Humana Inc. v. C.I.R.
| Decision Date | 27 July 1989 |
| Docket Number | No. 88-1403,88-1403 |
| Citation | 881 F.2d 247 |
| Parties | -5142, 89-2 USTC P 9453 HUMANA INC., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Laramie L. Leatherman, Charles J. Lavelle, James E. Milliman (argued), Greenebaum, Doll & McDonald, Louisville, Ky., for petitioner-appellant.
Kenneth L. Greene (argued), David I. Pincus, U.S. Dept. of Justice, Tax Div. Appellate Section, Washington, D.C., Gary R. Allen, Acting Chief, William S. Rose, Jr., Asst. Atty. Gen., Dept. of Justice, Tax Div., Washington, D.C., for respondent-appellee.
Before MARTIN and MILBURN, Circuit Judges, and HACKETT, * District Judge.
Humana Inc. and its wholly owned subsidiaries with which it files a consolidated federal income tax return appeal the decision of the United States Tax Court determining deficiencies against them with respect to their 1976-1979 fiscal years on the basis that: 1) sums paid by Humana Inc. to its captive insurance subsidiary, Health Care Indemnity, on its own behalf and on behalf of other wholly owned subsidiaries did not constitute deductible insurance premiums under the Internal Revenue Code Sec. 162(a) (1954), and 2) such payments are not deductible under the Internal Revenue Code Sec. 162 (1954) as ordinary and necessary business expenses as payments to a captive insurance company are equivalent to additions to a reserve for losses.
Humana Inc. and its subsidiaries operate hospitals whose insurance coverage was cancelled. Humana Inc. incorporated Health Care Indemnity, Inc., as a Colorado captive insurance company. In order to facilitate the incorporation of Health Care Indemnity, Humana Inc. also incorporated Humana Holdings, N.V., as a wholly owned subsidiary in the Netherland Antilles. The only business purpose of Humana Holdings was to assist in the capitalization of Health Care Indemnity. 1 At the time of the initial capitalization, Health Care Indemnity issued 150,000 shares of preferred stock and 250,000 shares of common stock. Of these, Humana Holdings, the wholly owned Netherland subsidiary, purchased the preferred stock for $250,000.00 in cash (its entire capitalization) and Humana Inc. purchased 150,000 shares of Health Care Indemnity's common stock for $750,000.00 in the form of irrevocable letters of credit (as provided by Colorado statute).
Health Care Indemnity, the captive insurance subsidiary of Humana Inc., provided insurance coverage for Humana Inc. and its other subsidiaries. Humana Inc. paid to Health Care Indemnity amounts which it treated as insurance premiums. Humana Inc. allocated and charged to the subsidiaries portions of the amounts paid representing the share each bore for the hospitals each operated. The remainder represented Humana Inc.'s share for the hospitals which it operated. The total sums, $21,055,575.00, were deducted on a consolidated income tax return as insurance premiums.
The Commissioner, in accordance with the position outlined in Rev.Rul. 77-316, 1977-2 C.B. 52, disallowed the deductions and asserted deficiencies against Humana Inc. and the subsidiaries. Humana Inc. and its subsidiaries filed petitions in the tax court for redeterminations of the deficiencies assessed against them. On August 14, 1985, the tax court issued a memorandum opinion upholding the Commissioner's determination. Following a petition forreconsideration, the tax court withdrew that opinion. Humana Inc. requested full court review. On January 26, 1987, the tax court, after review by the entire nineteen member court, upheld the Commissioner. Humana Inc. and Subsidiaries v. Commissioner, 88 T.C. 197 (1987).
The opinion of the tax court contains a twelve member majority written by Judge Goffe, an eight member concurrence written by Judge Whitaker and joined by seven members of the majority, a two member concurring opinion written by Judge Hamblen and joined by Judge Whitaker, and a seven member dissent written by Judge Korner. The twelve member majority relied on its prior decisions in Carnation Company v. Commissioner, 71 T.C. 400 (1978), aff'd. 640 F.2d 1010 (9th Cir.1981), cert. denied, 454 U.S. 965, 102 S.Ct. 506, 70 L.Ed.2d 381 (1981) and Clougherty Packing Company v. Commissioner, 84 T.C. 948 (1985), aff'd. 811 F.2d 1297 (9th Cir.1987), and held 1) that sums paid by Humana Inc. to Health Care Indemnity on its own behalf (described as the "parent-subsidiary" issue) were not deductible as ordinary and necessary business expenses for insurance premiums, and 2) the sums charged by Humana Inc. to the operating subsidiaries (described as the "brother-sister" issue) were also not deductible on the consolidated income tax return as ordinary and necessary business expenses for insurance premiums. The majority reasoned that there was no insurance because the risks of loss were not shifted from Humana Inc. and its subsidiaries to Health Care Indemnity. In so holding, the majority specifically rejected adoption of the economic family concept argued by the Commissioner.
The tax court noted that the second issue, the brother-sister issue--whether the sums charged by Humana Inc. to its operating subsidiaries were deductible on the consolidated income tax returns as ordinary and necessary business expenses as insurance premiums--was an issue of first impression before the court. The court claimed that the issue had been decided in favor of denying the premiums as deductible in two other cases, Stearns-Roger Corp. v. United States, 774 F.2d 414 (10th Cir.1985) and Mobil Oil Corp. v. United States, 8 Cl.Ct. 555 (1985). The majority stated that Stearns-Roger and Mobil extended the rationale of Carnation and Clougherty to the "brother-sister" factual pattern. In holding that Humana Inc. did not shift the risk from the subsidiaries to Health Care Indemnity by charging its subsidiaries portions of the amounts paid representing the share each bore for the hospitals each operated, the tax court accepted the joint opinion of two experts, Dr. Plotkin and Mr. Stewart. Dr. Plotkin and Mr. Stewart stated:
Commercial insurance is a mechanism for transferring the financial uncertainty arising from pure risks faced by one firm to another in exchange for an insurance premium.... The essential element of an insurance transaction from the standpoint of the insured (e.g. Humana and its hospital network), is that no matter what perils occur, the financial consequences are known in advance.... A firm placing its risk in a captive insurance company in which it holds a sole ... ownership position, is not relieving itself of financial uncertainty.... True insurance relieves the firm's balance sheet of any potential impact of the financial consequences of the insured peril.... [However] as long as the firm deals with its captive, its balance sheet cannot be protected from the financial vicissitudes of the insured peril.
Humana, 88 T.C. at 219-25 (1987).
The majority also declared that payments to a captive insurance company are equivalent to additions to a reserve for losses and, therefore, not deductible under the Internal Revenue Code Sec. 162 (1954) as ordinary and necessary business expenses paid or incurred during the taxable years in issue. Stearns-Roger Corp. v. United States, 774 F.2d 414 (10th Cir.1985); Mobil Oil Corp. v. United States, 8 Cl.Ct. 555 (1985).
The eight member concurrence agreed with the majority's conclusion on both issues but felt uncomfortable with the majority's reliance on the expert witnesses, Dr. Plotkin and Mr. Stewart, whose theories rested heavily upon the economic family concept of captive insurance companies. They wrote to affirm that they were holding against Humana solely on the basis that the contracts between Humana Inc. and Health Care Indemnity and the contracts between Humana Inc.'s subsidiaries and Health Care Indemnity were not insurance contracts because of the lack of risk shifting. Humana, 88 T.C. at 231 (1987) (Whitaker, J., concurring).
A two member concurrence wrote to express concern about the "economic family" concept. They noted that the Commissioner's discussions of the economic family concept did not square with Moline Properties v. Commissioner, 319 U.S. 436, 63 S.Ct. 1132, 87 L.Ed. 1499 (1943). The Supreme Court in Moline Properties held that each corporate taxpayer was a separate entity for tax purposes. The two person concurrence felt that the Moline Properties issue was injected unnecessarily by way of the economic family concept analogy. The two member concurrence noted that the majority cites proponents of the economic family concept and felt that this was neither appropriate nor necessary. The two member concurrence stated that they "strongly believe that we should decide the issue solely on a lack of risk shifting and risk distribution basis." Humana, 88 T.C. at 237 (1987) (Hamblen, J., concurring).
The seven member dissent concurred in part with the majority that the premiums paid to Health Care Indemnity by Humana Inc. for insurance on itself may not be deducted as insurance premiums. They dissented with respect to the majority's holding that the same result applies to premiums paid by Humana Inc.'s subsidiaries to Health Care Indemnity for comparable insurance on them and their employees. The dissent stated that neither Carnation nor Clougherty decided the issue of deductibility of insurance premiums where the insurance contract was between corporations related as brother and sister. The dissent stated that the record in this case showed that 1) the wholly owned subsidiaries of Humana Inc. were insured under the subject policies, 2) the subsidiaries were related to Health Care Indemnity as brother-sister, not as parent-subsidiaries, 3) the amounts due under the subject policies as premiums were billed by Health Care Indemnity to Humana on a monthly basis, 4) Humana paid the total amount...
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