October 21st, 2020

Private Equity, M&A and Tax

A look at tax liability insurance in the US: Practical considerations

By: Dean Andrews

In this interview, Senior Tax Insurance Underwriter at Certa Insurance Partners Ben Furtick talks to Dean Andrews, Division Director and Head of Tax Liability Insurance in London at BMS Group, about US cross-border tax issues and the value of tax liability insurance coverage.

Specialist underwriting agency Certa Insurance Partners appointed Ben Furtick as senior US tax underwriter in April 2020 to strengthen their underwriting team and grow their US tax insurance offering.

Here, Furtick explains the key elements to take into account when considering tax liability insurance policy structures for the US.

Dean: What kinds of tax issues are insurable in the context of inbound investment into the US?

Ben: The flexibility of tax liability insurance to provide coverage for one or more specifically identified potential tax liabilities means tax insurance can be an effective risk management tool in connection with structuring or financing US business operations and managing payment flows into and out of the US.

As a non-exhaustive list of examples, creation of a federal or state permanent establishment, tax treatment of financing as debt or equity, tax characterisation of payment flows into and out of the US, and application of withholding tax are all issues which may be insurable dependent on specific facts and circumstances.

Dean: How can tax insurance help US-headquartered multinational groups manage tax issues arising on intra-group restructuring transactions?

Ben: Commercially driven corporate reorganisations can often create tax headaches for US-headquartered multinational groups due to US companies being subject to tax on worldwide income and the operation of various anti-deferral regimes, which have the potential to create dry tax charges. A tax insurance policy can be put in place to back a strong tax opinion on any number of specifically identified tax issues such that US multinationals can limit exposure to low risk tax issues with material associated quantum of potential tax liabilities and can achieve certainty on the economic cost of tax compliance.

Dean: Could US-headquartered multinational groups make use of tax liability insurance in connection with specifically identified tax issues, which arise in jurisdictions outside of the US?

Ben: Yes. At Certa, we have underwritten policies to cover potential tax liabilities which could arise in more than 30 different jurisdictions outside the US. Our underwriting team consists of US and UK qualified lawyers and accountants, and we partner with a global network of tax lawyers and accountants to underwrite tax risks in other jurisdictions. Insurability of potential tax liabilities is a function of the strength of a taxpayer’s technical position, a jurisdiction’s level of rule of law and corruption, and the way in which the relevant jurisdiction’s tax authority operates.

Dean: Are there any material recent updates to US tax law that acquirers of international business with US operations should be aware of?

Ben: The CARES Act provided welcome relief to US taxpayers on a number of fronts, including creation of the ability to carry back net operating losses (NOLs) to offset taxable income from up to five previous tax years. Depending on a taxpayer’s facts and circumstances, a tax liability insurance policy can be underwritten to cover a taxpayer’s availability and amount of NOLs to be claimed against prior period taxable income.

Dean: Are there unique tax liability insurance policy structure considerations for US named insureds or for policies covering potential US tax liabilities?

Ben: Tax liability insurance policies to cover US tax issues are generally structured to pay out in the event of an unfavourable Internal Revenue Service (IRS) or state tax authority final determination, with covered losses including any tax liability assessed, any related interest and penalties for late payment, and any defence costs in excess of a pre-agreed retention. Policies for US insureds can also be structured to include a gross up for federal and state income tax purposes as proceeds from insurance contracts are generally treated as US taxable income. Policy periods are set in accordance with relevant federal and state statutes of limitation so an insured’s ability to make a claim under the policy aligns to the period during which an IRS or state tax authority audit could be opened.

This article originally appeared in International Tax Review.