Continued Pressure from the IRS on Bad Fact Patterns – How to Avoid Trouble

The Courts recently made a decision regarding the Reserve case for the IRS. This is the second case of late that has been decided against a captive owner in an effort to crack down on captives the IRS perceives to have a poor fact pattern, and therefore cannot meet insurance tax treatment standards. For example, captives that have been set up to undertake sham transactions or undertaking transactions that do not meet the bona fide insurance company characteristics would fall into this category.

According to the Avarhami v. Commissioner (“Avrahami”) judgement, the court provided four criteria that result in an arrangement constituting insurance.  These four criteria were also addressed in the Reserve Mechanical Corp (“Reserve”) v. Commissioner case, and are as follows:

  • The arrangement must involve insurable risk
  • The arrangement must shift the risk of loss to the insurer
  • The insurer must distribute the risk among its policy holdersIRS captives
  • The arrangement is insurance in the commonly accepted sense

Reserve outlined these four non-exclusive criteria to establish a framework for determining the existence of insurance for federal income tax purposes.  The court’s opinion focused on the idea of risk distribution, which led to investigating PoolRe Insurance Corp. (“PoolRe”), the stop loss insurer for Reserve. The judgement discusses the transaction in detail and stated there was a circularity of funds that invalidated the pooling arrangement.

To determine if a captive insurer has met the risk distribution criteria as a standalone captive without stop-loss or reinsurance protection, the courts looked at the total number of insureds and the total number of independent risk exposures. It has long been believed that the “law of large numbers” allows an insurer to minimize its total risk and reduce the likelihood of a single claim exceeding the premium received. In the Avrahami and Rent-A-Center court cases, risk distribution passing and failing thresholds have been observed as follows:

  • Rent-A-Center ultimately showed distribution of its risk by insuring the risk for 14,000 employees (workers’ compensation), 7,100 vehicles (auto coverage), and 2,600 stores (general liability coverage) in 50 states
  • Avrahami didn’t show distribution of risk by insuring 3 jewelry stores, 2 key employees, and 35 total employees. Further, one of the stores had 5 low frequency coverages and the other 2 stores had 2 low frequency coverages

Reserve, an Anguilla-domiciled captive, wrote 11 to 13 policies over the three tax years in question and had direct policies for 3 insureds.  Peak Mechanical & Components, Inc. (“Peak”), an S Corp for Federal income tax purposes, was owned in equal 50% shares by two individuals and was the primary insured under all policies. The policies were also issued to two other subsidiaries, although the operations were not significant. Peak operated two facilities and had a max of 17 employees. Reserve did not meet risk distribution based on this exposure profile alone; its exposures were similar in scale to the Avrahami’s.  Reserve contended that it still met the risk distribution safe harbor requirements, by having 30% of its gross premium for each of the tax years for unrelated parties via the reinsurance agreement with PoolRe.  A similar argument was made in the Avrahami case with their reinsurance pool.

Before it is determined whether Reserve distributed risk through the agreement with PoolRe, they evaluated whether PoolRe was a bona fide insurance company. In the eyes of the court, a captive should be able to answer “yes” to each of these questions and provide adequate support to:

  1. Is there no circularity to the flow of funds?
  2. Are the policies developed in an arm’s length approach?
  3. Did the captive charge actuarially-determined premiums?
  4. Does the captive face actual exposures and insurance versus business risk?
  5. Is the captive subject to regulatory control, and did it meet minimum statutory requirements?
  6. Was the captive created for non-tax business reason?
  7. Was a comparable coverage in the market place more expensive, or even available?
  8. Was it adequately capitalized?
  9. Were claims paid from a separately maintained account?

The court’s conclusion in Reserve’s case provided details of the concerns with evidence in support of the first six questions listed above, and concluded that the PoolRe quota share arrangement provided the appearance of risk distribution without actual risk distribution.  The court summary also highlighted the following:

  • Circularity of funds was exhibited with PoolRe receiving and distributing the same amount of money to Reserve
  • There was no evidence that the premium payments to PoolRe by Reserve and the other participants were determined by actuaries
  • Contracts were not determined in a like manner, nor using objective criteria

One of the major concerns the IRS addresses with the Avrahami and Reserve cases is that a one-size-fits-all rate for all participants in the pool/reinsurance agreement isn’t valid.  The court also addressed an alternative ground for the case, which would have been to evaluate “Insurance in the Commonly Accepted Sense”. To determine if an insurance arrangement exists, the following factors come into play:

  • Was the insurance company organized, operated and regulated as an insurance company?
  • Was it was adequately capitalized?
  • Were the policies valid and binding?Captive Checklist
  • Were the premiums reasonable and a result of an arm’s-length transaction?

The court summary pointed out several issues in Reserve’s support for answering the above questions, such as:

  • Reserve had no employees of its own performing services and the board members did not know how claims were made or handled.
  • There’s no evidence that activities were performed in its domicile.
  • Claims must have supporting documentation, yet there was no addendum for the program until after the policy date. An employee from the insured signed the checks as opposed to the insurer.
  • Binding and valid policies – policies must, at a minimum, identify the insured.
  • There were peak paid commercial market premiums of $95,828 in 2007 versus $412,089 to Reserve in 2008. This is a 330% increase in insurance premiums. In addition, Peaks premiums vary from year to year with no explanation.
    • Note, the Avrahamis similarly had significant increases in premium spend, with almost an 800% increase over a several year period.

These cases provide us and other captive professionals with guidance and clarity. As the industry grows, cases like these will form the cornerstones of how to properly operate and conduct business as a captive insurance company.

Key Takeaways

The IRS clearly has problems with some of the pooling structures used to qualify captives as meeting the risk distribution safe harbor tests. They are concerned that the premiums ceded to the pool and the transfer of risk into the insurance pool are not commensurate with one another, and that the pools are only being utilized to circle premiums to the captive participants, with each assuming no or minimal losses from the pool.

There should be clear documentation of premium determination by an actuary, illustrating why premiums are reasonable and that sufficient risk transfer exists.  Over time, if the total loss experience and premium ceded to the pool doesn’t produce a long-term average loss ratio consistent with the commercial marker, then the pool’s support in having arm’s-length contracts with each of the participants becomes weak and difficult to defend.  Long term average commercial market loss and loss adjustment expense (“LAE”) ratios for most lines of business generally fall in the range of 50% to 75%, hence the 70% loss and LAE ratio threshold in IRS Notice 2016-66 used to identify captive transactions of interest.

Finally, it is important to show sufficient support in a captive’s business plan, policies, and feasibility studies to address the questions above about an insurer/pool being a bona fide insurance company.

Don’t Risk Missing These 3 Hot Topics from RIMS

RIMS 2018Each year, the Risk Management Society (RIMS) hosts one of the largest industry events. The annual conference and tradeshow brings together thousands of insurance and risk experts, and for the 11th year in a row, the Spring team was among them. We were happy to take a break from Boston’s not-so-springy weather and head to San Antonio for RIMS 2018.

Over the course of the 3-4 days, I was able to a) meet and greet insurance colleagues, both new and familiar, b) party like a true Texan (in case you thought Risk Managers would make for a dull crowd – you may want to rethink this notion), and c) get a gauge on the most popular industry trends and concerns.

For this writeup, I’m focusing on point C, because between various networking and social events, there was a lot to learn at the RIMS annual conference, and I’d love to share some takeaways. Here are the most buzz-worthy topics, in my opinion.

  1. Cyber & Tech

As it has with conferences and news headlines over the past 5-10 years, technology took center stage at RIMS. However, I’m using “technology” as an umbrella term to represent a range of digitally-centric, Internet of Things (IoT) subjects, such as:

a) Cyber

During Berkshire Hathaway, Inc.’s annual shareholders meeting, Warren Buffett Chairman, President and CEO said, “Insurance is very early in the game in determining how to cover the risk of data breaches, ransomware anCyber RIsk Mitigationd other hacking perils”. He then went on to say that the risk itself is a “very material risk” that didn’t exist 15 years ago one that will get worse. The world of cyber threats and attacks continues to keep risk professionals up at night. From my actuarial perspective, the probability and severity of cyber loss events are becoming better understood, although there still is tremendous uncertainty due to the rapidly changing nature of the risk. The following Cyber sessions were presented at RIMS:

  • In “Are You Prepared for a Cyber Extortion Event?”, audiences were walked through different ransomware threats and a checklist for getting through such an attack.
  • Jason Trahan went into further detail in explaining the “Anatomy of a Cyber Event Claim”, which provided a preparation process for cyber claims as well as an extensive list of possible claims expenses.
  • A representative from Willis Towers Watson highlighted the importance of corporate culture when it comes to combating cyber risk.
  • A woman from The Washington Post Risk Management team led a discussion on the different insurance policies that intersect when it comes to cyber risk, and how to manage these overlaps.
  • Jeffrey Sharer of EY revealed some startling statistics such as: “89% say their cybersecurity function does not fully meet their organization’s needs”.
  • Joon Sung and Kevin Kalinich stressed the importance of recognizing and addressing your third party/vendor cyber exposures, nothing that cyber resilience is not just an internal matter.
  • During “Pay Up or Else: Ransomware Risks”, John Coletti and Anna Ziegler explained the latest trends and scams in the ransomware sphere and offered advice on how to be both proactive and reactive.
  • One session focused on communicating a cyber attack to your C-suite, board of directors, and/or other superiors. Ten best practices were shared, such as: “Have a customer notification plan and procedures in place.”

b) Autonomous Vehicles

In March, a self-driving Uber car killed a pedestrian in Arizona, and an autonomous Tesla vehicle caused another death in California. These two incidents are just a couple of many news headlines involving self-driving cars, which certainly pose a variety of risks. As such, they were discussed on several occasions at this year’s conference.

  • In a session entitled, “Driving Insurance Forward”, Katherine J. Henry provided an overview of how autonomous vehicles are covered, the consequences they can bring and ways to confront this emerging risk.
  • Representatives from Liberty Mutual and Ford Motor Company teamed up to explain the different industries that will be affected by the rise in self-driving cars, from oil to advertising companies. Their presentation spoke to the broader trend of disruption in the automotive industry, pointing out 4 facets to consider: autonomous driving, electrification, connectivity, shared mobility/economy.

c) Social Media & Mobile Apps

Considering the recent Facebook privacy scandal, it was important to look at social media and mobile issues from the perspective of risk management and mitigation.

social media risk

  • Gregory Bangs of XL Catlin spoke to the topic of “Social Engineering”, which can incorporate a range of scams such as vendor impersonation and malware. He explained what these fraudulent activities can look like and their implications for insurance coverage and employee preparedness.
  • In “Swipe Right on Insurance”, Cort T. Malone and Stephanie Hyde discussed the risks and insurance options related to social media platforms and mobile apps, as used by employees. They covered things like harassment, privacy, reputation, business torts, intellectual property and the regulatory environment.

d) Wearables

  • Thomas Ryan highlighted the opportunity a “wearable” device poses from a workers’ compensation coverage standpoint and guided the audience on selecting a wearable vendor for corporate use.
  • Two experts from Modjoul Inc. and Cotton Holdings Inc. explained wearables in detail – why use them, how to use them, how they work with insurance carriers, etc. Through a case study, they also endorsed wearables as an option to keep employees safe and productive.

e) Drones & Other Tech Matters

  • Chris Proudlove of Global Aerospace and Vincent Monastersky of Fox Entertainment Group presented the challenges and opportunities associated with the widespread growth of drone use, both commercially and personally. It turns out, over 75% of drone-related claims were caused by operator error. Further, they outlined coverage types and options.
  • A session on emerging technologies, including smart sensors, wearables, drones and artificial intelligence gave audiences a broad but detailed landscape of how all of this connectivity affects the “risk ecosystem”, and tips on drones business riskhow to prepare for the future.
  • Another discussion, led by Tim Yeates, covered the “Fourth Industrial Revolution” and the benefits and risks of the level of information being shared today. Thought-provoking questions like, “Who do we trust – human intelligence or artificial intelligence?” were posed.
  1. Natural Disasters

In 2017, the U.S. was hit hard with Hurricanes Maria, Harvey and Irma as well as wildfires in California. Outside the U.S., the Caribbean was crushed with those same hurricanes, a devastating earthquake hit Mexico, extreme flooding impacted areas like Bangladesh and Sierra Leone, and areas of China suffered from landslides and typhoons. Unfortunately, this is not an exhaustive list.

As risk professionals we need to look at these occurrences from a different lens, so it was no surprise that the word “catastrophe” was rampant at the RIMS 2018 conference.Catastrophic Loss

  • Stephen Moss explained the anatomy of a catastrophe risk model and pointed out the large protection gap, noting that about 50% of the losses incurred from 2017’s most impactful natural disasters were uninsured.
  • An attorney from McCarter & English, LLP focused on business interruption losses resulting from catastrophic loss, discussing pitfalls that could cause your claims to be undermined as well as best practices for getting coverage.
  • Robert Nusslein of Swiss Re explained parametric natural catastrophe insurance for hurricanes and earthquakes, how it differs from traditional insurance and how it can help fill in gaps.
  • In “The Future of Climate Risk Management”, audiences learned about their company’s climate risks – the size, scale, complexity and reach. Then, the speaker introduced solutions and tools for such risks.
  • James Pierce spoke on “Mother Nature’s Onslaught” and speculated on whether a new norm is needed in combatting natural disasters.
  • One session, “The Sky Fell”, went into further detail on catastrophic claims: common claim mistakes, communication issues between layers of insurance, crisis management tactics, TPA management and more.
  • The CEO and Founder of Orbital Insight, a geospatial analytics company, outlined how technologies like satellite and drone imagery as well as AI and cloud computing can provide insight into catastrophic risk assessments. He even showed audiences imagery showing flood detection for Hurricane Harvey, as one of several illustrations.
  1. Compliance

Compliance is always a key concern in this industry. What changes year to year are the specific areas of compliance focus, some of which are below.

  • Lisa Kerr and Bruce Wineman led a session on multinational program compliance – highlighting regulations, tax law, offshoring and variability as things to look out for.
  • A different presentation focused on Medicare and Medicaid compliance, going over the boatload of associated acronyms, lien compliance, reporting and what to look for in a partner.
  • In “Risk Management, Compliance and Preparedness”, attendees received an overview of SRM and ERM, examples of strategic risk, automation advice and more.

 

If you were able to make it to the RIMS conference this year, I hope this helps you retain they event’s key takeaways. If you couldn’t make it to San Antonio, well, now it’s almost as if you were there!

Please feel free to reach out with any questions, actuarial or otherwise. In the meantime, put RIMS 2019 on your calendar – April 28th – May 1st – in Boston (our backyard). We’re already excited for it!

World Captive Forum Recap: 5 Hot Topics

The World Captive Forum, sponsored by Business Insurance, held its 27th annual conference earlier this month in Fort Lauderdale, Florida. From captive owners, reinsurers, brokers, regulators and more, the event brought together about 300 of industry thought leaders, and we were happy to have taken part (and not just because we got to temporarily escape winter in Boston).

It’s been a few weeks now and we’ve had time to reflect on the topics and issues that really stuck with us after leaving the conference. As always, we wanted to share our vieGlobal Captive Marketwpoint. So if your schedule didn’t allow you to attend the World Captive Forum, or you’re just a little fuzzy on the details several weeks later, we’ve got you covered! Stay in the loop with our event highlights below.

1. International Regulations & Markets

Being the World Captive Forum, it makes sense that there was a significant focus on captive happenings outside of the US. A panel including employees of Willis Towers Watson and the State of Delaware commented on Brexit,, BEPS, IAIS, US tax reform and other issues related to international regulations that are important for the captive market. Later, we heard an update on the Latin American captive market from regional thought leaders. Among other lessons, we learned that Mexico and Colombia have the leading captive markets, while Peru, Argentina and Brazil have various obstacles hindering their captive development and growth.

2. Captives & Benefits

Captives can be a powerful, advantageous funding mechanism for an organization’s employee benefits. But as the world of benefits continues to change and evolve, so too has that structure. Bill Fitzpatrick and Mark Cook provided updates on global (there’s that word again) employee benefits and captives best practices. They outlined some of the different considerations for benefits and captives in different countries. Marsh then led a session on using voluntary benefits to grow your captive. They highlighted the advantages (or benefits, you could say) of voluntary benefits, different products available, factors involving ERISA and other pertinent issues.

3. Medical Stop-Loss

Mark Weinstein of Independent Colleges and Universities Benefits Association (ICUBA) led a discussion around the adding of medical risk to a captive, and all that entails. His panel explored different medical risk structures as well as the significance of risk diversification. In a separate roundtable, representatives from companies like Coca-Cola and Kirkway International covered medical stop-loss captives – their advantages and factors to consider.medical stop-loss

4. Microcaptives & Cells

In light of last year’s Avrahami vs. Commissioner court case ruling, it’s no surprise that microcaptives have been grabbing more of the industry’s attention. Specifically, one panel including Jeremy Huish and Mary Ann McMahon focused on pooling in microcaptives: how it works, best practices, IRS considerations, a look at how pooling relates to Avrahmi and more. The presentation included a case study highlighting The Spinx Company. Later, David Provost of the Vermont Department of Insurance presented with colleagues on the innovative ways to utilize a cell company. The session highlighted benefits like stop-loss protection , outlined the various possible structures and demonstrated it all through a look at an actual client’s experience. Further, a roundtable discussion delved further into the topic of microcaptives and cells.

5. Captive Optimization

A captive is a worthwhile endeavor, but it is a large one. As such, it’s important to make sure you’re getting the most out of it and continually checking for new opportunities that may have arisen due to market or regulatory changes. This theme appeared in a few different sessions at World Captive Forum. In one, “Spicing Up Your Captive”, introduced pensions, cyber, intellectual property, climate risks, reputation and others as food for thought when it comes to new captive strategies.

In another session, our very own Karin Landry, along with Michael Lubben of Henry Crown and Company/CCI, highlighted the importance of undergoing captive refeasibility studies on a regular basis, to ensure there are no missed opportunities and that your captive is keeping up with the changing needs of your organization. The presentation also included a case study. The topic got even more stage time when it was discussed in a roundtable – “Doing More With Your Captive.”

Captive Optimization

 

We hope this recap helped you glean all of the most prevalent and highly discussed issues of the 2018 World Captive Forum, whether you were able to attend or not. As you can see, we weren’t just in it for the weather! We enjoy having the opportunity to look back at each event we go to and sharing our takeaways with like-minded professionals. Keep an eye out for a similar synopsis after the CICA Annual Conference next month!

 

 

Spring Speaking at World Captive Forum

World Captive Forum 2018The Spring team will be happy to escape the cold Boston winter at the end of January and head down to Fort Lauderdale, Florida for Business Insurance’s World Captive Forum. The conference, which will run from January 31st through February 2nd, will be a gathering spot for hundreds of professionals in the captive insurance and risk management industries. Spring has been involved with the World Captive Forum on several prior occasions, and is excited to be both a sponsor of and a speaker at this year’s event.

Karin Landry, Spring’s Managing Partner, will be presenting, “Time For a Captive Refresh?” on Thursday, February 1st from 1-2 PM. If you’re interested in learning how to ensure your captive remains optimized throughout the regulatory and marketplace shifts that happen regularly, you should listen in to Karin’s session. Further, the Spring team will have a home base at booth #13, so feel free to come chat with us.

Spring to Exhibit at Yankee Dental Congress

For the 8th year in a row, Spring is pleased to participate in the annual Yankee Dental Congress annual event that runs from January 24th – 28th in Boston’s Seaport area.

Yankee Dental Congress Boston

Our brokerage arm, Spring Insurance Group, has been helping small businesses, including a large number of Massachusetts Dental Society (MDS) members, to obtain and manage affordable, robust health plans for their employees. Each year, the team looks forward to connecting with new people and meeting existing clients at the event, which brings in about 27,000 industry professionals.

Spring is excited to be exhibit at the Yankee Dental Congress once again this year, as it is a core way for our brokerage to stay in the loop on industry trends and meet professionals who could use our help. If you’ll be attending Yankee Dental in January at the Boston Convention & Exhibition Center, be sure to stop by our booth and say hi! We’ll be at booth #605.

Spring Spotlight: Anne Baldwin

captive feasibility study

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You know the drill by now, right? Meet our financial expert, Anne.

 

Title: Chief Financial Officer

Joined Spring in: June of 2015

At work: Anne handles the day-to-day operations at Spring and works with the executive team to create and implement strategies for growth and improvement. She’s also our go-to for things like expense reports, billing and all things budgetary.

Outside-of-work: We all know of Anne’s love for bowling – she plays in leagues year-round and loves it. Otherwise she enjoys spending time with family and friends.

Favorite season: “Definitely summer…the hotter, the better!” She was not a fan of the 50-something degree days we recently had in July.

Favorite flower: Roses.

Spring Consulting Group

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Favorite food: “Nachos,” she laughs, “pizza is a close second, but I have to go with nachos, they’re the best.” No argument here.

Favorite part about working at Spring: “Definitely the people and the culture, firstly. Secondly, I had never worked in the insurance industry before and I have learned a ton about insurance, healthcare, benefits and risk management. I think what we do is really interesting and I am still learning new things every day; it’s rewarding.”

What is your biggest guilty pleasure? Wine is one of Anne’s biggest vices, but she can’t bring herself to stop – it’s just too good! You know Anne, they say red wine has health benefits, so maybe it’s not a bad thing after all….

 

** Anne’s not big on photos of herself so we decided to showcase two of her favorite things instead of her beautiful face.