Tag Archives: taxable income

Broad Array of Roles for Disability Coverage

In the world of disability insurance, most financial advisers think of personal income protection. This is only the beginning of the possibilities that the adviser may be able to provide to safeguard clients, their businesses and assets. There are many products available within the disability insurance realm and diverse opportunities to provide your expertise.

Diversity of Product:

Key Person

The most valuable asset in a business is the people. Imagine if one of your key executives had an illness or an accident and was unable to work and continue creating revenue and profit for your company. What effect would this have on the bottom line? How would you replace the lost revenue?

Retirement/Deferred Compensation

At a closely held, family owned business, benefit plans favoring the family and the senior management are important for retention and reward. Over the past year, a non-qualified deferred compensation plan is put in place for the top 10 executives. What happens if one of the executives becomes sick or hurt and is unable to work and contribute to the plan? Can the plan be funded? If yes, how?

Contract Fulfillment

The board of a company just signed the largest contract in company history for a new CEO. The contract has financial guarantees, performance bonuses and the other usual language. What happens if the CEO becomes ill or has an accident and is unable to perform his duties? The company is on the hook for the financial guarantees. Should this be funded out of company cash flow or have the liability transferred through a disability insurance policy?

Loan Protection

There are more than 21 million small business loans valued at more than $600 billion. Business loans are taken out for business-related expenses, such as:

  • Purchase or expansion of a practice or business
  • Purchase of a large piece of equipment
  • Facility renovations
  • An increase in working capital or build-up of inventory
  • Purchase of a building or land for a business

It may make sense to provide disability insurance to cover the business loans in the event the business owner has a disabling accident or illness. There are separate insurance policies or riders to a traditional policy that provides benefits to cover the loan or loan payment obligations.

Impaired Risk

Perhaps a client will not qualify for traditional or even non-traditional coverage because of an extensive medical history. Impaired risk coverages can work for pre-existing medical conditions.

Diversity of Opportunity:

QSPP Can Prevent Dysfunction and Disruption

  • Could you continue to pay a disabled employee’s salary from your business?
  • How long could you afford to pay a salary?
  • Would the payments you pay be deductible to your business?

It is the American dream: turn a simple idea into a start-up and, through innovation, hard work and the right people, grow that start-up into an industry leader. It may seem obvious that a business owner would want to do everything to protect the people who help grow the business. As the business grows, however, offering everyone the same protection in the case of injury or illness may become difficult. Owners have a tendency to focus on partners, executive staff and key employees. This is a completely logical line of thinking, but without a Qualified Sick Pay Plan (QSPP) in place, it could put the business at high risk.

A QSPP is a formalized plan determining who will be paid, how much will be paid and how long salary will be continued when employees are unable to work because of an injury or illness. The plan can have different determinations for different classes of employees within the company. It can also be self-funded, or funded through an insured product, such as disability income policies.

Why a QSPP?

There are two key reasons: tax implication of benefits paid and potential precedent. The Internal Revenue Code states that wages paid to a disabled employee may not be deductible as a business expense unless they are paid under a salary continuation program. Without a program in place, any payments made are not deductible by the business and are fully taxable to the employee.

The implementation of a plan allows a business to deduct wages paid to employees who cannot work, and an employee can receive qualified benefits tax-free. The absence of a QSPP could result in the IRS disallowing benefits paid to an employee as sick pay. This would have serious tax implications on the employer and the employee.

An even greater danger to an employer is the existence of benefit payment precedent. It may seem completely logical to continue the salary of key employees responsible for revenue growth, but, without a QSPP, any sick pay for any employee creates a precedent of the same pay for all employees. Any variation between employees could be viewed as discrimination. To eliminate this risk, it is important to create a formal, written plan stating any differences of salary continuation length or frequency between classes of employees before an employee needs to use it.

How Is a QSPP Implemented?

A QSPP requires two components: a plan resolution and plan letters to employees.

A plan resolution is drafted and executed by the company’s board. This resolution defines the classes of employees, how benefits will be paid and how long they will be paid.

Plan letters communicate the information to the employees. They can be class-specific.

How Can Benefits Under a QSPP Be Funded?

This is an important consideration. A QSPP can be fully self-funded, fully insured or a combination. If a plan is fully self-funded, the company can be burdened with all of the responsibility of determining who cannot work and how long they can’t work and of paying benefits from company accounts during a time when, depending on the person who cannot work, the company may need the funds the most. Additionally, the FASB 112 Accounting Rule makes a company become an insurance company by requiring it to carry the present value of future claims as a liability on the balance sheet if it chooses to self-fund a salary continuation program. Two implications of FASB 112 are:

  • Companies with self-funded disability programs must set aside all the money upfront
  • This requirement can significantly reduce profits while increasing liabilities

Under a QSPP plan with disability income insurance, the insurance company determines when your employees cannot work, the insurance company determines how long they cannot work and the company pays smaller, regular payments for the benefit during a time when all employees are actively at work. A fully insured plan not only takes much of the liability away from the employer, but it also allows the company to predict future plan costs. Disability income insurance premiums are level for the life of the policies. Three tax shelters of an insured salary continuation program are:

  • Premiums paid are deductible as a fringe benefit expense (IRC Section 162(a)).
  • Employer premiums are not included in employee’s taxable income. (IRC Section 106).
  • A special tax credit may be available for employees that are permanently and totally disabled (IRC Section 22(b)).

In working with the son of the owners of a medium-sized technology security firm, I learned that Mom and Dad would take care of the son if anything were ever to happen. As a financial adviser, what do we do now? A conversation about the company benefits and what the parent/owners wanted to have happen with their family and their employees created an opportunity. By educating the clients on sick pay plans, we were able to provide better recommendations to the owner (parents) for the benefit of the son and the other employees while keeping the firm in legal compliance.

Divorce Settlements

Most if not all settlements include division of assets and liabilities owned by the parties. Additionally, when appropriate, especially if there are children involved, there is an alimony agreement. What happens to the continuing alimony payment if the payer becomes sick or hurt and unable to earn the income to make the support payment?

With the divorce rate at 50% or higher for U.S. marriages, there is an opportunity to protect a spouse and provide the children a source of income used for living and educational expenses. The solution is to place a disability insurance policy on the payer, with the spouse as beneficiary.

Occupational Diversity

Students, coaches, umpires, golf professionals, chefs, race car drivers, comedians and musicians, to name just a few, are thought to have a hard time obtaining disability income insurance. They are not hard to insure if you are able to go a little deeper within the traditional markets or outside to the non-traditional markets.

Our hobbies sometimes position us to have access to people in these diverse occupations. One of my hobbies is to watch, listen and learn from professional speakers. It has been a privilege to spend time with some of the all-time greats. I am always amazed at their accessibility if you step forward and participate. Once, I hosted Chris Gardner, who became nationally know for his life story through the movie “Pursuit of Happiness,” where his role was played by Will Smith. As Chris and I began building a relationship, he learned about our firm, and it became evident that no one had spoken to him about protecting his flow of income from a disabling accident or illness.

There are many diverse opportunities for you as the adviser to protect your client’s flow income, business entity and valued assets. Think beyond personal disability insurance and help your clients understand their needs to secure their financial foundations.

A Crucial Role for Annuity ‘Structures’

Every year millions of injured Americans confront critically important financial decisions as their personal injury litigation draws to a close. In planning the path forward and beyond their injuries, the stability and security of ongoing, lifelong income from their settlement, judgment or award proceeds becomes absolutely paramount. The money simply needs to last.

Only one post-injury investment option – – structured settlement annuities or “structures” – – provides a continuing tax exemption for the growth of such benefits.  If the injured individual agrees to a lump sum settlement, the tax exemption for lifelong income disappears.

As of 1983, the Periodic Payment Settlements Act (see also IRS regulation Sec. 104(a)(2)) has made all income from a structured settlement annuity over the lifetime of that individual entirely, unequivocally and absolutely tax-free. Contrasted with a lump sum payment in which only the initial payment is tax free and all subsequent earnings are subject to all applicable forms of state and federal taxation, the structured settlement is considered an insurance policy for payments rather than asset to be taxed upon growth. This view, accepted by Congress in that 1983 Act, makes the value of a structure staggering.

For example, if the injured individual deposits the lump sum settlement proceeds in a bank account, any interest earned would be taxed accordingly. If the injured individual invests the money in taxable bonds or stocks, the interest and dividends would also be classified as taxable income. However, with structured settlement annuity payments, neither the growing COLA payments nor the lump sum scheduled payments, nor the payments beyond life expectancy are ever taxable. If the injured party were to decide on an annuity payout after receiving the funds, the tax benefit would be lost because the funds were accepted separately from the settlement. The critical element is that the structure must be accepted as the payout vehicle initially.

The Tremendous Value of Tax-Free Status

The tax-free effect is quite dramatic. Consider an injured individual in the 28% tax bracket with a 2% fee for a traditional, market-based investment portfolio. In addition to having the risk of a significant reduction or entire loss of funds, the individual’s income from the investment when they are successful will face federal taxes that can reduce actual net income by 30% before accounting for state and local taxes that could tack on another 5% reduction. None of these risks or reductions exists with income from a structured settlement.

For an individual in the 10% tax bracket, earning a 4% return would have the equivalent pre-tax return of 4.44%, and a 15% tax bracket would mean an equivalent pre-tax return of 4.7%.

While a peripheral advantage, the tax-free nature of the structure payout means the individual recipient is not required to deal with the timing and accounting issues associated with the need to pay estimated taxes on this money. With a taxable event, the taxes would be the quarterly responsibility of the recipient. An error in dealing with the estimated taxes could create recurring tax problems.

Therefore, structures not only safeguard the injured individual from the volatility of the stock market, they provide continuing income that one can count on down to the penny and to the day. No wild, market-swing surprises. No reductions in income for taxes. No tax filings and accounting homework.

The Gift That Keeps Giving (and Gives in Other Ways)

In addition to the tax-free opportunity, there are other critical reasons to value the structured settlement for the injured individual. First and foremost, the structure enables the individual to couple the tax advantages with the capacity to schedule weekly income and significant payouts for any future expenses like college tuition, wedding costs or retirement needs to the day and to the penny without any worry about market or 401(k) performance. In addition, because structures are considered a policy for payment rather than an asset, such proceeds generally do not affect eligibility for needs-based public assistance programs like AFDC or Medicaid, as lump sums do. Even if the injured individual is not on Medicaid at the time of the injury, eligibility for many programs — in-facility care, for example — often requires the absence of any significant assets.   As a policy rather than an asset, structure income would be immune from eligibility consideration. Lump sums such as an investment account or a bank account are highly likely to be considered assets that must be eliminated for Medicaid eligibility.

Quite simply, structures may very well be the best way to make sure that the money is peace-of-mind predictable, maximizes other income and benefits and lasts for a lifetime. However, with only 5% of eligible dollars placed in structured settlement annuities, billions in tax exemptions — as well as the opportunity for continuing income security — are squandered every year.

Is a Post-Injury Financial Portfolio “Balanced” Without a Structured Settlement?

While frequently considered an all-or-nothing option, the structured settlement annuity can be used for whatever portion of the settlement, judgment or award that the injured individual chooses.  As with all responsible portfolio plans, balance is a critical value.

With a structure, an injured individual can tailor and fund her entire financial future. In addition to continuing payments, what is scheduled today will be there, exactly as needed, for a lifetime of tomorrows. It is possible to establish a college fund, for example, as part of the settlement that would both schedule and quantify tuition — all tax-free.

Given its value, security and stability, is any post-injury financial plan truly “balanced” without taking advantage of structured settlements? As a highly unusual, tax-free, benefits-exempted gift from the U.S. Congress to the nation’s injured individuals, structures should be a critical feature to secure their financial futures.

How to Prevent IRS Issues for Captives

A regulator of captive insurance is responsible for many aspects of the business of captive insurance companies. He or she must coordinate the application process for obtaining a license, including the financial analysis and financial examination of each captive insurance company. The regulator is also a key marketing person in promoting the domicile as a favorable place to do business, thus fostering economic development for the state.

The captive regulator is not, however, a tax adviser. No statute and regulation in any domestic domicile requires an analysis of the potential tax status of the captives under consideration or under regulation. If the application complies with the stated statutory and regulatory requirements, the regulator must favorably consider the application and allow the new company to be licensed as an insurance company under state law.

That new insurance company may not, however, be considered an insurance company under federal tax law. The Internal Revenue Service recently listed captives as one of their annual “Dirty Dozen” tax scams, citing “esoteric or improbable risks for exorbitant premiums.” And at least seven captive managers (and therefore their clients) have been targeted for “promoter” audits, for allegedly promoting abusive tax transactions.

Yet all of these captives received a license from a regulator, mostly in the U.S. Obviously these regulators did not consider the pricing of the risks to be transferred to the captive, except perhaps at the macro level.

Should the domicile care about the potential tax status of licensed captives? David Provost, Vermont’s Deputy Commissioner of Captive Insurance, has said, “We do not license Section 831(b) captives; we license insurance companies.” While that statement is technically correct, this paper argues that, with respect to small captives, regulators should care about the tax implications of licenses in extreme cases, consistent, of course, with the laws and regulations under which it operates.

Small captives, i.e. those with annual premiums of no more than $1.2 million, can elect under section 831(b) of the Internal Revenue Code to have their insurance income exempt from federal taxation. This provision, combined with certain revenue rulings and case law, creates a strong tax and financial planning incentive to form such a captive insurance company.

This incentive can lead to an “over-pricing” of premiums being paid to the new captive, to maximize the tax benefits on offer. The premiums may be “over-priced” relative to market rates, even after being adjusted for the breadth of policy form, size and age of the insurance company and, in some cases, the uniqueness of the risk being insured by the captive. But “over-priced” in whose eyes?

Insurance regulators are usually more concerned with whether enough premium is being paid to a captive to meet its policy obligations. From that perspective, “too much” premium can never be a bad thing. Indeed, captive statutes and regulations generally use the standard of being “able to meet policy obligations” as the basis of evaluating captive applications or conducting financial reviews. And actuarial studies provided with captive applications generally conclude that “…the level of capitalization plus premiums will provide sufficient funds to cover expected underwriting results.”

These actuarial studies do not usually include a rate analysis, by risk, because none is required by captive statute or regulation.

Small “831(b)” captives, therefore, may easily satisfy the financial requirements set forth in captive statutes and regulations. If, however, the Internal Revenue Service finds on audit that the premiums paid to that captive are “unreasonable,” then the insured and the captive manager may face additional taxes and penalties, and the captive may be dissolved, to the loss of the domicile.

And, as has happened recently, the IRS may believe that a particular captive manager has consistently over-priced the risk being transferred to its captives and may initiate a “promoter” audit, covering all of those captives. Such an action could result in unfavorable publicity to the domiciles that approved those captive applications, regardless of the fact that the regulators were following their own rules and regulations to the letter.

It is that risk of broad bad publicity that should encourage regulators to temper the rush to license as many captives as possible. There should be some level of concern for the “reasonableness” of the premiums being paid to the captives.

One helpful step would be to change captive statutes or regulations to require that actuarial feasibility studies include a detailed rate analysis. Such an analysis would compare proposed premium rates with those of the marketplace and offer specific justifications for any large deviations from market. (Given the competition among jurisdictions for captive business, such a change would only be possible if every domicile acted together, eliminating the fear that a domicile would lose its competitive edge by acting alone.)

Absent such a change, however, regulators still have the power to stop applications that do not pass the “smell test.” Most captive statutes require each applicant to file evidence of the “overall soundness” of its plan of operation, which would logically include its proposed premiums. If the premiums seem unreasonably high for the risks being assumed, the plan of operation may not be “sound,” in that it might face adverse results upon an IRS audit.

Regulators are not actuaries and often have had little or no underwriting experience. They, therefore, could not and should not “nit-pick” a particular premium or coverage. But some applications may be so egregious on their face that even non-insurance people can legitimately question the efficacy of the captive’s business plan.

Insurance professionals know from both experience and nationally published studies that the cost of risk for most companies is less than 2% of revenue. “Cost of risk” includes losses not covered by traditional third-party insurance, which are generally the type of losses covered by “small” captive insurance companies.

If a captive regulator receives an application in which the “cost” of coverage by that captive is, say, 10% to 12% or more of the revenue of the insured, alarm bells should go off. That captive certainly would have plenty of assets to cover its policy obligations! But in the overall scheme of things, including the real world of taxation, that business plan is not likely “sound.”

At that point, the regulator has a choice of rejecting the applicant, requiring a change in the business plan/premiums or demanding additional support for the proposed plan. We are aware of one case in which the captive regulator required the applicant to provide a rate analysis from an independent actuary when he received an application whose premiums did not appear reasonable.

A rate analysis is not, of course, a guarantee that the IRS will find the premiums acceptable on audit. No one can expect guarantees, but a properly done rate analysis has a better chance of assuring all the parties that the captive has been properly formed as a real insurance company and not simply as a way to reduce the taxable income of the insured and its owners.

Captive insurance regulators have a big job, particularly as the pace of captive formations increases. To protect the domicile from appearing on the front page of the Wall Street Journal, the regulator must consider all aspects of the proposed captive’s business, including, in extreme cases, its vulnerability to adverse federal tax rulings.