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Captive Insurance Plans, Want to Get Audited?

The insurance industry have been conjuring ways to make life insurance premiums tax deductible. Over the years we have seen many schemes that have failed IRS scrutiny. Welfare benefit plans set up under I.R.C. section 419, 412(e) plans and Producer Owned Reinsurance Companies (PORCs) are all common examples.

When one scheme fails it isn’t long before a resourceful promoter comes up with a different product. Inevitably promoters find some lawyer or accountant to draft a favorable opinion letter and a new industry is born. In a few years, however, the IRS catches up and declares the arrangement to be a listed transaction and abusive tax shelter. As an expert witness I have never lost a case in this field. It is easy to beat the deep pockets of the insurance companies who provide product to these plans. Even though they have business owners sign fraudulent disclaimers saying that the owners will get their own tax advice. These disclaimers are then used when the inevitable happens, the IRS audits and the business owner sues the insurance company.
The latest entries seeking to find a way to make life insurance premiums deductible is a small business captive insurance company or CIC.

How do they work and what will the IRS do? Great questions.

Congress has long given special tax considerations to life insurance. IRC section 101(a) provides that life insurance death benefits can be paid to the beneficiaries’ tax free. The IRS also allows the investment gains of the policy to grow tax free on whole life policies until retirement. If a whole life policy is held until death, the gains are completely tax free.

Clearly Congress ‘legislative intent is to provide tax breaks on the back end. For some promoters, however, that isn’t enough. Unfortunately the IRS has been very diligent in shutting down life insurance products that provide tax benefits on both ends.
The newest product under scrutiny is a small business captive insurance company. The theory behind these CICs is that the business will form a captive to insure against some type of business risk. The CIC then invests its money by purchasing life insurance on the owner’s life. Even though the money is being invested in personal life insurance policies, promoters suggest that the funding of the captive is an ordinary and reasonable business expense (26 USC sec 162).

On paper, the transaction seems legitimate. The business is insuring itself against some type of risk. The CIC is using life insurance as an investment. While each component may be acceptable under the Internal Revenue Code, the practical reality is that the IRS still views them as a subterfuge and therefore void.

IRC sec. 264(a)(1) states the general proposition that life insurance premiums are not deductible if the taxpayer is a direct or indirect beneficiary under the policy. Notwithstanding the recent popularity of these and similar plans, the IRS has been quite assertive in rebuffing these attempts. To date, the courts usually side with the Service as well.

On paper, CICs are the perfect tax shelter. The business can set up a captive insurance company to insure against a legitimate business risk. That means the premiums are a valid business expense and thus deductible. The captive can exclude over a million dollars a year of premiums. And the captive has the ability to invest its premium money to earn a return.

Where things can get dicey is when the captive invests in life insurance on the business owner’s life. Remember, those dollars are still pre-tax.

It all sounds perfect and there are some promoters out there ready to tell you exactly how perfect and legitimate it really is.
If you think this article ends here, it doesn’t. Before going the captive route – and there are legitimate captives – speak to a good CPA or tax attorney. If created for legitimate insurance purposes, a captive insurance company offers many benefits; including tax minimization, lower insurance costs and even the unavailability of certain types of coverage. Use premiums to purchase life insurance on the owner’s life and trouble will follow.

Why? Here are some reasons.

The IRS looks to see if a transaction is arm’s length, if the purpose is tax avoidance and if there is a legitimate business purpose for the transactions.

Second, the IRS strongly holds on to its policy of no deductions for life insurance premiums. We have seen several 419 welfare benefit plans fail despite great sounding legal opinion letters.

For many years, promoters have marched out slick new products designed to allow individuals to deduct life insurance premiums. Since at least 1995, the IRS has warned that these devices are potential abusive tax shelters and listed transactions. A captive insurance company can be an important and legitimate money saving tool for business. Extreme caution must be used if the captive and its owners decide to invest in certain life insurance contracts, however.

Although deducting life insurance premiums for business owners is still doubtful, a very recent U.S. The tax Court opinion suggests that the courts are willing to be open minded if a captive is properly structured.

In the 2014 Rent-A-Center, Inc. case, a majority of the court ruled that payments by a parent company’s wholly owned subsidiaries to a wholly owned captive were deductible insurance expenses. Previously the Tax Court upheld the IRS’ determination that such expenses were not deductible in “brother sister” captive insurance arrangements.

I have helped hundreds of business owners who have had IRS problems with 419 welfare benefit plans, 412i and section 79 plans. I am just starting to get phone calls on captive insurance plans.

If you are planning to create a captive for the sole purpose of investing in life insurance, contact someone that knows what they are doing and file under IRS code 6707A to reduce fines. Failure to report a listed transaction can involve huge civil penalties. These penalties are in addition to any other tax, interest and penalties attributable to disallowed deductions and accuracy penalties.

By Lance Wallach, CLU, CHFC
Abusive Tax Shelter, Listed Transaction, Reportable Transaction Expert Witness
Lance Wallach, National Society of Accountants Speaker of the Year and member of the AICPA faculty of teaching professionals, is a frequent speaker on retirement plans, abusive tax shelters, financial, international tax, and estate planning. He writes about 412(i), 419, Section79, FBAR and captive insurance plans.

Copyright Lance Wallach, CLU, CHFC

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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