[Federal Register Volume 78, Number 127 (Tuesday, July 2, 2013)]
[Proposed Rules]
[Pages 39644-39649]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15943]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[REG-140789-12]
RIN 1545-BL42
Information Reporting for Affordable Insurance Exchanges
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This document contains proposed regulations relating to
requirements for Affordable Insurance Exchanges (Exchanges) to report
information relating to the health insurance premium tax credit enacted
by the Patient Protection and Affordable Care Act and the Health Care
and Education Reconciliation Act of 2010. These proposed regulations
affect Exchanges that make qualified health plans available to
individuals and employers.
DATES: Written (including electronic) comments and requests for a
public hearing must be received by September 3, 2013.
ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-140789-12), Room
5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station,
Washington, DC 20044. Submissions may be hand-delivered Monday through
Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-
140789-12), Courier's Desk, Internal Revenue Service, 1111 Constitution
Avenue NW., Washington, DC, or sent electronically via the Federal
eRulemaking Portal at
[[Page 39645]]
www.regulations.gov (IRS REG-140789-12).
FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations,
Arvind Ravichandran, (202) 622-4920; concerning the submission of
comments, and/or requests for a public hearing, Oluwafunmilayo Taylor,
(202) 622-7180 (not toll-free calls).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking is covered under OMB Control Number 1545-2232 and will be
submitted to the Office of Management and Budget in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)).Comments on the
collection of information should be sent to the Office of Management
and Budget, Attn: Desk Officer for the Department of the Treasury,
Office of Information and Regulatory Affairs, Washington, DC 20503,
with copies to the Internal Revenue Service, Attn: IRS Reports
Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments
on the collection of information should be received by September 3,
2013. Comments are specifically requested concerning:
Whether the proposed collection of information is necessary for the
proper performance of the functions of the IRS, including whether the
information will have practical utility;
How the quality, utility, and clarity of the information to be
collected may be enhanced;
How the burden of complying with the proposed collection of
information may be minimized, including through the application of
automated collection techniques or other forms of information
technology; and
Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of services to provide information.
The collection of information in these proposed regulations is in
Sec. 1.36B-5 and will be reported on Form 1095-A. The collection of
information is necessary to compute the premium tax credit and to
reconcile the amount of the premium tax credit with advance credit
payments made under section 1412 of the Patient Protection and
Affordable Care Act (42 U.S.C. 18082). The collection of information is
required to comply with the provisions of section 36B(f)(3) of the
Internal Revenue Code (Code). The likely respondents are Exchanges
established under section 1311 or 1321 of the Patient Protection and
Affordable Care Act (42 U.S.C. 13031 or 42 U.S.C. 18041).
The estimated total annual reporting burden is 12,060 hours. The
estimated annual burden per respondent is 670 hours and the estimated
number of respondents is 18.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a valid
control number assigned by the Office of Management and Budget.
Background
Beginning in 2014, under the Patient Protection and Affordable Care
Act, Public Law 111-148 (124 Stat. 119 (2010)), and the Health Care and
Education Reconciliation Act of 2010, Public Law 111-152 (124 Stat.
1029 (2010)) (collectively, the Affordable Care Act), individuals and
small businesses will be able to purchase private health insurance
through competitive marketplaces called Exchanges (also called Health
Insurance Marketplaces). Section 1401 of the Affordable Care Act
enacted section 36B, allowing a refundable premium tax credit to help
individuals and families afford health insurance purchased through an
Exchange. The section 36B credit makes health insurance affordable by
reducing a taxpayer's out-of-pocket premium cost.
Under section 1411 of the Affordable Care Act (42 U.S.C. 18081), an
Exchange makes an advance determination of credit eligibility for
individuals enrolling in coverage through the Exchange and seeking
financial assistance. Using information available at the time of
enrollment, the Exchange determines (1) whether the individual meets
the income and other requirements for advance credit payments, and (2)
the amount of the advance payments. Advance credit payments are made
monthly under section 1412 of the Affordable Care Act (42 U.S.C. 18082)
to the issuer of the qualified health plan in which the individual
enrolls.
Under section 36B(f)(1), taxpayers who receive advance credit
payments must reconcile the amount of the advance payment with the
amount of the premium tax credit computed on the taxpayer's income tax
return. A taxpayer who receives excess advance payments must treat the
excess amount as additional tax under section 36B(f)(2). Taxpayers
whose credit amount exceeds the amount of advance payments for the
taxable year may receive the excess as additional credit. Taxpayers who
do not seek advance credit payments also may claim the premium tax
credit on the income tax return.
Section 36B(f)(3) directs Exchanges to report to the IRS and to
taxpayers certain information required to reconcile the premium tax
credit with advance credit payments and to administer the premium tax
credit generally. The required information relates to the enrollment of
a taxpayer and taxpayer's family in a qualified health plan through the
Exchange and includes (1) the level of coverage, (2) identifying
information for the primary insured and each enrollee, (3) the amount
of premiums and advance credit payments for the coverage, (4)
information (concerning, for example, a change in circumstances)
provided to the Exchange necessary to determine eligibility for and the
amount of the credit, and (5) other information necessary to determine
if a taxpayer has received the appropriate advance credit payments.
Final regulations under section 36B (TD 9590) were issued on May
23, 2012 (77 FR 30377). Section 1.36B-5 identifies the information
(primarily based on the statutory language) that Exchanges must report
to the IRS and taxpayers and indicates that the time and manner
requirements for reporting this information would be provided in
subsequent guidance. Accordingly, these proposed regulations amend
Sec. 1.36B-5, propose detailed rules for information reporting by
Exchanges, and describe specific information that has been identified
since publication of the final regulations that is necessary for
efficient tax administration.
Explanation of Provisions
1. Information Reporting to the IRS
a. Information Required To Be Reported
The proposed regulations require Exchanges to report information
concerning individuals enrolled in qualified health plans, including
the monthly amount of advance credit payments, if any. Consistent with
the statute, the proposed regulations require Exchanges to report
taxpayer identification numbers. It is anticipated that Exchanges will
report only Social Security numbers and provide an individual's date of
birth if a Social Security number is not available.
b. Time and Manner of Reporting
The proposed regulations require Exchanges to report the specified
information for each qualified health plan electronically to the IRS on
an annual and, to facilitate efficient tax administration, a monthly
basis, and specify the information that must be reported in each
category. Under the proposed regulations, Exchanges must
[[Page 39646]]
make a monthly report to the IRS on or before the fifteenth day of the
month following the month of coverage. The information reported monthly
will be cumulative, containing monthly data for each month beginning
with January through the most recent completed month. For example,
information reported in September will contain information for each
month from January through August. The annual report for the calendar
year must be made on or before January 31 of the year following the
year of coverage. Information for more than one tax household will be
on the same annual report if the individuals enroll in one qualified
health plan.
2. Statements Furnished to Taxpayers or Responsible Adults
The proposed regulations direct Exchanges to furnish to each
taxpayer or responsible adult who enrolled, or whose family member
enrolled, in a qualified health plan through the Exchange a written
statement that includes the information the Exchange must report to the
IRS annually. Exchanges may use Form 1095-A for this statement and must
furnish the statement on or before January 31 of the year following the
calendar year of coverage.
Section 36B(f)(3) and the proposed regulations require that
Exchanges furnish statements only to the individual identified to the
Exchange as the taxpayer or the responsible adult. Section 36B
information reporting may be included in the IRS truncated taxpayer
identification number program, see proposed regulations at 78 FR 913
(January 7, 2013). Comments are requested on whether and under what
circumstances Exchanges should furnish a statement to another
individual (who may, for example, require the statement to determine
tax liability).
The proposed regulations permit electronic delivery of statements
to the taxpayer or responsible adult if the taxpayer or responsible
adult consents.
The IRS plans to make educational materials available to taxpayers
to explain the multiple statements taxpayers may receive under sections
6055, 6056, and 36B.
Effective/Applicability Date
These regulations are proposed to apply for taxable years ending
after December 31, 2013. Exchanges and taxpayers may apply these
proposed regulations until publication of final regulations or other
guidance. The need for additional transition relief will be considered
at that time.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in Executive Order
12866, as supplemented by Executive Order 13563. Therefore, a
regulatory assessment is not required. It has also been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
does not apply to these regulations, and, because the regulations do
not impose a collection of information requirement on small entities,
the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.
Pursuant to section 7805(f) of the Code, this notice of proposed
rulemaking has been submitted to the Chief Counsel for Advocacy of the
Small Business Administration for comment on its impact on small
business.
Comments and Requests for Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any comments that are submitted timely
to the IRS as prescribed in this preamble under the ADDRESSES heading.
The Treasury Department and the IRS request comments on all aspects of
the proposed rules. All comments will be available at
www.regulations.gov or upon request. A public hearing will be scheduled
if requested in writing by any person who timely submits written
comments. If a public hearing is scheduled, notice of the date, time
and place for the hearing will be published in the Federal Register.
Drafting Information
The principal authors of these proposed regulations are Shareen S.
Pflanz and Stephen J. Toomey of the Office of Associate Chief Counsel
(Income Tax and Accounting). However, other personnel from the IRS and
the Treasury Department participated in the development of the
regulations.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 1 is proposed to be amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 is amended by adding
entries in numerical order to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.36B-0 also issued under 26 U.S.C. 36B(g).
Section 1.36B-5 also issued under 26 U.S.C. 36B(g).
0
Par. 2. Section 1.36B-0 is amended by revising the entries for Sec.
1.36B-5 to read as follows:
Sec. 1.36B-0 Table of Contents.
* * * * *
Sec. 1.36B-5 Information Reporting by Exchanges.
(a) In general.
(b) Information required to be reported.
(1) Information reported annually.
(2) Information reported monthly.
(c) Alternative to reporting applicable benchmark plan.
(d) Electronic filing.
(e) Annual statement to be furnished to taxpayer.
(1) In general.
(2) Form of the statement.
(3) Time and manner for furnishing statements.
(f) Electronic furnishing of statements.
(1) In general.
(2) Consent.
(i) In general.
(ii) Withdrawal of consent.
(iii) Change in hardware or software requirements.
(iv) Examples.
(3) Required disclosures.
(i) In general.
(ii) Paper statement.
(iii) Scope and duration of consent.
(iv) Post-consent request for a paper statement.
(v) Withdrawal of consent.
(vi) Notice of termination.
(vii) Updating information.
(viii) Hardware and software requirements.
(4) Format.
(5) Notice.
(i) In general.
(ii) Undeliverable electronic address.
(iii) Corrected statement.
(6) Access period.
(7) Paper statements after withdrawal of consent.
(g) Effective/applicability date.
0
Par. 3. Section 1.36B-5 is revised to read as follows:
Sec. 1.36B-5 Information reporting by Exchanges.
(a) In general. An Exchange must report to the Internal Revenue
Service (IRS) information required by section 36B(f)(3) and this
section relating to the qualified health plans in which individuals
enroll.
(b) Information required to be reported--(1) Information reported
annually. An Exchange must report to
[[Page 39647]]
the Internal Revenue Service on or before January 31 of the year
following the calendar year of coverage the following information for
each qualified health plan in which an individual or a member of the
individual's family enrolls through the Exchange--
(i) The name, address, and taxpayer identification number (TIN), or
date of birth if a TIN is not available, of an individual enrolling, or
enrolling a family member, in coverage and approved for advance credit
payments (taxpayer), and the name and TIN of the individual's spouse,
if applicable;
(ii) The name, address, and TIN, or date of birth if a TIN is not
available, of an adult enrolling in coverage or enrolling one or more
members of a family in coverage and either not requesting or not
approved for advance credit payments (responsible adult);
(iii) The name and TIN, or date of birth if a TIN is not available,
and dates of coverage for each individual covered under the plan;
(iv) The monthly premium for the applicable benchmark plan used to
compute advance credit payments;
(v) For a responsible adult, the premium for the applicable
benchmark plan that would apply to the individuals enrolled in a
qualified health plan;
(vi) The monthly premium for the plan or plans in which a taxpayer,
responsible adult, or family member enrolls, without reduction for
advance credit payments, including the amount of premiums for a stand-
alone dental plan allocated to pediatric dental benefits;
(vii) The amount of the advance credit payments made on a
taxpayer's behalf each month;
(viii) The name of the qualified health plan issuer and the
issuer's employer identification number (EIN);
(ix) The qualified health plan policy number;
(x) The Exchange's unique identifier; and
(xi) Any other information specified by forms or instructions or in
published guidance, see Sec. 601.601(d) of this chapter.
(2) Information reported monthly. For each calendar month, an
Exchange must report to the Internal Revenue Service, on or before the
fifteenth day following each month of coverage, the information
described in paragraph (b)(1) of this section and the following
information--
(i) Whether the individuals enrolled in the qualified health plan
are the taxpayer's dependents;
(ii) Information on employment (to the extent this information is
provided to the Exchange) consisting of--
(A) The name, address, and EIN of each employer of the taxpayer,
taxpayer's spouse, and each individual covered by the qualified health
plan or plans; and
(B) An indication of whether an employer offered minimum essential
coverage, and, if so, the amount of the employee's required
contribution for self-only coverage and the Exchange's determination of
whether the employer coverage was affordable and provided minimum
value;
(iii) The unique number that identifies the specific account of the
taxpayer or responsible individual to enable data association from
month to month;
(iv) The name and TIN, or date of birth if a TIN is not available,
of each individual for whom the Exchange has granted an exemption from
coverage under section 5000A(e) and the related regulations, the months
for which the exemption is in effect, and the exemption certificate
number; and
(v) Any other information specified by forms or instructions or in
published guidance, see Sec. 601.601(d) of this chapter.
(c) Alternative to reporting applicable benchmark plan. An Exchange
satisfies the requirement in paragraph (b)(1)(v) of this section if, on
or before January 1 of each year after 2014, the Exchange provides a
reasonable method that any individual may use to determine the premium
for the applicable benchmark plan that applies to the individual's
coverage family for the prior calendar year for purposes of determining
the individual's premium tax credit.
(d) Electronic filing. An Exchange must submit the reports to the
IRS required under this section in electronic format. The information
reported monthly will be submitted to the IRS through the Department of
Health and Human Services.
(e) Annual statement to be furnished to taxpayer--(1) In general.
An Exchange must furnish to each taxpayer or responsible adult who
enrolled, or whose family member enrolled, in a qualified health plan
through the Exchange a written statement showing--
(i) The name and address of the taxpayer or responsible adult; and
(ii) The information described in paragraph (b)(1) of this section
for the previous calendar year.
(2) Form of the statement. A statement required under this
paragraph (e) may be made by furnishing to the taxpayer or responsible
adult identified in the annual report a copy of the report filed with
the IRS or on a substitute statement. A substitute statement must
include the information required to be shown on the report filed with
the IRS and must comply with requirements in published guidance (see
Sec. 601.601(d)(2) of this chapter) relating to substitute statements.
An IRS truncated taxpayer identifying number may be used as the
identifying number for an individual in lieu of the identifying number
appearing on the corresponding information report filed with the IRS.
(3) Time and manner for furnishing statements. An Exchange must
furnish the statements required under this paragraph (e) on or before
January 31 of the year following the calendar year of coverage. If
mailed, the statement must be sent to the taxpayer's or responsible
person's last known permanent address or, if no permanent address is
known, to the taxpayer's or responsible person's temporary address. An
Exchange may furnish the statement electronically in accordance with
paragraph (f) of this section.
(f) Electronic furnishing of statements--(1) In general. An
Exchange required to furnish a statement under paragraph (e) of this
section may furnish the statement to the taxpayer or responsible adult
(recipient) in an electronic format in lieu of a paper format. An
Exchange that meets the requirements of paragraphs (f)(2) through (7)
of this section is treated as furnishing the statement in a timely
manner.
(2) Consent--(i) In general. A recipient must have affirmatively
consented to receive the statement in an electronic format. The consent
may be made electronically in any manner that reasonably demonstrates
that the recipient is able to access the statement in the electronic
format in which it will be furnished. Alternatively, the consent may be
made in a paper document that is confirmed electronically.
(ii) Withdrawal of consent. An Exchange may provide that the
withdrawal of consent takes effect either on the date the Exchange
receives it or on another date no more than 60 days later. The Exchange
may provide that a request by the recipient for a paper statement will
be treated as a withdrawal of consent to receive the statement in an
electronic format. If the Exchange furnishes a statement after the
withdrawal of consent takes effect, the recipient has not consented to
receive the statement in electronic format.
(iii) Change in hardware or software requirements. If a change in
the hardware or software required to access the statement creates a
material risk that a recipient will not be able to access a statement,
an Exchange must, prior to changing the hardware or software, notify
the recipient. The notice must
[[Page 39648]]
describe the revised hardware and software required to access the
statement and inform the recipient that a new consent to receive the
statement in the revised electronic format must be provided to the
Exchange. After implementing the revised hardware and software, the
Exchange must obtain a new consent or confirmation of consent from the
recipient to receive the statement electronically.
(iv) Examples. The following examples illustrate the rules of this
paragraph (f)(2):
Example 1. Furnisher F sends Recipient R a letter stating that R
may consent to receive the statement required under section 36B
electronically on a Web site instead of in a paper format. The
letter contains instructions explaining how to consent to receive
the statement electronically by accessing the Web site, downloading
and completing the consent document, and emailing the completed
consent to F. The consent document posted on the Web site uses the
same electronic format that F will use for the electronically
furnished statement. R reads the instructions and submits the
consent in the manner provided in the instructions. R has consented
to receive the statement required under section 36B electronically
in the manner described in paragraph (f)(2)(i) of this section.
Example 2. Furnisher F sends Recipient R an email stating that R
may consent to receive the statement required under section 36B
electronically instead of in a paper format. The email contains an
attachment instructing R how to consent to receive the statement
required under section 36B electronically. The email attachment uses
the same electronic format that F will use for the electronically
furnished statement. R opens the attachment, reads the instructions,
and submits the consent in the manner provided in the instructions.
R has consented to receive the statement required under section 36B
electronically in the manner described in paragraph (f)(2)(i) of
this section.
Example 3. Furnisher F posts a notice on its Web site stating
that Recipient R may receive the statement required under section
36B electronically instead of in a paper format. The Web site
contains instructions on how R may access a secure Web page and
consent to receive the statements electronically. R accesses the
secure Web page and follows the instructions for giving consent. R
has consented to receive the statement required under section 36B
electronically in the manner described in paragraph (f)(2)(i) of
this section.
(3) Required disclosures--(i) In general. Prior to, or at the time
of, an individual's consent, an Exchange must provide to the individual
a clear and conspicuous disclosure statement containing each of the
disclosures described in paragraphs (f)(3)(ii) through (viii) of this
section.
(ii) Paper statement. An Exchange must inform the recipient that
the statement will be furnished on paper if the recipient does not
consent to receive it electronically.
(iii) Scope and duration of consent. An Exchange must inform the
recipient of the scope and duration of the consent. For example, the
Exchange must inform the recipient whether the consent applies to each
statement required to be furnished after the consent is given until it
is withdrawn or only to the first statement required to be furnished
following the consent.
(iv) Post-consent request for a paper statement. An Exchange must
inform the recipient of any procedure for obtaining a paper copy of the
recipient's statement after giving the consent described in paragraph
(f)(2)(i) of this section and whether a request for a paper statement
will be treated as a withdrawal of consent.
(v) Withdrawal of consent. An Exchange must inform the recipient
that--
(A) The recipient may withdraw consent by writing (electronically
or on paper) to the person or department whose name, mailing address,
telephone number, and email address is provided in the disclosure
statement;
(B) An Exchange will confirm the withdrawal and the date on which
it takes effect in writing (either electronically or on paper); and
(C) A withdrawal of consent does not apply to a statement that was
furnished electronically in the manner described in this paragraph (f)
before the date on which the withdrawal of consent takes effect.
(vi) Notice of termination. An Exchange must inform the recipient
of the conditions under which the Exchange will cease furnishing
statements electronically to the recipient.
(vii) Updating information. An Exchange must inform the recipient
of the procedures for updating the information needed to contact the
recipient and notify the recipient of any change in the Exchange's
contact information.
(viii) Hardware and software requirements. An Exchange must provide
the recipient with a description of the hardware and software required
to access, print, and retain the statement, and the date when the
statement will no longer be available on the Web site. The Exchange
must advise the recipient that the statement may be required to be
printed and attached to a Federal, State, or local income tax return.
(4) Format. The electronic version of the statement must contain
all required information and comply with applicable published guidance
(see Sec. 601.601(d) of this chapter) relating to substitute
statements to recipients.
(5) Notice--(i) In general. If a statement is furnished on a Web
site, the Exchange must notify the recipient. The notice may be
delivered by mail, electronic mail, or in person. The notice must
provide instructions on how to access and print the statement and
include the following statement in capital letters, ``IMPORTANT TAX
RETURN DOCUMENT AVAILABLE.'' If the notice is provided by electronic
mail, this statement must be on the subject line of the electronic
mail.
(ii) Undeliverable electronic address. If an electronic notice
described in paragraph (f)(5)(i) of this section is returned as
undeliverable, and the Exchange cannot obtain the correct electronic
address from the Exchange's records or from the recipient, the Exchange
must furnish the notice by mail or in person within 30 days after the
electronic notice is returned.
(iii) Corrected statement. An Exchange must furnish a corrected
statement to the recipient electronically if the original statement was
furnished electronically. If the original statement was furnished
through a Web site posting, the Exchange must notify the recipient that
it has posted the corrected statement on the Web site in the manner
described in paragraph (f)(5)(i) of this section within 30 days of the
posting. The corrected statement or the notice must be furnished by
mail or in person if--
(A) An electronic notice of the Web site posting of an original
statement or the corrected statement was returned as undeliverable; and
(B) The recipient has not provided a new email address.
(6) Access period. Statements furnished on a Web site must be
retained on the Web site through October 15 of the year following the
calendar year to which the statements relate (or the first business day
after October 15, if October 15 falls on a Saturday, Sunday, or legal
holiday). The furnisher must maintain access to corrected statements
that are posted on the Web site through October 15 of the year
following the calendar year to which the statements relate (or the
first business day after October 15, if October 15 falls on a Saturday,
Sunday, or legal holiday) or the date 90 days after the corrected forms
are posted, whichever is later.
(7) Paper statements after withdrawal of consent. An Exchange must
furnish a paper statement if a recipient withdraws consent to receive a
statement electronically and the withdrawal takes effect before the
statement is furnished.
[[Page 39649]]
A paper statement furnished under this paragraph (f)(7) after the
statement due date is timely if furnished within 30 days after the date
the Exchange receives the withdrawal of consent.
(g) Effective/applicability date. This section applies for taxable
years ending after December 31, 2013.
Beth Tucker,
Deputy Commissioner for Operations Support.
[FR Doc. 2013-15943 Filed 6-28-13; 4:15 pm]
BILLING CODE 4830-01-P