About
Foundational Principles In the Community Diversity, Equity & Inclusion Technical Excellence Alumni TIAG Membership
Careers
Why Cohen & Co Our Culture Total Rewards & Benefits Early Career Opportunities Experienced Opportunities Join Our Talent Community
Contact
Akron, OH Baltimore, MD Buffalo, NY Chicago, IL Cleveland, OH Deer Park, IL Denver, CO Detroit, MI Milwaukee, WI New York, NY Philadelphia, PA Pittsburgh, PA St. Clair Shores, MI Youngstown, OH
Client Portal
Services Industries Knowledge Center People

About Our Services

We offer tailored solutions — whether private company or owner; public or private fund, adviser or fund service provider; or Fortune 1000 enterprise. Learn how we can help you.

Find Services

Assurance Services

Employee Benefit Plan Audits Internal Controls Investment Company Audits Private Company Audits

Tax Services

Federal Tax Planning & Compliance High Net Worth & Wealth Transfer International Filings & Structuring Investment Company Tax State & Local Tax Tax Credits & Incentives Transaction Tax Planning

Advisory Services

Business Valuations Data & Insights Digital Finance Solutions IT Strategy & Implementation Litigation Support Services M&A Advisory Outsourced Accounting Solutions Transaction Services Turnaround & Restructuring

Our Industry Expertise

Our industry experience means you can find professionals who speak your language and bring earned insights to the table. Learn how we can help you.

Explore Industries

Key Industries

Digital Assets Investment Companies Manufacturing Private Companies Private Equity Real Estate & Construction Technology & Life Science
VIEW THE COMPLETE LIST

Knowledge Center

Our team wants to help your team stay up to date. Browse our thought leadership, events and news for insights and a point of view on business-critical topics.

Find Insights & Events

Insights

Browse valuable articles and publications our experts have written to help you and your organization answer key questions — and consider new ones.

Read Our Insights

Events

Join us in person and online for events that address timely topics and key business considerations.

Explore Our Events

News

Find out what is happening at Cohen & Co, from industry recognitions and growth updates, to where we are contributing to important media stories.

Read Our News
People
Foundational Principles In the Community Diversity, Equity & Inclusion Technical Excellence Alumni TIAG Membership
Why Cohen & Co Our Culture Total Rewards & Benefits Early Career Opportunities Experienced Opportunities Join Our Talent Community
Akron, OH Baltimore, MD Buffalo, NY Chicago, IL Cleveland, OH Deer Park, IL Denver, CO Detroit, MI Milwaukee, WI New York, NY Philadelphia, PA Pittsburgh, PA St. Clair Shores, MI Youngstown, OH
Client Portal
Back to Insights

SEC Provides Framework to Determine Whether Digital Assets Offered in Initial Coin Offerings Are Considered U.S. Securities

by Corey McLaughlin

April 09, 2019 Digital Assets

April 3, 2019, marked two “firsts” for the SEC as they simultaneously released: 

  1. A framework to help determine whether a digital asset offered in an initial coin offering (ICO) constitutes a securities offering and is therefore subject to U.S. securities laws; and
  2. A no-action letter clearing an ICO to sell tokens without registration under U.S. securities laws. 

Together, these two actions begin to clarify how digital assets are, or are not, viewed in the eyes of the SEC.
 
Rather than reinvent existing U.S. securities laws, the SEC’s framework re-emphasizes the longstanding application of the Howey test to analyze whether a digital asset has the characteristics of an investment contract, and would therefore constitute a security. Under Howey, an investment contract exists when (a) money is invested in a (b) common enterprise with a (c) reasonable expectation of profits to be derived from the efforts of others. 
 
Typically, most ICOs will meet the first two parts of the Howey test: an investment of money in a common enterprise. Most of the gray area in the analysis lies in evaluating the nuances of the ICO to determine whether or not there is a reasonable expectation of profits derived from the efforts of others. To aid in making this determination, the framework sets forth a variety of characteristics to consider, including, for example: 

  • Are the efforts of the promoter or sponsor of the digital asset impacting the development of a network and creating a market for the digital asset, and is it reasonable that a purchaser of the asset would rely on those efforts?
  • Does the purchaser or holder of the digital asset have rights to share in income and appreciation derived from the asset?
  • Is there an ability to trade or transfer the asset in a market or a future expectation to do so?
  • Is the asset broadly marketed to purchasers, rather than being specifically tied to certain goods and services that may have been exchanged for the digital asset? 

By applying the framework to examine each component of the Howey test, it is expected the majority of ICOs will be considered securities. This is further underscored by the no-action letter related to TurnKey Jet’s tokens, which details an extremely narrow use case in applying the framework to conclude an ICO does not represent a security offering.
 
While the industry has long awaited regulatory clarity from the SEC on digital assets, even with these recent developments what remains clear is that there is still a long way to go as this asset class continues to evolve.
 
Contact Corey McLaughlin at cmclaughlin@cohenco.com or a member of your service team for further discussion. 
 
Cohen & Co is not rendering legal, accounting or other professional advice. Information contained in this post is considered accurate as of the date of publishing. Any action taken based on information in this blog should be taken only after a detailed review of the specific facts, circumstances and current law.

About the Author

Corey McLaughlin, CPA

Chief Operating Officer, Cohen & Co Advisory, LLC
cmclaughlin@cohenco.com
410.527.3948
Sign Up for Our Emails & Events

Receive insights from our specialists in a variety of areas and timely information on upcoming events directly to your inbox as they go live in our online Knowledge Center.

Subscribe Today
Top
Subscribe to our newsletter
About Contact Submit RFP Privacy Policy

"Cohen & Co" is the brand name under which Cohen & Company, Ltd. and Cohen & Co Advisory, LLC, and its subsidiary entities, provide professional services.

Cohen & Company, Ltd. and Cohen & Co Advisory, LLC practice in an alternative practice structure in accordance with the AICPA Code of Professional Conduct and applicable law, regulations and professional standards.

Cohen & Company, Ltd. is a licensed independent CPA firm that provides attest services to its clients. Cohen & Co Advisory, LLC and its subsidiary entities provide tax, advisory and business consulting services to their clients and are not licensed CPA firms.

The entities operating under the Cohen & Co brand are independently owned and are not responsible for the services provided by any other entity operating under the Cohen & Co brand. Our use of terms such as “our firm,” “we,” “us” and other terms of similar import denote the alternative practice structure of Cohen & Company, Ltd. and Cohen & Co Advisory, LLC.

© 2025 Cohen & Co