A person using the free OnlineAdviser service sent an email today asking for more information on her employer’s “insurance stipend reimbursement”.
First, this term “insurance stipend reimbursement” is not commonly used in the industry. The term is not used by the Internal Revenue Service (IRS) and is generally avoided by employee benefits professionals. The Affordable Care Act (ACA) includes steep penalties (known as “4980D excise tax penalties“) against employers who reimburse the cost of individual health insurance. The intent of this penalty is to prevent employers from pushing people toward subsidized individual insurance plans (referred to here as “Obamacare” for simplicity) that would drive up the government’s cost. In this context it would be silly of me or any other professional to introduce a term that could raise IRS concern and possibly trigger an employer penalty. IRS officials have repeatedly stated verbally and in writing that the Service is aware that one insurance sales firm – the same firm that has published materials using this term – is misleading insurance agents and small business employers about the risk of ACA. Unfortunately these small firms typically lack the resources to have their own independent employee benefits advisers of the insurance sales representatives. Non-specialized small business tax advisers like CPAs and Enrolled Agents typically avoid offering a professional opinion on employee benefit plan issues like this. The small business employers are not paying their advisers for employee benefits tax advice so the misinformation is classified as a market conduct issue within the insurance sales process. I have no knowledge of any IRS enforcement action taken against that firm or any of the unfortunate employers who might have fallen prey to the false sales rhetoric poised as tax advice.
Second, let’s be clear that the tax penalty risk is entirely between the IRS and the employer. The employee bears none of the tax penalty risk. The employee’s only risk – assuming the employee is enrolled in Obamacare policy – is limited to possible retraction of the amount of the insurance premium subsidy in the event that the IRS later determines that the employee was not eligible for the Obamacare financial assistance. This could happen for a number of reasons. The reason I would be most concerned about is that the IRS might determine that the employer’s “insurance stipend reimbursement” was actually an employer sponsored health plan under their specific definition. In this case, all of the employees eligible for the employer plan could be deemed ineligible for individual Obamacare insurance coverage.
Beyond these two basic points we would next need to look at the plan documentation (assuming that it exists and is available) and the specific payroll practices in use in order to offer a professional opinion on the health plan in question.
I do offer litigation support services to the attorneys of employers and employees who may be misled by improper insurance sales techniques. Hopefully this user’s question doesn’t lead down that path.