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This article was written by Lance Wallach, who offers consultancy services to captive insurers.
The captive industry must brace itself for the Internal Revenue Service (IRS) to continue its attacks on the micro-captive, or 831(b) captives industry. The US needs to raise money and the IRS will be given a lot more resources to audit abusive tax shelters like captives, as well as some conservation easements and cryptocurrencies, as a way of raising it.
Hundreds of captive participants have called me for help in recent years, with a variety of different problems and concerns. I served for a period as an expert witness in a case against CIC Services. CIC then went on to beat the IRS in the US Supreme court.
The IRS has every incentive to keep going after micro-captives: in my experience, most disclosure forms are not done properly and the fines are large; and while I like captives, not all small captives follow the law.
Last year I met the IRS Commish and some of his assistants, before they stepped up their attacks on small captives. Since then the IRS has increased the number of people on hand to audit small captives. It has also increased the amount of money and training available for captive audits.
The IRS has long viewed micro-captive insurance transactions as potentially abusive tax transactions. Micro-captives first appeared on the IRS “Dirty Dozen” list of tax schemes in 2014 and have been a priority enforcement issue for the IRS ever since.
Captives that make an election under section 831(b) are taxed on their investment income and not on their underwriting income or losses. Although many related parties use section 831(b) captive insurance companies for non-tax risk-management purposes, the IRS has a longstanding concern regarding section 831(b) captives, and issued Notice 2016-66 identifying many section 831(b) captives as “transactions of interest.”
On April 9, 2021, the IRS issued IR-2021-82, which urged participants in abusive micro-captive insurance arrangements to exit these transactions as soon as possible. At the time of the release, the IRS noted it has increased examinations of micro-captive arrangements and that it recently won another US Tax Court Case with the March 10, 2021 ruling in Caylor Land & Development versus Commissioner, TC Memo 2021-30 (Caylor).
Do not expect these attacks to stop just because of its setback in the high court with CIC Services.
Lance Wallach, Internal Revenue Service, IRS