‘Obamacare’ individual mandate has no teeth

Real Estate Tax Talk

If, like most real estate professionals, you’re self-employed, you have to obtain your own health insurance unless you can obtain coverage through a spouse. Lots of self-employed people have no health coverage because they can’t afford it.

Starting in 2014, these people will run up against the most controversial portion of the Patient Protection and Affordable Care Act ("Obamacare") — the individual health insurance mandate. This is the requirement that most legal residents of the United States obtain at least minimal health insurance coverage by 2014.

The word "mandate" sounds pretty serious. But what will actually happen if you don’t obtain health insurance by 2014? Surprisingly little.

The health care law says that individuals who can afford health insurance coverage and are not otherwise exempt must purchase minimum essential health coverage or pay a penalty to the IRS with their tax returns. The assessment of this penalty is the only consequence of not obeying the health insurance "mandate."

How much is the penalty?

The exact amount of the tax penalty is based on household income above the level at which an uninsured individual is required to file a tax return — currently $9,500 per person and $19,000 per couple. This penalty is scheduled to be phased in over the next several years as follows:

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  • for 2014, the penalty is the greater of $95 or 1 percent of income
  • for 2015, the greater of $325 or 2 percent of income
  • for 2016, the greater of $695 or 2.5 percent of income, and
  • the $695 amount is indexed for inflation after 2016.

The penalty for children is half the amount for adults, and an overall cap will apply to family payments. This cap will be three times the amount of the per-person penalty, regardless of how many people are in the family. Thus, the cap is $285 in 2014 but rises to $2,085 in 2016, after which point it is indexed to inflation. Moreover, the total penalty can never be more than the cost of a minimal "bronze" heath insurance plan that can be purchased through a state health insurance exchange. The CBO estimates that these policies will cost $4,500-$5,000 per person and $12,000-$12,500 per family in 2016, with the costs rising thereafter.

All in all, for most people the penalty will be less than the cost of obtaining health insurance. Many people may choose to wait until they get sick to purchase health insurance. This is something they will be able to do because "Obamacare" does not allow health insurers to refuse to insure people with pre-existing conditions.

In addition, the penalty applies only to taxpayers who can afford insurance but do not purchase it. The Congressional Budget Offices says that of the 30 million non-elderly Americans it estimates will not have health insurance in 2016, only about 6 million will be subject to the tax. The remainder will be exempt because their income is too low or they qualify for another exemption.

How will the IRS collect?

Taxpayers subject to the penalty are supposed to report the amount due on their tax returns and pay it along with their income taxes. What happens if they don’t? Not nearly as much as when they don’t pay their regular taxes.

The law greatly limits how the IRS can collect the penalty. It cannot use liens or levies to collect it, and taxpayers are not subject to criminal prosecution or any additional penalty if they don’t pay. Moreover, the IRS says that its revenue agents will not be involved in enforcing the penalty — that is, they won’t ask you about it during an audit. All enforcement will be done through automatic assessments and computer-generated correspondence.

The only power the IRS will have to collect the penalty is to withhold it from an uninsured taxpayer’s tax refund. Currently, most taxpayers get refunds because they have too much tax withheld during the year. This year 77 percent of taxpayers received an average refund of $2,707.

However, self-employed taxpayers have no tax withheld from their pay. Instead, they pay estimated taxes to the IRS four times a year. Self-employed people can easily avoid qualifying for a tax refund by making sure they don’t pay too much in estimated tax. If you have no refund, the IRS will have no way of collecting the penalty.

As a result of all this, some experts predict that the IRS will be unable to effectively enforce the penalty tax. Only time will tell.

Stephen Fishman is a tax expert, attorney and author who has published 18 books, including "Working for Yourself: Law & Taxes for Contractors, Freelancers and Consultants," "Deduct It," "Working as an Independent Contractor," and "Working with Independent Contractors." He welcomes your questions for this weekly column.

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