102
HARRIS TRUST AND SAV. BANK Opinion of the Court
benefits will be payable in fixed amounts." Id., at 71. A variable annuity, we held, is not an "insurance policy" within the meaning of the statutory exemption because the contract's entire investment risk remains with the policyholder inasmuch as "benefit payments vary with the success of the [insurer's] investment policy," id., at 69, and may be "greater or less, depending on the wisdom of [that] policy," id., at 70.
Thereafter, in SEC v. United Benefit Life Ins. Co., 387 U. S. 202 (1967), we held that an annuity contract could be considered a nonexempt investment contract during the contract's accumulation phase, and an exempt insurance contract once contractually guaranteed fixed payouts began. Under the contract there at issue, the policyholder paid fixed monthly premiums which the issuer placed in a fund—called the "Flexible Fund"—invested by the issuer primarily in common stocks. At contract maturity the policyholder could either withdraw the cash value of his proportionate share of the fund (which the issuer guaranteed would not fall below a specified value), or convert to a fixed-benefit annuity, with payment amounts determined by the cash value of the policy. During the accumulation phase, the fund from which the policyholder would ultimately receive benefits fluctuated in value according to the insurer's investment results; because the "insurer promises to serve as an investment agency and allow the policyholder to share in its investment experience," id., at 208, this phase of the contract was serving primarily an investment, rather than an insurance, function, ibid.
The same approach—division of the contract into its component parts and examination of risk allocation in each component—appears well suited to the matter at hand because ERISA instructs that the § 1101(b)(2)(B) exemption applies only "to the extent that" a policy or contract provides for "benefits the amount of which is guaranteed." Analyzing GAC 50 this way, we find that the contract fits the statutory exclusion only in part.
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