DAO Legal Entity Matrix

by Paradigm · Updated 8d ago

What is this?

This is a simple, mobile-friendly resource for comparing various legal structures used by DAOs in the US as well as a few international jurisdictions. It is intended to be a starting point for founders and their legal counsel to better inform them about the issues as they consider potential legal structuring solutions for DAOs.

Note from the Authors

At Paradigm, we believe Web3 can revolutionize the way people interact with each other online, springing forth the next generation of internet applications and businesses that give users ownership and economic exposure to the growth of the underlying protocols, resulting in more flexible and powerful forms of human coordination... Read more

Contributors

Chris Brummer, Irina Marinescu, Joe Doll, Adam Sternbach, Tammy Fisher, Kaito Cunningham, Derek Colla, Adam Zuckerman, Michael Katz, Achal Srinivasan and Anish Agnihotri.

What is it?

DAO operates with no formal legal entity.

If operating for profit or if token holders can vote to distribute the DAO treasury to themselves, there is a risk that a DAO can potentially be deemed a de facto general partnership.

However, no US court has found a DAO to be a general partnership to date, and questions remain as to whether all token holders would be deemed to be general partners

Org Chart

Best Used For

Highly decentralized DAOs particularly those with narrow scope of activities / limited off-chain operations that have less practical tax or regulatory enforcement risk given the decentralized nature and short term operations thus limiting the risk of not having a legal entity; or DAOs made up of hobbyists, not contractors or employees that receive regular income from DAO

Examples include any DAO acting without a formal legal entity

Relationship of Token Holders to entity

Token Holders are potentially general partners in a de facto general partnership; however, questions remain as to whether token holders will need to do more than just hold tokens to be deemed general partners (e.g., participate in governance)

Formation Meta Notes

• DAOs that operate without any formal legal structure could be legally categorized as a general partnership (if for profit) or as an unincorporated nonprofit association (if not for profit) 

• DAOs may form a legal entity to perform certain of their operations or hold certain of their assets, but careful analysis should be done to delineate what is encompassed by the legal entity (i.e., what is the legal entity “wrapping”), because the DAOs activities and assets may not always be coextensive with the legal entity 

• The appropriate entity structure for a DAO is highly dependent on the circumstances of that specific DAO. There is no one-size-fits all solution (yet). Such factors should be considered when contemplating the appropriate entity structure: (i) the activities of the DAO (ii) the activities of the proposed entities (iii) the degree of decentralization of the DAO (iv) the number of DAO members (v) the activities of the protocol underlying the DAO.

Formation Requirements

No legal formalities required

A general partnership is formed when two or more people engage in a business as co-owners for profit (notwithstanding a lack of intent to form a general partnership)

A general partnership could be the entity type that is deemed to exist prior to the formation of other entities

Administrative Requirements

If DAO is deemed to be a general partnership, the general partnership must file State and Federal tax returns, as well as tax returns in any other jurisdiction in which the DAO has active members that receive DAO treasury payments.

Each partner should file a Form K-1 to report their share of income

Liability Meta Notes

• Legal entities can be formed to potentially insulate various participants in the DAO ecosystem from liability 

Veil Piercing. US Courts may disregard the limited liability protections offered by entities in the event they find the entities to be undercapitalized, or a lack of “corporate formalities”, potentially resulting in direct liability for the principals involved Independence

. Regulators and US Courts may impose “control person liability” or disregard the legal personhood of entities that are directly controlled by principals (i.e.. a situation where an entity is the alter ego of its owner), potentially resulting in direct liability for the principals involved

Legal Personhood

If the DAO is deemed to be a general partnership, the DAO itself would have legal personhood (as a general partnership)

Personal Liability of Founding Team

If DAO is deemed to be a general partnership, the Founders are potentially deemed partners and each liable for 100% of the liabilities of the partnership, after creditors first try to satisfy a liability from the assets of the partnership itself

To address this risk, a DAO member could individually form an entity to act as owner of the DAO tokens and function as a tax and liability blocker

Personal Liability of Token Holders

If DAO is deemed to be a general partnership, token holders may be treated as general partners, the same as Founders and managers.

A DAO member could individually form an entity to act as owner of the DAO tokens and function as a tax and liability blocker

Personal Liability of Managers of Entity

If DAO is deemed to be a general partnership, all partners would be treated the same by law and each be fully liable for 100% of partnership obligations, although as a practical matter, persons known to exercise functional control of the DAO, such as through a multi-sig or as key developers, would face heightened risk as they are more likely to be the subject of third party claims

US Securities Law Meta Notes

• US regulators and courts are likely to seek an expansive application of US securities regulations to DAOs and DAO Tokens. Notwithstanding the legal structure,US regulators and courts are likely to focus on the fundamental economic relationship between actors, favoring function over form.  

◦ DAO Tokens as securities. DAOs that structure legal entities such that each token represents ownership of that legal entity could be potentially conceding the characterization of their token as a security. In any event, consideration should be given to whether transactions in the DAO Tokens could be deemed to be “investment contracts” under Howey, or “notes” under Reves (See Latham Memo). In addition to US federal securities laws, US state “blue sky” securities laws may be implicated as well.

◦ DAOs as Investment Companies. Consideration should be given to whether the DAO constitutes an investment company under the Investment Company Act of 1940

Partnership Interests as Securities. 

US Courts have deemed General Partnership interests to not be securities when the General Partners retain enough control and have enough expertise that they are not dependent on the efforts of a particular party

The SEC has argued that DAO Tokens are in fact securities when token holders do not have effective voting rights or are dependent on a particular sponsor or “active participant”

• Consideration should be given to whether efforts to form legal entity could lead to persons responsible being deemed to be “active participants” under SEC guidance

• Using an Offshore Foundation or Special Purpose Trust structure may result in less US-nexus, although US regulators will assert jurisdictions where possible if activities are on-shore or affect US persons; geoblocking US web addresses or otherwise taking measures to limit “flowback” of tokens to the US could reduce the risk of falling under US jurisdiction

Governance of Entity

If the DAO is deemed to be a general partnership, it will be governed by holders of a majority of partnership interests (but as a practical matter, this governance power will be coextensive with the matters that DAO members are able to vote on, which may or may not be limited, such that significant governance power may functionally rest outside the general partnership (e.g. with a dev team; persons with authority over private keys or multisig authority, etc.)

Taxation Meta Notes

Note that this Matrix only attempts to address more common structural scenarios at a high level.  For example, we have not addressed S. corporations and their taxation.  You should confer with a qualified tax professional before making any determinations about any particular tax treatment or situation.

DAOs as “entities” for US tax purposes: 

• Whether an organization is an entity separate from its owners for federal tax purposes is a matter of federal tax law and does not depend on whether the organization is recognized as an entity under local law.(Treas. Regs. § 301.7701-1(a)(1).) A joint venture or other contractual arrangement may create a separate entity for federal tax purposes if the participants carry on a trade, business, financial operation, or venture and divide the profits (Treas. Regs. § 301.7701-1(a)(2).)

• An entity not organized explicitly as a corporation could normally choose to be treated either as a partnership or as a corporation for federal income tax purposes. However, partnership classification is not available for an entity that is classified as a “publicly traded partnership.”(I.R.C. § 7704)

Consideration should be given to the potential tax implications of the following types of events: (i) transfers of assets to the entity / DAO (e.g., funding a treasury); (ii) transfers of assets from the entity / DAO to third parties (e.g., grant programs); (iii) yield or fee generating activities undertaken by the entity / DAO (e.g., staking/liquidity mining programs); and (iv) portfolio diversification (e.g., trading native token for stablecoins)

US ECI Considerations: 

• Foreign entities with a US trade or business are subject to US tax on the income that is effectively connected to the US trade of business (need to file Form 1040-NR) 

• If foundation is considered a subsidiary of a US corp or otherwise under control of the US corp, income to the Foundation could be deemed income for the US corp. 

• If foundation is considered to be undertaking US business, it could be subject to US tax.

• Mitigants: tax-exempt qualification on-shore or offshore locus (Cayman)

US FATCA Considerations 

• The Foreign Account Tax Compliance Act (FATCA) requires entities that may be dealing with United States taxpayers to report information about those taxpayers and their financial transactions to the IRS. If they fail to do so, any payment made to them becomes subject to an automatic 30% withholding tax that must be collected by anyone making payments to those entities.(I.R.C. § 1471(a) and 1472(a).)

• DAOs should carefully consider whether they are subject to FATCA compliance and potentially subject to withholding requirements. 

US CFC Considerations

• A controlled foreign corporation (“CFC”) is any foreign corporation in which more than 50 percent of the total combined voting power of all classes of stock entitled to vote is owned directly, indirectly, or constructively by U.S. shareholders.(Internal Revenue Service. "4.61.7 Controlled Foreign Corporations, Identification and Qualifications of CFCs and U.S. Shareholders.")  U.S. shareholders of CFCs are subject to specific anti-deferral rules under the U.S. tax code, which may require a U.S. shareholder of a CFC to report and pay U.S. tax on undistributed earnings of the foreign corporation (Internal Revenue Service. "Instructions for Form 5471 (01/2021), Category 5 Filer, CFC.")

• DAOs should consider whether they may qualify as CFCs and be subject to potential reporting requirements

Entity Level Taxation

If DAO is deemed to be a general partnership, which is a pass through entity for tax purposes, DAO token holders could have taxable income from a range of DAO activities  

Depending on the jurisdiction, if the DAO is deemed to be a general partnership, it may have filing and payment obligations, not only for income tax, but also indirect taxes, withholding taxes, stamp taxes, etc.

Service Providers and Banking Meta Notes

• DAOs with formal legal entities will have a better ability to engage professional service providers (e.g., lawyers), hire (and provide benefits to) employees, get bank accounts, and otherwise engaging in business activities

• When engaging service providers, consideration should be given to local employment law implications, particularly if they are full time and salaried 

• Consideration should also be paid to whether any AML / KYC obligations are required for transfers of digital assets to service providers

• If using an off-shore structure, DAOs should consider whether having local service providers can help mitigate ECI and other audit risk (See e.g., the EU Non-Cooperative Jurisdiction List)

Access to Capital Meta Notes

Not every legal entity is a viable capital-raising vehicle, so DAOs should carefully consider what type of entity to use to raise capital, potentially forming more than one entity

Access to Capital

A DAO could opt to raise funds by selling tokens, but careful consideration should be given to potential securities laws and tax implications

Reference

No Legal Entity

UNA Wrapper

Limited Cooperative Association

“Siloed” Entity (e.g., DE C. Corp, LLC)

Full LLC Wrapper (commonly DE / VT / WY)

Ownerless Offshore Foundation (commonly Cayman, Panama, Switzerland)

Special Purpose Trust (commonly Guernsey, Cayman)

What is it?

DAO operates with no formal legal entity.

If operating for profit or if token holders can vote to distribute the DAO treasury to themselves, there is a risk that a DAO can potentially be deemed a de facto general partnership.

However, no US court has found a DAO to be a general partnership to date, and questions remain as to whether all token holders would be deemed to be general partners

A DAO working toward a “non-profit” goal (statutorily defined by each state) can form an Unincorporated Nonprofit Association (UNA), which is akin to the non-profit version of an unincorporated partnership, but can offer members limited liability

A DAO could form a Limited Cooperative Association, which is an entity that combines traditional co-op principles with a more flexible capital structure and governance framework

A DAO (or its founders or token holders) can form a legal entity that undertakes certain activities of the DAO (e.g., act as token seller) or protocol, or holds certain assets

A DAO (or its founders or token holders) can form a limited liability company which DAO members will be the owners of.

States like VT and WYO have enacted statutory regimes that are specific to DAOs, all of which are untested by courts.  DE does not have a DAO-specific statute but is the most common US jurisdiction for forming a for-profit LLC.

A DAO (or its founders or token holders) can form an ownerless foundation (most commonly in Cayman, Panama, or Switzerland) that can be the recipient of a treasury for grant making and engage in other activities subject to a flexible governance structure

A DAO (or its founders or token holders) can form a special purpose trust (Guernsey or Cayman) by transferring certain assets (e.g., IP rights, potentially tokens) to Trustees to be used to further a specific purpose related to the DAO

Org Chart

Best Used For

Highly decentralized DAOs particularly those with narrow scope of activities / limited off-chain operations that have less practical tax or regulatory enforcement risk given the decentralized nature and short term operations thus limiting the risk of not having a legal entity; or DAOs made up of hobbyists, not contractors or employees that receive regular income from DAO

Examples include any DAO acting without a formal legal entity

DAOs with US-centric members or activities that have a bonafide non-profit purpose and want greater regulatory and tax certainty and are willing to "opt in" to US corporate tax.

Examples include

1. Idle DAO

2. LexDAO

DAOs with US-centric members that intend members to be active contributors to the DAO (with limited exceptions) and wish to abide by modern co-op principles. Not ideal for DAOs with a very fluid membership base who wish to remain pseudonymous.

A specific subgroup of the DAO or individual Token Holder that wants to form an entity to act as liability and tax blocker

DAOs that have a relatively definable group of members with activities that are relatively low regulatory risk and require a legal entity to interact with traditional service provider 

Examples include

1. Friends With Benefits

DAOs with relatively few, clearly definable, and highly stable group of members (ie. investment DAOs)

Examples include: 

1. Metacartel Ventures,

2. LAO/Flamingo

3. Syndicate 

A specific subgroup of the DAO or individual Token Holder that wants to form an entity to act as liability and tax blocker

DAOs that would want to delegate limited authority over assets transferred from DAO community treasuries (including potentially tokens and IP) to a board/council that is subject to fiduciary obligations solely to the community and DAO, typically to promote the protocol’s growth and development

Examples include

1. ENS, Nouns, API3, NCCO - Cayman

2. EF - Switzerland

3. Kin Ecosystem Foundation -

Canada

DAOs that would want to delegate limited authority over assets transferred from DAO community treasuries (including potentially tokens and IP) to Trustees that are subject to fiduciary obligations solely to act in the interest of the special purpose, typically to promote the protocol’s growth and development

Examples include

1. Terra

2. dYdX

Relationship of Token Holders to entity

Token Holders are potentially general partners in a de facto general partnership; however, questions remain as to whether token holders will need to do more than just hold tokens to be deemed general partners (e.g., participate in governance)

All Token Holders can become members of the UNA by “agreement”, potentially only requiring a governance proposal adopted by a majority and continued participation by DAO Token Holders 

If formation documents are silent, model law

prohibits transfers of membership interests by default

Token Holder could be patron-members of the DAO or investor-members of the DAO

If formation documents are silent, model law

prohibits transfer of membership interest

Token Holders can become members or shareholders of the Siloed Entity, but they would need to individually enter into a contract for their interest / shares

 

In addition, if the DAO has more than $10M in assets, it will be limited to 2,000 members (up to 500 of which can be unaccredited) before becoming a reporting company under the Securities Exchange Act of 1934

Typically (e.g., investment clubs in Syndicate, KaliDAO, Meta Cartel Ventures) Token Holders become members of the LLC, by individually entering into the partnership agreement

In addition, if the DAO has more than $10M in assets, it will be limited to 2,000 members (up to 500 of which can be unaccredited) before becoming a reporting company.  And a DAO formed to make minority investments would generally be limited to 100 members (See Investment Company Act of 1940, 15 U.S.C. § 80a-3(c)(1).)

Token Holders would have no direct ownership relationship to the Foundation (which is “ownerless”), but are able to direct its Board or Council to act based on their vote

Token Holders would have no direct ownership relationship to the Trust, but are able to direct its Trustees

Formation Meta Notes

• DAOs that operate without any formal legal structure could be legally categorized as a general partnership (if for profit) or as an unincorporated nonprofit association (if not for profit) 

• DAOs may form a legal entity to perform certain of their operations or hold certain of their assets, but careful analysis should be done to delineate what is encompassed by the legal entity (i.e., what is the legal entity “wrapping”), because the DAOs activities and assets may not always be coextensive with the legal entity 

• The appropriate entity structure for a DAO is highly dependent on the circumstances of that specific DAO. There is no one-size-fits all solution (yet). Such factors should be considered when contemplating the appropriate entity structure: (i) the activities of the DAO (ii) the activities of the proposed entities (iii) the degree of decentralization of the DAO (iv) the number of DAO members (v) the activities of the protocol underlying the DAO.

Formation Requirements

No legal formalities required

A general partnership is formed when two or more people engage in a business as co-owners for profit (notwithstanding a lack of intent to form a general partnership)

A general partnership could be the entity type that is deemed to exist prior to the formation of other entities

Varies state by state, but no filing required in most states. 

The model law defines an UNA as “consisting of [two] or more members joined under an agreement that is oral, in a record, or implied from conduct, for one or more common, nonprofit purposes.”

Consideration should be given to whether the activities of the DAO qualify as non-profit (distributions to token holders would typically be disqualifying). UNA may engage in activities that produce profit so long as they are in furtherance of the nonprofit purpose

File articles of association with the secretary of state; pay applicable filing fees; engage agent for service of process in filing jurisdiction; adopt bylaws.

File a certificate of incorporation/formation with the secretary of state; pay applicable filing fees; engage agent for service of process in filing jurisdiction; adopt bylaws (corporation) or operating agreement (LLC).

Siloed entities will need to set up a governance structure (e.g., Board and officers if C. Corp., or manager- or member- managed if LLC).

Consideration should be given to the authority pursuant to which the representatives of the DAO or the affiliated entity forms the Siloed Entity, and by whom the shares / units will be legally owned, and whether these arrangements imply the DAO itself being a general partnership or the party forming the entity being an “active participant” (Defined by the SEC

as “a promoter, sponsor, or other third party (or affiliated group of third parties)”)

File certificate of formation with the secretary of state; pay applicable filing fees; engage agent for service of process in filing jurisdiction. 

LLC will need to choose its governance structure - either member- or manager- managed.

Operating agreement must be executed by all members (see, e.g., Syndicate.io’s form operating agreement

; Kali.DAO’s form operating agreement;

and Metacartel Ventures’ operating agreement)

File formation documents with relevant jurisdiction to incorporate Foundation; operational details can be included in bylaws which are not publicly filed

Potentially form additional entities to act as founder of foundation and as token issuer

Cayman Islands VASP law requires VASPS (including “issuance of virtual assets”) to register with CIMA (Walkers memo)

No registration or government filing at time of formation or any recurring local filings 

A “constructive trust” is created upon the transfer of the assets to the Trustee; the Special Purpose Trust will be effective when the Trustees (and potentially Settlor and Enforcer) execute trust instrument

Given potential liability to Trustees from source of funds, it is not advisable for the DAO token holders to be the Settlors of the Trust, but rather a Foundation

Administrative Requirements

If DAO is deemed to be a general partnership, the general partnership must file State and Federal tax returns, as well as tax returns in any other jurisdiction in which the DAO has active members that receive DAO treasury payments.

Each partner should file a Form K-1 to report their share of income

The UNA must file State and Federal tax returns. 

UNA cannot make distributions to members

Must file IRS Form 8832

to be taxed as a corporation.

Yearly state franchise tax. Required to engage agent for service in-state. Must file State and Federal tax returns (LLCs with multiple members are classified as a partnership for federal income tax purposes. Single member LLCs are disregarded entities for tax purposes, unless they elect to be taxed as a corporation.)

Yearly state franchise tax. Required to engage agent for service in-state. Must file State and Federal tax returns (LLCs with multiple members are classified as a partnership for federal income tax purposes. Single member LLCs are disregarded entities for tax purposes, unless they elect to be taxed as a corporation.)

Foundations and companies have local annual reporting and filing requirements

Cayman Foundation Companies are required to have a secretary that is licensed in Cayman Islands and pay an annual Companies registry fee of CI$700

Swiss Foundations must have at least one board member with individual signature rights who is a Swiss or European citizen with Swiss residence, appoint an independent external auditor, and must be registered in the commercial register

Guernsey – Trustee does not 

need to be licensed or local; no recurring filings, taxes or fees

Cayman – Requires local licensed trustee; no recurring filings, taxes or fees

Liability Meta Notes

• Legal entities can be formed to potentially insulate various participants in the DAO ecosystem from liability 

Veil Piercing. US Courts may disregard the limited liability protections offered by entities in the event they find the entities to be undercapitalized, or a lack of “corporate formalities”, potentially resulting in direct liability for the principals involved Independence

. Regulators and US Courts may impose “control person liability” or disregard the legal personhood of entities that are directly controlled by principals (i.e.. a situation where an entity is the alter ego of its owner), potentially resulting in direct liability for the principals involved

Legal Personhood

If the DAO is deemed to be a general partnership, the DAO itself would have legal personhood (as a general partnership)

Yes, so long as legal form is recognized in relevant state / jurisdiction

Yes

Yes

Yes

Yes

No separate legal personhood. However, Trustees can act on behalf of Trust

Personal Liability of Founding Team

If DAO is deemed to be a general partnership, the Founders are potentially deemed partners and each liable for 100% of the liabilities of the partnership, after creditors first try to satisfy a liability from the assets of the partnership itself

To address this risk, a DAO member could individually form an entity to act as owner of the DAO tokens and function as a tax and liability blocker

If UNA is recognized as separate legal entity, Founders could be shielded from liability arising from activities by the DAO after formation of UNA, although this remains untested by courts

Founders, as members, could be potentially shielded from liability arising from activity conducted by the LCA after its formation

Founders, as shareholders or members, could be shielded from liability arising from activity conducted by the Siloed Entity after its formation

However, Founders may be responsible for liabilities that do not arise from activities of the Siloed Entity

Founders, as members, could be potentially shielded from liability arising from activity conducted by the LLC after its formation

Founders could be shielded from liability arising from activity conducted by the Offshore Foundation after its formation

However, Founders may be responsible for liabilities that do not arise from activities of the Offshore Foundation, or which the Founders directly cause the Foundation to undertake

Consideration should be given to ensuring independence of the Offshore Foundation from the Founders and any US-based developer company

Founders could be shielded from liability arising from activity conducted by the Trustees

However, Founders may be responsible for liabilities that do not arise from the activities of the Special Purpose Trust or are undertaken by the Trustees under control of the Founders

Consideration should be given to ensuring independence of the Special Purpose Trust from the Founders and any US-based Developer Company

Personal Liability of Token Holders

If DAO is deemed to be a general partnership, token holders may be treated as general partners, the same as Founders and managers.

A DAO member could individually form an entity to act as owner of the DAO tokens and function as a tax and liability blocker

If UNA is recognized as separate legal entity, token holders potentially have limited liability as “members”, although this remains untested by courts

Token Holders, as members, could be shielded from liability arising from activity conducted by the LCA after its formation

Token Holders, if shareholders or members of a Siloed Entity, could be shielded from liability arising from activity conducted by the Siloed Entity after its formation

However, Token Holders may still be liable for liabilities that do not arise from activities of the Siloed Entity or if the entity is disregarded by a court or regulator

Token Holders, as members, could be shielded from liability arising from activity conducted by the LLC after its formation

Token Holders could be shielded from liability arising from activities conducted by the Offshore Foundation after its formation

However, Token Holders may still be liable for liabilities that do not arise from activities of the Offshore Foundation or if the entity is disregarded by a court or regulator

Token Holders could be shielded from liability arising from activity conducted by the Trustees; however, liability could attach if the Token Holders effectively control the Trust or are the direct Settlors of the Trust and Token Holders may still be liable for liabilities that do not arise from activities of the Trust

Personal Liability of Managers of Entity

If DAO is deemed to be a general partnership, all partners would be treated the same by law and each be fully liable for 100% of partnership obligations, although as a practical matter, persons known to exercise functional control of the DAO, such as through a multi-sig or as key developers, would face heightened risk as they are more likely to be the subject of third party claims

Managers have limited liability and can be indemnified

Directors of LCA have limited liability and can be indemnified

The managers (Board and Officers) of a Siloed Entity would have limited liability by (i) being exculpated by the Entity from damages (with exceptions, including duty of loyalty claims), (ii) indemnified (with exceptions) and have expenses advanced by the Entity for legal proceedings, and (iii) get D&O insurance (not widely available today)

Same as Siloed Entity

Directors / Council Members have limited liability.

Only the “Supervisor” would have standing to sue the Directors / Council Members for breach of fiduciary duties 

However, the Directors / Council Members and Supervisor could be subject to regulation in their local jurisdiction

As a matter of offshore law (Guernsey / Cayman) the liability of the Trustees and the Enforcer is limited to the assets of the Special Purpose Trust so long as they act within the terms of the trust agreement and in accordance with their fiduciary duties

Only the “Enforcer” would have standing to sue the Trustees for breach of fiduciary duties 

However, the Trustees & Enforcer could be subject to regulation in their local jurisdiction

US Securities Law Meta Notes

• US regulators and courts are likely to seek an expansive application of US securities regulations to DAOs and DAO Tokens. Notwithstanding the legal structure,US regulators and courts are likely to focus on the fundamental economic relationship between actors, favoring function over form.  

◦ DAO Tokens as securities. DAOs that structure legal entities such that each token represents ownership of that legal entity could be potentially conceding the characterization of their token as a security. In any event, consideration should be given to whether transactions in the DAO Tokens could be deemed to be “investment contracts” under Howey, or “notes” under Reves (See Latham Memo). In addition to US federal securities laws, US state “blue sky” securities laws may be implicated as well.

◦ DAOs as Investment Companies. Consideration should be given to whether the DAO constitutes an investment company under the Investment Company Act of 1940

Partnership Interests as Securities. 

US Courts have deemed General Partnership interests to not be securities when the General Partners retain enough control and have enough expertise that they are not dependent on the efforts of a particular party

The SEC has argued that DAO Tokens are in fact securities when token holders do not have effective voting rights or are dependent on a particular sponsor or “active participant”

• Consideration should be given to whether efforts to form legal entity could lead to persons responsible being deemed to be “active participants” under SEC guidance

• Using an Offshore Foundation or Special Purpose Trust structure may result in less US-nexus, although US regulators will assert jurisdictions where possible if activities are on-shore or affect US persons; geoblocking US web addresses or otherwise taking measures to limit “flowback” of tokens to the US could reduce the risk of falling under US jurisdiction

Governance of Entity

If the DAO is deemed to be a general partnership, it will be governed by holders of a majority of partnership interests (but as a practical matter, this governance power will be coextensive with the matters that DAO members are able to vote on, which may or may not be limited, such that significant governance power may functionally rest outside the general partnership (e.g. with a dev team; persons with authority over private keys or multisig authority, etc.)

UNA members can elect managers who have fiduciary duties to the UNA

Members do not typically owe fiduciary duties to other members (absent being a manager)

LCA members elect Directors. LCA members’ vote can be counted as “one member, one vote” (as is typical for co-ops) but also based on use or patronage or even on equity.

Directors need not be members of the LCA. Directors have fiduciary duties to the LCA.

If Siloed Entity is  a corporation, it will be managed by Board, which is elected by the shareholders, and can appoint officers. Board members will be subject to fiduciary duties 

If Siloed Entity is  an LLC, it can be managed directly by members or by managers. Fiduciary duties can be waived (with limited exceptions)

Shareholders / members do not typically owe fiduciary duties to other members (absent being a director / manager)

LLC can either be managed directly by members or by managers. Fiduciary duties can be waived (with limited exceptions)

WY DAO LLCs can only be member-managed

The Foundation will be managed by a council or board, which in turn can be directed by the vote of the Token Holders or through a supervisory or advisory committee.  

If foundation is using independent nominee directors, they can (a) act as instructed by founder; (b) act as instructed by the vote of the token holders; (c) act as directed by a supervisory or advisory committee, or (d) exercise discretion pursuant to the purpose of the foundation.

Foundation may also enter into a intercompany or services agreement with a US-based developer company.

Trustees hold assets in accordance with purpose set out in the trust agreement (See e.g., Purpose Trust Instrument of dYdX Grants Trust

Trustees have general fiduciary duties to act in the best interest of the trust and are subject to removal by other Trustees, as directed by vote of DAO token holders

A Special Purpose Trust must have an Enforcer with broad rights to monitor Trustees, as directed by vote of DAO token holders

DAO token holders could exercise range of control over actions of Trustees, including to require them to terminate the trust and  transfer the assets to a different entity

Taxation Meta Notes

Note that this Matrix only attempts to address more common structural scenarios at a high level.  For example, we have not addressed S. corporations and their taxation.  You should confer with a qualified tax professional before making any determinations about any particular tax treatment or situation.

DAOs as “entities” for US tax purposes: 

• Whether an organization is an entity separate from its owners for federal tax purposes is a matter of federal tax law and does not depend on whether the organization is recognized as an entity under local law.(Treas. Regs. § 301.7701-1(a)(1).) A joint venture or other contractual arrangement may create a separate entity for federal tax purposes if the participants carry on a trade, business, financial operation, or venture and divide the profits (Treas. Regs. § 301.7701-1(a)(2).)

• An entity not organized explicitly as a corporation could normally choose to be treated either as a partnership or as a corporation for federal income tax purposes. However, partnership classification is not available for an entity that is classified as a “publicly traded partnership.”(I.R.C. § 7704)

Consideration should be given to the potential tax implications of the following types of events: (i) transfers of assets to the entity / DAO (e.g., funding a treasury); (ii) transfers of assets from the entity / DAO to third parties (e.g., grant programs); (iii) yield or fee generating activities undertaken by the entity / DAO (e.g., staking/liquidity mining programs); and (iv) portfolio diversification (e.g., trading native token for stablecoins)

US ECI Considerations: 

• Foreign entities with a US trade or business are subject to US tax on the income that is effectively connected to the US trade of business (need to file Form 1040-NR) 

• If foundation is considered a subsidiary of a US corp or otherwise under control of the US corp, income to the Foundation could be deemed income for the US corp. 

• If foundation is considered to be undertaking US business, it could be subject to US tax.

• Mitigants: tax-exempt qualification on-shore or offshore locus (Cayman)

US FATCA Considerations 

• The Foreign Account Tax Compliance Act (FATCA) requires entities that may be dealing with United States taxpayers to report information about those taxpayers and their financial transactions to the IRS. If they fail to do so, any payment made to them becomes subject to an automatic 30% withholding tax that must be collected by anyone making payments to those entities.(I.R.C. § 1471(a) and 1472(a).)

• DAOs should carefully consider whether they are subject to FATCA compliance and potentially subject to withholding requirements. 

US CFC Considerations

• A controlled foreign corporation (“CFC”) is any foreign corporation in which more than 50 percent of the total combined voting power of all classes of stock entitled to vote is owned directly, indirectly, or constructively by U.S. shareholders.(Internal Revenue Service. "4.61.7 Controlled Foreign Corporations, Identification and Qualifications of CFCs and U.S. Shareholders.")  U.S. shareholders of CFCs are subject to specific anti-deferral rules under the U.S. tax code, which may require a U.S. shareholder of a CFC to report and pay U.S. tax on undistributed earnings of the foreign corporation (Internal Revenue Service. "Instructions for Form 5471 (01/2021), Category 5 Filer, CFC.")

• DAOs should consider whether they may qualify as CFCs and be subject to potential reporting requirements

Entity Level Taxation

If DAO is deemed to be a general partnership, which is a pass through entity for tax purposes, DAO token holders could have taxable income from a range of DAO activities  

Depending on the jurisdiction, if the DAO is deemed to be a general partnership, it may have filing and payment obligations, not only for income tax, but also indirect taxes, withholding taxes, stamp taxes, etc.

UNA is taxed as corporation (21%) unless other election is made (e.g., DRE). However, since no dividends can be distributed to members without disqualifying UNA, taxation is effectively limited to the entity level. 

Must file estimated taxes each quarter and file and annual tax return.

The LCA is taxed at the entity level but can take advantage of certain deductions from income

C. corp. taxed as a corp.  Single member LLC is disregarded and multi-member LLC is taxed as a partnership (on a pass through basis), unless other election is made. 

Must file estimated taxes each quarter and file an annual tax return.

No tax at entity level; income is passed through to members (potential for phantom income issues). 

Has the ability to be taxed as a corporation if it elects so.

Cayman Considerations: 

• A foundation company is not subject to any income, withholding or capital gains taxes in the Cayman Islands.  Beneficiaries will not be subject to any tax 

Panama Considerations: 

• Panamanian law does not recognize digital assets. 

• As long as any income is generated outside of Panama, there is no applicable tax.

Swiss Considerations: Only Swiss foundations that pursue a “charitable purpose”, and whose activities have an altruistic character, can apply for a complete tax exemption, and only on profits that are exclusively dedicated to this purpose. To merely develop a specific open source protocol or project is generally NOT considered a charitable purpose due to a closed group of beneficiaries. However, such protocol foundations are usually subject to a limited taxation based on a cost plus 5% minimum profit calculation. Legal entities that combine commercial purposes with purposes of public interest can benefit from a partial tax exemption.

Cayman Considerations: 

• No entity-level tax

Guernsey Considerations: 

• No tax at the Guernsey level so long as there are no Guernsey resident beneficiaries and no Guernsey source income

The settlors of the Special Purpose Trust could have tax liability depending on their local jurisdiction. For US tax purposes, if Trust is deemed a grantor trust, any income will be taxed to the trust’s grantor (DAO Token holders) (“I.R.C. §§ 673-679 of the Internal Revenue Code contain various requirements for identifying when a grantor trust exists. The core issue is that if the grantor retains sufficient dominion and control over the assets of the trust, then it is appropriate to treat the grantor as the owner of the trust for U.S. federal income tax purposes.” dYdX Legal Framework for Non-US Trusts in Decentralized Autonomous Organizations)

Service Providers and Banking Meta Notes

• DAOs with formal legal entities will have a better ability to engage professional service providers (e.g., lawyers), hire (and provide benefits to) employees, get bank accounts, and otherwise engaging in business activities

• When engaging service providers, consideration should be given to local employment law implications, particularly if they are full time and salaried 

• Consideration should also be paid to whether any AML / KYC obligations are required for transfers of digital assets to service providers

• If using an off-shore structure, DAOs should consider whether having local service providers can help mitigate ECI and other audit risk (See e.g., the EU Non-Cooperative Jurisdiction List)

Access to Capital Meta Notes

Not every legal entity is a viable capital-raising vehicle, so DAOs should carefully consider what type of entity to use to raise capital, potentially forming more than one entity

Access to Capital

A DAO could opt to raise funds by selling tokens, but careful consideration should be given to potential securities laws and tax implications

Generally not typically a capital raising vehicle

Assets can be transferred to UNA, but members cannot take distributions 

Project can fundraise using a separate and independent US OpCo or foreign entity

LCAs allow for investor-members who have voting rights and rights to economic distribution, making them potential capital-raising vehicles. However, most LCA statutes do not exempt the issuance of interests to investor-members from the application of state securities laws.

A DE Corp will be most familiar to investors and able to sell convertible securities (seed stage), equity and token rights.

An LLC is also able to issue convertible securities, equity and token rights, but is less common than a DE Corp given that LLCs can have negative upstream tax implications for investors

Generally not typically a capital raising vehicle

Assets can be transferred to Offshore Foundation, but grantors are not “owners” or “beneficiaries”

Project can fundraise using a separate and independent US OpCo or foreign entity

Generally not typically a capital raising vehicle

Assets can be transferred to Trust, but Settlors are not “owners” or “beneficiaries”

Project can fundraise using a separate and independent US OpCo or foreign entity