US-based NRIs investing in Indian mutual funds and stocks must comply with PFIC and FBAR rules or risk severe IRS penalties. This guide breaks down the reporting requirements for FinCEN Form 114 (FBAR) and Form 8621 (PFIC), helping NRIs avoid excessive taxation.

Disclaimer: This article is for information purposes only and is not a substitute for professional tax advice. Consulting a qualified professional is essential to navigate the complexities of FBAR, PFIC, and US tax obligations for NRIs with foreign investments.

This article is a part of our detailed article series on the concept of the PFIC taxation rule applicable to US NRIs. Ensure you have read the other parts here: Show/Hide

📚 Table of Contents

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• Who do the FBAR and PFIC rules apply to?
• FBAR reporting
• Difference between FATCA (Form 8938) and PFIC declarations (Form 8621)
• PFIC reporting rules
• How much tax is to be paid under the PFIC rule by NRIs?
  • Excessive Distribution (Section 1291 Fund)
  • Qualified Electing Fund (QEF)
  • Mark to Market (MTM)
• What to do if you have missed the FBAR and Form 8621 reporting?
  • No Form 8621 filed but declared distributions like dividends
  • No Form 8621 and did not declare distributions like dividends

Who do the FBAR and PFIC rules apply to?

Very few people, including qualified US CPAs, know about these rules. They will tell you a variation of:

• “Oh, it is not applicable to you”
• “This is the first time I am hearing about PFIC”

You can get more details on the PFIC definition as well as a get a list of PFIC eligible/in-eligible investments here: Should US-based NRIs sell off their mutual funds and stocks in India?

Warning: Taxes paid under PFIC are not refunded if you leave the US and come back to India. This rule will lead to severely lower returns on Indian mutual funds (and other PFIC eligible investments) in case you have paid the tax already.

FBAR reporting

As a US taxpayer, you’re required to report foreign financial accounts if the aggregate value exceeds $10,000 at any time during the calendar year. This includes bank accounts, mutual funds, and other financial assets held outside the US.

You should file FinCEN Form 114 (FBAR) electronically through the Financial Crimes Enforcement Network’s BSA E-Filing System. The deadline for FBAR filing is April 15th (with an automatic extension until October 15th upon request).

Failure to file FBAR can result in significant penalties, so it’s crucial to disclose all relevant foreign accounts. FBAR filing is required separately but impacts overall tax compliance, and failure to file can lead to civil and criminal penalties. Also, as per the IRS website:

Under FATCA, certain U.S. taxpayers holding financial assets outside the United States must report those assets to the IRS on Form 8938, Statement of Specified Foreign Financial Assets.

Difference between FATCA (Form 8938) and PFIC declarations (Form 8621)

• Form 8938 (FATCA) captures your details foreign assets from an US tax perspective like mutual funds, stocks, bank accounts, company ownership, private shareholding and other assets
• Form 8621 (PFIC) captures your PFIC investment details for PFIC-eligible securities like most non-US mutual funds, ETFs and other assets that are PFIC-eligible

Both forms have to be filled with your income tax return.

PFIC reporting rules

PFIC reporting on Form 8621 is required regardless of threshold, but Form 8938 (FATCA) has a $50,000 threshold for single filers (double the amount when filing jointly). Therefore, NRIs should check the latest value of this exemption while filing tax returns using Form 8621. Form 8621 has to be filed yearly along with your normal tax return.

In this section, we have specifically mentioned mutual funds but the rules apply to all PFIC-eligible investments.

Under PFIC, you need to fill Form 8621 per mutual fund (or any other PFIC-eligible investment):

• One form per MF (if you have 20 funds/ETFs, then you need 20 Form 8621s unless there are exceptions)
• Filing is mandatory just by holding the investment. Whether you bought/sold/did nothing is not relevant here unless you are below the $25,000 (single-filing threshold for all PFICs) and there is no excess distribution
• Missed PFIC filings has the potential of reopening for audit any of your past income tax returns
• Filing multiple 8621 (one per eligible investment) can be expensive due to the lack of support in most tax-filing software and therefore dependency on manual CPA-assisted filing

How much tax is to be paid under the PFIC rule by NRIs?

Under PFIC there are three ways of paying tax on capital gains which the investor must choose:

Excessive Distribution (Section 1291 Fund)

This option taxes you both on gains and also applies penalties/interest on taxes not paid under PFIC in the earlier years and is the default option. Here is a numerical example:

For a non-PFIC investment qualifying as long-term capital gains (20% tax, say), then the tax would have been

$15,000 x 20% = $3,000

without any interest.

With PFIC, the tax (with interest/penalties) is $6,216 or 41%.

Qualified Electing Fund (QEF)

The investor’s share in the capital gains earned inside the fund (the AMC should ideally have this data and need to provide it in the IRS-designated format) will be treated as capital gains (taxed at favourable rates vs. normal income tax rates) every year. This option taxes unrealised gains and falls under IRS Section 1295 reporting.

Indian mutual funds are not QEF-eligible since Indian AMCs do not provide this information.

Mark to Market (MTM)

Gains in mutual funds (closing value minus adjusted basis) over the calendar year, which you can get from your MF statement, are added to your income and taxed at the marginal (highest applicable slab) rate. This option taxes unrealised gains just like QEF before it but is taxed at slab rates. There is an offset available against gains in the previous years in case of a loss this year.

DTAA (double tax avoidance) also comes into play here so you do not pay tax twice in both India and the US. If you have already paid 0-10% tax as capital gains in India, you pay the remaining amount in the US in case you are in a higher capital gains tax bracket.

If you have recently moved to the US and are planning to choose MTM election, then the fund NAV on 1st Jan 2025 will be the adjusted basis and NAV on 31st Dec 2025 will be the closing value.

Unfortunately, the Indian situation makes things complicated. MTM-election is allowed only for PFICs trading on IRS-recognised stock exchanges which do not include India’s BSE/NSE. Therefore MTM-election is not practical for Indian mutual funds and ETFs (though they trade on an exchange but not on an IRS-recognised one).

To understand how to deal with PFIC investments in your portfolio:

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What to do if you have missed the FBAR and Form 8621 reporting?

The US IRS and Indian income tax authorities have data-sharing agreements in place. A key part of this agreement is the FATCA declaration which is a part of KYC in India as well as your correspondence address in your NRE/NRO account. NRIs cannot hold ordinary savings accounts in India since that is a Foreign Exchange Management Act (FEMA) violation. There is no way to hide your PFIC investments from the IRS.

If you have not yet declared PFIC, then you fall under the Section 1291 Fund (Excessive Distribution) category by default.

Failure to file Form 8621 does not trigger a specific IRS penalty, but can lead to audit risks and incorrect tax filings.

For example, if you have a mutual fund exposure in India worth $50,000 in 2020 and that fund doubles to $100,000 in 2025 then there is $50,000 capital gains in 5 years. This gain amount is divided equally ($50,000/5) over the 5 years and then taxed at the highest tax rate applicable to the investor for that year plus the 0.5%/month penalty. An additional interest is also charged for the delayed payment of tax, under Section 6621, in this period at the rate of federal short-term rate plus 3% compounded daily.

This “excessive” tax amount can be avoided if the PFIC investment has paid at least 125% of the average distribution (dividend, bonus shares etc) of the last 3 years:

Excess Distribution = Total Current Year Distributions - (1.25 x Average of Three Prior Years Distributions)

If you get 5% dividends from your Indian mutual funds, which is unlikely since most investors invest in Growth and not IDCW plans) and this dividend is increasing, then the excess distribution clause may get triggered which avoids the punitive tax.

The above table shows the taxation for an investor with $1,000/year of capital gains. The investor has a marginal personal tax rate of 37%.

If we calculate the cumulative tax due on the investor, as a percentage of the total PFIC-eligible gains, we get

Please note that this tax % amount is on the total PFIC gain. For the $50,000 gain example above, the tax with penalty and interest will be 67%.

Investors who have not filled Form 8621 fall under two categories:

No Form 8621 filed but declared distributions like dividends

Here you declare that previous years’ capital gains come under excess distribution and current year onwards MTM rule applies. For this method to work, you actually need your mutual funds to pay out dividends. This solution does not work for Indian funds for the reasons mentioned before.

No Form 8621 and did not declare distributions like dividends

You can amend previous years’ returns for undeclared distributions and then proceed with Excess Distribution. This method works better if the undeclared asset size is not very big.

In all of these options, you will still need to pay the required tax. Some options may or may not avoid penalties.