Recently, we worked on a case which involved an endorsement split dollar plani, where the split dollar agreement involving the trustee of an irrevocable trust was terminated pursuant to a “rollout. The agreement was between the employer and the trustee (endorsement split dollar). The result would have been a “transfer of value,” in which the death benefit exceeding the consideration would have been taxable income.
If the split dollar plan were a collateral assignment split dollar, there would not have been a “ taxable event”, as the sale of the policy would have been made to an exempt party, the insured, (grantor and the insured are one in the same). Under the endorsement Split dollar, the company was selling to the trustee, not an exemption entity.
Transfer for value jeopardizes the income tax-free payment of the insurance proceeds. Under the transfer value rule, if a policy is sold for consideration, the death proceeds will be taxable as ordinary income, more than the net premium contribution.
Besides the outright sale of the policy, there can also be a taxable event if the owner is paid in consideration to change the beneficiary. This would be a transfer of value; thus, the death benefit is taxable beyond the consideration paid for the policy. The consideration paid to change the beneficiary can be any amount.
Consideration does not have to be money, it could be in exchange for a policy, or a promise to perform some act or service. However, the mere pledging or assignment of a policy as collateral security is not a transfer for value.
Transfer for Value Exceptions:
- Transfer to the insured
- Transfers to a partner of the insured
- Transfer to a partnership in which the insured is a partner
- Transfer to a corporation in which the insured is a stockholder or officer (but there is no exception for transfer to a co-stockholder.
- Transfer between corporation in a tax-free reorganization if certain considerations exit.
A bona fide gift: is not considered to be a transfer for value, and later payment of the death proceeds to the donee will be paid income tax-free.
Part sale and gift transfer actions are also protected under the so-called “transferor’s basis exception” which provides that the transfer for value rule does not apply where the transferee’s basis in the policy is determined whole or in part by reference to its basis in the hands of the transferor.
Another transfer for value trap can occur in the situation when you have a “trusteed cross purchase buy and sell agreement”, to avoid a problem of multiple policies when there are more than just two or three stockholders. When the trustee is both owner and beneficiary of just one policy on each of the stockholders, a transfer for value may occur when one of the stockholders dies and the surviving stockholders then receive a greater proportional interest in the outstanding policies which continue to insure the survivors. This can be remedied by either using an Entity Redemption where the Corporation purchases the interest of the deceased stockholder’s interest.
This can also cause exposure of transfer of value when transferring existing life insurance policies, insuring stockholders to the trustee of a trusteed cross purchase agreement, which does not fall within one of the exceptions to the transfer of value rules. To avoid this initial ownership problem, the trustee should be the original applicant, owner and beneficiary of the polices.
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