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The IRS Microcaptive Case: Emphasizing the Need for Coherent Arrangements in Risk Management Programs

Rubén A. Gely | January 8, 2024 | IICG





Introduction:

In the recent Keating vs. IRS Commissioner case, the US Tax Court ruled in favor of the Internal Revenue Service (IRS), marking the fifth such victory for the IRS in microcaptive legal battles. The case involved Risk Management Strategies (RMS), an S corporation acting as a sole employer for clients primarily in the business of administering special needs trusts. The court's decision sheds light on the importance of coherent arrangements in risk management programs, focusing not only on tax strategies but also on overall risk management practices.


The Case Details:

During the years 2012–14, shareholders Terence Keating, Cheryl Doss, and Arthur Candland of RMS reported significant expenses related to purported insurance coverage provided through a microcaptive insurance arrangement involving Risk Retention and other entities. The court had to address several key issues, including the validity of the microcaptive insurance arrangement for federal income tax purposes, the deductibility of expenses incurred, and the nature of dividends paid.


Court Findings:

The court made several crucial findings:


1. Invalidity of Premium Payments:

 The court determined that premium payments in the Keating case were not deductible under IRC section 162 or section 165. Additionally, since the case involved a foreign captive, the court had to assess the validity of the 953(d) election, ultimately ruling it as invalid.

2. Taxable Distributions and Penalties:

 Distributions from the foreign captive were deemed taxable dividends, and the court upheld accuracy-related penalties of around $434,000 against the owners for substantial understatement/negligence.

3. Operational Inconsistencies:

 The court criticized the operational practices of Risk Retention and Provincial, highlighting issues such as retroactive policy alterations, unreasonable premium charges, and inappropriate claims management practices.


IICG's recommendations for Coherent Arrangements:

 

1. Prospective Transaction Execution:

 Microcaptives should conduct insurance transactions, including premium pricing, payments, and claims approval, prospectively, adhering to standard industry practices.

 

2. Arm's Length Dealings:

 Treat microcaptive entities as bona fide insurance companies, avoiding treating them as tax-free savings accounts. Clearly document financial transactions and obligations to ensure transparency.

 

3. Validity of Policies:

 Ensure that insurance policies are valid and binding, with proper documentation and adherence to coverage periods.

 

4. Reasonable Premiums:

 Set premiums at reasonable levels, supported by credible evidence and actuarial determinations. Avoid one-size-fits-all approaches and adhere to industry standards.

 

5. Consistent Claims Management:

 Implement consistent and transparent claims management practices, enforcing policy limitations and treating claims based on valid documentation.


Conclusion: 

The Keating vs. IRS Commissioner case serves as a stark reminder of the IRS's scrutiny on microcaptives and the importance of coherent risk management arrangements. Beyond tax implications, businesses must focus on establishing transparent, compliant, and sensible practices to avoid legal repercussions. Adhering to industry standards and best practices will not only mitigate the risk of IRS penalties but also contribute to the overall effectiveness of risk management programs.

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