Blue J: Reserve Mechanical Microcaptive Insurance Arrangement Denied On Appeal

Benjamin Alarie (Osler Chair in Business Law, University of Toronto; CEO, Blue J Legal) & Bettina Xue Griffin (Senior Legal Research Associate, Blue J Legal), Reserve Mechanical: Microcaptive Insurance Arrangement Denied on Appeal, 175 Fed Tax Notes 2037 (June 27, 2022):

In this article, Alarie and Griffin explore the relative merits and prospective strengths of three of the grounds of appeal advanced by the taxpayer in Reserve Mechanical.

In our monthly Blue J Predicts column, we use tax research software to analyze pending or recently decided federal income tax cases. This month we analyze the judgment of the Tenth Circuit in Reserve Mechanical [T.C. Memo. 2018-86], which addressed whether a microcaptive insurance arrangement constituted insurance so that the premiums received were exempt from taxation under section 501(c)(15). 

Several months ago, we examined the Tax Court’s decision in Reserve Mechanical and predicted with 77 percent confidence that the taxpayer’s appeal would be dismissed and the Tax Court’s decision affirmed [Captive Insurance Appeal in Reserve Mechanical Will Likely Fail, 172 Tax Notes Fed. 1431 (Aug. 30, 2021)] That prediction was correct [Reserve Mechanical Corp. v. Commissioner, No. 18-9011 (10th Cir. May 13, 2022)].

In In its decision, the Tenth Circuit reiterated that the outcome in Reserve Mechanical should not be regarded as an indictment of all microcaptive insurance arrangements. Instead, the particular facts of the case indicated that the taxpayer was not engaged in the business of insurance. Still, we expect that the result in Reserve Mechanical will have a significant effect on the captive insurance industry. Notably, since the release of the decision, the IRS has issued a statement warning taxpayers to beware of microcaptive insurance arrangements. The IRS said, “Taxpayers should be alert to these schemes, normally peddled by promoters, as they will ultimately cost them.” It added that “these transactions will result in serious economic loss to taxpayers, including the loss of deductions, required income inclusion, and penalties” [IR-2022-118]. This is not new guidance: Since 2015 the IRS has included abusive microcaptive insurance arrangements on its “Dirty Dozen” list.

In this analysis, we explore the relative merits and prospective strengths of three of the grounds for appeal advanced by Reserve Mechanical Corp. (Reserve). As it happens, all three were rejected by the Tenth Circuit. First, Reserve argued that the Tax Court erred in classifying the insurance arrangement as one of “excess” insurance only. Second, it claimed that the Tax Court erred in assessing the bona fides of a reinsurer who is not the taxpayer. Third, Reserve argued that the Tax Court erred in determining that the premiums were unreasonably high. We explore the key factors underpinning each of these grounds and use the insurance arrangement predictive module in Blue J Tax to assess how significant the three specific factual characterizations were to the overall decision. We then perform a series of distinct analyses, varying the mix of assumptions to identify scenarios that could have in principle led to Reserve succeeding in its appeal.

Prior TaxProf Blog coverage:

• Blue J Predicts: An Unprofitable Pretax Venture Can Still Be A Partnership (June 29, 2021)
• Blue J Predicts With 68% Confidence That IRS's Economic Substance Challenge Will Fail In District Court Perrigo Case (Aug. 6, 2021)
• Blue J Predicts With 77% Confidence That Reserve’s § 501(c)(15) Appeal Will Be Dismissed By The Tenth Circuit (Sept. 10, 2021)
• Blue J Predicted With 95% Confidence That 7th Circuit Would Affirm Tax Court In Innocent Spouse Cases (Oct. 5, 2021)
• Blue J Predicts With 74% Confidence That 8th Circuit Will Find Customary/Usual Management Fees Are Deductible Under § 162 (Nov. 3, 2021)
• Blue J Predicts: Taxpayers Face Uphill Battle In Assignment Of Income Cases (Dec. 8, 2021)
• Blue J Predicts: Worker Classification In The Gig Economy (Dec. 20, 2021)
• Blue J: Using Machine Learning To Crack The Tax Code (Feb. 8, 2022)
• Blue J Predicts With 86%-95% Confidence That 10th Circuit Will Find That Taxpayer In Olsen Was Not Engaged In A Trade Or Business (Feb. 28, 2022)
• Blue J Predicts With 65%-94% Confidence Federal Circuit's Step Transaction Decision In GSS Holdings (Apr. 5, 2022)
• Blue J Predicts With 86% Confidence Debt-Equity Decision In Tribune Media (May 4, 2022)
• Blue J's AI Prediction Of Result Of Tax Court Appeal Faces First Test In Federal Circuit Court (June 14, 2022)