Application of Medicare Contribution Tax of 3.8% to Certain U.S. Persons Owning Stock in A Controlled Foreign Corporation or Passive Foreign Investment Company
In REG-13050-11, the Service issued, on November 30, 2012, proposed regulations providing guidance under Section 1411 of the Internal Revenue Code. Section 1402(a)(1) of the Health Care and Education Reconciliation Act of 2010, P.L. 111-152, 124 Stat. 209, (“HCERA”) enacted new Section 1411 established in new Chapter 2A of subtitle A (income taxes) effective for taxable years beginning after December 31, 2012. The proposed regulations interpret Section 1411 with respect to subject individuals, estates and trusts. The tax under Chapter 2A (Section 1411) does not apply to a nonresident alien (on passive U.S. source income) or to a trust all of the unexpired interests of which are devoted to one or more charitable purposes set forth in Section 170(c)(2)(B). The tax imposed by Section 1411 is not deductible in computing any tax under subtitle A (income or alternative minimum tax). The government has also asked that comments be received on the proposed regulations by March 5, 2013. On November 29th, the Service also released guidance on Section 1411 in question and answer format (20 Q&As in total) which is posted on its webpage.
Section 1411 imposes on certain individuals an annual 3.8% tax on the lesser of a taxpayer’s “net investment income”, i.e., capital gains, dividends, annuities, royalties, interest, rents, and income from some trades or businesses, or the amount by which an individual's modified adjusted gross income exceeds $200,000 ($250,000 for joint filers and surviving spouses). The tax is assessed and collected in the same manner as income tax, in fact it is part of the income tax title in the Internal Revenue Code.
U.S. individuals frequently invest funds outside of the United States. Such investments can be in the form of time or money deposits, bonds issued by foreign persons, foreign stocks, including stocks in a “controlled foreign corporation” or “passive foreign investment company”. This submission briefly discusses the application of the Medicare Contribution tax to passive income derived from investments in controlled foreign corporations or from a passive foreign investment company.
Controlled Foreign Corporations and Passive Foreign Investment Companies
Section 1411(c)(1) provides that net investment income (NII) includes dividends and net gain (to the extent taken into account in computing taxable income) attributable to the disposition of property other than property held in a trade or business to which the tax does not apply. Accordingly, income from investments in foreign corporations generally is included in the calculation of net investment income for Section 1411 purposes. More specifically, dividends and gains derived with respect to the stock of a controlled foreign corporation (per Section 957(a)) (CFC) or a passive foreign investment company (within the meaning of Section 1297(a)) (PFIC) are taken into account in NII. Applicable rules are set out in Prop. Treas. Regs. §1.1411-5, -10, and other pertinent provisions.
Controlled Foreign Corporation (CFC) Rules.
Section 951 may require the U.S. shareholders of a controlled foreign corporation to include amounts in income without any corresponding receipt of cash or property under a "deemed" dividend construct. A foreign corporation is a CFC where more than 50% of either the total combined voting power of its stock entitled to vote or the total value of its stock is owned (or treated as owned) by “United States shareholders” on any day during the foreign corporation's taxable year. CFC status is applied annually. A U.S. shareholder’s pro rata share of the CFC’s annual Subpart F income, as defined in Section 952, is includible in gross income to the extent of the earnings and profits of the CFC. See §§952(c), 964(a). See also §959 (previously taxed earnings and profits). A U.S.shareholder (as defined in Section 951(b)) of a CFC is required to include certain amounts in income currently under Section 951(a) (Section 951 inclusions). Unless a special election is made under -10(g) of the new proposed regulations, Section 951 deemed dividend inclusions are not treated as dividends unless otherwise expressly provided for in the Code, and therefore are not within any of the categories of income items that comprise NII (unless the amount is derived from a trade or business to which the tax applies as provided in Section 1411(c)(1)(A)(ii) and Prop. Treas. Reg. §1.1411-4(a)(1)(ii)).
Passive Foreign Investment Companies (PFIC).
A PFIC is defined under Section 1296(a) as any foreign corporation that has either: (i) 75% of its gross income as “passive income” (defined in Section 1296(b)(1) by reference to the “passive income” definition under the § 904(d) separate-basket rules, but with an exception for “real” banks and insurance companies in Section 1296(b)(2)); or (2) 50% (by value) of its assets as passive assets (i.e., assets producing, or held for the production of, passive income). There is no threshold U.S. ownership rule as there is with the CFC provisions.
The PFIC rules look to the character of the income and assets. A U.S. shareholder of a PFIC incurs a deferral in tax interest charge on the deferral privilege available under Section 1291 which becomes assessable when he disposes of his PFIC stock (or when he receives substantial distributions thereon). Alternatively, if the PFIC elects qualified electing fund (QEF) status under Section 1295 (which election was converted to a shareholder-level election approximately 25 years ago), the U.S. shareholder is taxed currently under Section 1293 on the undistributed earnings of the PFIC (and the Section 1295 election is permanent). The U.S. shareholder, however, can defer payment of the tax on undistributed income imposed under Section 1293 (deemed distribution construct) by electing an extension of time to pay such tax under Section 1294, although failure to elect under Section 1295 will deny stepped-up basis at death for the investors under Section 1291(e), in a manner similar to the rules of Section 1246(e).
The net effect of these provisions is to remove the economic benefit attributable to tax deferral for those who choose to invest in passive foreign investment vehicles. A third option, enacted by Congress in 1997, added an elective mark-to-market regime for shareholders of a publicly traded PFIC. Where elected, a PFIC shareholder is required to treat “gains” as ordinary income and losses as ordinary losses but only to the extent of previously included gains. Basis is adjusted to reflect the reported gains and losses. The source of the income is determined under sale of personal property rules, i.e., the residence of the seller, and the Section 1296 election is binding.
Net Investment Income (NII) and CFCs and PFICs.
As mentioned, a U.S. shareholder of a CFC is required to include certain amounts in income, i.e., Subpart F income to the extent of earnings and profits, under Section 951(a). The Preamble to the Section 1411 proposed regulations states that constructive or pass through income includible under Section 951 will generally not be treated as dividends in computing NII as dividend income unless expressly provided for in the Code. Still NII treatment will result to the extent the Subpart F income is derived from a trade or business to which the tax applies as provided in Section 1411(c)(1)(A)(ii)(trading trading in financial instruments or commodities) and Prop. Treas. Reg. § 1.1411-4(a)(1)(ii)). As to PFICs, a U.S. person is required to income in income amounts described under Section 193 if the taxpayer makes a QEF election under Section 1295.. Section 1293 inclusions also are not treated as dividends unless expressly provided for in the Code, and, therefore, also are not taken into account for purposes of calculating net investment income (unless the amount is derived from a trade or business to which the tax applies as provided in Section 1411(c)(1)(A)(ii) and Prop. Treas. Reg. §1.1411-4(a)(1)(ii)). This difference in timing for reporting income for chapter 1 (regular income tax) and chapter 2A (Section 1411), as well as other overlapping provisions, will require a taxpayer to compute separate stock basis for chapter 1 and chapter 2A, subject to making an election under Prop. Reg. §1.1411-10(g) which seems to only be available after 2013 although the Preamble to the regulations when read with the proposed regulations is not entirely clear on this point, i.e., whether such election can be made for a taxable year beginning in 2013.
Another area of overlap and complexity will be the treatment of distributions of previously taxed income under the CFC or PFIC rules and their characterization for Section 1411 purposes. Both the Subpart F rules applicable to U.S. persons owning stock in a CFC and the PFIC rules as well provide rules that prevent amounts that have been included in income under Sections 951 and 1293 by a U.S. person from being subject to tax again when there is an actual distribution from the foreign corporation. Section 959(d) provides distributions from a CFC excluded from gross income for purposes of chapter 1 under Section 959(a) (earnings and profits attributable to Section 951 inclusions) are not dividends for federal income tax purposes but represent a tax-free recovery of previously taxed income. In like manner, Section 1293(c) provides that PTI distributions of a PFIC that were allocable to prior Section 1293 inclusions are not dividends for federal income tax purposes.
The Preamble to the proposed regulations to Section 1411 comments that in the absence of these previously taxed income rules under Sections 1293(c) and 959(d), actual distributions that would be taxable as dividends under general Code rules applicable to corporations and their shareholders. Moreover, as is the case with dividends, such actual distributions reduce the earnings and profits of the relevant CFC or PFIC. Accordingly, the proposed regulations take the position that a distribution of earnings and profits that were previously taxed and which is not a dividend for purposes of Section 959(d) or Section 1293(c), is still a dividend for chapter 2A purposes and therefore constitutes gross income from dividends under Section 1411(c)(1)(A)(i) and Prop. Treas. Reg. §1.1411-4(a)(1)(i). There are added applicable rules that are required to be made in determining previously tax income, adjustments to stock basis, and sourcing earnings and profits for distributions of PTI. No one will be able to say that these rules are easy to understand or once understood are simple to apply perhaps with one exception.
Proposed Regulations to Section 1411 Permit Consistency Election for CFC/PFIC and Section 1411 Purposes.
The Treasury and IRS recognize that the integrating the CFC and PFIC rules with Section 1411, including the required two sets of stock basis computations as well as the deemed sale rules and application of Section 1248, are complex and administratively burdensome. Since these adjustments are complex and may add administrative burdens for certain taxpayers, Prop. Reg. §1.1411-10(g) permits individuals, estates, and trusts to make an election to include inclusions under Sections 951 and 1293 in net investment income in the same manner and in the same taxable year as such amounts are included in income for chapter 1 purposes. If an individual, estate, or trust makes the election, any Section 959(d) or Section 1293(c) PTI distributions that are not treated as dividends for chapter 1 purposes are not treated as dividends for Section 1411 purposes, and thus would not be included in NII. The separate computation of basis for Section 1411 purposes would not be required, and thus distributions under Sections 959(d) and 1293(c) would decrease the taxpayer's basis in its CFC or PFIC stock, and inclusions under Sections 951 and 1293 would increase the taxpayer's basis in its CFC or PFIC stock, in the same manner as the taxpayer's basis is adjusted for chapter 1 purposes.
This posting is limited to briefly discuss the nature of applying the CFC and PFIC rules to Section 1411. The proposed regulations on this subject are complex and contain many applicable rules. Therefore, this posting does not constitute the rendering of legal advice (tax advice) to anyone reading this post. It is simply issued for informational purposes and as a brief summary of the proposed regulations and their application to CFCs and PFICs only. Tax advisors should be on notice of the proposed regulations and that they may rely on them this year along with the Q&A guidance. Expect final regulations to be issued by mid-Summer 2013.
I will be submitting a more detailed article on this subject for publication in Business Entities (Warren,Gorham &LaMont) which I have been proud to serve as (the “outside”) Editor-in-Chief for many years and serve on the Board of Advisors for International Taxation.