Amicus Brief — Commissioner v. Standard Life & Accident Insurance

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No. 75-1771

In Tue

Supreme Court of the United States

Octroser Term, 1976

COMMISSIONER OF INTERNAL REVENUE,

Petitioner,

v.

STANDARD LIFE & ACCIDENT INSURANCE

COMPANY,

Respondent.

On Wait or CertTiornari To THE Untrep States

Court or APPEALS FOR THE TENTH CIRCUIT

BRIEF AS AMICUS CURIAE OF

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Franois A. GoopHus, JR.

Dewey, Batiantine, Bussey,

Patmer & Woop

Martruew J. Zinn

Sreproz: & Jonnson

Of Counsel

INDEX

Interest of the Amicus Curiae _._.._______________

Ee Gee, Se nn ai

Statement A 5 eee ge ey NS

I. Since 1909, Life Insurance Reserves ‘‘ Required

by Law’’ for Purposes of Federal Income

Taxation Have Been the Reserves Certified To

by the State Regulatory Authorities Without

Reduction on Account of Deferred and Un-

collected Premiums ____._______

A. Tax recognition of life insurance reserves

B.

based on state requirements _____________

Prudential v. Herold—Life insurance re-

serves and deferred and uncollected pre-

. From 1921 through 1957, life insurance

companies were taxed on their investment

income with an allowance for interest on

reserves required by law, without reduc-

tion on account of deferred and uncollected

The 1959 Act: The changes that Congress

made and those it did not make __________

10

10

10

12

13

II. Congress Intended Life Insurance Companies

to Account for Deferred and Uncollected Pre-

miums in Determining Their Assets and In-

come Under the 1959 Act in the Same Manner

as Those Items Are Accounted For in the

NAIC Annual Statement _______

D. The Government’s Principal Position Pro-

duces Anomalous and Inconsistent Results

FREE PSE MeN FE RET Ae) Se,

CrraTIons

CaSsEs:

Bankers Ltfe Co. v. United States, 412 F.Supp. 62

(i tone

Bankers Union Life Ins. Co., 62 T.C. 661 (1974) __

Brown v. Helvering, 291 U.S. 193 (1934) ________

Commissioner v. Court Holding Co., 324 U.S. 331

ST SEE ET Sat ee Re ee

Commissioner v. Idaho Power Co., 418 U.S. 1

) | Se

Connecticut General Life Ins. Co. v. Eaton, 218

Me , ieeeeeaee

Federal Life Ins. Co. v United States, 527 F.2d

RR ee ne

Franklin Life Ins. Co. v. United States, 399 F.2d

757 (7th Cir. 1968), rev’g 19 AF TR 2d 1734, 67-2

U.S.T.C. 7 9515 (S.D. ILL 1967), cert. denied, 393

eS Ree eran

Great Commonwealth Life Ins. Co. v. United

States, 491 F.2d 109 (5th Cir. 1974) ___________

PAGE

21

21

32

2,3

Ree PO a

Helvering v. New Haven & Shore Line Ry. Co.,

Inc., 121 F.2d 985 (2d Cir. 1941), cert. denied,

I I IID no cccrsenscheniorlic Sianesdiantbiiaioemenienedey

Jefferson Standard Life Ins. Co. v. United States,

408 F.2d 842 (4th Cir. 1969), aff’g im part, rev’g

in part, 272 F.Supp. 97 (D. N.C. 1967), cert.

denied, 396 U.S. 828 (1969) ~._--_-___________

Lincoln Nat’l Life Ins. Co. v. United States, 38

AFTR 2d 76-6126, 76-2 U.S.T.C. § 9772 (Ct. Cl.

EES SS aE ae eer Seats ee ee

Maryland Casualty Co. v. United States, 251 U.S.

SE SD ncietiiiniinetics oe

McCoach v. Ins. Co. of North America, 244 U.S.

IEE ibicih tdcnten in cicinetaiaimeebihatianiniaibtindmatin

Midland Nat’! Life Ins. Co. v. Commissioner, 66

A GED cide tirwcidcncaii

Monumental Life Ins. Co. v. United States, 39

AFTR 2d 77-306, 76-2 U.S.T.C. 9 9787 (Ct. Cl.

Se sien 7

Mutual Benefit Life Ins. Co. v. Herold, 198 F. 199

7 06 a oo

North American Life & Casualty Co. v. Commis-

sioner, 533 F.2d 1046 (8th Cir. 1976), aff’g 63

- i 2 | Serre

Prudential Ins. Co. of America v. Herold, 247

i EE, Se dele NE: chcntinenhabiiiieemen

Republic Nat’l Life Ins. Co. v. United States, 77-1

U.S.T.C. J 9133 (N.D. Tex. 1976) _-_-_.._-____-

Robertson v. California, 328 U.S. 440 (1946) ____-

United Life & Accident Ins. Co. v. Commissioner,

329 F.Supp. 765 (D. N.H. 1971) ~--..--------

United States v. Atlas Life Ins. Co., 381 U.S. 233

Er

PAGE

11, 24

13

iv

PAGE

Western and Southern Life Ins. Co. v. Commis-

sioner, 460 F.2d 8 (6th Cir. 1972), rev’g 55 T.C.

1036 (1971), cert. denied, 409 U.S. 1063 (1972) _. 2,3

Western Nat'l Life Ins. Co. v. Commissioner, 432

F.2d 298 (5th Cir. 1970), rev’g 51 T.C. 824

(1969), modifying 50 T.C, 285 (1968) _.....-_. 2, 3, 23

Sratures AND ReeguLaTiIons:

Administrative Procedure Act, Section 3(b), 5

U.S.C. Section 668(b) ....................-...- 19

Corporation Excise Tax of 1909, ch. 6, Section 38,

EE as Rn ee 12

Income Tax Act of 1913, ch. 16 I1(G)(b), 38 Stat.

Tl. .cuhoesntnietninamie sinalonehinbanentnnaanedaiiinia 12

Internal Revenue Code of 1939, section 201(¢c)(2) 17

Internal Revenue Code of 1954:

I 24

TREE TEED Annictcraiestesdbiiannsntatreptemnniiitutinmbinbtasteiies 4

a es 17, 21

a | a ee 15

Uy Ge dlacieciniteentnttaiminitnnateintintnibittiintens 18

I TD tpsicntecicinicietecnaidiiatiaidinienmigititntuitin 7,11

IED cccnsaetnsntcinintncsntnaniaialaiiein 81

Section 805(b)(4) ~...------------ 19, 20, 21, 25, 26

EE Se RSE Yo wee 16

RCS an aioe Nene ees 16

I ica 16

5 one 7

SE I - i acinenisintdaciicient linda demidaicatinetaiaie 21, 28

ED ciecinc cccntictteessintitteeldaaitcdentinaahiecichiion 28

I SE cecrericieptnccheritesdeeidetecaedieneteteeete 30

YL CS a ee eee 11

I SD A ndincnisisnsiniidnismectiohin 16

RCE Ea Re: ES! 18

v

PAGE

TN RESTON SS Pay Cer eee ae 22, 27

RE CI i denpthitbocdeocdnentakpannits 4, 9, 24, 25, 28

Section 818(¢c) ~....- SR: Re ee ee 16

gS TS eR ae 20

McCarran-Ferguson Act, 15 U.S.C. Sections 1011-

SUTIIIIITIIIT everteripsteinietheniaumalteninainintintamiamnaalenbene 10

‘Revenue Act of 1921, ch. 136, Section 245(a) (2),

gp SRE MR SS ll 12

Revenue Act of 1942, ch. 619, Section 163(a), 56

EE eel FT Set «SER ST We 17

Treasury Regulations No. 62, Art. 681 (1921) .... 18

Treasury Regulations on Income Tax (26 C.F.R.) :

GD 6 cncnnnencanmemnenniinnen 27

Section 1.451-1 —...... sisi Deindioniaiiahiaiineieee 26

CE EE Sn 20

Se Sr 18

EE EE a Oe oe a 18

Section 1.805-5(a) (4) (ii) .....-.-----------.. 26

CEE ee 21

EEN eee ee ee 11

ee ee 18, 25

MISCELLANEOUS:

105 Cong. Rec. 2569, 2576-77 (1959) _....------ 17

Hearings before the Subcommittee on Internal

Revenue Taxation of the Committee on Ways

and Means, 85th Cong., 2d Sess. (1958) ~....-. 15, 28

Hearings before the Committee on Finance, 86th

en 15, 28

H.R. Rep. No. 2833, 77th Cong., 1st Sess. 109

(1942), 1942-2 Cum. Bull. 372, 454 _....------. 17

H.R. Rep. No. 34, 86th Cong., Ist Sess. (1959),

1959-2 Cum. Bull. 736 e#, seqg........-.-..----. 16,17

PAGE

Report on The Taxation of Life Insurance Com-

panies, Subcommittee on Internal Revenue Tax-

ation, House Committee on Ways and Means

[URED Se) GENE cennusancuncesmineitboes 14

S. Rep. No, 1631, 77th Cong., 2d Sess. 145 (1942),

1942-2 Cum. Bull. 504, 612 _...............__. 17

S. Rep. No. 291, 86th Cong., 1st Sess. (1959),

1959-2 Cum. Bull. 770 et. seg, .........---. 6, 16, 17

Treasury Dept., Bureau of Internal Revenue, Bul-

letin H, Income Tax Rulings Peculiar to Life

Insurance Companies (1921) —___. SEI ch 13, 18

In Ten

Supreme Court of the United States

Ocroszr Term, 1976

No, 75-1771

ComMIssioner oF InTreRNAL Revenue,

: Petitioner,

v.

Sranparo Lire & Accipent Insurance Company,

| Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

BRIEF AS AMICUS CURIAE OF

AMERICAN COUNCIL OF LIFE INSURANCE

This brief is submitted with the written consent of coun-

sel to both parties filed with the Clerk of the Court.

Interest of the Amicus Curiae

The American Council of Life Insurance is a trade asso-

ciation with a membership of 444 companies engaged in the

life insurance business.' These companies account for 92

percent of the legal reserve life insurance in force in the

United States. |

The issue here involves the treatment of deferred and

uncollected premiums under the Life Insurance Company

Income Tax Act of 1959 (sections 801-820 of the Internal

Revenue Code of 1954, as amended)? (the ‘1959 Act’’). This

is a question of major importance affecting the federal in-

come taxation of every life insurance company.

Lower Court Decisions

No fewer than five different results have been reached

in seeking to resolve the issue presented here. For the

convenience of the Court, we describe them:

(1) The first result, that reached by the Tenth Circuit

in this case and advocated by the taxpayer, would include

no portion of deferred and uncollected premiums in either

assets or income,

(2) The second result, that favored by the Tax Court,

reached by one district court and advocated by the amicus,

would include no more than net deferred and uncollected

premiums in both assets and income.’

(3) The third result, that reached initially by the Fourth,

Fifth, Sixth and Seventh Circuits and advocated by the gov-

' The American Council of Life Insurance came into being through

merger in 1976 of the American Life Insurance Association (suc-

cessor to the American Life Convention and the Life Insurance Asso-

ciation of America) and the Institute of Life Insurance.

2 Unless otherwise indicated, section references are to the Internal

Revenue Code of 1954 (the “Code”’),

3 Vestern Nat'l Life Ins. Co., 50 T.C, 285 (1968), mod., 51 T.C.

824 (1969), rev'd, 432 F.2d 298 (Sth Cir. 1970); Western and

Southern Life Ins., Co., 55 T.C. 1036 (1971), rev'd, 460 F.2d 8 (6th

Cir. 1972), cert. denied, 409 U.S, 1063 (1972) ; cf. Bunkers Union Life

Ins. Co., 62 T.C. 661 (1974); Franklin Life Ins. Co. v. U.S., 19

AFTR2d 1734, 67-2 U.S.T.C. 9 9515 (S.D. Ill. 1967), rev'd, 399 F.2d

757 (7th Cir. 1968), cert. denied, 393 U.>. 1118 (1969),

3

ernment as its ‘‘primary position’’, would include gross de-

ferred and uncollected premiums in both assets and income.‘

(4) The fourth result, that reached more recently by a

number of lower court (including the Fifth and Seventh

' Cireuits) would include gross deferred and uncollected pre-

miums in income’ and assets®, but would allow a reduction

for expenses associated with their collection,

(5) The fifth result, that recommended by one trial

judge in the Court of Claims and advocated by the govern-

ment as its “alternative position’’, would include no por-

tion of deferred and uncollected premiums in either assets

or income but would reduce reser’ es by amounts equal to

the net valuation portion of such premiums.’

4 Franklin Life Ins. Co. v. U.S., 399 F.2d 757 (7th Cir. 1968),

rev'g 19 AFTR2d 1734, 67-2 U.S.T.C. 9515 (S.D, Ill. 1967), cert.

enied, 393 U.S, 1118 (1969) ; Jefferson Standard Life Ins. Co. v.

‘S., 408 F.2d 842 (4th Cir, 1969), aff'g in part, rev'g in part, 272

F.Supp. 97 (D. N.C, 1967), cert. denied, 396 U.S. 828 vail,

Western Nat'l Life Ins. Co. v. Commissioner, 432 F.2d 298 (Sth Cir.

1970), rev'g 51 T.C. 824 (1969), modifying 50 T.C, 285 (1968) ;

Western and Southern Life Ins. Co. v. Commissioner, 460 F.2d 8

(6th Cir, 1972), rev’'g 55 T.C. 1036 (1971), cert. denied, 409 U.S.

1063 (1972).

5Great Commonwealth Life Ins. Co. v. U.S., 491 F.2d 109

a Cir, 1974) ; Federal of Ins. Co. v. U.S., 527 F.2d 1096 (7th

ir, 1975) ; North American Life & Casualty Co. vy. Commissioner, 533

F.2d 1046 (8th Cir. 1976), aff’g 63 T.C. (1974) ; accord, United

Life & Accident Ins, Co. v. Commissioner, 329 F.Supp. 765 (D. N.H.

19785 Midland Nat'l Life Ins. Co. v. Commissioner, 66 T.C. 550

(

®In Bankers Life Co. v. U.S., 412 F.Supp. 62 (S.D. Iowa, 1976),

the excess of gross over net deferred and uncollected premiums

(i.¢., the loading) was held to have been excludable from assets on the

round that such excess constituted an asset used in ¢n insurance

siness. But see Republic Nat'l Life Ins. Co. v. U.S., 77-1 U.S.T.C,

| 9133 (N.D, Tex. 1976).

7 Monumental Life Ins. Co. v. U.S., 39 AFTR2d §] 77-306, 76-2

U.S.T.C, §] 9787 (Ct. Cl. 1976). On the other hand, a week earlier,

another trial judge of the Court of Claims recommended that gross

deferred and uncollected premiums be included in income, that a

deduction be allowed for estimated expenses of collection and that,

absent a statutory change, reserves could not be reduced, Lincoln

Nat'l Life les, Co, v. U.S., 38 AFTR2d 76-6126, 76-2 U.S.T.C.

| 9772 (Ct.Cl. 1976). The Court of Claims itself has not passed on

any aspect of the question.

4

Thus, no court has allowed the government to make any

reduction in reserves. Rather, the differences of opinion

that have arisen have largely been with respect to the treat-

ment of deferred and uncollected premiums in calculating

assets and income.

Position of the Amicus Curiae

First and foremost, it is our position that Congress

meant to afford full tax recognition to aggregate life insur-

ance reserves as certified by the various state regulatory

authorities and that, apart from certain exceptions speci-

fied in the statute, it meant no change in this regard from

prior law. Regardless of how deferred and uncollected

premiums are treated for asset and income purposes,

whether includible in full, in part, or not at all, reserves

as defined in section 801 of the Code should not be reduced

on account of deferred and uncollected premiums,

Beyond this, whether Congress intended to include de-

ferred and uncollected premiums in ‘‘assets’’ and ‘‘income”’

turns on whether it contemplated the application of normal

tax rules and meanings to them, or whether it intended a

special accounting treatment of these items because of their

uniqueness to life insurance companies. If it intended that,

in the computation of ‘‘taxable investment income’’ and

‘‘vain from operations’’, ‘‘assets’’ and ‘‘ineome’’ are to

retain their normal tax meanings, the conclusic« is inescap-

able that deferred and uncollected premiums are neither

assets nor income and the decision below should be affirmed.

On the other hand, if Congie «* meant to supersede those

meanings, the statutory reference 4 section 818(a) to ‘‘com-

putations ... in a manner consistent with the manner

required for purposes of the annual statement approved

by the National Association of Insurance Commissioners’’

(hereinafter ‘‘NAIC’’) should control, since it is the only

statutory provision sanctioning a departure from normal

tax rules. The Annual Statement, a mandatory and uni-

form accounting system for life insurance companies, has

5

for over 100 years required the inclusion of net (as opposed

to gross as contended for by the government) deferred and

uncollected premiums in assets. It follows that if Congress

meant to depart from normal tax principles and require

the inclusion of deferred and uncollected premiums in

assets and income, it meant to adopt the Annual Statement

treatment pursuant to which only net deferred and unco!-

lected premiums are included ia assets and income.

It is, and consistently has been, the position of the amicus

and its predecessors that Congress intended that the NAIC

treatment be followed. While the position of the amicus

constitutes the position of the industry organization as a

whole, not all companies subscribe to the view that we urge

here. Some companies (including, of course, the taxpayer)

believe that there are strong legal arguments to support the

result reached by the court below.

Because we continue to believe that the correct result

under the statute is that net deferred and uncollected pre-

miums should be included in assets and income, our argu-

ments here are directed to this point. Should this Court

not agree, we respectfully suggest that the most appropriate

result is the one reached by the Tenth Circuit below.

Statement

The applicable Code provisions and the facts of this case

are recited in the government’s brief. (P. Br. 3-15).* The

amicus submits, however, that the government’s statement

is misleading in at least three significant respects.

First, the government suggests that the amount of a life

insurance company’s reserve is dependent on the amount

of premiums actually received. The fact is that life insur-

ance reserves are required to be computed with respect to

all policies in force at the end of the year on the basis of

the net premiums that are assumed to have been received,

8 References herein to “P. Br.” are to the government’s brief.

irrespective of what gross premiums may have in fact been

paid by the policyholders. It is stipulated that the taxpayer

in this case was ‘‘required . . . to compute its reserves...

on the assumption that premiums were paid up one year in

advance on each anniversary date . . . of the policy, even

though premiums were not usually paid in this manner.’’

(Stip. par. 11,-p. 17; Pet. App. A 3a, App. B lla).’ The

reserves so computed are the required reserves both for

purposes of Oklahoma law and for purposes of the Code.

Second, the government states that the insurer has no

obligation to continue the insurance coverage beyond the

period for which premiums have been paid. This ignores

the fact that whether the insurance will be continued is a

matter wholly beyond the control of the company. Accord-

ingly, so long as a policy is in force, the company’s con-

' tingent liability (‘‘risk’’) is for the entire life of the

insured."®

Third, the government wrongly states that the com-

putation of taxable investment income is controlled by the

ratio of reserves to assets." The government goes on

to argue that it is justified in adding loading to the net

deferred and uncollected premiums shown in assets on

the balance sheet by the necessity of maintaining its

erroneous ratio in the computation of taxable investment

income. This is a complete non sequitur because there is

no correlation whatever between the ratio of net to gross

premiums and the ratio of reserves to assets.

9 References herein to “Pet.” are to the petition for a writ of

certiorari.

10 Moreover, if a premium is not paid, under the non-forfeiture

provisions the company may remain liable for the full coverage for

an extended period of time without receiving any future premiums

at all.

11 While it is true that an increase in reserves decreases the tax

and an increase in assets increases the tax, the faulty algebra used

by the government to derive its erroneous ratio (P> Br. 6, 40) is

apparent if one follows the statutory provisions which it more ac-

curately describes in n. 6 (P. Br. 6). gre also the example set forth

in S. Rep. No. 291, 86th Cong., Ist sess. 18 (1959), 1959-2 Cum.

Bull. 770, 783. —

7

The government argues that if it does not prev iil

on its primary position, then alternatively the reserves

required by state law should be reduced on account of de-

ferred and uncollected premiums. There is no basis for that

extreme position, and, in the amicus’ view, it should be

rejected out of hand.” But since the government has

seen fit to inject it into the case, the amicus has no choice

but to respond. We do so not only because the government’s

alternative would unsettle what has been settled since the

very beginnings of the income tax, but also because it would

have a most serious financial impact on the entire life

insurance industry. Accordingly, the amicus addresses the

government’s alternative position first. Thereafter, we

address those issues that are genuinely in controversy, i.e.,

the proper treatment of deferred and uncollected premiums

in calculating assets and income.

Summary of Argument

I

In 1909, Congress provided a deduction for federal ex-

cise tax purposes based on reserves of a life insurance

company required by state law. It adopted the same ap-

proach in the first income tax act, that of 1913, and in every

successive income tax statute, including the Life Insurance

Company Income Tax Act of 1959. Among the reserves

required by state law are reserves for all policies in force,

including those on which premiums are deferred or uncol-

lected. Thus, as to such policies, it was stipulated here that

state law requires reserves to be computed on the assump-

tion that all premiums are paid on the anniversary date of

a policy, regardless of when premiums have actually been

received.

121It was stipulated that taxpayer’s “reserves [computed on the

assumption that premiums were paid annually in advance] were re-

flected as a liability of [ yer] and, as required by the [Code],

were taken into account in the computations required under sections

805 and 809 on the . . . tax returns”. Stip. par. 11, p. 17, supra.

There can be no doubt at this late date that, in keeping

with Congress’ overall approach to reserves that the fed-

eral tax law is to follow state law, reserves for tax purposes

are not to be reduced on account of deferred and un<ollected

premiums. This precise issue was raised and decided as

early as 1918, and the Bureau of Internal Revenue itself

concurred in that result in 1921. Furthermore, Congress

on numerous occasions from 1921 through 1957, and in the

1959 Act itself, changed the provisions for reserve deduc-

tions and prescribed certain specific exceptions to the gen-

eral rule that reserves for tax purposes are those required

by state law. But it at no time intimated that there was to

be any change in the established treatment of reserves for

policies with deferred and uncollected premiums.

Despite Congress’ unequivocal record over a period of

50 years, the government contends in the alternative that,

if gross deferre | and uncollected premiums are not included

in assets and income, reserves must be reduced accordingly.

The government claims no support for th.s argument in the

statute, the legislative history, applicable state law, or

industry practice, and there is none. Rather, the govern-

ment relies on a regulation which purports to mandate this

result. By no stretch of the imagination can this regula-

tion be considered an interpretation of the 1959 Act; nor

is there basis for respectable argument that Congress

authorized the promulgation of any such rule. For these

reasons, the regulation is invalid.

In any case, the regulation is inapplicable because, by its

terms, it applies only if deferred and uncollected premiums

are excluded entirely from assets and income. Our position

here, however, is that such premiums should not be ex-

cluded entirely, but that the net amount thereof is properly

includible in assets and income.

The government’s ‘‘primary position’’—that gross de-

ferred and uncollected premiums must be included in assets

and income—similarly has no merit. Under normal tax

accounting rules, it is clear that since an insurance company

has no legal right to such premiums, they constitute neither

assets nor accruable income. The government does not con-

tend otherwise.

_ Our position is that, but for the reference in section

818(a) of the Code to the NAIC Annual Statement, normal

tax accounting rules would apply and deferred and uncol-

lected premiums would be excludable in their entirety from

assets and income. It is further our position that, in view

of that reference, any departure from normal tax account-

ing rules must accord with the prescribed NAIC treatment.

Under consistently applicable NAIC rules, only the net por-

tion of deferred and uncollected premiums is includible in

assets and income and, therefore, only that portion should

be includible in assets and income for tax purposes.

The government claims that neither normal tax ac-

counting rules nor established NAIC rules should be fol-

lowed. Its principal argument is that, since it is assumed in

computing reserves that all net premiums are paid on the

anniversary date of a policy, consistency and symmetry

demand that, in calculating assets and income, it be as-

sumed that all gross premiums are paid annually in advance.

Accordingly, the government would require the inclusion

of gross deferred and uncollected premiums in assets and

income.

In advancing this contention, the government ignores

the fact that a life insurance company necessarily will incur

expenses in the process of collecting deferred and uncol-

lected premiums, and that these expenses will reduce assets

and income. Yet the government nowhere states that it

would permit a reduction in assets and income to reflect such

expenses. In consequence, the government ’s theory would

produce the bizarre result that a company with deferred

and uncollected premiums will have greater assets and in-

come than one that has in fact received an equivalent amount

of premiums in cash.

10

Finally, while the linchpin of the government’s argument

is the need for consistency, the government itself refuses to

be consistent. To be totally consistent, both assets and in-

come would have to be reduced by estimated expenses of

collection of deferred and uncollected premiums. However,

as indicated above, the view of the amicus is that Congress

intended to adopt the well-understood approach of the

NAIC. It did so, not to achieve the notion of symmetry

advocated by the government, but because that approach

was practical, in accord with longstanding requirements of

state regulatory authorities and clearly reflects income.

Argument

I. Since 1909, Life Insurance Reserves “Required

by Law” for Purposes of Federal Income Taxation Have

Been the Reserves Certified To by the State Regulatory

Authorities Without Reduction on Account of Deferred

and Uncollected Premiums -

A. Tax recognition of life insurance reserves based on state

requirements

The computation of life insurance reserves has long been

the exclusive province of state law. Congress confirmed

the preeminent role of the states in life insurance matters

when it enacted the McCarran-Ferguson Act (15 U.S.C.

§§ 1011-1015), and this Court has acknowledged the states’

authority to set ‘‘reasonable minimum reserve standards

for the protection of policyholders.’’ Robertson v. Cali-

fornia, 328 U.S. 440, 459 (1946).

This is no less so in tax matters than in substantive life

insurance matters. The cornerstone of life insurance com-

pany tax treatment in each of the statutes covering life

insurance companies since 1909 has been recognition that

‘‘life insurance companies are required by law to maintain

policyholder reserves to meet future claims, that they

normally add to these reserves a large portion of their

investment income and that these annual reserve increments

, 11

should not be subjected to tax.’’ United States v. Atlas Life

Ins. Co., 381 U.S. 233, 236 (1965)." |

The legally required life insurance reserve, a creature

of state law and a product of actuarial science, is an estimate

of the present value of unaccrued policy obligations. State

laws and regulations impose standards governing the as-

sumptions and estimates that underlie the valuation of

legally required life insurance reserves. Amounts of insur-

ance in force at year-end are multiplied by reserve factors

that are established on the basis of a number of state

approved actuarial assumptions. In the case of ordinary

life insurance, these have customarily included, in addition

to mortality and interest rates, the assumption that all net

valuation premiums on policies in force are paid annually

at the beginning of their respective policy years. Thus, as

the government states (P.Br. 4), it was found below (Pet.

3a) : ‘*Pursuant to Oklahoma law, respondent was required

to compute its reserves on its policies on the assumption

that the annual premiums had been paid as of the anni-

versary date of the policy, whether or not this was the case.’’

In our view, nothing more is necessary to dispose

of this aspect of the case. “-he reserves shown on the An-

nual Statement are the reserves required by law and con-

stitute the ‘‘life insurance reserves’’ to be used for tax

purposes under sections 805 and 810.

13 See also Maryland Casualty Co. v. U.S., 251 U.S. 342 (1920),

in which this Court expressly acknowledged the overriding import-

ance of state regulatory authority in the recognition of reserves for

tax purposes.

14 Procedurally, life insurance reserves are computed by the

company itself by applying factors, derived from published actuarial

tables, to amounts of insurance in force by policy type at year-end.

The figures are then submitted to the regulatory authority of the

state of domicile. When and if approved, the domiciliary State

regulatory authority issues a “certification of valuation of policies

which sets forth the dollar value of the aggregate of each type of

reserve categorized with reference to the various standards

and interest assumptions previously approved by the state for the

licies in question. The NAIC has prescribed a form to be used

- an insurance company in preparing its Annual Statement. This

form, which must be filed with a life insurance company’s income

tax return (see Treas. Reg. § 1.6012-2), Tagen for the setting

forth of the life insurance reserves so certified.

12

B. Prudential v. Herold—Life insurance reserves and deferred

and uncollected premiums

From the enactment of the Corporation Excise Tax of

1909"° through the Income Tax Act of 1913" and until the

Revenue Act of 1921," life insurance companies were taxed

on their total income with a deduction for ‘‘the net addi-

tion... required by law to be made within the year to

reserve funds.’’ Nearly 60 years ago, in Prudential Ins.

Co. of America v. Herold, 247 F. 681 (D. N. J. 1918),

the government challenged the assumption that underlies

the present controversy. The taxpayer there computed its

deduction for ‘the net addition ... required by law to be

made within the year to reserve funds’’ with reference to

the reserve valuation certified by the New Jersey Com-

missioner, which included policies having premiums that

were deferred and uncollected, The government argued that

since the taxpayer was on the cash basis of accounting, it

was not entitled to credit for the full value of the reserves

on such policies because the deferred and uncollected pre-

miums had not Leen included in taxable income. The court

examined and rejected this argument, setting the precedent

for full recognition of life insurance reserves without re-

duction on account of deferred and uncollected premiums

under all ensuing income tax statutes:

‘*The question to be decided, therefore, is whether the

plaintiff, in figuring its net addition to the reserve funds

which it was required by law to make, was justified in

including the value of such policies. The argument

upon which the defendant’s contention in this respect

is based seems to be that as part of the assets making

up the plaintiff’s ‘reserve’ consisted of these unc \llected

and deferred premiums, and as they are not included

in the plaintiff’s gross income (as, clearly, they should

not be so included, Mutual Benefit Life Ins. Co. v.

Herold ... [198 F. 199 (D. N. J. 1912)]; Conn. Gen.

Life Ins. Co. v. Eaton .. . [218 F. 188 (D. Conn.

'S Act of August 5, 1909, ch. 6, § 38, 36 Stat. 113.

6 Act of October 3, 1913, ch. 16 II1(G) (b), 38 Stat. 114.

17 Ch. 136, § 245(a) (2), 42 Stat. 227.

13

1914)]), that the value of such policies should not be

included, for purposes of taxation, in its net addition

to reserve funds. But this argument, | think, begs the

question, which is, as clearly defined by the Supreme

Court in MeCoach v. Insurance Co. of North America,

244 U.S. 585, 37 Sup. Ct. 709, 61 L. Ed. 1333, what sum

or sums in the aggregate did the state laws require the

plaintiff to maintain as a ‘reserve fund,’ not the char-

acter of the assets making up the actual ‘reserve funds,’

No matter what their character, they were as effectively

withdrawn from the plaintiff’s use as if they had been

expended. If therefore the law of New Jersey, or any

other state in which it did business, made it obligatory

on the part of the plaintiff to maintain a ‘reserve’ on

account of the policies of the character in question, it

is of no materiality what the ‘reserve funds’ actually

consisted of, whether cash, securities, real estate, or due

and uncollected premiums.’’ 247 F. at 685-86 [Cita-

tions added].

Subsequently, the Bureau of Internal Revenue acquiesced

in this reasoning and ruled not only that ‘‘ generally speak-

ing... [the aggregate reserve shown on] . . . the liability

page of the [NAIC] annual statement . . . will be considered

reserves as contemplated by the statute’’ but also specifically

that ‘‘uncollected and deferred premiums cannot reduce

reserves’, Treas. Dept., Bureau of Internal Revenue, Bul-

letin H, Income Tax Rulings Peculiar to Life Insurance

Companies (1921), Rulings 8 and 14, pp. 7 and 9.""

C. From 1921 through 1957, life insurance companies were

taxed on their investment income with an allowance for

interest on reserves required by law, without reduction on

account of deferred and uncollected premiums

In 1921, the ‘‘total income’’ approach for life insurance

companies was abandoned, and Congress substituted a tax

18 Because of the limited availability of “Bulletin H” amicus

has lodged with the Clerk, for the convenience of the Court, 40 xerox

copies of the pages of “Bulletin H” pertaining to life insurance com-

panies. In addition to the pages cited above, see 20 and 26.

14

based solely on investment income. Through 1957, this base

remained the sole basis for taxation of income from the life

insurance business. For most of these 37 years, the reserve

interest allowance was computed by applying a specified

interest rate to each company’s reserves required by law.

However, in no fewer than five instances, Congress altered

the manner in which the allowance was to be computed.'”

But critical for present purposes is the fact that, de-

spite these alterations, Congress at no time departed from

the principle that, for tax purposes, life insurance company

reserves are not to be reduced on account of deferred and

uncollected premiums. This principle thus was well settled

when Congress considered the bill which became the Life

Insurance Company Income Tax Act of 1959.

'° From 1921 to 1931 each company deducted 4% of its own

reserves without reduction on account of deferred and uncollected

premiums, From 1932 to 1941 each company deducted 3.75% of its

own reserves, again, without reduction on account of deferred and

uncollected premiums. In 1942 this company-by-company ap-

proach was dropped and an industry-wide method of determining

the deduction was substituted. There was no change, however, in

— of deferred and uncollected premiums, From 1942 to 1948

each company deducted a fixed percentage of its net income (the

“Secretary's ratio” ) —— by the Secretary of the Treasury for

the entire industry based in part (65%) on the prior year’s actual

reserve requirements for the industry computed without reduction

on account of deferred and uncollected premiums and in part (35% )

on the assumption that an investment income rate of return —

to 34% was required for the entire industry, For 1949 and 1950

the deduction was determined by the Secretary of the Treasury based

entirely (instead of 65%) on the average reserve requirements for

the industry for the preceding year. Here too the ratio was derived

from reserves computed on the basis of net valuation premiums with

no reduction on account of deferred and uncollected premiums. For

the years 1951 through 1957 Congress in effect continued to tax the

life insurance industry on a uniform percentage of net investment

income. See generally Report on the Taxation of Life Insurance Com-

nies, Subcommittee on Internal Revenue Taxation, Committee on

ays and Means, U.S. House of Representatives, December 31, 1958.

=>.

15

D. The 1959 Act: The changes that Congress made and those

it did not make

The provisions of the 1959 Act as well as the exhaustive

studies, hearings and reports accompanying it give no hint

of any departure frcm the established pattern of accepting

state certified life insurance reserves without any reduction

on account of net deferred and uncollected premiums. This

is important because in responding to Congressional re-

quests for a more permanent basis for taxing life insurance

companies, the Secretary of the Treasury, after specifically

commenting on two possible adjustments to reserves, said:

‘*At this time we have no recommendations for or

against other specific reserve adjustments. .. . How-

ever, every departure from the allowance for policy re-

serves used in determining the net gain from opera-

tions reported in the annual statement to the State

insurance departments would represent a complication

which could be justified only by persuasive equity and

technical considerations.’’°

On this record, without more, the only reasonable con-

clusion is that Congress, in enacting the 1959 Act, intended

that life insurance reserves not be reduced on account of

deferred and uncollected premiums in determining life

insurance company taxable income.

This conclusion is reinforced by the fact that Congress,

in the 1959 Act, provided for five adjustments to life in-

surance company reserves as determined for state regu-

latory purposes?! It did so only after the most careful

20 Hearings before the Subcommittee on Internal Revenue Taxa-

tion of the Committee on Ways and Means, 85th Cong., 2d Sess., 5,

November 17-20, 1958; Hearings before the Committee on Finance,

86th Cong., Ist Sess., 513, March 3-5, 17-19, 1959,

21 Four of these adjustments are mandatory: the elimination of

deficiency reserves by section 801(b)(4); the “10 for 1” rule set

(footnote continued )

16

consideration and the reasons for each of these changes

are fully documented in the reports of the tax-writing

committees,”

Thus, although Congress in 1959 comprehensively ex-

amined the functions and purposes of life insurance re-

serves for tax purposes, it did not provide for any adjust-

ment to reserves required by law on account of deferred

and uncollected premiums.

Given these circumstances, it seems clear that if Con-

gress had intended such an adjustment it would have said

so. This is underscored by the realization that any reduc-

tion of reserves on account of deferred and uncollected

premiums would have had a very substantial tax impact.

The proponents of the 1959 Act repeatedly emphasized

that, except for the changes specified, the Act was not

intended to disturb the traditional assumptions underlying

reserve valuations. Thus, the Chairman of the House Ways

and Means Committee, in introducing the legislation to

the full House, stated:

‘*(T]he committee has no intention of placing jurisdic-

tion of the management of insurance company reserves

within the hands or powers of the Commissioner of

Internal Revenue.* * *

‘‘We are trying to preserve as best we can in this

bill the management of this industry in the hands of

(footnote continued)

forth in section 805(c); the adjustments for certain transfers of

liabilities in section (a); and the treatment of changes of basis

in computing reserves set forth in sections 806(b) and 810(d). The

other adjustment, which is optional, is set forth in section 818(c),

and permits a life insurance company computing its reserves on a

— term basis to revalue such reserves on a net level premium

is,

22 H.R. Rep. No. 34, 86th Cong., Ist Sess. 11, 17-19, 22, 26-27,

29, 32, 42 (1959), 1959-2 Cum. Bull. 736 et seq.; S. Rep. No, 291,

86th Cong., Ist Sess. 15, 19, 30-31, 34, 42, 49, 51-52, 57, 73 (1959),

1959-2 Cum. Bull. 770 et seq.

17

the State regulatory agencies and not to change in

any way that situation so as to turn over to the Com-

missioner of Internal Revenue, the Secretary of the

Treasury, or anyone else in Washington the regula-

tory authority.

‘*. . . We are not saying that a company may not

accumulate reserves if the state regulatory body tells

it to accumulate reserves. We are not levying a tax

on the accumulation of those reserves.’’ 105 Cong.

Rec, 2569, 2476-77 (1959).

The Senate report accompanying the new law confirms

that, except for the changes specified, the definition of

life insurance reserves (section 801(b) of the Code, as

amended) ‘‘is the same as that contained in... existing

law.’ Prior to the 1959 Act, the definition of life insur-

ance reserves derived from section 201(c)(2) of the 1939

Code, added by the Revenue Act of 1942. The committee

reports accompanying the 1942 Act both state that the

statutory definition ‘‘is substantially that contained for

many years in the regulations.’ Accordingly, there is

no indication of a shift in congressional policy with respect

to these reserves, and there is strong evidence that no

shift was intended.

The 1959 Act Regulations continue to use language com-

parable to that contained in regulations going back through

the Revenue Act of 1921 to the effect that:

‘*In determining total reserves, a company is permitted

to make use of the highest aggregate reserve required

by any State or Territory or the District of Columbia

in which it transacts business, but the reserve must

= S. Rep. No. 291, supra, at 42; see also H.R. Rep. No. 34, supra,

at <2.

4 H.R. Rep. No. 2333, 77th Cong., Ist Sess. 109 (1942), 1942-2

Cum, Bull, 372, 454; S. Rep. No. 1631, 77th Cong., 2d Sess, 145

(1942), 1942-2 Cum. Bull. 504, 612.

18

have been actually held during the taxable year for

which the reserve is claimed.’’ Treas. Reg. §1.801-5(a).

Moreover, ‘‘reserves required by law’’ are defined as

‘‘reserves which are required either by express statu-

tory provisions or by rules and regulations of the

insurance department of a State, Territory, or the

District of Columbia when promulgated in the exercise

of a power conferred by statute and which are re-

ported in the annual statement of the company and

accepted by state regulatory authorities as held for

the fulfillment of the claims of policyholders or bene-

ficiaries.’’ Treas. Reg. § 1.80! -5(b).

If more were needed, it is found in the very explicit

language of Treas. Reg. § 1.6012-2(c) which provides in

part:

‘*(¢) Insurance companies.—(1) Life insurance

companies.—A life insurance company subject to tax

under section 802 or 811 shall make a return on Form

1120L. There shall be filed with the return (i) a copy

of the annual statement, the form of which has been

approved by the National Association of Insurance

Commissioners, which is filed by the company for the

year covered by such return with the Insurance De-

partments of States, Territories, and the District of

Columbia, and which shows the reserves used by the

company in computing the taxable income reported

on its return, and (ii) copies of Schedule A (real

estate) and Schedule D (bonds and stocks) of such

annual statement.’’

Overall, the regulations exemplify and implement the intent

of Congress to continue recognition of those life insurance

reserves certified by the states.”

% Compare the 1959 Act regulations with Reg. 62., Art. 681

(issued under the 1921 Act), and Bulletin H, supra, 20.

19

The five Courts of Appeals that have considered the

question presented here have made no adjustment in life

insurance reserves on account of deferred and uncollected

premiums. This result is solidly supported by the statute,

its legislative history, prior statutes and applicable case

law.

In the face of this evidence, the government’s primary

position concedes that reserves are not to be reduced on

account of deferred and uncollected premiums. The gov-

ernment contends in the alternative, however, that if de-

ferred and uncollected premiums are not included at gross

in assets and income, the net deferred and uncollected

premiums are to be subtracted from reserves. In advancing

this alternative the government relies on Treas. Reg. § 1.801-

4(f) which provides:

**In the event it is determined on the basis of the

facts of a particular case that premiums deferred and

uncollected and premiums due and unpaid are not

properly accruable for the taxable year under section

809 and, accordingly, are not properly includible under

assets (as defined in section 805(b)(4)) for the taxable

year, appropriate reduction shall be made in the life

insurance reserves. This reduction shall be made when

the insurance company has calculated life insurance re-

serves on the assumption that the premiums on all

policies are paid annually or that all premiums due on

or prior to the date of the annual statement have been

paid.”’

The government cites no basis for this strongarm regu-

lation, and we know of none. Quite apart from the fact that

it was promulgated without prior notice,” this regulation

disregards a half-century of uniform tax treatment of re-

serves. It is unsupported by even a single word of the 1959

Act. Indeed, not even the voluminous legislative history of

26 See Administrative Procedure Act, § 3(b), 5 U.S.C. §553(b).

20

the 1959 Act provides any justification for the government’s

alternative claim. Worse still, the regulation is punitive in

its effect. By imposing a sanction, it discourages a life

insurance company from having its tax liability determined

in accordance with the les as Congress wrote it, rather

than as the Treasury Department would have written it.

It is, in short, a pernicious and, so far as we are aware,

unique regulatory provision that should not be sustained.

If the Internal Revenue Service is dissatisfied with the tax

consequences under the 1959 Act, it should ask the Congress

to change them. It bas not been given blanket authority to

rewrite the law.”

While we believe that the regulation is invalid—and

patently so—we do not think it is necessary for the Court

to reach this question, because, in our view, the regulation is

by its own terms inapplicable in the circumstances presented

here. Under Treas. Reg. § 1.801-4(f), a reduction in reserves

is to be made only if deferred and uncollected premiums

‘fare not properly accruable for the taxable year under

section 809 and, accordingly, are not properly includible

under assets (as defined in section 805(b)(4)). .. .’’ But

our position here is that net deferred and uncollected pre-

miums are properly accruable and hence includible in assets

under the correct interpretation of sections 805 and 809. This

being the case, there is neither cause nor need to invoke the

27 The government cannot justify the regulation on the ground

that it is needed to preclude what is perceived by the government

to be an improper result. Congress was very much aware when

it enacted the Life Insurance Company Income Tax Act of 1959

of the need to preclude improper results under the intricate scheme

which it mandated—and it took careful and painstaking oo to pre-

vent this. Thus, in section 818(e), Congress declared: “Nothing in

this part shall it the same item to be deducted more than once

under subpart B and once under subpart C.” Congress did not enact

a second provision to the effect that, if gross deferred and uncollected

premiums are not included in assets and income, life insurance reserves

must be reduced by an amount equal to net deferred and uncollected

premiums. Nor did it empower the Treasury Department to promul-

gate such a provision.

oo we ——

21

sanction of a reduction in the reserves which a life insur-

ance company is required by law to maintain.”

Given the invalidity or the inapplicability of the regu-

lation, the only question is whether and, if so, to what ex-

tent life insurance companies must include deferred and

uncollected premiums, which they have no legally enforce-

able right to collect, in ‘‘assets’’ and ‘‘ premiums’”’ (as those

terms are defined in sections 805(b)(4) and 809(c)(1)) for

purposes of determining respectively their ‘‘ taxable invest-

ment income”’ and ‘‘gain from operations.’’ We turn now

to this question.

II. Congress Intended Life Insurance Companies

to Account for Deferred and Uncollected Premiums in

Determining Their Assets and Income Under the 1959

Act in the Same Manner as Those Items Are Accounted

For in the NAIC Annual Statement

A. Background

In 1959, Congress returned to a total income approach

to the taxation of life insurance companies. Taxable invest-

ment income, the sole tax base from 1921 to 1957, became

the base for the Phase I tax. Within that phase, the defini-

tion of taxable investment income began, as before, with

net investment income. The reserve interest allowance, how-

ever, was to be computed under a formula that took into

account a company’s own investment ‘‘earnings rates’’

rather than industry-wide reserve interest requirements.

28 Indeed, the concept of subjecting life insurance reserves to tax

accruability requirements is based on a non sequitur because by defi-

nition life insurance reserves are held for “future unaccrued claims

. .. involving . . . life . . . contingencies” [emphasis added] (Section

801(b)) and because they are from the accounting rules

provided for other items. See Treas. Reg. § 1.806-4, providing that a

change in the basis for valuing reserves is not subject to rules for

changes in accounting method. See also Brown v. Helvering, 291

U.S. 193 (1934), in which this Court noted that normal rules of

.crual accounting do not apply to life insurance reserves.

‘*Gain from operations’’ became the base for the new Phase

II and Phase III taxes. Such gain was defined as including

both premium income and investment income.

The 1959 Act also added section 818 to the Code con-

taining ‘‘ Accounting Provisions’’ specifically applicable to

life insurance companies. These provisions, among other

things, required the companies to discontinue the use of

the cash method of reporting for tax purposes.” The per-

tinent provisions of this section are as follows:

**Sec. 818. Accounting Provisions.

(a) Method of Accounting. All computations enter-

ing into the determination of the taxes imposed by

this part shall be made

(1) under an accrual method of accounting,

or

(2) to the extent permitted under regulations

prescribed by the Secretary, under a combination

of an accrual method of accounting with any other

method permitted by this chapter (other than the

cash receipts and disbursements method).

Except as provided in the preceding sentence, all such

computations shall be made in a manner consistent

with the manner required for purposes of the annual

statement approved by the National Association of

Insurance Commissioners.”’

It has generally been recognized by all of the courts

that have considered the matter that deferred and un-

collected premiums, which a life insurance company has no

legally enforceable right to collect, are not assets in the

ordinary sense of the word nor in an ‘‘investment’’ sense,

and would not accrue as receivables under the generally

29 Since 1951, the NAIC has required inclusion in the Annual

Statement of a “Summary of Operations” prepared on “an accrual

basis.”

—

<r e wee

23

applicable rules of tax accrual accounting.° If Congress

intended such rules to apply to deferred and uncollected

premiums it seems inescapable that the court below cor-

rectly concluded that nothing is includible in either assets

or premium income on account of deferred and uncollected

premiums.

The terms ‘‘assets’’ and ‘‘gain from operations’’ had

not been of critical importance in the taxation of life

insurance companies prior to the 1959 Act. Nevertheless,

the terms had previously been used and understood, in con-

nection with the treatment of deferred and uncollected

premiums, by insurance companies and state regulatory

bodies in the Annual Statement prescribed by the NAIC.

Since 1871, ‘‘assets’’, as reflected in the Annual State-

ment, have included only net deferred and uncollected

premiums. Reserves for policies in force, including those

on which premiums are deferred and uncollected, are com-

puted on the basis of net annual premiums and are reflected

on the Annual Statement at Exhibit 8. The Statement

requires, however, that net premiums (i.e., deferred and

uncollected premiums excluding loading) also be reflected

as assets. Where, as in this case, there are reserves

reflected in the Annual Statement on account of policies

with deferred and uncollected premiums, net deferred and

uncollected premiums are reflected as assets on the balance

sheet. Reserves are not dependent to any extent on loading.

Accordingly, there is no inclusion of loading in assets.

In 1951, ‘‘gain from operations’’ was first reflected in

the Annual Statement. Since that time, net gain from

operations shown in the ‘‘Summary of Operations’’ likewise

has reflected only net deferred and uncollected premiums.

This means, that because the deduction for increases in

3% The Tax Court initially found this result consistent with its

concept of the purpose of the formula for determining taxable invest-

ment income, i.¢., that only assets producing investment income were

includible. Western Nat'l Life Ins. Co., supra, 50 T.C. at 285.

24

reserves involves only net premiums, there is included in

income, on account of policies with deferred and uncollected

premiums, only the net portions of such premiums. Since

loading on premiums does not enter into the computation

of reserves, loading on deferred and uncollected premiums

is not included in income.

The legislative history of the 1959 Act, as well as the

language of Section 818(a), leaves no doubt that Congress

was aware of the importance of Annual Statement practices

in life insurance company accounting, particularly as they

relate to problems generated by regulatory requirements.”

Accordingly, it seems reasonable to infer that Congress in-

tended that the Annual Statement treatment of deferred and

uncollected premiums should be followed for purposes of

determining assets and gain from operations under the 1959

Act. This is underscored by the lack of any discernible con-

trary legislative intent that would authorize a departure

from the practice and understanding of the industry with

respect to this important item. For this reason, it is the

position of the amicus that it is proper to include the net

amount of such premiums in assets and income, notwith-

standing generally applicable tax rules (which would ex-

clude them) or the government’s ill-conceived notion of

‘*symmetry’’.*?

B. Assets

That Congress intended this treatment reasonably fol-

lows, in amicus’ view, not only from the express reference

31 Nor is the Annual Statement new to this Court. In Maryland

Casualty Co. v. U.S., supra, it agreed that the “distinction between

the ‘reserves’ and general assets of a company is obvious and familiar

and runs through the statements of claimant and every other insurance

company.” (251 U.S. 342, 351 (1920)). ;

32 Following the NAIC treatment is, of course, consistent with the

general rule stated in section 446(a) that “taxable income shall be

computed under the method of accounting on the basis of which the

taxpayer regularly computes his income in keeping his books”.

25

to the NAIC Statement in section 818(a), but also from the

statutory definition of assets added to the Code by the 1959

Act. A careful reading of section 805(b)(4) shows that it

was drafted with reference to the items reflected on the

balance sheet in the Annual Statement prescribed by the

NAIC (and required by Treas. Reg. § 1.6012-2(c) to be filed

with the federal income tax return) except to the extent

that the section specifically provides otherwise.”

Section 805(b)(4) begins by providing that ‘‘the term

‘assets’ means all assets of the company (including non-

admitted assets).’’ ‘‘Nonadmitted assets’’ is a term that

appears outside the statute only in the Annual Statement

to describe certain assets of a life insurance company.

‘‘Nonadmitted assets’’ are eliminated in Exhibit 13 of the

Annual Statement from the total assets, and only admitted

assets are carried to the asset page of the balance sheet.

The parenthetical inclusion in the statute of ‘‘non-ad-

mitted assets’’ is a specific adjustment which Congress

obviously intended to make to the assets shown on the

balance sheet. Exclusion of property (other than money)

used in an insurance trade or business is another specific

adjustment. A third is the requirement that real property .

and stock shall be included at fair market value. ,

In the face of the reference to the balance sheet shown

in the Annual Statement and the specific adjustments to

certain of the items shown there, it is not reasonable to

conclude that Congress without specific language intended

gross deferred and uncollected premiums, that do not

33 Section 805(b) (4) provides:

“AsseTs—For purposes of this part, the term ‘assets’ means all

assets of the company (including nonadmitted assets), other than

real and personal property (excluding money) used by it in carrying

on an insurance trade or business. For purposes of this paragrap>

the amount attributable to—

(A) real property and stock shall be the fair market value

thereof, and

(B) any other asset shall be the adjusted basis of such asset for

purposes of determining gain on sale or other disposition.”

26

appear as assets on the balance sheet and are not assets

in the ordinary sense of the word, to be substituted for

net deferred and uncollected premiums that are shown as

assets in the balance sheet.

The government’s position that gross deferred and un-

collected premiums should be included in assets is, more-

over, contrary to its own regulations. They contemplate

the inclusion in assets of the net deferred and uncollected

premiums shown on the balance sheet. In Example (1) set

forth in Treas, Reg. § 1.805-5(a) (4) (ii) it is said:

**Included in the statement of assets of P, a life in-

surance company, are the following items: . . . pre-

miums deferred and uncollected.... Accordingly, since

..+ premiums deferred and uncollected . .. are not con-

sidered as being used by P in carrying on an insurance

trade or business, they are included within the term

‘assets’ and, therefore, shall be taken into account by

P in determining its current earnings rate.’’ [Em-

phasis added. ]

This could refer to no ‘‘statement of assets’’ of a life

insurance company other than the one prescribed by the

NAIC, In that statement the ‘‘deferred and uncollected

premiums’’ that are included have always been net de-

ferred and uncollected premiums and nothing else. If the

Treasury Department, in giving this example, had had

any idea that section 805(b)(4) required a life insurance

company to take into account any amount of deferred and

uncollected premiums other than the amount of di ferred

and uncollected premiums ‘‘included in the statement of

assets’’, it presumably would have said so.

C. Income

The general rule for the inclusion of items of income

by accrual basis taxpayers is set forth in Treas. Reg.

§ 1.451-1 as follows:

‘*Under an accrual method of accounting, income is

includible in gross income when all the events have

27

occurred which fix the right to receive such income and

the amount thereof can be determined with reasonable

accuracy.’’

If this rule is applicable, the result reached by the court

below in this case would, as in the case of assets, clearly

be correct. However, another general rule of tax accounting

is set forth in Treas. Reg. § 1.446-1(a)(2), which provides

as follows:

‘*A method of accounting which reflects the consistent

application of generally accepted accounting principles

in a particular trade or business in accordance with

accepted conditions or practices in that trade or busi-

ness will ordinarily be regarded as clearly reflecting

income, provided all items of gross income and expenses

are treated consistently from year to year.’’

This Court in Commissioner v. Idaho Power Company,

418 U.S. 1, 15 (1974), said:

‘‘where a taxpayer’s generally accepted method of ac-

counting is made compulsory by the regulatory agency

and that method clearly reflects income, it is almost

presumptively controlling of federal income tax con-

sequences, ’’

The amicus submits that the argument in favor of following

the Annual Statement treatment of deferred and uncol-

lected preiuiums in computing gain from operations is even

stronger than was the government’s argument in the Jdaho

Power case. Here, the method of accounting has not only

been prescribed ‘‘by the regulatory agency’’, but it has

also been prescribed by section 818 of the Code.

Moreover, just as there is evidence in the statutory

definition of assets that Congress intended the NAIC An-

nual Statement to be the starting point for computing

‘Cassets’’, so there is evidence that the Statement is the

starting point for computing ‘‘gain from operations’’.

‘‘Gain from operations’’ is a term of art which appears

outside the statute only in NAIC accounting and is clearly

derived from page 4 of the Annual Statement.”

The government has argued on numerous occasions that

gross deferred and uncollected premiums must be included

in income because section 809(c)(1) requires the inclusion

of gross premiums in income and no deduction is authorized

under any paragraph of section 809(d) for the increase

in loading. Section 809(c)(1), however, does not specifi-

cally mention deferred and uncollected premiums, and only

reference to the NAIC accounting treatment justifies the

accrual of anything at all on account of deferred and un-

collected premiums.” If the last sentence of section 818(a),

4 On this the Secretary of the Treasury wrote Congress ;

“We suggest that the — for measuring the net

earnings should be the figure for “Net gain from operations after

dividends to policyholders’ which appears in each company’s

annual statement to the State insurance departments and which

summarizes the operating results for the year. This figure is

based on carefully developed life insurance accounting practices

which have general acceptance in the industry.” Hearings be-

fore the Subcommittee on Internal Revenue Taxation of the

Committee on Ways and Means, 85th Cong., 2nd Sess., 4, Novem-

ber 17-20, 1958; Hearings before the Committee on Finance,

86th Cong., 1st Sess., 512, March 3-5, 17-19, 1959.

Comments of witnesses quoted by the government (P. Br. 50, n. 35)

on the significance of the Summary of ne gree were made in

the course of vehement opposition to a total income approach, The

final form of the statute, of course, reflects a number of substantial

and specific modifications of gain from operations shown on the

NAIC statement, designed to meet some of the objections of the

industry witnesses. Inclusion of loading in assets and premium

income was not among these modifications.

As the government recognizes (P. Br, 12-13 and n. 13),

elimination of adler from gain from operations is not a deduction,

but merely a means of limiting premium income ‘o the increase in

net deferred and uncollected premiums. The lower courts that con-

cluded that Congress could not have intended “to relegate the sub-

stantive matter of offsetting or excluding loading” to the NAIC have

missed the point. Congress did not delegate discretion to the NAIC.

It has incorporated the NAIC method of computation in the tax law

where the statute does not specifically provide otherwise.

which contains the reference to the NAIC Annual Statement,

was not intended to resolve issues such as those presented

here, it is hard to see why Congress included it in the

statute.

D. The Government’s Principal Position Produces Anomalous

and Inconsistent Results

Because premium taxes, commissions and other ex-

penses must be paid when premiums are received, the

government’s contention that gross deferred and uncol-

lected premiums must be included in assets and gain from

operations (without reduction for the increase in loading)

would produce the anomalous result that a company that

has not collected all of its premiums will have greater

ass¢is and income than one that has. This anomaly was

recognized by the Fifth, Seventh and Eighth Circuits in the

Great Commonwealth, Federal, and North American cases

and by the district court in Bankers Life® They attempted

to rectify it by permitting reductions in income or assets

for estimated expenses that would be incurred in the pro-

cess of collecting deferred and uncollected premiums, The

amicus would agree that if there were any basis for includ-

ing the gross amount of deferred and uncollected premiums

in assets and income, there would be equal justification for

reducing both assets and income by the amount of related

expenses. We see no necessity, however, for adopting this

approach when assets and income are already clearly re-

flected by the NAIC method.

To support its claim that the gross amount of deferred

and uncollected premiums should be included in assets

and income, the government reiterates the proposition that,

% See n. 5 and 6, supra. Reductions in assets were not claimed

by the taxpayers in the Great Commonwealth, Federal, and North

merican cases.

30

because a life insurance company ccmputes its reserves

by assuming collection of net valuation premiums annually

in advance, it must include in assets and accrue as premium

income the gross amount of deferred and uncollected

premiums.”’

In the first place, the government has never adequately

explained how an assumption that is made with respect

to net premiums in the appraisal of a contingent liability

can cause inclusion of a larger amount in assets or income.

A company’s liability to its policyholders under policies

in force on the statement date is transformed from future

unaccrued contingent liabilities into a fixed liability by

state law. This liability is taken into account in caleu-

lating reserves pursuant to section 801(b). Deductions for

increases in the state statutory reserve liability are allowed

because section 809(d)(2) says they shall be. These pro-

visions do not create assets or income. Increases in assets

or income on account of deferred and uncollected premiums

occur, if at all, because section 818(#) requires that tax

computations be made in a manner consistent with the

NAIC Annual Statement.

The government asserts more than twenty times in its

brief that the assumption of full payment of annual pre-

miums on policy anniversary dates must be applied con-

sistently to assets and income, as well as to reserves. In

view of these repeated references to the need for consist-

ency, it would seem reasonable to expect that the govern-

ment itself would see fit to be consistent. But the govern-

7 Thus, the government tells this Court that (P. Br. 29) deferred

and uncollected “premiums must be consistently deemed to have

been paid for all purposes”; that (P. Br. 38) “the selfsame assump-

tion” must be made in calculating “gain from operations” and “assets”

as is used in calculating reserves; that (P. Br. 49) “these premiums

be taken into account consistently for assets as well as liabilities”;

that (P. Br. 53) “[t}he integrity of a computation of net income

requires that uniform assumptions be made with res to both

income and deduction items”; and that (P. Br. 18) “[s]ymmetry

would require . . . that both sides of the equation by which taxable

income is determined be treated alike.” See also P. Br. 13, 14, 19,

20, 25, 26-27, 28, 36, 37, 43, 44-45, 48, 51, 52; Pet. 18-19,

1 ee 6 ee

ee es

31

ment apparently adheres to this principle only up to a point.

It fails to recognize that when a life insure» ce company

receives premium income, it necessarily will pay deductible

expenses associated with the collection of that income, in-

cluding agents’ commissions, premium taxes and clerical

expenses. If it were to be assumed that gross premiums have

been received in cash—-as the government insists it must

be—it would be only fair and reasonable to assume also

that, by year-end,** concomitant expenses of collection would —

have been paid in cash, In short, even under the govern-

ment’s theory, both assets and income would be reduced by

expenses associated with the collection of deferred and

uncollected premiums,

The government’s primary position rests entirely on the

argument that (P. Br. 29) ‘‘[rJespondent cannot take those

premiums into account in its ‘reserves’ when it suits its

purposes of reducing its tax base but turn its back on them

when their inclusion in ‘assets’ and ‘gross amount of

premiums’ would increase its tax liability.’’ It is enough

to point out in response that it will not do for the govern-

ment to take those premiums into account when it suits its

purpose of increasing respondent’s tax base but turn its

back on related expenses when their payment would de-

crease respondent’s tax liability.”

From the standpoint of consistency, if the gross amount

of deferred and uncollected premiums were to be included

% The current earnings rate is computed with reference to the

mean of the taxpayer's assets at the beginning and end of the taxable

year. Section 8(b) (2) (B). Hence, what is important for asset

ses is not what is received during the year but what remains

at the end of the year.

% In other contexts, the courts have held that the substance of

a transaction must be determined Bagg each step of the trans-

action in relation to the whole. , €.g., Commissioner v. Court

Holding Co., 324 U.S. 331, 334 (1945). Just as a taxpayer may

not divide a single transaction into separate parts in order to minimize

tax, so the government should not be permitted to ignore integral

s of a single transaction in order to maximize tax, Helvering v.

New Haven & Shore Line wY, Inc., 121 F.2d 985, 988 (2d Cir.

1941), cert. denied, 315 U.S. 803 (1942).

32

in assets and income, it would be reasonable to allow a re-

duction of both for related expenses. However, such a solu-

tion does not have the express statutory authority that the

NAIC method does. It is, moreover, unnecessarily complex

and offers no demonstrable advantage over the NAIC

method that we urge should be followed here. Based on

the provisions of the 1959 Act, we submit that Congress

decided to leave undisturbed the NAIC treatment of de-

ferred and uncollected premiums. Congress did so, we

believe, not because of some recently conceived government

theory of symmetry, but because it clearly reflects income

and is consistent with what had always been—and remains

today—the practice and understanding of the life insurance

industry.

Conclusion

For the foregoing reasons, the case should be remanded

to the Tax Court with directions to enter judgment for the

taxpayer on the basis of the NAIC Annual Statement

computations with respect to deferred and uncollected

premiums. Alternatively the judgment of the Court of

Appeals should be affirmed,

Respectfully submitted,

Wri B. Harman, Jp.

WiuiuM P. Gres

Kennetu L. Kimaie

1730 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

Francis A, Goopnur, Jr.

Dewey, BaLiantine, Busney,

Patmer & Woop

Matruew J. Zinn

Sreptor & Jounson

Of Counsel

February, 1977

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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