Will the IRS still enforce the individual mandate penalty for 2018 tax returns?

Q: Will the IRS enforce the Affordable Care Act’s penalty for 2018 tax returns?

A: Yes, the individual mandate and its associated penalty are applicable to 2018 tax returns, as the repeal of the mandate penalty didn’t take effect until after the end of 2018. The penalty still applied to people who were uninsured in 2018, and was collected on tax returns filed in 2019.

Enforcement of the Affordable Care Act’s penalty became a little more strict during the 2018 tax filing season (for 2017 returns) and the IRS did not indicate any changes for the 2019 filing season. Starting in 2018, the IRS no longer accepted tax returns that didn’t include an answer to the question about whether the filer had health insurance during the year. This change came after the GOP tax bill (which includes the eventual elimination of the mandate penalty) had been enacted.

The penalty amount ratcheted to its highest level in 2016, and remained at that level for 2017 and 2018, although the maximum allowed penalty under the percentage of income calculation has risen each year as average premiums have increased.

The confusion over penalty enforcement stemmed from headlines in February 2017 indicating that the IRS was going to be more lenient with regards to the question about health insurance coverage on 2016 tax returns, and also from the fact that the GOP tax bill enacted in late 2017 does eventually repeal the individual mandate penalty. But that repeal doesn’t take effect until 2019. The penalty was still assessed on tax returns filed in early 2019 for people who were uninsured in 2018.

“Silent” tax returns were accepted for 2016 returns, but not for 2017 or 2018 returns

In February 2017, the IRS announced that they would accept 2016 returns that didn’t answer the question about whether or not the tax filer had health insurance in 2016. (You’ll find the question on Line 61 on the 1040).

That was same way they handled returns for 2014 and 2015, but a change had previously been scheduled for 2016 returns. The IRS had intended to reject returns that didn’t state whether or not the tax filer had health insurance in 2016 (ie, a “silent” return). But they postponed that change, and their statement in early 2017 noted that the change in course was a result of President Donald Trump’s executive order directing federal agencies to “[minimize] the economic burden” of the ACA.

So tax returns for 2016 were processed the same way 2014 and 2015 returns were processed. It’s worth noting that even though the IRS accepted silent returns for 2014 and 2015, most people still answered the question about health insurance. The majority did have coverage, but 7.9 million tax filers reported $1.6 billion in penalties for being uninsured in 2014, and 6.5 million tax filers reported $3 billion in penalties for being uninsured in 2015.

And for 2017 tax returns, the IRS did not accept “silent” returns. Returns were rejected if they didn’t include an answer to the question about whether the filer had health insurance in 2017. The IRS did not indicate any change for 2018, and its  web site clarified that the penalty did apply to people who were uninsured in 2018. So tax filers submitting their returns in early 2019 needed to answer the question about whether they had health insurance in 2018.

To clarify, it is always illegal to lie to the IRS. So you can’t say you had coverage when you actually didn’t. (Employers, exchanges, and health insurance companies also report to the IRS; this isn’t just the honor system.) And although the IRS can’t use their normal enforcement avenues for collecting the penalty, they can deduct it from current or future tax refunds.

Individual mandate repeal took effect in 2019

In December 2017, Republican lawmakers passed H.R.1, the Tax Cuts and Jobs Act. The far-reaching tax bill left most of the ACA’s taxes intact, but it did include repeal of the individual mandate penalty. However, the penalty repeal only applies to months after December 31, 2018. There was still a penalty for being uninsured in 2018, and it was assessed on tax returns filed in early 2019. But there will not be a penalty for people who became uninsured starting in January 2019.

Elimination of the individual mandate penalty destabilized the market and resulted in higher premiums for 2019

The week after the IRS quietly changed its stance on silent returns for 2016 tax returns, HHS introduced proposed regulations aimed at stabilizing the individual and small group health insurance markets (both on and off-exchange), and the market stabilization rule was finalized in April 2017. While the IRS decision to accept silent returns for 2016 was in line with Trump’s executive order, it was the opposite of a market stabilization measure, so it was somewhat ironic that the Trump Administration was simultaneously working on actions purported to stabilize the individual market.

The ACA’s main insurance reforms (guaranteed-issue coverage, premium subsidies, and the individual mandate) are often described as a three-legged stool. Insurers can no longer reject people based on medical history, and that pushes premiums upwards. But the individual mandate ensures that healthy people purchase coverage, helping to keep premiums in check. And premium subsidies offset a significant portion of the cost for low-income and middle-class enrollees, making coverage affordable in situations where it would otherwise be unaffordable.

Remove or weaken any leg, and the stool (in this case, the insurance market) becomes unbalanced. Although the individual mandate penalty elimination was delayed until the end of 2018, there was widespread confusion in 2017 and 2018 about whether the mandate was still in effect. The uninsured rate rose in 2017, and the Congressional Budget Office projects that the number of uninsured Americans in 2027 will be higher by 13 million people than it would have been if the individual mandate penalty had remained in place.

And although the nationwide average premium increase in the individual market ended up being less than 3 percent for 2019, there would have been an average decrease in premiums if the individual mandate penalty hadn’t been eliminated.

Louise Norris is an individual health insurance broker who has been writing about health insurance and health reform since 2006. She has written dozens of opinions and educational pieces about the Affordable Care Act for healthinsurance.org. Her state health exchange updates are regularly cited by media who cover health reform and by other health insurance experts.

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