Help! My Captive Insurance Company is Under IRS Audit.

We have learned from discussions with IRS Representativesthat the IRS is now opening a large number of captive audits.

If you are a taxpayer who has come under audit by the IRS with respect to a captive insurance company, here are some things you should know.

• Type of Audit. For this purpose, we can divide the IRS audits into two types. The first is a random audit on an individual or business, and the second is a targeted audit. A random audit normally involves a local IRS Agent and considers on some level the totality of a return filed. In a targeted audit, the IRS obtained a customer list from the captive Promoter and is auditing you because you are one of the customers. In a random audit, the Agent has a checklist to review various items of your return and may spend little or no time scrutinizing the captive. In a targeted audit, the Agent is normally well trained in the captive area. Further, in a targeted audit, the Agent may already have been directed on an IRS position for all of the captives that relate to that Promoter. Accordingly, the method of dealing with the Agent is very different in random audits than in targeted audits.
• Your Representation. You need to be represented in an IRS audit. The very first thing you should do upon receiving notification of an audit is to engage tax counsel. You should not speak to the IRS, answer questions or participate in an interview without tax counsel.
• Choosing Tax Counsel. There is no right or wrong choice, but the options normally include the following:

• Local CPA. The local CPA is often a good choice because he or she knows your business and circumstances best. Hopefully, they also were very much involved in your decision to create a captive and can address questions with personal knowledge regarding the intent of the captive. The downside is that some CPAs do not have a lot of experience with IRS audits, and especially with targeted audits of captives. The CPA will normally be very frank in their assessment if they believe they are in over their head. We recommend that even in such cases, that the CPA stay on the power of attorney and work with other hired counsel.
• Promoter’s Counsel. Often, the Promoter will provide or refer Counsel to represent you in audit. The benefits of this are that the Promoter’s Counsel will most likely be extremely knowledgeable about captives in general and have inside knowledge of the IRS position with respect to the Promoter’s captive. Also, the Promoter’s Counsel is sometimes paid by the Promoter. The down side is that the Promoter’s Counsel may be conflicted and provide a conflicts waiver for you to sign prior to an engagement. Basically, the issue is whether the Promoter is representing your interests or the interests of the Counsel. You may feel that those interests are the same, and sometimes they are, but sometimes they are not.
• Outside IRS Counsel. We are often called upon to represent clients under audit and have represented more than 500 taxpayers in Promoter transactions in the last 8 years. We often work with the local CPAs, but also will coordinate efforts with the Promoter’s Counsel.
• Internal Audit. It is important at the very outset to review the issues involving the formation of the Captive and consider whether there are any red flags

The information provided herein is not intended as legal, accounting, financial or any type of advice for any specific individual or other entity. You should contact an appropriate professional for any such advice.