1. PFIC Considerations For Foreign Investors With U. S
PFIC Considerations For Foreign Investors With U.S. Beneficiaries STEP Presentation April 24, Dina Kapur Sanna, Esq. and Stephen Ziobrowski, Esq.

2. Introduction
Passive Foreign Investment Company (PFIC) rules are triggered in a typical NRA structure when investments are consolidated in a holding company or foreign funds are part of the investment portfolio, and one or more beneficiaries are U.S. persons
While NRA is alive and treated as the owner of the PFIC, there is no problem, but on his death, indirect ownership rules may apply to treat U.S. beneficiaries as owners of PFICs

3. What is a PFIC
A PFIC is a foreign entity that is treated as a corporation for U.S. tax purposes and generates primarily passive investment income, or holds primarily passive assets
Passive income is defined by reference to foreign personal holding company income, which includes investment income such as dividends, interest and gains
No minimum threshold of U.S. ownership or control

4. What is a PFIC (cont.)
A foreign entity is classified as a corporation under Treasury regulations if one of the following is true:
It is a “per se” corporation
It elected to be treated as a corporation by filing Form 8832 with the IRS
It did not make an election and under the law where the entity is formed, no shareholder or member has personal liability for the debts or obligations of the entity

5. What is a PFIC (cont.)
A foreign entity that is classified as a corporation for U.S. tax purposes will be a PFIC if 75% or more of its gross income for the taxable year is passive income, or 50% or more of the average percentage of its assets are held for the production of passive income
There is a 25% subsidiary look-through rule
If a foreign corporation is both a PFIC and CFC, the PFIC rules take precedence with respect to a 10% U.S. shareholder

6. Ownership of PFIC through an Estate or Trust
Stock owned directly or indirectly by or for an estate or trust is considered as being owned “proportionately” by the U.S. beneficiaries
Prop. Regs. apply facts and circumstances test to determine “proportionality” but reserve on substantive guidance
TAM : absence of final or temporary regulations do not prevent PFIC rules from applying

7. Is the company organized under U.S. law?
What is a PFIC (cont.)
Is the company organized under U.S. law?
Yes No
Is the company treated as a corporation for U.S. tax purposes as a result of
a. per se corporation rule
b. default classification
c. check the box election? No
Yes
Is either of the following true:
a. 75% of the company’s gross income is passive income; or
b. 50% or more of the company’s assets are held for the production of passive income?
(After applying “look through” rule) No
Yes
Are both of the following true?
1. U.S. persons own more than 50% of the stock (by vote or value) and
2. The U.S. shareholder owns % or more of the voting stock
Yes*
Not Taxed as a PFIC
*If this question is answered yes, then the U.S. shareholder is taxed under the Controlled Foreign Corporation (“CFC”) rules
Taxed as a PFIC No

8. Ownership of PFIC through an Estate or Trust (cont.)
TAM : IRS applied facts and circumstances to tax U.S. beneficiaries of discretionary trust on indirect PFIC disposition resulting from liquidation of PFIC into trust in that year (year 1), rather than when liquidation proceeds distributed to them (year 2)
Analysis based on settlor’s intention to provide separate shares of equal proportion for all beneficiaries and trustee’s pattern of equal distributions

9. Ownership of PFIC through an Estate or Trust (cont.)
Indirect ownership despite the fact that U.S. beneficiaries had no role in creating the trust and could not control distributions
IRS: intent is not a factor. PFIC regime applies if there is a perceived advantage of tax-deferral achieved by investing through a foreign holding company, regardless of whether investment through that holding company was explicitly created for that purpose

10. Ownership of PFIC through an Estate or Trust (cont.)
Pattern of past distributions seems to be most relevant fact for a discretionary trust, but the analysis falls short in many respects:
What if there are no distributions?
When do distributions rise to the level of a “pattern”?
Do distributions have to be of a minimum value to be counted?
Is there a risk that fall-back rules of intestacy could apply where there are no such distributions?
No guidance on how to reconcile with Subchapter J rules

11. Taxation Under the Excess Distribution Regime
In absence of QEF election or mark-to-market election, taxable event occurs on “excess distribution”
Excess distribution is amount by which actual distributions with respect to PFIC stock exceed 125% of the average of the prior 3 years (or if shorter, taxpayer’s holding period in PFIC stock)
Importantly, entire gain realized on disposition of PFIC stock is treated as an excess distribution

12. Taxation Under the Excess Distribution Regime (cont.)
Excess distribution allocated ratably over U.S. shareholder’s holding period
Portions allocated to current year and pre-PFIC years are taxed as ordinary income
Portions allocated to PFIC years are taxed at highest marginal rate of U.S. shareholder in effect for that year and draw an interest charge (sum of tax and interest is “deferred tax amount”)
Deferred tax amount cannot be offset by losses or deductions

13. Elections Under PFIC Regime QEF Election
A U.S. shareholder can make a “Qualified Electing Fund” (“QEF”) election with respect to a PFIC
If the QEF election is made, the U.S. shareholder includes his allocable share of the PFIC’s ordinary income and capital gains in income currently
There is a separate election which can be made to defer payment of tax on undistributed income of a QEF

14. QEF Elections (cont.)
The character of the PFIC’s income as ordinary income or capital gain passes through to a shareholder who makes the QEF election
The election is made by the first U.S. shareholder in the chain of ownership
In the case of a foreign nongrantor trust, the U.S. beneficiary of the trust makes the election

15. QEF Elections (cont.)
The election is made on a shareholder by shareholder basis
A PFIC, therefore, may be a QEF with respect to some U.S. shareholders but not with respect to others

16. QEF Elections (cont.)
The QEF election must be made by the due date of the U.S. shareholder’s tax return for the first year in which it is to be effective
If the QEF election is made effective as of the first day of the first year of the U.S. shareholder’s holding period, then the PFIC is a “pedigreed QEF”
A “pedigreed QEF” is not subject to the PFIC default regime as long as the QEF election is maintained

17. QEF Elections (cont.)
If a QEF election is made effective after the first day of the first year of the U.S. shareholder’s holding period, the QEF is an “unpedigreed QEF”
An “unpedigreed QEF” is subject to the PFIC default rules (i.e., tax on “excess distributions”) on a sale or liquidation of the stock
This result stems from the “once a PFIC, always a PFIC” rule and is called the “PFIC taint”

18. QEF Elections (cont.)
Late QEF elections are permitted only in very narrow circumstances
In general, a U.S. shareholder seeking to make a late QEF election must demonstrate that he possessed a reasonable belief as of the original due date of the late election that the foreign corporation was not a PFIC

19. QEF Elections (cont.)
If it is not possible to make a late QEF election, the U.S. shareholder should consider making a purging election (to remove the PFIC “taint”) and combining that election with a QEF election going forward

20. QEF Elections (cont.)
A QEF election may only be made if the PFIC is willing to compute its income and gain in accordance with U.S. tax rules and furnish the information annually that the U.S. shareholder needs to comply with the QEF election
Many foreign investment funds are unable or unwilling to comply with this requirement

21. Elections Under the PFIC Regime Check-the-Box Elections
Foreign entities which are not “per se” corporations are eligible to elect to be taxed in the U.S. as fiscally transparent entities
A foreign entity which has elected to be fiscally transparent is not a PFIC

22. Check-the-Box Elections
A check-the-box election can be made retroactively up to 75 days after the date it is to become effective
Rev. Proc permits late check-the-box elections for up to 3 years and 75 days after the requested effective date of the election

23. Check-the-Box Elections (cont.)
A late check-the-box election may be permitted if:
the foreign entity failed to obtain its requested classification as of the date of its formation or as of the date its classification became relevant for U.S. tax purposes only because Form 8832 was not timely filed; and
the foreign entity has not filed a federal tax return for the first year of the requested election because the due date for that return has not passed; or

24. Check-the-Box Elections (cont.)
the foreign entity has filed federal tax returns consistent with the requested classification and no inconsistent federal tax returns have been filed
if the foreign entity is not required to file federal tax returns, then each “affected person” who is required to file a federal tax return has filed federal tax returns consistent with the election, and no inconsistent tax returns have been filed

25. Check-the-Box Elections (cont.)
The eligible entity has “reasonable cause” for its failure to make the entity classification election on time; and
3 years and 75 days from the requested effective date of the election have not passed

26. Check-the-Box Elections (cont.)
As a practical matter, the IRS has been very willing to accept late check-the-box elections made before the first federal tax returns would be due for the first year of the election

27. Check-the-Box Elections (cont.)
A check-the-box election must be made by the foreign entity, not the U.S. shareholders
The check-the-box election affects all shareholders, not just the U.S. shareholder who makes the election

28. Check-the-Box Elections (cont.)
For these reasons, a check-the-box election may not be available with respect to most PFICs
If PFICs are held in a foreign holding company, though, a check-the-box election should be considered for the foreign holding company

29. Check-the-Box Elections (cont.)
A retroactive check-the-box election for the holding company may achieve a basis step-up in the stock of PFICs held by the holding company, with no U.S. tax
This would minimize PFIC gain subject to tax under the default regime on a subsequent sale or liquidation of the PFIC stock

30. Elections Under the PFIC Regime Purging Elections
There are a number of “purging elections” available to remove “PFIC taint”
The most useful of these elections is the “deemed sale” election

31. Deemed Sale Election
The deemed sale election can only be made if the U.S. shareholder also makes a QEF election
If the deemed sale election is made, the U.S. shareholder is treated as having sold the PFIC stock as of the first date of the QEF election

32. Deemed Sale Election (cont.)
Gain resulting from the deemed sale election is taxed under the default regime, i.e., as ordinary income with an interest charge
The U.S. shareholder obtains a new basis in the PFIC stock (unless the deemed sale results in a loss) and he begins a new holding period in the stock
The PFIC is a “pedigreed QEF” after the deemed sale and QEF election, and the “PFIC taint” has been expunged

33. Deemed Sale Election (cont.)
The deemed sale election should be considered if the U.S. shareholder has a small or modest built-in gain (or loss) on the PFIC stock and the shareholder can establish the market value of the PFIC stock
If the built-in gain is very large, the U.S. shareholder may have to consider an actual sale of the stock, to have the funds to pay the tax

34. Elections Under the PFIC Regime Market-to-Market Election
A U.S. shareholder may make a “mark-to-market” election with respect to marketable PFIC stock
If the election is made, the U.S. shareholder includes in income the annual increase in value of the PFIC stock at the end of each year
Any increase in value is treated as ordinary income. A decrease in value may be deducted as a loss, to the extent of previous inclusions

35. Mark-to-Market Election
The mark-to-market election is generally available only for PFIC stock which is regularly traded on a qualified stock exchange
As a practical matter, this requirement greatly limits the utility of the election

36. Examples Direct PFIC Holding
Assume a nonresident alien invests $1,000,000 in stock of a PFIC in 2002
He holds the stock in his own name or in a revocable trust which allows him to direct payments of income
The PFIC stock grows 5% a year. The nonresident alien dies in 2013 and the stock is liquidated for $1,710,340
There is no “excess distribution” because the basis of the PFIC stock was stepped up to fair market value at death

37. Examples (cont.) Indirect PFIC Holding
Assume the same facts except that the PFIC is held through a foreign corporation which is itself a PFIC
If the stock in the holding company is liquidated shortly after the nonresident alien’s death in 2013, U.S. beneficiaries of his estate will be taxable on their “proportionate shares” of $710,340 of PFIC gain
The amount taxable will be taxed as ordinary income, with an interest charge

38. Strategies for Dealing with Indirect Holdings
QEF election
Due by the due date of the U.S. beneficiary’s 2012 tax return
Deemed Sale Election, combined with a QEF election
Check-the-Box Election for the Holding Company
Could be retroactive to a date before the nonresident alien’s death
But first be sure there are no U.S. situs assets (e.g., stock of U.S. corporations) held by the holding company. Otherwise, a check-the-box election could trigger U.S. estate tax

39. Advance Planning
Investing in PFICs which are targeted to U.S. investors and will accommodate QEF election or mark-to-market elections
Avoiding foreign fund of funds, which trigger indirect disposition of lower-tier fund when top-tier fund is sold
Avoiding funds which have liquidity restrictions and do not permit regular redemptions

40. Advance Planning
Holding PFICs individually or directly by trust and drafting trust to permit a date-of-death basis step up
Segregating PFICs in a “checkable entity” which can check the box to be disregarded