[Federal Register Volume 67, Number 147 (Wednesday, July 31, 2002)]
[Proposed Rules]
[Pages 49634-49643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19124]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-112306-00]
RIN 1545-AY17


Electing Mark to Market for Marketable Stock

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

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SUMMARY: This document contains procedures for certain United States 
persons holding marketable stock in a passive foreign investment 
company (PFIC) to elect mark to market treatment for that stock under 
section 1296 and related provisions of sections 1291 and 1295. These 
proposed regulations affect United States persons owning marketable 
stock in a PFIC. This document also provides notice of a public hearing 
on these proposed regulations.

DATES: Written comments and outlines of oral comments to be presented 
at the public hearing scheduled for November 6, 2002, at 10 a.m., must 
be received by October 16, 2002.

ADDRESSES: Send submissions to: CC: IT&A:RU (REG-112306-00), room 5226, 
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington, 
DC 20044. In the alternative, submissions may be hand delivered between 
the hours of 8 a.m. and 5 p.m. to CC: IT&A:RU (REG-112306-00), 
Courier's Desk, Internal Revenue Building, 1111 Constitution Avenue NW. 
, Washington, DC. Alternatively, taxpayers may submit comments 
electronically directly to the IRS Internet site at: http://www.irs.gov/regs. The public hearing will be held in room 4718, 
Internal Revenue Service Building, 1111 Constitution Avenue, NW., 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Mark 
Pollard at (202) 622-3850, concerning submissions and the hearing, Ms. 
Lanita Vandyke (202) 622-7180 (not toll free numbers).

SUPPLEMENTARY INFORMATION:

Background

    Since the enactment of the Tax Reform Act of 1986, United States 
persons that own PFIC stock have been subject to two alternative tax 
regimes: the interest charge rules under section 1291 of the Internal 
Revenue Code (Code) and the qualified electing fund (QEF) rules under 
section 1293. Congress recognized that the interest charge rules are a 
substantial source of complexity for PFIC shareholders and that some 
shareholders would prefer the current inclusion method afforded by the 
QEF regime, but are unable to obtain the necessary information from the 
PFIC. See H.R. Rep. No. 105-148, at 533 (1997); S. Rep. No. 105-33 at 
94 (1997). Accordingly, Congress enacted new section 1296 in the 
Taxpayer Relief Act of 1997 to provide shareholders with an

[[Page 49635]]

alternative method to include income currently with respect to their 
interest in a PFIC by allowing them to elect to mark to market their 
PFIC stock provided the stock is marketable. In 1998, Congress enacted 
certain technical corrections to section 1296 and related provisions, 
including rules to address the overlap between the PFIC and other mark 
to market provisions in the Code. IRS Restructuring and Reform Act of 
1998, section 6011(c).
    Proposed Sec. 1.1291-8 (INTL-656-87) had been published on April 1, 
1992 (57 FR 11024). This proposed regulation would have provided an 
election for certain regulated investment companies (RICs) to use a 
mark to market method for their PFIC stock. Although Sec. 1.1291-8 was 
originally proposed to be effective prospectively, the IRS subsequently 
notified taxpayers that the proposed regulations, when finalized, would 
permit this limited mark to market election to be made only for taxable 
years ending after March 31, 1992, and before April 1, 1993. Notice 92-
53 (1992-2 C.B. 384). As a result of the enactment of section 1296, 
proposed Sec. 1.1291-8 was withdrawn (64 FR 5015); see also Notice 99-
14 (1999-11 I.R.B. 7).
    On January 25, 2000, final regulations were published under section 
1296(e) (2000 final regulations). TD 8867 (65 FR 3817). The 2000 final 
regulations provide guidance regarding the definition of marketable 
stock for purposes of section 1296.

In General

    United States persons who own marketable stock (as defined in 
section 1296(e)) in a PFIC may elect to mark to market that stock 
annually pursuant to section 1296 (section 1296 election). United 
States persons making a section 1296 election with respect to PFIC 
stock (section 1296 stock) are not subject to the generally applicable 
interest charge regime of section 1291. The section 1296 election is 
available to United States persons and controlled foreign corporations 
(CFCs) that own, or are treated as owning, marketable stock in a PFIC.

Explanation of Provisions

A. Changes to Proposed Sec. 1.1291-1(c): Coordination of PFIC Rules and 
Other Mark to Market Provisions

    Except for the coordination rules discussed herein, section 
1291(d)(1) provides that the interest charge regime does not apply in 
the case of PFIC stock that is marked to market under (i) section 1296, 
or (ii) section 475 or any other provision of chapter 1 of the Code. 
This regulation revises Sec. 1.1291-1(c), 57 FR 11024, proposed April 
1, 1992, to incorporate this coordination rule and to clarify that the 
interest charge regime does not apply to a United States person that 
marks to market its PFIC stock under any provision of chapter 1 of the 
Code, without regard to whether such regime is mandatory or elective. 
Proposed Sec. 1.1295-1(i)(3) and proposed Sec. 1.1296-1(h)(3)(i) 
further clarify that, with respect to taxation under a mark to market 
provision other than under section 1296, this coordination rule applies 
without regard to whether the taxpayer also has made a section 1296 
election or a QEF election with respect to such stock, by providing 
that either election is automatically terminated immediately following 
the close of the taxpayer's taxable year preceding the first taxable 
year for which the stock of the PFIC is subject to the mark to market 
regime under another provision of chapter 1 of the Code.
    The proposed regulations also provide a special rule for situations 
where a taxpayer owns PFIC stock that becomes subject to a mark to 
market regime other than section 1296 after the first taxable year of 
the taxpayer's holding period. In such instances, the taxpayer must 
apply the coordination rules of Sec. 1.1291-1(c)(3)(ii) for the first 
taxable year that such other mark to market regime applies. Thereafter, 
the general rule above, overriding the application of the section 1291, 
QEF and PFIC mark to market regimes, applies for all subsequent taxable 
years provided that the PFIC stock continues to be marked to market 
under another provision of chapter 1 of the Code.

B. Changes to Sec. 1.1295-1

1. Revocation of QEF Election
    The proposed regulations also provide guidance on the coordination 
of the mark to market provisions under section 1296 with the existing 
rules for QEFs. In general, the Service considered the circumstances in 
which a taxpayer would be permitted to switch from one regime to 
another in light of the relative administrative burdens imposed under 
each set of rules, and the stated intent of Congress that one of the 
purposes for enacting section 1296 was to provide another alternative 
to the interest charge rules of section 1291 that would be available in 
instances where taxpayers cannot obtain sufficient information to make 
a QEF election. See H.R. Rep. No. 105-148, at 533 (1997); S. Rep. No. 
105-33 at 94 (1997). Accordingly, the proposed regulations are 
structured to facilitate an election for mark to market treatment by 
permitting a taxpayer with an existing QEF election to make a section 
1296 election and terminate the existing QEF election without requiring 
consent of the Commissioner. In instances where a taxpayer has an 
existing section 1296 election, it is permitted to make a QEF election 
only if the section 1296 election is terminated as provided by section 
1296 and the regulations thereunder (e.g., if the PFIC stock ceases to 
be marketable) or is revoked with consent of the Commissioner.
2. Re-Election of QEF Regime
    The proposed regulations further provide that if the section 1296 
election is subsequently terminated or revoked, other than because the 
taxpayer marks to market under another provision of the Code, (e.g., 
because the stock is no longer marketable), the shareholder will be 
subject to tax under section 1291, unless a new QEF election is made. 
Section 1.1295-1(i)(4) currently provides that without the 
Commissioner's consent, a shareholder whose QEF election was 
invalidated, terminated, or revoked may not make a new QEF 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. The regulations propose to amend Sec. 1.1295-1(i) to 
provide an exception for situations where a United States person's QEF 
election was terminated because it elected to mark to market such stock 
under section 1296, and the 1296 election was subsequently terminated 
because the stock ceased to be marketable. A similar exception is 
provided for situations where a United States person's QEF election is 
terminated because its PFIC stock is marked to market under another 
provision of chapter 1 of the Code, and such provision subsequently 
ceases to apply. In either circumstance, consent of the Commissioner 
will not be required for the United States person to re-elect QEF 
status prior to the sixth taxable year ending after the taxable year 
that its QEF election was terminated. In situations where a QEF 
election is terminated because a United States person makes a section 
1296 election, and then this election terminates for some reason other 
than the stock ceasing to be marketable (e.g., pursuant to the consent 
of the Commissioner under proposed Sec. 1.1296-1(h)(3)(A)), a taxpayer 
may request consent under Sec. 1.1295-1(i) to make a new QEF election 
prior to such sixth taxable year.
    Special issues arise in situations where a taxpayer makes a QEF 
election with respect to stock that was

[[Page 49636]]

previously marked to market under section 1296 (or where a taxpayer re-
elects QEF treatment after a termination of mark-to-market treatment). 
In such situations, the taxpayer shifts from annual inclusions under 
the mark to market rules that are based on the amount of unrealized 
gain (or loss) in the stock of the PFIC, to annual inclusions of a pro 
rata share of the ordinary earnings and long-term capital gain of a 
PFIC under the QEF rules. For example, unrealized items that were 
reflected in annual mark to market inclusions could be taken into 
account subsequently under the QEF rules when realized. These issues 
presently are addressed through the respective basis adjustments 
provided for under the QEF and mark to market rules. See sections 
1293(d) and 1296(b). Comments are requested on possible alternative 
approaches for addressing this situation with a view toward ensuring 
administrability and avoiding additional complexity.

C. Addition of Sec. 1.1296-1

1. Effect of Election
    The proposed regulations provide that, on the last day of a taxable 
year to which a section 1296 election applies, the United States person 
recognizes gain to the extent that the fair market value of section 
1296 stock exceeds its adjusted basis. Any such gain shall be treated 
as ordinary income. To the extent that the adjusted basis of section 
1296 stock exceeds its fair market value, the United States person may 
take a deduction equal to the lesser of the amount of such excess or 
the unreversed inclusions with respect to such stock. Any such 
deduction will be treated as an ordinary loss.
    Under former proposed Sec. 1.1291-8, certain RICs were permitted to 
mark to market PFIC stock. For RICs that elect to mark to market their 
PFIC stock under section 1296, the unreversed inclusions include 
amounts that were included in gross income under former proposed 
Sec. 1.1291-8 with respect to that stock for prior taxable years. See 
Notice 92-53 (1992-2 C.B. 384).
    The proposed regulations also address the application of section 
1296 in taxable years in which the foreign corporation has ceased to be 
a PFIC under section 1297(a), and is not treated as a PFIC under 
section 1298(b)(1) (the once a PFIC, always a PFIC rule). The proposed 
regulations clarify that there will be no mark to market inclusions or 
deductions for taxable years in which the foreign corporation is not a 
PFIC. The suspension of mark to market treatment while the foreign 
corporation is not a PFIC is consistent with Sec. 1.1295-1(c)(2)(ii), 
which provides that a shareholder that has made a QEF election with 
respect to stock of a foreign corporation is not required to include 
its pro rata share of ordinary income and capital gains under section 
1293 for years in which the foreign corporation is not a PFIC.
    In order to accomplish this suspension of mark to market treatment, 
the proposed regulations start a new holding period, for all purposes 
of the PFIC rules, in stock that is marked to market under section 1296 
beginning on the first day of the first taxable year beginning after 
the last taxable year for which section 1296 applied. Accordingly, 
prior periods during which the foreign corporation was a PFIC, but for 
which the shareholder had a section 1296 election in effect, are not 
included in such shareholder's holding period for purposes of applying 
section 1298(b)(1).
    Cessation of a foreign corporation's status as a PFIC will not, 
however, terminate a section 1296 election (although a shareholder may 
request consent of the Commissioner to revoke the election in such 
instance, as discussed below). Thus, if the foreign corporation once 
again becomes a PFIC in any taxable year after a year in which it is 
not treated as a PFIC, the shareholder's original section 1296 election 
continues to apply and the shareholder must mark to market the PFIC 
stock for such year.
2. Adjustment to Basis
    The proposed regulations provide that a United States person will 
increase the adjusted basis of its section 1296 stock by the amount of 
mark to market gain recognized. Conversely, if the United States person 
is entitled to a deduction under this section, the adjusted basis of 
its section 1296 stock is decreased by the amount of such deduction.
    If a United States person owns section 1296 stock through a foreign 
partnership, foreign trust, or foreign estate, the basis rules apply to 
both the United States person and the entity or entities through which 
the United States person is considered to own the stock. The increase 
or decrease in the adjusted basis of the stock in the hands of the 
foreign partnership, foreign trust, or foreign estate will be solely 
attributable to the electing United States person (in a manner similar 
to an adjustment under section 743(b)), and will apply only for 
purposes of determining the subsequent U.S. income tax treatment of the 
United States person with respect to such stock. The IRS considered 
imposing reporting and record keeping requirements on the foreign 
entities to track the adjustments to the adjusted basis of any section 
1296 stock they held directly or indirectly. The IRS decided not to 
adopt this approach in the proposed regulations because one of the 
motivations for the enactment of section 1296 was to provide an 
alternative tax regime to section 1291 for taxpayers that could not 
obtain sufficient information from a PFIC to make a QEF election. 
Comments are requested about other approaches for satisfying the 
compliance obligations of U.S. persons making a section 1296 election 
and the intervening entity or entities through which such stock is 
owned.
    The taxpayer and the entity through which the taxpayer owns section 
1296 stock may have different taxable years. Consistent with the 
general approach of sections 706(a), 652(c), and 662(c), a United 
States person who owns stock in a PFIC through any foreign partnership, 
foreign trust, or foreign estate determines the mark to market gain or 
mark to market loss with reference to the last day of the taxable year 
of the foreign partnership, foreign trust or foreign estate and then 
includes that gain or loss in the taxable year of such United States 
person that includes the last day of the taxable year of the entity.
    Finally, if PFIC stock is acquired from a decedent by bequest, 
devise, or inheritance (or by the decedent's estate) and a mark to 
market election was in effect on the decedent's date of death, the 
adjusted basis of such stock in the hands of the recipient will be 
equal to the lesser of the basis determined under section 1014 or the 
adjusted basis of the stock in the hands of the decedent immediately 
prior to his or her death.
3. Rule for Individuals That Become Subject to United States Income 
Taxation
    The proposed regulations provide that if any individual becomes a 
United States person in a taxable year beginning after December 31, 
1997, the adjusted basis (before any adjustments resulting from the 
mark to market election are made) of any stock in a PFIC owned by such 
individual on the first day of such taxable year shall be treated as 
being the greater of its fair market value on such first day or its 
adjusted basis on such first day. This special rule for determining the 
taxpayer's adjusted basis will apply only for purposes of section 1296 
and the regulations thereunder. Accordingly, any gain or loss 
recognized on the disposition of section 1296 stock that is 
attributable to the period before the individual became a United States

[[Page 49637]]

person will be subject to the general rules of the Code, including any 
limitation on the deductibility of a loss, for example, under section 
1211.
4. Indirect Ownership of PFIC Stock
    Except as discussed below in the case of eligible RICs, the 
proposed regulations apply the specific attribution rules of section 
1296(g) in determining whether PFIC stock is considered owned by a 
taxpayer for purposes of section 1296 and, therefore, with respect to 
which the taxpayer is permitted to make a section 1296 election. Thus, 
a United States person will be permitted to make a section 1296 
election with respect to stock owned through a foreign partnership, 
foreign trust, or foreign estate. In general, stock owned by or for 
such entities will be considered as being owned proportionately by its 
partners or beneficiaries. For purposes of this rule, stock owned, 
directly or indirectly, by or for a foreign trust described in sections 
671 through 679, shall be considered as being owned proportionately by 
its grantors or other persons treated as owners under sections 671 
through 679 of any portion of the trust that includes the stock.
    The section 1296(g) attribution rules do not attribute ownership 
through foreign corporations. Accordingly, a United States person will 
not be permitted to make a section 1296 election with respect to stock 
owned indirectly through a foreign corporation. However, as discussed 
below, in instances where the foreign corporation is a CFC, the foreign 
corporation is permitted to make a section 1296 election directly.
    Special attribution rules for eligible RICs are provided in 
Sec. 1.1296(e)-1(f). There is a different attribution rule for RICs 
because section 1296(e)(2), which provides a special rule for RICs, 
states that stock owned, directly or indirectly, by the RIC, without 
reference to the ownership attribution rules in section 1296(g), shall 
be treated as marketable stock. This approach is consistent with former 
proposed Sec. 1.1291-8, which permitted certain RICs to mark to market 
PFIC stock that it owned directly or indirectly.
    An issue not addressed in these proposed regulations is the 
treatment of certain situations involving multiple tiers of PFICs. For 
example, assume a United States person owns marketable stock in a PFIC, 
that itself owns stock in a second PFIC, the ownership of which is 
attributable to the United States person under section 1298(a)(2). If 
the United States person makes a section 1296 election with respect to 
stock of the upper-tier PFIC, the annual mark to market inclusions of 
income under section 1296 will be based on the fair market value of the 
upper-tier PFIC stock, whose value should reflect the value of the 
lower-tier PFIC, as such stock is an asset of the upper-tier PFIC. 
However, under current law, the United States person continues to be 
subject to taxation with respect to its indirect ownership of the 
lower-tier PFIC under section 1291 on any excess distributions from the 
lower-tier PFIC or gain from an indirect disposition of the lower-tier 
PFIC stock (although the consequences from the tiered ownership may be 
ameliorated by adjustments to the basis of the upper-tier PFIC stock). 
See proposed Secs. 1.1291-2(f), and 1.1291-3(e). Similar issues arise 
if the United States person makes a QEF election with respect to the 
lower-tier PFIC. Comments are requested regarding coordination rules or 
other adjustments that may be appropriate to address this situation and 
similar structures involving a United States person that owns stock 
directly and indirectly in tiers of PFICs.
5. Treatment of CFCs as United States Persons
    A CFC that owns PFIC stock is treated as a United States person for 
purposes of section 1296 and, as noted above, is permitted to make a 
section 1296 election directly. If a section 1296 election is made with 
respect to PFIC stock owned by a CFC directly, or treated as owned by a 
CFC applying the section 1296(g) attribution rules, then any mark to 
market gains are included in the gross income of the CFC as foreign 
personal holding company income under section 954(c)(1)(A) and any mark 
to market losses are treated as deductions allocable to such foreign 
personal holding company income for purposes of computing net foreign 
base company income under Sec. 1.954-1(c).
    Under the proposed regulations, if a section 1296 election is made 
for a CFC with respect to its PFIC stock, the PFIC rules do not also 
apply separately to any United States shareholder, as defined in 
section 951(b), with respect to its pro rata share of the PFIC stock 
held by the CFC. Instead, the United States shareholder generally will 
recognize the mark to market gain as an inclusion of income under 
section 951(a). Thus, United States shareholders of CFCs are 
appropriately excluded from the application of section 1291 if a 
section 1296 election is made by the CFC. This rule, however, does not 
apply to United States persons who own stock of the CFC but are not 
United States shareholders within the meaning of section 951(b). Those 
United States persons continue to be subject to the PFIC provisions 
with respect to the stock of such foreign corporation, and may avail 
themselves of a QEF election. This rule is consistent with the CFC/PFIC 
overlap rule in section 1297(e), which eliminates the application of 
the PFIC provisions solely for United States shareholders of the entity 
that is both a PFIC and a CFC. Finally, comments are requested about 
whether similar rules should apply to United States persons that are 
United States shareholders of a CFC solely by application of section 
953(c)(1)(A).
6. Elections
    The proposed regulations provide that a United States person may 
make a section 1296 election for a taxable year beginning after 
December 31, 1997, by the due date (including extensions) of the United 
States person's federal income tax return. The proposed regulations 
further provide that a section 1296 election of a CFC is made by its 
controlling United States shareholders by the due date (including 
extensions) of their federal income tax returns in accordance with the 
general rules for elections by a CFC under Sec. 1.964-1(c)(5).
    The proposed regulations provide that a section 1296 election 
applies to the year for which made and to each succeeding year unless 
the election is terminated or revoked. A section 1296 election 
automatically terminates when (i) the PFIC stock ceases to be 
marketable, or (ii) when the PFIC stock is marked to market under 
another provision of chapter 1 of the Code. A section 1296 election 
also may be revoked with the consent of the Commissioner. Such consent 
will only be granted, however, upon a showing of a substantial change 
in circumstances. Similar rules apply in the case of the revocation of 
a QEF election.
7. Coordination Rules for First Year of Election
    Finally, the proposed regulations provide coordination rules that 
apply to the first taxable year to which section 1296 applies. A United 
States person (other than a RIC) whose holding period includes a period 
when the foreign corporation was a PFIC and for which a QEF election 
had not been made generally will be subject to section 1291 in the year 
of the election and subject to section 1296 in subsequent years. 
Special rules also apply to RICs for the first year in which a section 
1296 election applies.

[[Page 49638]]

D. Changes to Sec. 1.1296(e)-1(b)

    As discussed above, a section 1296 election is only available for 
marketable stock of a PFIC. Section 1296(e) defines marketable stock to 
include any stock which is regularly traded on certain securities 
exchanges or other markets. The 2000 final regulations provide guidance 
regarding the definition of marketable stock for purposes of section 
1296. In particular, the 2000 final regulations define regularly traded 
for these purposes to require that a class of stock be traded on at 
least 15 days during each calendar quarter for any calendar year. 
Taxpayers have noted that this rule would exclude stock issued as a 
result of an initial public offering (IPO) from qualifying as 
marketable stock for the year of issuance in many instances (e.g., 
stock issued through a public offering occurring other than during the 
first quarter of the year). Therefore, these regulations propose 
modifying the current rule in such instances.
    The proposed regulations provide that the stock issued in a public 
offering will qualify as regularly traded if the stock is traded on one 
or more qualified exchanges or other markets, other than in de minimis 
quantities, on 1/6 of the days remaining in the quarter in which the 
offering occurs, and on at least 15 days during each remaining quarter 
of the calendar year. If the public offering occurs in the fourth 
quarter of the calendar year, the stock will qualify as regularly 
traded if it is traded on such exchanges or markets, other than in de 
minimis quantities, on the greater of 1/6 of the days remaining in the 
quarter in which the offering occurs, or 5 days. The proposed 
regulations also modify the anti-abuse rule in Sec. 1.1296(e)-1(b)(2) 
to apply to these changes to the definition of regularly traded.

E. Amendment of Sec. 1.6031(a)-1

    In general, a foreign partnership that has U.S. source income is 
required to file a U.S. Federal income tax return pursuant to 
Sec. 1.6031(a)-1(b)(1). An issue arises whether a filing obligation is 
created on behalf of a foreign partnership where a U.S. partner of the 
foreign partnership makes a section 1296 election with respect to the 
U.S. partner's share of the PFIC stock held by the partnership. The 
income of the partner arising as a result of the section 1296 election 
generally will be U.S. source. See sections 1296(c)(2) and 865(a), 
(i)(5). The proposed regulations resolve this issue by modifying 
Sec. 1.6031(a)-1(b)(1) such that a foreign partnership will not be 
required to file a partnership return if the only reason for filing a 
return, but for this special rule, would be U.S. source income 
resulting from a direct or indirect partner's section 1296 election.

Special Analysis

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in Executive Order 
12866. Therefore, a regulatory assessment is not required. It has also 
been determined that section 553(b) of the Administrative Procedure Act 
(5 U.S.C. chapter 5) does not apply to these regulations, and, because 
the regulations do not impose a collection of information on small 
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply. Pursuant to section 7805(f) of the Code, this notice of proposed 
rulemaking will be submitted to the Chief Counsel for Advocacy of the 
Small Business Administration for comment on its impact on small 
business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written comments (a signed original 
and eight (8) copies) that are submitted timely (in a manner described 
in the ``ADDRESSES'' portion of this preamble) to the IRS. The IRS and 
Treasury request comments on the clarity of the proposed rules and how 
they can be made easier to understand. All comments will be available 
for public inspection and copying.
    A public hearing is scheduled for November 6, 2002, beginning at 
10:00 a.m. in room 4718, Internal Revenue Building, 1111 Constitution 
Avenue, NW, Washington, DC. Due to building security procedures, 
visitors must enter at the Constitution Avenue entrance. In addition, 
all visitors must present photo identification to enter the building. 
Because of access restrictions, visitors will not be admitted beyond 
the immediate entrance area more than 30 minutes before the hearing 
starts. For information about having your name placed on the building 
access list to attend the hearing, see the FOR FURTHER INFORMATION 
CONTACT portion of this preamble.
    The rules of 26 CFR 601.601(a)(3) apply to this hearing. Persons 
who wish to present oral comments must submit written comments and an 
outline of the topics to be discussed and the time to be devoted to 
each topic (a signed original and eight (8) copies) by October 16, 
2002. A period of 10 minutes will be allotted to each person for making 
comments. An agenda showing the scheduling of the speakers will be 
prepared after the deadline for reviewing outlines has passed. Copies 
of the agenda will be available free of charge at the hearing.

Drafting Information

    The principal authors of this regulation are Mark Pollard and 
Laurie Hatten-Boyd, Office of Associate Chief Counsel (International). 
However, other personnel from the IRS and Treasury Department 
participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 is amended by adding 
an entry in numerical order to read in part as follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 1.1296-1 also issued under 26 U.S.C. 1296(g) and 26 
U.S.C. 1298(f). * * *

    Par. 2. Section 1.1291-1, as proposed on April 1, 1992, at 57 FR 
11024, is further proposed to be amended by:
    1. Revising the headings to paragraphs (c) and (c)(1).
    2. Redesignating the text of paragraphs (c)(1) and (c)(2) as 
(c)(1)(i) and (c)(1)(ii), respectively.
    3. Adding new paragraphs (c)(2) and (c)(3).
    4. Revising paragraph (j)(1).
    5. Removing paragraph (j)(3).
    The revisions and addition read as follows:


Sec. 1.1291-1  Taxation of U.S. persons that are shareholders of 
section 1291 funds.

* * * * *
    (c) Coordination with other PFIC rules--(1) Coordination with QEF 
rules. * * *
    (2) Coordination with section 1296: distributions and dispositions. 
If PFIC stock is marked to market under section 1296 for any taxable 
year, then, except as provided in Sec. 1.1296-1(i), section 1291 and 
the regulations thereunder shall not apply to any distribution with 
respect to section 1296 stock (as defined in Sec. 1.1296-1(a)(2)), or 
to any disposition of such stock, for such taxable year.
    (3) Coordination with mark to market rules under chapter 1 of the 
Internal Revenue Code other than section 1296--(i) In general. If PFIC 
stock is marked to market for any taxable year under

[[Page 49639]]

section 475 or any other provision of chapter 1 of the Internal Revenue 
Code, other than section 1296, regardless of whether the application of 
such provision is mandatory or results from an election by the taxpayer 
or another person, then, except as provided in paragraph (c)(3)(ii) of 
this section, section 1291 and the regulations thereunder shall not 
apply to any distribution with respect to such PFIC stock or to any 
disposition of such PFIC stock for such taxable year. See Secs. 1.1295-
1(i)(3) and 1.1296-1(h)(3)(i) for rules regarding the automatic 
termination of an existing election under section 1295 or section 1296 
when a taxpayer marks to market PFIC stock under section 475 or any 
other provision of chapter 1 of the Internal Revenue Code.
    (ii) Coordination rule--(A) Notwithstanding any provision in this 
section to the contrary, the rule of paragraph (c)(3)(ii)(B) of this 
section shall apply to the first taxable year in which a United States 
person marks to market its PFIC stock under a provision of chapter 1 of 
the Internal Revenue Code, other than section 1296, if such foreign 
corporation was a PFIC for any taxable year, prior to such first 
taxable year, during the United States person's holding period (as 
defined in section 1291(a)(3)(A) and Sec. 1.1296-1(f)) in such stock, 
and for which such corporation was not treated as a QEF with respect to 
such United States person.
    (B) For the first taxable year of a United States person that marks 
to market its PFIC stock under any provision of chapter 1 of the 
Internal Revenue Code, other than section 1296, such United States 
person shall, in lieu of the rules under which the United States person 
marks to market, apply the rules of Sec. 1.1296-1(i)(2) and (3) as if 
the United States person had made an election under section 1296 for 
such first taxable year.
* * * * *
    (j) Effective date--(1) In general. Except as otherwise provided in 
this paragraph (j), Secs. 1.1291-1 through 1.1291-7 apply on April 11, 
1992. Section 1.1291-1(c)(2) and (3) apply as of the date final 
regulations are published in the Federal Register. Shareholders of 1291 
funds, in determining their liability under sections 1291 through 1297 
beginning after December 31, 1986, and before the effective date of 
these regulations, must apply reasonable interpretations of the statute 
and legislative history and employ reasonable methods to apply the 
interest charge.
* * * * *
    Par. 3. Section 1.1295-1 is amended by:
    1. Redesignating paragraphs (i)(3) and (i)(4) as paragraphs (i)(4) 
and (i)(5), respectively.
    2. Adding a new paragraph (i)(3).
    3. Revising newly designated paragraph (i)(5).
    4. Revising paragraph (k).
    The revisions and addition read as follows:


Sec. 1.1295-1  Qualified electing funds

* * * * *
    (i)* * *
    (3) Automatic termination. If a United States person, or the United 
States shareholder on behalf of a controlled foreign corporation, makes 
an election pursuant to section 1296 and the regulations thereunder 
with respect to PFIC stock for which a QEF election is in effect, or 
marks to market such stock under another provision of chapter 1 of the 
Internal Revenue Code, the QEF election is automatically terminated 
with respect to such stock that is marked to market under section 1296 
or another provision of Chapter 1 of the Internal Revenue Code. Such 
termination shall be effective on the last day of the shareholder's 
taxable year preceding the first taxable year for which the section 
1296 election is in effect or such stock is marked to market under 
another provision of chapter 1 of the Internal Revenue Code.

    Example. A, a U.S. corporation, owns directly 100 shares of 
marketable stock in foreign corporation X, a PFIC. A also owns a 50 
percent interest in Y, a foreign partnership that owns 200 shares of 
X. Accordingly, under section 1298(a)(3) and Sec. 1.1296-1(e)(1), A 
is treated as indirectly owning 100 shares of X. A also owns 100 
percent of the stock of Z, a foreign corporation that is not a PFIC. 
Z owns 100 shares of X, and therefore under section 1298(a)(2)(A), A 
is treated as owning the 100 shares of X owned by Z. For taxable 
year 2003, A has a QEF election in effect with respect to X that 
applies to all 300 shares of X stock owned directly or indirectly by 
A. See generally Sec. 1.1295-1(c)(1). For taxable year 2004, A makes 
a timely election pursuant to section 1296 and the regulations 
thereunder. For purposes of section 1296, A is treated as owning 
stock held indirectly through a partnership, but not through a 
foreign corporation. Section 1296(g); Sec. 1.1296-1(e)(1). 
Accordingly, A's section 1296 election covers the 100 shares it owns 
directly and the 100 shares it owns indirectly through Y, but not 
the 100 shares owned by Z. With respect to the first 200 shares, A's 
QEF election is automatically terminated effective December 31, 
2003. With respect to the 100 shares A owns through foreign 
corporation Z, A's QEF election remains in effect unless 
invalidated, terminated, or revoked pursuant to this paragraph (i).
* * * * *
    (5) Effect after invalidation, termination, or revocation-- (i) In 
general. 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 in which the invalidation, 
termination, or revocation became effective.
    (ii) Special rule. Notwithstanding paragraph (i)(5)(i) of this 
section, a shareholder whose section 1295 election was terminated 
pursuant to paragraph (i)(3) of this section, and either whose section 
1296 election has subsequently been terminated because its PFIC stock 
ceased to be marketable or who no longer marks to market such stock 
under another provision of chapter 1 of the Internal Revenue Code, may 
make a section 1295 election with respect to its PFIC stock before the 
sixth taxable year in which its prior section 1295 election was 
terminated.
* * * * *
    (k) Effective dates. Except as otherwise provided, paragraphs 
(b)(2)(iii), (b)(3), (b)(4), and (c) through (j) of this section are 
applicable to taxable years of shareholders beginning after December 
31, 1997. However, taxpayers may apply the rules under paragraphs 
(b)(4), (f) and (g) of this section to a taxable year beginning before 
January 1, 1998, provided the statute of limitations on the assessment 
of tax has not expired as of April 27, 1998, and, in the case of 
paragraph (b)(4) of this section, the taxpayers who filed the joint 
return have consistently applied the rules of that section to all 
taxable years following the year the election was made. Paragraph 
(b)(3)(v) of this section is applicable as of February 7, 2000, 
however, a taxpayer may apply the rules to a taxable year prior to the 
applicable date provided the statute of limitations on the assessment 
of tax for that taxable year has not expired. Paragraphs (i)(3) and 
(i)(5)(ii) of this section are applicable as of the date final 
regulations are published in the Federal Register.
    Par. 4. Section 1.1296-1 is added to read as follows:


Sec. 1.1296-1  Mark to market election for marketable stock.

    (a) Definitions--(1) Eligible RIC. An eligible RIC is a regulated 
investment company that offers for sale, or has outstanding, any stock 
of which it is the issuer and which is redeemable at net asset value, 
or that publishes net asset valuations at least annually.
    (2) Section 1296 stock. The term section 1296 stock means 
marketable

[[Page 49640]]

stock in a passive foreign investment company (PFIC), including any 
PFIC stock owned directly or indirectly by an eligible RIC, for which 
there is a valid section 1296 election. Section 1296 stock does not 
include stock of a foreign corporation that previously had been a PFIC, 
and for which a section 1296 election remains in effect.
    (3) Unreversed inclusions--(i) General rule. The term unreversed 
inclusions means with respect to any section 1296 stock, the excess, if 
any, of--
    (A) The amount of mark to market gain included in gross income of 
the United States person under paragraph (c)(1) of this section with 
respect to such stock for prior taxable years; over
    (B) The amount allowed as a deduction to the United States person 
under paragraph (c)(3) of this section with respect to such stock for 
prior taxable years.
    (ii) Section 1291 adjustment. The amount referred to in paragraph 
(a)(3)(i)(A) of this section shall include any amount subject to 
section 1291 under the coordination rule of paragraph (i)(2)(ii) of 
this section.
    (iii) Example. An example of the computation of unreversed 
inclusions is as follows:

    Example. A, a United States person, acquired stock in D, a 
foreign corporation, on January 1, 2003 for $150. At such time and 
at all times thereafter, D was a PFIC and A's stock in D was 
marketable. For taxable years 2003 and 2004, D was a nonqualified 
fund subject to taxation under section 1291. A made a timely section 
1296 election with respect to the D stock, effective for tax year 
2005. The fair market value of the D stock was $200 as of December 
31, 2004, and $240 as of December 31, 2005. Additionally, D made no 
distribution with respect to its stock for the taxable years at 
issue. In 2005, pursuant to paragraph (i)(2)(ii) of this section, A 
must include the $90 gain in the D stock in accordance with the 
rules of section 1291 for purposes of determining the deferred tax 
amount and any applicable interest. Nonetheless, for purposes of 
determining the amount of the unreversed inclusions pursuant to 
paragraph (a)(3)(ii) of this section, A will include the $90 of gain 
that was taxed under section 1291 and not the interest thereon.

    (iv) Special rule for regulated investment companies. In the case 
of a regulated investment company which had elected to mark to market 
the PFIC stock held by such company as of the last day of the taxable 
year preceding such company's first taxable year for which such company 
makes a section 1296 election, the amount referred to in paragraph 
(a)(3)(i)(A) of this section shall include amounts previously included 
in gross income by the company pursuant to such mark to market election 
with respect to such stock for prior taxable years. See Notice 92-53 
(1992-2 C.B. 384).
    (b) Application of section 1296 election--(1) In general. Any 
United States person and any controlled foreign corporation (CFC) that 
owns directly, or is treated as owning under this section, marketable 
stock, as defined in Sec. 1.1296(e)-1, in a PFIC may make an election 
to mark to market such stock in accordance with the provisions of 
section 1296 and this section.
    (2) Election applicable to specific United States person. A section 
1296 election applies only to the United States person (or CFC that is 
treated as a U.S. person under paragraph (g)(2) of this section) that 
makes the election. Accordingly, a United States person's section 1296 
election will not apply to a transferee of section 1296 stock.
    (3) Election applicable to specific corporation only. A section 
1296 election is made with respect to a single foreign corporation, and 
thus a separate section 1296 election must be made for each foreign 
corporation that otherwise meets the requirements of this section. A 
United States person's section 1296 election with respect to stock in a 
foreign corporation applies to all marketable stock of the corporation 
that the person owns directly, or is treated as owning under paragraph 
(e) of this section, at the time of the election or that is 
subsequently acquired.
    (c) Effect of election--(1) Recognition of gain. If the fair market 
value of section 1296 stock on the last day of the United States 
person's taxable year exceeds its adjusted basis, the United States 
person shall include in gross income for its taxable year the excess of 
the fair market value of such stock over its adjusted basis (mark to 
market gain).
    (2) Character of gain. (i) Mark to market gain, and any gain on the 
sale or other disposition of section 1296 stock, shall be treated as 
ordinary income.
    (ii) Example. The following example illustrates this paragraph 
(c)(2):

    Example. A, a United States person, purchases stock in C, a 
foreign corporation that is not a PFIC, in 1990 for $1000. On 
January 1, 2003, when the fair market value of the C stock is 
$1,100, foreign corporation C becomes a PFIC. A makes a timely 
section 1296 election for year 2003. On December 31, 2003, the fair 
market value of the C stock is $1,200. For taxable year 2003, A 
includes $200 of mark to market gain (the excess of the fair market 
value of C stock ($1,200) over A's adjusted basis ($1,000)) in gross 
income as ordinary income.

    (3) Recognition of loss. If the adjusted basis of section 1296 
stock exceeds its fair market value on the last day of the United 
States person's taxable year, such person shall be allowed a deduction 
for such taxable year equal to the lesser of the amount of such excess 
or the unreversed inclusions with respect to such stock (mark to market 
loss).
    (4) Character of loss--(i) Losses not in excess of unreversed 
inclusions. Any mark to market loss allowed as a deduction under 
paragraph (c)(3) of this section, and any loss on the sale or other 
disposition of section 1296 stock, to the extent that such loss does 
not exceed the unreversed inclusions attributable to such stock, shall 
be treated as an ordinary loss, deductible in computing adjusted gross 
income.
    (ii) Losses in excess of unreversed inclusions. (A) Any loss 
recognized on the sale or other disposition of section 1296 stock in 
excess of any prior unreversed inclusions will be subject to the rules 
generally applicable to losses provided elsewhere in the Internal 
Revenue Code and the regulations thereunder.
    (B) The following example illustrates the treatment of losses in 
excess of unreversed inclusions:

    Example. A, a United States person and a calendar year taxpayer, 
purchased marketable stock in FC, a foreign corporation that was a 
PFIC, for $1000 on January 31, 2003. A made a section 1296 election 
with respect to the stock of FC for 2003. At the close of 2003, the 
fair market value of A's stock in FC was $1,200. Under paragraph 
(c)(1) and (2) of this section, A included $200 of mark to market 
gain as ordinary income for 2003, and pursuant to paragraph (d)(1) 
of this section, increased his basis in the stock by that amount. On 
June 15, 2004, A sold his stock in FC for $900. At that time, A's 
unreversed inclusions with respect to the stock in FC were $200. 
Accordingly, A may deduct the amount equal to his unreversed 
inclusions, $200, as an ordinary loss. The $100 loss in excess of 
A's unreversed inclusions will be treated as a long term capital 
loss because A has held the FC stock for more than one year.

    (5) Application of election to separate lots of stock. (i) In the 
case in which a United States person purchased or acquired shares of 
stock in a PFIC at different prices, the rules of this section shall be 
applied in a manner consistent with the rules of Sec. 1.1012-1.
    (ii) Example. The following example illustrates this paragraph 
(c)(5):

    Example. On January 1, 2003, United States corporation A 
purchased 100 shares (first lot) of stock in foreign corporation X, 
a PFIC, for $500 ($5 per share). On June 1, 2003, A purchased 100 
shares (second lot) of stock in X for $1,000 ($10 per share). A made 
a timely section 1296 election with respect to its stock in X for 
taxable year 2003. On December 31, 2003, the fair market value of X 
stock was $8 per share. For taxable year 2003, A recognizes $300 of 
gross income

[[Page 49641]]

under paragraph (c)(1) of this section with respect to the first 
lot, and adjusts its basis in that lot to $800 pursuant to paragraph 
(d)(1) of this section. With respect to the second lot, A is not 
permitted to recognize a loss under paragraph (c)(3) of this section 
for taxable year 2003. Although A's adjusted basis in that stock 
exceeds its fair market value by $200, A has no unreversed 
inclusions with respect to that particular lot of stock. On July 1, 
2004, A sells 100 shares of X stock for $900. Assuming that A 
adequately identifies (in accordance with the rules of Sec. 1.1012-
1(c)) the shares of X corporation stock sold as being from the 
second lot, A recognizes $100 of long term capital loss pursuant to 
paragraph (c)(4)(ii) of this section.

    (6) Source rules. The source of any amount included in gross income 
under paragraph (c)(1) of this section, or the allocation and 
apportionment of any amount allowed as a deduction under paragraph 
(c)(3) of this section, shall be determined in the same manner as if 
such amounts were gain or loss (as the case may be) from the sale of 
stock in the PFIC.
    (d) Adjustment to basis--(1) Stock held directly. The adjusted 
basis of the section 1296 stock shall be increased by the amount 
included in the gross income of the United States person under 
paragraph (c)(1) of this section with respect to such stock, and 
decreased by the amount allowed as a deduction to the United States 
person under paragraph (c)(3) of this section with respect to such 
stock.
    (2) Stock owned through certain foreign entities. (i) In the case 
of section 1296 stock that a United States person is treated as owning 
through certain foreign entities pursuant to paragraph (e) of this 
section, the basis adjustments under paragraph (d)(1) of this section 
shall apply to such stock in the hands of the foreign entity actually 
holding such stock, but only for purposes of determining the subsequent 
treatment under chapter 1 of the Internal Revenue Code of the United 
States person with respect to such stock. Such increase or decrease in 
the adjusted basis of the section 1296 stock shall constitute an 
adjustment to the basis of partnership property only with respect to 
the partner making the section 1296 election. Corresponding adjustments 
shall be made to the adjusted basis of the United States person's 
interest in the foreign entity and in any intermediary entity described 
in paragraph (e) of this section through which the United States person 
holds the PFIC stock.
    (ii) Example. The following example illustrates this paragraph 
(d)(2):

    Example. FP is a foreign partnership. A, a U.S. corporation, 
owns a 20% interest in FP. B, a U.S. corporation, owns a 30% 
interest in FP. C, a foreign corporation, with no direct or indirect 
shareholders that are U.S. persons, owns a 50% interest in FP. 
A,B,C, and FP are all calendar year taxpayers. In 2002, FP purchases 
stock in a PFIC for $1,000. A makes a timely section 1296 election 
for taxable year 2003. On December 31, 2003, the fair market value 
of the PFIC stock is $1,100. A includes $20 of ordinary income in 
2003 under paragraphs (c)(1) and (2) of this section. A increases 
its basis in its FP partnership interest by $20. FP increases its 
basis in the stock to $1,020 solely for purposes of determining the 
subsequent treatment of A, under chapter 1 of the Internal Revenue 
Code, with respect to such stock. In 2004, FP sells the stock for 
$1,200. For purposes of determining the amount of gain of A, FP will 
be treated as having $180 in gain of which $20 is allocated to A. 
A's $20 of gain will be treated as ordinary income under paragraph 
(c)(2) of this section. For purposes of determining the amount of 
gain attributable to B, FP will be treated as having $200 gain, $60 
of which will be allocated to B.

    (3) Stock owned indirectly by an eligible RIC. Paragraph (d)(2) of 
this section shall also apply to an eligible RIC which is an indirect 
shareholder under Sec. 1.1296(e)-1(f) of stock in a PFIC and has a 
valid section 1296 election in effect.
    (4) Stock acquired from a decedent. In the case of stock of a PFIC 
which is acquired by bequest, devise, or inheritance (or by the 
decedent's estate) and with respect to which a section 1296 election 
was in effect as of the date of the decedent's death, notwithstanding 
section 1014, the basis of such stock in the hands of the person so 
acquiring it shall be the adjusted basis of such stock in the hands of 
the decedent immediately before his death (or, if lesser, the basis 
which would have been determined under section 1014 without regard to 
this paragraph).
    (5) Transition rule for individuals becoming subject to United 
States income taxation--(i) In general. If any individual becomes a 
United States person in a taxable year beginning after December 31, 
1997, solely for purposes of this section, the adjusted basis, before 
adjustments under this paragraph (d), of any section 1296 stock owned 
by such individual on the first day of such taxable year shall be 
treated as being the greater of its fair market value or its adjusted 
basis on such first day.
    (ii) An example of the transition rule for individuals becoming 
subject to United States income taxation is as follows:

    Example. X, a nonresident alien individual, purchases marketable 
stock in a PFIC for $50 in 1995. On January 1, 2003, X becomes a 
United States person and makes a timely section 1296 election with 
respect to the stock in accordance with paragraph (h) of this 
section. The fair market value of the stock on January 1, 2003, is 
$100. The fair market value of the stock on December 31, 2003, is 
$110. Under paragraph (d)(5)(i) of this section, X computes the 
amount of mark to market gain or loss in 2003 by reference to an 
adjusted basis of $100, and therefore X includes $10 in gross income 
as mark to market gain under paragraph (c)(1) of this section. 
Additionally, under paragraph (d)(1) of this section, X's adjusted 
basis in the stock for purposes of this section is increased to $110 
(or to $60 for all other tax purposes). X sells the stock in 2004 
for $120. For purposes of applying section 1001, X must use its 
original basis of $50, with any adjustments under paragraph (d)(1) 
of this section, $10 in this case, and therefore X recognizes $60 of 
gain. Under paragraph (c)(2) of this section (which is applied using 
an adjusted basis of $110), $10 of such gain is treated as ordinary 
income. The remaining $50 of gain from the sale of the stock is 
long-term capital gain because X held such stock for more than one 
year.

    (e) Stock owned through certain foreign entities--(1) In general. 
Except as provided in paragraph (e)(2) of this section, the following 
rules shall apply in determining stock ownership for purposes of this 
section. PFIC stock owned, directly or indirectly, by or for a foreign 
partnership, foreign trust (other than a foreign trust described in 
sections 671 through 679), or foreign estate shall be considered as 
being owned proportionately by its partners or beneficiaries. PFIC 
stock owned, directly or indirectly, by or for a foreign trust 
described in sections 671 through 679 shall be considered as being 
owned proportionately by its grantors or other persons treated as 
owners under sections 671 through 679 of any portion of the trust that 
includes the stock. The determination of a person's proportionate 
interest in a foreign partnership, foreign trust or foreign estate will 
be made on the basis of all the facts and circumstances. Stock 
considered owned by reason of this paragraph shall, for purposes of 
applying the rules of this section, be treated as actually owned by 
such person.
    (2) Stock owned indirectly by eligible RICs. The rules for 
attributing ownership of stock contained in Sec. 1.1296(e)-1(f) will 
apply to determine the indirect ownership of PFIC stock by an eligible 
RIC.
    (f) Holding period. Solely for purposes of sections 1291 through 
1298, if section 1296 applied to stock with respect to the taxpayer for 
any prior taxable year, the taxpayer's holding period in such stock 
shall be treated as beginning on the first day of the first taxable 
year beginning after the last taxable year for which section 1296 so 
applied.

[[Page 49642]]

    (g) Special rules--(1) Certain dispositions of stock. To the extent 
a United States person is treated as actually owning stock in a PFIC 
under paragraph (e) of this section, any disposition which results in 
the United States person being treated as no longer owning such stock, 
and any disposition by the person owning such stock, shall be treated 
as a disposition by the United States person of the stock in the PFIC.
    (2) Treatment of CFC as a United States person. In the case of a 
CFC that owns, or is treated as owning under paragraph (e) of this 
section, section 1296 stock:
    (i) Other than with respect to the sourcing rules in paragraph 
(c)(6) of this section, this section shall apply to the CFC in the same 
manner as if such corporation were a United States person. The CFC will 
be treated as a foreign person for purposes of applying the source 
rules of paragraph (c)(6).
    (ii) For purposes of subpart F of part III of subchapter N of the 
Internal Revenue Code--
    (A) Amounts included in the CFC's gross income under paragraph 
(c)(1) or (i)(2)(ii) of this section shall be treated as foreign 
personal holding company income under section 954(c)(1)(A); and
    (B) Amounts allowed as a deduction under paragraph (c)(3) of this 
section shall be treated as a deduction allocable to foreign personal 
holding company income for purposes of computing net foreign base 
company income under Sec. 1.954-1(c).
    (iii) A United States shareholder, as defined in section 951(b), of 
the CFC shall not be subject to section 1291 with respect to any stock 
of the PFIC for the period during which the section 1296 election is in 
effect for that stock, and the holding period rule of paragraph (f) of 
this section shall apply to such United States shareholder.
    (iv) The rules of this paragraph (g)(2) shall not apply to a United 
States person that is a shareholder of the PFIC for purposes of section 
1291, but is not a United States shareholder under section 951(b) with 
respect to the CFC making a section 1296 election.
    (3) Timing of inclusions for stock owned through certain foreign 
entities. In the case of section 1296 stock that a United States person 
is treated as owning through certain foreign entities pursuant to 
paragraph (e) of this section, the mark to market gain or mark to 
market loss is determined in accordance with paragraphs (c) and 
(i)(2)(ii) of this section as of the last day of the taxable year of 
the foreign partnership, foreign trust or foreign estate and then 
included in the taxable year of such United States person that includes 
the last day of the taxable year of the entity.
    (h) Elections--(1) Timing and manner for making a section 1296 
election--(i) United States persons. A United States person that owns 
marketable stock in a PFIC, or is treated as owning marketable stock 
under paragraph (e) of this section, on the last day of the taxable 
year of such person, and that wants to make a section 1296 election, 
must make a section 1296 election for such taxable year on or before 
the due date (including extensions) of the United States person's 
income tax return for that year. The section 1296 election must be made 
on the Form 8621, ``Return by a Shareholder of a Passive Foreign 
Investment Company or Qualified Electing Fund'', included with the 
original tax return of the United States person for that year, or on an 
amended return, provided that the amended return is filed on or before 
the election due date.
    (ii) Controlled foreign corporations. A section 1296 election by a 
CFC shall be made by its controlling United States shareholders, as 
defined in Sec. 1.964-1(c)(5), and shall be included with the Form 
5471, ``Information Return of U.S. Persons With Respect To Certain 
Foreign Corporations'', for that CFC by the due date (including 
extensions) of the original income tax returns of the controlling 
United States shareholders for that year. A section 1296 election by a 
CFC shall be binding on all United States shareholders of the CFC.
    (iii) Retroactive elections for PFIC stock held in prior years. A 
late section 1296 election may be permitted only in accordance with 
Sec. 301.9100 of this chapter.
    (2) Effect of section 1296 election--(i) In general. A section 1296 
election will apply to the taxable year for which such election is made 
and remain in effect for each succeeding taxable year unless such 
election is revoked or terminated pursuant to paragraph (h)(3) of this 
section.
    (ii) Cessation of a foreign corporation as a PFIC. A United States 
person will not include mark to market gain or loss pursuant to 
paragraph (c) of this section with respect to any stock of a foreign 
corporation for any taxable year that such foreign corporation is not a 
PFIC under section 1297 or treated as a PFIC under section 1298(b)(1) 
(taking into account the holding period rule of paragraph (f) of this 
section). Cessation of a foreign corporation's status as a PFIC will 
not, however, terminate a section 1296 election. Thus, if a foreign 
corporation is a PFIC in a taxable year after a year in which it is not 
treated as a PFIC, the United States person's original election (unless 
revoked or terminated in accordance with paragraph (h)(3) of this 
section) continues to apply and the shareholder must include any mark 
to market gain or loss in such year.
    (3) Revocation or termination of election--(i) In general. A United 
States person's section 1296 election is terminated if the section 1296 
stock ceases to be marketable; if the United States person elects, or 
is required, to mark to market the section 1296 stock under another 
provision of chapter 1 of the Internal Revenue Code; or if the 
Commissioner, in the Commissioner's discretion, consents to the United 
States person's request to revoke its section 1296 election upon a 
finding of a substantial change in circumstances. A substantial change 
in circumstances for this purpose may include a foreign corporation 
ceasing to be a PFIC.
    (ii) Timing of termination or revocation. Where a section 1296 
election is terminated automatically (e.g., the stock ceases to be 
marketable), section 1296 will cease to apply beginning with the 
taxable year in which such termination occurs. Where a section 1296 
election is revoked with the consent of the Commissioner, section 1296 
will cease to apply beginning with the first taxable year of the United 
States person after the revocation is granted unless otherwise provided 
by the Commissioner.
    (4) Examples. The operation of the rules of this paragraph (h) are 
illustrated by the following examples:

    Example 1. X, a United States person, owns stock in a PFIC. X 
makes a QEF election in 1996 with respect to such stock. For taxable 
year 1999, X makes a timely section 1296 election with respect to 
its stock, and thus its QEF election is automatically terminated 
pursuant to Sec. 1.1295-1(i)(3). In 2000, X's stock ceases to be 
marketable, and therefore its section 1296 election is automatically 
terminated under paragraph (h)(3) of this section. Beginning with 
taxable year 2000, X is subject to the rules of section 1291 with 
respect to its stock in the PFIC unless it makes a new QEF election. 
See Sec. 1.1295-1(i)(5).
    Example 2. The facts are the same as in Example 1, except that 
X's stock in the PFIC becomes marketable again in 2001. X may make a 
new section 1296 election with respect to such stock for its tax 
year 2001, or thereafter. X will be subject to the coordination 
rules under paragraph (i) of this section unless it made a new QEF 
election in 2000.

    (i) Coordination rules for first year of election--(1) In general. 
Notwithstanding any provision in this section to the contrary, the 
rules of this paragraph (i) shall apply to the first taxable year in 
which a section 1296

[[Page 49643]]

election is effective with respect to marketable stock of a PFIC if 
such foreign corporation was a PFIC for any taxable year, prior to such 
first taxable year, during the United States person's holding period 
(as defined in paragraph (f) of this section) in such stock, and for 
which such corporation was not treated as a QEF with respect to such 
United States person.
    (2) Shareholders other than regulated investment companies. For the 
first taxable year of a United States person (other than a regulated 
investment company) for which a section 1296 election is in effect with 
respect to the stock of a PFIC, such United States person shall, in 
lieu of the rules of paragraphs (c) and (d) of this section--
    (i) Apply the rules of section 1291 to any distributions with 
respect to, or disposition of, section 1296 stock;
    (ii) Apply section 1291 to the amount of the excess, if any, of the 
fair market value of such section 1296 stock on the last day of the 
United States person's taxable year over its adjusted basis, as if such 
amount were gain recognized from the disposition of stock on the last 
day of the taxpayer's taxable year; and
    (iii) Increase its adjusted basis in the section 1296 stock by the 
amount of excess, if any, subject to section 1291 under paragraph 
(i)(2)(ii) of this section.
    (3) Shareholders that are regulated investment companies. For the 
first taxable year of a regulated investment company for which a 
section 1296 election is in effect with respect to the stock of a PFIC, 
such regulated investment company shall increase its tax under section 
852 by the amount of interest that would have been imposed under 
section 1291(c)(3) for such taxable year if such regulated investment 
company were subject to the rules of paragraph (i)(2) of this section, 
and not this paragraph (i)(3). No deduction or increase in basis shall 
be allowed for the increase in tax imposed under this paragraph (i)(3).
    (4) The operation of the rules of this paragraph (i) is illustrated 
by the following examples.

    Example 1. A, a United States person and a calendar year 
taxpayer, owns marketable stock in a PFIC that it acquired on 
January 1, 1995. At all times, A's PFIC stock was a nonqualified 
fund subject to taxation under section 1291. A made a timely section 
1296 election effective for taxable year 2003. At the close of 
taxable year 2003, the fair market value of A's PFIC stock exceeded 
its adjusted basis by $10. Pursuant to paragraph (i)(2)(ii) of this 
section, A must treat the $10 gain under section 1291 as if the 
stock were disposed of on December 31, 2003. Further, A will 
increase its adjusted basis in the PFIC stock by the $10 in 
accordance with paragraph (i)(2)(iii) of this section.
    Example 2. Assume the same facts as in Example 1, except that A 
is a RIC. In taxable year 2003, A would include $10 of ordinary 
income under paragraph (c)(1) of this section, and such amount will 
not be subject to section 1291. A also must increase its tax imposed 
under section 852 by the amount of interest that would have been 
determined under section 1291(c)(3), and no deduction will be 
permitted for such amount. Finally, under paragraph (d)(1) of this 
section, A will increase its adjusted basis in the PFIC stock by 
$10.

    (j) Effective Date. The provisions is this section are applicable 
as of the date final regulations are published in the Federal Register.
* * * * *
    Par. 5. Section 1.1296(e)-1 is amended by:
    1. Revising paragraph (b)(2).
    2. Adding paragraph (b)(3).
    3. Revising both references to ``sections 958(a)(1) and (2)'' in 
paragraph (f)(1) to read ``section 1298(a)'.
    The revision and addition reads as follows:


Sec. 1.1296(e)-1  Definition of marketable stock.

* * * * *
    (b) * * *
    (2) Special rule for year of initial public offering. For the 
calendar year in which a corporation initiates a public offering of a 
class of stock for trading on one or more qualified exchanges or other 
markets, as defined in paragraph (c) of this section, such class of 
stock meets the requirements of paragraph (b)(1) of this section for 
such year if the stock is regularly traded on such exchanges or 
markets, other than in de minimis quantities, on 1/6 of the days 
remaining in the quarter in which the offering occurs, and on at least 
15 days during each remaining quarter of the taxpayer's calendar year. 
In cases where a corporation initiates a public offering of a class of 
stock in the fourth quarter of the calendar year, such class of stock 
meets the requirements of paragraph (b)(1) of this section in the 
calendar year of the offering if the stock is regularly traded on such 
exchanges or markets, other than in de minimis quantities, on the 
greater of 1/6 of the days remaining in the quarter in which the 
offering occurs, or 5 days.
    (3) Anti-abuse rule. Trades that have as one of their principal 
purposes the meeting of the trading requirements of paragraph (b)(1) or 
(2) of this section shall be disregarded. Further, a class of stock 
shall not be treated as meeting the trading requirement of paragraph 
(b)(1) or (2) of this section if there is a pattern of trades conducted 
to meet the requirement of paragraph (b)(1) or (2) of this section. 
Similarly, paragraph (b)(2) of this section shall not apply to a public 
offering of stock that has as one of its principal purposes to avail 
itself of the reduced trading requirements under the special rule for 
the calendar year of an initial public offering. For purposes of 
applying the immediately preceding sentence, consideration will be 
given to whether the trading requirements of paragraph (b)(1) of this 
section are satisfied in the subsequent calendar year.
* * * * *
    Par. 6. Section 1.6031(a)-1 is amended by:
    1. Redesignating the text of paragraph (b)(1) as (b)(1)(i).
    2. Adding a heading to newly designated paragraph (b)(1)(i).
    3. Adding paragraph (b)(1)(ii).
    The additions read as follows:


Sec. 1.6031(a)-1  Return of Partnership income.

* * * * *
    (b) * * * (1) * * * (i) Filing requirement. * * *
    (ii) Special rule. For purposes of this paragraph (b)(1) and 
paragraph (b)(3)(iii) of this section, a foreign partnership will not 
be considered to have derived income from sources within the United 
States solely because a U.S. partner marks to market his pro rata share 
of PFIC stock held by the foreign partnership pursuant to an election 
under section 1296.
* * * * *

Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.
[FR Doc. 02-19124 Filed 7-30-02; 8:45 am]
BILLING CODE 4830-01-P