---
kind: "section"
citation: "26 U.S.C. § 817"
title: "26"
title_heading: "Internal Revenue Code"
number: "817"
heading: "Treatment of variable contracts"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/26/817"
units:
  - "Subtitle A — Income Taxes"
  - "Chapter 1 — Normal Taxes and Surtaxes"
  - "Subchapter L — Insurance Companies"
  - "Part I — Life Insurance Companies"
  - "Subpart E — Definitions and Special Rules"
---

# §817. Treatment of variable contracts

- (a) **Increases and decreases in reserves—** For purposes of subsections [(a)](/usc/26/807.md?p=a) and [(b)](/usc/26/807.md?p=b) of section 807, the sum of the items described in [section 807(c)](/usc/26/807.md?p=c) taken into account as of the close of the taxable year with respect to any variable [contract](/usc/26/101.md?p=f-3-A) 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)](#c) by reason of appreciation in [value](/usc/26/851.md?p=c-4) 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](/usc/26/851.md?p=c-4) of assets (whether or not the assets have been disposed of).

  The deduction allowable for items described in paragraphs [(1)](/usc/26/805.md?p=a-1) and [(6)](/usc/26/805.md?p=a-6) of section 805(a) with respect to variable [contracts](/usc/26/101.md?p=f-3-A) shall be reduced to the extent that the amount of such items is increased for the taxable year by appreciation (or increased to the extent that the amount of such items is decreased for the taxable year by depreciation) not reflected in adjustments under the preceding sentence.

- (b) **Adjustment to basis of assets held in segregated asset account—** In the case of variable [contracts](/usc/26/101.md?p=f-3-A), 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](/usc/26/851.md?p=c-4), and
  - (2) decreased by the amount of any depreciation in [value](/usc/26/851.md?p=c-4),

  to the extent such appreciation and depreciation are from time to time reflected in the increases and decreases in reserves or other items referred to in [subsection (a)](#a) with respect to such [contracts](/usc/26/101.md?p=f-3-A).

- (c) **Separate accounting—** For purposes of this part, a [life insurance company](/usc/26/816.md?p=a) which issues variable [contracts](/usc/26/101.md?p=f-3-A) shall separately account for the various income, exclusion, deduction, asset, reserve, and other liability items properly attributable to such variable [contracts](/usc/26/101.md?p=f-3-A). 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](/usc/26/812.md?p=a), if such method is reasonable, and
  - (2) in all other cases, in accordance with regulations prescribed by the Secretary.
- (d) **Variable contract defined—** For purposes of this part, the term “variable [contract](/usc/26/101.md?p=f-3-A)” means a [contract](/usc/26/101.md?p=f-3-A)—
  - (1) which provides for the allocation of all or part of the amounts received under the [contract](/usc/26/101.md?p=f-3-A) to an account which, pursuant to State law or regulation, is segregated from the general asset accounts of the [company](/usc/26/812.md?p=a),
  - (2) which—
    - (A) provides for the payment of annuities,
    - (B) is a life insurance [contract](/usc/26/101.md?p=f-3-A), or
    - (C) provides for funding of insurance on retired lives as described in [section 807(c)(6)](/usc/26/807.md?p=c-6), and
  - (3) under which—
    - (A) in the case of an [annuity contract](/usc/26/414.md?p=z-4-B), the amounts paid in, or the amount paid out, reflect the investment return and the market [value](/usc/26/851.md?p=c-4) of the segregated asset account,
    - (B) in the case of a life insurance [contract](/usc/26/101.md?p=f-3-A), the amount of the death benefit (or the period of coverage) is adjusted on the basis of the investment return and the market [value](/usc/26/851.md?p=c-4) of the segregated asset account, or
    - (C) in the case of [funds](/usc/26/851.md?p=g-2) held under a [contract](/usc/26/101.md?p=f-3-A) described in [paragraph (2)(C)](#d-2-C), the amounts paid in, or the amounts paid out, reflect the investment return and the market [value](/usc/26/851.md?p=c-4) of the segregated asset account.

  If a [contract](/usc/26/101.md?p=f-3-A) ceases to reflect current investment return and current market [value](/usc/26/851.md?p=c-4), such [contract](/usc/26/101.md?p=f-3-A) shall not be considered as meeting the requirements of [paragraph (3)](#d-3) after such cessation. [Paragraph (3)](#d-3) shall be applied without regard to whether there is a guarantee, and obligations under such guarantee which exceed obligations under the [contract](/usc/26/101.md?p=f-3-A) without regard to such guarantee shall be accounted for as part of the [company](/usc/26/812.md?p=a)’s general account.

- (e) **Pension plan contracts treated as paying annuity—** A [pension plan contract](/usc/26/818.md?p=a) which is not a life, accident, or health, [property](/usc/26/317.md?p=a), casualty, or liability insurance [contract](/usc/26/101.md?p=f-3-A) shall be treated as a [contract](/usc/26/101.md?p=f-3-A) which provides for the payments of annuities for purposes of [subsection (d)](#d).
- (f) **Other special rules—**
  - (1) **Life insurance reserves—** For purposes of [subsection (b)(1)(A)](/usc/26/816.md?p=b-1-A) of section 816, the reflection of the investment return and the market [value](/usc/26/851.md?p=c-4) of the segregated asset account shall be considered an assumed rate of [interest](/usc/26/856.md?p=f-1).
  - (2) **Additional separate computations—** 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)](#c), as may be necessary to carry out the purposes of this section and this part.
- (g) **Variable annuity contracts treated as annuity contracts—** For purposes of this part, the term “[annuity contract](/usc/26/414.md?p=z-4-B)” includes a [contract](/usc/26/101.md?p=f-3-A) 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](/usc/26/812.md?p=a)-wide investment experience of the [company](/usc/26/812.md?p=a).

  [Paragraph (2)(B)](#g-2-B) shall not apply to any [company](/usc/26/812.md?p=a) which issues [contracts](/usc/26/101.md?p=f-3-A) which are not variable [contracts](/usc/26/101.md?p=f-3-A).

- (h) **Treatment of certain nondiversified contracts—**
  - (1) **In general—** For purposes of subchapter L, [section 72](/usc/26/72.md) (relating to annuities), and [section 7702(a)](/usc/26/7702.md?p=a) (relating to definition of life insurance [contract](/usc/26/101.md?p=f-3-A)), a variable [contract](/usc/26/101.md?p=f-3-A) (other than a [pension plan contract](/usc/26/818.md?p=a)) 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](/usc/26/101.md?p=f-3-A) 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) **Safe harbor for diversification—** A segregated asset account shall be treated as meeting the requirements of [paragraph (1)](#h-1) for any [quarter](/usc/26/430.md?p=j-4-E-vi) of a taxable year if as of the close of such [quarter](/usc/26/430.md?p=j-4-E-vi)—
    - (A) it meets the requirements of [section 851(b)(3)](/usc/26/851.md?p=b-3), and
    - (B) no more than 55 percent of the [value](/usc/26/851.md?p=c-4) of the total assets of the account are assets described in [section 851(b)(3)(A)(i)](/usc/26/851.md?p=b-3-A-i).
  - (3) **Special rule for investments in United States obligations—** To the extent that any segregated asset account with respect to a variable life insurance [contract](/usc/26/101.md?p=f-3-A) is invested in [securities](/usc/26/368.md?p=a-2-F-vii) issued by the [United States](/usc/26/993.md?p=g) Treasury, the investments made by such account shall be treated as adequately diversified for purposes of [paragraph (1)](#h-1).
  - (4) **Look-through in certain cases—** For purposes of this subsection, if all of the beneficial [interests](/usc/26/856.md?p=f-1) in a [regulated investment company](/usc/26/851.md?p=a) or in a trust are held by 1 or more—
    - (A) insurance [companies](/usc/26/812.md?p=a) (or affiliated [companies](/usc/26/812.md?p=a)) in their general account or in segregated asset accounts, or
    - (B) [fund](/usc/26/851.md?p=g-2) managers (or affiliated [companies](/usc/26/812.md?p=a)) in connection with the creation or management of the [regulated investment company](/usc/26/851.md?p=a) or trust,

    the diversification requirements of [paragraph (1)](#h-1) shall be applied by taking into account the assets held by such [regulated investment company](/usc/26/851.md?p=a) or trust.

  - (5) **Independent investment advisors permitted—** Nothing in this subsection shall be construed as prohibiting the use of independent investment advisors.
  - (6) **Government securities funds—** In determining whether a segregated asset account is adequately diversified for purposes of [paragraph (1)](#h-1), each [United States](/usc/26/993.md?p=g) Government agency or instrumentality shall be treated as a separate issuer.

## Source credit

(Added Pub. L. 98–369, div. A, title II, § 211(a), July 18, 1984, 98 Stat. 750; amended Pub. L. 99–514, title XVIII, § 1821(m), (t)(1), Oct. 22, 1986, 100 Stat. 2841, 2844; Pub. L. 100–647, title VI, § 6080(a), Nov. 10, 1988, 102 Stat. 3710; Pub. L. 104–188, title I, § 1611(a), Aug. 20, 1996, 110 Stat. 1845; Pub. L. 105–34, title XII, § 1271(b)(8), Aug. 5, 1997, 111 Stat. 1037; Pub. L. 108–218, title II, § 205(b)(5), Apr. 10, 2004, 118 Stat. 610.)

## Notes

### 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 Amendment

Amendment 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 sections 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— to contracts issued after December 31, 1986, and 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— such contract provides for the payment of an immediate annuity (as defined in section 72(u)(4) of the 1986 Code), such contract was outstanding on September 12, 1986, and 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: 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. 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. 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: Exchange-traded fund.—The term ‘exchange-traded fund’ means a regulated investment company, partnership, or trust— that is registered with the Securities and Exchange Commission as an open-end investment company or a unit investment trust; the shares of which can be purchased or redeemed directly from the fund only by an authorized participant; and 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. 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— 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 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). 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). 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, 1989

For 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.