Internal Revenue Service Department of the Treasury Wa shington, DC 20224 Number: 200949007 Release Date: 12/4/2009 Index Number: 72.00-00, 165.03-00, 1.11-00, 1092.02-01 -------------------- ------------------------------- ----------------------- Person To Contact: ----------------------------------------- Telephone Number: --------------------- Refer Reply To: CC:FIP:B04: PLR - 112274-09 Date: July 30, 2009 Taxpayer = -------------------------------------------- IC = --------------------------------------------------------------------- Group Contract = -------------------------------------------------------------------------------------- Certificate = --------------------------------------------- ----------------------------------------- -------------------------------------------------------------------------------------------------------------------- Dear -------------- : This is in response to your request for various rulings regarding the appl ication of the Internal Revenue Code to a transaction you contemplate undertaking. FACTS The following is represented: Taxpayer is an individual. Taxpayer intends to establish an investment account (Account) with a financial institution that offers r etail investment services (Sponsor). IC is a corporation taxable under part I of subchapter L of the Internal Revenue Code. IC issues Group Contract to Sponsor under which Sponsor can sell on IC’s behalf Certificates to its customers ( e.g. , Taxpayer) who open an Account under its auspices. Under this arrangement, Taxpayer will invest money in the Account. The amount that Taxpayer can invest is limited by the Certificate; Taxpayer can invest more only with IC’s prior approval. In exchange for a fee, the Certificate obligates IC to provide Taxpayer a guaranteed minimum benefit: if through a series of prescribed annual withdrawals by Taxpayer the value of the Account is exhausted, IC will commence monthly payments of a specified amount to Taxpayer, the “an nuitant” 1 , for life (Monthly Benefit).

1 Under the Group Contract and Certificate, the annuitant must be an individual who is the owner of, or has a beneficial interest in, the Account.

2 PLR - 112274-09 To keep the Certificate in-force, Taxpayer must manage the Account within the parameters specified in the Certificate and must periodically pay IC a Charge (which may change once each ‘certificate year’, or, if con strained by the terms of the Certificate, at specified anniversaries). Taxpayer can allocate the Account to only those specified regulated investment companies or other publicly traded securities that are approved by IC (because they are consistent with IC’s prescribed investment strategy) and Sponsor will periodically advise IC of Taxpayer’s transactions in the Account. The Monthly Benefit is determined by reference to a Benefit Base. At the time of issuance of the Certificate, the Benefit Base is the value of the Account. The Benefit Base is increased by additional cash investments, subject to the limit on the amount invested imposed by the Certificate. Terms of some Certificates provide that the Benefit Base will be adjusted on each anniversary of t he Certificate’s effective date to be the greatest of 1) the value of the Account on the anniversary, 2) the maximum value of the Account on a prior anniversary, or 3) a minimum value (if specified) in the Certificate. Taxpayer’s ability to access the va lue of the Account is controlled by the Certificate. Taxpayer can commence Annual W ithdrawals from the Account at Taxpayer’s discretion. The amount of such withdrawals is determined under a formula specified in the Certificate consistent with the Benefit Base and the annuitant’s ( i.e. , Taxpayer’s) life expectancy; the amount is recalculated (but cannot decrease) on each certificate anniversary. Once begun, Annual W ithdrawals must continue; no portion of an Annual W ithdrawal can be reserved for a subseque nt year. Taxpayer may elect to apply the value of the Account to purchase a lifetime fixed immediate annuity contract at guaranteed purchase rates specified in the Certificate. W ithdrawals in excess of the Annual Permitted Wi thdrawal Amount (Excess W ithd rawals) will reduce (including to the point of eliminating) the Benefit Base. The Benefit Base may increase but will not decrease except for a decrease due to an Excess W ithdrawal. 2 The Certificate terminates upon the occurrence of specified conditions, including maturity, Taxpayer’s death, failure to pay the Charge, ceasing to own the Account, investing any portion of the Account in unapproved instruments, or making an Excess Wi thdrawal that reduces the value of the Account to zero. If the value of th e Account is reduced to zero for any reason other than a withdrawal that includes an Excess Wi thdrawal, and the annuitant ( i.e. , Taxpayer) is still alive, the Certificate obligates IC to pay the Monthly Benefit, which is determined by

2 Som e Certificates allow the Customer to elect at issuance a cost-of-living-adjustment feature by which the Benefit Base will increase by a specified percentage per annum.

3 PLR - 112274-09 reference to the Bene fi t Base and the last determination of the permitted Annual Wi thdrawal amount. The Certificate will have no cash value and Taxpayer cannot assign or transfer any ownership rights, including the rights to the Monthly Benefit and to purchase a fixed annui ty. Under applicable state regulations, the Group Contract will be an annuity contract. Taxpayer will purchase Certificate only if the regulations of his state of residence treat the Group Contract as an annuity contract. An actuarial analysis of the premise underlying the Group Contract concludes that the arrangement is substantially more sensitive to the risk of longevity than in volatility of the securities markets, and that the predominant risk mitigated is longevity risk with incidental market ris k protection. Wi th respect to the structure of the arrangement, it is represented that IC will not have direct or indirect control over investment decisions with respect to the Account covered by the Certificate. Sponsor will not be related to IC within the meaning of § 1563(a) of the Internal Revenue Code. The universe of investments that the Account will be permitted to hold will not be limited to regulated investment companies, within the meaning of § 851, managed by IC or any of its affiliates. IC will not impose any significant barriers to reallocations between and among eligible assets within the Account. IC may require automatic rebalancing of the Account to bring it into accord with the asset allocation strategy for the account. IC will not ha ve access to any non - public information about RICs in which the Account may be invested. REQUESTED RULINGS 1. That the Certificate will be treated as an annuity contract within the meaning of § 72. 2. That the Certificate will not create a right to re imbursement for losses realized on Account assets for purposes of § 165(a) and thus will not prevent Taxpayer from currently deducting such losses. 3. That the Certificate will not be treated as diminishing Taxpayer’s risk of loss on Account assets for p urposes of applying the holding period requirements of § 1(h)(11). 4. That the Certificate and Account assets will not, either at the time of issuance of the Certificate or subsequently, be viewed as components of a straddle within the meaning of § 1092.

4 PLR - 112274-09 LA W a nd ANALYSIS Requested Ruling #1 Section 72(a) provides that except as otherwise provided, gross income includes any amount received as an annuity (whether for a period certain or during one or more lives) under an annuity, endowment, or life insu rance contract. The Code does not otherwise define an annuity contract or “any amount received as an annuity.” Section 1.72-2(a)(1) of the Income Tax Regulations provides that the contracts under which amounts paid will be subject to the provisions of § 72 include contracts which are considered to be life insurance, endowment, and annuity contracts in accordance with the customary practice of life insurance companies. Under §§ 1.72 - 1(b) and (c), as a general matter “amounts received as an annuity” are a mounts which are payable at regular intervals over a period of more than one full year from the date on which they are deemed to begin, provided the total of the amounts so payable or the period for which they are to be paid can be determined as of that da te, a proportionate part of which is considered to represent a return of premiums or other consideration paid. Under § 1.72-2(b), amounts are considered as “amounts received as an annuity” only if all of the following tests are met: 1) the amounts must be received on or after the annuity starting date, 2) the amounts must be payable in periodic installments at regular intervals over a period of more than one full year from the annuity starting date, and 3) the amounts payable must be determinable either di rectly from the terms of the contract or indirectly from the use of either mortality tables or compound interest computations, or both (if the contract is a variable contract, § 1.72-2(b)(3) provides an alternative formulation of this requirement). Under § 1.72-4(b)(1), the annuity starting date is the first day of the first period for which an amount is received as an annuity; the first day of the first period for which an amount is received as an annuity shall be the later of 1) the date upon which the o bligations under the contract became fixed or 2) the first day of the period which ends on the date of the first annuity payment. Explaining imposition of an “income-out-first” rule under §72(e) for withdrawals prior to the annuity starting date, the Sen ate report described a commercial annuity as a promise by a life insurance company to pay the beneficiary a given sum for a specified period, which period may terminate at death. Annuity contracts permit the systematic liquidation of an amount consistin g of principal (the policyholder’s investment in the contract) and income….An individual may purchase an annuity by payment of a single premium or by making periodic payments. A deferred annuity contract may, at the election of the individual, be

5 PLR - 112274-09 surrende red before annuity payments begin, in exchange for the cash value of the contract….The committee believes that the use of deferred annuity contracts to meet long-term investment goals, such as income security, is still a worthy ideal. S. Rep. No. 97-494 a t 349-50 (1982)(footnote omitted). The report also explains § 72’s utilization of an exclusion ratio regime: “[a] portion of each amount paid to a policyholder as an annuity generally is taxed as ordinary income under an ‘exclusion ratio’ (§ 72(b)) comput ed to reflect the projected nontaxable return of investment in the contract and the taxable growth on the investment.” Id . As described in Samuel v. Commissioner , 306 F.2d 682, 687 (1 st Cir. 1962), aff’g Archibishop Samuel Trust v. Commissioner , 36 T.C. 641 (1961), acq ., 1964-2 C.B. 3 [i]nherent in the concept of an annuity is a transfer of cash or property from one party to another in return for a promise to pay a specific periodic sum for a stipulated time interval….Again, in the normal annuity situati on, once the annuitant has transferred the cash or property to the obligor and has received his contractual right to periodic payments, he is unconcerned with the ultimate disposition of the property transferred once it is in the obligor’s hands. In Life & Health Insurance , Black and Skipper state that “[i]n the broadest sense, an annuity is simply a series of periodic payments” and while “[l]ife insurance has as its principal mission the creation of a fund [, t]he annuity, on the contrary, has as its bas ic function the systematic liquidation of a fund.” Accordingly, [e]ach payment under an annuity may be considered to represent a combination of principal and interest income and a survivorship element. Although not completely accurate, one can view the operation of an annuity as follows: If a person exactly lives out his or her life expectancy, he or she would have neither gained nor lost through utilizing the annuity contract. Kenneth Black, Jr. and Harold D. Skipper, Jr., Life & Health Insurance 161-62 (13 th ed. 2000). Elsewhere an annuity has been described as “a right to receive fixed, periodic payments, for a specified period of time” and an annuity contract as

6 PLR - 112274-09 a contract under which, in exchange for the payment of a premium or premiums, the rec ipient thereof is bound to make future payments, typically at regular intervals, in amounts, to payees, and conditions specified in the parties’ agreement. The determining characteristic of an annuity is that the annuitant has an interest only in the peri odic payments and not in any principal fund or source from which they may be derived. Although an individual who purchases an annuity remains the technical owner of the asset, he or she does not retain total control over that asset and does not have unfet tered access to the full amount of his or her own “property”. 4 Am. Jur. 2d Annuities , § 1 (2008). Moreover, “[t]he purchaser of an annuity surrenders all rights to the money paid, and therefore installment payments of a debt, or payments of interest on a debt, do not constitute an annuity.” Id ., § 2. Wh ether an annuity contract allows the owner to access the value of the contract through other than periodic (“annuity”) payments is a product of state statute, Appleman on Insurance § 182:05[B][7] and [8] (2d ed. 2008). Here, on balance the Group Contract (and hence the Certificate) possess the essential attributes of an annuity. It is true that the Certificate may not, “at the election of the [holder], be surrendered before annuity payments begin, in exchange for the cash value of the contract”, S. Rep. No. 97-464 at 349. It is also true that because the annuity starting date is contingent upon the value of the Account being exhausted while Taxpayer is alive, it is not the case that “if [Taxpayer] exactly lives out his or her life expectancy, he or she would have neither gained nor lost through utilizing the annuity contract”, Life & Health Insurance , at 162, but these conditions are not dispositive. The Certificate and the amounts paid under the Certificate meet the requirements of §§ 1.72-1(b) and (c), 1.72-2(a)(1) and (b)(3), and 1.72-4(b)(1) as annuity contracts and annuity payments. Additionally, the Certificate is purchased “by making periodic payments” of premium for “a promise by a life in surance company to pay the beneficiary a given sum for a specified period, which period may terminate at death”, and is “used to provide long-term income security.” S. Rep. No. 97-464 at 349. Moreover, it has ”the determining characteristic … that the an nuitant has an interest only in the periodic payments and not in any principal fund or source from which they may be derived.” 4 Am. Jur. 2d Annuities , §1. The Certificate Holder will have “surrender[ed] all rights to the money paid”, thereby distinguish ing the Certificate from “installment payments of a debt, or payments of interest on a debt”, which are not annuities. Id .

7 PLR - 112274-09 The Certificate is not a contract to pay interest. See § 1.72-14(a) 3 . Accordingly, the Certificate will be treated as an annuit y contract within the meaning of § 72. 4

Requested Ruling #2 Section 165(a) allows as a deduction any loss not compensated for by insurance or otherwise. Section 1.165-1(d)(2)(i) provides that if a casualty or other event occurs which may result in a loss, and in that year there exists a claim for reimbursement with respect to which there is a reasonable prospect of recovery, no portion of the loss with respect to which reimbursement may be received is sustained until it can be ascertained with reaso nable certainty whether or not the reimbursement will be received. Wh ether a reasonable prospect of recovery exists with respect to a claim for reimbursement of a loss is a question of fact to be determined upon an examination of all facts and circumstanc es. In Dunne v. Commissioner , 29 BTA 1109 (1934), aff'd , 75 F.2d 255 (2d Cir. 1935), the taxpayer and two others were the beneficial owners of three brokerage accounts that were opened at the recommendation of a wealthy friend who, desiring to assist the m in making money on the stock market, guaranteed the accounts. The court held that the taxpayer's subsequent losses were not deductible because of the guarantee. In Boston Elevated Rwy v. Commissioner , 16 TC 1084, 1111-1112 (1951), aff'd on another is sue , 196 F.2d 923 (1st Cir. 1952), the Service argued that loss resulting from the abandonment of an elevated railway structure was compensated for by legislation (the Public Control Act) guaranteeing the taxpayer operating profits sufficient to pay divide nds. The court disagreed, stating that “ regardless of the amounts of any possible losses sustained by petitioner, no payments would be forthcoming to it if its income were sufficiently high, after absorbing the losses and other charges, to pay the require d dividends .” 16 T.C at 1112. Johnson v. Commissioner , 66 TC 897 (1976), aff'd , 574 F.2d 189 (4th Cir. 1978), involved a business partnership formed by the taxpayer and an associate. The

3 The Certificate is not a debt instrument because it is issued by an insurance company subject to tax under subchapter L in a transaction in wh ich there is no consideration other than cash. Section 1275(a)(1)(B)(ii). 4 Taxpayer is considered the owner of the Account. Rev. Rul. 2003-92, 2003-2 C.B. 350; Rev. Rul. 81 - 225, 1981-2 C.B. 12.

8 PLR - 112274-09 taxpayer purchased an insurance policy on his partner's life. A fter his partner's accidental death, the taxpayer and his partner's widow were unsuccessful in continuing the business and terminated the partnership. The court upheld the disallowance of a loss on the termination because the taxpayer was compensated by t he proceeds of the insurance policy. The court pointed out that the amount of the policy was approximately equal to the taxpayer's investment in the partnership. Thus, although it was not the partnership interest itself that was insured, the life insuran ce acted to compensate the loss of the partnership interest. In Forward Communications Corp. v. United States , 608 F.2d 485, 221 Ct. Cl. 582 (Ct. Cl. 1979), aff'g 1978 US Ct. Cl. LEXIS 766, 42 AFTR.2d (RIA) 5334, 78-2 USTC (CCH) ¶ 9542 (Ct. Cl. Trial Di v. 1978), the taxpayer, a local television station, claimed a loss based on termination of its affiliation agreement with CBS, the television network. The trial judge upheld disallowance of the deduction on the theory that increased revenues from affiliat ion with ABC, another television network, compensated taxpayer for loss of the CBS affiliation. Reversing this finding, the Court of Claims stated, "[t]he statute does not bar a deduction for a loss actually incurred merely because the taxpayer is able to effect an offsetting gain on a different although contemporaneous transaction." 608 F.2d at 611-12. In Shanahan v. Commissioner , 63 TC 21 (1974) , which involved federal disaster relief payments, the Tax Court, interpreting the words "insurance or other wise" in § 165, determined that the general term "or otherwise" must be construed consistently with the specific term "insurance." The court stated that the general purpose of insurance is to spread the risk of loss from any peril among a large number of those who are exposed to a similar peril. In Estate of Bryan v. Commissioner , 74 TC 725 (1980) , the court, citing Shanahan , determined that the phrase "insurance or otherwise" in an analogous provision, § 2054, contemplates that the type of compensation received must be such that it was "structured to replace what was lost." 74 TC at 727. The court held that a disbursement from a trust fund established by a state bar association, in compensation for losses incurred due to an attorney's unethical behavi or, was in the nature of insurance. Rev. Rul. 87-117, 1987-2 CB 61, involves a regulated public utility that abandons a partially-completed nuclear plant; the ratemaking authority allows a rate increase that takes into account the cost of the abandoned p lant. The ruling holds that the rate increase does not reduce the taxpayer's abandonment-loss deduction because the rate increase was structured to serve the utilities’ customers at a fair charge and ensure a reasonable return to investors, not to reimbur se the loss.

9 PLR - 112274-09 In the present situation, the Certificate may appear to be "structured to replace what was lost," in that the Monthly Benefit takes effect upon the reduction of the overall value of the assets in the Account to zero, and is based on the hi ghest prior net value of those assets. Similarly, as a case like Johnson illustrates, it is possible for a contractual arrangement to be treated as compensation for § 165 purposes even though it compensates for a loss indirectly, not directly. However, i n this case the relationship between any individual market loss in the Account and any eventual periodic payments under the Certificate is too tenuous and too contingent on a number of factors for the payments to be considered compensation for any given ma rket loss. For example, Taxpayer may die before the Account is depleted, in which case the Monthly Benefit will never take effect. The assets in the investment portfolio are subject to specified investment strategies that are intended to minimize the eff ect of excessive volatility and market risk. There is no close correlation between any given loss and any eventual payments that Taxpayer may receive. Moreover, the fact, amount, and timing of the Monthly Benefit depends on market gains as well as losses ; similarly, in Boston Elevated Rwy , “ regardless of the amounts of any possible losses sustained by petitioner, no payments would be forthcoming to it if its income were sufficiently high, after absorbing the losses … ." 16 T.C at 1112. Wi thdrawals of pr incipal, not just losses, will contribute significantly to depletion of the Account; in fact, the arrangement is structured primarily to insure against longevity risk, not market risk, and, should Taxpayer live long enough, he could eventually begin to rec eive the Monthly Benefit whether or not losses were sustained. Finally, the amount of compensation Taxpayer may receive under the Certificate depends on how long he lives, and is not tied to the amount of the losses. Thus, the fact, amount, and timing of the Monthly Benefit are contingent on a number of factors, including not only a particular market loss, but also other market losses, offsetting market gains, Taxpayer's withdrawal rate, and – most significantly -- Taxpayer's life span. The contract is st ructured, not as reimbursement for market losses, but rather as a contingent, deferred annuity that begins to pay benefits on the occurrence of an event the timing of which may be influenced by market performance. We conclude that the Monthly Benefit feat ure of the Certificate is not structured to replace or reimburse either individual or overall market losses in the Account portfolio. Cases such as Dunne and Johnson are distinguishable because the nexus between the losses and the compensation for the los ses was more direct than is the case here. Therefore, the Certificate will not create a right to reimbursement for losses realized on Account assets for purposes of § 165(a) and thus will not prevent Taxpayer from currently deducting such losses, assumi ng Taxpayer’s losses otherwise meet the requirements of § 165.

10 PLR - 112274-09 This holding is based on and limited to the particular contract at issue, and the effect of that contract as represented by Taxpayer; it would not necessarily apply to a similar feature if th e terms of the contract were significantly altered. Requested Ruling #3 Under § 1(h)(11)(A), for purposes of § 1(h), the term “net capital gain” means net capital gain (determined without regard to § 1(h)(11)) increased by qualified dividend income. In defining qualified dividend income, § 1(h)(11)(B)(iii) provides that the term shall not include any dividend on any share of stock with respect to which the holding period requirements of § 246(c) are not met, determined by substituting in § 246(c) “60 da ys” for “45 days” each place it appears and by substituting “121-day period” for “91 - day period”. Section 246 provides rules applicable to deductions for dividends received, among them a required holding period. See , § 246(c). Under § 246(c)(4), this h olding period is reduced for any period (during such periods) in which (A) the taxpayer has an option to sell, is under a contractual obligation to sell, or has made (and not closed) a short sale of, substantially identical stock or securities, (B) the tax payer is the grantor of an option to buy substantially identical stock or securities, or (C) under regulations a taxpayer has diminished his risk of loss by holding 1 or more other positions with respect to substantially similar or related property. The applicable regulation is § 1.246-5, which provides that property is substantially similar or related to stock when (i) the fair market value of the stock and the property reflect the performance of (A) a single firm or enterprise; (B) the same industry or industries; or (C) the same economic factor or factors such as (but not limited to) interest rates, commodity prices, or foreign-currency exchange rates; and (ii) changes in the fair market value of the stock are reasonably expected to approximate, directl y or inversely, changes in the fair market value of the property, a fraction of the fair market value of the property, or a multiple of the fair market value of the property. Sec. 1.246-5(b)(1). A position is an interest (including a futures or forward c ontract or an option) in property or any contractual right to a payment, whether or not severable from stock or other property, § 1.246-5(b)(3). Moreover, a taxpayer has diminished its risk of loss on stock by holding a position in substantially similar o r related property if the taxpayer is the beneficiary of a guarantee, surety agreement, or similar arrangement and the guarantee, surety agreement, or similar arrangement provides for payments that will substantially offset decreases in the fair market val ue of the stock. § 1.246 - 5(c)(4). The Conference Report to the Deficit Reduction Act of 1984, H. Rep. No. 98-861, at 818, 1984-3 C.B. (Vol. 2) 1, 72, indicates that “[t]he substantially similar standard is

11 PLR - 112274-09 not satisfied merely because the taxpayer … is an investor with diversified holdings and acquires a [regulated futures contract] or option on a stock index to hedge general market risks.” Here, by purchasing the Certificate, Taxpayer has not entered into an option to sell, is not under a contractual obligation to sell, or has not made (nor closed) a short sale of, substantially identical stock or securities. The Certificate is not substantially similar or related property because the fair market value of the Account and the Certificate do not reflect the performance of a single firm or enterprise, the same industry or industries, or the same economic factors; because the predominant risk the Certificate protects against is longevity risk (i.e., the benefit under the Certificate is contingent upon Taxp ayer’s survival), and because the changes in the fair market value of the Account are not reasonably expected to approximate, directly or inversely, changes in the fair market value of the Certificate, a fraction or multiple thereof. Finally, the benefits that may be ultimately paid under the Certificate are not closely correlated with, and do not substantially offset, decreases in the fair market value of the Account. Thus, we conclude that the Certificate does not diminish Taxpayer’s risk of loss on Acc ount assets for purposes of applying the holding period requirements of § 1(h)(11). Requested Ruling #4 Section 1092 imposes special rules that effectively suspend losses with respect to positions that are held as part of a straddle. A straddle is de fined in § 1092(c)(1) as “offsetting positions with respect to personal property.” A taxpayer holds “offsetting positions with respect to personal property” if there is a substantial diminution of the taxpayer’s risk of loss from holding any position by r eason of his holding one or more other positions with respect to personal property (whether or not of the same kind). See § 1092(c)(2)(A). Section 1092(d) provides that the term “personal property” means any personal property of a type which is actively traded and that the term “position” means an interest in personal property. The Certificate, however, is not an “offsetting position” with respect to Taxpayer’s interest in the Account. See also § 1092(d)(3). Accordingly, § 1092 does not apply. The rul ings contained in this letter are based upon information and representations submitted by Taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party. This office has not verified any of the material submitted in support of the request for rulings and it is subject to verification on examination. Except as expressly provided herein, no opinion is expressed or implied concerning the tax consequences of any aspect of any transaction or item discussed or

12 PLR - 112274-09 referenced in this le tter; specifically, no opinion is expressed or implied concerning the proper tax treatment of the Group Contract/Certificate by IC or Sponsor. This ruling is directed only to Taxpayer. Section 6110(k)(3) provides that it may not be used or cited as prec edent. In accordance with the Power of Attorney on file with this office, a copy of this letter is being sent to your authorized representative. Sincerely, /S/ Sheryl B. Flum Chief, Branch 4 Office of the Associate Chief Counsel Financial Institutions & Products