BY MARY BETH LOUGEN, EA, USTCP
Practitioners that work with clients who have international connections often have to run the gauntlet of Code Secs. 1291–1298, the portion of the statute that covers passive foreign investment companies or PFICs. As someone who frequents the PFIC regulations, I am always in awe of this section of the Internal Revenue Code (“the Code”). The men and women who took the directive provided by Congress in the Tax Reform Act of 1986 and put to paper how we are to treat passive foreign investment companies on a U.S. tax return were geniuses. They have woven an intricate and complex web of “if this, then that” rules that speak to many other sections of the Code—if the PFIC is also a CFC, then … , if the shareholder becomes a U.S. person after already owning an investment that became a PFIC the minute they crossed into U.S. personhood, then … , if the investment was owned prior to 1987 when the regulations came into play, then … . But there is one place where the interaction between the PFIC rules and the rest of the regulations is not in sync, this is the case when there is a sale of a fiscal year qualified electing fund (QEF) during the period between the end of the fiscal reporting year and the taxpayer’s calendar year end.
It is widely thought that QEF election is the best solution to a bad problem— but I am going to have to disagree, or at least disagree when the PFIC reports on a fiscal year.
