Tax Reserves and Related Items March Basic Concepts in Life Insurance Company Taxation. Craig Pichette Bud Friedstat

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1 Tax Reserves and Related Items March 2011 Basic Concepts in Life Insurance Company Taxation Craig Pichette Bud Friedstat

2 TAX RESERVE SEMINAR Tax Reserving For Life Insurance Companies Basic Concepts in Life Insurance Company Taxation 2

3 In explaining the provisions of the 1921 Act, Thomas S. Adams, the Treasury s tax policy expert, summarized the proposal to tax life insurance companies to the Senate Finance Committee, in the following way: Only experts are interested [in] that language of the present law, language which the companies themselves proposed and which they understand. Every word of the phraseology of that section has been gone over by insurance experts of the highest caliber. Only a few people are involved. The public is not interested in this. They do not have to read it, and the people who deal with it are experts. Every word of the phraseology was presented to insurance officials and only those companies who are involved in it understand it. Senate Finance Committee Hearings on H.R. 8245, 67 th Cong., 1 st Session, 87, Life Insurance Company Tax : 1921: Net Income Base : Free Investment Income : Three-Phase System : Stopgap ?: Net Income Base 4 4

4 Treatment of Reserves 1909 Act: net addition, if any, required by law to be made within the year to reserve funds Act: deduct interest on mean reserves Act: generally company-level reserves but also 818(c) approximate revaluation Act: federally prescribed reserves. 5 5 Role of Reserves in Tax Defines treatment as a life insurance company based on the ratio of life insurance reserves to total reserves. Section 816 Change reflected in taxable income Deduction (net increase) under section 805(a)(2) Income (net decrease) under section 803(a)(2) 6 6

5 Section 816(a) Section 816(a)(1) defines a life insurance company: An insurance company which is in the business of issuing life and annuity or noncancellable A&H, if Life reserves plus unearned premiums and unpaid losses comprise more than 50 percent of its total reserves. 7 7 Section 816(b) Section 816(b) defines life insurance reserves: computed or estimated on the basis of recognized mortality and morbidity tables and assumed rates of interest 816(b)(1)(A) set aside to mature or liquidate, either by payment or reinsurance, future unaccrued claims 816(b)(1)(B) must be required by law 816(b)(2)(B) 8 8

6 Tax Reform Act of 1984 Most significant change to life insurance taxation Companies now taxed on net income (See also page 1 of Form 1120L) Premiums + Investment income + LTCG + Other income Life insurance company gross income 9 9 Tax Reform Act of 1984 Life insurance company gross income - Death benefits +\- Change in Reserves - Policyholder dividends - DRD - Other deductions - Operations loss carryover Gain (loss from operations) - Small life insurance company deduction + LICTI Taxable income Also enacted definition of life insurance contract in Section

7 LICTI Section 803 Premiums + Decrease in Section 807 reserves + Other amounts (includes investment income) Life insurance gross income Section 804 General deductions (Section 805) + Small life insurance company deduction (Section 806) Life insurance company deductions LICTI General Deductions Section 805 Death benefits all claims and dbenefits accrued and dlosses incurred Increase in Section 807 reserves Policyholder dividends Dividends received deduction for company share of dividends Operations loss deductions (OLD) Assets transferred under reinsurance agreements All other deductions allowed by subtitle A of Code generally, ordinary and necessary business expenses under Section 162 and following 12 12

8 LICTI Section 801(a) Tax imposed on LICTI Section 801(b) Life insurance company gross income - Life insurance company deductions LICTI Code Sections Applicable to Life Insurance Companies Section 801 Tax imposed Section 803 Defines life insurance company gross income Section 804 Defines life insurance company deductions Section 805 Defines general deductions Section 806 Defines small life insurance company deduction Section 807 Provides rules for the calculation of reserves Section 808 Provides rules for deduction for policyholder dividends Section 809 Provides rules for reduction of policyholder dividends deduction for mutual life companies (repealed by the Pension Act for taxable years beginning after December 31, 2004) Section 810 Provides deduction for operations loss carryovers 14 14

9 Code Sections Applicable to Life Insurance Companies Section 811 Certain accounting methods Section 812 Calculation of company and policyholders share of tax-exempt interest and DRD Section 814 Contiguous country branches of domestic life companies Section 815 PSA (Modified by the American Jobs Creation Act) Section 816 Definition of life insurance company Section 817 Separate accounts and variable contracts Section 818 Other definitions Code Sections Applicable to Life Insurance Companies Section 811(a) NAIC Method, where it is not in conflict with Federal accrual rules Section 811(c) No double counting Section 811(d) For interest guarantees beyond end of tax year, in excess of tax basis valuation interest rate 16 16

10 Provisions of General Application Life and P&C Section 841 Foreign Tax Credit Section 842 Taxation of U.S. branches of foreign insurers and calculation of minimum effectively connected net investment income Section 843 Annual Accounting Period is calendar year Section 844 Net operating loss carryover rules when change in status Section 845 Reinsurance agreements Section 846 Discounting of unpaid losses Section 847 Election not to discount unpaid losses Section 848 Capitalization of policy acquisition expenses Post-1984 Changes Tax Reform Act of 1986 and Revenue Act of 1987 Few changes to life insurance company rules Technical and Miscellaneous Revenue Act of 1988 Enacted Section 7702A on taxation of modified endowment contracts Omnibus Budget Reconciliation Act of 1989 Few changes to life insurance company rules Revenue Reconciliation Act of 1990 Enacted Section 848 [ Tax DAC ] Imposed 20% haircut on UPR relating to cancelable A&H contracts 18 18

11 Post-1984 Changes Revenue Reconciliation Act of 1993 Enacted Section 197 (15-yr amortization of Ceding Commission) 1998 Tax Legislation-Small Business Job Protection Act, Health Insurance Portability and Accountability Act MSA s, Accelerated Death Benefits, Long-term Care, Modified Guaranteed Annuities Pension Funding Equity Act of 2004 Repeal of 809 (Equity Tax) Introduction of Section 831(c); changes to Sections 501(c)(15) and 831(b) The American Jobs Creation Act of 2004 PSA Changes to Section 845(a) (regarding Reinsurance) 19 19

12 Life Insurance Reserves Generally March 24, 2011 Charles (Bud) Friedstat FSA, MAAA Consulting Actuary a Life Insurance Reserves Generally Section 807(c) Tax Reserve Categories Background 1959 Act Reserves Section 807 Tax Reserve Rules - General Definitions - Definition of Life Insurance Reserves - Definition of Net Surrender Value - Definition of Deficiency Reserves Tax Reserve Computation Rules - Tax Reserve Method - Tax Reserve Interest Rate - Prevailing Commissioner s Standard Table - Three Prong Comparison Miscellaneous Provisions 5 Required Tax Reserve Adjustments Other Miscellaneous Tax Reserve Rules 1986 Tax Reform Act/Revenue Act of 1987 Changes Brief Review of Actuarial Guidelines Relevant IRS Guidance 2

13 Section 807(c) Tax Reserve Categories Section 807(c)(1) Reserves: Life Insurance Reserves (incl. NC/GR) Section 807(c)(2) Reserves: Unearned Premiums and Unpaid Losses Section 807(c)(3) Reserves: Amounts Discounted at Interest Only Section 807(c)(4) Reserves: Dividend Accumulations and Other Amounts Held at Interest Section 807(c)(5) Reserves: Premiums Received in Advance and Premium Deposit Fund Liabilities Section 807(c)(6) Reserves: Reasonable Special Contingency Reserves 3 Background 1959 Act Reserves Tax Reserves prior to 1984 Act Life insurance company environment Starting point was statutory (STAT) reserves 818 (c) adjustment increased stat reserves to higher tax reserves Complicated 3 Phase Formula for LICTI Need for more tax revenue from life insurance industry Need for uniformity of tax reserves among companies 4

14 Section 807 Tax Reserve Rules General Section 818(c) reserve revaluation eliminated i Uniformity of reserves among companies Generally lower reserves than old basis For determination of taxable income not section 816(a) 5 Definition of Life Insurance Reserves Regulations Section (d) of 1959 Act (Also Applies Under 1984 Act) 1) Computed or estimated on the basis of recognized mortality or morbidity tables and assumed rates of interest; 2) Which are set aside to liquidate, either by payment or reinsurance, future unaccrued claims arising from life insurance, annuity, and noncancellable health accident and health insurance contracts involving at the time with respect to which the reserve is computed life, health or accident contingencies; and 3) Which are required by law. 6

15 Definition of Net Surrender Value Net surrender value is after surrender charges but without regard to market value adjustment on surrender. Special reference to net surrender value on pension contracts related to policyholder s fund. 7 Definition of Deficiency Reserves Section 807(d)(3)(C) is the relevant code section. Where net premium exceeds gross premium. Deficiency reserves are not deductible for tax purposes. Deficiency reserves are included in statutory reserves in determining the statutory cap for purposes of the three prong comparison. Alternative minimum reserves where reserve reflects gross premium less than net premium. Change in deficiency reserves - codification in 2001 and elimination of cost of collection liability. 8

16 Tax Reserve Computation Rules - Tax Reserve Method Life Insurance CRVM at date of contract issuance Special mention of pre 84 UL NOT 26 state rule Annuities CARVM at date of contract issuance Special mention of bail-out provisions (contingent surrender charges) 9 Tax Reserve Computation Rules - Tax Reserve Method (cont.) Noncancellable and Guaranteed Renewable A&H 2 year preliminary term (PT) For qualified long term care Post 97 1 year PT Other Contracts NAIC prescribed method at date of contract issuance If no NAIC prescribed method, use most appropriate method consistent with above guidelines Prevailing view of the states Permissible method (TAM ) Deficiency Reserves Excluded 10

17 Tax Reserve Computation Rules - Tax Reserve Interest Rate Prevailing State Assumed Rate (PSAR) Highest rate permitted by at least 26 BOY of contract issuance Prior to 1988, special rules for non-annuity and noncancellable A&H contracts Special rule for 807(c)(3) contracts not involving life contingencies Applicable Federal Interest Rate (AFIR) Rolling 60 month average of applicable federal midterm rates Post 1987 Contracts Greater of PSAR and AFIR 807(c)(3) Reserves Section 807(d)(4)A(ii) 5 Year Election 11 Tax Reserve Computation Rules - Prevailing Commissioner s Standard Table Most recent table prescribed by NAIC and permitted for use in at least 26 states. Grandfather Rule when tables change, may use old prevailing table for three years after a new table becomes prevailing. Where no commissioner s standard table exists, tables will be determined ed by treasury regulations. If more than one applicable table, use the one which generally produces the lowest reserve. Adjusted as appropriate to reflect risks not otherwise reflected in the table. 12

18 Tax Reserve Computation Rules - Three Prong Comparison Cash Value Floor and Statutory CAP Reserve for determining income = greater of federally prescribed reserve and net surrender value but not greater than statutory reserve. Per blue Book and legislative history, deficiency reserves are included in the statutory reserve cap. Generally comparison on a contract by contract basis, with grouping of contracts limited to certain situations. Generally, comparison made on an aggregate benefit basis. Other issues involving three prong comparison: Qualified Supplemental Benefits, Qualified Substandard Risks and certain Term and Annuity Riders. 13 Miscellaneous Provisions Group Contracts Issue date is the date master plan is issued. For additional benefits guaranteed in the future, issue date is the date the benefit is guaranteed. Reserve Aggregation Exceptions to Aggregation Rules Qualified Supplemental Benefits Qualified Substandard Risks Certain Term and Annuity Riders (Pre-1989) 14

19 Miscellaneous Provisions (cont.) 807(c)(6) Special contingency reserves must be reasonable Variable contracts Uniform tax treatment for separate account reserves Amounts credited to policyholders of qualified/nonqualified variable annuity/life contracts due to realized/unrealized gains/losses are removed from reserves Similarly, the company s basis in underlying assets are adjusted to the extent reserves are adjusted Capital gains tax at company level eliminated Additional diversification standards for investments 15 5 Required Tax Reserve Adjustments Prescribed reserve method Prescribed interest rate Prescribed mortality/morbidity rate Elimination from reserves of excess interest guarantees beyond the end of tax year 811(d) Extension of TEFRA provision May affect life/annuity contracts with future interest guarantees exceeding the tax valuation rate Go forward rate in life/annuity reserve calculations is the lower of contractual interest guarantee and tax valuation rate Tax reserve never exceeds account value 16

20 5 Required Tax Reserve Adjustments (cont.) Elimination from reserves of deferred and uncollected premiums- 811(c) So called no double counting provision No reserve established for any item unless the gross amount of premiums attributable to such items are included in life insurance gross income Pre 1984 ACT Standard Life case no enforceable right of collection No contractual liability recognized for deferred and uncollected premiums which do not accrue until paid Requires matching of the reserve deduction with related premium income item Except for 5 required adjustments, all other tax reserve items consistent with statutory treatment Continuous or curtate functions Consistency of assumptions as to paid to dates and use of mean reserves 17 Other Miscellaneous Tax Reserve Rules Fresh Start Fresh Start transition rules recapture of reinsurance post-1983 Small company elections 807(f) change in reserve basis 18

21 1986 Tax Reform Act/Revenue Act of 1987 Changes 1986 Tax Reform Act Changes Alternative Minimum Tax (AMT) Discounting of A&H Claim Reserves Cancellable A&H 20% Haircut On Unearned Premium Reserves (1990 for Life Companies) Cash Surrender Value Floor On Section 807(c)(3) Reserves/ Small Companies Subject to 10% Geometric Menge Penalty On Dividend Acceleration Programs Clarification of Treatment of Annuity Surrender Charges Under CARVM Revenue Act of 1987 AFIR Conforming Changes to AFIR (Excess Interest Reserves, Policy Interest) 19 Brief Review of Actuarial Guidelines AG 33-CARVM Reserves (Different Versions) AG 34-Variable Annuity MGDB Reserves (Different Versions) AG 35-CARVM For Equity Indexed Annuities AG 36-CARVM For Equity Indexed Life Insurance AG 37-Variable Life Insurance GMDB Reserves AG 38-Regulation XXX (Different Versions) AG 39-Reserves For VAGLB S (Different Versions) AG 40-Valuation Interest Rate For Funding Agreements and GIC s AG 41-Projection of Guaranteed Nonforfeiture Benefits Under CARVM AG 42-Preferred Mortality Tables AG 43-CARVM For Variable Annuities AG 44-Group Term Life Waiver of Premium-Disabled Lives 20

22 Relevant IRS Guidance Internal Revenue Code and Regulations Legislative History/Committee Reports Blue Book TAM s, PLR s and FSA s TAM TAM TAM TAM TAM TAM TAM Internal Revenue Manual-IRS Industry Handbook-Reserve Audit Procedures and IRC Section 807 Reserve Questionnaire Revenue Rulings and 92-19, etc. 21

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