§ 264.
(a)
General rule
No deduction shall be allowed for—
(1)
Premiums on any life insurance policy, or endowment or annuity contract, if the taxpayer is directly or indirectly a beneficiary under the policy or contract.
(2)
Any amount paid or accrued on indebtedness incurred or continued to purchase or carry a single premium life insurance, endowment, or annuity contract.
(3)
Except as provided in subsection (d), any amount paid or accrued on indebtedness incurred or continued to purchase or carry a life insurance, endowment, or annuity contract (other than a single premium contract or a contract treated as a single premium contract) pursuant to a plan of purchase which contemplates the systematic direct or indirect borrowing of part or all of the increases in the cash value of such contract (either from the insurer or otherwise).
(4)
Except as provided in subsection (e), any interest paid or accrued on any indebtedness with respect to 1 or more life insurance policies owned by the taxpayer covering the life of any individual, or any endowment or annuity contracts owned by the taxpayer covering any individual.
Paragraph (2) shall apply in respect of annuity contracts only as to contracts purchased after March 1, 1954. Paragraph (3) shall apply only in respect of contracts purchased after August 6, 1963. Paragraph (4) shall apply with respect to contracts purchased after June 20, 1986.
(b)
Exceptions to subsection (a)(1)
Subsection (a)(1) shall not apply to—
(1)
any annuity contract described in section 72(s)(5), and
(2)
any annuity contract to which section 72(u) applies.
(c)
Contracts treated as single premium contracts
For purposes of subsection (a)(2), a contract shall be treated as a single premium contract—
(1)
if substantially all the premiums on the contract are paid within a period of 4 years from the date on which the contract is purchased, or
(2)
if an amount is deposited after March 1, 1954, with the insurer for payment of a substantial number of future premiums on the contract.
(d)
Exceptions
Subsection (a)(3) shall not apply to any amount paid or accrued by a person during a taxable year on indebtedness incurred or continued as part of a plan referred to in subsection (a)(3)—
(1)
if no part of 4 of the annual premiums due during the 7-year period (beginning with the date the first premium on the contract to which such plan relates was paid) is paid under such plan by means of indebtedness,
(2)
if the total of the amounts paid or accrued by such person during such taxable year for which (without regard to this paragraph) no deduction would be allowable by reason of subsection (a)(3) does not exceed $100,
(3)
if such amount was paid or accrued on indebtedness incurred because of an unforeseen substantial loss of income or unforeseen substantial increase in his financial obligations, or
(4)
if such indebtedness was incurred in connection with his trade or business.
For purposes of applying paragraph (1), if there is a substantial increase in the premiums on a contract, a new 7-year period described in such paragraph with respect to such contract shall commence on the date the first such increased premium is paid.
(e)
Special rules for application of subsection (a)(4)
(1)
Exception for key persons
(2)
Interest rate cap on key persons and pre-1986 contracts
(B)
Applicable rate of interest
For purposes of subparagraph (A)—
(ii)
Pre-1986 contracts
In the case of indebtedness on a contract purchased on or before June 20, 1986—
(I)
which is a contract providing a fixed rate of interest, the applicable rate of interest for any month shall be the Moody’s rate described in clause (i) for the month in which the contract was purchased, or
(II)
which is a contract providing a variable rate of interest, the applicable rate of interest for any month in an applicable period shall be such Moody’s rate for the third month preceding the first month in such period.
For purposes of subclause (II), the term “applicable period” means the 12-month period beginning on the date the policy is issued (and each successive 12-month period thereafter) unless the taxpayer elects a number of months (not greater than 12) other than such 12-month period to be its applicable period. Such an election shall be made not later than the 90th day after the date of the enactment of this sentence and, if made, shall apply to the taxpayer’s first taxable year ending on or after October 13, 1995, and all subsequent taxable years unless revoked with the consent of the Secretary.
(3)
Key person
For purposes of paragraph (1), the term “key person” means an officer or 20-percent owner, except that the number of individuals who may be treated as key persons with respect to any taxpayer shall not exceed the greater of—
(B)
the lesser of 5 percent of the total officers and employees of the taxpayer or 20 individuals.
(4)
20-percent owner
For purposes of this subsection, the term “20-percent owner” means—
(A)
if the taxpayer is a corporation, any person who owns directly 20 percent or more of the outstanding stock of the corporation or stock possessing 20 percent or more of the total combined voting power of all stock of the corporation, or
(B)
if the taxpayer is not a corporation, any person who owns 20 percent or more of the capital or profits interest in the taxpayer.
(5)
Aggregation rules
(A)
In general
For purposes of paragraph (4)(A) and applying the $50,000 limitation in paragraph (1)—
(i)
all members of a controlled group shall be treated as one taxpayer, and
(ii)
such limitation shall be allocated among the members of such group in such manner as the Secretary may prescribe.
(f)
Pro rata allocation of interest expense to policy cash values
(2)
Allocation
For purposes of paragraph (1), the portion of the taxpayer’s interest expense which is allocable to unborrowed policy cash values is an amount which bears the same ratio to such interest expense as—
(A)
the taxpayer’s average unborrowed policy cash values of life insurance policies, and annuity and endowment contracts, issued after June 8, 1997, bears to
(B)
the sum of—
(i)
in the case of assets of the taxpayer which are life insurance policies or annuity or endowment contracts, the average unborrowed policy cash values of such policies and contracts, and
(ii)
in the case of assets of the taxpayer not described in clause (i), the average adjusted bases (within the meaning of section 1016) of such assets.
(3)
Unborrowed policy cash value
For purposes of this subsection, the term “unborrowed policy cash value” means, with respect to any life insurance policy or annuity or endowment contract, the excess of—
(A)
the cash surrender value of such policy or contract determined without regard to any surrender charge, over
(B)
the amount of any loan with respect to such policy or contract.
If the amount described in subparagraph (A) with respect to any policy or contract does not reasonably approximate its actual value, the amount taken into account under subparagraph (A) shall be the greater of the amount of the insurance company liability or the insurance company reserve with respect to such policy or contract (as determined for purposes of the annual statement approved by the National Association of Insurance Commissioners) or shall be such other amount as is determined by the Secretary.
(4)
Exception for certain policies and contracts
(A)
Policies and contracts covering 20-percent owners, officers, directors, and employees
Paragraph (1) shall not apply to any policy or contract owned by an entity engaged in a trade or business if such policy or contract covers only 1 individual and if such individual is (at the time first covered by the policy or contract)—
(i)
a 20-percent owner of such entity, or
(ii)
an individual (not described in clause (i)) who is an officer, director, or employee of such trade or business.
A policy or contract covering a 20-percent owner of such entity shall not be treated as failing to meet the requirements of the preceding sentence by reason of covering the joint lives of such owner and such owner’s spouse.
(B)
Contracts subject to current income inclusion
(C)
Coordination with paragraph (2)
(5)
Exception for policies and contracts held by natural persons; treatment of partnerships and S corporations
(A)
Policies and contracts held by natural persons
(ii)
Exception where business is beneficiary
(iii)
Special rules
(I)
Certain trades or businesses not taken into account
(II)
Limitation on unborrowed cash value
(B)
Treatment of partnerships and S corporations
(6)
Special rules
(A)
Coordination with subsection (a) and section 265
If interest on any indebtedness is disallowed under subsection (a) or section 265—
(i)
such disallowed interest shall not be taken into account for purposes of applying this subsection, and
(ii)
the amount otherwise taken into account under paragraph (2)(B) shall be reduced (but not below zero) by the amount of such indebtedness.
(B)
Coordination with section 263A
(8)
Aggregation rules
(B)
Treatment of insurance companies
([Aug. 16, 1954, ch. 736], [68A Stat. 77]; [Pub. L. 88–272, title II, § 215(a)], (b), Feb. 26, 1964, [78 Stat. 55]; [Pub. L. 99–514, title X, § 1003(a)], (b), Oct. 22, 1986, [100 Stat. 2388]; [Pub. L. 104–191, title V, § 501(a)], (b), Aug. 21, 1996, [110 Stat. 2090]; [Pub. L. 105–34, title X, § 1084(a)], (b)(1), (c), title XVI, § 1602(f)(1)–(3), Aug. 5, 1997, [111 Stat. 951], 952, 1094, 1095; [Pub. L. 105–206, title VI, § 6010](o)(1)–(3)(A), (4)(A), (5), July 22, 1998, [112 Stat. 816]; [Pub. L. 105–277, div. J, title IV, § 4003(i)], Oct. 21, 1998, [112 Stat. 2681–910].)