Hospital Corporation of America and Subsidiaries - Page 50

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               Indemnity.  As a valid insurance company under Colorado law,           
               Health Care Indemnity's assets cannot be reached by its                
               shareholders except in conformity with the statute.                    
                    Health Care Indemnity was fully capitalized and no                
               agreement ever existed under which the subsidiaries or                 
               Humana Inc. would contribute additional capital to Health              
               Care Indemnity.  The hospital subsidiaries and Humana Inc.             
               never contributed additional amounts to Health Care                    
               Indemnity nor took any steps to insure Health Care                     
               Indemnity's performance.  It is also undisputed that the               
               policies purchased by the hospital subsidiaries and Humana             
               Inc. were insurance policies as commonly understood in the             
               industry.  The hospital subsidiaries and Humana Inc. entered           
               into bona fide arms length contracts with Health Care                  
               Indemnity.  Health Care Indemnity was formed for legitimate            
               business purposes.  Health Care Indemnity and the hospital             
               subsidiaries conduct legitimate businesses and are devoid of           
               sham.  No suggestion has been made that the premiums were              
               overstated or understated.  Health Care Indemnity did not              
               file its income tax returns on a consolidated basis with               
               Humana Inc. and its subsidiaries.  Humana Inc.'s insured               
               subsidiaries own no stock in Health Care Indemnity, nor vice           
               versa.  [Humana, Inc. v. Commissioner, 881 F.2d at 253;                
               citation omitted.]                                                     
               The Court of Appeals specifically adopted the balance sheet            
          and net worth analysis described in Clougherty Packing Co. v.               
          Commissioner, 811 F.2d at 1305,11 to analyze whether risks had              

          11  In Clougherty Packing Co. v. Commissioner, 811 F.2d 1297                
          (9th Cir. 1987), affg. 84 T.C. 948 (1985), the taxpayer parent              
          incorporated a Colorado captive insurance company to reinsure a             
          portion of the workers' compensation risks primarily insured by a           
          third party insurance carrier.  In affirming our decision that              
          risks had not shifted to the captive insurer, the Court of                  
          Appeals for the Ninth Circuit neither adopted nor rejected                  
          respondent's economic family concept, stating as follows:                   
                    In reaching our holding, we do not disturb the                    
               separate legal status of the various corporate entities                
               involved, either by treating them as a single unit or                  
               otherwise.  Rather, we examine the economic                            
               consequences of the captive insurance arrangement to                   
                                                             (continued...)           




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