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Who’s Keeping Score on ACA Coverage Penalties?

How will the IRS find out if an employer is liable for a shared responsibility payment (pay-or-play penalty)? How will the IRS determine if individuals are disqualified from exchange subsidies due to an offer of employer coverage? The simple answer is: employers will tell the IRS.

Sample forms and instructions were recently published by the IRS describing how employers must prepare and file reports implementing the pay-or-play penalty provisions. The reports will also describe whether the coverage offered by the employer, if any, will disqualify an individual from the exchange subsidies for individual purchases of health insurance. These reports will disclose the number of full-time employees of an employer and those employees for whom the employer is or is not providing coverage. The IRS will use these reports to assess the $2,000 and $3,000/employee/year penalties against the employer.

These reports are similar in form and usage to the W-2 wage reports. Employers with insured plans must issue a form 1095-C to employees describing whether the employee had coverage and then must send aggregate information to the IRS on form 1094-C. The information is compiled and reported on a month-by-month basis for each employee. However, simplified reporting is available for employers offering coverage to a higher percentage of their workforce or meeting other requirements.

Self-insured plans and insurance companies must supply separate reports to individuals describing the plan coverage on a similar set of forms. These reports will implement compliance with the individual “no coverage” tax provisions (the individual shared responsibility obligations). A form 1095-B is given to each self-insured plan participant or insurance plan beneficiary and aggregate information is supplied to the IRS on form 1094-B. Must employers that sponsor self-insured plans provide both the 1095-B and 1095-C forms to employees? No. Employers sponsoring self-insured plans must provide only the form 1095-C, since it contains information that will allow employees to ascertain their satisfaction of their individual shared responsibility obligation as well as eligibility for or disqualification from the exchange subsidies.

The employer reporting obligations generally apply only to an “applicable large employer” or “ALE.” An ALE is an employer with 50 or more full time equivalent employers.

The due date for distribution of forms 1095-C to employees for the 2015 calendar year coverage is Jan. 31, 2016, similar to the W-2 reporting cycle for wages earned in 2015. The information aggregating form 1094-C must be filed with the IRS by the end of February 2016 (end of March for electronically filed forms). Employers with 250 or more employees must file these forms electronically. A transition rule delays imposition of the $2,000/$3,000 penalties for employers of 50 to 99 employees until the 2016 coverage year. However, the reports must be filed for 2015 coverage for all employers of 50 or more.

These reports were originally scheduled for January of 2015 for coverage provided in 2014.

However, this deadline was moved back one year. The IRS urges employers to voluntarily file these forms for 2014. There seems to be little to be gained by actually filing reports for 2014. However, we recommend that employers obtain these forms and prepare a “dry run” of these information reports based on their 2014 experience. This exercise will enable employers to:

  • fine-tune their recordkeeping
  • learn if they are satisfying their “play” obligations or be liable for the “pay” penalty
  • make adjustments to plan content, eligibility and employer subsidy, and
  • determine eligibility for simplified reporting.

Employers with questions should contact their benefits consultants, payroll services, software vendors, or attorneys for assistance.

Timothy Tornga

Timothy J. Tornga practices at Mika Meyers Beckett & Jones PLC in all areas of retirement and welfare benefit plans for government, not-for-profit and for-profit employers. He has extensive experience in health and welfare benefits, flexible benefits and fringe benefits for all employers and retirement plans and executive compensation for government, tax-exempt and for-profit employers.

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