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INSURANCE DEPARTMENT OF THE STATE OF NEW YORK

REGULATION NO. 180

11 NYCRR 48

KEY PERSON COMPANY-OWNED LIFE INSURANCE

(ALL MATERIAL IS NEW)

I, Howard Mills, Superintendent of Insurance of the State of New York,

, to take effect upon filing with the

Secretary of State, t

(d) The purpose of this Part is to establish standards for life insurers and fraternal benefit societies issuing key person company-owned life insurance to ensure that the employees or other persons on whose lives coverage is being written pursuant to Section 3205(a)(1)(B) of the Insurance Law are actually key persons.

An insurer using key person company-owned life insurance shall establish and apply

appropriate underwriting guidelines to ensure that the employees or other persons on whose lives policies are written pursuant to Section 3205(a)(1)(B) are actually key persons. ? 48.2 Standards.

the term key person shall include the following persons:

(a) An employee who is one of the five highest paid officers of the employer;

(b) An employee who is a five-percent owner of the employer.

(c) An employee who had compensation from the employer in excess of $90,000 in the preceding year;

(d) An employee who is among the highest paid 35 percent of all employees; or

(e) An employee or other person who makes a significant economic contribution to the company

Pursuant to Section 202(6) of the State Administrative Procedure Act, 11 NYCRR 48 (Regulation No. 180) is being promulgated as an emergency measure. A statement of the specific reasons for the finding of the need for emergency action is attached.

STATEMENT OF REASONS FOR EMERGENCY MEASURE

FOR THE PROMULGATION OF THE NEW

11 NYCRR 48 (REGULATION NO. 180)

Corporate-owned life insurance covering rank-and-file employees, also called “janitors insurance” or “dead peasant insurance,” has been the focus of numerous negative press articles and public commentaries over the last several years.

Most recently in response to criticism concerning COLI, the United States Senate has drafted legislation that provides for the taxation of death proceeds of corporate-owned life insurance under certain circumstances.

The Senate’s proposal addresses the abuses of “janitor insurance” and recognizes the legitimate business need for COLI to serve as a funding vehicle for employee benefit plans.

As a result, the Senate’s legislative proposal provides that death benefits under corporate-owned life insurance policies will not be taxable if the employee is a key employee as defined in the proposed legislation.

Chapter 491 of the Laws of 1996 added a new subsection (d) to Section 3205 to provide notice, consent and termination rights to employees, including rank-and-files employees, whose lives were insured under corporate-owned life insurance programs designed to fund employee benefit plans.

Since the notice, consent and termination rights only apply in the case of Section 3205(d) COLI and not key person COLI under Section 3205(a)(1)(B), it is imperative that insurers only insure key employees under Section 3205(a)(1)(B).

This will also ensure that rank and file employees and other non-key employees receive the notice, consent and termination rights prescribed by Section 3205(d) and to curb some of the reported abuses associated with COLI on rank-and-file employees.

The establishment of a key employee standard based on the proposed federal legislation will aid in curbing abuse in the corporate-owned life insurance market.

Howard Mills

Superintendent of Insurance

March 17, 2006

Regulatory Impact Statement for Part 48 of Title 11 NYCRR (Regulation No. 180)

8. Alternatives:

The Department considered but rejected the prospect of issuing a Circular Letter to establish the standard for key person. The Department was concerned that the Circular Letter proposal would not have the same force and effect of a regulation, and would therefore be an inadequate mechanism to apply and enforce the insurable interest requirements of Section 3205.

9. Federal standards:

The definition of key employee in this proposed regulation is based on the definition of key employee set forth in a draft COLI bill pending in the United States Senate which provides for the taxation of death proceeds of COLI under certain circumstances. The Senate bill, which was approved by the Senate Finance Committee in February, 2004, provides that a key employee may be

The proposed regulation establishes a standard for all key employee life insurance policies issued before and after the effective date of the Regulation.

The Life Insurance Finance Association says lawmakers should be careful when updating the laws that govern who can pay to insure an individual’s life.

Fine-tuning the concept of “insurable interest” is important, but lawmakers should use a fine brush and any changes should strengthen

Insurable interest is a concept that an organization of premium finance companies,

Any efforts to change state law should be targeted to strengthening insurable interest laws and should not use a broad brush approach to sweep in legitimate premium financing and life settlement transactions, according to Scott Cipinko, LIFA’s managing director.

“LIFA and its members strongly believe that life insurance policies should only be purchased based upon an insurable interest in the life of the insured,” according to a LIFA statement.

But, LIFA distinguishes between premium financing transactions used to buy insurance in which there is an insurable interest and other types of transactions currently under regulatory scrutiny including investor-initiated, investor-owned, stranger-owned, and charity-owned life insurance.

As an example of a way to address the issue, LIFA cites HB 1484 which it says attempts to more clearly define insurable interest.