*46 Decision will be entered under Rule 155.
AFIC was primarily engaged in the business of acting as surety on bail bonds. It also wrote fidelity, other surety, and automobile insurance contracts. In accordance with insurance accounting principles, AFIC excluded "unearned premiums" from income, deducted estimates of "unpaid net losses" and "unpaid loss adjustment expenses," and included in income declared but unpaid dividends on stock it held in unrelated corporations. Held, AFIC is not an insurance company taxable under secs. 831 and 832,
*1069 OPINION
Respondent determined the following deficiencies in corporate income taxes with respect to consolidated returns filed by petitioner:
Year | Deficiency |
1971 | $ 26,900.86 |
1972 | 75,368.20 |
The issues for decision are:
(1) Whether Allied Fidelity Insurance Co. (hereinafter referred to as AFIC), a wholly owned subsidiary of petitioner, was an insurance company within the meaning of section 831 1 entitled to compute its income in the manner provided in section 832; and
(2) If AFIC is not taxable as an insurance company, whether its method of accounting clearly reflects income and was improperly disregarded by respondent.
All of the facts are stipulated and are found accordingly. The stipulation of facts and attached exhibits are incorporated herein by this reference.
Petitioner*49 is an Indiana corporation whose principal offices were located in Indianapolis, Ind., at the time its petition was filed. AFIC has been a wholly owned subsidiary of the petitioner since AFIC was incorporated on July 22, 1969.
Articles III and VII of the original articles of incorporation of AFIC stated its purpose and business plan as follows:
Article III
Purposes of the CorporationSection 1. The Corporation is organized under the provisions of the Indiana Insurance Law of 1935, as amended (hereinafter referred to as the "Act"), for the purpose of writing the kind of insurance and reinsurance specified in subdivision (k) of Class II of Section 59 of the Act, namely:
*1070 Section 2.
(k) To become surety or guarantor for any person, co-partnership or corporation in any position or place of trust or as custodian of money or property, public or private; to become a surety or guarantor for the performance by any person, co-partnership or corporation of any lawful obligation, undertaking, agreement or contract of any kind, except contracts or policies of insurance, to become surety or guarantor for the performance of insurance contracts where surety bonds are required*50 by states or municipalities. The business covered by this subsection (k) shall be considered as fidelity and surety obligations and construed as such regardless of any other classification contained in this act to the contrary.
Article VII
Business PlanThe plan or principle on which the business of the Corporation shall be conducted is that of a stock company engaged in writing the kind of insurance and reinsurance specified in subdivision (k) of Class II of Section 59 of the Act.
On July 22, 1969, the Indiana Secretary of State certified the filing of AFIC's articles of incorporation under the State's insurance act. The articles were approved by the State insurance commissioner who, on September 2, 1969, issued a certificate of authority to AFIC to act as a surety or guarantor in accordance with its articles. This authority was continued by means of annual recertification at least through the years in issue. Pursuant to these certificates AFIC entered into surety and guaranty contracts in Indiana, including contracts of criminal bail. AFIC received authorization from the insurance regulatory bodies of other States to conduct one or more lines of business, including bail*51 bonding, beginning with the indicated dates during or preceding the years in issue:
State | Beginning date |
Kentucky | 11/30/70 |
Texas | 9/22/72 |
Utah | 12/20/72 |
New Mexico | 12/27/72 |
At the time this case was submitted, AFIC was authorized to do business in 29 States. Since July 1, 1970, AFIC has been authorized by the Treasury Department to qualify as sole surety in contracts of bail, recognizances, and other undertakings permitted or required by Federal law.
All of AFIC's bail bonding contracts were in substantially the following form:
*1071 Allied Fidelity Insurance Co.
Indianapolis, Indiana
Appearance Bond IN COURT, STATE OF STATE OF vs.
COUNTY OF
Know All Men By These Presents:
That we, as principal and ALLIED FIDELITY INSURANCE CO., as surety (Identified by attached Power of Attorney No. ) are held and firmly bound unto the (court, city, county or state) in the sum of Dollars, for the payment whereof well and truly to be made we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally firmly by these presents.
Signed and sealed this *52 day of , A.D. 19 .
The condition of this obligation is such that if the said , Principal, shall appear at the next Regular or Special term of the (Name) Court (Location) to be held in and for said County to answer a charge of and shall appear from day to day and term to term of said Court and not depart the same without leave than this obligation to be void, else to remain in full force and virtue.
Taken before and approved by me:
By
(Seal) (L.S.)
ALLIED FIDELITY INSURANCE CO. (L.S.)
Attorney-In-Fact (L.S.)
This Bond Not Valid Unless Accompanied by an Individually Numbered Power of Attorney Properly Executed
On March 16, 1972, AFIC's articles of incorporation were amended to permit it to insure a wide variety of casualty and other risks. A certificate of authority covering these additional lines of business was issued by the Indiana Insurance Commissioner on May 1, 1972. AFIC subsequently obtained similarly expanded authority in other States. From that date on, AFIC engaged in writing motor vehicle insurance in addition to its surety and bail bonding activities.
Since *53 its incorporation, AFIC has filed annual statements, on the form approved and adopted by the National Convention of Insurance Commissioners, with the insurance regulatory bodies of the States in which it is authorized to do business, as required by the laws of those States. AFIC's internal method of accounting and its method of accounting for tax purposes have been consistent with the methods used on the convention statement *1072 and with generally accepted principles of accounting in accordance with accepted conditions or practices of insurance companies. Under those principles, AFIC did not include in the income reported on the consolidated returns amounts referred to as "unearned premiums," i.e., prepaid insurance or surety premiums 2 allocable pro rata to that portion of the contract term extending beyond the end of the taxable year in question. 3 Also in accordance with principles of insurance accounting, AFIC claimed a deduction in computing taxable income for amounts referred to herein as "unpaid net losses" and "unpaid loss adjustment expenses." "Unpaid net losses" consisted of claimed but unpaid estimated losses reduced by any portion thereof recoverable by contractual*54 agreement, and/or estimates of such losses which had been incurred but not claimed by the end of the year. "Unpaid loss adjustment expenses" were estimates of unpaid expenses allocable to unpaid loss claims and estimated unreported losses. AFIC also included in its 1972 income dividends on stock of unrelated corporations in the amount of $ 874.75 which had been declared but not paid by the end of the taxable year.
AFIC's unearned premiums, unpaid net losses, and unpaid loss adjustment expenses were as follows for the years in issue:
Line of | ||
business | Unearned premiums | |
1971 | 1972 | |
Surety -- bail | ||
Automobile insurance | $ 98,445.99 | |
Fidelity and other surety | $ 12,908.93 | 25,530.86 |
Totals | 12,908.93 | 123,976.85 |
Unpaid loss | |||
Line of | adjustment | ||
business | Unpaid net losses | 1 expenses | |
1971 | 1972 | 1972 | |
Surety -- bail | $ 41,924.83 | $ 74,023.42 | |
Automobile insurance | 6,300.88 | $ 985.60 | |
Fidelity and other surety | 554.92 | 4,948.32 | |
Totals | 42,479.75 | 85,272.62 | 985.60 |
AFIC wrote net premiums allocable to its various lines of business in the following amounts before, during, and after the years in issue:
1969 | 1970 | 1971 | |
Surety -- bail | $ 34,075.41 | $ 189,800.66 | $ 255,463.65 |
Automobile insurance | |||
Fidelity and other surety | 15,538.50 | 26,156.80 | |
Totals | 34,075.41 | 205,339.16 | 281,620.45 |
1972 | 1973 | 1974 | |
Surety -- bail | $ 280,446.01 | $ 455,680.04 | $ 555,603 |
Automobile insurance | 115,378.78 | 1,159,352.06 | 1,308,884 |
Fidelity and other surety | 44,836.12 | 96,790.24 | 110,440 |
Totals | 440,660.91 | 1,711,822.34 | 1,974,927 |
AFIC has engaged in no activity other than the above lines of business and the investment and reinvestment of its assets since its incorporation, and such activities produced all of its income during the years in issue.
Respondent determined that AFIC*56 was not an insurance company during the years in issue. Accordingly, he contends that petitioner's taxable income was understated by the amount of AFIC's reserves for unearned premiums, unpaid net losses, and unpaid loss adjustment expenses, and overstated by the amount of declared but unpaid dividends reported. 4 Petitioner argues that AFIC was taxable as an insurance company, or if not that its accounting method nevertheless clearly reflected income.
*57 We are provided with no helpful, freestanding definitions of the terms "insurance" and "insurance company" for Federal tax purposes. It is clear that our decision is not controlled by nontax classifications and that characterization of particular corporations depends not on labels or certificated powers but on the character of the business actually conducted and that, in the absence of other guides, we should presume Congress to have used words in their ordinary and commonly understood sense.
In resolving this issue, we are unable to ascribe much significance to the fact that AFIC's bail bonding business was subject to regulation under the insurance laws of the various States in which it did business. Such regulation amounts to no more than a recognition that a corporate bail bondsman is ordinarily an insurance or surety company, not that bail bonding is insurance. Cf.
In common understanding, an insurance contract is an agreement to protect the insured (or a third-party beneficiary) against a direct or indirect economic loss arising from a defined contingency. The insurer undertakes no present duty of performance but stands ready to assume the financial burden of any covered loss. 1 Couch, Insurance 2d, sec. 1:2 (1959). An essential feature of insurance is this assumption of another's risk of economic loss. 1 Couch, supra, sec. 1:3. By contrast, the principal obligation of the bail surety at common law was to produce the defendant at trial, an obligation for which the monetary bond was merely an assurance of, or inducement to, performance.
Petitioner points to language in some judicial opinions to support its contention that the foregoing model of the bail system is outdated. In
*1075 The distinction between bail and suretyship is pretty nearly forgotten. The interest to produce the body of the principal in court is impersonal and wholly pecuniary. If * * * the bond was for $ 40,000, that sum was the measure of the interest on anybody's part, and it did not matter to the Government what person ultimately felt the loss so long as it had the obligation it was content to take. * * *
In a similar vein is
The bond is a contract between the surety and the government that if the latter will release the principal from custody the surety will undertake that the principal will appear personally at any specified time and place to answer. *61 * * * When [the bondsman] writes a bond he assumes the great risk involved if his faith is misplaced in the person who executes the bond as principal. * * *
Petitioner argues that these cases envision a quite different role for the surety -- that of simply guaranteeing payment of any forfeiture which might be incurred by reason of the defendant's nonappearance.
Petitioner's attempt to seize upon the foregoing language, obviously uttered in a nontax context, is of no avail. Most courts have not followed Leary's de-emphasis of the bondsman's personal obligation. Modern cases continue to assert that payment of the bond is not a substitute for performance of the surety's obligation to produce the defendant.
In sum, AFIC's bail contracts were not insurance and AFIC was not an insurance company during the years in issue. 5
We now turn to petitioner's alternative argument that, notwithstanding AFIC's failure to qualify as an insurance company, its method of accounting clearly*64 reflected income and was improperly disregarded by respondent. Section 446 provides:
(a) General Rule. -- Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
(b) Exceptions. -- If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.
If petitioner's method of reporting clearly reflected AFIC's income, then respondent had no authority under this statute to require the use of a different method. On the other hand, if that method did not clearly reflect its income, respondent's adjustments will generally be sustained. All-
The gist of petitioner's argument is that, whatever the formal label*65 applied to AFIC, its business was conducted and regulated as an insurance business and should be taxed as such. 6 However, sound commercial accounting is not necessarily the same as proper tax accounting (
The first challenged item is AFIC's reserve for unearned premiums, none of which were attributable to AFIC's bail contracts. Amounts allocated to this account, and therefore excluded from income, represented premiums actually received with respect to insurance and fidelity and surety contracts but attributable to that portion of the contract term extending beyond the year in question. Although such premiums were allocated to a "reserve," they were subject to AFIC's unfettered control on receipt and were *67 not impressed with any trust. Ordinarily they would have been considered income to a noninsurance company in the year of receipt.
Petitioner relies heavily on
Finally, we deal with AFIC's claimed deductions for unpaid net losses and unpaid loss adjustment expenses. These accounts reflected estimates of the company's liability on losses, which were claimed but unpaid or were incurred but not reported at the end of the taxable year, and of anticipated allocable expenses.
The parties have stipulated that "unpaid net loss" represents "a claimed but unpaid estimated loss less any portion thereof recoverable by contractual agreement and/or an estimate of such a loss which has not been claimed" and that "unpaid loss adjustment*69 expenses" represent "estimates of unpaid allocated expenses attributable to unpaid loss claims and estimated unreported losses." Thus, the accounts in question include losses (claimed and unclaimed) and expenses related thereto as to which AFIC might contest the existence of a liability, as well as recognized losses as to which the amount of the loss might not be capable of being fixed with reasonable accuracy.
*70 Petitioner misconceives the thrust of the cases it cites in support of these deductions, all of which allowed deduction of separately established liabilities, reasonably calculable in amount, and are consistent with the above-cited regulation. It has long been held that no deduction is allowable with respect to *1079 estimated or contingent losses or expenses.
We do not understand petitioner to argue for the inclusion in income of declared but unpaid dividends except as required to be consistent with its other arguments, which we have rejected. In any event, under the rules applicable to noninsurance company, accrual basis taxpayers, such dividends are taxable only in the year in which they are unqualifiedly subject to the recipient's demand, which, at least in the absence of other evidence, is the year of receipt.
Respondent has conceded certain other adjustments in his determination. Accordingly,
Decision will be entered under Rule 155.
Footnotes
1. All statutory references are to the Internal Revenue Code of 1954, as amended and in effect for the years in issue.↩
2. Any references herein to "insurance," "insurance premiums," or "premiums," or the use of similar phrases are for convenience only and are not to be accorded substantive significance unless the context so indicates.↩
3. Amounts received as payment for bail bonds were treated by petitioner as being fully earned at the time of receipt, i.e., they were not prorated.↩
1. No unpaid loss adjustment expenses were reported for 1971.↩
4. For 1972, respondent increased petitioner's taxable income by the amount of the increase in the unearned premium and unpaid net loss accounts over the corresponding items at the close of 1971. For 1971, he included the entire closing balance of each account in income, disregarding opening balances of $ 9,435.57 and $ 6,400, respectively. If respondent is sustained in the position which he takes on the issues involved herein, this action also was proper. See sec. 481;
Hagen Advertising Displays, Inc., 47 T.C. 139">47 T.C. 139 (1966), affd.407 F.2d 1105">407 F.2d 1105↩ (6th Cir. 1969).5. The parties have framed their arguments in generalities, and our opinion is shaped accordingly. Consequently, we need not and do not accord an unqualified blessing to the categorical position taken by respondent in
Rev. Rul. 68-101, 1 C.B. 319">1968-1 C.B. 319 .The record shows that the nature of AFIC's business was changing during the years in issue and afterward. Petitioner represents on brief that our decision herein will be determinative of AFIC's tax classification for subsequent years; however, we express no opinion on that issue.↩
6. It is stipulated that petitioner's automobile insurance policies, to which some of the adjustments in question are attributable, are "contracts of insurance."↩
7. We note that the Ninth Circuit Court of Appeals remand was "for the purpose of determining whether the amounts of liability can be determined with reasonable accuracy." See
518 F.2d at 775↩ .8. See also
Bay Ridge Operating Co., T.C. Memo. 1970-19↩ .