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adapted Dec. 12, 2017



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The IRS has amorphous admonition administering of their abeyant accountability for declining to accommodate bloom advantage adjustable with the Affordable Care Act’s (ACA’s) aggregate albatross provisions. It afresh appear forms that administering can use to altercation the assessment.

On Nov. 2, the IRS issued Q&As 55-58, allegorical administering that by year’s end the bureau will activate admonition “applicable ample employers” (ALEs) of their abeyant accountability for an employer aggregate albatross payment, if any, in affiliation with the 2015 agenda year. The assurance will be based on admonition that administering appear to the IRS on Forms 1094-C and 1095-C and the alone tax acknowledgment filed by the ALE’s employees. In general, an ALE would be accountable to a amends fee if, for at atomic one ages in the year, one or added of its full-time workers accustomed a exceptional tax acclaim through the ACA’s Bloom Allowance Marketplace because the ALE bootless to accommodate ACA-compliant bloom coverage.



The IRS acquaint a sample Letter 226J, Preliminary Calculation of the Employer Aggregate Albatross Payment, and an account of Letter 226J, which describes how ALEs should accede to this letter.



“Any ALE that receives a Letter 226J will be provided with 30 canicule to accede afore a address for acquittal is fabricated by the IRS,” said Ryan Moulder, a Los Angeles-based accomplice at Bloom Care Attorneys PC and accepted admonition at Accord Systems LLC, an ACA acquiescence software firm.

IRS Letter 226J will include:

“Only 10 advisers will be listed on anniversary folio of the Anatomy 14765 so an ALE affiliate with hundreds of assessable full-time advisers should apprehend a blubbery amalgamation included with the Letter 226J,” Moulder said.

Penalty Refresher

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The ACA added employer aggregate albatross accoutrement beneath Section 4980H of the tax code. ALEs—employers with at atomic 50 full-time agnate employees—must action “minimum capital coverage” that is “affordable” and that provides “minimum value” to their full-time advisers or potentially accomplish an employer aggregate albatross acquittal to the IRS.

However, “2015 was a phase-in year and an applicative ample employer [was authentic as having] 100 or added full-time employees,” rather than 50 or more, said Craig Hasday, admiral of Frenkel Benefits, an agent account allowance and account administering close in New York City. For 2015, ALEs additionally were “required to action minimum capital advantage which additionally met the minimum bulk accepted to at atomic 70 percent of full-time advisers and their acceptable dependents,” admitting alpha in 2016 the approved threshold—at atomic 95 percent of full-time employees—took effect.

For plan year 2015, ALEs could face a $2,000 amends for every full-time agent in the accident there was no authentic action of advantage and a $3,000 amends if the action was not affordable. These penalties are indexed for aggrandizement and rose hardly for anniversary consecutive plan year (2017 and 2018 amends amounts are declared here).

Enforcement Guidance

The new admonition explains that:

[SHRM members-only toolkit: Complying with and Leveraging the Affordable Care Act]

Rapid Acknowledgment Required

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If an ALE does not accomplish a appropriate acknowledgment to the Letter 226J, “the IRS will address acquittal in the proposed bulk through apprehension CP 220J. Assessments are due alone afterwards the IRS has provided apprehension and address for payment,” acclaimed Julia Zuckerman, J.D., a administrator at Conduent HR Services in Washington, D.C., and Richard Stover, an actuary and arch with the firm, in a contempo blog post.

Employers “should additionally ensure that processes are in abode to accomplish these payments, as necessary. Even administering who are not assured any assessments will charge to adapt to accede to the IRS aural the bound timeframe to address any incorrect assessments,” they advised.

“Regardless of the acumen an ALE affiliate receives a Letter 226J, a timely, authentic acknowledgment is necessary,” Moulder emphasized. “It would be advisable for any ALE responding to the Letter 226J from the IRS to argue with an advocate who is accustomed with the Forms 1094-C and 1095-C as able-bodied as added pertinent Affordable Care Act provisions.”

“Subtract commitment time and centralized acquisition time and you may accept aloof two or three weeks to bear to IRS your well-considered, written, well-documented, argument to a abundant employer authorization tax assessment,” said R. Pepper Crutcher Jr., a accomplice in Balch & Bingham’s Jackson, Miss., law office. “If you abridgement accessible admission to able abstracts about your 2015 accumulation bloom plan enrollment, agent affordability, accommodation and IRS advertisement of your advantage offers—including 2015 Forms 1094-C and 1095-C—you may acquisition this a alarming task. If that abstracts is hosted by a vendor, you should acquaintance that bell-ringer and verify admission promptly.”

“In an alignment of any size, it ability booty a anniversary or added for Letter 226J to ability the appropriate administration or person,” said Alden Bianchi, a allowances advocate with Mintz Levin in Boston. “While the Q&A boilerplate mentions extensions of time, one would achievement that the IRS will be added adjustable on this score.”

Due to abashing surrounding the regulations and the complication of the appropriate forms, “the address action is activity to be a mess,” said Hasday. “No doubt, there are activity to be a lot of affronted and abashed employers. Lawyers, accountants and allowance brokers are activity to get actual active allocation all this out.”

“Moving forward, administering should abode a abundant accent on the accurateness of the Forms 1094-C and 1095-C to abstain abeyant IRS issues in approaching years,” added Moulder.

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Related SHRM Articles:

Adapt for Early 2018 ACA Admonition Advertisement on Bloom Coverage, SHRM Online Benefits, October 2017

Play or Pay: Rising Penalties’ Role in Complying with the ACA, SHRM Online Employment Law, October 2017

Not Every Aspect of Anatomy 1095-C Can Be Outsourced, SHRM Online Employment Law, October 2017

Related SHRM Resources:

Bloom Care Reform Resources for Employers

Was this commodity useful? SHRM offers bags of tools, templates and added absolute affiliate benefits, including acquiescence updates, sample policies, HR able advice, apprenticeship discounts, a growing online affiliate association and abundant more. Join/Renew Now and let SHRM advice you assignment smarter.

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