IRS Issues Forms and Instructions for ACA Reporting

Originally posted on

In early February 2015, the IRS released draft versions of the forms that employers subject to the Affordable Care Act (ACA) “shared responsibility” mandate—sometimes referred to as “play or pay”—will be required to file in order to show that the health coverage they offer to their employees is compliant with ACA requirements. The forms implement reporting obligations under Internal Revenue Code sections 6055 and 6066, which the ACA added to the tax code.

The forms are not required to be filed by employers for tax year 2014. However, in preparation for the first required filing of these forms (in 2016 for 2015), reporting entities may, if they wish, voluntarily file.

The IRS also released a new brochure Affordable Care Act: Reporting Requirements for Applicable Large Employers, which discusses getting ready for monthly tracking and preparing to fill out new IRS forms in 2016.

The forms include:

Form 1095-B: Health Coverage. To be filed with the IRS and provided to taxpayers by insurers, as well as by self-insured employers that are not subject to the employer "shared responsibility" mandate, to verify that individuals have minimum essential coverage that complies with the individual coverage requirements.

Form 1095-C: Employer-Provided Health Insurance Offer and Coverage. To be filed by employers with 50 or more full-time or full-time equivalent employees to verify their compliance with the employer "shared responsibility" mandate. Form 1095-C will also be used to establish employee eligibility for premium tax credits if the employer does not offer affordable and adequate coverage.

Form 1094-B: Transmittal of Health Coverage Information Returns and Form 1094-C: Transmittal of Employer-Provided Health Insurance Offer and Coverage Information Returns. These are the transmittal forms that insurers and employers will use to transmit the individual 1095-Bs and 1095-Cs to the IRS.

“Insurers and self-insured health plans will provide a Form 1095-B to each of their enrollees and members, and file these forms, together with a transmittal Form 1094-B with the IRS,” explained Timothy Jost, J.D., a professor at the Washington and Lee University School of Law, in an earlier post regarding the draft forms on the Health Affairs Blog. “Large employers must provide a Form 1095-C to each employee, and transmit these, together with a transmittal [Form 1094-C] to the IRS.”

The IRS also issued instructions relating to the above forms:

Text of Instructions for IRS Forms 1094-B and 1095-B.

Text of Instructions for IRS Forms 1094-C and 1095-C.

“The instructions for the 1094-C and 1095-C are by far the most complex of the instructions...filling 13 pages with dense, two column, print,” noted Jost in a blog post regarding the draft versions (the final instructions reach 14 pages and are in a smaller type face, and thus even longer). “Most of the complexity derives from the options for complying with the employer mandate and the transition exceptions to that mandate that the administration has created,” Jost explained.

The forms “are identical to the draft forms released in the late summer of 2014,” Jost noted in a February 2015 blog post. “The instructions for the transmittal forms 1094-B and 1095-B are virtually identical to the draft instructions. … The final instructions for forms 1094-C and 1095-C, however, contain a number of changes from the draft instructions and should be reviewed carefully by insurers, employers, and those who advise them.”

“We hoped that the IRS was finding a way to streamline and simplify the reporting forms and instructions that employers will use in connection with the...employer and individual mandates. Those hopes were dashed...when the IRS released the final reporting forms and instructions,” stated a February 2015 alert from Lockton, an insurance brokerage. “The reporting forms and instructions remain detailed and complex, with many caveats, exceptions and special rules. Complicating this, reporting continues to be based on the calendar year, regardless of the year on which an employer’s plan operates.”

The Lockton alert further notes:

The final forms and instructions are labeled as “2014” forms, meaning they would relate to coverage during 2014. It is apparent, however, that these materials were created for the required reporting in 2016 with respect to coverage during 2015. In addition to explicitly stating that reporting with respect to 2014 is voluntary, the instructions explain how to indicate use of various transition rules that apply during 2015.

“As the forms must be filed by Feb. 28 (March 31 if filed electronically) and were just released in final form, it is very unlikely that many employers, insurers, or government programs will file for 2014,” noted Jost. “The 2015 forms are likely to be very similar, however, so it is probably important for employers and insurers to review these forms to ensure that they are on track for 2015 reporting.”

Advised a February 2015 alert from Fox Rothchild LLP, “Bear in mind that there is a considerable amount of time between now and the final filing obligation so there may be additional revisions to these instructions, or at least some further clarification. But in the meantime, read the instructions and familiarize yourself with the reporting obligations.”

Tracking and Reporting Employee Data

Companies with 100 or more full-time equivalent employees must begin complying with the ACA coverage requirements in 2015, although they will have two years to phase up to the requirement that they cover 95 percent of their workers. Companies with 50 to 99 full-time equivalent employees will have another year—until 2016—to start complying. Smaller businesses are exempt.

Under tax code sections 6055 and 6056, employers must compile monthly and report annually numerous data points to the IRS and their own employees. This data will be used to verify the individual and employer mandates under the law.

“Although required reporting under sections 6055 and 6056 will not occur until January 2016 to employees and March 2016 to the IRS, the data being reported is based on what happened during 2015,” according to an August 2014 article in HR Magazine. “Therefore, employers should have the necessary infrastructure in place to gather that information by January 2015 or very soon after.”

Given the cross-functional compliance and reporting requirements, having a multidisciplinary team in place is important, with a written workplan that specifies the responsibilities of HR, payroll, finance and other departments. The chief HR officer and the chief financial officer should coordinate their efforts and those of their staffs. Top-level executive sponsorship should ensure that all functions are working together and doing their part.

“Ideally, technology will take much of the reporting burden off of employers, automating significant portions of the data collection and reporting processes,” observed the Lockton alert, adding:

Unfortunately, technology will not produce accurate reporting without accurate data. In addition, while an employer’s current HR technology solutions may capture the information required for ACA reporting, it is unlikely that the employer has any one system that incorporates all of this information. It is also very likely that gathering the information from various sources and entering it into the required forms will be difficult and time-consuming. Employers that have not done so already will want to discuss with their third-party payroll and benefits administration vendors the extent to which they can handle the required information gathering and reporting.

Reporting Requirement Still Applies to Mid-Size EmployersAlthough mid-size employers (between 50 and 99 full-time employees or equivalents) can take advantage of one year of transitional relief from the employer mandate requirements, delaying compliance until the first day of the employer's 2016 plan year, “these employers are still required to comply with the pay or play reporting requirement and the individual mandate reporting requirement, if the mid-size employer sponsors a self-funded group health plan,” advised law firm Miller Johnson. “In order to qualify for the transitional relief, mid-size employers must certify to the IRS that it meets the necessary requirements. Form 1094-C is used to certify that the mid-size employer meets these requirements.”

The firm added, “The good news is that these forms appear relatively simple to complete. The bad news, however, is that compiling the information necessary to complete these forms will likely impose significant administrative burdens.”


2015 Monthly Information

“This reporting and disclosure requirement is new for employers and may catch some employers off-guard,” warned an alert by benefits consultancy Hill, Chesson & Woody, which added that the reporting requirements include collecting and disclosing:

  • Social Security numbers of employees, spouses and dependents.
  • Names and employer ID numbers(EINs) of other employers within the reporting employer’s controlled group of corporations for each month of the calendar year.
  • Number of full-time employees for each calendar month.
  • Total number of employees (full-time equivalents) for each calendar month.
  • Section 4980H transition relief indicators for each calendar month.
  • Employees’ share of the lowest-cost monthly premium for self-only, minimum value coverage for each calendar month.
  • Applicable Section 4980H safe harbor for each calendar month.

“The first transmittal and returns will not be filed until January 2016, but much of the information must be reported for each calendar month of 2015,” the firm pointed out. “Ensuring internal time and attendance systems, record management, and payroll systems are capable of producing the required information is critical. Although there is much information left to be released by the IRS concerning the Code 6056 reporting requirement, employers subject to this requirement should begin preparing now.”

“The significant amount of information that is required to be reported to both employees and the IRS on these forms may factor in to an employer’s overall strategy for compliance with health care reform’s pay or play penalty requirement,” advised Miller Johnson.

Steps to TakeIn light of the complexity of the new information reporting requirements, employers should take the following actions, advised McGladrey LLP in an alert:

Learn about the new information reporting requirements and review the IRS reporting forms.

Develop procedures for determining and documenting each employee's full-time or part-time status by month.

Develop procedures to collect information about offers of health coverage and health plan enrollment by month.

Review ownership structures of related companies and engage professionals to perform a controlled/affiliated service group analysis.

Discuss the reporting requirements with the health plan's insurer/third-party administrator and the company's payroll vendor to determine responsibility for data collection and form preparation.

 Ensure that systems are in place to collect the needed data for the reports.


Four Steps Required Prior to ACA E-FilingFor calendar year 2015, applicable large employers must file Affordable Care Act Information Returns (Forms 1094-B, 1095-B, 1094-C and 1095-C) via paper returns by Feb. 28, 2016 or via electronic returns by March 31, 2016, reports the International Foundation of Employee Benefit Plans.

Electronic returns will be filed through the new ACA Information Returns (AIR) system. The AIR system is specifically designed for the IRS to process these new ACA forms. Other IRS e-filing systems do not support the ACA Information Returns.

Prior to e-filing, applicable large employers must: (1) identify their responsible official(s) and contacts, (2) register with IRS e-services, (3) apply for the ACA Information Return Transmitter Control Code (TCC), and (4) participate in testing.


2015 is just around the corner. Are you ready?

Originally posted April 30, 2014 by Dorothy Summers on

Most of the political discussion surrounding the Affordable Care Act involves whether the law will be further delayed and/or repealed. While the government continues its in-fighting, the Obama Administration has pushed forward. In fact, in the first quarter of 2014, the government issued two significant pieces of final guidance related to implementing the major requirements of the law.

Employer mandate final regulations

The first piece of guidance was the employer mandate final regulations. These “play or pay” rules provide some clarity as well as a deadline for compliance. For large employers—businesses with 100 or more full-time and full-time equivalent employees—the deadline is January 1, 2015, or the month in which your health plans renews in 2015. While 2015 seems far off, the reality is that it is only eight short months from now.

Employers with between 50 and 99 full-time and FTE employees have a bit more breathing room—they have until 2016 to comply. Businesses with fewer than 50 full-time and FTE employees do not need to meet the play or pay requirements.

Information reporting

The second set of final regulations from the government addressed information reporting. These regulations include two separate types of reporting: to employees and to the government. The first reports must be completed using information collected in 2015 and then distributed to employees and the government in 2016. The government will issue a Form 1095 for this reporting.

While 2016 seems well into the future, the collection of required data must begin in January 2015. The reporting will be done on a calendar year basis regardless of whether your health plan operates on the calendar year.

So, are you ready to act on the government’s final guidance? Are you certain? To determine the answer, review your current plan against this checklist:

First, count your employees to determine if you are a large employer and subject to the employer mandate in 2015. If you qualify as a large employer in 2015, take the following steps:

▪   Determine whether health coverage is offered to at least 70% of your full-time employees and their dependents.

▪   Review whether the plan being offered to at least 70% of your full-time employees and their dependents provides minimum value by using one of the three available methods: the minimum value calculator; safe harbor checklists; or actuarial certification.

▪   Confirm the information provided from the fully insured carrier on the Summary of Benefits and Coverage.

▪   Assess the affordability of your lowest-cost single health coverage under one of the IRS’ affordability safe harbors using the W-2, rate of pay, or the federal poverty line.

▪   Provide required information regarding plan coverage and participation in accordance with information return requirements, and file the report in 2016 using 2015 data.

When the government announced last summer that it was delaying the employer mandate, many employers let out a sigh of relief. They relaxed. However, now it’s time to pick up the pace again. Before you know it, 2015 and 2016 will be here and the ACA will be an everyday reality for employers.

Seven Steps to the Pay or Play Rule

Originally posted April 02, 2014 by Darla Dernovsek on

Avoiding any missteps in Affordable Care Act (ACA) "Employer Responsibility" compliance relies on checking your health benefit practices against a list of seven crucial steps. Fortunately, employers who have started preparing for this provision of the ACA can already cross some of these steps off their "to-do" list.

Step One: Understand General Rules. The first step is learning the general rules for employers. Beginning Jan. 1, 2015, employers with 100 or more employees who fail to offer coverage to employees and their dependents will trigger a penalty. Employers with 50 to 99 employees have until Jan. 1, 2016; employers with less than 50 employees are exempt.

Step Two: Is the Employer a Large Employer? Knowing when and how to count employee "hours of service" is essential for full-time workers, seasonal workers, part-time workers and other employees. An employee who works 30 hours or more per week - the Internal Revenue Service (IRS) definition of full-time - must be offered benefits to avoid ACA fines. Barlament described the rules as "very pro-employee" in determining what qualifies as an hour of service, including how to count hours for employees who are on-call or do not work on an hourly basis.

Step Three: Will Employees Receive Subsidized Exchange Coverage? Employers can design health plans that avoid ACA "Pay or Play" penalties by meeting three requirements:

  1. They offer "minimum essential coverage" (see below) to full-time employees and dependents who would otherwise be eligible for subsidized coverage from an exchange.
  2. The employer's plan provides "minimum value."
  3. The employee's share of premiums is "affordable" for self-only coverage for the employer's lowest-cost, minimum value plan.

"If you don't remember anything else, remember this," Barlament said about step three.

Step Four: Did the Employer Offer Minimum Essential Coverage? Barlament called this an "easy test" because employers who offer major medical benefits should meet the standard. There are still additional rules that require attention, such as the IRS requirement that employees have the opportunity to enroll once a year.

Step Five: Does the Plan Provide Minimum Value? The IRS has predicted that 98 percent of all employer-sponsored plans would satisfy this test, which requires plans to cover 60 percent of the cost of all benefits. An online calculator is available. Employers should be prepared to prove they met the requirement year after year by laminating or notarizing a copy of their plan and then storing it safely.

Step Six: Is Plan Coverage Affordable? The employee's share of cost for "self-only" coverage for the lowest-cost, minimum value plan cannot be more than 9.5 percent of the employee's household income. Barlament noted that employers are typically unaware of employees' household income, so many employers will instead rely on three "safe harbors" built into the ACA. One option is to set up your plan based on the federal poverty line guidelines that were in effect six months prior to the start of the plan year. Under current guidelines, that would limit the employee share for self-only health benefits to $92 a month.

Step Seven: Determine "Full-Time" Status. "It's the worst step," Barlament said. Three options are available. For example, employers can measure status on a monthly basis, with employees who work 130 hours or more gaining full-time status. However, this method may only be viable for employees that are clearly well above or well below the 30-hour mark with no chance for movement. There's also an option to utilize a measurement period over a block of time and then lock in or lock out the employee's status for a comparable block of time. Finally, the two methods can be combined. The recommended approach varies depending on whether the employee is ongoing; new; new and full-time; new and works variable hours; new and works seasonal hours; or part-time. Barlament said the first step for employers is to put every employee into one of those categories.


IRS Issues Additional Final Regulations for Play or Pay Rule

Originally posted on March 05, 2014 on

On March 05, 2014, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) released final rules to implement the information reporting provisions for insurers and certain employers under the ACA that take effect in 2015.

“Today’s announcement is part of the Administration’s effort to provide certainty and early guidance about major health policies so employers, small business owners and other individuals can plan for 2015,” said Assistant Secretary for Tax Policy Mark J. Mazur.  “Treasury’s final rules significantly streamline and simplify information reporting while making it easier for employers and insurers of all sizes to provide the quality, affordable health coverage that every American deserves.”

While 96 percent of employers are not subject to ACA reporting requirements or the employer responsibility provision because they have fewer than 50 employees, in 2015 requirements begin to phase-in for the remaining four percent of employers that are required to offer quality, affordable coverage to employees or make a payment.  The final regulations released today on information reporting by those employers will substantially streamline reporting requirements for employers, particularly those that offer highly affordable coverage to full-time employees.  Final rules were also released today to provide guidance for reporting by insurers and other parties that provide health coverage under the ACA.  Together, these rules respond to feedback from stakeholders and will help employers and insurers effectively comply with their responsibilities.

These additional final rules include the following key provisions:

Single, Combined Form for Information Reporting

Employers that “self-insure” will have a streamlined way to report under both the employer and insurer reporting provisions.  Responding to widespread requests, the final rules provide for a single, consolidated form that employers will use to report to the IRS and employees under both sections 6055 and 6056, thereby simplifying the process and avoiding duplicative reporting.  The combined form will have two sections: the top half includes the information needed for section 6056 reporting, while the bottom half includes the information needed for section 6055.

  • Employers that have fewer than 50 full-time employees are exempt from the ACA employer shared responsibility provisions and therefore from the employer reporting requirements.
  • Employers that are large enough to be subject to the employer responsibility provisions and that “self-insure” will complete both parts of the combined form for information reporting.
  • Employers that are subject to employer responsibility but do not “self-insure” will complete only the top section of the combined form (reporting for section 6056). Insurers and other providers of health coverage will report only under section 6055, using a separate form for that purpose.  Insurers do not have to report on enrollees in the Health Insurance Marketplace, since the Marketplace will already be providing information on individuals’ coverage there.

Simplified Option for Employer Reporting

  • For employers that provide a “qualifying offer” to any of their full time employees, the final rules provide a simplified alternative to reporting monthly, employee-specific information on those employees.
  • A qualifying offer is an offer of minimum value coverage that provides employee-only coverage at a cost to the employee of no more than about $1,100 in 2015 (9.5 percent of the Federal Poverty Level), combined with an offer of coverage for the employee’s family. 
  • For employees who receive qualifying offers for all 12 months of the year, employers will need to report only the names, addresses, and taxpayer identification numbers (TINs) of those employees and the fact that they received a full-year qualifying offer.  Employers will also give the employees a copy of that simplified report or a standard statement indicating that the employee received a full-year qualifying offer.
  • For employees who receive a qualifying offer for fewer than all 12 months of the year, employers will be able to simplify reporting to the IRS and to employees for each of those months by simply entering a code indicating that the qualifying offer was made.  
  • To provide for a phase-in of the simplified option, employers certifying that they have made a qualifying offer to at least 95% of their full-time employees (plus an offer to their families) will be able to use an even simpler alternative reporting method for 2015.  Those employers will be able to use the simplified, streamlined reporting method for their entire workforce, including for any employees who do not receive a qualifying offer for the full year.  Those employers will provide employees with standard statements relating to their possible eligibility for premium tax credits.

The final regulations also give employers the option to avoid identifying in the report which of its employees are full-time, and instead to just include in the report those employees who may be full-time.  To take advantage of this option, the employer must certify that it offered affordable, minimum value coverage to at least 98 percent of the employees on whom it is reporting.


For more information, see sections 6055 and 6056 final regulations here.


“Play or Pay” Rules Delayed Until 2016 for Smaller Employers

Originally posted by

The Department of the Treasury and the Internal Revenue Service announced today that the Affordable Care Act’s health coverage mandate for employers with more than 50 employees but fewer than 100 employees working at least 30 hours per week will be delayed another year until 2016.

Employers with over 100 employees working at least 30 hours per week will become subject to the health coverage mandate under the Affordable Care Act (ACA) as previously announced beginning in January 2015. If these employers decide not to offer insurance to their employees, they will make an employer shared responsibility payment beginning in 2015 to help offset the costs to taxpayers for employees getting tax credits through the Health Insurance Marketplace.

“While about 96 percent of employers are not subject to the employer responsibility provision, for those employers that are, we will continue to make the compliance process simpler and easier to navigate,” said Assistant Secretary for Tax Policy Mark J. Mazur in the Treasury press release.  “Today’s final regulations phase in the standards to ensure that larger employers either offer quality, affordable coverage or make an employer responsibility payment starting in 2015 to help offset the cost to taxpayers of coverage or subsidies to their employees.”

Today’s announcement included final regulations for implementing the employer shared responsibility provisions under the ACA, often referred to as the “Play or Pay” rules that will take effect in 2015.

To avoid this payment for the failure to offer affordable coverage meeting the minimum requirements as set forth in the regulations, these large employers will need to offer coverage to 70 percent of their full-time employees in 2015 and 95 percent starting in 2016.  Full-time employment is defined as regularly working at 30 or more hours per week.

The immediate practical impact for employers includes:

  • For employers with fewer than 50 employees:  No impact, as this group was not subject to the employer shared responsibility provisions previously.
  • For employers with 50 to 99 employees:  For employers in this group that do not provide full-time employees with quality affordable health insurance, they will not have to pay any employer responsibility penalties in 2015.  For 2015, this group will still be subject to provide an employee and coverage report as outlined in the ACA rules but will have until 2016 before the employer responsibility payments begin.
  • For employers with 100 or more employees:  Employers in this group are still subject to the mandate starting in 2015.  What follows below are the highlights of the final regulations released today impacting the mandate for these employees to comply in 2015.

Key Elements of the Final Rules Impacting Employers with 100+ Employees in 2015

According to the Treasury Department Fact Sheet, the final regulations include the following changes:

  • Coverage Thresholds:  To avoid a payment for failing to offer health coverage, employers need to offer coverage to 70 percent of their full-time employees in 2015 and 95 percent starting in 2016. The original ACA rules required the 95 percent coverage beginning immediately.
  • Full-time Employee Definitions:
    • Volunteers:  Bona fide volunteers for a government or tax-exempt entity, such as volunteer firefighters and emergency responders, will not be considered full-time employees.
    • Educational employees: Teachers and other educational employees will not be treated as part-time for the year simply because their school is closed or operating on a limited schedule during the summer.
    • Seasonal employees:  Those in positions for which the customary annual employment is six months or less generally will not be considered full-time employees.
    • Student work-study programs: Service performed by students under federal or state-sponsored work-study programs will not be counted in determining whether they are full-time employees.
    • Adjunct faculty: Until further guidance is issued, employers of adjunct faculty are to use a method of crediting hours of service for those employees that is reasonable in the circumstances and consistent with the employer responsibility provisions. However, to accommodate the need for predictability and ease of administration and consistency, the final regulations expressly allow crediting an adjunct faculty member with 2 ¼ hours of service per week for each hour of teaching or classroom time as a reasonable method for this purpose.
    • Full-time Employee Measurements:  The final rules remain unchanged from the proposed rules that allow employers to use an optional look-back measurement method to determine whether employees with varying hours and seasonal employees are full-time.  On a one-time basis, in 2014 preparing for 2015, plans may use a measurement period of six months even with respect to a stability period – the time during which an employee with variable hours must be offered coverage – of up to 12 months.
    • Affordability Safe Harbors:  As with the proposed regulations, the final rules provide safe harbors for employers to determine whether the coverage they offer is affordable to employees, including the W-2 wages, employees’ hourly rates, or the federal poverty level.
    • Other Provisions of the Final Regulations:
      • Employers first subject to shared responsibility provision: Employers can determine whether they had at least 100 full-time or full-time equivalent employees in the previous year by reference to a period of at least six consecutive months, instead of a full year.
      • Non-calendar year plans: Employers with plan years that do not start on January 1 will be able to begin compliance with employer responsibility at the start of their plan years in 2015 rather than on January 1, 2015, and the conditions for this relief are expanded to include more plan sponsors.
      • Dependent coverage: The policy that employers offer coverage to their full-time employees’ dependents will not apply in 2015 to employers that are taking steps to arrange for such coverage to begin in 2016.

Treasury and the IRS stated that additional final regulations will be forthcoming to streamline the ACA reporting requirements.  Final rules will be published in the Federal Register on February 12th.  We will continue to provide updates as more information is known.

For more information:

Treasury Press Release:

Treasury Fact Sheet:

IRS Regulations (227 pages):


Determining if 'play or pay' applies to you


By Deborah L. Grace

Under the Patient Protection and Affordable Care Act, a large employer is subject to penalties if it fails to offer to full-time employees health coverage or if the coverage that it offers is not affordable or does not provide minimum value. These new “shared responsibility” rules are effective as of January 1, 2014, and apply to all employers, including non-profits and governmental entities. This article describes the regulations proposed by the Internal Revenue Service in December 2012 for determining if an employer is a “large employer” for purposes of the shared responsibility rules of Section 4980H of the Internal Revenue Code.

What is a large employer?

For any calendar year, an employer is a “large employer” if it employed an average of at least 50 full-time and full-time equivalent employees on business days during the preceding calendar year. The calculation used to determine large employer status seems deceptively easy. An employer totals the number of full-time employees and FTEs that it employed each month and then divides that total by 12. If the resulting number is 50 or greater, the employer is a large employer.

An exception is provided for an employer who, for 120 days or less during the calendar year, exceeded the 50 full-time employee threshold due to the employment of seasonal employees. This means that hiring activity for 2013 may affect an employer’s status as a large employer for 2014. Note also that this analysis must be made for every calendar year.

All employees of entities that are under common control, as determined under Code Section 414(b) or (c), or that are members of an affiliated service group under Code Section 414(m) or (o), are taken into account in determining if the members of the group constitute a large employer. For example, suppose Company A has 20 full-time employees and Company B has 40 full-time employees. Company A owns 80% of the stock of Company B.

Under Code Section 414(b), Company A’s ownership of at least 80% of the stock of Company B causes Companies A and B to be members of a parent-subsidiary controlled group. Because of the controlled group status, the employees of Company A and B are added together when determining large employer status, resulting in both Company A and Company B being large employers for purposes of the shared responsibility rules.

Who is an employee?

For purposes of these rules, only common-law employees are counted. A sole proprietor, a partner in a partnership, a member of a limited liability company taxed as a partnership, and a 2-percent or more S corporation shareholder is not counted as an employee. Also excluded from this test’s definition of “employee” is any individual who is paid by a staffing agency but provides services to an employer on a substantially full-time basis, including an individual whose services would meet the “leased employee” definition of Code Section 414(n).

How does an employer determine if an employee is full-time?

A “full-time employee” is one who is employed by the employer an average of at least 30 hours of service per week or 130 hours of service per calendar month. Consistent with longstanding Department of Labor rules, hours of service include both hours for which the employee is paid for services performed and also hours for which the employee is paid and no services are performed due to vacation, holiday, illness, disability, layoff, jury duty, military duty or leave of absence. If an employee is paid on an hourly basis, then the employer must use those hours to determine if the employee’s status for the month is full-time.

Use of equivalencies for non-hourly employees. If an employee is not paid on an hourly basis, then the employer may use one of the following methods to determine the hours that the employee worked: (i) count actual hours worked by the employee; (ii) credit 8 hours of service for any day that the employee would be credited with at least 1 hour of service; or (iii) credit 40 hours for each week that the employee would be credited with at least 1 hour of service. An employer cannot use an equivalency method if it would result in understating an employee’s hours. For example, if an employee usually works three 10 hour days a week, the employer cannot use the days-worked equivalency, since that would understate the employee’s hours.

Service outside the U.S. Hours worked outside the U.S. where the employee does not receive the U.S. source income for that service are disregarded. As a result, a U.S. entity that is a member of a multinational controlled group may, for purposes of determining whether it is a large employer, exclude individuals who do not work in the U.S. For example, a U.S. sales office of a multinational entity with no other presence in the U.S. that has 5 full-time employees will not be a large employer for purposes of the shared responsibility rules. Note, the proposed regulations do not change the rules under COBRA that require all employees, including foreign nationals with no U.S. source income, to be counted when determining if the entity has crossed the 20 employee threshold and thereby be required to offer COBRA continuation coverage to qualified beneficiaries.

How does an employer calculate the number of full-time equivalents?

All employees (including seasonal employees) who were not full-time employees for any month are included in calculating the employer’s FTEs for that month. The number of FTEs is determined using a two-step process. First, the employer must calculate the aggregate number of hours of service (but not more than 120 hours of service for any employee) for all employees who were not employed on average at least 30 hours of service per week for that month; second, the total hours for the month for all such non-full-time employees is divided by 120. Fractions are included in determining a monthly FTE count but, as explained in the next paragraph, are disregarded for the determination of whether an employer is a large employer.

How does an employer calculate its large employer status?

Once the employer has the number of full-time employees and FTEs that it employs each month during the prior calendar year, the employer totals these monthly numbers and then divides that total by 12 to determine the average. Fractions are disregarded for this purpose. For example, an employer that has on average 49.9 full-time employees (including FTEs) for the preceding calendar year is allowed to round the total down, and therefore would not be a large employer.

Transition Rule. For 2014, an employer may determine its large employer status by using a period of at least 6 consecutive months in 2013 rather than the full 2013 calendar year. This transition rule will allow an employer who is close to the 50 full-time employee threshold time to determine its status for 2014 and make any needed adjustments to its health plan to comply with Code Section 4980H. For example, an employer could determine its large employer status during the period of March through August 2013 and then decide what changes are needed for its health plan (or implement a plan) between September through December 2013.

What is the seasonal employee exception?

An employer that on average exceeds the 50 full-time employee threshold (taking into account FTEs) for 120 days or fewer during a calendar year due to the employment of seasonal workers during that 120 day period is not a large employer. The 12 day period does not need to be consecutive, and an employer may choose to use four months as a measuring period in place of 120 days. An employee may be able to be treated as a “seasonal worker” for purposes of the large employer definition if the employee worked on a seasonal basis for more than four consecutive months.

Definition of Seasonal Worker. Under Code Section 4980H, employees who perform services on a seasonal basis as defined by the Secretary of Labor, including migrant and seasonal agricultural workers, and retail workers employed exclusively during holiday season qualify as seasonal workers. Under the proposed regulations, the IRS has determined that the term seasonal employee is not limited to agricultural or retail workers, and would include individuals whose employment “is of the kind exclusively performed at certain seasons or periods of the year and which, from its nature, may not be continuous or carried on throughout the year.” Until further guidance is issued, an employer may apply a reasonable good faith interpretation of this definition. For example, it may be reasonable for an accounting firm to determine that the additional staff hired during the months of February through April to prepare individual income tax returns are seasonal workers.

If an employer is not in existence during all of 2013, then it will be a large employer if it reasonable expects to employ an average of at least 50 full-time employees (taking into account FTEs) on business days during 2014.

In a merger of acquisition situation, Code Section 4980H defines the term “employer” to include any predecessor to such employer. The IRS has indicated that in defining a predecessor employer, it may use rules similar to those that apply for determining a successor employer for employment tax purposes. Under those rules, an employer that acquires all of the property used in a trade or business of another employer is a successor employer to the predecessor business.

What are the Suggested Next Steps?

Determine if your business will be a large employer for 2014, based on the company’s anticipated full-time employee count for 2013. If the company and other members of its controlled group regularly employ between 40 and 60 full-time employees and FTEs, establish a 6 month or longer transition period in 2013 to determine large employer status for 2014.

Steps that a large employer will want to take, including determining if the health plan that it offers employees is affordable and provides minimum value and identifying full-time employees who must be offered coverage to avoid a penalty, will be addressed in a subsequent article.


PPACA: Play or Pay? 7 Reasons Why ‘Pay’ is Not the Easy Answer

By Thom Mangan, CEO, United Benefit Advisors

With every day that goes by, the nation’s employers move a step closer to having to make a decision: Do I play or pay?

Employers now have just a little more than one year to prepare themselves and their workforces for the arrival of the core of the Patient Protection and Affordable Care Act (PPACA), which requires employers with 50 or more full-time employees to offer medical coverage or pay a penalty. Although a year might seem like ample time, the decision isn’t an easy one, and it’s fraught with financial, legal and competitive implications.

Some employers assert that the play-or-pay mandate will raise their costs and force them to make workforce cutbacks. As a result, a number are considering eliminating their health care coverage altogether and instead paying the penalty on their full-time employees. While the “pay” option might be worth considering, there are strong reasons why employers should look carefully at all of their options and do their best to calculate the actual outcomes of each.

Here are some of the issues employers should factor into their decision-making process:

1.    Lost Tax Advantages—Employers that eliminate health care coverage or opt not to offer it to full-time employees will be missing out on tax breaks (as will their employees).  Employer contributions for health care coverage are not considered taxable income to the employee (and are deductible by the employer).  Employee premiums that are paid through a Section 125 plan reduce the employee’s taxable income, which reduces both the employer’s and the employee’s FICA tax.

2.    Reporting Burdens Remain—Employers that don’t offer health care coverage will still face federal reporting requirements, in part so the penalty amount can be determined.  In addition, employees who are not offered coverage are likely to go to the exchanges for coverage. These exchanges will require a variety of employee data from employers, particularly for employees who may be eligible for the premium tax credit, which means employers may have to deal with a significant number of inquiries from exchanges (staff time, effort, costs).

3.    Recruitment and Retention Challenges—Employers who opt not to offer health care coverage could be doing long-term damage to their employment brands, making it difficult to attract top talent in the future. Even worse, they could lose current employees to organizations that do provide coverage. And the damage to the brand could be even greater for employers that once offered coverage but elect to eliminate it in favor of paying penalties. Not offering coverage could tarnish the employment brand and disrupt business in another way: Employees who are forced to use exchanges—especially untested or insufficiently staffed exchanges—could feel undervalued or abandoned by their employers.

4.    Counting Employees Can Be Complex—What constitutes a full-time employee?  Answering this question can be tricky; in late August the IRS issued 18 pages of rules that only partly answer the question. Employers that believe they won't face penalties for dropping or not offering coverage because they have fewer than 50 employees may have calculated incorrectly. If that happens, the results could be costly. Be certain you know how to count full-time and full-time equivalent employees and what your obligations are.

5.    The Cost of Coverage Can Be Adjusted—While employers may have to cover more people, they do have options for reducing the costs of this coverage. For example, employers could reduce their lowest-cost coverage to stay just above the 60 percent minimum value threshold; they could reduce workers’ hours below the “full-time employee” level; and they could consider paying targeted penalties (e.g., not providing “affordable coverage” to certain segments of their workforce).

6.   Other Financial Implications—Employees may demand additional compensation from employers that elect to drop coverage to cover the cost of health care they must now purchase with their own, after-tax dollars. Employers who haven't properly budgeted for nondeductible penalties may compound their financial burdens, especially if they don't make long-term plans for penalty increases.

7.    Carriers Will Address Plan Designs—Insurance carriers will become experts on coverage requirements out of sheer necessity, so the myriad of plan design criteria won't likely be a burden on many employers. In addition, carriers will implement a variety of tools to communicate with employees, helping to keep business disruptions to a minimum.

These play-or-pay decisions actually represent just one aspect of PPACA, and there are obligations and implications attached to both sides of the argument. Again, employers would do well to consider all of their options and calculate the outcomes as accurately as possible.