On January 25, 2022, the Internal Revenue Service (the “IRS”) and the Department of the Treasury (“Treasury”) released regulations (the “Final Regulations”) finalizing provisions in prior proposed regulations which generally would treat domestic partnerships as aggregates of their partners (rather than as entities) for purposes of determining income inclusions under the Subpart F provisions applicable to certain shareholders of controlled foreign corporations.[1]  Under the aggregate approach, a partner in a domestic partnership would have a Subpart F inclusion from an underlying CFC only if the partner itself is a US shareholder of the CFC.

The IRS and Treasury also released new proposed regulations (the “Proposed Regulations”) which would broaden the aggregation approach to domestic partnerships and S corporations that own stock of passive foreign investment companies (“PFICs”).  Under the Proposed Regulations, this aggregation treatment would apply for purposes of making the qualified electing fund (“QEF”) election or the PFIC mark-to-market (“MTM”) election, recognizing QEF inclusions or MTM amounts, making PFIC purging elections, the CFC overlap rule, and filing Forms 8621. Thus, for example, a domestic partner, rather than the domestic partnership, would make a QEF election (and file Form 8621) in respect of PFIC stock held by the partnership.[2]

The Proposed Regulations would require each electing partner (or S corporation shareholder) to notify the partnership (or S corporation), respectively, of its election in order to assist the partnership (or S corporation) with information reporting and tracking basis in the QEF stock. In addition, each partner (and S corporation shareholder) would include its pro rata share of ordinary earnings and net capital gain attributable to the QEF stock as if such person owned its share of the QEF stock directly, and not as a share of the pass-through entity’s income.

Responding to questions regarding the administrability of the aggregate approach, the Treasury Department and the IRS request comments on whether the final regulations should permit a domestic partnership-level (or S corporation-level) QEF election on behalf of its partners (or shareholders).  With respect to preexisting QEF elections made by a domestic partnership (or an S corporation), the Proposed Regulations would effectively treat the preexisting QEF election as if it were made by each partner or S corporation shareholder owning an interest in the preexisting QEF.

The Final Regulations apply to tax years of a foreign corporation beginning on or after the date that the regulations are filed with the Federal Register.  Domestic partnerships may, however, apply the regulations to tax years of a foreign corporation beginning after 2017, subject to consistency requirements. The Proposed Regulations would apply to tax years beginning on or after the date adopted as final regulations.

 

********************

[1] The Subpart F provisions include sections 951 through 965 of the Internal Revenue Code (the “Code”).  Note that the aggregate approach does not apply for purposes of Code section 1248 or for determining whether a foreign corporation is a controlled foreign corporation (a “CFC”).

[2] The Proposed Regulations also contain certain other changes, generally conforming to the aggregate treatment paradigm, including guidance regarding the determination of the controlling domestic shareholders of foreign corporations, the owner of a controlled foreign corporation or QEF that makes an election under section 1411, the treatment of S corporations with accumulated earnings and profits under the Subpart F provisions, and the determination and inclusion of related person insurance income (“RPII”) under Code section 953(c).

 

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Dan Paulos Dan Paulos

Dan is a partner in the Tax Department and focuses his practice on advising asset managers and investors on tax matters. Specifically, Dan advises asset managers on U.S. and international tax implications of fund formation and fund investments. Dan’s clients include credit funds…

Dan is a partner in the Tax Department and focuses his practice on advising asset managers and investors on tax matters. Specifically, Dan advises asset managers on U.S. and international tax implications of fund formation and fund investments. Dan’s clients include credit funds, private equity funds, hedge funds, real-estate funds and infrastructure funds. These clients benefit from Dan’s broad experience and background and Dan’s ability to advise throughout the fund lifecycle, from formation to wind-down.

Dan has extensive experience advising credit funds on structuring inbound U.S. investments and planning for onshore U.S. activities, including loan origination activities. Dan also advises clients (typically on the creditor-side) with respect to workout and bankruptcy matters, and other aspects of distressed investing. Dan regularly advises private equity and infrastructure funds with respect to their investment activities and has advised sponsors with respect to complex cross-border IPOs, structured in careful consideration of inversion and other US tax considerations.

Prior to joining Proskauer Dan was a principal at KPMG.

Photo of Amanda H. Nussbaum Amanda H. Nussbaum

Amanda H. Nussbaum is the chair of the Firm’s Tax Department as well as a member of the Private Funds Group. Her practice concentrates on planning for and the structuring of domestic and international private investment funds, including venture capital, buyout, real estate…

Amanda H. Nussbaum is the chair of the Firm’s Tax Department as well as a member of the Private Funds Group. Her practice concentrates on planning for and the structuring of domestic and international private investment funds, including venture capital, buyout, real estate and hedge funds, as well as advising those funds on investment activities and operational issues. She also represents many types of investors, including tax-exempt and non-U.S. investors, with their investments in private investment funds. Business partners through our clients’ biggest challenges, Amanda is a part of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team helping to shape the guidance and next steps for clients impacted by the pandemic.

Amanda has significant experience structuring taxable and tax-free mergers and acquisitions, real estate transactions and stock and debt offerings. She also counsels both sports teams and sports leagues with a broad range of tax issues.

In addition, Amanda advises not-for-profit clients on matters such as applying for and maintaining exemption from federal income tax, minimizing unrelated business taxable income, structuring joint ventures and partnerships with taxable entities and using exempt and for-profit subsidiaries.

Amanda has co-authored with Howard Lefkowitz and Steven Devaney the New York Limited Liability Company Forms and Practice Manual, which is published by Data Trace Publishing Co.

Photo of Martin T. Hamilton Martin T. Hamilton

Martin T. Hamilton is a partner in the Tax Department. He primarily handles U.S. corporate, partnership and international tax matters.

Martin’s practice focuses on mergers and acquisitions, cross-border investments and structured financing arrangements, as well as tax-efficient corporate financing techniques and the tax…

Martin T. Hamilton is a partner in the Tax Department. He primarily handles U.S. corporate, partnership and international tax matters.

Martin’s practice focuses on mergers and acquisitions, cross-border investments and structured financing arrangements, as well as tax-efficient corporate financing techniques and the tax treatment of complex financial products. He has experience with public and private cross-border mergers, acquisitions, offerings and financings, and has advised both U.S. and international clients, including private equity funds, commercial and investment banks, insurance companies and multinational industrials, on the U.S. tax impact of these global transactions.

In addition, Martin has worked on transactions in the financial services, technology, insurance, real estate, health care, energy, natural resources and industrial sectors, and these transactions have involved inbound and outbound investment throughout Europe and North America, as well as major markets in East and South Asia, South America and Australia.