UNITED STATES TAX COURT

T.C. Memo. 2000-203

UNITED STATES TAX COURT

MINNESOTA LAWYERS MUTUAL INSURANCE COMPANY AND SUBSIDIARIES,

Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 21181-97.

Filed June 30, 2000.

Myron L. Frans, for petitioner.

John C. Schmittdiel, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

THORNTON, Judge:

Respondent determined deficiencies in

petitioner’s Federal income taxes as follows:

Taxable year

Deficiency

1993

1994

1995

$712,570

436,295

380,570

-2The sole issue for decision is what portion of petitioner’s

reserves for unpaid losses and related loss adjustment expenses

(unpaid loss reserves) should be included in its computation of

“losses incurred” as defined in section 832(b)(5).

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the taxable years in issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

FINDINGS OF FACT

The parties have stipulated some of the facts, which are

incorporated by this reference.

Petitioner

Petitioner, Minnesota Lawyers Mutual Insurance Co., was

incorporated in Minnesota on May 28, 1981, as a mutual property

and casualty insurance company.

Petitioner was formed after a

task force of the Minnesota State Bar Association recommended the

establishment of a self-insured program for professional

liability insurance for practicing lawyers in Minnesota.

Before 1993, petitioner wrote exclusively professional

liability insurance in Minnesota.

In 1993, petitioner began

expanding its operations outside Minnesota and offering a

commercial multiple-peril policy.

Throughout its existence,

however, petitioner has sold primarily professional liability

insurance policies for lawyers.

-3State-Imposed Requirements

Since its incorporation in 1981, petitioner has been

regulated by the Minnesota Department of Commerce (the

department).

Petitioner's affairs, practices, and financial

condition are periodically subject to examination by the

department’s insurance division.

Each year, petitioner is required to file with both the

department and the National Association of Insurance

Commissioners (NAIC) a copy of its NAIC annual statement, and to

deliver a statement of actuarial opinion regarding the adequacy

of its reserve levels.

At all times relevant to this case,

petitioner complied with these requirements.

Throughout its existence, petitioner was required under

Minnesota State law to maintain a minimum surplus of $1 million.1

Petitioner’s Early Financial Problems and Remedial Actions

Between 1982 and 1985, petitioner’s reported surplus

deteriorated from $1,433,544 to $1,011,148.

Petitioner’s audited

financial statements for 1985, issued by Ernst & Whinney on

May 10, 1986, restated petitioner’s December 31, 1985, surplus as

$7,995 and noted that petitioner did not meet the surplus level

required by Minnesota statutes.

1

Petitioner's surplus is the excess of its assets over its

liabilities, which include the amounts estimated to be necessary

to satisfy its obligations for unpaid losses and allocated loss

expenses. As a liability item on petitioner's balance sheet, its

loss reserves directly reduce petitioner's surplus.

-4In the mid-1980’s, the department began examining

petitioner’s financial condition and criticized petitioner for

its inadequate surplus, loss reserving practices, and reinsurance

arrangements.

Petitioner began to take a variety of steps to improve its

financial condition.

In 1985, as part of its plan to improve its

operations and reduce expenses, petitioner hired Timothy Gephart

(Gephart) as vice president of claims.2

Under Gephart’s

direction, petitioner began the process of developing a claims

procedure manual and eventually hired two additional employees in

its claim department.

In late 1985 or early 1986, petitioner

doubled from $7,500 to $15,000 its minimum reserve for each claim

received.

In 1986, petitioner established a new bulk reserve for

“adverse loss development”.3

In 1986, the department approved

two premium increases for petitioner.

On March 24, 1986, the department’s commissioner ordered a

special examination of petitioner and appointed a special

examiner to perform operations audits and underwriting

procedures.

In a May 14, 1986, report to the department’s

commissioner, the special examiner stated that even though

petitioner’s March 31, 1986, adjusted surplus was only $302,478,

2

Initially, petitioner had no claim department but instead

relied on an outside law firm to manage its claims.

3

As of Sept. 30, 1986, the adverse loss reserve had reached

a level of $626,000.

-5he did not recommend that petitioner be made a candidate for

“rehabilitation”, because of petitioner’s actions to increase its

premiums and reserves and to obtain additional paid-in capital.

The special examiner continued to review petitioner's activities

until December 31, 1987.

In 1989, as part of its regular, triennial examination of

insurance companies, the department conducted an examination of

petitioner for its 1988 year of operation.

Its report, issued

June 21, 1990, found no reasons to recommend increased oversight

by the department but made several recommendations for

operational improvements that were later implemented by

petitioner.

With respect to petitioner’s loss reserves, the

department accepted petitioner’s estimates but stated:

it should be noted that due to the short

history of * * * [petitioner], the lack of

credible industry data for this single line

claims made coverage; coupled with the

volatility of the severity and frequency of

claims the ultimate loss development could

vary substantially from the amounts reserved.

In an examination for the 5-year period ended

December 31, 1993, the department declared petitioner’s loss

reserves to be “adequate”.

The department’s examination included

a review of petitioner’s claim department procedures, for which

the department made only one minor recommendation.4

4

The department recommended that petitioner establish a

separate reserve account for unallocated loss adjustment

(continued...)

-6For 1994 and 1995, petitioner submitted its annual

statements to the department, and they were accepted without any

further review or examination.

Summary of Petitioner’s Operating Experience

Petitioner's surpluses as reported on its annual statements

for the years 1982 through 1995 were as follows:

1

Year

Surplus

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

$1,433,544

1,419,147

1,106,819

1

1,011,148

1,367,340

2,956,033

5,365,295

6,716,661

7,851,174

10,138,154

11,918,004

14,025,806

15,978,214

18,348,818

Adjusted by the department’s commissioner to $7,995.

Beginning in 1988 and continuing through the years in issue,

petitioner declared dividends to its policyholders.

Petitioner's

declared dividends for the years 1988 through 1997, stated as

4

(...continued)

expenses. Petitioner established such an account for its first

report year (1995) after the department’s examination report was

received.

-7dollar amounts and as a percentage of premiums paid, were as

follows:

Year

Amount

Percentage

of Premiums

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

$607,106

791,886

413,740

712,260

1,484,733

1,319,424

1,382,667

2,014,225

2,714,236

2,322,443

7.5

10

5

8

17.5

15

15

20

25

20

During the years in issue, petitioner’s operations expanded.

Between 1993 and 1995, the number of attorneys insured by

petitioner increased from 3,378 to 3,815; the number of law firms

insured by petitioner increased from 1,411 to 1,674; the number

of policies issued by petitioner increased from 1,411 to 1,674;

and the amount of net premiums written by petitioner increased

from $6,352,712 to $7,397,240.

A.M. Best Rating

For the years in issue, petitioner received an “A

(Excellent)” rating from A.M. Best (Best).5

In its reports for

petitioner’s 1995 year (the 1995 Best report) and for

petitioner’s 1994 year (the 1994 Best report), Best states that

among petitioner’s positive rating factors is the fact that

5

A.M. Best (Best) rates the financial condition of

property and casualty insurers each year. Ratings are based on

the insurer’s prior year’s activity.

-8petitioner’s pricing and reserving are “conservative by industry

standards”.

The 1994 and 1995 Best reports also state:

“Somewhat offsetting these positive rating factors is a

concentration of underwriting risk as the company is primarily a

one state, one line writer and is subject to changes in insurance

regulation and judicial climate."

The 1995 Best report states:

Favorable underwriting gains continued for the

tenth consecutive year in 1995, despite a high

frequency claim year. Underwriting income benefitted

from the take down of approximately $3 million of

redundant reserves from prior report years. This

reduction has been a consistent pattern since 1987.

[Emphasis added.6]

Additionally, in regard to petitioner's reserve quality, the

1995 Best report concludes:

The company's carried loss reserve position is

strong, with significant accident year redundancies

recorded over the last ten years reflective of the very

conservative reserving practices and commitment to

reserve adequacy. Management believes that

professional liability is a very volatile line of

business, so they reserve very conservatively in the

early years of development and retire any redundant

reserves after claims are more seasoned and

predictable. Given the volatility and the low

mathematical credibility of the company's development

patterns this course of action insures that reserves

set aside by report year will be adequate to cover

future development. Therefore, despite annual

reductions on old report years, the company continues

to be very conservatively reserved. [Emphasis added.]

6

Similarly, the 1994 Best report states: “Bulk reserves on

years prior to 1994 which were deemed redundant were reduced by

$1.7 million last year. This take down of reserves has been a

consistent pattern since 1987.” (Emphasis added.)

-9Petitioner’s Liability for Policy Claims

Since 1982, petitioner has written professional liability

insurance policies on a claims-made basis.

Under such policies,

petitioner is liable only for claims that are made and reported

during the effective dates of a policy.

For example, if an

insured was covered by a policy effective January 1 through

December 31, 1993, the insured would have professional liability

protection for claims made and reported during that policy year.

If the insured terminated insurance coverage effective January 1,

1994, any claims made thereafter would not be covered unless the

insured purchased an extended reporting period endorsement

(ERE).7

Petitioner's Loss Reserves Process

Petitioner annually determines its loss and loss adjustment

expense reserves (loss reserves) for purposes of reporting such

amounts on the NAIC annual statement, particularly schedule P

thereto.

Petitioner’s total unpaid loss reserve comprises two

components:

7

An incurred loss case reserve (case reserve) and a

From 1982 until 1986, petitioner offered its insureds the

opportunity to purchase ERE’s with an unlimited tail period. In

order to receive this type of coverage, the insured was required

to purchase a policy endorsement that provided for extended

coverage for claims that were made and reported after the claimsmade policy period had expired. Since 1986, petitioner has

offered to its insureds ERE’s, with up to five annual renewals,

that provide only for a 1-year extended reporting period.

-10reserve for adverse loss development (adverse development

reserve).

1.

Case Reserve

Petitioner’s case reserve is the aggregate of the amounts

determined by petitioner’s claim department to represent the

company’s total exposure for each claim.

Upon receiving a claim,

petitioner’s claim department conducts an investigation to

determine petitioner’s potential liability and damages resulting

from the claim.

Based upon this claim investigation, petitioner

establishes a case reserve.

During the years in issue, petitioner reserved a minimum of

$15,000 for each claim when it was received.

Petitioner seeks to

estimate its exposure for each claim more firmly by reviewing

each claim at least three times shortly after it is reported (15

days, 45 days, and 100 days after being reported).

Ultimately,

petitioner closes approximately one-half of all claims received

without making any payments.

The case reserve includes two components:

expenses.

Indemnity and

The indemnity component of the case reserve includes

judgments, settlements, and plaintiff’s attorney’s fees.

The

expense component of the case reserve includes fees charged by

an attorney retained by petitioner to defend claims and all

expenses incurred by petitioner or with petitioner’s consent in

the investigation and negotiation of any claims.

-11For the years in issue, petitioner’s case reserves, net of

any reinsurance, for its professional liability insurance were

as follows:

Year

Net Case

Reserve

1993

1994

1995

$8,478,000

7,833,000

7,888,000

Throughout petitioner’s period of operations, petitioner’s

claim department was periodically reviewed and examined by

either reinsurance companies or the department.

Reinsurance

companies reviewed petitioner’s claim department operations to

assess petitioner’s overall claim handling procedures for

purposes of determining whether to enter into, or renew, a

reinsurance agreement with petitioner.

The department examined

petitioner’s claim department as part of its triennial

examination of petitioner’s operations.

These reports and

examinations have generally approved petitioner’s procedures in

processing claims and establishing reserves for its case

reserves.8

2.

Adverse Development Reserve

In addition to the case reserve set by the claim

department, petitioner’s incurred loss reserve also comprises an

8

The department’s examination for petitioner’s 1993 year

included a review of petitioner’s claim department procedures.

There was only one minor recommendation regarding petitioner’s

claim department procedures, which petitioner implemented after

the examination.

-12adverse development reserve.

The adverse development reserve is

established by its CEO and president, Joseph H. Bixler (Bixler),

and its controller to address the possibility that the reserves

set by the claim department might be understated because of the

discovery of new information or unforeseeable events.

This

reserve is a “bulk” reserve rather than one calculated case by

case.9

For the years in issue, the adverse development

reserves, when added to petitioner’s case reserves, increased

petitioner’s total unpaid loss reserves by amounts ranging from

about 37 percent to about 50 percent.

For estimated claims under $100,000, the adverse

development reserve includes an amount that represents a

percentage of such claims.

The percentage varies from year to

year and reflects at least an element of judgment or

subjectivity.

Petitioner operates under the principle that as

the claims mature and more information is known about them, it

can develop a higher expectation of accuracy on its case

reserve.

Consequently, in computing its adverse development

reserve, petitioner includes a higher percentage of open claims

from the most current claim year and a smaller percentage for

each succeeding older year.

9

For each year in issue, petitioner

On its annual statement, petitioner’s adverse development

reserve is labeled as “Bulk + IBNR”. The term “IBNR” stands for

“incurred but not reported”. Petitioner did not compute an IBNR

reserve because it considered only reported claims in its reserve

analysis.

-13applied to open claims from the most current claim year a factor

that was between roughly 35 and 45 percent; this factor was then

reduced for each succeeding older claim year.10

For claims over

$100,000, petitioner makes a separate and additional allowance

in the adverse development reserve based not upon any percentage

factor but rather upon a subjective assessment of the number of

such losses and how much they might cost.11

Petitioner's adverse development reserves for the years in

issue were as follows:

Year

Amount

1993

1994

1995

$3,155,000

3,748,000

1

4,048,000

1

For 1995, petitioner included in its adverse development reserve, for

the first time, an additional component, “unallocated loss expenses unpaid”,

in the amount of $532,000.

Petitioner’s Reserve Experience

For each of the years 1982 through 1985, petitioner's

initial estimates of losses turned out to be lower than actual

losses.

For each of the years 1986 through 1995, petitioner’s

10

For example, to compute the adverse development reserve

for 1995, petitioner applied a factor of approximately 45 percent

to its case reserve estimate for open 1995 claims, a factor of

approximately 40 percent for open 1994 claims, a factor of

approximately 38 percent for open 1993 claims, and so on. The

adverse development reserve for 1995 is the sum of the separately

computed adverse development reserve amounts for each year with

open claims as of Dec. 31, 1995.

11

The record does not reveal the mechanics of this separate

and additional allowance for claims over $100,000.

-14estimates of losses turned out to be significantly higher than

actual losses.

For example, petitioner's estimated loss reserve

for claims arising in 1995, as stated in its 1997 annual

statement, was $7,254,000, in contrast to the $12,500,000 that

was initially stated in its 1995 annual statement.12

Similarly, for each of the years in issue, petitioner’s

initial estimates of losses, stated as a percentage of premiums

earned for the year, turned out to be much higher than actual

losses.

For example, as of the end of 1993, petitioner

estimated that it would pay out in net loss and loss expenses on

1993 claims 94.7 percent of the premiums earned for that year.

By the end of 1995 petitioner had revised that figure to 60

percent, and by the end of 1997 petitioner had further revised

that figure to 44.2 percent.13

12

Petitioner’s reserves for claims arising in the years

1993 through 1995, as originally reported and as adjusted as of

the time petitioner completed its 1997 annual statement, were as

follows:

13

Year

As Originally

Reported

As Estimated on

1997 Annual Statement

1993

1994

1995

$11,633,000

11,576,000

12,490,000

$4,934,000

4,330,000

7,254,000

The following table sets out petitioner's estimated

percentage of premiums earned that would be paid out in losses

and loss expenses, net of reinsurance, initially and as later

(continued...)

-15For the years in issue, petitioner’s reserve analyses show

“redundancies” (excesses) in its case reserves in the following

amounts:

Year

Redundancy

1993

1994

1995

$129,374

1,159,685

1,751,656

Petitioner’s Reporting of Loss Reserves for Annual Statement

Purposes

Each year, pursuant to State law, petitioner appoints a

qualified actuary before yearend for purposes of obtaining a

loss reserve opinion for that year.

Shortly after yearend,

petitioner estimates its final unpaid loss reserve and submits

material to the qualified actuary for purposes of the actuary’s

review for its loss reserve opinion.

Each February, the

qualified actuary issues her statement of actuarial opinion

regarding petitioner’s loss reserve.

Each March, petitioner

files its annual statement with the department and the NAIC.

13

(...continued)

adjusted:

Loss Year

1993

1993

1994

1995

94.7%

Year of Estimate

1994

1995

80.3%

83.1

60.0%

67.0

102.2

1996

1997

43.2%

60.2

79.7

44.2%

42.5

77.9

-16Petitioner then files its Federal income tax return.

For each of the years in issue, petitioner used on its

annual statement the same unpaid loss reserve estimate that it

presented to its appointed actuary for review and also used this

same estimate on its Federal income tax return.

Statements of Actuarial Opinion

Petitioner’s actuarial opinion for 1993 (the Witcraft

opinion) was prepared by Susan E. Witcraft (Witcraft) of

Milliman & Robertson, Inc.

The Witcraft opinion states that

petitioner’s 1993 carried reserves met the requirements of the

insurance laws for the State of Minnesota; were computed in

accordance with the standards of practice issued by the

Actuarial Standards Board (including the Casualty Actuarial

Society's statement of principles regarding property and

casualty loss and loss adjustment expense reserves); and made

reasonable provision for all unpaid loss and loss expense

obligations.

In her actuary’s report, Witcraft explained that she had

projected ultimate losses using six methods:

The paid loss

development method, the incurred loss development method (“both

unadjusted and adjusted for an apparent increase in reserve

adequacy”), the reserve development method (“both unadjusted and

adjusted for an apparent increase in reserve adequacy”), and the

average claim cost method.

The report states that, on the basis

-17of these projections, she selected estimates of petitioner’s

ultimate losses.

The report states that Witcraft’s best

estimate of the reserve for petitioner’s unpaid losses and loss

adjustment expenses, net of reinsurance, was approximately $7.8

million.

The report specifically notes that Witcraft’s best

estimate was significantly lower than petitioner’s booked

reserve of $11.6 million.14

For 1994 and 1995, Patricia A. Teufel (Teufel) of KPMG Peat

Marwick issued petitioner’s statements of actuarial opinion (the

Teufel opinions).

The 1994 and 1995 Teufel actuarial reports

that accompanied the Teufel opinions each state that her

evaluation of petitioner’s loss reserve was made using the paid

development method, the incurred development method, and the

14

In exhibits accompanying her report, Susan E. Witcraft

(Witcraft) noted that for 1993, there was a $4,210,000 aggregate

“redundancy” in petitioner’s booked net reserve, comprising

redundancies with respect to petitioner’s booked net reserves for

preceding years in the following amounts:

Year

Amount

1985

1986

1987

1988

1989

1990

1991

1992

1993

$19,000

22,000

70,000

123,000

281,000

304,000

803,000

1,099,000

2,421,000

-18Bornhuetter-Ferguson method.15

The Teufel opinions state that

petitioner’s carried reserves meet the requirements of Minnesota

insurance laws, were computed in accordance with accepted loss

reserving principles and standards, and make reasonable

provision for all of petitioner’s unpaid loss and loss expense

obligations.

In addition, Teufel’s 1994 and 1995 reports each

provide a range for petitioner’s unpaid loss reserves, as well

as recommended point estimates.

For 1994, Teufel’s range for

reserves net of reinsurance extends from $7,956,093 to

$13,550,446, and her point estimate is $10,096,656.

For 1995,

Teufel’s range is from $5,851,559 to $12,867,450, and her point

estimate is $8,706,428.

Reinsurance

During the years in issue, petitioner purchased reinsurance

coverage from reinsurance companies.

Before July 19, 1994,

petitioner retained 100 percent of the insurance coverage for

claims up to $100,000, ceding to reinsurers all losses greater

than this amount.

From July 19, 1994, to April 18, 1995,

petitioner increased its retention levels to include, in

addition to 100 percent retention of losses up to $100,000, 60

percent of losses greater than $100,000, up to $250,000.

15

On

The Bornhuetter-Ferguson method is an actuarial technique

widely used for long-tailed lines of insurance like professional

malpractice. See Utah Med. Ins. Association v. Commissioner,

T.C. Memo. 1998-458.

-19April 19, 1996, petitioner again increased its retention levels

to include 15 percent of losses greater than $250,000, up to

$500,000.

In a newsletter to policyholders dated September 1996,

Bixler explained these changes in its reinsurance philosophy as

follows:

If certain reinsured layers are relatively predictable and

the company’s financial strength can readily absorb unusual

activity in those layers, then it may be advisable for the

company to retain that portion instead of buying

reinsurance on it. * * *

* * * [Petitioner] has pursued a strategy of surplus growth

and will soon achieve our immediate goal of $20,000,000.

Meanwhile, we have had the opportunity to observe the loss

activity in each band of risk and have found many of the

lower layers to be relatively stable under various

conditions over several years. Therefore, * * *

[petitioner] has progressively assumed a larger share of

risk on each claim over the past few years.

For annual statement purposes, petitioner’s unpaid loss

reserves were shown both gross and net of estimated reinsurance

proceeds recoverable.

Similarly, petitioner’s appointed

actuaries computed both gross and net unpaid loss reserves but

netted out larger amounts of estimated reinsurance proceeds

recoverable than did petitioner.16

The differences in

petitioner’s estimates of reinsurance proceeds (as reflected on

schedule F of its annual statements) and the actuaries’

estimates (as indicated by the difference between the actuaries’

16

The record does not explain these variances.

-20gross and net reserve point estimates) are shown below (in

millions of dollars):

Estimates of Reinsurance Proceeds Recoverable

Year

Petitioner’s

Estimate

Actuaries’

Estimate

1993

1994

1995

$4.397

4.507

4.255

$6.9

4.804

5.863

Petitioner’s Tax Returns and Respondent’s Determinations

Petitioner timely filed Forms 1120PC, U.S. Property and

Casualty Insurance Company Income Tax Return, for 1993, 1994,

and 1995.

Respondent determined that for each year petitioner

overstated its unpaid losses for professional liability

insurance.17

The following table shows the unpaid losses

outstanding at yearend (net of reinsurance and before

discounting) on professional liability insurance, as reported by

petitioner and as allowed by respondent for each year in issue:

Year

Reported by petitioner

1993

1994

1995

$11,663,000

11,576,000

12,490,000

17

Allowed by respondent

$7,134,000

5,531,000

5,010,000

For each year in issue, petitioner also claimed losses

incurred with respect to its commercial multiple peril policies,

as follows: 1993-–$3,000; 1994-–$5,000; and 1995--$9,000.

Respondent did not adjust the unpaid losses claimed by petitioner

on these policies.

-21OPINION

I.

Applicable Law

Petitioner, as a mutual property and casualty insurance

company, must compute its taxable income under section 832.

sec. 831.

See

Taxable income equals gross income less allowable

deductions.

See sec. 832(a).

Gross income includes amounts

earned from investment and underwriting income, “computed on the

basis of the underwriting and investment exhibit of the annual

statement approved by the National Association of Insurance

Commissioners”.

Sec. 832(b)(1)(A).

Underwriting income means

“the premiums earned on insurance contracts during the taxable

year less losses incurred and expenses incurred.”

832(b)(3).

Sec.

Insurance companies are also allowed various

deductions under section 832(c), including a deduction for

“losses incurred”, as defined in section 832(b)(5).

Sec.

832(c)(4).18

“Losses incurred” generally means (with qualifications

inapplicable here) losses paid (net of salvage and reinsurance

recovered) on insurance contracts during the year plus any

increment from the preceding year in discounted “unpaid losses”,

less any increment from the preceding year in estimated

18

Although such a deduction would appear potentially

duplicative of losses incurred taken into account in determining

underwriting income under sec. 832(b)(3), the statute

specifically prohibits the same item from being deducted more

than once. See sec. 832(d).

-22recoverable salvage and reinsurance.

Sec. 832(b)(5)(A).19

“Unpaid losses” generally means “unpaid losses shown in the

annual statement filed by the taxpayer for the year ending with

or within the taxable year of the taxpayer.”

Sec. 846(b)(1).

Unpaid losses include any unpaid loss adjustment expenses.

See

sec. 832(b)(6).

The relevant regulations state:

(a)(5) In computing “losses incurred” the determination of

unpaid losses at the close of each year must represent

actual unpaid losses as nearly as it is possible to

ascertain them.

(b)

Losses incurred. Every insurance company to which

this section applies must be prepared to establish to the

satisfaction of the district director that the part of the

19

Sec. 832(b)(5)(A) provides in relevant part:

In general.--The term “losses incurred” means losses

incurred during the taxable year on insurance contracts

computed as follows:

(i) To losses paid during the taxable year, deduct

salvage and reinsurance recovered during the taxable

year.

(ii) To the result so obtained, add all unpaid

losses on life insurance contracts plus all discounted

unpaid losses (as defined in section 846) outstanding

at the end of the taxable year and deduct all unpaid

losses on life insurance contracts plus all discounted

unpaid losses outstanding at the end of the preceding

taxable year.

(iii) To the results so obtained, add estimated

salvage and reinsurance recoverable as of the end of

the preceding taxable year and deduct estimated salvage

and reinsurance recoverable as of the end of the

taxable year.

-23deduction for “losses incurred” which represents unpaid

losses at the close of the taxable year comprises only

actual unpaid losses. See section 846 for rules relating

to the determination of discounted unpaid losses. These

losses must be stated in amounts which, based upon the

facts in each case and the company’s experience with

similar cases, represent a fair and reasonable estimate of

the amount the company will be required to pay. Amounts

included in, or added to, the estimates of unpaid losses

which, in the opinion of the district director, are in

excess of a fair and reasonable estimate will be disallowed

as a deduction. The district director may require any

insurance company to submit such detailed information with

respect to its actual experience as is deemed necessary to

establish the reasonableness of the deduction for “losses

incurred.” [Sec. 1.832-4(a)(5) and (b), Income Tax Regs.]

The validity of these longstanding regulations is well

established, see, e.g., Hanover Ins. Co. v. Commissioner, 69

T.C. 260, 272 (1977), affd. 598 F.2d 1211 (1st Cir. 1979);

Hanover Ins. Co. v. Commissioner, 65 T.C. 715, 719 (1976), and

is not in dispute.

Although the annual statement methodology is normally

controlling for tax purposes, when the annual statement

methodology is predicated upon the use of estimates, those

estimates must be the “best possible.”

Bituminous Cas. Corp. v.

Commissioner, 57 T.C. 58, 78 (1971).

A reserve for unpaid losses is an estimate of the insurer’s

liability for claims that it will be required to pay in future

years.

See Western Cas. & Sur. Co. v. Commissioner, 65 T.C.

897, 917 (1976), affd. on another issue 571 F.2d 514 (10th Cir.

1978).

Unpaid losses may not be based on estimates of potential

losses that might be incurred in future years but instead must

-24be based on the actual loss experience of the insurance company.

See Maryland Deposit Ins. Fund Corp. v. Commissioner, 88 T.C.

1050, 1060 (1987); Hospital Corp. of Am. v. Commissioner, T.C.

Memo. 1997-482.

Whether the taxpayer’s estimate of unpaid losses is fair

and reasonable is essentially a valuation issue and thus a

question of fact.

at 270.

See Hanover Ins. Co. v. Commissioner, 69 T.C.

The burden of proof is on the taxpayer to substantiate

its claimed deduction.

See Rule 142(a); Welch v. Helvering, 290

U.S. 111, 115 (1933); Time Ins. Co. v. Commissioner, 86 T.C.

298, 313-314 (1986).

II.

The Parties’ Positions

Petitioner asserts that its case reserves were established

by evaluating the facts of each claim, that its adverse

development reserves were reasonable given the inherent

uncertainty of its case reserve determinations, that its unpaid

loss reserves were approved by knowledgeable persons including

its expert witness, and that respondent's determination,

including the analysis of his expert, is wholly unsupported.

Petitioner argues that factual similarities between the instant

case and Utah Med. Ins. Association v. Commissioner, T.C. Memo.

1998-458, favor its position.

Respondent argues that petitioner’s unpaid loss reserves

were not fair and reasonable as they did not represent

-25petitioner’s actual unpaid losses as nearly as they could be

ascertained.

On brief, respondent acknowledges that

petitioner’s case reserves are “at least facially” in compliance

with the regulatory requirement that unpaid losses be calculated

“based on the facts in each case.”

Regs.

Sec. 1.832-4(b), Income Tax

Respondent contends, however, that petitioner has failed

to establish that the portion of its total unpaid loss reserves

represented by its adverse development reserve was necessary or

reasonable.

III.

Expert Witnesses

The parties each called an expert witness to opine on the

reasonableness of petitioner's reserves.

We evaluate expert

opinions in light of all the evidence in the record and may

accept or reject the expert testimony, in whole or in part,

according to our own judgment.

See Helvering v. National

Grocery Co., 304 U.S. 282, 295 (1938); Estate of Mellinger v.

Commissioner, 112 T.C. 26, 39 (1999).

A.

Roger M. Hayne

Petitioner’s expert, Roger M. Hayne (Hayne), is a

consulting actuary in the firm of Milliman & Robertson, Inc.20

He is a member of the American Academy of Actuaries.

20

He holds a

Although Milliman & Robertson, Inc., is the actuarial

firm that provided the Witcraft opinion and report for

petitioner’s 1993 year, there is no indication in the record that

Roger M. Hayne (Hayne) was involved in the preparation of the

Witcraft opinion or report.

-26Ph.D. in mathematics from the University of California

(Riverside) and has more than 21 years of actuarial consulting

experience.

In forming his opinion, Hayne relied primarily on

information supplied by petitioner, the Witcraft opinion, and

the Teufel opinions, as well as petitioner’s annual statements

and annual statements of other insurers specializing in legal

professional liability insurance.

Hayne did not attempt to estimate petitioner’s unpaid

losses.

He testified that he had no actuarial opinion as to the

amount of unpaid loss reserves petitioner should use for either

annual statement or Federal income tax purposes.

Instead, his

goal, as stated by petitioner on brief, was to “assess the

volatility present in petitioner’s data and the effect of that

volatility on projections based on that very data.”

Hayne testified that petitioner’s loss development was

historically volatile and difficult to predict with certainty.

He found that petitioner had substantially fewer expected paid

claims than the number generally needed each year for full

statistical credibility.

He attempted to quantify the level of

uncertainty and to test petitioner’s carried reserves using two

statistical analyses, the incurred loss development method and

the paid loss development method.

Under these two methods,

Hayne determined that the range of outcomes for petitioner’s

-27paid and incurred loss reserves for the years in issue were as

follows (rounded, in millions of dollars):

Year

Incurred Loss

Development Method

Paid Loss

Development Method

1993

1994

1995

$6.0 to $9.6

4.9 to 8.7

4.8 to 9.4

$3.9 to $19.9

7.0 to 31.9

8.3 to 39.2

Hayne’s expert report states:

If the message given by the paid patterns * * * were indeed

correct, one could conclude that * * * [petitioner’s]

carried reserves would not be adequate. If, however, the

message given by the incurred patterns were correct, one

could conclude that the carried reserves may be sufficient,

or perhaps even redundant.

Hayne concluded that given the wide range of potential outcomes

from these two statistical analyses, he “could not conclude that

* * * [petitioner’s] carried reserves were, in total, so high as

to be unreasonable.”

opinion on brief:

Or, as petitioner summarizes Hayne’s

“there was so much volatility in petitioner’s

data that petitioner’s reserves were reasonable.”

Hayne also presented a comparison of petitioner's

development factors to those of a selected “peer” group of

companies, comprising eight companies that are single-line,

legal malpractice insurers operating in other States.

He

compared the ratio of petitioner's paid to ultimate losses and

allocated loss adjustment expenses to the peer group.

Hayne

also compared the ratios of bulk and IBNR losses and allocated

loss adjustment expenses to ultimate losses for petitioner with

the same ratios for the selected group.

Hayne did not define

-28the bounds of the selected group’s range but concluded that

petitioner's ratio fell within the middle 50 percent of the peer

group’s range.

B.

James P. Streff

Respondent’s expert, James P. Streff (Streff), is an

independent consulting actuary.

He is president of Streff

Insurance Services, an actuarial consulting firm in Red Wing,

Minnesota.

He has a bachelor's degree in mathematics from the

College of St. Thomas and a master’s degree in statistics from

the University of Minnesota.

He is a fellow in the Casualty

Actuarial Society and a member of the American Academy of

Actuaries.

He has worked as an actuary in the insurance

industry since 1970.

He is the appointed actuary for a number

of companies and is under contract to provide actuarial

assistance to the State of Michigan's Department of Insurance.

In preparing his expert report, Streff relied on four

primary sources:

Petitioner's annual statements dating back to

1982; certain internal data requested from petitioner; industry

statistics obtained from Best publications; and the reports

prepared by petitioner's appointed actuaries for years 1993

through 1995.

Streff performed an actuarial analysis.

He acknowledged

that petitioner’s low claim volume reduced its statistical

credibility.

Streff reviewed other aspects of petitioner’s

-29business and claim trends to satisfy himself that petitioner’s

underlying loss and loss adjustment expense patterns were stable

and consistent.21

Like Hayne, Streff used two accepted actuarial methods,

involving projections of both incurred and paid losses.

Streff

computed his development factors22 for both incurred losses and

paid losses using petitioner’s last five to seven annual

statements.

Streff expressed the development as a ratio or

arithmetic percentage showing the change in paid, or incurred,

losses from one year to the next.

Streff computed a weighted

3-year average and a weighted average for all years presented,

and then selected the development factor to be applied to each

interval on the basis of his judgment and experience as an

actuary.

Streff applied the development factor determined for each

year to the paid or incurred losses for that year, as

21

James P. Streff (Streff) reviewed the following types of

information: (1) Financial considerations, such as written

premium, surplus, etc.; (2) marketing and loss exposure

considerations, such as the size of insured law firms, policy

limits, rate changes, and reinsurance; (3) loss reserve

considerations, such as reserve tests; (4) underlying loss

patterns, such as claim closure rate, claims closed without

payment, loss frequency and severity, and claim migration (i.e.,

movement of a claim from one reinsurance layer to another as a

result of deviations in its original estimation).

22

In general, development factors express the ratios of

amounts at one age to those at the immediately prior age.

Actuaries use development factors, along with other methods, to

estimate loss and loss expense reserves.

-30appropriate, to project the ultimate losses for that year.

In

this respect, Streff’s approach is similar to methods used by

petitioner’s appointed actuaries.

Streff then reduced the ultimate losses by the amounts

already paid for each year to determine the projected loss

reserve.

He did this for both incurred losses and paid losses.

Streff equally weighted the projected losses using incurred loss

development and paid loss development to arrive at his selected

loss reserve for each of the years in issue.

Streff separately calculated the amount to be reserved for

allocated loss expenses.

He reviewed the historical

relationship between paid losses and paid loss expenses to

determine a ratio for each year in which claims remained open.

Streff then applied this ratio to his projected unpaid losses to

determine the amount of projected allocated loss expenses.

Streff also calculated a reserve for unallocated loss expenses.

Unlike Hayne, Streff provided a “most likely estimate” of

petitioner's net loss reserve for each of the years in issue as

follows:

Year

Amount

1993

1994

1995

$8,240,000

7,273,000

6,212,000

-31Streff determined a reasonable range of deviation extending

from $570,000 below to $1,140,000 above his most likely reserve

estimates.

As part of his report, Streff “restated” petitioner’s

carried reserves for each year of its history by considering

subsequent payments and changing reserve levels for successive

years through 1995.

According to this analysis, petitioner’s

initial reserves for each of the years 1982 through 1985, were

lower than their restatement in 1995, whereas petitioner’s

initial reserves for each of the years 1987 through 1994 were 27

to 52 percent higher than their restatement in 1995.23

23

Streff’s expert report indicates that on the basis of

information in petitioner’s annual statements, petitioner’s

“restated” reserves as of Dec. 31, 1995, and the resulting

deficiency or redundancy in the initial booked reserve, were as

follows (in millions of dollars):

Year

Original

Reserve

1995

Restatement

Deficiency

(Redundancy)

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

$105

498

1,245

2,138

4,323

5,557

5,989

7,837

9,618

10,127

10,550

11,636

11,581

12,500

$302

1,397

2,320

2,961

2,792

3,116

4,388

5,165

4,656

4,954

5,577

6,953

7,885

12,500

$197

899

1,075

823

(1,531)

(2,441)

(1,601)

(2,672)

(4,962)

(5,173)

(4,973)

(4,683)

(3,696)

-32IV.

Analysis

A.

Whether Petitioner Has Proved That Its Estimates of

Unpaid Losses Were Fair and Reasonable

1.

Necessity and Reasonableness of Adverse

Development Reserve

As described above, petitioner’s total unpaid loss reserve

comprises a case reserve, as established by its claim

department, and an adverse development reserve, set by Bixler

and its controller.

For the years in issue, the adverse

development reserve increased petitioner’s total unpaid loss

reserves by amounts ranging from about 37 percent to about 50

percent.

Although Bixler testified generally about the uncertainty

inherent in petitioner’s reserves, petitioner can point to no

concrete evidence or analysis showing, for the years in issue,

the necessity for or reasonableness of the adverse development

addition to the case reserves as estimated by petitioner’s claim

department.

The record does not suggest that the claim

department’s estimates of unpaid losses were low or failed to

reflect potential adverse development.

In fact, Bixler

acknowledged that he had no reason to be critical of

petitioner’s case reserves.

In Western Cas. & Sur. Co. v. Commissioner, 65 T.C. at 917,

the taxpayer had established in three schedule P lines of

coverage “voluntary loss reserves”, which were an additional

amount that the taxpayer voluntarily included in its loss

-33reserves for certain lines “in which the reserves otherwise

computed have historically proven inadequate.”

The Commissioner

had argued that the voluntary loss reserves were greater than

historical deficiencies in the schedule P lines of coverage and

were intended to cover deficiencies in certain schedule O lines

of coverage.

Rejecting the Commissioner’s arguments, we held

that the test of reasonableness should be directed at the total

unpaid loss reserves rather than at individual lines of

coverage, and that the taxpayer’s total estimated reserves were

not only reasonable but actually understated in light of prior

experience.

See id. at 919-920.

In the instant case, by contrast, petitioner has not shown

that, for the years in issue, it established adverse development

reserves to ensure the adequacy of reserves that historical

experience had proved inadequate, or that its total reserves are

reasonable in light of prior experience.

To the contrary, the

evidence strongly suggests that for each year in issue,

petitioner’s recent historical experience had proved

petitioner’s case reserves to be generous.

For example,

petitioner’s own reserve analyses for the years in issue

indicate significant redundancies in its case reserves.

Petitioner’s appointed actuary noted that as of yearend 1993,

there was total “redundancy” in petitioner’s total booked net

loss reserve of $4,210,000–-which exceeds the $3,155,000 adverse

development reserve that petitioner established for 1993.

The

-341994 and 1995 Best reports indicate that petitioner was very

conservatively reserved and had demonstrated a pattern since

1987 of writing down excess reserves established in prior years.

In sum, petitioner has failed to prove the necessity of the

adverse development reserve for the years in issue, during which

neither its own reserve analyses nor historical experience

indicated deficiencies in its case reserves.

Even if we were to

assume arguendo that petitioner has demonstrated a need for

adverse development reserves for the years in issue, petitioner

nonetheless has failed to carry its burden to show that its

unpaid loss reserve estimates were fair and reasonable.

It has

not shown what specific factors, if any, were taken into account

in establishing the extra percentage of case reserves that would

be included in the adverse development reserve, nor has it shown

how the factors might have been weighted.

Other than summary

reserve analyses, petitioner presented no work papers or other

documentation showing what facts it considered or analyzed in

determining its adverse development reserve.

There is no

specific indication in the record, for example, why petitioner,

in computing its adverse development reserve for 1995, applied a

factor of 45 percent for 1995 open claims of $100,000 or less,

rather than some lower or higher factor, or why the factor

applied to current-year claims varied from year to year.

Similarly, although Bixler testified that petitioner made

separate and additional allowance for claims over $100,000,

-35there is no indication how that separate allowance was made, how

it purported to avoid redundancy with the case reserve developed

by the claim department, or to what extent petitioner took into

account its reinsurance proceeds recoverable for claims over

$100,000.

2.

Variance from Actuarial Estimates

In Utah Med. Ins. Association v. Commissioner, T.C. Memo.

1998-458, the taxpayer’s actuary used consistent actuarial

methods and standard actuarial loss development techniques to

estimate the taxpayer’s ultimate loss within a bounded range

instead of recommending a point estimate.

The taxpayer then

selected reserves at the high end of the actuary’s indicated

range.

On the basis of the evidence in the record, including

the testimony of the actuary, we concluded that the actuary’s

indicated range of reserves was reasonable, that each point in

the actuary’s range was reasonable, and that the taxpayer’s

reserves were fair and reasonable.

By contrast, here the evidence does not indicate that

petitioner used consistent actuarial methods and standard

actuarial loss development techniques in establishing its loss

reserves.24

24

Petitioner’s actuaries did not assist in

The Witcraft opinion for 1993 states that petitioner’s

carried reserves were “computed in accordance with Standards of

Practice issued by the Actuarial Standards Board (including the

Casualty Actuarial Society’s Statement of Principles regarding

Property and Casualty Loss and Loss Adjustment Expense

(continued...)

-36establishing petitioner’s reserves in the first instance but

were asked after the fact to review petitioner’s carried

reserves, for purposes of satisfying the statutory certification

requirement.

With respect to petitioner’s 1993 taxable year, Witcraft

specified no recommended range of reasonableness (unlike the

taxpayer’s actuary in Utah Medical), but instead provided a

“best estimate” that was significantly lower than petitioner’s

carried net reserve, while noting historical redundancies in

petitioner’s carried net reserves.

Petitioner has not explained

the variance between this “best estimate” and the estimate

petitioner used for tax purposes.25

24

(...continued)

Reserves)”. The Teufel opinions for 1994 and 1995 each state

that petitioner’s carried reserves were “computed in accordance

with accepted loss reserving standards and principles”. It is

unclear, however, whether these statements are meant to refer to

the actuaries’ assessment of computational techniques of

petitioner’s management as opposed to the actuaries’ own

computations in independently evaluating the adequacy of

petitioner’s reserves. The actuaries were not called as

witnesses to resolve such ambiguities.

25

Petitioner states on brief that it did not call its

actuaries to testify in part because “Petitioner was, and is,

satisfied with the accuracy and clarity of the qualified

actuaries’ reports.”

On brief, respondent complains about the lack of opportunity

to cross-examine the actuaries. Respondent had equal

opportunity, however, to call the actuaries as witnesses, either

as part of his case-in-chief or as rebuttal witnesses, issuing a

subpoena if necessary. Respondent chose not to. Accordingly, we

do not infer that the actuaries’ testimony would have been either

favorable or unfavorable to petitioner. See Sisson v.

(continued...)

-37Similarly, for petitioner’s 1994 and 1995 years, Teufel

provided a “selected point estimate” that was significantly

lower than petitioner’s carried net reserves.

For each of these

years, Teufel also provided a recommended range.

Relative to

the recommended range of the taxpayer’s actuary in Utah Medical,

Teufel’s recommended ranges are very large.26

The evidence in

the record is insufficient for us to evaluate adequately whether

Teufel’s recommended ranges are so large as to be unreasonable,

or whether every point in each recommended range would satisfy

the requirement that the determination of unpaid losses

25

(...continued)

Commissioner, T.C. Memo. 1994-545.

At trial, respondent raised a hearsay objection to the

admission into evidence of the actuaries’ opinions and reports.

The Court overruled the objection but invited respondent to renew

his objection on brief. Respondent has not done so. We conclude

that respondent has abandoned his objection. In any event,

respondent’s objection is without merit, as petitioner presented

adequate foundation testimony to qualify the actuarial opinions

and reports as business records. See Fed. R. Evid. 803(6).

Furthermore, respondent’s expert witness stated that he relied

upon the actuarial reports as one of four primary sources of

information, from which we conclude that respondent’s own expert

deemed the information therein to be trustworthy.

26

In Utah Med. Ins. Association v. Commissioner, T.C. Memo.

1998-458, we accepted the reserves carried by the taxpayer even

though they were near the upper limit of the actuary's range. We

characterized the actuary's range as large, but not so large as

to be unreasonable. See id. The upper limit of the actuary's

range in Utah Medical was approximately 26 percent above the

lower limit of the range for each year in issue. In the instant

case, by contrast, for 1994 the upper limit of Teufel’s

recommended range was approximately 70 percent higher than the

lower limit, and for 1995 the upper limit was approximately 120

percent higher than the lower limit.

-38“represent actual unpaid losses as nearly as it is possible to

ascertain them.”

Sec. 1.832-4(a)(5), Income Tax Regs.; see

Hanover v. Commissioner, 69 T.C. at 270.

3.

Significance of Actuarial Certification and

State Review or Lack Thereof

For each of the years in issue, Witcraft’s and Teufel’s

actuarial reports certify that petitioner’s unpaid loss reserves

make reasonable provision for petitioner’s unpaid losses and

loss expenses.

The record does not establish, however, that

this certification was meant to be equivalent to the regulatory

requirement that petitioner’s reserves be “fair and reasonable”

within the meaning of section 1.832-4(b), Income Tax Regs.

Given the wide variance between petitioner’s carried reserves

and the appointed actuaries’ best estimates, it is unclear that

any such equivalence was intended.

Indeed, because Teufel and

Witcraft each anticipated that their opinions would

be reviewed by the State regulator,27 it would appear likely that

their focus was on conservatism and petitioner’s solvency.

For 1993, the department reviewed petitioner’s reserves and

determined that they were “adequate”.

For 1994 and 1995, the

department accepted petitioner's filing of the annual statements

without any adjustments.

Although this is a positive factor in

evaluating the fairness and reasonableness of petitioner’s

27

Each of the Teufel opinions states: “This statement of

opinion is intended solely for filing with state regulatory

agencies.” The Witcraft opinion contains a similar statement.

-39reserves, see Utah Med. Ins. Association v. Commissioner, supra,

it is not conclusive.

As stated in Sears, Roebuck & Co. v.

Commissioner, 96 T.C. 61, 110 (1991), revd. on other grounds 972

F.2d 858 (7th Cir. 1992):

The objectives of State regulation * * * are not identical

to the objectives of Federal income taxation. State

insurance regulators are concerned with the solvency of the

insurer. McCoach v. Insurance Company of North America,

244 U.S. 585, 589 (1917). * * * In contrast, Federal tax

statutes are concerned with the determination of taxable

income on an annual basis. Burnet v. Sanford & Brooks Co.,

282 U.S. 359, 365 (1931).

The record does not establish that the State regulators would

have been concerned with excesses in petitioner’s reserves.

Thus, their silence on this point is not necessarily

significant.

Given the clear directive of the regulations regarding the

Commissioner’s discretion to review the amount of deducted loss

reserves, and the holding in Hanover Ins. Co. v. Commissioner,

69 T.C. 260 (1977), upholding the validity of these regulations,

there is no merit to the argument that the Commissioner’s review

function is supplanted by the certifying actuaries or the State

regulators.

A taxpayer's determination and reporting of unpaid

losses and loss expenses to a State insurance commission does

not limit the Commissioner’s obligation to enforce the

regulations and to examine and adjust, as necessary, the amounts

claimed for Federal income tax purposes.

See Home Mut. Ins. Co.

v. Commissioner, 639 F.2d 333, 339-340 (7th Cir. 1980), affg. in

-40part, revg. in part on another issue, and remanding 70 T.C. 944

(1978); Hanover Ins. Co. v. Commissioner, 69 T.C at 272.

4.

Hayne’s Testimony

The testimony of petitioner’s expert, Hayne, falls short in

assisting the Court in determining whether petitioner’s

estimates of unpaid losses were fair and reasonable, or what

estimates might be fair and reasonable.

He did not opine on the

ultimate value of petitioner’s unpaid losses.

His testimony

suggests that because of the low volume and volatility of

petitioner’s claims data, almost any estimate within a very wide

range might have statistical credibility.

His report implies,

for example, that for petitioner’s 1995 year, any estimate in a

range from $4.8 million to $39.2 million might be considered

reasonable.

Hayne’s testimony is difficult to square with petitioner’s

qualified actuary reports.

These reports reflect the

application of a variety of standard actuarial techniques to

arrive at best estimates or selected point estimates.28

Moreover, Hayne’s premise as to the volatility of petitioner’s

data is difficult to square with Bixler’s September 1996

statement to petitioner’s shareholders that “we have had the

opportunity to observe the loss activity in each band of risk

and have found many of the lower layers to be relatively stable

28

The Witcraft report was prepared by another actuary in

the same actuarial firm with which Hayne is affiliated. Hayne

testified that he had no reason to believe that Witcraft did not

do her analysis properly.

-41under various conditions over several years.”

Hayne’s expert report and testimony provide little basis

for assessing whether his peer-group ratio comparisons account

for possible differences in reserving, claim management, and

underwriting philosophies among the eight companies that he

selected for comparison, or whether those eight companies are in

fact the appropriate peer group.29

5.

Other Factors

Citing Utah Med. Ins. Association v. Commissioner, T.C.

Memo. 1998-458, petitioner argues that a number of other factors

support the fairness and reasonableness of its estimates of

unpaid losses.

Petitioner contends, for example, that it could

not offset reserve deficits with other reserve surpluses,

because it wrote primarily lawyer’s professional liability

insurance.

During the years in issue, however, petitioner had,

at a minimum, a surplus of $14 million.

In an April 1995 report

to policyholders, Bixler characterized petitioner’s surplus as

“an impressive safeguard against adversity.”

Petitioner also argues that it adjusted its loss reserve

each year to account for actual loss experience.

The

development of petitioner’s case reserves from 1986 to 1992,

29

Hayne testified that in identifying his peer group, he

tried to “get as many of the small, localized, lawyer mutual type

companies that I could easily identify in insurance publications”

and that he located through electronic services. Best defines

petitioner’s peer group as the National Association of Bar

Related Insurance Companies (NABRICO). Hayne did not explain how

petitioner’s ratios compared to the NABRICO composite.

-42however, should have alerted petitioner that its prior reserve

estimates were more than adequate.

There is no evidence that

petitioner took this prior experience into account in evaluating

or amending its reserving philosophy and practices, especially

as regards its adverse development reserve.

Cf. Hanover Ins.

Co. v. Commissioner, 69 T.C. at 270-271 (taxpayer failed to

prove that it employed any method of testing its reserves on the

basis of prior experience, even though it revised its reserve

estimates from time to time on the basis of developments in

particular cases).

Petitioner argues that it had competing business concerns–such as ensuring solvency and competitiveness--not to overstate

its loss reserves.

Apart from such generalities, however,

petitioner fails to articulate with particularity how such

concerns–-which would appear to relate principally to annual

statement reporting–-should govern the determination of fair and

reasonable estimates of unpaid losses for Federal income tax

purposes.

In any event, the record does not indicate that

petitioner’s solvency was in jeopardy during the years in issue,

when its surplus consistently exceeded $14 million.

6.

Conclusion

On the basis of the totality of evidence in the record, we

conclude and hold that petitioner has failed to establish that

its estimates of unpaid losses, as used in computing “losses

-43incurred” within the meaning of section 832(b)(5), represent a

“fair and reasonable estimate of the amount the company will be

required to pay.”

B.

Sec. 1.832-4(b), Income Tax Regs.

Determination of Fair and Reasonable Unpaid Losses

for 1993

The analysis of respondent’s expert, Streff, was in key

respects similar to that of petitioner's appointed actuaries.

He testified that he agreed with the actuaries’ data and

techniques and disagreed only with their assumptions.

For taxable year 1993, we find Streff’s analysis and

conclusions to be credible.

We accept as fair and reasonable

his $8,240,000 estimate of petitioner’s net unpaid losses as of

yearend 1993.

We note that this estimate exceeds Witcraft’s

best net reserve estimate of $7,800,000, as well as the

$7,134,000 net reserve estimate determined in respondent’s

notice of deficiency.30

30

Streff’s 1993 estimate of petitioner’s net unpaid loss

reserve is lower than petitioner’s 1993 net carried case reserve

of $8,478,000. At first blush, this result may seem anomalous,

given respondent’s statement on brief that petitioner’s case

reserves are “at least facially” in compliance with the

regulatory requirement that unpaid losses be calculated “based on

the facts of each case.” Sec. 1.832-4(b), Income Tax Regs. We

do not interpret respondent’s statement on brief as a concession,

however, that petitioner’s net case reserves reflect a fair and

reasonable estimate of petitioner’s unpaid losses. Respondent’s

statement on brief appears to refer to petitioner’s estimate of

its gross unpaid losses and not to address possible effects of

proceeds recoverable through petitioner’s reinsurance

arrangements, which proceeds are taken into account in computing

losses incurred, within the meaning of sec. 832. See sec.

832(b)(5)(A)(iii). In this regard, we note that for each year in

(continued...)

-44C.

Determination of Fair and Reasonable Unpaid Losses

for 1994 and 1995

For taxable years 1994 and 1995, Streff estimated

petitioner’s reserves to be lower than their 1993 levels.

This

analysis is difficult to square with the undisputed facts, which

show that from 1993 to 1995, petitioner’s operations were

increasing, as measured by numbers of attorneys insured,

policies issued, and premiums written, and that petitioner was

assuming a larger share of risks formerly ceded to reinsurers.

Streff’s testimony indicates that his downward-trending

estimates for 1994 and 1995 were predicated on his assumptions

regarding a perceived increase in petitioner’s average open

claim reserve in 1993.

His report indicates that while such a

phenomenon might indicate a true increase in ultimate claim

costs, it might also represent a change in case reserve

attitude, or “reserve strengthening”.

He testified that for

1993 he assumed that the increases were “real”, but then

adjusted his estimates downward for 1994 and 1995 on the basis

of his conclusion that the 1993 increases had resulted from

reserve strengthening.

On cross-examination, however, Streff

admitted that he had neither heard nor seen any evidence to lead

30

(...continued)

issue, petitioner’s estimates of reinsurance proceeds recoverable

are significantly lower than the estimates used by its appointed

actuaries–-thus tending to result in higher net unpaid loss

reserves than recommended by the actuaries. Neither party has

specifically addressed these variances.

-45him to believe that there had been reserve strengthening in

1993.

He testified that when he was preparing his expert

opinion, he did not necessarily have the knowledge of the

uncontradicted testimony offered by petitioner’s officers at

trial, which indicated that there was no reserve strengthening.

We conclude that Streff’s estimates of petitioner’s unpaid

losses for 1994 and 1995 were based on faulty assumptions

regarding petitioner’s 1993 increases in its case reserves.

For

each of the years 1994 and 1995, we conclude that the best

available evidence of a fair and reasonable estimate of

petitioner’s unpaid losses is the point estimate selected by

petitioner’s qualified actuary.

Therefore, we conclude and hold

that fair and reasonable estimates of petitioner’s unpaid losses

for 1994 and 1995 are $10,096,656 and $8,706,428, respectively.

To reflect the foregoing,

Decision will be entered

under Rule 155.