Chapter 9: legal considerations III. Claims G. Assets that are not General Assets, Special Deposits and Letters of Credit



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Receivers’ Handbook for Insurance Company Insolvencies
CHAPTER 9: LEGAL CONSIDERATIONS
III. Claims

G. Assets that are not General Assets, Special Deposits and Letters of Credit

4. Separate Accounts
CONSIDERATIONS FOR HANDLING SEPARATE ACCOUNTS



A. Authority

1. Federal Statutes and Rules
Securities Act of 1933 ("1933 Act")

Certain annuity and life insurance contracts issued by insurers are subject to the Securities Act of 1933 and must be registered with the U.S. Securities and Exchange Commission (“SEC”), unless the contract qualifies for an exception. Consequently, an insurer issuing certain types of contracts must comply with the requirements of the 1933 Act as well as with applicable state insurance law before issuing an SEC registered contract.


Investment Company Act of 1940 ("1940 Act")

Section 2(a)(37) of the 1940 Act defines a separate account as "an account established and maintained by an insurance company pursuant to the laws of any State or territory of the United States, or of Canada or any province thereof, under which income, gains and losses, whether or not realized, from assets allocated to such account, are, in accordance with the applicable contract, credited to or charged against such account without regard to other income, gains, or losses of the insurance company."


Section 2(a)(17) of the 1940 Act defines an insurance company to include "any receiver or similar official or any liquidating agent for such a company, in his capacity as such."
Under longstanding federal court precedent and SEC regulations, an insurer’s separate account that supports a variable contract (which provides that separate account investment experience is reflected directly in contract values (“Variable Products”)) is treated as having a separate legal existence from the insurance company for purposes of the 1940 Act,1 and is subject to the registration and other requirements of the 1940 Act, unless an exception applies.
Securities Exchange Act of 1934 (“1934 Act”)
Sections 13 and 15(d) of the 1934 Act require insurance company issuers of certain securities registered under the 1933 Act to file regular, publicly available reports with the SEC. These reports include Form 10-K, Form 10-Q and Form 8-K. Insurers that issue annuity and life insurance contracts registered under the 1933 Act that are not supported by a separate account registered under the 1940 Act are required to file such reports, unless the insurer qualifies for an exemption. For registered Variable Products, there is an alternative and much simpler reporting requirement (a separate account annual report on Form N-SAR).
Code of Federal Regulations

Rule 12h-7 under the 1934 Act generally exempts an insurance company issuer from the duty under Section 15(d) to file reports required by Section 13(a) if: (1) the securities do not constitute an equity interest of the issuer, (2) the insurer files an annual statement of its financial condition with the insurance commissioner of the insurer’s domiciliary state, (3) the securities are not listed on any exchange, (4) the insurer takes steps reasonably designed to ensure that a trading market does not develop in the securities, and (5) the prospectus contains a statement stating that the insurer is relying on Rule 12h-7.


Rule 0-1 (e) (2) under the 1940 Act provides that, as a condition to the availability of certain exemptions, a separate account "shall be legally segregated, the assets of the separate account shall, at the time during the year that adjustments in the reserves are made, have a value at least equal to the reserves and other contract liabilities with respect to such account, and at all other times, shall have a value approximately equal to or in excess of such reserves and liabilities; and that portion of such assets having a value equal to, or approximately equal to, such reserves and contract liabilities shall not be chargeable with liabilities arising out of any other business which the insurance company may conduct."
For variable contracts funded by separate accounts that are registered under the 1940 Act, Rule 22c-1 under the 1940 Act requires insurers to calculate accumulation unit values daily and to price any premiums, withdrawals, or transfers of contract value at the accumulation unit value for such contracts that is next computed after the insurer receives the purchase, withdrawal, or transfer request in good order.
Rule 38a-1 under the 1940 Act requires insurers that sponsor a separate account registered under the 1940 Act: (i) to maintain current written compliance policies and procedures that are reasonably designed to prevent, detect and promptly correct violations of the federal securities laws (broadly defined), and (ii) to designate one individual as a chief compliance officer (“CCO”) responsible for administering the separate account’s compliance policies and procedures. An annual review must be conducted of the adequacy of the written policies and procedures and the effectiveness of their implementation, and an annual written report prepared that addresses the operation of the policies and procedures, any material changes made or recommended and each material compliance matter that has occurred since the date of the last report.



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