Have you ever heard of a “captive” insurance company?
They have become quite cachet. They have also drawn the IRS’ attention, as people are using these things for reasons other than insurance and risk management.
Let’s walk through this.
Let’s say that you and I found a company manufacturing sat-nav athletic shoes
COMMENT: Sat-nav meaning satellite navigation. That’s right: you know you want a pair. More than one.
We make a million of them, and we have back orders for millions more. We are on the cover of Inc. magazine, meet Jim Cramer and get called to the White House to compliment us for employing America again.
Then tax time.
We owe humongous taxes.
Our tax advisor (I am retired by then) mentions a captive.
LET’S EXPLAIN THIS: The idea here is that we have an insurable risk. Rather than just buying a policy from whoever-is-advertising-during-a-sports-event, we set up our own (small) insurance company. Granted, we are never going to rival the big boys, but it is enough for our needs. If we can leap through selected hoops, we might also get a tax break from the arrangement.
What risks do you and I have to insure?
What is one of those shoes blows out or the satellite-navigation system shorts and electrocutes someone? What if it picks up contact from an alien civilization – or an honest political journalist? We could get sued.
Granted, that is what insurance is for. The advisor says to purchase a policy from one of the big boys with a $1.2 million deductible. We then set up our own insurance company – our “captive” – to cover that $1.2 million.
We are self-insuring.
There is an election in the tax Code (Section 831(b) for the incorrigible) that waives the income tax on the first $1.2 million of premiums to the captive. It does pay tax on its investment income, but that is nickels-to-dollars.
You see that I did not pick the $1.2 million at random.
Can this get even better?
Submitted for your consideration: the You & Me ET Athletic Shoe Company will deduct the $1.2 million as “Insurance Expense” on its business return.
We skip paying tax on $1.2 million AND we deduct it on our tax return?
Easy, partner. We can still be sued. We would go through that $1.2 million in a heartbeat.
Is there a way to MacGyver this?
Got it. Three ways come quickly to mind, in fact:
(1) Let’s make the captive insurance duplicative. We buy a main policy with a reputable insurance company. We then buy a similar – but redundant - policy from the captive. We don’t need the captive, truthfully, as Nationwide or Allstate would provide the real insurance. We do get to stuff away $1.2 million, however – per year. We would let it compound. Then we would go swimming in our money, like Scrooge McDuck from the Huey, Dewey and Louie comics.
(2) A variation on (1) is to make the policy language so amorphous and impenetrable that it is nearly impossible to tell whether the captive is insuring whatever it is we would submit a claim for. That would make the captive’s decision to pay discretionary, and we would discrete to not pay.
(3) We could insure crazy stuff. Let’s insure for blizzards in San Diego, for example.
a. Alright, we will need an office in San Diego to make this look legitimate. I volunteer to move there. For the team, of course.
The tax advisor has an idea how to push this even further. The captive does not need to have the same owners as the You & Me ET Athletic Shoe Company. Let’s make our kids the shareholders of the captive. As our captive starts hoarding piles of cash, we are simultaneously doing some gifting and estate tax planning with our kids.
Heck, we can probably also put something in there for the grandkids.
To be fair, we have climbed too far out on this limb. These things have quite serious and beneficial uses in the economy. Think agriculture and farmers. There are instances where the only insurance farmers can get is whatever they can figure-out on their own. Perhaps several farms come together to pool risks and costs. This is what Section 831(b) was meant to address, and it is a reason why captives are heavily supported by rural state Senators.
In fact, the senators from Wisconsin, Indiana and Iowa were recently able to increase that $1.2 million to $2.2 million, beginning in 2017.
Then you have those who ruin it for the rest of us. Like the dentist who captived his dental office against terrorist attack.
That nonsense is going to attract the wrong kind of attention.
Sure enough, the IRS stepped in. It wants to look at these things. In November, 2016 the IRS gave notice that (some of) these captive structures are “transactions of interest.” That lingo means that – if you have one – you must file a disclosure (using Form 8886 Reportable Transaction Disclosure Statement) with the IRS by May 1, 2017.
If this describes you, this deadline is only a few months away. Make sure that your attorney and CPA are on this.
Mind you, there will be penalties for not filing these 8886s.
That is how the IRS looks at things. It is good to be king.
The IRS is not saying that captives are bad. Not at all. What it is saying is that some people are using captives for other than their intended purpose. The IRS has a very particular set of skills, skills it has acquired over a very long career. Skills that make the IRS a nightmare for people like this. If these people stop, that will be the end of it. If they do not stop, the IRS will look for them, they will find them, and they will ….
Ahem. Got carried away there.
When this is over, we can reasonably anticipate the IRS to say that certain Section 831(b) structures and uses are OK, while others are … unclear. The IRS will then upgrade the unclear structures and uses to “reportable” or “listed” status, triggering additional tax return disclosures and potential eye-watering penalties.
In the old days, listed transactions were called “tax shelters,” so that will be nothing to fool with.
About the author
Steven D. Hamilton is a career CPA, with extensive experience involving all aspects of tax practice, including sophisticated income tax planning and handling of tax controversy matters for closely-held businesses and high-income individuals.