Split-Dollar Redux

INTERIM GUIDANCE
Notice 2002-8 offers guidelines to employers and employees until the IRS issues final split-dollar regulations; the rules make two critical points about the tax treatment:

IRC sections 1271 to 1275 and 7872 would treat premiums the employer pays as a series of interest-free loans to the employee.

Otherwise, the IRS would consider the economic benefits of the policy (including any share of cash values when an employee receives them) to be transfers to that employee under IRC sections 61 and 83. The employee would value the economic benefit using the appropriate tables and rates explained below.

Under notice 2002-8 timing is critical when the employee computes insurance protection values using section 61. The key date for CPAs to remember is January 28, 2002. Plans entered into before this date must use table 2001, which is part of revenue notice 2001-10, to determine the value of life insurance protection the employer provides under the plan. (Table 2001 is the commonly accepted authority for valuing policies. It superseded the old PS 58 rates as of January 1, 2002.) Plans also can use the more favorable insurance company one-year term rates to determine the value of life insurance protection.

A plan entered into after January 28, 2002, can use the insurer’s published premium rates until January 1, 2004. Thereafter, for an employee to use these rates, the insurer must make them known to all persons who apply for term coverage and must use those rates when selling such coverage. That means the subsequent rates will be higher than those companies now are quoting.

Timing also is critical to how the IRS will tax policy cash values transferred to employees. Participants in split-dollar arrangements entered into before January 28, 2002, can terminate or convert such plans to loans by January 1, 2004, with no tax liability to the individual taxpayer under the safe harbor in notice 2002-8.

THE END OF REVERSE SPLIT-DOLLAR
In notice 2002-59 the IRS specifically targets these plans, where one party buys a policy (usually a family member or employee) and then “rents” the death benefits to another (a wealthier family member or employer). With the rent payments typically greatly exceeding the actual cost of the death benefit the policy provides, this strategy transfers large amounts of cash from one entity or individual to another with little or no tax liability.

Notice 2002-59 prohibits reverse split-dollar plans from using either table 2001 or the insurer’s alternative premium rates to value current life insurance protection. Since these are the only two authoritative ways of doing so, there is no method a reverse split-dollar plan can use to safely compute a policy’s economic value for tax purposes. Because the notice does not offer an alternative, it essentially eliminates reverse split-dollar plans as a means of transferring wealth.
The notice similarly provides no apparent remedy for existing reverse split-dollar plans that now are out of compliance with the law. The IRS will likely address the disposition of these plans—one taxpayer at a time.

PROPOSED REGS
The regulations the Treasury Department published in July 2002 apply to split-dollar policies and have a variety of provisions. The more significant ones affecting the tax, financial and estate-planning practices found at most CPA firms include

Effective date. The proposed regulations apply only to transactions a taxpayer enters into after they become final. The IRS will treat material modifications of plans existing before that date as new plans subject to the final regulations.

Value of equity. The taxpayer’s interest in the policy’s cash surrender value and all other benefits under a split-dollar plan are included in gross income currently.

Value of economic benefit. Footnote 1 to the preamble allows taxpayers to use the higher PS 58 valuation rates for a regular split-dollar plan. It specifically forbids use of these higher rates in reverse split-dollar plans. Neither of these rules benefits the taxpayer.

Split-dollar defined . For the first time, the proposed regulations broadly define split-dollar as an arrangement between an owner and nonowner of a life insurance policy where one party pays all or part of the premiums and the other party may recover all or part of those premiums—with the recovery secured by a life insurance policy.

Tax treatment. There are generally two systems for taxing split-dollar benefits: The economic benefit system (endorsement) and the loan system (collateral assignment). Employment-related or donor/donee nonequity split-dollar arrangements fall under the former, which requires the benefits be taxed to the individual currently. A loan arrangement exists when the policy’s nonowner makes partial premium payments to the owner that a reasonable person would expect to be repaid from the policy’s death benefit. If the loan is non-interest-bearing and at a below-market rate, then forgone interest is taxable to the borrower.

HOW SARBANES-OXLEY APPLIES
A new set of accounting and corporate governance reforms immediately took effect when President Bush signed the Sarbanes-Oxley Act of 2002 into law. Among them was section 402, which prohibits any public reporting company from extending credit in the form of a personal loan to any executive officer or director. Privately held companies are exempt. Certain types of split-dollar arrangements (especially collateral assignments) implicitly create a personal lending relationship between the two parties. This may run afoul of the act, creating a felony punishable by jail time. Some CPAs and attorneys are counseling their corporate and personal clients to discontinue further premium payments on public company split-dollar arrangements until they receive clear official guidance. Meanwhile, the insurance industry is seeking clarification of how Sarbanes-Oxley applies to split-dollar plans.

PROACTIVE STEPS
These changes in the tax law are an opportunity for CPAs to better serve their clients. Here’s a checklist of some best practices they can follow:

Meet with each client who has a split-dollar or reverse split-dollar plan in place.

Review each plan separately in light of the timing issues proposed in notice 2002-8 for benefit valuation and prohibition of reverse split-dollar plans as targeted by notice 2002-59.

Unwind those split-dollar arrangements that no longer accomplish their goals. Among the possible solutions: Change the split-dollar to an endorsement plan where the employer is the policy owner to prevent a personal loan to an officer or director. Terminate those split-dollar arrangements where the cash value exceeds the employer’s premium payments. Consider converting future premium payments to loans. Terminate all reverse split-dollar plans.

Listen to the client’s goals, note how they’ve evolved and use the recent rule changes as an opportunity to fine-tune his or her investment and insurance program.

WHAT’S NEXT?
Both America’s economic difficulties and the abuses of some corporations will continue to create a backlash of ever more stringent rules on a wide variety of business activities. Insurance practices are in the crosshairs of tax legislation specifically designed to deal with some of the more gaping loopholes. Given the importance of corporate governance issues, directors and key executives will remain in the spotlight. Investors will expect to see a change in corporate culture to one that adheres to both the spirit and the letter of the law instead of trying to find ways to keep things running as before. CPAs must observe these changes carefully and advise clients accordingly.

NEIL ALEXANDER, CFP, is founder and president of Alexander Capital Consulting LLC in Los Angeles. His e-mail address is nalex@alexcap.com . LAWRENCE BRODY, JD, is an attorney and partner at Bryan Cave LLP in St. Louis where his practice focuses on split-dollar insurance. His e-mail address is lbrody@bryancave.com .