• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar

Reinsurance Focus

New reinsurance-related and arbitration developments from Carlton Fields

  • About
    • Events
  • Articles
    • Treaty Tips
    • Special Focus
    • Market
  • Contact
  • Exclusive Content
    • Blog Staff Picks
    • Cat Risks
    • Regulatory Modernization
    • Webinars
  • Subscribe
You are here: Home / Reinsurance Regulation / TAX COURT DISALLOWS DEDUCTIONS FOR PAYMENTS TO CAPTIVE INSURANCE COMPANY

TAX COURT DISALLOWS DEDUCTIONS FOR PAYMENTS TO CAPTIVE INSURANCE COMPANY

November 7, 2017 by Carlton Fields

A husband and wife who paid $1.54 million in premiums to their captive insurance company and $720,000 in premiums to another insurer over two years, almost all of which ended up back in their bank accounts, have had their tax deductions for those payments disallowed in a lengthy opinion by the United States Tax Court.

The couple, Benyamin and Orna Avrahami, own a set of businesses and commercial properties in the Phoenix, Arizona area. In 2007, they set up a captive insurance company called Feedback, incorporated in St. Kitts and for which they elected treatment as a small insurance company under Internal Revenue Code section 831(b).  While their total insurance expense in the year before they set up Feedback was $150,000, the Avrahamis’ businesses paid Feedback insurance premiums of $730,000 in 2009 and $810,00 in 2010.  One of those businesses also paid Pan American Reinsurance Company $360,000 in both years for terrorism risk insurance, while Feedback participated in a “risk distribution program,” under which Pan American paid Feedback $360,000 in both years.  The Avrahamis then deducted all of these premiums—$1.09 million in 2019 and $1.17 million in 2010—as business expenses.

The IRS began an audit of the Avrahamis in 2012, ultimately disallowing their deductions for insurance expenses paid to Feedback and Pan American. The IRS took the position that the payments to Feedback and Pan American were not actually insurance premiums, and the Tax Court agreed.  The court found that Feedback did not meet the essential insurance characteristic of distributing risk because it only issued 7 policies insuring 3 stores, had 2 key employees, 35 other employees, and 3 commercial properties, all in the Phoenix area, in the relevant years.  Feedback’s purported reinsurance relationship with Pan American did not help to distribute that risk, the court found, because Pan American was not a bona fide insurance company.  The Court based this on its findings that: (1) the premiums Pan American charged were “grossly excessive” when compared with what was available on the market—particularly when the Avrahamis’ own witness could not identify a single event in history to which its terrorism insurance would provide coverage; (2) Pan American distributed virtually all of the premiums it received back to its policyholders or related entities; and (3) it was unlikely that it could actually pay claims if they arose.  The court also found that Feedback did not operate like an insurance company—it issued policies with unclear and contradictory terms, paid no claims until the IRS began its audit, unreasonably invested the premiums in unsecured loans to related parties, and charged “utterly unreasonable” premiums—and thus the premiums paid to it were not actually for insurance.

As a result, the court sustained the IRS’s finding that the Avrahami’s could not deduct the premiums they paid to Feedback and Pan American. However, the court found that these disallowed deductions did not justify imposing penalties on the Avrahamis, despite the fact that much of the advice they received was from an attorney who qualified as a promoter of these transactions, because, in setting up Feedback and taking those deductions, they also reasonably relied on the advice of another attorney who was not a promoter.   The court also found that, because it was not actually an insurer, Feedback did not qualify for treatment as a small insurer under section 831(b), but this also meant that, as a St. Kitts entity, it did not owe any U.S. taxes.

Avrahami et al. v. Commissioner of Internal Revenue, Docket Nos. 17594-13 and 18274-13 (U.S. Tax Ct. Aug. 21, 2017).

This post written by Jason Brost.
See our disclaimer.

Filed Under: Reinsurance Regulation, Week's Best Posts

Primary Sidebar

Carlton Fields Logo

A blog focused on reinsurance and arbitration law and practice by the attorneys of Carlton Fields.

Focused Topics

Hot Topics

Read the results of Artemis’ latest survey of reinsurance market professionals concerning the state of the market and their intentions for 2019.

Recent Updates

Market (1/27/2019)
Articles (1/2/2019)

See our advanced search tips.

Subscribe

If you would like to receive updates to Reinsurance Focus® by email, visit our Subscription page.
© 2008–2025 Carlton Fields, P.A. · Carlton Fields practices law in California as Carlton Fields, LLP · Disclaimers and Conditions of Use

Reinsurance Focus® is a registered service mark of Carlton Fields. All Rights Reserved.

Please send comments and questions to the Reinsurance Focus Administrators

Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please contact us. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites. This site may be considered attorney advertising in some jurisdictions.