Tuesday, February 2, 2021

No. 408: A Recent Change in the Federal Income Tax Law Designed to Benefit Wealthy Life Insurance Policyholders

On January 10, 2021, The Wall Street Journal posted online an article by reporter Leslie Scism entitled "A Small Tax Change Is a Boon for Permanent Life Insurance." The next day, the print edition of the Journal carried on page B8 a revised version entitled "Tax Change Aids Life Insurance." Here are the first few sentences of the latter article:
Federal lawmakers' big year-end spending package includes a little-noticed revision of the tax code that is likely to boost sales of life insurance, particularly for wealthy Americans. The law lowers a minimum interest rate used to determine whether combination savings and death benefit policies known as permanent life insurance are too much like investments to qualify for tax advantages granted to insurance. The interest-rate floor was put in place in 1984 to weed out policies that were mostly investment vehicles with a thin layer of life insurance. Lowering the rate allows owners to put more in the savings portion.
Here I discuss in more detail the federal income tax advantages of cash-value life insurance. I also provide further background on the history of the federal income tax definition of cash-value life insurance.

Federal Income Taxation of Life Insurance
To understand the implications of the recent change, it is necessary to understand the history of the 1984 change in the tax code. That was a time of high market interest rates, far different from today's low market interest rates. Also, it is necessary to understand two extremely important income tax advantages of cash-value life insurance: (1) the "inside interest" in a cash-value life insurance policy is income-tax deferred, and (2) upon the death of the insured person, the death benefit paid to the beneficiary is income-tax exempt.

The Minimum Deposit Plan
One of my early encounters with clever marketers of cash-value life insurance involved the "minimum deposit plan." It was also called "minnie dee" or "minnie dip." To illustrate, Jones bought a favorably priced $100,000 participating whole life policy in 1950 at age 35. He used the minimum deposit plan; that is, each year he paid as little as possible to keep the policy in force. He paid the annual premium, deducted any dividend, borrowed as much as possible under the automatic premium loan clause, paid interest on the policy loan, and on his income tax returns he took a deduction for the policy loan interest he paid. Thus he essentially converted the policy from a level premium, level death benefit, whole life policy with nondeductible premiums into a term policy with a decreasing death benefit and deductible premiums. Or so he thought.

At the end of 1972, after 22 years, Jones decided to end the policy by allowing it to lapse. At that point, the cash value and the amount of the loan were each around $40,000. His income tax return filed in 1973 for the 1972 tax year showed a large deduction for the policy loan interest he had paid in 1972 and had deducted on his tax return for 1972. However, his tax return for 1973 filed in 1974 showed no deduction for policy loan interest paid in 1973. That triggered an Internal Revenue Service audit, which resulted in a whopping tax bill with penalties, as though he had surrendered an old participating whole life policy, which was exactly what he had done.

The Emergence of Universal Life
During the 1960s and 1970s, I often wrote about the need for rigorous disclosure of the price of the life insurance protection component of cash-value life insurance policies, and the need for rigorous disclosure of the rate of return on the savings component of those policies. In my writings, I viewed cash-value life insurance as a combination of a protection component and a savings component. It is a major understatement to say that the life insurance industry was not happy with my writings.

In the late 1970s, market interest rates were high and rising, and universal life insurance—which was also referred to as flexible-premium life insurance—burst on the scene. I will never forget a letter I received in 1979 from an official of one of the companies promoting universal life. He said: "Joe, I hope you're satisfied." The reason for his comment was that one of the claimed advantages of universal life was so-called transparency; that is, the separation of the protection and savings components. Unfortunately, while transparency sounded good, it did not provide adequate disclosure of the price of the protection component and the rate of return on the savings component. Instead, it created a new family of deceptive sales practices.

An Example of Universal Life Deception
In the May 1984 issue of my monthly newsletter, The Insurance Forum, I wrote an article entitled "How Not to Advertise Universal Life." The article focused on a deceptive newspaper advertisement by Indianapolis-based Golden Rule Insurance Company. The article, including a replica of the advertisement, is in the complimentary package offered at the end of this post.

The 1984 Change in the Tax Law
I asked representatives of the American Council of Life Insurers (ACLI), which had lobbied for the 2021 change in the tax law, whether they could provide me with material about the 1984 change. They said they could not locate any such material. Therefore, I will describe what happened, based on my memory.

As market interest rose in the 1970s, clever promoters of life insurance often sold their wealthy clients on the idea of buying a small universal life policy and pouring a large amount of money into the policy in order to benefit from the income-tax deferred inside interest and the income-tax exempt death benefit. That abuse of the income tax system became too much for the Internal Revenue Service and Congress to tolerate. Thus a change was made in the tax code in 1984 to define life insurance in such a way as to prevent the abuse. The tax law was amended to make such an arrangement subject to taxation as an ordinary investment rather than as a life insurance policy.

The 2021 Change in the Tax Law
Today, however, low market interest rates have threatened the viability and the very survival of cash-value life insurance. Thus the life insurance industry, through the ACLI, lobbied Congress to change the definition of life insurance in the tax code in such a way as to preserve cash-value life insurance as a viable financial instrument.

The definition in the new tax provision requires a policy to pass at least one of two tests in order to qualify as life insurance for tax purposes: a cash-value accumulation test (CVAT), or a guideline-premium test (GPT). If a policy fails both tests, the policy is called a modified endowment contract (MEC), and is taxed as an investment vehicle rather than as a life insurance policy. A statement by the ACLI about the 2021 change is in the complimentary package at the end of this post, along with a statement by Bobby Samuelson, editor of The Life Product Review and a nationally-recognized expert on policy design.

General Observations
The January 2021 change in the income tax law, as lobbied for by the ACLI, is an important development in the history of the life insurance business. In this post, I do not attempt to explain the complex changes in the income tax law. However, I urge readers to request the complimentary 14-page package offered below.

Available Material
I am offering a complimentary 14-page PDF consisting of the May 1984 Forum article (2 pages), the ACLI statement on the 2021 tax changes (3 pages), and the Samuelson statement on those changes (9 pages). Email jmbelth@gmail.com and ask for the February 2021 package about the changes in the income tax law relating to cash-value life insurance.