- 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
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