Bureau of Captive and Financial Insurance Products

Transcription

1 Bureau of Captive and Financial Insurance Products Delaware Captive Insurance Association Spring Forum May 9, 2017 Steve Kinion Director, Delaware Insurance Department Delaware is the 3 rd Largest U.S. Captive Domicile and the World s 6 th Largest Captive Domicile 1

2 Agenda for Meeting Delaware s captive status. Internal Revenue and captive insurers. IRS questions. Is the insurer regulated as an insurance company? Is the captive insurer an insurance company? An analysis of Delaware s captive laws and the NAIC accreditation standards. IRS and captives the next steps. 2

3 Thank you! Thank you for bringing either your captives or the captives that you manage to Delaware. INSURANCE COMMISSIONER Trinidad Navarro 3

4 Captive Status 4

5 Delaware Active Licenses as of March 31, 2017 v Variety of Captive Types NumberLicensed Agency 1 Association 1 Cell 14 RRG 3 Industrial 3 Pure 320 Series 623 Special Purpose 6 SPFC 4 Sponsored 4 SPFC/Sponsored 1 5

6 Captive Exams 6

7 Exam Process Changes This year Delaware will conduct about 200 exams for years ending in Exams will not start until after the CPA reports are filed. First day letters are mailed next week to captive managers with the names of the captives to be examined in Captive managers need to upload the information into the shared drive. 7

8 Exam Process Changes Examiner will have two weeks to conduct exam and issue draft exam to the department. Actuarial work may or may not be done in the two week period. The goal is to have the report finished in a total of 60 hours from start to finish and through the Department within 60 days. 8

9 Internal Revenue and Captive Insurers 9

10 IRS Questions Please advise whether or not any law, insurance code and/or insurance regulation in the State of Delaware allows a captive insurance company domiciled in Delaware to backdate the inception date of insurance policies or reinsurance contracts: a. for several weeks or more; b. after the expiration date of the policy periods or reinsurance contracts. Please advise whether or not any law, insurance code and/or insurance regulation in the State of Delaware that regulates the conduct of a promoter of a captive insurance company. 10

11 IRS Questions Does DE law or regulations permit a captive insurance company domiciled in DE to; a. Enter into reinsurance contracts for policies with inception dates for coverage that precede the date of its certificate of authority or license b. What is the authority for this position i. Code ii. Regulation iii. Court Cases iv. Other Administrative or Executive Order c. Would the reinsurance contracts be considered valid? d. What is the remedy for any wrongdoing? e. Would your answers be different if the insurer was domiciled in the United States? DE? 11

12 IRS Questions Does DE law or regulations permit a DE captive insurance company to: a. Enter reinsurance contracts for policies after expiration date of the coverage; b. What is the authority for this position i. Code ii. Regulation iii. Court Cases iv. Other Administrative or Executive Order; c. Would the reinsurance contracts be considered valid? d. What is the remedy for any wrongdoing? 12

13 What is Insurance? To determine whether an arrangement constitutes insurance in its commonly accepted sense, we have considered such factors as: (1) whether the insurer is organized, operated, and regulated as an insurance company by the States in which it does business; (2) whether the insurer is adequately capitalized; (3) whether the insurance policies are valid and binding; (4) whether the premiums are reasonable in relation to the risk of loss; and (5) whether premiums are duly paid and loss claims are duly satisfied. RVI Guar. Co. Ltd. v. CIR, 145 TC 209, 231 (2015). 13

14 What the dissent said in the Rent-A-Center case. The dissent argued that Legacy, the Bermuda domiciled captive insurer, was poorly capitalized, nominally regulated under Bermuda s lax standards, and its assets did not produce income. One of the germane points made by the dissent was Legacy s premium to surplus ratios which ranged from 48:1 in 2003 to 5:1 in 2006 and The dissent also attacked Legacy s assets which consisted of treasury stock and deferred tax assets. It wrote, No true insurance company would invest 100% of its reserves in non-income producing assets. With no potential to earn income, the reserves could not grow to afford a cushion against risk. 14

15 To address how Delaware s captives are regulated, the following is a comparison of the National Association of Insurance Commissioners accreditation process and model laws to how Delaware captive insurers are regulated. 15

16 NAIC Accreditation The first fact about accreditation is that state insurance regulators are the persons subject to accreditation. No insurance company, whether it is a commercial or captive insurer, is accredited by the NAIC because the NAIC is not a regulator. However, it is an organization that establishes standards, such as the accreditation standards, which state insurance regulators adopt. All 50 state insurance state insurance regulatory bodies are accredited as are the District of Columbia and Puerto Rico. Although the U.S. territories of Guam, Marshall and Northern Mariana Islands, and U.S. Virgin Islands are members of the NAIC, they are not accredited jurisdictions. 16

17 NAIC Accreditation There are four accreditation standards known as Parts A through D. Part A regards the laws and regulations needed to regulate the solvency of multistate insurers. The entirety of the Part A standards apply to multi-state insurers, while a modified form applies to Risk Retention Groups. Part B regards the sufficiency and qualification of the regulatory staff and the examination and procedures employed to regulate insurers. Part C regards the education, training, and professional development of the financial regulatory staff. Part D only regards the licensing and change of control of insurers in order prevent and fraudulent insurance activities. Part D does notapply to captive insurers. 17

18 NAIC Accreditation In order to successfully regulate multi-state insurers for solvency, state insurance regulators must exercise the Part A accreditation powers enumerated below. In order to contrast what the Part A standards would mean for captives, I will provide a comparison with Delaware s captive laws. In preparing this presentation, I extensively borrow language from the NAIC Financial Regulation and Financial Accreditation Program January

19 Part A Standard No. 1. Examination Authority: State insurance regulators must have the authority to examine insurers whenever deemed necessary. Such authority should include complete access to the company s officers, employees, agents, books and records and, if necessary, the records of any affiliated company, agent, and/or managing general agent. The NAIC Model Law on Examinations or substantially similar provisions shall be part of state law. Delaware s captive laws, 18 Del C. 6908, give regulators the same examination authority. The NAIC Financial Condition Examiners Handbook (2016) notes that examinations are conducted every 3 to 5 years. Delaware follows the same schedule and experience requirements for the lead examiner. 19

20 Part A Standard No. 2. Capital and Surplus Requirement: The state insurance regulators must have the ability to require that insurers have and maintain a minimum level of capital and surplus to transact business and to require additional capital and surplus based upon the type, volume and nature of insurance business transacted. The Risk Based Capital (RBC) for Insurers Model Act or provisions substantially similar shall be included in state laws or regulations. Delaware s captive laws give its captive regulators the authority to require minimum capital and surplus requirements and demand additional capital when necessary. With the exception of Risk Retention Groups, the RBC requirements do not apply to captive insurers. 18 Del. C

21 Part A Standard No. 3. NAIC Accounting Practices and Procedures: The state insurance regulators should require that all companies filing financial statements file the appropriate NAIC annual statement blank and follow the accounting procedures and practices prescribed by the NAIC s Accounting Practices and Procedures Manual. This is requirement is commonly known as filing under the statutory accounting system. Delaware s laws allow captives to file on a GAAP, statutory, or IFRS basis. If the accreditation standards were to apply to captive insurers, the application of the Accounting and Procedures Manual would have the greatestimpact. 18 Del. C

22 Part A Standard No. 4. Corrective Action: State law should contain the NAIC s Model Regulation to Define Standards and Commissioner s Authority for Companies Deemed to be in Hazardous Financial Condition or a substantially similar provision, which authorizes the state insurance regulators to order a company to take necessary corrective action or cease and desist certain practices that, if not corrected, could place the company in a hazardous financial condition. Delaware s captive laws provide its regulators with expansive authority to take corrective action against a captive insurer to include the suspension or revocation of the captive s license to conduct business. 18 Del. C

23 Part A Standard No. 5. Valuation of Investments: State law should mandate that securities owned by insurance companies be valued in accordance with those standards promulgated by the NAIC s Capital Markets and Investment Analysis Office. Other invested assets should be required to be valued in accordance with the procedures promulgated by the NAIC s Financial Condition (E) Committee. In contrast, Delaware pure, industrial insured, agency, specialpurpose financial,and branch captive insurers are only bound by the investments standards in 18 Del. C Other forms of captives, such as association, special purpose, and RRGs are subject to the same investment standards applied to commercial insurers, unless the Commissioner approves a different investment standard. It is common regulatory practice in Delaware for all captive insurers to submit an investment plan that is subject to regulatory review and approval. 23

24 Part A Standard No. 6. Holding Company Systems: State law should contain the NAIC Insurance Holding Company System Regulatory Act or an Act substantially similar, and the state insurance regulators should have adopted the NAIC s model regulation relating to this law. Except for RRGs, Delaware s captive laws exempt captive insurers from the holding company acts, but Delaware captives must obtain prior approval for material transactions in 18 Del. C. 6922, which are like the requirements in the Holding Company Act. 24

25 Part A Standard No. 7. Risk Limitation: State laws should prescribe the maximum net amount of risk to be retained by a property and liability company for an individual risk based upon the company s capital and surplus. The individual risk should be no larger than 10% of the company's capital and surplus. Except for RRGs, Delaware s captive laws do not mandate an individual risk limitation. 25

26 Part A Standard No. 8. Investment Regulations: State statute should require a diversified investment portfolio for all domestic insurers both as to type and issue and include a requirement for liquidity. Foreign companies should be required to substantially comply with these provisions. See the explanation in number 5 Valuation of Investments. 26

27 Part A Standard No. 9. Liabilities and Reserves: State statute should prescribe minimum standards for the establishment of liabilities and reserves resulting from insurance contracts issued by an insurer; including life reserves, active life reserves and unearned premium reserves, and liabilities for claims and losses unpaid and incurred but not reported claims. The NAIC s Standard Valuation Law, Actuarial Opinion and Memorandum Regulation and Property and Casualty Actuarial Opinion Model Law or substantially similar provisions shall be in place. Delaware s captive insurance regulations mandate the actuarial certification of reserves and use these minimum standards. See 18 Del. Adm. Code

28 Part A Standard No. 10. Reinsurance Ceded: State law should contain the NAIC Model Law on Credit for Reinsurance, the NAIC s Credit for Reinsurance Model Regulation and the NAIC Life and Health Reinsurance Agreement Model Regulation or substantially similar laws. In order to take the credit for reinsurance, Delaware s captive laws require captive insurers to follow this NAIC model act. See 18 Del. C

29 Part A Standard No. 11. CPA Audits: State statute or regulation should contain a requirement for annual audits of domestic insurance companies by independent certified public accountants that is substantially similar to the NAIC s Annual Financial Reporting Model Regulation. Delaware s captive regulations require the filing of annual audits. See 18 Del. Adm. Code

30 Part A Standard No. 12. Actuarial Opinion: State statute or regulation should contain a requirement for an opinion on reserves and loss and loss adjustment expense reserves by a qualified actuary or specialist on an annual basis for all domestic insurance companies. Delaware s captive insurance laws contain a similar mandate. See 18 Del. Adm. Code

31 Part A Standard No. 13. Receivership: State law should set forth a receivership scheme for the administration, by the insurance commissioner, of insurance companies found to be insolvent as set forth in the NAIC s Insurer Receivership Model Act. Delaware s captive insurance laws impose the same receivership statutes as applied to commercial insurers. 18 Del. C

32 Part A Standard No. 13. Receivership: State law should set forth a receivership scheme for the administration, by the insurance commissioner, of insurance companies found to be insolvent as set forth in the NAIC s Insurer Receivership Model Act. Delaware s captive insurance laws impose the same receivership statutes as applied to commercial insurers. 18 Del. C

33 Part A Standard No. 14. Guaranty Funds: State law should provide for a regulatory framework such as that contained in the NAIC s model acts on the subject, to ensure the payment of policyholders obligations subject to appropriate restrictions and limitations when a company is deemed insolvent. Delaware captive insurers are not subject to the guaranty fund laws. See 18 Del. C

34 Part A Standard No. 15. Filings with NAIC: State statute, regulation or practice should mandate filing of annual and quarterly statements with the NAIC in a format acceptable to the NAIC except that states may exempt from this requirement those companies that operate only in their state of domicile. Delaware captive insurers only operate in Delaware and are therefore exempt from filing with the NAIC. 34

35 Part A Standard No. 16. Producer Controlled Insurers: States should provide evidence of a regulatory framework, such as that contained in the NAIC s Model Law for Business Transacted with Producer Controlled Property/Casualty Insurer Actor similar provisions. RRGs are subject to the laws for producer controlled insurers. Delaware s captive laws provide authority to address the very rare instance of a producer controlling a captive insurer. See 18 Del. C

36 Part A Standard No. 17. Managing General Agents Act: States should provide evidence of a regulatory framework, such as that contained in the NAIC s Managing General Agents Model Actor similar provisions. RRGs are subject to the laws for producer controlled insurers. Delaware s captive laws provide authority to address the very rare instance of a captive using an MGA. 18 Del. C

37 Part A Standard No. 18. Reinsurance Intermediaries Act: States should provide evidence of a regulatory framework, such as that contained in the NAIC s Reinsurance Intermediary Model Actor similar provisions. RRGs are subject to the laws for producer controlled insurers. Delaware s captive laws provide authority to address the very rare instance of an intermediary. 18 Del. C

38 Part A Standard No. 19. Regulatory Authority: State law should provide for a regulatory framework for the organization, licensing and change of control of domestic insurers. Delaware s captive laws provide for such a regulatory framework. 38

39 Part B regards the sufficiency and qualification of the regulatory staff and the examination and procedures and Part C regards the education, training, and professional development of the financial regulatory staff. 14 analysts hold the Accredited Financial Examiner (AFE) designation. 13 analysts hold the Certified Financial Examiner (CFE) designation. 7 analysts hold the Associate in Captive Insurance (ACI) designation. 4 analysts are certified public accountants (CPA). 2 analysts have earned a Master of Business Administration (MBA). 1 analyst holds MCM designation issued by the Insurance Regulatory Examiners Society. 1 analyst has earned the Master of Accounting and Financial Management (MAFM) degree. 39

40 Internal Revenue and Captive Insurers: Next Steps 40

41 States Without Captive Laws Shown in Orange Alaska Hawaii

42 Next Steps Howcan state regulators help? More standardization in financial statements such as a standard annual statement used by all states. More standardization for examinations. Do you want NAIC involvement? Are you ready for greater promoter regulation? 42

43 Delaware Annual Report Comparison to Information soughtto IRS Notice on the Delaware AnnualReport Name of captive domicile. Name of the captive manager. Types of insurance coverage. Description of paid claims. The captive s assets. < = 70% loss ratio. Related party loans. 43

44 Questions & Answers Steve Kinion, Director, Delaware Department of Insurance Dover Office Wilmington Office Cell Please copy our office manager, Jamie Bafundo, on all correspondence Delaware is the 3 rd Largest U.S. Captive Domicile and the World s 5 th Largest Captive Domicile 44