Readers ask, we answer! What happens if you don’t pay Obamacare’s tax penalty?

May 13, 2013

Welcome to Health Reform Watch, Sarah Kliff’s regular look at how the Affordable Care Act is changing the American health-care system — and being changed by it. You can reach Sarah with questions, comments and suggestions here. Check back every Monday, Wednesday and Friday afternoon for the latest edition, and read previous columns here.

Gene is a self-employed New Yorker  who currently purchases his own health insurance. He also is a strong opponent of Obamacare. And starting next year, Gene plans to drop his health coverage in express protest of the health law's mandate.

"I will cancel my insurance the instant I can no longer be denied insurance for preexisting conditions," Gene wrote in an e-mail Sunday night. "I will not fill out the special IRS form."

Gene asked that I not use his last name as he's talking specifically about disobeying a federal mandate. But he had seen that, from time to time, I use this space to answer readers' questions about the law. And Gene put his questions to me.

"I am especially interested to know what happens, if anything, when my 2013 federal tax return does not include the Obamacare form and when I refuse to comply with any request to produce one?" Gene asked in his e-mail. "Am I correct that if I do not provide the form, there is nothing the IRS can do to me?  And if they can do something to me, what is it that they can do?"

To answer these questions, I called up Catherine Livingston. Up until January, she was the health-care counsel in the Internal Revenue Services's Office of Chief Counsel. She now works as a partner at the law firm Jones Day.

The first thing I asked her was what happens if you don't send in a form that specifies whether you do or don't have insurance coverage. That, she told me, isn't actually clear yet.

"We don’t know yet whether there will be a special additional form nor how the IRS will treat a return that comes in with missing information, she says. "Sometimes if something is missing the IRS can work without it. Sometimes the IRS will correspond and say, ‘We’re going to assume X is true unless you respond with different information.’ There’s a set of compliance procedures the IRS will need to develop to complement the approach to the form.”

Even if the Internal Revenue Service did find that an individual lacked health coverage, they would still need to look at whether he or she qualified for one of the nine exemptions from the individual mandate. These include clauses that allow Americans with religious objections, incarcerated individuals and those who cannot find an affordable plan to not carry health coverage without penalty.

If an individual does not carry insurance coverage and does not have exemptions, that's where a tax penalty could come into play. In 2014, the health law includes a $95 penalty for not carrying health insurance. This penalty is administered by the Internal Revenue Service through the tax return system. In order to collect, the IRS will typically dock that amount from an individual's tax return.

Gene has, however, already thought this issue through. He plans to adjust his "quarterly estimated payments to ensure I do not have a tax refund, which I understand to be the only source from which the IRS can extract any penalties that I refuse to pay voluntarily."

This, Livingston said, is actually a strategy that might just work. For that to happen, the tax filer would need to be cognizant of the estimated tax penalty, which the IRS can levy against filers that pay far too few taxes. But keeping that in mind, dodging a refund could mean dodging the mandate fine.

"The needle you would have to thread to execute this is making sure you've paid enough taxes to avoid the estimated tax penalty," Livingston said, "But not so much that you would get a refund.”

If there's no tax refund, where else can the IRS get its $95? Typically, the IRS does have a number of steps by which to recoup unpaid taxes. It can garnish your wages, for example, or, in rare cases, seize property. But with the health mandate, the law's drafters specifically barred the agency from any of those more aggressive tactics.

"In the case of any failure by a taxpayer to timely pay any penalty imposed by this section," Section 1501 of the Affordable Care Act reads, "Such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure."

If a penalty does not come out of a refund, it does not fully disappear. Instead, it gets carried over to next year's tax filings and held on the filer's account. The Internal Revenue Service is also allowed to charge interest on any unpaid tax penalty (More on that in the very thrilling Sec. 6601 of the Internal Revenue Service Code). The rate currently hovers around 3 percent.

So the tax penalties accumulate, and the interest goes up and up. But even in an extreme example, where someone doesn't pay the health law's penalties for decades, the powers that the Internal Revenue Service has to collect the unpaid fines don't change.

"The IRS remains very clearly limited in its ability to collect the penalty," Livingston says, "And the accumulation over time does not change those legal limitations."

KLIFF NOTES: Top health policy reads from around the Web.

A health exchange call center in California is getting lots of job applications. "The Fresno resident was among about 1,500 people who took written exams Saturday as part of the hiring process for the new Covered California state insurance-exchange call center. Saturday's job-seekers were added to the pool of about 1,300 who took the exams in April. Covered California is the state's health-benefit exchange formed to provide insurance options under the federal Affordable Care Act." Eddie Jimenez in the Fresno Bee.

Louisiana sends a Medicaid expansion bill to the House floor on an accidental vote. "A proposal that would tap into federal funding available to offer insurance to the working poor narrowly received the backing Wednesday of the House health committee, after two Republican lawmakers sided with Democrats to advance the bill. But one of those Republicans said his vote was a mistake." The Associated Press.

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