Viewpoint: Is IRS Abusing its Authority in Micro-Captives Investigations?

Editor’s note: Captive insurance programs have blossomed in a number of Southern states in recent years, including Tennessee and North Carolina. But new questions have been raised about whether some micro-captives are used as tax shelters, and about the IRS asserting its control over part of the insurance business, after some recent court decisions. Van Carlson is CEO of SRA 831(b) Admin, a risk management adviser for small businesses.

A pair of federal Tax Court decisions at the start of 2024 are painting a concerning picture that the IRS is abusing its authority and attempting to become a quasi-federal governing agency over the insurance industry. The IRS secured a pair of victories against a form of self-insurance for small businesses known as micro-captive insurance. The cases—Keating v. Commissioner and Swift v. Commissioner—used biased fact patterns to support the unfounded principle that all micro-captives are tax shelters or tax schemes.

Neither decision provided guidance nor clarification of how honest micro-captive owners should structure their captive arrangements to remain compliant with IRS regulations. Without such guidance, small to mid-size business owners are subject to open scrutiny at the whim of a federal agency attempting to seize regulatory control of an industry already regulated at the state level.

These victories are contrary to why the 831(b) tax code was written. Similar to what we are seeing today, this code was originally written during a time in which Americans were saddled by a hardened insurance market. Originally passed in the 1980s, Section 831(b) was designed to empower small to mid-sized insurance companies by excluding part of their income from taxation, allowing them to better compete with larger insurance providers and provide a vehicle of self-insurance against risks that may not be covered by insurance companies.

The 2015 Protecting Americans from Tax Hikes Act states that companies are eligible for this type of risk mitigation under Section 831(b) of the tax code when the owner of an insured business holds an interest in the insurer no greater than their interest in the business.

In January, IRS Commissioner Danny Werfel disclosed that nearly 1,100 micro-captives are under IRS investigation. Business owners and plan administrators who are caught up in these audits are then sifted through, with the IRS seeking only cases in which wins are virtually guaranteed. Instead of providing a conclusive determination for other taxpayers who can legitimately benefit from using an 831(b), the IRS uses its ambiguous scrutiny as a deterrent from using these plans, which in some cases can provide a lifeline to small to mid-size businesses.

The IRS has made clear its dislike of micro-captives and is working to eliminate them through its overreach of power and intimidation. This gross misuse by a bureaucratic agency directly contradicts congressional support for the existence of micro-captive insurance. To put it bluntly, the IRS is undermining the laws passed by our nation’s elected representatives and wants to put insurance regulation in the hands of the federal government.

In December, multiple members of the U.S. House Committee on Ways and Means Committee wrote to Werfel to express their disdain about the IRS’s treatment of micro-captives. The members of Congress called for the IRS to work with the insurance industry to develop a mutually agreeable path forward for small to mid-size businesses to utilize this section of the tax code without fear of retribution from the IRS.

The decision in Keating is concerning. In fact, the judge alluded to how the courts believed insurance companies should be regulated.

The McCarran-Ferguson Act of 1945 provides the framework for how the insurance industry is regulated in the U.S.— the federal government can define insurance for federal tax purposes but is prohibited from overreaching into the regulation of insurance, which is instead left to the individual states.

Without action from Congress, or the IRS backing off its assault on our industry, the overreach of power toward micro-captive owners will likely continue, along with its efforts to eventually obtain federal oversight over other parts of the insurance business. The question of overreach by the IRS isn’t a question of if it will stop, but rather a question of when and how. The ripple effects will have far greater implications on the insurance industry as a whole than anything else that may come of this IRS case.

Van Carlson is founder and CEO of SRA 831(b) Admin. He has more than 25 years of experience in the risk management industry and started his career with Farmers Insurance Group.