United States: Watch Out For IRS Letters: IRS Begins Enforcing Employer Mandate

The IRS has recently begun enforcing the "employer shared responsibility" (ESR) provisions of the Affordable Care Act (the "Act"), which require employers having 50 or more full-time employees (or full-time equivalent employees) to offer health insurance coverage to eligible employees and their dependents. Failure to offer qualifying coverage as required by the Act results in the employer being subject to a penalty, known as the "employer shared responsibility payment" (ESRP), which can be substantial. Notices of ESRPs for 2015 coverage – the first year for which the ESR requirements were effective – are being received by some employers now. The notices are not actual assessments, but the penalty will be assessed if appropriate action is not taken promptly.

The notice – known as Letter 226J – is being issued when the reports filed under the Act (Forms 1094-C and 1095-C), and the employees' tax returns, indicate that, for at least one month in 2015, (i) at least one of your full-time employees was enrolled in a qualified health plan (through the Marketplace), (ii) he or she received a premium tax credit (PTC) with respect to that coverage, and (iii) you did not qualify for one of the affordability safe harbors available under the Act. Whether or not you have offered the required level of coverage to a sufficient percentage of your employees (and their dependents) determines which of the two penalties would apply – the "(a)" penalty, which for 2015 was $173.33 per month multiplied by the number of full-time employees in excess of 80, and which applies if you fail to offer "minimum essential coverage" to at least a prescribed percentage (70 percent for 2015; 95 percent currently) of your eligible full-time employees and their dependents and at least one full-time employee was allowed the PTC, or the "(b)" penalty, which for 2015 was $260 per month for each full-time employee who received the PTC for that month, and which applies if you do offer the required minimum essential coverage to the requisite number of employees, but at least one full-time employee receives the PTC because either he or she was not offered coverage, or the coverage otherwise was not ACA-compliant. Since the penalties can be triggered by a single employee having Marketplace coverage and receiving the PTC for even a single month, the "(a)" penalty, which applies with respect to all full-time employees (over the minimum allowance, which is now 50), can become extremely high very quickly. A company with only 200 full-time employees could be liable for a 2015 "(a)" penalty in the amount of $250,000, even after the 80-employee allowance.

Some notices have been issued based on incorrectly reported information, so it is important that you check the reports that were filed with the IRS to see whether the information you provided was correct. There have also been notices received apparently because an item was left blank. In Part III of the Form 1094-C, column (a) asks whether minimum essential coverage was offered to the requisite number of employees (70 percent for 2015), and requires that you check "yes" or "no" boxes for each month, or, alternatively, for "all 12 months." Leaving the boxes blank, however, is processed as a "no," and could trigger an ESRP notice if the other conditions are met.

The notice gives you 30 days to respond, using a furnished "ESRP Response" (Form 14764), and provides detailed instructions as to what to do if you agree and if you disagree with the IRS' determination that you owe an ESRP. If you do nothing before the deadline, then the IRS will proceed with assessing the penalty, and normal IRS penalty procedures will apply.

If you submit a timely ESRP Response disagreeing with the IRS' determination (in whole or in part), the IRS will consider your information and will respond with another form letter (Letter 227) either affirming or changing its original ESRP determination. The Letter 227 will also give you a date by which, if you still disagree with the revised determination, you may make a written request for a conference with the IRS Office of Appeals. If you do not make a request by that date, then the revised (or affirmed) ESRP will be assessed and penalty procedures will apply. If you do make a request, then a conference will be scheduled.

Given the potential size of the ESRPs, receipt of a Letter 226J should be taken seriously, especially if you believe it to be in error. Incurring a penalty for something that you have done is never good, but at least there is a reason. But there is no reason for incurring a penalty for something that you didn't do – especially if it is the result of a mistake that can be remedied. Even with special rules that applied for 2015, some of which had the effect of reducing the calculated payments, the ESRP can be a significant amount of money.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions