TAX
MATTERS: ABUSIVE INSURANCE PLANS GET RED FLAG
by Lance Wallach
Finance / Taxes
The IRS in Notice 2007-83 identified as listed transactions
certain trust arrangements involving cash-value life insurance policies.
Revenue Ruling 2007-65, issued simultaneously, addressed situations where the
tax deduction has been disallowed, in part or in whole, for premiums paid on
such cash-value life insurance policies. Also simultaneously issued was Notice
2007-84, which disallows tax deductions and imposes severe penalties for
welfare benefit plans that primarily and impermissibly benefit shareholders and
highly compensated employees. Taxpayers participating in these listed
transactions must disclose such participation to the Service by January 15.
Failure to disclose can result in severe penalties--- up to $100,000 for
individuals and $200,000 for corporations. Ruling 2007-65 aims at situations
where cash-value life insurance is purchased on owner/employees and other key
employees, while only term insurance is offered to the rank and file. These are
sold as 419(e), 419(f) (6), and 419 plans. Other arrangements described by the
ruling may also be listed transactions. A business in such an arrangement
cannot deduct premiums paid for cash-value life insurance. A CPA who is
approached by a client about one of these arrangements must exercise the utmost
degree of caution, and not only on behalf of the client. The severe penalties
noted above could also be applied to the preparers of returns that fail to
properly disclose listed transactions. The IRS may challenge the claimed tax
benefits of these arrangements for various reasons:
· Some or all of the benefits or distributions provided to or for the benefit of owner-employees or key employees may be disqualified benefits for purposes of the 100-percent excise tax under IRC §4976.
· Whenever the property distributed from a trust has not been properly valued by the taxpayer, the IRS intends to challenge the value of the distributed property, including life insurance policies.
· Under the tax benefit rule, some or all of an employer's deductions in an earlier year may have to be included in income in a later year if an event occurs that is fundamentally inconsistent with the premise on which the deduction was based.
· An employer's deductions for contributions to an arrangement that is properly characterized as a welfare benefit fund are subject to the limitations and requirements of the rules in IRC §§419 and 419A, including the use of reasonable actuarial assumptions and the satisfaction of nondiscrimination requirements. Further, a taxpayer cannot obtain a deduction for reserves for post-retirement medical or life benefits unless the employer actually intends to use the contributions for that purpose.
· The arrangement may be subject to the rules for split-dollar arrangements, depending on the facts and circumstances.
· Contributions on behalf of an owner-employee may be characterized as dividends or as nonqualified deferred compensation subject to IRC §404(a)(5) or IRC §409A or both, depending on the facts and circumstances.
· Some or all of the benefits or distributions provided to or for the benefit of owner-employees or key employees may be disqualified benefits for purposes of the 100-percent excise tax under IRC §4976.
· Whenever the property distributed from a trust has not been properly valued by the taxpayer, the IRS intends to challenge the value of the distributed property, including life insurance policies.
· Under the tax benefit rule, some or all of an employer's deductions in an earlier year may have to be included in income in a later year if an event occurs that is fundamentally inconsistent with the premise on which the deduction was based.
· An employer's deductions for contributions to an arrangement that is properly characterized as a welfare benefit fund are subject to the limitations and requirements of the rules in IRC §§419 and 419A, including the use of reasonable actuarial assumptions and the satisfaction of nondiscrimination requirements. Further, a taxpayer cannot obtain a deduction for reserves for post-retirement medical or life benefits unless the employer actually intends to use the contributions for that purpose.
· The arrangement may be subject to the rules for split-dollar arrangements, depending on the facts and circumstances.
· Contributions on behalf of an owner-employee may be characterized as dividends or as nonqualified deferred compensation subject to IRC §404(a)(5) or IRC §409A or both, depending on the facts and circumstances.
Lance Wallach speaks and writes about benefit plans, and has authored numerous books for the AICPA, Bisk Total tape, and others. He can be reached at (516) 938-5007. Lance Wallach, the National Society of Accountants Speaker of the Year, speaks and writes extensively about retirement plans, Circular 230 problems and tax reduction strategies. He speaks at more than 40 conventions annually, writes for over 50 publications, is quoted regularly in the press, and has written numerous best-selling AICPA books, including Avoiding Circular 230 Malpractice Traps and Common Abusive Lance Wallach, National Society of Accountants Speaker of the Year and member of the AICPA faculty of teaching professionals, is a frequent speaker. Contact him at 516.938.5007, wallachinc@gmail.com or visithttp://www.taxaudit419.com.
The information provided herein is not intended as legal,
accounting, financial or any type of advice for any specific individual or
other entity. You should contact an appropriate professional for any such
advice.
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