Trans City Life Insurance Company, an Arizona Corporation - Page 50

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          A longstanding policy may be ignored if the experience rating               
          formula in effect allows the parties to tailor income, expense,             
          and profit allocation on an individual contract basis.  Id.                 
               Respondent notes that the Agreements arose from a new                  
          relationship, and that the duration of the 1988 Agreement was               
          approximately 6 months.  According to respondent, these facts               
          demonstrate tax avoidance effect.  We disagree.  Although the               
          Agreements arose from a new relationship, the Agreements were               
          unlimited in duration, and petitioner could not unilaterally                
          terminate them.  Although the Agreements proved to be of a                  
          relatively short duration, this was due to Guardian’s decision to           
          recapture the underlying insurance, a decision over which                   
          petitioner had no control.  The Agreements also contained no                
          experience rating provision that allowed the parties to tailor              
          results on an individual contract basis.                                    
               This factor favors petitioner.                                         
               v.  Right To Terminate and Consequences of Termination                 
               The existence of a payback provision that protects a                   
          reinsurer from losses on early termination of the reinsurance               
          agreement following the payment of a large up-front ceding                  
          commission, but before the reinsurer has been able to enjoy the             
          future profit stream, may be a reasonable business practice and             
          should not automatically be viewed as having a tax avoidance                
          effect.  On the other hand, a payback provision which allows a              
          reinsurer to recover all of its losses in any case, through                 
          adjustments in future premiums or specific termination                      





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