On January 10, 2025, the Department of the Treasury (“Treasury”) and the Internal Revenue Service (“IRS” or “Service”) issued final regulations (“Final Regulations”) under Regulation Sections 1.6011-10(a) and 1.6011-11(a) associated with micro-captive listed transactions and micro-captive transactions of interest.
The Final Regulations substantially modify certain aspects of the proposed regulations (“Proposed Regulations”), such as the Listed Transaction Loss Ratio Computation Period (“Loss Ratio Factor”) and leave certain aspects of the proposed regulations mostly unchanged, including the Financing Computation Period. Additionally, the Final Regulations modify the exception from the status as a listed transaction or transaction of interest if certain statutory qualifications are met to qualify as a Seller’s Captive; a captive related to a seller, an owner of a seller, or individuals or entities related to a seller (commonly known as the “Consumer Coverage Exception”). These changes implemented in the Final Regulations reflect the efforts of the many stakeholders who provided comments and generally result in a narrower and more taxpayer friendly application.
The remainder of this blog post is dedicated to an initial high-level summary of the changes made by the Final Regulations and how they may impact your business.
1. Background
In April 2023 (and, as previously discussed here), the IRS issued Proposed Regulations to identify and combat perceived abusive micro-captive insurance transactions. These regulations classified certain micro-captive transactions as listed transactions, while others remained transactions of interest. The Proposed Regulations also provided a limited exception for the Finance and Insurance (“F&I”) industry and F&I captives, known as the Consumer Coverage Arrangement Exception.
2. Changes in Final Regulations
a. Loss Ratio Computation Period
For purposes of determining whether a micro-captive transaction is classified as a listed transaction, the Loss Ratio Factor is now set at less than 30 percent over the most recent 10 years. The Final Regulations significantly reduced this threshold from 65 percent, narrowing the reach for the number of captives the Final Regulations would classify as a listed transaction. An important reminder is that listed transactions are ones the IRS has determined are abusive and the IRS’ stated goal is to examine every transaction.
In the preamble to the Final Regulations the IRS addressed the need to lower the Loss Ratio Factor from less than 65 percent to less than 30 percent primarily based on the results in R.V.I. Guar Co., Ltd. & Subs. v. Commissioner, 145 T.C. 209 (2015) which supported a lower loss ratio analyzed over 5 ten-year periods.
For transactions of interest, the Loss Ratio Factor was slightly reduced to less than 60 percent over the most recent ten years or since the Captive has been in existence, allowing for broader classification, consistent with Treasury’s desire to identify potential tax avoidance transactions.
With the adoption of the Final Regulations, captive insurers should monitor their claims activity relative to their premium earnings to avoid falling below the applicable threshold. Comprehensive documentation of premium pricing, claims, loss adjustment expenses, policy holder dividends, and support of loss reserves will be critical to substantiate compliance.
b. Financing Computation Period
The Final Regulations generally left the Financing Computation Period for identifying listed transactions unchanged; however, the Final Regulations expanded the application to transactions of interest. The financing component focuses on transactions where captives engage in financial transfers or arrangements that benefit related parties by creating what the IRS refers to as a circular flow of funds, potentially signaling tax avoidance during the 5 most recent taxable years. One common example would be the issuance of related party loans.
c. Conjunctive Test for Listed Transactions
A micro-captive listed transaction exists if the Loss Ratio Factor, as calculated over the Loss Ratio Computation Period is less than 30 percent and the Financing Computation Period, is also satisfied. A micro-captive transaction of interest will exist if one or both tests are satisfied—but with a higher Loss Ratio Factor of less than 60 percent.
The conjunctive approach adopted in the Final Regulations for listed transactions is consistent with the general understanding that not all financing arrangements are indicative of tax avoidance and are frequently conducted at arm’s length. It is expected that this will significantly narrow the number of micro-captives the Final Regulations would deem as a listed transaction.
The absence of a conjunctive test for transactions of interest is nonetheless consistent with Treasury’s belief that tax avoidance may still exist in the context of related-party financing arrangements.
3. Changes to the Consumer Coverage Arrangement Exception
Both the Proposed Regulations and Final Regulations provided an exception to listed transactions and transactions of interest involving captives that participate in consumer coverage arrangements. The exception is intended to exclude bona fide seller-related insurance arrangements from the heightened scrutiny and compliance requirements associated with listed transactions. By focusing on business exclusivity and unrelated customer thresholds, the rule distinguishes consumer coverage arrangements, including warranty arrangements, from potential tax avoidance schemes.
a. Commissions Test
The Final Regulations notably remove the commissions test that was included in the Proposed Regulations. Under the Proposed Regulations, a Seller’s Captive could qualify for the Consumer Coverage Exception only if commissions or fees earned from selling contracts met a minimum threshold of 50 percent of premiums, or an unrelated commission percentage. As MarksNelson noted in our comment letter on the Proposed Regulations, it was not clear what criteria or other basis Treasury used to identify 50 percent as the appropriate minimum threshold. Further, while the proposed minimum threshold was attempting to provide some level of objective certainty there was no substantive connection to the economic realities of the underlying transaction (i.e., the sale of a warranty contract between an unrelated customer and the seller, including an automobile dealership).
b. Percent Related Party Sale Safe Harbor
The Final Regulations also added a de minimis safe harbor to the Consumer Coverage Exception recognizing that from time-to-time a Seller, which means a service provider, dealer, lender, wholesaler, or retailer that sells products or services to customer who purchase insurance contract in connection with those products or services and at least 95 percent of sales are to unrealized customers, might engage in a transaction with related individuals. Therefore, at least 95 percent of a micro-captive's business must be from product or service-related insurance risk that was purchased by unrelated customers of the Seller. This amount was previously 100 percent.
c. Impact on GAP and Other Dealer Obligor Products
While not specifically addressed in the Final Regulations, dealer obligor products—products for which sellers are a transitory or residual obligor under the retail contract—appear in large part to qualify for the Consumer Coverage Exception. The Preamble to the Final Regulations indicates that products which “ultimately benefit unrelated customers” and do not cause a Seller’s income tax return to “reflect the tax benefits” of an insurance transaction will likely qualify for the Consumer Coverage Exception.
As we continue to review the Final Regulations and the Service’s response to comments on the Proposed Regulations, we will issue additional articles in the coming weeks addressing key aspects of the Final Regulations in greater detail.
In the meantime, if you have any questions about the Final Regulations please reach out to a member of the MarksNelson Advisory Insurance Tax practice.
David Kaseff – dkaseff@mnadvisors.com
Tammy Siegrist – tsiegrist@mnadvisors.com
Laurie Bizzell – lbizzell@mnadvisors.com
Ian Osler – iosler@mnadvisors.com
Eli Colmenero – ecolmenero@mnadvisors.com
