Wednesday, November 27, 2013
Ajay Gupta (Tax Analysts), ACA Penalty: Toothless? Hardly! Even Corporate Raiders Get Better Treatment, 141 Tax Notes 877 (Nov. 25, 2013):
The amount of the penalty under the Affordable Care Act (ACA), for almost all taxpayers subject to it, even in 2014, will significantly exceed $95. And, the plain language of section 5000A, coupled with the law governing assessable penalties, suggests that the ACA penalty, far from being toothless, may well turn out to be the tooth fairy’s gift to the Commissioner, left under his pillow by Congress. With nothing more than a cursory notice and demand, and without any pre- or post-assessment hearings, the Commissioner can move straight to collection by applying overpayments of prior, current, and future tax years. He may also find it easier to lift the statute of limitations for the ACA penalty than for an income tax. Certainly, any taxpayer challenge to the imposition of the ACA penalty will require payment in full and a suit for refund. While regulations may, in time, supply some procedural safeguards, a simple legislative fix will yield quicker and better results. Similar statutory language has been deployed in the past to guarantee procedural protections to corporate insiders and raiders subject to excise taxes on excessive payments. Surely, ordinary taxpayers confronting the ACA individual mandate deserve as much.
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