In late May, the United States Court of Appeals for the District of Columbia Circuit affirmed a grant of summary judgment to a reinsurer in a dispute with the IRS regarding the imposition of U.S. excise taxes on a wholly foreign retrocession arrangement. The case involved Validus Reinsurance, Ltd., which is organized under the laws of and with a principal place of business in Bermuda. The court found that the relevant provision of the Internal Revenue Code did not apply extraterritorially and ordered the return of the taxes paid by Validus. Validus is a foreign reinsurance company with no operations in the United States. However, Validus does sell reinsurance to insurance companies selling policies covering risks, liabilities, and hazards within the United States. Validus also purchases retrocessions for its own reinsurance, often from other non-U.S.-based retrocessionaires. The transactions at bar involved a U.S.-based risk with reinsurance issued by Validus and a retrocession issued by a foreign retrocessionaire.
Congress had expanded the excise tax applicable to foreign insurance in order to “eliminate an unwarranted competitive advantage now favoring foreign insurers,” which were not subject to U.S. income tax laws. After another amendment, the particular provision of the Code section at issue, § 4371, requires an excise tax of one cent per dollar of premium paid on foreign-issued “reinsurance covering any of contracts taxable” as casualty insurance or life insurance. Because the retrocession is covering reinsurance that covers the taxable underlying contract, the court had to resolve an ambiguity in the statute. Looking to the fact that the government’s proposed reading would lead to a “cascading tax theory” with no limit as to the number of times that the government could collect tax on retrocessions with some underlying U.S.-based risks, the court determined that Congress had not shown an intent for the law to apply this extraterritorially. Under the canon of statutory interpretation against implying a reading of extraterritoriality absent a showing of intent by Congress, this transaction was an overbroad reading of the statute. Validus Reinsurance, Ltd. v. United States, No. 13-109 (D.C. Cir. May 26, 2015).