Business-Owned Life Insurance: More Data Could Be Useful in Making Tax Policy Decisions
Released: 2004-05-13T00:00:00

Letter

Background

A business is generally allowed to insure an employee’s life when the business has an insurable interest in the employee. Insurable interest is defined by state law and, once established at the time of purchase, continues for the life of the insured. Thus, a business generally may maintain life insurance on employees even after their employment has ended. Business-owned life insurance can refer to corporate-owned life insurance (held by all types of corporations or only nonbank corporations), bank-owned life insurance, trust-owned life insurance (held by business- established trusts), or all three.

Business-owned life insurance is permanent life insurance, which has an insurance component and a savings component. The premium for a newly issued permanent life insurance policy pays for the insurance component, but the premium initially exceeds the cost of providing life insurance protection for the insured person. The excess amount is added to the policy’s cash value, which earns interest or other investment income— called inside buildup. The inside buildup is accrued income because the policyholder does not receive cash payment as the policy earns income.

The Internal Revenue Code allows for the deferral of income tax on the accumulated inside buildup on life insurance policies and some other investments that appreciate in value, such as stocks, some bonds, and real estate. However, the Internal Revenue Code provides for income tax-free death benefit payments on life insurance, so that unlike other investments, the accrued income is not taxed if the policy is held until the insured party’s death. However, if a policy owner surrenders a policy before the death of the insured, the owner may incur a tax liability to the extent that the policy’s cash surrender value exceeds its cost base and may incur a tax penalty. The cost base is equal to the total premiums paid less dividends and withdrawals received from the policy. Also, if a business owns life insurance policies, the annual earnings and death benefit proceeds are among the factors that could make the business subject to the alternative minimum tax.

To qualify as life insurance for tax purposes, a contract must qualify as a life insurance contract under applicable state law and meet one of two tests defined in Internal Revenue Code section 7702 to ensure that the contract is not overly investment oriented. In addition, while policy owners may access the cash value of their policies by borrowing against them, policy owners’ ability to deduct the interest on such loans in connection with policies covering employees, officers, and individuals financially interested in the business was limited to loans up to $50,000 per policy by the Tax Reform Act of 1986. The Health Insurance Portability and Accountability Act of 1996 eliminated the interest deductibility for these individuals, except for policies on a limited number of key persons. Before the limitations adopted in 1986 and 1996, some businesses purchased “leveraged business-owned life insurance,” in which they leveraged their life insurance ownership by borrowing against the policies to pay a substantial portion of the insurance premiums and in doing so incurred a tax-deductible interest expense while realizing tax-free investment returns.

State and federal legislatures considered numerous proposals in 2003 and early 2004 that would change the conditions under which businesses may purchase business-owned life insurance, the consent requirements for such purchases, or the tax treatment of the insurance. For example, California considered and passed a law to prohibit businesses from purchasing life insurance policies on employees that are not exempt from the state’s overtime compensation requirements. Texas considered, but did not adopt, a proposal to prohibit business-owned life insurance except in certain cases, such as when an employee is eligible to participate in an employee benefit plan and consents to being insured. Also, several members of Congress introduced legislation in 2003 that would have required employee consent or limited the tax-favored treatment of business-owned life insurance on policies taken out on employees that were not key persons, although none had been enacted by the end of the first session of the 108th Congress. The legislation would have affected the tax-favored treatment of such policies in various ways, such as taxing policy earnings and income from death benefits except on key person policies, taxing the death benefit payments on policies where the employee died more than 1 year after leaving employment, and limiting allowed deductions for a business’s general interest expenses based on its business-owned life insurance holdings. In addition, pension legislation that the Senate Finance Committee passed in February 2004 included provisions that would generally limit the tax-favored treatment of business-owned life insurance, except for policies on those individuals the legislation defined as key persons; require employees’ written consent for a business to hold insurance on their lives; and require businesses to report policy information to IRS.

Available Information on the Prevalence and Use of Business- Owned Life Insurance Is Limited

In pursuing their regulatory missions, federal and state regulators have collected limited information on the prevalence and use of business-owned life insurance. Federal bank regulators have collected more data than other regulators on the prevalence of business-owned life insurance; however, the data are limited because the regulators did not require all banks and thrifts to report it. While SEC has not specifically required reporting on business-owned life insurance, we found that some life insurance companies had reported information on policy sales in their Forms 10-K and in a life insurance industry survey. Federal revenue estimators have estimated the annual forgone tax revenue attributable to earnings on the insurance, although IRS has not required businesses to report on the prevalence of business-owned life insurance. Information at the state level is limited, however, because state insurance regulators have not collected information on the prevalence of the policies through their financial reporting forms. Some state laws permit businesses to purchase business- owned life insurance for business continuation purposes or in connection with employee benefit plans, but businesses generally are not obligated to use the death benefit proceeds for a particular purpose. Although federal and state regulators generally have not collected data on the uses of business-owned life insurance, we found some examples of how businesses said they intended to use such policies.

Federal Bank Regulators Have Collected the Most Data on the Prevalence of the Policies, but Not All Banks and Thrifts Provided Information

In monitoring the safety and soundness of individual institutions, federal bank regulators have collected more financial information than other federal and state regulators on business-owned life insurance policies. For supervisory purposes, federal bank regulators have required that regulated institutions disclose in quarterly financial reports earnings from and the cash surrender value of business-owned life insurance if the amounts exceed a certain threshold. As discussed below, the regulators have used the amounts reported to determine the need for further review of institutions’ risk exposure. Business-owned life insurance is an asset reported at cash surrender value—that is, the sum of accumulated premium payments and inside buildup, less accumulated insurance costs, fees, and charges that the policyholder would be required to pay for surrendering the policy. It does not take into account income tax liabilities that might result from the surrender. The Federal Reserve, FDIC, and OCC require the institutions they regulate to disclose the cash surrender value of policies worth more than $25,000 in aggregate and exceeding 25 percent of “other assets,” which include such items as repossessed personal property and prepaid expenses. Through the end of 2003, OTS required the thrifts it supervises to report the cash surrender value of policies if the value was one of the three largest components of “other assets;” in 2004, OTS began requiring all the thrifts it supervises to report the cash surrender value of their policies.

We found that about one-third of banks and thrifts—3,209 of 9,439, including many of the largest institutions—had disclosed the cash surrender value of their business-owned life insurance holdings as of December 31, 2002. The remaining two-thirds either did not hold business-owned life insurance or held such insurance but did not meet the reporting threshold. The total cash surrender value of reporting institutions’ policies was $56.3 billion. A total of 259 banks and thrifts with assets of $1 billion or more owned 88 percent ($49.4 billion) of the total reported cash surrender value (fig. 1). These 259 institutions included 23 banks and thrifts that were among the top 50 largest institutions and that owned 66 percent ($36.9 billion) of the total reported cash surrender value. Because not all institutions that owned policies met the reporting threshold, these data indicate the minimum number of institutions that held business-owned life insurance and the aggregate cash surrender value of their policies; with this data we could not estimate the prevalence of business-owned life insurance or its value among institutions that did not report on their holdings.

The federal bank regulators’ thresholds for reporting business-owned life insurance earnings differed from the ones for reporting cash surrender value, so not all of the same institutions reported earnings as reported cash surrender value. We found that nearly one-fifth of banks and thrifts reported their 2002 annual earnings on the cash surrender value of business-owned life insurance. As of December 31, 2002, some 1,563 institutions reported $2.2 billion in such earnings.

SEC Has Not Specifically Required Reporting on the Policies, but Some Insurers Have Reported Sales

SEC officials told us that the agency has not specifically required businesses to report on their purchases or sales of business-owned life insurance because such data generally are not material to public companies. According to SEC officials, agency regulations do not specifically require public companies to disclose the value of their business-owned life insurance in the financial statements submitted to the agency. Similarly, SEC does not specifically require public companies that sell business-owned life insurance to report on those sales. Rather, in administering federal securities laws, SEC requires public companies to prepare their financial statements in accordance with generally accepted accounting principles, which would require them to disclose information about business-owned life insurance policies that is material—that is, according to SEC, information that an investor would consider important in deciding whether to buy or sell a security or in making a voting decision related to a security that the investor owns. According to SEC officials, however, following generally accepted accounting principles would rarely require holdings of and earnings from business-owned life insurance to be shown as separate line items because they are unlikely to be financially material to a company.

Although SEC does not explicitly require insurance companies to report information on the business-owned life insurance policies they have sold, some insurance companies have disclosed such information on their Forms 10-K. By reporting their revenue from business-owned life insurance premiums, life insurance companies show how significant sales of such policies are compared with total sales; they also provide an indication of the level of demand for business-owned life insurance. We reviewed the Forms 10-K of 32 life insurance companies that were among the 50 largest such companies ranked by assets. We found that nine insurers reported receiving, in aggregate, over $3 billion in total business-owned life insurance premiums in 2002 from new and, in some cases, previous sales. The amount of business-owned life insurance premiums received in 2002 ranged from 11 to 53 percent of each company’s 2002 total life insurance premiums for the four companies that reported this information. In addition, three insurance companies reported the accumulated cash surrender value of business-owned life insurance policies they had previously sold as totaling about $28 billion as of December 31, 2002.

Separate from reporting to SEC, some insurance companies have also reported business-owned life insurance sales in response to industry surveys. CAST Management Consultants, Inc., conducts research on business-owned life insurance and has reported on premiums paid on new policies. A life insurance industry association and life insurance companies cited CAST’s surveys as the only currently available information on aggregate business-owned life insurance premiums. CAST estimated that in 2001, premiums from new sales of business-owned life insurance totaled $9.3 billion: $5.2 billion in bank-owned life insurance premiums and $4.1 billion in corporate-owned (excluding bank-owned) life insurance premiums. CAST also estimated that in 2002, premiums from new sales of corporate-owned (excluding bank-owned) life insurance totaled $3.2 billion. CAST did not estimate bank-owned life insurance premiums for 2002. CAST’s estimates were based on responses to a 2003 survey concerning corporate-owned life insurance premiums and a 2002 survey concerning bank-owned life insurance, increased by CAST adjustments. Each survey received responses from 20 life insurance companies, although not all of the same companies responded to both surveys. In addition, a representative of the A.M. Best insurer rating company said that the company collects information on business-owned life insurance, but does not currently report the data. A.M. Best reported aggregate premiums from business-owned life insurance for 1998 (the last year for which it reported data) as more than $10 billion for 20 large insurers. Because these surveys did not use statistical samples of insurers, the resulting estimates made from the limited number of respondents do not represent statistically valid estimates of all business-owned life insurance sales and, therefore, our interpretation of the resulting data is limited. The statistics from these surveys are meant to indicate only that some large insurance companies have had active sales in recent years and that the premiums in the aggregate are significant.

IRS Has Not Collected Information on the Policies, but Federal Revenue Estimators Have Estimated the Forgone Tax Revenues

IRS officials told us that the agency has not generally required businesses to report on the value of, earnings on, or death benefit income from business-owned life insurance policies. The officials noted that these amounts are not typically included in taxable income and that, therefore, the information is generally not needed. Businesses that are subject to the alternative minimum tax include income from death benefits and earnings from insurance when calculating the tax, but they are not required to list the insurance-related values on the alternative minimum tax form. Also, businesses that are required to complete Schedule M-1, Reconciliation of Income (Loss) per Books with Income per Return, as part of their Form 1120, U.S. Corporation Income Tax Return, would report earnings on business-owned life insurance as part of the income recorded on their books but not on the tax return. However, according to IRS officials, these earnings might not be identified as earnings from business-owned life insurance, as they are often lumped together with other adjustments.

Federal revenue estimators have estimated that the current tax treatment of earnings on the cash value of business-owned life insurance results in over a billion dollars in forgone tax revenues annually. In its “Estimates of Federal Tax Expenditures for Fiscal Years 2004-2008,” prepared for congressional use in analyzing the federal budget, the Joint Committee on Taxation estimated that the forgone tax revenues resulting from the tax treatment of investment income on life insurance for corporations would total $7.3 billion for 2004 through 2008. Similarly, OMB, in its fiscal year 2005 budget “Analytical Perspectives,” reported Treasury’s estimate of forgone tax revenues resulting from the tax treatment of life insurance as $13 billion for 2004 through 2008. These estimates assumed policies would be held until the insureds’ deaths, making the current tax-deferred earnings tax-free. The estimates did not reflect the forgone tax revenues on the additional income from death benefit payments in excess of the premiums paid and the accumulated tax-deferred earnings. Officials involved in preparing these estimates said that, lacking comprehensive data on the earnings on business-owned life insurance, they developed their estimates using available data on life insurance companies’ investment income and assumptions about business-owned life insurance’s share of the total life insurance market.

State Insurance Regulators Have Not Collected Data on the Prevalence of the Policies

State insurance regulators, concerned with state requirements, rates, and solvency issues, have collected extensive financial information from insurers through NAIC’s standardized financial reporting forms, but not at the level of detail that would describe the prevalence of business-owned life insurance policies. State insurance regulators use insurers’ financial statements to monitor individual companies’ solvency. According to the four state regulators we contacted and NAIC, information on business- owned life insurance is not required or necessary for regulating solvency. Insurers’ financial statements list the number of policies and premiums collected during the reporting period, but the amounts are broken out only by individual and group policies, not by whether businesses or individuals owned the policies.

Businesses May Purchase Business-Owned Life Insurance for Various Purposes but Generally Are Not Required to Use Policy Proceeds for Those Purposes

Under state laws that define insurable interest, businesses may purchase life insurance for various purposes, including for business continuation— that is, to ensure that a business can continue to operate when a key employee or owner dies. Historically, insurable interest reflected a family or business’s dependency on an individual and the risk of financial loss in the event of that individual’s death. Accordingly, a traditional use of business-owned life insurance is as key-person insurance, which is intended to ensure recovery of losses—such as a loss of earnings or added hiring costs—in the event of the death of key employees. In addition, businesses may use business-owned life insurance as part of “buy-sell arrangements” that allow the surviving owners to use the death benefits to purchase a deceased owner’s share of the business from the estate or heirs.

In the 1980s and 1990s, several states expanded their definitions of employers’ insurable interest to permit purchases of broad-based business- owned life insurance in connection with employee compensation and benefit programs. Several of these states limit the aggregate amount of insurance coverage on nonmanagement employees to an amount commensurate with the business’s employee benefit plan liabilities or require that insured employees be eligible to receive employee benefits.

Information we obtained from officials of large banks and from our analysis of a sample of public companies’ Forms 10-K indicates that firms have related their purchases of broad-based business-owned life insurance to various types of employee benefit costs, including health care for current or retired employees, life and disability insurance for current or retired employees, workers’ compensation, qualified retirement plans— including defined benefit and defined contribution plans, such as 401(k) plans—and nonqualified retirement plans, such as supplemental executive retirement plans. Consistent with this expanded use of business-owned life insurance, NAIC has observed that many products sold by life insurers have evolved to become primarily investment products. Also, consulting firms that specialize in business-owned life insurance transactions, life insurance brokers, and industry experts have emphasized the potential use of broad-based business-owned life insurance as a profitable long-term investment strategy to finance employee benefit costs and not merely as protection against financial losses that a business would incur in the event of the death of key persons.

According to bank regulators and life insurance industry representatives, when purchasing life insurance, businesses generally relate the amount of coverage they purchase on a group of employees to the value of their projected employee benefit costs. For example, a business might insure the lives of a group of employees such that the present value of expected cash flows to be received from the policies over time, net of premiums, would cover some portion or all of the present value of the business’s employee benefit expenses over the same period of time. When calculating the expected future cash flows from the insurance, businesses would not generally assume policies will be surrendered if employees leave or retire because surrendering the policies would result in taxation and possibly surrender charges; rather, businesses would assume that they will hold the policies until the insured employees die.

Because businesses may hold business-owned life insurance policies for many years before receiving death benefit payments, businesses do not necessarily receive the cash flows from business-owned life insurance at the same time that they must pay their employee benefit expenses. According to insurance industry representatives, when businesses use the insurance in connection with health care benefits for retired employees, the death benefit proceeds are well timed for reimbursing the benefit costs, because retirees tend to incur their largest medical expenses in the last months of their lives. However, we found examples of businesses that said they used the insurance in connection with current employee benefit costs, such as active employee health care. In such cases, the timing of the death benefit payments would not necessarily correspond to the timing of employee benefit expenses because businesses must pay those expenses years before receiving death benefits on most insured employees.

Regardless of a business’s reported purpose for purchasing business- owned life insurance, the business generally does not have an obligation to restrict its use of the life insurance proceeds to these purposes. Although the expected income from broad-based business-owned life insurance policies over time might be commensurate with a business’s expected employee benefit costs at the time of the insurance purchase, businesses are generally not required to use the proceeds from the policies to pay for employee benefits. Unless the policies were placed in a trust that restricted their use to employee benefit payments, the life insurance policies would be part of the unrestricted general assets of the business and, as such, could be used to pay any obligations of the business.

Limited Data Show That Some Businesses Use Life Insurance in a Variety of Ways

Of the federal and state regulators we contacted, only OTS has required the institutions it regulates to provide information that distinguishes among the uses of business-owned life insurance. Through the end of 2003, OTS required the thrifts it supervises to report the value of their key-person policies and the value of business-owned life insurance policies purchased for other purposes as separate items, if the amounts met the reporting threshold. Of the $3.3 billion cash surrender value that 249 OTS-supervised thrifts reported owning as of December 31, 2002, about $400 million was for key-person insurance and $2.9 billion was for other business-owned life insurance. However, these amounts may not be representative of the proportions of key-person and other business-owned life insurance that these thrifts held. OTS’s disclosure threshold applied separately to each category, so that OTS-supervised thrifts could have been required to report on only one type of policy rather than the total value of their business- owned life insurance holdings. Beginning in 2004, OTS eliminated its reporting threshold so that all the thrifts it supervises are required to report the value of both their key-person and other business-owned life insurance policies. The new requirement will allow OTS to determine the cash surrender value of all key-person and other business-owned life insurance held by the institutions it supervises.

Although SEC did not specifically require them to do so, we found that some businesses included information on how they intended to use business-owned life insurance in the Forms 10-K they filed with SEC. We reviewed the Forms 10-K of 100 randomly selected Fortune 1000 public companies. Of these, 11 provided information on the intended use of their business-owned life insurance policies. All 11 businesses reported using these policies to provide deferred compensation or benefits for executives; 1 also reported using them to provide postretirement health care. For example, 1 of the 11 businesses reported having a supplemental executive retirement plan financed by life insurance that had a cash surrender value of about $66 million as of December 31, 2002. The amount of insurance coverage was designed to cover the full cost of the plan, which at that time was estimated to have a present value of about $69 million. Another 1 of the 11 businesses reported that it had purchased policies with a cash surrender value of about $161 million as of February 28, 2003, with the intention of using the policies’ proceeds as a future financing source for postretirement medical benefits, deferred compensation, and supplemental retirement plan obligations aggregating $241.3 million. However, the business noted that the life insurance assets did not represent a committed financing source and that the business could redesignate them for another purpose at any time.

Some large businesses have also provided survey responses suggesting that some business-owned life insurance is used to finance executive benefit plans. Clark Consulting has conducted annual executive benefits surveys of Fortune 1000 corporations and reported on respondents’ use of business- owned life insurance to informally fund nonqualified deferred compensation and supplemental executive retirement plans. Businesses informally fund such plans by planning to have assets available to pay for them, although the assets would not generally be protected in bankruptcy. From its 2003 survey, which had a 22 percent response rate, Clark Consulting reported that 93 percent of the respondents offered nonqualified deferred compensation plans, 69 percent of those with nonqualified deferred compensation plans informally funded them, and 55 percent of those that informally funded the plans used business-owned life insurance to do so. Similarly, 71 percent of the respondents offered supplemental executive retirement plans, 53 percent of those respondents informally funded the plans, and 61 percent of those that informally funded the plans used business-owned life insurance to do so. Because the survey did not use a statistical sample of businesses and may be subject to other sources of error such as nonresponse bias, respondents’ answers cannot be projected to all Fortune 1000 companies or to all businesses in the United States. The statistics reported here are meant to indicate only that some large businesses are using life insurance in a variety of ways.

Regulators Have Applied Their Guidelines or Requirements and Have Generally Not Had Significant Regulatory Concerns about Business-Owned Life Insurance

Banks and thrifts are required to follow federal regulatory guidelines in purchasing business-owned life insurance. Officials from federal bank regulators that had examined some institutions’ purchases told us that these purchases had not raised major supervisory concerns. SEC’s general disclosure requirements apply to business-owned life insurance; the agency has not had specific investor-protection concerns about such policies. The Internal Revenue Code includes statutory requirements, and IRS has issued regulatory requirements related to the tax treatment of the insurance. IRS officials told us that the agency was studying potential concerns. States had differing laws concerning insurable interest and consent requirements for business-owned life insurance. The insurance regulators of the four states we contacted described limited oversight of business-owned life insurance sales, and the four state regulators and NAIC generally did not have concerns about the policies.

Federal Bank Regulators Examined Some Institutions’ Purchases of Business-Owned Life Insurance and Have Not Had Major Supervisory Concerns

Federal bank regulators have issued guidelines for purchases of business- owned life insurance that they have used in overseeing banks and thrifts’ holdings of such policies. The regulators’ oversight, consistent with their missions, includes assessing the safety and soundness of supervised institutions, and regulatory officials said that the agencies generally have not had major supervisory concerns about banks and thrifts’ business- owned life insurance holdings. They said that while business-owned life insurance carries some risk, policies that were purchased in accordance with their guidelines are generally not a major threat to an institution’s safety and soundness. The regulators cited other types of activities—such as commercial real estate, specialized, and subprime lending—as generally raising more supervisory concerns than business-owned life insurance because of increased risk or volatility.

OCC and OTS guidelines describe the permissible uses of business-owned life insurance. According to Federal Reserve and FDIC officials, their agencies generally follow OCC’s guidelines. The OCC and OTS guidelines state that banks and thrifts may purchase life insurance only for reasons incidental to banking, including insuring key persons and borrowers and purchasing insurance in connection with employee compensation and benefit plans. The guidelines require that, before purchasing policies, a bank or thrift’s management conduct a prepurchase analysis that, among other things, determines the need for insurance and ensures that the amount of insurance purchased is not excessive in relation to the estimated obligation or risk. For example, the guidelines state that when purchasing life insurance on a group of employees, the institution may compare the aggregate obligation to the group (such as employee benefit costs) with the aggregate amount of insurance purchased.

The guidelines require that the prepurchase analysis determine the amount of insurance needed using “reasonable” financial and actuarial assumptions, such as those for the time period or the discount rate used to calculate the present value of expected employee benefit costs. However, the guidelines do not specify parameters for the assumptions, such as the discount rate or time period, to be used in the prepurchase analysis— parameters that affect the amount of insurance that can be purchased. OCC officials stated that specifying such parameters would have little or no effect because banks tend to purchase less insurance than they could justify based upon their expected employee benefit expenses, regardless of the assumptions used in prepurchase analyses. In addition to the requirements for determining the need for insurance, the guidelines state that banks and thrifts using business-owned life insurance for executive compensation should ensure that total compensation is not excessive— that is, unreasonable or disproportionate to the services performed, taking into account factors such as the financial condition of the institution and compensation practices at comparable institutions.

The OCC and OTS guidelines also require the bank or thrift’s prepurchase analysis to consider the risks associated with business-owned life insurance and to maintain effective senior management and board oversight of the purchases. In addition, the guidelines state that a bank or thrift should consider the size of its purchase of business-owned life insurance relative to the institution’s capital and diversify risks associated with the policies. The OCC and OTS guidelines require banks and thrifts to document their decisions and continue to monitor, on an ongoing basis, the financial condition of the insurance companies that carry their policies. For example, the guidelines state that institutions should review an insurance company’s ratings and conduct further independent financial analysis, with the depth and frequency of such analysis determined by the relative size and complexity of the transaction.

OCC officials explained that the agency’s guidelines do not require institutions to continue to compare their projected employee benefit costs with the projected cash flows from the insurance after purchasing the policies. However, purchases of additional insurance would require a prepurchase analysis, so that institutions would be required to update their comparisons at such times. Officials at three large banks said that their banks had not compared the projected employee benefit costs and projected insurance cash flows after purchasing the insurance. Officials at a fourth large bank said their bank had updated the comparison annually in conjunction with additional insurance purchases in recent years.

Federal bank regulators told us that their risk-based examination programs are designed to target aspects of banks and thrifts’ purchases of business- owned life insurance that would raise supervisory concerns about institutions’ safety and soundness. They specifically identified the credit and liquidity risks associated with business-owned life insurance as concerns that could warrant attention during an examination. Credit risk arises from the potential failure of an insurance carrier that might then be unable to pay death benefits or return the cash surrender value of policies upon request. OCC and Federal Reserve officials said they were less concerned about credit risk when it was diversified—for example, when institutions held policies with several highly rated insurers. Liquidity risk arises from the long-term nature of life insurance and the cost to the bank or thrift of surrendering policies.

OCC officials emphasized that other risks associated with business-owned life insurance could also raise supervisory concerns, particularly among institutions with relatively large holdings. Specifically, OCC officials said that the potential risk to institutions’ reputations could be of concern as a result of negative perceptions of their holding the policies. For example, the officials noted that under California’s new law, businesses must disclose to insured employees the existence and face amount of insurance policies purchased on their lives by the end of March 2004, which could negatively affect the businesses’ reputations if employees were unaware that the policies existed. The officials also cited potential concerns about transaction risk, which arises from an institution not fully understanding or properly implementing a transaction. For example, if an institution did not comply with applicable insurable interest laws in purchasing a policy, it may not be able to collect the death benefits on the policy. Finally, OCC and Federal Reserve officials cited potential concerns about tax risk—the risk that Congress could change the tax treatment of business-owned life insurance. If any such changes were applied to previously purchased policies, banks might not receive the returns on the policies that they had expected, which could, in turn, raise supervisory concerns with respect to certain institutions.

The federal bank regulators explained that they determined whether to include business-owned life insurance in the scope of an examination based not only on their preliminary assessment of the level of risk associated with business-owned life insurance but also on the size of an institution’s holdings relative to capital. The regulators’ examination procedures, in general, direct examiners to identify concentrations of credit—instances where the institution’s exposure to a creditor or, in some cases, a group of creditors (such as an insurance company or companies from which the institution has purchased policies) exceeds 25 percent of the regulator’s measure of the institution’s capital. All of the regulators said that, if the cash surrender value of a bank or thrift’s policies exceeded this threshold, they would consider whether further supervisory review of these holdings was warranted. Such a review would help to ensure that the institution was not unduly exposed to credit or liquidity risk and that it was complying with the guidelines on business-owned life insurance. OCC officials also said that the difficulty of quantifying the reputation, transaction, and tax risks associated with the policies underscored the importance of examiners considering whether institutions had overly concentrated holdings of business-owned life insurance.

As of December 31, 2002, 467 banks and thrifts reported business-owned life insurance holdings in excess of 25 percent of their tier 1 capital. We asked the bank regulators to explain their oversight of 58 institutions with the largest concentrations, all in excess of 40 percent of tier 1 capital. Bank regulatory officials said that their agencies were monitoring these institutions’ levels of holdings through reviews of quarterly financial reports and had conducted reviews of the holdings as part of their examinations at many of the institutions. Officials from each regulator told us their agencies had concluded that major supervisory concerns did not exist about the amount of insurance the institutions owned, although the Federal Reserve and OCC had cited the need for some institutions to improve their oversight or internal controls related to the policies.

Specifically, Federal Reserve officials said that the agency had reviewed business-owned life insurance holdings as part of its examinations of the nine Federal Reserve-supervised banks that we identified (table 1). Federal Reserve officials said that the agency’s examinations did not raise concerns about the nine banks’ total holdings of business-owned life insurance. However, the officials said that the Federal Reserve had made recommendations to four of the banks, including that they conduct more diligent prepurchase analyses, communicate more information to board members, enhance internal controls, and conduct quarterly reviews of insurance carriers’ financial condition. Based on a review of examination summary reports, FDIC officials said that FDIC had criticized the level of business-owned life insurance at only 1 of the 32 FDIC-supervised institutions we identified; the officials said that the summaries might only note the results of a review of business-owned life insurance if examiners identified problems, so it was unclear how many of the other institutions’ holdings had been reviewed. OCC officials told us that OCC did not have safety and soundness concerns about the amount of holdings at any of the 15 OCC-supervised banks we identified. The officials distinguished between community banks (4 of the 15 we identified) and large banks (11 of the 15 we identified), noting that OCC’s primary supervisory concern has been with the effectiveness of community banks’ ongoing oversight of their business-owned life insurance. They said that OCC had reviewed the holdings of at least three of the community banks we identified and had cited the need for one of these banks to improve ongoing risk management of the policies. In contrast, the OCC officials said that large banks generally have sophisticated risk management systems and manage their insurance investments well. Although the officials did not report how many of the large banks’ business-owned life insurance holdings had been reviewed during examinations, they said that these banks sometimes approach OCC examiners before making new insurance purchases and that, in this respect, OCC monitors some banks’ business-owned life insurance programs on an ongoing basis. OTS officials told us that OTS had examined both of the thrifts we identified and did not have supervisory concerns about their current holdings or policy oversight.

SEC Has Applied Its Disclosure Requirements and Has Not Had Investor- Protection Concerns about Business-Owned Life Insurance

SEC officials said that the agency’s regulations for public companies do not specifically address business-owned life insurance; rather, SEC has relied on its broadly applicable disclosure requirements to identify any investor protection concerns. As discussed, SEC, whose mission is to protect investors and maintain the integrity of the securities markets, requires public companies to disclose material financial and other information so that investors can make informed decisions. SEC officials said that business-owned life insurance is unlikely to be a material item. However, they added that the agency would have an oversight concern if it became aware of a public company’s failure to disclose material purchases of or earnings from business-owned life insurance or if problems developed in accounting for these policies. For example, a senior SEC official said that SEC might become aware of a failure to disclose material information if it was examining a poorly performing business and found that its management had not disclosed that the business was using business-owned life insurance to sustain itself. SEC officials said that, to date, no such problems have arisen, and the agency has not had investor-protection concerns about public companies holding business-owned life insurance.

IRS Has Issued Requirements for the Tax Treatment of Policies and Is Studying Potential Concerns

IRS, whose mission includes administering the tax law, had some requirements related to the tax treatment of business-owned life insurance. The Internal Revenue Code defines life insurance for tax purposes, establishes its tax treatment, and limits the deductibility of interest on loans taken against policies. In addition, in September 2003, IRS and Treasury issued final regulations on the tax treatment of split-dollar life insurance policies—policies in which the employer and employee generally share costs and benefits as part of an executive compensation arrangement. Because none of IRS’s prior rulings regarding the taxation of split-dollar arrangements had directly addressed the types of arrangements that have been widely used in recent years, IRS and Treasury issued interim guidance in 2001 and 2002 that culminated in the final regulations. Under the final regulations, corporations cannot provide tax- free compensation to executives using split-dollar policies, and a business’s premium payments are treated as loans to an executive who owns the policy. If the employer owns the policy, the regulations treat the executive’s interest in the policy’s cash value and current life insurance protection as taxable economic benefits to the executive.

IRS officials said that the agency was studying some possible remaining issues related to business-owned life insurance that is held by highly leveraged financial institutions such as banks and thrifts. Various sources have reported that the limitation on the deductibility of policy loan interest adopted in 1996 curtailed new sales of leveraged business-owned life insurance policies. However, IRS officials expressed concern that this limitation had not eliminated the tax arbitrage opportunities available through business-owned life insurance and that, for this reason, highly leveraged financial institutions such as banks and thrifts might be borrowing to indirectly finance their policies. Borrowing to indirectly finance policies can occur when businesses pay the premiums on life insurance policies by increasing debt that is not directly linked to the policies and then deducting the interest they pay on that debt from their taxable income. Although the Internal Revenue Code limits the amount of deductible interest that is linked directly to business-owned life insurance, establishing such a link is difficult because businesses may incur debt for many purposes. Borrowing to indirectly finance policies presents a tax advantage to businesses because they receive tax-deferred inside buildup from life insurance policies indirectly financed with debt on which the interest expense is tax-deductible.

In addition, IRS officials said that the agency is concerned that banks may be using separate account policies to maintain excessive control over investments, which is inconsistent with the Internal Revenue Code treatment of life insurance. Internal Revenue Code provisions were intended to ensure that the primary motivation in purchasing life insurance would be the traditional economic protection provided by such policies, while discouraging the use of tax-preferred life insurance as primarily an investment vehicle. In separate account life insurance, an asset account is maintained independently from the insurer’s general account. Compared with a general account policy, which offers either a guaranteed rate of return or a rate that varies at the insurer’s discretion, a separate account policy permits the policy owner latitude in the choice of investments, particularly equities. Businesses may also purchase private placement policies, or separate account policies that allow policyholders to negotiate key terms of the policies—such as who will act as investment adviser— with the insurance company. These policies also offer investment alternatives that traditional separate account policies do not, including privately traded investments in start-up businesses and private venture capital funds. Based on IRS revenue rulings, the agency decides on a case- by-case basis whether the purchaser of a policy has excessive control over separate account assets. These revenue rulings have identified factors to consider, such as whether the purchaser directs the account to make a particular investment, sells or purchases assets in the account, or communicates with the investment adviser about the selection or quality of specific investments, and whether the account’s investment strategies are broad enough to prevent the purchaser from making particular investment decisions by investing in a subaccount. IRS officials said that the agency was studying its concerns about indirectly financing policies through borrowing and about using separate account policies at five banks that IRS had identified through routine examinations. The officials said that IRS had not taken action against any of these banks.

State Laws Differ, and Four States with Limited Oversight of Business- Owned Life Insurance Have Not Had Significant Concerns

Although NAIC has developed model legislative guidelines for business- owned life insurance, the states are not required to follow them. NAIC initially developed model guidelines for business-owned life insurance in 1992 and revised them in 2002 (fig. 2). The 1992 guidelines suggested that states consider including in their laws provisions that recognize employers’ insurable interest in employees, including nonmanagement employees who could expect to receive benefits. The 2002 revision added a recommendation for states to consider requiring employee consent to be insured and prohibiting employers from retaliating against employees who refused to grant their consent. However, states have passed a variety of laws regulating insurable interest and consent requirements for business- owned life insurance (see app. II).

While some states have followed NAIC’s guidelines, state consent requirements still differ. Since NAIC revised its guidelines in 2002, several states have passed legislation requiring employers to obtain employees’ written consent before taking insurance on their lives (others already had such requirements). Also, while some states have consent provisions that specifically address business-owned life insurance, in some states consent provisions apply to life insurance policies in general. Compendiums of state laws prepared by NAIC and the American Council of Life Insurers and our review of selected state statutes indicated that, as of December 31, 2003, 35 states had laws requiring written consent (either for life insurance in general or specifically for business-owned life insurance), and another 4 states had consent requirements that were satisfied if an employee did not object to a notice of the employer’s intent to purchase a policy. However, at least 18 of these states exempted group life insurance policies from consent requirements. Additionally, 1 state required employers to notify employees when purchasing business-owned life insurance, but did not require employee consent.

We spoke with insurance department officials from California, Illinois, New York, and Texas. The insurable interest and consent provisions of the four states differed, but all allowed some purchases of business-owned life insurance and three required some form of consent; two required the amount of coverage to be related to employee benefit costs (table 2). The insurance department officials told us that they conduct limited oversight to test compliance with their states’ insurable interest and consent laws. They said that their primary method of addressing this issue was through policy form reviews, or assessments of the proposed forms that insurers would provide to policyholders when selling policies in their states. For example, New York insurance department officials said that department officials review policy forms for compliance with the state’s requirements and that, for policies on non-key employees, the form must describe insured employees’ right to discontinue the coverage on their lives and must note the statutory limitations on the coverage amounts. Also, a submittal letter that insurers must provide to the department along with the policy form must explain how the insurer will verify that New York’s insurable interest requirements are satisfied and, for non-key employees, whether the employer or the insurer will prepare the required employee consent notices. In Illinois, insurance department officials said that they review policy forms to ensure that the forms include the state’s statutory requirements related to business-owned life insurance, but the forms need not detail procedures for obtaining consent or determining appropriate amounts of coverage.

NAIC staff said that state insurance regulators generally have the authority to review policies currently in force for compliance with any state requirements. But the officials from the four states we contacted said that their departments had not routinely verified that employees covered by the policies had consented to being insured or, where applicable, tested whether coverage amounts were appropriate. An official from California’s insurance department said that the department did not routinely review business-owned life insurance sales, but added that the department had recently received complaints about at least one insurer and multiple employers. The official noted that the department was investigating these complaints, including reviewing documentation for the policies in question, and that any policies that were found to violate state provisions could be voided. Officials in Illinois, New York, and Texas said that a pattern of consumer complaints about business-owned life insurance would cause their departments to investigate the insurance sales during market conduct examinations of insurers or refer the matter to their legal division for an enforcement action. However, the officials said that generally they had not received complaints about business-owned life insurance. In addition, NAIC staff told us that the organization maintains a national database of consumer complaints made to state insurance regulators and that business- owned life insurance had not been a significant source of complaints. As a result, NAIC had not developed a separate category for tracking such complaints. However, relying on complaints may not be an effective means of identifying violations of state law related to business-owned life insurance, because employees who are not aware of their state’s notification and consent requirements and whose employers have not provided the required notification or obtained the required consent, would not know that they have a basis for complaining to their state insurance regulators.

More Comprehensive Data Could Be Useful to Congress; Costs Would Be Incurred in Obtaining the Data

More comprehensive data on the prevalence and use of business-owned life insurance could be useful to Congress in assessing the potential effects of legislative proposals that address the tax-favored treatment of this insurance. Data would be most useful if reported separately for business continuation and broad-based policies because legislative proposals that would further limit the tax-favored treatment of business-owned life insurance generally have treated the policies differently—they have applied primarily to broad-based policies. Data on business continuation versus broad-based insurance would be useful in understanding the proportion of the total business-owned life insurance market that might be affected by future legislative proposals. Useful data that are not available include the amount of tax-free income received from the death benefit payments on business continuation and broad-based policies—data that could help Congress better understand the potential effect of changes to the tax treatment of these policies on tax revenues.

Other data on the prevalence and use of business-owned life insurance, further broken down or identified by business continuation and broad- based policies, might also be helpful to Congress in evaluating the potential effects of legislative proposals on businesses, their employees, and insurance companies. The cash surrender value of business-owned life insurance policies could help assess whether the value of assets invested in such policies is consistent with the behavior that Congress wishes to encourage through tax preferences. The annual premiums paid on new policies could be used to determine the demand for business-owned life insurance and the potential effect of proposed legislative changes on the market for business-owned life insurance. The number of businesses that hold business-owned life insurance policies could provide information on how many businesses might be affected by proposed legislative changes. Additional information on the size, type, and geographic location of businesses holding the insurance could be used to characterize the businesses that might be affected. Finally, although obtaining an unduplicated count of the total number of people covered by business- owned life insurance might be impractical, data on the number of each business’s employees insured under such policies could be used, for example, to determine the average number or percentage of employees covered by businesses that reported owning policies. Although more costly to obtain, data collected over multiple periods could help identify trends that might provide additional insights into the effects of legislative proposals.

Businesses that hold business-owned life insurance or insurance companies that sold the policies could provide the data for Congress’s use, but both types of entities would incur administrative costs in extracting the required information from their records and summarizing it. We did not discuss these costs with businesses, however, we expect that they would maintain financial records and insurance policy statements from which the required data could be extracted. Also, some businesses already aggregate this information for use in completing their income taxes or Forms 10-K filed with IRS and SEC, respectively, suggesting that some businesses would not have difficulty providing the data. Nonetheless, businesses might differ in their willingness to voluntarily provide the data, depending at least in part on the cost and their perception of the benefits of doing so. While we did not independently determine the costs that insurers would incur in collecting the data, officials from several insurance companies told us that extensive effort would be required to identify policies as business-owned life insurance, as opposed to policies in which a business is the owner but not the beneficiary, and extract the data that we identified as being useful for decision making. These officials also told us that it would be difficult for them to distinguish between business continuation and broad-based policies. Consistent with these concerns, three life insurance industry trade associations recently supported proposed legislation that would require businesses that hold business-owned life insurance to report some information on their policies to IRS. While businesses might be able to provide data on the policies they own more easily than insurance companies could provide information on the policies they have sold, requiring insurance companies to report would substantially limit the number of reporting entities. About 1,200 companies sell life insurance, according to NAIC, while many more businesses purchase it.

The organization collecting, analyzing, and reporting the data would also incur costs. SEC, Treasury, and NAIC are candidates for this role, because each already collects financial information from businesses that purchase business-owned life insurance, insurers, or both. One of the agencies or NAIC could collect the data by modifying existing reporting instruments, such as the SEC Form 10-K, applicable IRS tax forms, or insurance company annual reporting forms. Alternatively, the agencies or NAIC could collect the data through a survey. We did not determine the resources that would be required for the agencies or NAIC to modify their existing reporting instruments or conduct a survey. Beyond the costs, other factors could be considered in selecting one of these or another organization to lead the effort. Either SEC or Treasury might be able to combine data on business-owned life insurance with other data that businesses already report to them, such as business size, type, or location. SEC currently collects information only from publicly traded companies, whereas Treasury, through IRS, requires all businesses, including life insurance companies, to file tax returns. While taxpayer information is confidential and would not be publicly available except in the aggregate, Congress would likely need only aggregate information. Collecting business-owned life insurance data through NAIC, a membership organization of chief state insurance regulators, assumes the data would be collected from insurance companies and would involve the organization’s voluntary cooperation.

Conclusions

The use of life insurance, which receives tax-favored treatment, has expanded from its traditional coverage of a family’s principal wage earners and a business’s key employees to broad-based coverage of a business’s other employees. Although recent legislative proposals have sought to limit the tax-favored treatment of business-owned life insurance, comprehensive data on the prevalence and use of such insurance have not been available for use in assessing the impact of these proposed changes. Should Congress conclude that such data would facilitate its ongoing deliberations on the appropriate tax treatment of business-owned life insurance, decisions would be required on what data are needed, who should provide the data (insurance buyers or sellers), who should collect the data (SEC, Treasury, NAIC, or another organization), how to collect the data (additional reporting or a survey), what it would cost to collect the data, and whether the benefits of collecting additional data warrant the cost of doing so. Important data for understanding the tax and other implications of changes in the tax-favored treatment of business-owned life insurance would be the amount of tax-free income received from death benefit payments, reported separately for business continuation and broad-based policies. Additional data of value could include the cash surrender value of policies, the annual dollar amount of premiums paid on new policies, the number of businesses that hold business-owned life insurance, the characteristics of businesses that own the policies, and the number of employees insured under such policies.

Matter for Congressional Consideration

If Congress decides that it needs more comprehensive data on the prevalence and use of business-owned life insurance, such as the tax-free income from death benefit payments and/or other select data reported separately for business continuation and broad-based policies, Congress could, among other alternatives, obtain the data by assigning responsibility to SEC or Treasury to (1) require purchasers of business-owned life insurance or insurers to report the data in their financial statements or federal tax returns, respectively, or (2) conduct a survey of the purchasers or insurers to obtain the data; or encouraging NAIC to (1) require insurers to report the data in the annual reports they file with NAIC or (2) conduct a survey of insurers to obtain the data.

Agency Comments and Our Evaluation

We received written comments on a draft of this report from Treasury, IRS, SEC, and NAIC that are reprinted in appendixes III–VI, respectively. Treasury commented that the report is well-researched and informative, but together with SEC expressed reservations about the matter for congressional consideration. Both agencies were reluctant to have a potential role in collecting data on business-owned life insurance, stating that having such a role would not be necessary to fulfill their regulatory missions. NAIC did not express such reservations, but said that it would like to evaluate the need for and utility of the data and favored using a survey as an initial step in the data gathering process. In addition, we received technical comments from Treasury, the federal bank regulators, SEC, and NAIC that we incorporated into the report where appropriate.

In addressing their concern about collecting the data described in our matter for congressional consideration, SEC and Treasury commented that because they do not need the data to fulfill their regulatory missions, they do not believe it would be appropriate for them to collect the data. Specifically, SEC expressed concern about collecting data for purposes other than protecting investors. Similarly, Treasury expressed concern about collecting information not directly needed to calculate tax liabilities or enhance IRS’s ability to audit tax returns. However, as discussed in our report, Treasury provides OMB the estimate of forgone tax revenues resulting from the tax treatment of life insurance, and OMB reports this estimate in its budget documents. As we also report, this estimate is not complete because it does not reflect the forgone tax revenues on the additional income from death benefit payments in excess of the premiums paid and the accumulated tax-deferred earnings. Accordingly, Treasury might find that gathering additional data would allow the agency to provide OMB with a more complete and accurate estimate. NAIC reiterated that collecting the data described in our matter for congressional consideration would go beyond what is needed to support states’ regulation of insurers’ solvency. But NAIC did not explicitly express reservations about being charged with collecting the data should Congress request that it do so. We recognized in the report that none of the potential candidates that we identified for collecting additional data on business-owned life insurance needs the data to fulfill its missions and that the data would be used primarily for making tax policy decisions rather than for providing regulatory oversight. As discussed in the report, if Congress decides that it needs more comprehensive data on business-owned life insurance, among its alternatives would be to turn to SEC, Treasury, NAIC, or another entity to collect the data.

Addressing the issue of how to collect the data, Treasury commented that it would be costly to design and distribute a survey, that response rates might be low without a penalty for noncompliance, and that Treasury would not be the best candidate to conduct a survey because it is not a “statistical gathering agency.” Regarding the latter, Treasury said that a survey of insurance products could be better performed by other organizations or agencies. As discussed in the report, we agree that collecting the required data would involve an investment of resources, whether it is done through a survey or via existing reporting mechanisms. We also agree that obtaining an adequate survey response rate presents a challenge. However, according to professional literature, congressional action making the survey mandatory should significantly improve the response rate. Also, according to this literature, government surveys that have employed response improvement methods continue to achieve acceptable response rates. Additionally, the surveyed entities may be more likely to respond if they believed that doing so would be in their interest. For example, they might conclude that congressional action would be more favorable to them if it was based on more complete data. Further, although Treasury is not a statistical gathering agency, it has chosen to conduct surveys to provide required information to Congress, as well as for other purposes, such as to study the growth of investment in foreign securities. Treasury has also contracted out surveys, as have other federal agencies. NAIC also commented that collecting the data could entail significant costs. NAIC said that it would like to evaluate the need for and utility of collecting the data and suggested that an initial study sampling the data described in our matter for congressional consideration might be a cost-effective way to assess the need for broader data collection. We agree that such a strategy could be one way of approaching the data collection effort.

We are sending copies of this report to the Chairmen of the Senate Committee on Finance, House Committee on Financial Services, Joint Committee on Taxation, and other interested congressional committees. We will send copies to the Chairman of the Board of Governors of the Federal Reserve, Secretary of the Treasury, Chairman of FDIC, Commissioner of Internal Revenue, Comptroller of the Currency, Director of OMB, Director of OTS, Chairman of SEC, Executive Vice President of NAIC, and other interested parties. We also will make copies available to others upon request. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you have any further questions, please call me at (202) 512-8678, dagostinod@gao.gov, or Cecile Trop at (312) 220-7600, tropc@gao.gov. Additional GAO contacts and staff acknowledgments are listed in appendix VII.

Scope and Methodology

To obtain information on the prevalence and use of business-owned life insurance, we analyzed the quarterly financial reports—the Call Report and Thrift Financial Report—that banks and thrifts filed with their respective regulators. We obtained the data from the Federal Deposit Insurance Corporation (FDIC), which compiles Call Report and Thrift Financial Report data collected by the Board of Governors of the Federal Reserve System (the Federal Reserve), FDIC, the Office of the Comptroller of the Currency (OCC), and the Office of Thrift Supervision (OTS). We also obtained additional Thrift Financial Report data from OTS. Because regulators only began collecting the information in a consistent format at the beginning of calendar year 2001, our analysis covered the eight quarters ending March 31, 2001, through December 31, 2002. Although we did not independently verify the accuracy of the data, we assessed its reliability by discussing the data system with bank regulatory officials and examining the data for missing or unreasonable values. We concluded that the data were reliable for purposes of this report.

To obtain further information on the prevalence and use of business-owned life insurance, we reviewed the most recent annual Form 10-K financial reports that publicly traded companies had filed with the Securities and Exchange Commission (SEC) between January 2002 and September 2003. To identify information about insurance companies’ sales of such policies, we reviewed the Forms 10-K of 32 life insurance companies that were among the 50 largest such companies ranked by assets. We also searched for references on how businesses used such policies in the Forms 10-K that a random sample of 100 Fortune 1000 public companies filed with SEC. Although the examples that we identified were not necessarily representative of all businesses that own these policies, they illustrated some uses of business-owned life insurance. We also reviewed industry literature, including studies by life insurance industry consultants and brokers, and interviewed experts to identify other surveys related to business-owned life insurance sales and use. We reviewed surveys conducted by CAST Management Consultants, Inc. that estimated 2001 and 2002 business-owned life insurance premiums and by Clark Consulting that reported on businesses’ use of business-owned life insurance in 2003. We did not fully assess the quality of these surveys, but we determined that despite some limitations, the surveys illustrated the amount of some recent sales and some businesses’ uses of business-owned life insurance.

We also obtained information concerning the prevalence and use of business-owned life insurance from officials of relevant federal regulatory agencies: four federal bank regulators (the Federal Reserve, FDIC, OCC, and OTS), SEC, and the Internal Revenue Service (IRS). In addition, we reviewed the Joint Committee on Taxation’s and the Office of Management and Budget’s reported estimates of forgone tax revenues attributable to business-owned life insurance and obtained information from officials of both entities about the development of these estimates. We also obtained information about the prevalence and use of business-owned life insurance from the National Association of Insurance Commissioners (NAIC), two life insurance trade associations (the American Council of Life Insurers and the Association for Advanced Life Underwriting), and four large banks that held business-owned life insurance.

In an effort to better describe the prevalence and use of business-owned life insurance, we also considered the possibility of conducting a survey of life insurance companies, but did not do so. Although representatives of six life insurance companies cooperated in a survey pretest, and American Council of Life Insurers representatives said that they would encourage their members to participate in the survey itself, the results of the pretest led us to conclude that we would not be able to obtain sufficiently reliable data to warrant conducting the survey. The insurance company representatives told us that their companies do not have a business need to maintain the comprehensive data on business-owned life insurance that we needed for the survey. We did not verify the accuracy of these statements. Still, for the reasons the insurance company representatives cited, we were uncertain whether we would receive an acceptable response rate to a survey. Also, insurance companies’ requests for anonymity would have precluded us from determining the percentage of total life insurance sales the survey respondents represented.

To describe federal and state regulatory requirements for and oversight of business-owned life insurance, we met with officials of federal and state agencies that have regulatory authority related to business-owned life insurance to discuss their requirements and oversight activities and reviewed agency documentation and applicable federal and state laws. Specifically, we discussed requirements and oversight with officials at each of the four federal bank regulators and reviewed their guidelines, regulations, and reporting forms and instructions. We also discussed these topics with officials at SEC and IRS and reviewed their regulations, reporting requirements, and applicable sections of the Internal Revenue Code. We also interviewed NAIC staff to gain a perspective on state approaches to regulating business-owned life insurance and to discuss the organization’s model guidelines for state laws concerning such policies. To understand more about how states oversee compliance with their statutes, we obtained information from officials of insurance departments in California, Illinois, New York, and Texas. We selected these states because they represented different geographical regions of the United States and had differing insurable interest and consent provisions for business-owned life insurance; we did not select states whose provisions did not specifically address business-owned life insurance because we concluded that their insurance departments would not have specific oversight activities or requirements for business-owned life insurance. We did not conduct a comprehensive evaluation of the quality of federal and state regulators’ oversight activities. For example, we did not review records from federal examinations of banks and thrifts or state examinations of insurers. In addition, although we did not review every state statute that could affect business-owned life insurance, we reviewed each state’s statutes that related specifically to business-owned life insurance. Further, to better understand differences in state laws concerning insurable interest and consent requirements for business-owned life insurance, we analyzed compendiums of state statutes from NAIC and the American Council of Life Insurers.

To address the potential usefulness of and costs associated with obtaining more comprehensive data on business-owned life insurance, we reviewed state and federal legislative proposals for changing the tax treatment of business-owned life insurance or addressing other public policy issues related to this insurance and determined the types of data that could be useful in considering these kinds of proposals. We also assessed the extent to which the information we obtained on the prevalence and use of business-owned life insurance provided a comprehensive basis for decision making. In addition, we reviewed IRS, SEC, and NAIC’s reporting forms and instructions to understand what role these organizations or Treasury might play if Congress wanted them to collect, analyze, and report more comprehensive information on business-owned life insurance. We also discussed with representatives of six insurance companies the challenges insurers might face in providing data, including what data they would be able to readily provide and what data would be difficult to provide. Finally, we discussed challenges that might be faced in collecting the data with Treasury (including IRS), SEC, and NAIC representatives.

We conducted our work between February 2003 and December 2003, primarily in Washington, D.C., in accordance with generally accepted government auditing standards.

State Insurable Interest and Consent Provisions

Table 3 provides information on state insurable interest and notification and consent provisions applicable to purchases of business-owned life insurance by employers or employer-sponsored trusts.

Comments from the Department of the Treasury

The Department of the Treasury (Treasury) commented on our matter for congressional consideration, which suggested that, among other alternatives, Congress could assign responsibility to Treasury for collecting data on business-owned life insurance. We discuss these comments in the Agency Comments and Our Evaluation section of this report. We also modified the report based on the technical comments that Treasury provided, as appropriate. In addition, discussed below is GAO’s detailed response to another comment from Treasury’s April 23, 2004, letter.

GAO Comments

1. Treasury commented that the report leaves the impression that interest not linked directly to business-owned life insurance is almost always deductible, noting that the Internal Revenue Code generally allocates a portion of the interest expense of a business to its unborrowed policy cash values. However, Treasury also noted that this provision does not apply to contracts that cover the life of a person who is an officer, director, or employee of the business. Our report addresses business- owned life insurance as permanent insurance that an employer purchases on the lives of employees, with the business as the beneficiary. Because the provision cited by Treasury does not apply to this type of insurance, we do not discuss it in the report.

Comments from the Internal Revenue Service

Comments from the Securities and Exchange Commission

The Securities and Exchange Commission (SEC) commented on our matter for congressional consideration, which suggested that, among other alternatives, Congress could assign responsibility to SEC for collecting data on business-owned life insurance. We discuss these comments in the Agency Comments and Our Evaluation section of this report. We also modified the report based on the technical comments that SEC provided, as appropriate. In addition, discussed below is GAO’s detailed response to another comment from SEC’s April 13, 2004, letter.

GAO Comments

1. SEC commented that the efficacy of an information collection program through SEC filings would be constrained by the federal securities law’s limitations on those companies that are required to file information with SEC. Our report recognizes on page 36 that SEC only collects data from public companies. As Congress evaluates the need for additional data, it might determine that data from a subset of all companies would provide adequate information.

Comments from the National Association of Insurance Commissioners

Ms. Davi M. D’Agostino Director, Financial Markets and Community Investment 441 G Street, NW Dear Ms. D’Agostino: Thank you for the opportunity to provide you with feedback on the GAO’s draft report entitled, Business-Owned Life Insurance: More Data Could Be Useful in Making Decisions About Its Tax Treatment. The NAIC appreciates the opportunity to respond to your findings in this report. We also appreciate the opportunity to have assisted during the development of the report by meeting with the GAO to provide background information.

The NAIC has been interested in this issue for some time and has also reviewed the subject. During 2002, the NAIC appointed a working group, chaired by Commissioner Jim Poolman of North Dakota, to review the NAIC’s earlier guidance and to recommend an appropriate state response. The NAIC’s COLI Working Group reviewed the model guidelines mentioned in your report and recommended an additional provision that requires written affirmative consent prior to purchase of coverage on an employee. The changes to the model guidelines also acknowledged that coverage might continue after the person was no longer employed by that company and prohibited the employer from retaliating in any way against an employee who chose not to give that consent. The working group also considered requiring notification of the employee’s spouse and including a provision that would require employers to make notification to all existing employees where coverage was already in place. These provisions were not ultimately included because of the negative effect they would have on employers in relation to the benefit that would be provided.

As mentioned in the report, the majority of states do define insurable interest in such a way as to allow employers to purchase life insurance coverage on some, if not all, employees. Many states also require getting consent prior to that purchase.

Ms. Davi M. D’Agostino Director, Financial Markets and Community Investment fund employee benefits and some state laws require that the policies be segregated into a trust for that purpose. Page 5 of your report may mislead readers by specifying that four insurance regulators have issued guidelines applicable to business-owned life insurance. Readers may assume that the report is referring to the four states interviewed, or may be confused by the wording to believe that only four states have such requirements. A reading of the chart contained in Appendix II will clarify that, in fact, most states have guidelines.

The report correctly states that insurance regulators have collected little data on business-owned life insurance because concerns about abuse or misuse of the policies have not been previously forthcoming. The GAO suggests that the NAIC might be a source of information about the extent of business-owned life insurance by adding the reporting of that information to the annual statement that insurers are required to file with the NAIC. As you are aware, the NAIC collects a large amount of data from the insurance industry, a large portion of which is included in the annual and quarterly financial filings submitted to the states to support solvency regulation. The current statutory filing requirements do not require the level of detail for business-owned life insurance, or any other specialty line of business, contemplated by the GAO in this report. We believe that what the GAO is suggesting by the collection of more detailed information on business-owned life insurance goes beyond that needed to support solvency regulation. We agree there may be a significant cost associated with the collection of this data, both from the reporting entity and collecting organization standpoint; however, the NAIC would like to better understand the type of information to be collected to further evaluate the need for and utility of this information. Perhaps instead of an ongoing data collection effort, a study sampling this data may be more cost effective in assessing the larger need for ongoing data collection.

Thank you again for the opportunity to respond to the findings in your report. We hope these comment are helpful and that you will contact us if we can be of further assistance.

The National Association of Insurance Commissioners (NAIC) commented on our matter for congressional consideration, which suggested that, among other alternatives, Congress could encourage NAIC to collect data on business-owned life insurance. We discuss these comments in the Agency Comments and Our Evaluation section of this report. We also modified the report based on the technical comments that NAIC provided, as appropriate. In addition, discussed below is GAO’s detailed response to another comment from NAIC’s April 19, 2004, letter.

GAO Comments

1. NAIC commented that a statement on page 5 of our draft report may lead readers to believe that only four states have issued guidelines applicable to business-owned life insurance. We modified that statement to clarify that we are referring only to the four states we contacted. Although many other states have issued guidelines and requirements that are applicable to business-owned life insurance, we only discussed regulatory oversight of such policies with officials from the four states that we contacted.

GAO Contacts and Staff Acknowledgments

GAO Contacts

Staff Acknowledgments

In addition to those individuals named above, Joseph Applebaum, Emily Chalmers, Rachel DeMarcus, Daniel Meyer, Marc Molino, Carl Ramirez, and Julianne Stephens made key contributions to this report.

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