Passive foreign investment company

Last updated

For purposes of income tax in the United States, U.S. persons owning shares of a passive foreign investment company (PFIC) may choose between (i) current taxation on the income of the PFIC or (ii) deferral of such income subject to a deemed tax and interest regime. [1] The provision was enacted as part of the Tax Reform Act of 1986 as a way of placing owners of offshore investment funds on a similar footing to owners of U.S. investment funds (regulated investment companies). [2] The original provisions applied for all foreign corporations meeting either an income or an asset test. However, 1997 amendments [3] limited the application in the case of U.S. Shareholders of controlled foreign corporations.

Contents

Definition

Any foreign (i.e., non-U.S.) corporation meeting either the income test or the asset test is a PFIC with respect to each shareholder when the test is met. [4] PFIC status applies separately for each U.S. person owning shares, and also separately with respect to shares acquired at different times. PFIC status does not, itself, have any impact on the foreign corporation or foreign shareholders.

The income test is met if 75% or more of the foreign corporation's gross income is passive income, defined as foreign personal holding company income with modifications.

The asset test is met if 50% or more of the foreign corporation's average assets (as defined in the IR Code) produce, or could produce passive income, or are assets (such as cash and bare land) that produce no income. The test is applied based on the foreign corporation's adjusted basis, for U.S. tax purposes, of the assets, or at the election of the particular shareholder, fair market values of the assets.

Look-thru of 25% subsidiaries: Interests in 25% or more owned foreign corporations are treated similarly to partnership interests (i.e., looked through) for the income test and the asset test.

( 2 tests - income test 75%; asset test - 50%)

Effect of PFIC status

If a U.S. person receives income from a PFIC or recognizes gain from disposition of shares of a 1291 fund, such person is subject to a tax and interest regime. [5] A shareholder may elect out of this regime (see QEF below). [6] The regime applies only to any distribution or gain in excess of 125% of the average distributions for the prior three years. This regime is as follows: First, such income or gain (in excess of the 125%) is allocated pro rata to each year of the person's holding period for the particular shares. Next, the amounts allocated to prior years after 1986 are excluded from current year taxable income. Then tax is computed on amounts allocated to each prior year at the maximum rate of tax applicable to the type of taxpayer for such year (prior year tax). Then interest is computed on such prior year tax as if it were an underpayment of tax (interest charge). Finally, current year tax is increased by the aggregate of prior year tax amounts and interest charge amounts. [7]

The interest charges are computed using compound interest on an April 15 to April 15 basis. [8] Given a sufficiently long holding period, the tax and back-interest will exceed 100%. However, the shareholder may avoid >100% tax by periodically selling and repurchasing his holdings, using the after-tax proceeds to repurchase shares.

Shareholders of a PFIC (including a QEF) are eligible for foreign tax credit with respect to the current and deemed prior year taxes, including the deemed paid credit for 10% corporate shareholders of the PFIC.

Qualified Electing Fund (QEF) election

Each U.S. person owning shares of a PFIC may elect to include their share of the ordinary income and net capital gains of the PFIC(similar to shareholders of a mutual fund), provided that the PFIC issues the necessary PFIC annual information statement. The PFIC annual information statement is a rough equivalent of Form 1099. This election is effective for the year in which the election is made and all subsequent years. The tax and interest regime is avoided to the extent this election applies.

This election helps U.S. persons holding shares of a PFIC by treating the income earned through the PFIC similar to other US entities. For example, shareholders of corporations are usually subject to U.S. tax only when the income is distributed. [9] In addition, shareholders of a U.S. mutual fund are subject to tax on their pro rata share of ordinary income and capital gains of the mutual fund.

QEF status applies only to the shares of a particular shareholder acquired during a tax year for which the QEF election was in force, assuming that the QEF election remains in place throughout the holding period. Such status does not apply to other shareholders or to persons acquiring the particular shares.

QEF status fully avoids the tax and interest regime only if it is effective from the beginning of the share's holding period. If a shareholder elects QEF status for particular shares at a date later than the acquisition date, one of three additional elections may be made to "purge" PFIC status for prior years. The shareholder may make one of two gain recognition elections (deemed sale and mark to market) or, if the shareholder is a corporation, a deemed dividend election. In each case, the gain or deemed dividend recognized under the election is subject to the tax and interest regime.

Mark to market

A shareholder of a PFIC may also elect each year to recognize gain or loss on the shares as if he, she or it had sold the PFIC shares at fair market value, although gains are taxed as ordinary income. Losses generate ordinary income deductions to the extent they reverse prior gains, on a share-by-share basis, after which they are claimed on US schedule D. Such election is available only for shares the market value of which is readily determinable (e.g., regularly traded shares). Shares subject to this election are not subject to the tax and interest regime. [10] Also, this election is independent of prior PFIC elections (i.e. QEF or Sect 1291 election). for example: If stock X was purchased in 2007 for $100, has a FMV on December 31, 2011, of $120, and no PFIC forms were filed until 2011 (when Sect 1296- Mark-to-market- election was made), no PFIC filings would be needed for the prior years as long as distributions were less than 125% and no capital gains occurred. For the current year, 8621 would be filed using Mark to market and the ordinary income would be $20. [11]

Coordination with CFC rules

U.S. Shareholders (generally 10% or more owners) of a controlled foreign corporation (CFC) are not subject to the tax and interest regime with respect to any share which was not a share of a PFIC at any time before 1997. Such shareholders are, instead, subject to the CFC rules. [12]

Reporting and making elections

Each U.S. person owning shares of a PFIC is required to file IRS Form 8621. Such form is used to report actual distributions and gain, as well as income and gains under a QEF election. Such form is also used to make the QEF and purging elections described above. Failure to file such form in a year in which no income is properly reported does not carry specific penalties, but may render the return incomplete and potentially subject to tolling of the statute of limitations.

Further reading

Related Research Articles

Tax deduction is a simplified phrase for meaning income that is able to be taxed and is commonly a result of expenses, particularly those incurred to produce additional income. Tax deductions are a form of tax incentives, along with exemptions and tax credits. The difference between deductions, exemptions, and credits is that deductions and exemptions both reduce taxable income, while credits reduce tax.

A capital gains tax (CGT) is the tax on profits realized on the sale of a non-inventory asset. The most common capital gains are realized from the sale of stocks, bonds, precious metals, real estate, and property.

Controlled foreign corporation (CFC) rules are features of an income tax system designed to limit artificial deferral of tax by using offshore low taxed entities. The rules are needed only with respect to income of an entity that is not currently taxed to the owners of the entity. Generally, certain classes of taxpayers must include in their income currently certain amounts earned by foreign entities they or related persons control.

<span class="mw-page-title-main">Taxation in the United Kingdom</span>

In the United Kingdom, taxation may involve payments to at least three different levels of government: central government, devolved governments and local government. Central government revenues come primarily from income tax, National Insurance contributions, value added tax, corporation tax and fuel duty. Local government revenues come primarily from grants from central government funds, business rates in England, Council Tax and increasingly from fees and charges such as those for on-street parking. In the fiscal year 2014–15, total government revenue was forecast to be £648 billion, or 37.7 per cent of GDP, with net taxes and National Insurance contributions standing at £606 billion.

A corporate tax, also called corporation tax or company tax, is a type of direct tax levied on the income or capital of corporations and other similar legal entities. The tax is usually imposed at the national level, but it may also be imposed at state or local levels in some countries. Corporate taxes may be referred to as income tax or capital tax, depending on the nature of the tax.

The rules governing partnership taxation, for purposes of the U.S. Federal income tax, are codified according to Subchapter K of Chapter 1 of the U.S. Internal Revenue Code. Partnerships are "flow-through" entities. Flow-through taxation means that the entity does not pay taxes on its income. Instead, the owners of the entity pay tax on their "distributive share" of the entity's taxable income, even if no funds are distributed by the partnership to the owners. Federal tax law permits the owners of the entity to agree how the income of the entity will be allocated among them, but requires that this allocation reflect the economic reality of their business arrangement, as tested under complicated rules.

Passive income is a type of unearned income that is acquired with minimal labor to earn or maintain. It is often combined with another source of income, such as regular employment or a side job. Passive income, as an acquired income, is taxable.

<span class="mw-page-title-main">S corporation</span> US tax term for a type of company

An S corporation, for United States federal income tax, is a closely held corporation that makes a valid election to be taxed under Subchapter S of Chapter 1 of the Internal Revenue Code. In general, S corporations do not pay any income taxes. Instead, the corporation's income and losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns.

<span class="mw-page-title-main">Income tax in the United States</span> Form of taxation in the United States

The United States federal government and most state governments impose an income tax. They are determined by applying a tax rate, which may increase as income increases, to taxable income, which is the total income less allowable deductions. Income is broadly defined. Individuals and corporations are directly taxable, and estates and trusts may be taxable on undistributed income. Partnerships are not taxed, but their partners are taxed on their shares of partnership income. Residents and citizens are taxed on worldwide income, while nonresidents are taxed only on income within the jurisdiction. Several types of credits reduce tax, and some types of credits may exceed tax before credits. An Alternative Minimum Tax (AMT) applies at the federal and some state levels.

International taxation is the study or determination of tax on a person or business subject to the tax laws of different countries, or the international aspects of an individual country's tax laws as the case may be. Governments usually limit the scope of their income taxation in some manner territorially or provide for offsets to taxation relating to extraterritorial income. The manner of limitation generally takes the form of a territorial, residence-based, or exclusionary system. Some governments have attempted to mitigate the differing limitations of each of these three broad systems by enacting a hybrid system with characteristics of two or more.

Taxation in the Netherlands is defined by the income tax, the wage withholding tax, the value added tax and the corporate tax.

Under U.S. federal tax law, the tax basis of an asset is generally its cost basis. Determining such cost may require allocations where multiple assets are acquired together. Tax basis may be reduced by allowances for depreciation. Such reduced basis is referred to as the adjusted tax basis. Adjusted tax basis is used in determining gain or loss from disposition of the asset. Tax basis may be relevant in other tax computations.

The Tax Increase Prevention and Reconciliation Act of 2005 is an American law, which was enacted on May 17, 2006.

<span class="mw-page-title-main">Corporate tax in the United States</span>

Corporate tax is imposed in the United States at the federal, most state, and some local levels on the income of entities treated for tax purposes as corporations. Since January 1, 2018, the nominal federal corporate tax rate in the United States of America is a flat 21% following the passage of the Tax Cuts and Jobs Act of 2017. State and local taxes and rules vary by jurisdiction, though many are based on federal concepts and definitions. Taxable income may differ from book income both as to timing of income and tax deductions and as to what is taxable. The corporate Alternative Minimum Tax was also eliminated by the 2017 reform, but some states have alternative taxes. Like individuals, corporations must file tax returns every year. They must make quarterly estimated tax payments. Groups of corporations controlled by the same owners may file a consolidated return.

A foreign tax credit (FTC) is generally offered by income tax systems that tax residents on worldwide income, to mitigate the potential for double taxation. The credit may also be granted in those systems taxing residents on income that may have been taxed in another jurisdiction. The credit generally applies only to taxes of a nature similar to the tax being reduced by the credit and is often limited to the amount of tax attributable to foreign source income. The limitation may be computed by country, class of income, overall, and/or another manner.

<span class="mw-page-title-main">Foreign Investment in Real Property Tax Act</span>

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA), enacted as Subtitle C of Title XI of the Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, 94 Stat. 2599, 2682, is a United States tax law that imposes income tax on foreign persons disposing of US real property interests. Tax is imposed at regular tax rates for the taxpayer on the amount of gain considered recognized. Purchasers of real property interests are required to withhold tax on payment for the property. Withholding may be reduced from the standard 15% to an amount that will cover the tax liability, upon application in advance of sale to the Internal Revenue Service. FIRPTA overrides most nonrecognition provisions as well as those remaining tax treaties that provide exemption from tax for such gains.

A tax-free savings account is an account available in Canada that provides tax benefits for saving. Investment income, including capital gains and dividends, earned in a TFSA is not taxed in most cases, even when withdrawn. Contributions to a TFSA are not deductible for income tax purposes, unlike contributions to a registered retirement savings plan (RRSP).

Foreign personal holding company income (FPHCI) is defined for U.S. controlled foreign corporation rules and, with modifications, for U.S. foreign tax credit rules. It consists of interest, dividends, rents, royalties, gains on property producing FPHCI, and certain other items. Exceptions are provided for active rents and royalties, certain related party rents and royalties, same country income, and certain other items. For purposes of the foreign tax credit, an additional exception requires look-through of certain income received from a controlled foreign corporation.

The alternative minimum tax (AMT) is a tax imposed by the United States federal government in addition to the regular income tax for certain individuals, estates, and trusts. As of tax year 2018, the AMT raises about $5.2 billion, or 0.4% of all federal income tax revenue, affecting 0.1% of taxpayers, mostly in the upper income ranges.

The Abgeltungsteuer is a flat tax on private income from capital. It is used in Germany, Austria, and Luxembourg.

References

  1. ↑ 26 USC 1291-1298.
  2. ↑ See the Conference Committee Report pages II-640, et seq., on Section 1235 of the Tax Reform Act of 1986.
  3. ↑ Section 1121 of PL 105-34 [ permanent dead link ].
  4. ↑ 26 USC 1297.
  5. ↑ 26 USC 1291.
  6. ↑ 26 USC 1293-5.
  7. ↑ Note that this aggregate amount is considered the amount of tax for the year for purposes of penalty and interest calculations.
  8. ↑ 26 USC 6622.
  9. ↑ See, e.g., IRS Publication 550. However, significant exceptions apply, such as for shareholders of S Corporations, 26 USC 1361, et seq.
  10. ↑ 26 USC 1296.
  11. ↑ Section 1.1296-1 3 b.iii
  12. ↑ Note that a U.S. person owning shares of a foreign corporation which were held prior to 1997 faces the risk that the CFC was a PFIC before 1997. See note above.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.