Employer-Owned Life Insurance: Notice and Consent Rules, Explained Plainly

Employer-Owned Life Insurance Notice and Consent Requirements

Employer-owned life insurance notice and consent requirements are written steps. The employer must complete them before the policy on an employee is issued. The rule sits in section 101(j) of the Internal Revenue Code. Under the employer-owned life insurance rule, the amount an applicable policyholder may exclude from gross income by reason of paragraph (1) of subsection (a) shall not exceed an amount equal to the sum of the premiums and other amounts the policyholder paid for the contract (IRC § 101).

This guide explains the steps in plain words. It also covers the annual return and the questions a CPA asks first. Key person policies are a common place to meet this rule. Insurance is offered by Nischay Rawal, a licensed insurance agent, separately from the accounting practice of NR CPAs & Business Advisors.

What Counts as Employer-Owned Life Insurance Under Section 101(j)

An employer-owned life insurance contract is a life policy owned by a business, where the business or a related person is a beneficiary, on the life of an employee. The statute also requires that the insured be an employee of that business on the date the contract is issued. IRC § 101

The test looks at three things. It asks who owns the contract, who gets the money, and whether the insured is an employee on the issue date. A key person policy often meets the ownership and beneficiary parts. The business owns the policy on a valued owner or manager and collects the death benefit. That is why key person coverage needs a careful look under this rule.

Congress added the related reporting rule in 2006. It was added by Public Law 109-280, approved August 17, 2006. IRC § 6039I Plan for the rule from the start. Waiting until after issue leaves little room to fix a missed step.

The Three Notice-and-Consent Requirements

For an employer-owned life insurance contract, the law sets notice and consent requirements that are met only when the employee completes certain steps before the contract is issued (IRC § 101). Before the contract is issued, the employee must be notified in writing that the applicable policyholder intends to insure the employee’s life and of the maximum face amount for which the employee could be insured at the time the contract was issued. The employee must also provide written consent to being insured under the contract and to the possibility that such coverage may continue after the insured terminates employment. Finally, the employee must be informed in writing that an applicable policyholder will be a beneficiary of any proceeds payable upon the employee’s death (IRC § 101). IRC § 101

First, the employee must be told in writing that the business intends to insure the employee’s life. That notice must also state the maximum face amount the employee could be insured for at the time the contract is issued. A notice with no dollar figure does not meet the test.

Second, the employee must give written consent to being insured. The consent must say that coverage may continue after the employee leaves the job. Many owners forget this line. It is easy to miss on a standard form.

Third, the employee must be informed in writing that the business will be a beneficiary of any death benefit. This line tells the employee who collects the proceeds.

Put the three items on one checklist with dates. Keep signed copies with the policy file. The timing matters as much as the wording. The statute’s test runs before the contract is issued. A consent signed after the policy is in force does not meet that test.

Why the Rule Exists

Section 101(j) is built around the employee’s knowledge. The employee should know that a policy exists on his or her life, how big it is, and who collects the money. The written steps make that knowledge part of the record.

The tax side connects to this. The IRS states that life insurance proceeds are generally not taxable to the beneficiary. IRS life insurance proceeds FAQ

A policy the employee knows about, with the steps completed, sits on different footing than one bought without any notice. For a business owner, that difference is the whole question. The paperwork is not a formality. It is what the tax treatment depends on.

Exceptions Only Work When the Steps Are Met

Paragraph (2) of section 101(j) lists categories where the general rule in paragraph (1) does not apply. The statute ties those categories to the notice and consent steps. IRC § 101

So the consent packet is a gate, not a formality. Many owners assume an exception covers their policy automatically. It does not. The exception has to be tested against the facts and the paperwork before the policy is issued.

IRC § 101 sets out rules for when life insurance proceeds payable by reason of death are excluded from income, including special rules for employer-owned life insurance contracts. Key person policies that a business owns may fall within those rules.

Before issue, a CPA asks which paragraph the policy relies on. The answer belongs in the file, with the notice and consent papers beside it.

Does 101(j) Apply to a One-Owner Business Insuring the Owner?

A one-owner business can fall under section 101(j). The first question is whether the insured, not the owner, is the person described in the exception: an insured who, with respect to an applicable policyholder, falls within the statute’s listed categories.

Tax classification of the business is a separate question. Under section 101(j), the rules apply to an employer-owned life insurance contract; how an eligible entity is classified for federal tax purposes is governed by a separate regulation, 26 C.F.R. § 301.7701-3 (link). 26 C.F.R. § 301.7701-3 sets out rules for how eligible entities may elect a change in their federal tax classification. Check the entity type before the policy is issued, not after.

Practical steps help here. Document the owner’s role in the business. Record the beneficiary designation on the policy. Note the issue date and the face amount at that date. A short memo in the file can answer the questions a reviewer will ask later.

Does 101(j) Apply to a Cross-Purchase Buy-Sell?

Section 101(j) turns on who owns the policy and who the beneficiary is. A cross-purchase buy-sell needs its own review for that reason. The answer can differ from an entity-purchase arrangement.

IRC § 101

In a cross-purchase arrangement, the owners often own policies on one another. Under the reportable policy sale rule, the exceptions to the transfer-for-value limit do not apply to a transfer that is a reportable policy sale, meaning the acquirer has no substantial family, business, or financial relationship with the insured apart from the acquirer’s interest in the contract. Each policy must be checked against the definition. Whether the business or a related person is a beneficiary is the key question.

The buy-sell agreement and the policy ownership should be reviewed together. The notice should inform the employee in writing that an applicable policyholder will be a beneficiary. A buy-sell structure you can explain in one paragraph is easier to match to the steps. You can read more on the buy-sell agreement insurance side of this planning.

Annual Reporting Under Section 6039I

An applicable policyholder that owns employer-owned contracts must file a return each year those contracts are owned. IRC § 6039I The return is filed at the time and in the manner set by federal regulation.

The statute lists what the return shows. It includes the number of employees at year end and the number of those employees insured. It includes the total insurance in force at year end. It also includes the policyholder’s name, address, taxpayer identification number and type of business. The return must also state whether the policyholder has valid consent for each insured employee. If consent was not obtained for some employees, the return must give that number. IRC § 6039I

The policyholder must also keep records. Those records should show whether the section 6039I and section 101(j) requirements are met. IRC § 6039I

This is where cash flow and recordkeeping meet. A policy added mid-year changes the year-end face amount. A consent that is missing changes the count. Track both during the year, not at filing time.

If the Notice or Consent Was Not Completed Before Issuance

The listed exceptions depend on the notice and consent requirements of paragraph (4) being met, and those requirements are tied to steps taken before the issuance of the contract (IRC § 101). Gather the file before the next tax filing.

Start with four documents. Pull the written notice, the signed consent, the policy issue date and the beneficiary designation. Compare the face amount in the notice with the face amount at issue.

Watch for common gaps. A consent signed after issue does not meet the pre-issue test. A notice with no face amount is incomplete. A consent missing the continuation language is incomplete. A notice that names the wrong beneficiary creates a conflict with the policy.

A CPA reviews these items in order. The review asks whether an exception applies. It asks whether the steps happened before issue. It asks whether the annual filings for each affected year match the contract. The next step depends on the facts in that file.

Frequently Asked Questions

Talk Through Your Key Person Policy With Our Team

If you have a consent form to sign, or a policy already in force, a coverage review is a sensible next step. You might be a business owner or CFO who has just received the notice. You might be checking a policy issued years ago against the annual return. Either way, the file should match the statute’s steps. Our team can walk through the insurance side with you. Request a coverage review.

Nischay Rawal is acting as a licensed insurance agent for this page. Insurance is offered by the licensed agent, separately from the accounting practice of NR CPAs & Business Advisors.

For more background, read the key person life insurance overview, the Florida key person life insurance page, and the what to check before buying life insurance guide.