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Legal Alert: Potential Impact of the Tax Reform Act of 2014 on Insurance Companies

February 28, 2014

On February 26, House Ways and Means Committee Chairman Dave Camp (R-Mich.) released a “Discussion Draft” of the Tax Reform Act of 2014, which sets forth his much-anticipated tax reform proposals.  Of note, the Discussion Draft aims to transition the corporate tax rate to a flat 25% rate beginning in 2019 and to repeal the corporate alternative minimum tax.  However, as part of the revenue raisers for these proposed changes, the Discussion Draft includes a number of proposals that target insurance companies or that otherwise would have a direct effect on them.  In particular, those proposals would:

1.

Replace the prescribed discount rate for computing life insurance reserves with a modified version of the applicable federal mid-term rate. This proposal has been estimated by the Joint Committee on Taxation (JCT) to raise $9.9 billion over 5 years and $24.5 billion over 10 years.

2.

Repeal the special 10-year period for adjustments to take into account changes in computing reserves by life insurance companies. This proposal has been estimated by the JCT to raise $1 billion over 5 years and $2.5 billion over 10 years.

3.

Modify the rules concerning the capitalization of certain policy acquisition expenses. This proposal has been estimated by the JCT to raise $5.8 billion over 5 years and $11.7 billion over 10 years.

4.

Modify the dividends-received deduction for life insurance company separate accounts. This proposal has been estimated by the JCT to raise $1.7 billion over 5 years and $4.5 billion over 10 years.

5.

Modify the discounting rules for property and casualty (P&C) insurance companies. This proposal has been estimated by the JCT to raise $7.9 billion over 5 years and $17.9 billion over 10 years.

6.

Modify the proration rules for P&C insurance companies. This proposal has been estimated by the JCT to raise $1 billion over 5 years and $2.9 billion over 10 years.

7.

Disallow a deduction for reinsurance premiums paid to “non-taxed affiliates.” This proposal has been estimated by the JCT to raise $3.1 billion over 5 years and $8.7 billion over 10 years.

8.

Repeal the special treatment of Blue Cross and Blue Shield organizations. This proposal has been estimated by the JCT to raise $1.4 billion over 5 years and $4 billion over 10 years.

9.

Impose an excise tax on “systemically important financial institutions.” This proposal has been estimated by the JCT to raise $29.6 billion over 5 years and $86.4 billion over 10 years.

10.

Establish a participation exemption system for the taxation of foreign income and make other related changes, including a 5-year extension of the Subpart F exception for certain active insurance income. The various aspects of this proposal have been estimated by the JCT to raise a total of $20.1 billion over 5 years and $68.3 billion over 10 years.

In sum, these ten proposals are scored to raise more than $231 billion over 10 years.  We discuss certain of these proposals below and also provide a brief overview of several other relevant proposals contained in the Discussion Draft.  (Additional analyses of the more general proposals in the Discussion Draft can be found on Sutherland’s tax reform blog:  www.TaxReformLaw.com.)

Sutherland Observation: Although the Discussion Draft is styled as an effort to ensure that the Internal Revenue Code “is fairer, more efficient, and effective for all,” it is plain that the insurance industry is a net loser under the Discussion Draft’s proposals. In this regard, the overall effect of the Discussion Draft is to more closely align the taxation of insurance companies (both life and P&C) with that of other corporate business enterprises. Importantly, however, the Discussion Draft does not change present-law tax incentives for individuals who purchase life insurance products to provide financial protection for themselves and their families, including the well-established rule that exempts “inside build-up” from current taxation.

 

Replacement of the Prescribed Discount Rate for Computing Life Insurance Reserves

Life insurance companies may deduct net increases in life insurance reserves, while net decreases in such reserves are included in gross income.  For purposes of computing changes in reserves, the life insurance reserve for a contract generally is the greater of (i) the net surrender value of the contract or (ii) the reserve determined under rules provided in the Internal Revenue Code, which, for discounting purposes, employ a prescribed interest rate that is equal to the greater of (x) the applicable federal rate or (y) the prevailing state assumed interest rate.  The “prevailing state assumed interest rate” is equal to the highest assumed interest rate permitted to be used in at least 26 states in computing life insurance reserves for regulatory purposes.

Under the Discussion Draft’s proposal, the present-law prescribed discount rate for life insurance reserves would be replaced with the average applicable federal mid-term rate over the 60 months ending before the beginning of the calendar year for which the determination is made, plus 3.5 percentage points.

Sutherland Observation: Per this proposed change, the discount rate for computing life insurance reserves generally would increase, causing a corresponding decrease in the life insurance reserves for a contract.

 

This proposal would be effective for taxable years beginning after December 31, 2014, and the effect of the proposal on computing reserves for contracts issued before the effective date would be taken into account ratably over the succeeding 8 taxable years.

Repeal of the Special 10-Year Period for Adjustments in Computing Reserves by Life Insurance Companies

For life insurance companies, an adjustment in computing reserves generally may be taken into account over 10 years (regardless of whether the adjustment reduces or increases taxable income).  Under the Discussion Draft’s proposal, the special 10-year period for adjustments to take into account changes in computing reserves by life insurance companies would be repealed.

Sutherland Observation: As a result of this proposed change, the general rules for making tax accounting method adjustments apparently would apply to changes in computing reserves by life insurance companies. Under those rules, an adjustment that reduces taxable income generally is taken into account in the taxable year during which the accounting method change occurs, while an adjustment that increases taxable income generally may be taken into account over the course of four taxable years, beginning with the taxable year during which the accounting method change occurs.

 

This proposal would be effective for taxable years beginning after December 31, 2014.

Modification of the Rules Concerning the Capitalization of Certain Policy Acquisition Expenses

The expenses of a life insurance company that are deemed associated with earning a stream of premium income (DAC) generally are required to be spread over 10 years rather than deducted immediately, in order to reflect the fact that such income ordinarily is collected over a period of years.  The expenses that are spread are calculated using a simplified method that reflects expense ratios for three broad categories of insurance contracts:  annuities, group life insurance contracts, and all other specified insurance contracts.  The expenses that must be spread are the lesser of (i) a specified percentage of the net premiums received on each of a company’s three categories of insurance contracts or (ii) the company’s general deductions.  For annuity contracts, the specified percentage is 1.75%; for group life insurance contracts, the specified percentage is 2.05%; and for all other specified insurance contracts, the specified percentage is 7.7%.

Under the Discussion Draft’s proposal, the three categories of insurance contracts would be replaced with two categories:  group contracts and all other specified contracts (including individual annuity contracts).  Furthermore, the percentage of net premiums that would be spread over 10 years would be 5% for group contracts and 12% for all other specified contracts.

Sutherland Observation: In view of the present-law DAC tax rate applicable to annuity contracts, i.e., 1.75%, the increase of the DAC tax rate to 5% and 12%, respectively, for group and individual annuities is significant.

 

This proposal would be effective for taxable years beginning after December 31, 2014.

Modification of the Dividends-Received Deduction for Life Insurance Company Separate Accounts

In the case of a life insurance company, the dividends-received deduction (DRD) is permitted only with regard to the “company’s share” of dividends received, reflecting the fact that some portion of the company’s dividend income is used to fund tax-deductible reserves for its obligations to policyholders.  Likewise, the net increase or net decrease in reserves is computed by reducing the ending balance of the reserve items by the policyholders’ share of tax-exempt interest.  The regime for computing the company’s share and policyholders’ share of net investment income generally is referred to as “proration.”

A life insurance company’s separate account assets, liabilities, and income are segregated from those of the company’s general account in order to support variable life insurance and variable annuity contracts.  As relevant to the determination of the separate account DRD, the company’s share and policyholders’ share of net investment income are computed for the company’s general account and separately for each separate account.  In view of the nuances associated with these computations, the separate account DRD has been the subject of ongoing controversy in IRS audits of life insurance companies.

Under the Discussion Draft’s proposal, the portion of the dividends and tax-exempt interest received by a life insurance company that is set aside for obligations to policyholders would be determined separately for the company’s general account and for each separate account.  In addition, the formula for determining this portion would be modified so that it compares mean reserves to mean assets of each account, rather than computing the respective shares of net investment income that belong to the company and to the policyholders.

Sutherland Observation: In view of these proposed changes, dividends received by a separate account likely would be entitled to only a very small, if any, DRD.

 

This proposal would be effective for taxable years beginning after December 31, 2014.

Modification of the Discounting Rules for P&C Insurance Companies

A P&C insurance company may deduct unpaid losses that are discounted using applicable federal mid-term rates and based on a loss payment pattern.  The loss payment pattern for each line of insurance business is determined by reference to the industry-wide historical loss payment pattern applicable to such line of business, although companies may elect to use their own particular historical loss payment patterns.

The loss payment pattern is computed based upon the assumption that all losses are paid (i) in general, during the accident year and the three calendar years following the accident year, or (ii) in the case of lines of business relating to auto or other liability, medical malpractice, workers’ compensation, multiple peril lines, international coverage, and reinsurance, during the accident year and the 10 calendar years following the accident year.  In the case of long-tail lines of business, a special rule extends the loss payment pattern period, so that the amount of losses that would have been treated as paid in the tenth year after the accident year is treated as paid in the tenth year and in each subsequent year (up to 5 years) in an amount equal to the amount of the losses treated as paid in the ninth year after the accident year.

Under the Discussion Draft’s proposal:

P&C insurance companies would use the corporate bond yield curve (as specified by Treasury) to discount their amounts of unpaid losses;

The special rule that extends the loss payment pattern period for long-tail lines of business would be applied similarly to all lines of business, but without the 5-year limitation on the extended period; and

The election to use company-specific, rather than industry-wide, historical loss payment patterns, would be repealed.

 

Sutherland Observation: With respect to the loss payment pattern period, the proposal would have the following effects. In general, the amount of losses that otherwise would have been treated as paid in the third year after the accident year would be treated as paid in the third year and in each subsequent year in an amount equal to the amount of the losses treated as paid in the second year after the accident year. Furthermore, in the case of lines of business relating to auto or other liability, medical malpractice, workers’ compensation, multiple peril lines, international coverage, and reinsurance, the amount of losses that otherwise would have been treated as paid in the tenth year after the accident year would be treated as paid in the tenth year and in each subsequent year in an amount equal to the amount of the losses treated as paid in the ninth year after the accident year.

 

This proposal would be effective for taxable years beginning after December 31, 2014, with a transition rule that would spread adjustments relating to pre-effective date losses and expenses over such taxable year and the succeeding 7 taxable years.

Modification of the Proration Rules for P&C Insurance Companies

As in the case of the rules applicable to life insurance companies, the “proration” rules applicable to P&C insurance companies reflect the fact that reserves generally are funded in part by certain untaxed income.  Under the current rules, P&C insurance companies are required to reduce reserve deductions for losses incurred by 15% of the sum of (i) the company’s tax-exempt interest, (ii) the deductible portion of dividends received, and (iii) the increase for the taxable year in the cash value of life insurance, endowment, or annuity contracts held by the company.

Under the Discussion Draft’s proposal, the fixed 15% reduction in the reserve deduction for P&C insurance companies would be replaced with a formula whereby the reserve deduction is reduced by a percentage that is equal to the ratio of the tax-exempt assets of the company to all assets of the company.  For purposes of this proposal, the term “tax-exempt assets” means assets “of the type which give rise to income” described in IRC § 832(b)(5)(B), i.e., tax-exempt interest, the deductible portion of dividends received, and the increase for the taxable year in the cash value of life insurance, endowment, or annuity contracts held by the company.

Sutherland Observation: In view of the broad language used for purposes of the definition of the term “tax-exempt assets,” it seems reasonable that the definition could be read to include items that are not explicitly enumerated in IRC § 832(b)(5)(B).

 

This proposal would be effective for taxable years beginning after December 31, 2014.

Disallowance of Deductions for Reinsurance Premiums Paid to “Non-Taxed Affiliates”

As a general matter, insurance companies are allowed a deduction for premiums paid for reinsurance.  If a reinsurance transaction results in a transfer of reserves and reserve assets to a reinsurer, the potential tax liability for the earnings associated with those assets generally is shifted to the reinsurer as well.  Although the insurance income of a controlled foreign corporation may be subject to current taxation in the U.S., insurance income of a foreign-owned foreign company that is not engaged in trade or business within the U.S. generally is not subject to U.S. tax.  However, reinsurance policies issued by foreign reinsurers with respect to U.S. risks generally are subject to a U.S. federal excise tax equal to 1% of the premiums paid, unless waived by a tax treaty.

The Discussion Draft proposal – which is similar to proposals that have been included in recent budget proposals from the Obama Administration, sponsored by Rep. Richard Neal (D-Mass.) on several occasions, and submitted by former Sen. Max Baucus (D-Mont.) for public discussion and comment – (i) would deny a U.S. insurance company a deduction for premiums and other amounts paid to affiliated foreign companies with respect to the reinsurance of risks (other than risks giving rise to life insurance reserves under IRC § 816(b)(1)) to the extent that the foreign reinsurer (or a U.S. shareholder of that company) is not subject to U.S. tax with respect to the premiums received, and (ii) would exclude from the ceding company’s income any return premiums, ceding commissions, reinsurance recovered, or other amounts received with respect to a reinsurance transaction for which a premium deduction is wholly or partially denied.  However, an innovative aspect to this proposal directs that, if the U.S. insurance company demonstrates to the IRS that a foreign jurisdiction taxes the reinsurance premiums at a rate as high as or higher than the U.S. corporate tax rate, the deduction for the reinsurance premiums generally would be allowed.

Sutherland Observation: The reinsurance premiums paid to the foreign reinsurer to which this proposal applies would remain subject to the federal excise tax, and it appears that the ceding company still would be required to reduce its tax reserves by the amount ceded to the reinsurer. The latter result effectively would put the ceding company on a cash basis for deducting losses on the business reinsured, unless the affiliated foreign reinsurer elects to treat such reinsurance premiums as effectively connected income (as discussed below).

 

A foreign corporation that is paid premiums from an affiliate that otherwise would be denied a deduction under this proposal would be permitted to elect to treat those premiums and the associated investment income as income effectively connected with the conduct of a trade or business within the U.S. and attributable to a permanent establishment for tax treaty purposes.  For purposes of the foreign tax credit, reinsurance income treated as effectively connected under this proposal would be treated as foreign source income and would be placed into a separate category within IRC § 904.

This proposal would be effective for taxable years beginning after December 31, 2014.

Excise Tax Imposed on “Systemically Important Financial Institutions”

Sections 113 and 165 of the Dodd-Frank Wall Street Reform and Consumer Protection Act define a “systemically important financial institution” (SIFI) as (i) any bank holding company with at least $50 billion in total consolidated assets, or (ii) any non-bank financial institution designated for SIFI treatment by the Financial Stability Oversight Council and thus subject to oversight by the Federal Reserve.  SIFI status subjects a financial institution to more stringent prudential standards than those that apply to non-SIFIs, and such status also requires regulators and the financial institution to agree on a resolution plan to ensure an orderly process in the event that the financial institution fails or suffers financial distress.  The Federal Reserve and other agencies conduct annual stress tests on SIFIs to ensure that the SIFIs have adequate capital to absorb losses that result from economic downturns.

Under the Discussion Draft’s proposal, every SIFI would be required to pay a quarterly excise tax of 0.035% (3.5 basis points) of the SIFI’s total consolidated assets (as reported to the Federal Reserve) in excess of $500 billion.  After calendar year 2015, the $500 billion threshold would be indexed for increases in gross domestic product (GDP).

This proposal would apply to calendar quarters beginning after December 31, 2014.

Creation of a Participation Exemption System for the Taxation of Foreign Income

In brief, Title IV of the Discussion Draft would:

Establish an exemption system with respect to dividends received by U.S. corporations from certain foreign corporations;

Subject deferred foreign income to current tax at reduced rates;

Make related modifications to the foreign tax credit system;

Revise the rules under Subpart F; and

Add provisions designed to prevent base erosion.

We discuss several of these proposals in greater detail below.

1.         Proposed Exemption System

Under the Discussion Draft’s proposal, the present-law system of taxing U.S. corporations on the foreign earnings of their foreign subsidiaries when those earnings are distributed would be replaced with a dividend-exemption system.  Under the proposed exemption system:

95% of the dividends paid by a foreign corporation to a U.S. corporate shareholder that owns 10% or more of the foreign corporation would be exempt from U.S. taxation;

No foreign tax credit or deduction would be allowed for any foreign taxes (including withholding taxes) paid or accrued with respect to any exempt dividend; and

U.S. shareholders owning at least 10% of a foreign subsidiary would include in income for their last taxable year beginning before 2015 their pro rata share of the post-1986 historical earnings and profits (E&P) of the foreign subsidiary to the extent that such E&P previously had not been subject to U.S. tax, and such E&P would be subject to current U.S. tax at reduced rates. At the election of the U.S. shareholder, the resulting tax liability would be payable over a period of up to 8 years. Foreign tax credits would be available (at least in part) to offset the U.S. tax.

 

Sutherland Observation: This proposal potentially would eliminate the need for U.S. companies to separately track E&P that was accumulated by their foreign subsidiaries prior to the adoption of the dividend-exemption system.

 

This proposal generally would be effective for taxable years of foreign corporations beginning after December 31, 2014, and for taxable years of U.S. shareholders in which or with which such taxable years of foreign subsidiaries end.

2.         Active Insurance Income Exception Extended

For taxable years of foreign subsidiaries beginning before 2014, and taxable years of U.S. shareholders in which or with which such taxable years of the foreign subsidiary end, there was an exception from Subpart F income (specifically, insurance income and foreign personal holding company income) for income that was derived in the active conduct of an insurance business (active insurance income).  Under the Discussion Draft’s proposal, this exception would be extended for 5 years for active insurance income that is subject to a foreign effective tax rate of 12.5% or higher.  Active insurance income that is subject to a lower foreign effective tax rate would not be exempt, but would be subject to a reduced U.S. tax rate of 12.5%, before the application of foreign tax credits.

This proposal would be effective for taxable years of foreign corporations beginning after December 31, 2013, and before January 1, 2019, and for taxable years of U.S. shareholders in which or with which such taxable years of foreign subsidiaries end.

Additional Proposals of Note

In addition to the proposals discussed above, the Discussion Draft contains a number of other proposals that are relevant to insurance companies, or that otherwise have a broader application to corporate taxpayers.  In particular, the Discussion Draft would:

1.

Allow a corporation to deduct a net operating loss (NOL) carryback or carryover only to the extent of 90% of the corporation’s taxable income (determined without regard to the NOL deduction).

2.

Change the carryback and carryover periods for NOLs experienced by life insurance companies to 2- and 20-year periods, respectively, in conformity with the general NOL carryback and carryover rules.

3.

Require taxpayers on the accrual method of accounting for tax purposes to include an item of income no later than the taxable year in which such item is included for financial statement purposes.

4.

Modify the related-party loss rules to prevent losses from being shifted from a tax-indifferent party (e.g., a foreign person not subject to U.S. tax) to another party in whose hands any gain or loss with respect to the property would be subject to U.S. tax.

5.

Modify the treatment of certain derivatives and the rules related to the identification of hedges. Under this proposal, derivatives generally would be required to be marked to market at the end of each taxable year, and any gains or losses from marking a derivative to market would be treated as ordinary income or loss. This proposal would not apply to transactions that properly are identified as hedges for tax purposes.

6.

Cause purchasers of bonds at a discount to include the discount in taxable income over the post-purchase life of the bond, rather than only upon retirement of the bond or resale of the bond by the purchaser.

7.

Reform the rules that apply to debt restructurings that do not involve a forgiveness of principal in order to reduce the prevalence of “phantom” cancellation-of-indebtedness income when debt is restructured.

8.

Reduce the possibility that fees and certain other amounts received by financial institutions would be treated as original issue discount (OID).

9.

Restrict the exception to pro rata interest expense disallowance for corporate-owned life insurance to “20-percent owners.”

10.      

Repeal the special deduction for small life insurance companies.

11.

Repeal the special rule for distributions to shareholders from pre-1984 policyholder surplus accounts.

12.

Repeal IRC § 847, which allows insurance companies that are required to discount unpaid losses to claim an additional deduction up to the excess of (i) undiscounted unpaid losses over (ii) related discounted unpaid losses.

13.

Require reporting for certain life settlement transactions.

14.

Clarify the rules concerning the computation of tax basis of a life insurance contract.

15.

Amend the passive foreign investment company (PFIC) exception for insurance companies such that it would apply only if (i) the PFIC would be taxed as an insurance company were it a U.S. corporation, (ii) more than 50% of the PFIC’s gross receipts for the taxable year consist of premiums, and (iii) loss and loss adjustment expenses, unearned premiums, and certain reserves constitute more than 35% of the PFIC’s total assets.

16.

Tighten the earning stripping rules of IRC § 163(j).

17.

Provide that, if a payment of fixed or determinable, annual or periodical (FDAP) income is deductible in the U.S., and the payment is made by an entity that is controlled by a foreign parent to another entity in a tax treaty jurisdiction that is controlled by the same foreign parent, the statutory 30% withholding tax on such income would not be reduced by any treaty unless the withholding tax would be reduced by a treaty if the payment were made directly to the foreign parent.

18.

Repeal the exemption from tax for P&C insurance companies with gross receipts for the taxable year that do not exceed $600,000.

19.

Provide that a workers’ compensation insurance organization generally would be exempt from tax only if it provides no insurance coverage other than workers’ compensation insurance required by state law or coverage incidental to such insurance.

20.

Increase the threshold for JCT review of refunds or credits with respect to returns filed by corporations to $5 million.

We will continue to monitor the status of these proposals and keep you updated on any significant developments as they occur.

 

If you have any questions about this Legal Alert, please feel free to contact any of the attorneys listed under 'Related People/Contributors' or the Sutherland attorney with whom you regularly work.

 

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