us-irs-revenue-rulings-irb-2011-36-pdf•Internal Revenue Bulletin 2011-36 (PDF rendition): IRS Revenue Rulings
Internal Revenue Bulletin 2011-36 (PDF rendition): IRS Revenue Rulings
us-irs-revenue-rulings-irb-2011-36-pdfInternal Revenue Bulletin 2011-36 (PDF rendition): IRS Revenue RulingsGuidance
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Bulletin No. 201 1-36 September 6, 201 1 HIGHLIGHTS OF THIS ISSUE These synopses are intended only as aids to the reader in identifying the subject matter covered. They may not be relied upon as authoritative interpretations. INCOME TAX Rev. Rul. 2011–19, page 199. Remittance basis charge.TheRemittanceBasisCharge (RBC) is a tax imposed by the government of the United King- dom on long-term non-domiciliaries who elect to be taxed under the remittance basis of taxation. This ruling holds that the RBC, in combination with the remittance basis of taxation, is an in- come tax for which a credit is allowable under section 901 of the Code. Rev. Rul. 2011–20, page 202. Federal rates; adjusted federal rates; adjusted federal long-termrateandthelong-termexemptrate.For pur- poses of sections 382, 642, 1274, 1288, and other sections of the Code, tables set forth the rates for September 2011. REG–131491–10, page 208. Proposed regulations under section 36B of the Code provide rules relating to the premium tax credit, enacted by section 1401 of the Affordable Care Act. A public hearing is scheduled for November 17, 2011. Notice 2011–68, page 205. The Pension Protection Act amended sections 72, 1035, and 7702B of the Code. This notice provides interim guidance on these amendments and requests comments on issues to be addressed in future guidance concerning the taxation of annuity and life insurance contracts with a long-term care insurance feature. EMPLOYMENT TAX Announcement 2011–48, page 227. This announcement provides notice of a public hearing on proposed regulations (REG–151687–10, 2011–23 I.R.B. 867) that provide guidance relating to withholding by government entities on payments to persons providing property or ser- vices. A public hearing is scheduled for September 12, 2011. ADMINISTRATIVE Announcement 2011–48, page 227. This announcement provides notice of a public hearing on proposed regulations (REG–151687–10, 2011–23 I.R.B. 867) that provide guidance relating to withholding by government entities on payments to persons providing property or ser- vices. A public hearing is scheduled for September 12, 2011. Announcement 2011–49, page 228. This document contains correcting amendments to final regula- tions (T.D. 9527, 2011–27 I.R.B. 1) that affect individuals who practice before the IRS and providers of continuing education programs. The regulations modify the rules governing practice before the IRS and the standards with respect to tax returns. Finding Lists begin on page ii. The IRS Mission Provide Americ a’s taxpayers top-quality service by helping them understa nd and meet their tax responsibilities and en- force the law wi th integrity and fairness to all. Introduction The Internal Revenue Bulletin is the authoritative instrument of the Commissioner of Internal Revenue for announcing official rulings and procedures of the Internal Revenue Service and for publishing Treasury Decisions, Executive Orders, Tax Conven- tions, legislation, court decisions, and other items of general interest. It is published weekly and may be obtained from the Superintendent of Documents on a subscription basis. Bulletin contents are compiled semiannually into Cumulative Bulletins, which are sold on a single-copy basis. It is the policy of the Service to publish in the Bulletin all sub- stantive rulings necessary to promote a uniform application of the tax laws, including all rulings that supersede, revoke, mod- ify, or amend any of those previously published in the Bulletin. All published rulings apply retroactively unless otherwise indi- cated. Procedures relating solely to matters of internal man- agement are not published; however, statements of internal practices and procedures that affect the rights and duties of taxpayers are published. Revenue rulings represent the conclusions of the Service on the application of the law to the pivotal facts stated in the revenue ruling. In those based on positions taken in rulings to taxpayers or technical advice to Service field offices, identifying details and information of a confidential nature are deleted to prevent unwarranted invasions of privacy and to comply with statutory requirements. Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department Regulations, but they may be used as precedents. Unpublished rulings will not be relied on, used, or cited as precedents by Service personnel in the disposition of other cases. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered, and Service personnel and others concerned are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same. The Bulletin is divided into four parts as follows: Part I.—19 86 Code. This part i ncludes rulings and decisions based on provisions of the Intern al Revenue Code of 1986. Part II.—Treaties and Tax Legislation. This part is divided into two subparts as follows: Subpart A, Tax Conventions and Other Related Items, and Subpart B, Leg- islation and Related Committee Reports. Part III.—Administrative, Procedural, and Miscellaneous. To the extent practicable, pertinent cross references to these subjects are contained in the other Parts and Subparts. Also included in this part are Bank Secrecy Act Administrative Rul- ings. Bank Secrecy Act Administrative Rulings are issued by the Department of the Treasury’s Office of the Assistant Secre- tary (Enforcement). Part IV .—Items of General Interest. This par t includes notices of proposed rulemakings, disbar- ment an d suspension lists, and announcements. The last Bulletin for each month includes a cumulative index for the matters published during the preceding months. These monthly indexes are cumulated on a semiannual basis, and are published in the last Bulletin of each semiannual period. The c ontents of this publication are not copyrighted and may be reprinted freely. A citation of the Internal Revenue Bulletin as the source would be appropriate. For sale by the Superintendent of Documents, U.S.Government Printing Office, Washington, DC 20402. September 6, 20112011–36 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 42.—L ow-Income Housing Credi t The adjusted a pplicable federal short-term, mid- term, and long -term rates are set forth for the month of September 2 011. See Rev. Rul. 2011-20, page 202. Section 72.—Annuities; Certain Proceeds of Endowment and Life Insurance Contract The Pension Protection Act amended sections 72, 1035, and 7702B of the Code. Notice 2011-68 pro- vides interim guidance on these amendments and re- quests comments on issues to be addressed in future guidance concerning the taxation of annuity and life insurance contracts with a long-term care insurance feature. See Notice 2011-68, page 205. Section 280G.—Golden Parachute Payments Federal short-term, mid-term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 382.—Limitation on Net Operating Loss Carryforwards and Certain Built-In Losses Following Ownership Change The adjusted applicable federal long-term rate is set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 412.—Minimum Funding Standards The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 467.—Certain Payments for the Use of Property or Services The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 468.— Special Rules for Mining and Solid Waste Reclamation and Closing Costs The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 482.—Allocation of Income and Deductions Among Taxpayers Federal short-term, mid-term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 483.—Interest on Certain Deferred Payments The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 642.—Special Rules for Credits and Deductions Federal short-term, mid-term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 807.—Rules for Certain Reserves The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 846.—Discounted Unpaid Losses Defined The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 901.— Taxes of Foreign Count ries and of Possessions of the United States 26 CFR 1.901–2: Income, war profits, or excess prof- its tax paid or accrued. Remittance basis charge.The Remit- tance Basis Charge (RBC) is a tax imposed by the government of the United Kingdom on long-term non-domiciliaries who elect to be taxed under the remittance basis of taxation. This ruling holds that the RBC, in combination with the remittance basis of taxation, is an income tax for which a credit is allowable under section 901 of the Code. Rev. Rul. 2011–19 ISSUE Whether a credit is allowable under sec- tion 901 of the Internal Revenue Code for the Remittance Basis Charge (RBC) of £30,000. FACTS Effective as of April 6, 2008, the United Kingdom enacted legislation under Part 14 of the Income Tax Act 2007, as amended by the Finance Acts 2008, 2009, and 2010, that generally allows individuals who are U.K. residents but who are not domiciled in the United Kingdom (i.e.,donotin- tend to live in the United Kingdom perma- nently) (non-domiciliaries) to elect each year to be taxed on an alternative basis. The default basis of taxation for non-domi- ciliaries — as it is for any U.K. resident individual — is to pay U.K. income and capital gains taxes on their worldwide in- come and capital gains (gains), which is known as the arising basis of taxation. The alternative method of taxation is the remit- tance basis, under which non-domiciliaries with non-U.K.-source income or gains can elect to be taxed on their non-U.K.-source income and gains only when they are re- mitted to the United Kingdom. Remittance basis taxpayers also are subject to tax on their U.K.-source income and gains, which are taxed in the year in which they arose, 2011–36 I.R.B.199September 6, 2011 under separate statutory provisions appli- cable to all U.K. resident individuals. Both the arising basis and the remit- tance basis of taxation are computed on the basis of realized gross receipts and per- mit recovery of significant costs and ex- penses. Losses and deductions allocated to one type of taxable U.K.-source or non- U.K.-source income or gains may be avail- able to offset other categories of taxable in- come and gains, depending on the type of income or gains involved and the nature of the losses and deductions. A special rule applies to U.K. residents who are non-domiciliaries age 18 years or older and who were U.K. residents in at least seven of the prior nine taxable years (long-term non-domiciliaries). Under this rule, a long-term non-domiciliary who elects the remittance basis of taxation is re- quired to pay the RBC of £30,000 in addi- tion to the remittance basis tax. The RBC constitutes tax imposed on the arising basis onpart(orall)ofalong-termnon-domicil- iary’s unremitted non-U.K.-source income or gains that arose or accrued in that year and were nominated (i.e., identified) by the long-term non-domiciliary, where the nominated income or gains taxed on the arising basis would give rise to an increase in tax of £30,000, after taking into account any credit due for foreign tax paid. A min- imum of £1 of non-U.K.-source income or gains must be nominated in order for a long-term non-domiciliary’s election to be taxedontheremittancebasistobevalid. A long-term non-domiciliary’s re- quired nomination schedule must show specifics concerningthe nominated in- come or gains and the expenses or capital losses that are deducted in arriving at the taxable income or gains giving rise to the £30,000 tax charge. U.K.-source, remitted non-U.K.-source, and nominated income or gains, although separately computed, are combined into a single base and taxed at the graduated rates of U.K. income or capital gains tax that are generally applicable in the relevant tax year, with the rate that applies to nominated income or gains being determined after the tax is calculated on U.K.-source income and gains and on remitted non-U.K.-source income and gains. The U.K. statute provides ordering rules that treat nominated amounts re- mitted to the United Kingdom as paid first out of income or gains that have not previously been subject to U.K. tax. If and when nominated income or gains are treated as remitted to the United Kingdom, they will be regarded as previously taxed on the arising basis and the long-term non-domiciliary will not again be subject to U.K. tax with respect to such amounts. If the long-term non-domiciliary real- izes or accrues, but does not nominate, sufficient realized non-U.K.-source in- comeorgainstoresultinataxchargeof £30,000, the long-term non-domiciliary will be taxed as if sufficient additional realized income or gains had been nomi- nated to result in a tax charge of £30,000. The U.K. statute also provides a rule for when a long-term non-domiciliary elects the remittance basis but does not have suf- ficient realized income or gains to result in a tax charge of £30,000. In that case, the long-term non-domiciliary is deemed to have sufficient realized income or gains and to have nominated an amount neces- sary to make the tax charge equal £30,000. Income or gains, whether realized but not nominated, or imputed, which were deemed to have been nominated in order to generate a tax charge of £30,000 are not treated as previously-taxed income and therefore will be subject to tax if and when such income or gains are actually remitted. LAW AND ANALYSIS Section 901 generally allows a credit for the amount of any income, war profits and excess profits tax (collectively, an “in- come tax”) paid or accrued during the tax- able year to any foreign country or to any possession of the United States. A foreign levy is an income tax if and only if (i) it is a tax and (ii) the predominant character of that tax is that of an income tax in the U.S. sense. §1.901–2(a)(1). A. Single Levy or Separate Levies Each levy must be analyzed separately to determine if it is an income tax under section 901. §1.901–2(d)(1). For purposes of section 901, whether a single levy or separate levies are imposed by a foreign country depends on U.S. principles and not on whether foreign law imposes the levy or levies in a single or separate statutes. Where the base of a levy is different in kind, and not merely in degree, for differ- ent classes of persons subject to the levy, the levy is considered for purposes of sec- tion 901 to impose separate levies for such classes of persons. For example, regard- less of whether they are contained in a sin- gle or separate foreignstatutes, a foreign levy identical to the tax imposed under sec- tion 871(b) on a U.S. nonresident alien in- dividual’s income that is effectively con- nected with the conduct of a U.S. trade or business is a separate levy from a foreign levy identical to the tax imposed by sec- tion 1 on the income of a U.S. citizen or resident, as the tax on nonresidents has a more limited scope and therefore is differ- ent in kind from the tax on the worldwide income of U.S. citizens and residents. Where foreign law imposes a levy that is the sum of two or more separately com- puted amounts, and each such amount is computed by reference to a separate base, separate levies are considered, for purposes of section 901, to be imposed. Amounts are not separately computed if they are computed separately merely for purposes of a preliminary computation and are then combined as a single base. §1.901–2(d)(1). For example, where ex- cess deductible expenses allocated to one type of income are applied to reduce other types of income, a single levy exists, since despite a separate preliminary computa- tion the bases are combined before com- puting the tax due. See §1.901–2(d)(3), Examples (3), (4), and (5). 1. The Remittance Basis and the Arising Basis of Taxation Are Separate Levies Under both the arising basis and the re- mittance basis of taxation, a non-domicil- iary is subject to tax on U.K.-source and non-U.K.-source income and gains. How- ever, under the arising basis, a non-domi- ciliary is subject to tax on worldwide in- come and gains that arise or accrue in a particular taxable year; while under the re- mittance basis, a non-domiciliary is sub- ject to tax only on U.K.-source income and gains and on non-U.K.-source income or gains that are remitted in a particular tax- able year, whether the non-U.K.-source in- come or gains arise or accrue in the year re- mitted or in an earlier year. Thus, the bases of these levies are different in kind, and not merely in degree; therefore, the aris- ing basis and remittance basis of taxation are considered for purposes of section 901 to impose separate levies. September 6, 20112002011–36 I.R.B. 2. The RBC, in Combination with the Remittance Basis of Taxation, is a Single Levy that is a Separate Levy All non-domiciliaries who elect the remittance basis of taxation are subject to tax on their U.K.-source and remitted non-U.K.-source income and gains. In ad- dition, long-term non-domiciliaries must pay the RBC on nominated but unremit- ted non-U.K.-source income and gains (and, if the amount nominated generates a tax charge of less than £30,000, on in- come or gains realized but not nominated and on imputed income such that the tax charge equals £30,000). Losses and deductions allocated to U.K.-source in- come or gains, remitted non-U.K.-source income or gains, or nominated but un- remitted non-U.K.-source income or gains may offset income or gains in another category in determining the amount of the long-term non-domiciliary’s taxable income. Therefore, under §1.901–2(d)(1), despite a separate preliminary compu- tation, the long-term non-domiciliary’s U.K.-source income or gains, remitted non-U.K.-source income or gains, and un- remitted non-U.K.-source income or gains giving rise to the RBC are combined in de- termining the long-term non-domiciliary’s taxable income; therefore, the tax imposed on the sum of the long-term non-domicil- iary’s three separately computed amounts of income constitute a single levy (the Long-Term Non-Domiciliary (LTND) Levy). B. The LTND Levy Is a Tax in the U.S. Sense A foreign levy is an income tax if and only if it is a tax and the predominant character of that tax is that of an income tax in the U.S. sense. §1.901–2(a)(1). A foreign levy is a tax if it requires a compulsory payment pursuant to the au- thority of a foreign country to levy taxes. §1.901–2(a)(2)(i). The LTND Levy is a tax because it is required to be paid pur- suant to the authority of the government of the United Kingdom to levy taxes. C. The Predominant Character of the LTND Levy Is that of an Income Tax in the U.S. Sense The predominant character of a foreign taxisthatofanincometaxintheU.S. sense if the tax is likely to reach net gain in the normal circumstances in which it applies, and liability for the tax is not de- pendent, by its terms or otherwise, on the availability of a credit for the tax against income tax liability to another country. §1.901–2(a)(3). Liability for the LTND Levy is not dependent on the availability of a credit for the LTND Levy against income tax liability to another country. Thus, whether the LTND Levy has the predominant character of an income tax depends on whether it is likely to reach net gain in the normal circumstances in which it applies. A foreign tax is likely to reach net gain in the normal circum- stances in which it applies if and only if the tax, judged on the basis of its predom- inant character, satisfies each of the re- alization, gross receipts, and net income requirements set forth in §1.901–2(b)(2), (b)(3), and (b)(4), respectively. 1. Realization A foreign tax satisfies the realization requirement if, judged on the basis of its predominant character, it is imposed upon or subsequent to the occurrence of events that would result in the realization of in- come under the income tax provisions of the Code. §1.901–2(b)(2)(i)(A). A foreign tax that, judged on the basis of its predom- inant character, is imposed upon the oc- currence of realization or pre-realization events described in §1.901–2(b)(2)(i) sat- isfies the realization requirement even if it is also imposed in some situations upon the occurrence of events not described in that paragraph. For example, a foreign tax that, judged on the basis of its predomi- nant character, is imposed upon the occur- rence of realization events satisfies the re- alization requirement even though the base of that tax also includes imputed rental in- come from a personal residence used by the owner. §1.901–2(b)(2)(i). The U.K.-source and remitted non-U.K.-source income and gains of a long-term non-domiciliary electing the remittance basis of taxation generally are computed on the basis of amounts that satisfy the realization requirement. In addition, the income or gains nominated for purposes of the RBC must be part (or all) of the non-U.K.-source income and gains arising or accruing in that taxable year. Income tax is charged on nominated income, and capital gains tax is charged on nominated gains, as if the arising basis applied for the relevant taxable year. In other words, the nominated income and gains are subject to tax, even though they have not been remitted in the taxable year. Thus, the RBC is imposed on nominated income or nominated gains that have been realized or accrued in the taxable year. If the long-term non-domiciliary real- izes or accrues, but fails to nominate, suf- ficient income or gains, with the result that the tax charge on nominated income would be less than £30,000, an amount of income or gains is deemed to be nominated so as to make the tax charge equal £30,000. Thus, income or gains that have been realized or accrued but not nominated will be subject to the RBC. If a long-term non-domicil- iary elects the remittance basis but does not have sufficient realized or accrued in- come or gains to make the tax charge equal £30,000, the long-term non-domiciliary is deemed to have sufficient realized or ac- crued income or gains and to have nom- inated such imputed income or gains to make the tax charge equal £30,000. Section 1.901–2(b)(2)(i) states that, as provided in §1.901–2(a)(1), a tax either is or is not an income tax, in its entirety, for all persons subject to the tax; therefore, a foreign tax on a base that includes im- puted rental income will satisfy the real- ization requirement even though some per- sons subject to the tax will on some occa- sions not be subject to the tax except with respect to such imputed income. However, a foreign tax based only or predominantly on such imputed income would not sat- isfy the realization requirement. Although it is possible for a long-term non-domi- ciliary to elect the remittance basis with- out having sufficient non-U.K.-source in- come or gains to support a £30,000 tax charge, in which case the base of the tax would include imputed income or gains, it is highly unlikely that substantial numbers of long-term non-domiciliaries in this situ- ation would elect to be taxed on the remit- tance basis. Accordingly, it is reasonable to conclude that the RBC is not based only or predominantly on such imputed income or gains. The RBC in general is imposed on realized income or gains, whether nom- inated by the long-term non-domiciliary or considered by the U.K. statute to have been nominated. Thus, judged on its predomi- 2011–36 I.R.B.201September 6, 2011 nant character, the LTND Levy meets the realization test. 2. Gross Receipts A foreign tax satisfies the gross receipts requirement if, judged on the basis of its predominant character, it is imposed on the basis of gross receipts or gross receipts computed under a method that is likely to produce an amount that is not greater than fair market value. §1.901–2(b)(3)(i). A foreign tax that, judged on the basis of its predominant character, is imposed on the basis of amounts described in §1.901–2(b)(3)(i) satisfies the gross re- ceipts requirement even if it is also im- posed on the basis of some amounts not described in that paragraph. As is the case with income and gains that are taxed under either the arising basis or the remittance basis, nominated income and gains subject to the RBC generally are based on gross receipts. Therefore,the LTND Levy meets the gross receipts test. 3. Net Income A foreign tax satisfies the net income requirement if, judged on the basis of its predominant character, the base of the tax is computed by reducing gross receipts to permit recovery of the significant costs and expenses (including significant capital expenditures) attributable, under reason- able principles, to such gross receipts; or recovery of such significant costs and expenses computed under a method that is likely to produce an amount that ap- proximates, or is greater than, recovery of such significant costs and expenses. §1.901–2(b)(4)(i). Since the LTND Levy is imposed on U.K.-source income and gains, remitted non-U.K.-source income and gains, and nominated but unremitted non-U.K.-source income and gains, all of which consist of gross receipts less costs and expenses, the LTND Levy satisfies the net income requirement. 4. Conclusion Becaus e the LTND Levy is likely to reach n et gain in the normal circumstances in whic h it applies, it has the predomi- nant c haracter of an income tax in the U.S. sense . HOLDING Because the LTND Levy is a tax (within the meaning of §1.901–2(a)(2)), and its predominant character is that of an income tax in the U.S. sense, the LTND Levy, including the Remittance Basis Charge (RBC) of £30,000, is an income tax for which a credit is allowable under section 901. However, a credit for the LTND Levy will be available only if the other legal requirements for obtaining a for- eign tax credit are satisfied. For example, an amount paid is treated as a compul- sory payment of income tax only to the extent the taxpayer applies the substan- tive and procedural provisions of foreign law, including elective provisions such as those available under U.K. law relating to the LTND Levy, in such a way as to re- duce, over time, the taxpayer’s reasonably expected liability under foreign law for income tax. §1.901–2(e)(5). Taxpayers generally may rely upon revenue rulings to determine the tax treat- ment of their own transactions and need not request a ruling that would apply the principles of a published revenue ruling to the facts of their own particular cases. However, because each revenue ruling represents the conclusion of the Internal Revenue Service (IRS) as to the appli- cation of the law to the specific facts involved, taxpayers, IRS personnel, and others concerned are cautioned against reaching the same conclusion in other cases unless those cases present facts and circumstances that are substantially thesameasthoseintherevenueruling. §601.601(d)(2)(v)(e). Accordingly, be- cause the provisions of U.K. law described in this revenue ruling are facts on which this revenue ruling bases its holding, a taxpayer may not rely on the revenue rul- ing if the relevant provisions have been amended in any material respect, and the taxpayer is responsible for determining whether any such modification has oc- curred. DRAFTING INFORMATION The pr incipal author of this revenue rul- ing is Teresa Burridge Hughes of the Of- fice o f Associate Chief Counsel (Interna- tion al). For further information regarding this revenue ruling, contact Ms. Hughes at (202) 622–3850 (not a toll-free call). Section 1035.—Certain Exchanges of Insurance Policies The Pension Protection Act amended sections 72, 1035, and 7702B of the Code. Notice 2011-68 pro- vides interim guidance on these amendments and re- quests comments on issues to be addressed in future guidance concerning the taxation of annuity and life insurance contracts with a long-term care insurance feature. See Notice 2011-68, page 205. Section 1274 .—Determi- nation of Iss ue Price in the Case of Cert ain Debt Instru- ments Issue d for Property (Also Secti ons 42, 280G, 382, 412, 467, 468, 482, 483, 642, 80 7, 846, 1288, 7520, 7872.) Federal rat es; adjusted federal rates; adjusted fe deral long-term rate and the long-term e xempt rate.For purposes of sections 38 2, 642, 1274, 1288, and other sections of the Code, tables set forth the rates for S eptember 2011. Rev. Rul. 2 011–20 This reven ue ruling provides various prescribe d rates for federal income tax purposes f or September 2011 (the current month). Ta ble 1 contains the short-term, mid-term , and long-term applicable fed- eral rate s (AFR) for the current month for purpo ses of section 1274(d) of the Internal Revenue Code. Table 2 contains the shor t-term, mid-term, and long-term adjuste d applicable federal rates (ad- justed A FR) for the current month for purpose s of section 1288(b). Table 3 sets forth th e adjusted federal long-term rate and the long-term tax-exempt rate de- scribe d in section 382(f). Table 4 contains the app ropriate percentages for deter- mining the low-income housing credit descri bed in section 42(b)(1) for build- ings p laced in service during the current month . However, under section 42(b)(2), the ap plicable percentage for non-feder- ally s ubsidized new buildings placed in servi ce after July 30, 2008, and before Decem ber 31, 2013, shall not be less than 9%. F inally, Table 5 contains the federal September 6, 20112022011–36 I.R.B. rate for determining the present value of an annuity, an interest for life or for a term of years, or a remainder or a reversionary interest for purposes of section 7520. REV. RUL. 2011–20 TABLE 1 Applicable Federal Rates (AFR) for September 2011 Period for Compounding AnnualSemiannualQuarterlyMonthly Short-term AFR.26%.26%.26%.26% 110% AFR.29%.29%.29%.29% 120% AFR.31%.31%.31%.31% 130% AFR.34%.34%.34%.34% Mid-term AFR1.63%1.62%1.62%1.61% 110% AFR1.79%1.78%1.78%1.77% 120% AFR 1.95% 1.94%1.94%1.93% 130% AFR2.12%2.11%2.10%2.10% 150% AFR 2.44%2.43%2.42%2.42% 175% AFR 2.86%2.84%2.83%2.82% Long-term AFR 3.57%3.54%3.52%3.51% 110% AFR3.93%3.89%3.87%3.86% 120% AFR4.30% 4.25% 4.23%4.21% 130% AFR 4.65% 4.60% 4.57%4.56% REV. RUL. 2011–20 TABLE 2 Adjusted AFR for September 2011 Period for Compounding AnnualSemiannualQuarterlyMonthly Short-te rm adjusted AFR .35%.35%.35%.35% Mid-term adjusted AFR1.47%1.46%1.46%1.46% Long-term adjusted AFR 3.77%3.74%3.72%3.71% REV. RUL . 2011–20 TABLE 3 Rates Under Section 382 for September 2011 Adjusted federal long-term rate for the current month3.77% Long-term tax-exempt rate for ownership changes during the current month (the highest of the adjusted federal long-term rates for the current month and the prior two months.)3.86% 2011–36 I.R.B.203September 6, 2011 REV. RUL. 2011–20 TABLE 4 Appropriate Percentages Under Section 42(b)(1) for September 2011 Note: Under Section 42(b)(2), the applicable percentage for non-federally subsidized new buildings placed in service after July 30, 2008, and before December 31, 2013, shall not be less than 9%. Appropriate percentage for the 70% present value low-income housing credit7.60% Appropriate percentage for the 30% present value low-income housing credit3.26% REV. RUL. 2011–20 TABLE 5 Rate Under Sec tion 7520 for September 2011 Applicable federal rate for determining the present value of an annuity, an interest for life or a term of years, or a remainder or reversionary interest2.0% Section 1288. —Treatment of Original Is sue Discount on Tax-Exempt Obligations The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 7520.—Valuation Tables The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. Section 7872.—Treatment of Loans With Below-Market Interest Rates The adjusted applicable federal short-term, mid- term, and long-term rates are set forth for the month of September 2011. See Rev. Rul. 2011-20, page 202. September 6, 20112042011–36 I.R.B. Part III. Administrative, Procedural, and Miscellaneous Annuity and Life Insurance Contracts with a Long-Term Care Insurance Feature Notice 2011–68 SECTION 1. PURPOSE This notice relates to amendments made to §§ 72, 1035, and 7702B of the Internal Revenue Code by the Pension Protection Act of 2006, P.L. 109–280 (the “PPA”). These amendments af- fect qualified long-term care insur- ance, annuity, and life insurance con- tracts issued after December 31, 1996, but only with respect to taxable years beginning after December 31, 2009, and tax-free exchanges occurring after December 31, 2009.This notice provides interim guidance on the application of theseamendments in certain circumstances, and requests comments on certain other issues to be addressed in future guidance concerning the taxation of annuity and life insurance contracts with a long-term care insurance feature. SECTION 2. BACKGROUND .01 Section 72 sets forth rules for the in- come taxation of amounts received under an annuity, endowment, or life insurance contract. .02 Section 72(a) provides that gross income includes any amount received as an annuity under an annuity, endowment, or life insurance contract. Section 72(b), however, excludes from gross income that part of an amount received as an annuity that bears the same ratio to that amount as the investment in the contract bears to the expected return under the contract (de- termined as of the annuity starting date). For this purpose, investment in the contract is defined in § 72(c)(1) to equal the ag- gregate amount of premiums or other con- sideration paid for the contract as of the annuity starting date,minus the aggregate amount received under the contract before that date, to the extent that amount was ex- cludable from gross income. .03 Section 72(e) governs the treatment of amounts received under an annuity con- tract that are not received as an annuity. Section 72(e)(2) provides in general that such amounts received on or after the an- nuity starting date are included in gross in- come, and that amounts received before the annuity starting date are included in gross income to the extent allocable to in- come on the contract,i.e.on an income- first basis. For purposes of determining the amount taxable under this subsection, § 72(e)(6) defines investment in the con- tract as the aggregate amount of premiums or other consideration paid for the contract, minus the aggregate amount previously re- ceived under the contract, to the extent that amount was excludable from gross in- come. .04 Section 1035(a) provides that no gain or loss shall be recognized on cer- tain exchanges of insurance policies. The legislative history of § 1035 states that tax-free exchange treatment is appropri- ate for “individuals who have merely ex- changed one insurance policy for another better suited to their needs.” H.R. Rep. No. 1337, 83d Cong., 2d Sess. 81 (1954). Sec- tion 1.1035–1 of the Income Tax Regula- tions provides that “the exchange, without recognition of gain or loss, of an annuity contract for another annuity contract under § 1035(a)(3) is limited to cases where the same person or persons are the obligee or obligees under the contract received in the exchange as under theoriginal contract.” .05 InConway v. Commissioner,111 T.C. 350 (1998),acq., 1999–2 C.B. xvi, the Tax Court held that the direct exchange by an insurance company of a portion of an existing annuity contract to an unre- lated insurance company for a new annu- ity contract was a tax-free exchange un- der § 1035. Such a transaction is some- times referred to as a “partial exchange.” See alsoRev. Rul. 2003–76, 2003–2 C.B. 355 (direct transfer of a portion of an annuity contract for a new annuity con- tract treated as a tax-free exchange under § 1035); Rev. Rul. 2002–75, 2002–2 C.B. 812 (assignment of an entire annuity con- tract for deposit into a preexisting annuity contract treated as a tax-free exchange un- der § 1035). .06 Section 7702B(b) defines a quali- fied long-term care insurance contract as an insurance contract that (a) provides pro- tection only for coverage of qualified long- term care services; (b) does not pay or re- imburse expenses incurred for certain ser- vices or items reimbursable under Title XVIII of the Social Security Act; (c) is guaranteed renewable; (d) does not pro- vide for a cash surrender value; (e) per- mits premium refunds or policyholder div- idends to be applied only as a reduction in future premiums or an increase in future benefits; and (f) meets the consumer pro- tection requirements of § 7702B(g). .07 Under § 7702B(a), a qualified long-term care insurance contract is treated as an accident and health insurance contract. Premiums paid under a qualified long-term care insurance contract are gen- erally treated as payments for insurance for purposes of the deduction under § 213 for expenses paid for medical care, and amounts received as benefits under such a contract generally are treated as amounts received for personal injuries and sick- ness and as reimbursement for expenses actually incurred for medical care. An employer plan providing coverage under such a contract treats the contract as an accident and health plan with respect to that coverage. The issuer of a qualified long-term care insurance contract treats the contract as a guaranteed renewable contract subject to the rules of § 816(e). SECTION 3. AMENDMENTS MADE BY THE PPA: DISCUSSION AND APPLICATION .01 The PPA was enacted on August 17, 2006. Section 844 of the PPA made changes to §§ 72, 1035, and 7702B, and added new reporting requirements for charges or payments for qualified long-term care insurance contracts under combined arrangements. Section 72 .02 Section 844(a) of the PPA amended § 72(e) by adding a new paragraph, § 72(e)(11). Section 72(e)(11) provides that a charge against the cash value of an annuity contract or the cash surrender value of a life insurance contract made as payment for coverage under a qualified long-term care insurance contract that is part of or a rider on the annuity or life insurance contract is not includible in 2011–36 I.R.B.205September 6, 2011 income. The investment in the contract is reduced (but not below zero) by the charge. .03 The PPA did not otherwise amend the definition of “investment in the con- tract” in § 72(c)(1) and 72(e)(6). Ac- cordingly, the Treasury Department and the IRS believe that all premiums paid for a combination contract that is an annuity and also provides long-term care insurance are generally included in investment in the contract under § 72 if (i) the premiums are credited to the contract’s cash value (rather than directly to the long-term care insur- ance contract that is part of or a rider to the contract), and (ii) coverage under the long-term care insurance contract is paid for by charges against the cash value of the contract. Consistently, a waiver of pre- miums under such a contract, such as on account of disability or because the an- nuitant has become chronically ill, should be accounted for in the same manner as awaiverofpremiumsunderothercon- tracts for which “investment in the con- tract” is determined under § 72(c)(1) or 72(e)(6).See, e.g.,Estate of Wong Wing Non v. Commissioner, 18 T.C. 205 (1952) (waived premiums not treated as construc- tively received as disability benefits, and therefore not included as part of premium paid for endowment life insurance policy). Section 1035 .04 Section 844(b) of the PPA ex- panded the categories of exchanges that are treated as tax-free under § 1035 to include certain exchanges that involve a qualified long-termcare insurance con- tract. Accordingly, § 1035 now applies to the exchange of a life insurance contract for another life insurance, endowment, annuity, or qualified long-term care in- surance contract; an endowment contract for another endowment, annuity, or qual- ified long-term care insurance contract; an annuity contract for another annu- ity or qualified long-term care insurance contract; or a qualified long-term care insurance contract for another qualified long-term care insurance contract. The PPA also amended § 1035(b)(2) and (3) to provide that, for purposes of § 1035, a contract does not fail to be treated as a life insurance contract or an annuity contract solely because a qualified long-term care insurance contract is a part of or a rider on the contract. .05 Just as the direct transfer of a por- tion of the cash surrender value of an ex- isting deferred annuity contract for a sec- ond annuity contract may be treated as a tax-free exchange under § 1035, the di- rect transfer of a portion of the cash sur- render value of an existing deferred an- nuity contract for a qualified long-term care insurance contract may be treated as a tax-free exchange, provided the require- ments of § 1035 are otherwise met.See, e.g., Rev. Proc. 2011–38, 2011–30 I.R.B. 66 (setting forth conditions under which such a transfer will be treated as a tax-free exchange under § 1035);but see,Rev. Rul. 2007–24, 2007–1C.B. 1282 (receipt of a check under a nonqualified annuity contract and endorsement of the check to a second company as consideration for a second annuity contract treated as a dis- tribution under § 72(e), rather than as a tax-free exchange under § 1035). .06 Although § 7702B(b)(1)(D) and (E) limit the extent to which a qualified long-term care insurance contract may have a cash value or premium refund fea- ture, § 7702B(b)(2)(C) permits the refund of premiums in the event of a complete surrender or cancellation of the contract, provided the amount does not exceed the aggregate premiums paid under the con- tract. Such a refund is includible in gross income to the extent that any deduction or exclusion was allowable with respect to the premiums. Moreover, § 1031(d) provides that if property is acquired in an exchange described in § 1035(a), then the acquired property’s adjusted basis shall be the same as that of the property ex- changed, decreased in the amount of any money received by the taxpayer and in- creased in the amount of gain or decreased in the amount of loss to the taxpayer that was recognized on such exchange. Ac- cordingly, Treasury and the IRS believe that, under § 1031(d), the adjusted basis of a qualified long-term care insurance contract received in a tax-free exchange under § 1035(a) generally carries over from the life insurance, endowment, annu- ity, or qualified long-term care insurance contract exchanged. Section 7702B, Information Reporting, and DAC .07 Section 844(c) of the PPA amended § 7702B(e) of the Code to provide that, in the case of any long-term care insur- ance coverage (whether or not qualified) provided by a rider on or as part of a life insurance contract or an annuity contract, the portion of the contract providing such coverage is treated as a separate contract. For this purpose, the term “portion” means only the terms and benefits under the life insurance or annuity contract that are in ad- dition to the terms and benefits under the contract without regard to long-term care insurance coverage. Prior to this amend- ment, § 7702B(e) provided a similar rule, but only for coverage provided as part of a life insurance contract. .08 Section 844(d) of the PPA added § 6050U of the Code, which requires any person who makes a charge against the cash value of an annuity contract (or the cash surrender value of a life insurance contract) that is excluded from gross in- come under § 72(e)(11) to file an infor- mation return setting forth the aggregate amount of such charges for the year, the amount of the reduction in investment in the contract by reason of such charges, and the name, address, and TIN of the holder of the contract. Statements are required to be furnished to persons with respect to whom information is required. .09 Section 844(e) of the PPA added § 848(e) of the Code, which treats an annu- ity or life insurance contract that includes a qualified long-term care insurance con- tract as a part of or a rider on such a con- tract as a contract that is subject to a capi- talization rate for specified policy acquisi- tion expenses (DAC) equal to 7.7 percent of net premiums. Effective Date .10 The amendments made by the PPA are effective generally for contracts issued after December 31, 1996, but only with re- spect to taxable years beginning after De- cember 31, 2009. The amendments relat- ing to tax-free exchanges apply with re- spect to exchanges occurring after Decem- ber 31, 2009. The amendment relating to information reporting applies to charges made after December 31, 2009. September 6, 20112062011–36 I.R.B. SECTION 4. REQUEST FOR COMMENTS .01 The Treasury Department and Inter- nal Revenue Service request comments to assist in the development of further guid- ance concerning the taxation of annuity and life insurance contracts with a long- term care insurance feature. For example: (a) What issues arise when the owner of an annuity contract with a long-term care insurance feature decides to annuitize the contract? Are the policyholder’s rights under the long-term care insurance fea- ture typically the same or different before and after the annuity starting date? How should long-term care insurance charges be accounted for after the annuity starting date? How should the exclusion ratio be determined? (b) For the purpose of determining whether the long-term care features of an annuity contract qualifyasaninsurance contract and thus as a qualified long-term care insurance contract, what is the ap- propriate characterization of long-term care payments that cause a reduction in a contract’s cash value? Are there common features or contract designs that would lend themselves to guidance on deter- mining whether enough insurance risk is present for the long-term care features to qualify as an insurance contract? (c) Is guidance needed on the partial exchange of the right to some or all of the payments under an immediate annuity contract for a qualified long-term care in- surance contract? If so, how is such an exchange effected? Under what circum- stances should such an exchange be treated as tax-free under § 1035? How should the basis and investment in the contract be ap- portioned between the qualified long-term care insurance contract received in the ex- change and the rights still held in the ex- changed annuity? (d) What changes, if any, are needed to existing guidance (including publications, forms, and instructions) on information re- porting and record keeping to assist is- suers of life insurance, annuity, or quali- fied long-term care insurance contracts in meeting their obligations with regard to the amendments made by section 844 of the PPA? .02 Comments should be submitted in writing on or before November 9, 2011 and should contain a reference to this Notice 2011–68. Comments may be submitted to CC:PA:LPD:PR (Notice 2011–68), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washing- ton, DC 20044. Alternatively, taxpayers may submit comments electronically to Notice.Comments@irscounsel.treas.gov. Please include “Notice 2011–68” in the subject line of any electronic communica- tions. .03 Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (Notice 2011–68), Courier’s Desk, Inter- nal Revenue Service, 1111 Constitution Ave., NW, Washington, DC 20224. All comments will be available for public in- spection and copying. SECTION 5. PROCEDURAL INFORMATION This notice serves as an “administra- tive pronouncement” as that term is used in § 1.6662–4(d)(3)(iii) of the regulations and may be relied upon to the same extent as a revenue ruling or revenue procedure. DRAFTING INFORMATION The principal author of this notice is Rebecca L. Baxter of the Office of Asso- ciate Chief Counsel (Financial Institutions & Products). For further information re- garding this notice, contact Ms. Baxter at (202) 622–7117 (not a toll-free call). 2011–36 I.R.B.207September 6, 2011 Part IV. Items o fGeneralInterest Notice of Prop osed Rulemaking an dNoticeof Public Hearin g Health Insura nce Premium Tax Credit REG–131491– 10 AGENCY: Inte rnal Revenue Service (IRS), Treas ury. ACTION: Noti ce of proposed rulemaking and notice o f public hearing. SUMMARY: Th is document contains pro- posed regul ations relating to the health insurance p remium tax credit enacted by the Patient Protection and Affordable Care Act and the H ealth Care and Education Reconcili ation Act of 2010, as amended by the Medi care and Medicaid Extenders Act of 2010 , the Comprehensive 1099 Taxpayer P rotection and Repayment of Exchange Subsidy Overpayments Act of 2011, and the Department of Defense and Full-Yea r Continuing Appropriations Act, 2011. The se proposed regulations pro- vide guid ance to individuals who enroll in quali fied health plans through Afford- able Ins urance Exchanges and claim the premium tax credit, and to Exchanges that make qua lified health plans available to individ uals and employers. This document also pr ovides notice of a public hearing on these p roposed regulations. DATES: Written (including elec- tronic ) comments must be received by Octobe r 31, 2011. Outlines of topics to be discus sed at the public hearing scheduled for No vember 17, 2011, at 10 a.m. must be rec eived by November 10, 2011. ADDRE SSES: Send submissions to: CC:PA :LPD:PR(REG–131491–10), Room 5 203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Wash ington, DC 20044. Submissions may be ha nd-delivered Monday through Friday betw een the hours of 8 a.m. and 4 p.m. to CC :PA:LPD:PR (REG–131491–10), Cour ier’s Desk, Internal Revenue Serv ice, 1111 Constitution Avenue, NW, Was hington, DC, or sent electronically via theFederaleRulemaking Portal atwww. regulations.gov(IRS REG–131491–1 0). The public hearing will be held in the IRS Auditorium, Internal Reve nue Building, 1111 Constitution Avenue, NW, Washington, DC. FOR FURTHER I NFORMATION CONTACT: Con cerning the proposed regulations , Shareen S. Pflanz, (202) 622–4920, or Frank W. Dunham III, (202) 622–4960; c oncerning the submission of comments, t he public hearing, and to be placed on th e building access list to attend thepublich earing, Funmi Taylor, (202) 622–7180 ( not toll-free calls). SUPPLEMEN TARY INFORMATION: Paperwork Reduction Act The collec tion of information con- tained in t his notice of proposed rulemak- ing has bee nsubmittedtotheOfficeof Managemen t and Budget in accordance with the P aperwork Reduction Act of 1995 (44 U .S.C. 3507(d)). Comments on the col lection of information should be sent to theOffice of Management and Budge t, Attn: Desk Officer for the Depa rtment of the Treasury, Office of Infor mation and Regulatory Affairs, Washing ton, DC 20503, with copies to theIn ternal Revenue Service, Attn: IR S Reports Clearance Officer, SE:W:C AR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of info rmation should be received by Octobe r 17, 2011.Comments are specif ically requested concerning: Whethe r the proposed collection of in- format ion is necessary for the proper per- forma nce of the functions of the IRS, in- cludi ng whether the information will have pract ical utility; How th e quality, utility, and clarity of the in formation to be collected may be en- hance d; How th e burden of complying with the propo sed collection of information may be minim ized, including through the appli- cati on of automated collection techniques or ot her forms of information technology; and Esti mates of capital or start-up costs and c osts of operation, maintenance, and purchase of se rvices to provide informa- tion. The collectio n of information in these proposed regu lations is in §1.36B–5. The collection of information is necessary to properly reco ncile the amount of the pre- mium tax credi t with advance credit pay- ments made un der section 1412 of the Pa- tient Protec tion and Affordable Care Act (42 U.S.C. 18 082). The collection of infor- mation is req uired to comply with the pro- visions of s ection 36B(f)(3) of the Internal Revenue Cod e (Code). The likely respon- dents are Af fordable Insurance Exchanges establishe d under section 1311 or 1321 of the Patien t Protection and Affordable Care Act (42 U.S .C. 13031 or 42 U.S.C. 18041). The burden for the collection of infor- mation con tained in proposed regulation §1.36B–5 w ill be reflected in the burden on a form th at the IRS will create to request the infor mation in the proposed regulation. An agency m ay not conduct or sponsor, and a pers on is not required to respond to, a collecti on of information unless it displays a valid co ntrol number assigned by the Of- fice of Ma nagement and Budget. Backgrou nd Beginning in 2014, under the Patient Protecti on and Affordable Care Act, Pub- lic Law 11 1–148 (124 Stat. 119 (2010)), and the He alth Care and Education Recon- ciliatio n Act of 2010, Public Law 111–152 (124 Sta t. 1029 (2010)) (collectively, the Affo rdable Care Act), individuals and smal l businesses will be able to pur- chase pr ivate health insurance through State-b ased competitive marketplaces called Affordable Insurance Exchanges (Excha nges). Exchanges will offer Amer- icans c ompetition and choice. Insurance compan ies will compete for business on a level playing field, driving down costs. Consum ers will have a choice of health plans to fit their needs and Exchanges will give i ndividuals and small businesses the same p urchasing power as big businesses. The De partments of Health and Human Servi ces and Treasury are working in close coor dination to release guidance related to Ex changes, in several phases. The first in th is series was a Request for Com- ment relating to Exchanges, published in theF ederal Registeron August 3, 2010 September 6, 20112082011–36 I.R.B. (75 FR 45584). Second, Initial Guid- ance to States on Exchanges was issued on November 18, 2010. Third, proposed regulations on the application, review, and reporting process for waivers for State innovation was published in theFederal Registeron March 14, 2011 (76 FR 13553). Fourth, two proposed regulations were published in theFederal Register on July 15, 2011 (76 FR 41866 and 76 FR 41930) to implement components of the Exchange and health insurance premium stabilization policies in the Affordable Care Act. Fifth, three proposed regulations, including this one, are being published in theFederal Registeron August 17, 2011, to provide guidance on the eligibility determination process related to enrollment in a qualified health plan or insurance affordability program; on Medicaid, the Children’s Health Insurance Program (CHIP), and other State health coverage programs; and these proposed regulations on the premium tax credit. Section 1401 of the Affordable Care Act amended the Code to add section 36B, allowing a refundable premium tax credit to help individuals and families af- ford health insurance coverage. Section 36B was subsequently amended by the Medicare and Medicaid Extenders Act of 2010, Public Law 111–309 (124 Stat. 3285 (2010)); the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011, Public Law 112–9 (125 Stat. 36 (2011)); and the Department of Defense and Full-Year Continuing Appropria- tions Act, 2011, Public Law 112–10 (125 Stat. 38 (2011)). The section 36B credit is designed to make a qualified health plan affordable by reducing a taxpayer’s out-of-pocket premium cost. Under section 1411 of the Affordable Care Act (42 U.S.C. 18081), an Exchange makes an advance determination of credit eligibility for individuals enrolling in cov- erage through the Exchange and seeking financial assistance. Using information available at the time of enrollment, the Ex- change determines (1) whether the individ- ual meets the income and other require- ments for advance credit payments, and (2) the amount of the advance payments. Ad- vance payments are made monthly under section 1412 of the Affordable Care Act (42 U.S.C. 18082) to the issuer of the qual- ified health plan in which the individual enrolls. Eligibility To be eligible for a premium tax credit, an individual must be an applicable tax- payer. Under section 36B(c)(1), an ap- plicable taxpayer is a taxpayer (1) with household income for the taxable year between 100 percent and 400 percent of the federal poverty line (FPL) for the tax- payer’s family size, (2) who may not be claimed as a dependent by another tax- payer, and (3) who files a joint return if married. Section 36B(c)(1)(B) provides that a taxpayer who is an alien lawfully present in the United States, whose household in- come is 100 percent of the FPL or less, and who is not eligible for Medicaid, nonethe- less is treated as an applicable taxpayer. Under section 36B(e)(2), an individual is lawfully present if the individual is, and is reasonably expected to be for the entire period of enrollment for which the credit is claimed, a U.S. citizen or national or an alien lawfully present in the United States. Under section 36B(d)(1), a taxpayer’s family consists of the individuals for whom the taxpayer claims a personal exemption deduction under section 151 for the taxable year. Taxpayers may claim a personal exemption deduction for themselves, a spouse, and each of their dependents. Section 152 provides that a taxpayer’s dependent may be a qualifying child or qualifying relative, including an unrelated individual who lives with the taxpayer. Family size is equal to the num- ber of individuals in the taxpayer’s family. Section 36B(d)(2) defines household income as the modified adjusted gross in- come of all individuals included in family size who are required to file an income tax return. Modified adjusted gross income means adjusted gross income (within the meaning of section 62) increased by amounts excluded from gross income un- der section 911 and tax-exempt interest a taxpayer receives or accrues during the taxable year. Under section 36B(b)(1), a taxpayer’s premium assistance credit amount is the sum of the premium assistance amounts for all coverage months in the taxable year for individuals in the taxpayer’s family. Section 36B(c)(2)(A) provides that a cov- erage month is any month for which the taxpayer or any family member is cov- ered by a qualified health plan enrolled in through an Exchange and the premium is paid by the taxpayer or through an advance credit payment. Under section 36B(c)(2)(B), a cover- age month for an individual does not in- clude a month in which the individual is eligible for minimum essential coverage, as defined in section 5000A(f), other than coverage offered in the individual mar- ket. Minimum essential coverage may be government-sponsored coverage such as Medicare, Medicaid, CHIP, TRICARE, and veterans’ health care under Title 38 U.S.C. Certain employer-sponsored plans also may be minimum essential coverage. In general, under section 36B(c)(2)(C), an individual is eligible for employer-spon- sored minimum essential coverage only if the employee’s share of the premiums is affordable and the coverage provides minimum value. However, under section 36B(c)(2)(C)(iii), anindividual is treated as eligible for employer-sponsored mini- mum essential coverage if the individual actually enrolls in an eligible employer- sponsored plan, even if the coverage does not meet the affordability and minimum value requirements. Under section 5000A(f)(1)(E), the De- partment of Health and Human Services, in coordination withthe Treasury Depart- ment, may designate other health benefits coverage as minimum essential coverage. Regulations under section 5000A are ex- pected to provide additional guidance on minimum essential coverage. Credit Computation Section 36B(b)(1) provides that the pre- mium assistance credit amount is the sum of the premium assistance amounts for all coverage months in the taxable year for individuals in the taxpayer’s family. The premium assistance amount for a coverage month is the lesser of (1) the premiums for the month for one or more qualified health plans that cover a taxpayer or family member, or (2) the excess of the adjusted monthly premium for the second lowest cost silver plan (as described in section 1302(d)(1)(B) of the Affordable Care Act (42 U.S.C. 18022(d)(1)(B))) (the bench- mark plan) that applies to the taxpayer over 1 /12of the product of the taxpayer’s house- 2011–36 I.R.B.209September 6, 2011 hold income and the applicable percentage for the taxable year. The adjusted monthly premium, in general, is the premium an in- surer would charge for the plan adjusted only for the ages of the covered individ- uals. Therefore, the monthly premium assis- tance amount is the lesser of the premium for the qualified health plan in which a taxpayer or family member enrolls, or the excess of the premium for the benchmark plan over the applicable percentage of the taxpayer’s household income. In general, this percentage of the taxpayer’s house- hold income represents the amount of the taxpayer’s required out-of-pocket contri- bution to the premium cost if the taxpayer purchases the benchmark plan. The re- mainder of the premium for the benchmark plan is the premium assistance amount. A taxpayer’s applicable percentage increases as the taxpayer’s household in- come as a percentage of the FPL (FPL percentage) for the taxpayer’s family size increases. For 2014, the applicable per- centage is 2 percent for taxpayers with household income up to 133 percent of the FPL and increases from 3 percent to 9.5 percent for taxpayers with household incomes between 133 percent and 400 percent of the FPL. The applicable per- centages may be adjusted after 2014. Taxpayers must pay the difference be- tween the premium assistance amount and the premium for the plan they choose. The amount of a taxpayer’s credit is limited to the amount of actual premiums for the tax- able year. Individuals not lawfully present are not eligible to enroll in a qualified health plan through an Exchange. Accordingly, section 36B(e)(1)(A) provides that, for a household with at least one individual not lawfully present, the portion (if any) of the premium attributable to that indi- vidual is not included in determining the taxpayer’s credit. Section 36B(e)(1)(B) provides that the family size for comput- ing the FPL percentage for a family with at least one unlawfully present individual is determined by excluding the unlawfully present individual. Household income for computing the FPL percentage and determining the applicable percentage is the product of the taxpayer’s household income (determined without regard to sec- tion 36B(e)) and a fraction, the numerator of which is the FPL for the taxpayer’s family size excluding individuals who are not lawfully present, and the denominator of which is the FPL for the taxpayer’s family size including individuals who are not lawfully present. Reconciliation A taxpayer must reconcile the actual credit for the taxable year computed on the taxpayer’s tax return with the amount of advance payments. If a taxpayer’s credit amount exceeds the amount of the tax- payer’s advance payments for the taxable year, the taxpayer may receive the excess as an income tax refund. If a taxpayer’s advance payments exceed the taxpayer’s credit amount, the taxpayer owes the ex- cess as an additional income tax liabil- ity. However, section 36B(f)(2)(B) places a graduated set of caps on the additional tax liability for taxpayers with household income under 400 percent of the FPL. The repayment limitation amounts range from $600 to $2,500 (one-half that amount for single taxpayers) depending on FPL, and are adjusted to reflect changes in the cost of living beginning in 2015. Section 36B(g) directs the Secretary of the Treasury to issue regulations that provide for coordinating the premium tax credit with the program for advance pay- ments and for reconciling the credit and advance payments when the taxpayer’s filing status changes during the taxable year. Information Reporting Section 36B(f)(3) directs an Exchange to report to the IRS and taxpayers certain information relating to health plans pro- vided through the Exchange, including the amount of any advance credit payments. Explanation of Provisions 1.Eligibility for the Premium Tax Credit The proposed regulations provide that a taxpayer is eligible for the credit for a taxable year if the taxpayer is an ap- plicable taxpayer and the taxpayer or a member of the taxpayer’s family (1) is enrolled in one or more qualified health plans through an Exchange established under section 1311 or 1321 of the Af- fordable Care Act (42 U.S.C. 13031 or 42 U.S.C. 18041) and (2) is not eligible for minimum essential coverage other than coverage in the individual market. a.Applicable taxpayer i. Lawfully Present Aliens In general, to be an applicable taxpayer, a taxpayer must have household income that is at least 100 percent but not more than 400 percent of the FPL. Under sec- tion 36B(c)(1)(B), a lawfully present alien with household income under 100 percent of the FPL and not eligible for Medicaid is treated as having household income of 100 percent of the FPL for purposes of quali- fying as an applicable taxpayer. The pro- posed regulations provide that premium assistance amounts for these taxpayers are computed based on actual household in- come. The proposed regulations define lawfully present by reference to 45 CFR §152.2, which determines lawful presence for purposes of the Pre-Existing Condition Insurance Plan Program. ii. Taxpayers with Household Income under 100 Percent of the FPL The proposed regulations clarify the treatment of a taxpayer who receives ad- vance credit payments but has household income below 100 percent of the FPL for the taxable year. Taxpayers with household incomes be- low 100 percent of the FPL (other than lawfully present aliens) are not eligible for the premium tax credit because they are el- igible to receive assistance through Medic- aid. However, an Exchange may approve a taxpayer for advance credit payments based on projecting a level of household income for the taxable year that makes the taxpayer ineligible for Medicaid. If, con- trary to that projection, the taxpayer’s ac- tual household income for the taxable year is under 100 percent of the FPL (for ex- ample, because the taxpayer experiences a change in circumstances, such as a job loss, during the year), the taxpayer would not be an applicable taxpayer, and would not be eligible for the credit under the gen- eral rule. Accordingly, the proposed regu- lations provide a special rule treating a tax- payer with household income below 100 percent of the FPL as an applicable tax- payer if, when a taxpayer enrolls in a quali- fied health plan, an Exchange projects that household income for the taxpayer will September 6, 20112102011–36 I.R.B. be between 100 and 400 percent of the FPL for the taxable year and approves ad- vance credit payments. Premium assis- tance amounts for these taxpayers also are computed based on actual household in- come and not a deemed household income that equals 100 percent of the FPL. iii. Individuals WhoAre Incarcerated or Not Lawfully Present Under section 1312(f) of the Affordable Care Act, individuals who are incarcerated (other than pending disposition of charges) or not lawfully present in the United States may not enroll in a qualified health plan through an Exchange. However, these in- dividuals may have family members who are eligible for Exchange coverage. Ac- cordingly, the proposed regulations pro- vide that an individual who is not lawfully present in the United States or is incarcer- ated, although not eligible to enroll in a qualified health plan, may be an applicable taxpayer if a family member is eligible to and does enroll in a qualified health plan. b.Minimum essential coverage i. Government-Sponsored Coverage Under the proposed regulations, an in- dividual generally is eligible for govern- ment-sponsored minimum essential cover- age for any month thatthe individual meets the requirements for coverage under a gov- ernment-sponsored program described in section 5000A(f)(1)(A). However, for pur- poses of the premium tax credit, an indi- vidual is eligible for minimum essential coverage under a veterans’ health care pro- gram only if the individual is enrolled in a veteran’s health care program identified as minimum essential coverage in regu- lations issued under section 5000A. The Commissioner may define eligibility for specific government-sponsored programs further in published guidance of general applicability, see §601.601(d)(2) of this chapter. For example, it is expected that future guidance will provide that a person is eligible for Medicaid on the basis of be- ing blind or disabled or needing long-term care services only when a State Medicaid agency or the Social Security Administra- tion, as appropriate, determines that the individual is blind or disabled or requires long-term care services. In general, an individual is treated as eligible for a government-sponsored program on the first day of the first full month in which the individual may receive benefits. Thus, taxpayers would not lose eligibility for the credit for a month in which the taxpayer or a family member is technically eligible for a government pro- gram but cannot yet receive benefits due to, for example, the need for administra- tive processing. However, an individual who fails to complete the requirements to obtain coverage available under a gov- ernment-sponsored program (other than coverage under the veteran’s health care program) reasonably promptly is treated as eligible for the coverage on the first day of the second calendar month following the event that establishes eligibility (such as reaching age 65 for Medicare). An individual receiving advance credit payments may apply and be approved for government-sponsored minimum essen- tial coverage such as Medicaid that, after approval, is effective retroactively (over- lapping some advance payment coverage months). The proposed regulations pro- vide that an individual in this situation is treated as eligible for minimum essential coverage no sooner than the first day of the first calendar month after the approval. Comments are requested on whether rules should provide additional flexibility if operational challenges prevent timely transition from coverage under a qualified health plan to coverage under a govern- ment-sponsored program. A taxpayer whom an Exchange has determined to be ineligible for Medicaid, CHIP, or a similar program at the time of enrollment may end up with house- hold income for the taxable year within the eligibility criteria for these programs. Therefore, the proposed regulations pro- vide that an individual is treated as not eligible for Medicaid, CHIP, or a similar program for the months of coverage under a qualified health plan if an Exchange de- termines that the individual is not eligible when the individual enrolls. If the indi- vidual subsequently enrolls in Medicaid, CHIP, or a similar program, however, the full months of enrollment in the govern- ment-sponsored coverage are not coverage months. ii. Employer-Sponsored Coverage A. In general Section 5000A(f)(1)(B) provides that minimum essential coverage includes cov- erage under an eligible employer-spon- sored plan. Under section 5000A(f)(2), an eligible employer-sponsored plan is a group health plan or group health in- surance coverage offered by an employer to an employee that is a governmen- tal plan (within the meaning of section 2791(d)(8) of the Public Health Ser- vice Act (42 U.S.C. 300gg–91(d)(8))), any other plan or coverage offered in the small or large group market, or a grandfathered plan offered in the group market.Regulations under section 5000A are expected to provide that an employer-sponsored plan will not fail to be minimum essential coverage solely because it is a plan to reimburse employees for medical care for which reimbursement is not provided under a policy of accident and health insurance (a self-insured plan). Continuation coverage required under federal law or required under a state law that provides comparable continuation coverage is eligible employer-sponsored coverage. The proposed regulations pro- vide a special rulethat an individual eligible to enroll in continuation coverage is eligible for minimum essential coverage only if the individual enrolls in the cover- age. The proposed regulations provide that an individual generally is eligible for min- imum essential coverage through an eligi- ble employer-sponsored plan for a month during a plan year if the individual had the opportunity to enroll in the plan, even if the enrollment period has since closed. Thus, once an individual fails to enroll in eligi- ble employer-sponsored coverage during an employer-sponsored plan’s enrollment period after having had the opportunity to do so (assuming the coverage is afford- able and provides minimum value), the months during the plan year are not cov- erage months for the individual, notwith- standing that the individual is precluded from later enrolling in the employer-spon- sored coverage for those months because the enrollment period has expired. Under section 36B(c)(2)(C), an in- dividual generally is eligible for em- ployer-sponsored minimum essential cov- 2011–36 I.R.B.211September 6, 2011 erage only if the employee’s share of the premiums is affordable and the coverage provides minimum value. An individ- ual is treated as eligible for minimum essential coverage through an eligible em- ployer-sponsored plan, however, if the individual actually enrolls in the coverage, including coverage that does not meet the requirements for affordability and mini- mum value. B. Affordability of employer-sponsored coverage Section 36B(c)(2)(C)(i) prescribes the standards for determining whether employer-sponsored coverage is afford- able for an employee as well as for other individuals. In the case of an em- ployee, under section 36B(c)(2)(C)(i), an employer-sponsored plan is not afford- able if “the employee’s required contri- bution (within the meaning of section 5000A(e)(1)(B)) with respect to the plan exceeds 9.5 percent of the applicable tax- payer’s household income” for the taxable year. This percentage may be adjusted after 2014. 1 In the case of an individual other than an employee, section 36B(c)(2)(C)(i) pro- vides that “this clause shall also apply to an individual who is eligible to enroll in the plan by reason of a relationship the indi- vidual bears to the employee.” The cross- referenced section 5000A(e)(1)(B) defines the term “required contribution” for this purpose as “the portion of the annual pre- miumwhichwouldbepaidbytheindivid- ual... for self-only coverage.” Thus, the statutory language specifies that for both employees and others (such as spouses or dependents) who are eligible to enroll in employer-sponsored coverage by reason of their relationship to an em- ployee (related individuals), the coverage is unaffordable if the required contribu- tion for “self-only” coverage (as opposed to family coverage or other coverage appli- cable to multiple individuals) exceeds 9.5 percent of household income. See Joint Committee on Taxation, General Explana- tion of Tax Legislation Enacted in the 111 th Congress, JCS–2–11 (March 2011) at 265 (stating that, for purposes of the premium tax credit provisions of the Act, “[u]naf- fordable is defined as coverage with a pre- mium required to be paid by the employee that is more than 9.5 percent of the em- ployee’s household income, based on the self-only coverage”). Consistent with these statutory provi- sions, the proposed regulations provide that an employer-sponsored plan also is affordable for a related individual for pur- poses of section 36B if the employee’s required contribution for self-only cov- erage under the plan does not exceed 9.5 percent of the applicable taxpayer’s household income for the taxable year, even if the employee’s required contribu- tion for the family coverage does exceed 9.5 percent of the applicable taxpayer’s household income for the year. Although the affordability test for re- lated individuals for purposes of the pre- mium tax credit is based on the cost of self- only coverage, future proposed regulations under section 5000A are expected to pro- vide that the affordability test for purposes of applying the individual responsibility requirement to related individuals is based on the employee’s required contribution for employer-sponsored family coverage. Section 5000A addresses affordability for employees in section 5000A(e)(1)(B) and, separately, for related individuals in sec- tion 5000A(e)(1)(C). C. Employee affordability safe harbor The proposed regulations provide an employee safe harbor for individuals who were offered eligible employer-sponsored coverage that ultimately proves to be af- fordable based on household income for the taxable year but who declined the offer because, at the time of enrollment in a qualified health plan, the Exchange determined that the employer coverage would be unaffordable. Under the safe harbor, an eligible employer-sponsored plan is treated as unaffordable for an entire plan year. Thus, for the months during the plan year (which may coincide or overlap with the taxable year) a taxpayer will not lose credit eligibility because, as a result of changes during the taxable year, the employer coverage would have been af- fordable based on the household income for that taxable year. The taxpayer may, however, lose credit eligibility for other reasons, for example if the taxpayer’s household income for the taxable year exceeds 400 percent of the FPL. Regula- tions under section 4980H are expected to provide that an employer is not subject to a penalty merely because an employee receives a premium tax credit under this employee safe harbor if the employer of- fered to its employees affordable coverage that otherwise meets the requirements of section 4980H. D. Affordability safe harbor for employers In general, an applicable large em- ployer (as defined in section 4980H(c)(2)) that offers health coverage to its full-time employees and their dependents is subject to the assessable payment under section 4980H(b) if at least one full-time em- ployee is certified to receive a premium tax credit or cost-sharing reduction be- cause the employer-sponsored coverage either does not provide minimum value or is unaffordable to the employee. Employers have commented that they will not know their employees’ actual household income. As a result, even if an employer intends to offer affordable coverage to all full-time employees, one or more full-time employees may be cer- tified to receive the premium tax credit, and the employer may be subject to the assessable payment under 4980H(b). Fu- ture proposed regulations under section 4980H are expected to provide an afford- ability safe harbor for employers. Under this anticipated safe harbor, an employer that meets certain requirements, including offering its full-time employees (and their dependents) the opportunity to enroll in eligible employer-sponsored coverage, will not be subject to an assessable pay- ment under section 4980H(b) with respect to an employee who receives a premium tax credit or cost-sharing reduction for a taxable year if the employee portion of the self-only premium for the employer’s lowest cost plan that provides minimum value does not exceed 9.5 percent of the 1 In addition, the statute provides for the Comptroller General, within 5 years of enactment, to conduct a study, including legislative recommendations, on the affordability of coverage, including whether the percentage of household income specified in section 36B(c)(2)(C) “is the appropriate level for determining whether employer-provided coverage is affordable for an employee and whether such level may be lowered without significantly increasing the costs to the Federal Government and reducing employer-providedcoverage.” See section 1401(c)(1) of the Affordable Care Act. September 6, 20112122011–36 I.R.B. employee’s current W–2 wages from the employer. Giving employers the ability to base their affordability calculations on their em- ployees’ wages (which employers know) instead of employees’ household income (which employers generally do not know) is intended to provide a more workable and predictable method of facilitating afford- able employer-sponsored coverage for the benefit of both employers and employees. Notwithstanding this safe harbor, employ- ees’ eligibility for a premium tax credit would continue to be based on afford- ability of employer-sponsored coverage relative to employees’ household income. Accordingly, some employees — among the small percentage of employees whose household income is less than their wages from the employer — would receive a premium tax credit without resulting in an assessable payment by their employer. The Treasury Department and the IRS intend to issue a request for comments on this affordability safe harbor for employ- ers. E. Minimum value Section 36B(c)(2)(C)(ii) provides that an eligible employer-sponsored plan gen- erally provides minimum value if the plan’s share of the total allowed costs of benefits provided under the plan is at least 60 percent of those costs. Under section 1302(d)(2) of the Affordable Care Act (42 U.S.C. 18022(d)(2)), regulations to be issued by the Secretary of Health and Human Services will apply in determining the percentage of “the total allowed costs of benefits” provided under a group health plan or health insurance coverage that are covered by that plan or coverage. The regulations under section 1302(d)(2) are expected to be proposed later this year and to reflect the fact that employer-sponsored group health plans and health insurance coverage in the large group market are not required to provide each of the essential health benefits or each of the 10 categories of benefits described in section 1302(b)(1) of the Affordable Care Act. It is also anticipated that the regulations will seek to further the objective of preserving the existing system of employer-sponsored coverage, but without permitting the statu- tory employer responsibility standards to be avoided. We also are contemplating whether to provide appropriate transition relief with respect to the minimum value requirement for employers currently offer- ing health care coverage. 2.Computing the Premium Tax Credit A taxpayer’s credit is the sum of the premium assistanceamounts for each cov- erage month in the taxable year. A pre- mium assistance amount is computed for each coverage month during the taxable year based on several factors: household income, family size, applicable percent- age, benchmark plan premium, and actual plan premium. A month during which no one in the taxpayer’s family is enrolled in a qualified health plan through an Exchange is not a coverage month. A month is a coverage month only if the taxpayer pays the premium for coverage or receives the benefit of an advance payment. The pre- mium assistance amount for a month that is not a coverage month is zero. House- hold income is determined on an annual basis and is prorated for each month to de- termine the monthly premium assistance amount. The applicable percentage is the same for each month because it is derived from annual household income and fam- ily size. A taxpayer’s benchmark plan pre- mium may change during the year if, for example, there are changes in the mem- bers of the household covered through the Exchange or the taxpayer moves to a new State with different plan rates. a.Premiums paid on behalf of the taxpayer The proposed regulations provide that, in determining whether a month is a cover- age month, premiums that another person pays for the coverage of the taxpayer or a family member are treated as paid by the taxpayer. b.Applicable benchmark plan Under section 36B(b)(2), the monthly premium for the applicable second low- est cost silver plan offered through an Ex- change is the benchmark for computing a taxpayer’s monthly premium assistance amount. To determine the amount of pre- mium tax credit, a taxpayer must compute the difference between the premium for this plan and the applicable percentage of the taxpayer’s household income, regard- less of the qualified health plan the tax- payer purchases. i. Multiple Categories of Coverage OfferedonanExchange Section 36B(b)(3)(B)(ii) identifies only self-only and family as the categories of coverage for the benchmark plan. How- ever, qualified health plans may offer other categories of coverage based on family composition, such as children only, two adults, or one adult plus children. See pro- posed 45 CFR 156.255(b). Thus, the pro- posed regulations define family coverage as any health insurance that covers more than one individual. Under the proposed regulations, the “applicable” benchmark plan for a tax- payer is determined by finding the second lowest cost plan at the silver level that would cover those family members actu- ally enrolled in a qualified health plan, not eligible for minimum essential coverage other than coverage in the individual mar- ket, not incarcerated, and lawfully present in the United States (the coverage family). Thus, the applicable benchmark plan is the self-only category of coverage for a taxpayer who files as single with no depen- dents, a taxpayer who purchases self-only coverage, and a taxpayer whose family includes only one individual who is not eligible for minimum essential coverage or one lawfully present individual (thus excluding from the credit computation the portion of the premium attributable to an individual not lawfully present, as required by section 36B(e)(1)(A)). If an Exchange offers more categories of coverage than self-only and family, the applicable bench- mark plan is the coverage category that applies to the members of the taxpayer’s coverage family. ii. Families Who Purchase More Than One Qualified Health Plan Section 36B determines family size by reference to individuals for whom the taxpayer claims a personal exemption, and family coverage under some qualified health plans may not extend to certain tax dependents (for example, a niece). We note that the Department of Health and Human Services has requested comments in its proposed regulations on Exchanges 2011–36 I.R.B.213September 6, 2011 on whether qualified health plans offered on an Exchange should be required to cover all members of the family if they live in the same Exchange service area. Pending the issuance of additional guid- ance on this issue by Health and Human Services, the proposed regulations pro- vide that, if the applicable benchmark plan does not cover a taxpayer’s full family, the applicable benchmark plan premium for these families is the sum of the premi- ums for the benchmark plans that cover the taxpayer’s family (for example, for an uncle and two adult dependent nieces, a self-only benchmark plan for the uncle and a two-adult or family plan for the nieces). The applicable benchmark plan is simi- larly modified for taxpayers with family members residing in different rating areas (also known as Exchange service areas, see proposed 45 CFR §155.20). However, the IRS and Treasury Department are con- sidering other approaches for determining the applicable benchmark plan in these cases. For example, the applicable bench- mark plan for these families could be the benchmark plan that would apply to the family composition (such as one adult plus children) if one plan covered all members of the taxpayer’s family. Alternatively, the applicable benchmark plan premium could be the lesser of (1) the premium for a combination of plans that cover the tax- payer’s entire family, or (2) the premium for a single plan that covers the taxpayer’s entire family and is more expensive than the second lowest cost silver plan. Com- ments are requested on these and other possible approaches. iii. One Qualified Health Plan Covering More Than One Family If a single qualified health plan covers more than one taxpayer’s family (for ex- ample a plan that covers adult children un- der age 26 who are not tax dependents), the allowable section 36B credit is com- puted for each applicable taxpayer cov- ered by the plan. An individual applica- ble percentage is determined for each tax- payer based on the taxpayer’s household income and family size, and the separate applicable benchmark plan. The premi- ums for the qualified health plan the tax- payers purchase are allocated to each tax- payer in proportion to the premiums for each taxpayer’s benchmark plan to deter- mine whether the premiums paid are less than the benchmark premium minus the taxpayer’s applicable percentage of house- hold income. iv. Applicable Benchmark Plan That Terminates or Closes to Enrollment A qualified health plan that is the sec- ond lowest cost silver plan for a particu- lar category of coverage, or the lowest cost silver plan in that category, may close to enrollment or terminate during the taxable year. The proposed regulations clarify that an applicable benchmark plan is a plan of- fered through the Exchange when a tax- payer or family member enrolls in a qual- ified health plan. Unless the taxpayer or a family member is enrolled in the applica- ble benchmark plan, a plan does not cease to be the applicable benchmark plan solely because the plan or thelowest cost silver plan terminates or closes to further enroll- ment during the taxable year. c.Pediatric dental coverage Section 36B(b)(3)(E) provides that, for purposes of determining the amount of any monthly premium, if an individual enrolls in both a qualified health plan and a plan providing dental coverage as described in section 1311(d)(2)(B)(ii) of the Affordable Care Act (42 U.S.C. 13031(d)(2)(B)(ii)), the portion of the premium for the dental plan that is properly allocable to pediatric dental benefits that are essential health benefits is treated as a premium payable for the individual’s qualified health plan. Thus, the portion of the premium for the separate pediatric dental coverage is added to the premium for the benchmark plan in computing the credit. Comments are requested on methods of determining the amount of the premium properly allocable to pediatric dental benefits. 3.Reconciling the Credit and Advance Credit Payments The proposed regulations describe the requirements for reconciling advance pay- ments of the credit with the actual credit amount and determining the amount of any resulting additional credit or additional in- come tax liability. The proposed regula- tions explain that the credit is computed by using the household income and fam- ily size for the taxable year, but premium assistance amounts fordifferent coverage months may be based on different appli- cable benchmark plans if, for example, the taxpayer’s family composition changes during the taxable year. a.Changes in filing status Section 36B(g)(2) directs the Secretary to provide regulations specifying how to reconcile advance payments with the ac- tual credit when the taxpayer’s filing sta- tus on the return claiming the credit differs from the filing status used to determine ad- vance payments of the credit. Filing sta- tus may be any of the following: single, married filing jointly, married filing sep- arately, head of household, or surviving spouse. i. Computing the Credit When Taxpayer’s Marital Status Changes The proposed regulations provide that, for a taxpayer who has a change in marital status during the taxable year, the credit generally is computed according to the same rules that apply to other taxpayers, using the applicable benchmark plan or plans that apply to the taxpayer’s marital status as of the first day of each month. However, the proposed regulations include special rules for computing the credit for taxpayers who divorce during the taxable year. Comments are requested on special rules for taxpayers who marry during the taxable year and for married taxpayers who face challenges in being able to file a joint return. ii. Taxpayers Who Divorce during the Taxable Year The proposed regulations provide that, for purposes of reconciliation, taxpayers who for some months during a taxable year were married (within the meaning of sec- tion 7703) and were covered by the same qualified health plan but are no longer mar- ried on the last day of the taxable year, may agree to allocate between themselves, in the same proportion, the premiums for the benchmark plan, premiums paid and advance credit payments made during the marriage. If the taxpayers do not agree on an allocation, the taxpayers must allocate 50 percent of these amounts to each tax- payer. If only one of the formerly mar- ried taxpayers was enrolled in the plan, September 6, 20112142011–36 I.R.B. 100 percent of the benchmark premiums, premiums for the plan that taxpayer pur- chases, and advance payments are allo- cated to that taxpayer. iii. Taxpayers Who Marry during the Taxable Year For individuals who marry during a tax- able year and receive advance credit pay- ments during the time before they are mar- ried, the general rules for credit computa- tion and reconciliation could lead to the in- dividuals facing additional tax upon recon- ciliation, even if the Exchange accurately determines each individual’s separate in- come for the year at the time of enroll- ment. This may occur, for example, in sit- uations in which the combination of two individuals’ household incomes and fami- lies results in the combined family having a higher FPL percentage than either of the component families would have had if the individuals had not married, and therefore having a higher applicable percentage or being ineligible for a credit. Comments are requested on rules providing relief to cer- tain individuals who would owe additional tax because they marry during a taxable year when one or both individuals receive advance credit payments prior to marriage. Comments are requested on how the pre- mium assistance credit amount should be computed in this circumstance, including how household income (which is required to be determined on an annual basis) and dependents for the taxable year would be taken into account in the credit computa- tion. iv. Married Taxpayers Filing Separately Married taxpayers who file their returns as married filing separately are not appli- cable taxpayers and generally are ineli- gible for the premium tax credit for any month during the taxable year. The pro- posed regulations provide that taxpayers who receive advance credit payments and file their tax returns as married filing sep- arately must allocate 50 percent of any advance credit payments to each spouse for purposes of determining their excess advance payment amounts as part of the reconciliation process. Although the tax- payers owe additional tax for the entire amount of the advance credit payments, the section 36B(f)(2)(B) repayment limita- tion applies to each taxpayer whose house- hold income is below 400 percent of the federal poverty line based on the house- hold income and family size reported on the return. Some taxpayers who are married at the time they enroll in a qualified health plan and begin to receive advance credit pay- ments may not be able to file a joint re- turn for the coverage year. For example, in situations involving domestic abuse, when a divorce is pending but not yet final, or when one spouse is incarcerated, filing a joint return may not be possible or pru- dent. Comments are requested on rules to provide relief for those married taxpay- ers who have received advance credit pay- ments but face challenges in being able to file a joint return. Comments are requested in particular on whether rules should take into account whether (1) the spouses have filed jointly for the preceding taxable year, (2) the spouses attested to an expectation to file jointly for purposes of receiving the advance credit payments, and (3) the spouses should be allowed relief of this type for more than one year. Comments are requested on other rules for reconciling the credit with advance payments for taxpayers whose filing status changes during the taxable year. b.Requirement to file a return The proposed regulations require ev- ery taxpayer receiving advance credit pay- ments to file an income tax return on or be- fore the fifteenth day of the fourth month following the close of the taxable year. The requirement to file a return applies whether or not a taxpayer is otherwise re- quired to file a return under section 6012 or claims a premium tax credit for the taxable year. Under section 6081, the Commis- sioner may grant a reasonable extension of time for filing any income tax return. Effective/Applicability Date These regulations are proposed to apply for taxable years ending after December 31, 2013. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Exec- utive Order 13563. Therefore, a regula- tory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regu- lations, and, because the regulations do not impose a collection of information re- quirement on small entities, the Regula- tory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rule- making has been submitted to the Chief Counsel for Advocacy of the Small Busi- ness Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (ei- ther electronic or a signed paper original and eight (8) copies) that are submitted timely to the IRS. The IRS and Treasury Department request comments on the clar- ity of the proposed rules and how they can be made easier to understand. All com- ments will be available for public inspec- tion and copying. A public hearing has been scheduled for November 17, 2011, at 10 a.m., in the auditorium, Internal Revenue Build- ing, 1111 Constitution Avenue NW, Wash- ington, DC. Due to building security pro- cedures, visitors must enter at the Consti- tution Avenue entrance. All visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance more than 30 minutes before the hearing starts. For informa- tion about having your name placed on the building access list to attend the hearing, see the “FOR FURTHER INFORMA- TION CONTACT”section of this pream- ble. The rules of 26 CFR 601.601(a)(3) ap- ply to the hearing. Persons who wish to present oral comments at the hearing must submit written comments (electronic or a signed paper original and eight (8) copies) and an outline of topics to be discussed and the time devoted toeach topic by Novem- ber 10, 2011. A period of 10 minutes will be allotted to each person for making com- ments. 2011–36 I.R.B.215September 6, 2011 An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal authors of these pro- posed regulations are Shareen S. Pflanz, Frank W. Dunham III, and Stephen J. Toomey of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in the development of the regulations. ***** Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding entries in nu- merical order to read in part as follows: Authority: 26 U.S.C. 7805*** Section 1.36B–4 also issued under 26 U.S.C. 36B(g). Par. 2. Sections 1.36B–0, 1.36B–1, 1.36B–2, 1.36B–3, 1.36B–4, and 1.36B–5 are added to read as follows: §1.36B–0 Table of contents. This section lists the captions contained in §§1.36B–1 through 1.36B–5. §1.36B–1 Premium tax credit definitions. (a) In general. (b) Affordable Care Act. (c) Qualified health plan. (d) Family and family size. (e) Household income. (1) In general. (2) Modified adjusted gross income. (f) Dependent. (g) Lawfully present. (h) Federal poverty line. (i) Reserved. (j) Advance credit payment. (k) Exchange. (l) Self-only coverage. (m) Family coverage. (n) Rating area. (o) Effective/applicability date. §1.36B–2 Eligibility for premium tax credit. (a) In general. (b) Applicable taxpayer. (1) In general. (2) Married taxpayers must file joint re- turn. (3) Dependents. (4) Individuals not lawfully present or incarcerated. (5) Individuals lawfully present. (6) Special rule for taxpayers with household income below 100 percent of the federal poverty line for the taxable year. (7) Computation of premium assistance amounts for taxpayers with household in- come below 100 percent of the federal poverty line. (c) Minimum essential coverage. (1) In general. (2) Government-sponsored minimum essential coverage. (i) In general. (ii) Special rule for coverage under the veteran’s health care program under chap- ter17or18ofTitle38,U.S.C. (iii) Time of eligibility. (A) In general. (B) Retroactive effect of eligibility de- termination. (iv) Determination of Medicaid or Chil- dren’s Health Insurance Program (CHIP) ineligibility. (v) Examples. (3) Employer-sponsored minimum es- sential coverage. (i) In general. (ii) Plan year. (iii) Eligibility for coverage months during a plan year. (A) In general. (B) Example. (iv) Special rule for continuation cover- age. (v) Affordable coverage. (A) In general. (1) Affordability. (2)Employeesafeharbor. (B) Required contribution percentage. (C) Examples. (vi) Minimum value. (vii) Enrollment in eligible employer- sponsored plan. (A) In general. (B) Example. §1.36B–3 Computing the premium assistance credit amount. (a) In general. (b) Definitions. (c) Coverage month. (1) In general. (2) Premiums paid for the taxpayer. (3) Examples. (d) Premium assistance amount. (e) Adjusted monthly premium. (f) Applicable benchmark plan. (1) In general. (2) Family coverage. (3) Second lowest cost silver plan not covering the taxpayer’s family. (4) Benchmark plan terminates or closes to enrollment. (5) Examples. (g) Applicable percentage. (1) In general. (2) Applicable percentage table. (3) Examples. (h)Plancoveringmorethanonefamily. (1) In general. (2) Example. (i) Reserved. (j) Additional benefits. (1) In general. (2) Method of allocation. (k) Pediatric dental coverage. (1) In general. (2) Method of allocation. (l) Families including individuals not lawfully present. (1) In general. (2) Revised household income compu- tation. (i) Statutory method. (ii) Comparable method. §1.36B–4 Reconciling the premium tax credit with advance credit payments. (a) Reconciliation. (1) In general. (2) Credit computation. (3) Limitation on additional tax. (i) In general. (ii) Additional tax limitation table. (4) Examples. (b) Changes in filing status. (1) In general. (2) Taxpayers not married to each other at the end of the taxable year. (3) Married taxpayers filing separate re- turns. September 6, 20112162011–36 I.R.B. (4) Examples. §1.36B–5 Information reporting by Exchanges. (a) Information required to be reported. (b) Time and manner of reporting. §1.36B–1 Premium tax credit definitions. (a)In general. Section 36B allows a refundable premium tax credit for taxable years ending after December 31, 2013. The definitions in this section apply to this section and §§1.36B–2 through 1.36B–5. (b)Affordable Care Act.Theterm Affordable Care Actrefers to the Patient Protection and Affordable Care Act, Pub- lic Law 111–148 (124 Stat. 119 (2010)), and the Health Care and Education Recon- ciliation Act of 2010, Public Law 111–152 (124 Stat. 1029 (2010)), as amended by the Medicare and Medicaid Extenders Act of 2010, Public Law 111–309 (124 Stat. 3285 (2010)), the Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011, Public Law 112–9 (125 Stat. 36 (2011)), and the Department of Defense and Full-Year Continuing Appropriations Act, 2011, Public Law 112–10 (125 Stat. 38 (2011)). (c)Qualified health plan.Theterm qualified health planhas the same mean- ing as in section 1301(a) of the Affordable Care Act (42 U.S.C. 18021(a)) but does not include a catastrophic plan described in section 1302(e) of the Affordable Care Act (42 U.S.C. 18022(e)). (d)Family and family size.Atax- payer’s family means the individuals for whom a taxpayer properly claims a de- duction for a personal exemption under section 151 for the taxable year. Family size means the number of individuals in the family. Family and family size include an individual who is exempt from the re- quirement to maintain minimum essential coverage under section 5000A. (e)Household income—(1)In general. Household income means the sum of— (i) A taxpayer’s modified adjusted gross income; plus (ii) The aggregate modified adjusted gross income of all other individuals who— (A) Are included in the taxpayer’s fam- ily under paragraph (d) of this section; and (B) Are required to file an income tax return for the taxable year (determined without regard to the exception under sec- tion (1)(g)(7) to the requirement to file a return). (2)Modified adjusted gross income. Modified adjusted gross income means adjusted gross income (within the mean- ing of section 62) increased by amounts excluded from gross income under section 911 and tax-exempt interest the taxpayer receives or accrues during the taxable year. (f)Dependent. Dependent has the same meaning as in section 152. (g)Lawfully present. Lawfully present has the same meaning as in 45 CFR 152.2. (h)Federal poverty line. The federal poverty line means the most recently pub- lished poverty guidelines (updated period- ically in theFederal Registerby the Sec- retary of Health and Human Services un- der the authority of 42 U.S.C. 9902(2)) as of the first day of the regular enrollment period for coverage by a qualified health plan offered through an Exchange for a cal- endar year. Thus, the federal poverty line for computing the premium tax credit for a taxable year is the federal poverty line in effect on the first day of the initial or an- nual open enrollment period preceding that taxable year. See 45 CFR 155.410. (i) [Reserved] (j)Advance credit payment. Advance credit payment means an advance payment of the premium tax credit as provided in section 1412 of the Affordable Care Act (42 U.S.C. 18082). (k)Exchange. Exchange has the same meaning as in 45 CFR 155.20. (l)Self-only coverage. Self-only cover- age means health insurance that covers one individual. (m)Family coverage. Family coverage means health insurance that covers more than one individual. (n)Rating area. Rating area means an Exchange service area, as described in 45 CFR 155.20. (o)Effective/applicability date.This section and §§1.36B–2 through 1.36B–5 apply for taxable years ending after De- cember 31, 2013. §1.36B–2 Eligibility for premium tax credit. (a)In general. An applicable taxpayer (within the meaning of paragraph (b) of this section) is allowed a premium assis- tance amount only for any month that the applicable taxpayer, or the applicable tax- payer’s spouse or dependent— (1) Is enrolled in one or more qualified health plans through an Exchange; and (2) Is not eligible for minimum essential coverage (within the meaning of paragraph (c) of this section) other than coverage de- scribed in section 5000A(f)(1)(C) (relating to coverage in the individual market). (b)Applicable taxpayer—(1) In gen- eral. Except as otherwise provided in this paragraph (b), an applicable taxpayer is a taxpayer whose household income is at least 100 percent but not more than 400 percent of the federal poverty line for the taxpayer’s family size for the taxable year. (2)Married taxpayers must file joint re- turn. A taxpayer who is married (within the meaning of section 7703) at the close of the taxable year isan applicable tax- payer only if the taxpayer and the tax- payer’s spouse file a joint return for the taxable year. (3)Dependents. An individual is not an applicable taxpayer if another taxpayer may claim a deduction under section 151 for the individual for a taxable year begin- ning in the calendar year in which the in- dividual’s taxable year begins. (4)Individuals not lawfully present or incarcerated. An individual who is not lawfully present in the United States or is incarcerated (otherthan incarceration pending disposition of charges) may not be covered by a qualified health plan through an Exchange. However, the individual may be an applicable taxpayer if a family member is eligible to enroll in a qualified health plan. See sections 1312(f)(1)(B) and 1312(f)(3) of the Affordable Care Act (42 U.S.C. 18032(f)(1)(B) and (f)(3)) and §1.36B–3(b)(2). (5)Individuals lawfully present.Ifa taxpayer’s household income is less than 100 percent of the federal poverty line for the taxpayer’s family size and the taxpayer or a member of the taxpayer’s family is an alien lawfully present in the United States, the taxpayer is treated as an applicable tax- payer if— (i) The taxpayer or family member is not eligible for the Medicaid program; and (ii) The taxpayer would be an applica- ble taxpayer if the taxpayer’s household in- come for the taxable year was between 100 2011–36 I.R.B.217September 6, 2011 and 400 percent of the federal poverty line for the taxpayer’s family size. (6)Special rule for taxpayers with household income below 100 percent of the federal poverty line for the taxable year. A taxpayer (other than a taxpayer de- scribed in paragraph (b)(5) of this section) whose household income for a taxable year is less than 100 percent of the federal poverty line for the taxpayer’s family size is treated as an applicable taxpayer if— (i) The taxpayer or a family member enrolls in a qualified health plan through an Exchange; (ii) An Exchange estimates at the time of enrollment that the taxpayer’s house- hold income will be between 100 and 400 percent of the federal poverty line for the taxable year; (iii) Advance credit payments are au- thorized and paid for one or more months during the taxable year; and (iv) The taxpayer would be an applica- ble taxpayer if the taxpayer’s household in- come for the taxable year was between 100 and 400 percent of the federal poverty line for the taxpayer’s family size. (7)Computation of premium assistance amounts for taxpayers with household income below 100 percent of the federal poverty line. If a taxpayer is treated as an applicable taxpayer under paragraph (b)(5) or (b)(6) of this section, the taxpayer’s ac- tual household income for the taxable year is used to compute the premium assistance amounts under §1.36B–3(d). (c)Minimum essential coverage—(1) In general. Minimum essential cover- age is defined in section 5000A(f) and regulations issued under that section. As described in section 5000A(f), gov- ernment-sponsored programs, eligible employer-sponsored plans, grandfathered health plans, and certain other health benefits coverage are minimum essential coverage. (2)Government-sponsored minimum essential coverage—(i)In general. Except as provided in paragraph (c)(2)(ii) of this section, for purposes of section 36B, an in- dividual is eligible for government-spon- sored minimum essential coverage if the individual meets the criteria for coverage under a government-sponsored program describedinsection5000A(f)(1)(A).The Commissioner may define eligibility for specific government-sponsored programs further in published guidance of general applicability, see §601.601(d)(2) of this chapter. (ii)Special rule for coverage under the veteran’s health care program under chap- ter17or18ofTitle38,U.S.C. An individ- ual is eligible for minimum essential cov- erage under the veteran’s health care pro- gram authorized under chapter 17 or 18 of Title 38, U.S.C., only if the individual is enrolled in a veteran’s health care program identified as minimum essential coverage in regulations issued under section 5000A. (iii)Time of eligibility—(A)In general. An individual generally is treated as eligi- ble for a government-sponsored program on the first day of the first full month in which the individual may receive bene- fits under the program. However, an in- dividual who fails to complete the require- ments necessary to receive benefits avail- able under a government-sponsored pro- gram (other than a veteran’s health care program) reasonably promptly is treated as eligible for government-sponsored min- imum essential coverage as of the first day of the second calendar month following the event that establishes eligibility under paragraph (c)(2)(i) of this section. (B)Retroactive effect of eligibility de- termination. If an individual receiving ad- vance credit payments is determined to be eligible for government-sponsored mini- mum essential coverage that is effective retroactively (such asMedicaid), the indi- vidual is treated as eligible for minimum essential coverage under that program no earlier than the first day of the first calen- dar month beginning after the approval. (iv)Determination of Medicaid or Chil- dren’s Health Insurance Program (CHIP) ineligibility. An individual is treated as not eligible for Medicaid, CHIP, or a similar program for a period of coverage under a qualified health plan if an Exchange deter- mines that the individual is not eligible for the program when the individual enrolls in the qualified health plan. (v)Examples. The following examples illustrate the provisions of this paragraph (c)(2). Example 1.Delay in coverage effectiveness.On April 10, Taxpayer D applies for coverage under a government-sponsored health care program. D’s ap- plication is approved on July 12 but her coverage is not effective until September 1. Under paragraph (c)(2)(iii)(A) of this section, D is eligible for gov- ernment-sponsored minimum essential coverage on September 1. Example 2.Time of eligibility. Taxpayer E turns 65 on June 3 and becomes eligible for Medicare. Un- der section 5000A(f)(1)(A), Medicare is minimum essential coverage. However, E must enroll in Medi- care to receive benefits. E enrolls in Medicare on June 11 and may receive benefits immediately. Under paragraph (c)(2)(iii)(A) of this section, E is eligible for government-sponsored minimum essential cover- age on July 1, the first day of the first full month that E may receive benefits under the program. Example 3.Time of eligibility, individual fails to complete necessary requirements. The facts are the same as inExample 2, except that E fails to enroll in the Medicare coverage. E is treated as eligible for government-sponsored minimum essential cover- age under paragraph (c)(2)(iii)(A) of this section as of August 1, the first day of the second month following the event that establishes eligibility (E turning 65). Example 4.Retroactive effect of eligibility.On April 10, 2015, Taxpayer G applies for coverage un- der the Medicaid program. G’s application is ap- proved on May 15, 2015, and her Medicaid cover- age is effective as of April 1, 2015. Under paragraph (c)(2)(iii)(B) of this section, G is eligible for gov- ernment-sponsored minimum essential coverage on June 1, 2015, the first day of the first calendar month after approval. Example 5.Determination of Medicaid ineligibil- ity. In November 2014, Taxpayer H applies to the Ex- change to enroll in a qualified health plan and for ad- vance credit payments for 2015. The Exchange esti- mates that H’s household income will be 140 percent of the federal poverty line for H’s family size and de- termines that H is not eligible for Medicaid. The Ex- change authorizes advance credit payments for H for 2015. H experiences a loss of household income in June 2015 but does not return to the Exchange in 2015 to apply for Medicaid benefits or report his change in income. H’s household income for 2015 is 130 per- cent of the federal poverty line (within the Medicaid income threshold). Under paragraph (c)(2)(iv) of this section, H is treated as not eligible for Medicaid for 2015. Example 6.Mid-year Medicaid eligibility rede- termination. The facts are the same as inExample 5, except that H returns to the Exchange in July 2015 and the Exchange determines H is eligible for Med- icaid. The Exchange discontinues H’s advance credit payments effective August 1. Under paragraphs (c)(2)(iii)(B) and (c)(2)(iv) of this section, H is treated as not eligible for Medicaid for the coverage months when H is covered by a qualified health plan. H is eligible for government-sponsored minimum essential coverage for the coverage months after H is approved for Medicaid, August through December 2015. (3)Employer-sponsored minimum es- sential coverage—(i)In general.For purposes of section 36B, an employee who may enroll in an eligible em- ployer-sponsored plan (as defined in section 5000A(f)(2)) and an individual who may enroll in the plan because of a relationship to the employee (a related individual) are eligible for minimum essential coverage under the plan for any month only if the plan is affordable September 6, 20112182011–36 I.R.B. and provides minimum value. Govern- ment-sponsored programs described in section 5000A(f)(1)(A) are not eligible employer-sponsored plans. (ii)Plan year. For purposes of this paragraph (c)(3), a plan year is an eli- gible employer-sponsored plan’s regular 12-month coverage period (or the remain- der of a 12-month coverage period for a new employee or an individual who enrolls during a special enrollment period). (iii)Eligibility for coverage months during a plan year—(A)In general.An employee or related individual may be eligible for minimum essential coverage under an eligible employer-sponsored plan for a coverage month during a plan year if the employee or related individual could have enrolled in the plan for that month during an open or special enrollment pe- riod. (B)Example. The following example illustrates the provisions of this paragraph (c)(3)(iii). Example. (i) Taxpayer B is an employee of Em- ployer X. X offers its employees a health insurance plan that has a plan year (within the meaning of paragraph (c)(3)(ii) of this section) from October 1 through September 30. Employees may enroll during an open season from August 1 to September 15. B does not enroll in X’s plan for the plan year Octo- ber 1, 2014, to September 30, 2015. In November 2014 B enrolls in a qualified health plan through an Exchange for calendar year 2015. (ii) B could have enrolled in X’s plan during the August 1 to September 15 enrollment period. There- fore, unless X’s plan is not affordable for B or does not provide minimum value, B is eligible for mini- mum essential coverage for the months that B is en- rolled in the qualified health plan during X’s plan year (January through September 2015). (iv)Special rule for continuation cov- erage. An individual who may enroll in continuation coverage required under fed- eral law or a state law that provides compa- rable continuation coverage is eligible for minimum essential coverage only if the in- dividual enrolls in the coverage. (v)Affordable coverage—(A)In gen- eral—(1)Affordability. Except as pro- vided in paragraph (c)(3)(v)(A)(2)ofthis section, an eligible employer-sponsored plan is affordable for an employee or a re- lated individual if the portion of the annual premium the employee must pay, whether by salary reduction or otherwise (required contribution), for self-only coverage for the taxable year does not exceed the re- quired contribution percentage (as defined in paragraph (c)(3)(v)(B) of this section) of the applicable taxpayer’s household income for the taxable year. (2)Employee safe harbor.Anem- ployer-sponsored plan is treated as not af- fordable for an employee or a related in- dividual for a plan year if, when the em- ployee or a related individual enrolls in a qualified health plan for a period coincid- ing with the plan year (in whole or in part), an Exchange determines that the eligible employer-sponsored plan is not affordable. (B)Required contribution percentage. The required contribution percentage is 9.5 percent. The percentage may be adjusted in published guidance of general applica- bility, see §601.601(d)(2) of this chapter, for taxable years beginning after Decem- ber 31, 2014, to reflect rates of premium growth relative to growth in income and, for taxable years beginning after Decem- ber 31, 2018, to reflect rates of premium growth relative to growth in the consumer price index. (C)Examples. The following examples illustrate the provisions of this paragraph (c)(3)(v). Unless stated otherwise, in each example the taxpayer is single and has no dependents, the employer’s plan is an el- igible employer-sponsored plan and pro- vides minimum value, the employee is not eligible for other minimum essential cov- erage, and the taxpayer, related individual, and employer-sponsored plan have a cal- endar taxable year. Example 1.Basic determination of affordabil- ity. In 2014 Taxpayer C has household income of $47,000. C is an employee of Employer X, which offers its employees a health insurance plan that re- quires C to contribute $3,450 for self-only coverage for 2014 (7.3 percent of C’s household income). Be- cause C’s required contribution for self-only cover- age does not exceed 9.5 percent of household income, under paragraph (c)(3)(v)(A)(1) of this section, X’s plan is affordable for C, and C is eligible for mini- mum essential coverage for all months in 2014. Example 2.Basic determination of affordability for a related individual. The facts are the same as in Example 1,exceptthatCismarriedtoJandX’splan requires C to contribute $5,300 for coverage for C and J for 2014 (11.3 percent of C’s household income). Because C’s required contribution for self-only cov- erage ($3,450) does not exceed 9.5 percent of house- hold income, under paragraph (c)(3)(v)(A)(1)ofthis section, X’s plan is affordable for C and J, and C and J are eligible for minimum essential coverage for all months in 2014. Example 3.Determination of unaffordability at enrollment. (i) Taxpayer D is an employee of Em- ployer X. In November 2013 the Exchange in D’s rat- ing area projects that D’s 2014 household income will be $37,000. It also verifies that D’s required contribu- tion for self-only coverage under X’s health insurance plan will be $3,700 (10 percent of household income). Consequently, the Exchange determines that X’s plan is unaffordable. D enrolls in a qualified health plan and not in X’s plan. In December 2014, X pays D a $2,500 bonus. Thus, D’s actual 2014 household income is $39,500 and D’s required contribution for coverage under X’s plan is 9.4 percent of household income. (ii) Based on D’s actual 2014 household income, D’s required contribution does not exceed 9.5 percent of household income and X’s health plan is affordable for D. However, when D enrolled in a qualified health plan for 2014, the Exchange determined that X’s plan was not affordable for D for 2014. Consequently, under paragraph (c)(3)(v)(A)(2)ofthissection,X’s plan is treated as not affordable for D and D is treated as not eligible for minimum essential coverage for 2014. Example 4.Determination of unaffordability for plan year. The facts are the same as inExample 3, except that X’s employee health insurance plan year is September 1 to August 31. The Exchange in D’s rating area determines in August 2014 that X’s plan is unaffordable for D based on D’s projected household income for 2014. D enrolls in a qualified health plan as of September 1, 2014. Under paragraph (c)(3)(v)(A)(2) of this section, X’s plan is treated as not affordable for D and D is treated as not eligible for minimum essential coverage under X’s plan for the coverage months September to December 2014 and January through August 2015. Example 5.Determination of unaffordability for part of plan year. (i) Taxpayer E is an employee of Employer X beginning in May 2015. X’s employee health insurance plan year is September 1 to August 31. E’s required contribution for self-only coverage for May through August is $150 per month ($1,800 for the full plan year). The Exchange in E’s rating area determines E’s household income for purposes of eligibility for advance credit payments as $18,000. E’s actual household income for the 2015 taxable year is $20,000. (ii) Whether coverage under X’s plan is afford- able for E is determined for the remainder of X’s plan year (May through August). E’s required con- tribution for a full plan year ($1,800) exceeds 9.5 percent of E’s household income (1,800/18,000 = 10 percent). Therefore, the Exchange determines that X’s coverage is unaffordable for May through August. Although E’s actual household income for 2015 is $20,000 (and E’s required contribution of $1,800 does not exceed 9.5 percent of E’s household income), under paragraph (c)(3)(v)(A)(2)ofthis section, X’s plan is treated as unaffordable for E for the part of the plan year May through August 2015. Consequently, E is not eligible for minimum essential coverage underX’s plan for the period May through August 2015. Example 6.Affordability determined for part of a taxable year (part-year period) .(i)TaxpayerFis an employee of Employer X. X’s employee health in- surance plan year is September 1 to August 31. F’s required contribution for self-only coverage for the period September 2014 through August 2015 is $150 per month or $1,800 for the plan year. F does not ask the Exchange in his rating area to determine whether X’s coverage is affordable for F. F does not enroll in X’s plan during X’s open season but enrolls in a 2011–36 I.R.B.219September 6, 2011 qualified health plan for September through Decem- ber 2014. F’s household income in 2014 is $18,000. (ii) Because F is a calendar year taxpayer and Em- ployer X’s plan is not a calendar year plan, F must de- termine the affordability of X’s coverage for the part- year period in 2014 (September-December). F deter- mines the affordability of X’s plan for the Septem- ber through December 2014 period by comparing the annual premiums ($1,800) to F’s 2014 household in- come. F’s required contribution of $1,800 is 10 per- cent of F’s 2014 household income. Because F’s re- quired contribution exceeds 9.5 percent of F’s 2014 household income, X’s plan is not affordable for F for the part-year period September through Decem- ber 2014 and F is not eligible for minimum essential coverage under X’s plan for that period. (iii) F enrolls in Exchange coverage for 2015 and does not ask the Exchange to determine whether X’s coverage is affordable. F’s 2015 household income is $20,000. (iv) F must determine if X’s plan is affordable for the part-year period January 2015 through Au- gust 2015. F’s annual required contribution ($1,800) is 9 percent of F’s 2015 household income. Because F’s required contribution does not exceed 9.5 percent of F’s 2015 household income, X’s plan is affordable for F for the part-year period January through August 2015 and F is eligible for minimum essential cover- age for that period. Example 7.Coverage unaffordable at year end. TaxpayerGisemployedbyEmployerX.InNovem- ber 2014 the Exchange in G’s rating area determines that G is eligible for affordable employer-sponsored coverage for 2015. G nonetheless enrolls in a quali- fied health plan for 2015 but does not receive advance credit payments. G’s 2015 household income is less than expected and G’s required contribution for em- ployer-sponsored coverage for 2015 exceeds 9.5 per- cent of G’s actual 2015 household income. Under paragraph (c)(3)(v)(A)(1) of this section, G is not eli- gible for minimum essential coverage for 2015 and, if otherwise eligible, G may claim a premium tax credit. (vi)Minimum value. An eligible em- ployer-sponsored plan provides minimum value only if the plan’s share of the total allowed costs of benefits provided under the plan (as determined under regulations issued by the Secretary of Health and Hu- man Services under section 1302(d)(2) of the Affordable Care Act (42 U.S.C. 18022(d)(2))) is at least 60 percent. (vii)Enrollment in eligible employer- sponsored plan—(A)In general.There- quirements of affordability and minimum value do not apply if an individual enrolls in an eligible employer-sponsored plan. (B)Example. The following example illustrates the provisions of this paragraph (c)(3)(vii). Example. Taxpayer H is employed by Employer X in 2014. H’s required contribution for employer coverage exceeds 9.5 percent of H’s 2014 household income. H enrolls in X’s plan for 2014. Under paragraph (c)(3)(vii) of this section, H is eligible for minimum essential coverage for 2014 because H is enrolled in an eligible employer-sponsored plan for 2014. §1.36B–3 Computing the premium assistance credit amount. (a)In general. A taxpayer’s premium assistance credit amount for a taxable year is the sum of the premium assistance amounts determined under paragraph (d) of this section for all coverage months for individuals in the taxpayer’s family. (b)Definitions. For purposes of this section— (1) The cost of a qualified health plan is the premium the plan charges; and (2) The termcoverage familyrefers to members of the taxpayer’s family who are not eligible for minimum essential cover- age (other than coverage in the individ- ual market), are lawfully present in the United States, and are not incarcerated (ex- cept pending disposition of charges). (c)Coverage month—(1)In general.A month is a coverage month for an individ- ual if, as of the first day of the month— (i) The individual is covered by a quali- fied health plan enrolled in through an Ex- change; (ii) The individual’s premiums for cov- erage under the plan are paid by the tax- payer or by an advance credit payment; and (iii) The individual is not eligible for minimum essential coverage (within the meaning of §1.36B–2(c)) other than cov- erage described in section 5000A(f)(1)(C) (relating to coverage in the individual mar- ket). (2)Premiums paid for the taxpayer. Premiums another person pays for cov- erage of the taxpayer, taxpayer’s spouse, or dependent are treated as paid by the taxpayer. (3)Examples. The following exam- ples illustrate the provisions of this para- graph (c). In each example, unless stated otherwise, the individuals are not eligible for minimum essential coverage other than coverage in the individual market and the taxpayer is an applicable taxpayer. Example 1. (i) Taxpayer M is single with no de- pendents. In December 2013 M enrolls in a qualified health plan for 2014 and the Exchange approves ad- vance credit payments. On May 15, 2014, M enlists in the U.S. Army and is eligible immediately for gov- ernment-sponsored minimum essential coverage. (ii) Under paragraph (c)(1) of this section, Jan- uary through May 2014 are coverage months for M. June through December 2014 are not coverage months because M is eligible for minimum essential coverage for those months. Thus, under paragraph (a) of this section, M’s premium assistance credit amount for 2014 is the sum of the premium assistance amounts for the months January through May. Example 2. (i) Taxpayer N has one dependent, S. S is eligible for government-sponsored minimum essential coverage. N is not eligible for minimum es- sential coverage. N enrolls in a qualified health plan for 2014 and the Exchange approves advance credit payments. On August 1, 2014, S loses eligibility for minimum essential coverage. N cancels the quali- fied health plan that covers only N and enrolls in a qualified health plan that covers N and S for August through December 2014. (ii) Under paragraph (c)(1) of this section, Jan- uary through December of 2014 are coverage months for N and August through December are coverage months for N and S. N’s premium assistance credit amount for 2014 is the sum of the premium assistance amounts for these coverage months. Example 3. (i) O and P are the divorced parents of T. Under the divorce agreement between O and P, T resides with P and P claims T as a dependent. However, O must pay premiums for health insurance for T. P enrolls T in a qualified health plan for 2014. O pays the premiums to the insurance company. (ii) Because P claims T as a dependent, P (and not O) may claim a premium tax credit for coverage for T. See §1.36B–2(a). Under paragraph (c)(2) of this section, the premiums that O pays for coverage for T are treated as paid by P. Thus, the months when T is covered by a qualified health plan are coverage months under paragraph (c)(1) of this section in com- puting P’s premium tax credit under paragraph (a) of this section. (d)Premium assistance amount.The premium assistance amount for a coverage month is the lesser of— (1) The premiums for the month for one or more qualified health plans in which a taxpayer or a member of the taxpayer’s family enrolls; or (2) The excess of the adjusted monthly premium for the applicable benchmark plan over 1 /12of the product of a taxpayer’s household income and the applicable per- centage for the taxable year. (e)Adjusted monthly premium.The adjusted monthly premium is the premium an insurer would charge for the applicable benchmark plan to cover all members of the taxpayer’s coverage family, adjusted only for the age of each member of the coverage family as allowed under section 2701 of the Public Health Service Act (42 U.S.C. 300gg). (f)Applicable benchmark plan—(1)In general. Except as otherwise provided in this paragraph (f), the applicable bench- mark plan for a coverage month is the sec- ond lowest cost silver plan (as described in section 1302(d)(1)(B) of the Afford- September 6, 20112202011–36 I.R.B. able Care Act (42 U.S.C. 18022(d)(1)(B))) offered at the time a taxpayer or family member enrolls in a qualified health plan through the Exchange in the rating area where the taxpayer resides for— (i) Self-only coverage for a taxpayer— (A) Who computes tax under section 1(c) (unmarried individuals other than sur- viving spouses and heads of household) and is not allowed a deduction under sec- tion 151 for a dependent for the taxable year; (B) Who purchases only self-only cov- erage for one individual; or (C) Whose coverage family includes only one individual; and (ii) Family coverage for all other tax- payers. (2)Family coverage. If an Exchange offers categories of family coverage (for example, two adults, one adult with chil- dren, two or more adults with children, or children only), the applicable benchmark plan for family coverage is the coverage category that applies to the members of the taxpayer’s coverage family who enroll in a qualified health plan (such as a plan cover- ing two adults if the members of taxpayer’s coverage family are two adults). (3)Second lowest cost silver plan not covering the taxpayer’s family.Iftheap- plicable benchmark plan determined under paragraphs (f)(1) and (f)(2) of this section does not cover all members of a taxpayer’s coverage family (for example, because family members reside in different rating areas), the premium for the applicable benchmark plan is the sum of the premi- ums for the applicable benchmark plans determined under paragraphs (f)(1) and (f)(2) of this section that cover the compo- nents of the taxpayer’s coverage family. (4)Benchmark plan terminates or closes to enrollment. A qualified health plan that is the applicable benchmark plan under this paragraph (f) for a taxpayer does not cease to be the applicable bench- mark plan solely because the plan or a lower cost plan terminates or closes to enrollment during the taxable year. (5)Examples. The following examples illustrate the rules of this paragraph (f). In each example, unless otherwise stated, the taxpayer is eligible to receive a premium tax credit. Example 1.Single taxpayer with no dependents. Taxpayer V is single and resides with his 24-year old daughter but may not claim her as a dependent. Tax- payer V purchases family coverage for himself and his daughter. The exchange in V’s rating area offers only self-only and family coverage categories. Un- der paragraph (f)(1)(i)(A) of this section, V’s appli- cable benchmark plan is the second lowest cost silver self-only plan. But see paragraph (h) of this section for computing the credit when multiple taxpayers are covered by one qualified health plan. Example 2.Single taxpayer with one dependent, two coverage categories. The facts are the same as in Example 1, except that V also resides with his teenage son and claims him as a dependent. V purchases fam- ily coverage for himself, his son, and his daughter. Under paragraph (f)(1)(ii) of this section, V’s appli- cable benchmark plan is the second lowest cost silver family plan. Example 3.Single taxpayer with one dependent, multiple coverage categories. The facts are the same as inExample 2, except that the Exchange where V resides offers a category of coverage for one adult and children. Under paragraphs (f)(1)(ii) and (f)(2) of this section, V’s applicable benchmark plan is the second lowest cost silver plan for one adult plus children. Example 4.Single taxpayer with one dependent, multiple coverage categories. The facts are the same as inExample 2, except that the Exchange where V resides offers a category of coverage for one adult and one child in addition to coverage for one adult and children. Under paragraphs (f)(1)(ii) and (f)(2) of this section, V’s applicable benchmark plan is the second lowest cost silver plan for one adult and one child. Example 5.Applicable benchmark plan unre- lated to coverage purchased. Taxpayers W and X, who are married, reside with X’s two teenage daugh- ters, whom they claim as dependents. The Exchange where W and X reside offers a category of cover- age for one adult plus children. W and X purchase self-only coverage for W and one adult plus chil- dren coverage for X and X’s daughters. Under para- graph (f)(1)(ii) of this section, W’s and X’s applicable benchmark plan is the second lowest cost silver fam- ily plan. Example 6.Minimum essential coverage for some coverage months. Taxpayer Y claims his daughter as a dependent. Y and his daughter enroll in a quali- fied health plan for 2014. The exchange in Y’s rating area offers only self-only and family coverage cate- gories. Y, but not his daughter, is eligible for gov- ernment-sponsored minimum essential coverage for September to December 2014. Thus, under paragraph (c)(1)(iii) of this section, January through December are coverage months for Y’s daughter and January through August are coverage months for Y. Because, under paragraphs (d) and (f)(1) of this section, the premium assistance amount for a coverage month is computed based on the applicable benchmark plan for that coverage month, Y’s applicable benchmark plan for January through August is the second low- est cost silver family plan under paragraph (f)(1)(ii) of this section. Under paragraph (f)(1)(i)(C) of this section, Y’s applicable benchmark plan for Septem- ber through December is the second lowest cost silver self-only plan. Example 7.Family member eligible for minimum essential coverage for the taxable year. The facts are thesameasinExample 6, except that Y is not eli- gible for government-sponsored minimum essential coverage for any months and Y’s daughter is eligible for government-sponsored minimum essential cover- age for the entire year. Under paragraph (f)(1)(i)(C) of this section, Y’s applicable benchmark plan is the second lowest cost silver self-only plan. Example 8.Family required to buy multiple plans to obtain coverage. (i) Taxpayers X and Z are mar- ried and live in different Exchange rating areas. X and Z have one child, M, whom they claim as a de- pendent and who resides with X. X and M enroll in a qualified health plan covering one adult plus chil- dren through the ExchangeinX’sratingarea,andZ enrolls in a qualified health plan providing self-only coverage through the Exchange in Z’s rating area. (ii) Under paragraph (f)(3) of this section, the pre- mium for the applicable benchmark plan for comput- ing X’s and Z’s premium assistance credit amount is the sum of the premium for the second lowest cost silver one adult plus children plan offered through the Exchange in X’s rating area and the premium for the second lowest cost silver self-only plan offered through the Exchange in Z’s rating area. Example 9.Benchmark plan closes to new en- rollees during the year. Taxpayers X, Y, and Z each have coverage families consisting of two adults. In the rating area where X, Y, and Z reside, Plan 2 is the second lowest cost silver plan and Plan 3 is the third lowest cost silver plan covering two adults of- fered through the Exchange. The X and Y families each enroll in a qualified health plan that is not the applicable benchmark plan in November during the regular open enrollment period. Plan 2 closes to new enrollees the following June. Thus, on July 1, Plan 3 is the second lowest cost silver plan available to new enrollees through the Exchange. The Z family enrolls in a qualified health plan in July. Under paragraphs (f)(1), (f)(2), and (f)(4) of this section, the applicable benchmark plan is Plan 2 for X and Y for all coverage months during the year. The applicable benchmark plan for Z is Plan 3, because Plan 2 is not offered through the Exchange when the Z family enrolls. Example 10.Benchmark plan terminates for all enrollees during the year. The facts are the same as inExample 9, except that Plan 2 terminates for all enrollees on June 30. Under paragraphs (f)(1), (f)(2), and (f)(4) of this section, Plan 2 is the appli- cable benchmark plan for X and Y for all coverage months during the year and Plan 3 is the applicable benchmark plan for Z. (g)Applicable percentage—(1)In gen- eral. The applicable percentage multiplied by a taxpayer’s household income de- termines the taxpayer’s required share of premiums for the benchmark plan. This amount is subtracted from the ad- justed monthly premium for the applicable benchmark plan when computing the pre- mium assistance amount. The applicable percentage is computed by first deter- mining the percentage that the taxpayer’s household income bears to the federal poverty line for the taxpayer’s family size. The resulting federal poverty line per- centage is then compared to the income categories describedin the table in para- graph (g)(2) of this section (or successor tables). An applicable percentage within 2011–36 I.R.B.221September 6, 2011 an income category increases on a sliding scale in a linear manner and is rounded to the nearest one-hundredth of one percent. The applicable percentages in the table may be adjusted in published guidance of general applicability, see §601.601(d)(2) of this chapter, for taxable years beginning after December 31, 2014, to reflect rates of premium growth relative to growth in income and, for taxable years beginning after December 31, 2018, to reflect rates of premium growth relative to growth in the consumer price index. (2)Applicable percentage table. Household income percentage of federal poverty line Initial percentageFinal percentage Less than 133%2.0%2.0% At least 133% but less than 150% 3.0%4.0% At least 150% but less than 200% 4.0%6.3% At least 200% but less than 250% 6.3% 8.05% At least 250% but less than 300%8.05%9.5% At least 300% but less than 400% 9.5%9.5% (3)Examples. The following examples illustrate the rules of this paragraph (g). Exam ple 1. A’s household income is 275 per- cent of the federal poverty line for A’s family size for that taxable year. In the table in paragraph (g)(2) of this section, the initial percentage for a taxpayer with household income of 250 to 300 percent of the federal poverty line is 8.05 and the final percentage is 9.5. A’s federal poverty line percentage of 275 percent is halfway between 250 percent and 300 percent. Thus, rounded to the nearest one-hundredth of one percent, A’s applicable percentage is 8.78, which is halfway between the initial percentage of 8.05 and the final percentage of 9.5. Ex ample 2. (i) B’s household income is 210 per- cent of the federal poverty line for B’s family size. In the table in paragraph (g)(2) of this section, the initial pe rcentage for a taxpayer with household income of 200 to 250 percent of the federal poverty line is 6.3 and the final percentage is 8.05. B’s applicable per- c entage is 6.65, computed as follows. (ii) Determine the excess of B’s FPL percentage (210) over the initial household income percentage i n B’s range (200), which is 10. Determine the dif- ference between the initial household income per- centage in the taxpayer’s range (200) and the ending h ousehold income percentage in the taxpayer’s range (250), which is 50. Divide the first amount by the second amount: 210-200=10 250 - 200 = 50 10/50 = .20. (iii) Compute the difference between the initial premium percentage (6.3) and the second premium percentage (8.05) in the taxpayer’s range; 8.05 - 6.3 = 1.75. (iv) Multiply the amount in the first calculation (.20) by the amount in the second calculation (1.75) and add the product (.35) to the initial premium per- centage in B’s range (6.3), resulting in B’s applicable percentage of 6.65: .20 X 1.75 = .35 6.3 + .35 = 6.65. (h)Plan covering more than one fam- ily—(1)In general. If a single qualified health plan covers more than one fam- ily, each applicable taxpayer covered by the plan may claim a premium tax credit, if otherwise allowable. Each taxpayer computes the credit using that taxpayer’s applicable percentage, household income, and the benchmark plan that applies to the taxpayer under paragraph (f) of this sec- tion. In determining whether the amount computed under paragraph (d)(1) of this section (the premiums for the qualified health plan in which the taxpayer enrolls) is less than the amount computed under paragraph (d)(2) of this section (the bench- mark plan premium minus the product of household income and the applicable percentage), the premiums paid are allo- cated to each taxpayer in proportion to the premiums for each taxpayer’s benchmark plan. (2)Example. The following example illustrates the rules of this paragraph (h). E xample. (i) Taxpayers A and B enroll in a sin- gle qualified health plan. B is A’s 25-year old child who is not A’s dependent. B has no dependents. The p lancoversA,B,andA’stwochildrenwhoareA’s dependents. The premium for the plan in which A and B enroll is $15,000. The premium for the second lowest cost silver family plan is $12,000 and the pre- mium for the second lowest cost silver self-only plan is $6,000. A and B are applicable taxpayers and oth- erwise eligible to claim the premium tax credit. (ii) Under paragraph (h)(1) of this section, both A and B may claim premium tax credits. A computes her credit using her household income, a family size of three, and a benchmark plan premium of $12,000. B computes his credit using his household income, a family size of one, and a benchmark plan premium of $6,000. (iii) In determining whether the amount in para- graph (d)(1) of this section (the premiums for the qualified health plan A and B purchase) is less than the amount in paragraph (d)(2) of this section (the benchmark plan premium minus the product of household income and the applicable percent- age), the $15,000 premiums paid are allocated to A and B in proportion to the premiums for their applicable benchmark plans. Thus, the portion of the premium allocated to A is $10,000 ($15,000 x $12,000/$18,000) and the portion allocated to B is $5,000 ($15,000 x $6,000/$18,000). (i) [Reserved] (j)Additional benefits—(1)In general. If a qualified health plan offers benefits in addition to the essential health benefits a qualified health plan must provide under section 1302 of the Affordable Care Act (42 U.S.C. 18022), or a State requires a qualified health plan to cover benefits in addition to these essential health benefits, the portion of the premium for the plan properly allocable tothe additional bene- fits is excluded from the monthly premi- ums under paragraph (d)(1) or (d)(2) of this section. (2)Method of allocation.Thepor- tion of the premium properly allocable to additional benefits is determined un- der regulations issued by the Secretary of Health and Human Services. See section 36B(b)(3)(D). (k)Pediatric dental coverage—(1)In general. For purposes of determining the amount of the monthly premium a tax- payer pays for coverage under paragraph (d)(1) of this section, if an individual en- rolls in both a qualified health plan and a plan described in section 1311(d)(2)(B)(ii) of the Affordable Care Act (42 U.S.C. 13031(d)(2)(B)(ii)) (Affordable Care Act dental plan), the portion of the premium for the Affordable Care Act dental plan that is properly allocable to pediatric den- tal benefits that are essential benefits re- quired to be provided by a qualified health plan is treated as a premium payable for the individual’s qualified health plan. (2)Method of allocation.[Reserved] (l)Families including individuals not lawfully present—(1)In general. If one or more individuals for whom a taxpayer is allowed a deduction under section 151 are not lawfully present (within the meaning September 6, 20112222011–36 I.R.B. of §1.36B–1(g)), the percentage a tax- payer’s household income bears to the federal poverty line for the taxpayer’s family size for purposes of determining the applicable percentage under paragraph (g) of this section is determined by ex- cluding individuals who are not lawfully present from family size and by determin- ing household income in accordance with paragraph (l)(2) of this section. (2)Revised household income com- putation—(i)Statutory method. For pur- poses of paragraph (l)(1) of this section, household income is equal to the product of the taxpayer’s household income (de- termined without regard to this paragraph (l)(2)) and a fraction— (A)Thenumeratorofwhichisthefed- eral poverty line for the taxpayer’s family size determined by excluding individuals who are not lawfully present; and (B) The denominator of which is the federal poverty line for the taxpayer’s fam- ily size determined by including individu- als who are not lawfully present. (ii)Comparable method.[Reserved] §1.36B–4 Reconciling the premium tax credit with advance credit payments. (a)Reconciliation—(1)In general.The amount of credit allowed under section 36B and this section is reconciled with ad- vance credit payments on a taxpayer’s in- come tax return for a taxable year. A tax- payer whose premium tax credit for the taxable year exceeds the taxpayer’s ad- vance credit payments may receive the ex- cess as an income tax refund. A tax- payer whose advance credit payments for the taxable year exceed the taxpayer’s pre- mium tax credit owes the excess as an ad- ditional income tax liability. (2)Credit computation.Thepremium assistance credit amount is computed on the taxpayer’s return using the taxpayer’s household income and family size for the taxable year. Thus, the taxpayer’s contri- bution amount (household income for the taxable year times the applicable percent- age) is determined using the taxpayer’s household income and family size at the end of the taxable year. If the applicable benchmark plan changes during the tax- able year, the taxpayer may be required to use a different applicable benchmark plan to determine the premium assistance amounts for the coverage months. (3)Limitation on additional tax—(i)In general. The additional tax imposed un- der paragraph (a)(1) of this section on a taxpayer whose household income is less than 400 percent of the federal poverty line islimitedtotheamountsprovidedinthe table in paragraph (a)(3)(ii) of this section (or successor tables). For taxable years be- ginning after December 31, 2014, the lim- itation amounts may be adjusted in pub- lished guidance of general applicability, see §601.601(d)(2) of this chapter, to re- flect changes in the consumer price index. (ii)Additional tax limitation table. Household income percentage of federal poverty line Limitation amount for taxpayers whose tax is determined under section 1(c) Limitation amount for all other taxpayers Less than 200% $ 300$ 600 At least 200% but less than 300% $ 750$1,500 At least 300% but less than 400% $1,250$2,500 (4 )Examples. Therulesofthispara- gr aph (a) are illustrated by the following ex amples. Unless otherwise stated, in each ex ample the taxpayer is allowed a pre- mi um tax credit, has a calendar taxable y ear, and files an income tax return for the t axable year. Example 1.Household income increases.(i)Tax- payer A is single and has no dependents. The Ex- c hange in A’s rating area projects A’s 2014 house- hold income to be $27,225 (250 percent of the federal poverty line for a family of one, applicable percent- a ge 8.05). A enrolls in a qualified health plan. The annual premium for the applicable benchmark plan is $5,200. A’s advance credit payments are $3,008 (benchmark plan premium of $5,200 less contribu- tion amount of $2,192 (projected household income of $27,225 x .0805) = $3,008). (ii) A’s household income for 2014 is $32,800, which is 301 percent of the federal poverty line for a family of one (applicable percentage 9.5). Conse- quently, A’s premium tax credit for 2014 is $2,084 (benchmark plan premium of $5,200 less contribu- tion amount of $3,116 (household income of $32,800 x .095)). Because A’s advance credit payments for 2014 are $3,008 and A’s 2014 credit is $2,084, A has excess advance payments of $924. Under paragraph (a)(1) of this section, A’s tax liability for 2014 is in- creased by $924. Ex ample 2.Household income decreases.The factsarethesameasinExample 1, except that A’s actual household income for 2014 is $21,780 (2 00 percent of the federal poverty line for a family of one, applicable percentage 6.3). Consequently, A’s premium tax credit for 2014 is $3,828 ($5,200 b enchmark plan premium less contribution amount of $1,372 (household income of $21,780 x .063)). Because A’s advance credit payments for 2014 are $ 3,008, A is allowed an additional credit of $820 ($3,828 less $3,008). Example 3.Family size decreases. (i) Taxpay- e rs B and C are married and have two children (ages 17 and 20) whom they claim as their dependents in 2013. The Exchange in their rating area projects their 2014 household income to be $61,460 (275 percent of the federal poverty line for a family of four, appli- cable percentage 8.78). B and C enroll in a qualified health plan for 2014 that covers the four family mem- bers. The annual premium for the applicable bench- mark plan is $14,100. B and C’s advance credit pay- ments for 2014 are $8,704 (benchmark plan premium of $14,100 less contribution amount of $5,396 (pro- jected household income of $61,460 x .0878)). (ii) In 2014 B and C do not claim their 20-year old child as their dependent. Consequently, B and C’s family size for 2014 is three and their house- hold income is 332 percent of the federal poverty line for a family of three (applicable percentage 9.5). Their premium tax credit for 2014 is $8,261 ($14,100 be nchmark plan premium less $5,839 contribution amount (household income of $61,460 x .095)). Be- cause B and C’s advance credit payments for 2014 ar e $8,704 and their 2014 credit is $8,261, B and C have excess advance payments of $443. Under para- graph (a)(1) of this section, B and C’s tax liability f or 2014 is increased by $443. Because B and C’s household income is below 400 percent of the federal poverty line, if B and C’s excess advance payments e xceeded $2,500, under the limitation of paragraph (a)(3) of this section, B and C’s additional tax liabil- ity would be limited to that amount. E xample 4.Repayment limitation does not apply. (i) Taxpayer D is single and has no dependents. The Exchange in D’s rating area approves advance credit payments for D based on 2014 household income of $38,115 (350 percent of the federal poverty line for a family of one, applicable percentage 9.5). D enrolls in a qualified health plan. The annual pre- mium for the applicable benchmark plan is $5,200. D’s advance credit payments are $1,579 (benchmark plan premium of $5,200 less contribution amount of $3,621 (projected household income of $38,115 x .095) = $3,621). (ii) D’s actual household income for 2014 is $43,778, which is 402 percent of the federal poverty line for a family of one. D is not an applicable taxpayer and may not claim a premium tax credit. Additionally, the repayment limitation of paragraph (a)(3) of this section does not apply. Consequently, 2011–36 I.R.B.223September 6, 2011 D has excess advance payments of $1,579 (the total amount of the advance credit payments in 2014). Un- der paragraph (a)(1) of this section, D’s tax liability for 2014 is increased by $1,579. Example 5.Coverage for less than a full taxable year. (i) Taxpayer F is single and has no dependents. In November 2013 the Exchange in F’s rating area projects F’s 2014 household income to be $27,225 (250 percent of the federal poverty line for a family of one, applicable percentage 8.05). F enrolls in a qualified health plan. The annual premium for the ap- plicable benchmark plan is $5,200. F’s monthly ad- vance credit payment is $251 (benchmark plan pre- mium of $5,200 less contribution amount of $2,192 (projected household income of $27,225 x .0805) = $3,008; $3,008/12 = $251). (ii) F begins a new job in August 2014 and is eligible for employer-sponsored minimum essential coverage for the period September through Decem- ber 2014. F discontinues her Exchange coverage ef- fective November 1, 2014. F’s household income for 2014 is $28,000 (257 percent of the federal poverty line for a family size of one, applicable percentage 8.25). (iii) Under §1.36B–3(a), F’s premium assistance credit amount is the sum of the premium assis- tance amounts for the coverage months. Under §1.36B–3(c)(1)(iii), a month in which an individual is eligible for minimum essential coverage other than coverage in the individual market is not a coverage month. Because F is eligible for employer-sponsored minimum essential coverage as of September 1, only the months January through August of 2014 are coverage months. (iv) If F had 12 coverage months in 2014, F’s premium tax credit would be $2,890 (benchmark plan premium of $5,200 less contribution amount of $2,310 (household income of $28,000 x .0825)). Because F has only eight coverage months in 2014, F’s credit is $1,927 ($2,890/12 x 8). Because F does not discontinue her Exchange coverage until Novem- ber 1, 2014, F’s advance credit payments for 2014 are $2,510 ($251 x 10). Consequently, F has excess advance payments of $583 ($2,510 less $1,927) and F’s tax liability for 2014 is increased by $583 under paragraph (a)(1) of this section. Example 6.Changes in coverage months and ap- plicable benchmark plan. (i) Taxpayer E claims one dependent, F. E is eligible for government-sponsored minimum essential coverage. E enrolls F in a quali- fied health plan for 2014. The Exchange in E’s rat- ing area projects E’s 2014 household income to be $29,420 (200 percent of the federal poverty line for a family of two, applicable percentage 6.3). The an- nual premium for E’s applicable benchmark plan is $5,200. E’s monthly advance credit payment is $279 (benchmark plan premium of $5,200 less contribu- tion amount of $1,853 (projected household income of $29,420 x .063) = $3,347; $3,347/12 = $279). (ii) On August 1, 2014, E loses her eligibility for government-sponsored minimum essential coverage. E cancels the qualified health plan that covers F and enrolls in a qualified health plan that covers E and F for August through December 2014. The annual pre- mium for the applicable benchmark plan is $10,000. The Exchange computes E’s monthly advance credit payments for the period August through December as $679 (benchmark plan premium of $10,000 less contribution amount of $1,853 (projected household income of $29,420 x .063) = $8,147; $8,147/12 = $679). E’s household income for 2014 is $28,000 (190 percent of the federal poverty line, applicable percentage 5.84). (iii) Under §1.36B–3(c)(1), January through July of 2014 are coverage months for F and August through December are coverage months for E and F. Under paragraph (a)(2) of this section, E must compute her premium tax credit using the premium for the applicable benchmark plan for each coverage month. E’s premium assistance credit amount for 2014 is the sum of the premium assistance amounts for all coverage months. E reconciles her premium tax credit with advance credit payments as follows: Advance credit payments (Jan. to July) $ 1,953 Advance credit payments (Aug. to Dec.) 3 ,395 Total advance credit payments5,348 Benchmarkplanpremium(Jan. toJuly)3,033 Benchmark plan premium (Aug. to Dec.)4 ,167 Total benchmark plan premium7,200 Contribution amount (taxable year household income X applicable percentage)1,635 Credit (total benchmark plan premium less required contribution, assuming not more than premium paid) 5,565 (iv) E’s advance credit payments for 2014 are $5,348. E’s premium tax credit is $5,565. Thus, E is allowed an additional credit of $217. Example 7.Part-year coverage and changes in coverage months and applicable benchmark plan. (i) The facts are the same as inExample 7, except that both E and F are eligible for government-sponsored minimum essential coverage for January and February 2014, and E enrolls F in a qualified health plan beginning in March 2014. (ii) E reconciles her premium tax credit with ad- vance credit payments as follows: Advance credit payments (March to July) $ 1,395 Advance credit payments (Aug. to Dec.) 3 ,395 Total advance credit payments4,790 Benchmark plan premium (March to July)2,167 Benchmark plan premium (Aug. to Dec.)4 ,166 Total benchmark plan premium6,333 Contribution amount for 10 coverage months (taxable year household income X applicable percentage X 10/12)1,363 Credit (total benchmark plan premium less required contribution, assuming not more than premium paid)4,970 (iii) E’s advance credit payments for 2014 are $4,790. E’s premium tax credit is $4,970. Thus, E is allowed an additional credit of $180. (b)Changes in filing status—(1)In general. A taxpayer whose marital status changes during the taxable year computes the premium tax credit by using the ap- plicable benchmark plan or plans for the taxpayer’smaritalstatusasofthefirstday of each coverage month. The taxpayer’s contribution amount (household income for the taxable year times the applicable percentage) is determined using the tax- payer’s household income and family size at the end of the taxable year. September 6, 20112242011–36 I.R.B. (2)Taxpayers not married to each other at the end of the taxable year.Taxpayers who are married (within the meaning of section 7703) to each other during a tax- able year but are not married to each other on the last day of the taxable year, and who are enrolled in the same qualified health plan at any time during the taxable year, must allocate the premium for the applica- ble benchmark plan, the premium for the plan in which the taxpayers enroll, and the advance credit payments for the period the taxpayers are married during the taxable year. The taxpayers may allocate these items to each former spouse in any propor- tion but must allocate all items in the same proportion. If the taxpayers cannot agree on an allocation, 50 percent of the pre- mium for the applicable benchmark plan, the premiums for the plan in which the tax- payers enroll, and the advance credit pay- ments for the period are allocated to each taxpayer. If a plan covers only one of these taxpayers for any period during a taxable year, the amounts for that period are allo- cated entirely to that taxpayer. (3)Married taxpayers filing separate tax returns. The premium tax credit is al- lowed to married taxpayers only if they file joint returns. See §1.36B–2(b)(2). Mar- ried taxpayers who receive advance credit payments and file their income tax returns as married filing separately have received excess advance payments. The taxpayers must allocate the advance credit payments to each taxpayer equally for purposes of determining their excess advance payment amounts under paragraph (a)(1) of this sec- tion. The repayment limitation described in paragraph (a)(3) of this section applies to each taxpayer based on the household income and family size reported on that taxpayer’s return. (4)Examples. The following examples illustrate the provisions of this paragraph (b). In each example, unless otherwise indicated, each taxpayer uses a calendar taxable year and no individuals are eligible for minimum essential coverage other than coverage in the individual market. Example 1.Taxpayers marry during the taxable year. (i) P is a single taxpayer with no dependents. In 2013 the Exchange in the rating area where P resides determines that P’s 2014 household income will be $40,000 (367 percent of the federal poverty line, applicable percentage 9.5). P enrolls in a qual- ified health plan. The premium for the applicable benchmark plan is $5,200. The Exchange approves advance credit payments of $117 per month, com- puted as follows: $5,200 benchmark plan premium minus contribution amount of $3,800 ($40,000 x .095) equals $1,400 (total advance credit); $1,400/12 = $117. (ii) Q is a single taxpayer with two dependents. In 2013 the Exchange in the rating area where Q resides determines that Q’s 2014 household income will be $35,000 (189 percent of the federal poverty line, applicable percentage 5.79). Q enrolls in a qualified health plan. The premium for the appli- cable benchmark plan is $14,100. The Exchange approves advance credit payments of $1,006 per month, computed as follows: $14,100 benchmark plan premium minus contribution amount of $2,027 ($35,000 x .0579) equals $12,073 (total advance credit); $12,073/12 = $1,006. (iii) P and Q marry on June 17, 2014, and en- roll in one qualified health plan covering four fam- ily members, beginning July 1, 2014. The premium for the applicable benchmark plan is $14,100. Based on household income of $75,000 and a family size of four (336 percent of the federal poverty line, applica- ble percentage 9.5), the Exchange approves advance credit payments of $581 per month, computed as fol- lows: $14,100 benchmark plan premium minus con- tribution amount of $7,125 ($75,000 x .095) equals $6,975 (total advance credit); $6,975/12 = $581. (iv) P and Q file a joint return for 2014 and re- port $75,000 in household income and a family size of four. Under paragraph (b)(1) of this section, P and Q compute their credit at reconciliation using the pre- miums for the applicable benchmark plans that apply for the months married and the months not married, and their contribution amount based on their federal poverty line percentage at the end of the taxable year. P and Q reconcile their premium tax credit with ad- vance credit payments as follows: Advance payments for P (Jan. to June) $700 Advance payments for Q (Jan. to June)6,036 Advance payments for P and Q (July to Dec.)3 ,486 Total advance payments10,222 Benchmark plan premium for P (Jan. to June)2,600 Benchmark plan premium for Q (Jan. to June)7,050 Benchmark plan premium for P and Q (July to Dec.) 7 ,050 Total benchmark plan premium16,700 Contribution amount (taxable year household income X applicable percentage) 7,125 Credit (total benchmark plan premium less required contribution, assuming not more than premium paid)9,575 Additional tax647 (v) P’s and Q’s tax liability for 2014 is increased by $647 under paragraph (a)(1) of this section. Example 2.Taxpayers divorce during the taxable year, 50 percent allocation. (i) Taxpayers R and S are married and have two dependents. In 2013 the Exchange in the rating area where the family resides determines that their 2014 household income will be $76,000 (340 percent of the federal poverty line for a family of 4, applicable percentage 9.5). R and S en- roll in a qualified health plan for 2014. The premium for the applicable benchmark plan is $14,100. The Exchange approves advance credit payments of $573 per month, computed as follows: $14,100 benchmark plan premium minus R and S’s contribution amount of $7,220 ($76,000 x .095) equals $6,880 (total ad- vance credit); $6,880/12 = $573. (ii) R and S divorce on June 17, 2014, and obtain separate qualified health plans beginning July 1, 2014. R enrolls based on household income of $60,000 and a family size of three (324 percent of the federal poverty line, applicable percentage 9.5). The premium for the applicable benchmark plan is $14,100. The Exchange approves advance credit payments of $700 per month, computed as follows: $14,100 benchmark plan premium minus R’s contribution amount of $5,700 ($60,000 x .095) equals $8,400 (total advance credit); $8,400/12 = $700. (iii) S enrolls based on household income of $16,000 and a family size of one (147 percent of the federal poverty line, applicable percentage 3.82). The premium for the applicable benchmark plan is $5,200. The Exchange approves advance credit payments of $382 per month, computed as follows: $5,200 benchmark plan premium minus S’s con- tribution amount of $611 ($16,000 x .0382) equals $4,589 (total advance credit); $4,589/12 = $382. R and S do not agree on an allocation of the premium for the applicable benchmark plan, the premiums for the plan in which they enroll, and the advance credit payments for the period they were married in the taxable year. 2011–36 I.R.B.225September 6, 2011 (iv) Under paragraph (b)(1) of this section, R and S each compute their credit at reconciliation using the premiums for the applicablebenchmark plans that ap- ply to them for the months married and the months not married, and contribution amount based on their federal poverty line percentages at the end of the tax- able year. Under paragraph (b)(2) of this section, be- cause R and S do not agree on an allocation, R and S must equally allocate the benchmark plan premium ($7,050) and the advance credit payments ($3,440) for the six-month period January through June 2014 when they are married and enrolled in the same qual- ified health plan. Thus, R and S each are allocated $3,525 of the benchmark plan premium ($7,050/2) and $1,720 of the advance credit payments ($3,440/2) for January through June. (v) R reports on his 2014 tax return $60,000 in household income and family size of three. S reports on her 2014 tax return $16,000 in household income and family size of one. R and S reconcile their pre- mium tax credit with advance credit payments as fol- lows: R S Allocated advance payments (Jan. to June) $ 1,720$ 1,720 Actual advance payments (July to Dec.)4 ,2002,292 Total advance payments 5,920 4,012 Allocated benchmark plan premium (Jan. to June) 3,5253,525 Actual benchmark plan premium (July to Dec.) 7 ,050 2,600 Total benchmark plan premium 10,5756,125 Contribution amount (taxable year household income X applicable percentage) 5,700 611 Credit (total benchmark plan premium less required contribution, assuming not more than premium paid) 4,8755,514 Additional credit 1,502 Additional tax 1,045 (vi) Under paragraph (a)(1) of this section, on their tax returns R’s tax liability is increased by $1,045 and S is allowed $1,502 as additional credit. Example 3.Taxpayers divorce during the taxable year, allocation in proportion to household income. (i)ThefactsarethesameasinExample 2, except that R and S decide to allocate the benchmark plan premium ($7,050) and the advance credit payments ($3,440) for January through June 2014 in propor- tion to their household incomes (79 percent and 21 percent). Thus, R is allocated $5,570 of the bench- mark plan premiums ($7,050 x .79) and $2,718 of the advance credit payments($3,440x.79),andS is allocated $1,480 of thebenchmark plan premiums ($7,050 x .21) and $722 of the advance credit pay- ments ($3,440 x .21). R and S reconcile their pre- mium tax credit with advance credit payments as fol- lows: R S Allocated advance payments (Jan. to June) $ 2,718$ 722 Actual advance payments (July to Dec.)4 ,2002,292 Total advance payments6,9183,014 Allocated benchmark plan premium (Jan. to June) 5,570 1,480 Actual benchmark plan premium (July to Dec.) 7 ,050 2,600 Total benchmark plan premium12,6204,080 Contribution amount (taxable year household income X applicable percentage) 5,700 611 Credit (total benchmark plan premium less required contribution, assuming not more than premium paid) 6,9203,469 Additional credit2 455 (ii) Under paragraph (a)(1) of this section, on their tax returns R is allowed an additional credit of $2 and S is allowed an additional credit of $455. Example 4.Married taxpayers filing separate tax returns. (i) Taxpayers T and U are married and have two dependents. In 2013, the Exchange in the rat- ing area where the family resides determines that their 2014 household income will be $76,000 (340 percent of the federal poverty line for a family of 4, applicable percentage 9.5). T and U enroll in a qualified health plan for 2014. The premium for the applicable bench- mark plan is $14,100. The Exchange approves ad- vance credit payments of $573 per month, computed as follows: $14,100 benchmark plan premium minus T and U’s contribution amount of $7,220 ($76,000 x .095) equals $6,880 (total advance credit); $6,880/12 = $573. ( ii) T and U file income tax returns for 2014 using a married filing separately filing status. T reports household income of $60,000 and a family size of three (324 percent of the federal poverty line). U reports household income of $16,000 and a family size of one (147 percent of the federal poverty line). (iii) Because T and U are married but do not file a joint return for 2014, T and U are not applicable tax- payers and are not allowed a premium tax credit for 2014. See §1.36B–2(b)(2). Under paragraph (b)(3) of this section, half of the advance credit payments ($6,880/2 = $3,440) is allocated to T and half is al- located to U for purposes of determining their ex- cess advance payments. The repayment limitation described in paragraph (a)(3) of this section applies to T and U based on the household income and fam- ily size reported on each return. Consequently, T’s tax liability for 2014 is increased by $2,500 and U’s tax liability for 2014 is increased by $600. §1.36B–5 Information reporting by Exchanges. (a)Information required to be reported. An Exchange must report to the IRS and a taxpayer the following information for a qualified health plan the taxpayer enrolls in through the Exchange— September 6, 20112262011–36 I.R.B. (1) The premium and category of cov- erage (such as self-only) for the applicable benchmark plans used to compute advance credit payments and the period coverage was in effect; (2) The total premium for the coverage without reduction for advance credit pay- ments or cost sharing; (3) The aggregate amounts of any ad- vance credit payments or cost sharing re- ductions; (4) The name, address and taxpayer identification number (TIN) of the primary insured and the name and TIN of each other individual covered under the policy; (5) All information provided to the Ex- change at enrollment or during the tax- able year, including any change in circum- stances, necessary to determine eligibility for and the amount of the premium tax credit; (6) All information necessary to deter- mine whether a taxpayer has received ex- cess advance payments; and (7) Any other information required in published guidance of general applicabil- ity, see §601.601(d)(2) of this chapter. (b)Time and manner of reporting.The Commissioner may provide rules in pub- lished guidance of general applicability, see §601.601(d)(2) of this chapter, for the time and manner of reporting under this section. Par. 3. Section 1.6011–8 is added to read as follows: §1.6011–8 Requirement of income tax return for taxpayers who claim the premium tax credit under section 36B. (a)Requirement of return. A taxpayer who receives advance payments of the pre- mium tax credit under section 36B must file an income tax return for that taxable year on or before the fifteenth day of the fourth month following the close of the taxable year. (b)Effective/applicability date.This section applies for taxable years ending af- ter December 31, 2013. Par. 4. In §1.6012–1, paragraph (a)(2)(viii) is added to read as follows: §1.6012–1 Individuals required to make returns of income. (a) * * * (2) * * * (viii) For rules relating to returns re- quired of taxpayers who receive advance payments of the premium tax credit under section 36B, see §1.6011–8(a). ***** Steven T. Miller, Deputy Commissioner for Services and Enforcement. (Filed by the Office of the Federal Register on August 12, 2011, 8:45 a.m., and published in the issue of the Federal Register for August 17, 2011, 76 F.R. 50931) Withholding on Payments by Government Entities to Persons Providing Property or Services; Hearing Announcement 2011–48 AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of public hearing on pro- posed rulemaking. SUMMARY: This document provides no- tice of public hearing on proposed regu- lations relating to withholding by govern- ment entities on payments to persons pro- viding property or services. DATES: The public hearing is being held on Monday, September 12, 2011, at 10:00 a.m. The IRS must receive outlines of the topics to be discussed at the public hearing by Friday, September 2, 2011. ADDRESSES: The public hearing is being held in the IRS Auditorium, Internal Rev- enue Service Building, 1111 Constitution Avenue, NW, Washington, DC 20224. Send Submissions to CC:PA:LPD:PR (REG–151687–10), room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Mon- day through Friday to CC:PA:LPD:PR (REG–151687–10), Couriers Desk, In- ternal Revenue Service, 1111 Constitu- tion Avenue, NW, Washington, DC or sent electronically via the Federal erule- making Portal atwww.regulations.gov (REG–151687–10). FOR FURTHER INFORMATION CONTACT: Concerning the regulations, A.G. Kelley, (202) 622–6040; concerning submissions of comments, the hearing and/or to be placed on the building access list to attend the hearing Funmi Taylor at (202) 622–7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: The subject of the public hearing is the notice of proposed rulemaking (REG–151687–10, 2011–23 I.R.B. 867), that was published in theFederal Register on Monday, May 9, 2011 (76 FR 26678). The rules of 26 CFR 601.601(a)(3) ap- ply to the hearing. Persons who wish to present oral comments at the hearing that submitted written comments by August 8, 2011, must submit an outline of the topics to be addressed and the amount of time to be denoted to each topic (Signed original and eight copies) A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving out- lines has passed, the IRS will prepare an agenda containing the schedule of speak- ers. Copies of the agenda will be made available, free of charge, at the hearing or in the Freedom of Information Reading Room (FOIA RR) (Room 1621) which is located at the 11 th and Pennsylvania Avenue, NW, entrance, 1111 Constitution Avenue, NW, Washington, DC. Because of access restrictions, the IRS will not admit visitors beyond the imme- diateentranceareamorethan30minutes before the hearing starts. For informa- tion about having your name placed on the building access list to attend the hear- ing, see the “FOR FURTHER INFORMA- TION CONTACT” section of this docu- ment. LaNita VanDyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). (Filed by the Office of the Federal Register on August 16, 2011, 8:45 a.m., and published in the issue of the Federal Register for August 17, 2011, 76 F.R. 50949) 2011–36 I.R.B.227September 6, 2011 Regulations Governing Practice Before the Internal Revenue Service; Correction Announcement 2011–49 AGENCY: Office of the Secretary, Trea- sury. ACTION: Correcting amendment. SUMMARY: This document contains amendments to the regulations governing practice before the Internal Revenue Ser- vice to correct errorsin final regulations (T.D. 9527, 2011–27 I.R.B. 1) that were published in the Federal Register on Fri- day, June 3, 2011 (76 FR 32286). The regulations affect individuals who practice before the IRS and providers of continu- ing education programs. The regulations modify the rules governing of practice be- fore the IRS and the standards with respect to tax returns. DATES: This correction is effective on August 11, 2011 and is applicable on Au- gust 2, 2011. FOR FURTHER INFORMATION CONTACT: Matthew D. Lucey, (202) 622–4940 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final regulation (T.D. 9527) that is the subject of this correction is under sec- tion 330 of Title 31of the United States Code. Need for Correction As published, T.D. 9527 contains errors that may prove to be misleading and is in need of clarification. ***** Correction of Publication Accordingly, 31 CFR part 10 is cor- rected by making the following correcting amendments: PART 10—PRACTICE BEFORE THE INTERNAL REVENUE SERVICE Paragraph 1. The authority citation for part 31 continues to read in part as follows: Authority: Sec. 3, 23 Stat. 258, secs. 2–12, 60 Stat. 237et. seq.; 5 U.S.C. 301, 500, 551–559; 31 U.S.C. 321; 31 U.S.C. 330; Reorg. Plan No. 26 of 1950, 15 FR 4935, 64 Stat. 1280, 3 CFR, 1949–1953 Comp., p. 1017. Par. 2. Section 10.5 is amended by revising paragraph (g) to read as follows: §10.5 Application to become an enrolled agent, enrolled retirement plan agent, or registered tax return preparer. ***** (g)Effective/applicability date.This section is applicable to applications re- ceived on or after August 2, 2011. Par. 3. Section 10.60 is amended by revising paragraphs (a) and (b) to read as follows: §10.60 Institution of proceeding. (a) Whenever it is determined that a practitioner (or employer, firm or other en- tity, if applicable) violated any provision of the laws governing practice before the In- ternal Revenue Service or the regulations in this part, the practitioner may be rep- rimanded or, in accordance with §10.62, subject to a proceeding for sanctions de- scribed in §10.50. (b) Whenever a penalty has been as- sessed against an appraiser under the Internal Revenue Code and an appropriate officer or employee in an office estab- lished to enforce this part determines that the appraiser acted willfully, recklessly, or through gross incompetence with respect to the proscribed conduct, the appraiser may be reprimanded or, in accordance with §10.62, subject to a proceeding for disqualification. A proceeding for dis- qualification of an appraiser is instituted by the filing of a complaint, the contents of which are more fully described in §10.62. ***** Par. 4. Section 10.69 is amended by revising paragraph (a) to read as follows: §10.69 Representation; ex parte communication. (a)Representation. (1) The Internal Revenue Service may be represented in proceedings under this part by an attorney or other employee of the Internal Revenue Service. An attorney or an employee of the Internal Revenue Service representing the Internal Revenue Service in a proceeding under this part may sign the complaint or any document required to be filed in the proceeding on behalf of the Internal Rev- enue Service. (2) A respondent may appear in person, be represented by a practitioner, or be rep- resented by an attorney who has not filed a declaration with the Internal Revenue Ser- vice pursuant to §10.3. A practitioner or an attorney representing a respondent or pro- posed respondent may sign the answer or any document required to be filed in the proceeding on behalf of the respondent. ***** Par. 5. Section 10.90 is amended by revising paragraph (a)(6)(i) to read as fol- lows: §10.90 Records. (a) * * * (6) * * * (i) Who have obtained a qualifying con- tinuing education provider number; and ***** Treena V. Garrett, Federal Register Liaison, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). (Filed by the Office of the Federal Register on August 10, 2011, 8:45 a.m., and published in the issue of the Federal Register for August 11, 2011 76 F.R. 49650) September 6, 20112282011–36 I.R.B. Definition of Terms Revenue rulings and revenue procedures (hereinafter referred to as “rulings”) that have an effect on previous rulings use the following defined terms to describe the ef- fect: Amplifieddescribes a situation where no change is being made in a prior pub- lished position, but the prior position is be- ingextendedtoapplytoavariationofthe fact situation set forth therein. Thus, if an earlier ruling held that a principle ap- plied to A, and the new ruling holds that the same principle also applies to B, the earlier ruling is amplified. (Compare withmodi- fied,below). Clarifiedis used in those instances where the language in a prior ruling is be- ing made clear because the language has caused, or may cause, some confusion. It is not used where a position in a prior ruling is being changed. Distinguisheddescribes a situation where a ruling mentions a previously pub- lished ruling and points out an essential difference between them. Modifiedis used where the substance of a previously published position is being changed. Thus, if a prior ruling held that a principle applied to A but not to B, and the new ruling holds that it applies to both A and B, the prior ruling is modified because it corrects a published position. (Compare withamplifiedandclarified, above). Obsoleteddescribes a previously pub- lished ruling that is not considered deter- minative with respect to future transac- tions. This term is most commonly used in a ruling that lists previously published rul- ings that are obsoleted because of changes in laws or regulations. A ruling may also be obsoleted because the substance has been included in regulations subsequently adopted. Revokeddescribes situations where the position in the previously published ruling is not correct and the correct position is beingstatedinanewruling. Supersededdescribes a situation where the new ruling does nothing more than re- state the substance and situation of a previ- ously published ruling (or rulings). Thus, the term is used to republish under the 1986 Code and regulations the same po- sition published under the 1939 Code and regulations. The term is also used when it is desired to republish in a single rul- ing a series of situations, names, etc., that were previously published over a period of time in separate rulings. If the new rul- ing does more than restate the substance of a prior ruling, a combination of terms is used. For example,modifiedandsu- persededdescribes a situation where the substance of a previously published ruling is being changed in part and is continued without change in part and it is desired to restate the valid portion of the previously published ruling in a new ruling that is self contained. In this case, the previously pub- lished ruling is first modified and then, as modified, is superseded. Supplementedis used in situations in which a list, such as a list of the names of countries, is published in a ruling and that list is expanded by adding further names in subsequent rulings. After the original rul- ing has been supplemented several times, a new ruling may be published that includes the list in the original ruling and the ad- ditions, and supersedes all prior rulings in the series. Suspendedis used in rare situations to show that the previous published rulings will not be applied pending some future action such as the issuance of new or amended regulations, the outcome of cases in litigation, or the outcome of a Service study. Abbreviations The fol lowing abbreviations in current use and for merly used will appear in material publis hedintheBulletin. A—Individual. Acq.—A cquiescence. B—Individual. BE—Beneficiary. BK—Bank . B.T.A.—Board of Tax Appeals. C—Individual. C.B.—Cu mulative Bulletin. CFR—Code of Federal Regulations. CI—City. COOP—Coo perative. Ct.D.—Court Decision. CY—County. D—Decede nt. DC—Dummy Corporation. DE—Donee. Del. Order —Delegation Order. DISC—Domestic International Sales Corporation. DR—Donor. E—Estate. EE—Employee. E.O.—Executive Order. ER—Emp loyer. ERISA—Employee Retirement Income Security Act. EX—Executor. F—Fiduc iary. FC—Foreign Country. FICA—Federal Insurance Contributions Act. FISC—Fo reign International Sales Company. FPH—Foreign Personal Holding Company. F.R.—Federal Register. FUTA—Fed eral Unemployment Tax Act. FX—Foreign corporation. G.C.M.—Chief Counsel’s Memorandum. GE—Grante e. GP—General Partner. GR—Grantor. IC—Insura nce Company. I.R.B.—Internal Revenue Bulletin. LE—Lessee. LP—Limited Partner. LR—Lessor. M—Minor. Nonacq.—No nacquiescence. O—Organization. P—Parent Corporation. PHC—Persona l Holding Company. PO—Possession of the U.S. PR—Partner. PRS—Pa rtnership. PTE—Prohibited Transaction Exemption. Pub. L.—Public Law. REIT—Re al Estate Investment Trust. Rev. Proc.—Revenue Procedure. Rev. Rul.—Revenue Ruling. S—Subsi diary. S.P.R.—Statement of Procedural Rules. Stat.—Statutes at Large. T—Target Corporation. T.C.—Tax Court. T.D.—Treasury Decision. TFE—Trans feree. TFR—Transferor. T.I.R.—Technical Information Release. TP—Taxpay er. TR—Trust. TT—Trustee. U.S.C.—Uni ted States Code. X—Corporation. Y—Corporation. Z—Corporat ion. 2011–36 I.R.B.iSeptember 6, 2011 Numerical Finding List 1 Bulletins 2011–27 through 2011–36 Announcements: 2011-37, 2011-27 I.R.B.37 2011-38, 2011-28 I.R.B.45 2011-39, 2011-28 I.R.B.46 2011-40, 2011-29 I.R.B.56 2011-41, 2011-28 I.R.B.47 2011-42, 2011-32 I.R.B.138 2011-43, 2011-35 I.R.B.198 2011-44, 2011-33 I.R.B.164 2011-45, 2011-34 I.R.B.178 2011-46, 2011-34 I.R.B.178 2011-47, 2011-34 I.R.B.178 2011-48, 2011-36 I.R.B.227 2011-49, 2011-36 I.R.B.228 Notices: 2011-47, 2011-27 I.R.B.34 2011-50, 2011-27 I.R.B.35 2011-51, 2011-27 I.R.B.36 2011-52, 2011-30 I.R.B.60 2011-53, 2011-32 I.R.B.124 2011-54, 2011-29 I.R.B.53 2011-55, 2011-29 I.R.B.53 2011-56, 2011-29 I.R.B.54 2011-57, 2011-31 I.R.B.84 2011-58, 2011-31 I.R.B.85 2011-59, 2011-31 I.R.B.86 2011-60, 2011-31 I.R.B.90 2011-61, 2011-31 I.R.B.91 2011-62, 2011-32 I.R.B.126 2011-63, 2011-34 I.R.B.172 2011-65, 2011-34 I.R.B.173 2011-66, 2011-35 I.R.B.184 2011-67, 2011-34 I.R.B.174 2011-68, 2011-36 I.R.B.205 2011-70, 2011-32 I.R.B.135 Proposed Regulations: REG-137128-08, 2011-28 I.R.B.43 REG-125592-10, 2011-32 I.R.B.137 REG-131491-10, 2011-36 I.R.B.208 REG-101352-11, 2011-30 I.R.B.75 REG-118809-11, 2011-33 I.R.B.162 REG-122813-11, 2011-35 I.R.B.197 Revenue Procedures: 2011-38, 2011-30 I.R.B.66 2011-39, 2011-30 I.R.B.68 2011-41, 2011-35 I.R.B.188 Revenue Rulings: 2011-14, 2011-27 I.R.B.31 Revenue Rulings— Continued: 2011-15, 2011-30 I.R.B.57 2011-16, 2011-32 I.R.B.93 2011-17, 2011-33 I.R.B.160 2011-19, 2011-36 I.R.B.199 2011-20, 2011-36 I.R.B.202 Treasury Decisions: 9527, 2011-27 I.R.B.1 9528, 2011-28 I.R.B.38 9529, 2011-30 I.R.B.57 9530, 2011-31 I.R.B.77 9531, 2011-31 I.R.B.79 9532, 2011-32 I.R.B.95 9533, 2011-33 I.R.B.139 9534, 2011-33 I.R.B.144 9537, 2011-35 I.R.B.181 9539, 2011-35 I.R.B.179 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2011–1 through 2011–26 is in Internal Revenue Bulletin 2011–26, dated June 27, 2011. September 6, 2011ii2011–36 I.R.B. Finding List of Current Actions on Previously Published Items 1 Bulletins 2011–27 through 2011–36 Notices: 2010-23 Modified and supplemented by Notice 2011-54, 2011-29 I.R.B.53 2010-81 Amended and supplemented by Notice 2011-63, 2011-34 I.R.B.172 2010-88 Modified by Ann. 2011-40, 2011-29 I.R.B.56 Proposed Regulations: REG-118761-09 Hearing scheduled by Ann. 2011-38, 2011-28 I.R.B.45 REG-151687-10 Hearing scheduled by Ann. 2011-48, 2011-36 I.R.B.227 Revenue Procedures: 2008-24 Modified and superseded by Rev. Proc. 2011-38, 2011-30 I.R.B.66 2008-32 Superseded by Rev. Proc. 2011-39, 2011-30 I.R.B.68 Revenue Rulings: 58-225 Obsoleted by Rev. Rul. 2011-15, 2011-30 I.R.B.57 Treasury Decisions: 9527 Corrected by Ann. 2011-49, 2011-36 I.R.B.228 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2011–1 through 2011–26 is in Internal Revenue Bulletin 2011–26, dated June 27, 2011. 2011–36 I.R.B.iiiSeptember 6, 2011 September 6, 20112011–36 I.R.B. 2011–36 I.R.B.September 6, 2011 September 6, 20112011–36 I.R.B. INTERNAL REVENUE BULLETIN The Introduction at the beginning of this issue describes the purpose and content of this publication. The weekly Internal Revenue Bulletin is sold on a yearly subscription basis by the Superintendent of Documents. Current subscribers are notified by the Superin- tendent of Documents when their subscriptions must be renewed. CUMULATIVE BULLETINS The contents of this weekly Bulletin are consolidated semiannually into a permanent, indexed, Cumulative Bulletin. 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