On July 2, 2013, the U.S. Treasury Department announced, by blog entry, that it would delay collecting taxes due to Obamacares employer-mandate by one year. This was followed by a more formal announcement on June 9: Notice 2013-45. Although greeted as a relief by many, the move actually raises two significant problems for businesses and taxpayers during Obamacares roll-out.
First, the delay implies that Congressional Budget Office (CBO) scores of government health spending will become even less realistic than they currently are. Second, employers who take advantage of the delay will be on very shaky legal grounds.
House Republican leadership quickly passed two short bills to maintain momentum from Treasurys announcement. H.R. 2667 would amend PPACA to insert the one-year delay in the legislation; and H.R. 2668 would extend the delay to the individual mandate. President Obama responded with a pre-emptive veto threat.
The CBO is supposed to score bills proposed in Congress, not administrative decisions that may not even be legal. However, in its response to H.R. 2667, the CBO asserts that the bill would have no fiscal effect because it would merely codify that which the Treasury has already dictated. According to the CBO, the new law would not affect direct spending or revenues. Therefore, pay-as-you-go procedures do not apply. The CBO seems to have deleted at least $10 billion of tax revenue from its PPACA estimates, even though its aware of the presidential threat to veto legislation supporting the Administrations move.
What does this mean for future CBO scores of health spending? It will be even harder to impose the employer mandate after a year of relief than it is now. With mid-term elections in November 2014, it is quite unlikely that the Administration will put its boot back on employers necks in July 2014. So, the employer mandate starts to look a lot like the old Alternative Minimum Tax (AMT) or the current Sustainable Growth Rate (SGR) that the government uses to fix physicians Medicare feeswith one important difference.
The doc fix that the federal government executes at least once a year to prevent physicians fees from dropping by over one quarteras determined by an SGR formula legislated in 1997results from an amendment passed by Congress. The employer-mandate fix will not be passed by Congress but relies on the whim of the Administration. Nevertheless, the CBO intends to score Treasurys blog entries and notices as if they were passed by Congress and signed into law.
To put this in fiscal perspective, CBOs February 2013 Budget Outlook pretends that physicians fees will drop by one quarter in on January 1, 2014. Congress has never allowed this to happen in ten years. CBO estimates that an alternative (i.e. realistic) estimate of Medicare spending on physicians is $14 billion greater in 2014, and $138 billion through 2023, than the estimate in the official budget outlook.
Revenue from the employer mandate is very close to these figures. CBOs estimate is $140 billion for 2014 through 2023. The first years take was estimated at $10 billion, which comprises one fifth of the $48 billion required to fund PPACAs coverage expansion in 2014. So, not only are CBO estimates now twice as wrong as they used to be, but our ability to estimate how wrong they are is now limited not only by which fixes we think Congress will debate and pass, but also by which parts of the law will be amended or nullified unilaterally by the Administration.
Second, employers need to be aware that they are offered only transition relief for next year. IRS Notice 2013-45 states that employers are encouraged to voluntarily comply with the information reporting provisions for 2014. Although political analysis suggests that the relief will roll over to future years, the Notice waives only reporting requirements. Treasury cannot waive the actual tax.
As a result, there may be little relief even from red tape. Will auditors grant relief from reporting a tax liability to businesses which owe the tax in 2014? This should be a topic of intense discussion within the accounting profession. If the profession sticks to the letter of the law, auditors will demand that businesses prepare good-faith calculations of taxes due to the employer mandate, and not to write them off until legislation really fixes the problem. This should concern not only small business, but large businesses with low-wage hourly workers or franchisees.
The delay of the employer mandate has caused more headache than relief.
|John R. Graham is a former Senior Fellow at the Independent Institute.|