concurring: In this case, there are two taxable years before the Court, 1974 and 1975. The issues in each of the years is whether petitioner may deduct amounts paid as insurance premiums by Gulf and its domestic affiliates, to the extent that those payments were ceded to its wholly owned captive insurance company, Insco, and whether payments designated as premiums paid by the foreign affiliates of Gulf, which were ceded to Insco, and the claims paid by Insco to Gulf and its domestic affiliates represent constructive dividends to Gulf. The majority holds for petitioner on the second issue, and I agree with the reasoning of the majority. The majority holds for respondent on the first issue, and with respect to the taxable year 1974, bases its holding upon our prior decisions, with which I agree. However, with respect to the taxable year 1975, the majority adopts a new and novel theory, not argued, briefed, or even contemplated by the parties, with which I do not agree.
The theory of the majority can be stated as follows: “adequate” risk distribution, created by insuring the risks of independent third parties, somehow translates into risk transfer. No court has ever suggested such a theory, nor have the parties advanced such an argument. The majority holds that the addition of 2 percent of unrelated premiums is de minimis and would not satisfy the majority that the risk was transferred. However, in dicta, the majority goes on to state that if the premium income from unrelated parties is at least 50 percent, there would be sufficient risk transfer so that the arrangement would constitute insurance.
The theory of the majority is in direct conflict with all of the case law which holds that the arrangement of insurance requires a shifting of the risk and a distribution of the risk. The novel theory of the majority blurs the distinction between the concepts of shifting of risk and distribution of risk. However, such concepts cannot be equated because they have historically been held to be separate and distinct concepts.
In Helvering v. Le Gierse, 312 U.S. 531 (1941), the Supreme Court first stated the rule as follows:
We think the fair import of subsection (g) is that the amounts must be received as the result of a transaction which involved an actual “insurance risk” at the time the transaction was executed. Historically and commonly insurance involves risk-shifting and risk-distributing. That life insurance is desirable from an economic and social standpoint as a device to shift and distribute risk of loss from premature death is unquestionable. That these elements of risk-shifting and risk-distributing are essential to a life insurance contract is agreed by courts and commentators. See for example: Ritter v. Mutual Life Ins. Co., 169 U.S. 139; In re Walsh, 19 F. Supp. 567; Guaranty Trust Co. v. Commissioner, 16 B.T.A. 314; Ackerman v. Commissioner, 15 B.T.A. 635; Couch, Cyclopedia of Insurance, Vol. I, § 61; Vance, Insurance, §§ 1-3; Cooley, Briefs on Insurance, 2d edition, Vol. I, p. 114; Huebner, Life Insurance, Ch. 1. Accordingly, it is logical to assume that when Congress used the words “receivable as insurance” in § 302(g), it contemplated amounts received pursuant to a transaction possessing these features. Commissioner v. Keller’s Estate, supra; Helvering v. Tyler, supra; Old Colony Trust Co. v. Commissioner, 102 F.2d 380; Ackerman v. Commissioner, supra. [Helvering v. Le Gierse, 312 U.S. at 539-540.]
The distinction between risk shifting and risk distributing is most succinctly described in the following quotation from an early case, Commissioner v. Treganowan, 183 F.2d 288 (2d Cir. 1950), which has been uniformly followed by the Tax Court and other courts:
“Insurance” is not defined by statute, and Treasury interpretation of the term has never gone beyond a statement that § 811(g) is applicable to “insurance of every description, including death benefits paid by fraternal beneficial societies operating under the lodge system.” Treas. Reg. 105, § 81.25, 26 C.F.R. 81.25. In deciding whether the $20,000 paid to decedent’s widow is insurance within the statutory meaning, the Tax Court looked, rather naturally, to the test announced in the leading case of Helvering v. Le Gierse, 312 U.S. 531, 539, 61 S.Ct. 646, 649, 85 L.Ed. 996, that “historically and commonly insurance involves risk-shifting and risk-distributing.” * * *
* * * As a critical commentator on the decision below well states it: “Risk shifting emphasizes the individual aspect of insurance: the effecting of a contract between the insurer and insured each of whom gamble on the time the latter will die. Risk distribution, on the other hand, emphasizes the broader, social aspect of insurance as a method of dispelling the danger of a potential loss by spreading its cost throughout a group. By diffusing the risks through a mass of separate risk shifting contracts, the insurer casts his lot with the law of averages. The process of risk distribution, therefore, is the very essence of insurance.” Note, The New York Stock Exchange Gratuity Fund: Insurance That Isn’t Insurance, 59 Yale L.J. 780, 784.
[Commissioner v. Treganowan, 183 F.2d at 290-291.]
The distinction between risk shifting and risk distributing was also recognized in Crawford Fitting Co. v. United States, 606 F. Supp. 136 (N.D. Ohio 1985). That is the only captive insurance case in which a court analyzed both concepts. The District Court applied the definitions contained in Commissioner v. Treganowan, supra. It held that the payments were deductible as insurance premiums because there were both a shifting of risk and a distribution of risk. Some of the more pertinent quotations from that opinion are as follows:
“Insurance” is not defined under the Internal Revenue Code. The Supreme Court, however, has stated that elements of risk-shifting and risk-distributing, historically and commonly, have been considered ordinary indicia of insurance. Helvering v. Le Gierse, 312 U.S. 531, 61 S.Ct. 646, 85 L.Ed. 996 (1941).
Where elements of risk-shifting and risk-distributing are absent from an insurance contract, the fundamental aspects of an insurance agreement are lacking. See Steere Tank Lines, Inc. v. U.S., 577 F.2d 279 (5th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 634 (1979). In that case, the Court stated that “a taxpayer who establishes a reserve in an effort to ensure against future losses is not entitled to a deduction at the time the reserve is established or funded. A deduction is proper when the liability becomes fixed.” Id. at 282. Accordingly, the Court found that where there was no shifting or genuine pooling of risks under the insurance agreement before it, plaintiff’s payment of money into a contract- premium account, from which were paid all accident claims against the taxpayer, was not an insurance premium deductible as a business expense, but rather a nondeductible reserve for accident claims. See also Spring Canyon Coal Co. v. Commissioner, 43 F.2d 78 (10th Cir. 1930), cert. denied, 284 U.S. 654, 52 S.Ct. 33, 76 L.Ed. 555 (1931) (Corporation’s payments into self-insurance reserve fund held not deductible as an “ordinary and necessary business expense”). A taxpayer cannot “deduct as an expense an amount which he fears he may some day be called upon to spend,” such as self-insurance. See Id. at 80, citing Appeal of Pan-American Hide Co., 1 B.T.A. 1249 (1925).
The fundamental issue in the case at bar, then, is whether the payment made by the plaintiff Crawford Fitting Company to the Constance Insurance Company, characterized by the plaintiff as an insurance premium, was in fact an insurance premium deductible under § 162, or was, as the defendant contends, a reserve held by the plaintiff Crawford Fitting Company as self-insurance to cover contingent losses.
[Crawford Fitting Co. v. United States, 606 F. Supp. at 140. Fn. refs, omitted.]
The Court of Appeals for the 10th Circuit in Beech Aircraft Corp. v. United States, 797 F.2d 920 (10th Cir. 1986), described the difference between risk shifting and risk distributing as follows:
In Helvering v. Le Gierse, the Supreme Court observed that “[hjistori-cally and commonly insurance involves risk-shifting and risk-distributing.” 312 U.S. 531, 539, 61 S.Ct. 646, 649, 85 L.Ed. 996 (1941) (citing, inter alia, Ritter v. Mutual Life Insurance Co., 169 U.S. 139, 18 S.Ct. 300, 42 L.Ed. 693 (1898)). “Risk-shifting” means one party shifts his risk of loss to another, and “risk-distributing” means that the party assuming the risk distributes his potential liability, in part, among others. An arrangement without the elements of risk-shifting and risk-distributing lacks the fundamentals inherent in a true contract of insurance. See Steere Tank Lines, Inc. v. United States, 577 F.2d 279, 280 (5th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1424, 59 L.Ed.2d 634 (1979); Commissioner v. Treganowan, 183 F.2d 288, 291 (2d Cir.), cert. denied, 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625 (1950). * * * [Beech Aircraft Corp. v. United States, 797 F.2d at 922.]
The Court of Appeals for the Ninth Circuit, in affirming our opinion in Clougherty Packing Co. v. Commissioner, 84 T.C. 948 (1985), affd. 811 F.2d 1297 (9th Cir. 1987) discussed both concepts as follows:
Shifting risk entails the transfer of the impact of a potential loss from the insured to the insurer. If the insured has shifted its risk to the insurer, then a loss by or a claim against the insured does not affect it because the loss is offset by the proceeds of an insurance payment. See Beech Aircraft, 797 F.2d at 922; Treganowan, 183 F.2d at 291; O’Brien & Tung, Captive Off-Shore Insurance Corporations, 31 N.Y.U. Inst. 665, 683-84 (1973). Distributing risk allows the insurer to reduce the possibility that a single costly claim will exceed the amount taken in as a premium and set aside for the payment of such a claim. Insuring many independent risks in return for numerous premiums serves to distribute risk. By assuming numerous relatively small, independent risks that occur randomly over time, the insurer smoothes out losses to match more closely its receipt of premiums. See Beech Aircraft, 797 F.2d at 922; Treganowan, 183 F.2d at 291. Risk distribution incorporates the statistical phenomenon known as the law of large numbers. This law is reflected in the financial world by the diversification of investment portfolios and in the day-to-day world by the adage “Don’t put all your eggs in one basket.” See T. Wonnacott & R. Wonnacott, Introductory Statistics for Business & Economics 31-32, 54-55 (1972).5 [Clougherty Packing Co. v. Commissioner, 811 F.2d at 1300.]
The majority in the instant case should have followed the example of the Court of Appeals for the Ninth Circuit when it affirmed this Court in Clougherty, i.e., there has been no shifting of risk; therefore, an analysis of distribution of risk is unnecessary.
The most recent discussion by the Tax Court emphasizing the distinction between risk shifting and risk distributing is Anesthesia Service Medical Group v. Commissioner, 85 T.C. 1031 (1985), affd. 825 F.2d 241 (9th Cir. 1987). We described the distinction as follows:
Expenditures are deductible as insurance expenses, however, only if a true insurance arrangement exists. Clougherty Packing Co. v. Commissioner, 84 T.C. 948 (1985); Carnation Co. v. Commissioner, 71 T.C. 400 (1978), affd. 640 F.2d 1010 (9th Cir. 1981). An insurance arrangement, in turn, necessarily involves both the shifting and the distributing of risk. Helvering v. Le Gierse, 312 U.S. 531, 539-540 (1941); Commissioner v. Treganowan, 183 F.2d 288, 290 (2d Cir. 1950); Tighe v. Commissioner, 33 T.C. 557, 564 (1959).
“Risk shifting emphasizes the individual aspect of insurance: the effecting of a contract between the insurer and insured each of whom gamble on time the * * * [loss] will * * * [occur]. Risk distribution, on the other hand, emphasizes the broader, social aspect of insurance as a method of dispelling the danger of a potential loss by spreading its costs throughout a group. By diffusing the risks through a mass of separate risk shifting contracts, the insurer casts his lot with the law of averages. * * * [Commissioner v. Treganowan, 183 F.2d at 291.]”
Thus, there can exist no risk distribution without risk shifting. * * *
[Anesthesia Service Medical Group v. Commissioner, 85 T.C. at 1038-1039.]
The case law set forth above has uniformly held that, in order for insurance to exist, risk transfer and risk distribution must be present. The case law has consistently treated risk transfer and risk distribution as two separate and distinct concepts. Nonetheless, the majority, citing no authority, concludes that risk distribution which includes third-party risks may be equivalent to risk transfer. Such a holding does violence to the principles of the entire line of cases emanating from Le Gierse, decided by the Supreme Court in 1941.
The majority opinion, in addition to being contrary to all of the case law, is contrary to the record made in this case. The transcript on this issue was 416 pages in length, 215 of which covered the testimony of expert witnesses whose opinions are contrary to the theory of the majority. Petitioner offered no expert witnesses. Respondent’s expert witnesses were Dr. Irving Plotkin and Mr. Richard Stewart. They submitted written reports and testified at length on direct examination. There was considerable cross-examination. As the trier of fact, I found their testimony to be credible, convincing, and unassailable. Furthermore, I asked numerous questions which they answered to my satisfaction. I can find nothing in the entire record to cast any doubt on their testimony. Their opinions unequivocally draw the distinction between risk distribution and risk transfer, and emphasize that risk distribution cannot be equated with risk transfer.
The majority, nevertheless, states in note 14 on page 1027:
Without expert testimony we decline to determine what proportion of unrelated premiums would be sufficient for the affiliated group’s premiums to be considered payments for insurance. However, if at least 50 percent are unrelated, we cannot believe that sufficient risk transfer would not be present. This anticipated sharing of premiums paid by unrelated insureds is similar in concept to a mutual insurance arrangement. See, e.g., Rev. Rui. 80-120, 1980-1 C.B. 41; Rev. Rul. 78-338, 1978-2 C.B. 107.
I am at a loss to understand how such a statement can be made. The footnote implies that there was no expert testimony presented to me, which implication is contrary to the record in this case. Not only was expert testimony offered, but the experts who testified were Dr. Plotkin and Mr. Stewart. They are the only experts whose testimony this Court and other courts have adopted.
Dr. Plotkin is a vice president of Arthur D. Little, Inc., and a director of its valuation subsidiary. He holds a B.S. degree in economics from the Wharton School (University of Pennsylvania) and a Ph.D. in mathematical economics from the Massachusetts Institute of Technology, where he taught computer science and finance. He has presented numerous papers in several fields of economics and regulation before various academic societies, professional organizations, and industrial associations, and has served as an editorial reviewer for the Journal of the American Statistical Association, the Journal of Industrial Economics, and the Journal of Risk and Insurance. His published papers and monographs include “Risk/Return: U.S. Industry Pattern” (Harvard Business Review); “Rates of Return in the Property and Liability Insurance Industry: A Comparative Analysis” (Journal of Risk and Insurance); The Consequences of Industrial Regulation on Profitability, Risk Taking, and Innovation; and Torrens in the United States.
Dr. Plotkin’s expert report contains the following:
the concept and operation of the principles of risk distribution are independent of and unrelated to the concept of risk transfer.
* * * * its * *
To have a true transfer of risk, another risk-bearer must replace the insured. To speak of a transfer of risk to a fund or reserve established by the insured is merely to describe “self-insurance.” A captive insurance subsidiary, such as Insco, represents a recognized form of funding risk retention or self-insurance. * * * there is no dispute that a captive insurance company represents a device for funding retained risks.
* * * * * * *
* * * whether * * * insurance was provided [to unrelated parties] does not in any way affect the fact that the transactions between the parent, its subsidiaries, and the captive did not provide insurance. The fact that a captive insurance company accepts the financial consequences of the risks of persons or firms unrelated to it by ownership, does not change the relationship between it and its affiliates from formalized, funded risk retention to insurance (risk transfer). By accepting third party business, the captive and its owners do not relieve themselves of the uncertainty stemming from their retention of their own risks. Rather they accept the uncertainty inherent in the third parties’ risks in addition to those inherent in their own risks.
Dr. Plotkin’s expert report clearly states that the existence of third-party risks does not translate into transfers of risk from Gulf and its domestic affiliates to Insco. Simply put, a transfer of risk does not occur by reason of adequate distribution of risk created by the presence of the insured risks of independent third parties. The majority directly contradicts Dr. Plotkin’s expert report and offers absolutely no explanation for its complete disregard of it.
We adopted the opinion of Dr. Plotkin in Humana u. Commissioner, 88 T.C. 197 (1987), and he likewise rendered similar opinions which were adopted in Beech Aircraft Corp. v. United States, an unreported case (D. Kan. 1984, 54 AFTR 2d 84-6173, 84-2 USTC par. 9803), affd. 797 F.2d 920 (10th Cir. 1986); Stearns-Roger Corp. v. United States, 577 F. Supp. 833 (D. Colo. 1984), affd. 774 F.2d 414 (10th Cir. 1985); and Mobil Oil Corp. v. United States, 8 Cl. Ct. 555 (1985). He testified before me that, with respect to the subject matter involved, he had spent 500 to 1,000 hours in research. The bibliography accompanying his expert report lists 22 books, 7 monographs, and 55 articles. The majority cites 1 Supreme Court case,1 4 books, 4 articles, and 1 private letter ruling for various statements. However, the majority does not cite any of these as authority for its theory.
Mr. Richard Stewart also testified on behalf of respondent. We likewise adopted his opinion in Humana and he has imposing credentials. Mr. Stewart was graduated from West Virginia University in 1955, where he was President of the student body and the holder of the highest academic record in the history of the institution. As a Rhodes Scholar at Queen’s College, Oxford, he was president of the student body, and of the law society, and received a B.A. degree in jurisprudence, with congratulatory first class honors, in 1957. In 1959, he was graduated, cum laude, from Harvard Law School. From 1967 to 1970, he was Superintendent of Insurance of New York State, and in 1970, he was president of the National Association of Insurance Commissioners. From 1971 to 1972, he was senior vice president and general counsel of First National City Bank and its parent, First National City Corp., now Citibank and Citicorp, and a member of the policy committee of both corporations. He was also a director of General Reinsurance Corp. From 1973 to 1981, he was senior vice president and chief financial officer of the Chubb Corp. and of its subsidiaries and senior vice president and director of Chubb & Son, Inc. His responsibilities included personal lines underwriting, surety bonding, financial institutions underwriting, corporate finance, investments, and various staff functions. From 1979 to mid-1981, he was also a founding governor of the New York Insurance Exchange. Since mid-1981 he has been chairman of Stewart Economics, Inc., a consulting firm specializing in the insurance business. He is the author of Reason and Regulation (1972) and Insurance and Insurance Regulation (1980) and co-author of Automobile Insur-anee. .. For Whose Benefit? (1970), and Medical Malpractice (1977).
Mr. Stewart’s expert report, submitted to me at trial, contains the following:
For there to be insurance, in both its textbook and its practical business sense, there must be transfer of risk, that is, a shifting of the financial consequences of an event, where the event or its financial consequences, or both, are uncertain at the time the insurance arrangement is made. In short, insurance involves the transfer of financial risk. *******
* * * what it all comes down to is whether there was transfer of financial risk. There was not. The reason is that Gulf owned Insco.
In response to questions at trial concerning an example of a parent which owned 100 percent of a captive, which insured third-party risks, Mr. Stewart testified that there could be no transfer of risk from the parent to the wholly owned captive.
The only two experts who testified before me in the instant case agreed that there was no shifting of risk and that the presence of third-party risks was not relevant in determining whether there had been a shifting of risk from Gulf and its domestic affiliates to Insco. Because there was no transfer of risk, the case should be decided on that basis under the authority of our prior opinions in Humana, Clougherty, and Carnation Co. v. Commissioner, 71 T.C. 400 (1978), affd. 640 F.2d 1010 (9th Cir. 1981). The new and novel theory of the majority reaches the same result with respect to the taxable year 1975. However, its application will lead to incorrect results when there is a higher percentage of insured risks of independent third parties. More importantly, this theory is in direct conflict with the written reports and testimony of the eminently qualified experts who testified before me and in other trials.
Furthermore, the theory of the majority, in addition to being contrary to the case law and the expert reports and testimony, is seriously flawed in its reasoning. The majority attempts to explain how risk distribution, created by the presence of the insured risks of third parties, is somehow transformed into risk transfer on pages 1026-1027:
The premium allocable to each insured contributes to the payment of aggregate losses whether or not that insured actually suffers any loss. * * *
* * * When a sufficient proportion of premiums paid by unrelated parties is added, the premiums of the affiliated group will no longer cover anticipated losses of all of the insureds; the members of the affiliated group must necessarily anticipate relying on the premiums of the unrelated insureds in the event that they are “the unfortunate few” and suffer more than their proportionate share of the anticipated losses.
Thus, when the aggregate premiums paid by the captive’s affiliated group is insufficient in a substantial amount to pay the aggregate anticipated losses of the entire group, * * * [r]isk distribution and risk transfer would be present * * *
[Fn. refs, omitted.]
It appears that the majority equates risk transfer with the ability of the affiliated group to use the premium income of the unrelated parties to pay for its losses. If the premium allocable to each insured contributes to the payment of aggregate losses, it would seem that the logical conclusion should be that the affiliated group has shifted its risk to the extent of unrelated premiums. For example, if the unrelated parties account for 25 percent of the premium income, it would seem that the affiliated group has shifted its risk to the extent of 25 percent. However, under the majority’s theory, if the aggregate premiums paid by the corporations affiliated with the captive are “sufficient” in a “substantial” amount to pay the aggregate anticipated losses of all of the insureds there is no transfer of risk, but if the aggregate premiums paid by the corporations affiliated with the captive are “insufficient” in a “substantial” amount to pay the aggregate anticipated losses of the entire group, there is 100-percent transfer of risk. I question why, under the majority’s theory, some magical percentage of unrelated premium is critical to transform risk distribution into risk transfer.
Finally, the analysis of the majority is incomplete in that it fails to consider the possibility that the unrelated parties may be “the unfortunate few” and suffer more than their proportionate share of the anticipated losses. In this instance, premium income of the affiliated group may be used to cover the losses of the unrelated parties. For example, assume the affiliated group pays $50 of premiums to the captive and that the captive also receives $50 of premiums from unrelated parties. If the affiliated group incurs $60 of losses, the affiliated group will be able to use $10 of the premiums of the unrelated parties to cover its losses. On the other hand, if the unrelated parties incur $60 of losses, the unrelated parties will be able to use $10 of premiums of the affiliated group to cover its losses. This scenario illustrates the point contained in Dr. Plotkin’s expert report that by accepting third-party business, the captive and its owners accept the uncertainties inherent in the third parties’ risks. If we examine the whole picture and not just a portion of it, the theory of the majority does not withstand scrutiny.
I do not question the power of the Court to adopt a new theory. However, even ignoring my analysis above, I question the wisdom of adopting such a new and novel theory, which heretofore has never been considered, when neither party has been given an opportunity to brief the merits, if any, of the theory. Respondent has ably refuted petitioner’s claim that the payments in issue constituted insurance premiums. We should not assume that he has no argument against the new and novel theory advanced by a majority of the Court. More importantly, the majority can only define and describe its theory in generalities. The theory of the majority will undoubtedly have a major impact, and I question the sagacity of adopting such a theory sua sponte. Indeed, this Court should heed the admonition of the Court of Appeals for the Fifth Circuit in Brooks v. Commissioner, 424 F.2d 116 (5th Cir. 1970), revg. 50 T.C. 927 (1968), when it said:
The Tax Court based its decision on a novel theory * * * which was not raised, briefed or argued by either party. * * * In the usual circumstances we would reverse and remand so that * * * both parties may be given an opportunity to brief and argue the merits of the new theory. * * * [424 F.2d at 119.]CHABOT and COHEN, JJ., agree with this concurring opinion.
While the Supreme Court in Le Gierse expressly stated that insurance must exhibit both the shifting and the distributing of risk, the resolution of that case depended only on the absence of risk shifting. Here, too, we need not consider whether Clougherty’s captive insurer arrangement exhibited risk distribution because we conclude that Clougherty did not shift its risk.
The quotation is not original with the Supreme Court, but is, instead, from G. Couch, Cyclopedia of Insurance Law, sec. 1:3 (2d ed. 1959).