Page 1 of 1
There are two potential ACA employer mandate penalties that can impact ALEs:
a) IRC §4980H(a)—The “A Penalty”
The first is the §4980H(a) penalty—frequently referred to as the “A Penalty” or the “Sledge Hammer Penalty.” This penalty applies where the ALE fails to offer minimum essential coverage to at least 95% of its full-time employees in any given calendar month.
The 2022 A Penalty is $229.17/month ($2,750 annualized) multiplied by all full-time employees (reduced by the first 30). It is triggered by at least one full-time employee who was not offered minimum essential coverage enrolling in subsidized coverage on the Exchange. Note: The IRS has not yet released the 2023 A Penalty increase.
The “A Penalty” liability is focused on whether the employer offered a major medical plan to a sufficient percentage of full-time employees—not whether that offer was affordable (or provided minimum value).
b) IRC §4980H(b)—The “B Penalty”
The second is the §4980H(b) penalty—frequently referred to as the “B Penalty or the “Tack Hammer Penalty.” This penalty applies where the ALE is not subject to the A Penalty (i.e., the ALE offers coverage to at least 95% of full-time employees).
The B Penalty applies for each full-time employee who was:
Only those full-time employees who enroll in subsidized coverage on the Exchange will trigger the B Penalty. Unlike the A Penalty, the B Penalty is not multiplied by all full-time employees.
In other words, an ALE who offers minimum essential coverage to a full-time employee will be subject to the B Penalty if:
The 2022 B Penalty is $343.33/month ($4,120 annualized) per full-time employee receiving subsidized coverage on the Exchange. Note: The IRS has not yet released the 2023 B Penalty increase.
Recipients of these letters may disagree with all or part of the proposed assessment amount. In many cases, there is good reason to disagree, since the IRS is evaluating compliance based on ACA reporting Forms 1094-C and 1095-C from 2015 — the first year for these filings, when confusion was common. Therefore, providing the IRS with updated information or correcting filing errors is likely to reduce or even eliminate the assessment.
It appears that 2015 proposed assessment letters will continue during 2018, and that employers will be notified of 2016 proposed assessments either later in 2018 or in 2019 (absent legislative relief or a legal challenge to the employer mandate).
ALEs started reporting compliance information from 2015 to the IRS on Forms 1094-C and 1095-C in early 2016. An ALE may receive an IRS assessment letter for the following reasons:
Letter 226-J states the proposed penalty (with accompanying calculations) and a list of employees who received a premium tax credit by month. The letter also indicates whether the proposed assessment is for an “a” or “b” penalty (so far, most are “a” penalties). The “a” penalty relates to whether the employer offered health coverage to substantially all (70% in 2015, 95% after that) full-time employees (and dependents), while the “b” penalty relates to whether the coverage offered met the minimum value requirements and was affordable. Recent 226-J letters have proposed penalties in the following situations:
First, any company that consists of more than one ALE will want to direct the Letter 226-J to the correct ALE so it can respond promptly. The most likely cause of incorrect assessments is errors in Forms 1094-C and 1095-C, as these are the forms the IRS uses to determine compliance with the employer mandate. The following are some suggestions for responding to these letters and avoiding assessments, now and in the future:
ALEs that discover an error after receiving Letter 226-J should not re-file the forms and should respond to the letter in one of two ways: pay the proposed penalty or disagree with all or part of the proposed assessment following IRS procedures.
ALEs that respond to the IRS will receive Letter 227, which acknowledges receipt of the ESRP Response form and describes any next steps for the ALE. An ALE that disagrees with the IRS’s proposed or revised assessment may request a pre-assessment conference with the IRS Office of Appeals by the response date on Letter 227 (generally 30 days from the date of the letter).
Failing to respond to Letter 226-J within 30 days will trigger a Notice and Demand for Payment (Notice CP 220J). After that, the penalty amount will be subject to IRS lien and levy enforcement actions, and interest will start to accrue.
ALEs (or their ACA reporting vendors) need to be careful in filing Forms 1094-C and 1095-C in the future. Assuming the employer mandate requirements are met, completing the forms correctly the first time should ensure that ALEs do not receive Letter 226-J. ALEs that receive a proposed assessment letter should consult with qualified legal counsel to evaluate the assessment and respond appropriately. Additional information is available at the IRS’s Letter 226-J Website.
ALEs that discover filing errors in their 2016 or 2017 filings of Forms 1094-C and 1095-C should obtain copies of the erroneous forms and re-file corrected forms as soon as possible (re-filing is generally permissible before a Letter 226-J is received). Self-correction is the best way to stay ahead of these issues before the IRS gets involved.