airfields. Russia may see this as a limited counter-move that shouldn't cause further NATO escalation. They think it's a reasonable response to force NATO out of Ukraine. Nobody has yet thought to use the nuke.
Will NATO act? Polish airfields bombed, will they be stuck? Is this an article 5 event? If so, what should be done?

It could happen. Maybe NATO sends troops into Ukraine to punish Russia. Maybe NATO will bomb Russian airfields.

Putin's response Is bombing Russian airfields an invasion or an attack? Remember that Russia has always used nuclear weapons for defense, not offense. But let's not panic, let's assume Russia doesn't go nuclear.

Maybe Russia retaliates by attacking NATO military bases with planes. Maybe they use ships to attack military targets. How does NATO respond? Will they fight Russia in Ukraine or escalate? Will they invade Russia or attack more military installations there?
Seen the pattern? As each nation responds, smaller limited military operations can grow in scope.

So far, the Russian military has shown that they begin with less brutal methods. As losses and failures increase, brutal means are used. Syria had the same. Assad used chemical weapons and attacked hospitals, schools, residential areas, etc.
A NATO invasion of Ukraine would cost Russia dearly. “Oh, this isn't looking so good, better pull out and finish this war,” do you think? No way. Desperate, they will resort to more brutal tactics. If desperate, Russia has a huge arsenal of ugly weapons. They have nerve agents, chemical weapons, and other nasty stuff.

What happens if Russia uses chemical weapons? What if Russian nerve agents kill NATO soldiers horribly? West calls for retaliation will grow. Will we invade Russia? Will we bomb them?

We are angry and determined to punish war criminal Putin, so NATO tanks may be heading to Moscow. We want vengeance for his chemical attacks and bombing of our cities.
Do you think the distance between that red nuclear button and Putin's finger will be that far once NATO tanks are on their way to Moscow?

We might avoid a nuclear apocalypse. A NATO invasion force or even Western cities may be used by Putin. Not as destructive as ICBMs. Putin may think we won't respond to tactical nukes with a full nuclear counterattack. Why would we risk a nuclear Holocaust by launching ICBMs on Russia?

Maybe. My point is that at every stage of the escalation, one party may underestimate the other's response. This war is spiraling out of control and the chances of a nuclear exchange are increasing. Nobody really wants it.

Fear, anger, and resentment cause it. If Putin and his inner circle decide their time is up, they may no longer care about the rest of the world. We saw it with Hitler. Hitler, seeing the end of his empire, ordered the destruction of Germany. Nobody should win if he couldn't. He wanted to destroy everything, including Paris.

In other words, the danger isn't what happens after NATO intervenes The danger is the potential chain reaction. Gambling has a psychological equivalent. It's best to exit when you've lost less. We humans are willing to take small risks for big rewards. To avoid losses, we are willing to take high risks. Daniel Kahneman describes this behavior in his book Thinking, Fast and Slow.

And so bettors who have lost a lot begin taking bigger risks to make up for it. We get a snowball effect. NATO involvement in the Ukraine conflict is akin to entering a casino and placing a bet. We'll start taking bigger risks as we start losing to Russian retaliation. That's the game's psychology.

It's impossible to stop. So will politicians and citizens from both Russia and the West, until we risk the end of human civilization.

You can avoid spiraling into ever larger bets in the Casino by drawing a hard line and declaring “I will not enter that Casino.” We're doing it now. We supply Ukraine. We send money and intelligence but don't cross that crucial line.

It's difficult to watch what happened in Bucha without demanding NATO involvement. What should we do? Of course, I'm not in charge. I'm a writer. My hope is that people will think about the consequences of the actions we demand. My hope is that you think ahead not just one step but multiple dominos.

More and more, we are driven by our emotions. We cannot act solely on emotion in matters of life and death. If we make the wrong choice, more people will die.

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