Taxpayers engaged in micro-captive insurance arrangements (and re-insurance arrangements) have started receiving correspondence directly from the Large Business and International (LB&I) division of the IRS. The correspondence asks taxpayers to certify whether they have terminated their participation in the arrangement and, if so, to disclose the last tax year they claimed a tax benefit from the arrangement.

For taxpayers still engaged in micro-captive insurance arrangements as a means to self-insure against business risk, the IRS letter may be an occasion to review the captive insurance arrangement.

Background

In Notice 2016-66, the IRS described micro-captive insurance arrangements as “transactions of interest.” Although many taxpayers engage in captive insurance arrangements to legitimately self-insure against business risk, the IRS expressed concern that some arrangements may result in tax abuse. The notice requires taxpayers participating in such arrangements to disclose the transaction on Form 8886—Reportable Transaction Disclosure Statement—and file the form with their current tax return and with the Office of Tax Shelter Analysis.

The notice provided examples of abusive micro-captive insurance arrangements. The IRS describes the potential abusive transaction as one that starts with a taxpayer who deducts premiums paid to a micro-captive insurance company, with the insurance company electing (under section 831(b)) to be taxed only on its investment income (premium income is not directly taxed). The mismatching of the deductible insurance premiums and the insurance company’s election not to be taxed on premium income may lead to potential abuse. This abuse may exist where the micro-captive insurance company insures against implausible risks, the micro-captive insurance company is used as an investment vehicle for its owners, or where there are loans between the micro-captive and related parties.

Notice 2016-66 lists a number of factors used to determine whether a micro-captive arrangement is an abusive tax structure. However, captive insurance arrangements are also widely used to legitimately self-insure against business risk, and micro-captive insurance companies (defined as having annual premiums of less than $2,200,000) are used by many taxpayers in the middle market. The notice recognizes this fact and specifically states:

However, the Treasury Department and the IRS lack sufficient information to identify which § 831(b) arrangements should be identified specifically as a tax avoidance transaction and may lack sufficient information to define the characteristics that distinguish the tax avoidance transactions from other § 831(b) related-party transactions.

IRS correspondence

Last year, the IRS successfully litigated several cases where the micro-captive insurance arrangement was clearly tax abusive. Based on these cases, the IRS sent out the above-mentioned letters to those taxpayers who had previously filed a Form 8886. The letter instructs taxpayers who are no longer claiming deductions or other tax benefits for any of the captive transactions described in Notice 2016-66 to notify the IRS. The notification must be signed under penalty of perjury, and include the date the taxpayer ended participation in the micro-captive arrangement, and the last tax year the taxpayer claimed any tax benefit from the arrangement.

Noticeably confusing in the IRS letter is whether taxpayers still engaged in micro-captive insurance arrangements need to respond at all to the IRS letter. Many taxpayers have established micro-captive insurance companies to insure against legitimate business risk; the captive insurance company manages reserves and pays claims that come due. Under the terms of the IRS letter, these taxpayers may not need to specifically respond to the IRS.

Client discussion

The IRS correspondence received by taxpayers has caused confusion as to how to respond and whether a taxpayer’s micro-captive insurance arrangement will be respected. Taxpayers still engaged in a micro-captive insurance arrangement should consider whether and how to respond to the IRS. Based on concerns raised in IRS Notice 2016-66, questions to determine if the captive insurance arrangement is acceptable may include the following:

• Does the micro-captive insurance coverage match a business need or risk to the insured?
• Does the coverage duplicate other insurance coverage already in place?
• Are premium payments calculated to cover risk based on an analysis consistent with industry standards?
• Are premium payments consistent with premiums required under commercially available insurance contracts?
• Is there documentation of insurance coverage?
• Has the captive insurance company registered as an insurance company with the applicable government agency?
• If the captive insurance company is an offshore entity, has it elected under section 953(d) to be taxed as a U.S. insurance company?
• Does the captive insurance company have procedures for the handling of claims?
• Does the captive insurance company have adequate reserves to cover claims?
• Does the captive insurance company have assets that significantly exceed the necessary reserves?
• Does the captive insurance company invest in illiquid or speculative assets?
• Does the captive insurance company provide loans to related parties?

Although no one factor is dispositive of a bona fide captive insurance arrangement, these questions should be considered by taxpayers to gain an understanding of the micro-captive insurance arrangement and to evaluate their own arrangements. In addition, there is a real concern that the IRS may begin examining taxpayers who are still engaged in micro-captive insurance transactions.