The U.S. Tax Court recently upheld a determination by the IRS that premium payments to certain microcaptives could not be deducted for tax purposes because the premium payments were not actually for “insurance.”

Dr. Sunil S. Patel, who operated an eye surgery center and two research centers, supplemented his businesses’ commercial insurance by purchasing policies from two purported microcaptive insurance companies. Dr. Patel and his wife, Dr. McAnally-Patel, claimed tax deductions for the premiums paid to those microcaptives. The IRS concluded that the premiums could not be deducted and assessed deficiencies and penalties against the Patels.

The Patels challenged the IRS’ determination, but the Tax Court upheld it. The court noted that the Tax Code “does not prohibit deductions for microcaptive insurance premiums,” but “the deductibility of insurance premiums depends on whether the premiums were truly payments for insurance.” To analyze that question, the court examined “four criteria,” whether:

(1) the insurer distributes the risk among its policy holders; (2) the arrangement is insurance in the commonly accepted sense; (3) the arrangement shifts the risk of loss to the insurer; and (4) the arrangement involves insurable risks.

The court found that the microcaptives “fail[ed] to demonstrate risk distribution.” It found a “circular flow of funds,” “no evidence of any arm’s-length negotiations in determining the premiums paid,” and no evidence that the premium “was actuarially determined.”

It also concluded that, “aside from [some] organizational formalities,” the microcaptives “were not operated as insurance companies” in the commonly accepted sense. They “had no employees of their own that performed services” and a separate entity “orchestrated [their] activities so that they appeared to be engaged in the business of issuing insurance contracts.”

The court therefore declined even to consider “whether [the microcaptives’] transactions involved insurance risk or risk shifting.” The Tax Court sustained the IRS’ conclusion that the Patels could not deduct the premiums paid to the microcaptives.

Patel v. Commissioner of Internal Revenue, Nos. 24344-17, 11352-18, 25268-18 (U.S.T.C. Mar. 26, 2024).