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.
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Articles On Captives
An archive of articles by Jay Adkisson on captive insurance companies. Click here for more
Discusses the unique characteristics and problems of captive insurance companies that qualify for the IRC section 831(b) election. Click here for more
An overview of captive taxation, including the IRS's abandonment of its "Economic Family Theory". Click here for more
Tax: Protected Cell Companies
Considers the unique tax issues that involve protected cell companies (a/k/a SBUs). Click here for more
Tax: Risk Distribution: Multiple Insureds
Considers the IRS safe harbor for multiple insureds and risk distribution through many "points of insurance" generally. Click here for more
Tax: Risk Distribution: Unrelated Insurance
Describes the IRS "50% unrelated third-party insurance" safe harbor and related issues. Click here for more
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. Click here for more
Tax: Risk Shifting
Considers the tax law requirement that an insurance arrangement have a true shifting of risk between the insured and the insurer. Click here for more
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Jay Adkisson frequently serves as counsel in disputes involving insurance companies. Click here for more
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(c) 2017 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. This site is http://www.captiveinsurancecompanies.com