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Section 1293

Demystifying Section 1293: Mark-to-Market Elections for PFICs and Tax Implications (2024 Update)

US taxpayers who hold shares in Passive Foreign Investment Companies (PFICs) under section 1293 of the Internal Revenue Code (IRC) might face intricacies and difficulties in devising an efficient Tax strategy. Particularly, the mark-to-market election is considerably a challenging subject to deal with. This blog will elaborate on the intricacies of Section 1293 as per the latest 20214 US tax laws and assess its impact on PFIC tax liabilities.

What are PFICs?

Foreign corporations that generate income from assets rather than active business operations are called PFICs. Their primary objective is to invest passively. The US tax code emphasised stern rules on PFIC investments to prevent deferral tax strategies. 

Understanding Section 1293

The US tax code section 1293 gives an option to US shareholders of PFIC to elect for mark-to-market taxation. Under this election, it is to be assumed that PFIC stock is sold on the first day of each year just to identify its fair market value (FMV). Let’s have a breakdown of the election’s propositions and implications:

  1. Inclusion: The shareholders are taxed annually on unrealized capital gains, irrespective of the dividends received. Such gain will be taxed as ordinary income and probably at higher rates than capital gains or excess or surplus distribution, depending upon the PFIC’s character of income.
  2. Deferral: This election may defer the taxation on any real appreciation unless the stock is eventually sold.

Benefits and Drawbacks of the Mark-to-Market Election:

The mark-to-market offers both benefits and drawbacks, which are discussed below:


  1. Predictability: It lets the individuals predict the tax liabilities by including unrealized gains annually, prospectively avoiding a large tax burden when the stock is eventually sold.
  2. Offsetting Losses: If the value of PFIC falls, it enables the unrealized gain to offset the ordinary income, eventually reducing the overall tax bill.


  1. Ordinary Income Taxation: The unrealized gains are subject to taxes as ordinary income, which can be higher than capital gains rates, particularly for high-income earners.
  2. Cashflow Challenges: There is a possibility that taxes on unrealized gains may disturb the cashflow stream in case the shareholders do not receive dividends to cover the tax liability.
  3. Loss Disallowance: Unrealized losses on the PFIC stock are normally not recognized and recorded for tax purposes as per mark-to-market election.

Key Considerations Before Making the Election

The following are the factors that need to be focused on with additional care in deciding a mark-to-market election:

  1. Investment Horizon: If you plan to keep or hold the PFIC stock for a long period, there is a probability that the election may give you an advantage in spreading out tax liabilities.
  2. PFIC’s Track Record: The ordinary income tax on unrealized gains could compensate and outweigh the potential future capital gains benefits if the PFIC has a history of reliable appreciation.
  3. Cashflow: You should be well assured that cashflow will be adequate and sufficient to cover the tax liability on unrealized gains if you choose to make the election.


Section 1293’s mark-to-market election proposed and suggested a composed and complex strategy for PFIC shareholders. It provides an option to have predictable benefits, but at the same time, it brings a risk of increased income taxation and cash flow challenges. Hence, it is advisable to carefully assess the investment objectives, PFIC’s performance, and personal capability before planning to adopt this election. 

In addition, it is to be remembered that you must consider getting in touch with a tax consultancy like in case of technical complexities and navigating the intricacies of PFIC taxation.

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