§ 1296.
Election of mark to market for marketable stock
(a)
General rule
In the case of marketable stock in a passive foreign investment company which is owned (or treated under subsection (g) as owned) by a United States person at the close of any taxable year of such person, at the election of such person—
(1)
If the fair market value of such stock as of the close of such taxable year exceeds its adjusted basis, such United States person shall include in gross income for such taxable year an amount equal to the amount of such excess.
(2)
If the adjusted basis of such stock exceeds the fair market value of such stock as of the close of such taxable year, such United States person shall be allowed a deduction for such taxable year equal to the lesser of—
(A)
the amount of such excess, or
(B)
the unreversed inclusions with respect to such stock.
(b)
Basis adjustments
(1)
In general
The adjusted basis of stock in a passive foreign investment company—
(A)
shall be increased by the amount included in the gross income of the United States person under subsection (a)(1) with respect to such stock, and
(B)
shall be decreased by the amount allowed as a deduction to the United States person under subsection (a)(2) with respect to such stock.
(2)
Special rule for stock constructively owned
In the case of stock in a passive foreign investment company which the United States person is treated as owning under subsection (g)—
(A)
the adjustments under paragraph (1) shall apply to such stock in the hands of the person actually holding such stock but only for purposes of determining the subsequent treatment under this chapter of the United States person with respect to such stock, and
(B)
similar adjustments shall be made to the adjusted basis of the property by reason of which the United States person is treated as owning such stock.
(c)
Character and source rules
(1)
Ordinary treatment
(B)
Loss
Any—
(i)
amount allowed as a deduction under subsection (a)(2), and
(ii)
loss on the sale or other disposition of marketable stock in a passive foreign investment company (with respect to which an election under this section is in effect) to the extent that the amount of such loss does not exceed the unreversed inclusions with respect to such stock,
shall be treated as an ordinary loss. The amount so treated shall be treated as a deduction allowable in computing adjusted gross income.
(d)
Unreversed inclusions
For purposes of this section, the term “unreversed inclusions” means, with respect to any stock in a passive foreign investment company, the excess (if any) of—
(1)
the amount included in gross income of the taxpayer under subsection (a)(1) with respect to such stock for prior taxable years, over
(2)
the amount allowed as a deduction under subsection (a)(2) with respect to such stock for prior taxable years.
The amount referred to in paragraph (1) shall include any amount which would have been included in gross income under subsection (a)(1) with respect to such stock for any prior taxable year but for section 1291. In the case of a regulated investment company which elected to mark to market the stock held by such company as of the last day of the taxable year preceding such company’s first taxable year for which such company elects the application of this section, the amount referred to in paragraph (1) shall include amounts included in gross income under such mark to market with respect to such stock for prior taxable years.
(e)
Marketable stock
For purposes of this section—
(1)
In general
The term “marketable stock” means—
(A)
any stock which is regularly traded on—
(i)
a national securities exchange which is registered with the Securities and Exchange Commission or the national market system established pursuant to section 11A of the Securities and Exchange Act of 1934, or
(ii)
any exchange or other market which the Secretary determines has rules adequate to carry out the purposes of this part,
(B)
to the extent provided in regulations, stock in any foreign corporation which is comparable to a regulated investment company and which offers for sale or has outstanding any stock of which it is the issuer and which is redeemable at its net asset value, and
(C)
to the extent provided in regulations, any option on stock described in subparagraph (A) or (B).
(2)
Special rule for regulated investment companies
(f)
Treatment of controlled foreign corporations which are shareholders in passive foreign investment companies
In the case of a foreign corporation which is a controlled foreign corporation and which owns (or is treated under subsection (g) as owning) stock in a passive foreign investment company—
(1)
this section (other than subsection (c)(2)) shall apply to such foreign corporation in the same manner as if such corporation were a United States person, and
(2)
for purposes of subpart F of part III of subchapter N—
(A)
any amount included in gross income under subsection (a)(1) shall be treated as foreign personal holding company income described in section 954(c)(1)(A), and
(B)
any amount allowed as a deduction under subsection (a)(2) shall be treated as a deduction allocable to foreign personal holding company income so described.
(g)
Stock owned through certain foreign entities
Except as provided in regulations—
(2)
Treatment of certain dispositions
In any case in which a United States person is treated as owning stock in a passive foreign investment company by reason of paragraph (1)—
(A)
any disposition by the United States person or by any other person which results in the United States person being treated as no longer owning such stock, and
(B)
any disposition by the person owning such stock,
shall be treated as a disposition by the United States person of the stock in the passive foreign investment company.
(h)
Coordination with section 851(b)
(i)
Stock acquired from a decedent
(j)
Coordination with section 1291 for first year of election
(1)
Taxpayers other than regulated investment companies
(A)
In general
If the taxpayer elects the application of this section with respect to any marketable stock in a corporation after the beginning of the taxpayer’s holding period in such stock, and if the requirements of subparagraph (B) are not satisfied, section 1291 shall apply to—
(i)
any distributions with respect to, or disposition of, such stock in the first taxable year of the taxpayer for which such election is made, and
(ii)
any amount which, but for section 1291, would have been included in gross income under subsection (a) with respect to such stock for such taxable year in the same manner as if such amount were gain on the disposition of such stock.
(2)
Special rules for regulated investment companies
(A)
In general
If a regulated investment company elects the application of this section with respect to any marketable stock in a corporation after the beginning of the taxpayer’s holding period in such stock, then, with respect to such company’s first taxable year for which such company elects the application of this section with respect to such stock—
(i)
section 1291 shall not apply to such stock with respect to any distribution or disposition during, or amount included in gross income under this section for, such first taxable year, but
(ii)
such regulated investment company’s tax under this chapter for such first taxable year shall be increased by the aggregate amount of interest which would have been determined under section 1291(c)(3) if section 1291 were applied without regard to this subparagraph.
Clause (ii) shall not apply if for the preceding taxable year the company elected to mark to market the stock held by such company as of the last day of such preceding taxable year.
(B)
Disallowance of deduction
(k)
Election
This section shall apply to marketable stock in a passive foreign investment company which is held by a United States person only if such person elects to apply this section with respect to such stock. Such an election shall apply to the taxable year for which made and all subsequent taxable years unless—
(1)
such stock ceases to be marketable stock, or
(2)
the Secretary consents to the revocation of such election.
(l)
Transition rule for individuals becoming subject to United States tax
(Added [Pub. L. 105–34, title XI, § 1122(a)], Aug. 5, 1997, [111 Stat. 972]; amended [Pub. L. 105–206, title VI, § 6011(c)(3)], July 22, 1998, [112 Stat. 818]; [Pub. L. 107–16, title V, § 542(e)(5)(C)], June 7, 2001, [115 Stat. 85]; [Pub. L. 108–311, title IV, § 408(a)(19)], Oct. 4, 2004, [118 Stat. 1192]; [Pub. L. 111–312, title III, § 301(a)], Dec. 17, 2010, [124 Stat. 3300].)