Structured Settlements and Single-Claimant Qualified Settlement Funds: Regulating in Accordance with Structured Settlement History

Abstract

In 1982 Congress legislated a tax subsidy incentivizing the use of structured settlements. Since then the structured settlement has become a common conclusion for personal injury claims. Perhaps to the detriment of plaintiffs, it became clear early on that defendants and their liability insurers were capturing much of the benefits from structuring, including the value of the tax subsidy. While this usurpation may have lessened over time as plaintiff advisors became more knowledgeable about structured settlements, it continues today. In the 1990s, some plaintiffs began using an entity that allows for the prevention of defense capturing: the qualified settlement fund (QSF). Because the use of this fund by single-claimants breaks two important tax rules that Congress originally applied to the structured settlement tax subsidy - the constructive receipt (control of monies) and economic benefit (vested right in future distribution of assets or monies) doctrines - it is unclear if such claimants can make use of the QSFs and still access the subsidy. Treasury regulations could cure the ambiguity, but should do so in accordance with structured settlement history, and in the interest of public policy. By reviewing the legislative, administrative, and regulatory history of structured settlements, this paper demonstrates that the two tax doctrines no longer apply, at least not strictly, to structured settlements. Thus, upon a showing that extending the tax subsidy to structured settlements produced by single-claimant QSFs is in the interest of public policy, this paper recommends the issuance of Treasury regulations extending the subsidy.

Keywords: Structured Settlements, Factoring, Qualified Settlement Funds

JEL Classification: E21, E65, G22, G23, G28, H24, H30, H50, H55, I39, K13, K34