[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Proposed Rules]
[Pages 4582-4610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27003]



[[Page 4581]]

Vol. 86

Friday,

No. 10

January 15, 2021

Part VI





Department of the Treasury





-----------------------------------------------------------------------





Internal Revenue Service





-----------------------------------------------------------------------





26 CFR Part 1





Guidance on Passive Foreign Investment Companies and the Treatment of 
Qualified Improvement Property Under the Alternative Depreciation 
System for Purposes of Sections 250(b) and 951A(d); Proposed Rule

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / 
Proposed Rules

[[Page 4582]]


-----------------------------------------------------------------------

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-111950-20]
RIN 1545-BP91


Guidance on Passive Foreign Investment Companies and the 
Treatment of Qualified Improvement Property Under the Alternative 
Depreciation System for Purposes of Sections 250(b) and 951A(d)

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Withdrawal of notice of proposed rulemaking; notice of proposed 
rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document contains proposed regulations regarding the 
determination of whether a foreign corporation is treated as a passive 
foreign investment company (``PFIC'') for purposes of the Internal 
Revenue Code (``Code''). The proposed regulations also provide guidance 
regarding the treatment of income and assets of a qualifying insurance 
corporation (``QIC'') that is engaged in the active conduct of an 
insurance business (``PFIC insurance exception''). This document also 
contains proposed regulations addressing the treatment of qualified 
improvement property (``QIP'') under the alternative depreciation 
system (``ADS'') for purposes of calculating qualified business asset 
investment (``QBAI'') for purposes of the global intangible low-taxed 
income (``GILTI'') and the foreign-derived intangible income (``FDII'') 
provisions, which were added to the Code in the Tax Cuts and Jobs Act. 
The proposed regulations affect United States persons with direct or 
indirect ownership interests in certain foreign corporations, United 
States shareholders of controlled foreign corporations, and domestic 
corporations eligible for the deduction for FDII.

DATES: Written or electronic comments and requests for a public hearing 
must be received by April 14, 2021. Requests for a public hearing must 
be submitted as prescribed in the ``Comments and Requests for a Public 
Hearing'' section.

ADDRESSES: Commenters are strongly encouraged to submit public comments 
electronically. Submit electronic submissions via the Federal 
eRulemaking Portal at www.regulations.gov (indicate IRS and REG-111950-
20) by following the online instructions for submitting comments. Once 
submitted to the Federal eRulemaking Portal, comments cannot be edited 
or withdrawn. The IRS expects to have limited personnel available to 
process public comments that are submitted on paper through mail. Until 
further notice, any comments submitted on paper will be considered to 
the extent practicable. The Department of the Treasury (Treasury 
Department) and the IRS will publish for public availability any 
comment submitted electronically, and to the extent practicable on 
paper, to its public docket.
    Send paper submissions to: CC:PA:LPD:PR (REG-111950-20), Room 5203, 
Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044.

FOR FURTHER INFORMATION CONTACT: Concerning proposed regulations 
Sec. Sec.  1.250(b)-1(b)(2) and 1.250(b)-2(e)(2), Lorraine Rodriguez, 
(202) 317-6726; concerning proposed regulations Sec.  1.951A-3(e)(2), 
Jorge M. Oben and Larry R. Pounders, (202) 317-6934; concerning 
proposed regulations Sec. Sec.  1.1297-0 through 1.1297-2, 1.1298-0 and 
1.1298-4, Christina G. Daniels at (202) 317-6934; concerning proposed 
regulations Sec. Sec.  1.1297-4 through 1.1297-6 (the PFIC insurance 
exception), Josephine Firehock at (202) 317-4932; concerning 
submissions of comments and requests for a public hearing, Regina L. 
Johnson at (202) 317-6901 (not toll-free numbers) or by sending an 
email to <a href="/cdn-cgi/l/email-protection#e29297808e8b818a8783908b8c8591a28b9091cc858d94"><span class="__cf_email__" data-cfemail="e4949186888d878c8185968d8a8397a48d9697ca838b92">[email protected]</span></a> (preferred).

SUPPLEMENTARY INFORMATION:

Background

I. Passive Foreign Investment Companies

A. In General

    This document contains proposed amendments to 26 CFR part 1 under 
sections 1297 and 1298. Under section 1297(a), a foreign corporation 
(``tested foreign corporation'') qualifies as a PFIC if it satisfies 
either of the following tests: (i) 75 percent or more of the tested 
foreign corporation's gross income for a taxable year is passive 
(``Income Test''); or (ii) the average percentage of assets held by the 
tested foreign corporation during a taxable year that produce (or that 
are held for the production of) passive income is at least 50 percent 
(``Asset Test''). Section 1297(b)(1) generally defines passive income 
as any income of a kind that would constitute foreign personal holding 
company income (``FPHCI'') under section 954(c), and section 1297(b)(2) 
provides exceptions to this general definition. In addition, section 
1297(c) provides a look-through rule that applies when determining the 
PFIC status of a tested foreign corporation that directly or indirectly 
owns at least 25 percent of the stock (determined by value) of another 
corporation. Section 1298(b)(7) provides that certain stock 
(``qualified stock'') in a domestic C corporation owned by a tested 
foreign corporation through a 25-percent-owned domestic corporation is 
treated as an asset generating non-passive income for purposes of 
section 1297(a), provided that the tested foreign corporation is 
subject to the accumulated earnings tax or waives any treaty 
protections against the imposition of the accumulated earnings tax.

B. PFIC Insurance Exception

    Before its amendment by section 14501 of the Tax Cuts and Jobs Act, 
Public Law 115-97, 131 Stat. 2234 (2017) (the ``Act''), former section 
1297(b)(2)(B) provided that passive income generally did not include 
investment income derived in the active conduct of an insurance 
business by a corporation that is predominantly engaged in an insurance 
business and that would be subject to tax under subchapter L if it were 
a domestic corporation. Congress was concerned about a lack of clarity 
and precision in the PFIC insurance exception, and in particular about 
the lack of precision regarding how much insurance or reinsurance 
business a company must do to qualify under the exception, which made 
the exception difficult to enforce. H.R. Report 115-409 at 409-10. To 
address these concerns, the Act modified the PFIC insurance exception 
to provide that passive income does not include investment income 
derived in the active conduct of an insurance business by a QIC.
    Thus, for taxable years beginning after December 31, 2017, the PFIC 
insurance exception provides that a foreign corporation's income 
attributable to an insurance business will not be passive income if 
three requirements are met. First, the foreign corporation must be a 
QIC as defined in section 1297(f). Second, the foreign corporation must 
be engaged in an ``insurance business.'' Third, the income must be 
derived from the ``active conduct'' of that insurance business.

C. Prior Proposed Regulations

    On April 24, 2015, the Federal Register published a notice of 
proposed rulemaking (REG-108214-15) at 80 FR 22954 (the ``2015 proposed 
regulations'') under former sections 1297(b)(2)(B) and 1298(g). The 
2015 proposed regulations addressed the

[[Page 4583]]

PFIC insurance exception and provided guidance regarding the extent to 
which a foreign corporation's investment income and the assets 
producing that income are excluded from passive income and passive 
assets for purposes of the passive income and passive asset tests in 
section 1297(a). Comments were received on the previously proposed 
regulations. A public hearing was requested and was held on September 
18, 2015.
    On July 11, 2019, the Federal Register published a notice of 
proposed rulemaking (REG-105474-18) at 84 FR 33120 (the ``2019 proposed 
regulations'') under sections 1291, 1297, and 1298. The 2019 proposed 
regulations provided guidance with respect to the application of the 
Income Test and the Asset Test under section 1297(a), the look-through 
rule under section 1297(c), and indirect ownership rules under section 
1291. The 2019 proposed regulations also addressed the PFIC insurance 
exception under section 1297(b)(2)(B), including the definition of a 
QIC under section 1297(f) and the requirements for a foreign 
corporation to be engaged in the active conduct of an insurance 
business.
    A public hearing on the 2019 proposed regulations was scheduled for 
December 9, 2019, but it was not held because there were no requests to 
speak. The Treasury Department and the IRS received written comments 
with respect to the 2019 proposed regulations. Concurrently with the 
publication of these proposed regulations, the Treasury Department and 
the IRS are publishing in the Rules and Regulations section of this 
edition of the Federal Register (RIN 1545-BO59) final regulations under 
sections 1291, 1297, and 1298 (the ``final regulations''). In response 
to certain comments, the Treasury Department and the IRS are publishing 
this notice of proposed rulemaking to provide additional proposed 
regulations under sections 1297 and 1298.

II. QBAI Rules for GILTI and FDII

A. GILTI and FDII--In General

    Section 951A(a) requires a United States shareholder (as defined in 
section 951(b)) (``U.S. shareholder'') of any controlled foreign 
corporation (as defined in section 957) (``CFC'') for any taxable year 
to include in gross income the U.S. shareholder's GILTI for such 
taxable year (``GILTI inclusion amount''). The U.S. shareholder's GILTI 
inclusion amount is calculated based on its pro rata share of certain 
items--such as tested income, tested loss, and QBAI--of each CFC owned 
by the U.S. shareholder. See Sec.  1.951A-1(c). Section 951A(d)(3) \1\ 
requires a taxpayer to calculate QBAI by determining the adjusted basis 
of property using the ADS under section 168(g) ``notwithstanding any 
provision of this title (or any other provision of law) which is 
enacted after the date of the enactment of [section 951A].'' Section 
1.951A-3(e)(2) states that ``[t]he adjusted basis in specified tangible 
property is determined without regard to any provision of law enacted 
after December 22, 2017, unless such later enacted law specifically and 
directly amends the definition of qualified business asset investment 
under section 951A.'' The GILTI provisions in section 951A apply to 
taxable years of foreign corporations beginning after December 31, 
2017, and to taxable years of U.S. shareholders in which or with which 
such taxable years of foreign corporations end. See section 14201(d) of 
the Act.
---------------------------------------------------------------------------

    \1\ As enacted, section 951A(d) contains two paragraphs 
designated as paragraph (3). The section 951A(d)(3) discussed in 
this preamble relates to the determination of the adjusted basis in 
property for purposes of calculating QBAI.
---------------------------------------------------------------------------

    The definition of QBAI in section 951A(d) also applies for purposes 
of determining deemed tangible income return under section 250. See 
section 250(b)(2)(B) and Sec.  1.250(b)-2(b). Section 250 generally 
allows a domestic corporation a deduction equal to 37.5 percent (21.875 
percent for taxable years after 2025) of its FDII (as defined in 
section 250(b)(1) and Sec.  1.250(b)-1(b)). For purposes of FDII, QBAI 
is used to determine the deemed tangible income return of a 
corporation, which in turn reduces the amount of FDII of a corporation. 
See section 250(b)(1) and (2). Section 250(b)(2)(B) and Sec.  1.250(b)-
2 incorporate the definition of QBAI in section 951A(d)(3), with some 
modifications. Similar to the GILTI rule provided in Sec.  1.951A-
3(e)(2), Sec.  1.250(b)-2(e)(2) provides that ``[t]he adjusted basis in 
specified tangible property is determined without regard to any 
provision of law enacted after December 22, 2017, unless such later 
enacted law specifically and directly amends the definition of QBAI 
under section 250 or section 951A.'' The FDII provisions in section 250 
apply to taxable years beginning after December 31, 2017. See section 
14202(a) of the Act.

B. ADS Depreciation

    ADS depreciation under section 168(g) is determined by using the 
straight-line method (without regard to salvage value), the applicable 
convention determined under section 168(d), and the applicable recovery 
period as determined under section 168(g)(2)(C).\2\ On December 22, 
2017, the date the Act was enacted, section 168(g)(2)(C)(iv) provided 
that the recovery period for purposes of ADS depreciation for 
nonresidential real property under section 168(e)(2)(B) was 40 years. 
Nonresidential real property is defined under section 168(e)(2)(B) as 
section 1250 property (that is, real property not described in section 
1245) that is not residential rental property or property with a class 
life of less than 27.5 years.
---------------------------------------------------------------------------

    \2\ Although the applicable convention for nonresidential real 
property under section 168(d)(2)(A) is the mid-month convention, 
Sec.  1.951A-3(e)(1) provides that for the purpose of determining 
QBAI, the period in the CFC inclusion year to which such 
depreciation relates is determined without regard to the applicable 
convention under section 168(d).
---------------------------------------------------------------------------

    Section 168(g)(2)(C)(i) provided that the recovery period for 
property not described in section 168(g)(2)(C)(ii) or (iii) \3\ is the 
property's class life. Class life is generally determined under section 
168 or Rev. Proc. 87-56; 1987-42 I.R.B. 4; however, section 168(g)(3) 
specifies class lives for certain types of property for ADS purposes.
---------------------------------------------------------------------------

    \3\ Section 168(g)(2)(C)(ii) and (iii) refer to personal 
property with no class life and residential rental property, 
respectively.
---------------------------------------------------------------------------

C. Qualified Improvement Property

1. The Act
    Effective for property placed in service after December 31, 2017, 
section 13204 of the Act amended section 168(e) by removing references 
to qualified leasehold improvement property, qualified restaurant 
improvement property, and qualified retail improvement property, and 
instead referring only to QIP. Under section 168(e)(6), QIP includes 
certain improvements made by a taxpayer \4\ to the interior of a 
nonresidential building that are placed in service after the building 
was first placed in service. The conference report under the Act states 
that Congress intended QIP to be classified as 15-year property under 
the general depreciation system and be assigned a 20-year ADS recovery 
period. See Conference Report to Accompany H.R. 1 at 366-367.
---------------------------------------------------------------------------

    \4\ The phrase ``made by a taxpayer'' was added by section 
2307(a)(2) of Public Law 116-136, discussed below.
---------------------------------------------------------------------------

2. The CARES Act
    The Coronavirus Aid, Relief, and Economic Security Act, Public Law 
116-136 (the ``CARES Act'') was enacted on March 27, 2020. According to 
the Description of the Tax Provisions of Public Law 116-136, the 
Coronavirus Aid, Relief, and Economic Security

[[Page 4584]]

(``CARES'') Act, prepared by the Staff of the Joint Committee on 
Taxation, when Congress added the definition of QIP in section 
168(e)(6) of the Code, it intended for QIP to be classified as 15-year 
property under section 168(e)(3)(E) of the Code, with a 15-year 
recovery period under the general depreciation system in section 168(a) 
of the Code and a 20-year ADS recovery period but inadvertently omitted 
from the statute such language. See Joint Committee on Taxation, 
Description of the Tax Provisions of Public Law 116-136, The 
Coronavirus, Relief, and Economic Security (``CARES'') Act (JCX-12R-20) 
at 69-70 (Apr. 23, 2020) (``JCT CARES Act Report''). Section 2307(a)(2) 
of the CARES Act amended section 168(e) by adding clause (vii) to 
paragraph (E)(3), providing that QIP is classified as 15-year property, 
and amending the table in section 168(g)(3)(B) to provide a recovery 
period of 20 years for QIP for purposes of the ADS (the ``technical 
amendment''). The technical amendment is effective as if it had been 
included in the Act.\5\
---------------------------------------------------------------------------

    \5\ Rev. Proc. 2020-25, 2020-19 I.R.B. 785, generally allows a 
taxpayer to change its depreciation method under section 168 for QIP 
placed in service by the taxpayer after December 31, 2017, by 
amending the applicable tax returns or requesting an accounting 
method change. The determination of a taxpayer's adjusted basis for 
purposes of determining QBAI is not addressed in the revenue 
procedure and is not treated as a method of accounting. T.D. 9866, 
84 FR 29288, 29304 (2019).
---------------------------------------------------------------------------

D. Notice 2020-69

    Notice 2020-69, 2020-30 I.R.B. 604, announced that the Treasury 
Department and the IRS intend to issue regulations addressing the 
treatment of QIP under the ADS depreciation provisions in section 
168(g) for purposes of calculating QBAI under the FDII and GILTI 
provisions. The notice provided that the Treasury Department and the 
IRS expect the regulations under sections 250 and 951A to clarify that 
the technical amendment to section 168 enacted in section 2307(a) of 
the CARES Act applies to determine the adjusted basis of property under 
section 951A(d)(3) as if it had originally been part of section 13204 
of the Act.
Explanation of Provisions
    The proposed regulations provide guidance on the valuation of 
assets and on the treatment of working capital for purposes of the 
Asset Test. They modify the treatment of dividends paid out of earnings 
and profits not previously taken into account, such as dividends paid 
out of pre-acquisition earnings, and provide safe harbors for 
application of the principal purpose anti-abuse test that may prohibit 
the use of the qualified stock rules of section 1298(b)(7). The 
proposed regulations also provide guidance regarding whether the income 
of a foreign corporation is excluded from passive income pursuant to 
section 1297(b)(2)(B) because the income is derived in the active 
conduct of an insurance business by a QIC.
    Part I.A of this Explanation of Provisions describes rules for 
income derived in the active conduct of a banking business, asset 
valuation, and working capital in proposed Sec.  1.1297-1; the special 
dividend rules in proposed Sec.  1.1297-2; and the proposed safe 
harbors for the qualified stock principal purpose anti-abuse test in 
proposed Sec.  1.1298-4(e). Part I.B of this Explanation of Provisions 
describes the rules in proposed Sec.  1.1297-4 for determining whether 
a foreign corporation is a QIC. Part I.C of this Explanation of 
Provisions describes the rules in proposed Sec.  1.1297-5 for 
determining whether a foreign corporation is engaged in the active 
conduct of an insurance business. Part I.D of this Explanation of 
Provisions describes the rules in proposed Sec.  1.1297-6 regarding the 
treatment of income and assets of a qualifying domestic insurance 
company.
    The proposed regulations also provide guidance on the treatment of 
QIP under the ADS for purposes of calculating QBAI under the GILTI and 
FDII provisions. See Part II of this Explanation of Provisions.

I. Passive Foreign Investment Companies

A. General PFIC Rules

1. Income Derived in the Active Conduct of a Banking Business
a. Active Banking Business Exception
    Section 1297(b)(1) generally defines the term passive income to 
mean any income which is of a kind which would be FPHCI as defined in 
section 954(c). Section 1297(b)(2) provides exceptions to this general 
definition. Section 1297(b)(2)(A) provides that passive income does not 
include any income derived in the active conduct of a banking business 
by an institution licensed to do business as a bank in the United 
States (or, to the extent provided in regulations, by any other 
corporation) (the ``section 1297(b)(2)(A) banking exception''), and 
section 1297(b)(2)(B) provides a similar exception for income derived 
in the active conduct of an insurance business. The Treasury Department 
and the IRS have determined that in light of this statutory framework, 
qualifying banking income should be treated as non-passive under the 
section 1297(b)(2)(A) banking exception (and qualifying insurance 
income should be treated as non-passive under the similar rule in 
section 1297(b)(2)(B)) and not under the general rule of section 
1297(b)(1). Otherwise, an exception for active banking and insurance 
income of a tested foreign corporation would apply indirectly under 
section 1297(b)(1) and also directly under sections 1297(b)(2)(A) and 
(B), which would be duplicative and would effectively narrow the scope 
of the statutory exceptions in section 1297(b)(2). Accordingly, the 
Treasury Department and the IRS have determined that section 954(h)(1), 
which provides that for purposes of section 954(c)(1) FPHCI does not 
include qualified banking or financing income of an eligible controlled 
foreign corporation, does not apply for purposes of section 1297(b)(1). 
See Part III.B.1 of the preamble to the final regulations.
    Notice 88-22, 1988-1 C.B. 489, states that assets held by foreign 
corporations described in section 1297(b)(2)(A) (then section 
1296(b)(2)(A)) that are utilized to produce income in the active 
conduct of a banking business will be treated as non-passive assets. 
Notice 89-81, 1989-2 C.B. 399, provides guidance addressing the 
characterization of income derived in a banking business by a foreign 
corporation that is not licensed to do business as a bank in the United 
States for purposes of the definitional tests of the PFIC provisions, 
and states that the rules contained in Notice 89-81 will be 
incorporated into future regulations. In 1995, regulations were 
proposed to implement the section 1297(b)(2)(A) banking exception. See 
proposed Sec.  1.1296-4, 60 FR 20922, April 28, 1995. In light of the 
fact that the 1995 proposed regulations have not been finalized, the 
Treasury Department and the IRS are aware that taxpayers need guidance 
on how to properly apply section 1297(b)(2)(A).
    Section 1297(b)(2)(A) requires that income be derived in the active 
conduct of a banking business, and grants authority for regulations to 
expand the scope of entities that are eligible for the section 
1297(b)(2)(A) exception beyond U.S.-licensed banks. The preamble to the 
1995 proposed regulations states that the Treasury Department and the 
IRS believe that Congress intended to grant the banking exception only 
to corporations that conform to a traditional U.S. banking model. 1995-
1 C.B. 978. The Treasury Department and IRS continue to believe that 
the section 1297(b)(2)(A) banking exception should apply to foreign 
banks and not to other

[[Page 4585]]

types of financial institutions, based on both the statutory framework 
and the history of section 1297(b).\6\
---------------------------------------------------------------------------

    \6\ See Joint Committee on Taxation, General Explanation of the 
Tax Reform Act of 1986, at 1025 (JCS-10-87) (May 4, 1987) (``The Act 
provides regulatory authority to expand the exception to passive 
income for income derived by a foreign bank licensed to do business 
in the United States to any other foreign corporation engaged in the 
active conduct of a banking business, as well.'') (emphasis added); 
cf. H.R. Rep. No. 99-841, at II-644 (1986) (Conf. Rep.) (providing 
that ``the Secretary has regulatory authority to apply the PFIC 
provisions to any `bank' where necessary to prevent U.S. individuals 
from earning what is essentially portfolio investment income in a 
tax deferred entity'') (emphasis added).
---------------------------------------------------------------------------

    In the Tax Reform Act of 1986, Congress repealed broad FPHCI 
exceptions under section 954, including an exception for active banks, 
while simultaneously enacting PFIC rules, including current section 
1297(b)(2)(A) (as subsequently renumbered in 1997). Thus, when the PFIC 
rules were enacted, section 1297(b)(2)(A) was the exclusive means by 
which an active bank could avail itself of a passive income exception 
to the PFIC rules.
    Since 1986, Congress has repeatedly amended section 1297(b) to add, 
repeal, and modify the exceptions therein as they apply to financial 
institutions. For example, in 1993 a new paragraph (3) was added to 
section 1297(b) (then section 1296(b)) providing that income earned in 
the active conduct of a securities business by a CFC was not treated as 
passive for PFIC purposes for a United States shareholder (``U.S. 
shareholder'') as defined in section 951(b). Public Law 103-66, Omnibus 
Budget Reconciliation Act of 1993, section 13231(d)(3). In 1997, that 
paragraph was repealed, in connection with the enactment of section 
1297(d) (then section 1297(e)), which eliminated the need for rules 
relating to CFCs in section 1297 with respect to US shareholders. 
Public Law 105-34, Taxpayer Relief Act of 1997, section 1122(d)(4). In 
2017, TCJA amended section 1297(b)(2)(B), relating to income earned in 
the active conduct of an insurance business, and added section 1297(f). 
Congress has thus expressly addressed when income of a kind earned by 
various active financial institutions should be treated as non-passive. 
Because section 1297(b)(2)(A) applies to income derived in the active 
conduct of a banking business, the relevant class of foreign financial 
institutions is foreign banks.
    The Treasury Department and the IRS have considered alternatives to 
the analysis set forth above. In particular, because the PFIC rules 
when enacted in 1986 provided broader exclusions for income of active 
foreign financial institutions than the subpart F rules did, and 
because broader exclusions for active financial businesses for PFIC 
purposes may be appropriate in light of the fact that U.S. investors in 
a PFIC do not control the PFIC, the Treasury Department and the IRS 
have considered whether a wholesale incorporation of section 954(h) 
into either section 1297(b)(1) or section 1297(b)(2)(A) would be 
appropriate as an exercise of regulatory discretion. A broader approach 
of that kind could be of particular relevance to finance companies 
whose income is eligible for the section 954(h) exception.
    The Treasury Department and the IRS concluded that such a broader 
approach is not warranted by the statutory language or history, as 
described in Part I.A.1.a of this Explanation of Provisions. 
Furthermore, the 1993 legislative history to the expansion of section 
1297(b)'s passive income exceptions makes clear that the PFIC rules as 
in effect at that time did not apply to finance companies, that is, 
entities that did not engage in the deposit-taking activities 
characteristic of banks.\7\ Consequently, if all of section 954(h) were 
permitted to apply for purposes of section 1297(b)(2)(A), finance 
companies, which can qualify for the section 954(h) exception, would 
obtain a privileged treatment for PFIC purposes that Congress intended 
to deny in 1993 and has not expressly approved in the interim.
---------------------------------------------------------------------------

    \7\ See H.R. Conf. Rep. No. 103-213, Omnibus Budget 
Reconciliation Act of 1993, at 641 (Aug. 4, 1993) (``These rules 
[the banking exception and the securities dealer exception], 
however, do not apply to income derived in the conduct of financing 
and credit services businesses'').
---------------------------------------------------------------------------

    However, section 954(h) provides some useful guideposts that can be 
applied to interpret section 1297(b)(2)(A) in the absence of final 
regulations, because the two provisions have similar and complementary 
purposes. Sections 954(h)(2)(B)(ii) and 1297(b)(2)(A) construe the same 
statutory phrase: Income ``derived in the active conduct of a banking 
business.'' And they both are limited to banks licensed to do business 
as a bank in the United States or any other corporation as prescribed 
by the Secretary. Moreover, the legislative history to section 954(h) 
explicitly states that the phrase ``active conduct of a banking 
business'' under section 954(h) is intended to have the same meaning as 
under the 1995 proposed regulations issued under section 
1297(b)(2)(A).\8\ Finally, section 954(h) is a more recent expression 
of Congressional intent as to the conditions under which banking income 
of a foreign entity should be treated as non-passive than section 
1297(b)(2)(A).
---------------------------------------------------------------------------

    \8\ H.R. Rep. No. 817, 105th Cong. 2d Sess. 37 (Oct. 12, 1988) 
(``It generally is intended that these requirements for the active 
conduct of a banking or securities business be interpreted in the 
same manner provided in the regulations proposed under prior law 
section 1296(b) . . . See Prop. Treas. Reg. secs. 1.1296-4 and 
1.1296-6. Specifically, it is intended that these requirements 
include the requirements for foreign banks under Prop. Treas. Reg. 
sec. 1.1296-4 as currently drafted.''); see also H.R. Rep. No. 220, 
105th Cong. 1st Sess. 642 (July 30, 1997) (similar language); Joint 
Committee on Taxation, General Explanation of Tax Legislation 
Enacted in 1997, at 330 (JCS-23-97) (Dec. 17, 1997) (``The Congress 
generally intended that the income of a corporation engaged in the 
active conduct of a banking or securities business that would have 
been eligible for this exception would have been the income that is 
treated as nonpassive under the regulations proposed under prior law 
section 1296(b). See Prop. Treas. Reg. secs. 1.1296-4 and 1.1296-
6.'').
---------------------------------------------------------------------------

    Accordingly, in order to provide guidance to foreign banks and in 
light of the close connection between section 1297(b)(2)(A) and section 
954(h)(2)(B)(ii), the Treasury Department and the IRS propose to apply 
certain principles of section 954(h) for purposes of section 
1297(b)(2)(A), under section 1297(b)(2)(A)'s specific grant of 
regulatory authority. See proposed Sec.  1.1297-1(c)(2). Alternatively, 
taxpayers also may rely upon Notice 89-81 or proposed Sec.  1.1296-4 
(relating to banking income of active banks) to determine whether 
income of a foreign entity may be treated as non-passive under section 
1297(b)(2)(A).
b. Proposed Exception for Active Banking Income of Foreign Banks
    Proposed Sec.  1.1297-1(c)(2) provides that income of a tested 
foreign corporation will not be treated as passive if the income would 
be eligible for section 954(h) if the tested foreign corporation were a 
CFC, and the income is derived in the active conduct of a banking 
business by a foreign bank. The term active conduct of a banking 
business has the meaning given to it by section 954(h)(2)(B)(ii). See 
proposed Sec.  1.1297-1(c)(2)(i)(B). The term foreign bank is defined 
in a manner similar to the definition of active bank under proposed 
Sec.  1.1296-4, and is intended to have the same meaning, except where 
the proposed regulations provide a different rule. For example, a 
foreign bank must engage in one or more of the list of relevant banking 
activities provided by section 954(h)(4) rather than being required to 
make loans. See proposed Sec.  1.1297-1(c)(2)(ii). Some clarifying 
changes have been made to the definition to ensure that it applies only 
to entities that are banks as that

[[Page 4586]]

term is ordinarily understood, and not, for example, to payment service 
providers or money transmitters. As is the case under section 954(h), 
the exception is intended to apply to the income of qualified business 
units of a foreign bank.
    As proposed, the exception does not apply to affiliates of a 
foreign bank that do not independently qualify for the exception, in 
light of the fact that section 954(h) takes affiliates into account 
only for purposes of treating the activities of same-country related 
persons that are CFCs as activities that are conducted directly by an 
eligible CFC if certain conditions are satisfied. See section 
954(h)(3)(E). Proposed Sec.  1.1297-1(c)(2)(i)(A) permits such related 
persons to be treated as if they were CFCs so that section 954(h)(3)(E) 
may apply for purposes of proposed Sec.  1.1297-1(c)(2).
    A comment on the 2019 proposed regulations suggested that the 
attribution of activities of look-through subsidiaries to other 
affiliates that is permitted by Sec.  1.1297-2(e) for purposes of 
specified provisions of section 954(c) be extended to apply for 
purposes of section 954(h). The comment indicated that such treatment 
would be proper because financial businesses generally segregate assets 
and operations that are part of an integrated business into different 
entities for non-tax reasons. Because section 954(h)(3)(E) operates to 
attribute activities among entities for purposes of determining whether 
income constitutes qualified banking income, the Treasury Department 
and the IRS have determined that it would be inappropriate to adopt 
additional rules for attribution of activities for purposes of the 
incorporation of section 954(h) into section 1297(b)(2)(A) and did not 
adopt this comment in the final regulations. However, as an alternative 
to proposed Sec.  1.1297-1(c)(2), taxpayers may rely upon Notice 89-81 
or proposed Sec.  1.1296-4, which provide rules treating banking income 
of qualified bank affiliates as non-passive. If a foreign bank is a 
look-through subsidiary of a tested foreign corporation, then under 
section 1297(c) and Sec.  1.1297-2(b)(2) the income and assets of the 
foreign bank are treated as passive or non-passive at the level of the 
tested foreign corporation to the extent they are treated as passive or 
non-passive at the level of the foreign bank. If that foreign bank 
itself owns a look-through subsidiary, then under section 1297(c) and 
Sec.  1.1297-2(b)(2) the income and assets of the look-through 
subsidiary are treated as passive or non-passive at the level of the 
foreign bank to the extent they are treated as passive or non-passive 
at the level of the look-through subsidiary.
    Another comment noted that, in the case of tested foreign 
corporations with look-through subsidiaries that are domestic 
corporations, section 954(h)(3)(A)(ii)(I) would result in the section 
954(h) exception being inapplicable to active financing income earned 
by these subsidiaries from transactions with local customers, even 
though it would otherwise be of a type that would not be passive. The 
comment suggested that section 954(h) should be applied in the PFIC 
context by treating income as qualified banking or financing income 
even if the income is derived from transactions with customers in the 
United States.
    Section 1298(b)(7) provides an exception for income derived from 
certain 25-percent owned domestic subsidiaries that treats such income 
as non-passive. The Treasury Department and the IRS do not agree that 
an additional rule should be provided to treat income of a domestic 
subsidiary that is not eligible for section 1298(b)(7) as non-passive, 
and accordingly these proposed regulations do not adopt this 
recommendation.\9\
---------------------------------------------------------------------------

    \9\ The legislative history of section 954(h) states that the 
active banking test is not intended to apply to affiliates that do 
not independently satisfy the test. H.R. Rep. No. 817, 105th Cong. 
2d Sess. 37 (Oct. 12, 1988) (``[I]t is not intended that these 
requirements be considered to be satisfied by a CFC merely because 
it is a qualified bank affiliate . . . within the meaning of the 
proposed regulations under former section 1296(b).'')
---------------------------------------------------------------------------

    The preamble to the 2019 proposed regulations requested comments 
addressing the question of whether the section 954(h) exception, if 
adopted as proposed in the 2019 proposed regulations, should continue 
to apply if final regulations implementing section 1297(b)(2)(A), for 
example final regulations similar to proposed Sec.  1.1296-4, are 
adopted. Several comments recommended that the section 954(h) exception 
continue to apply in the PFIC context under section 1297(b)(1) in such 
a case. In light of the different approach taken by these proposed 
regulations compared to the 2019 proposed regulations, the Treasury 
Department and the IRS request comments on whether proposed Sec.  
1.1297-1(c)(2) provides sufficient guidance to foreign banks, such that 
Notice 89-81 and proposed Sec.  1.1296-4 can be withdrawn, whether 
alternatively proposed Sec.  1.1296-4 should be finalized rather than 
proposed Sec.  1.1297-1(c)(2), whether both proposed Sec.  1.1296-4 and 
proposed Sec.  1.1297-1(c)(2) should be finalized, or whether a single 
harmonized set of rules should be provided. Until Notice 89-81 and 
proposed Sec.  1.1296-4 are withdrawn, taxpayers may rely upon them as 
alternatives to proposed Sec.  1.1297-1(c)(2).
    The Treasury Department and the IRS also request comments on the 
general approach taken by proposed Sec.  1.1297-1(c)(2), on whether 
further guidance is needed to address when income is derived in the 
active conduct of a banking business, on whether the definition of 
foreign bank is drafted in a manner that does not exclude bona fide 
foreign banks and does not include other types of financial 
institutions, and on how income of affiliates of foreign banks should 
be taken into account.
2. Valuation of Assets for Purposes of the Asset Test
    Under section 1297(e), the determination of whether a tested 
foreign corporation satisfies the Asset Test either must or may be made 
on the basis of the value of the assets of the tested foreign 
corporation, unless the tested foreign corporation is a controlled 
foreign corporation the shares of which are not publicly traded. 
Accordingly, it is typically necessary to determine the relative value 
of a tested foreign corporation's passive and non-passive assets in 
order to determine whether the tested foreign corporation satisfies the 
Asset Test.
    The value of individual assets of an operating company may not be 
readily determinable. However, financial accounting standards generally 
provide rules that are intended to provide stakeholders with an 
economically realistic understanding of a company's financial position, 
including the cost or value of its assets. Financial statement 
information also often is accessible by tested foreign corporations and 
their shareholders, and is prepared for non-tax purposes. The Treasury 
Department and the IRS understand that, for these reasons, taxpayers 
often utilize financial statements in order to determine the value of a 
tested foreign corporation's assets. Section 1297(f)(4) specifically 
requires the use of information from financial statements prepared 
under U.S. generally accepted accounting principles (``GAAP'') or 
international financial reporting standards (``IFRS'') for purposes of 
the QIC rules, indicating that Congress believes that such information 
is appropriate in some circumstances as a basis for determining whether 
a tested foreign corporation qualifies as a PFIC.
    Accordingly, proposed Sec.  1.1297-1(d)(1)(v)(D) generally permits 
a taxpayer to rely upon the information in a tested foreign 
corporation's financial

[[Page 4587]]

statements in order to determine the value of the corporation's assets. 
The Treasury Department and the IRS request comments on whether 
ordering rules similar to those of section 1297(f)(4) and proposed 
Sec.  1.1297-4(f)(1) should apply, and whether other safeguards such as 
requiring that financial statements be audited should be required.
    The Treasury Department and the IRS are aware that financial 
statements do not include values for some types of assets that are 
important to companies in certain industries, for example self-created 
intangibles. Accordingly, proposed Sec.  1.1297-1(d)(1)(v)(D) provides 
that if a shareholder has reliable information about the value of an 
asset that differs from its financial statement valuation, that 
information must be used to determine the value of the asset. Whether 
valuation information is more reliable than financial statement 
valuation is based on the facts and circumstances, including the 
experience and knowledge of the source of the information, whether the 
information is recent and whether there have been intervening 
developments that would affect the accuracy of the information, and 
whether the information specifically addresses the value of the asset 
in question. Another fact pattern that may raise questions as to 
whether divergence from a financial statement valuation is warranted is 
when a tested foreign corporation or look-through entity owns property 
that is subject to a lease or license that is disregarded under the 
rules for intercompany obligations between a tested foreign corporation 
and a look-through entity, and similar fact patterns. See Sec.  1.1297-
2(c)(1)(ii). The Treasury Department and the IRS request comments on 
whether the Asset Test should take into account the value of the 
property subject to the lease or license and the value of the lease or 
license, or whether instead the Asset Test should take into account the 
value of the property disregarding the lease or license. The Treasury 
Department and the IRS request comments on additional considerations 
that may be relevant to determining when shareholders may use 
information other than financial statement valuations for purposes of 
the Asset Test.
3. Treatment of Working Capital and Goodwill for Purposes of the Asset 
Test, and Other Asset Test Rules Provided by Notice 88-22
    Notice 88-22, 1988-1 C.B. 489 (``Notice 88-22''), provides guidance 
on the application of the Asset Test pending the issuance of 
regulations. The Treasury Department and the IRS propose to adopt final 
regulations that will address the portions of Notice 88-22 that have 
not already been addressed by regulations, for example the guidance 
relating to depreciable property used in a trade or business, trade or 
service receivables, intangible property, working capital, and tax-
exempt assets. After the issuance of those regulations Notice 88-22 
would be obsoleted. Except as described in the remainder of this Part 
I.A.3 of this Explanation of Provisions section, the rules provided in 
Notice 88-22 are proposed to be adopted in final form as set forth in 
Notice 88-22. The Treasury Department and the IRS request comments on 
whether any changes should be made to those rules when they are adopted 
in final regulations.
    Notice 88-22 provides that cash and other current assets readily 
convertible into cash, including assets that may be characterized as 
the working capital of an active business, are treated as passive 
assets for purposes of the Asset Test. Notice 88-22 indicated that 
passive treatment is warranted because working capital produces passive 
income (that is, interest income).
    Comments have noted that the approach taken in Notice 88-22 with 
respect to working capital may be inconsistent with the intent of the 
PFIC regime to distinguish between investments in passive assets and 
investments in active businesses. It has been asserted that the working 
capital rule in Notice 88-22 causes many foreign corporations otherwise 
engaged in active operating businesses to be classified as PFICs 
because Notice 88-22 treats working capital as a passive asset even 
though it is an asset used in the active conduct of business 
operations. Critics of Notice 88-22's working capital rule have also 
noted that, for some purposes of the Code, cash is treated as a 
business (non-passive) asset to the extent it is held as working 
capital for use in a trade or business. See generally section 
1202(e)(6) and Sec. Sec.  1.864-4(c)(2) and 1.897-1(f)(1)(iii).
    The Treasury Department and the IRS recognize that, because any 
active operating company must have some cash or cash equivalents on 
hand to pay operating expenses, Notice 88-22's working capital rule, 
which treats all working capital as a passive asset, does not reflect 
the manner in which bona fide businesses operate. The Treasury 
Department and the IRS also are aware that some foreign companies 
engaged in active businesses hold cash or liquid securities in amounts 
that substantially exceed the present needs of the business for 
extended periods. Therefore, the proposed regulations provide a limited 
exception to the treatment of working capital as passive. Under 
proposed Sec.  1.1297-1(d)(2), an amount of cash held in a non-interest 
bearing account that is held for the present needs of an active trade 
or business and is no greater than the amount reasonably expected to 
cover 90 days of operating expenses incurred in the ordinary course of 
the trade or business of the tested foreign corporation (for example, 
accounts payable for ordinary operating expenses or employee 
compensation) is not treated as a passive asset.
    The Treasury Department and the IRS understand that this definition 
is narrower than the ordinary business meaning of working capital and 
the definitions used in some other Treasury regulations. Because the 
PFIC rules are based on numeric formulas, it is important that 
taxpayers and the IRS can determine what the amount treated as working 
capital is for purposes of the PFIC asset test with some level of 
precision. Moreover, because the statutory PFIC rules (and FPHCI rules) 
generally treat an asset held to produce interest as passive, it may 
not be appropriate to treat an interest-bearing instrument held by an 
operating company as working capital other than as an asset that 
produces passive income. Those rules permit interest-bearing assets to 
be treated as active assets for limited classes of taxpayers like 
banks, insurance companies and securities dealers, and also permit 
interest from related persons to be treated in whole or part as active, 
but in those cases there are specific statutory exceptions from passive 
treatment. See sections 1297(b)(2)(A) (banks), 1297(b)(2)(B) and (f) 
(insurance companies), 1297(b)(2)(C) (interest from related persons) 
and 954(c)(2)(C) (securities dealers). The Treasury Department and the 
IRS request comments on this exception to the general rule of Notice 
88-22 that cash is a passive asset, including the scope of statutory 
authority to treat interest-bearing accounts or instruments held as 
working capital as an active asset and the ways in which the exception 
might be broadened while maintaining appropriate safeguards to avoid 
uncertainty as to how to determine the amounts and types of instruments 
properly treated as held for the present needs of a business and to 
ensure that a business's investments and capital held for future needs 
continue to be characterized as passive assets.
    Like working capital, goodwill was not addressed by the 2019 
proposed

[[Page 4588]]

regulations. Notice 88-22 provides that, for purposes of the Asset 
Test, goodwill or going concern value must be identified with a 
specific income-producing activity of the corporation and characterized 
as a passive or non-passive asset based on the income derived from the 
activity. The Treasury Department and the IRS understand that some 
taxpayers believe that Notice 88-22 takes an improper approach with 
respect to the treatment and characterization of goodwill for purposes 
of the Asset Test and argue that goodwill related to an active trade or 
business should be treated in its entirety as a non-passive asset or, 
in the alternative, that the dual-character asset rule in the proposed 
regulations should be read to apply to goodwill.
    The Treasury Department and the IRS agree that goodwill should be 
allocated to business activities but do not agree that goodwill should 
always be treated entirely as a non-passive asset because the PFIC 
rules may treat certain business assets as passive and it is therefore 
possible that goodwill would be associated with those assets. Because 
companies in different lines of business may be valued as an economic 
matter under different valuation models, some of which may give more 
weight to income and others to assets or to other aspects of a business 
like customer relationships, there is no single basis for allocating 
goodwill that is likely to be best suited to every company as an 
economic matter. The Treasury Department and the IRS believe that the 
approach provided by Notice 88-22 for determining the character of 
goodwill for purposes of the Asset Test is a reasonable approach 
although other approaches may be more economically accurate for a 
particular tested foreign corporation. In light of the complex nature 
of goodwill as an economic and accounting matter, and developments in 
tax law since 1988 with respect to the treatment of goodwill and 
similar assets, the Treasury Department and the IRS request comments on 
alternative approaches to addressing the treatment of goodwill for 
purposes of the Asset Test.
4. Elimination of Intercompany Dividends for Purposes of the Income 
Test and Related Adjustments
    Proposed Sec.  1.1297-2(c)(2) provided that, for purposes of 
applying the Income Test, intercompany payments of dividends between a 
look-through subsidiary and a tested foreign corporation are eliminated 
to the extent the payment is attributable to income of a look-through 
subsidiary that was included in gross income by the tested foreign 
corporation for purposes of determining its PFIC status. The preamble 
to the proposed regulations indicated that the Treasury Department and 
the IRS intended for the elimination of such items to prevent double 
counting of intercompany income and assets.
    A comment expressed concern that the proposed regulation did not 
eliminate a payment of a dividend by a look-through subsidiary to a 
tested foreign corporation that is made out of earnings and profits not 
attributable to income of the subsidiary previously included in the 
gross income of the tested foreign corporation for purposes of 
determining its PFIC status (``dividends from non-accounted-for 
earnings''), for example a dividend paid out of earnings and profits 
accumulated before the tested foreign corporation's acquisition of the 
look-through subsidiary. The comment recommended that final regulations 
provide for the elimination of all dividends from look-through 
subsidiaries and made a number of alternative suggestions intended to 
reduce or eliminate the likelihood that a dividend from a look-through 
subsidiary would be treated as a dividend from non-accounted-for 
earnings. The final regulations did not adopt these recommendations, 
because treating a distribution from a look-through subsidiary as not 
giving rise to gross income to the tested foreign corporation for 
purposes of the Income Test could reduce gain on a future sale of the 
stock of the look-through subsidiary unless a basis or other adjustment 
were made to the stock or gain.
    The final regulations indicate that for purposes of applying the 
Income Test, a tested foreign corporation must take into account its 
gain on the disposition of stock in a look-through subsidiary. See 
Sec.  1.1297-2(f)(2). In the final regulations, the amount of gain 
derived from a tested foreign corporation's direct disposition of stock 
of a look-through subsidiary, or an indirect disposition resulting from 
the disposition of stock of a look-through subsidiary by other look-
through subsidiaries or by look-through partnerships, that is taken 
into account by the tested foreign corporation for purposes of section 
1297(a)(1), section 1298(b)(3), and Sec.  1.1298-2 is the residual 
gain. See Sec.  1.1297-2(f)(2). The residual gain equals the total gain 
recognized by the tested foreign corporation from the disposition of 
the stock of the look-through subsidiary reduced (but not below zero) 
by unremitted earnings. Id. Unremitted earnings are the excess of the 
aggregate income taken into account by the tested foreign corporation 
pursuant to section 1297(c) with respect to the stock of the disposed-
of look-through subsidiary over the aggregate dividends received by the 
tested foreign corporation from the disposed-of look-through subsidiary 
with respect to the stock. Id.
    Reducing unremitted earnings to take dividends into account as 
provided by the final regulations does not fully account for the effect 
of dividends from non-accounted-for earnings, for example where there 
are no unremitted earnings after taking into account distributions of 
earnings and profits previously included in the gross income of the 
tested foreign corporation for purposes of determining its PFIC status 
but the stock of the look-through subsidiary is sold at a gain. 
Consequently, either such dividends should be treated as giving rise to 
income to the recipient, as provided by the final regulations, or some 
other adjustment such as to basis should be made in order to prevent 
the disappearance of potential gain. See Part IV.D.1 of the Summary of 
Comments and Explanation of Revisions for the final regulations.
    The PFIC regulations do not provide rules for determining or 
adjusting the basis of the stock of a look-through subsidiary. In 
addition to the fact pattern described above, many other fact patterns 
could raise questions about how the basis of stock of a look-through 
subsidiary should be adjusted. Examples of such transactions include 
unremitted earnings, certain reorganizations the parties to which are 
look-through subsidiaries, in-kind dividend distributions that could 
give rise to gain at the level of the distributing subsidiary but the 
elimination of dividends from the income of the dividend recipient, and 
other transactions governed by subchapter C. Additional questions arise 
if a subsidiary becomes, or ceases to be, a look-through subsidiary 
while its shares continue to be held by the same shareholder, and with 
respect to transactions that shift property between a look-through 
entity and a tested foreign corporation that owns the look-through 
entity (or between two look-through entities) in light of the fact that 
the transaction may give rise to gain or loss if it is regarded but the 
tested foreign corporation is treated as owning the asset for Asset 
Test purposes both before and after the transaction.
    Rules addressing similar issues exist for members of a consolidated 
group, which might provide a possible model for rules addressing 
``corporate'' transactions between a look-through subsidiary and its 
owner(s). However, the consolidated return regulations are

[[Page 4589]]

highly complex and may not be suitable for foreign corporations that do 
not follow U.S. tax principles. The consolidated return regulations are 
also based on a single-entity paradigm that may not be relevant for 
section 1297(c) given that the stock ownership threshold for treating a 
subsidiary as a look-through subsidiary is 25 percent rather than 80 
percent. Accordingly, those rules may not be an appropriate model for 
basis and related rules for look-through subsidiaries.
    Proposed Sec.  1.1297-2(c)(2) and (f) provide rules that would--for 
purposes of determining a tested foreign corporation's PFIC status--
eliminate from the gross income of the corporation a dividend it 
receives from a look-through subsidiary that is made out of earnings 
and profits not attributable to income of the subsidiary previously 
included in the gross income of the tested foreign corporation. The 
rules also would make corresponding adjustments to the basis of a look-
through subsidiary's stock for purposes of determining gain upon the 
disposition of such stock in applying the Income Test. For the reasons 
already described, these rules may or may not be a desirable approach 
to addressing the issues with respect to earnings and distributions of 
look-through subsidiaries. For example, the basis reduction rule could 
apply if a subsidiary paid a dividend when it was not a look-through 
subsidiary but later became one. The Treasury Department and the IRS 
invite comments addressing these issues--in particular, comments are 
requested on the treatment of pre-acquisition earnings and profits.
5. Safe Harbors for the Domestic Subsidiary Anti-Abuse Rule
    Section 1298(b)(7) provides a special characterization rule that 
applies when (i) a tested foreign corporation owns at least 25 percent 
of the value of the stock of a domestic corporation (``25-percent-owned 
domestic corporation''), (ii) the 25-percent-owned domestic corporation 
owns stock in another domestic corporation (``the second-tier domestic 
corporation), and (iii) the tested foreign corporation is subject to 
the accumulated earnings tax under section 531 (or waives any benefit 
under a treaty that would otherwise prevent imposition of such tax). In 
that case, section 1298(b)(7) treats the stock of the second-tier 
domestic corporation held by the 25-percent-owned domestic corporation 
(``qualified stock'') as a non-passive asset, and the related income as 
non-passive income.
    The 2019 proposed regulations provided that section 1298(b)(7) did 
not apply if, among other matters, a principal purpose for the tested 
foreign corporation's formation or acquisition of the 25-percent-owned 
domestic corporation was to avoid classification of the tested foreign 
corporation as a PFIC (``principal purpose anti-abuse rule''). See 
proposed Sec.  1.1298-4(f)(2). A modified version of the principal 
purpose anti-abuse rule is adopted in the final regulations. See Sec.  
1.1298-4(e)(1).
    The proposed regulations provide two safe harbors from the 
principal purpose anti-abuse rule in Sec.  1.1298-4(e)(1). The Treasury 
Department and the IRS request comments on the application of the safe 
harbors discussed in this Part I.A.5 of the Explanation of Provisions.
    Under the first safe harbor, the anti-abuse rule will not apply if 
more than 80 percent of the assets of the second-tier domestic 
corporation are used in an active U.S. trade or business, as determined 
under modified section 367 rules. See proposed Sec.  1.1298-4(e)(2)(i). 
For purposes of the safe harbor, the assets of the domestic subsidiary 
qualified affiliates (as defined in proposed Sec.  1.1298-
4(e)(2)(i)(B)) are also taken into account in determining whether the 
assets of the second-tier domestic corporation are used in a U.S. trade 
or business. See proposed Sec.  1.1298-4(e)(2)(i)(A).
    The proposed regulations provide a second safe harbor for active 
companies undergoing transition and start-up companies. See proposed 
Sec.  1.1298-4(e)(2)(ii). Under this safe harbor, the anti-abuse rule 
will not apply if the second-tier domestic corporation engages in an 
active U.S. trade or business that satisfies the first safe harbor by 
the end of the transition period following the testing date. See 
proposed Sec.  1.1298-4(e)(2)(ii). Proposed Sec.  1.1298-4(e)(2)(ii)(B) 
defines testing date as the last day of the month in which either (i) 
the second-tier domestic corporation is created, organized, or acquired 
(``start-up testing date'') or (ii) a second-tier domestic corporation 
that previously satisfied the first safe harbor disposes of 
substantially all its active U.S. trade or business (``change-of-
business testing date''). Proposed Sec.  1.1298-4(e)(2)(ii)(C) provides 
that the transition period is thirty-six months after a testing date. 
If the requirements of the business transition and start-up safe harbor 
are not satisfied within the transition period, the benefit of the safe 
harbor is lost retroactively for the entire period in which the safe 
harbor was claimed. See proposed Sec.  1.1298-4(e)(2)(ii)(D). In these 
instances, the general anti-abuse rule in Sec.  1.1298-4(e)(1) will be 
applied to the tested foreign corporation to determine whether a 
principal purpose to avoid PFIC classification existed for the 
preceding years, which would be within the normal statute of 
limitations on assessments under section 6501.

B. Proposed Revisions to Sec.  1.1297-4--Qualifying Insurance 
Corporation

    Section 1297(f) provides that a QIC is a foreign corporation that 
(1) would be subject to tax under subchapter L if it were a domestic 
corporation, and (2) either (A) has applicable insurance liabilities 
(``AIL'') constituting more than 25 percent of its total assets on its 
applicable financial statement (``AFS'') (``the 25 percent test''), or 
(B) meets an elective alternative facts and circumstances test which 
lowers the required AIL-to-total assets ratio to 10 percent 
(``alternative facts and circumstances test'').
    Most of the rules for determining whether a foreign corporation is 
a QIC under section 1297(f) are provided in the final regulations under 
Sec.  1.1297-4. Proposed Sec.  1.1297-4 contains additional rules 
relating to the definition of an applicable financial statement, the 
definition of applicable insurance liabilities, and an optional 
adjustment to total assets.
1. Definition of Applicable Financial Statement
    Proposed Sec.  1.1297-4(f)(1) defines the term applicable financial 
statement (``AFS'') in a manner that provides ordering rules for how to 
prioritize between multiple financial statements prepared at the same 
level of priority, for example multiple financial statements prepared 
on the basis of GAAP or multiple financial statements prepared on the 
basis of IFRS, and between multiple financial statements prepared 
taking into account the assets and liabilities of different legal 
entities. The definition is modeled on similar definitions elsewhere in 
the Code and Treasury regulations, such as regulations under section 
451, but has been adapted to the QIC context.
    The term financial statement is defined to mean a complete balance 
sheet, income statement, and cash flow statement, or the equivalent 
statements under the relevant accounting standard, and ancillary 
documents typically provided together with such statements. As regards 
an AFS, in addition to the general levels of priority set forth in 
section 1297(f)(4)(A) (GAAP, IFRS, and insurance regulatory (statutory) 
statements), ordering rules provide sub-priority levels (based on the 
purpose for which the statement is prepared), with higher priority 
being accorded to

[[Page 4590]]

accounting statements viewed as more reliable. Since the AFS is the 
financial statement of a non-U.S. entity, financial statements provided 
to foreign regulatory bodies generally are treated as having the same 
priority as if provided to an equivalent U.S. regulatory body. The 
requirement that a non-U.S. regulatory agency have standards not less 
stringent than those of the U.S. Securities & Exchange Commission is 
intended to provide a standard similar to the definition of a qualified 
exchange or other market for purposes of section 1296, with respect to 
reporting standards. Because audited financial statements have been 
reviewed by independent auditors, and it is anticipated that insurance 
regulators will require audited financial statements, only audited 
statements can qualify as AFS.
    If a tested foreign corporation has multiple financial statements, 
the order of priority described above is determinative. However, if 
there are multiple financial statements within a single level of 
priority and sub-priority (for example, multiple GAAP financial 
statements provided to creditors), additional ordering rules are 
provided to assign priority first to a financial statement that is not 
prepared on a consolidated basis (and that accounts for investments in 
the tested foreign corporation's subsidiaries (if any) on a cost or 
equity basis), and then to a consolidated financial statement that has 
the tested foreign corporation as the parent of the consolidated group. 
These rules are intended to make it more likely that the AFS reflects 
the same or similar assets and liabilities as the financial statement 
used to determine whether the section 1297(f)(3)(B) limitation on the 
amount of applicable insurance liabilities applies.
    A financial statement prepared on a consolidated basis that takes 
into account affiliates that are not owned by the tested foreign 
corporation (for example, sister companies) is not treated as the AFS 
unless it is the only financial statement of the tested foreign 
corporation and is provided to an insurance regulator. It is 
anticipated that the only financial statement likely to fall within 
that category is a financial statement that includes the tested foreign 
corporation and subsidiaries if any, and a parent corporation.
    Accordingly, if there are multiple financial statements with the 
same level of priority, non-consolidated financial statements take 
priority over consolidated financial statements. However, a 
consolidated financial statement prepared on the basis of GAAP that has 
the tested foreign corporation as the parent of the consolidated group 
has priority over a non-consolidated statement prepared on the basis of 
statutory accounting standards, because financial statements prepared 
on the basis of GAAP are higher priority than financial statements 
prepared on the basis of statutory accounting standards. Similarly, a 
consolidated statement prepared on the basis of IFRS would have 
priority over a non-consolidated statement prepared on the basis of 
statutory accounting standards.
    The Treasury Department and IRS request comments on the expanded 
definition of an AFS and the priority rules provided, including whether 
special rules are needed to properly apply the limitation under Sec.  
1.1297-4(e)(2) if the statutory accounting statement covers a different 
period than the AFS, and whether other more detailed rules are 
necessary in order to identify the AFS when a foreign corporation 
operates in multiple jurisdictions and is subject to the authority of 
more than one insurance regulatory body.
2. Definition of Applicable Insurance Liabilities
    As described in Part V.A.2 of the Summary of Comments and 
Explanation of Revisions to the final regulations, section 1297(f)(4) 
contemplates that a foreign corporation can use GAAP, IFRS, or the 
accounting standard used for the annual statement required to be filed 
with the local regulator (if a statement prepared for financial 
reporting purposes using GAAP or IFRS is not available) as the starting 
point to determine AIL. The preamble to the final regulations notes, 
however, that AIL is defined more specifically so that only those 
liabilities that meet the requirements of section 1297(f)(3) and the 
related regulatory definitions in Sec.  1.1297-4(f)(2) are included in 
AIL, irrespective of differences in nomenclature and methods that may 
be used by different financial reporting standards.
    Proposed Sec.  1.1297-4(f)(2)(i)(D)(3) clarifies that, in 
determining AIL, liabilities are reduced by an amount equal to the 
assets reported on the corporation's financial statement that represent 
amounts relating to those liabilities that may be recoverable from 
other parties through reinsurance. The rule is necessary because GAAP 
and the newest IFRS accounting standard for insurance contracts, IFRS 
17, (and possibly local statutory accounting depending on the laws of 
the foreign jurisdiction) record amounts recoverable from other parties 
as reinsurance with respect to unpaid insurance losses and other 
reserves on the asset side of the balance sheet, rather than reducing 
balance sheet liabilities. In contrast, insurance regulatory accounting 
rules (including those in the United States) often reduce a ceding 
company's insurance liabilities by those amounts instead of including 
them as assets on the balance sheet. Both methods result in the same 
amount of shareholder equity for a foreign corporation but create 
different ratios of AIL to total assets and, thus, can potentially 
produce a difference in a foreign corporation's QIC status.
    The Treasury Department and IRS have determined that AIL should 
exclude amounts that have been reinsured because the ratio test would 
otherwise be subject to manipulation, and because the Treasury 
Department and IRS believe that a uniform approach is appropriate for 
the treatment of reinsured risk regardless of the particular accounting 
standard that may apply. In addition, proposed Sec.  1.1297-
4(f)(2)(i)(D)(3) clarifies that, if a tested foreign corporation's 
financial statement is prepared on a consolidated basis, liabilities of 
the tested corporation must be reduced (to the extent not reduced under 
other provisions) by an amount equal to the assets relating to those 
liabilities that may be recoverable through reinsurance from another 
entity included in the consolidated financial statement, regardless of 
whether the reinsurance transaction is eliminated in the preparation of 
the consolidated financial statement. This proposed rule is consistent 
with the rules of Sec.  1.1297-4(f)(2)(i)(D)(1) and (2), which provide 
that no item may be taken into account more than once and that AIL 
include only the liabilities of the foreign corporation whose QIC 
status is being tested, and not liabilities of other entities within a 
consolidated group.
    The Treasury Department and IRS are aware that certain arrangements 
permit a ceding company to continue to hold the reserves and assets 
required to support the insurance liabilities for the reinsured 
contracts during the policy term (so-called modified coinsurance or 
modco). It has been held that life insurance reserves on policies 
reinsured under a modco arrangement are attributed to the ceding 
company, and not the assuming company. See Rev. Rul. 70-508, 1970-2 
C.B. 136 (1970). See generally Colonial Am. Life Ins. v. United States, 
491 U.S. 244, 248, n.2 (1989); Anchor National Life Ins. v. 
Commissioner, 93 T.C. 382, 423 (1989). Proposed Sec.  1.1297-
4(f)(2)(i)(D)(3) is not intended to apply to modco arrangements where 
the ceding

[[Page 4591]]

company retains the assets supporting the insured risks (because they 
do not create an amount recoverable from another party), but the 
Treasury Department and IRS request comments as to whether the rule 
appropriately addresses modco arrangements and whether additional rules 
may be necessary in the final regulations. The Treasury Department and 
IRS also request comments as to whether to more specifically define 
amounts recoverable from another party through reinsurance and whether 
there are other special circumstances in which modification of the 
definition of AIL is appropriate.
3. Optional Asset Adjustment
    Due to the manner in which AIL are defined under Sec.  1.1297-
4(f)(2), it may be necessary to adjust the amount of a foreign 
corporation's total assets to avoid distortions in applying the 25 
percent test and the 10 percent test. First, if a foreign corporation's 
AFS is prepared on a consolidated basis, total assets may be reduced by 
the amount equal to the amount of insurance liabilities of affiliated 
entities that are reported on the AFS and would be included in AIL if 
its definition did not limit AIL to the AIL of the subject foreign 
corporation. See proposed Sec.  1.1297-4(e)(4)(i). This adjustment is 
appropriate because insurance liabilities of an affiliate, though 
excluded from the definition of AIL, can have the effect of reducing 
the assets available to satisfy the foreign corporation's insurance 
liabilities.
    Second, if a foreign corporation reports amounts recoverable from 
other parties through reinsurance as assets on its AFS, proposed Sec.  
1.1297-4(e)(4)(ii) provides that total assets may be reduced by the 
amount by which AIL are reduced under proposed Sec.  1.1297-
4(f)(2)(i)(D)(3). As explained in Part I.B.2 of this Explanation of 
Provisions, proposed Sec.  1.1297-4(f)(2)(i)(D)(3) requires a foreign 
corporation's AIL to be reduced to reflect those amounts. Without a 
corresponding adjustment to total assets, the same reinsurance contract 
could have the effect of reducing a foreign corporation's AIL while 
also increasing its total assets. The Treasury Department and IRS 
request comments as to whether there are other situations that warrant 
an adjustment to total assets.

C. Proposed Sec.  1.1297-5: Active Conduct of an Insurance Business

    Section 1297(b)(2)(B) provides an exclusion from the definition of 
passive income for income derived in the active conduct of an insurance 
business by a QIC. As described in Part VI.A of the Summary of Comments 
and Explanation of Revisions to the final regulations, proposed Sec.  
1.1297-5 revises previously proposed rules for determining whether a 
QIC is engaged in the active conduct of an insurance business.
1. Overview
    As explained in Part VI.A of the Summary of Comments and 
Explanation of Revisions to the final regulations, the Treasury 
Department and the IRS have determined that the active conduct of an 
insurance business is a requirement mandated by the statute in addition 
to (and separate from) the requirements of subchapter L and section 
1297(f), but that in response to comments, the active conduct test 
should be amended to provide more flexibility in determining whether a 
QIC is engaged in the active conduct of an insurance business. Proposed 
Sec.  1.1297-5(b)(1) provides that a QIC is treated as engaged in the 
active conduct of an insurance business if it satisfies either the 
factual requirements test under proposed Sec.  1.1297-5(c) or the 
active conduct percentage test under proposed Sec.  1.1297-5(d). The 
Treasury Department and IRS request comments on the active conduct 
test, including the addition of the new factual requirements test and 
revisions to the active conduct percentage test.
2. Exclusions From Active Conduct
    Under Sec.  1.1297-5(b)(2), two categories of insurance companies 
are precluded from meeting the active conduct test. First, a QIC is not 
engaged in the active conduct of an insurance business if it has no 
employees (or a nominal number of employees) and relies exclusively (or 
almost exclusively) on independent contractors to perform its core 
functions. Second, the active conduct test excludes securitization 
vehicles (such as vehicles used to issue catastrophe bonds, sidecars, 
or collateralized reinsurance vehicles) and insurance linked securities 
funds that invest in securitization vehicles. These vehicles are 
excluded because they are designed to provide a passive investment 
return tied to insurance risk rather than participation in the earnings 
of an active insurance business.
3. Factual Requirements Test
    As noted in Part VI.A of the Summary of Comments and Explanation of 
Revisions to the final regulations, several comments requested the 
addition of a facts and circumstances test; other comments recommended 
that the active conduct test focus on the assumption of insurance risk; 
and a comment specifically identified underwriting as a core insurance 
function that must be performed by an insurance company's officers and 
employees. The factual requirements test has been added in response to 
these comments. The active conduct percentage test has been retained 
(in modified form) as an alternative means of satisfying the active 
conduct requirement.
    Proposed Sec.  1.1297-5(c) provides that the factual requirements 
test is satisfied if the QIC's officers and employees carry out 
substantial managerial and operational activities on a regular and 
continuous basis with respect to all of its core functions and perform 
virtually all of the active decision-making functions relevant to 
underwriting. A QIC's core functions are generally defined to include 
underwriting, investment, contract and claim management, and sales 
activities. See proposed Sec.  1.1297-5(f) for definitions of these 
terms. See Part I.C.5 of this Explanation of Provisions for rules 
concerning officers and employees of related entities.
    A QIC's officers and employees are considered to carry out 
substantial managerial and operational activities relevant to its core 
functions only if they are involved in all levels of planning and 
implementation related to the QIC's core functions as described in 
proposed Sec.  1.1297-5(c)(2). The required activities must be 
conducted by officers or senior employees with appropriate experience 
who devote all (or virtually all) of their work to those activities and 
similar activities for related entities.
    The active decision-making functions relevant to a QIC's 
underwriting activities are those underwriting activities most 
important to decisions of the QIC relating to the assumption of 
specific insurance risks. See proposed Sec.  1.1297-5(c)(3). To meet 
this requirement, officers and employees of the QIC must carry out 
virtually all of the activities related to a QIC's decision to assume 
an insurance risk and must conduct virtually all of the decision-making 
with respect to the execution of an insurance contract on a contract-
by-contract basis. Development of underwriting policies and parameters 
that are changed infrequently is not an active decision-making function 
in the absence of further ongoing involvement by the QIC's officers and 
employees. See proposed Sec.  1.1297-5(c)(3)(iii)(A).
4. Active Conduct Percentage Test
    The active conduct percentage test is provided in proposed Sec.  
1.1297-5(d). To meet this test, two requirements must be satisfied. 
First, the total costs incurred by a QIC with respect to its officers 
and employees for services rendered with

[[Page 4592]]

respect to its core functions (other than investment activities) must 
equal at least 50 percent of the total costs incurred for all services 
rendered with respect to the QIC's core functions (other than 
investment activities). In response to comments to the 2019 proposed 
regulations, investment activities have been excluded from both the 
numerator and denominator of the percentage calculation. Second, if any 
part of a QIC's core functions (including investment management) is 
outsourced to an unrelated entity, the QIC's officers and employees 
must conduct robust oversight with respect to the outsourced 
activities. See proposed Sec.  1.1297-5(d)(2).
    The proposed regulations provide a definition of total costs that 
is used to apply the active conduct percentage test. See Sec.  1.1297-
5(f)(8). With respect to a QIC's own officers and employees, total 
costs are defined as compensation costs plus other expenses reasonably 
allocable to the services provided (determined in accordance with 
section 482 and taking into account all expenses that would be included 
in the total services costs under Sec.  1.482-9(j) and Sec.  1.482-
9(k)(2)). With respect to services performed by employees of another 
entity (whether related or unrelated), total costs are equal to the 
amount paid or accrued by the QIC to the other entity for the relevant 
services. Ceding commissions paid with respect to reinsurance contracts 
and commissions paid to brokers or sales agents to procure reinsurance 
contracts are excluded from the definition of total costs.
5. Officers and Employees of Related Entities
    For purposes of applying the factual requirements test and the 
active conduct percentage test, a QIC's officers and employees are 
considered to include the officers and employees of related entities, 
where such entities are qualified affiliates of the QIC within the 
meaning of Sec.  1.1297-2(e)(2), except that the 50 percent ownership 
standard is based on both value and voting power. See proposed Sec.  
1.1297-5(e). A qualified affiliate is a corporation or a partnership 
that is included in an affiliated group that includes the QIC. 
Affiliated group has the meaning provided in section 1504(a), 
determined without regard to section 1504(b)(2) and (3) (which would 
otherwise exclude foreign corporations and life insurance companies 
from membership) and substituting ``more than 50 percent'' ownership 
for ``at least 80 percent''. In addition, consistent with the rules of 
Sec.  1.1297-2(e)(2), the common parent of the group must be a foreign 
corporation or foreign partnership, and a corporation or a partnership 
is included in the affiliated group only if it is a look-through 
subsidiary or look-through partnership, as applicable, of the common 
parent. Also, a partnership is included in the affiliated group only if 
more than 50 percent of the value of its capital interests, profits 
interests and any other partnership interests is owned by one or more 
corporations that are included in the affiliated group. The related 
entity rule applies only if the QIC bears the compensation costs on an 
arm's length basis and exercises oversight and supervision with respect 
to the services provided by affiliated officers and employees. See 
proposed Sec.  1.1297-5(e)(3).
    As noted in Part VI.A of the Summary of Comments and Explanation of 
Revisions to the final regulations, comments requested broader 
attribution rules that would cover employees of entities that are 
related to the QIC within the meaning of section 954(d)(3) or are under 
common practical control with the QIC. These comments have not been 
adopted. Because the active conduct test is designed to assess the 
activities of a QIC on a separate entity basis (rather than the 
activities conducted by an insurance group as a whole), services 
performed by officers and employees of other entities cannot be 
attributed to a QIC except in the circumstances described in proposed 
Sec.  1.1297-5(e). However, the Treasury Department and the IRS 
determined that it was appropriate to align the common ownership 
requirements for purposes of the insurance active conduct rule with the 
ownership requirements used in Sec.  1.1297-2(e)(2) for look-through 
subsidiary activity attribution purposes, except including a vote as 
well as value requirement to ensure a heightened level of common 
control of the related entity officers and employees.

D. Proposed Sec.  1.1297-6(e)(2): Qualifying Domestic Insurance 
Corporation Non-Passive Income and Asset Limitations

1. Qualifying Domestic Insurance Corporation Rule
    Sections 1.1297-6(b)(2) and (c)(2) of the final regulations provide 
that income and assets, respectively, of a qualifying domestic 
insurance corporation (``QDIC'') are non-passive for purposes of 
determining whether a non-U.S. corporation is treated as a PFIC (the 
``QDIC Rule''). Section 1.1297-6(e)(1) of the final regulations defines 
a QDIC as a domestic corporation that is subject to tax as an insurance 
company under subchapter L, is subject to Federal income tax on its net 
income, and is a look-through subsidiary of a tested foreign 
corporation. The QDIC Rule is intended to address situations where a 
tested foreign corporation owns a 25 percent or greater interest in a 
domestic insurance corporation through a structure to which section 
1298(b)(7) does not apply, such that the income and assets of the QDIC 
are taken into account in determining whether the tested foreign 
corporation is a PFIC.
    The previous 2019 proposed regulations also provided that the QDIC 
Rule did not apply for purposes of section 1298(a)(2) and determining 
if a U.S. person indirectly owns stock in a lower tier PFIC (``Proposed 
QDIC Attribution Exception''). Consequently, for attribution purposes, 
the 2019 proposed regulations required a tested foreign corporation to 
apply the Income Test and Asset Test without applying the QDIC Rule.
    Several comments on the 2019 proposed regulations requested that 
the Proposed QDIC Attribution Exception be removed because U.S. 
shareholders of a tested foreign corporation that would not otherwise 
be a PFIC but owns a PFIC and a U.S. insurance subsidiary that is a 
QDIC could become indirect owners of a PFIC as a result of the section 
1298(a)(2) attribution rule. Comments asserted that turning off the 
QDIC Rule when testing for lower-tier PFIC ownership attribution would 
undermine the purpose of the rule and create significant burden for 
U.S. minority shareholders of the tested foreign corporation, who would 
have to separately evaluate the PFIC status of all of the tested 
foreign corporation's foreign subsidiaries.
2. Proposed Sec.  1.1297-6(e)(2) QDIC Limitation Rule
    The Treasury Department and IRS agree that the Proposed QDIC 
Attribution Exception was overbroad and removed it from the final 
regulations. However, the Treasury Department and IRS believe that 
limits on the amount of a QDIC's assets and income that are treated as 
non-passive may be appropriate in cases where a QDIC holds 
substantially more passive assets than necessary to support its 
insurance and annuity obligations. Thus, proposed Sec.  1.1297-6(e)(2) 
provides that the amount of a QDIC's otherwise passive income and 
assets that may be treated as non-passive is subject to a maximum based 
on an applicable percentage of the QDIC's total insurance liabilities 
(``QDIC Limitation Rule'').
    Proposed Sec.  1.1297-6(e)(2)(i) provides that the amount of a 
QDIC's passive

[[Page 4593]]

assets that are treated as non-passive under the QDIC Rule may not 
exceed an applicable percentage of the corporation's total insurance 
liabilities. This amount is the QDIC's non-passive asset limitation. 
Proposed Sec.  1.1297-6(e)(2)(ii) provides that the amount of a QDIC's 
passive income that is treated as non-passive under the QDIC Rule may 
not exceed the corporation's passive income multiplied by the 
proportion that the QDIC's non-passive asset limitation bears to its 
total passive assets (determined without the application of the rules 
under Sec.  1.1297-6(c)(2)).
    Under proposed Sec.  1.1297-6(e)(2)(iii), the applicable percentage 
is 200 percent for a life insurance company and 400 percent for a 
nonlife insurance company. Proposed Sec.  1.1297-6(e)(2)(iv)(A) 
provides that, for a QDIC taxable under Part I of Subchapter L (that 
is, a life insurance company), total insurance liabilities means the 
sum of the company's total reserves (as defined in section 816(c)) plus 
(to the extent not included in total reserves) the reserve items 
referred to in paragraphs (3), (4), (5), and (6) of section 807(c). For 
a company taxable under Part II of Subchapter L (that is, a nonlife 
insurance company), the term total insurance liabilities means the sum 
of unearned premiums and unpaid losses. See proposed Sec.  1.1297-
6(e)(2)(iv)(B). Because a QDIC will be subject to tax under Subchapter 
L, it is appropriate to determine the amount of its insurance 
liabilities for purposes of the QDIC Limitation Rule in accordance with 
Subchapter L rules governing insurance liabilities because the QDIC 
will already be determining these amounts for U.S. income tax purposes. 
See proposed Sec.  1.1297-6(e)(3) for an example illustrating the 
application of these rules.
    The Treasury Department and the IRS request comments on the QDIC 
Limitation Rule and in particular on whether the specified applicable 
percentages are reasonable based on industry data. The Treasury 
Department and IRS expect most QDICs to not exceed the passive asset 
and income limitations based on the applicable percentages. In 
addition, a tested foreign corporation may hold less than 50 percent 
passive assets and receive less than 75 percent passive income without 
being classified as a PFIC. Thus, the QDIC Limitation Rule provides a 
disincentive for a foreign corporation to shift excessive passive 
assets into its U.S. insurance subsidiary in order not to qualify as a 
PFIC and is likely to affect the PFIC classification of only a very 
small number of companies. Comments are also requested on whether final 
regulations should specifically allow for the applicable percentages to 
be adjusted or supplemented in subregulatory guidance (for example, to 
reflect possible future changes in industry practice).

E. Life Insurance and Annuity Contract Status

    Section 1297(f)(1)(A) provides that a QIC must be a foreign 
corporation that would be subject to tax under subchapter L if it were 
a domestic corporation. An insurance company is defined in sections 
816(a) and 831(c), which limit insurance company status to a company 
more than half the business of which during the taxable year is the 
issuing of insurance or annuity contracts or the reinsurance of risks 
underwritten by insurance companies. Thus, the status of a company as 
an insurance company under subchapter L depends upon the 
characterization of the contracts that a company issues or reinsures. 
In addition, section 816(a) provides that if more than half of the 
company's total reserves (as defined in section 816(c)) are life 
insurance reserves (as defined in section 816(b)) or unearned premiums 
and unpaid losses on non-cancellable life, accident, or health 
contracts, then the company is a life insurance company taxable under 
part 1 of subchapter L; otherwise, an insurance company is taxable 
under part II of subchapter L.
    Life insurance contracts and annuity contracts must meet certain 
statutory requirements to be treated as contracts giving rise to life 
insurance reserves for subchapter L purposes. Section 7702(a) defines a 
life insurance contract for purposes of the Code as a life insurance 
contract under applicable law (which includes foreign law) that 
satisfies one of two actuarial tests set forth in section 7702. 
Similarly, section 72(s) sets forth distribution on death requirements 
that an annuity contract must satisfy in order to be considered an 
annuity contract for purposes of the Code. In addition, if a contract 
is a variable contract within the definition of section 817(d), it must 
satisfy the diversification requirements for variable contracts under 
section 817(h) to be treated as a life insurance or annuity contract 
for purposes of subchapter L. These statutory requirements reflect 
Congress's concern that the tax-favored treatment generally accorded to 
life insurance and annuity contracts under the Code should not be 
available to contracts that are too investment oriented or provide for 
undue tax deferral.
    A taxpayer request (and follow-up submission) was received by the 
Treasury Department and the IRS regarding promulgating regulations that 
would provide that these statutory requirements do not apply for 
purposes of determining whether a foreign corporation satisfies the 
section 1297(f)(1)(A) requirement that the corporation would be subject 
to tax under subchapter L if it were a domestic corporation (as well as 
for other PFIC purposes), if certain requirements are met. The request 
suggested an approach to the statutory requirements analogous to the 
approach Congress took in section 953(e)(5). Section 953(e)(5) waives 
the statutory requirements for purposes of the subpart F insurance and 
foreign base company income rules if a contract is regulated as a life 
insurance or annuity contract in the issuer's home country and no 
policyholder, insured, annuitant, or beneficiary with respect to the 
contract is a U.S. person. The request asserts that such a waiver is 
warranted for PFIC purposes because contracts issued by non-U.S. 
insurance companies are unlikely to satisfy the statutory requirements, 
since non-U.S. insurance companies that do not target sales to the U.S. 
market typically do not take the statutory requirements into account 
when setting the terms of their life insurance and annuity contracts. 
The request also states that local law requirements may in some cases 
conflict with the statutory requirements. The follow-up submission 
suggested that additional qualification rules could be imposed that 
restrict the rule to cases in which the issuing company meets 
substantial home country requirements (such as deriving more than 50 
percent of its aggregate net written premiums from insuring or 
reinsuring home country risks of unrelated persons).
    The proposed regulations do not address the request as it is beyond 
the scope of the current rulemaking. The Treasury Department and the 
IRS are evaluating whether further guidance is necessary or appropriate 
regarding the application of these provisions in the context of PFICs 
and request comments on this issue.

II. QIP's 20-Year ADS Recovery Period Applies To Determine QBAI for 
FDII and GILTI

    The proposed regulations contain certain rules announced in Notice 
2020-69. Proposed Sec.  1.250(b)-2(e)(2) and proposed Sec.  1.951A-
3(e)(2) clarify that the technical amendment to section 168 enacted in 
section 2307(a) of the CARES Act applies to determine the adjusted 
basis of property under section 951A(d)(3) as if it had originally been

[[Page 4594]]

part of section 13204 of the Act. The Treasury Department and the IRS 
have determined that this clarification is consistent with 
congressional intent. See JCT CARES Act Report at 69-70.
    The Treasury Department and the IRS request comments on whether a 
transition rule should be provided that would allow a corrective 
adjustment in the first taxable year ending after the date of 
publication in the Federal Register of the Treasury Decision adopting 
proposed Sec.  1.250(b)-2(e)(2) and proposed Sec.  1.951A-3(e)(2) as 
final regulations for taxpayers that took a position that is 
inconsistent with proposed Sec.  1.250(b)-2(e)(2) and proposed Sec.  
1.951A-3(e)(2) on a return filed before September 1, 2020 and that do 
not file an amended return with respect to such year.\10\
---------------------------------------------------------------------------

    \10\ The Treasury Department and the IRS requested comments on 
the need for a transition rule in Notice 2020-69. The Treasury 
Department and the IRS will consider comments that are timely 
submitted in response to the request for comments in Notice 2020-69, 
along with any comments received in response to this notice of 
proposed rulemaking, when finalizing proposed Sec.  1.250(b)-2(e)(2) 
and proposed Sec.  1.951A-3(e)(2).
---------------------------------------------------------------------------

Applicability Dates

I. Applicability Dates Relating to the General PFIC Rules

    These regulations are proposed to apply to taxable years of United 
States persons that are shareholders in certain foreign corporations 
beginning on or after the date of filing of the Treasury Decision 
adopting these rules as final regulations in the Federal Register. 
However, until these regulations are finalized, taxpayers may rely on 
one or more of the following proposed rules with respect to a tested 
foreign corporation for any open taxable year beginning before the date 
of publication of the Treasury decision adopting these rules as final 
regulations in the Federal Register, provided they consistently follow 
each such rule for each subsequent taxable year beginning before the 
date of filing of the Treasury decision adopting these rules as final 
regulations in the Federal Register: Proposed Sec.  1.1297-
1(c)(1)(i)(B) (exceptions to section 954 not taken into account); 
proposed Sec.  1.1297-1(c)(2) (exception for active banking income of 
certain foreign banks); proposed Sec.  1.1297-1(d)(1)(v)(D) (valuation 
of assets); proposed Sec.  1.1297-1(d)(2) (regarding working capital); 
proposed Sec.  1.1297-2(b)(2)(ii)(A), (b)(3)(ii)(A), and (e)(4) 
(regarding application of exception for active banking income of 
certain foreign banks); proposed Sec.  1.1297-2(c)(2)(i) and (4)(ii)(A) 
(regarding not taking into account certain dividends); proposed Sec.  
1.1297-2(f)(1) and (2) (regarding gain on disposition of stock in a 
look-through subsidiary), and proposed Sec.  1.1298-4(e) (regarding 
safe harbors to the domestic subsidiary anti-abuse rule). For a taxable 
year ending on or before December 31, 2020, a taxpayer may rely on 
proposed Sec.  1.1297-1(c)(1)(A) of the 2019 proposed regulations 
concerning the application of section 954(h) rather than proposed Sec.  
1.1297-1(c)(2) with respect to a tested foreign corporation, without 
regard to whether the taxpayer consistently applies all of the 
provisions of these proposed regulations or the 2019 proposed 
regulations with respect to the tested foreign corporation. As 
discussed in greater detail in the preamble to the final regulations 
published in the Rules and Regulations section of this edition of the 
Federal Register (RIN 1545-BO59), when a tested foreign corporation no 
longer qualifies as a PFIC (due to a change in facts or law), the 
foreign corporation nonetheless retains its PFIC status with respect to 
a shareholder unless and until the shareholder makes an election under 
section 1298(b)(1) and Sec.  1.1298-3 (``purging election'') on Form 
8621 attached to the shareholder's tax return (including an amended 
return), or requests the consent of the Commissioner to make a late 
election under section 1298(b)(1) and Sec.  1.1298-3(e) (``late purging 
election'') on Form 8621-A.

II. Applicability Dates Relating to the Insurance Exception

    For a taxable year beginning after December 31, 2017 and before the 
date of filing of the Treasury Decision adopting these rules as final 
regulations in the Federal Register, taxpayers may rely on Sec. Sec.  
1.1297-4, 1.1297-5, and 1.1297-6 of the proposed regulations with 
respect to a tested foreign corporation, provided they consistently 
follow the rules of Sec. Sec.  1.1297-4, 1.1297-5, and 1.1297-6 of the 
proposed regulations with respect to such tested foreign corporation 
for such taxable year and for each subsequent taxable year beginning 
before the date of filing of the Treasury decision adopting these rules 
as final regulations in the Federal Register. In addition, taxpayers 
may rely on proposed Sec.  1.1297-4(e)(4), provided they consistently 
apply Sec.  1.1297-4 of the final regulations for the same taxable 
year.
    Alternatively, for a taxable year beginning after December 31, 2017 
and before January 14, 2021, taxpayers may rely on proposed Sec. Sec.  
1.1297-4 and 1.1297-5 of the 2019 proposed regulations with respect to 
a tested foreign corporation, provided they consistently apply the 
rules of proposed Sec. Sec.  1.1297-4 and 1.1297-5 of the 2019 proposed 
regulations with respect to such tested foreign corporation for such 
taxable year.

III. Applicability Dates Relating to Regulations Under Sections 250 and 
951A

    Consistent with section 2307(b) of the CARES Act, the proposed 
regulations addressing QIP are proposed to apply retroactively. The 
modification to proposed Sec.  1.951A-3(e)(2) is proposed to apply to 
taxable years of foreign corporations beginning after December 31, 
2017, and to taxable years of U.S. shareholders in which or with which 
such taxable years of foreign corporations end. The modification to 
proposed Sec.  1.250(b)-2(e)(2) is proposed to apply to taxable years 
beginning after December 31, 2017.\11\ See section 7805(b)(2). U.S. 
shareholders and domestic corporations (including any individuals that 
elect to apply section 962) may, before the date of publication of the 
Treasury Decision adopting these rules as final regulations in the 
Federal Register, rely on proposed Sec. Sec.  1.951A-3(e)(2) and 
1.250(b)-2(e)(2) for any taxable year beginning after December 31, 
2017, provided they consistently apply those rules for purposes of FDII 
and GILTI under sections 250 and 951A to such taxable year and all 
subsequent taxable years.
---------------------------------------------------------------------------

    \11\ The rule in proposed Sec.  1.250(b)-2(e)(2) in this notice 
of proposed rulemaking applies to taxable years beginning after 
December 31, 2017 and before January 1, 2021 regardless of whether 
the taxpayer has relied on proposed Sec. Sec.  1.250(a)-1 through 
1.250(b)-6 (as proposed in REG-104464-18, 84 FR 8188), the final 
regulations under Sec. Sec.  1.250(a)-1 through 1.250(b)-6 under 
Sec.  1.250-1(b) (T.D. 9901, 85 FR 43042), or neither.
---------------------------------------------------------------------------

Special Analyses

I. Regulatory Planning and Review--Economic Analysis

    Executive Orders 13771, 13563, and 12866 direct agencies to assess 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits, including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity. Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Executive Order 13771 designation for any final rule resulting from 
the final regulations will be informed by comments received.

[[Page 4595]]

    This proposed regulation has been designated by the Office of 
Information and Regulatory Affairs (OIRA) as subject to review under 
Executive Order 12866 pursuant to the Memorandum of Agreement (MOA, 
April 11, 2018) between the Treasury Department and the Office of 
Management and Budget regarding review of tax regulations. OIRA has 
determined that the final rulemaking is significant and subject to 
review under Executive Order 12866 and section 1(b) of the Memorandum 
of Agreement. Accordingly, the final regulations have been reviewed by 
OMB.

A. Background

    The passive foreign investment company (PFIC) rules of the Internal 
Revenue Code address situations in which taxable U.S. persons 
indirectly hold assets that earn ``passive income'' (generally, 
interest, dividends, capital gains, and similar types of income) 
through a foreign corporation. If not subject to the PFIC rules, the 
income earned on these assets would be subject to U.S. tax only when 
that income is distributed as dividends by the foreign corporation or 
when shares of the foreign corporate stock are sold for a gain by the 
U.S. shareholder. If the income were subject to a low or zero rate of 
foreign tax, the U.S. investor would have a tax incentive to hold 
passive assets in this manner rather than hold the securities directly. 
By creating tax-deferral opportunities, these types of investment 
arrangements could significantly lower the effective tax rate on 
passive income ultimately received by participating U.S. investors. 
This potential result would decrease U.S. tax revenues and possibly 
lower the cost of capital faced by foreign and domestic corporations 
whose securities were held in this manner.
    A foreign corporation is considered a PFIC if at least 75 percent 
of the corporation's gross income for a given taxable year is passive 
income or if assets that produce passive income, or that are held for 
the production of passive income, comprise at least 50 percent of the 
corporation's total assets. A PFIC is not subject to U.S. tax under the 
PFIC regime; rather, U.S. shareholders of a PFIC are subject to tax on 
a current, or current-equivalent, basis in proportion to their 
ownership share in the PFIC's income.
    Passive income generally consists of dividends, interest, rents, 
royalties, annuities, gains on the sale of property that is not 
inventory or property used in an active business, and similar forms of 
income. Passive income is distinguished generally from non-passive 
income in that it is not earned in the active conduct of a trade or 
business by the foreign corporation, by a party closely affiliated with 
the foreign corporation, or by other corporations or partnerships that 
can be assumed to be controlled by the foreign corporation.
    The ``subpart F'' rules in the Code also address the taxation of 
passive income earned by foreign corporations but only in the context 
of U.S. controlled foreign corporations (CFCs), defined as being more 
than 50 percent owned by U.S. shareholders (where a U.S. shareholder of 
a CFC is a U.S. person owning at least ten percent of the vote or value 
of the foreign corporation's shares). There is no such minimum 
ownership requirement for a U.S. shareholder of a PFIC. A PFIC that is 
also a CFC during a portion of a U.S. PFIC shareholder's holding period 
is not treated as a PFIC with respect to a U.S. shareholder of a CFC 
during that portion of the holding period.
    A U.S. shareholder of a PFIC is responsible for determining its 
proportionate share of ownership in the PFIC and the appropriate amount 
of PFIC income to include on the shareholder's tax return. The Code and 
regulations provide ownership attribution rules for determining 
indirect ownership of PFICs by U.S. persons and rules for determining 
amounts of a corporation's annual total and passive income and the 
amounts of total and passive assets on each of several measuring 
periods (generally quarterly) throughout the year. Compliance with the 
PFIC regime requires an ability to negotiate its often-complicated 
rules and generally means that those willing to invest in potential 
PFICs are relatively sophisticated taxpayers that have access to 
professional tax advice in order to navigate the tax complexities 
presented by the PFIC regime. It is also possible that a less 
sophisticated taxpayer could invest in a PFIC without a full 
understanding of the tax treatment of that investment.
    The PFIC definition of passive income refers to the passive income 
definition of ``foreign personal holding company income'' (FPHCI) used 
for purposes of the CFC rules. That definition contains exceptions from 
passive income that involve certain income derived by a CFC in the 
active conduct of a banking or financing business and certain income 
derived by a CFC in the active conduct of an insurance business. 
However, the PFIC statutory rules have separate exceptions from the 
definition of passive income that include any income ``derived in the 
active conduct of a banking business by an institution licensed to do 
business as a bank in the United States (or, to the extent provided in 
regulations, by any other corporation)'' and any income ``derived in 
the active conduct of an insurance business by a qualifying insurance 
corporation.'' Regulations under the PFIC banking exception were 
proposed in 1995 (the ``1995 proposed regulations'') to provide greater 
clarity and additional specification of this exception to passive 
income. These 1995 proposed regulations have not been finalized. 
Regulations under the PFIC insurance exception were proposed in 2015 to 
clarify further the meaning of ``active conduct'' in this context, but 
these regulations have not been finalized. More recently, the Tax Cuts 
and Jobs Act (TCJA) of 2017 amended the statutory provision by 
requiring that the PFIC insurance exception applies only to an 
insurance business conducted by a qualifying insurance corporation 
(QIC) and provided a statutory definition of a QIC.
    The Treasury Department and the IRS previously published proposed 
regulations pertaining to sections 1291, 1297, and 1298 of the Code 
(the ``2019 proposed regulations''). See 84 FR 33120. These regulations 
dealt with several general PFIC implementation issues and with the new 
requirement (beginning in 2018) that a foreign corporation must be a 
QIC for its insurance-related income to qualify as non-passive under 
the insurance business exception. Regulations to finalize these 
proposed regulations (the ``2020 final regulations'') are being 
published contemporaneously with these newly proposed regulations 
(``these regulations'' or the ``2020 proposed regulations''). See TD 
9936. Upon further reflection on certain issues, and in response to 
public comments received with respect to the 2019 proposed regulations, 
certain revised rules and additional specifications are being re-
proposed.

B. Need for the Proposed Regulations

    These regulations are needed because a number of the details behind 
the relevant terms and necessary calculations required for the 
determination of PFIC status would benefit from greater specificity 
beyond that provided by the 2020 final regulations. In particular, 
these 2020 proposed regulations further clarify the determination of 
the banking and insurance ``active conduct'' statutory exceptions to 
the definition of passive income.

[[Page 4596]]

C. Economic Analysis

    This economic analysis provides a summary of the economic effects 
of the regulations relative to the no-action baseline. It further 
analyzes, first, proposed regulations under the general rules that 
implement the exception from passive income for income derived in the 
active conduct of a banking business and, second, proposed regulations 
under the passive income exception for income earned in the active 
conduct of an insurance business by a qualifying insurance corporation 
(QIC). This latter analysis covers, in particular, elements of these 
proposed regulations as they relate to the primary test ratio that must 
be satisfied by a QIC. This test requires measurement of certain 
applicable insurance liabilities (AIL) and total assets of a tested 
corporation.
1. Baseline
    In this analysis, the Treasury Department and the IRS assess the 
benefits and costs of these regulations relative to a no-action 
baseline reflecting anticipated Federal income tax-related behavior in 
the absence of these proposed regulations.
2. Summary of Economic Effects
    These 2020 proposed regulations will provide improved certainty and 
consistency in the application of sections 1297 and 1298 of the 
Internal Revenue Code with respect to passive foreign investment 
companies (PFICs) and qualified insurance corporations (QICs) by 
providing definitions and clarifications regarding application of the 
statute's terms and rules. Efficient investment requires planning, and 
good planning requires knowledge of the proper and consistent 
application of tax rules. Furthermore, uncertainty regarding the 
applicability of tax rules invites aggressive taxpayer interpretations 
and increased enforcement costs, including increased litigation.
    Divergence in taxpayers' interpretations of the statute can cause 
similarly situated U.S. persons to allocate investment funds 
differently. If economic investment is not guided by uniform tax 
incentives, the resulting pattern of investment may be inefficient, 
leading to relatively lower incomes. By providing clarity to the law 
and greater uniformity in its application, the 2020 proposed 
regulations, when finalized, will help to ensure that similar economic 
activities are taxed similarly. Thus, the Treasury Department and the 
IRS expect that the definitions and guidance provided in the proposed 
regulations will lead to an improved allocation of investment among 
U.S. taxpayers as well as more equitable treatment of those taxpayers.
    To the extent that certain regulatory provisions provide greater 
opportunities for foreign corporations to avoid PFIC status relative to 
the no-action baseline, they provide U.S. investors with additional tax 
deferral opportunities relative to a no-action baseline. An increased 
use of these tax deferral opportunities would decrease effective 
shareholder taxes and generally lower the cost of real investment by 
both domestic businesses and foreign corporations for which U.S. 
investors are investment funding sources. This would likely increase 
such investment and thereby increase U.S. GNP relative to the no-action 
baseline. However, such actions would reduce U.S. tax revenues, 
although this effect could be offset to a degree by increased taxable 
capital gains due to a resultant increase in the valuation of corporate 
equities.
    To the extent that other provisions of the regulations reduce the 
opportunities for foreign corporations to avoid PFIC status, they would 
eliminate deferral by U.S. persons and thereby increase U.S. 
shareholder tax burdens. This may dissuade U.S. persons from pursuing 
profitable investment opportunities in active foreign corporations that 
would be sought under a no-action baseline. Such provisions also could 
cause some active foreign corporations to incur additional economic 
costs in order to avoid designations as PFICs, resulting in lower 
investment returns and less investment in such corporations. The 
avoidance of otherwise profitable foreign investment opportunities by 
U.S. persons can result in a loss of U.S. GNP.
    It is unclear whether these proposed regulations have a net effect 
of increasing or decreasing the ability of foreign corporations to 
avoid PFIC status relative to the no-action baseline.
    The Treasury Department and the IRS have not estimated the 
differences in economic activity that might result from implementation 
of these proposed regulations relative to alternative regulatory 
approaches, including the no-action baseline. They do not have readily 
available data or models that capture in sufficient detail the economic 
activities that taxpayers might undertake under each of these 
regulatory approaches. The Treasury Department and the IRS have 
similarly not estimated the differences in compliance costs of U.S. 
persons or IRS administrative burden that would arise under each of the 
alternative regulatory approaches because they do not have readily 
available data or models that capture these aspects in sufficient 
detail.
    The Treasury Department and the IRS solicit comments on this 
economic analysis and particularly solicit data, models, or other 
evidence that could be used to enhance the rigor with which the final 
regulations are developed.
3. Economic Analysis of Specific Provisions
a. Income Derived in the Active Conduct of a Banking Business
    The PFIC provisions define passive income as income which is of a 
kind that would be foreign personal holding company income (FPHCI) as 
defined in section 954(c), which is part of the subpart F rules of the 
Internal Revenue Code. A related provision, section 954(h), excludes 
from FPHCI for subpart F purposes the ``qualified banking or financing 
income'' of an ``eligible controlled foreign corporation,'' that is, a 
CFC that is predominantly engaged in the active conduct of a banking, 
financing, or similar business and that conducts substantial activity 
with respect to such business. A banking, financing or similar business 
includes (i) a lending or finance business, (ii) a banking business 
conducted by an institution that is licensed to do business as a bank 
in the United States or is a corporation specified in regulations, and 
(iii) a securities business conducted by a corporation that is either 
registered with the SEC as a securities broker or dealer or is 
otherwise specified in regulations.
    The 2019 PFIC proposed regulations would have incorporated this 
section 954(h) exception to FPHCI into the definition of passive income 
for the purpose of the PFIC rules. However, the Treasury Department and 
the IRS subsequently determined that this exception does not apply for 
purposes of the PFIC definition of passive income absent regulations 
and that any such regulations should be issued under the separate PFIC 
statutory rule described in the next paragraph. Accordingly, these 2020 
proposed regulations specify that the FPHCI exception for active 
banking income of CFCs is not to be taken into account in the general 
definition of passive income for the purpose of the PFIC regime.
    The Treasury Department and the IRS considered two options for the 
implementation of an active banking exception under the PFIC tax 
regime. The first alternative would re-propose the 1995 proposed 
regulations. The second alternative would adopt the statutory rules of 
the FPHCI exception for CFCs, with modifications (such as

[[Page 4597]]

not limiting the rule to CFCs). Each alternative is discussed in turn.
i. 1995 Proposed Regulations
    The 1995 proposed regulations treat ``banking income'' of ``active 
banks'' and ``qualified bank affiliates'' as non-passive. An active 
bank is either a domestic or foreign corporation that is licensed by 
federal or state regulators to do business as a bank in the United 
States or a foreign corporation that satisfies the following 
requirements:
    1. It must be licensed or authorized to accept deposits from its 
home country residents and must actively conduct a banking business;
    2. It must regularly accept such deposits in the ordinary course of 
business; in addition, the amount of deposits shown on the 
corporation's balance sheet must be substantial; and
    3. It must regularly make loans to customers in the ordinary course 
of business.
    Banking income is defined as gross income that is derived from the 
active conduct of a specified banking activity. The regulations list 14 
banking activities (plus a provision that allows the IRS Commissioner 
to specify additional banking activities). The major activities listed 
include lending activities, the purchasing or selling of notes or other 
debt instruments for customers, issuing of letters of credit, 
performing trust services, arranging foreign exchange transactions, 
interest rate or currency futures, etc., underwriting issues of 
securities for customers, engaging in finance leases, and providing 
credit card services.
    The 1995 proposed regulations also extend the banking income 
definition to certain affiliates of active banks that are not 
themselves active banks. To be a qualified bank affiliate, at least 60 
percent of a foreign corporation's gross income must be income that 
qualifies as non-passive income under the PFIC active conduct 
exceptions. In addition, a qualified bank affiliate must be a member of 
an affiliated group (based on an affiliation ownership standard of more 
than 50 percent voting power), and at least 30 percent of the group's 
``aggregate gross financial services income'' (defined in foreign tax 
credit regulations) must be banking income earned by active banks that 
are group affiliates. Also, at least 70 percent of such group income 
must be income excepted under the PFIC active conduct rules.
ii. FPHCI Exception for Banking, Finance, or Similar Income of CFCs
    The FPHCI exception, while limited to eligible CFCs, applies to a 
broader group of eligible corporations and qualified financial 
activities than the 1995 proposed regulations for banking income. The 
FPHCI rules for CFCs define an eligible business as including a banking 
business, a securities business, and a ``lending or finance'' business. 
While the FPHCI statutory rules include identical language regarding 
banks as does the PFIC statutory exception; neither set of statutory 
rules specifically define eligible banks, leaving the definition to 
regulations.
    The FPHCI exception for CFCs applies to qualified banking or 
financing income. A CFC that is not engaged in a banking or securities 
business must derive more than 70 percent of its gross income from a 
lending or finance business with unrelated customers. A ``lending or 
finance'' business includes a business that is making loans, purchasing 
or discounting accounts receivable or certain other assets, engaging in 
leasing, issuing letters of credit or providing guarantees, providing 
credit card services, and rendering services related to the other 
listed activities. This list is similar to, but not the same as, the 
list of banking activities provided in the 1995 proposed regulations.
    Qualified banking or other financing income can be derived in the 
active conduct of a branch or other ``qualified business unit'' (QBU) 
of an eligible CFC. A QBU is a separate and clearly identified unit 
that maintains its own separate books and records. Qualified banking or 
financing income must be derived from transactions with customers 
located in a country other than the United States. Substantially all of 
the activities of the business must be conducted directly by the 
corporation in its home country, or by its QBU in the home country of 
the QBU. There are no similar requirements in the 1995 proposed 
regulations. Under the FPHCI exception for CFCs, business activity may 
include the activity of the employees of a related CFC located in the 
same home country as that of the corporation or QBU, provided the 
activity is conducted in the home country of the related person. Unlike 
the 1995 proposed regulations, the FPHCI exception for CFCs does not 
treat income of affiliates of an eligible CFC that are not themselves 
eligible CFCs as non-passive income.
iii. 2020 Proposed Regulations--Definition of a Foreign Bank
    The 2020 proposed regulations generally adopt the approach taken 
under the FPHCI statutory language but substitute a tested foreign 
corporation (TFC) (or a related person of the TFC) for a CFC. As in the 
case of the PFIC banking exception adopted in the 1995 proposed 
regulations, the 2020 proposed regulations apply only to foreign banks.
    Similar to the ``active bank'' definition of the 1995 regulations, 
the 2020 proposed regulations require a ``foreign bank'' to be either 
licensed as a bank in the United States or as a bank in the country in 
which it is chartered or incorporated (its ``home country''). The 2020 
proposed regulations also require that a foreign bank accept bank 
deposits from home country residents, and indirectly incorporate the 
``substantial deposits'' requirement of the 1995 proposed regulations. 
Unlike the 1995 proposed regulations, the 2020 proposed regulations do 
not require a foreign bank to regularly make loans to customers in the 
ordinary course of its business. Instead, the bank must carry out with 
unrelated customers one or more of the activities listed in the FPHCI 
statute that constitute a lending or finance business. One of those 
activities is the making of loans, but a foreign bank can have as its 
business activity any of the other listed finance business activities 
in order to qualify for the PFIC banking exception. This change in the 
definition of a qualifying foreign bank may be a significant difference 
from the 1995 proposed regulations, depending on what activities are 
required of and permitted to be carried out by a bank under bank 
regulatory rules. If bank regulatory rules do not require a bank to 
make loans to customers as part of a banking business, the definition 
of foreign bank may represent a broadening of the type of institutions 
that may qualify for an exception under the PFIC active conduct 
exception for banking compared to the 1995 proposed regulations.
    In contrast to the 1995 proposed regulations, the 2020 proposed 
regulations provide that the banking exception applies separately to 
the income and activities of a qualified branch (i.e., a QBU) of a 
foreign bank. Depending on the activities of a branch, this may either 
increase or decrease the likelihood that income of a foreign bank is 
treated as non-passive.
iv. 2020 Proposed Regulations--Banking Income
    While it may be easier to qualify as a foreign bank under the 2020 
proposed regulations than as an active bank under the 1995 proposed 
regulations, the conditions that must be satisfied in order to treat 
income as qualified banking or financing income eligible for

[[Page 4598]]

the FPHCI exception are more stringent than the requirements for 
treating income as banking income under the 1995 proposed regulations. 
The 2020 proposed regulations require that substantially all activities 
that produce active banking income must be performed by the TFC or its 
QBU in the home country of the bank or that of the QBU, respectively. 
However, an affiliated entity can provide employees to perform the 
requisite activity, but only if the affiliate is created or organized 
in the relevant home country and the activity is performed in the home 
country of the related person. No such requirement exists under the 
1995 proposed regulations. This home country activity requirement 
limits the variety of organizational structures that foreign banks may 
use in order to qualify for the new PFIC banking exception. If a bank 
must restructure its operations in order to satisfy the home-country 
requirement, this might be considered a significant PFIC compliance 
cost by foreign banks and therefore it may impact the investment 
choices of U.S. persons.
    In addition, under the FPHCI exception, eligible income must be 
derived in transactions with customers located in a country other than 
the United States. Relative to the 1995 regulations, this rule imposes 
an additional compliance burden on foreign corporations that desire to 
access the U.S. investment community. It requires them to distinguish 
income derived from U.S.-based customers from income derived from other 
customers.
v. 2020 Proposed Regulations--Affiliates
    Under the 2020 final regulations, a tested foreign corporation 
(TFC) that owns at least 25 percent (by value) of a corporation or 
partnership may be treated as if it held its proportionate share of the 
assets of the look-through subsidiary (LTS) or look-through partnership 
(LTP) and received its proportionate share of the income of the LTS or 
LTP. The income and assets of the subsidiary entity are treated as 
passive or non-passive in the hands of the TFC in the same manner as 
such items are treated in the hands of the LTS or LTP. In general, an 
exception to the passive income rules applies to income of an LTS or 
LTP only if the exception would have applied to exclude the income from 
passive income in the hands of the LTS or LTP. For this purpose, the 
activities of a specified affiliated group of entities that includes 
the TFC may be taken into account to judge the active conduct nature of 
the LTS's or LTP's income.
    Under certain conditions, the 1995 proposed regulations permit the 
banking income of a qualified bank affiliate to be treated as non-
passive income for the purpose of determining the PFIC status of its 
affiliated companies. No similar rule applies under the 2020 proposed 
regulations for bank affiliates. Thus, for banking income of an LTS to 
be treated as excepted income, the LTS must itself be an eligible 
foreign bank.
    The income of an LTS that is a U.S. bank conducting business with 
U.S. residents does not qualify as having excepted income under the 
2020 proposed regulations. Such a bank would likely qualify as an 
active bank under the 1995 proposed regulations and, under the look-
through rules, that income would be considered non-passive in the hands 
of the TFC. In this respect the 2020 proposed regulations make it more 
difficult for certain foreign corporations to avoid PFIC status 
relative to the 1995 proposed regulations.
vi. Summary of Economic Effects
    The Treasury Department and the IRS expect that the 2020 proposed 
regulations may produce different outcomes relative to the no-action 
baseline. However, whether ``on net'' these different outcomes make it 
more difficult for income of certain foreign corporations to qualify as 
non-passive under the banking active conduct exception or make it more 
likely that income of foreign banking institutions will be treated as 
non-passive depends heavily on the individual facts and circumstances 
of the TFC and its affiliates, so that no general conclusion can be 
drawn in that regard.
b. Applicable Financial Statement and Applicable Insurance Liabilities
    For PFIC purposes, passive income does not include income derived 
in the active conduct of an insurance business by a qualifying 
insurance corporation (QIC). Under the statute, a QIC must have 
``applicable insurance liabilities'' (AIL) that constitute more than 25 
percent of its total assets (the ``QIC test''). AIL generally include 
amounts shown on a financial statement for unpaid loss reserves 
(including unpaid loss adjustment expenses) of insurance and 
reinsurance contracts and certain life and health insurance reserves 
and unpaid claims with respect to contracts providing coverage for 
mortality or morbidity risks.
i. Definition of an AFS
    For the purpose of the QIC test, AIL are based on insurance 
liabilities as they are accounted for on the taxpayer's applicable 
financial statement (AFS). Under the statute and the 2020 final 
regulations, an AFS is a financial statement prepared for financial 
reporting purposes that is based on U.S. generally accepted accounting 
principles (GAAP), or international financial reporting standards 
(IFRS) if there is no statement based on GAAP. If neither of these 
statements exist, then an AFS can be an annual statement that is 
required to be filed with an applicable insurance regulatory body. Such 
a statement would be one that is prepared on the basis of a local 
regulatory accounting standard. Thus, the statute has a preference for 
financial statements prepared on the basis of GAAP or IFRS, which are 
rigorous and widely-respected accounting standards, but will permit a 
foreign corporation to have an AFS that is prepared on the basis of a 
local regulatory accounting standard if the foreign corporation does 
not do financial reporting based on GAAP or IFRS.
    This definition of an AFS does not necessarily produce a single 
financial statement that can be deemed ``the'' AFS of a foreign 
insurance company. GAAP and IFRS statements may be prepared for several 
financial reporting purposes, and there may be differences in the value 
of assets or in the presentation of results, depending on the purpose 
and jurisdiction for which it is prepared. This may be particularly 
true in the case of a financial statement filed with local regulatory 
bodies. For example, a company that operates branches in more than one 
jurisdiction may be filing multiple regulatory financial statements, 
each based on a separate local accounting standard. This variability 
may be tempered, however, if the local regulatory authorities require 
their regulatory statements to be filed on a GAAP or IFRS basis.
    The Treasury Department and the IRS determined that it was 
appropriate to modify the definition of AFS in order to impose greater 
structure on the identification of the AFS used for purposes of the QIC 
test. These 2020 proposed regulations refine the definition of a 
financial statement to ensure that an AFS includes a complete balance 
sheet, statement of income, a statement of cash flows and related 
exhibits, schedules, forms, and footnotes that are normal components of 
such a filing. A complete financial statement is more likely to present 
an accurate picture of a company's financial position. These 2020 
proposed regulations also require that an AFS be an audited financial 
statement. While an audit requirement may impose additional accounting 
costs on the

[[Page 4599]]

foreign corporation (and, therefore, on its shareholders), a financial 
statement reviewed by independent auditors insures adherence to the 
relevant accounting standard. The Treasury Department and the IRS have 
determined that local jurisdictions generally will require audited 
financial statements to be filed with insurance regulatory bodies, so 
that this requirement should not impose a significant additional 
compliance burden on foreign corporations.
    The 2020 proposed regulations impose a new set of sub-priorities on 
financial statements prepared under GAAP and a similar set of sub-
priorities on statements prepared under IFRS. These sub-priorities have 
been used in other regulatory contexts. They are based on the purpose 
for which a financial statement is being released or filed. In the 
opinion of the Treasury Department and the IRS, these different 
priorities represent the reliability of the statement. Thus, a GAAP 
statement filed by publicly regulated corporations with the Securities 
and Exchange Commission or with an equivalent foreign agency is deemed 
highly reliable and is preferred to a statement that is used, say, for 
credit purposes or for reporting in shareholder reports.
    The new rule narrows the potential number of financial statements 
that might be considered as AFSs relative to the no-action baseline and 
should thereby reduce compliance and tax administrative costs, while 
bringing taxpayer behavior closer in line with the intent and purpose 
of the statute.
    If an AFS is a consolidated financial statement in which the tested 
corporation is not the parent, such statement could include AIL and 
assets of the parent, as well as AIL and assets of other sibling 
corporations. Nevertheless, under the 2020 final regulations, the 
amount of AIL on an AFS that can be AIL for the purpose of the QIC test 
includes only the AIL of the corporation being tested. Consequently, 
the 2020 proposed regulations stipulate that a financial statement that 
includes parent and sibling assets and liabilities cannot be an AFS 
unless it is a financial statement filed with a local regulator and is 
the only such financial statement available, in which case the AIL as 
reported on the statement would have to be adjusted to remove the 
double counted parental and sibling AIL. This rule is expected to 
reduce the likelihood that the AIL shown on an AFS would have to be 
adjusted prior to the application of the QIC test and thereby reduce 
compliance costs relative to alternative regulatory approaches. The 
Treasury Department and the IRS have not estimated this reduction in 
compliance costs because they do not have data or models with this 
level of specificity.
    If more than one financial statement exists for an AFS subcategory 
and that subcategory is the highest priority subcategory of AFS for 
which an AFS is available, then the 2020 proposed regulations dictate 
that any financial statement prepared on a non-consolidated basis has 
priority over a statement prepared on a consolidated basis. In most 
cases, a non-consolidated AFS will be preferred by the tested 
corporation because assets of the tested corporation will generally 
include the corporation's net equity share of its subsidiaries and not 
the full value of its assets. A consolidated statement will include all 
assets and liabilities of lower-tiered subsidiaries (whether fully or 
partially owned) other than eliminated items that represent intra-
corporate transactions when viewed from a consolidated perspective. 
Nevertheless, AIL eligible to be taken into account for purposes of the 
QIC test includes only AIL of the tested corporation. Therefore, use of 
a consolidated AFS requires that any AIL of entities other than the 
tested corporation (such as subsidiaries) that are recorded on the 
consolidated statement must be eliminated for the purpose of the QIC 
test. Because this would bias downward the QIC test statistic (because 
the subsidiary assets supporting these eliminated AIL remain on the 
AFS), the 2020 proposed regulations allow a tested corporation to 
reduce its assets by the amount of AIL that are eliminated for this 
reason.
    Any AIL of the tested corporation that have been eliminated because 
of the preparation of a consolidated statement (for example, if the 
tested corporation had insured or reinsured a subsidiary) are not added 
back to the AIL reported on the AFS. The corresponding subsidiary 
assets have also been eliminated in the preparation of the consolidated 
AFS, so that the reverse process of that described in the previous 
paragraph is accomplished automatically.
ii. Limitations on Applicable Insurance Liabilities
    Pursuant to statutory mandate and explicitly granted regulatory 
authority, the 2020 final regulations specify that any amount of AIL 
used in the QIC test cannot exceed the smallest of following three 
amounts:
    (1) The amount of AIL of the tested corporation shown on any 
financial statement that is filed or required to be filed with the 
corporation's applicable insurance regulatory body;
    (2) The amount of AIL determined on an AFS that is prepared on the 
basis of GAAP or IFRS, whether or not such statement is filed by the 
tested corporation with its applicable insurance regulatory body;
    (3) The amount of AIL required by law or regulation to be held by 
the tested corporation (or a lesser amount, if the corporation is 
holding a lesser amount as a permitted practice of the applicable 
insurance regulatory body).
    These limitation amounts may induce local regulators to require the 
filing of financial statements based on GAAP or IFRS instead of filing 
statements based on a local regulatory accounting standard. Such 
actions would eliminate limitation amount 1) above, and assuming that 
limitation amount 3) does not apply, would leave the amount of AIL 
reported on a GAAP- or IFRS-prepared statement as the relevant AIL. 
This approach will improve the application of the QIC test, relative to 
the no-action baseline, by increasing the likelihood that AIL and total 
assets are both derived from consistent accounting principles by the 
tested corporations affected by the PFIC insurance rules.
    A tested corporation that has an AFS based on GAAP or IFRS may be 
required to file a financial statement with its home country regulator 
using local statutory accounting rules, where the AIL on the latter 
statement are less than those shown on the AFS. The difference in AIL 
could perhaps be due to the use of dissimilar accounting rules, the use 
of different discounting assumptions or other assumptions regarding the 
measurement of liabilities, or disparate methods of valuing assets. 
Under the 2020 proposed regulations, such accounting differences are 
not accounted for by prescribed asset adjustments or by other means.
    As a regulatory alternative, the Treasury Department and the IRS 
considered whether to require asset or liability adjustments based on 
certain identified differences between an AFS based on GAAP or IFRS and 
a financial statement based on local accounting standards, where the 
differences were due solely to different accounting standard 
requirements. For example, in preparing the 2020 final regulations, the 
Treasury Department and the IRS considered imposing the discounting 
rules specified by the Code for measuring property and casualty unpaid 
losses for domestic tax purposes on losses measured on a non-GAAP or 
non-IFRS basis. Such an option was rejected due partly to its 
anticipated heavy compliance costs (and thus the

[[Page 4600]]

possibility that the foreign corporation may not take the steps 
necessary to attract U.S. investors) without any accompanying, 
identifiable general economic benefit. The Treasury Department and the 
IRS determined that prescribing other requirements or adjustments could 
have similar compliance costs and that the impacts of such accounting 
discrepancies on the QIC test ratio are generally either unknown or 
without a consistent bias. In this regard, the Treasury Department and 
the IRS further determined that they did not have and could not 
practically obtain sufficient information regarding the differences 
among GAAP, IFRS, and the various local accounting standard 
requirements that might apply to tested corporations in different 
foreign jurisdictions to formulate additional appropriate rules.
iii. Reinsurance Recoverable
    In the context of reinsurance, however, the differences in the 
measurement of AIL and assets under different accounting standards are 
in some cases due merely to a different presentation of the accounting 
results with respect to reinsurance, rather than more fundamental 
differences in measurement or accounting methods. Companies that have 
ceded business to another insurer under a contract of reinsurance will 
have amounts recoverable from those reinsurers that could represent a 
reimbursement of AIL. These amounts may be related to claims that have 
been paid or unpaid. Generally, if the insurer has paid a claim, the 
reinsurance recoverable is shown as a receivable (that is, an asset) on 
its balance sheet. However, the treatment of amounts recoverable with 
respect to unpaid losses and unpaid loss adjustment expenses can differ 
amongst different accounting standards. For example, under current 
GAAP, reinsurance recoverable with respect to unpaid claims is reported 
as an asset. The same is true under IFRS 17 (an insurance accounting 
standard that will be effective generally beginning in 2023), where a 
single reinsurance asset may be reported with respect to both paid and 
unpaid claims. The situation is different under U.S. statutory 
accounting rules as specified by the National Association of Insurance 
Commissioners and implemented by the various states. Under U.S. 
statutory accounting, reinsurance recoverable for unpaid losses and 
loss adjustment expenses is treated as an offset to the unpaid loss 
reserves and would thus reduce AIL. It is likely that some non-U.S. 
local statutory accounting standards similarly reduce unpaid loss 
reserves (and thus AIL) by amounts recoverable through reinsurance.
    Measuring AIL on a ``gross'' basis, as under GAAP and IFRS 17, 
necessarily increases the QIC test ratio relative to a ``net'' AIL 
measure. However, if the local accounting standard governing the 
financial statement filed with an applicable regulatory body requires a 
``net'' measure of AIL, then the AIL of the GAAP- or IFRS-based AFS 
will generally be limited for the purpose of the QIC test.
    Reporting AIL on a ``gross'' basis could enable a foreign insurer 
to raise its QIC test ratio to almost any desired level simply by being 
a reinsurance conduit (that is by reinsuring business and then 
retroceding all, or virtually all, of that business to other 
reinsurers). Such a possibility could allow corporations that might 
otherwise be designated as PFICs instead to qualify as QICs and thereby 
avoid PFIC status.
    For these reasons the 2020 proposed regulations specify that 
amounts recoverable from reinsurance and related to AIL, if reported as 
assets on a financial statement of the tested corporation, must be 
subtracted from the reported AIL. That is, all AIL are to be determined 
on a ``net'' basis with respect to reinsurance recoverable. 
Furthermore, if such reinsurance amounts are recoverable from an 
insurance subsidiary of the tested corporation, and such amounts of 
reinsurance recoverable are eliminated in the preparation of a 
consolidated financial statement, the AIL of the tested corporation 
nevertheless must be reduced by the recoverable amount. Under the 2020 
proposed regulations, total assets reported on the AFS of the tested 
corporation may be reduced by amounts equal to the reductions in AIL 
for the purpose of the QIC test.
4. Number of Potentially Affected Taxpayers
    An entity must file a separate Form 8621 for each PFIC for which it 
has an ownership interest. The accompanying table indicates how many 
entities have filed at least one form 8621 between 2016 and 2018. These 
data are based on IRS master files of tax return filings and do not 
encompass late filings that have not yet been received. For 2018, 
nearly 62,000 Forms 8621 were filed. Over 70 percent of the entities 
filing a Form 8621 are individuals, although certain individuals are 
exempt from filing a Form 8621 if their aggregate holdings are less 
than $25,000 ($50,000 if filing a joint return) and they do not have 
PFIC income to report. Another 27 percent are pass-through entities, 
the overwhelming number of which are partnerships, but which also 
include S corporations, estates, and non-grantor trusts. These pass-
through entities primarily have individuals as partners, shareholders, 
or beneficiaries. It is possible there is some double counting whereby 
both partnerships and partners are filing a Form 8621 for the same 
PFIC. C corporations comprise just over one percent of total entities, 
while another nearly two percent of Forms 8621 do not identify on the 
form the filing status of the filer.
    In general, only the taxpayer that is the lowest tier U.S. entity 
owning a PFIC needs to file a Form 8621. Thus, an individual that is a 
PFIC shareholder because he or she owns an interest in a U.S. 
partnership that holds shares of a PFIC does not need to file a Form 
8621 if the individual is not required to report PFIC-related income on 
the Form 8621. This may happen if, for example, the individual and the 
partnership have made a Qualifying Electing Fund (QEF) election with 
respect to the PFIC. In that case, only the partnership files the Form 
8621. The partnership records the QEF income for the year, and that 
taxable income is reported to the taxpayer as part of his or her 
distributive share of partnership income.

                                                      Table
----------------------------------------------------------------------------------------------------------------
                                                                        Number of entities filing Form 8621
                                                                 -----------------------------------------------
                                                                       2016            2017            2018
----------------------------------------------------------------------------------------------------------------
Individuals.....................................................          36,978          40,891          43,406
Passthrough Entities............................................          15,326          16,133          16,607
C Corporations..................................................             713             733             739
Unreported Filer Type...........................................           1,114           1,053           1,084
                                                                 -----------------------------------------------

[[Page 4601]]

 
    All Entities................................................          54,131          58,810          61,836
----------------------------------------------------------------------------------------------------------------

    In 2018, each reporting taxpaying entity filed an average of 12 
Forms 8621. This average was 11 forms per entity for individuals, 16 
forms per entity for partnerships and other pass-through entities, and 
28 forms per entity for C corporations.
    The Treasury Department and the IRS do not have information in 
current tax filings regarding how many shareholders own shares in 
qualifying insurance companies or qualifying banks.
5. Regulatory Flexibility Act
    It is hereby certified that these proposed regulations will not 
have a significant economic impact on a substantial number of small 
entities within the meaning of section 601(6) of the Regulatory 
Flexibility Act (5 U.S.C. chapter 6). The proposed regulations provide 
guidance with respect to the statutory provisions in sections 1291 
through 1298 (the ``PFIC regime''), which generally affect U.S. 
taxpayers that have ownership interests in foreign corporations that 
are not CFCs. The proposed regulations do not impose any new costs on 
taxpayers. Consequently, the Treasury Department and the IRS have 
determined that the proposed regulations will not have a significant 
economic impact on a substantial number of small entities. 
Notwithstanding this certification, the Treasury Department and the IRS 
invite comments on the impact of these rules on small entities.
    Pursuant to section 7805(f), this notice of proposed rulemaking has 
been submitted to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small business. The 
Treasury Department and the IRS request comments on the impact of these 
proposed regulations on small business entities.

II. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires that agencies assess anticipated costs and benefits and take 
certain other actions before issuing a final rule that includes any 
Federal mandate that may result in expenditures in any one year by a 
state, local, or tribal government, in the aggregate, or by the private 
sector, of $100 million in 1995 dollars, updated annually for 
inflation. This rule does not include any Federal mandate that may 
result in expenditures by state, local, or tribal governments, or by 
the private sector in excess of that threshold.

III. Executive Order 13132: Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial, direct compliance costs on state and local 
governments, and is not required by statute, or preempts state law, 
unless the agency meets the consultation and funding requirements of 
section 6 of the Executive Order. This proposed rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments or preempt state law 
within the meaning of the Executive Order.

Comments and Requests for a Public Hearing

    Before these proposed amendments to the regulations are adopted as 
final regulations, consideration will be given to comments that are 
submitted timely to the IRS as prescribed in the preamble under the 
ADDRESSES section. The Treasury Department and the IRS request comments 
on all aspects of the proposed regulations. See also the specific 
requests for comments in the following Parts of the Explanation of 
Provisions: I.A.1 (concerning rules for foreign banks and the ongoing 
application of Notice 89-81 and proposed Sec.  1.1296-4), I.A.2 
(regarding financial statement valuation), I.A.3 (on the treatment of 
working capital in applying the Asset Test), I.A.4 (concerning the 
elimination of intercompany dividends and the treatment of pre-
acquisition earnings and profits), I.A.5 (on the safe harbor for the 
anti-abuse rule for section 1298(b)(7)), I.B.1 (on the expanded 
definition of an AFS and the priority rules provided), I.B.2 
(concerning modco arrangements and other special circumstances in which 
modification of the definition of AIL is appropriate), I.B.3 (on 
situations that may warrant an adjustment to total assets), I.C.1 
(concerning the active conduct test), I.D.2 (on the QDIC Limitation 
Rule), I.E (concerning the application of statutory requirements 
relating to life insurance contracts and annuity contracts), and II 
(concerning a transition rule). Any electronic comments submitted, and 
to the extent practicable any paper comments submitted, will be made 
available at www.regulations.gov or upon request.
    A public hearing will be scheduled if requested in writing by any 
person who timely submits electronic or written comments. Requests for 
a public hearing are also encouraged to be made electronically by 
sending an email to <a href="/cdn-cgi/l/email-protection#8ffffaede3e6ece7eaeefde6e1e8fccfe6fdfca1e8e0f9"><span class="__cf_email__" data-cfemail="5f2f2a3d33363c373a3e2d3631382c1f362d2c71383029">[email protected]</span></a>. If a public hearing is 
scheduled, notice of the date and time for the public hearing will be 
published in the Federal Register. Announcement 2020-4, 2020-17 I.R.B. 
667 (April 20, 2020), provides that until further notice, public 
hearings conducted by the IRS will be held telephonically. Any 
telephonic hearing will be made accessible to people with disabilities.

Statement of Availability of IRS Documents

    IRS Revenue Procedures, Revenue Rulings, notices, and other 
guidance cited in this document are published in the Internal Revenue 
Bulletin (or Cumulative Bulletin) and are available from the 
Superintendent of Documents, U.S. Government Publishing Office, 
Washington, DC 20402, or by visiting the IRS website at www.irs.gov.

Drafting Information

    The principal drafters of these regulations are Christina G. 
Daniels, Josephine Firehock, Jorge M. Oben, and Larry R. Pounders of 
the Office of Associate Chief Counsel (International). Other personnel 
from the Treasury Department and the IRS also participated in the 
development of these regulations.

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:

[[Page 4602]]

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority:  26 U.S.C. 7805 * * *

0
Par. 2. In Sec.  1.250-1 amend paragraph (b) by revising the first 
sentence and adding a sentence at the end of the paragraph to read as 
follows:


Sec.  1.250-1  Introduction.

* * * * *
    (b) * * * Except as otherwise provided in this paragraph (b)(2), 
Sec. Sec.  1.250(a)-1 and 1.250(b)-1 through 1.250(b)-6 apply to 
taxable years beginning on or after January 1, 2021. * * * The last 
sentence in Sec.  1.250(b)-2(e)(2) applies to taxable years beginning 
after December 31, 2017.
* * * * *
0
Par. 3. Section 1.250(b)-2 is amended by adding a sentence at the end 
of paragraph (e)(2) to read as follows:


Sec.  1.250(b)-2  Qualified business asset investment (QBAI).

* * * * *
    (e) * * *
    (2) * * * For purposes of applying section 250(b)(2)(B) and this 
paragraph (e), the technical amendment to section 168(g) enacted in 
section 2307(a) of the Coronavirus Aid, Relief, and Economic Security 
Act, Public Law 116-136 (2020) is treated as enacted on December 22, 
2017.
0
Par. 4. Section 1.951A-3 is amended by adding a sentence at the end of 
paragraph (e)(2) to read as follows:


Sec.  1.951A-3  Qualified business asset investment.

* * * * *
    (e) * * *
    (2) * * * For purposes of applying section 951A(d)(3) and this 
paragraph (e), the technical amendment to section 168(g) enacted in 
section 2307(a) of the Coronavirus Aid, Relief, and Economic Security 
Act, Public Law 116-136 (2020) is treated as enacted on December 22, 
2017.
* * * * *
0
Par. 5. Section 1.1297-0 is amended by:
0
1. Revising the entries for Sec.  1.1297-2(f)(1) and (2).
0
2. Revising the entries for Sec.  1.1297-4(e)(4) and (5), (f)(1)(iv), 
(f)(6)(i), (ii), and (iii), and (g)(1) and (2).
0
3. Adding an entry for Sec.  1.1297-5.
0
4. Revising the entries for Sec.  1.1297-6(e)(2) and (3) and (f)(1) and 
(2).
    The revisions and additions read as follows:


Sec.  1.1297-0  Table of contents.

* * * * *
Sec.  1.1297-1 Definition of passive foreign investment company.

* * * * *
    (c) * * *
    (2) Exception for certain income derived in the active conduct 
of a banking businesses by a foreign bank.
    (i) In general.
    (ii) Foreign bank determination.
* * * * *
    (d) * * *
    (1) * * *
    (v) * * *
    (D) Valuation.
* * * * *
    (2) Working capital.
* * * * *
    (g) * * *
    (3) Paragraphs (c)(1)(i)(B), (c)(2), (d)(1)(v)(D), and (d)(2) of 
this section.

Sec.  1.1297-2 Special rules regarding look-through subsidiaries and 
look-through partnerships.

* * * * *
    (e) * * *
    (4) Active banking business.
    (f) * * *
    (1) Stock basis adjustment.
    (2) Amount of gain taken into account.
* * * * *
Sec.  1.1297-4 Qualifying insurance corporation.

* * * * *
    (e) * * *
    (4) Corresponding adjustment to total assets.
    (i) Consolidated applicable financial statement
    (ii) Insurance risk transferred through reinsurance.
    (5) Example.
    (i) Facts.
    (ii) Results.
    (A) AIL reduction.
    (B) Asset reduction.
* * * * *
    (f) * * *
    (1) * * *
    (iv) Priority of financial statements.
* * * * *
    (6) * * *
    (i) In general.
    (ii) Consolidated and non-consolidated financial statement.
    (iii) Audited financial statement.
* * * * *
    (g) * * *
    (1) General applicability date.
    (2) Exception.
    (3) Early application.

Sec.  1.1297-5 Active conduct of an insurance business.

    (a) Scope.
    (b) Active conduct of an insurance business.
    (1) In general.
    (2) Exceptions.
    (c) Factual requirements test.
    (1) In general.
    (2) Substantial managerial and operational activities with 
respect to core functions.
    (i) Substantial managerial and operational activities.
    (ii) Regular and continuous basis.
    (3) Performance of virtually all of the active decision-making 
functions relevant to a QIC's underwriting activities.
    (i) Active decision-making functions.
    (ii) Performance requirements.
    (iii) Exclusions.
    (4) Number of officers and employees.
    (d) Active conduct percentage test.
    (1) Percentage test.
    (2) Outsourcing.
    (e) Related officers and employees.
    (1) Modified qualified affiliate requirement.
    (2) Oversight and supervision requirement.
    (3) Compensation requirement.
    (f) Definitions.
    (1) Applicable reporting period.
    (2) Compensation costs.
    (3) Contract and claims management activities.
    (4) Core functions.
    (5) Investment activities.
    (6) Qualifying insurance corporation or QIC.
    (7) Sales activities.
    (8) Total costs.
    (9) Underwriting activities.
    (10) Virtually all.
    (g) Applicability date.

Sec.  1.1297-6 Exception from the definition of passive income for 
active insurance income.

* * * * *
    (e) * * *
    (2) Qualifying domestic insurance corporation non-passive asset 
and income limitations.
    (i) Qualifying domestic insurance corporation's non-passive 
assets.
    (ii) Qualifying domestic insurance corporation's non-passive 
income.
    (iii) Non-passive asset limitation.
    (iv) Total insurance liabilities.
    (A) Companies taxable under Part I of Subchapter L.
    (B) Companies taxable under Part II of Subchapter L.
    (3) Example.
    (i) Facts.
    (ii) Result.
    (A) Non-passive asset limitation.
    (B) Non-passive income limitation.
    (f) * * *
    (1) General applicability date.
    (2) Exception.
    (3) Early application.

0
Par. 6. Section 1.1297-1 is amended by:
0
1. Revising paragraphs (c)(1)(i)(B), (c)(2), (d)(1)(v)(D), and (d)(2).
0
2. Revising the first sentence of paragraph (g)(1).
0
3. Adding paragraph (g)(3).
    The revisions and addition read as follows:


Sec.  1.1297-1  Definition of passive foreign investment company.

* * * * *
    (c) * * *
    (1) * * *

[[Page 4603]]

    (i) * * *
    (B) The exceptions in sections 954(c)(3) (relating to certain 
income received from related persons), 954(c)(6) (relating to certain 
amounts received from related controlled foreign corporations), 954(h) 
(relating to entities engaged in the active conduct of a banking, 
financing, or similar business), and 954(i) (relating to entities 
engaged in the active conduct of an insurance business) are not taken 
into account; * * *
* * * * *
    (2) Exception for certain income derived in the active conduct of a 
banking business by a foreign bank--(i) In general. For purposes of 
section 1297(b)(2)(A), income of a tested foreign corporation is 
treated as non-passive if--
    (A) The income would not be treated as foreign personal holding 
company income under section 954(h) (relating to entities engaged in 
the active conduct of a banking, financing, or similar business) if the 
tested foreign corporation (and, to the extent relevant, any related 
person as defined by section 954(d)(3)) were a controlled foreign 
corporation within the meaning of section 957(a); and
    (B) The tested foreign corporation is a foreign bank that is 
engaged in the active conduct of a banking business (within the meaning 
of section 954(h)(2)(B)(ii)) and the income is derived in the conduct 
of that banking business.
    (ii) Foreign bank determination. A tested foreign corporation will 
be treated as a foreign bank only if it--
    (A) is licensed by federal or state bank regulatory authorities to 
do business as a bank in the United States, or is licensed or 
authorized by a bank regulatory authority in the country in which it is 
chartered or incorporated (or, in the case of a qualified business 
unit, in the country in which the unit maintains its principal office) 
to do business as a bank in that country, including to--
    (I) Accept bank deposits from residents of that country; and
    (II) Carry out one or more of the activities listed in section 
954(h)(4), and
    (B) regularly receives bank deposits from and carries out one or 
more of the activities listed in section 954(h)(4) with unrelated 
customers in the ordinary course of a banking business.
* * * * *
    (d) * * *
    (1) * * *
    (v) * * *
    (D) Valuation. For purposes of determining the value of assets 
during a measuring period when the shares of a tested foreign 
corporation are not publicly traded, valuation may be determined on the 
basis of periodic financial accounting statements provided at least 
annually. If the tested foreign corporation or one or more shareholders 
has actual knowledge or reason to know based on readily accessible 
information that the financial accounting statements do not reflect a 
reasonable estimate of an asset's value and the information provides a 
more reasonable estimate of the asset's value, then the information 
must be used to determine the value of the assets to which it relates.
* * * * *
    (2) Working capital. For purposes of section 1297(a)(2), an amount 
of currency denominated in functional currency (as defined in section 
985(b)) held in a non-interest bearing financial account that is held 
for the present needs of an active trade or business and is no greater 
than the amount necessary to cover operating expenses incurred in the 
ordinary course of the trade or business of the tested foreign 
corporation (for example, accounts payable for ordinary operating 
expenses) and reasonably expected to be paid within 90 days is not 
treated as a passive asset. For purposes of the preceding sentence, 
cash equivalents are not treated as currency, and amounts held for 
purposes other than to meet the ordinary course operating expenses of 
the trade or business, including for the purpose of providing for (i) 
future diversification into a new trade or business, (ii) expansion of 
trade or business activities, (iii) future plant replacement, or (iv) 
future business contingencies, are treated as passive assets.
* * * * *
    (g) * * *
    (1) In general. Except as otherwise provided, the rules of this 
section apply to taxable years of shareholders beginning on or after 
January 14, 2021. * * *
* * * * *
    (3) Paragraphs (c)(1)(i)(B), (c)(2), (d)(1)(v)(D), and (d)(2) of 
this section. Paragraphs (c)(1)(i)(B), (c)(2), (d)(1)(v)(D), and (d)(2) 
of this section apply to taxable years of shareholders beginning on or 
after [the date these regulations are filed as final regulations in the 
Federal Register]. A shareholder may choose to apply the paragraphs in 
the preceding sentence for any open taxable year beginning before [the 
date these regulations are filed as final regulations in the Federal 
Register] without regard to whether the rules of this section are 
applied consistently, provided that once applied, each rule must be 
applied for each subsequent taxable year beginning before [the date 
these regulations are filed as final regulations in the Federal 
Register].
0
Par. 7. Section 1.1297-2 is amended by:
0
1. Revising the third sentence in paragraph (b)(2)(ii)(A), the second 
sentence in paragraph (b)(3)(ii)(A), the first sentence in paragraph 
(c)(2)(i), and the second sentence in (c)(4)(ii)(A).
0
2. Adding subparagraph (e)(4).
0
3. Revising the first sentence and adding two sentences to the end of 
paragraph (h).
    The revisions and additions read as follows:


Sec.  1.1297-2  Special rules regarding look-through subsidiaries and 
look-through partnerships.

* * * * *
    (b) * * *
    (2) * * *
    (ii) * * *
    (A) * * * The exceptions to passive income in section 1297(b)(2) 
and the relevant exceptions to foreign personal holding company income 
in sections 954(c) and (h) that are based on whether income is derived 
in the active conduct of a business or whether a corporation is engaged 
in the active conduct of a business apply to such income only if the 
exception would have applied to exclude the income from passive income 
or foreign personal holding company income in the hands of the 
subsidiary, determined by taking into account only the activities of 
the subsidiary except as provided in paragraph (e) of this section. * * 
*
* * * * *
    (3) * * *
    (ii) * * *
    (A) * * * The exceptions to passive income in section 1297(b)(2) 
and the relevant exceptions to foreign personal holding company income 
in sections 954(c) and (h) that are based on whether income is derived 
in the active conduct of a business or whether a corporation is engaged 
in the active conduct of a business apply to such income only if the 
exception would have applied to exclude the income from passive income 
or foreign personal holding company income in the hands of the 
partnership, determined by taking into account only the activities of 
the partnership except as provided in paragraph (e) of this section. * 
* *
* * * * *
    (c) * * *
    (2) * * *
    (i) LTS stock. For purposes of section 1297, a tested foreign 
corporation does

[[Page 4604]]

not take into account dividends derived with respect to LTS stock, 
including dividends that the tested foreign corporation is treated as 
receiving on a measurement date pursuant to section 1297(c) and 
paragraphs (b)(2) or (b)(3) of this section. * * *
* * * * *
    (4) * * *
    (ii) * * *
    (A) * * * During the first quarter of the taxable year, TFC 
received $20x of dividends from LTS1 and $30x of interest on the loan, 
both of which were paid in cash.
* * * * *
    (e) * * *
    (4) Active banking business. For purposes of Sec.  1.1297-1(c)(2), 
the activities of the employees of a person that is a related person 
with respect to a look-through subsidiary or partnership are taken into 
account to the extent provided in section 954(h)(3)(E).
* * * * *
    (f) Gain on disposition of a look-through subsidiary or look-
through partnership--(1) Stock basis adjustment. For purposes of 
determining gain in paragraph (2) of this paragraph (f), a tested 
foreign corporation's basis in the stock of a look-through subsidiary 
is decreased, but not below zero, by the aggregate amount of 
distributions made by the look-through subsidiary with respect to the 
look-through subsidiary's stock that are attributable to income of the 
look-through subsidiary not treated as received directly by the tested 
foreign corporation pursuant to paragraph (b)(2) of this section.
    (2) Amount of gain taken into account. The amount of gain derived 
from a tested foreign corporation's direct disposition of stock of a 
look-through subsidiary, or an indirect disposition resulting from the 
disposition of stock of a look-through subsidiary by other look-through 
subsidiaries or by look-through partnerships, that is taken into 
account by the tested foreign corporation for purposes of section 
1297(a)(1), section 1298(b)(3), and Sec.  1.1298-2 is the residual 
gain. The residual gain equals the total gain recognized by the tested 
foreign corporation (including gain treated as recognized by the tested 
foreign corporation pursuant to section 1297(c) and paragraph (b)(2) of 
this section or Sec.  1.1297-1(c)(2)) from the disposition of the stock 
of the look-through subsidiary reduced (but not below zero) by 
unremitted earnings. Unremitted earnings are the excess (if any) of the 
aggregate income (if any) taken into account by the tested foreign 
corporation pursuant to section 1297(c) and paragraph (b)(2) of this 
section or Sec.  1.1297-1(c)(2) with respect to the stock of the 
disposed-of look-through subsidiary (including with respect to any 
other look-through subsidiary, to the extent it is owned by the tested 
foreign corporation indirectly through the disposed-of look-through 
subsidiary) over the aggregate dividends (if any) received by the 
tested foreign corporation from the disposed-of look-through subsidiary 
with respect to the stock other than dividends described in paragraph 
(f)(1) of this section. For purposes of this paragraph (f)(2), the 
amount of gain derived from the disposition of stock of a look-through 
subsidiary and income of and dividends received from the look-through 
subsidiary is determined on a share-by-share basis, determined under a 
reasonable method.
* * * * *
    (h) Applicability date. Except as otherwise provided, the rules of 
this section apply to taxable years of shareholders beginning on or 
after January 14, 2021. * * * Paragraphs (b)(2)(ii)(A), (b)(3)(ii)(A), 
(c)(2)(i), (c)(4)(ii)(A), (e)(4), (f)(1), and (f)(2) of this section 
apply to taxable years of shareholders beginning on or after [the date 
these regulations are filed as final regulations in the Federal 
Register]. A shareholder may choose to apply the paragraphs in the 
preceding sentence for any open taxable year beginning before [the date 
these regulations are filed as final regulations in the Federal 
Register] without regard to whether the rules of this section are 
applied consistently, provided that once applied, each rule must be 
applied for each subsequent taxable year beginning before [the date 
these regulations are filed as final regulations in the Federal 
Register].
0
Par. 8. Section 1.1297-4 is amended by revising paragraphs (e)(4), 
(e)(5), (f)(1), (f)(2)(i)(D)(3), (f)(6)(i), (ii), and (iii), and (g) to 
read as follows:


Sec.  1.1297-4  Qualifying insurance corporation.

* * * * *
    (e) * * *
    (4) Corresponding adjustment to total assets. For purposes of 
determining whether a foreign corporation satisfies the 25 percent test 
or the 10 percent test, the amount of total assets reported on the 
foreign corporation's applicable financial statement may be reduced as 
described in paragraphs (e)(4)(i) through (iii) of this section.
    (i) Consolidated applicable financial statement. If a foreign 
corporation's applicable financial statement is prepared on a 
consolidated basis, the amount of total assets may be reduced by the 
amount of liabilities of another entity that are reported on the 
applicable financial statement and would be treated as applicable 
insurance liabilities but for the application of paragraphs (e)(2) or 
(f)(2)(i)(D)(2) of this section.
    (ii) Insurance risk transferred through reinsurance. If the 
applicable financial statement is prepared on the basis of an 
accounting method that measures insurance liabilities without a 
reduction for amounts that may be recovered from other parties through 
reinsurance and the amount that may be recovered through reinsurance is 
reported as an asset on the applicable financial statement (rather than 
as a reduction in the amount of an insurance liability), the foreign 
corporation's total assets may be reduced by the amount of the 
corporation's insurance liabilities that are reinsured to another party 
and are excluded from the definition of applicable insurance 
liabilities under paragraph (f)(2)(i)(D)(3) of this section.
    (iii) No amount may be used more than once to reduce total assets 
under paragraphs (e)(4)(i) and (ii) of this section.
    (5) Example. The following example illustrates the application of 
paragraph (e)(4) of this section.
    (i) Facts. P, a foreign corporation, issues property and casualty 
insurance contracts and has a consolidated applicable financial 
statement (AFS) constructed using IFRS accounting principles, including 
those of IFRS 17, for the applicable reporting period. The AFS reports 
insurance contract liabilities for incurred claims that meet the 
requirements of paragraphs (f)(2)(i)(A) and (f)(2)(i)(B) of this 
section in an amount equal to 1,100x, 200x of which are liabilities 
under contracts issued by S, a wholly owned insurance subsidiary, and 
900x of which are liabilities under contracts issued by P. The AFS also 
reports 2,500x of total assets, including 250x of assets related to P's 
insurance contract liabilities for incurred claims that are recoverable 
from unrelated parties through reinsurance.
    (ii) Results--(A) Reduction to applicable insurance liabilities 
(AIL). Under paragraph (f)(2)(i)(D)(2) of this section, only AIL of the 
foreign corporation whose QIC status is being determined may be 
included in AIL. Thus, P's AIL do not include the 200x of insurance 
contract liabilities on P's consolidated AFS that are liabilities under 
contracts issued by S. Under paragraph (f)(2)(i)(D)(3) of this section, 
the amount of insurance liabilities determined under paragraphs 
(f)(2)(i)(A)

[[Page 4605]]

through (C) and (D)(1) and (2) of this section are reduced by an amount 
equal to the assets reported on P's AFS that represent amounts relating 
to those liabilities that may be recoverable from other parties through 
reinsurance. Thus, P's AIL are reduced by an amount equal to the 250x 
of assets for incurred claims related to the insurance liabilities of P 
that are recoverable from another party through reinsurance. Assuming 
no other limitation applies (such as those contained in paragraph (e) 
of this section), P's AIL equals 650x (1,100x-200x-250x).
    (B) Reduction to total assets. Pursuant to paragraph (e)(4)(i) of 
this section, P may reduce its total assets by amounts of liabilities 
of another entity that are excluded from P's AIL because of paragraphs 
(e)(2) or (f)(2)(i)(D)(2) of this section. Under paragraph 
(f)(2)(i)(D)(2) of this section, P's AIL may include only the 
liabilities of P, the entity whose QIC status is being determined. 
Therefore, P may reduce its total assets by 200x, the amount of 
liabilities under contracts issued by S that are included on P's AFS 
but excluded from P's AIL. Pursuant to paragraph (e)(4)(ii) of this 
section, P may also reduce its total assets by 250x, the amount of P's 
liabilities that are reinsured by another party and excluded from the 
definition of AIL under paragraph (f)(2)(i)(D)(3) of this section. 
After these adjustments, P has total assets of 2,050x (2,500x-200x-
250x).
    (C) AIL to total assets tests. Accordingly, for purposes of the 25 
percent and 10 percent tests, P has AIL of 650x and total assets of 
2,050x, for a test ratio of 650x/2,050x, or 31.7%.
    (f) Definitions. * * *
    (1) Applicable financial statement. The term applicable financial 
statement means the foreign corporation's financial statement prepared 
for the financial reporting purposes listed in paragraphs (f)(1)(i) 
through (iii) of this section that has the highest priority, including 
priority within paragraphs (f)(1)(i)(B) and (f)(1)(ii) of this section. 
Subject to paragraph (f)(1)(iv) of this section, the financial 
statements are, in order of descending priority--
    (i) GAAP statements. A financial statement that is prepared in 
accordance with GAAP and is:
    (A) A Form 10-K (or successor form), or annual statement to 
shareholders, filed with the United States Securities and Exchange 
Commission (SEC), or filed by the taxpayer with an agency of a foreign 
government that is equivalent to the SEC, and has reporting standards 
not less stringent than the standards required by the SEC;
    (B) An audited financial statement of the taxpayer that is used 
for:
    (1) Credit purposes;
    (2) Reporting to shareholders, partners, or other proprietors, or 
to beneficiaries;
    (3) Filing with the Federal government or any Federal agency, other 
than the SEC or the Internal Revenue Service or an applicable insurance 
regulatory body, or filing with a state or foreign government or an 
agency of a state or foreign government, other than an agency that is 
equivalent to the SEC or the Internal Revenue Service or is an 
applicable insurance regulatory body; or
    (4) Any other substantial non-tax purpose, including filing with 
the applicable insurance regulatory body; or
    (ii) IFRS statements. A financial statement that is prepared in 
accordance with IFRS and is described in paragraphs (f)(1)(i)(A) or (B) 
of this section, in the order of priority set forth in those 
paragraphs; or
    (iii) Regulatory annual statement. An audited financial statement 
required to be filed with the applicable insurance regulatory body that 
is not prepared in accordance with GAAP or IFRS.
    (iv) Priority of financial statements.
    (A) A financial statement that takes into account assets and 
liabilities of affiliates of the foreign corporation that are not owned 
in whole or part by the foreign corporation is not treated as an 
applicable financial statement for purposes of paragraphs (f)(1)(i) and 
(ii) of this section, and is not treated as an applicable financial 
statement for purposes of paragraph (f)(1)(iii) of this section unless 
it is the only financial statement described in paragraph (f)(1)(iii) 
of this section.
    (B) A financial statement that is described in more than one clause 
listed in paragraphs (f)(1)(i) through (iii) of this section is treated 
for purposes of this paragraph (f)(1) as described solely in the 
highest priority clause. If a foreign corporation has more than one 
financial statement with equal priority under paragraphs (f)(1)(i) 
through (iii) of this section, a non-consolidated financial statement 
has priority over other financial statements.
    (2) Applicable insurance liabilities. * * *
    (i) * * *
    (D) * * *
    (3) Amounts of liabilities determined under paragraphs (f)(2)(i)(A) 
through (C) and (D)(1) and (2) are reduced by an amount equal to the 
assets reported on the corporation's financial statement as of the 
financial statement end date that represent amounts relating to those 
liabilities that may be recoverable from other parties through 
reinsurance. If a foreign corporation's financial statement is prepared 
on a consolidated basis, to the extent not reduced already under 
paragraphs (f)(2)(i)(A) through (C) and (D)(1) and (2), liabilities are 
reduced by an amount equal to the assets relating to those liabilities 
that may be recoverable through reinsurance from another entity 
included in the consolidated financial statement, regardless of whether 
the reinsurance transaction is eliminated in the preparation of the 
consolidated financial statement.
* * * * *
    (6) Financial statements--(i) In general. The term financial 
statement means a statement prepared for a legal entity for a reporting 
period in accordance with the rules of a financial accounting or 
statutory accounting standard that includes a complete balance sheet, 
statement of income, a statement of cash flows (or equivalent 
statements under the applicable reporting standard), and related 
exhibits, schedules, forms, and footnotes that usually accompany the 
balance sheet, income statement and cash flow statement.
    (ii) Consolidated and non-consolidated financial statement. The 
term consolidated financial statement means a financial statement of a 
consolidated group of entities that includes a parent and its 
subsidiaries presented as those of a single economic entity, prepared 
in accordance with GAAP, IFRS or another financial or statutory 
accounting standard. A non-consolidated financial statement means a 
financial statement that is not prepared on a consolidated basis and 
that accounts for investments in subsidiaries on a cost or equity 
basis.
    (iii) Audited financial statement. The term audited financial 
statement means a financial statement that has been examined by an 
independent auditor that has provided an opinion that the financial 
statement presents fairly in all material respects the financial 
position of the audited company (and its subsidiaries and controlled 
entities, if relevant) and the results of their operations and cash 
flows in accordance with GAAP or IFRS, or an equivalent opinion under 
GAAP, IFRS or another financial accounting or statutory accounting 
standard.
* * * * *
    (g) Applicability date--(1) General applicability date. Except as 
provided in paragraph (g)(2) of this section, this section applies to 
taxable years of shareholders beginning on or after January 14, 2021.

[[Page 4606]]

    (2) Exception. Paragraphs (e)(4), (e)(5), (f)(1), (f)(2)(i)(D)(3), 
and (f)(6) of this section apply to taxable years of United States 
persons that are shareholders in foreign corporations beginning on or 
after [the date these regulations are filed as final regulations in the 
Federal Register].
    (3) Early application--(i) A shareholder may choose to apply the 
rules of this section (other than paragraphs (f)(1), (f)(2)(i)(D)(3), 
and (f)(6) of this section) for any open taxable year beginning after 
December 31, 2017 and before the applicability dates described in 
paragraphs (g)(1) and (2) of this section, provided that, with respect 
to a tested foreign corporation, it consistently applies those rules 
and the rules described in Sec.  1.1297-6(f)(3) for such year and all 
subsequent years.
    (ii) A shareholder may choose to apply paragraphs (f)(1), 
(f)(2)(i)(D)(3), and (f)(6) of this section for any open taxable year 
beginning after December 31, 2017 and before [the date these 
regulations are filed as final regulations in the Federal Register], 
provided that, with respect to a tested foreign corporation, it 
consistently applies the rules of this section, Sec.  1.1297-5, and 
Sec.  1.1297-6 for such year and all subsequent years.
0
Par. 9. Section 1.1297-5 is revised to read as follows:


Sec.  1.1297-5  Active conduct of an insurance business.

    (a) Scope. This section provides rules pertaining to the exception 
from passive income under section 1297(b)(2)(B) for income derived in 
the active conduct of an insurance business. Paragraph (b) of this 
section sets forth the options for a qualifying insurance company (QIC) 
to qualify as engaged in the active conduct of an insurance business 
and describes circumstances under which a QIC will not be engaged in 
the active conduct of an insurance business. Paragraph (c) of this 
section describes the factual requirements that are sufficient to show 
that a QIC is engaged in the active conduct of an insurance business 
for purposes of section 1297(b)(2)(B). Paragraph (d) of this section 
describes an alternative active conduct percentage test, pursuant to 
which a QIC may be deemed to be engaged in the active conduct of an 
insurance business for purposes of section 1297(b)(2)(B). Paragraph (e) 
of this section describes the circumstances under which officers and 
employees of certain entities related to a QIC may be treated as if 
they were employees of the QIC. Paragraph (f) of this section provides 
definitions applicable to this section. Paragraph (g) of this section 
provides the applicability date of this section.
    (b) Active conduct of an insurance business--(1) In general. A QIC 
is engaged in the active conduct of an insurance business only if it 
satisfies--
    (i) the factual requirements test in paragraph (c) of this section; 
or
    (ii) the active conduct percentage test in paragraph (d) of this 
section.
    (2) Exceptions. Notwithstanding paragraph (b)(1) of this section, a 
QIC is not engaged in the active conduct of an insurance business if 
either of the following circumstances apply--
    (i) It has no employees or only a nominal number of employees and 
relies exclusively or almost exclusively upon independent contractors 
(disregarding for this purpose any related entity that has entered into 
a contract designating its status as an independent contractor with 
respect to the QIC) to perform its core functions;
    (ii) It is a vehicle that has the effect of securitizing or 
collateralizing insurance risks underwritten by other insurance or 
reinsurance companies or is an insurance linked securities fund that 
invests in securitization vehicles, and its stock (or a financial 
instrument, note, or security that is treated as equity for U.S. tax 
purposes) is designed to provide an investment return that is tied to 
the occurrence of a fixed or pre-determined portfolio of insured risks, 
events, or indices related to insured risks.
    (c) Factual Requirements Test--(1) In general. A QIC satisfies the 
factual requirements test of paragraph (b)(1)(i) of this section if all 
the following are met--
    (i) The officers and employees of the QIC carry out substantial 
managerial and operational activities on a regular and continuous basis 
with respect to its core functions as described in paragraph (c)(2) of 
this section; and
    (ii) The officers and employees of the QIC perform virtually all of 
the active decision-making functions relevant to underwriting functions 
as described in paragraph (c)(3) of this section.
    (2) Substantial managerial and operational activities with respect 
to core functions--(i) Substantial managerial and operational 
activities. Substantial managerial and operational activities with 
respect to a QIC's core functions requires all of the following--
    (A) Establishing the strategic, overall parameters with respect to 
each core function;
    (B) Establishing, or reviewing and approving, detailed plans to 
implement the strategic, overall parameters for each of the QIC's core 
functions;
    (C) Managing, controlling and supervising the execution of the 
detailed plans to carry out each of the QIC's core functions;
    (D) Establishing criteria for the hiring of employees or 
independent contractors to execute the detailed plans to carry out each 
of the QIC's core functions, and if independent contractors are hired, 
prescribing the goals and objectives of the engagement, the scope of 
work, evaluation criteria for contractor eligibility and for 
submissions by prospective contractors, and criteria and budget for the 
work to be performed;
    (E) Reviewing the conduct of the work performed by employees or 
independent contractors to ensure that it meets the goals, standards, 
criteria, timeline and budget specified by the QIC, and taking 
appropriate action if it does not; and
    (F) Conducting each of the requirements above by officers or senior 
employees of the QIC, which officers or employees are experienced in 
the conduct of those activities and devote all or virtually all of 
their work to those activities and similar activities for related 
entities.
    (ii) Regular and continuous basis. Carrying out managerial and 
operational activities on a regular and continuous basis requires that 
the parameters and plans described in paragraphs (c)(2)(i)(A) and (B) 
of this section are regularly reviewed and updated and that the 
activities described in paragraphs (c)(2)(i)(C) and (E) of this section 
are carried out on a daily or other frequent basis as part of the 
ordinary course of the QIC's operations.
    (3) Performance of virtually all of the active decision-making 
functions relevant to a QIC's underwriting activities--(i) Active 
decision-making functions. Active decision-making functions are the 
underwriting activities that are most important to decisions of the QIC 
relating to the assumption of specific insurance risks.
    (ii) Performance requirements. Performance of virtually all of the 
active decision-making functions relating to underwriting activities 
requires all of the following--
    (A) Carrying out virtually all of the activities related to a QIC's 
decision to assume an insurance risk, as set forth in the definition of 
underwriting activities, by employees and not by independent 
contractors; and
    (B) Evaluating, analyzing, and conducting virtually all of the 
decision-making with respect to executing an insurance contract on a 
contract-by-contract basis, including determining whether the contract 
meets the QIC's criteria with respect to the risks to be

[[Page 4607]]

undertaken and pricing and is otherwise sound and appropriate.
    (iii) Exclusions. The following activities are not active decision-
making functions relevant to a QIC's core functions--
    (A) Development of underwriting policies or parameters that are 
changed infrequently without further ongoing, active involvement in the 
day-to-day decision-making related to these functions; and
    (B) Clerical or ministerial functions with respect to underwriting 
that do not involve the exercise of discretion or business judgment.
    (4) Number of officers and employees. The number of officers and 
employees actively engaged in each core function is a relevant factor 
in determining whether the factual requirements in paragraph (c)(1) of 
this section have been satisfied.
    (d) Active conduct percentage test. A QIC satisfies the active 
conduct percentage test of paragraph (b)(1)(ii) and will be deemed to 
be engaged in an active insurance business for the applicable reporting 
period only if it satisfies the percentage requirement in paragraph 
(d)(1) of this section and, to the extent core functions are 
outsourced, the oversight requirement in paragraph (d)(2) of this 
section.
    (1) Percentage test. For the applicable reporting period covered by 
the applicable financial statement, total costs incurred by the QIC 
with respect to the QIC's officers and employees for services rendered 
with respect to its core functions (other than investment activities) 
equals or exceeds 50 percent of total costs incurred by the QIC with 
respect to the QIC's officers and employees and any other person or 
entities for services rendered with respect to its core functions 
(other than investment activities).
    (2) Outsourcing. To the extent the QIC outsources any part of its 
core functions to unrelated entities, officers and employees of the QIC 
with experience and relevant expertise must select and supervise the 
person that performs the outsourced functions, establish objectives for 
performance of the outsourced functions, and prescribe rigorous 
guidelines relating to the outsourced functions which are routinely 
evaluated and updated.
    (e) Related officers and employees. For purposes of this section, a 
QIC's officers and employees are considered to include the officers and 
employees of a related entity if the requirements of this paragraph (e) 
are satisfied. In determining whether an activity is carried out by 
employees, the activities of persons that are independent contractors 
and that are not related entities are disregarded. An entity may be a 
related entity regardless of whether it has entered into a contract 
designating its status as an independent contractor with respect to the 
QIC. An entity is treated as a related entity only if the requirements 
of this paragraph (e) are satisfied.
    (1) Modified qualified affiliate requirement. The entity is a 
qualified affiliate of the QIC within the meaning of Sec.  1.1297-
2(e)(2) (determined by treating the QIC as the tested foreign 
corporation) except that, for purposes of this section, section 
1504(a)(2)(A) (with ``more than 50 percent'' substituted for ``at least 
80 percent'') also applies for purposes of determining qualified 
affiliate status.
    (2) Oversight and supervision requirement. The QIC exercises 
regular oversight and supervision over the services performed by the 
related entity's officers and employees for the QIC.
    (3) Compensation requirement. The QIC either--
    (i) Pays directly all the compensation costs of the related 
entity's officers and employees attributable to core functions 
performed by those officers and employees on behalf of the QIC;
    (ii) Reimburses the related entity for the portion of its expenses, 
including compensation costs and related expenses (determined in 
accordance with section 482 and taking into account all expenses that 
would be included in the total services costs under Sec.  1.482-9(j) 
and Sec.  1.482-9(k)(2)) for the performance by its officers and 
employees of core functions on behalf of the QIC; or
    (iii) Otherwise pays arm's length compensation in accordance with 
section 482 on a fee-related basis to the related entity for services 
related to core functions.
    (f) Definitions. The following definitions apply solely for 
purposes of this section.
    (1) Applicable reporting period. The term applicable reporting 
period has the meaning set forth in Sec.  1.1297-4(f)(4).
    (2) Compensation costs. The term compensation costs means all 
amounts incurred by the QIC during the applicable reporting period with 
respect to an officer and employee (including, for example, wages, 
salaries, deferred compensation, employee benefits, and employer 
payroll taxes).
    (3) Contract and claims management activities. The term contract 
and claims management activities means performing the following 
activities with respect to an insurance or annuity contract: Monitoring 
a contract (or group of contracts) over its life cycle (that is, 
maintaining the information on contractual developments, insured risk 
and occurrences, and maintaining accounts on premiums, claims reserves 
and commissions); performing loss and claim reporting (establishing and 
maintaining loss reporting systems, developing reliable claims 
statistics, defining and adjusting claims provisions and introducing 
measures to protect and reduce claims in future); and all the 
activities related to a policyholder's claim, including processing the 
claims report, examining coverage, handling the claim (working out the 
level of the claim, clarifying causes, claims reduction measures, legal 
analysis) and seeking recovery of funds due to the QIC.
    (4) Core functions. The term core functions means the QIC `s 
underwriting, investment, contract and claims management and sales 
activities; however, contract and claims management activities will not 
be considered to be a core function of a reinsurance company with 
respect to indemnity reinsurance contracts to the extent that the 
ceding company has agreed to retain this core function under a 
reinsurance contract.
    (5) Investment activities. The term investment activities means 
investment in equity and debt instruments and related hedging 
transactions and other assets of a kind typically held for investment, 
for the purpose of producing income to meet obligations under the 
insurance, annuity or reinsurance contracts.
    (6) Qualifying insurance corporation or QIC. The term qualifying 
insurance corporation or QIC has the meaning described in Sec.  1.1297-
4(b).
    (7) Sales activities. The term sales activities means sales, 
marketing and customer relations with respect to insurance or 
reinsurance policies.
    (8) Total costs. With respect to the QIC's own officers and 
employees (and without regard to related officers and employees 
described in paragraph (e) of this section), the term total costs means 
the compensation costs of those officers and employees and related 
expenses (determined in accordance with section 482 and taking into 
account all expenses that would be included in the total services costs 
under Sec.  1.482-9(j) and Sec.  1.482-9(k)(2)) for services performed 
related to core functions. With respect to services performed by 
related officers and employees and unrelated persons or entities, the 
term total costs means the amount paid or accrued to the related or 
unrelated persons or entities for the services related to core 
functions. For purposes of this section, total costs,

[[Page 4608]]

however, do not include any ceding commissions paid or accrued with 
respect to reinsurance contracts or commissions or fees paid or accrued 
to brokers or sales agents to procure reinsurance contracts.
    (9) Underwriting activities. The term underwriting activities means 
the performance of activities related to a QIC's decision to assume an 
insurance risk (for example, the decision to enter into an insurance or 
reinsurance contract, setting underwriting policy, risk classification 
and selection, designing or tailoring insurance or reinsurance products 
to meet market or customer requirements, performing actuarial analysis 
with respect to insurance products, and performing analysis for 
purposes of setting premium rates or calculating reserves, and risk 
retention).
    (10) Virtually all. The term virtually all means all, other than a 
de minimis portion, measured on any reasonable basis.
    (g) Applicability date. This section applies to taxable years of 
shareholders beginning on or after [the date these regulations are 
filed as final regulations in the Federal Register]. A shareholder may 
choose to apply the rules of this section for any open taxable year 
beginning after December 31, 2017 and before [the date these 
regulations are filed as final regulations in the Federal Register], 
provided that, with respect to a tested foreign corporation, it 
consistently applies the rules of this section, Sec.  1.1297-4, and 
Sec.  1.1297-6 for such year and all subsequent years.
0
Par. 10. Section 1.1297-6 is amended by adding a sentence to the end of 
paragraph (b)(2), adding a sentence to the end of paragraph (c)(2), and 
revising paragraphs (e)(2), (e)(3), and (f), to read as follows:


Sec.  1.1297-6  Exception from the definition of passive income for 
active insurance income.

* * * * *
    (b) Exclusion from passive income of active insurance income. * * *
    (2) * * * See paragraph (e)(2)(i) of this section for additional 
rules regarding the amount of income of a qualifying domestic insurance 
corporation that is treated as non-passive.
* * * * *
    (c) Exclusion of assets for purposes of the passive asset test 
under section 1297(a)(2). * * *
    (2) * * * See paragraph (e)(2)(ii) of this section for additional 
rules regarding the amount of assets of a qualifying domestic insurance 
corporation that are treated as non-passive.
* * * * *
    (e) Qualifying domestic insurance corporation. * * *
    (2) Qualifying domestic insurance corporation non-passive asset and 
income limitations. For purposes of section 1297 and Sec.  1.1297-1--
    (i) Qualifying domestic insurance corporation's non-passive assets. 
The amount of passive assets of a qualifying domestic insurance 
corporation that may be treated as non-passive is equal to the lesser 
of the passive assets of the corporation (determined without 
application of paragraph (c)(2) of this section) or the corporation's 
non-passive asset limitation (as defined in paragraph (e)(2)(iii) of 
this section).
    (ii) Qualifying domestic insurance corporation's non-passive 
income. The amount of passive income of a qualifying domestic insurance 
corporation that may be treated as non-passive is equal to the lesser 
of the passive income of the corporation (determined without 
application of paragraph (b)(2) of this section) or the corporation's 
passive income multiplied by the proportion that its non-passive asset 
limitation (as defined in paragraph (e)(2)(iii) of this section) bears 
to its total passive assets (determined without application of 
paragraph (c)(2) of this section).
    (iii) Non-passive asset limitation. For purposes of paragraph (e) 
of this section, the non-passive asset limitation equals the 
corporation's total insurance liabilities multiplied by the applicable 
percentage. The applicable percentage is--
    (A) 400 percent of total insurance liabilities, for a company 
taxable under Part II of Subchapter L; and
    (B) 200 percent of total insurance liabilities, for a company 
taxable under Part I of Subchapter L.
    (iv) Total insurance liabilities. For purposes of paragraph (e) of 
this section--
    (A) Companies taxable under Part I of Subchapter L. In the case of 
a company taxable under part I of Subchapter L, the term total 
insurance liabilities means the sum of the total reserves (as defined 
in section 816(c)) plus (to the extent not included in total reserves) 
the items referred to in paragraphs (3), (4), (5), and (6) of section 
807(c).
    (B) Companies taxable under Part II of Subchapter L. In the case of 
a company taxable under part II of Subchapter L, the term total 
insurance liabilities means the sum of unearned premiums (determined 
under Sec.  1.832-4(a)(8)) and unpaid losses.
    (3) Example. The following example illustrates the application of 
this section.
    (i) Facts. X, a qualifying domestic insurance corporation within 
the meaning of paragraph (e)(1) of this section, is a nonlife insurance 
company taxable under part II of Subchapter L. X has passive assets of 
$1000x, total insurance liabilities of $200x, and passive income of 
$100x.
    (ii) Result--(A) Non-passive asset limitation. The applicable 
percentage for nonlife insurance companies is 400%. Pursuant to 
paragraph (e)(2)(iii) of this section, X has a non-passive asset 
limitation of $800x, which is equal to its total insurance liabilities 
of $200x multiplied by 400%. Under paragraph (e)(2)(i) of this section, 
$800x of X's passive assets (equal to the lesser of the non-passive 
asset limitation ($800x) or passive assets ($1000x)) are treated as 
non-passive, and $200x remains passive.
    (B) Non-passive income limitation. X has a non-passive asset 
limitation of $800x. The proportion of its non-passive asset limitation 
($800x) to its total passive assets ($1000x) is 80%. Pursuant to 
paragraph (e)(2)(ii) of this section, X has $80x of passive income 
treated as non-passive (equal to the lesser of passive income ($100x) 
or 80% times $100x) and $20x remains passive.
    (f) Applicability date--(1) General applicability date. Except as 
provided in paragraph (f)(2) of this section, this section applies to 
taxable years of shareholders beginning on or after January 14, 2021.
    (2) Exception. Paragraphs (e)(2) and (e)(3) of this section apply 
to taxable years of shareholders beginning on or after [the date these 
regulations are filed as final regulations in the Federal Register].
    (3) Early application. A shareholder may choose to apply the rules 
of this section (other than paragraphs (e)(2) and (e)(3) of this 
section) for any open taxable year beginning after December 31, 2017 
and before January 14, 2021, provided that, with respect to a tested 
foreign corporation, it consistently applies those rules and the rules 
described in Sec.  1.1297-4(g)(3)(i) for such year and all subsequent 
years.
0
Par. 11. Section 1.1298-0 is amended by adding entries for Sec.  
1.1298-4(e)(2)(i) and (ii); Sec.  1.1298-4(e)(2)(ii)(A), (B), (C), and 
(D); Sec.  1.1298-4(e)(3); Sec.  1.1298-4(e)(3)(i), (ii), (iii), and 
(iv); Sec.  1.1298-4(e)(3)(i)(A) and (B); Sec.  1.1298-4(e)(3)(ii)(A) 
and (B); Sec.  1.1298-4(e)(3)(iii)(A) and (B); and Sec.  1.1298-
4(e)(3)(iv)(A) and (B) to read as follows:

[[Page 4609]]

Sec.  1.1298-0  Table of contents.

Sec.  1.1298-4 Rules for certain foreign corporations owning stock 
in 25-percent-owned domestic corporations.

* * * * *
    (e) * * *
    (2) Safe harbor.
    (i) Active business within Unites States.
    (ii) Businesses undergoing change and new businesses.
    (A) In general.
    (B) Testing date.
    (C) Transition period.
    (D) Inapplicability.
    (3) Examples.
    (i) Example 1.
    (A) Facts.
    (B) Results.
    (ii) Example 2.
    (A) Facts.
    (B) Results.
    (iii) Example 3.
    (A) Facts.
    (B) Results.
    (iv) Example 4.
    (A) Facts.
    (B) Results.
* * * * *
0
Par. 12. Section 1.1298-4 is amended by:
0
1. Revising paragraphs (e)(2) and (3).
0
2. Revising the first sentence and adding two sentences to the end of 
paragraph (f).
    The additions and revisions read as follows:


Sec.  1.1298-4  Rules for certain foreign corporations owning stock in 
25-percent-owned domestic corporations.

* * * * *
    (e) * * *
    (2) Safe harbor. Paragraph (e)(1) of this section will not apply if 
paragraph (e)(2)(i) or (e)(2)(ii) of this section applies.
    (i) Active business within United States. The value of the assets 
of the second-tier domestic corporation used or held for use in an 
active trade or business within the U.S. is more than 80 percent of the 
fair market value of the gross assets of such corporation. For purposes 
of this paragraph (e)(2)--
    (A) The value of the assets of the second-tier domestic corporation 
takes into account its pro-rata share of the value of the assets of its 
domestic subsidiary qualified affiliates and does not take into account 
the stock of such affiliates;
    (B) The term domestic subsidiary qualified affiliate means each 
member of the affiliated group (as defined in section 1504(a) applied 
by substituting ``more than 50 percent'' for ``at least 80 percent'' 
each place it appears), treating the second-tier domestic corporation 
as the common parent of such affiliated group; and
    (C) For purposes of this paragraph (e)(2), the determination of the 
existence of an active trade or business and whether assets are used in 
an active trade or business is made under Sec.  1.367(a)-2(d)(2), (3), 
and (5) except that officers and employees of related entities as 
provided in Sec.  1.367(a)-2(d)(3) include only the officers and 
employees of related domestic entities within the meaning of section 
267(b) or 707(b)(1).
    (ii) Businesses undergoing change and new businesses--(A) In 
general. The second-tier domestic corporation engages in an active U.S. 
trade or business that satisfies paragraph (e)(2)(i) of this section by 
the end of the transition period following the testing date.
    (B) Testing date. For purposes of this paragraph (e)(2)(ii), the 
term ``testing date'' means the last day of the month in which either--
    (1) The second-tier domestic corporation is created or organized or 
is acquired, directly or indirectly, by the tested foreign corporation; 
or
    (2) A second-tier domestic corporation that previously satisfied 
(e)(2)(i) of this paragraph (e) disposes of, to a person that is not 
related within the meaning of section 267(b) or 707(b)(1), 
substantially all of the assets used or held for use in its active U.S. 
trade or business.
    (C) Transition period. For purposes of this paragraph (e)(2)(ii), 
the term ``transition period'' means thirty-six months after the 
testing date as defined in paragraph (e)(2)(ii)(B)(1) or (2) of this 
section.
    (D) Inapplicability. This paragraph (e)(2)(ii) does not apply for 
any taxable year (including previous taxable years) of the tested 
foreign corporation if the second-tier domestic corporation does not 
engage in an active U.S. trade or business that satisfies paragraph 
(e)(2)(i) of this section by the end of the transition period following 
a testing date.
    (3) Examples. The following examples illustrate the rules of this 
paragraph (e). For purposes of these examples, TFC is a foreign 
corporation that is not a controlled foreign corporation (within the 
meaning of section 957(a)) and that is subject to the section 531 tax, 
USS1 and USS2 are domestic corporations for TFC's entire taxable year, 
TFC owns 100% of the single class of stock of USS1, and USS1 owns 100% 
of the single class of stock of USS2.
    (i) Example 1--(A) Facts. USS2 operates an active trade or business 
within the United States within the meaning of Sec.  1.367(a)-2(d)(2), 
(3), and (5). Throughout TFC's Year 1, the value of USS2's assets is 
$100x, and the value of USS2's assets that are used or held for use in 
its active trade or business within the United States is $20x. USS2 was 
not created, organized, or acquired within the preceding thirty-six 
months and has not disposed of an active trade or business within the 
United States within the preceding thirty-six months.
    (B) Results. Paragraph (e)(2)(i) of this section does not apply in 
Year 1 even though USS2 is engaged in an active trade or business 
within the United States because only 20% ($20x/$100x) of its assets 
are used or held for use in an active U.S. trade or business within the 
meaning of Sec.  1.367(a)-2(d)(2), (3), and (5), an amount that is not 
more than 80% of the fair market value of the total gross assets of 
USS2. Accordingly, the general rule in paragraph (e)(1) of this section 
will apply if there is a principal purpose to hold passive assets 
through USS2, the second-tier domestic corporation, to avoid 
classification of TFC, the tested foreign corporation, as a PFIC.
    (ii) Example 2--(A) Facts. The facts are the same as in as in 
paragraph (e)(4)(i)(A) of this section (the facts in Example 1), except 
that USS2 also has an investment in USS3, a wholly owned domestic 
subsidiary of USS2. Throughout TFC's taxable Year 1, the value of 
USS3's assets is $400x and USS3 uses 100% of its assets in an active 
trade or business within the United States within the meaning of Sec.  
1.367(a)-2(d)(2), (3), and (5).
    (B) Results. Because USS3 is a domestic subsidiary qualified 
affiliate of USS2, USS2's pro-rata share of the assets of USS3 is taken 
into account to determine whether USS2 satisfies paragraph (e)(2)(i) of 
this section. Accordingly, USS2 takes into account $400x (its pro-rata 
share) of USS3's assets in addition to the $100x of its own assets and, 
thus, is treated for purposes of paragraph (e)(2)(i) of this section as 
owning $500x of assets, with 84% ($420x/$500x) of such assets being 
used or held for use in an active trade or business within the United 
States within the meaning of Sec.  1.367(a)-2(d)(2), (3), and (5). 
Therefore, paragraph (e)(2)(i) of this section applies in Year 1 and 
the general rule in paragraph (e)(1) of this section does not apply.
    (iii) Example 3--(A) Facts. Throughout Year 1, USS2 uses 100% of 
its assets in an active trade or business within the United States 
within the meaning of Sec.  1.367(a)-2(d)(2), (3), and (5), and thus 
satisfied paragraph (e)(2)(i) of this section in Year 1. On the first 
day of Year 2, USS2 disposes of all of those assets for cash. On the 
seventh day of Year 5 (before the end of the first month

[[Page 4610]]

in Year 5), USS2 invests the cash in assets that it immediately begins 
to use in an active trade or business in the United States.
    (B) Results. Because USS2, the second-tier domestic corporation, 
engages in an active U.S. trade or business that satisfies paragraph 
(e)(2)(i) of this section by the end of thirty-six months after the 
last day of the month in which it disposed of its entire active U.S. 
trade or business that previously satisfied paragraph (e)(2)(i) of this 
section, paragraph (e)(2)(ii) of this section applies in Year 2, Year 
3, and Year 4, and the general rule in paragraph (e)(1) of this section 
does not apply.
    (iv) Example 4--(A) Facts. The facts are the same as in paragraph 
(e)(4)(iii)(A) of this section (the facts in Example 3), except that at 
the end of the first month of Year 5, USS2 is still in negotiations to 
purchase assets to be used in an active trade or business in the United 
States within the meaning of Sec.  1.367(a)-2(d)(2), (3), and (5), and 
USS2 does not complete the purchase of such assets until the third 
month of Year 5.
    (B) Results. The safe harbor in paragraph (e)(2)(ii) of this 
section does not apply for Year 2, Year 3, or Year 4, because USS2, the 
second-tier domestic corporation, did not engage in an active U.S. 
trade or business that satisfied paragraph (e)(2)(i) of this section by 
the end of the thirty-six month transition period after the end of the 
month in which it sold its prior active trade or business. Accordingly, 
the general rule in paragraph (e)(1) of this section will apply if 
there is a principal purpose to hold passive assets through USS2, the 
second-tier domestic corporation, to avoid classification of TFC, the 
tested foreign corporation, as a PFIC.
    (f) Applicability date. Except as otherwise provided, the rules of 
this section apply to taxable years of shareholders beginning on or 
after January 14, 2021 * * * Paragraphs (e)(2) and (3) of this section 
apply to taxable years of shareholders beginning on or after [DATE OF 
FILING OF FINAL RULE IN THE FEDERAL REGISTER]. A shareholder may choose 
to apply the paragraphs in the preceding sentence for any open taxable 
year beginning before [DATE OF FILING OF FINAL RULE IN THE FEDERAL 
REGISTER] without regard to whether the rules of this section are 
applied consistently, provided that once applied, each rule must be 
applied for each subsequent taxable year beginning before [DATE OF 
FILING OF FINAL RULE IN THE Federal Register].

Sunita Lough,
Deputy Commissioner for Services and Enforcement.
[FR Doc. 2020-27003 Filed 1-14-21; 8:45 am]
BILLING CODE 4830-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>