Section of Taxation Publications
  VOL. 58
NO. 2
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 Note: The following is an excerpt from the introduction to the article as published in The Tax Lawyer. Author citations have been omitted for brevity. Tax Section members may read the article in its entirety in Adobe Acrobat format.
Mere Right to Designate a Beneficiary? The Value of Death Benefits to the Insured Beyond Asbestos Workers Local No. 23 Pension Fund v. United States
Tiffany A. Madigan


In Asbestos Workers Local No. 23 Pension Fund v. United States, a federal district court held that certain guaranteed-minimum pension plan benefits payable to the plan participant’s designated beneficiary were not subject to levy as the result of a tax lien on the property of the plan participant. Relying on Drye v. United States and United States v. Bess, the court determined that the property subject to a tax lien under the definition provided in section 63215 does not include assets for which the taxpayer’s control over them is limited to the right to designate a beneficiary to receive the benefits upon taxpayer’s death. In so concluding, the court granted the beneficiary’s motion for summary judgment against the Service. Although the result in Asbestos Workers was not unexpected given its affirmance of earlier precedent, the decision is noteworthy due to the increasingly liquid market for financial products. Financial product markets and consumer knowledge have developed significantly since Bess, and the assumptions under-lying Bess may no longer be applicable.

This Note examines the impact of the Asbestos Workers holding in the context of viatical settlements, legally sanctioned private agreements to sell life insurance policies. It argues that the court’s decision, while correct, may not provide solid precedent for future cases and may not be in accordance with future interests of the Service. Part I of this Note provides background on the facts and relevant statutes of the Asbestos Workers case. Part II describes the district court’s opinion and its discussion of assets, interests, and property. Part III analyzes the impact of the decision on viatical settlements and argues that their structure creates new challenges for courts, the Service, and tax planning. Part IV concludes that while the Asbestos Workers decision is based on solid ground, it elucidates larger problems within the doctrine, which Congress should resolve by amending the Code.


Published by
Section of Taxation, American Bar Association
With the Assistance of
Georgetown University Law Center


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