What is a PFIC? A PFIC is a Passive Foreign Investment Company. It  is a Legal Term for a foreign company that falls under the punitive tax regime of Internal Revenue Code 1291, and generally requires the annual filing of Form 8621. The IRS rules for filing the Form 8621 can be complicated, especially when the calculation includes excess distributions. In addition, if Taxpayers seeks to make an MTM or QEF election, it may necessitate the client to obtain information from the foreign investment fund — which may be challenging.

26 USC 1291 & PFIC

A Section 1291 Fund is a PFIC (Passive Foreign Investment Company) and it receives different tax treatment than other foreign passive investments.

As defined by the code:

“(1) Distributions

If a United States person receives an excess distribution in respect of stock in a passive foreign investment company, then—

(A) the amount of the excess distribution shall be allocated ratably to each day in the taxpayer’s holding period for the stock,

(B) with respect to such excess distribution, the taxpayer’s gross income for the current year shall include (as ordinary income) only the amounts allocated under subparagraph (A) to—

(i) the current year, or

(ii) any period in the taxpayer’s holding period before the 1st day of the 1st taxable year of the company which begins after December 31, 1986, and for which it was a passive foreign investment company, and

(C) the tax imposed by this chapter for the current year shall be increased by the deferred tax amount (determined under subsection (c)).

(2) Dispositions

If the taxpayer disposes of stock in a passive foreign investment company, then the rules of paragraph (1) shall apply to any gain recognized on such disposition in the same manner as if such gain were an excess distribution.”

General Rules of PFIC

The PFIC rules can go on forever.

There are the rules, then there are the exceptions to the rules — and more exceptions, limitations, exclusions, etc.:

We will focus on the basics.

How is a PFIC Taxed?

The PFIC tax rules depend on whether:

  • There are Excess Distributions
  • There are no Excess Distributions
  • An MTM or QEF election was made

How is Excess Distribution Calculated?

The calculation for an Excess Distribution is very detailed, and has multiple steps. 

The non-excess distributions are not taxed the same as the excess distributions, and are parsed out from the punitive tax outcome.

Is a Foreign Mutual Fund a PFIC?

Yes, most foreign mutual funds and other investment funds (ETF, SICAV) are PFIC — but mirror funds may not be.

Why?

  • Most funds are formalized as companies such as Ltd.s’; and
  • The company almost always meets the 50% asset test or 75% income test under 1291 et seq.

*Unlike other reporting, the PFIC may be required even if Taxpayer only has fractional ownership.

Do you Pay Tax on Foreign Mutual Funds?

Yes, but the Tax may be delayed until distribution (although the tax liability is growing exponentially within the fund)

Can you be a PFIC and CFC?

Yes — but you may be able to avoid duplicate reporting (generally, the CFC status reporting trumps PFIC reporting)

What Kind of Elections are Available?

In order to reduce taxes on PFIC, you may be able to make an election.

The two elections are QEF (Qualified Electing Fund) and MTM (Mark-to-Market)

Filing Requirements for PFIC

Typically, when a person has a PFIC, they are required to file IRS form 8621.

There are some exceptions and exclusions to filing the form, but generally the form is required.

This is true, even if there is no income generated from the PFIC (post 2012).

PFIC 8621 Elections 

There are certain ways to avoid the significant fines and penalties and individual faces when they hold onto an undisclosed PFIC, and then receive what is called an excess distribution.

Unfortunately, the QEF election is very difficult if not for the mere fact that it requires cooperation between your foreign investment fund and the IRS — typically, foreign investment funds do not willingly engage the IRS anymore than they have to.

Alternatively, the MTM election can be very beneficial, but late elections are rarely allowed.

QEF Election

A Qualified Electing Fund or (QEF) Status is one method for US investors of PFICs to try and limit punitive nature of the US tax regime on PFIC investments.

By making a QEF election (which is very strict requirements and time limitations) it allows the foreign PFIC to be treated as a U.S. investment for IRS tax purposes.

As a result, capital gains are taxed at the capital gain rate, while income is taxed at the income tax rate – as opposed to a PFIC where all “earnings” are taxed at the highest tax bracket.

The biggest hurdle in achieving a QEF election is that the foreign fund is now going to have to meet IRS tax reporting requirements. For the most part, the reason why US investors invest in a PFIC is to avoid this type of reporting requirement.

Moreover, most foreign fund managers are not going to want to take the time and effort to ensure compliance with IRS requirements – especially now that FATCA has begun enforcement.

*Overall, the QEF status is generally better than a MTM (market-to-market election – which requires recognition on the annual increase or decrease in market value as ordinary income or loss, with losses being limited) or excess distribution regime.

The QEF election is made on form 8621.

MTM Election

With the Mark-to-Market election, the investor is making the decision to pay tax on the gains each year, despite the fact that no money is being distributed from the fund.

For example, let’s say David owns $100,000 worth of a foreign mutual fund.

The fund does great, and David’s fund is now worth $120,000 on the last day of the year.

Even though the investment is not distributing any of the gain to David, he will still pay tax on the $20,000 gain.

Moreover, David will pay tax at the ordinary income tax rate, and not any beneficial qualified dividend tax rate.

In addition, it should be noted that when the fund loses money, David is highly restricted as to what losses he can take against the gains the already paid tax on.

Excess Distributions & PFIC

An Excess Distribution is the catalyst that sparks this complex tax analysis.

Essentially, an excess distribution is a distribution in the current year, which exceeds 125% of the average of the three prior years.

In this particular scenario, there were no prior distributions and this is not the first year of the investment, therefore it is an excess distribution.

The IRS wants payback for the time your Foreign Mutual Fund was sitting overseas and growing – but not being taxed. Had the investment been in a U.S. mutual fund, it would’ve been distributed annually (even if immediately reinvested) and you would have been taxed (albeit at a lower tax rate). This is the IRS’ opportunity to get that money back from you.

The IRS is going to tax you for each year you held the investment and the IRS is going to tax you at the highest ordinary income tax rate available each year for the portion of the investment earnings allocated for that year (even if you are not in the highest tax bracket).

In addition, the IRS is going to tack on interest for the unpaid allocations that you didn’t pay timely, in accordance with the amount of tax allocated for each tax year of total tax amount, even though the tax amount is only being determined for the first time right now with this initial distribution…simple, right?

First Distribution of PFIC vs. Distribution in 1st Year of Investment

If you receive a distribution in the first year of your investment, it is typically never an “Excess” distribution, since there is nothing for it to be in “excess” of.

This is different than receiving a “First Distribution” many years after the initial investment.

No PFIC Election, and No Distribution?

While if you do not make an election, you will not tax until you begin receiving distributions, it is important to understand that your first distribution will most likely be an excess distributions the prior-year distributions will be zero.

Thus, when you are finally receiving distributions the tax liability case, including having all of the money that is distributed tax at the highest ordinary income tax-free available during each year you held the investment, calculated per day – with interest.

The current year you are taxed at your own ordinary progressive income tax rate.

In other words, even if you receive long-term capital gain qualified dividends it will still be taxed at the ordinary action.

PFIC Penalties

One of the most brutal aspects of failing to file Form 8621 is that such a failure to file suspends the statute of limitations. Therefore, if a person fails to file form 8621, then the IRS can audit the entire return “forever” and would not otherwise be barred by the general statute of limitations.

Under ordinary circumstances, an individual can only be audited on the return for three years (presuming the return was filed timely – if no return was filed, the statue limitations does not even begin).

The idea behind a Statute of Limitations is that it provides a form of closure for an individual to know that the tax return was filed and accepted by the IRS; it would be unfair to allow the IRS audit you “forever,” as documents and memories fade over time.

There are other circumstances in which the IRS can audit you for six years instead of three years (significant unreported income from U.S. or domestic sources) or no statute of limitations if the IRS can prove fraud.  Fraud is a lot different than unknowingly not filing a Form 8621 because you never even heard of the form.

PFIC Amnesty Rules

If you have not reported any of your PFICs — probably also means you never filed an FBAR in those years, you may consider entering the IRS offshore voluntary disclosure program to try to get back into compliance before it is too late.

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.

Each case is led by a Board-Certified Tax Law Specialist with 20 years of experience, and the entire matter (tax and legal) is handled by our team, in-house.

*Please beware of copycat tax and law firms misleading the public about their credentials and experience.

Less than 1% of Tax Attorneys Nationwide Are Certified Specialists

Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.

Recent Golding & Golding Case Highlights

  • We represented a client in an 8-figure disclosure that spanned 7 countries.
  • We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
  • We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
  • We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
  • We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.

How to Hire Experienced Offshore Counsel

Generally, experienced attorneys in this field will have the following credentials/experience:

  • Board Certified Tax Law Specialist credential
  • Master’s of Tax Law (LL.M.)
  • Dually Licensed as an EA (Enrolled Agent) or CPA
  • 20-years experience as a practicing attorney
  • Extensive litigation, high-stakes audit and trial experience

Interested in Learning More about Golding & Golding?

No matter where in the world you reside, our international tax team can get you IRS offshore compliant. 

Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.