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Something can both pass the Howey test and be considered a security by the SEC, but simultaneously fail to be a security in court.

By not passing the Howey test. Which they don’t, according to the only people whose opinion matters.

The SEC doesn’t get a vote.

Yes, so the SEC guidance is irrelevant, and is just fear mongering to get people to pay fines they don’t actually need to pay.

That is correct.