97-33985. General Rules for Making and Maintaining Qualified Electing Fund Elections  

  • [Federal Register Volume 63, Number 1 (Friday, January 2, 1998)]
    [Rules and Regulations]
    [Pages 6-24]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-33985]
    
    
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    DEPARTMENT OF THE TREASURY
    
    Internal Revenue Service
    
    26 CFR Parts 1 and 602
    
    [TD 8750]
    RIN 1545-AV40
    
    
    General Rules for Making and Maintaining Qualified Electing Fund 
    Elections
    
    AGENCY: Internal Revenue Service (IRS), Treasury.
    
    ACTION: Temporary and final regulations.
    
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    SUMMARY: This document contains temporary regulations that provide 
    guidance to a passive foreign investment company (PFIC) shareholder 
    that makes the election under section 1295 (section 1295 election) to 
    treat the PFIC as a qualified electing fund (QEF). This document also 
    contains temporary regulations that provide guidance for shareholders 
    that wish to make a section 1295 election that will apply on a 
    retroactive basis (retroactive election). In addition, this document 
    contains a temporary regulation that provides guidance under section 
    1291 to a PFIC shareholder that is a tax-exempt organization. Temporary 
    regulations are needed to provide taxpayers additional time to satisfy 
    certain requirements to make the section 1295 election. The text of 
    these temporary regulations also serves as the text of proposed 
    regulations set forth in the notice of proposed rulemaking on this 
    subject in the Proposed Rules section of this issue of the Federal 
    Register. In addition, this document removes Sec. 1.1291-9(i)(1) of the 
    final regulations, and amends Sec. 1.1297-3T. References to sections 
    1296 and 1297 in this document are references to sections 1296 and 1297 
    as in effect before the effective date of section 1122(a) of the Tax 
    Relief Act of 1997.
    
    DATES: These regulations are effective January 2, 1998.
        For dates of applicability, see Secs. 1.1291-1T(e)(2), 1.1293-
    1T(a)(2)(ii),
    
    [[Page 7]]
    
    1.1293-1T(c)(3), 1.1295-1T(k), 1.1295-3T(h), and Sec. 1.1297-3T(c)(3) 
    of these regulations.
    
    FOR FURTHER INFORMATION CONTACT:
    Gayle Novig, (202) 622-3840 (not a toll-free number).
    
    SUPPLEMENTARY INFORMATION:
    
    Paperwork Reduction Act
    
        These regulations are being issued without prior notice and public 
    procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). 
    For this reason, the collections of information contained in these 
    regulations have been reviewed and, pending receipt and evaluation of 
    public comments, approved by the Office of Management and Budget under 
    control number 1545-1555. Responses to these collections of information 
    are mandatory.
        An agency may not conduct or sponsor, and a person is not required 
    to respond to, a collection of information unless the collection of 
    information displays a valid control number.
        For further information concerning these collections of 
    information, and where to submit comments on the collections of 
    information and the accuracy of the estimated burden, and suggestions 
    for reducing this burden, please refer to the preamble to the cross-
    referencing notice of proposed rulemaking published in the Proposed 
    Rules section of this issue of the Federal Register.
        Books or records relating to a collection of information must be 
    retained as long as their contents may become material in the 
    administration of any internal revenue law. Generally, tax returns and 
    tax return information are confidential, as required by 26 U.S.C. 6103.
    
    Background
    
        This document contains amendments to the Income Tax Regulations (26 
    CFR part 1) under sections 1291, 1293, 1295, and 1297 of the Internal 
    Revenue Code. Sections 1291, 1293, 1295, and 1297 were added by the Tax 
    Reform Act of 1986, effective for taxable years of foreign corporations 
    beginning after December 31, 1986. As originally enacted, the section 
    1295 election was an election made by the PFIC. The Technical and 
    Miscellaneous Revenue Act of 1988 (TAMRA) amended section 1295, 
    effective for taxable years of foreign corporations beginning after 
    December 31, 1986, to change the section 1295 election to a 
    shareholder-by-shareholder election. Sections 1291, 1293, and 1297 also 
    were amended by TAMRA; sections 1293 and 1297 were further amended by 
    the Omnibus Budget Reconciliation Act of 1993. Section 1297 also was 
    amended by the Revenue Reconciliation Act of 1989 and the Small 
    Business Job Protection Act of 1996. In addition, the Taxpayer Relief 
    Act of 1997 (1997 TRA) amended section 1 to provide categories of long-
    term capital gain and the maximum rates of tax to which the categories 
    are subject. In certain cases, this amendment affects the calculation 
    of net capital gain for purposes of section 1293.
        Guidance for making the election under section 1295 was first 
    provided on March 2, 1988, in the Federal Register (53 FR 6770), with 
    the publication of temporary regulations (TD 8178) relating to the 
    section 1295 election. These temporary regulations provided guidance to 
    PFICs making the section 1295 election and therefore became obsolete 
    with the 1988 amendment to section 1295. The Internal Revenue Service 
    published Notice 88-125, 1988-2 C.B. 535, to provide guidance to 
    shareholders making the section 1295 election under section 1295, as 
    amended. Notice 88-125 was an administrative pronouncement, as that 
    term is used in Sec. 1.6661-3(b)(2) of the Income Tax Regulations, and 
    taxpayers could rely on Notice 88-125 to the same extent as a revenue 
    ruling or a revenue procedure. Notice 88-125 stated that taxpayers 
    could rely on the notice until regulations were published, and that 
    those regulations would be effective for taxable years beginning after 
    December 31, 1986.
        Proposed regulations published April 1, 1992 (57 FR 11024), provide 
    a general rule regarding the application of section 1291 to a PFIC 
    shareholder that is an organization exempt from tax under chapter 1. In 
    addition, these proposed regulations provide general rules regarding 
    the application of section 1293 and special rules regarding the 
    application of section 1295, including rules with respect to transfers 
    of PFIC stock subject to a section 1295 election. Proposed regulation 
    Sec. 1.1295-2, published December 24, 1996 (61 FR 67752), permits 
    certain shareholders to make a special section 1295 election with 
    respect to certain preferred stock. Proposed regulation Sec. 1.1293-2, 
    also published December 24, 1996 (61 FR 67752), provides the special 
    inclusion rules applicable to shareholders that make the special 
    section 1295 election with respect to their preferred stock.
        Temporary regulations Sec. 1.1297-3T, published March 2, 1988 (53 
    FR 6770), provides guidance for making the deemed sale election under 
    section 1297(b)(1) to purge the PFIC taint from stock of a foreign 
    corporation that is treated as stock of a PFIC under section 
    1297(b)(1). Section 1.1291-9(i)(1) of the regulations, published 
    December 27, 1996 (61 FR 68149), provides that the deemed dividend 
    election rules of Sec. 1.1291-9 do not apply to elections made under 
    section 1297(b)(1). A similar rule had been provided in temporary 
    regulations published April 1, 1992 (52 FR 10992). The temporary 
    regulations, which had been effective April 1, 1992, sunset April 1, 
    1995.
        Treasury and the Service believe that immediate guidance in the 
    form of temporary regulations regarding the section 1295 election is 
    necessary. First, the regulations provide significant new QEF election 
    procedures that are beneficial to taxpayers. For example, the 
    regulations provide procedures for both retroactive and protective 
    elections. The benefits provided by these changes may be jeopardized, 
    or simply unavailable (as a result of closed taxable years), if 
    taxpayers cannot immediately rely on them. Second, although the 
    regulations embody guidance already provided in Notice 88-125, the 
    regulations significantly reduce the burden for making and maintaining 
    the election and clarify, most often in favor of taxpayers, significant 
    ambiguities left by the Notice. Treasury and the Service believe that 
    the benefits of immediate guidance significantly outweigh any advantage 
    obtained by issuing the regulations in proposed form only because these 
    temporary regulations prevent prejudice to taxpayers as a consequence 
    of a further delay in guidance and because they benefit taxpayers by 
    providing additional time to make certain elections. Finally, the 
    temporary regulations provide guidance concerning the manner in which 
    section 1(h), which was added to the Code by 1997 TRA, effective for 
    taxable years ending after May 6, 1997, applies to determine the net 
    capital gain of the PFIC and the QEF shareholder's pro rata share of 
    the net capital gain. Therefore, it would be impractical and contrary 
    to public interest to issue this Treasury decision with prior notice 
    under section 553(b) of title 5 of the United States Code.
    
    Explanation of Provisions
    
        A foreign corporation is a passive foreign investment company 
    (PFIC) for a taxable year if the foreign corporation satisfies either 
    the income or asset test of section 1296(a) for that year. A foreign 
    corporation is a PFIC under the income test if 75 percent or more of 
    its gross income for its taxable year is passive, or investment-type, 
    income.
    
    [[Page 8]]
    
    Alternatively, under the asset test, a foreign corporation is a PFIC if 
    50 percent or more of the average fair market value of its assets 
    during its taxable year are assets that produce or are held for the 
    production of passive income. A shareholder of a foreign corporation 
    that qualifies as a PFIC is subject to the interest charge regime of 
    section 1291 with respect to certain distributions by the PFIC and 
    certain dispositions of its stock. Generally, a shareholder may avoid 
    the interest charge regime by making a timely election under section 
    1295 to treat a PFIC as a QEF, in which case the shareholder will be 
    taxable annually under section 1293 on its pro rata shares of the 
    ordinary ordinary earnings and net capital gain of the PFIC. Under 
    section 1295(a), a section 1295 election will apply with respect to the 
    PFIC if the PFIC complies with requirements prescribed by the Secretary 
    for purposes of determining the ordinary earnings and net capital gain 
    of the PFIC and otherwise carrying out the purposes of the PFIC 
    provisions.
        Section 1295(b)(1) provides that a shareholder may make a section 
    1295 election with respect to a PFIC for any taxable year of the 
    shareholder (shareholder election year). Once made, the election will 
    apply to that year and to all subsequent years of the shareholder 
    unless revoked with the consent of the Secretary. Section 1295(b)(2) 
    prescribes the time for making the election. In general, for the 
    section 1295 election to be applicable to a taxable year, the 
    shareholder must make the election by the due date, as extended under 
    section 6081, for the shareholder's return for that taxable year. 
    However, to the extent provided in regulations, a section 1295 election 
    may be made for a taxable year after the time required if the 
    shareholder failed to make a timely election because the shareholder 
    reasonably believed that the foreign corporation was not a PFIC.
        This document provides temporary regulations that interpret 
    sections 1291, 1293, 1295, and 1297. In particular, the temporary 
    regulations incorporate the rules of Notice 88-125, with certain 
    modifications. The temporary regulations also clarify the rules of the 
    notice and proposed regulation Sec. 1.1295-1(b) with respect to the 
    application of section 1295 to options, lapse of PFIC status, cessation 
    of ownership of PFIC stock, transfer of stock subject to a section 1295 
    election to a pass through entity, and tax-exempt organizations. The 
    temporary regulations also provide rules regarding invalidation, 
    termination and revocation of a section 1295 election. In addition, the 
    temporary regulations introduce rules for making a retroactive 
    election. Finally, the temporary regulations provide guidance 
    concerning the application of the deemed dividend election rules to 
    elections under section 1297(b)(1).
    
    1. Rules of Notice 88-125
    
        Temporary regulation Sec. 1.1295-1T(c) through (g) adopts the rules 
    provided in Notice 88-125, with certain modifications. These 
    modifications reflect certain comments received with respect to the 
    notice.
        Notice 88-125 describes the requirements a shareholder must satisfy 
    to make and maintain a section 1295 election. In particular, each year 
    the shareholder must file Form 8621 with its income tax return and 
    attach a PFIC Annual Information Statement (described below). In the 
    year of election, the shareholder also must attach a Shareholder 
    Election Statement. Notice 88-125 requires satisfaction of the election 
    and annual reporting requirements with respect to each PFIC for which 
    the shareholder makes the section 1295 election.
        Commenters indicated that these election and annual reporting 
    requirements are burdensome, especially if the shareholder is making 
    the election with respect to many foreign corporations. In response to 
    the comments, the temporary regulations change these requirements to 
    reduce the burden on the electing shareholder. First, the temporary 
    regulations eliminate the need to file a Shareholder Election 
    Statement. Second, the temporary regulations eliminate the need to file 
    a copy of the PFIC Annual Information Statement with Form 8621 and 
    require instead that the shareholder retain a copy of the PFIC Annual 
    Information Statement for production upon examination by the Service. 
    Thus, to make and maintain a section 1295 election, the shareholder 
    need only file Form 8621 for each PFIC on an annual basis and maintain 
    records to support the information entered on that form.
        Notice 88-125 imposes certain requirements on PFICs and on 
    intermediaries through which shareholders own PFIC stock. The notice 
    requires a PFIC to provide its shareholders with a PFIC Annual 
    Information Statement containing information necessary to determine 
    each shareholder's yearly income inclusion. In the case of indirect 
    ownership of PFIC stock, a nominee or shareholder of record that has 
    received a PFIC Annual Information Statement may issue its own 
    statement to the shareholder containing the relevant information in 
    lieu of passing on the PFIC Annual Information Statement.
        The temporary regulations allow PFICs and intermediaries more 
    flexibility in fulfilling these requirements. A PFIC that owns directly 
    or indirectly any shares of one or more PFICs may provide its 
    shareholders with a PFIC Annual Information Statement in which it 
    combines the required information and representations of the PFIC and 
    any lower tier PFICs. The PFIC may use any format for a combined PFIC 
    Annual Information Statement provided the required information and 
    representations are clearly presented and identified with the 
    respective corporations. Similarly, an intermediary through which a 
    shareholder indirectly holds stock in more than one PFIC may provide 
    the shareholder a combined statement based on multiple PFIC Annual 
    Information Statements. Comments are requested concerning alternative 
    reporting methods that could further reduce the burden on electing 
    shareholders.
        As provided in Notice 88-125, the PFIC Annual Information Statement 
    must include the shareholder's pro rata shares of the ordinary earnings 
    and net capital gain of the PFIC for the PFIC's taxable year or 
    information that will enable the shareholder to calculate its pro rata 
    shares. In addition, the PFIC Annual Information Statement must contain 
    information about distributions to shareholders and a statement that 
    the PFIC will permit the shareholder to inspect and copy its permanent 
    books of account, records, and other documents of the PFIC necessary to 
    determine that the ordinary earnings and net capital gain of the PFIC 
    have been calculated according to federal income tax accounting 
    principles. Commenters indicated that it was unclear in the notice 
    whether a shareholder, rather than the PFIC, could calculate the 
    requisite federal income tax information with respect to a PFIC that 
    did not keep its books and records according to U.S. Tax accounting 
    rules. In response to the comments, the temporary regulations clarify 
    that a shareholder may obtain the books, records and other documents of 
    the foreign corporation necessary for the shareholder to determine the 
    correct earnings and profits and net capital gain of the PFIC according 
    to federal income tax principles and calculate the shareholder's pro 
    rata shares of the PFIC's ordinary earnings and net capital gain. The 
    temporary regulations provide that, in that case, the PFIC must include 
    a statement in its PFIC Annual Information Statement that it has 
    permitted the shareholder to examine the PFIC's books of account, 
    records,
    
    [[Page 9]]
    
    and other documents necessary for the shareholder to calculate the 
    amounts of ordinary earnings and net capital gain.
        Notice 88-125 provides that a domestic partnership makes the 
    section 1295 election rather than each individual partner that is an 
    indirect shareholder of the PFIC by reason of the partner's interest in 
    the partnership. The notice also provides that an S corporation makes 
    the section 1295 election. This entity-level election in the case of 
    domestic partnerships and S corporations reflects the view that 
    multiple elections by the partners or S corporation shareholders would 
    be more burdensome than the single entity-level election. The temporary 
    regulations adopt the rules of the notice with respect to elections by 
    domestic pass through entities, clarifying that the section 1295 
    election with respect to stock owned directly or indirectly by a 
    domestic trust or estate generally is also made at the entity level. 
    The temporary regulations also adopt the rules of the notice with 
    respect to interests held by foreign pass through entities. Interest 
    holder in foreign partnerships, trusts, and estates must make the 
    section 1295 election with respect to their indirect interests in PFICs 
    held through those entities; foreign entities may not make the section 
    1295 election.
        Partnerships, S corporations, trusts, and estates are referred to 
    as pass through entities in the temporary regulations. The regulations 
    clarify that an election made by a domestic pass through entity is made 
    in the pass through entity's capacity as a shareholder, as specially 
    defined in temporary regulation Sec. 1.1295-1T(j) for purposes of the 
    section 1295 election provisions. Thus, the domestic pass through 
    entity takes the section 1293 inclusion into account in its return for 
    the year in which or with which the PFIC's taxable year ends, and the 
    interest holders in the pass through entity take the section 1293 
    inclusion into account under the rules applicable to inclusions of 
    income from the pass through entity. In addition, the temporary 
    regulations clarify that if an interest holder in a domestic pass 
    through entity transfers stock of a PFIC subject to a section 1295 
    election to the pass through entity, the section 1295 election 
    continues to apply to the interest holder whether or not the pass 
    through entity makes the section 1295 election.
        Similarly, the temporary regulations clarify the effect of the 
    termination under section 708(b) of a partnership on a section 1295 
    election made by the partnership. Section 1.1295-1T(b)(3)(iii) provides 
    that, notwithstanding the termination of section 1295 election when a 
    partnership terminates, the partners of the former partnership that are 
    partners of the new partnership are bound by the section 1295 election 
    made by the former partnership whether or not the new partnership makes 
    a section 1295 election.
        Notice 88-125 does not provide any special rules concerning tax-
    exempt entities. As provided in proposed regulations under section 1291 
    (see Regulation Project INTL-656-87, published at 1992-1 C.B. 1124), 
    section 1291 and the regulations under section 1291 apply to a tax-
    exempt organization that is a shareholder of a PFIC that is not a 
    pedigreed QEF, within the meaning of Sec. 1.1291-9(j)(2)(ii), only if a 
    dividend from the PFIC would be taxable to the organization under 
    subchapter F. Section 1.1291-1T(e) of these temporary regulations 
    provides the same rule. To prevent such a tax-exempt organization from 
    being subject to an unnecessary section 1295 election that may have 
    adverse consequences to the tax-exempt entity (e.g., an excise tax on 
    gross investment income of a private foundation that arises as a 
    consequence of a section 1295 election), the temporary regulations 
    provide a rule that precludes a tax-exempt entity that is not taxable 
    with respect to dividends from a PFIC from making a section 1295 
    election with respect to that PFIC or from being subject to a pass 
    through entity level election.
        Commenters indicated that Notice 88-125 is unclear about which 
    taxable year of the PFIC is the first taxable year to which the section 
    1295 election applies. Temporary regulation Sec. 1.1295-1T(c)(2) 
    clarifies that the section 1295 election is effective with respect to 
    the taxable year of the foreign corporation that ends during the 
    shareholder's election year. Because certain shareholders may have 
    misinterpreted Notice 88-125, the Commissioner will respect a section 
    1295 election made prior to February 2, 1998 that was intended to be 
    effective for the taxable year of the PFIC that began during the 
    shareholder's election year provided that it is clear from all the 
    facts and circumstances that the shareholder intended the election to 
    be effective for that taxable year of the foreign corporation. For 
    example, a calendar year shareholder that made the section 1295 
    election in its 1995 return with respect to a foreign corporation whose 
    taxable year began in 1995 and ended in 1996, with the intention that 
    the election first apply to the foreign corporation's taxable year 
    ended in 1996, will be treated as having made a valid section 1295 
    election with respect to that year.
    
    2. Additional Clarifications
    
    A. Options
        Options with respect to PFIC stock present unique problems under 
    section 1295. Section 1297(a)(4) provides that, under regulations, an 
    option to acquire stock may be treated as ownership of stock.
        Proposed regulations under section 1291 (see Regulation Project 
    INTL-656-87, published in 1992-1 C.B. 1124) provide that options are 
    treated like stock for purposes of section 1291. Under proposed 
    regulation Sec. 1.1291-1(d), an option is considered to be stock of a 
    PFIC that is not a pedigreed QEF for purposes of applying section 1291 
    to a disposition of the option, unless the holder of the actual stock 
    which is subject to the option is currently including income from the 
    stock under section 1293. Under proposed regulation Sec. 1.1291-
    1(h)(3), the holding period of stock acquired upon exercise of an 
    option treated as stock under Sec. 1.1291-1(d) includes the period the 
    option was held. These rules recognize that the value of an option is 
    linked to the value of the underlying stock and therefore such an 
    option should be subject to the PFIC rules.
        Because of the potential for application of section 1291 to options 
    or stock acquired upon exercise of options, some option holders have 
    requested that regulations provide rules for making a section 1295 
    election with respect to an option. Application of a section 1295 
    election and the section 1293 current inclusion regime to options would 
    present serious computational issues and would be administratively 
    burdensome. Therefore, the temporary regulations continue the rule that 
    any shareholder's section 1295 election with respect to stock of a PFIC 
    does not apply to options to acquire stock of the PFIC and that an 
    option holder may not make a section 1295 election with respect to the 
    optioned stock. Accordingly, if a shareholder of stock subject to a 
    section 1295 election exercises an option to purchase additional shares 
    of stock of that PFIC, the stock received will be subject to the 
    section 1295 election made by the shareholder, but, because of the 
    rules of proposed regulation Sec. 1.1291-1(h)(3), the stock may be 
    treated as stock of an unpedigreed QEF.
        Comments are requested concerning the option rule. In particular, 
    comments are requested that identify any administratively feasible 
    mechanisms that would permit a shareholder to make a section 1295 
    election that will apply to options.
    
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    B. Section 1295 Election Made in a Joint Return
        Section 1.1295-1T(b)(4) of the temporary regulations clarifies the 
    application of a section 1295 election made in a joint return within 
    the meaning of section 6013. The temporary regulations provide that a 
    section 1295 election made in a joint return will be treated as having 
    been made by both spouses that join in the filing of that return.
    C. Lapse in PFIC Status or in Ownership
        Section 1.1295-1T(c)(2) of the temporary regulations clarifies the 
    status of a shareholder's section 1295 election with respect to a 
    foreign corporation after the foreign corporation ceases to be a PFIC 
    and a QEF, or after the shareholder ceases to be a shareholder of the 
    PFIC. In general, once a section 1295 election is made with respect to 
    a corporation, it remains in effect, although not applicable, during 
    those years that the foreign corporation is not a PFIC. Therefore, if 
    the corporation requalifies as a PFIC, the section 1295 election 
    previously made is still valid, and the shareholder is required to 
    satisfy the requirements of that election. Furthermore, as indicated in 
    H.R. No. 795, 100th Cong., 2d Sess., at 567 (1988), an election remains 
    in effect with respect to a shareholder, although dormant, after a 
    shareholder disposes of its entire interest in the PFIC. Upon the 
    shareholder's reacquisition of a interest in the PFIC, the section 1295 
    election will apply to the newly acquired stock.
    D. Invalidation, Termination, and Revocation of Section 1295 Elections
        As provided in temporary regulation Sec. 1.1295-T(i)(1), the 
    Commissioner has discretion to invalidate or terminate a section 1295 
    election if the shareholder or the QEF fails to satisfy the section 
    1295 election requirements. However, intentional failure to satisfy the 
    section 1295 election requirements will not automatically result in 
    invalidation or termination. If the Commissioner invalidates a section 
    1295 election, the shareholder will be treated as if it never made a 
    section 1295 election with respect to the PFIC. If the Commissioner 
    terminates a section 1295 election for a taxable year, the section 1295 
    election will be valid for all taxable years before that year, but 
    inapplicable to that year and all subsequent taxable years.
        Once a shareholder makes a section 1295 election, the shareholder 
    may revoke its section 1295 election only with the consent of the 
    Commissioner. Temporary regulation Sec. 1.1295-1T(i)(2) provides the 
    rules for requesting consent to revoke an election.
        The effects of an invalidation, termination, or revocation of a 
    section 1295 are provided in Sec. 1.1295-1T(i)(3) of the temporary 
    regulations. In the Commissioner's discretion, stock of a foreign 
    corporation, with respect to which the section 1295 election is 
    invalidated, terminated, or revoked will be treated as sold as of the 
    last day of the PFIC's last taxable year as a QEF. The Commissioner 
    also has the discretion to impose any other terms and conditions that 
    the Commissioner deems necessary to ensure a shareholder's compliance 
    with sections 1291 through 1297. In addition, revocation will terminate 
    all section 1294 elections.
        Section 1.1295-1T(i)(4) of the temporary regulations permits a 
    shareholder to make another section 1295 election with respect to the 
    PFIC after the fifth taxable year following the invalidation, 
    termination, or revocation. However, the shareholder may request 
    consent to make the section 1295 election for an earlier taxable year.
    
    3. Section 1293
    
        The temporary regulations provide guidance to PFICs concerning the 
    application of section 1(h) to section 1293 and the calculation of net 
    capital gain. Section 1.1293-1T(a)(2) of the temporary regulations 
    provides three alternatives for a QEF to calculate and report net 
    capital gain. First, the PFIC may calculate and report to its share-
    holders the amount of each category of long-term capital gain provided 
    in section 1(h). Alternatively, the PFIC may determine and report a 
    single amount of net capital gain, stating that that amount of long-
    term capital gain is subject to the highest capital gain rate of tax 
    applicable to the shareholder. Under the third option, the PFIC may 
    treat the total of its earnings and profits for the taxable year as 
    ordinary earnings. The provision of these options is intended to 
    simplify compliance with the requirements of sections 1293 and 1295. It 
    is anticipated that, without providing these options, some PFICs would 
    not be willing or able to calculate the categories of net capital gain 
    required by section 1(h) and therefore would not provide the 
    information necessary for a QEF shareholder to maintain a valid section 
    1295 election. A shareholder that has access to information necessary 
    to calculate its pro rata share of the PFIC's ordinary earnings and net 
    capital gain may also use any of these options. The Service requests 
    comments about how net capital gain should be calculated, especially in 
    light of the 1997 Act changes to section 1.
        The temporary regulations under section 1293 also clarify the 
    application of the current inclusion rules of section 1293 to interests 
    in a QEF held through a domestic pass through entity. The temporary 
    regulations provide generally that a U.S. person that is a shareholder 
    of the QEF by reason of an interest in a domestic pass through entity 
    takes into account its pro rata shares of the ordinary earnings and net 
    capital gain of the QEF attributable to the QEF shares held by the pass 
    through entity according to the general rules applicable to inclusions 
    of income from the pass through entity.
    
    4. Exempt organizations subject to section 1291
    
        As stated above, the temporary regulations include the rule of 
    proposed regulation Sec. 1.1291-1(e). Under temporary regulation 
    Sec. 1.1291-1T(e), if the shareholder of a PFIC is an organization 
    exempt from tax under this chapter (including an Individual Retirement 
    Account (IRA)), section 1291 and these regulations apply to such 
    shareholder only if a dividend from the PFIC would be taxable to the 
    organization under subchapter F.
    
    5. Effective Dates of Temporary Regulations Secs. 1.1291-1T(e), 1.1293-
    1T(a)(2), 1.1293-1T(c) and 1.1295-1T
    
        As stated above, Notice 88-125 provides that the notice's rules 
    will be provided in regulations applicable to taxable years beginning 
    after 1986. However, because the temporary regulations do not adopt the 
    rules of Notice 88-125 in their entirety, the temporary regulations 
    will not be retroactively applied. Therefore, Sec. 1.1295-1T(c) through 
    (j) will apply to taxable years of shareholders beginning after 
    December 31, 1997. As provided in Sec. 1.1295-1T(h), the Internal 
    Revenue Service will honor taxpayer reliance on Notice 88-125 for 
    taxable years beginning after December 31, 1986, and before January 1, 
    1998. Thus, if a person made a valid section 1295 election under the 
    rules of Notice 88-125 for taxable years beginning before January 1, 
    1998, and, for those taxable years, complied with the rules of the 
    notice relating to maintaining that election, the election remains in 
    effect for taxable years beginning after December 31, 1997. However, 
    elections made under Notice 88-125, as well as elections made under 
    these temporary regulations, must be maintained as provided in the 
    temporary regulations.
        Temporary regulation Sec. 1.1291-1T(e) will apply on and after 
    April 1, 1992.
    
    [[Page 11]]
    
    Section 1.1293-1T(a)(2) of the temporary regulations will apply to 
    sales by QEFs during their taxable years ending on or after May 7, 
    1997. Temporary regulation Secs. 1.1293-1T(c) and 1.1295-1T(b)(2)(iii), 
    (b)(3), and (b)(4) will apply to taxable years of shareholders 
    beginning after December 31, 1997.
    
    6. Retroactive Section 1295 Elections
    
    a. In General
        Section 1295(b)(2) provides that, to the extent provided in 
    regulations, a shareholder may make a section 1295 election with 
    respect to a foreign corporation later than the election due date if 
    the shareholder failed to make a timely section 1295 election because 
    the shareholder reasonably believed that the foreign corporation was 
    not a PFIC. In temporary regulation Sec. 1.1295-3T, Treasury and the 
    Service interpret section 1295(b)(2) to permit a shareholder of a PFIC 
    to make a retroactive election in certain limited circumstances where 
    the shareholder possessed reasonable belief that the corporation was 
    not a PFIC or the shareholder demonstrates that it reasonably relied on 
    the advice of a qualified tax professional.
        As described below, the temporary regulations set forth two 
    distinct sets of rules for making a retroactive election. Under the 
    first set of rules, a shareholder of a PFIC that meets certain 
    conditions may make a retroactive election without obtaining the 
    consent of the Commissioner (protective regime). A shareholder may make 
    a retroactive election under the protective regime only if the 
    shareholder possessed reasonable belief as of the election due date 
    that the foreign corporation was not a PFIC. A shareholder of a PFIC 
    may make a retroactive election under the protective regime even after 
    the issue of PFIC status has been raised in an audit by the Service.
        Under the second set of rules, a shareholder may make a retroactive 
    election only after obtaining the Commissioner's consent (consent 
    regime). To make a retroactive election under the consent regime, the 
    shareholder must demonstrate, to the satisfaction of the Commissioner, 
    that the shareholder's failure to make a timely section 1295 election 
    resulted from the shareholder's reasonable reliance on the advice of a 
    qualified tax professional. A shareholder of a PFIC may not make a 
    retroactive election under the consent regime unless the shareholder 
    files a request for consent before the issue of PFIC status is raised 
    on audit.
        The temporary regulations provide the exclusive rules for making a 
    retroactive election. Thus, a shareholder that does not satisfy the 
    requirements of the temporary regulations may not seek relief under any 
    other provision of the law, including Sec. 301.9100 regulations. 
    Although such a shareholder may not make a retroactive election, the 
    shareholder may be able to attain certain benefits associated with a 
    retroactive election by making a section 1295 election for the current 
    year together with a purging election under section 1291(d)(2).
    b. Protective Regime
        A shareholder that satisfies the requirements of the protective 
    regime may make a retroactive election under the rules of temporary 
    regulation Sec. 1.1295-3T(c) through (e) without obtaining the 
    Commissioner's consent. This regime requires that the shareholder 
    possess reasonable belief, contemporaneous with the election due date, 
    that the foreign corporation was not a PFIC.
        The legislative history of section 1295 suggests that in certain 
    circumstances a shareholder that reasonably believed that a foreign 
    corporation was not a PFIC for a taxable year (e.g., based on a 
    reasonable valuation of the corporation's assets) may make a 
    retroactive election if the Service determines, upon examination, that 
    the corporation was in fact a PFIC for such taxable year (e.g., based 
    on the Service's valuation of the corporation's assets for the taxable 
    year). Consistent with the legislative history, temporary regulation 
    Sec. 1.1295-3T(c) through (e) permits a shareholder to make a 
    retroactive election for a taxable year of the shareholder (retroactive 
    election year), even if the Service raises the PFIC status of the 
    corporation upon audit. Although the shareholder need not request the 
    Service's consent to make a retroactive election under this regime, the 
    shareholder must satisfy certain conditions to make a retroactive 
    election.
        First, except for certain small shareholders, the shareholder must 
    be able to establish that the shareholder reasonably believed, within 
    the meaning of temporary regulation Sec. 1.1295-3T(d), as of the 
    election due date, that the foreign corporation was not a PFIC. 
    Temporary regulation Sec. 1.1295-3T(d) interprets the reasonable belief 
    standard to require an actual determination by the shareholder, based 
    on a good faith application of the law, that a foreign corporation was 
    not a PFIC. Therefore, to satisfy the reasonable belief requirement, 
    the shareholder must know and understand the PFIC provisions, and must 
    make a good faith effort to apply the income and asset tests of section 
    1296 to determine whether the foreign corporation is a PFIC.
        Except for certain small shareholders, a shareholder must file a 
    single Protective Statement pursuant to temporary regulation 
    Sec. 1.1295-3T(c) that applies to a taxable year to preserve the 
    shareholder's ability to make a retroactive election with respect to 
    such taxable year of the shareholder and subsequent taxable years. The 
    Protective Statement must contain information describing the basis for 
    the shareholder's conclusion as of the election due date that the 
    foreign corporation was not a PFIC for its taxable year that ended in 
    the first taxable year of the shareholder for which the Protective 
    Statement applies. As part of the Protective Statement, the shareholder 
    must extend the periods of limitations for the assessment of taxes 
    determined under sections 1291 through 1297 (PFIC related taxes) for 
    all taxable years to which the Protective Statement will apply, as 
    provided in Sec. 1.1295-3T(c)(4) of the temporary regulations. The 
    shareholder also must include certain additional information in the 
    Protective Statement. A special transition rule permits shareholders to 
    use the protective regime for taxable years ending prior to January 2, 
    1998 provided the periods of limitations on the assessment of taxes for 
    such years have not expired.
        Temporary regulation Sec. 1.1295-3T(e) provides special rules for 
    certain small shareholders. A shareholder that qualifies under 
    Sec. 1.1295-3T(e) for a taxable year will not be required to satisfy 
    the reasonable belief requirement or file a Protective Statement to 
    preserve the shareholder's ability to make a retroactive election with 
    respect to such year (a qualified shareholder).
        Except as provided below, a shareholder is a qualified shareholder 
    only if the shareholder owns, directly, indirectly or constructively, 
    less than two percent of the vote and value of each class of stock of 
    the foreign corporation during such year, and has not filed a 
    Protective Statement that applies to an earlier year included in the 
    shareholder's holding period of stock of the foreign corporation. In 
    addition, for the special rule to apply to a taxable year of the 
    shareholder, the foreign corporation or its U.S. counsel must have 
    indicated in a corporate filing, shareholder mailing or similar 
    document that the foreign corporation reasonably believed that it was 
    not a PFIC for the taxable year of the foreign
    
    [[Page 12]]
    
    corporation that ended with or within such taxable year of the 
    shareholder. However, no shareholder will be a qualified shareholder if 
    the shareholder knew that the corporation was in fact a PFIC or knew or 
    had reason to know that a corporate filing relating to the 
    corporation's PFIC status was inaccurate. For this purpose, a 
    shareholder will be treated as knowing that the corporation was in fact 
    a PFIC if the principal activity of the foreign corporation is owning 
    or trading a diversified portfolio of stock, securities, or other 
    financial contracts. A qualified shareholder that makes a valid 
    retroactive election in its earliest open taxable year in which the 
    foreign corporation is a PFIC may, subject to certain conditions, be 
    treated as a shareholder of a pedigreed QEF even if the period of 
    limitations for the assessment of taxes for an earlier taxable year in 
    which the corporation qualified as a PFIC has expired.
    c. Consent Regime
        Certain taxpayers have urged the Service to interpret the 
    reasonable belief requirement of section 1295(b)(2) to allow a 
    shareholder to make a retroactive election if the shareholder or its 
    tax adviser did not know or properly apply the PFIC rules. In 
    particular, certain taxpayers have recommended adoption of the 
    reasonable action and good faith standard of Sec. 301.9100 regulations 
    for demonstrating reasonable belief.
        Treasury and the Service recognize that the PFIC rules are complex 
    and, in some cases, difficult for shareholders to apply. Accordingly, 
    the temporary regulations provide that, in certain limited 
    circumstances, a shareholder may obtain the Commissioner's consent to 
    make a retroactive election, even if the shareholder failed to know or 
    properly apply the PFIC rules in the earlier year. Under temporary 
    regulation Sec. 1.1295-3T(f), a shareholder that reasonably relied on 
    the advice of a qualified tax professional may request consent to make 
    a retroactive election.
        In response to taxpayer comments, Treasury and the Service have 
    incorporated into the consent regime certain rules set forth in 
    Sec. 301.9100 regulations. As described below, temporary regulation 
    Sec. 1.1295-3T(f)(1) and (4), respectively, require the shareholder to 
    have reasonably relied on a qualified tax professional and to document 
    such reliance. The Service will not grant consent under this regime if 
    doing so would prejudice the interests of the government by placing the 
    shareholder in a position more favorable then if the shareholder had 
    made the section 1295 election on a timely basis. The temporary 
    regulations provide that in certain cases the interests of the 
    government may be preserved by a closing agreement between the Service 
    and the shareholder requiring the shareholder to make a payment to the 
    government that compensates the government for amounts that would have 
    been due in respect of closed years affected by the retroactive 
    election.
        Under temporary regulation Sec. 1.1295-3T(f)(2), the Service will 
    treat a shareholder as having reasonably relied on a qualified tax 
    professional (including an employee of the shareholder), within the 
    meaning of the Sec. 301.9100 regulations, if the qualified tax 
    professional failed to identify the corporation as a PFIC or failed to 
    advise the shareholder of the consequences of making, or failing to 
    make, a section 1295 election. Therefore, if a qualified tax 
    professional, due to ignorance of the law or negligence, failed to 
    identify the corporation as a PFIC or failed to advise the shareholder 
    of the consequences of making, or failing to make, the section 1295 
    election, the Commissioner may consent to a retroactive election. 
    However, in no event will the Commissioner consent to a retroactive 
    election if, prior to the application for such consent, the Service has 
    raised the PFIC status of the foreign corporation in an audit of the 
    retroactive election year or any subsequent year. Furthermore, a 
    shareholder may not disregard knowledge that the corporation was a PFIC 
    or advice or knowledge relating to the tax consequences of owning stock 
    of a PFIC and then request relief under this regime.
    d. Who Makes a Retroactive Election and Who Satisfies the Requirements 
    of the Protective or Consent Regime
        Temporary regulation Sec. 1.1295-3T adopts the rules of temporary 
    regulation Sec. 1.1295-1T(d), relating to who may make a section 1295 
    election, for purposes of determining the appropriate person to satisfy 
    the requirements of the protective or consent regime and to make a 
    retroactive election. Consistent with these rules, temporary regulation 
    Sec. 1.1295-3T(c)(3) provides that the person that executes and files 
    the Protective Statement under the protective regime is the person that 
    makes the section 1295 election, as provided in Sec. 1.1295-1T(d). 
    Temporary regulation Sec. 1.1295-3T(f)(4)(vi) sets forth a similar rule 
    for requests for consent under the consent regime. In addition, 
    temporary regulation Sec. 1.1295-3T(g)(3) provides for an entity-level 
    retroactive election in the case of domestic partnerships, S 
    corporations, domestic nongrantor trusts, and domestic estates that own 
    stock of a PFIC, and a partner or beneficiary-level retroactive 
    election in the case of foreign partnerships, foreign trusts, domestic 
    grantor trusts, and foreign estates that own stock of a PFIC.
        The Service welcomes comments concerning the benefits of requiring 
    certain entities, rather than their interest holders, to satisfy the 
    requirements under the protective and consent regimes. In particular, 
    comments are requested concerning whether requiring S corporations, 
    domestic nongrantor trusts, and domestic estates to satisfy the 
    requirements of the protective regime at the entity-level is 
    inappropriate.
    e. Making a Retroactive Election
        A shareholder that has satisfied the requirements of the protective 
    regime or has obtained the consent of the Commissioner under the 
    consent regime must comply with the rules in temporary regulation 
    Sec. 1.1295-3T(g) for making a retroactive election. In general, the 
    shareholder must file an amended return for the retroactive election 
    year in which the shareholder complies with the requirements for making 
    a section 1295 election, report its pro rata shares of the ordinary 
    earnings and net capital gain of the foreign corporation for that year 
    (section 1293 inclusion), if any, and pay any taxes resulting from the 
    redetermination of its income and any applicable section 6621 interest. 
    The shareholder also must file amended returns for the taxable years 
    that follow the retroactive election year in which the foreign 
    corporation is a PFIC and a QEF to report the section 1293 inclusion 
    for each of these years, and pay the resulting tax and section 6621 
    interest. If the shareholder's taxable year in which the corporation 
    first qualified as a PFIC, or the retroactive election year or any 
    subsequent taxable years, are closed for the assessment of PFIC related 
    taxes (i.e., in certain cases where the shareholder is a qualified 
    shareholder or the shareholder has obtained the consent of the 
    Commissioner to file a retroactive election), the shareholder must file 
    amended returns to report section 1293 inclusions in all open affected 
    years beginning with the first taxable year open for the assessment of 
    tax on such amounts.
    
    7. Removal of Sec. 1.1291-9(i)(1)
    
        Section 1121 of the 1997 TRA amends section 1296, adding section 
    1296(e). Section 1296(e) provides that after December 31, 1997, a 
    controlled foreign corporation (as defined in section
    
    [[Page 13]]
    
    957(a)) (CFC) will not be treated as a PFIC with respect to a U.S. 
    shareholder (as defined in section 951(b)) of the CFC. After a 
    shareholder ceases to qualify for this exception, because the 
    shareholder creases to be subject to subpart F, generally the 
    shareholder will have a new holding period for purposes of the PFIC 
    provisions pursuant to section 1296(e)(3)(A). However, pursuant to 
    section 1296(e)(3)(B), if the foreign corporation was a nonqualified 
    fund before the shareholder qualified for this exception, and the 
    shareholder did not make the section 1297(b)(1) election to purge the 
    stock of its PFIC taint, the shareholder will not get a new holding 
    period when it ceases to qualify for the exception for U.S. 
    shareholders of CFCs. Congress, in the Conference Report to the 1997 
    TRA, H.R. Rept. 105-220, 105th Congress, 1st session, at 625, stated 
    that ``the stock held by such shareholder continues to be treated as 
    PFIC stock unless the shareholder makes an election to pay tax and an 
    interest charge with respect to the unrealized appreciation in the 
    stock or the accumulated earnings of the corporation.'' Congress thus 
    indicated its intent that a shareholder may apply the rules of either 
    section 1291(d)(2)(A), the deemed sale election, or section 
    1291(d)(2)(B), the deemed dividend election, when making the section 
    1297(b)(1) election to purge a former PFIC of its PFIC taint. In order 
    to give effect to that intent, Treasury and the IRS have decided to 
    remove Sec. 1.1291-9(i)(1), which provides that the rules of 
    Sec. 1.1291-9, the deemed dividend election, do not apply to an 
    election under section 1297(b)(1). The removal of Sec. 1.1291-9(i)(1) 
    is effective as of January 2, 1998. Section 1.1291-9(i)(2) is not 
    affected by the removal of Sec. 1.1291-9(i)(1).
    
    8. Section 1297
    
        The temporary regulations amend Sec. 1.1297-3T to provide that a 
    shareholder of a former PFIC, within the meaning of Sec. 1.1291-
    9(j)(2)(iv), that was a CFC during its last taxable year as a PFIC 
    under section 1296(a), may apply the rules of the deemed dividend 
    election under section 1291(d)(2)(B) and Sec. 1.1291-9 to its section 
    1297(b)(1) election made by the time and in the manner provided in 
    Sec. 1.1297-3T(b). If the time for making a section 1297(b)(1) 
    election, provided in Sec. 1.1297-3T(b), expired before January 2, 
    1998, a shareholder that applied the rules of section 1291(d)(2)(A) and 
    Sec. 1.1291-10 to a section 1297(b)(1) election, made with respect to a 
    former PFIC that was a CFC in its last taxable year as a PFIC under 
    section 1296(a), may file an amended return for its taxable year that 
    includes the termination date, as defined in Sec. 1.1297-3T(a), and 
    apply the rules of the deemed dividend election to its section 
    1297(b)(1) election at any time before the expiration of the period of 
    limitations for the assessment of taxes for that taxable year. Section 
    1.1297-3T(c) is effective as of January 2, 1998.
    
    Special Analyses
    
        It has been determined that this Treasury Decision is not a 
    significant regulatory action as defined in Executive Order 12866. 
    Therefore, a regulatory assessment is not required. Pursuant to section 
    7805(f) of the Internal Revenue Code, these temporary regulations will 
    be submitted to the Chief Counsel for Advocacy of the Small Business 
    Administration for comment on their impact on small business. An 
    initial regulatory flexibility analysis has been prepared for the 
    proposed regulations for which these temporary regulations serve as a 
    text and which is set forth in the notice of proposed rulemaking on 
    this subject in the Proposed Rules section of this issue of the Federal 
    Register.
    
    Drafting Information
    
        The principal authors of these regulations are Gayle Novig and 
    Judith Cavell Cohen, of the Office of the Associate Chief Counsel 
    (International). Other personnel from the IRS and Treasury Department 
    also participated in the development of these regulations.
    
    List of Subjects
    
    26 CFR Part 1
    
        Income taxes, Reporting and recordkeeping requirements.
    
    26 CFR Part 602
    
        Reporting and recordkeeping requirements.
    
    Adoption of Amendments to the Regulations
    
        Accordingly, 26 CFR parts 1 and 602 are amended as follows:
    
    PART 1--INCOME TAXES
    
        Paragraph 1. The authority citation for part 1 is amended by adding 
    the following entries, in numerical order to read as follows:
    
        Authority: 26 U.S.C. 7805 * * *
    
        Section 1.1291-1T also issued under 26 U.S.C. 1291.* * *
        Section 1.1293-1T also issued under 26 U.S.C. 1293.* * *
        Section 1.1295-1T also issued under 26 U.S.C. 1295(b).
        Section 1.1295-3T also issued under 26 U.S.C. 1295(b).* * *
    
    
    Sec. 1.1291-0  [Amended]
    
        Par. 2. Section 1.1291-0 is amended by removing and reserving the 
    entry for Sec. 1.1291-9(i)(1).
        Par. 3. The section heading and introductory text for Sec. 1.1294-0 
    are added to read as follows:
    
    
    Sec. 1.1294-0  Table of contents.
    
        This section contains a listing of the headings for Sec. 1.1294-1T.
        Par. 4. The section heading and introductory text for Sec. 1.1297-0 
    are added to read as follows:
    
    
    Sec. 1.1297-0  Table of contents.
    
        This section contains a listing of the headings for Sec. 1.1297-3T.
    
    
    Sec. 1.1291-0T  [Amended]
    
        Par. 5. Section 1.1291-0T is amended by:
        1. Transferring the listing of the section heading and entries for 
    Sec. 1.1294-1T to new Sec. 1.1294-0.
        2. Transferring the listing of the section heading and entries for 
    Sec. 1.1297-3T to new Sec. 1.1297-0.
        3. Removing the section heading and introductory text.
        Par. 6. Section 1.1291-1T is added to read as follows:
    
    
    Sec. 1.1291-1T  Taxation of U.S. persons that are shareholders of PFICs 
    that are not pedigreed QEFs (temporary).
    
        (a) through (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 1291 and these regulations apply to such shareholder 
    only if a dividend from the PFIC would be taxable to the organization 
    under subchapter F.
        (2) Effective date. Paragraph (e)(1) of this section is applicable 
    on and after April 1, 1992.
    
    
    Sec. 1.1291-9  [Amended]
    
        Par. 7. Section 1.1291-9 is amended by removing and reserving 
    paragraph (i)(1).
        Par. 8. Section 1.1293-0 is added to read as follows.
    
    
    Sec. 1.1293-0  Table of contents.
    
        This section contains a listing of the headings for Sec. 1.1293-1T.
    
    Sec. 1.1293-1T  Current inclusion of income of qualified electing 
    funds (temporary).
    
        (a) In general. [Reserved].
        (1) Other rules. [Reserved].
        (2) Net capital gain defined.
        (i) In general.
        (ii) Effective date.
        (b) Other rules [Reserved].
        (c) Application of rules of inclusion with respect to stock held 
    by a pass through entity.
    
    [[Page 14]]
    
        (1) In general.
        (2) QEF stock transferred to a pass through entity.
        (i) Pass through entity makes a section 1295 election.
        (ii) Pass through entity does not make a section 1295 election.
        (3) Effective date.
    
        Par. 9. Section 1.1293-1T is added to read as follows:
    
    
    Sec. 1.1293-1T  Current taxation of income from qualified electing 
    funds (temporary).
    
        (a) In general. [Reserved].
        (1) Other rules. [Reserved].
        (2) Net capital gain defined--(i) In general. This paragraph (a)(2) 
    defines the term net capital gain for purposes of sections 1293 and 
    1295 and the regulations under those sections. The QEF, as defined in 
    Sec. 1.1291-9(j)(2)(i), in determining its net capital gain for a 
    taxable year, may either--
        (A) Calculate and report the amount of each category of long-term 
    capital gain provided in section 1(h) that was recognized by the PFIC 
    in the taxable year;
        (B) Calculate and report the amount of net capital gain recognized 
    by the PFIC in the taxable year, stating that that amount is subject to 
    the highest capital gain rate of tax applicable to the shareholder; or
        (C) Calculate its earnings and profits for the taxable year and 
    report the entire amount as ordinary earnings.
        (ii) Effective date. Paragraph (a)(2)(i) of this section is 
    applicable to sales by QEFs during their taxable years ending on or 
    after May 7, 1997.
        (b) Other rules. [Reserved].
        (c) Application of rules of inclusion with respect to stock held by 
    a pass through entity--(1) In general. A domestic pass through entity 
    takes into account its pro rata shares of the ordinary earnings and net 
    capital gain attributable to the QEF shares held by the pass through 
    entity. A U.S. person that indirectly owns QEF shares through the 
    domestic pass through entity accounts for its pro rata shares of 
    ordinary earnings and net capital gain attributable to the QEF shares 
    according to the general rules applicable to inclusions of income from 
    the domestic pass through entity. For the definition of pass through 
    entity, see Sec. 1.1295-1T(j).
        (2) QEF stock transferred to a pass through entity--(i) Pass 
    through entity makes a section 1295 election. If a shareholder 
    transfers stock subject to a section 1295 election to a domestic pass 
    through entity of which it is an interest holder and the pass through 
    entity makes a section 1295 election with respect to that stock, as 
    provided in Sec. 1.1295-1T(D)(2), the shareholder takes into account 
    its pro rata shares of the ordinary earnings and net capital gain 
    attributable to the QEF shares under the rules applicable to inclusions 
    of income from the pass through entity.
        (ii) Pass through entity does not make a section 1295 election. If 
    the pass through entity does not make a section 1295 election with 
    respect to the PFIC, the shares of which were transferred to the pass 
    through entity subject to the 1295 election of the shareholder, the 
    shareholder continues to be subject, in its capacity as an indirect 
    shareholder, to the income inclusion rules of section 1293 and 
    reporting rules required of shareholders of QEFs. Proper adjustments to 
    reflect an inclusion in income under section 1293 by the indirect 
    shareholder must be made, under the principles of Sec. 1.1291-9(f), to 
    the basis of the indirect shareholder's interest in the pass through 
    entity.
        (3) Effective date. Paragraph (c) of this section is applicable to 
    taxable years of shareholders beginning after December 31, 1997.
        Par. 10. Section 1.1295-0 is added to read as follows:
    
    
    Sec. 1.1295-0  Table of contents.
    
        This section contains a listing of the headings for Secs. 1.1295-1T 
    and 1.1295-3T.
    
    Sec. 1.1295-1T  Qualified electing funds (temporary).
    
        (a) In general. [Reserved.]
        (b) Application of section 1295 election. [Reserved.]
        (1) Election personal to shareholder. [Reserved.]
        (2) Election applicable to specific corporation only.
        (i) In general. [Reserved.]
        (ii) Stock of QEF received in a nonrecognition transfer. 
    [Reserved.]
        (iii) Exception for options.
        (3) Application of general rules to stock held by a pass through 
    entity.
        (i) Stock subject to a section 1295 election transferred to a 
    pass through entity.
        (ii) Limitation on application of pass through entity's section 
    1295 election.
        (iii) Effect of partnership termination on section 1295 
    election.
        (iv) Characterization of stock held through a pass through 
    entity.
        (4) Application of general rules to a taxpayer filing a joint 
    return under section 6013.
        (c) Effect of section 1295 election.
        (1) In general.
        (2) Years to which section 1295 election applies.
        (i) In general.
        (ii) Effect of PFIC status on election.
        (iii) Effect on election of complete termination of a 
    shareholder's interest in the PFIC.
        (iv) Effect on section 1295 election of transfer of stock to a 
    domestic pass through entity.
        (v) Examples.
        (d) Who may make a section 1295 election.
        (1) General rule.
        (2) Application of general rule to pass through entities.
        (i) Partnerships.
        (A) Domestic partnership.
        (B) Foreign partnership.
        (ii) S corporation.
        (iii) Trust or estate.
        (A) Domestic trust or estate.
        (1) Nongrantor trust or estate.
        (2) Grantor trust.
        (B) Foreign trust or estate.
        (1) Nongrantor trust or estate.
        (2) Grantor trust.
        (iv) Indirect ownership of the pass through entity or the PFIC.
        (3) Member of consolidated return group as shareholder.
        (4) Option holder.
        (5) Exempt organization.
        (e) Time for making a section 1295 election.
        (f) Manner of making a section 1295 election and the annual 
    election requirements of the shareholder.
        (1) Manner of making the election.
        (2) Annual election requirements.
        (i) In general.
        (ii) Retention of documents.
        (g) Annual election requirements of the PFIC or intermediary.
        (1) PFIC Annual Information Statement.
        (2) Alternative documentation.
        (3) Annual Intermediary Statement.
        (4) Combined statements.
        (i) PFIC Annual Information Statement.
        (ii) Annual Intermediary Statement.
        (h) Transition rules.
        (i) Invalidation, termination or revocation of section 1295 
    election.
        (1) Invalidation or termination of election at the discretion of 
    the Commissioner.
        (i) In general.
        (ii) Deferral of section 1293 inclusion.
        (iii) When effective.
        (2) Shareholder revocation.
        (i) In general.
        (ii) Time for and manner of requesting consent to revoke.
        (A) Time.
        (B) Manner of making request.
        (iii) When effective.
        (3) Effect of invalidation, termination, or revocation.
        (4) Election after invalidation, termination, or revocation.
        (j) Definitions.
        (k) Effective date.
    
    
    Sec. 1.1295-3T  Retroactive elections (temporary).
    
        (a) In general.
        (b) General rule.
        (c) Protective Statement.
        (1) In general.
        (2) Reasonable belief statement.
        (3) Who executes and files the Protective Statement.
        (4) Waiver of the periods of limitations.
        (i) Time for and manner of extending periods of limitations.
        (A) In general.
        (B) Application of general rule to domestic partnerships.
    
    [[Page 15]]
    
        (1) In general
        (2) Special rules.
        (i) Addition of partner to non-TEFRA partnership.
        (ii) Change in status from non-TEFRA partnership to TEFRA 
    partnership.
        (C) Application of general rule to domestic nongrantor trusts 
    and domestic estates.
        (D) Application of general rule to S corporations.
        (E) Effect on waiver of complete termination of a pass through 
    entity or pass through entity's business.
        (F) Application of general rule to foreign partnerships, foreign 
    trusts, domestic or foreign grantor trusts, and foreign estates.
        (ii) Terms of waiver.
        (A) Scope of waiver.
        (B) Period of waiver.
        (5) Time for and manner of filing a Protective Statement.
        (i) In general.
        (ii) Special rule for taxable years ended before January 2, 1998
        (6) Applicability of the Protective Statement.
        (i) In general.
        (ii) Invalidity of the Protective Statement.
        (7) Retention of Protective Statement and information 
    demonstrating reasonable belief.
        (d) Reasonable belief.
        (1) In general.
        (2) Knowledge of law required.
        (e) Special rules for qualified shareholders.
        (1) In general.
        (2) Qualified shareholder.
        (3) Exceptions.
        (f) Special consent.
        (1) In general.
        (2) Reasonable reliance on a qualified tax professional.
        (i) In general.
        (ii) Shareholder deemed to have not reasonably relied on a 
    qualified tax professional.
        (3) Prejudice to the interests of the United States government.
        (i) General rule.
        (ii) Elimination of prejudice to the interests of the United 
    States government.
        (4) Procedural requirements.
        (i) Filing instructions.
        (ii) Affidavit from shareholder.
        (iii) Affidavits from other persons.
        (iv) Other information.
        (v) Notification of Internal Revenue Service.
        (vi) Who requests special consent under this paragraph (f) and 
    who enters into a closing agreement.
        (g) Time for and manner of making a retroactive election.
        (1) Time for making a retroactive election.
        (i) In general.
        (ii) Transition rule.
        (iii) Ownership not required at time retroactive election is 
    made.
        (2) Manner of making a retroactive election.
        (3) Who makes the retroactive election.
        (4) Other elections.
        (i) Section 1291(d)(2) election.
        (ii) Section 1294 election.
        (h) Effective date.
    
        Par. 11. Section 1.1295-1T is added to read as follows:
    
    
    Sec. 1.1295-1T  Qualified electing funds (temporary).
    
        (a) In general. [Reserved].
        (b) Application of section 1295 election. [Reserved]
        (1) Election personal to shareholder. [Reserved].
        (2) Election applicable to specific corporation only--
        (i) In general. [Reserved].
        (ii) Stock of QEF received in a nonrecognition transfer. 
    [Reserved].
        (iii) Exception for options. A shareholder's section 1295 election 
    does not apply to any option to buy stock of the PFIC.
        (3) Application of general rules to stock held by a pass through 
    entity--(i) Stock subject to a section 1295 election transferred to a 
    pass through entity. A shareholder's section 1295 election will not 
    apply to a domestic pass through entity to which the shareholder 
    transfers stock subject to section 1295 election, or to any other U.S. 
    person that is an interest holder or beneficiary of the domestic pass 
    through entity. However, as provided in paragraph (c)(2)(iv) of this 
    section (relating to a transfer to a domestic pass through entity of 
    stock subject to a section 1295 election), a shareholder that transfers 
    stock subject to a section 1295 election to a pass through entity will 
    continue to be subject to the section 1295 election with respect to the 
    stock indirectly owned through the pass through entity and any other 
    stock of that PFIC owned by the shareholder.
        (ii) Limitation on application of pass through entity's section 
    1295 election. Except as provided in paragraph (c)(2)(iv) of this 
    section, a section 1295 election made by a domestic pass through entity 
    does not apply to other stock of the PFIC held directly or indirectly 
    by the interest holder or beneficiary.
        (iii) Effect of partnership termination on section 1295 election. 
    Termination of a section 1295 election made by a domestic partnership 
    by reason of the termination of the partnership under section 708(b) 
    will not terminate the section 1295 election with respect to partners 
    of the terminated partnership that are partners of the new partnership. 
    Except as otherwise provided, the stock of the PFIC of which the new 
    partners are indirect shareholders will be treated as stock of a QEF 
    only if the new domestic partnership makes a section 1295 election with 
    respect to that stock.
        (iv) Characterization of stock held through a pass through entity. 
    Stock of a PFIC held through a pass through entity will be treated as 
    stock of a pedigreed QEF with respect to an interest holder or 
    beneficiary only if--
        (A) In the case of PFIC stock acquired (other than in a transaction 
    in which gain is not recognized pursuant to regulations under section 
    1291(f) with respect to that stock), and held by a domestic pass 
    through entity, the pass through entity makes the section 1295 election 
    and the PFIC has been a QEF with respect to the pass through entity for 
    all taxable years that are included wholly or partly in the pass 
    through entity's holding period of the PFIC stock and during which the 
    foreign corporation was a PFIC within the meaning of Sec. 1.1291-
    9(j)(1); or
        (B) In the case of PFIC stock transferred by an interest holder or 
    beneficiary to a pass through entity in a transaction in which gain is 
    not recognized pursuant to regulations under section 1291(f) with 
    respect to that stock and held by the pass through entity, the PFIC 
    stock transferred to the pass through entity was treated as stock of a 
    pedigreed QEF with respect to the interest holder or beneficiary at the 
    time of the transfer and the pass through entity makes a section 1295 
    election.
        (4) Application of general rules to a taxpayer filing a joint 
    return under section 6013. A section 1295 election made by a taxpayer 
    in a joint return, within the meaning of section 6013, will be treated 
    as also made by the spouse that joins in the filing of that return.
        (c) Effect of section 1295 election--(1) In general. Except as 
    otherwise provided in this paragraph (c), the effect of a shareholder's 
    section 1295 election is to treat the foreign corporation as a QEF with 
    respect to the shareholder for each taxable year of the foreign 
    corporation ending with or within a taxable year of the shareholder for 
    which the election is effective. A section 1295 election is effective 
    for the shareholder's election year and all subsequent taxable years of 
    the shareholder unless invalidated, terminated or revoked as provided 
    in paragraph (i) of this section. The terms shareholder and 
    shareholder's election year are defined in paragraph (j) of this 
    section.
        (2) Years to which section 1295 election applies--(i) In general. 
    Except as otherwise provided in this paragraph (c), a foreign 
    corporation with respect to which a section 1295 election is made will 
    be treated as a QEF for its taxable year ending with or within the 
    shareholder's election year and all subsequent taxable years of the 
    foreign corporation that are included wholly or partly in the 
    shareholder's holding period (or periods) of stock of the foreign 
    corporation.
        (ii) Effect of PFIC status on election. A foreign corporation will 
    not be treated
    
    [[Page 16]]
    
    as a QEF for any taxable year of the foreign corporation that the 
    foreign corporation is not a PFIC under section 1296(a) and is not 
    treated as a PFIC under section 1297(b)(1). However, cessation of a 
    foreign corporation's status as a PFIC will not terminate a section 
    1295 election.
        (iii) Effect on election of complete termination of a shareholder's 
    interest in the PFIC. Complete termination of a shareholder's direct 
    and indirect interest in stock of a foreign corporation will not 
    terminate a shareholder's section 1295 election with respect to the 
    foreign corporation.
        (iv) Effect on section 1295 election of transfer of stock to a 
    domestic pass through entity. The transfer of a shareholder's direct or 
    indirect interest in stock of a foreign corporation to a domestic pass 
    through entity (as defined in paragraph (j) of this section) will not 
    terminate the shareholder's section 1295 election with respect to the 
    foreign corporation, whether or not the pass through entity makes a 
    section 1295 election. For the rules concerning the application of 
    section 1293 to stock transferred to a domestic pass through entity, 
    see Sec. 1.1293-1T(c).
        (v) Examples. The following examples illustrate the rules of this 
    paragraph (c)(2).
    
        Example 1. In 1998, C, a U.S. person, purchased stock of FC, a 
    foreign corporation that is a PFIC. Both FC and C are calendar year 
    taxpayers. C made a timely section 1295 election to treat FC as a 
    QEF in C's 1998 return, and FC was therefore a pedigreed QEF. C 
    included its shares of FC's 1998 ordinary earnings and net capital 
    gain in C's 1998 Income and did not make a section 1294 election to 
    defer the time for payment of tax on that income. In 1999, 2000, and 
    2001, FC did not satisfy either the income or asset test of section 
    1296(a), and therefore was neither a PFIC nor a QEF. C therefore did 
    not have to include its pro rata shares of the ordinary earnings and 
    net capital gain of FC pursuant to section 1293, or satisfy the 
    section 1295 annual reporting requirements for any of those years. 
    FC qualified as a PFIC again in 2002. Because C had made a section 
    1295 election in 1998, and the election had not been invalidated, 
    terminated, or revoked, within the meaning of paragraph (i) of this 
    section, C's section 1295 election remains in effect for 2002. C 
    therefore is subject in 2002 to the income inclusion and reporting 
    rules required of shareholders of QEFs.
        Example 2. The facts are the same as in Example (1) except that 
    FC did not lose PFIC status in any year and C sold all the FC stock 
    in 1999 and repurchased stock of FC in 2002. Because C had made a 
    section 1295 election in 1998 with respect to stock of FC, and the 
    election had not been invalidated, terminated, or revoked, within 
    the meaning of paragraph (i) of this section, C's section 1295 
    election remained in effect and therefore applies to the stock of FC 
    purchased by C in 2002. C therefore is subject in 2002 to the income 
    inclusion and reporting rules required of shareholders of QEFs.
        Example 3. The facts are the same as in Example (2) except that 
    C is a partner in domestic partnership P and C transferred its FC 
    stock to P in 1999. Because C had made a section 1295 election in 
    1998 with respect to stock of FC, and the election had not been 
    invalidated, terminated, or revoked, within the meaning of paragraph 
    (i) of this section, C's section 1295 election remains in effect 
    with respect to its indirect interest in the stock of FC. If P does 
    not make the section 1295 election with respect to the FC stock, C 
    will continue to be subject, in C's capacity as an indirect 
    shareholder of FC, to the income inclusion and reporting rules 
    required of shareholders of QEFs in 1999 and subsequent years. If P 
    makes the section 1295 election, C will take into account its pro 
    rata shares of the ordinary earnings and net capital gain of the FC 
    under the rules applicable to inclusions of income from P.
    
        (d) Who may make a section 1295 election--(1) General rule. Except 
    as otherwise provided in this paragraph (d), any U.S. person that is a 
    shareholder (as defined in paragraph (j) of this section) of a PFIC, 
    including a shareholder that holds stock of a PFIC in bearer form, may 
    make a section 1295 election with respect to that PFIC. The shareholder 
    need not own directly or indirectly any stock of the PFIC at the time 
    the shareholder makes the section 1295 election provided the 
    shareholder is a shareholder of the PFIC during the taxable year of the 
    PFIC that ends with or within the taxable year of the shareholder for 
    which the section 1295 election is made. Except in the case of a 
    shareholder that is an exempt organization that may not make a section 
    1295 election, as provided in paragraph (d)(5) of this section, in a 
    chain of ownership only the first U.S. person that is a shareholder of 
    the PFIC may make the section 1295 election.
        (2) Application of general rule to pass through entities--(i) 
    Partnerships--(A) Domestic partnership. A domestic partnership that 
    holds an interest in stock of a PFIC makes the section 1295 election 
    with request to that PFIC. The partnership election applies only to the 
    stock of the PFIC held directly or indirectly by the partnership and 
    not to any other stock held directly or indirectly by any partner. As 
    provided in Sec. 1.1293-1T(c)(1), shareholders owning stock of a QEF by 
    reason of an interest in the partnership take into account the section 
    1293 inclusions with respect to the QEF shares owned by the partnership 
    under the rules applicable to inclusions of income from the 
    partnership.
        (B) Foreign partnership. A U.S. person that holds an interest in a 
    foreign partnership that, in turn, holds an interest in stock of a PFIC 
    makes the section 1295 election with respect to that PFIC. A partner's 
    election applies to the stock of the PFIC owned directly or indirectly 
    by the foreign partnership and to any other stock of the PFIC owned by 
    that partner. A section 1295 election by a partner applies only to that 
    partner.
        (ii) S corporation. An S corporation that holds an interest in 
    stock of a PFIC makes the section 1295 election with respect to that 
    PFIC. The S corporation election applies only to the stock of the PFIC 
    held directly or indirectly by the S corporation and not to any other 
    stock held directly or indirectly by any S corporation shareholder. As 
    provided in Sec. 1.1293-1T(c)(1), shareholders owning stock of a QEF by 
    reason of an interest in the S corporation take into account the 
    section 1293 inclusions with respect to the QEF shares under the rules 
    applicable to inclusions of income from the S corporation.
        (iii) Trust or estate--(A) Domestic trust or estate--(1) Nongrantor 
    trust or estate. A domestic nongrantor trust or a domestic estate that 
    holds an interest in stock of a PFIC makes the section 1295 election 
    with respect to that PFIC. The trust or estate's election applies only 
    to the stock of the PFIC held directly or indirectly by the trust or 
    estate and not to any other stock held directly or indirectly by any 
    beneficiary. As provided in Sec. 1.1293-1T(c)(1), shareholders owning 
    stock of a QEF by reason of an interest in a domestic trust or estate 
    take into account the section 1293 inclusions with respect to the QEF 
    shares under the rules applicable to inclusions of income from the 
    trust or estate.
        (2) Grantor trust. A U.S. person that is treated under sections 671 
    through 678 as the owner of the portion of a domestic trust that owns 
    an interest in stock of a PFIC makes the section 1295 election with 
    respect to that PFIC. If that person ceases to be treated as the owner 
    of the portion of the trust that owns an interest in the PFIC stock and 
    is a beneficiary of the trust, that person's section 1295 election will 
    continue to apply to the PFIC stock indirectly owned by that person 
    under the rules of paragraph (c)(2)(iv) of this section as if the 
    person had transferred its interest in the PFIC stock to the trust. 
    However, the stock will be treated as stock of a PFIC that is not a QEF 
    with respect to other beneficiaries of the trust, unless the trust 
    makes the section 1295 election as provided in paragraph 
    (d)(2)(iii)(A)(1) of this section.
        (B) Foreign trust or estate--(1) Nongrantor trust or estate. A U.S.
    
    [[Page 17]]
    
    person that is a beneficiary of a foreign nongrantor trust or estate 
    that holds an interest in stock of a PFIC makes the section 1295 
    election with respect to that PFIC. A beneficiary's section 1295 
    election applies to all the PFIC stock owned directly and indirectly by 
    the trust or estate and to the other PFIC stock owned directly or 
    indirectly by the beneficiary. A section 1295 election by a beneficiary 
    applies only to that beneficiary.
        (2) Grantor trust. A U.S. person that is treated under sections 671 
    through 679 as the owner of the portion of a foreign trust that owns an 
    interest in stock of a PFIC stock makes the section 1295 election with 
    respect to that PFIC. If that person ceases to be treated as the owner 
    of the portion of the trust that owns an interest in the PFIC stock and 
    is a beneficiary of the trust, that person's section 1295 election will 
    continue to apply to the PFIC stock indirectly owned by that person 
    under the rules of paragraph (c)(2)(iv) of this section. However, as 
    provided in paragraph (d)(2)(iii)(B)(1) of this section, any other 
    shareholder that is a beneficiary of the trust and that wishes to treat 
    the PFIC as a QEF must make the section 1295 election.
        (iv) Indirect ownership of the pass through entity or the PFIC. The 
    rules of this paragraph (d)(2) apply whether or not the shareholder 
    holds its interest in the pass through entity directly or indirectly 
    and whether or not the pass through entity holds its interest in the 
    PFIC directly or indirectly.
        (3) Member of consolidated return group as shareholder. Pursuant to 
    Sec. 1.1502-77(a), the common parent of an affiliated group of 
    corporations that join in filing a consolidated income tax return makes 
    a section 1295 election for all members of the affiliated group. An 
    election by a common parent will be effective for all members of the 
    affiliated group with respect to interests in PFIC stock held at the 
    time the election is made or at any time thereafter. A separate 
    election must be made by the common parent for each PFIC of which a 
    member of the affiliated group is a shareholder.
        (4) Option holder. A holder of an option to acquire stock of a PFIC 
    may not make a section 1295 election that will apply to the option or 
    to the stock subject to the option.
        (5) Exempt organization. A tax-exempt organization that is not 
    taxable under section 1291, pursuant to Sec. 1.1291-1T(e), with respect 
    to a PFIC may not make a section 1295 election with respect to that 
    PFIC. In addition, such an exempt organization will not be subject to 
    any section 1295 election made by a domestic pass through entity.
        (e) Time for making a section 1295 election. Except as provided in 
    Sec. 1.1295-3T, a shareholder making the section 1295 election must 
    make the election on or before the due date, as extended under section 
    6081 (election due date), for filing the shareholder's income tax 
    return for the first taxable year to which the election will apply. The 
    section 1295 election must be made in the original return for that 
    year, or in an amended return, provided the amended return is filed on 
    or before the election due date.
        (f) Manner of making a section 1295 election and the annual 
    election requirements of the shareholder--(1) Manner of making the 
    election. A shareholder must make a section 1295 election by--
        (i) Completing Form 8621 in the manner required by that form and 
    this section for making the section 1295 election;
        (ii) Attaching Form 8621 to its federal income tax return filed by 
    the election due date for the shareholder's election year;
        (iii) Receiving and reflecting in Form 8621 the information 
    provided in the PFIC Annual Information Statement described in 
    paragraph (g)(1) of this section, the Annual Intermediary Statement 
    described in paragraph (g)(3) of this section, or the applicable 
    combined statement described in paragraph (g)(4) of this section, for 
    the taxable year of the PFIC ending with or within the taxable year for 
    which Form 8621 is being filed. If the PFIC Annual Information 
    Statement contains a statement described in paragraph (g)(1)(ii)(C) of 
    this section, the shareholder must attach a statement to Form 8621 that 
    indicates that the shareholder rather than the QEF calculated the QEF's 
    ordinary earnings and net capital gain; and
        (iv) Filing a copy of Form 8621 with the Philadelphia Service 
    Center, P.O. Box 21086, Philadelphia, PA 19114 by the election due 
    date.
        (2) Annual election requirements--(i) In general. A shareholder 
    that makes a section 1295 election with respect to a PFIC held directly 
    or indirectly, for each taxable year to which the section 1295 election 
    applies, must--
        (A) Complete Form 8621 in the manner required by that form and this 
    section;
        (B) Attach Form 8621 to its federal income tax return filed by the 
    due date of the return, as extended;
        (C) Receive and reflect in Form 8621 the PFIC Annual Information 
    Statement described in paragraph (g)(1) of this section, the Annual 
    Intermediary Statement described in paragraph (g)(3) of this section, 
    or the applicable combined statement described in paragraph (g)(4) of 
    this section, for the taxable year of the PFIC ending with or within 
    the taxable year for which Form 8621 is being filed. If the PFIC Annual 
    Information Statement contains a statement described in paragraph 
    (g)(1)(ii)(C) of this section, the shareholder must attach a statement 
    to its Form 8621 that the shareholder rather than the PFIC provided the 
    calculations of the PFIC's ordinary earnings and net capital gain; and
        (D) File a copy of Form 8621 with the Philadelphia Service Center, 
    P.O. Box 21086, Philadelphia, PA 19114 by the election due date.
        (ii) Retention of documents. For all taxable years subject to the 
    section 1295 election, the shareholder must retain copies of all Forms 
    8621, with their attachments, and PFIC Annual Information Statements or 
    Annual Intermediary Statements. Failure to produce those documents at 
    the request of the Commissioner in connection with an examination may 
    result in invalidation or termination of the shareholder's section 1295 
    election.
        (g) Annual election requirements of the PFIC or intermediary--(1) 
    PFIC Annual Information Statement. For each year of the PFIC ending in 
    a taxable year of a shareholder to which the shareholder's section 1295 
    election applies, the PFIC must provide the shareholder with a PFIC 
    Annual Information Statement. The PFIC Annual Information Statement is 
    a statement of the PFIC, signed by the PFIC or an authorized 
    representative of the PFIC, that contains the following information and 
    representation--
        (i) The first and last days of the taxable year of the PFIC to 
    which the PFIC Annual Information Statement applies;
        (ii) Either--
        (A) The shareholder's pro rata shares of the ordinary earnings and 
    net capital gain (as defined in Sec. 1.1295-1T(a)(2)) of the PFIC for 
    the taxable year indicated in paragraph (g)(1)(i) of this section; or
        (B) Sufficient information to enable the shareholder to calculate 
    its pro rata shares of the PFIC's ordinary earnings and net capital 
    gain, for that taxable year; or
        (C) A statement that the foreign corporation has permitted the 
    shareholder to examine the books of account, records, and other 
    documents of the foreign corporation for the shareholder to calculate 
    the amounts of the PFIC's ordinary earnings and the net capital gain 
    according to federal income
    
    [[Page 18]]
    
    tax accounting principles and to calculate the shareholder's pro rata 
    shares of the PFIC's ordinary earnings and net capital gain;
        (iii) The amount of cash and the fair market value of other 
    property distributed or deemed distributed to the shareholder during 
    the taxable year of the PFIC to which the PFIC Annual Information 
    Statement pertains; and
        (iv) Either--
        (A) A statement that the PFIC will permit the shareholder to 
    inspect and copy the PFIC's permanent books of account, records, and 
    such other documents as may be maintained by the PFIC to establish that 
    the PFIC's ordinary earnings and net capital gain are computed in 
    accordance with U.S. income tax principles, and to verify these amounts 
    and the shareholder's pro rata shares thereof; or
        (B) In lieu of the statement required in paragraph (g)(1)(iv)(A) of 
    this section, a description of the alternative documentation 
    requirements approved by the Commissioner, with a copy of the private 
    letter ruling and the closing agreement entered into by the 
    Commissioner and the PFIC pursuant to paragraph (g)(2) of this section.
        (2) Alternative documentation. In rare and unusual circumstances, 
    the Commissioner will consider alternative documentation requirements 
    necessary to verify the ordinary earnings and net capital gain of a 
    PFIC other than the documentation requirements described in paragraph 
    (g)(1)(iv)(A) of this section. Alternative documentation requirements 
    will be allowed only pursuant to a private letter ruling and a closing 
    agreement entered into by the Commissioner and the PFIC describing an 
    alternative method of verifying the PFIC's ordinary earnings and net 
    capital gain. If the PFIC has not obtained a private letter ruling from 
    the Commissioner approving an alternative method of verifying the 
    PFIC's ordinary earnings and net capital gain by the time a shareholder 
    is required to make a section 1295 election, the shareholder may not 
    use an alternative method for that taxable year.
        (3) Annual Intermediary Statement. In the case of a U.S. person 
    that is a shareholder of a PFIC through an intermediary, as defined in 
    paragraph (j) of this section, an Annual Intermediary Statement issued 
    by an intermediary containing the information described in paragraph 
    (g)(1) of this section and reporting the indirect owner's pro rata 
    shares of the ordinary earnings and net capital gain of the QEF as 
    described in paragraph (g)(1)(i)(A) of this section, may be provided to 
    the indirect owner in lieu of the PFIC Annual Information Statement if 
    the following conditions are satisfied--
        (i) The intermediary receives a copy of the PFIC Annual Information 
    Statement or the intermediary receives an annual intermediary statement 
    from another intermediary which contains a statement that the other 
    intermediary has received a copy of the PFIC Annual Information 
    Statement and represents that the conditions of paragraphs (g)(3)(ii) 
    and (g)(3)(iii) of this section are met;
        (ii) The representations and information contained in the Annual 
    Intermediary Statement reflect the representations and information 
    contained in the PFIC Annual Information Statement; and
        (iii) The PFIC Annual Information Statement issued to the 
    intermediary contains either the representation set forth in paragraph 
    (g)(1)(iv)(A) of this section, or, if alternative documentation 
    requirements were approved by the Commissioner pursuant to paragraph 
    (g)(2) of this section, a copy of the private letter ruling and closing 
    agreement between the Commissioner and the PFIC, agreeing to an 
    alternative method of verifying PFIC ordinary earnings and net capital 
    gain as described in paragraph (g)(2) of this section;
        (4) Combined statements--(i) PFIC Annual Information Statement. A 
    PFIC that owns directly or indirectly any stock of one or more PFICs 
    with respect to which a shareholder may make the section 1295 election 
    may prepare a PFIC Annual Information Statement that combines with its 
    own information and representations the information and representations 
    of all the PFICs. The PFIC may use any format for a combined PFIC 
    Annual Information Statement provided the required information and 
    representations are separately stated and identified with the 
    respective corporations.
        (ii) Annual Intermediary Statement. An intermediary described in 
    paragraph (g)(3) of this section that owns directly or indirectly stock 
    of one or more PFICs with respect to which an indirect shareholder may 
    make the section 1295 election may prepare an Annual Intermediary 
    Statement that combines with its own information and representations 
    the information and representations with respect to all the PFICs. The 
    intermediary may use any format for a combined Annual Intermediary 
    Statement provided the required information and representations are 
    separately stated and identified with the intermediary and the 
    respective corporations.
        (h) Transition rules. The rules of Notice 88-125, 1988-2 C.B. 535 
    (see Sec. 601.601(d)(2)(ii)(b) of this chapter), apply for making 
    elections and maintaining elections for taxable years beginning after 
    December 31, 1986, and before January 1, 1998. Elections made under 
    Notice 88-125 must be maintained as provided in Sec. 1.1295-1T for 
    taxable years beginning after December 31, 1997. A section 1295 
    election made prior to February 2, 1998 that was intended to be 
    effective for the taxable year of the PFIC that began during the 
    shareholder's election year will be effective for that taxable year of 
    the foreign corporation provided that it is clear from all the facts 
    and circumstances that the shareholder intended the election to be 
    effective for that taxable year of the foreign corporation.
        (i) Invalidation, termination, or revocation of section 1295 
    election--(1) Invalidation or termination of election at the discretion 
    of the Commissioner--(i) In general. The Commissioner, in the 
    Commissioner's discretion, may invalidate or terminate a section 1295 
    election applicable to a shareholder if the shareholder, the PFIC, or 
    any intermediary fails to satisfy the requirements for making a section 
    1295 election or the annual election requirements of this section to 
    which the shareholder, PFIC, or intermediary is subject, including the 
    requirement to provide, on request, copies of the books and records of 
    the PFIC or other documentation substantiating the ordinary earnings 
    and net capital gain of the PFIC.
        (ii) Deferral of section 1293 inclusion. The Commissioner may 
    invalidate any pass through entity section 1295 election with respect 
    to an interest holder or beneficiary if the section 1293 inclusion with 
    respect to that interest holder or beneficiary is not included in the 
    gross income of either the pass through entity, an intermediate pass 
    through entity, or the interest holder or beneficiary within two years 
    of the end of the PFIC's taxable year due to nonconforming taxable 
    years of the interest holder and the pass through entity or any 
    intermediate pass through entity.
        (iii) When effective. Termination of a shareholder's section 1295 
    election will be effective for the taxable year of the PFIC determined 
    by the Commissioner in the Commissioner's discretion. An invalidation 
    of a shareholder's section 1295 election will be effective for the 
    first taxable year to which the section 1295 election applied, and the 
    shareholder whose election is
    
    [[Page 19]]
    
    invalidated will be treated as if the section 1295 election never was 
    made.
        (2) Shareholder revocation--(i) In general. In the Commissioner's 
    discretion, upon a finding of a substantial change in circumstances, 
    the Commissioner may consent to a shareholder's request to revoke a 
    section 1295 election. Request for revocation must be made by the 
    shareholder that made the election and at the time and in the manner 
    provided in paragraph (i)(2)(ii) of this section.
        (ii) Time for and manner of requesting consent to revoke--(A) Time. 
    The shareholder must request consent to revoke the section 1295 
    election no later than 12 calendar months after the discovery of the 
    substantial change of circumstances that forms the basis for the 
    shareholder's request to revoke the section 1295 election.
        (B) Manner of making request. A shareholder requests consent to 
    revoke a section 1295 election by filing a ruling request with the 
    Office of the Associate Chief Counsel (International). The ruling 
    request must satisfy the requirements, including payment of the user 
    fee, for filing ruling requests with that office.
        (iii) When effective. Unless otherwise determined by the 
    Commissioner, revocation of a section 1295 election will be effective 
    for the first taxable year of the PFIC beginning after the date the 
    Commissioner consents to the revocation.
        (3) Effect of invalidation, termination, or revocation. An 
    invalidation, termination, or revocation of a section 1295 election--
        (i) Terminates all section 1294 elections, as provided in 
    Sec. 1.1294-1T(e), and the undistributed PFIC earnings tax liability 
    and interest thereon are due by the due date, without regard to 
    extensions, for the return for the last taxable year of the shareholder 
    to which the section 1295 election applies;
        (ii) In the Commissioner's discretion, results in a deemed sale of 
    the QEF stock on the last day of the PFIC's last taxable year as a QEF, 
    in which gain, but not loss, will be recognized and with respect to 
    which appropriate basis and holding period adjustments will be made; 
    and
        (iii) Subjects the shareholder to any other terms and conditions 
    that the Commissioner determines are necessary to ensure the 
    shareholder's compliance with sections 1291 through 1297 or any other 
    provisions of the Code.
        (4) Election after invalidation, termination or revocation. Without 
    the Commissioner's consent a shareholder whose section 1295 election 
    was invalidated, terminated, or revoked under this paragraph (i) may 
    not make the section 1295 election with respect to the PFIC before the 
    sixth taxable year ending after the taxable year in which the 
    invalidation, termination or revocation became effective.
        (j) Definitions. For purposes of this section--
        Intermediary is a nominee or shareholder of record that holds stock 
    on behalf of the shareholder or on behalf of another person in a chain 
    of ownership between the shareholder and the PFIC, and any direct or 
    indirect beneficial owner of PFIC stock (including a beneficial owner 
    that is a pass through entity) in the chain of ownership between the 
    shareholder and the PFIC.
        Pass through entity is a partnership, S corporation, trust, or 
    estate.
        Shareholder has the same meaning as the term shareholder in 
    Sec. 1.1291-9(j)(3), except that for purposes of this section, a 
    partnership and an S corporation also are treated as shareholders. 
    Furthermore, unless otherwise provided, an interest holder of a pass 
    through entity, which is treated as a shareholder of a PFIC, also will 
    be treated as a shareholder of the PFIC.
        Shareholder's election year is the taxable year of the shareholder 
    for which it made the section 1295 election.
        (k) Effective date. Section 1.1295-1T(b)(2)(iii), (b)(3), (b)(4), 
    and (c) through (j) is applicable to taxable years of shareholders 
    beginning after December 31, 1997.
        Par. 12. Section 1.1295-3T is added to read as follows:
    
    
    Sec. 1.1295-3T   Retroactive elections (temporary).
    
        (a) In general. This section prescribes the exclusive rules under 
    which a shareholder, as defined in Sec. 1.1295-1T(j), may make a 
    section 1295 election for a taxable year after the election due date, 
    as defined in Sec. 1.1295-1T(e) (retroactive election). Therefore, a 
    shareholder may not seek such relief under any other provision of the 
    law, including Sec. 301.9100 of this chapter. Paragraph (b) of this 
    section describes the general rules for a shareholder to preserve the 
    ability to make a retroactive election. These rules require that the 
    shareholder possess reasonable belief as of the election due date that 
    the foreign corporation was not a PFIC for its taxable year that ended 
    in the shareholder's taxable year to which the election due date 
    pertains, and that the shareholder file a Protective Statement to 
    preserve its ability to make a retroactive election. Paragraph (c) of 
    this section establishes the terms, conditions and other requirements 
    with respect to a Protective Statement required to be filed under the 
    general rules. Paragraph (d) of this section sets forth factors that 
    establishes a shareholder's reasonable belief that a foreign 
    corporation was not a PFIC. Paragraph (e) of this section prescribes 
    special rules for certain shareholders that are deemed to satisfy the 
    reasonable belief requirement and therefore are not required to file a 
    Protective Statement. Paragraph (f) of this section describes the 
    limited circumstances under which the Commissioner may permit a 
    shareholder that lacked the requisite reasonable belief or failed to 
    satisfy the requirements of paragraph (b) or (e) of this section to 
    make a retroactive election. Paragraph (g) of this section provides the 
    time for and manner of making a retroactive election. Paragraph (h) of 
    this section provides the effective date of this section.
        (b) General rule. Except as provided in paragraphs (e) and (f) of 
    this section, a shareholder may make a retroactive election for a 
    taxable year of the shareholder (retroactive election year) only if the 
    shareholder--
        (1) Reasonably believed, within the meaning of paragraph (d) of 
    this section, as of the election due date that the foreign corporation 
    was not a PFIC for its taxable year that ended during the retroactive 
    election year;
        (2) Filed a Protective Statement with respect to the foreign 
    corporation, applicable to the retroactive election year, in which the 
    shareholder described the basis for its reasonable belief and extended, 
    in the manner provided in paragraph (c)(4) of this section, the periods 
    of limitations on the assessment of taxes determined under sections 
    1291 and 1297 with respect to the foreign corporation (PFIC related 
    taxes) for all taxable years of the shareholder to which the Protective 
    Statement applies; and
        (3) Complied with the other terms and conditions of the Protective 
    Statement.
        (c) Protective Statement--(1) In general. A Protective Statement is 
    a statement executed under penalties of perjury by the shareholder, or 
    a person authorized to sign a federal income tax return on behalf of 
    the shareholder, that preserves the shareholder's ability to make a 
    retroactive election. To file a Protective Statement that applies to a 
    taxable year of the shareholder, the shareholder must reasonably 
    believe as of the election due date that the foreign corporation was 
    not a PFIC for the foreign corporation's taxable year that ended during 
    the retroactive election year. The Protective Statement must contain--
    
    [[Page 20]]
    
        (i) The shareholder's reasonable belief statement, as described in 
    paragraph (c)(2) of this section;
        (ii) The shareholder's agreement extending the periods of 
    limitations on the assessment of PFIC related taxes for all taxable 
    years to which the Protective Statement applies, as provided in 
    paragraph (c)(4) of this section; and
        (iii) The following information and representations--
        (A) The shareholder's name, address, taxpayer identification 
    number, and the shareholder's first taxable year to which the 
    Protective Statement applies;
        (B) The foreign corporation's name, address, and taxpayer 
    identification number, if any; and
        (C) The highest percentage of shares of each class of stock of the 
    foreign corporation held directly or indirectly by the shareholder 
    during the shareholder's first taxable year to which the Protective 
    Statement applies.
        (2) Reasonable belief statement. The Protective Statement must 
    contain a reasonable belief statement, as described in paragraph (c)(1) 
    of this section. The reasonable belief statement is a description of 
    the shareholder's basis for its reasonable belief that the foreign 
    corporation was not a PFIC for its taxable year that ended with or 
    within the shareholder's first taxable year to which the Protective 
    Statement applies. If the Protective Statement applies to a taxable 
    year or years described in paragraph (c)(5)(ii) of this section, the 
    reasonable belief statement must describe the shareholder's basis for 
    its reasonable belief that the foreign corporation was not a PFIC for 
    the foreign corporation's taxable year or years that ended in such 
    taxable year or years of the shareholder. The reasonable belief 
    statement must discuss the application of the income and asset tests to 
    the foreign corporation and the factors, including those stated in 
    paragraph (d) of this section, that affect the results of those tests.
        (3) Who executes and files the Protective Statement. The person 
    that executes and files and Protective Statement is the person that 
    makes the section 1295 election, as provided in Sec. 1.1295-1T(d).
        (4) Waiver of the periods of limitations--(i) Time for and manner 
    of extending periods of limitations. (A) In general. A shareholder that 
    files the Protective Statement with the Commissioner must extend the 
    periods of limitations on the assessment of all PFIC related taxes for 
    all of the shareholder's taxable years to which the Protective 
    Statement applies, as provided in this paragraph (c)(4). The 
    shareholder is required to execute the waiver on such form as the 
    Commission may prescribe for purposes of this paragraph (c)(4). Until 
    that form is published, the shareholder must execute a statement in 
    which the shareholder agrees to extend the periods of limitations on 
    the assessment of taxes for all the shareholder's taxable years to 
    which the Protective Statement applies, as provided in this paragraph 
    (c)(4), and agrees to the restrictions in paragraph (c)(4)(ii)(A) of 
    this section. The shareholder or a person authorized to sign the 
    shareholder's federal income tax return must sign the form or 
    statement. A properly executed form or statement authorized by this 
    paragraph (c)(4) will be deemed consented to and signed by a Service 
    Center Director or the Assistant Commissioner (International) for 
    purposes of Sec. 301.6501(c)-1(d) of this chapter.
        (B) Application of general rule to domestic partnerships-- (1) In 
    general. A domestic partnership that holds an interest in stock of a 
    PFIC satisfies the waiver requirement of paragraph (c)(4) of this 
    section pursuant to the rules of this paragraph (c)(4)(i)(B)(1). The 
    partnership must file one or more waivers obtained or arranged under 
    this paragraph (c)(4)(i)(B) as part of the Protective Statement, as 
    provided in paragraph (c)(1) of this section. The partnership must 
    either--
        (i) Obtain from each partner the partner's waiver of the periods of 
    limitations;
        (ii) Obtain from each partner a duly executed power of attorney 
    under Sec. 601.501 of this chapter authorizing the partnership to 
    extend that partner's periods of limitations, and execute a waiver on 
    behalf of the partners; or
        (iii) In the case of a domestic partnership governed by the unified 
    audit and litigation procedures of sections 6221 through 6233 (TEFRA 
    partnership), arrange for the tax matters partner (or any other person 
    authorized to enter into an agreement to extend the periods of 
    limitations), as provided in section 6229(b), to execute a waiver on 
    behalf of all the partners.
        (2) Special rules--(i) Addition of partner to non-TEFRA 
    partnership. In the case of any individual who becomes a partner in a 
    domestic partnership other than a TEFRA partnership (non-TEFRA 
    partnership) in a taxable year subsequent to the year in which the 
    partnership filed a Protective Statement, the partner and the 
    partnership must comply with the rules applicable to non-TEFRA 
    partnerships, as provided in paragraph (c)(4)(i)(B)(1) of this section, 
    by the due date, as extended, for the federal income tax return of the 
    partnership for the taxable year during which the individual became a 
    partner. Failure to so comply will render the Protective Statement 
    invalid with respect to the partnership and partners.
        (ii) Change in status from non-TEFRA partnership to TEFRA 
    partnership. If a partnership is a non-TEFRA partnership in one taxable 
    year but becomes a TEFRA partnership in a subsequent taxable year, the 
    partnership must file one or more waivers obtained or arranged under 
    this paragraph (c)(4)(i)(B)(2)(ii), as part of the Protective 
    Statement, as provided in paragraph (c)(1) of this section. The 
    partnership must either--obtain from any new partner the partner's 
    waiver described in this paragraph (c)(4); obtain from the new partner 
    a duly executed power of attorney under Sec. 601.501 of this chapter 
    authorizing the partnership to extend the partner's periods of 
    limitations, and execute a waiver on behalf of the new partner; or 
    arrange for the tax matters partner (or any other person authorized to 
    enter into an agreement to extend the periods of limitations) to 
    execute a waiver on behalf of all the partners. In each case, the 
    partnership must attach any new waiver of a partner's periods of 
    limitations, and a copy of the Protective Statement to its federal 
    income tax return for that taxable year.
        (C) Application of general rule to domestic nongrantor trusts and 
    domestic estates. A domestic nongrantor trust or a domestic estate that 
    holds an interest in stock of a PFIC satisfies the waiver requirement 
    of this paragraph (c)(4) at the entity level. For this purpose, such 
    entity must comply with rules similar to those applicable to non-TEFRA 
    partnerships, as provided in paragraph (c)(4)(i)(B)(1) of this section.
        (D) Application of general rule to S corporations. An S corporation 
    that holds an interest in stock of a PFIC satisfies the waiver 
    requirement of this paragraph (c)(4) at the S corporation level. For 
    this purpose, the S corporation must comply with rules similar to those 
    applicable to non-TEFRA partnerships, as provided in paragraph 
    (c)(4)(i)(B)(1) of this section. However, in the case of an S 
    corporation that was governed by the unified audit corporate 
    proceedings of sections 6241 through 6245 for any taxable year to which 
    a Protective Statement applies (former TEFRA S corporation), the tax 
    matters person (or any other person authorized to enter into such an 
    agreement), as was provided in sections 6241 through 6245, may execute 
    a waiver described in this paragraph (c)(4) that applies to such 
    taxable year; for any other taxable year, the former TEFRA S 
    corporation must comply with rules
    
    [[Page 21]]
    
    similar to those applicable to non-TEFRA partnerships.
        (E) Effect on waiver of complete termination of a pass through 
    entity or pass through entity's business. The complete termination of a 
    pass through entity described in paragraphs (c)(4)(i)(B) through (D) of 
    this section, or a pass through entity's trade or business, will not 
    terminate a waiver that applies to a partner, shareholder, or 
    beneficiary.
        (F) Application of general rule to foreign partnerships, foreign 
    trusts, domestic or foreign grantor trusts, and foreign estates. A U.S. 
    person that is a partner or beneficiary of a foreign partnership, 
    foreign trust, or foreign estate that holds an interest in stock of a 
    PFIC satisfies the waiver requirement of this paragraph (c)(4) at the 
    partner or beneficiary level. A U.S. person that is treated under 
    sections 671 through 679 as the owner of the portion of a domestic or 
    foreign trust that owns an interest in PFIC stock also satisfies the 
    waiver requirement at the owner level. A waiver by a partner or 
    beneficiary applies only to that partner or beneficiary, and is not 
    affected by a complete termination of the entity or the entity's trade 
    or business.
        (ii) Terms of waiver--(A) Scope of waiver. The waiver of the 
    periods of limitations is limited to the assessment of PFIC related 
    taxes. If the period of limitations for a taxable year affected by a 
    retroactive election has expired with respect to the assessment of 
    other non-PFIC related taxes, no adjustments, other than consequential 
    changes, may be made by the Internal Revenue Service or by the 
    shareholder to any other item of income, deduction, or credit for that 
    year. If the period of limitations for refunds or credits for a taxable 
    year affected by a retroactive election is open only by virtue of the 
    assessment period extension and section 6511(c), no refund or credit is 
    allowable on grounds other than adjustments to PFIC related taxes and 
    consequential changes.
        (B) Period of Waiver. The extension of the periods of limitations 
    on the assessment of PFIC related taxes will be effective for all of 
    the shareholder's taxable years to which the Protective Statement 
    applies. In addition, the waiver, to the extent it applies to the 
    period of limitations for a particular year, will terminate with 
    respect to that year no sooner than three years from the date on which 
    the shareholder files an amended return, as provided in paragraph (g) 
    of this section, for that year. For the suspension of the running of 
    the period of limitations for the collection of taxes for which a 
    shareholder has elected under section 1294 to extend the time for 
    payment, as provided in paragraph (g)(3)(ii) of this section, see 
    sections 6503(i) and 6229(h).
        (5) Time for and manner of filing a Protective Statement--(i) In 
    general. Except as provided in paragraph (c)(5)(ii) of this section, a 
    Protective Statement must be attached to the shareholder's federal 
    income tax return for the shareholder's first taxable year to which the 
    Protective Statement will apply. The shareholder also must file a copy 
    of the Protective Statement with the Philadelphia Service Center, P.O. 
    21086, Philadelphia, PA 19114. The shareholder must file its return and 
    the copy of the Protective Statement by the due date, as extended, for 
    the return.
        (ii) Special rule for taxable years ended before January 2, 1998. A 
    shareholder may file a Protective Statement that applies to the 
    shareholder's taxable year or years that ended before January 2, 1998, 
    provided the period of limitations on the assessment of taxes for any 
    such year has not expired (open year). The shareholder must file the 
    Protective Statement applicable to such open year or years, as provided 
    in paragraph (c)(5)(i) of this section, by the due date, as extended, 
    for the shareholder's return for the first taxable year ending after 
    January 2, 1998.
        (6) Applicability of the Protective Statement--(i) In general. 
    Except as otherwise provided in this paragraph (c)(6), a Protective 
    Statement applies to the shareholder's first taxable year for which the 
    Protective Statement was filed and to each subsequent taxable year. The 
    Protective Statement will not apply to any taxable year of the 
    shareholder during which the shareholder does not own any stock of the 
    foreign corporation or to any taxable year thereafter. Accordingly, if 
    the shareholder has not made a retroactive election with respect to the 
    previously owned stock by the time the shareholder reacquires stock of 
    the foreign corporation, the shareholder must file another Protective 
    Statement to preserve its right to make a retroactive election with 
    respect to the later acquired stock. For the rule that provides that a 
    section 1295 election made with respect to a foreign corporation 
    applies to stock of that corporation acquired after a lapse in 
    ownership, see Sec. 1.1295-1T(c)(2)(iii).
        (ii) Invalidity of the Protective Statement. A shareholder will be 
    treated as if it never filed a Protective Statement if--
        (A) The shareholder failed to make a retroactive election by the 
    date prescribed for making the retroactive election in paragraph (g)(1) 
    of this section; or
        (B) The waiver of the periods of limitations terminates (by reason 
    of a court decision or other determination) with respect to any taxable 
    year before the expiration of three years from the date of filing of an 
    amended return for that year pursuant to paragraph (g) of this section.
        (7) Retention of Protective Statement and information demonstrating 
    reasonable belief. A shareholder that files a Protective Statement must 
    retain a copy of the Protective Statement and its attachments and must, 
    for each taxable year of the shareholder to which the Protective 
    Statement applies, retain information sufficient to demonstrate the 
    shareholder's reasonable belief that the foreign corporation was not a 
    PFIC for the taxable year of the foreign corporation ending during each 
    such taxable year of the shareholder.
        (d) Reasonable belief--(1) In general. A foreign corporation is a 
    PFIC for a taxable year if the foreign corporation satisfies either the 
    income or asset test of section 1296(a). To determine whether a 
    shareholder had reasonable belief that the foreign corporation is not a 
    PFIC under section 1296(a), the shareholder must consider all relevant 
    facts and circumstances. Reasonable belief may be based on a variety of 
    factors, including reasonable asset valuations as well as reasonable 
    interpretations of the applicable provisions of the Code, regulations, 
    and administrative guidance regarding the direct and indirect ownership 
    of the income or assets of the foreign corporation, the proper 
    character of that income or those assets, and similar issues. 
    Reasonable belief may be based on reasonable predictions regarding 
    income to be earned and assets to be owned in subsequent years where 
    qualifications of the foreign corporation as a PFIC for the current 
    taxable year will depend on the qualification of the corporation as a 
    PFIC in a subsequent year. Reasonable belief may be based on an 
    analysis of generally available financial information of the foreign 
    corporation. To determine whether a shareholder had reasonable belief 
    that the foreign corporation was not a PFIC, the Commissioner may 
    consider the size of the shareholder's interest in the foreign 
    corporation.
        (2) Knowledge of law required. Reasonable belief must be based on a 
    good faith effort to apply the Code, regulations, and related 
    administrative guidance. Any person's failure to know or apply these 
    provisions will not form the basis of reasonable belief.
    
    [[Page 22]]
    
        (e) Special rules for qualified shareholders--(1) In general. A 
    shareholder that is a qualified shareholder, as defined in paragraph 
    (e)(2) of this section, for a taxable year of the shareholder is not 
    required to satisfy the reasonable belief requirement of paragraph 
    (b)(1) of this section or file a Protective Statement to preserve its 
    ability to make a retroactive election with respect to such taxable 
    year. Accordingly, a qualified shareholder may make a retroactive 
    election for any open taxable year in the shareholder's holding period. 
    The retroactive election will be treated as made in the earliest 
    taxable year of the shareholder during which the foreign corporation 
    qualified as a PFIC (including a taxable year ending prior to January 
    2, 1998) and the shareholder will be treated as a shareholder of a 
    pedigreed QEF, as defined in Sec. 1.1291-9(j)(2)(ii), provided the 
    shareholder--
        (i) Has been a qualified shareholder with respect to the foreign 
    corporation for all taxable years of the shareholder included in the 
    shareholder's holding period during which the foreign corporation was a 
    PFIC, or in the case of taxable years ending before January 2, 1998, 
    the shareholder satisfies the criteria of a qualified shareholder, for 
    all such years; or
        (ii) Has been a qualified shareholder, or in the case of taxable 
    years ending before January 2, 1998 satisfies the criteria of a 
    qualified shareholder, for all taxable years in its holding period 
    before it filed a Protective Statement, which Protective Statement is 
    applicable to all subsequent years, beginning with the first taxable 
    year in which the shareholder is not a qualified shareholder.
        (2) Qualified shareholder. A shareholder will be treated as a 
    qualified shareholder for a taxable year if the shareholder did not 
    file a Protective Statement applicable to an earlier taxable year 
    included in the shareholder's holding period of the stock of the 
    foreign corporation currently held and--
        (i) At all times during the taxable year the shareholder owned, 
    within the meaning of section 958, directly, indirectly, or 
    constructively, less than two percent of the vote and value of each 
    class of stock of the foreign corporation; and
        (ii) With respect to the taxable year of the foreign corporation 
    ending within the shareholder's taxable year, the foreign corporation 
    or U.S. counsel for the foreign corporation indicated in a public 
    filing, disclosure statement or other notice provided to U.S. persons 
    that are shareholders of the foreign corporation (corporate filing) 
    that the foreign corporation--
        (A) Reasonably believes that it is not or should not constitute a 
    PFIC for the corporation's taxable year; or
        (B) Is unable to conclude that it is not or should not be a PFIC 
    (due to certain asset valuation or interpretation issues, or because 
    PFIC status will depend on the income or assets of the foreign 
    corporation in the corporation's subsequent taxable years) but 
    reasonably believes that, more likely than not, it ultimately will not 
    be a PFIC.
        (3) Exceptions. Notwithstanding paragraph (e)(2)(ii) of this 
    section, a shareholder will not be treated as a qualified shareholder 
    for a taxable year of the shareholder if the shareholder knew or had 
    reason to know that a corporate filing regarding the foreign 
    corporation's PFIC status was inaccurate, or knew that the foreign 
    corporation was a PFIC for the taxable year of the foreign corporation 
    ending with or within such taxable year of the shareholder. For 
    purposes of this paragraph, a shareholder will be treated as knowing 
    that a foreign corporation was a PFIC if the principal activity of the 
    foreign corporation, directly or indirectly, is owning or trading a 
    diversified portfolio of stock, securities, or other financial 
    contracts.
        (f) Special consent--(1) In general. A shareholder that has not 
    satisfied the requirements of paragraph (b) or (e) of this section may 
    request the consent of the Commissioner to make a retroactive election 
    for a taxable year of the shareholder provided the shareholder 
    satisfies the requirements set forth in this paragraph (f). The 
    Commissioner will grant relief under this paragraph (f) only if--
        (i) The shareholder reasonably relied on a qualified tax 
    professional, within the meaning of paragraph (f)(2) of this section;
        (ii) Granting consent will not prejudice the interests of the 
    United States government, as provided in paragraph (f)(3) of this 
    section;
        (iii) The shareholder requests consent under paragraph (f) of this 
    section before a representative of the Internal Revenue Service raises 
    upon audit the PFIC status of the corporation for any taxable year of 
    the shareholder; and
        (iv) The shareholder satisfies the procedural requirements set 
    forth in paragraph (f)(4) of this section.
        (2) Reasonable reliance on a qualified tax professional--(i) In 
    general. Except as provided in paragraph (f)(2)(ii) of this section, a 
    shareholder is deemed to have reasonably relied on a qualified tax 
    professional only if the shareholder reasonably relied on a qualified 
    tax professional (including a tax professional employed by the 
    shareholder) who failed to identify the foreign corporation as a PFIC 
    or failed to advise the shareholder of the consequences of making, or 
    failing to make, the section 1295 election. A shareholder will not be 
    considered to have reasonably relied on a qualified tax professional if 
    the shareholder knew, or reasonably should have known, that the foreign 
    corporation was a PFIC and the availability of a section 1295 election, 
    or knew or reasonably should have known that the qualified tax 
    professional--
        (A) Was not competent to render tax advice with respect to the 
    ownership of shares of a foreign corporation; or
        (B) Did not have access to all relevant facts and circumstances.
        (ii) Shareholder deemed to have not reasonably relied on a 
    qualified tax professional. For purposes of this paragraph (f)(2), a 
    shareholder is deemed to have not reasonably relied on a qualified tax 
    professional if the shareholder was informed by the qualified tax 
    professional that the foreign corporation was a PFIC and of the 
    availability of the section 1295 election and related tax consequences, 
    but either chose not to make the section 1295 election or was unable to 
    make a valid section 1295 election.
        (3) Prejudice to the interests of the United States government--(1) 
    General rule. Except as otherwise provided in paragraph (f)(3)(ii) of 
    this section, the Commissioner will not grant consent under paragraph 
    (f) of this section if doing so would prejudice the interests of the 
    United States government. The interests of the United States government 
    are prejudiced if granting relief would result in the shareholder 
    having a lower tax liability, taking into account applicable interest 
    charges, in the aggregate for all years affected by the retroactive 
    election (other than by a de minimis amount) than the shareholder would 
    have had if the shareholder had made the section 1295 election by the 
    election due date. The time value of money is taken into account for 
    purposes of this computation.
        (ii) Elimination of prejudice to the interests of the United States 
    government. Notwithstanding the general rule of paragraph (f)(3)(i) of 
    this section, if granting relief would prejudice the interests of the 
    United States government, the Commissioner may, in the Commissioner's 
    sole discretion, grant consent to make the election provided the 
    shareholder enters into a closing agreement with the Commissioner that 
    requires the shareholder to pay an amount sufficient
    
    [[Page 23]]
    
    to eliminate any prejudice to the United States government as a 
    consequence of the shareholder's inability to file amended returns for 
    closed taxable years.
        (4) Procedural requirements--(i) Filing instructions. A shareholder 
    requests consent under paragraph (f) of this section to make a 
    retroactive election by filing with the Office of the Associate Chief 
    Counsel (International) a ruling request that includes the affidavits 
    required by this paragraph (f)(4). The ruling request must satisfy the 
    requirements, including payment of the user fee, for ruling requests 
    filed with that office.
        (ii) Affidavit from shareholder. The shareholder, or a person 
    authorized to sign a federal income tax return on behalf of the 
    shareholder, must submit a detailed affidavit describing the events 
    that led to the failure to make a section 1295 election by the election 
    due date, and to the discovery thereof. The shareholder's affidavit 
    must describe the engagement and responsibilities of the qualified tax 
    professional as well as the extent to which the shareholder relied on 
    the tax professional. The shareholder must sign the affidavit under 
    penalties of perjury. An individual who signs for an entity must have 
    personal knowledge of the facts and circumstances at issue.
        (iii) Affidavits from other persons. The shareholder must submit 
    detailed affidavits from individuals having knowledge or information 
    about the events that led to the failure to make a section 1295 
    election by the election due date, and to the discovery thereof. These 
    individuals must include the qualified tax professional upon whose 
    advice the shareholder relied, as well as any individual (including an 
    employee of the shareholder) who made a substantial contribution to the 
    return's preparation, and any accountant or attorney, knowledgeable in 
    tax matters, who advised the shareholder with regard to its ownership 
    of the stock of the foreign corporation. Each affidavit must describe 
    the individual's engagement and responsibilities as well as the advice 
    concerning the tax treatment of the foreign corporation that that 
    individual provided to the shareholder. Each affidavit also must 
    include the individual's name, address, and taxpayer identification 
    number, and must be signed by the individual under penalties of 
    perjury.
        (iv) Other information. In connection with a request for consent 
    under this paragraph (f), a shareholder must provide any additional 
    information requested by the Commissioner.
        (v) Notification of Internal Revenue Service. The shareholder must 
    notify the branch of the Associate Chief Counsel (International) 
    considering the request for relief under this paragraph (f) if, while 
    the shareholder's request for consent is pending, the Internal Revenue 
    Service begins an examination of the shareholder's return for the 
    retroactive election year or for any subsequent taxable year during 
    which the shareholder holds stock of the foreign corporation.
        (vi) Who requests special consent under this paragraph (f) and who 
    enters into a closing agreement. The person that requests consent under 
    this paragraph (f) is the person that makes the section 1295 election, 
    as provided in Sec. 1.1295-1T(d). If a shareholder is required to enter 
    into a closing agreement with the Commissioner, as described in 
    paragraph (f)(3)(ii) of this section, rules similar to those under 
    paragraphs (c)(4)(i) (B) through (E) of this section apply for purposes 
    of determining the person that enters into the closing agreement.
        (g) Time for and manner of making a retroactive election--(1) Time 
    for making a retroactive election--(i) In general. Except as otherwise 
    provided in paragraph (g)(1)(ii) of this section, a shareholder must 
    make a retroactive election, in the manner provided in paragraph (g)(2) 
    of this section, on or before the due date, as extended, for the 
    shareholder's return--
        (A) In the case of a shareholder that makes a retroactive election 
    pursuant to paragraph (b) or (e) of this section, for the taxable year 
    in which the shareholder determines or reasonably should have 
    determined that the foreign corporation was a PFIC; or
        (B) In the case of a shareholder that obtains the consent of the 
    Commissioner pursuant to paragraph (f) of this section for the taxable 
    year in which such consent is granted.
        (ii) Transition rule. A shareholder that files a Protective 
    Statement for a taxable year described in paragraph (c)(5)(ii) of this 
    section may make a retroactive election by the due date, as extended, 
    for the return for the first taxable year ended after January 2, 1998 
    even if the shareholder determined or should have determined that the 
    foreign corporation was a PFIC for a year described in paragraph 
    (c)(5)(ii) of this section at any time on or before January 2, 1998.
        (iii) Ownership not required at time retroactive election is made. 
    The shareholder need not own shares of the foreign corporation at the 
    time the shareholder makes a retroactive election with respect to the 
    foreign corporation.
        (2) Manner of making a retroactive election. A shareholder that has 
    satisfied the requirements of paragraph (b) or (e) of this section, or 
    a shareholder that has been granted consent under paragraph (f) of this 
    section, must make a retroactive election in the manner provided in 
    Form 8621 for making a section 1295 election, and must attach Form 8621 
    to an amended return for the later of the retroactive election year or 
    the earliest open taxable year of the shareholder. The shareholder also 
    must file an amended return for each of its subsequent taxable years 
    affected by the retroactive election. In each amended return the 
    shareholder must redetermine its income tax liability for that year to 
    take into account the assessment of PFIC related taxes. If the period 
    of limitations for the assessment of taxes for a taxable year affected 
    by the retroactive election has expired except to the extent the waiver 
    of limitations, described in paragraph (c)(4) of this section, has 
    extended such period, no adjustments, other than consequential changes, 
    may be made to any other items of income, deduction, or credit in that 
    year. In addition, the shareholder must pay all taxes and interest 
    owing by reason of the PFIC and QEF status of the foreign corporation 
    in those years (except to the extent a section 1294 election extends 
    the time to pay the taxes and interest). A shareholder that filed a 
    Protective Statement must attach to Form 8621 filed with each amended 
    return a representation that the shareholder, until the taxable year in 
    which it determined or reasonably should have determined that the 
    foreign corporation was a PFIC, reasonably believed, within the meaning 
    of paragraph (d) of this section, that the foreign corporation was not 
    a PFIC in the taxable year for which the amended return is filed, and 
    in all other taxable years to which the Protective Statement applies. A 
    shareholder that entered into a closing agreement must comply with the 
    terms of that agreement, as provided in paragraph (f)(3)(ii) of this 
    section, to eliminate any prejudice to the United States government's 
    interests, as described in paragraph (f)(3) of this section.
        (3) Who makes the retroactive election. The person that makes the 
    retroactive election is the person that makes the section 1295 
    election, as provided in Sec. 1.1295-1T(d). A partner, shareholder, or 
    beneficiary for which a pass through entity, as described in paragraphs 
    (c)(4)(i)(B) through (D) of this section, filed a Protective Statement 
    may make a retroactive election, if the pass through entity completely 
    terminates its business or otherwise ceases to exist.
        (4) Other elections--(i) Section 1291(d)(2) election. If the 
    foreign
    
    [[Page 24]]
    
    corporation for which the shareholder makes a retroactive election will 
    be treated as an unpedigreed QEF, as defined in Sec. 1.1291-
    9(j)(2)(iii), with respect to the shareholder, the shareholder may make 
    an election under section 1291(d)(2) to purge its holding period of the 
    years or parts of years before the effective date of the retroactive 
    election. If the qualification date, within the meaning of Sec. 1.1291-
    9(e) or 1.1291-10(e), falls in a taxable year for which the period of 
    limitations has expired, the shareholder may treat the first day of the 
    retroactive election year as the qualification date. The shareholder 
    may make a section 1291(d)(2) election at the time that it makes the 
    retroactive election, but no later than two years after the date that 
    the amended return in which the retroactive election is made is filed. 
    For the requirements for making a section 1291(d)(2) election, see 
    Secs. 1.1291-9 and 1.1291-10.
        (ii) Section 1294 election. A shareholder may make an election 
    under section 1294 to extend the time for payment of tax on the 
    shareholder's pro rata shares of the ordinary earnings and net capital 
    gain of the foreign corporation reported in the shareholder's amended 
    return, and section 6621 interest attributable to such tax, but only to 
    the extent the tax and interest are attributable to earnings that have 
    not been distributed to the shareholder. The shareholder must make a 
    section 1294 election for a taxable year at the time that it files its 
    amended return for that year, as provided in paragraph (g)(1) of this 
    section. For the requirements for making a section 1294 election, see 
    Sec. 1.1294-1T.
        (h) Effective date. The rules of this section are effective as of 
    January 2, 1998.
        Par. 13. Section 1.1297-3T(c) is added to read as follows:
    
    
    Sec. 1.1297-3T  Deemed sale election by a United States person that is 
    a shareholder of a passive foreign investment company (temporary).
    
    * * * * *
        (c) Application of deemed dividend election rules.--(1) In general. 
    A shareholder of a former PFIC, within the meaning of Sec. 1.1291-
    9(j)(2)(iv), that was a controlled foreign corporation, within the 
    meaning of section 957(a) (CFC), during its last taxable year as a PFIC 
    under section 1296(a), may apply the rules of section 1291(d)(2)(B) and 
    Sec. 1.1291-9 to an election under section 1297(b)(1) and this section 
    made by the time and in the manner provided in paragraph (b) of this 
    section.
        (2) Transition rule. If the time for making an election under this 
    section, as provided in paragraph (b) of this section, expired before 
    January 2, 1998, a shareholder that applied rules similar to the rules 
    of section 1291(d)(2)(A) and Sec. 1.1291-10 to an election under this 
    section made with respect to a corporation that was a CFC during its 
    last taxable year as a PFIC under section 1296(a) may file an amended 
    return for the taxable year that includes the termination date, as 
    defined in paragraph (a) of this section, and apply the rules of 
    section 1291(d)(2)(B) and Sec. 1.1291-9 at any time before the 
    expiration of the period of limitations for the assessment of taxes for 
    that taxable year.
        (3) Effective date. The rules of this paragraph are effective as of 
    January 2, 1998.
    
    PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
    
        Par. 14. The authority citation for part 602 continues to read as 
    follows:
    
        Authority: 26 U.S.C. 7805.
        Par. 15. In Sec. 602.101, paragraph (c) is amended by adding 
    entries in numerical order to the table to read as follows:
    
    
    Sec. 602.101  OMB Control numbers.
    
    * * * * *
        (c) * * *
    
    ------------------------------------------------------------------------
                                                                 Current OMB
        CFR part of section where identified and described       control No.
    ------------------------------------------------------------------------
                                                                            
                      *        *        *        *        *                 
    1.1295-1T.................................................     1545-1555
    1.1295-3T.................................................     1545-1555
                                                                            
                      *        *        *        *        *                 
    ------------------------------------------------------------------------
    
    Michael P. Dolan,
    Deputy Commissioner of Internal Revenue.
        Approved: December 15, 1997.
    Donald C. Lubick,
    Acting Assistant Secretary of the Treasury.
    [FR Doc. 97-33985 Filed 12-31-97; 8:45 am]
    BILLING CODE 4830-01-P
    
    
    

Document Information

Effective Date:
1/2/1998
Published:
01/02/1998
Department:
Internal Revenue Service
Entry Type:
Rule
Action:
Temporary and final regulations.
Document Number:
97-33985
Dates:
These regulations are effective January 2, 1998.
Pages:
6-24 (19 pages)
Docket Numbers:
TD 8750
RINs:
1545-AV40: Qualified Electing Fund Elections
RIN Links:
https://www.federalregister.gov/regulations/1545-AV40/qualified-electing-fund-elections
PDF File:
97-33985.pdf
CFR: (18)
26 CFR 1.1502-77(a)
26 CFR 1.1291-9(j)(3)
26 CFR 1.1291-9(j)(2)(i)
26 CFR 1.1294-1T(e)
26 CFR 602.101
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