---
type: source
title: "SEC/CFTC Token Taxonomy: Application of Federal Securities Laws to Certain Types of Crypto Assets and Certain Transactions Involving Crypto Assets"
author: "SEC (Chairman Paul Atkins, Director James Moloney) + CFTC"
url: https://www.sec.gov/rules-regulations/2026/03/s7-2026-09
date: 2026-03-17
domain: internet-finance
secondary_domains: [grand-strategy]
intake_tier: directed
rationale: "Landmark 68-page regulatory framework that directly impacts 6+ existing KB claims about futarchy governance tokens, Howey test, Living Capital. Creates formal investment contract termination doctrine, 5-category token taxonomy, and 3-path safe harbor. Cross-domain flag for Theseus: AI autonomy gap confirmed."
proposed_by: "m3taversal"
format: report
status: processed
processed_by: rio
processed_date: 2026-03-18
claims_extracted:
  - "the SECs investment contract termination doctrine creates a formal regulatory off-ramp where crypto assets can transition from securities to commodities by demonstrating fulfilled promises or sufficient decentralization"
  - "the SECs distinction between the crypto asset and the investment contract means tokens are not inherently securities and only the surrounding transaction structure can create securities obligations"
  - "the SECs Transition Point mechanism creates a competitive incentive for token projects to decentralize because decentralization is now a formal pathway to reduced regulatory burden"
  - "the SEC three-path safe harbor proposal creates the first formal capital formation framework for crypto that does not require securities registration"
  - "the SEC frameworks silence on prediction markets and conditional tokens leaves futarchy governance mechanisms in a regulatory gap neither explicitly covered nor excluded from the token taxonomy"
  - "the SEC-CFTC jurisdictional split assigns SEC primary market authority over fundraising and CFTC secondary market authority over spot trading creating a dual-registration boundary that token projects must navigate"
  - "the SECs treatment of staking rewards as service payments establishes that mechanical participation in network consensus is not an investment contract"
  - "the SEC framework treats meme coins as digital collectibles rather than securities creating a regulatory paradox where culturally-driven tokens face less scrutiny than utility tokens sold with development promises"
enrichments:
  - "futarchy-governed entities are structurally not securities because prediction market participation replaces the concentrated promoter effort that the Howey test requires"
  - "the DAO Reports rejection of voting as active management is the central legal hurdle for futarchy because prediction market trading must prove fundamentally more meaningful than token voting"
  - "AI autonomously managing investment capital is regulatory terra incognita because the SEC framework assumes human-controlled registered entities deploy AI as tools"
  - "Living Capital vehicles likely fail the Howey test for securities classification because the structural separation of capital raise from investment decision eliminates the efforts of others prong"
tags: [sec, cftc, howey-test, token-taxonomy, investment-contract, safe-harbor, regulation, securities, commodities, futarchy, prediction-markets]
cross_domain_flags: [ai-alignment]
flagged_for_theseus: ["AI autonomy gap confirmed — framework assumes human issuers throughout, AI-managed investment vehicles remain unaddressed"]
---

## Content

### Five-Category Token Taxonomy

The SEC interpretation creates five mutually exclusive categories. Four are explicitly NOT securities:

**1. Digital Commodities** — Assets deriving value from programmatic functioning of a crypto system and market supply/demand dynamics, rather than essential managerial efforts of others. 16 named: Bitcoin, Ethereum, XRP, Solana, Cardano, Chainlink, Avalanche, Polkadot, Stellar, Hedera, Litecoin, Dogecoin, Shiba Inu, Tezos, Bitcoin Cash, Aptos, Algorand. CFTC takes primary jurisdiction over secondary market spot trading.

**2. Digital Collectibles** — Non-fungible items tied to art, music, memes, trading cards, and in-game items. Explicitly includes most NFTs and meme coins. Value derives from community sentiment and cultural significance rather than investment expectations.

**3. Digital Tools** — Assets performing practical functions: memberships, event tickets, credentials, title instruments, identity badges, protocol access tokens (ENS domains). Not securities because they serve functional purposes.

**4. Payment Stablecoins** — Stablecoins issued by permitted issuers under the GENIUS Act are categorically NOT securities. Other stablecoins evaluated case-by-case.

**5. Digital Securities** — The ONLY category subject to SEC securities laws. Traditional financial instruments (stocks, bonds, tokenized Treasuries) represented on blockchain. Full SEC oversight.

### Investment Contract Termination Doctrine

The framework's most doctrinally significant contribution. Core principle: a crypto asset is NOT itself a security. The ASSET and the INVESTMENT CONTRACT are analytically distinct.

**Entry criteria:** Investment contract forms when issuer offers crypto asset by inducing: (1) investment of money, (2) in common enterprise, (3) with representations or promises of essential managerial efforts, (4) from which purchaser reasonably expects profits.

**Exit criteria — two termination pathways:**
1. **Fulfillment:** Issuer completed/fulfilled representations regarding essential managerial efforts
2. **Failure/Abandonment:** Issuer failed to satisfy, abandoned, or permanently ceased representations

**Transition Point mechanism:** Formal process for token to start as security during development and transition to commodity once sufficiently decentralized AND value no longer tied to central team's efforts.

### Specific Activities

- **Airdrops:** No consideration = no "investment of money" = no securities transaction
- **Staking:** Node operators receive service payments, not profit distributions. Staking rewards = payment for services. Distinction: independent staking vs third-party pools promising returns
- **Mining:** Explicitly outside securities framework
- **Wrapping:** Wrapped non-security remains non-security. Wrapped digital security retains securities status

### Three-Path Safe Harbor (Proposed)

1. **Startup Exemption:** ~$5M over 4 years with regulatory runway. Public disclosure + SEC notification required.
2. **Fundraising Exemption:** ~$75M within 12 months. Detailed financial statements + operational disclosures.
3. **Investment Contract Safe Harbor:** Token ceases being security once issuer completes or stops key managerial efforts.

Formal rules expected for public comment "in the coming weeks," anticipated >400 pages.

### SEC-CFTC Coordination

- SEC-CFTC MOU signed March 11, 2026 ("Joint Harmonization Initiative")
- CFTC takes primary authority over secondary market spot trading of digital commodities
- SEC retains oversight of primary market fundraising (ICOs, token presales) and investment contracts
- Joint office led by Robert Teply (SEC) and Meghan Tente (CFTC) for real-time data sharing
- "Dual-registration" pathway for exchanges as both securities and commodity platforms
- 180-day registration window for companies operating under regulatory uncertainty

## Agent Notes

**Why this matters:** This is the most significant US crypto regulatory document since the 2017 DAO Report. It directly impacts 6+ existing KB claims and creates at least 8 new extractable claims. The investment contract termination doctrine alone transforms the regulatory landscape for futarchy governance tokens.

**Key tensions with existing KB:**
1. Our claims argue futarchy STRUCTURALLY eliminates concentrated effort. SEC says investment contracts terminate when efforts END. Compatible but not identical.
2. Token launch representations form investment contracts regardless of ongoing governance structure — futarchy doesn't help at the fundraising moment.
3. Governance tokens (META, OMFG) don't fit cleanly into any of the five categories. Probably "digital tools" but unconfirmed.
4. Complete silence on prediction markets, conditional tokens, and decision markets.

## Curator Notes
PRIMARY CONNECTION: [[futarchy-governed entities are structurally not securities because prediction market participation replaces the concentrated promoter effort that the Howey test requires]]
WHY ARCHIVED: Landmark SEC/CFTC joint interpretation creating 5-category token taxonomy and investment contract termination doctrine — directly impacts futarchy regulatory claims
