Tax Taxation Captive Insurance

Captive Insurance Taxation Generally

 

It will likely surprise many readers who are unfamiliar with captive insurance companies to learn that many captives do not seek to be treated as insurance companies for tax purposes. Many captives simply perform a pure insurance function within a given tax year, because they are insuring risks that are immediately resolved and paid within that year, and there is little necessity for the captive to carry over reserves into future years.

Yet, just as many, if not more, captive insurance companies are a fundamentally a product of tax -- not insurance -- law. The reason is that the U.S. Tax Code does not allow a business to internally take a current-year deduction for setting aside funds against current risks that might not fully mature into payable claims until future years. That same business, however, might be able to accomplish that needed result through the artifice of a captive. Which is to say that Congress could easily eliminate all captives that have qualified as insurance companies for tax purposes by simply allowing businesses to internally reserve against these claims. That Congress has not done so speaks volumes for the importance of captive insurance for businesses, in terms of their managing risks and acquiring insurance more efficiently by direct access to the reinsurance markets, thus eliminating the "middleman" commercial carriers.

From the inception of captive insurance companies taxed as insurance companies, the IRS waged a long battle against the very concept of captives, arguing what was then known as the "Economic Family Theory", which was to the effect that the captive arrangement simply allowed a business organization to shift money from one pocket to another pocket, generating a tax deduction to the business organization in the process, while ultimately not changing the economic position of shareholders. After the IRS lost its landmark case involving the United Parcel Service's captive, however, the IRS in 2001 (in Rev.Ruling 2001-31 which is reprinted in full below) finally abandoned its Economic Family Theory and conceded that certain tightly-defined captive arrangements could be proper, i.e., the captive could be an insurance company for tax purposes, and appropriate premium payments made to the captive could be deducted by the insured businesses. This ruling opened the floodgates for captives, and they quickly (within a decade) took over the corporate world, and began tricking down in their use to smaller, privately-held businesses.

This section looks at tax law generally as it applies to captives.

 

Revenue Ruling 2001-31, 2001-26 I.R.B. 1348 (6/25/2001)

Amplified by Rev. Rul. 2002-89

Amplified by Rev. Rul. 2002-90

Section 162 - Trade or Business Expenses

26 CFR 1.162-1: Business Expenses

(Also sections 118, 165, 301, 801, 831; 1.118-1, 1.165-1, 1.301-1)

This ruling explains that the Service will no longer raise the "economic family theory" set forth in Rev. Rul. 77-316 (1977-2 C.B. 53), in addressing whether captive insurance transactions constitute valid insurance. Rather, the Service will address captive insurance transactions on a case-by-case basis.

Rev. Rul. 2001-31

Recent abuses of IRC § 501(c)(15) companies have compelled the IRS to issue multiple Revenue Rulings, Procedures, Notices and Bulletins addressing various issues associated with the use of closely-held insurance companies. In addition, the IRS is closely scrutinizing companies organized pursuant to IRC § 501(c)(15). Recently issued IRS publications include:

In Rev. Rul. 77-316, 1977-2 C.B. 53, three situations were presented in which a taxpayer attempted to seek insurance coverage for itself and its operating subsidiaries through the taxpayer's wholly-owned captive insurance subsidiary. The ruling explained that the taxpayer, its non-insurance subsidiaries, and its captive insurance subsidiary represented one "economic family" for purposes of analyzing whether transactions involved sufficient risk shifting and risk distribution to constitute insurance for federal income tax purposes. See Helvering v. Le Gierse, 312 U.S. 531 (1941). The ruling concluded that the transactions were not insurance to the extent that risk was retained within that economic family. Therefore, the premiums paid by the taxpayer and its non-insurance subsidiaries to the captive insurer were not deductible..

No court, in addressing a captive insurance transaction, has fully accepted the economic family theory set forth in Rev. Rul. 77-316. See, e.g., Humana, Inc. v. Commissioner, 881 F.2d 247 (6th Cir. 1989); Clougherty Packing Co. v. Commissioner, 811 F.2d 1297 (9th Cir. 1987) (employing a balance sheet test, rather than the economic family theory, to conclude that transaction between parent and subsidiary was not insurance); Kidde Industries, Inc. v. United States, 40 Fed. Cl. 42 (1997). Accordingly, the Internal Revenue Service will no longer invoke the economic family theory with respect to captive insurance transactions.

The Service may, however, continue to challenge certain captive insurance transactions based on the facts and circumstances of each case. See, e.g., Malone & Hyde v. Commissioner, 62 F.3d 835 (6th Cir. 1995) (concluding that brother-sister transactions were not insurance because the taxpayer guaranteed the captive's performance and the captive was thinly capitalized and loosely regulated); Clougherty Packing Co. v. Commissioner (concluding that a transaction between parent and subsidiary was not insurance).

EFFECT ON OTHER DOCUMENTS

Rev. Rul. 77-316, 1977-2 C.B. 53; Rev. Rul. 78-277, 1978-2 C.B. 268; Rev. Rul. 88-72, 1988-2 C.B. 31; and Rev. Rul. 89-61, 1989-1 C.B. 75, are obsoleted.

Rev. Rul. 78-338, 1978-2 C.B. 107; Rev. Rul. 80-120, 1980-1 C.B. 41; Rev. Rul. 92-93, 1992-2 C.B. 45; and Rev. Proc. 2000-3, 2000-1 I.R.B. 103, are modified.

DRAFTING INFORMATION

The principal author of this revenue ruling is Robert A. Martin of the Office of Associate Chief Counsel (Financial Institutions & Products). For further information regarding this revenue ruling, contact Mr. Martin at (202) 622-3970 (not a toll-free call).

 

Foreign Insurance Excise Tax - Audit Technique Guide, April 2008

NOTE: This document is not an official pronouncement of the law or the position of the Service and can not be used, cited, or relied upon as such. This guide is current through the publication date. Since changes may have occurred after the publication date that would affect the accuracy of this document, no guarantees are made concerning the technical accuracy after the publication date.

Chapter 6 - Captive Insurance Companies

Introduction

In recent years, the use of captives, both domestic and foreign, has increased dramatically. This is due in part to the global economy. It is also due to corporations structuring transactions to utilize more favorable tax rates and capitalization requirements. Use of captives opens numerous issues which have ramifications not only for excise taxes, but for income taxes as well.

Captive Defined

A captive insurance company is generally defined as a wholly owned insurance subsidiary. The purpose of a captive insurance company is to insure the risks of the parent and affiliated entities. Captives can either be formed as a domestic captive within the United States, or as a foreign captive in another country. When 100% of the insurance risk accepted by the captive is the risk of the parent entity the captive is called a ‘pure’ captive. Pure captives may not be treated as true insurance companies for purposes of income and excise taxes.

A captive can insure the risks of other entities within the affiliated group (i.e. brother/sister risks) and the risks of unrelated outside third parties. Once brother/sister risks and especially unrelated third party risks are accepted by the insurance subsidiary, there becomes a point where the insurance subsidiary can no longer be called a pure captive. At that point, depending upon the facts and circumstances of the case, namely the percentage of premiums received by the captive from affiliated entities and third party entities, the captive may not be treated as a true insurance company.

Reasons for Captives

The question is often asked why a corporation would go through the start-up costs and the capitalization expense to establish a captive insurance company. The answer depends upon the strategy of the parent corporation, which may include any of the following:

• The parent may wish to reduce the amount of money paid for insurance premiums. By establishing a captive, the parent has control over the amount of premiums paid as the captive will establish its own premium rates.
• The parent retains the profits made on insuring within its corporate structure instead of paying the premiums and the underlying profits to an unrelated third party.
• The parent may want to reduce the amount of risk retained in the affiliated group. By establishing a captive insurance company and acquiring its insurance through the captive, the parent can control the number of outside third party insureds and thereby control the amount of risk involved with its insurance needs.
• Establishment of a foreign captive can be used to funnel income to a country with no or a lower income tax rate than the tax rate in the United States. This offers a substantial savings on income tax expense.
• A domestic captive can be established to reduce the percentage of foreign insurance excise tax paid on premiums paid to foreign insurers or reinsurers.

Captive Issues in General

The main issue for captives is whether the captive insurance entity is a valid insurance entity. This determination must be coordinated closely with the income and/or international agents assigned to the case. The determination has an effect on the income tax expense deduction for the insurance premiums expense paid from the parent and/or related entities to the captive.

 

2020.12.31 ... U.S. District Judge Denies Blanket Assertion Of Attorney-Client Privilege In Moore Ingram Microcaptive Promoter Audit Case

2020.10.22 ... IRS Announces A Second Settlement Initiative For Abusive Microcaptive Tax Shelters But With Much Stricter Compliance Requirements Requiring Independent Counsel

2020.10.02 ... IRS Warns Microcaptive Shelter Penalties To Get Much Worse, Taking On The Puerto Rico Deal And Other Next-Generative Captive Shelters

2020.09.23 ... U.S. Tax Court Affirms Most Penalties In Patel Microcaptive Shelter Case But Kicks Out Some For IRS Procedural Errors

2020.09.12 ... Microcaptive Manager Artex And Related Professionals Dodge The Class Action Bullet In Shivkov

2020.09.10 ... GAO Report To Grassley At Senate Finance Slams Offshore Microcaptive And Variable Life Insurance Transactions

2020.08.24 ... Buyers Of Jade Risk Get Taken To Woodshed In Litigation Arising From Merger Of Captive Insurance Managers

2020.08.08 ... IRS Sends Second Wave Of Soft Letter Warnings To Certain Captive Owners For A busive Microcaptive Transactions

2020.07.27 ... Microcaptive Tax Shelter Promoter Investigation Of Moore Ingram Law Firm Leads To Attorney-Client Privilege Issues With Client Documents

2020.07.22 ... U.S. Tax Court Approves Penalties For Microcaptive Transaction In Oropeza

2020.06.24 ... The U.S. Department Of Justice Files Suit To Enforce An IRS Summons Against The Delaware Department Of Insurance For Artex Transactions

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More articles

 

General Resources

• Articles On Captives ... An archive of articles by Jay Adkisson on captive insurance companies
• Captive Insurance Litigation Issues ... Procedural and similar court issues involving captive insurance company arrangements that are in litigation.

 

State Regulation

• State Regulation Of Captives ... Issues related to the regulation and taxation of captives by the states

 

U.S. Tax Considerations For Captive Arrangements

• Captive Taxation Generally ... An overview of captive taxation, including the IRS's abandonment of its "Economic Family Theory"
• Protected Cell and Series Captives ... Considers the unique tax issues that involve protected cell companies (PCCs) and series business units (SBUs)
• Tax: Risk Distribution: Multiple Insureds ... Considers the IRS safe harbor for multiple insureds and risk distribution through many "points of insurance" generally
• Tax: Risk Distribution: Unrelated Insurance ... Describes the IRS "50% unrelated third-party insurance" safe harbor and related issues
• Tax: Risk Distribution: Risk Pools ... Introduces the concept of risk pools which are sometimes used by captive managers to assist their clients in obtaining 50% third-party insurance, and which are currently under heavy scrutiny by the IRS
• Tax: Risk Shifting ... Considers the tax law requirement that an insurance arrangement have a true shifting of risk between the insured and the insurer

 

§ 831(b) Captives

• 831(b) Captives Generally ... Discusses the unique characteristics and problems of captive insurance companies that qualify for the IRC section 831(b) election

• Class action lawsuits related to 831(b) risk-pooled captive tax shelters

 

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

 

 

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