Crypto wash sale from Sep 14, 2026: H.R. 10357 waits until Nov 9

The wash sale rule in H.R. 10357, if enacted, applies to any sale of Bitcoin or ether occurring after September 14, 2026—yet the House of Representatives tasked with voting on it left Washington on September 16 and will not return until November 9. The wash sale rule (which denies a loss deduction if the taxpayer repurchases the same asset within 30 days before or after the sale) currently applies in the United States, as of September 19, 2026, to stocks and bonds but not yet to crypto-assets. Section 301 of the "Digital Asset Tax Certainty Act" incorporates them, and the substitute amendment adopted by the committee via voice vote on September 16—before reporting the bill 38 to 5—changed only one thing in the text: the effective date shifted from "the date of the introduction of this Act" to, literally, "September 14, 2026." The Joint Committee on Taxation (JCT, the body that scores the cost of tax legislation for Congress) attributes $1.707 billion in revenue to this rule over ten years. The chain did not front-run the date: from September 1 to 13, Bitcoin did not record a single day of net realized loss; the first three negative days since August 18 were September 15, 16, and 17 (−205, −61, and −157 million), already within the rule's scope, while ether realized −$1.447 billion on the 15th. The annual revenue the JCT attributes to the rule is equivalent to roughly $717 million in losses at the maximum capital gains rate: less than half of what Bitcoin and ether realized in net losses on that single day.

What did the H.R. 10357 amendment (JCX-50-26) change, which Ways and Means adopted on Sep-16-2026 and reported 38-5?

A date. H.R. 10357 was introduced on September 14, 2026, with the signature of Committee Chairman Jason Smith and eight cosponsors (Arrington, Bean, Carey, Horsford, Kelly, Kustoff, Miller of Ohio, and Yakym)—seven Republicans and Democrat Steven Horsford. The following day, the JCT published the description of the chairman's amendment in the nature of a substitute (JCX-50-26; JCX is the document series the JCT uses to describe and score bills; AINS is the amendment that replaces the entire text), and its content fits in one paragraph: "replaces the phrase 'date of the introduction of this Act' with 'September 14, 2026' in all places it appears." There are six effectiveness clauses: 301(e), 302(e), 303(d)(2), two in 305(c), and 307(d)(2). None of the substantive content was touched.

The change appears cosmetic but is not. With "date of introduction," effectiveness depended on a procedural event that changes if the bill is reintroduced in the next Congress; with "September 14, 2026," the date is fixed in the text even if the law is passed in December or revived in 2027. The JCT had already assumed this: its estimate starts from the premise that enactment occurs on December 31, 2026, yet still attributes $121 million in revenue to the wash sale rule for fiscal year 2027, which in the U.S. begins on October 1, 2026.

During the markup session on September 16, the substitute amendment was adopted by voice vote; subsequently, two amendments by Democrat Lloyd Doggett failed (12-28 and 16-25), and a motion by Republican Vern Buchanan to table a Doggett appeal passed (25-16). As of September 22, 2026, the committee had still not published the text of those amendments or the minutes of those three votes, though it did publish the 38-5 vote record. The vote to report favorably was 38 to 5: all 26 Republicans present voted yes; of the nineteen Democrats, twelve voted yes, five voted no (Doggett, Judy Chu, Gwen Moore, Don Beyer, and Dwight Evans), and two did not vote (Jimmy Gomez and Tom Suozzi).

How does the Section 301 wash sale rule work for Bitcoin and ether?

Under Section 1091 in effect as of Sep-19-2026, a denied loss does not vanish: it is added to the cost basis of the repurchased asset and recovered when that position is truly sold. The JCT's description of the original bill (JCX-47-26) sets the starting point: "digital assets are not expressly within the scope of section 1091, and the IRS has not published regulations or guidance on whether the wash sale rule may apply to sales or dispositions of digital assets."

Section 301 replaces "stock or securities" with "specified assets," which comprise three things: any stock or security, any "traded digital asset" that is not a qualified U.S. dollar stablecoin, and any contract or option on the former. A tokenized (or wrapped, if its reference is a traded digital asset) asset is considered substantially identical to the asset it economically represents, closing the loophole of selling ETH at a loss and repurchasing wrapped ETH a minute later. According to the text of the new subsection 1091(h), an acquisition does not count if it occurs "in connection with the validation of transactions" (staking or mining rewards) or if it is part of "a regular or periodic series of acquisitions" that the taxpayer includes as ordinary income, such as a salary paid in crypto; a scheduled purchase with post-tax dollars is not ordinary income and does not fall under the exception. Furthermore, there is a transitional rule (301(f)): until January 1, 2028, brokers may calculate the cost basis reported on Form 1099-DA without applying Section 1091 to digital assets, meaning the taxpayer bears the burden of the adjustment even if their broker does not show it (for what brokers report in 2026, see the piece on Form 1099-DA).

Section 302 does the same for constructive sales (Section 1259: anyone holding an appreciated position who hedges it with a short sale, forward contract, or swap on the same asset is taxed as if they had sold). The JCT notes that "constructive sale rules do not expressly apply to digital assets"; the bill adds "digital asset (other than a qualified U.S. dollar stablecoin)" to the list of covered positions, effective for constructive sales after September 14, 2026. A Bitcoin short sale opened on September 20 against an appreciated spot position falls under the rule if the law is enacted.

How much does each provision of H.R. 10357 raise or cost according to the JCT?

JCX-48-26 (September 14) breaks down the 2027-2036 revenue effect of each section, and JCX-52-26 (September 15), which scores the substitute amendment, repeats the same figures with the effectiveness column already set to "9/14/26." The table summarizes the provisions with quantified effects.

Two takeaways emerge from the table. The two anti-abuse rules dated September 14 total $1.979 billion, which is 83.7% of the cost of the de minimis provision (2,365): the exemption for small fees is paid for almost entirely by the losses that the wash sale and constructive sale rules no longer allow. Furthermore, Title VII, which restores the full deduction for gambling losses and has no relation to digital assets, costs $1.997 billion; without it, the crypto package raises a net $2.497 billion.

Did the chain sell Bitcoin and ether at a loss before September 14, 2026?

No. The metric used here is realized capitalization, which values each coin at the price of its last on-chain movement (the definition and its use in cycle theory are in the piece on the Bitcoin floor window). The daily variation, minus the day's issuance (new coins enter at market price and are no one's gain), is the chain's net realized result: positive if sales with profit predominate, negative if sales with loss predominate. It is a net figure: −$205 million means realized losses exceeded gains by that amount; gross losses, which are higher, are only available via paid data series.

By this measure, Bitcoin realized net profits every day from September 1 to 13, averaging $193 million daily. The last negative day had been August 18 (−$253 million), at the end of a fifteen-day negative streak between August 2 and 18. The next three were September 15 (−205), 16 (−61), and 17 (−157). Ether had negative days before September 14 (1, 2, 4, 10, and 13), but the worst in the window since August 15 was September 2 with −$590 million; on September 15, it realized −$1.447 billion—2.45 times that previous worst day. The table covers the week surrounding the bill's date.

The re-read of the same series on September 22, 2026, at 22:00 UTC did not shift any of those values: September 15, 16, and 17 remain at −205, −61, and −157 million for Bitcoin, and September 15 remains at −1.447 billion for ether. What it adds are the days following the window, during which the chain returned to a positive result: from September 18 to 21, Bitcoin realized +946, +311, +131, and +1.911 million, and ether +2,502, +819, +742, and +2,575, with the Bitcoin price rising from $76,387 on the 17th to $86,505 on the 21st (+13.2%). The three negative days in the window remain the only ones since August 18.

This reading has three limitations. First, on September 15, Bitcoin fell 3.4% and ether 4.7%: the realized losses that day are consistent with a price reaction, and this article does not attribute them to a tax motive; what it asserts is that there was no loss-selling before the date, but there was after. Second, the chain does not distinguish tax residence: those $1.652 billion are global, and only a portion, impossible to measure externally, belongs to U.S. taxpayers. Third, the API marks exchange inflows for the entire window as provisional (flash status) and does not label the capitalization series; Bitcoin's negative days represent 0.006% to 0.019% of a realized capitalization of $1.07 trillion ($1,068,700 million), so a minor revision could flip the sign for September 16; six days later, this had not occurred.

How do the $1.652B in BTC and ETH losses on Sep-15-2026 compare to what the JCT expects from the wash sale rule?

The JCT attributes $1.707 billion over ten years to Section 301, with an annual path ranging from $121 million in 2027 to $147 million in 2036, peaking at $228 million in 2028. Taking the average ($170.7 million per year) and the maximum federal long-term capital gains rate (20% plus the 3.8% net investment income tax: 23.8%), that revenue is equivalent to $717 million in losses that would no longer be deductible each year; at the maximum marginal ordinary income rate (37%, applicable to short-term gains), it would be $461 million. With average rates lower than the maximums, which is the general case, the equivalent losses would be higher. The estimate assumes that those aware of the rule will wait out the 30 days, so it measures revenue rather than canceled losses; even so, the order of magnitude of a single global day exceeds what the JCT expects from an entire year.

Bitcoin and ether realized $1.652 billion in net losses on September 15 (205 plus 1,447). The $717 million equivalent to a year of revenue is 43% of that single day; the $461 million is 28%. From September 15 to 17, the total is −$423 million for Bitcoin and −$1.302 billion for ether. It only takes a small fraction of one day's realized losses belonging to U.S. taxpayers who repurchase within 30 days to exhaust what the JCT expects from the rule in a full year.

Exchange inflows point in the same direction. From September 14 to 18, daily Bitcoin inflows were $1.839 billion, 24% higher than the average from August 15 to September 13 ($1.485 billion), and daily ether inflows were $705 million, 44% higher (previous average: 490). On September 15, Bitcoin had a positive net inflow of 419 million, the highest since July 30 (+433), and the ether balance on exchanges rose by 248,000 ETH between September 15 and 18. From September 1 to 13, average inflows ($1.355 billion for Bitcoin, 468 for ether) were below that 30-day average.

When can the House of Representatives vote on H.R. 10357?

November 9, 2026, at the earliest. The official calendar, published by the Majority Leader in November 2025, included sessions from September 22–25, September 28–30, and October 1. On September 3, the office of Majority Whip Tom Emmer canceled the weeks of September 21 and 28, totaling eight voting days. On September 16, the same day the committee reported H.R. 10357, House Speaker Mike Johnson canceled votes for Thursday the 17th and sent members back to their districts that night; the House does not return until Monday, November 9, six days after the midterm elections on November 3. As of September 22, 2026, the House Press Gallery announces that the next votes are expected on Monday, November 9, and the Office of the Clerk places the next session on September 24 at 14:30 Washington time: pro forma, with no votes.

Twenty voting days remain in the lame duck session (the post-election session from November 9 to January 3): November 9–12, 17–20, 30, December 1–3, 8–11, and 14–17. In those twenty days, the House must pass the bill, the Senate must process it, and the President must sign it before January 3, 2027, when the Congress expires and all non-enacted bills die with it. If H.R. 10357 dies on January 3, the September 14, 2026, date dies with it; if it is reintroduced in 2027 with the same text, the retroactive window lengthens. In either case, anyone selling Bitcoin at a loss between September 19, 2026, and enactment does not know, at the time of sale, if they will be able to deduct it.

What does the press say about H.R. 10357 that the text does not?

Two claims are circulating that should be contrasted with the bill and the JCT, as both affect the interpretation of the wash sale rule. The first is the "$10 exemption." Several headlines present it as an exemption for small transactions or gains; Section 101 creates a new Section 1044 whose scope is the fee: no gain or loss is recognized for the digital asset delivered to pay "a de minimis network fee" or "a de minimis transaction fee," capped at $10 in aggregate per transaction, excluding traders, brokers, dealers, those validating transactions for others, and anyone who made more than 5,000 transfers in the previous tax year, effective for dispositions after December 31, 2027. Paying for a coffee with Bitcoin still generates a capital gain on the coffee; what is exempt is the network fee for that transaction.

The second is that "the committee voted 38-5 to remove the tax deferral for staking and mining rewards." The ABA Banking Journal, the publication of the American Bankers Association, reported this on September 16 using those words. The 38-5 vote was the one that favorably reported the entire bill, and the deferral (taxing rewards when sold, not when received) was not in H.R. 10357: it appeared in the discussion draft that Max Miller and Steven Horsford published on December 20, 2025, and the text introduced on September 14 already excluded it. The substitute amendment, according to JCX-50-26, only changed dates. What H.R. 10357 does do (Section 401, new Section 1261) is establish by law that income from "validation support activities" is ordinary income, codifying taxation upon receipt; the Crypto Council for Innovation (a crypto industry association) requested a "disposition-based approach" in its September 15 letter, which the committee did not grant.

What does H.R. 10357 change for those who do not pay tax in the United States?

Nothing in their tax return: H.R. 10357 amends the Internal Revenue Code and only reaches U.S. taxpayers (tax residents and citizens, under their sourcing rules). What changes for everyone else is the comparative benchmark: the United States is, as of September 19, 2026, the only major jurisdiction without a repurchase rule for crypto-assets. The table compares the proposed rule with four jurisdictions that do limit loss deductions upon repurchase and one that does not; for country-specific details, see the crypto tax guide by country.

What remains to be verified regarding H.R. 10357 until Nov-9-2026?

Three dated assertions support this piece, and each would be overturned by specific data.

1. Legislative: If the committee report (H. Rept.), which had not been filed as of September 22, 2026, or the text prepared by the Rules Committee returns clauses 301(e) and 302(e) to "the date of enactment," the retroactivity disappears.
2. On-chain: The CoinMetrics re-read on September 22, 2026, returned the same values, so the assertion that the first three negative days since August 18 fell within the rule remains valid; it would fail if a subsequent revision turned Bitcoin's 15th, 16th, and 17th positive, or if a gross loss series showed that from September 1 to 13, realized losses exceeded the 30-day average, overturning "the chain did not front-run," as the net figure can hide loss-selling offset by profit-selling.
3. Arithmetic: If the JCT publishes a figure other than $1.707 billion for Section 301, the $717 million annual figure must be recalculated; as of September 22, 2026, it had published nothing since JCX-52-26.

On November 9, the House returns with twenty days to decide whether a date that has already passed becomes law or expires with the Congress on January 3, 2027.

Sources and links: govinfo — introduced text of H.R. 10357 (Sep-14-2026) · JCT — JCX-50-26, description of the substitute amendment (Sep-15-2026) · JCT — JCX-52-26, revenue effects of the substitute amendment (Sep-15-2026) · JCT — JCX-48-26, revenue effects of the introduced text (Sep-14-2026) · JCT — JCX-47-26, description of the bill · Ways and Means — record of the vote to report favorably (Sep-16-2026) · Ways and Means — markup page · Ways and Means — committee note (Sep-16-2026) · Crypto Council for Innovation — letter to the committee (Sep-15-2026) · Bloomberg Government — House cancels two session weeks in September (Sep-3-2026) · NBC News — House leaves until November 9 (Sep-16-2026) · Majority Leader — 2026 House legislative schedule (PDF) · ABA Banking Journal — "House committee removes proposed tax deferral" (Sep-16-2026) · Horsford — Miller-Horsford discussion draft (Dec-2025) · CoinMetrics community — BTC and ETH daily series (API) · HMRC — Cryptoassets Manual CRYPTO22200 (pooling, same day, and 30 days) · ATO — notice on wash sales (Jun-2022)