Navigate the risk

Tax liability insurance offers an insurance solution to mitigate or remove uncertainty in respect of a challenge to a tax treatment by a tax authority. Tax liability insurance can be secured before, at the time of or after a given transaction.

Sellers are increasingly using the product ahead of a transaction to take a negotiating point off the table – avoiding a price chip.

Overview

Tax liability insurance provides financial cover to the insured following the crystallization of an insured tax liability and can include interest and penalties*.

When it is used

Tax liability insurance can be used in many ways to cover local, state and federal tax liabilities. The policy offers a useful solution when:

  • Buyers and sellers cannot agree to allocate identified tax risks between themselves
  • It is not clear what line a tax authority will take on a given tax treatment or how a court would interpret a given tax law
  • The likelihood of a liability crystalizing is low but the quantum is too high to comfortably account for
  • There is a strong defense file in respect of a tax treatment but there is a risk none-the-less

Benefits

Tax liability insurance can be used to:

  • Take an identified risk off the deal table

  • Increasing the indemnity cap through insurance whilst simultaneously reducing the indemnity cap for a seller

  • Negating the concerns about the creditworthiness of a seller using an A-rated insurer as a counterparty

  • Allow for a clean exit meaning the seller can distribute proceeds of a sale and liquidate immediately from closing, boosting IRR

  • Obtain more protection than a seller is willing to give

  • Transfer a contingent liability from your balance sheet to that of an insurer

Parameters

Scope

Provides financial cover to the insured in the event of a crystallization of an insured tax liability including, where possible, defense costs, interests and penalties.

Policyholder

A Tax Liability Policy will be held by the company facing the specific tax liability in question or, where relevant, the buyer or seller under a purchase agreement.

Policy period

The policy period will seek to match the statute of limitations in the relevant jurisdiction. This is typically up to six years.

Retention or excess

This is typically a nominal amount or nil. In certain circumstances, this will be used to prevent recovery for a certain amount of defense costs.

Policy limit

The estimate amount of the tax liability plus interest, penalties and defense costs.

Premium

This is calculated on a case-by-case basis and can range between 3 – 10% of the policy limit. Factors affecting the premium include the likelihood of the liability crystalizing, the activity of the tax authority in question, the robustness of the technical defense available and the complexity of the liability.

*save that this will not include interest and penalties that may be incurred with respect to any “reportable transaction” as per Treasury Regulation section 1.6011-4(b)

Contacts

Richard French
D: +1 (917) 765-8135 C: +1 (917) 789-3566 Email

Austin Cahill JD, LLM
D: +1 (917) 765-8132 C: +1 (646) 856-2161 Email