The U.S. Securities and Exchange Commission staff’s staking-receipt test is centered on the deposited asset. A qualifying receipt preserves the holder’s rights in that asset, and the issuer cannot transfer, lend, pledge, rehypothecate or otherwise use it.
The SEC Division of Corporation Finance’s crypto-asset FAQ was last updated on September 25, 2026. It says a buyback announcement for a non-security crypto asset generally is not a promise of essential managerial efforts when the system is functioning. The analysis changes where the system is not functional and the buyback is marketed as a source of yield or returns for token holders.
Read together, those positions make the FAQ a fact-specific compliance map, not an unconditional safe harbor for familiar crypto practices.
Staking receipts and custody
The staff’s distinction begins with what the purported receipt actually does. A genuine staking receipt evidences ownership of deposited assets without changing the rights or benefits attached to them. That formulation places the legal emphasis on the underlying holder’s continuing claim, rather than on the increasingly common label of “liquid staking.”
Custody is equally important. The receipt issuer cannot transfer, lend, pledge, rehypothecate or otherwise deploy the deposited assets. Those restrictions matter because they separate a token that records a depositor’s existing position from an arrangement in which an intermediary can put customer assets to work for its own account or through discretionary activity.
The FAQ also draws a classification distinction that is easy to miss. A staking receipt for a non-security digital commodity may be treated as a digital tool. A receipt issued by a protocol-based liquid-staking provider, meanwhile, may itself be a digital commodity where its value is linked to the programmatic operation of a functional crypto system and supply-and-demand dynamics.
Neither result follows merely from issuing a transferable token after a user stakes assets. The conditions tie the analysis to the system’s functionality, the mechanics of the receipt and limits on the issuer’s control of customer property. That is a narrower proposition than a general endorsement of liquid staking.
Continuity with earlier staking guidance
Continuity with the SEC’s earlier staking guidance is clearest in the agency’s treatment of qualifying receipt structures. The August 2025 staff statement described staking receipt tokens as receipts for deposited covered crypto assets and said they generally lacked the characteristics of options, security futures or security-based swaps. Its conclusion was not an unconditional safe harbor, however.
The March 2026 interpretive release extended the same legal backdrop to specified transactions involving the generation, issuance, redemption or trading of staking receipt tokens for non-security crypto assets, saying those transactions do not require Securities Act registration or an exemption in the circumstances described. The interpretive release and the August 2025 statement therefore frame the FAQ as a refinement rather than a blanket approval.
What matters remains the structure’s facts: whether the underlying crypto system is functional and whether custody, redemption and the mechanics of the token preserve its character as a receipt. The staff is not treating a product’s economic name as dispositive, and the FAQ does not create an unconditional safe harbor.
Kraken and the intermediary boundary
The SEC’s 2023 case against Kraken remains a limiting precedent: the agency alleged that Kraken’s staking-as-a-service programme involved unregistered securities transactions, and Kraken settled without admitting or denying the allegations, according to the February 2023 release.
The FAQ is directed to materially different features—functional protocol operation, what a receipt represents, limits on custody and asset use, and promotional claims. Calling an instrument a receipt or making its associated token transferable does not by itself bring a centralized staking product within that treatment.
Its receipt description requires that the issuer lack the ability to transfer, lend, pledge, rehypothecate or otherwise use deposited assets. For protocol-based liquid-staking receipts, the relevant value may be linked instead to a functional system’s programmatic operation and market supply and demand, rather than continuing managerial efforts. The FAQ still leaves line-drawing questions for intermediaries, and products marked by discretionary custody, opaque asset deployment or promoter-led return narratives are less readily comparable to the structures discussed by the staff.
Buybacks in a functional system
Buybacks receive similarly qualified treatment. For a non-security crypto asset, the staff said that an announcement of a buyback generally would not amount to a promise of essential managerial efforts when the crypto system is functional. In that setting, a repurchase programme is not automatically transformed into the kind of managerial-return representation relevant to an investment-contract analysis.
That qualification matters because the same commercial act can be framed in two different ways. Where the system is not functional, presenting the buyback as creating yield or returns for holders changes the analysis; a company might describe the act as management of an immature project for holders’ expected gain or as an activity involving an asset in a functioning system.
The FAQ thus avoids treating buybacks as inherently benign or inherently suspect. The question is whether the announcement is part of a broader promise that purchasers will benefit from essential managerial efforts. Issuers marketing repurchases in early-stage systems will have less room to rely on the more accommodating functional-system example.
Marketing claims after launch
The most consequential thread in the FAQ may be its treatment of issuer communications. The staff says that formal definitions in the interpretive release are used to classify crypto assets. Yet issuer-defined claims about functionality or decentralization remain relevant to whether the issuer has fulfilled the representations it made. Promotional language can therefore retain legal significance after a token has launched.
That is not a contradiction. Where a functional crypto system has no central party, the staff says issuer statements about it are unlikely to create a new investment contract, because neither the issuer nor another person controls the system in a way that can affect its success or failure. But a statement that a network is functional or decentralized still invites scrutiny of whether those represented conditions are true.
For crypto issuers, the practical constraint is not simply to avoid return-focused language. It is to ensure that claims about launch status, decentralization, custody and programme mechanics match the structure being offered. The FAQ’s more accommodating outcomes depend on those facts, not on a product’s branding.
Disclaimer: This article is provided for informational purposes only. It is not offered or intended to be used as legal, tax, investment, financial, or other advice.
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