dissenting:
Upon a careful reading of Economy Finance Corp. v. United States, 501 F. 2d 466 (7th Cir. 1974), cert. denied, 420 U.S. 947 (1975), I find it applies the test in IRC § 801 (a), defining a Life Insurance Company in a sound and persuasive fashion. To avoid needless expansion of these remarks, I incorporate herein the analysis of the panel majority by reference so far as pertinent here. Were they less convincing than they are — unless plainly wrong — our respect for stare decisis and our dislike for going into conflict with another court should have carried the day. The objectionable consequences of conflicting lines of decisions in Federal tax cases are fully set forth in the Preliminary Report of the Commission on Revision of the Federal Court Appellate System, App. IV. This deals with the “Relitigation Policy” attributed to defendant, but relitigation by diverse taxpayers pursuing a common scheme or plan of tax avoidance is just as Objectionable.
Defendant, with the authority of the Seventh Circuit behind it, would “impute” to plaintiff reserves under H & A policies it has 'arranged to have ostensibly carried for it by others, though in reality it bears the risk of loss itself. When such reserves are so “imputed” the plaintiff fails to pass the 50% test and is not entitled to the special advantages enjoyed by life insurance companies. As the Seventh Circuit shows, non-imputation completely frustrates the purpose Congress has in mind in prescribing the test. The contrary view is simply another instance of stating: “we see what you mean, Congress, but you said it wrong.” To a simple, uncomplicated mind, the imputation is fully justified by the ancient maxim: “Qui facit per odium, facit per seP Plaintiff maintains the reserves for purposes of the 801 (a) test, though for no other purposes, because it has arranged, itself or through its 'affiliates, and using the economic leverage they jointly possess, to have these reserves available to satisfy *617tke right the H & A policy holders possess to have their risks covered by legally acceptable reserves.
EINDINGS 0E PACT
The court, having considered the evidence, the decision and findings of Trial Judge Lloyd Fletcher, and the briefs and argumente of counsel, makes findings of fact as follows:
General Baelcgroimd
1. Plaintiff was incorporated on August 8, 1955, under the statutes of the State of Missouri applicable to the organization of life insurance companies. It is empowered by its Articles of Incorporation and authorized by the insurance authorities of the State of Missouri to engage in the business of issuing contracts insuring or reinsuring against death or disability, and has carried on such business exclusively.
2. Plaintiff is a wholly owned subsidiary of ITT Aetna Corporation, a second tier subsidiary of International Telephone and Telegraph Corporation (IT&T). Prior to August 31,1964, plaintiff’s capital stock was owned by the Aetna Finance Company. On that date, Aetna Finance Company sold all of its assets (including plaintiff’s stock) to IT&T, which subsequently transferred those assets to ITT Aetna Corporation as a contribution to capital. (References made hereafter to “Aetna” refer either to Aetna Finance Company and its subsidiaries (other than plaintiff) or ITT Aetna Corporation and its subsidiaries (other than plaintiff) as appropriate.) Aetna has at all relevant times been engaged in the business of making consumer loans through subsidiaries which, during the years in issue, operated over 200 finance company offices in approximately 25 states.
3. Plaintiff was originally incorporated under the name American Universal Life Insurance Company, and operated under this name during the years in issue. Its name was changed to ITT Life Insurance Company in 1966, to ITT Hamilton Life Insurance Company in 1967, and finally to Penn Security Life Insurance Company on December 29, 1972.
*6184. Plaintiff’s principal business, until approximately 1966-consisted of reinsuring death and disability risks underwritten by unrelated insurance companies in respect of credit life insurance policies issued by those companies to Aetna and its loan customers. By 1967, plaintiff’s volume of business increased to the point at which it became more profitable for it to write its own credit insurance policies than to reinsure other companies. Plaintiff today writes a complete portfolio of the standard forms of ordinary and term insurance contracts including individual and group life, accident and health, and surgical coverage, as well as credit insurance for borrowers and installment purchasers.
5. Credit life insurance is usually sold as part of another and more prominent transaction, namely, a loan of money or an installment sale of tangible personal property. Its primary function is to provide a sure, quick, and uncomplicated means for liquidating the balance due on the loan or installment sale in the event of the death of the borrower or purchaser and, where health and accident coverage is combined with credit life insurance to also pay the borrower’s monthly installment while he is unable to work. It is generally written for a term which is coextensive with the contractual term of the related indebtedness. Occasionally a company may write a credit insurance policy with a term of as long as 5 years, but the average in the industry is two to three years in most instances.
6. Credit insurance may be written under an individual insurance policy issued directly to the insured debtor, or under a group policy, in which case the beneficiary-creditor is the policy holder and the individual insured debtor simply receives a certificate of insurance as evidence of coverage under the group policy. In either case, the creditor is the primary beneficiary to the extent of the unpaid balance of the indebtedness at the time of the insured debtor’s death or disability.
7. Most of the credit insurance policies issued to Aetna and its loan customers during the years in issue (1963, 1964, and 1965) were written by three insurance companies: Old Eepublic Life Insurance Company, of Chicago, Illinois (Old Eepublic), Pilot Life Insurance Company of Greensboro, *619North. Carolina (Pilot), and National Fidelity Life Insurance Company of Kansas City, Missouri (National Fidelity). (Old [Republic, Pilot, and National Fidelity are hereinafter sometimes referred to as “the ceding companies”). To a much lesser extent, credit insurance policies were also issued to Aetna and its loan customers by Insurance City Life Company (Insurance City) and the American Bankers Life Assurance Company of Florida (American Bankers). Plaintiff had reinsurance agreements or “treaties” in force with each of the above companies during the years in issue.
8. All credit life insurance policies and certificates issued by the ceding companies to Aetna and its loan customers provided for the payment of the entire premium (including the disability premium where accident and health coverage was included in the policy or certificate) at the inception of the policy term. When a disability premium under a single premium policy is first paid by the insured, it is wholly “unearned,” in the sense that the entire premium is attributable to the unexpired portion of the policy. As the term of the policy expires with the passage of time, a proportionate part of the premium becomes “earned;” i.e., attributable to insurance protection provided during the expired portion of the policy.
9. Unlike insurance such as fire, public liability, and similar types of casualty insurance, credit life insurance contracts, including those reinsured by plaintiff (both with and without disability benefits), cannot be canceled by the insurer during the term for which they are written. However, the policies issued by the ceding companies to Aetna and its loan customers typically provided that insurance thereunder would terminate prior to the end of the term of the policy (usually, the maturity date of the indebtedness): (1) by renewal, refinancing, or repossession of the collateral for the indebtedness in connection with which the insurance was issued, (2) upon discharge of such indebtedness by payments by or on behalf of the debtor to the creditor, (3) by the indebtedness or any portion thereof being charged off or being required to be charged off by the laws applicable to the creditor, and (4) by cancellation of the insurance by the insured debtor. Under any of these circumstances, the *620policy typically provided for a refund of tlie unearned portion of premiums paid by the insured debtor in accordance with a prescribed formula, usually the Eule of T8.
10. Under the Eule of 78 or “sum-of-the-digits” method, the unearned premium is computed by applying changing fractions each year (or month, if unearned premiums are determined monthly) to the premium paid by the insured. The numerator of the fraction changes each year (or month) to a number which corresponds to the sum of the digits of the remaining unexpired term (years or months) of the policy, and the denominator, which remains constant, is the sum of all the years’ (or months’) digits corresponding to the entire term of insurance coverage. For example, if an insured debtor paid a $300 premium for disability benefits at the inception of a three-year single premium policy, he would be entitled to a refund under the Eule of 78 of $300 a 7 X$300 ) if the policy was terminated at the beginning \3+2+1 / of the first year, $150 ^g^^pjX$300^ if the policy was terminated at the beginning of the second year, and $50 ( o i tX$300 ) if the policy was terminated at the begin-\3-|-2+1 / ning of the third year.
11. The casualty insurance industry has historically viewed the unearned premium reserve as that portion of premiums paid by policyholders that is attributable to the unexpired terms of outstanding policies and that would have to be refunded to policyholders if all policies in force were to be canceled as of the statement date. The concept of an unearned premium serves several functions with respect to accident and health insurance. Primarily, the unearned net premium represents funds that must be held to provide the cost of the insurance risk which has not yet expired proportionate to the period for which premiums have been paid in advance. Unearned loading charges, which are obtained by subtracting the unearned net premium from the total unearned gross premium reserve, constitute a solvency reserve for the payment of refunds and future expenses. Unearned premium reserves maintained by the ceding companies on *621credit accident and health insurance covering debtors of Aetna were computed under the Buie of 78 method, the same method normally used in determining the required refund to policy holders in the event of a premature termination of a policy. One result of including unearned loading charges in the unearned gross premium reserve is a heavy charge to surplus which sometimes prevents the ambitious or over-rapid expansion of a company that might well result in its ultimate insolvency. Another result is that it imposes in an indirect manner additional capital requirements on companies having larger amounts of business in force.
12. Generally speaking, where insurance coverage is provided, the premium payable by the insured under the policy is due and payable at the outset of coverage. Whether this requirement obtains as between a ceding company and its reinsurer company depends on the provisions of the reinsurance treaty between them.
13. More than half of the dollar Aralue of benefits rein-sured by plaintiff during the years in issue under its treaties with the above companies were life insurance benefits. Some of the policies covered under plaintiff’s reinsurance treaties were credit life insurance policies providing only death benefits. The remaining policies were credit life insurance policies combined with accident and health coverage, but the latter coverage never exceeded the amount of life insurance benefit provided under the policy (normally, the amount of the loan). With but one exception, none of the covered policies provided only credit accident and health insurance.
The Life Insurance Company Issue
14. For each of its taxable years ended December 31,1963, 1964, and 1965, the mean of plaintiff’s life insurance reserves at the beginning and end of each year comprised more than 50 percent of the mean of its total reserves at the beginning and end of each year, as such reserves were reported on the annual statements submitted by plaintiff to the Missouri Division of Insurance and on the income tax returns filed by plaintiff for those years. The ratio of plaintiff’s life insurance reserves to its total reserves under plaintiff’s view *622of the case and as computed on its income tax returns for 1963,1964, and 1965 was as follows:
Life Insurance Jan. 1,1908 Dec. 81, 1903 Mean
Reserves_ $556, 923. 00 $733, 027. 00 $644, 975. 00
Total Reserves_ 790, 108. 00 1, 092, 918. 49 941, 513. 28
Reserve Test Ratio
(l-s-2)_ 68.50%
Life Insurance Jan.l,196/f Dec. 31,196/, Mean
Reserves-. 733,027.00 806,698.00 769,862.50
Total Reserves_ 1, 092, 918. 49 1, 733, 125. 97 1, 413, 022. 23
Reserve Test Ratio
(l-f-2).-.... 54.48%
Life Insurance Jan. 1, I960 Dec. 81, i960 Mean
Reserves_ 806, 698. 00 7, 037, 233. 00 3, 921, 965. 50
Total Reserves_ 1, 733, 125. 97 7, 413, 108. 58 4, 573, 117. 28
Reserve Test Ratio
(1-5-2)_ 85.76%
15. The determination of the Commissioner of Internal Revenue that plaintiff was not a “life insurance company” as defined in Section 801 of the Code in 1963,1964, and 1965 was based upon his inclusion in plaintiff’s “total reserves” of unearned gross premiums actually held by the ceding companies (i.e., Old Republic, Pilot, and National Fidelity) in respect of disability benefits under credit life insurance policies (combined with health and accident insurance) issued by those companies to Aetna and its loan customers. The amounts of “unearned premiums” added by the Commissioner of Internal Revenue to plaintiff’s “total reserves” as of December 31,1962,1963,1964, and 1965 were as follows:
Unearned Premiums Attributed to Plaintiff
From Dec. 81,1908 Dec. 81,1903 Dec. 81,1904 Dec. 81, I960
Old Republic_ $183, 342 $147, 375 $145, 833 $191, 416
Pilot_ 728, 821 782, 726 724, 445 829, 480
National Fidelity--- 413,973 495,288 570,083 773,670
Total_ 1,326,635 1,425,389 1,440,351 1,794,566
The Government now concedes that unearned premiums under the Old Republic Disability Reinsurance Treaty are not attributable to taxpayer for purposes of qualification as a life insurance company.
16. The unearned premiums attributed to plaintiff by the Commissioner of Internal Revenue as of December 31,1962, 1963, 1964, and 1965 were actually held by the ceding companies on those dates and were included in the unearned *623premium reserves shown on the annual statements which they submitted to the insurance authorities of the various states in which they did business. In recognition of their continuing obligations to their policyholders, the ceding companies were required, both from an actuarial standpoint and under state law, to establish such unearned premium reserves while they actually held the unearned premiums in order to have funds available to pay claims and refunds to their policyholders and to reflect the fact that they had received premiums from policyholders for insurance protection to be provided after the statement date. The annual statements of those companies, in which the unearned premiums which the Commissioner of Internal Revenue now seeks to include in plaintiff’s reserves were shown as unearned premiums of the ceding companies, were accepted by the insurance authorities in all the states in which the ceding companies did business.
The ceding companies maintained the unearned premiums attributed to plaintiff along with their other reserve funds in accordance with the applicable restrictions of state law, and they received the proceeds from their investments of such funds (interest, dividends, etc.) as their own income. Plaintiff did not obtain or use the unearned premiums reflected in the annual statements of the ceding companies, nor were such unearned premiums credited, set apart or made available to plaintiff. None of the ceding companies was owned or controlled, directly or indirectly, by plaintiff, Aetna, or IT&T.
17. The health and accident portion of the combined policies or certificates issued in connection with group policies were entirely separate insurance contracts which set forth a separate health and accident premium. However, it has been stipulated that credit accident and health insurance was never in fact sold without credit life insurance coverage and, except in one state, the two coverages were never sold as separate contracts. The life insurance reserves maintained by taxpayer on the life coverage were calculated without regard to any health and accident coverage written in combination therewith; conversely, the ceding companies ignored any combined life insurance coverage when they calculated and set up unearned premium reserves on the health and accident coverage.
*62418. Plaintiff Lad separate reinsurance treaties covering life insurance risks and disability insurance risks with each of the ceding companies during the years in issue. Under the disability reinsurance treaties, plaintiff agreed to reinsure 100 percent of the liability of each ceding company with respect to disability benefits included in credit life insurance policies issued to Aetna and its loan customers. The treaties provided for payment of a monthly reinsurance premium equal to 98 percent (89 percent under the Old Republic treaty) of the premiums earned with respect to credit accident and health insurance in force during the previous month. The following excerpts from the Pilot treaty are typical:
Article I.
* * * Pilot Life agrees to reinsure with [Taxpayer] one hundred per cent (100%) of the total of all Credit Accident and Health issued by Pilot Life covering the debtors of Aetna Finance Company. * * *, and [Taxpayer] agrees to accept such reinsurance automatically.
Article II.
1. The liability of [Taxpayer] on all reinsurances shall begin simultaneously with that of Pilot Life and in no event shall the reinsurance of [Taxpayer] be in foi’ce and binding unless the policy issued by Pilot Life is in force.
2. In all reinsurances the liability of [Taxpayer] shall cease when the liability of Pilot Life ceases.
Article III.
1. Reinsurance payments to [Taxpayer] shall be made on or before the twenty-fifth of each calendar month, on a monthly term basis, based on all accident and health insurance in force during the previous month on policies reinsured with [Taxpayer].
2. The premium payable in any month shall be ninety-eight per cent (98%) of the earned premiums the previous month for all accident and health policies reinsured hereunder. Earned premiums for any month on such policies are all premiums written during such month, less returned premiums on such policies during such month, plus unearned premium reserves on such policies at the beginning of the month, and less the unearned premium reserves on such policies at the end of such month.
*6253. From the reinsurance premium due [Taxpayer] shall be deducted and withheld by Pilot Life:
A. The following expenses which are assumed by [Taxpayer] :
(1) All premium, occupational and privilege taxes applicable to the insurance.
(2) The cost of policy forms.
(3) Any special claim expense incurred by Pilot Life in accordance with Section 3 of Article IV hereof, and
(4) Any commissions paid to or retained by agents for writing the insurance; and
B. The total of all claims paid under reinsured policies during the period for which the premium is due.
4. If, at the time established for making any premium remittance, the total of the deductions listed in the preceding Section of this Article exceeds ninety-eight per cent (98%) of the earned premium for the period covered, [Taxpayer] shall pay to Pilot Life the amount of such excess upon receipt of a statement of the amount of such excess.
5. If this agreement is terminated as to new insurance, Pilot Life shall nevertheless be liable to [Taxpayer] for payment of monthly reinsurance premiums until all premiums on policies reinsured with [Taxpayer] prior to the termination have been earned, and [Taxpayer] shall nevertheless be liable to Pilot Life for payment of all claims arising out of policies reinsured with [Taxpayer] prior to the termination. After all reinsurance premiums have been paid, [Taxpayer] shall pay Pilot Life the amount of any claims on such reinsured policies, which claims were paid by Pilot Life and not deducted from reinsurance premiums, upon receipt of a statement of the amount of any such claims.
Article IV.
1. [Taxpayer] shall be liable to Pilot Life for the benefits covered bv reinsurance hereunder to the same extent as Pilot Life is liable to the persons insured for such benefits and all reinsurance shall be subject to the terms and conditions of the policy under which Pilot Life is liable.
2. Whenever a claim is made under a policy that Pilot Life reinsured under this agreement, it shall be considered by [Taxpayer] to be a claim for the full amount of reinsurance on such policy and [Taxpayer] shall abide by the settlement made by Pilot Life and shall pay the full amount of reinsurance.
*6263. Any suit or claim may be tested or compromised on the part of Pilot Life and in case of reduction of the claim made upon Pilot Life, the claim made upon [Taxpayer] shall be reduced accordingly. Any special expense incurred by Pilot Life in defending or investigating any claim shall be borne by [Taxpayer].
19. Plaintiff’s disability reinsurance treaties with the ceding companies fell into the category of “reinsurance ceded”; i.e., they were solely contracts of insurance between two insurance companies (the “ceding company” and the “reinsurer”), and did not create any contractual obligation running from the reinsurer (plaintiff) to the policyholders of the ceding companies. Such reinsurance did not relieve the ceding companies of contractual liabilities to their policyholders, e.g., the obligation to pay benefits and to refund unearned premiums in the event of cancellation or other termination of a policy before the expiration of its full term. Consequently, the mere fact that the ceding companies obtained reinsurance from plaintiff under these treaties did not affect their responsibility, under state law or under actuarial principles, to set up an unearned premium reserve to reflect the unearned premiums actually held by those companies or policies covered bjr reinsurance treaties with plaintiff. Ceding companies, however, may obtain a credit on their annual statement forms for unearned premium reserves actually transferred to a reinsurer since, as explained by plaintiff’s expert, the liability for an unearned premium reserve “depends on whether you’ve got the money or not * * *”
20. An unearned premium reserve measures an insurance company’s reserve requirements by looking to premiums already paid by policyholders and then determining the portion of such premiums that represent payment for insurance to be provided after the statement date. Plaintiff was not required to establish an unearned premium reserve with respect to its reinsurance of the ceding companies because, as of each statement date, no portion of the reinsurance premiums received and held by plaintiff represented payment for insurance to be provided after the statement date; i.e., all such reinsurance premiums were fully earned.
21. Life insurance reserves may be measured prospectively as the difference between the present value of future claims *627expected to be paid and the present value of premiums to be received. Even if this prospective test had been applied to plaintiff’s disability reinsurance treaties with the ceding companies, under any reasonable assumption as to future claims, the present value of reinsurance premiums to be received under such treaties exceeded the present value of probable claims. Thus, measured either retrospectively or prospectively, plaintiff did not have any reserve obligation under its treaties with the ceding companies.
22. Plaintiff had no contingent obligation to refund reinsurance premiums received from the ceding companies since it received such premiums only after they had been fully earned. Nor did plaintiff have any obligation to refund premiums paid by policyholders of the ceding companies in the event of cancellation or other premature termination of policies issued by the ceding companies. Consequently, there was no need for plaintiff to establish an unearned premium reserve for the purpose of maintaining a fund available for the ref und of premiums.
23. Plaintiff also had a reinsurance treaty in force during the years in issue with Insurance City, which treaty covered both death and disability risks under credit life insurance policies issued by Insurance City to Aetna and its loan customers in the State of Ehode Island. All of the credit life insurance policies issued by Insurance City to Aetna and its loan customers (including those with disability benefits) provided for the payment of single premiums at the inception of the policy term on both life and accident and health coverages. Under its reinsurance treaty with Insurance City, plaintiff was entitled to receive the full disability premium collected by Insurance City for the entire policy term on policies covered under the treaty, less 10 percent of such premiums retained by Insurance City, in the month following receipt by Insurance City. Such reinsurance premiums were paid for reinsurance for the entire term of policies issued by Insurance City to Aetna and its loan customers during that month, and not merely for reinsurance actually provided by plaintiff during such month. Therefore, plaintiff maintained unearned premium reserves with respect to that portion of premiums received from Insurance City *628which, represented payment for reinsurance to be provided in the future.
24. The insurance business is regulated by the states. For example, the state insurance departments supervise policy forms, agency relationships, investments, accounting practices, reserves, and the general financial responsibility of insurance companies. State law and/or regulations direct insurance companies to set up reserves that are designed to preserve the solvency of those companies for the protection of policyholders.
25. For each of the years 1962,1963,1964, and 1965 plaintiff filed an annual statement with the Missouri Division of Insurance on the form prescribed by the National Association of Insurance Commissioners for life and accident and health companies. The annual statement is a record of the income and disbursements of an insurance company during the year on an accrual basis, as well as a balance sheet which reflects the solvency of the reporting insurance company at the end of the accounting period. The calendar year is the prescribed accounting period of all life insurance companies, including plaintiff.
26. Plaintiff’s annual statements for the years 1962, 1963, 1964, and 1965 did not reflect any unearned premium reserves with respect to policies issued by Old Kepublic, Pilot, and National Fidelity, or with respect to plaintiff’s reinsurance treaties with those companies. The only unearned premium reserves reflected on plaintiff’s annual statements for the above years were unearned premium reserves relating to plaintiff’s reinsurance treaty with Insurance City.
27. State insurance authorities monitor the adequacy of the reserves held by insurance companies within their jurisdictions by reviewing the annual statements submitted by those companies and by conducting a comprehensive audit at least once every three or four years. The examination in eludes a verification and evaluation of assets, the establishment of liabilities, and a general review of other records and procedures including the contracts and policies in force at the valuation date. If an insurance company did not properly report its liabilities as of the valuation date under examination, the examiners would recompute such liabilities in ac*629cordance with actuarial standards and governing state law and regulations.
28. Plaintiff was audited by the Missouri Division of Insurance in 1965 for the period from September 30, 1961, through December 31,1964. Plaintiff was also audited in 1969 with respect to the period from January 1,1965, through December 31, 1968, by the Missouri Division of Insurance with participation by examiners from the States of Maryland, Wyoming, and California. There was attached to the report of examination for the period September 30, 1961, through December 31,1964, a statement from the consulting actuaries of plaintiff as follows:
As Consulting Actuaries who aided in the preparation of the December 31, 1964 Financial Statement of American Universal Life Insurance Company, [now ITT Hamilton] we affirm that we determined the policy reserves listed below, and that the amounts thereof were computed in accordance with the terms of the outstanding policies and the Insurance Code of the State of Missouri, and that, based upon the records of the Company furnished to us, they are a true statement of the reserve liabilities of the Company as of December 31,1964.
1. Aggregate Reserve for Life Policies_$806, 698. 00
2. Aggregate Reserve for A. & H. Policies- 59, 613.48
29. The Missouri Division of Insurance did not require plaintiff to establish unearned premium reserves with respect to premiums received by the ceding companies for disability benefits provided by those companies under policies issued to Aetna and its loan customers or with respect to reinsurance premiums received by plaintiff under its disability reinsurance treaties with such companies. According to plaintiff’s expert witness, no state regulatory authority would impose an unearned premium reserve requirement on an insurance company where, as under plaintiff’s disability reinsurance treaties with the ceding companies, such company did not receive premiums for insurance to be provided in the future.
30. The premium charge for a life insurance contract is computed so as to cover all the contingencies the insurance company is likely to meet, and these contingencies are generally grouped into three elements, namely, mortality, interest, and “loading” profit and expenses). Mortality refers to that part of the premium which provides for the *630occurrence of the risk insured against while the second element takes into account the assumed interest to be earned by the company. The third element primarily covers profit and the cost incident to management of the company, such as salaries, rents, commissions, taxes, and other costs of doing business. In arriving at a premium charge, the first and second step is the computation of what is called a “net premium” which takes into account only the mortality and interest elements. To the net premium is then added an amount called “loading” which is calculated to provide for profit and expenses. The resulting premium, called the “gross premium,” is the premium charged to the policyholder.
31. The premimn charge for accident and health insurance coverage is computed similarly to a 'life insurance premium, except that the mortality element of a life insurance premium is replaced by the “morbidity” element of the accident and health premium (i.e., that part of the premium which provides for the occurrence of the risk of the insured becoming disabled because of accident or sickness).
32. Unearned premium reserves on casualty (including accident and health) insurance have traditionally been computed on an unearned gross premium basis; i.e., the reserve is calculated as a portion of the entire premium received from the policyholder, including the poi’tion charged to cover expenses and profits (“loading”). The computation of unearned premium reserves on an unearned gross premium basis stems from the historic practice of maintaining unearned premium reserves equal to the aggregate amount of premiums that would have to be refunded if all outstanding policies were canceled. However, the cost of carrying the insurance risk on an accident and health policy is the unexpired portion of the net premium charged to the policyholder. That part of the unearned premium reserve which represents the unexpired portion of the “loading” charge is not a true insurance reserve at all, but rather a solvency reserve or reserve for future expenses which in effect requires the reserving company to segregate part of its surplus until the policy has expired.
Life insurance reserves, in contrast to unearned gross premium reserves, are “risk only” reserves and do not include any portion of the loading charge made to the policyholder.
*63133. The unearned premium reserves of the ceding companies attributed to plaintiff were calculated on an unearned gross premium basis. As stipulated by the parties, the following “tabular morbidity reserves” represent the total “net premium” morbidity) element in the unearned gross premium reserves held by the ceding companies (including Old Eepublic) with respect to disability benefits included in credit life insurance policies issued by the ceding companies to Aetna and its loan customers:
Date Total Tabular Morbidity Deserves
December 31, 1962. $434, 213
December 31, 1963. 503, 279
December 31, 1964. 559, 401
December 31, 1965. 652, 489
However, in view of defendant’s concession that no unearned premiums (either net or gross) may be attributed to plaintiff from Old Eepublic (see finding 15, supra) the “net premiums” or “tabular morbidity reserves” in this paragraph have been restated by plaintiff’s actuary so as to remove “net premiums” held by Old Eepublic. Mr. E. Dean Forbes, A.S.A., the actuary who computed the original tabular morbidity reserves appearing in paragraph 57 of the Stipulation of Facts has made this recomputation, removing net premiums held by Old Eepublic, and leaving only net premiums held by Pilot, National Fidelity, and plaintiff (under its Insurance City treaty).
In accordance with said recomputation, it is found that the following “Tabular Morbidity Eeserves” represent the total “net premium” morbidity) element in the unearned
gross premium reserves reflected on the annual statements of Pilot, National Fidelity, and plaintiff (under the Insurance City Eeinsurance Treaty) on December 31, 1962, 1963, 1964, and 1965, respectively, with respect to credit accident and health insurance issued to loan customers of Aetna and its subsidiaries:
Date Total Tabular Morbidity Eeserves
December 31, 1962_ $378, 238
December 31, 1963_ 438, 390
December 31, 1964_ 494, 819
December 31, 1965_ 575, 216
*632The above “Tabular Morbidity Eeserves” were computed on the basis of the 1964 Commissioners’ Disability Table, a recognized morbidity table approved by the National Association of Insurance Commissioners.
34. Plaintiff qualifies as a “life insurance company” within the meaning of Section 801 of the Code for the years 1963 and 1965, even if unearned premium reserves of the ceding companies on disability benefits included in credit life insurance policies issued to Aetna and its loan customers are added to plaintiff’s “total reserves” for those years, if the attributed reserves are calculated on a net basis. Plaintiff also qualifies as a life insurance company for the year 1964 if attributed reserves are calculated on a net basis assuming, however, that plaintiff is entitled to included unpaid losses on credit life insurance in both the numerator and denominator of the life insurance company qualification formula in that year.
Plaintiff’s qualification ratio for each of the years in issue, based on a “net premium” attribution, is as follows:
Plaintiff’s Qualification Ratios Assuming Attribution of Net Premiums from Pilot and National Fidelity
Jan. 1,1963 See. SI, 1963 e e
Life Insurance Reserves— $556, 923 $733, 027 1> 05 - ^
Total Reserves_ 1, 036, 028 1, 302, 649 CO co 05 co
Qualification Ratio (l-r-2) . lo
Jan. 1,1964 Sec. 31,1964 s* S' 3
Life Insurance Reserves. 733, 027 806, 698 05
Total Reserves_ 1, 302, 649 1, 873, 862 00
Qualification Ratio (1-^-2) 00 • as
to-S' § 3 £ ^ § >-T • g
Life Insurance Reserves-. W 05 OO 05 co 05 co
Total Reserves_ © c0 05 LO iS co 00
Qualification Ratio (l-f-2) CO * as
35. Those credit life insurance policies issued by the ceding companies to Aetna and its loan customers which, included disability benefits are sometimes referred to in the insurance industry as life insurance contracts combined with accident and health insurance. They are conceptually identical to combined life, health and accident insurance contracts issued by insurance companies since the early part of this century, which provide payment of the face amount of policies in the *633event of death, or, if the insured becomes disabled, of installments of the face amount over a period of years.
36. The terms “cancellable” and “noncancellable” have definite 'and specific meanings in the insurance industry. The National Association of Insurance Commissioners has defined the term “noncancellable” as follows (NAIC, Report to the National Association of Insurance Commissioners Subcommittee on Definition of Non-Cancellable Insurance and Guaranteed Renewable Insurance 156 (1960) :
The terms “noncancellable” or “noncancellable and guaranteed renewable” may be used only in a policy which the insured has the right to continue in force by the timely payment of premiums set forth in the policy (1) until at least age 50, or (2) in the case of a policy issued after the age 44, for at least 5 years from its date of issue, during which period the insurer has no right to make unilaterally any change in any provision of the policy while the policy is in force.
Some accident and health policies are written for the life of the insured at a guaranteed annual premium. A reserve in addition to the unearned premium reserve must be maintained on such policies as a consequence of charging a premium for a benefit that costs increasingly more to provide as the insured grows older. This additional reserve is accumulated from premium payments and interest earnings that will not be needed to pay claims arising during the current policy year of the contract. The reserve is computed on the basis of recognized morbidity tables at an 'assumed rate of interest. An additional reserve is also required where the policy is written for some term which is shorter than the insured’s life where the premium charged provides a benefit that costs increasingly more to provide as the insured grows older. Neither Old Republic, Pilot, nor National Fidelity maintained an additional reserve in addition to the unearned premium reserve with respect to credit accident and health insurance covering debtors of Aetna and its subsidiaries.
Although there is no analogy in life insurance to the unearned gross premium reserve required in casualty insurance, a life insurance reserve may be roughly compared with the unearned net premium element in the unearned premium re*634serve because both, are computed on the basis of the actuarial cost of carrying the risk.
Plaintiff's Group Annuity Policy No. 101
37. On December 22,1965, plaintiff issued Group Annuity Contract No. 101 to the St. Louis Union Trust Company as Trustee of Pension Fund No. 6 of the International Telephone Eetirement Plan for Salaried Employees, which contract has remained outstanding and in effect to the present time. On or about December 22,1965, plaintiff received securities valued at $5,929,057.24 from the St. Louis Union Trust Company for the purchase of single premium annuities for certain retired individuals covered by the International Telephone Eetirement Plan for Salaried Employees which obligated plaintiff to pay annuities to such retired individuals (and their spouses, in some cases) under the terms of Group Annuity Contract No. 101. Prior to this transaction, no 'group annuity or individual annuity contracts had been purchased by IT&T, the St. Louis Union Trust Company, or any Trustee of any pension fund existing under the International Telephone Eetirement Plan for Salaried Employees from any insurance company or other person on the lives of the individuals covered under Group Annuity Contract No. 101.
38. Plaintiff maintained a reserve of $6,072,004 on December 31, 1965, with respect to its liabilities under Group Annuity Contract No. 101 on that date. Such reserve was computed on the basis of a recognized mortality table (1951 G.A.) and an assumed rate of interest (Sy2%), and was set aside to mature or liquidate future unaccrued claims arising under Group Annuity Contract No. 101.
Deficiency Reserves
39. The accepted definition of a deficiency reserve in the insurance industry is the amount by which the present value of the future premiums required (by statute) for a life insurance or annuity contract exceeds the present value of the future premiums and consideration actually charged for such contract.
40. By definition, there can be no deficiency reserve requirement with respect to a life insurance or annuity con*635tract once all premiums called for under such, contract have been paid. Thus, there can never be a deficiency reserve required with respect to a single premium life or annuity policy under which the entire premium is payable at the inception of the policy. All of the life and annuity policies reinsured or issued by plaintiff during the years in issue were single premium policies of this type. On an ordinary whole life insurance policy, the deficiency reserve required at the inception of the policy, if any, gradually diminishes as premiums are received by the company. Defendant now concedes this issue.
History of the Controversy
41.For each of the years 1963, 1964, and 1965, plaintiff timely filed with the District Director of Internal Eevenue at St. Louis, Missouri, a Federal income tax return on Treasury Form 1120L, TJ.S. Life Insurance Company tax return, and computed its taxable income and tax as a life insurance company according to Section 802 of the Code. The tax shown to be due on the returns filed for those years, as reported in the table below, was paid in full.
Tax Shown to be Due on Year Plaintiff's Return
1963_ $479, 356. 02
1964_ 377, 217. 70
1965_ 467, 266. 14
42.On August 18, 1967, plaintiff filed with the District Director of Internal Eevenue at St. Louis, Missouri, claims for refund of income taxes previously paid in respect of the years 1963,1964, and 1965 (hereinafter referred to as the 1967 claims) in the following amounts:
Year Amount Claimed
1963___$156,148. 50 (or $143,737.56 in the
1964_ 140, 482. 78 alternative)
1965___ 47,252.76
Neither the Secretary of the Treasury nor his delegate having theretofore rendered a decision on the 1967 claims, plaintiff, on April 4, 1968, filed suit for a refund of such income taxes in this court.
43.On October 24,1968, after plaintiff had filed a petition claiming a refund of income taxes paid in respect of the *636years 1963,1964, and 1965 in this court, and prior to a hearing of plaintiff’s claims, the Commissioner of Internal Revenue determined deficiencies in plaintiff’s income tax for the years 1963,1964, and 1965 in the following amounts:
Year Deficiency
1963_$337,376.70
1964_ 362, 986. 20
1965___ 265, 412. 05
The asserted deficiencies were based upon a determination that plaintiff did not qualify as a life insurance company during the years 1963,1964, and 1965 under Section 801 (a) of the Code, but rather was taxable as an insurance company other than a life or mutual insurance company in those years.
44. Plaintiff did not file a petition with the Tax Court for a redetermination of the asserted deficiencies within the time allowed by Section 6213(a) of the Code, or at any time thereafter. On February 14,1969, the Commissioner of Internal Revenue assessed the amount of the asserted deficiencies in plaintiff’s income tax for the years 1963, 1964, and 1965, together with interest on such deficiencies, and demanded payment thereof. Plaintiff contests the validity of this assessment. On March 5, 1969, the following amounts were paid to the District Director of Internal Revenue at St. Louis, Missouri, under protest, in respect of the deficiencies in plaintiff’s income taxes assessed for the years 1963, 1964, and 1965, and interest thereon:
Deficiency Interest Total 2
$337, 376. 70 $99, 747. 96 $437, 124. 66 CO
986. 20 540. 43 526. 63 co
265, 412. 05 46, 621. 63 312, 033. 26 CD
45. On April 21, 1969, plaintiff filed with, the District Director of Internal Revenue at St. Louis, Missouri, claims for refund of the amounts assessed by the Commissioner of Internal Revenue on February 14,1969, and paid by plaintiff on March 5, 1969, as additional income taxes, and interest thereon, for the years 1963,1964, and 1965 (hereafter referred to as the 1969 claims). Plaintiff received a formal notice of disallowance of its 1969 claims from said District Director on December 3, 1969, and filed its First Amended Petition *637with this court on March 30,1970, seeking recovery of income taxes with respect to both its 1969 and 1967 claims.
46. On May 8, 1969, defendant filed a motion with this court for leave to file an amended answer to plaintiff’s petition. Defendant’s motion was allowed and an amended answer was filed on July 8, 1969, which amended answer included a counterclaim alleging that the Commissioner of Internal Revenue had assessed additional income taxes and interest for the years 1963, 1964, and 1965 and demanded payment thereof and that such assessment had not been paid. Plaintiff filed a reply to defendant’s counterclaim on August 12,1969, alleging, inter alia, full payment of such additional taxes and interest.
47. In its Answer to plaintiff’s First Amended Petition, defendant stated that “since the Plaintiff has paid the taxes for which the counterclaim was filed and amended its petition to include a claim for refund for these taxes, a counterclaim by the defendant is no longer necessary, nor required by law.” Defendant’s Answer to First Amended Petition, Count I ¶ 13(d), Count II, ¶ 11(d), Count III, ¶ 13(d), Count IV, ¶ 13(d).
Ultimate Finding of Fact
48. During each of the years 1963,1964, and 1965, plaintiff was a life insurance company engaged in the business of issuing or reinsuring life insurance and annuity contracts (issued either separately or combined with accident and health insurance) and its life insurance reserves plus unearned premiums and unpaid losses on non-cancellable life, health or accident policies not included in life insurance reserves comprised more than 50 percent of its total reserves during each of those years within the meaning of Section 801 of the Internal Revenue Code of 1954.
CONCLUSION OF LAW
Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and judgment is entered to that effect, with the determination of the amount of *638recovery to be made in further proceedings under Rule 131(c).