Reg. § 1.1291-1 Taxation of U.S. persons that are shareholders of section 1291 funds.
(a) through (b) (2)(i) [Reserved]
(ii) Pedigreed QEF. A PFIC is a pedigreed QEF with respect to a shareholder if the PFIC has been a QEF with respect to the shareholder for all taxable years during which the corporation was a PFIC that are included wholly or partly in the shareholder's holding period of the PFIC stock.
(b) (2)(iii) and (iv) [Reserved]
(v) Section fund. A PFIC is a section fund with respect to a shareholder unless the PFIC is a pedigreed QEF with respect to the shareholder or a section election is in effect with respect to the shareholder.
(3) through (6) [Reserved]
(7) Shareholder A shareholder is a United States person that directly owns stock of a PFIC (a direct shareholder), or that is an indirect shareholder (as defined in section and of this section), except as provided in of this section. For purposes of sections and , a domestic partnership or S corporation (as defined in section ) is not treated as a shareholder of a PFIC except for purposes of any information reporting requirements, including the requirement to file an annual report under section . In addition, to the extent that a person is treated under sections through as the owner of a portion of a domestic trust, the trust is not treated as a shareholder of a PFIC with respect to PFIC stock held by that portion of the trust, except for purposes of the information reporting requirements of (imposing an information reporting requirement on domestic liquidating trusts and fixed investment trusts).
(8) Indirect shareholder
(i) In general An indirect shareholder of a PFIC is a United States person that indirectly owns stock of a PFIC. A person indirectly owns stock when it is treated as owning stock of a corporation owned by another person, including another United States person, under this . In applying this , the determination of a person's indirect ownership is made on the basis of all the facts and circumstances in each case; the substance rather than the form of ownership is controlling, taking into account the purposes of sections through .
(ii) Ownership through a corporation
(A) Ownership through a non-PFIC foreign corporation A person that directly or indirectly owns 50 percent or more in value of the stock of a foreign corporation that is not a PFIC is considered to own a proportionate amount (by value) of any stock owned directly or indirectly by the foreign corporation.
(B) Ownership through a PFIC A person that directly or indirectly owns stock of a PFIC is considered to own a proportionate amount (by value) of any stock owned directly or indirectly by the PFIC. Section does not apply in determining whether a corporation is a PFIC for purposes of this .
(C) Ownership through a domestic corporation
(1) In general Solely for purposes of determining whether a person satisfies the ownership threshold described in of this section, a person that directly or indirectly owns 50 percent or more in value of the stock of a domestic corporation is considered to own a proportionate amount (by value) of any stock owned directly or indirectly by the domestic corporation.
(2) Non-duplication of this section does not apply to treat a United States person as owning (other than for purposes of applying the ownership threshold in of this section) stock of a PFIC that is directly owned or considered owned indirectly within the meaning of this by another United States person (determined without regard to paragraph (b)(8)(ii)(C)(1)). See Example 1 of of this section.
(3) S corporations The 50 percent limitation in of this section does not apply with respect to stock owned directly or indirectly by an S corporation. See of this section for rules regarding stock owned directly or indirectly by an S corporation.
(iii) Ownership through pass-through entities
(A) Partnerships If a foreign or domestic partnership directly or indirectly owns stock, the partners of the partnership are considered to own such stock proportionately in accordance with their ownership interests in the partnership.
(B) S Corporations If an S corporation directly or indirectly owns stock, each S corporation shareholder is considered to own such stock proportionately in accordance with the shareholder's ownership interest in the S corporation.
(C) Estates and nongrantor trusts If a foreign or domestic estate or nongrantor trust (other than an employees' trust described in section that is exempt from tax under section ) directly or indirectly owns stock, each beneficiary of the estate or trust is considered to own a proportionate amount of such stock. For purposes of this , a nongrantor trust is any trust or portion of a trust that is not treated as owned by one or more persons under sections through .
(D) Grantor trusts If a foreign or domestic trust directly or indirectly owns stock, a person that is treated under sections through as the owner of any portion of the trust that holds an interest in the stock is considered to own the interest in the stock held by that portion of the trust.
(iv) Successive application Stock considered to be owned by a person by reason of or of this section is, for purposes of applying such paragraphs, considered to be actually owned by such person. Subject to the limitations provided in section and and of this section, this paragraph applies by successively considering a person as actually owning its proportionate share of stock or other equity interest directly held by an entity directly owned by the person. of this section applies after the other subparagraphs of of this section.
(v) Examples The rules of this are illustrated by the following examples:
(A) Example 1
(1) Facts A is a United States person who owns 49% of the stock of FC1, a foreign corporation that is not a PFIC, and separately all of the stock of DC, a domestic corporation that is not an S corporation. DC, in turn, owns the remaining 51% of the stock of FC1, and FC1 owns 100 shares of stock in a PFIC that is not a controlled foreign corporation (CFC) within the meaning of section . The remainder of the PFIC's shares are owned by unrelated foreign persons.
(2) Results
(i) Treatment of DC Under of this section, DC is considered to actually own 51 shares of the PFIC stock directly held by FC1 because DC directly owns 50% or more of the stock of FC1.
(ii) Treatment of A In determining whether A is considered to own 50% or more of the value of FC1 for purposes of applying and of this section to the PFIC stock held through FC1, A is considered under and of this section as indirectly owning all the stock of FC1 that DC directly owns, before the application of of this section. Because A also directly owns 49% of the stock of FC1, before the application of of this section A would be treated as owning all 100 shares of PFIC stock held by FC1. However, because 51 shares of the PFIC stock held by FC1 are indirectly owned by DC under of this section, pursuant to the limitation imposed by of this section, only the remaining 49 shares of the PFIC stock are considered as indirectly owned by A under of this section.
(B) Example 2
(1) Facts B, a United States citizen, owns 50% of the interests in Foreign Partnership, a foreign partnership treated as a partnership for U.S. federal income tax purposes, the remaining interests in which are owned by an unrelated foreign person. Foreign Partnership owns 100% of the stock of FC1 and 50% of the stock of FC2, the remainder of which is owned by an unrelated foreign person. Both FC1 and FC2 are foreign corporations that are not PFICs. FC1 and FC2 each own 50% of the stock of FC3, a foreign corporation that is a PFIC.
(2) Results Under and of this section, for purposes of determining whether B is a shareholder of FC3, B is considered to actually own 50% (50% × 100%) of the stock of FC1 and 25% (50% × 50%) of the stock of FC2. Under and of this section, B is then considered to own 25% (50% × 100% × 50%) of the stock of FC3 indirectly through FC1, and thus is a shareholder of FC3 for purposes of the PFIC provisions. Because B is considered to own less than 50% of FC2, B is not considered to own any stock of FC3 indirectly through FC2.
(C) Example 3
(1) Facts The facts are the same as in of this section (the facts in Example 2), except that B owns 40% of the interests in Foreign Partnership.
(2) Results Under and of this section, for purposes of determining whether B is a shareholder of FC3, B is considered to actually own 40% (40% × 100%) of the stock of FC1 and 20% (40% × 50%) of the stock of FC2, and thus is not considered to own 50% or more of the stock of FC1 or FC2. Under and of this section, B is not considered to own any stock of FC3 indirectly through FC1 or FC2.
(D) Example 4
(1) Facts The facts are the same as in of this section (the facts in Example 3), except that FP owns only 80% of FC1 and B also directly owns 20% of FC1.
(2) Results Under and of this section, for purposes of determining whether B is a shareholder of FC3, B is considered to own 32% (40% × 80%) of the stock of FC1 and 20% (40% × 50%) of the stock of FC2. Because B directly owns 20% of FC1, B is considered to actually own 52% (32% + 20%) of the stock of FC1 in total. Under and of this section, B is considered to own 26% (52% × 50%) of the stock of FC3 indirectly through FC1, and thus is a shareholder of FC3 for purposes of the PFIC provisions. B is not considered to own any stock of FC3 indirectly through FC2.
(c) Coordination with other PFIC rules
(1)-(2) [Reserved]
(3) Coordination with section 1296: distributions and dispositions If PFIC stock is marked to market under section for any taxable year, then, except as provided in , section and the regulations thereunder shall not apply to any distribution with respect to section stock (as defined in ), or to any disposition of such stock, for such taxable year.
(4) Coordination with mark to market rules under chapter 1 of the Internal Revenue Code other than section 1296
(i) In general If PFIC stock is marked to market for any taxable year under section or any other provision of chapter 1 of the Internal Revenue Code, other than section , regardless of whether the application of such provision is mandatory or results from an election by the taxpayer or another person, then, except as provided in of this section, section and the regulations thereunder shall not apply to any distribution with respect to such PFIC stock or to any disposition of such PFIC stock for such taxable year. See and -1(h)(3)(i) for rules regarding the automatic termination of an existing election under section or section when a taxpayer marks to market PFIC stock under section or any other provision of chapter 1 of the Internal Revenue Code.
(ii) Coordination rule
(A) Notwithstanding any provision in this section to the contrary, the rule of of this section shall apply to the first taxable year in which a United States person marks to market its PFIC stock under a provision of chapter 1 of the Internal Revenue Code, other than section , if such foreign corporation was a PFIC for any taxable year, prior to such first taxable year, during the United States person's holding period (as defined in section and ) in such stock, and for which such corporation was not treated as a QEF with respect to such United States person.
(B) For the first taxable year of a United States person that marks to market its PFIC stock under any provision of chapter 1 of the Internal Revenue Code, other than section , such United States person shall, in lieu of the rules under which the United States person marks to market, apply the rules of and as if the United States person had made an election under section for such first taxable year.
(d) [Reserved]
(e) Exempt organization as shareholder
(1) In general If the shareholder of a PFIC is an organization exempt from tax under this chapter, section and these regulations apply to such shareholder only if a dividend from the PFIC would be taxable to the organization under subchapter F.
(2) Ownership through certain tax-exempt organizations and accounts To the extent a United States person owns stock of a PFIC through an organization or account described in , that person is not treated as a shareholder with respect to the PFIC stock.
(f)-(i) [Reserved]
(j) Applicability dates
(1) and of this section apply for taxable years beginning on or after May 3, 2004.
(2) of this section is applicable on and after April 1, 1992.
(3) Except as otherwise provided in of this section, and , and , and of this section apply to taxable years of shareholders ending on or after December 31, 2013.
(4) and , , , and of this section apply for taxable years of shareholders beginning on or after January 14, 2021. A shareholder may choose to apply such paragraphs for any open taxable year beginning before January 14, 2021, provided that, with respect to a tested foreign corporation, the shareholder consistently applies such paragraphs and the provisions of (except that consistent treatment is not required with respect to ), 1.1297-2, 1.1297-4, 1.1297-6, 1.1298-2, and 1.1298-4 for such year and all subsequent years.
[T.D. 8750, 63 FR 13, Jan. 2, 1998. Redesignated by T.D. 8870, 65 FR 5779, Feb. 7, 2000, as amended by T.D. 9123, 69 FR 24073, May 3, 2004; T.D. 9806, 81 FR 95465, Dec. 28, 2016; T.D. 9936, 86 FR 4555, Jan. 15, 2021]