Title 26 — Internal Revenue CodeRelease 119-73
§817 Treatment of variable contracts
Title 26 › Subtitle Subtitle A— - Income Taxes › Chapter CHAPTER 1— - NORMAL TAXES AND SURTAXES › Subchapter Subchapter L— - Insurance Companies › Part PART I— - LIFE INSURANCE COMPANIES › Subpart Subpart E— - Definitions and Special Rules › § 817
Summary
Require life insurance companies to show the money and values for variable contracts separately. When they calculate yearly tax items for a variable contract, they must adjust reserves to reflect asset value changes: take away amounts added to reserves because assets went up, and add back amounts taken from reserves because assets went down. Each asset in a segregated account must have its cost basis raised for appreciation and lowered for depreciation. Companies must keep separate records for income, deductions, assets, reserves, and liabilities tied to these contracts. If something can’t be recorded directly, use the company’s usual reasonable method or follow Treasury rules. A variable contract is one that puts money into an account kept apart from the company’s main assets, is an annuity, a life insurance policy, or certain retired-life funding, and whose payments or benefits change with the account’s investment returns and market value. Pension-plan contracts that are not insurance are treated as annuities. Showing the account’s investment return and market value can count as an assumed interest rate for some tax tests, and Treasury may require extra calculations. A variable annuity counts as an annuity if it uses standard mortality tables and is based on the investment results of the segregated account or the company. If a segregated account is not “adequately diversified” under Treasury rules, the variable contract (except pension plans) will not be treated as an annuity, endowment, or life insurance for certain tax rules. An account is treated as diversified for a quarter if it meets the test in section 851(b)(3) and no more than 55 percent of its value is the specific type of asset listed there. Investments in U.S. Treasury securities count as diversified for variable life contracts. The law also has rules for accounts held only by insurers or fund managers, allows independent investment advisers, and treats each U.S. government agency as a separate issuer when checking diversification.
Full Legal Text
Title 26, §817
Internal Revenue Code — Source: USLM XML via OLRC
(a)For purposes of subsections (a) and (b) of section 807, the sum of the items described in section 807(c) taken into account as of the close of the taxable year with respect to any variable contract shall, under regulations prescribed by the Secretary, be adjusted—
(1)by subtracting therefrom an amount equal to the sum of the amounts added from time to time (for the taxable year) to the reserves separately accounted for in accordance with subsection (c) by reason of appreciation in value of assets (whether or not the assets have been disposed of), and
(2)by adding thereto an amount equal to the sum of the amounts subtracted from time to time (for the taxable year) from such reserves by reason of depreciation in value of assets (whether or not the assets have been disposed of).
(b)In the case of variable contracts, the basis of each asset in a segregated asset account shall (in addition to all other adjustments to basis) be—
(1)increased by the amount of any appreciation in value, and
(2)decreased by the amount of any depreciation in value,
(c)For purposes of this part, a life insurance company which issues variable contracts shall separately account for the various income, exclusion, deduction, asset, reserve, and other liability items properly attributable to such variable contracts. For such items as are not accounted for directly, separate accounting shall be made—
(1)in accordance with the method regularly employed by such company, if such method is reasonable, and
(2)in all other cases, in accordance with regulations prescribed by the Secretary.
(d)For purposes of this part, the term “variable contract” means a contract—
(1)which provides for the allocation of all or part of the amounts received under the contract to an account which, pursuant to State law or regulation, is segregated from the general asset accounts of the company,
(2)which—
(A)provides for the payment of annuities,
(B)is a life insurance contract, or
(C)provides for funding of insurance on retired lives as described in section 807(c)(6), and
(3)under which—
(A)in the case of an annuity contract, the amounts paid in, or the amount paid out, reflect the investment return and the market value of the segregated asset account,
(B)in the case of a life insurance contract, the amount of the death benefit (or the period of coverage) is adjusted on the basis of the investment return and the market value of the segregated asset account, or
(C)in the case of funds held under a contract described in paragraph (2)(C), the amounts paid in, or the amounts paid out, reflect the investment return and the market value of the segregated asset account.
(e)A pension plan contract which is not a life, accident, or health, property, casualty, or liability insurance contract shall be treated as a contract which provides for the payments of annuities for purposes of subsection (d).
(f)(1)For purposes of subsection (b)(1)(A) of section 816, the reflection of the investment return and the market value of the segregated asset account shall be considered an assumed rate of interest.
(2)Under regulations prescribed by the Secretary, such additional separate computations shall be made, with respect to the items separately accounted for in accordance with subsection (c), as may be necessary to carry out the purposes of this section and this part.
(g)For purposes of this part, the term “annuity contract” includes a contract which provides for the payment of a variable annuity computed on the basis of—
(1)recognized mortality tables, and
(2)(A)the investment experience of a segregated asset account, or
(B)the company-wide investment experience of the company.
(h)(1)For purposes of subchapter L, section 72 (relating to annuities), and section 7702(a) (relating to definition of life insurance contract), a variable contract (other than a pension plan contract) which is otherwise described in this section and which is based on a segregated asset account shall not be treated as an annuity, endowment, or life insurance contract for any period (and any subsequent period) for which the investments made by such account are not, in accordance with regulations prescribed by the Secretary, adequately diversified.
(2)A segregated asset account shall be treated as meeting the requirements of paragraph (1) for any quarter of a taxable year if as of the close of such quarter—
(A)it meets the requirements of section 851(b)(3), and
(B)no more than 55 percent of the value of the total assets of the account are assets described in section 851(b)(3)(A)(i).
(3)To the extent that any segregated asset account with respect to a variable life insurance contract is invested in securities issued by the United States Treasury, the investments made by such account shall be treated as adequately diversified for purposes of paragraph (1).
(4)For purposes of this subsection, if all of the beneficial interests in a regulated investment company or in a trust are held by 1 or more—
(A)insurance companies (or affiliated companies) in their general account or in segregated asset accounts, or
(B)fund managers (or affiliated companies) in connection with the creation or management of the regulated investment company or trust,
(5)Nothing in this subsection shall be construed as prohibiting the use of independent investment advisors.
(6)In determining whether a segregated asset account is adequately diversified for purposes of paragraph (1), each United States Government agency or instrumentality shall be treated as a separate issuer.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
Prior Provisions
A prior section 817, added Pub. L. 86–69, § 2(a), June 25, 1959, 73 Stat. 132; amended Pub. L. 94–455, title XIV, § 1402(b)(1)(M), (2), title XIX, §§ 1901(a)(100), 1951(b)(11)(A), Oct. 4, 1976, 90 Stat. 1732, 1781, 1839, related to rules regarding certain gains and losses, prior to the general revision of this part by Pub. L. 98–369, § 211(a). Another prior section 817, act Aug. 16, 1954, ch. 736, § 817, as added Mar. 13, 1956, ch. 83, § 2, 70 Stat. 46, related to denial of double deductions, prior to the general revision of this part by Pub. L. 86–69, § 2(a).
Amendments
2004—Subsec. (c). Pub. L. 108–218, in introductory provisions, struck out “(other than section 809)” after “For purposes of this part”. 1997—Subsec. (h)(2)(A). Pub. L. 105–34, § 1271(b)(8)(A), substituted “851(b)(3)” for “851(b)(4)”. Subsec. (h)(2)(B). Pub. L. 105–34, § 1271(b)(8)(B), substituted “851(b)(3)(A)(i)” for “851(b)(4)(A)(i)”. 1996—Subsec. (d)(2)(C). Pub. L. 104–188, § 1611(a)(1), added subpar. (C). Subsec. (d)(3)(C). Pub. L. 104–188, § 1611(a)(2), added subpar. (C). 1988—Subsec. (h)(6). Pub. L. 100–647 added par. (6). 1986—Subsec. (d). Pub. L. 99–514, § 1821(t)(1), inserted at end “Paragraph (3) shall be applied without regard to whether there is a guarantee, and obligations under such guarantee which exceed obligations under the contract without regard to such guarantee shall be accounted for as part of the company’s general account.” Subsec. (h)(1). Pub. L. 99–514, § 1821(m)(2), struck out last sentence which read as follows: “For purposes of this paragraph and paragraph (2), beneficial interests in a regulated investment company or in a trust shall not be treated as 1 investment if all of the beneficial interests in such company or trust are held by 1 or more segregated asset accounts of 1 or more insurance companies.” Subsec. (h)(3) to (5). Pub. L. 99–514, § 1821(m)(1), added pars. (3) and (4), redesignated former par. (4) as (5), and struck out former par. (3) which read as follows: “In the case of a segregated asset account with respect to variable life insurance contracts, paragraph (1) shall not apply in the case of securities issued by the United States Treasury which are owned by a regulated investment company or by a trust all the beneficial interests in which are held by 1 or more segregated asset accounts of the company issuing the contract.”
Statutory Notes and Related Subsidiaries
Effective Date
of 2004 AmendmentAmendment by Pub. L. 108–218 applicable to taxable years beginning after Dec. 31, 2004, see section 205(c) of Pub. L. 108–218, set out as a note under section 807 of this title.
Effective Date
of 1997 Amendment Pub. L. 105–34, title XII, § 1271(c), Aug. 5, 1997, 111 Stat. 1037, provided that: “The
Amendments
made by this section [amending this section and section 851 and 1092 of this title] shall apply to taxable years beginning after the date of the enactment of this Act [Aug. 5, 1997].”
Effective Date
of 1996 Amendment Pub. L. 104–188, title I, § 1611(b), Aug. 20, 1996, 110 Stat. 1846, provided that: “The
Amendments
made by this section [amending this section] shall apply to taxable years beginning after December 31, 1995.”
Effective Date
of 1988 Amendment Pub. L. 100–647, title VI, § 6080(b), Nov. 10, 1988, 102 Stat. 3710, provided that: “The amendment made by subsection (a) [amending this section] shall apply to taxable years beginning after December 31, 1987.”
Effective Date
of 1986 Amendment Pub. L. 99–514, title XVIII, § 1821(t)(2), Oct. 22, 1986, 100 Stat. 2844, provided that: “The amendment made by paragraph (1) [amending this section] shall apply— “(A) to contracts issued after
December 31, 1986, and “(B) to contracts issued before
January 1, 1987, if such contract was treated as a variable contract on the taxpayer’s return.” Amendment by section 1821(m) of Pub. L. 99–514 effective, except as otherwise provided, as if included in the provisions of the Tax Reform Act of 1984, Pub. L. 98–369, div. A, to which such amendment relates, see section 1881 of Pub. L. 99–514, set out as a note under section 48 of this title.
Effective Date
Section applicable to taxable years beginning after Dec. 31, 1983, see section 215 of Pub. L. 98–369, set out as a note under section 801 of this title. Delay in
Effective Date
for Diversification Requirements With Respect to Accounts for Certain Immediate Annuities Pub. L. 100–647, title I, § 1010(i), Nov. 10, 1988, 102 Stat. 3455, provided that: “section 817(h) of the 1986 Code shall not apply until
January 1, 1989, with respect to a variable contract (as defined in section 817(d) of the 1986 Code) if— “(1) such contract provides for the payment of an immediate annuity (as defined in section 72(u)(4) of the 1986 Code), “(2) such contract was outstanding on
September 12, 1986, and “(3) the segregated asset account on which such contract is based was, on
September 12, 1986, wholly invested in deposits insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation.” Insurance-Dedicated Exchange-Traded Funds Pub. L. 117–328, div. T, title II, § 203, Dec. 29, 2022, 136 Stat. 5333, provided that: “(a) In General.—Not later than the date which is 7 years after the date of the enactment of this Act [Dec. 29, 2022], the Secretary of the Treasury (or the Secretary’s delegate) shall amend the regulation issued by the Department of the Treasury relating to ‘Income Tax; Diversification Requirements for Variable Annuity, Endowment, and Life Insurance Contracts’, 54 Fed. Reg. 8728 (
March 2, 1989), and make any necessary corresponding
Amendments
to other
Regulations
, in order to facilitate the use of exchange-traded funds as investment options under variable contracts within the meaning of section 817(d) of the Internal Revenue Code of 1986, in accordance with subsections (b) and (c) of this section. “(b) Designate Certain Authorized Participants and Market Makers as Eligible Investors.—The Secretary of the Treasury (or the Secretary’s delegate) shall amend Treas. Reg. section 1.817–5(f)(3) to provide that satisfaction of the requirements in Treas. Reg. section 1.817–5(f)(2)(i) with respect to an exchange-traded fund shall not be prevented by reason of beneficial interests in such a fund being held by 1 or more authorized participants or market makers. “(c) Define Relevant Terms.—In amending Treas. Reg. section 1.817–5(f)(3) in accordance with subsection (b), the Secretary of the Treasury (or the Secretary’s delegate) shall provide definitions consistent with the following:“(1) Exchange-traded fund.—The term ‘exchange-traded fund’ means a regulated investment company, partnership, or trust—“(A) that is registered with the Securities and Exchange Commission as an open-end investment company or a unit investment trust; “(B) the shares of which can be purchased or redeemed directly from the fund only by an authorized participant; and “(C) the shares of which are traded throughout the day on a national stock exchange at market prices that may or may not be the same as the net asset value of the shares. “(2) Authorized participant.—The term ‘authorized participant’ means a financial institution that is a member or participant of a clearing agency registered under section 17A(b) of the Securities Exchange Act of 1934 [15 U.S.C. 78q–1(b)] that enters into a contractual relationship with an exchange-traded fund pursuant to which the financial institution is permitted to purchase and redeem shares directly from the fund and to sell such shares to third parties, but only if the contractual arrangement or applicable law precludes the financial institution from—“(A) purchasing the shares for its own investment purposes rather than for the exclusive purpose of creating and redeeming such shares on behalf of third parties; and “(B) selling the shares to third parties who are not market makers or otherwise described in Treas. Reg. section 1.817–5(f) (1) and (3). “(3) Market maker.—The term ‘market maker’ means a financial institution that is a registered broker or dealer under section 15(b) of the Securities Exchange Act of 1934 [15 U.S.C. 78o(b)] that maintains liquidity for an exchange-traded fund on a national stock exchange by being always ready to buy and sell shares of such fund on the market, but only if the financial institution is contractually or legally precluded from selling or buying such shares to or from persons who are not authorized participants or otherwise described in Treas. Reg. section 1.817–5(f) (2) and (3). “(d)
Effective Date
.—This section shall apply to segregated asset account investments made on or after the date which is 7 years after the date of the enactment of this Act.” Plan
Amendments
Not Required Until January 1, 1989For provisions directing that if any
Amendments
made by subtitle A or subtitle C of title XI [§§ 1101–1147 and 1171–1177] or title XVIII [§§ 1800–1899A] of Pub. L. 99–514 require an amendment to any plan, such plan amendment shall not be required to be made before the first plan year beginning on or after Jan. 1, 1989, see section 1140 of Pub. L. 99–514, as amended, set out as a note under section 401 of this title.
Reference
Citations & Metadata
Citation
26 U.S.C. § 817
Title 26 — Internal Revenue Code
Last Updated
Apr 6, 2026
Release point: 119-73