- 1 General PFIC Rules
- 2 PFIC Test
- 3 PFIC Example 1: Not So Bad
- 4 PFIC Example 2: Bad
- 5 General CFC Rules
- 6 CFC and PFIC Reporting
- 7 What if the CFC and PFIC rules overlap?
- 8 It’s in the Legislative History
- 9 What is Subpart F?
- 10 What Forms for PFIC and CFC Do I Report to the IRS?
- 11 What if You Have Unreported Income or Assets?
- 12 Golding & Golding, A PLC
PFIC & CFC Overlap – IRS Foreign Company Filing Requirements
When it comes to international tax, and IRS filing requirements for U.S. Shareholders of foreign companies — there are two main headaches. The first is PFIC (Passive Foreign Investment Companies) and the second is CFC (Controlled Foreign Corporations).
In reality, there are many headaches involving international tax (repatriation tax, GILTI, treaty rules, FATCA, etc.) but today’s focus will be on PFIC and CFC overlap, since it impacts many of our clients.
General PFIC Rules
A PFIC is a Passive Foreign Investment Company. If you own or have interest in a PFIC, you may be subject to very burdensome and onerous tax and reporting rules; it depends.
As defined by the IRS:
A foreign corporation is a PFIC if it meets either the income or asset test described below.
75% or more of the corporation’s gross income for its taxable year is passive income (as defined in section 1297(b)).
At least 50% of the average percentage of assets (determined under section 1297(e)) held by the foreign corporation during the taxable year are assets that produce passive income or that are held for the production of passive income.
PFIC Example 1: Not So Bad
-You are Married Filing Jointly
– Your PFIC is due to ownership in foreign mutual funds
– Total value of PFIC is under $50,000
– No Income Distribution
In this scenario, since you are below the $50,000 exemption for married couples who have no income distributions from a PFIC, your tax and reporting is not that bad.
PFIC Example 2: Bad
– You are Married Filing Jointly
– Your PFIC is mix of Investment Funds and ownership of a Foreign Company (possibly a BVI that holds a Hong Kong Ltd.) that you use to aggregate all your passive investments under one roof.
– Total value of the PFIC is $1,300,000
– The PFIC generates all different types of income. Some is distributed in some years, and not in other years.
In the second scenario, you are above the $25,000/$50,000 exclusion and income is being distributed. Therefore, for each bucket of income, for each year, you have to perform an Excess Distribution calculation – which is a very complicated and detailed analysis.
General CFC Rules
In order to be considered a controlled foreign corporation, the Foreign Corporation must be:
- Owned more than 50% by U.S. Person(s), and
- Each U.S. shareholder owns at least 10% ownership (Attribution Rules Apply).
CFC and PFIC Reporting
The reporting rules for CFC and PFICs are different.
PFIC Reporting (Form 8621)
Presuming that the taxpayer has a PFIC and the value exceeds the $25K/$50K exclusion amount, he/she has to file a Form 8621 each year with the IRS. If the form is not filed, then the tax return is not considered complete.
That means that because the return is not considered complete, it extends the time for the IRS to audit the return (which is bad)
CFC Reporting (Form 5471)
A U.S. person does not have to report a CFC, “just to report it.” For example, with the PFIC, even if the U.S. person has no income, if he/she exceeds the $25K/$50K exclusion amount – it has to be reported.
With a CFC, generally, a U.S. Shareholder files a Form 5471, but only if the shareholder meets one of the definitions of being a “Category of Filer” who is required to file the form.
And, sometimes a person may not even be a shareholder but still have to file a Form 5471, and sometimes Form 5471 has to be filed by a U.S. shareholder even if the foreign corporation is not considered a CFC.
In other words, Form 5471 is not limited to just CFC, and even if a person is not a shareholder in a CFC, he or she may still have to file a Form 5471 is they meet the threshold requirement for filing.
What if the CFC and PFIC rules overlap?
The general rules involving the CFC and PFIC overlap are complicated, and can generally be found in section 1297 (Passive Foreign Investment Company)
If a U.S. Shareholder is considered a direct owner of a PFIC and CFC, then usually the CFC rules will trump, so that the PFIC will not become subject to the CFC rules.
In other words, when a person is held to be the owner of a foreign company, and that company meets the definition of being a CFC, then it will not also have to comply with the PFIC rules.
IRS Section 1297 (d): Exception for U.S. Shareholders of CFCs
(1) In general For purposes of this part, a corporation shall not be treated with respect to a shareholder as a passive foreign investment company during the qualified portion of such shareholder’s holding period with respect to stock in such corporation.
(2) Qualified portion: For purposes of this subsection, the term “qualified portion” means the portion of the shareholder’s holding period— (A) which is after December 31, 1997, and (B) during which the shareholder is a United States shareholder (as defined in section 951(b)) of the corporation and the corporation is a controlled foreign corporation.
Only the relevant portions have been reproduced from the code – exceptions apply.
It’s in the Legislative History
The legislative history involving code section 1297 (d) provides that
“[A] shareholder that is subject to current inclusion under the subpart F rules with respect to stock of a PFIC that is also a CFC generally is not subject also to the PFIC provisions with respect to the same stock.”
What is Subpart F?
Subpart is a very complex area of tax law. It involves several ant-deferral of foreign income rules, and requires the immediate taxation of certain foreign income, in years a CFC has Earnings & Profits, involving income which may have not even been distributed to the shareholder
What Forms for PFIC and CFC Do I Report to the IRS?
While a shareholder of both a PFIC and CFC may not have to deal with the tax issues per se of computing both PFIC and CFC analyses – the reporting is a bit different.
When a person owns a PFIC and is not exempt from reporting, then we recommend filing the Form 8621. That is because if Form 8621 is required to be filed, but is not filed, then the tax return remains open for potential audit – and that can be very dangerous.
If the PFIC also qualifies as a CFC and meets one of the categories of filers for Form 5471 then the general recommendation by experienced tax practitioners is to file the 5471 as well.
While it can be a bit daunting, the penalties for not filing form 5471 are very high (starting at $10,000).
And, the Form 5471 is a common penalty the IRS issues.
What if You Have Unreported Income or Assets?
If you are out of compliance, the penalties can be severe. Therefore, you may consider entering IRS offshore voluntary disclosure/tax amnesty, before it is too late.
Golding & Golding, A PLC
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Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver. He has also earned the prestigious IRS Enrolled Agent credential. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo, and various Law Journals nationwide.