17 December 2013

Tax: Sovereign Assurance v. Inland Revenue

Taxable income was increased by over $63 million after the Court of Appeal ruled against attempts by Sovereign Assurance to exploit timing differences on payments attached to reinsurance contracts.  Late payment penalties have increased Sovereign’s tax bill to nearly $90 million because the tax dispute has dragged on for so long.
ASB Bank purchased Sovereign Assurance in 1998.  With the purchase it inherited reinsurance contracts already in place with German reinsurer:  Gerling-Konzern Globale.  ASB Bank wound down operation of these contracts between 2001 and 2004.
Evidence was given that the Gerling reinsurance contracts included a financing component.  As well as underwriting Sovereign’s risk on life contracts, Gerling provided working capital to fund the first few years of life policies.  Life insurers incur heavy establishment expenses when setting up a new policy: administrative fees, medical expenses and agent’s commission incur immediate costs which typically amount to a multiple of two to three times the first year premium.
Gerling agreed to advance funds to cover Sovereign’s life policy establishment costs with an agreed mechanism for repayment of this advance plus interest. 
Sovereign included as taxable income in the year of receipt the Gerling advances and later claimed the repayment as a tax deduction in the year paid.  The timing differences between a smaller sum claimed as income and a larger sum claimed later as a deduction provided a substantial tax benefit: in 2001 this amounted to $23.6 million; in 2002, $39.9 million.
Sovereign argued that the contract sat outside the tax rules for “financial arrangements” because it was not a financing transaction but rather a sale of property – the property sold being the cash flows arising from premiums paid on individual life policies.
The Court of Appeal said the wording of the contract did not support this argument.  While the Gerling contract was in German and used specialist terminology found in reinsurance contracts, with talk of “cession” and “acceptance”, these words described risk exposure, not the sale of an asset.
For tax, the financing component of the reinsurance contract was treated as a loan.  As a “financial arrangement”, Sovereign could claim a tax deduction only for the interest component.  The working capital advanced was not assessable income, and repayment of that capital was not deductible.
Sovereign Assurance v. Inland Revenue – Court of Appeal (17.12.13)

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