In 77-316, the IRS outlines three common captive insurance scenarios:
During the taxable year domestic corporation X and its domestic subsidiaries entered into a contract for fire and other casualty insurance with S1 , a newly organized wholly owned foreign "insurance" subsidiary of X. S1 was organized to insure properties and other casualty risks of X and its domestic subsidiaries. X and its domestic subsidiaries paid amounts as casualty insurance premiums directly to S1 . Such amounts reflect commercial rates for the insurance involved. S1 has not accepted risks from parties other than X and its domestic subsidiaries.Situation 2The facts are the same as set forth in Situation 1 except that domestic corporation Y and its domestic subsidiaries paid amounts as casualty insurance premiums to M, an unrelated domestic insurance company. This insurance was placed with M under a contractual arrangement that provided that M would immediately transfer 95 percent of the risks under reinsurance agreements to S2 , the wholly owned foreign "insurance" subsidiary of Y. However, the contractual arrangement for reinsurance did not relieve M of its liability as the primary insurer of Y and its domestic subsidiaries; nor was there any collateral agreement between M and Y, or any of Y's subsidiaries, to reimburse M in the event that S2 could not meet its reinsurance obligations.Situation 3The facts are the same as set forth in Situation 1 except that domestic corporation Z and its domestic subsidiaries paid amounts as casualty insurance premiums directly to Z's wholly-owned foreign "insurance" subsidiary, S3 . Contemporaneous with the acceptance of this insurance risk, and pursuant to a contractual obligation to Z and its domestic subsidiaries, S3 transferred 90 percent of the risk through reinsurance agreements to an unrelated insurance company, W.
Situation 1 is a standard captive arrangement; the parent forms a captive and then insures various risks through the captive. Situation 2 involves a standard reinsurance arrangement, where the parent insures risks through an insurance company who then reinsures a percentage of the risk with the parent's captive. This is usually done to obtain access to the credit rating of the third party insurer and is referred to as a fronting arrangement. In situation 3, the parent's captive transfers a certain percentage of the risk outside the captive to a third party.
The service explained its reasoning thusly:
Under the three situations described, there is no economic shifting or distributing of risks of loss with respect to the risks carried or retained by the wholly owned foreign subsidiaries, S1 , S2 , and S3, respectively. In each situation described, the insuring parent corporation and its domestic subsidiaries, and the wholly owned "insurance" subsidiary, though separate corporate entities, represent one economic family with the result that those who bear the ultimate economic burden of loss are the same persons who suffer the loss. To the extent that the risks of loss are not retained in their entirety by (as in Situation 2) or reinsured with (as in Situation 3) insurance companies that are unrelated to the economic family of insureds, there is no risk-shifting or riskdistributing, and no insurance, the premiums for which are deductible under section 162 of the Code.
Notice the lack of solid legal analysis explaining the service's reasoning; they simply state the corporate group is an economic family and essentially leave it at that. There are no cases cited, no doctrines quoted, no theories proffered. They simply put forward an idea.
The internal memorandums which develop this legal theory offer no substantive guidance. General Council Memorandum 35340 develops the legal reasoning for the first fact situation. Regarding the fact situation, it concludes:
Inasmuch as S does not underwrite any substantial risks from outside the affiliated group, the requisite shifting and distribution of insurance risk is absent. Accordingly, the amounts paid by P and its affiliates to S do not constitute premiums for insurance deductible under Int. Rev. Code of 1954, § 162 [hereinafter cited as Code].The service bases their arguments on two points. First,
In Rev. Rul. 60-275, 1960-2 C.B. 43, taxpayer, a common carrier, leased facilities bounded by a river which exposed the property to potential flood damages. The taxpayer entered into a reciprocal flood insurance exchange agreement with other subscribers wherein each paid an annual premium deposit. The funds were paid into reserves for the payment of losses.Remember -- this is the legal basis for the service's objection to the insurance arrangement in the flood plane cases -- an analysis already rejected by at least one court. However, the above fact pattern quoted is situation 1 is different from at least one of the flood plane cases which insured risks of a group of insureds rather than the risk of a single insured (see here and here for further discussion). But the memo does not make a distinction between single parent and group; instead it attempts to apply itself to all captive insurance situation, making it that much less potent.
The agreement provided that each subscriber's risks would be divided into classes according to the nature of its business, flood hazard, location, and flood district. The ruling stated that inasmuch as the classification of taxpayer with other subscribers will be limited to specific groups within the same flood district each facing the same flood hazards that there is no real staring and distribution of insurance risks. In the event of flood damage to any of the subscribers in that group, there is a strong likelihood that all subscribers would be similarly affected. Therefore, any proceeds would merely be a return of subscriber's premium deposit. The ruling thus concluded that in the absence of the essential risk-sharing element, the premium deposits were not deductible as insurance premiums in accordance with Code § 162(a).2
The service's second argument borders on anti-avoidance:
Although we agree with the rationale and the conclusion of the proposed revenue ruling, we recognize that the road to favorable judicial resolution is pervaded by the concept of separate corporate identity. Only in exceptional circumstances are the courts willing to disregard the corporate entity. New Colonial Company v. Helvering, 292 U.S. 435, 442 (1934). To successfully defeat corporate identity, it must be shown that the corporation was formed solely for tax purposes and has no substantive business activity, Moline Properties v. Commissioner, 319 U.S. 436 (1943), or that it is a mere skeleton, Perry R. Bass, 50 T.C. 595, 600 (1968). When the corporation is sufficiently capitalized and maintains the indicia of business operations, its corporate identity is rarely denied. Compare, Lloyd F. Noonan, 52 T.C. 907 (1969), aff'd per curiam 28 A.F.T.R.2d ¶71-6042 (9th Cir. 1971) with Perry R. Bass, 50 T.C. 595 (1968). In the instant case, to consider the affiliated group in the aggregate for the purpose of determining the lack of a substantial shift of risk, it may be argued that the separate corporate identity of each member of the group is improperly ignored.4
However, we are of the view that the concept of independent corporate identity is not being challenged by the rationale here espoused. We do not propose to ignore any taxpayer's separate identity . Rather, the proposed ruling examines the transaction for its economic reality. The payments here are simply not being made for insurance. The arrangement is basically designed to obtain a deduction by indirect means which would be denied if sought directly.
When a tax lawyer sees the phrase "economic reality" we immediately think, "substance over form" or "anti-avoidance." This is a judicial doctrine which allows the courts to recast a transaction if its form diverges from its substance. By this time in the development of anti-avoidance law, the doctrine had morphed into the sham transaction doctrine, which was the predecessor to the now codified economic family doctrine. Regardless of the terms used, the memorandum offers no further analysis; it simply uses the key phrase and stops This greatly weakens the IRS argument in this practitioner's opinion.
GCM 35629 developed the services reasoning for situation 2 from 77-316. However, the reasoning is just as weak. The service states:
Under the facts of the instant case, *** sought to authenticate its so-called insurance premium payment by introducing an independent insurer between it and its subsidiaries and *** The substance of the transaction, however, was that *** insured only *** percent of the risk involved and was contemporaneously guaranteed reinsurance at specified rates with *** The whole transaction then was carefully orchestrated to produce a single result-eventual placement of the insurance with *** The economic reality in this case is no different from that found to exist in *** there is no economic shift or distribution of *** percent of the risk ‘insured’.
Note that the IRS is making sweeping legal conclusions regarding the transaction. It's highly likely that this is a fronting arrangement -- a common occurrence in the insurance world as explained above. Yet the service is assuming a fraudulent intent without any analysis or presentation of the facts by the taxpayer.
GCM 37040 outlines the services argument to situation 3 from Revenue Ruling 77-316
Thus, in the *** case, the captive, through reinsurance agreements with unrelated insurance companies, shifts and distributes the risk of loss outside the corporate family thereby providing insurance under the LeGierse standard. Likewise, because the reinsuring insurance companies are unrelated to the corporate family of insureds, the premiums allocable to the reinsurance are not under the control of or withdrawable by any of the insureds, and are therefore ‘paid or incurred’ within the meaning of Code § 162. See Rev. Rul. 60-275, 1960-2 C.B. 43; and Rev. Rul. 69-512, 1969-2 C.B. 24. Accordingly, we agree with your conclusion, both in the March 16th memorandum and in the proposed revenue ruling, that under an *** type of captive insurance arrangement, the domestic parent and its subsidiaries should be allowed to deduct premiums paid to the captive to the extent that the premiums are used to transfer the risk through reinsurance to unrelated insurance companies.
In G.C.M. 35340, ***, I-4712 (May 15, 1973), we considered a typical captive insurance arrangement and concluded that, to the extent the risk of loss is assumed by the captive and not distributed or spread outside the corporate economic family of the parent and its subsidiaries, the contracts made with the captive do not provide for insurance and the premiums paid therefor are not deductible under Code § 162. The conclusion that the typical captive, considered in G.C.M. 35340, does not provide insurance is based on a consideration of the fundamental characteristics of insurance, that is, ‘risk-shifting’ and ‘risk-distributing’. Helvering v. LeGierse, 312 U.S. 531 (1941). In a captive insurance arrangement, the various members of the corporate family involved wish to ‘insure’ against future risk of loss by making payments to the captive. The flaw in the plan, rendering the benefits not insurance and the premium payments not deductible under Code § 162, lies in the fact that the so-called policyholders are limited to one economic family, which lacks the risk-shifting and risk-distributing required for insurance. However, to the extent that the captive does provide the requisite shifting and distributing of risk outside the corporate economic family, the captive does provide insurance for the family members. The facts in the *** case as set forth in the March 16th memorandum present a new variation in captive insurance arrangements. Under the *** arrangement, the captive, which was organized to insure the risks of its domestic parent and the parent's subsidiaries, cedes or transfers 90 percent of the corporate family's risk of loss to unrelated insurance companies through reinsurance agreements.
Accordingly, we agree with your conclusion, both in the March 16th memorandum and in the proposed revenue ruling, that under an *** type of captive insurance arrangement, the domestic parent and its subsidiaries should be allowed to deduct premiums paid to the captive to the extent that the premiums are used to transfer the risk through reinsurance to unrelated insurance companies.
Note the IRS' use of the phrase "withdrawable by the insured." The insureds immediate access to the captive funds is still a prime concern for the service, as it makes the captive look like a reserve fund rather than an insurance company. In situation 3, it's the captive shifting of funds outside the family group -- and therefore outside the control of the parent -- that makes that portion of the insurance premium legitimate. Any fund which can be immediately accessed by the parent company is therefore not a legitimate insurance premium.
Several conclusions emerge when looking at the IRS' reasoning for challenging captives. First, they are on legally shaky ground. They are challenging an intra-company transfer -- which the courts will almost always honor as the doctrine of separate corporations is firmly entrenched in US law. Secondly, they are hinting at making an anti-avoidance argument, yet never fully developing same. Third, they are partially relying on legal theory which was already rejected by a court in one of the flood plane cases.
However, their primary concern is still readily apparent: the ability of the insured to immediately access funds and use them for a non-insurance purpose. This is an important point to remember going forward, and even has strong implications for those creating captives currently.