§833 — Treatment of Blue Cross and Blue Shield organizations, etc.
76 citing cases
Statute Text — 26 U.S.C. §833
In the case of any organization to which this section applies—
Such organization shall be taxable under this part in the same manner as if it were a stock insurance company.
The deduction determined under subsection (b) for any taxable year shall be allowed.
Subparagraph (B) of paragraph (4) of section 832(b) shall be applied by substituting “100 percent” for “80 percent”, and subparagraph (C) of such paragraph (4) shall not apply.
Except as provided in paragraph (2), the deduction determined under this subsection for any taxable year is the excess (if any) of—
25 percent of the sum of—
the claims incurred during the taxable year and liabilities incurred during the taxable year under cost-plus contracts, and
the expenses incurred during the taxable year in connection with the administration, adjustment, or settlement of claims or in connection with the administration of cost-plus contracts, over
the adjusted surplus as of the beginning of the taxable year.
The deduction determined under paragraph (1) for any taxable year shall not exceed taxable income for such taxable year (determined without regard to such deduction).
For purposes of this subsection—
The adjusted surplus as of the beginning of any taxable year is an amount equal to the adjusted surplus as of the beginning of the preceding taxable year—
increased by the amount of any adjusted taxable income for such preceding taxable year, or
decreased by the amount of any adjusted net operating loss for such preceding taxable year.
The adjusted surplus as of the beginning of the organization’s 1st taxable year beginning after December 31, 1986, shall be its surplus as of such time. For purposes of the preceding sentence and subsection (c)(3)(C), the term “surplus” means the excess of the total assets over total liabilities as shown on the annual statement.
The term “adjusted taxable income” means taxable income determined—
without regard to the deduction determined under this subsection,
without regard to any carryforward or carryback to such taxable year, and
by increasing gross income by an amount equal to the net exempt income for the taxable year.
The term “adjusted net operating loss” means the net operating loss for any taxable year determined with the adjustments set forth in subparagraph (C).
The term “net exempt income” means—
any tax-exempt interest received or accrued during the taxable year, reduced by any amount (not otherwise deductible) which would have been allowable as a deduction for the taxable year if such interest were not tax-exempt, and
the aggregate amount allowed as a deduction for the taxable year under sections 243 and 245.
The amount determined under clause (ii) shall be reduced by the amount of any decrease in deductions allowable for the taxable year by reason of section 832(b)(5)(B) to the extent such decrease is attributable to deductions under sections 243 and 245.
Any determination under this subsection shall be made by only taking into account items attributable to the health-related business of the taxpayer.
This section shall apply to—
any existing Blue Cross or Blue Shield organization, and
any other organization meeting the requirements of paragraph (3).
The term “existing Blue Cross or Blue Shield organization” means any Blue Cross or Blue Shield organization if—
such organization was in existence on
August 16, 1986
,
such organization is determined to be exempt from tax for its last taxable year beginning before
January 1, 1987
, and
no material change has occurred in the operations of such organization or in its structure after
August 16, 1986
, and before the close of the taxable year.
To the extent permitted by the Secretary, any successor to an organization meeting the requirements of the preceding sentence, and any organization resulting from the merger or consolidation of organizations each of which met such requirements, shall be treated as an existing Blue Cross or Blue Shield organization.
An organization meets the requirements of this paragraph for any taxable year if—
substantially all the activities of such organization involve the providing of health insurance,
at least 10 percent of the health insurance provided by such organization is provided to individuals and small groups (not taking into account any medicare supplemental coverage),
such organization provides continuous full-year open enrollment (including conversions) for individuals and small groups,
such organization’s policies covering individuals provide full coverage of pre-existing conditions of high-risk individuals without a price differential (with a reasonable waiting period), and coverage is provided without regard to age, income, or employment status of individuals under age 65,
at least 35 percent of its premiums are determined on a community rated basis, and
no part of its net earnings inures to the benefit of any private shareholder or individual.
For purposes of subparagraph (A), the term “small group” means the lesser of—
15 individuals, or
the number of individuals required for a small group under applicable State law.
For purposes of subsection (b), the adjusted surplus of any organization meeting the requirements of this paragraph as of the beginning of the 1st taxable year for which it meets such requirements shall be its surplus as of such time.
Paragraph (2) shall be applied to an organization described in subparagraph (B) as if it were a Blue Cross or Blue Shield organization.
An organization is described in this subparagraph if it—
is organized under, and governed by, State laws which are specifically and exclusively applicable to not-for-profit health insurance or health service type organizations, and
is not a Blue Cross or Blue Shield organization or health maintenance organization.
Notwithstanding the preceding paragraphs, paragraphs (2) and (3) of subsection (a) shall not apply to any organization unless such organization’s percentage of total premium revenue expended on reimbursement for clinical services and for activities that improve health care quality provided to enrollees under its policies during such taxable year (as reported under section 2718 of the Public Health Service Act) is not less than 85 percent.
Treasury Regulations
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Treas. Reg. §1.833-1Medical loss ratio under section 833(c)(5)
(a) In general. Section 833(a)(2) and (3) do not apply to an organization unless the organization's medical loss ratio (MLR) for a taxable year is at least 85 percent. Paragraph (b) of this section provides definitions that apply for purposes of section 833(c)(5) and this section. Paragraph (c) of this section provides rules for computing an organization's MLR under section 833(c)(5). Paragraph (d) of this section addresses the treatment under section 833 of an organization that has an MLR of less than 85 percent. Paragraph (e) of this section provides the effective/applicability date.
(b) Definitions. The following definitions apply for purposes of section 833(c)(5) and this section.
(1) Activities that improve health care quality. The term activities that improve health care quality has the same meaning as that term has in section 300gg-18 of title 42, United States Code and the regulations issued under that section (see 45 CFR 158.150).
(2) Reimbursement for clinical services. The term reimbursement for clinical services has the same meaning as that term has in section 300gg-18 of title 42, United States Code and the regulations issued under that section (see 45 CFR 158.140).
(3) Total premium revenue. The term total premium revenue means the total amount of premium revenue (excluding federal and state taxes and licensing or regulatory fees and after accounting for payments or receipts for risk adjustment, risk corridors, and reinsurance under sections 1341, 1342, and 1343 of the Patient Protection and Affordable Care Act, Public Law 111-148 (124 Stat. 119 (2010)) (42 U.S.C. 18061, 18062, and 18063)) as those terms are used for purposes of section 300gg 18(b) of title 42, United States Code and the regulations issued under that section (see 45 CFR part 158).
(c) Computation of MLR under section 833(c)(5)—(1) In general. Starting with the first taxable year beginning after December 31, 2015, and for all succeeding taxable years, an organization's MLR with respect to a taxable year is the ratio, expressed as a percentage, of the MLR numerator, as described in paragraph (c)(1)(i) of this section, to the MLR denominator, as described in paragraph (c)(1)(ii) of this section.
(i) MLR numerator. The numerator of an organization's MLR is the total premium revenue expended on reimbursement for clinical services and activities that improve health care quality provided to enrollees under its policies for the taxable year, computed using a three-year period in the same manner as those expenses are computed for the plan year for purposes of section 300gg-18(b) of title 42, United States Code and regulations issued under that section (see 45 CFR part 158).
(ii) MLR denominator. The denominator of an organization's MLR is the organization's total premium revenue for the taxable year, computed using a three-year period in the same manner as the total premium revenue is computed for the plan year for purposes of section 300gg-18(b) of title 42, United States Code and regulations issued under that section (see 45 CFR part 158).
(2) Transition rules. The transition rules in paragraphs (c)(2)(i) and (ii) of this section apply solely for the first taxable year beginning after December 31, 2013, and the first taxable year beginning after December 31, 2014.
(i) First taxable year beginning after December 31, 2013. For the first taxable year beginning after December 31, 2013, the numerator of an organization's MLR is the total premium revenue expended on reimbursement for clinical services and activities that improve health care quality provided to enrollees under its policies for the first taxable year beginning after December 31, 2013, and the denominator of an organization's MLR is the organization's total premium revenue for the first taxable year beginning after December 31, 2013.
(ii) First taxable year beginning after December 31, 2014. For the first taxable year beginning after December 31, 2014, the numerator of an organization's MLR is the sum of the total premium revenue expended on reimbursement for clinical services and activities that improve health care quality provided to enrollees under its policies for the first taxable year beginning after December 31, 2013, and for the first taxable year beginning after December 31, 2014, and the denominator of an organization's MLR is the sum of the organization's total premium revenue for the first taxable year beginning after December 31, 2013, and for the first taxable year beginning after December 31, 2014.
(d) Failure to qualify under section 833(c)(5)—(1) In general. If, for any taxable year, an organization's MLR is less than 85 percent, then beginning in that taxable year and for each subsequent taxable year for which the organization's MLR remains less than 85 percent, paragraphs (d)(1)(i) and (ii) of this section apply.
(i) Special deduction. The organization is not allowed the special deduction set forth in section 833(b).
(ii) Premiums earned. The organization must take into account 80 percent, rather than 100 percent, of its unearned premiums under section 832(b)(4) as it applies to other non-life insurance companies.
(2) No material change. An organization's loss of eligibility for the treatment provided by sections 833(a)(2) and (3) solely by reason of section 833(c)(5) will not be treated as a material change in the operations of such organization or in its structure for purposes of section 833(c)(2)(C).
(e) Effective/applicability date. This section applies to taxable years beginning after December 31, 2016. However, taxpayers may rely on this section for taxable years beginning after December 31, 2009.
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Treas. Reg. §1.833-1(a)In general.
In general. Section 833(a)(2) and (3) do not apply to an organization unless the organization's medical loss ratio (MLR) for a taxable year is at least 85 percent. Paragraph (b) of this section provides definitions that apply for purposes of section 833(c)(5) and this section. Paragraph (c) of this section provides rules for computing an organization's MLR under section 833(c)(5). Paragraph (d) of this section addresses the treatment under section 833 of an organization that has an MLR of less than 85 percent. Paragraph (e) of this section provides the effective/applicability date.
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Treas. Reg. §1.833-1(b)Definitions.
Definitions. The following definitions apply for purposes of section 833(c)(5) and this section.
(1) Activities that improve health care quality. The term activities that improve health care quality has the same meaning as that term has in section 300gg-18 of title 42, United States Code and the regulations issued under that section (see 45 CFR 158.150).
(2) Reimbursement for clinical services. The term reimbursement for clinical services has the same meaning as that term has in section 300gg-18 of title 42, United States Code and the regulations issued under that section (see 45 CFR 158.140).
(3) Total premium revenue. The term total premium revenue means the total amount of premium revenue (excluding federal and state taxes and licensing or regulatory fees and after accounting for payments or receipts for risk adjustment, risk corridors, and reinsurance under sections 1341, 1342, and 1343 of the Patient Protection and Affordable Care Act, Public Law 111-148 (124 Stat. 119 (2010)) (42 U.S.C. 18061, 18062, and 18063)) as those terms are used for purposes of section 300gg 18(b) of title 42, United States Code and the regulations issued under that section (see 45 CFR part 158).
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Treas. Reg. §1.833-1(c)Computation of MLR under section 833(c)(5)—(1) In general.
Computation of MLR under section 833(c)(5)—(1) In general. Starting with the first taxable year beginning after December 31, 2015, and for all succeeding taxable years, an organization's MLR with respect to a taxable year is the ratio, expressed as a percentage, of the MLR numerator, as described in paragraph (c)(1)(i) of this section, to the MLR denominator, as described in paragraph (c)(1)(ii) of this section.
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Treas. Reg. §1.833-1(d)Failure to qualify under section 833(c)(5)—(1) In general.
Failure to qualify under section 833(c)(5)—(1) In general. If, for any taxable year, an organization's MLR is less than 85 percent, then beginning in that taxable year and for each subsequent taxable year for which the organization's MLR remains less than 85 percent, paragraphs (d)(1)(i) and (ii) of this section apply.
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Treas. Reg. §1.833-1(e)Effective/applicability date.
Effective/applicability date. This section applies to taxable years beginning after December 31, 2016. However, taxpayers may rely on this section for taxable years beginning after December 31, 2009.
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Treas. Reg. §1.833-1(i)Special deduction.
Special deduction. The organization is not allowed the special deduction set forth in section 833(b).
(ii) Premiums earned. The organization must take into account 80 percent, rather than 100 percent, of its unearned premiums under section 832(b)(4) as it applies to other non-life insurance companies.
(2) No material change. An organization's loss of eligibility for the treatment provided by sections 833(a)(2) and (3) solely by reason of section 833(c)(5) will not be treated as a material change in the operations of such organization or in its structure for purposes of section 833(c)(2)(C).
76 Citing Cases
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui
zed under prior law, we note that "Recent legislation has limited the. ability to transfer losses among partners." Santa Monica Pictures, LLC v. Commissioner, T.C. Memo. 2005-104 n.81. The American Jobs Creation Act of 200.4 (AJCA), Pub. L. 108-357, sec. 833, 118 Stat. 1589, amended sections 704, 734, and 743 effective for transactions entered into after October 22, 2004.· The amendments to section 704 provide that in the case of contributions of built-in. loss property to a partnership, the bui