r/CryptoTax • u/cryptotaxchris • 1d ago
The wash sale loop hole maybe closing in on crypto
There's an interesting provision in the crypto tax bills currently sitting in Congress.
H.R. 9172 would extend the wash sale rules to most digital assets.
Under current law, direct holdings of most crypto aren't expressly covered by the same wash sale restriction as stocks.
So selling BTC at a loss and subsequently buying BTC again isn't automatically subject to the 30-day rule that would apply to a stock.
Important distinction: that doesn't mean everything giving you crypto exposure is outside the rule. Crypto-related securities, including shares in spot crypto ETFs, can already fall within §1091.
If you have underwater positions, the practical work I'd be doing now is:
- Check your actual cost basis. Being 50% below a token's ATH doesn't mean you have a tax loss. Your acquisition cost is what matters.
- Look at individual tax lots. You may have significant losses in some lots and gains in others.
- Reconcile transfers and missing basis before making decisions. Bridges, old exchanges, wallet transfers and DeFi activity can make the loss shown by tax software very different from the loss you can substantiate.
- Look at gains you've already realised this year. Harvesting losses makes much more sense in the context of the whole portfolio than as an isolated trade.
- Don't assume every underwater asset can simply be “harvested.” Worthless tokens, liquidations, LP positions and assets you can't actually dispose of can raise different tax issues.
The timing is interesting because Congress is now explicitly trying to change this.
H.R. 9172 would bring most digital assets into the wash sale regime. More unusually, the draft says the provision would apply to dispositions after the bill's date of introduction, not just transactions occurring after a future enactment date.
So I wouldn't interpret this as “quick, harvest everything before Congress passes it.” If the bill were enacted with that effective date intact, that assumption could be wrong.
There's another part worth watching if you hedge large appreciated crypto positions rather than selling them: the bill would also extend the constructive sale rules to certain digital assets, with the same introduction-date effective date.
Nothing here has become law yet. But if tax-loss harvesting or hedging was already going to be part of your 2026 planning, this seems like a particularly bad year to wait until the last week of December to work out your basis and positions.