Trans City Life Insurance Company, an Arizona Corporation - Page 45

                                       - 45 -                                         
          generate for petitioner anything more than nominal profits, apart           
          from tax savings.  Petitioner replies that the benefit of the               
          small life insurance company deduction is not a tax avoidance               
          effect under section 845(b).  Petitioner claims that it entered             
          into the Agreements for valid and substantial business reasons              
          that went beyond qualifying as a life insurance company.                    
               A tax avoidance effect must be significant to one or both of           
          the parties to a reinsurance agreement in order for the                     
          Commissioner to exercise her authority to make adjustments under            
          section 845(b).  The conference report on DEFRA states that a tax           
          avoidance effect is significant “if the transaction is designed             
          so that the tax benefits enjoyed by one or both parties to the              
          contract are disproportionate to the risk transferred between the           
          parties.”  H. Conf. Rept. 98-861, supra at 1063; 1984-3 C.B.                
          (Vol. 2) at 317.  This test focuses on the economic substance of            
          the agreement, and the conference report sets forth seven factors           
          that help determine an agreement’s economic substance.  These               
          factors, which are nonexclusive and none of which is                        
          determinative by itself, are:  (1) The duration or age of the               
          business reinsured; (2) the character of the business reinsured;            
          (3) the structure for determining the potential profits of each             
          of the parties and any experience rating; (4) the duration of the           
          reinsurance agreement between the parties; (5) the parties’ right           
          to terminate the reinsurance agreement and the consequences of a            
          termination; (6) the relative tax positions of the parties; and             
          (7) the general financial situations of the parties.  Id.                   





Page:  Previous  35  36  37  38  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  Next

Last modified: May 25, 2011