Risk-shifting for tax purposes means that the risk of loss has truly passed from the insured to the insurance company. This has two elements:
Each of these elements will be explored in turn.
For a valid insurance contract to exist, it is important that the risk being insured is clearly defined. If the coverage is vague, it creates the negative impression that the coverage is discretionary, i.e., the insurance company has the discretion to deny or allow the claim.
One of the biggest benefits of captive insurance is the ability to captive owners to draft their own policies so as to cover, or not cover, risks that are included or excluded in the insurance policies of commercial carriers. However, extreme caution must be advised in policy drafting, so that it is clear what risks are covered and what are not. In IRS challenges against captives, it is a frequent argument that the coverage is so amorphous that it is impossible to discern if something is covered or not, thus giving the captive owner the discretion whether or not to pay claims -- this does not qualify as an "insurance contact" for tax purposes. This is frequently seen in so-called "business interruption" policies, which sometimes are tightly drafted, but too often are so wide-open in their terms as to potentially cover anything (or not).
Suffice it to say that loosely-drafted policies also make the defense of premium amounts and reserves much more difficult. Commercial carriers very tightly draft their policies for good reason: They need to know exactly what their exposure is so that they can properly calculate premiums and reserves. Captives should be held to no lesser standard.
Whether the captive has "skin in the game" goes to the capitalization of the captive. The captive must be adequately capitalized so that it can actually pay the claim that it has insured, with more than simply the premiums that it has received from the insured.
A sketchy (but useful) "rule of thumb" has developed within the captive industry that capital should not be less than the following:
In the first year, this ratio is reflective of the fact that even if some losses occurred in the first year, not all are likely to fully materialize into a payable liability until the captive's second year, because of the ordinary delay in processing claims.
In subsequent years, the captive is able to use the underwriting profits from the first year as additional reserves and surplus such that additional capital is usually (but not aways) not needed.
The IRS has frequently challenged captives, particularly small captives, as being inadequately capitalized. These challenges have often focused upon offshore captives, since some offshore jurisdictions have minimal capital requirements -- some as low as $10,000 regardless of the amount of insurance risk the captive is taking on. However, local regulatory requirements have little if any bearing upon whether a captive is adequately capitalized for tax purposes, i.e., the U.S. Tax Court is unlikely to be impressed if a captive has a premium-to-capital ratio of 20:1 just because some offshore jurisdiction allows that.
2019.12.31 ... The Next Generation Captive Insurance Tax Shelter Explained
2019.12.05 ... Bitter Coffee: Starbucks Squabbles With The Washington Insurance Commissioner Over $633 Million Paid To Its Captive Insurance Company
2019.11.17 ... IRS Suggests Criminal Referrals To Be Made In Abusive 831(b) Captive Tax Shelter Cases
2019.09.28 ... Johnson & Johnson Wins Appeal On $60 Million Tax Case To New Jersey For Captive Insurance Company
2019.09.26 ... Understanding The IRS Settlement Initiative Offer For Targeted 831(b) Captive Insurance Companies
2019.09.16 ... IRS Announces Global Settlement Of Abusive 831(b) Captive Insurance Tax Shelters
2019.08.08 ... Artex Defeats Attempt To Form Class Action And Forces Individual Arbitration Of Captive Disputes
2019.07.04 ... Second Class Action Against A Risk-Pooled 831(b) Captive Promoter Roils Sector
2019.05.28 ... New York Denies Stewart's Shops Deduction For Premiums Paid To Its Captive Insurance Company
U.S. Tax Considerations For Captive Arrangements
§ 831(b) Captives
Expert ... Expert witness and available for consultation as an expert regarding captive insurance company matters
Evaluation & Formation ... Jay has been involved with the formation of well over 100 captive insurance companies since 1998, and now assist prospective captive owners in evaluating their suitability for a captive, and in forming the captive and obtaining its insurance license
Litigation ... Frequently serves as counsel in disputes involving insurance companies
Remediation & Closing ... Remediation and termination of defective captive arrangements, and consulting and second-opinion reviews of existing captives
MORE INFORMATIONAL WEBSITES BY JAY ADKISSON
Adkisson's Captive Insurance Companies (2006) available at Amazon.com
Contact Jay at by e-mail to jay [at] jayad.com or to 702-953-9617
© 2020 Jay D. Adkisson. All Rights Reserved. No claim to original government works. The information contained in this website is for general educational purposes only, does not constitute any legal advice or opinion, and should not be relied upon in relation to particular cases. Use this information at your own peril; it is no substitute for the legal advice or opinion of an attorney licensed to practice law in the appropriate jurisdiction. Other. This site is https://captiveinsurancecompanies.com