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RIMS ERM Conference 2021: IRS Receives Global Enterprise Risk Management Award of Distinction

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On Friday, RIMS President Ellen Dunkin presented the Internal Revenue Service (IRS) with the 2021 Global Enterprise Risk Management Award of Distinction at the Society’s ERM Conference in New York City. The honor recognized the IRS’s outstanding achievements that allow it to anticipate emerging risks and establish the appropriate culture, processes and structures to strengthen strategic decision-making. 

Navigating the impacts of an extended government shutdown, sweeping tax reforms, operational disruption due to the COVID-19 pandemic and providing essential financial relief to thousands of businesses and individuals across the United States, the IRS ERM program helped the agency to remain resilient and effectively manage a multitude of dynamic challenges.

“Through the ERM program’s focus on embedding risk management capabilities into the existing structures and operations, the agency has become more risk aware,” said Jeffrey Tribiano, the IRS’s deputy commissioner for operations support. “There is also greater collaboration across the enterprise to address significant risks that require efforts from multiple business units. By effectively highlighting the enterprise-wide effects of risks, and by capturing risks on the enterprise risk profile, ERM has helped garner agency-wide attention and support for measures to help address the risks. Since IRS established its ERM program in 2014, it has played a critical role in helping the agency to better understand and respond to risk, thus making the organization more resilient and better able to serve the American people.” 

This year, RIMS honored three other organizations for their exceptional accomplishments developing, implementing and maturing ERM within their organizations. Honorees included:

  • 2021 RIMS Global ERM Award of Distinction Honorable Mention: Dallas Fort Worth International Airport
  • 2021 RIMS ERM Award of Distinction–U.S. Honoree: Eversource Energy
  • 2021 RIMS ERM Award of Distinction–International Honoree: EuroChem

“Enterprise risk management continues to deliver exceptional value to organizations, allowing them to successfully address emerging risks while also identifying and leveraging opportunities that might not have otherwise been apparent,” Dunkin said. “Risk professionals get better—and deliver better results—by learning from each other. We are so grateful to the IRS and all of honorees for sharing their ERM journeys with the RIMS community and doing their part to advance this rewarding profession.” 

Judging criteria for the Global ERM Award of Distinction include measurable, tangible and sustainable results; unique program strengths; ERM innovation that links risk with strategy or performance; and the program’s ability to build sustaining risk management capabilities. The panel comprises members of RIMS Strategic and Enterprise Risk Management Council.

RIMS ERM Conference 2021 was held November 11-12 in New York City and virtually. The program themed “ERM in an ESG World” focused on the growing risks stemming from environmental, social and governance challenges.

Captives under Scrutiny

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A mere decade ago, captive insurers were viewed by most regulators as a small, even exotic part of the insurance industry. Most were assumed to be offshore and aroused little attention. Now, captives have gone mainstream. A sizable, but undetermined, portion of the property casualty coverage is placed through, or issued by, captives. A good guess is 30% to 40%, but no one has been able to establish an accurate number. Thirty-nine states have some form of captive or self-insurance law. Captives are now part of everyday life for regulators and the result is more scrutiny.

The issues now on the agenda for captives are significant:

• XXX and AXXX Reinsurance Captives

According to Superintendent Joseph Torti (Rhode Island), 80% to 85% of life and annuity insurance is ceded to reinsurers. Much of the so-called “excess reserves” required by Rules XXX and AXXX are ceded to captive reinsurers or special purpose vehicles owned by the same licensed life and annuity companies which cede the risk. Because the amount of this risk is so large, any trouble collecting this reinsurance could have a major effect on the industry. Some regulators, even a few who approved these cessions, have criticized these arrangements. In some cases, the collateral for the reserves has been subject to parental guarantees, which tends to undermine the confidence which can be placed in the transaction. The NAIC is continuing its examination and has met some stiff resistance from the industry.

• Multistate Insurers 

The proposal to amend the preamble to the NAIC Accreditation Standards to treat captive reinsurers as “multistate insurers” (with some limited exceptions) was withdrawn at the last NAIC meeting in Louisville. A new proposal should be forthcoming (and may have already been issued by the date of publication of this Newsletter). The premise of this proposed change is that non-domiciliary regulators need to know how insurance issued in another state may affect the citizens of their state. The opposite point of view is that the regulators of the domicile have done their job and should be trusted by their regulator colleagues and that the transaction should not affect third parties, anyway. Some say the risk to the domestic captive industry is existential. If enacted and enforced, the proposed change could, ironically, drive much of the industry offshore and therefore beyond the authority of the regulators promoting it.

• Nonadmitted Risk and Reinsurance Act

Captives have been inadvertently drawn into the regulatory structure imposed by this federal legislation intended to streamline the reporting and payment of surplus lines taxes. It has shined a spotlight on the payment (or non-payment) of state self-procurement taxes, but, ironically, does not in any way alter either the application of them or their payment. While risk retention groups (RRGs) were able to get an exemption from the law during its formative phase, captives, because they are (generally) single state entities and therefore not doing business as a “non-admitted” insurer, did not even attempt to get an exemption. Now there is a group, the Coalition for Captive Insurance Clarity, which is seeking a legislative exemption on Capitol Hill.

• Insurance Company Income Taxation

The Internal Revenue Service is investigating several insurance pooling mechanisms and, in some cases, the captives that have utilized them to establish third party risk—which is essential for an insurer to get the benefit of insurance tax treatment. This investigation is presumably a response to the rapid growth of “micro-captives” as mechanisms to assist with avoidance of taxation in estate planning and wealth transfer. This process is in its early stages, but is likely to produce some dramatic results.

• Federal Home Loan Bank (FHLB)

Who would have thought that the FHLB would have anything to do with captives?  It appears that some captives, and at least one risk retention group, are members of the FHLB, which allows them to obtain federal funds at advantageous rates. The Federal Housing Finance Agency (FHFA), which regulates the twelve FHLBs, has proposed a rule that would exclude all captives from membership by defining “insurance company” to mean an entity which “has as its primary business the underwriting of risk for nonaffiliated persons.”

Why is this happening now? While there are numerous reasons for these kinds of actions, there are two primary motivators. First, regulation is always subject to the problem of “what’s worth doing is worth overdoing.” Reasonable minds can differ on the interpretation of statutes and regulations. Each of the above includes an element of “pushing the envelope,” which can be significant or insignificant issues depending on your point of view. Second, captives have been caught in the vortex of regulatory competition. As we have discussed before in this column, the National Association of Insurance Commissioners (NAIC), the Federal Insurance Office (FIO), and the International Association of Insurance Supervisors (IAIS) are jockeying for position and power. Add to the mix the position of the Organization for Economic Cooperation and Development (OECD) that captives may be used as a device to avoid taxation (“base erosion” in OECD parlance), and you have a tumult of regulatory action which at the same time can be challenging and conflicting in its goals and implementation.

What does this bode for the future of captives? Once you have been seen on the radar, it is hard to drop off. Captives can expect more of the same for the foreseeable future.

This blog was previously published on the Morris, Manning & Martin, LLP website.

Risk Management Links of the Day: 12.15.09

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vaccine

  • Despite yesterday’s passage of Wall Street Reform and Consumer Protection Act (HR 4173) in the House, regulators across the globe are still dragging their feet on financial sector reform. Paul Volcker continues to tell everyone who will listen — and even those who won’t — about the grave need to restructure the industry, but no one is doing anything tangible about it. “Two years after the start of the deepest recession since the 1930s, no U.S. or European authority has put in force a single measure that would transform the financial system, based on data compiled by Bloomberg. No rule- or law-making body is actively considering the automatic dismantling of banks that Volcker told Congress are sheltered by access to an implicit safety net.” Acclaimed economist and Nobel-winner Joseph Stiglitz says Volcker is “spot on” and Robert Creamer makes a similar “if it’s too big to fail, it’s too big to exist” plea over at The Huffington Post. Bankers, for their part, assured Obama today that they are willing to play ball during their visit to the White House. We’ll see.
  • The New Yorker‘s 12-page feature “The Most Failed State” profiles Somalia’s President Sheikh Sharif Sheikh Ahmed and details the desolate national landscape that has given rise to the pirates that dominate the country’s coastline. (Subscription required) Ahmedou Ould-Abdullah, the U.N.’s special representative to Somalia, offers this bleak analysis: “Somalia is just as bad as it has ever been, perhaps worse. I know that it is politically incorrect to say so, but there can be no humanitarian ’emergency’ that should continue for twenty years — it’s a contradiction in terms.”
  • Some are concerned that China’s rush to embrace nuclear power in lieu of dirty coal plants could lead builders to cut corners in regards to safety. “China must maintain nuclear safeguards in a national business culture where quality and safety sometimes take a back seat to cost-cutting, profits and outright corruption — as shown by scandals in the food, pharmaceutical and toy industries and by the shoddy construction of schools that collapsed in the Sichuan Province earthquake last year.”

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