T.C. Memo. 1999-61
UNITED STATES TAX COURT
STEPHEN L. AND COLLEEN ATWOOD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19748-97. Filed March 4, 1999.
Stephen L. and Colleen Atwood, pro sese.
James F. Prothro, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
THORNTON, Judge: Respondent determined a deficiency of
$10,756 in petitioners’ 1995 Federal income tax and an accuracy-
related penalty in the amount of $2,151 pursuant to section 6662.
Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for the year at issue, and all
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Rule references are to the Tax Court Rules of Practice and
Procedure.
The issues remaining for decision are: (1) Whether
petitioners are taxable on distributions totaling $38,117 from
the termination of a life insurance policy and an endowment
policy; (2) whether petitioners are entitled to deduct interest
on amounts borrowed against these two policies; and (3) whether
petitioners are liable for an accuracy-related penalty for a
substantial understatement of income tax.1
FINDINGS OF FACT
The parties have stipulated some of the facts, which are so
found. The stipulation of facts with attached exhibits is
incorporated herein by this reference. When they petitioned the
Court, petitioners were married and resided in Dallas, Texas.
In 1986, petitioner husband purchased a single premium life
insurance policy from First Colony Life Insurance Co. (First
Colony), paying a single premium of $25,000. On March 8, 1988,
petitioner wife purchased a single premium endowment policy from
National Western Life Insurance Co. (National Western), paying a
single premium of $50,000.
1
Petitioners stipulated that they failed to report taxable
interest income in the amount of $26 on their 1995 joint Federal
income tax return.
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Each of the policies permitted the owner to borrow generally
up to the amount of policy cash value, using the policy as
security. Each contract required payment of a specified rate of
interest on amounts borrowed, with any accrued but unpaid
interest to be added to the loan and to bear interest at the same
rate. Each contract provided for the termination or lapse of the
policy when the total loan, including unpaid interest, exceeded
the policy cash value (the value of the single premium
accumulated with interest less certain specified charges).
Because of financial hardship and in order to pay personal
living expenses, petitioners each borrowed the maximum allowable
amounts against their policies. They each failed to completely
repay these loans or interest thereon, resulting in the
termination of each policy in 1995.
When First Colony terminated petitioner husband’s policy,
his outstanding loan balance, exclusive of certain unpaid
interest, was $39,403.63. The policy had a cash value of
$39,843.11, and a cash surrender value of $439.48
($39,843.11 minus $39,403.63). Upon termination, First Colony
sent petitioner husband a check in the amount of the cash
surrender value ($439.48). First Colony also issued petitioner
husband a Form 1099-R, reflecting a taxable gain of $14,843.11,
which the company computed as the cash value of $39,843.11, less
his investment in the contract of $25,000.
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When National Western terminated petitioner wife’s policy,
her outstanding loan balance was $73,274.49. National Western
issued petitioner wife a Form 1099-R, reflecting a taxable gain
of $23,274.49, which the company computed as the outstanding loan
balance of $73,274.49, less her investment in the contract of
$50,000.
On their 1995 joint Federal income tax return, petitioners
reported no taxable distributions from their terminated insurance
policies. Respondent determined that petitioners had income of
$14,843 from the First Colony policy and $23,274 from the
National Western policy.
OPINION
In general, with exceptions not applicable here, any amount
which is received under a life insurance contract or endowment
contract before the annuity starting date and which is not
received as an annuity is included in gross income to the extent
it exceeds the investment in the contract. Sec. 72(e)(1)(A),
(5)(A), (C). The investment in the contract is defined generally
as the aggregate amount of premiums or other consideration paid
for the contract less aggregate amounts previously received under
the contract, to the extent they were excludable from gross
income. Sec. 72(e)(6).
The derivation and computation of the amounts reported on
the Forms 1099-R by First Colony and National Western upon
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termination of petitioners’ policies are not in dispute. The
only issue is whether these amounts are includable in
petitioners’ gross income as amounts received within the meaning
of section 72(e).
Noting that very little cash was paid directly to them upon
cancellation of the policies, petitioners argue that the amounts
at issue represent merely “paper transactions” on the books of
the insurance companies. They argue that, in borrowing against
the policies, they were borrowing their own money, and that
capitalized interest on the loans merely increased their
investments in the contracts. We disagree.
Petitioners’ insurance contracts, by their terms, treated
the policy loans, including capitalized interest, as bona fide
indebtedness. For Federal income tax purposes, their policy
loans constituted true loans, rather than cash advances, and were
not taxable distributions when received. See Minnis v.
Commissioner, 71 T.C. 1049, 1057 (1979).2 The capitalized
interest on these loans is properly treated as part of the
principal of this indebtedness. See Allan v. Commissioner, 86
2
Subsequent to the decision in Minnis v. Commissioner, 71
T.C. 1049 (1979), which dealt specifically with loans under an
annuity contract, Congress enacted sec. 72(e)(4), which generally
treats loans under annuity contracts as taxable distributions.
Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248,
sec. 265(a), 96 Stat. 544. Loans under life insurance contracts
and endowment contracts (other than modified endowment contracts)
are excepted from this treatment. See sec. 72(e)(5)(A)(i).
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T.C. 655, 661-667 (1986)(advances for interest that were added to
the nonrecourse mortgage principal, pursuant to the terms of the
mortgage, constituted a true debt obligation), affd. 856 F.2d
1169 (8th Cir. 1988).
When petitioners’ policies terminated, their policy loans,
including capitalized interest, were charged against the
available proceeds at that time. This satisfaction of the loans
had the effect of a pro tanto payment of the policy proceeds to
petitioners and constituted income to them at that time. See
Minnis v. Commissioner, supra at 1056 (dictum); Caton v.
Commissioner, T.C. Memo. 1995-80; Dean v. Commissioner, T.C.
Memo. 1993-226. A contrary result would permit policy proceeds,
including previously untaxed investment returns, to escape tax
altogether and finds no basis in the law.
Petitioners argue that if the distributions on the
terminated insurance policies are taxable, then they should be
allowed an offsetting deduction for interest paid on the policy
loans. Deductions are a matter of legislative grace, and
petitioners bear the burden of showing that they are entitled to
the claimed deductions. Rule 142(a); INDOPCO, Inc. v.
Commissioner, 503 U.S. 79, 84 (1992). Section 163(a) generally
allows as an interest deduction all interest paid or accrued
within the taxable year on indebtedness. As an exception to this
general rule, however, in the case of a taxpayer other than a
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corporation, section 163(h) generally disallows any deduction for
“personal interest”, defined to include any interest expense that
does not fall within one of the five categories listed in section
163(h)(2). These categories may be described generally as (1)
trade or business interest; (2) investment interest; (3) interest
used to compute passive income or loss; (4) qualified residence
interest; and (5) interest payable on certain deferred estate tax
payments. Petitioners have presented no evidence to show that
the interest expenses in question fall within any of these five
enumerated categories. To the contrary, petitioner husband
testified at trial that he borrowed against his life insurance
policy “for no other reason than to live in the absence of a
job.” On brief, petitioners reiterate that this was their reason
for borrowing against their policies. We conclude, therefore,
that the interest expense in question was nondeductible personal
interest.
Relying on an exception in section 264(c)(3), petitioners
argue that their interest expenses are not subject to
disallowance under section 264(a)(2), which generally disallows
interest deductions on indebtedness incurred or continued to
purchase or carry a single premium life insurance, endowment, or
annuity contract.3 It appears that neither the general rule of
3
SEC. 264. CERTAIN AMOUNTS PAID IN CONNECTION WITH
INSURANCE CONTRACTS.
(continued...)
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section 264(a)(2) nor the cited exception applies to the case at
hand.4 Because we have concluded that the interest in question
3
(...continued)
(a) General Rule.--No deduction shall be allowed for--
* * * * * * *
(2) Any amount paid or accrued on indebtedness incurred
or continued to purchase or carry a single premium life
insurance, endowment, or annuity contract.
(3) Except as provided in subsection (c), any amount
paid or accrued on indebtedness incurred or continued
to purchase or carry a life insurance, endowment, or
annuity contract (other than a single premium contract
or a contract treated as a single premium contract)
pursuant to a plan of purchase which contemplates the
systematic direct or indirect borrowing of part or all
of the increases in the cash value of such contract
(either from the insurer or otherwise).
* * * * * * *
(c) Exceptions.--Subsection (a)(3) shall not apply to any
amount paid or accrued by a person during a taxable year on
indebtedness incurred or continued as part of a plan referred to
in subsection (a)(3)--
* * * * * * *
(3) if such amount was paid or accrued on indebtedness
incurred because of an unforeseen substantial loss of income
or unforeseen substantial increase in his financial
obligations * * *.
4
There is no evidence in the record that the loans in
question were “incurred or continued to purchase or carry” single
premium life insurance or endowment contracts, within the meaning
of sec. 264(a)(2). Moreover, the exception contained in sec.
264(c)(3) pertains only to plans referred to in sec. 264(a)(3),
which specifically excludes single premium contracts.
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was nondeductible personal interest under section 163(h),
however, the issue is moot.
We hold, therefore, that petitioners are taxable on
distributions from their terminated policies in the amount of
$38,117 and are not entitled to deductions for interest paid on
their policy loans.
Substantial Understatement of Income Tax
Respondent also determined an accuracy-related penalty under
section 6662 for a substantial understatement of tax for taxable
year 1995. Section 6662(a) imposes a 20-percent penalty on the
portion of an underpayment of tax attributable to, among other
things, a substantial understatement of income tax, which is
defined as an understatement that exceeds the greater of 10
percent of the tax required to be shown or $5,000. Sec.
6662(d)(1)(A). Petitioners reported total tax of $6,231 and
understated their tax in the amount of $10,756. Therefore, there
was a substantial understatement of tax.
Any understatement is reduced to the extent that it is
attributable to an item that was adequately disclosed and has a
reasonable basis, or for which there was substantial authority
for its tax treatment. Sec. 6662(d)(2)(B). Notwithstanding that
petitioners were issued Forms 1099-R indicating taxable
distributions upon termination of their insurance policies,
petitioners made no disclosure on their return of the relevant
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facts affecting their exclusion of these amounts from gross
income. See sec. 6662(d)(2)(B)(ii)(I). Petitioners have
established no substantial authority for excluding these amounts
from income.
Accordingly, we sustain respondent’s imposition of the
accuracy-related penalty.
To reflect the foregoing,
Decision will be entered for
respondent.