United States: Illinois Appellate Court Respects Characterization Of Captive Insurance Company

In Wendy's International, Inc. v. Brian Hamer1, decided earlier this week, the Illinois Appellate Court found that Taxpayer had met its burden and proved that its subsidiary insurance company was a bona fide insurance company for purposes of federal income tax law as it met the statutory requirements during the applicable years, and engaged in the necessary risk shifting and risk distribution. The court found that no evidence was presented that indicated that the insurance company was formed as a sham business or lacked a valid business purpose. Given the facts of the case, the court found that the insurance company was properly treated as such for federal income tax purposes, and should have been treated in a similar fashion for the Illinois Income Tax Act. Thus, the Appellate Court reversed the trial court's entry of summary judgment in favor of the defendants and denied Taxpayer's motion for summary judgment.

Background

Wendy's International, Inc. ("Wendy's" or "Taxpayer") is an Ohio corporation with commercial domicile in Ohio and the parent company of an affiliated group of corporations operating restaurants throughout the United States, including in Illinois. In 2001, Wendy's determined it would make financial sense to create a wholly owned insurance company that would also make it possible to obtain insurance for risks for which external coverage could not be obtained, such as protecting against outbreaks of mad cow disease.

Wendy's formed and licensed Scioto Insurance Company ("Scioto") in the state of Vermont as a captive insurance company that insured affiliated entities. Subsequent to the formation, Scioto acquired Oldemark LLC, a Wendy's affiliate that held Wendy's trademarks. Oldemark licensed to Wendy's the right to use and sublicense the trademarks in exchange for a royalty of 3 percent of the gross sales of all United States business.2 In October 2001, Scioto was licensed to transact business as an insurance company in the state of Vermont. Scioto issued insurance policies to Wendy's and Wendy's affiliates, covering workers' compensation, general liability, auto liability, auto physical damage, property, crime liability, business interruption, excess liability insurance, product recall, terrorism coverage, strike insurance, pollution wraparound, and price volatility coverage, using actuarially determined rates in setting the premiums charged for insurance policies.

Scioto was included in Wendy's federal consolidated income tax returns. The Internal Revenue Service (the "IRS") audited Wendy's federal consolidated returns and examined whether Scioto was an insurance company for federal income tax purposes. The IRS did not dispute Scioto's claimed status as an insurance company in any of the audits of the federal consolidated tax returns for the tax years 2001 through 2006.

Wendy's excluded Scioto from its Illinois unitary business group and did not include the Scioto income in the Illinois combined income tax returns for the tax years 2001 through 2006. In 2004, the Illinois Department of Revenue (the "IDOR") issued two notices of deficiencies for corporate income taxes against Wendy's. The IDOR concluded Scioto was not a true insurance company because (1) its transactions with Wendy's and Wendy's affiliates did not involve actual risk shifting and risk distribution and, thus, did not constitute insurance for federal income tax purposes, (2) the majority of its income was derived from the intercompany royalty payments received by Oldemark, and (3) it was not regulated as an insurance company in all states in which it wrote premiums.

Wendy's paid the deficiencies under protest and filed two separate actions pursuant to the State Officers and Employees Money Disposition Act (the "Protest Monies Act")3 alleging (1) Scioto qualified as an insurance company under the Illinois Income Tax Act4 and (2) that the uniformity clause of the Illinois Constitution5 prohibited the IDOR from treating Scioto differently from other insurance companies. Wendy's filed a motion for summary judgment in May 2011, arguing that it was not required to include Scioto in its Illinois combined tax returns because Scioto is a bona fide insurance company. Furthermore, Wendy's argued that Scioto met the definition of an insurance company under federal law and, thus, the IDOR should treat it the same as all other insurance companies. Wendy's claimed that Scioto was engaged in the insurance business because it effectuated both risk shifting and risk distribution. Additionally, Wendy's argued that the Illinois Constitution prohibits treating an entity that has been determined to be a non-Illinois insurance company as anything other than an insurance company for Illinois tax purposes.

The IDOR filed a cross motion for summary judgment, claiming (1) Scioto did not meet the definition of an insurance company under the Internal Revenue Code and (2) that Scioto's royalty income was not income from an insurance business. The trial court allowed defendant's motion for summary judgment, finding Scioto was not an insurance company pursuant to the Illinois Income Tax Act.

Upon appeal, the court looked at Scioto's income from premiums, royalty income, and interest income, finding that while the income from insurance premiums was dwarfed by its royalty and interest income, it is not the percentage of income that determines whether a company is taxable, but rather the character of the business. Scioto's only business was to furnish insurance, and the ownership of Oldemark was directly related to Scioto's ability to satisfy the capitalization requirements under Vermont insurance law.

The court found that the character of Scioto's business was one of insurance and, under federal income tax law, the arrangements with affiliates met the requirements of risk shifting and risk distribution. The court also found that the conformity with federal and state laws required that Scioto be treated as an insurance company for Illinois income tax purposes, as it was treated as such by Vermont and the IRS. The court did not address the uniformity clause argument.

The court determined that Wendy's met its burden and should have been treated as an insurance company for Illinois income tax purposes, and reversed the trial court's judgment granting the defendants' motion for summary judgment. The court remanded the case back to the trial court for the issuance of an order granting Wendy's motion for summary judgment.

Footnotes

1.Wendy's International, Inc. v. Brian Hamer, 2013 IL App. (4th) 110678 (October 7, 2013).

2.For more on the Virginia income tax treatment of the royalty payments to Oldemark, see our earlier Alert.

3.30 ILCS 230/1 to 6a (West 2008).

4.35 ILCS 5/101 to 250 (West 2008).

5.Ill. Const. 1970, art. IX §2.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions