Final Regs on Making QEF Elections

 [4830-01-u]

[2] ACTION: Final regulations.

[3] SUMMARY: This document contains final regulations that provide guidance to a passive foreign investment company (PFIC) shareholder that makes the election under section 1295 (section 1295 election) to treat the PFIC as a qualified electing fund (QEF), and for PFIC shareholders that wish to make a section 1295 election that will apply on a retroactive basis (retroactive election). In addition, this document contains a final regulation that provides guidance under section 1291 to a PFIC shareholder that is a tax- exempt organization. Lastly, this document contains final regulations under section 1293 for calculating and reporting net capital gain by a QEF, and also clarifies the application of the current income inclusion rules of section 1293 to interest in a QEF held through a domestic pass through entity.

[4] DATES: Effective Date. These regulations are effective February 7, 2000.

[5] Applicability Date. In general, these regulations are applicable as of January 2, 1998. For special dates of applicability see section 1.1295-1(k).

[6] FOR FURTHER INFORMATION CONTACT: Margaret A. Fung, (202) 622-3840 (not a toll free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

[7] The collections of information in these final regulations have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) under control number 1545 - 1555. Responses to these collections of information are mandatory for PFIC shareholders that wish to make the section 1295 election to treat the PFIC as a QEF.

[8] Comments on the collections of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, OP:FS:FP, Washington, DC 20224.

[9] The estimated average annual burden per respondent and/or recordkeeper varies from fifteen minutes to three hours, depending on individual circumstances, with an estimated average of twenty-nine minutes.

[10] An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.

[11] Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

Background

[12] On January 2, 1998, the Treasury and the IRS published temporary regulations regarding the section 1295 election and rules applicable to a PFIC shareholder under sections 1291, 1293, 1295 and 1297 (redesignated as section 1298 by the Taxpayer Relief Act of 1997, and hereafter referred to as section 1298) (TD 8750, 63 FR 6). On that same date, the Treasury and the IRS published a notice of proposed rulemaking in the Federal Register (63 FR 35). The text of the temporary regulations served as the text of the proposed regulations.

[13] Sections 1291, 1293, 1295 and 1298 were added by the Tax Reform Act of 1986, effective for taxable years of foreign corporations beginning after December 31, 1986. As originally enacted, the section 1295 election was an election made by the PFIC. The Technical and Miscellaneous Revenue Act of 1988 (TAMRA) amended section 1295, effective for taxable years of foreign corporations beginning after December 31, 1986, to change the section 1295 election to a shareholder-by-shareholder election. Sections 1291, 1293 and 1298 were also amended by TAMRA, and sections 1293 and 1298 were further amended by the Omnibus Budget Reconciliation Act of 1993. Section 1298 also was amended by the Revenue Reconciliation Act of 1989 and the Small Business Job Protection Act of 1996. In addition, the Taxpayer Relief Act of 1997 (1997 TRA) amended section 1 to provide categories of long-term capital gain and the maximum rates of tax to which the categories are subject. In certain cases, this amendment affects the calculation of net capital gain for purposes of section 1293.

[14] No written comments were received on the proposed regulations, and no public hearing was requested or held. The proposed regulations are adopted as final regulations as revised by this Treasury Decision. The revisions are summarized in the explanations below.

Explanation of Revisions

[15] A foreign corporation is a PFIC for a taxable year if the foreign corporation satisfies either the income or asset test of section 1297(a) for that year. A foreign corporation is a PFIC under the income test if 75 percent or more of its gross income for its taxable year is passive, or investment-type, income. Alternatively, under the asset test, a foreign corporation is a PFIC if 50 percent or more of the average fair market value of its assets during its taxable year are assets that produce or are held for the production of passive income. A shareholder of a foreign corporation that qualifies as a PFIC is subject to the interest charge regime of section 1291 with respect to certain distributions by the PFIC and certain dispositions of its stock. Generally, a shareholder of a PFIC may avoid the interest charge regime by making a timely election under section 1295 to treat a PFIC as a QEF, in which case the shareholder will be taxed annually pursuant to section 1293 on its pro rata share of the ordinary earnings and net capital gain of the PFIC. Under section 1295(a), a section 1295 election will apply with respect to the PFIC if the PFIC complies with requirements prescribed by the Secretary for purposes of determining the ordinary earnings and net capital gain of the PFIC and otherwise carrying out the purposes of the PFIC provisions.

[16] Section 1295(b)(1), as enacted by TAMRA, provides that a shareholder may make a section 1295 election with respect to a PFIC for any taxable year of the shareholder (shareholder election year). Once made, the election will apply to that year and to all subsequent years of the shareholder unless revoked by the shareholder with the consent of the Secretary. Section 1295(b)(2) prescribes the time for making the election. In general, for the section 1295 election to be applicable to a taxable year, the shareholder must make the election by the due date, as extended under section 6081, for the shareholder's return for that taxable year. However, to the extent provided in the regulations, a section 1295 election may be made for a taxable year after the prescribed due date if the shareholder failed to make a timely election because the shareholder reasonably believed that the foreign corporation was not a PFIC.

[17] Under temporary regulations section 1.1295-1T(d)(1) and (f)(1), the shareholder, as defined in section 1.1291-9(j)(3), of a PFIC makes the section 1295 election by filing a Form 8621 with the shareholder's Federal income tax return by the election due date for the shareholder election year, and by filing a copy of that form with the Philadelphia Service Center. In addition, under temporary regulation section 1.1295-1T(f)(2), the shareholder must file an annual Form 8621 with its Federal income tax return to report the shareholder's pro rata share of the ordinary earnings and net capital gain of the QEF. Temporary regulation section 1.1295-1T(f)(2) also required that a copy of the annual Form 8621 be filed with the Philadelphia Service Center. To reduce taxpayer burden, this final regulation eliminates the requirement for filing a copy of Form 8621 with the Philadelphia Service Center when the shareholder makes the section 1295 election or reports the shareholder's annual pro rata share of the ordinary earnings and net capital gain of the QEF.

[18] In addition, this final regulation clarifies the rule in temporary regulation section 1.1295-1T(c)(2)(ii) for income inclusion by the shareholder of a QEF under section 1293 for any taxable year that the foreign corporation is not a PFIC under section 1297(a) and is not treated as a PFIC under section 1298(b)(1). This final regulation clarifies that in such case, the shareholder is not required to include pursuant to section 1293 the shareholder's pro rata share of ordinary earnings and net capital gain for such year, and the shareholder shall not be required to satisfy the section 1295 annual reporting requirement for such year. Cessation of a foreign corporation's status as a PFIC will not, however, terminate a section 1295 election. Thus, if the foreign corporation is a PFIC in any taxable year after a year in which it is not treated as a PFIC, the shareholder's original election under section 1295 continues to apply and the shareholder must take into account its pro rata share of ordinary earnings and net capital gain for such year and comply with the section 1295 annual reporting requirement.

[19] The Taxpayer Relief Act of 1997 added section 1296 to provide PFIC shareholders with an alternative method for current income inclusion by making a mark-to-market election with respect to their PFIC stock that qualifies as marketable stock. The election is available to shareholders whose taxable years begin after December 31, 1997 for stock in a foreign corporation whose taxable year ends with or within the shareholder's taxable year. The effect of a mark- to-market election on a section 1295 election will be addressed in subsequent regulations under section 1296. In addition, temporary regulation section 1.1297-3T(c) governing the deemed dividend election by a United States person that is a shareholder of a PFIC will be finalized in a future regulation project.

[20] Notice 98-22 (1998-17 I.R.B. 5) provides that taxpayers will be permitted to apply the rules of the temporary regulations under section 1.1295-1T(b)(4) (section 1295 election by shareholders who file a joint return) and section 1.1295-1T(f) and (g) (procedures for making a section 1295 election and annual information requirements by the PFIC or intermediary) to taxable years beginning before January 1, 1998, for which the statute of limitations on the assessment of tax has not expired and, with respect to section 1.1295-1T(b)(4), if certain consistency requirements are met. The rule of Notice 98-22 has been incorporated into section 1.1295-1(k) of this regulation. Final regulation section 1.1295-1(k) is changed to reflect the special effective dates for section 1.1295-1(b)(4), (f) and (g) as provided by Notice 98-22. Accordingly, Notice 98-22 is obsoleted since the effective date provisions are contained in this final regulation.

[21] Notice 88-125 described the requirements a shareholder must satisfy to make and maintain a section 1295 election for taxable years beginning before January 1, 1998. As a result of the procedures and requirements set forth first in the temporary regulations published on January 2, 1998, and now in these final regulations, Notice 88-125 is obsoleted effective February 7, 2000.

Effect On Other Documents

[22] Notice 88-125 and Notice 98-22 are obsoleted as of February 7, 2000.

Special Analyses

[23] It has been determined that the final regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Further, it is hereby certified, pursuant to sections 603(a) and 605(b) of the Regulatory Flexibility Act (5 U.S.C. chapter 6), that the collection of information contained in these regulations will not have a significant economic impact on substantial number of small entities. The cost of collection of information to small entities is insignificant because the primary reporting burden is on individual PFIC shareholders who make the section 1295 election. Therefore, the collection of information will not have a substantial economic impact. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Drafting Information

[24] The principal author of the final regulations is Margaret A. Fung, Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.

List of Subjects

26 CFR Part 1

[25] Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

[26] Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

[27] Accordingly, 26 CFR parts 1 and 602 are amended as follows:

PART 1 -- INCOME TAXES

Paragraph 1. The authority citation for part 1 is amended by adding entries in numerical order to read in part as follows:

Authority: 26 U.S.C. 7805 * * *

Sec. 1.1291-1 also issued under 26 U.S.C. 1291. * * *

Sec. 1.1293-1 also issued under 26 U.S.C. 1293. * * *

Sec. 1.1295-3 also issued under 26 U.S.C. 1295. * * *

Section 1.1291-1T [Redesignated as section 1.1291-1]

Par. 2. Section 1.1291-1T is redesignated as section 1.1291-1 and the section heading is revised to read as follows:

Section 1.1291-1 Taxation of U.S. persons that are shareholders of PFICs that are not pedigreed QEFs.

* * * * *

Par. 3. Section 1.1293-1T is redesignated as section 1.1293-1 and the newly designated section is amended by revising the section heading and the first sentence of paragraph (c)(1) to read as follows:

Section 1.1293-1 Current taxation of income from qualified electing funds.

* * * * *

(c) Application of rules of inclusion with respect to stock held by a pass through entity -- (1) In general. If a domestic pass through entity makes a section 1295 election, as provided in paragraph (d)(2) of this section, with respect to the PFIC shares that it owns, directly or indirectly, the domestic pass through entity takes into account its pro rata share of the ordinary earnings and net capital gain attributable to the QEF shares held by the pass through entity. * * *

* * * * *

Par. 4. Section 1.1295-0 is amended by:

1. Revising the introductory text of the section.

2. Removing the entry for the heading of section 1.1295-1T and adding an entry for the heading of section 1.1295-1 in its place.

3. Revising the entries for section 1.1295-1(d)(3) through (d)(5).

4. Adding entries for section 1.1295-1(d)(6) and (e)(1) and (e)(2).

5. Removing the entry for the heading of section 1.1295-3T and adding an entry for the heading of section 1.1295-3 in its place.

The revisions and additions read as follows:

Section 1.1295-0 Table of contents.

This section contains a listing of the headings for sections 1.1295-1 and 1.1295-3.

Section 1.1295-1 Qualified electing funds.

* * * * *

(d) * * *

(3) Indirect ownership of a PFIC through other PFICs.

(4) Member of consolidated return group as shareholder.

(5) Option holder.

(6) Exempt organization.

(e) * * *

(1) General rule.

(2) Examples.

* * * * *

Section 1.1295-3 Retroactive elections.

* * * * *

Section 1.1295-1T [Redesignated as section 1.1295-1]

Par. 5. Section 1.1295-1T is redesignated as section 1.1295-1 and the newly designated section is amended by:

1. Revising the section heading.

2. Revising paragraph (b)(3)(iv)(B).

3. Adding paragraph (b)(3)(v).

4. Adding a sentence to the end of paragraph (b)(4).

5. Revising paragraphs (c)(2)(ii) and (iii).

6. Revising the third sentence in paragraph (c)(2)(v) Example 3.

7. Redesignating paragraphs (d)(3), (d)(4) and (d)(5) as paragraphs (d)(4), (d)(5) and (d)(6), respectively.

8. Adding a new paragraph (d)(3).

9. Revising paragraph (e).

10. In the last sentence of paragraph (f)(1)(iii), the language "capital gain; and" is removed and the language "capital gain." is added in its place.

11. Adding the word "and" at the end of paragraph (f)(1)(ii).

12. Removing paragraph (f)(1)(iv).

13. Adding the word "and" at the end of paragraph (f)(2)(i)(B).

14. In the last sentence of paragraph (f)(2)(i)(C), the language "capital gain; and" is removed and the language "capital gain." is added in its place.

15. Removing paragraph (f)(2)(i)(D).

16. Adding a new paragraph (f)(3).

17. Revising the introductory language of paragraph (g)(3).

18. Adding paragraph (g)(5).

19. Revising the first sentence of paragraph (h).

20. Revising paragraph (k).

The revisions and additions read as follows:

Section 1.1295-1 Qualified electing funds.

* * * * *

(b) * * *

(3) * * *

(iv) * * *

(B) In the case of PFIC stock transferred by an interest holder or beneficiary to a pass through entity in a transaction in which gain is not fully recognized (including pursuant to regulations under section 1291(f)), the pass through entity makes the section 1295 election with respect to the PFIC stock transferred for the taxable year in which the transfer was made. The PFIC stock transferred will be treated as stock of a pedigreed QEF by the pass through entity, however, only if that stock was treated as stock of a pedigreed QEF with respect to the interest holder or beneficiary at the time of the transfer, and the PFIC has been a QEF with respect to the pass through entity for all taxable years of the PFIC that are included wholly or partly in the pass through entity's holding period of the PFIC stock during which the foreign corporation was a PFIC within the meaning of section 1.1291-9(j).

(v) Characterization of stock distributed by a partnership. In the case of PFIC stock distributed by a partnership to a partner in a transaction in which gain is not fully recognized, the PFIC stock will be treated as stock of a pedigreed QEF by the partners only if that stock was treated as stock of a pedigreed QEF with respect to the partnership for all taxable years of the PFIC that are included wholly or partly in the partnership's holding period of the PFIC stock during which the foreign corporation was a PFIC within the meaning of section 1.1291-9(j), and the partner has a section 1295 election in effect with respect to the distributed PFIC stock for the partner's taxable year in which the distribution was made. If the partner does not have a section 1295 election in effect, the stock shall be treated as stock in a section 1291 fund. See paragraph (k) of this section for special applicability date of paragraph (b)(3)(v) of this section.

(4) * * * See paragraph (k) of this section for special applicability date of paragraph (b)(4) of this section.

(c) * * *

(2) * * *

(ii) Effect of PFIC status on election. A foreign corporation will not be treated as a QEF for any taxable year of the foreign corporation that the foreign corporation is not a PFIC under section 1297(a) and is not treated as a PFIC under section 1298(b)(1). Therefore, a shareholder shall not be required to include pursuant to section 1293 the shareholder's pro rata share of ordinary earnings and net capital gain for such year and shall not be required to satisfy the section 1295 annual reporting requirement of paragraph (f)(2) of this section for such year. Cessation of a foreign corporation's status as a PFIC will not, however, terminate a section 1295 election. Thus, if the foreign corporation is a PFIC in any taxable year after a year in which it is not treated as a PFIC, the shareholder's original election under section 1295 continues to apply and the shareholder must take into account its pro rata share of ordinary earnings and net capital gain for such year and comply with the section 1295 annual reporting requirement.

(iii) Effect on election of complete termination of a shareholder's interest in the

PFIC. Complete termination of a shareholder's direct and indirect interest in stock of a foreign corporation will not terminate a shareholder's section 1295 election with respect to the foreign corporation. Therefore, if a shareholder reacquires a direct or indirect interest in any stock of the foreign corporation, that stock is considered to be stock for which an election under section 1295 has been made and the shareholder is subject to the income inclusion and reporting rules required of a shareholder of a QEF.

* * * * *

(v) * * *

Example 3. * * * If P does not make the section 1295 election with respect to the FC stock, C will continue to be subject, in C's capacity as an indirect shareholder of FC, to the income inclusion and reporting rules required of shareholders of QEFs in 1999 and subsequent years for that portion of the FC stock C is treated as owning indirectly through the partnership. * * *

(d) * * *

(3) Indirect ownership of a PFIC through other PFICs -- (i) In general. An election under section 1295 shall apply only to the foreign corporation for which an election is made. Therefore, if a shareholder makes an election under section 1295 to treat a PFIC as a QEF, that election applies only to stock in that foreign corporation and not to the stock in any other corporation which the shareholder is treated as owning by virtue of its ownership of stock in the QEF.

(ii) Example. The following example illustrates the rules of paragraph (d)(3)(i) of this section:

Example. In 1988, T, a U.S. person, purchased stock of FC, a foreign corporation that is a PFIC. FC also owns the stock of SC, a foreign corporation that is a PFIC. T makes an election under section 1295 to treat FC as a QEF. T's section 1295 election applies only to the stock T owns in FC, and does not apply to the stock T indirectly owns in SC.

* * * * *

(e) Time for making a section 1295 election -- (1) In general. Except as provided in section 1.1295-3, a shareholder making the section 1295 election must make the election on or before the due date, as extended under section 6081 (election due date), for filing the shareholder's income tax return for the first taxable year to which the election will apply. The section 1295 election must be made in the original return for that year, or in an amended return, provided the amended return is filed on or before the election due date.

(2) Examples. The following examples illustrate the rules of paragraph (e)(1) of this section:

Example 1.In 1998, C, a domestic corporation, purchased stock of FC, a foreign corporation that is a PFIC. Both C and FC are calendar year taxpayers. C wishes to make the section 1295 election for its taxable year ended December 31, 1998. The section 1295 election must be made on or before March 15, 1999, the due date of C's 1998 income tax return as provided by section 6072(b). On March 14, 1999, C files a request for a three-month extension of time to file its 1998 income tax return under section 6081(b). C's time to file its 1998 income tax return and to make the section 1295 election is thereby extended to June 15, 1999.

Example 2.The facts are the same as in Example 1 except that on May 1, 1999, C filed its 1998 income tax return and failed to include the section 1295 election. C may file an amended income tax return for 1998 to make the section 1295 election provided the amended return is filed on or before the extended due date of June 15, 1999.

* * * * *

(f) * * *

(3) Effective date. See paragraph (k) of this section for special applicability date of paragraph (f) of this section.

(g) * * *

(3) Annual Intermediary Statement. In the case of a U.S. person that is an indirect shareholder of a PFIC that is owned through an intermediary, as defined in paragraph (j) of this section, an Annual Intermediary Statement issued by an intermediary containing the information described in paragraph (g)(1) of this section and reporting the indirect shareholder's pro rata share of the ordinary earnings and net capital gain of the QEF as described in paragraph (g)(1)(ii)(A) of this section, may be provided to the indirect shareholder in lieu of the PFIC Annual Information Statement if the following conditions are satisfied --

* * * * *

(5) Effective date. See paragraph (k) of this section for special applicability date of paragraph (g) of this section.

(h) Transition rules. Taxpayers may rely on Notice 88-125 (1988-2 C.B. 535) (see section 601.601(d)(2) of this chapter), for rules on making and maintaining elections for shareholder election years (as defined in paragraph (j) of this section) beginning after December 31, 1986, and before January 1, 1998. * * *

* * * * *

(k) Effective dates. Paragraphs (b)(2)(iii), (b)(3), (b)(4) and (c) through (j) of this section are applicable to taxable years of shareholders beginning after December 31, 1997. However, taxpayers may apply the rules under paragraphs (b)(4), (f) and (g) of this section to a taxable year beginning before January 1, 1998, provided the statute of limitations on the assessment of tax has not expired as of April 27, 1998 and, in the case of paragraph (b)(4) of this section, the taxpayers who filed the joint return have consistently applied the rules of that section to all taxable years following the year the election was made. Paragraph (b)(3)(v) of this section is applicable as of February 7, 2000, however a taxpayer may apply the rules to a taxable year prior to the applicable date provided the statute of limitations on the assessment of tax for that taxable year has not expired.

Section 1.1295-3T [Redesignated as section 1.1295-3]

Par. 6. Section 1.1295-3T is redesignated as section 1.1295-3 and the newly designated section is amended by revising the section heading and paragraphs (b)(1) and (c)(5)(i) to read as follows:

Section 1.1295-3 Retroactive elections.

* * * * *

(b) * * *

(1) Reasonably believed, within the meaning of paragraph (d) of this section, that as of the election due date, as defined in section 1.1295-1(e), the foreign corporation was not a PFIC for its taxable year that ended during the retroactive election year;

* * * * *

(c) * * *

(5) Time of and manner for filing a Protective Statement -- (i) In general. Except as provided in paragraph (c)(5)(ii) of this section, a Protective Statement must be attached to the shareholder's federal income tax return for the shareholder's first taxable year to which the Protective Statement will apply. The shareholder must file its return and the copy of the Protective Statement by the due date, as extended under section 6081, for the return.

* * * * *

Par. 7. In the list below, for each section indicated in the left column, remove the language in the middle column and add the language in the right column.

PART 602 -- OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

Par. 8. The authority citation for part 602 continues to read as follows:

Authority: 26 U.S.C. 7805.

Par. 9. In section 602.101, paragraph (b) is amended by removing the entries for sections 1.1295-1T and 1.1295-3T and adding entries in numerical order to the table to read as follows:

 _____________________________________________________________________

* * * * *

(b) * * *

 CFR part or section where               Current OMB