Tax Consequences of Assigning Life Insurance - Time for Another Look

36 Pages Posted: 2 May 2007

See all articles by Douglas A. Kahn

Douglas A. Kahn

University of Michigan Law School

Lawrence W. Waggoner

University of Michigan Law School

Abstract

The Taxpayer Relief Act of 1997 furnishes the courts and the Internal Revenue Service an opportunity to close certain loopholes in the federal tax consequences of assigning life insurance. About twenty years ago, we published an article arguing that the tax consequences of assigning life insurance affords taxpayers unwarranted opportunities for tax avoidance. Since then, developments in the case law and Internal Revenue Service rulings have broadened the loopholes. In this update of our article, we show how the new tax law supports our original position.

The most litigated estate tax issue concerning life insurance is whether the proceeds are includible in the insured's gross estate. A leading case on this issue is Estate of Silverman v. Commissioner, a case decided by the Tax Court in 1973.

Our position is that the Silverman analysis gives taxpayers a windfall and provides life insurance an unfair advantage over other investment vehicles. We argue that Silverman was inconsistent with the law existing when the case was decided and, more importantly, is inconsistent with section 2035 as reformulated by the 1997 Act. To set the stage for our argument, we begin with brief discussions of the operation of life insurance. We next survey the relevant provisions of the tax laws, as they now exist, that apply to life insurance policies and proceeds. Finally, we examine several different types of circumstances in which an insured has assigned life insurance to a third party and consider whether the current tax treatment of such assignments has it right, in light of the amendments to section 2035 made by the 1981 Act and especially the 1997 Act. Special emphasis will be given to the Silverman-type situation in which the insured assigns a policy within three years of death and the assignee pays the post-assignment premiums.

Keywords: Taxation, Life Insurance, Assignment, Estate Tax, Insurance

JEL Classification: H20, H24

Suggested Citation

Kahn, Douglas A. and Waggoner, Lawrence W., Tax Consequences of Assigning Life Insurance - Time for Another Look. Florida Tax Review, Vol. 4, p. 381, 1999, Available at SSRN: https://ssrn.com/abstract=983580

Douglas A. Kahn (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States
734-647-4043 (Phone)

Lawrence W. Waggoner

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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