§ 953. Insurance income
(b)
Special rules
For purposes of subsection (a)—
(2)
The items referred to in—
shall be taken into account only to the extent they are in respect of any reinsurance or the issuing of any insurance or annuity contract described in subsection (a)(1).
(c)
Special rule for certain captive insurance companies
(1)
In general
For purposes only of taking into account related person insurance income—
(A)
the term “United States shareholder” means, with respect to any foreign corporation, a United States person (as defined in section
957
(c)) who owns (within the meaning of section
958
(a)) any stock of the foreign corporation,
(B)
the term “controlled foreign corporation” has the meaning given to such term by section
957
(a) determined by substituting “25 percent or more” for “more than 50 percent”, and
(C)
the pro rata share referred to in section
951
(a)(1)(A)(i) shall be determined under paragraph (5) of this subsection.
(2)
Related person insurance income
For purposes of this subsection, the term “related person insurance income” means any insurance income (within the meaning of subsection (a)) attributable to a policy of insurance or reinsurance with respect to which the person (directly or indirectly) insured is a United States shareholder in the foreign corporation or a related person to such a shareholder.
(3)
Exceptions
(A)
Corporations not held by insureds
Paragraph (1) shall not apply to any foreign corporation if at all times during the taxable year of such foreign corporation—
(B)
De minimis exception
Paragraph (1) shall not apply to any foreign corporation for a taxable year of such corporation if the related person insurance income (determined on a gross basis) of such corporation for such taxable year is less than 20 percent of its insurance income (as so determined) for such taxable year determined without regard to those provisions of subsection (a)(1) which limit insurance income to income from countries other than the country in which the corporation was created or organized.
(C)
Election to treat income as effectively connected
Paragraph (1) shall not apply to any foreign corporation for any taxable year if—
(i)
such corporation elects (at such time and in such manner as the Secretary may prescribe)—
(I)
to treat its related person insurance income for such taxable year as income effectively connected with the conduct of a trade or business in the United States, and
(II)
to waive all benefits (other than with respect to section
884) with respect to related person insurance income granted by the United States under any treaty between the United States and any foreign country, and
(ii)
such corporation meets such requirements as the Secretary shall prescribe to ensure that the tax imposed by this chapter on such income is paid.
An election under this subparagraph made for any taxable year shall not be effective if the corporation (or any predecessor thereof) was a disqualified corporation for the taxable year for which the election was made or for any prior taxable year beginning after 1986.
(D)
Special rules for subparagraph (C)
(E)
Disqualified corporation
For purposes of this paragraph the term “disqualified corporation” means, with respect to any taxable year, any foreign corporation which is a controlled foreign corporation for an uninterrupted period of 30 days or more during such taxable year (determined without regard to this subsection) but only if a United States shareholder (determined without regard to this subsection) owns (within the meaning of section
958
(a)) stock in such corporation at some time during such taxable year.
(5)
Determination of pro rata share
(A)
In general
The pro rata share determined under this paragraph for any United States shareholder is the lesser of—
(6)
Related person
For purposes of this subsection—
(B)
Treatment of certain liability insurance policies
In the case of any policy of insurance covering liability arising from services performed as a director, officer, or employee of a corporation or as a partner or employee of a partnership, the person performing such services and the entity for which such services are performed shall be treated as related persons.
(7)
Coordination with section
1248
For purposes of section
1248, if any person is (or would be but for paragraph (3)) treated under paragraph (1) as a United States shareholder with respect to any foreign corporation which would be taxed under subchapter L if it were a domestic corporation and which is (or would be but for paragraph (3)) treated under paragraph (1) as a controlled foreign corporation—
(8)
Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subsection, including—
(A)
regulations preventing the avoidance of this subsection through cross insurance arrangements or otherwise, and
(B)
regulations which may provide that a person will not be treated as a United States shareholder under paragraph (1) with respect to any foreign corporation if neither such person (nor any related person to such person) is (directly or indirectly) insured under any policy of insurance or reinsurance issued by such foreign corporation.
(d)
Election by foreign insurance company to be treated as domestic corporation
(1)
In general
If—
(A)
a foreign corporation is a controlled foreign corporation (as defined in section
957
(a) by substituting “25 percent or more” for “more than 50 percent” and by using the definition of United States shareholder under 953(c)(1)(A)),
(B)
such foreign corporation would qualify under part I or II of subchapter L for the taxable year if it were a domestic corporation,
(C)
such foreign corporation meets such requirements as the Secretary shall prescribe to ensure that the taxes imposed by this chapter on such foreign corporation are paid, and
(D)
such foreign corporation makes an election to have this paragraph apply and waives all benefits to such corporation granted by the United States under any treaty,
for purposes of this title, such corporation shall be treated as a domestic corporation.
(2)
Period during which election is in effect
(A)
In general
Except as provided in subparagraph (B), an election under paragraph (1) shall apply to the taxable year for which made and all subsequent taxable years unless revoked with the consent of the Secretary.
(B)
Termination
If a corporation which made an election under paragraph (1) for any taxable year fails to meet the requirements of subparagraphs (A), (B), and (C), of paragraph (1) for any subsequent taxable year, such election shall not apply to any taxable year beginning after such subsequent taxable year.
(3)
Treatment of losses
If any corporation treated as a domestic corporation under this subsection is treated as a member of an affiliated group for purposes of chapter 6 (relating to consolidated returns), any loss of such corporation shall be treated as a dual consolidated loss for purposes of section
1503
(d) without regard to paragraph (2)(B) thereof.
(4)
Effect of election
(A)
In general
For purposes of section
367, any foreign corporation making an election under paragraph (1) shall be treated as transferring (as of the 1st day of the 1st taxable year to which such election applies) all of its assets to a domestic corporation in connection with an exchange to which section
354 applies.
(B)
Exception for pre-1988 earnings and profit
(i)
In general
Earnings and profits of the foreign corporation accumulated in taxable years beginning before January 1, 1988, shall not be included in the gross income of the persons holding stock in such corporation by reason of subparagraph (A).
(ii)
Treatment of distributions
For purposes of this title, any distribution made by a corporation to which an election under paragraph (1) applies out of earnings and profits accumulated in taxable years beginning before January 1, 1988, shall be treated as a distribution made by a foreign corporation.
(iii)
Certain rules to continue to apply to pre-1988 earnings
The provisions specified in clause (iv) shall be applied without regard to paragraph (1), except that, in the case of a corporation to which an election under paragraph (1) applies, only earnings and profits accumulated in taxable years beginning before January 1, 1988, shall be taken into account.
(iv)
Specified provisions
The provisions specified in this clause are:
(I)
Section
1248 (relating to gain from certain sales or exchanges of stock in certain foreign corporations).
(II)
Subpart F of part III of subchapter N to the extent such subpart relates to earnings invested in United States property or amounts referred to in clause (ii) or (iii) of section
951
(a)(1)(A).
(III)
Section
884 to the extent the foreign corporation reinvested 1987 earnings and profits in United States assets.
(5)
Effect of termination
For purposes of section
367, if—
such corporation shall be treated as a domestic corporation transferring (as of the 1st day of such subsequent taxable year) all of its property to a foreign corporation in connection with an exchange to which section
354 applies.
(e)
Exempt insurance income
For purposes of this section—
(1)
Exempt insurance income defined
(A)
In general
The term “exempt insurance income” means income derived by a qualifying insurance company which—
(B)
Exception for certain arrangements
Such term shall not include income attributable to the issuing (or reinsuring) of an exempt contract as the result of any arrangement whereby another corporation receives a substantially equal amount of premiums or other consideration in respect of issuing (or reinsuring) a contract which is not an exempt contract.
(C)
Determinations made separately
For purposes of this subsection and section
954
(i), the exempt insurance income and exempt contracts of a qualifying insurance company or any qualifying insurance company branch of such company shall be determined separately for such company and each such branch by taking into account—
(2)
Exempt contract
(A)
In general
The term “exempt contract” means an insurance or annuity contract issued or reinsured by a qualifying insurance company or qualifying insurance company branch in connection with property in, liability arising out of activity in, or the lives or health of residents of, a country other than the United States.
(B)
Minimum home country income required
(i)
In general
No contract of a qualifying insurance company or of a qualifying insurance company branch shall be treated as an exempt contract unless such company or branch derives more than 30 percent of its net written premiums from exempt contracts (determined without regard to this subparagraph)—
(ii)
Applicable home country risks
The term “applicable home country risks” means risks in connection with property in, liability arising out of activity in, or the lives or health of residents of, the home country of the qualifying insurance company or qualifying insurance company branch, as the case may be, issuing or reinsuring the contract covering the risks.
(C)
Substantial activity requirements for cross border risks
A contract issued by a qualifying insurance company or qualifying insurance company branch which covers risks other than applicable home country risks (as defined in subparagraph (B)(ii)) shall not be treated as an exempt contract unless such company or branch, as the case may be—
(3)
Qualifying insurance company
The term “qualifying insurance company” means any controlled foreign corporation which—
(A)
is subject to regulation as an insurance (or reinsurance) company by its home country, and is licensed, authorized, or regulated by the applicable insurance regulatory body for its home country to sell insurance, reinsurance, or annuity contracts to persons other than related persons (within the meaning of section
954
(d)(3)) in such home country,
(B)
derives more than 50 percent of its aggregate net written premiums from the issuance or reinsurance by such controlled foreign corporation and each of its qualifying insurance company branches of contracts—
(i)
covering applicable home country risks (as defined in paragraph (2)) of such corporation or branch, as the case may be, and
(ii)
with respect to which no policyholder, insured, annuitant, or beneficiary is a related person (as defined in section
954
(d)(3)),
except that in the case of a branch, such premiums shall only be taken into account to the extent such premiums are treated as earned by such branch in its home country for purposes of such country’s tax laws, and
(4)
Qualifying insurance company branch
The term “qualifying insurance company branch” means a qualified business unit (within the meaning of section 989(a)) of a controlled foreign corporation if—
(5)
Life insurance or annuity contract
For purposes of this section and section
954, the determination of whether a contract issued by a controlled foreign corporation or a qualified business unit (within the meaning of section
989
(a)) is a life insurance contract or an annuity contract shall be made without regard to sections
72
(s),
101
(f),
817
(h), and
7702 if—
(6)
Home country
For purposes of this subsection, except as provided in regulations—
(A)
Controlled foreign corporation
The term “home country” means, with respect to a controlled foreign corporation, the country in which such corporation is created or organized.
(B)
Qualified business unit
The term “home country” means, with respect to a qualified business unit (as defined in section
989
(a)), the country in which the principal office of such unit is located and in which such unit is licensed, authorized, or regulated by the applicable insurance regulatory body to sell insurance, reinsurance, or annuity contracts to persons other than related persons (as defined in section
954
(d)(3)) in such country.
(7)
Anti-abuse rules
(B)
there shall be disregarded any item of income, gain, loss, or deduction of, or derived from, an entity which is not engaged in regular and continuous transactions with persons which are not related persons,
(C)
there shall be disregarded any change in the method of computing reserves a principal purpose of which is the acceleration or deferral of any item in order to claim the benefits of this subsection or section
954
(i),
(D)
a contract of insurance or reinsurance shall not be treated as an exempt contract (and premiums from such contract shall not be taken into account for purposes of paragraph (2)(B) or (3)) if—
(E)
the Secretary may prescribe rules for the allocation of contracts (and income from contracts) among 2 or more qualifying insurance company branches of a qualifying insurance company in order to clearly reflect the income of such branches, and
(F)
premiums from a contract shall not be taken into account for purposes of paragraph (2)(B) or (3) if such contract reinsures a contract issued or reinsured by a related person (as defined in section
954
(d)(3)).
For purposes of subparagraph (D), the determination of where risks are located shall be made under the principles of section
953.
(8)
Coordination with subsection (c)
In determining insurance income for purposes of subsection (c), exempt insurance income shall not include income derived from exempt contracts which cover risks other than applicable home country risks.
(10)
Application
This subsection and section
954
(i) shall apply only to taxable years of a foreign corporation beginning after December 31, 1998, and before January 1, 2012, and to taxable years of United States shareholders with or within which any such taxable year of such foreign corporation ends. If this subsection does not apply to a taxable year of a foreign corporation beginning after December 31, 2011 (and taxable years of United States shareholders ending with or within such taxable year), then, notwithstanding the preceding sentence, subsection (a) shall be applied to such taxable years in the same manner as it would if the taxable year of the foreign corporation began in 1998.