PFIC explained: What it is and how it affects US taxpayers

Today, there are thousands of registered PFICs worldwide, covering many investment options, including foreign mutual funds, index funds, ETFs, and foreign pension plans. 

Passive foreign investment companies (PFICs) are foreign investment vehicles subject to complex US tax rules that often lead to high tax rates and strict reporting requirements. US investors holding shares in foreign funds must understand PFIC taxation to comply with US tax law.

What is a passive foreign investment company (PFIC)?

A passive foreign investment company (PFIC) is a foreign corporation that primarily generates passive income, such as dividends, interest, or capital gains, or holds assets that produce such income. 

Defined by US tax law, PFICs aim to prevent US taxpayers from avoiding taxes by investing in foreign entities not subject to the same rules as US-based companies.

How is a PFIC identified?

A passive foreign investment company (PFIC) is a foreign corporation that meets at least one of two tests applied annually:

• Income test: 75% or more of the company’s gross income is passive, such as dividends, interest, royalties, rents, or capital gains.
• Asset test: 50% or more of the company’s assets produce passive income.

Because these tests are applied each tax year, an investment might be considered a PFIC one year but not the next.

Why do PFIC rules matter?

The PFIC rules were established to prevent US taxpayers from deferring taxes on passive income earned through foreign entities. 

Once an investment falls under the PFIC classification, it triggers a set of complex reporting requirements and can result in significantly higher taxes.

If you’re a US investor with PFIC holdings, you’re required to report the investment using IRS Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund (QEF).

Failure to comply with these reporting requirements can result in hefty penalties.

Common examples of PFICs

Passive foreign investment companies typically include: 

• foreign mutual funds
• certain hedge funds
• pooled investment vehicles
• startups with significant cash reserves 

These entities primarily generate passive income, making them subject to PFIC rules. Additionally, foreign exchange-traded funds (ETFs) and offshore investment trusts are common examples. 

However, active businesses, such as a foreign manufacturing company or an overseas retail chain, generally do not qualify as passive foreign investment companies since they generate income through operations rather than passive investments. 

PFIC taxation methods

The taxation of PFICs can be approached using one of three methods: the excess distribution method, the mark-to-market election, or the qualified electing fund (QEF) election.

1. Excess distribution method

This is the default method for taxing PFICs. With this approach, any distribution that exceeds 125% of the average distributions received during the previous three years is considered an “excess distribution.”

These excess distributions are allocated over your holding period and taxed at the highest ordinary income rate for each year, along with an additional interest charge.

For example, if you receive an excess distribution of $5,000 in the fourth year of owning a PFIC, it will be divided among the previous three years and taxed accordingly. The longer you hold the PFIC, the more interest you’ll accumulate on the tax.

2. Mark-to-market (MTM) election

The mark-to-market election allows you to recognize annual gains in the value of the PFIC shares as ordinary income, whether you sold the shares or not.

The gain is based on the value of the PFIC at the end of the tax year compared to its value at the beginning of the year. If the value decreases, you can claim a loss, but only to the extent that it offsets previously reported gains.

Pro tip. This method is only available if your PFIC shares are publicly traded on a qualified exchange. While it eliminates the interest charge associated with the excess distribution method, it might not be the best choice if your PFIC has volatile or unpredictable annual returns.

3. Qualified electing fund (QEF) election

Choosing the QEF election allows you to be taxed annually on your pro-rata share of the PFIC’s earnings, whether or not you receive a distribution.

With this option, gains from the sale of PFIC shares are treated as capital gains, and you avoid the interest charges on excess distributions.

This method is only available if the PFIC agrees to provide detailed financial information each year, which is not always the case. Without this information, you’ll be stuck with the default excess distribution method.

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Reporting requirements for PFICs

If you hold shares in a PFIC, you must file Form 8621 with the IRS every year for each PFIC investment, regardless of whether you received a distribution.

This form requires you to report any excess distributions, gains from the sale of PFIC shares, and any elections made (like QEF or MTM).

In addition to Form 8621, PFICs may also need to be reported on Form 8938 (Statement of Specified Foreign Financial Assets) under FATCA regulations, as well as on the FBAR (Foreign Bank and Financial Accounts Report) if your foreign financial assets exceed $10,000 at any point during the year.

Pro tip: Always maintain detailed records of your PFIC holdings, as determining cost basis and income can get complicated.

Exceptions to PFIC filing requirements

There are a few exceptions to the standard PFIC filing requirements:

1. Low-value exemption: If the total value of your PFIC holdings is less than $25,000 ($50,000 if married filing jointly), you are exempt from filing Form 8621.
2. Foreign pension plans: PFICs that are part of certain foreign pension plans, like a UK SIPP, are typically exempt from filing requirements unless specific conditions are met.
3. Controlled Foreign Corporation (CFC) status: If your PFIC also qualifies as a CFC, then you only need to file Form 5471 instead of Form 8621.

Strategies to minimize your PFIC tax liability

Here are some strategies to help reduce the tax burden associated with PFICs:

1. Make a timely QEF election: This helps you avoid the interest charge on excess distributions.
2. Consider US-based mutual funds or ETFs: Investing through US-based funds, even if they hold foreign assets, is not subject to PFIC rules.
3. Evaluate your holding period: Long holding periods can lead to substantial interest charges. Monitor your holdings and consider selling or making an election when it benefits you.

Final thoughts: Understand before you invest

The complexities surrounding PFICs mean they are not just investments, but tax obligations with long-term financial implications.

If you’re unsure about your PFIC status or how to handle your tax obligations, it’s best to consult with a tax professional to ensure compliance and minimize your tax liability.