- 50 - 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...)Page: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Next
Last modified: May 25, 2011