us-irs-notices-irb-2012-24-pdf•Internal Revenue Bulletin 2012-24 (PDF rendition): IRS Notices
Internal Revenue Bulletin 2012-24 (PDF rendition): IRS Notices
us-irs-notices-irb-2012-24-pdfInternal Revenue Bulletin 2012-24 (PDF rendition): IRS NoticesGuidance
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Bulletin No. 201 2-24 June 11, 2012 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. 2012–14, page 1012. Income from discharge of indebtedness.This ruling am- plifies Revenue Ruling 92–53, 1992–2 C.B. 48, by describing how discharged partnership excess nonrecourse debt is taken into account in measuring the insolvency of the partners un- der section 108(d)(3) of the Code. The ruling provides that to the extent discharged excess nonrecourse debt generates can- cellation of indebtedness (COD) income that is allocated under section 704(b) (and the regulations thereunder), each partner treats its portion of the discharged excess nonrecourse debt related to such COD income as a liability in measuring insol- vency under section 108(d)(3). Rev. Rul. 92–53 amplified. T.D. 9590, page 986. Final regulations under section 36B of the Code relate to the premium tax credit, enacted by section 1401 of the Affordable Care Act. Notice 2012–37, page 1014. This notice extends interim guidance under section 833 of the Code provided in Notice 2010–79 and Notice 2011–51 on the modification of section 833 treatment of certain health organi- zations. Notice 2011–51 modified and superseded. ADMINISTRATIVE Notice 2012–38, page 1014. This notice solicits public comments on what additional guid- ance may be needed after Rev. Rul. 2006–57, which pro- vides guidance on the use of smartcards, debit or credit cards, or other electronic media to provide qualified transportation fringes under sections 132(a)(5) and (f) of the Code, became effective on January 1, 2012. In particular, the notice requests public comments on a number of issues surrounding an em- ployer’s provision of transit benefits in light of changes in tech- nology in transit benefit administration. 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. June 11, 20122012–24 I.R.B. Part I. Rulings and Decisions Under the Internal Revenue Code of 1986 Section 36B.— Refundable Credit for Cov erage Under a Qualified Health Plan 26 CFR 1.36B–0: Table of contents. T.D. 9590 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 Health Insurance Premium Tax Credit AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations relating to the health insurance premium tax credit enacted by the Patient Protection and Affordable Care Act and the Health Care and Education Reconcilia- tion Act of 2010, as amended by the Medi- care and Medicaid Extenders Act of 2010, the Comprehensive 1099 Taxpayer Pro- tection and Repayment of Exchange Sub- sidy Overpayments Act of 2011, the De- partment of Defense and Full-Year Con- tinuing Appropriations Act, 2011, and the 3% Withholding Repeal and Job Creation Act. These final regulations provide guid- ance to individuals who enroll in qualified health plans through Affordable Insurance Exchanges (Exchanges) and claim the pre- miumtaxcredit,andtoExchangesthat make qualified health plans available to in- dividuals and employers. DATES:Effective Date:These regulations are effective on May 23, 2012. Comment Date:Comments will be ac- cepted until August 21, 2012. Applicability Date:For date of applica- bility, see §1.36B–1(o). ADDRE SSES: Comments should be subm itted to Internal Revenue Service, CC:P A:LPD:PR(REG–131491–10), Room 5203, P.O. Box 7604, Ben Franklin Stat ion, Washington, DC 20044, or electronical ly towww.regulations.gov (IRS REG–1314 91–10). Alternatively, comments may b e hand delivered between the hours of 8 :00 a.m. and 4:00 p.m. MondaytoFri daytoCC:PA:LPD:PR (REG–131491 –10), Courier’s Desk, Internal Rev enue Service, 1111 Constituti on Avenue NW, Washington, D.C. All com ments will be available for public insp ection and copying. FOR FURTHER INFORMATION CONTACT: Sh areen S. Pflanz, (202) 622–4920, or Andrew S. Braden, (202) 622–4960 ( not toll-free numbers). SUPPLEMEN TARY INFORMATION: Paperwork Reduction Act The collec tion of information contained in these re gulations has been reviewed and approved b y the Office of Management and Budget in accordance with the Paper- work Redu ction Act (44 U.S.C. 3507(d)) under con trol number 1545–2232. The colle ction of information in these final reg ulations is in §1.36B–5. The infor- mation wi ll help the IRS properly recon- cile the a mount of the premium tax credit with adva nce credit payments made under section 1412 of the Patient Protection and Afforda ble Care Act (42 U.S.C. 18082). The coll ection of information is required to compl y with the provisions of section 36B(f)( 3) of the Internal Revenue Code (Code) . An agency may not conduct or sponso r, and a person is not required to re- spond t o, a collection of information un- less th e collection of information displays avalid control number assigned by the Of- fice o f Management and Budget. The est imated total annual reporting burde n is 250,000 hours. The estimated annua l burden per respondent is 5,000 hours . The estimated number of respon- dents is 50. Comme nts concerning the accuracy of thi s burden estimate and sugges- tions for reducing this burden should be sent to theInternal Revenue Service, Attn : IRS Reports Clearance Officer, SE:W :CAR:MP:T:M:S, Washington, DC 2022 4,andtotheOffice of Manage- ment and Budget, Attn: Desk Officer for the Departmen t of the Treasury, Office of Informatio n and Regulatory Affairs, Washington, D C 20503. Books or recor ds relating to a collection of informatio n must be retained as long as their cont ents may become material in the administ ration of any internal revenue law. General ly, tax returns and return in- formation ar e confidential, as required by 26 U.S.C. 61 03. Background This document contains final regula- tions that amend the Income Tax Regula- tions (26 CFR part 1) under section 36B relating to the premium tax credit. Section 36B was enacted by the Patient Protec- tion and Affordable Care Act, Public Law 111–148 (124 Stat. 119 (2010)), and the Health Care and Education Reconcilia- tion Act of 2010, Public Law 111–152 (124 Stat. 1029 (2010)) (collectively, the Affordable Care Act). On August 17, 2011, a notice of proposed rulemaking (REG–131491–10) was published in the Federal Register(76 FR 50931). Writ- ten comments responding to the notice of proposed rulemaking were received. The comments are available for public inspection atwww.regulations.govor on request. A public hearing was held on November 17, 2011. After consideration of all the comments, the proposed regulations are adopted as amended by this Treasury decision. The comments and revisions are discussed in the preamble. Expla nation of Provisions and Summa ry of Comments 1.Premium Tax Credit Definitions a.Family size The pr oposed regulations define a tax- payer ’s family as the individuals for whom ataxp ayer claims a deduction for a per- sonal exemption under section 151 for the ta xable year, which may include the taxp ayer, the taxpayer’s spouse, and de- pend ents. The proposed regulations also clar ify that the family includes individuals who a re not applicable individuals under sect ion 5000A(d) and thus are not subject 2012–24 I.R.B.986June 11, 2012 to the penalty for failing to maintain mini- mum essential coverage. Commentators recommended clari- fying that the family also includes indi- viduals who are exempt under section 5000A(e) from the requirement to main- tain minimum essential coverage. Ac- cordingly, the final regulations clarify that a family may include all individuals not subject to the section 5000A penalty. Some commentators disagreed with the rule in the proposed regulations that a taxpayer’s family includes a child only if the taxpayer is allowed a dependency exemption deduction for the child. Com- mentators suggested that taxpayers should be able to compute a premium tax credit based on premiums for a child for whom the person is not allowed a dependency exemption deduction.Section 36B(d)(1) defines the family as the individuals for whom the taxpayer is allowed a personal exemption deduction under section 151. Accordingly, the final regulations do not adopt these comments. We note however, that the non-dependent child may be able to claim a premium tax credit if otherwise eligible. See §1.36B–3(h). b.Requirement to file a return for purposes of household income Under section 36B, household income includes the modified adjusted gross in- come of a dependent who is required to file a return of tax imposed by section 1. The final regulations conform to this statu- tory language, thus clarifying that house- hold income does not include the modified adjusted gross income of a family member whoisrequiredtofileataxreturnsolely to report tax imposed under Code sections other than section 1 (for example, the early distribution penaltyimposed under section 72(q) or self-employment tax under sec- tion 1401). c.Modified adjusted gross income Under the proposed regulations, mod- ified adjusted gross income is adjusted gross income increased by amounts ex- cluded from gross income under section 911 and tax-exempt interest a taxpayer receives or accrues during the taxable year. The 3% Withholding Repeal and Job Creation Act, Public Law 112–56 (125 Stat. 711 (2011)), which was enacted after the proposed regulations were pub- lished, amended the definition of modified adjusted gross income to include Social Security benefits (as defined in section 86(d)) not included in gross income under section 86. The final regulations reflect this amendment. d.Lawfully present Under section 36B(c)(1)(B) and the proposed regulations, a taxpayer who is an individual lawfully present in the United States may be treated as an applicable tax- payer if the taxpayer’s household income is under 100 percent of the Federal poverty line (FPL) and the taxpayer is not eligible for Medicaid. Under section 1321(f)(3) of the Affordable Care Act, an individual who is not lawfully present in the United States may not enroll in a qualified health plan through an Exchange. The proposed regulations definelawfully presentby referencing 45 CFR 152.2, which also is referenced in defininglawfully presentin proposed regulations on Exchanges under 45 CFR 155.20 issued by the Department of Health and Human Services (HHS). Commentators requested that the final regulations expand the definition of law- fully present to include the categories of immigrants described in the Children’s Health Insurance Program Reauthoriza- tion Act. One commentator stated that the final regulations should allow States to use existing administrative mechanisms to determine eligibility if those mechanisms are not more restrictive than Federal law. To maintain consistency with the HHS Exchange final regulations, the final regu- lations definelawfully presentby referenc- ing 45 CFR 155.20, the definition in the HHS Exchange final regulations. e.Federal poverty line The proposed regulations defineFed- eral poverty lineby reference to the Fed- eral poverty guidelines published annually by HHS. The Federal poverty guidelines for Alaska and Hawaii differ from the guidelines for the 48 contiguous states and the District of Columbia. The final regulations clarify that, if married taxpay- ers reside in separate States with different Federal poverty guidelines, or if a taxpayer resides in States with different Federal poverty guidelines during the year, the Federal poverty line that applies for pur- poses of section 36B and the associated regulations is the higher Federal poverty line (resulting in a lower percentage of the Federal poverty lineforthetaxpayers’ household income and family size). f.Federally-facilitated Exchange Under the proposed regulations, the termExchangehas the same meaning as in 45 CFR 155.20, which provides that the termExchangerefers to a State Exchange, regional Exchange, subsidiary Exchange, and Federally-facilitated Exchange. Commentators disagreed on whether the language in section 36B(b)(2)(A) lim- its the availability of the premium tax credit only to taxpayers who enroll in qualified health plans on State Exchanges. The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who ob- tain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. Moreover, the relevant legislative history does not demonstrate that Congress in- tended to limit the premium tax credit to State Exchanges. Accordingly, the final regulations maintain the rule in the pro- posed regulations because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole. g.Rating area The proposed regulations definerating areaas an Exchange service area, as de- scribed in 45 CFR 155.20. Commentators suggested that an Exchange service area is different than a rating area as that term is used in section 36B(b)(3) for determining the applicable benchmark plan. The final regulations reserve the definition of rating area. 2.Eligibility for the Premium Tax Credit a.Applicable taxpayer Under section 36B(c)(1) and the pro- posed regulations, in general a taxpayer is an applicable taxpayer for a taxable year only if the taxpayer’s household income for the taxable year is at least 100 percent but not more than 400 percent of the FPL June 11, 20129872012–24 I.R.B. for the taxpayer’s family size. Commen- tators requested that the final regulations treat a taxpayer whose household income exceeds 400 percent of the FPL for the tax- payer’s family size as an applicable tax- payer if, at enrollment, the Exchange es- timates that the taxpayer’s household in- come will be between 100 and 400 per- cent of the FPL for the taxpayer’s fam- ily size and approves advance credit pay- ments. Other commentators advocated al- lowing taxpayers with household income above 400 percent of the FPL for their fam- ily size to be treated as eligible for a pre- mium tax credit for the months before a change in circumstances affecting house- hold income occurs or for the months for which the taxpayer receives advance pay- ments. The final regulations do not adopt these comments because they are contrary to the language of section 36B limiting the pre- mium tax credit to taxpayers with house- hold income for the taxable year at or be- low 400 percent of the FPL for the tax- payer’s family size. Commentators requested that the final regulations clarify that a taxpayer who has household income between 100 percent and 133 percent of the FPL but is not eligi- ble for Medicaid qualifies for the premium tax credit. Under section 36B(c)(1)(A) and the proposed regulations, an applica- ble taxpayer who may claim the premium tax credit is a taxpayer with household in- come between 100 and 400 percent of the FPL for the family size. Thus, it is clear that a taxpayer with household income between 100 percent and 133 percent of the FPL for the taxpayer’s family size may be an applicable taxpayer. Commentators requested that the final regulations allow an individual who may be claimed as a dependent by another tax- payer to qualify as an applicable taxpayer for a taxable year if, for the taxable year, another taxpayer does not claim the indi- vidual as a dependent. The final regula- tions do not adopt this comment because it is inconsistent with section 36B(c)(1)(D), which provides that a premium tax credit is not allowed to any individual for whom a deduction under section 151 is “allowable to another taxpayer” for the taxable year. b.Incarceration Under section 1312(f) of the Affordable Care Act, individuals who are incarcerated (other than pending disposition of charges) may not enroll in a qualified health plan through an Exchange. The proposed reg- ulations provide, however, that an individ- ual who is incarcerated may be allowed a premium tax credit if a family member is enrolled in a qualified health plan. A commentator suggested that the rules relating to incarcerated individuals should apply to individualsincarcerated pending disposition of charges, as is the case under the Medicaid program. The comment ad- dresses an issue beyond the scope of the premium tax credit regulations. Standards for enrollment in a qualified health plan fall under rules within the jurisdiction of HHS. c.Minimum essential coverage i. Government-Sponsored Coverage A. Time of eligibility The proposed regulations provide that 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 ben- efits under the program. The proposed regulations further provide that an indi- vidual 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 the coverage on the first day of the second calendar month following the event that establishes eligibility. Commentators asked that the final reg- ulations allow individuals a certain amount of time to complete the requirements (such as submitting an application) necessary to obtain government-sponsored minimum essential coverage. Some commentators suggested that the final regulations could provide this period by defining “reason- ably promptly” as 90 days after the event that establishes eligibility. Commentators requested that the final regulations allow exemptions from the 90-day period, how- ever, when additional delay in receiving benefits occurs despite the good faith ef- forts of the taxpayer, for example as a result of inaction of a government agency or official. To provide greater clarity, the final reg- ulations delete the language “reasonably promptly” and extend this time period. Under the final regulations, an individual who fails to complete the requirements necessary to receive benefits available under a government-sponsored program by the last day of the third full calendar month following the event that establishes eligibility is treated as eligible for the cov- erage on the first day of the fourth calendar month. Because an individual who timely completes the necessary requirements is treated as eligible for government-spon- sored minimum essential coverage no ear- lier than the first month that the individual may receive benefits, this 3-month time period does not include the time needed for a government agency to process an application. The proposed regulations request com- ments on whether rules should provide flexibility if operational challenges pre- vent timely transition from coverage under a qualified health plan to coverage under a government-sponsored program. Com- mentators stated that the final regulations should provide that an individual tran- sitioning from a qualified health plan to coverage under a government-sponsored program should not be treated as eligi- ble for government-sponsored minimum essential coverage until the individual is able to effectively terminate his or her qualified health plan coverage. They ex- pressed concern that an individual may be unable to discontinue advance credit payments by the beginning of a month for which the individual is eligible for gov- ernment-sponsored coverage and could be responsible for an excess advance pay- ment for that month. The concerns expressed in these comments are addressed in the HHS final regulations on Exchanges. Un- der 45 CFR 155.430, an Exchange must permit an enrollee to terminate coverage in a qualified health plan no later than 14 days after the enrollee requests termination. For an enrollee who is newly eligible for Medicaid or the Children’s Health Insurance Program (CHIP), 45 CFR 155.430(d)(2)(iv) provides that qualified health plan coverage terminates on the last day before Medicaid or CHIP coverage begins. These termination 2012–24 I.R.B.988June 11, 2012 rules enable individuals transitioning to coverage under a government-sponsored program to effectively terminate qualified health plan coverage (and liability for advance credit payments) before they are eligible for government-sponsored minimum essential coverage. B. Definition of “eligible” The proposed regulations provide that an individual is eligible for gov- ernment-sponsored minimum essential coverage when an individual meets the requirements for coverage under the pro- gram. For administrative convenience, however, because the standards for eligi- bility in veterans’ programs do not allow Exchanges to identify everyone who may be eligible for veterans’ coverage at the time he or she is seeking an eligibility de- termination for advance payments of the premium tax credit, the proposed regula- tions provide that an individual is eligible for minimum essential coverage under the veteran’s health care program authorized under chapter 17 or 18 of Title 38, U.S.C. only if the individual is enrolled in a vet- eran’s health care program identified as minimum essential coverage in regula- tions issued under section 5000A. The final regulations conform the rules to amendments to section 5000A that delete the word “veteran’s” in describing health care programs under chapter 17 or 18 of Title 38. Thus, the special rule for veterans’ coverage may apply to individu- als who are not veterans but are eligible for the Civilian Health and Medical Program of the Department of Veterans Affairs (VA) or the VA’s spina bifida program. Commentators requested that the final regulations define eligibility for gov- ernment-sponsored programs as actual enrollment for individuals suffering from end stage renal disease who become el- igible for Medicare as a result of their diagnosis. Other commentators requested this treatment for any individual suffering from an acute illness who becomes eligi- ble for a government-sponsored program. The commentators asserted that these se- riously-ill individuals should be able to choose to remain enrolled in a qualified health plan with the benefit of a premium tax credit to maintain continuity of med- ical care, which may be disrupted if the individual loses eligibility for the premium tax credit and is required to move to a government-sponsored program in which the individual’s medical provider does not participate. Section 36B(c)(2)(B) establishes a clear structure under which eligibility for government-sponsored minimum essen- tial coverage in a given month precludes including an individual in a taxpayer’s coverage family for purposes of comput- ing the premium assistance amount for that month. In keeping with the statutory scheme, the final regulations do not adopt these comments. However, the IRS and the Treasury Department expect to publish additional guidance, see §601.601(d)(2), clarifying when or if an individual be- comes “eligible for government-sponsored minimum essential coverage” when the eligibility for that coverage is a result of a particular illness or condition. For ex- ample, as the preamble to the proposed regulations notes, the additional guid- ance would clarify the rules in the case of eligibility for Medicaid on the basis of blindness or disability. C. Eligibility for limited benefits Commentators requested that the final regulations address whether eligibility for benefits with a limited scope under gov- ernment programs (for example, eligibil- ity only for family planning services under Medicaid) constitutes eligibility for mini- mum essential coverage. The final regu- lations do not address these comments be- cause minimum essential coverage is de- fined in section 5000A(f). It is anticipated that regulations under section 5000A will provide that government-sponsored health benefit programs that offer only very lim- ited benefits are not minimum essential coverage. D. Medicare eligibility A commentator noted that the dates in some of the examples in the proposed reg- ulations concerningeligibility for Medi- care inaccurately describe when an indi- vidual’s Medicare coverage begins. The commentator also asked that the final reg- ulations create a safe harbor for taxpayers whose Medicare coverage is delayed be- cause they enroll during the later months of their Medicare initial enrollment period. The final regulations revise the exam- ples in response to this comment. The final regulations do not include the sug- gested Medicare safe harbor because the commentator’s concerns are addressed by the general rule that anindividual is eligi- ble for minimum essential coverage on the first day of the first full month the individ- ual may receive benefits. Additionally, as discussed earlier in this preamble, the final regulations revise the rule that an individ- ual who fails to complete the requirements to obtain coverage is treated as eligible on the first day of the fourth month after the event establishing eligibility. Thus, indi- viduals enrolling during the later months of their initial Medicare enrollment period will not be deemed eligible for Medicare before the expiration of the enrollment pe- riod. E. Indian Health Service Commentators requested that the final regulations provide thatindividuals eligi- ble to receive health care from the Indian Health Service (IHS) are not eligible for government-sponsored minimum essential coverage. Section 5000A(f) defines mini- mum essential coverage. It does not desig- nate the IHS as providing minimum essen- tial coverage. Section 5000A(f)(1)(E) au- thorizes HHS to designate other coverage as minimum essential coverage. HHS has advised the IRS and the Treasury Depart- ment that it does not intend to designate ac- cess to the IHS as minimum essential cov- erage. Thus, individuals who are eligible to receive health care from the IHS will not be barred by IHS access alone from eligi- bility for the premium tax credit or from access to the special cost-sharing reduction for tribal members under section 1402(d) of the Affordable Care Act. ii. Employer-Sponsored Coverage A. Affordability The proposed regulations provide that an eligible employer-sponsored plan is affordable for an employee and related individuals if the portion of the annual pre- mium the employee must pay for self-only coverage does not exceed the required contribution percentage (9.5 percent for taxable years beginning before January 1, 2015) of the taxpayer’s household income. Commentators suggested that the afford- ability of coverage for related individuals June 11, 20129892012–24 I.R.B. should be based on the portion of the an- nual premium the employee must pay for family coverage. Under section 36B(c)(2)(C), an indi- vidual who may enroll in an eligible em- ployer-sponsored plan may nonetheless be eligible for a premium tax credit if the employer-sponsored coverage either is un- affordable or fails to provide minimum value. Future regulations concerning em- ployer-sponsored coverage will provide fi- nal rules on determining affordability for related individuals and proposed rules on determining minimum value. Some commentators asked that the final rules clarify howemployer contribu- tions to health savings accounts (HSAs), and amounts made available under health reimbursement arrangements (HRAs) are treated in determining affordability. Em- ployer contributions to an HSA would not affect the affordability of employer-spon- sored coverage because HSA contribu- tions may not be used to pay for premiums for health insurance coverage (except in limited circumstances not applicable in the context of employer-sponsored coverage). Amounts available under an HRA that may be used only to reimburse medical ex- penses other than the employee’s required share of the cost of employer-sponsored coverage also would not affect the afford- ability of employer-sponsored coverage. These final regulations do not address how other HRAs are treated for purposes of determining the affordability of an employer-sponsored plan, which may be addressed further in additional published guidance, see §601.601(d)(2). Some commentators also asked for clar- ification on how wellness incentive pro- grams affect the premium affordability de- termination. The final regulations autho- rize the Commissioner to publish addi- tional guidance, see §601.601(d)(2), to ad- dress the effect on affordability of wellness incentives that increase or decrease an em- ployee’s share of premiums. Comments are requested on types of wellness incen- tives, how these programs affect the af- fordability of eligible employer-sponsored coverage for employees and related indi- viduals, and how incentives are earned and applied. The administrability of any rule on wellness incentives must consider the extent to which employees can be certain they will qualify for the incentives at the time they otherwise would be evaluated for eligibility for advance credit payments. B. Affordability safe harbor Under the proposed regulations, an employer-sponsored plan is not afford- able for an employee or family member for a plan year if, when the employee or family member enrolls in a qualified health plan, an Exchange determines that the eligible employer-sponsored plan is not affordable. Individuals applying for advance credit payments are required to provide the Exchange with information on whether employer-sponsored coverage is available to them. Because an Exchange will make an affordability determination only when an individual represents that employer-sponsored coverage is avail- able, the affordability safe harbor will not be available to a taxpayer who misrep- resents to an Exchange the availability of employer-sponsored coverage. The final regulations provide that the afford- ability safe harbor does not apply if a taxpayer, with reckless disregard for the facts, provides incorrect information to an Exchange concerning an employee’s por- tion of the annual premium for employer coverage. The final regulations clarify that the affordability safe harbor applies only until such time as the availability of employer-sponsored coverage changes. If new or different employer-sponsored coverage becomes available after an indi- vidual enrolls in a qualified health plan, the individual must notify the Exchange and get a new affordability determination to extend the safe harbor. As the preamble to the proposed regulation notes, 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 affordability safe harbor if the employer offers to its full-time employees affordable coverage that provides minimum value. Under 45 CFR 155.335, Exchanges generally will conduct an annual redeter- mination process that will allow individu- als who enroll in a qualified health plan to maintain their eligibility and enrollment for subsequent years with limited burden. This process involves notifying the indi- vidual of the information the Exchange intends to use to make a new determi- nation of eligibility for advance credit payments and soliciting the individual to report changes. The final regulations clarify that the affordability safe harbor does not carry over to later plan years automatically as part of the redetermina- tion process. The affordability safe harbor applies only to a plan year for which a taxpayer responds to the notification and affirmatively provides information relat- ingtotheaffordabilityintheupcoming year of available employer-sponsored cov- erage, allowing an Exchange to determine that employer-sponsored coverage avail- able to the taxpayer for that plan year is unaffordable. C. Eligibility during a waiting period Under section 2708 of the Public Health Service Act, employers are permitted to apply a waiting period of up to 90 days beginning when the employee is otherwise eligible for coverage under a group health plan. See Notice 2012–17, 2012–9 I.R.B. 430. The final regulations clarify that an employee or related individual is treated as not eligible for coverage under the em- ployer’s plan during a waiting period. D. Minimum value The proposed regulations provide that an eligible employer-sponsored plan pro- vides minimum value only if the plan’s share of the total allowed costs of ben- efits provided under the plan is at least 60 percent. Commentators provided var- ious recommendations for determining minimum value. Some commentators re- quested transition relief. Notice 2012–31, 2012–20 I.R.B. 906, solicits additional comments on potential approaches for de- termining minimum value. All comments will be considered in separate guidance on determining minimum value. E. Individuals enrolled in coverage Section 36B(c)(2)(C)(iii) and the pro- posed regulations provide that an individ- ual who enrolls in an eligible employer- sponsored plan is not eligible for the pre- mium tax credit even if the plan is unaf- fordable or fails to offer minimum value. Commentators asked whether an individ- ual who enrolls in an eligible employer- sponsored plan and then terminates cover- age during the plan year is treated as eligi- ble for minimum essential coverage under 2012–24 I.R.B.990June 11, 2012 the plan for the entire plan year under this rule, even though the coverage is unafford- able or does not provide minimum value. Commentators similarly asked if individ- uals who enroll in continuation coverage and then disenroll from it later during the year are treated as eligible for minimum essential coverage for the entire year. In response to these comments, the final reg- ulations clarify that an individual is treated as eligible for minimum essential coverage under an eligible employer-sponsored plan by reason of enrolling in the plan or in con- tinuation coverage only for months the in- dividual is enrolled in the coverage. Commentators expressed concern that an employee may be enrolled automat- ically in employer-sponsored coverage and would be treated as eligible for min- imum essential coverage under an em- ployer-sponsored plan by reason of the automatic enrollment even though the plan is not affordable or does not provide minimum value. The commentators were specifically concerned about the auto- matic enrollment provision in section 18A of the Fair Labor Standards Act (added by section 1511 of the Affordable Care Act), which is applicable to employers with more than 200 full-time employees. (The Department of Labor, which has ju- risdiction over the automatic enrollment provisions under section 18A of the Fair Labor Standards Act, does not intend to require employers to comply with the au- tomatic enrollment provisions until after it publishes regulations and those regula- tions become applicable, and has indicated that the regulations will not take effect by 2014. See Notice 2012–17, Q&A–1.) Commentators also raised concerns about the automatic enrollment of an em- ployee in an employer-sponsored plan for other reasons, which could include auto- matic enrollment that a plan might provide for without regard to the automatic en- rollment requirements of the Affordable Care Act, automatic enrollment that might occur because of administrative error, or automatic re-enrollment in the plan in a subsequent year. The commentators rec- ommended allowing an employee to opt out of the employer-sponsored coverage following automatic enrollment. In response to these comments, the fi- nal regulations provide that an employee or related individual is treated as not en- rolled in an eligible employer-sponsored plan for a month in a plan year or other period if the employee or related individ- ual (1) is automatically enrolled in the plan for that plan year or other period, and (2) terminates the coverage before the later of the first day of the second full calendar month of the plan year or other period or the last day of any permissible opt-out pe- riod provided by the employer-sponsored plan or in regulations to be issued by the Department of Labor. Thus, an individ- ual who is automatically enrolled for a plan year or other period in coverage that is un- affordable or that does not provide mini- mum value and who terminates that cov- erage by the date specified in the preced- ing sentence will not be treated as eligible for minimum essential coverage under the employer-sponsored plan for the months in which the individual was automatically en- rolled in the plan that are within that plan year or period. Accordingly, the individual will not be precluded by the automatic en- rollment from inclusion in the taxpayer’s coverage family for computing the amount of the premium tax credit for those months. iii. Nondependent Eligibility for Minimum Essential Coverage Commentators asked whether individ- uals who may enroll in an eligible em- ployer-sponsored plan based on their rela- tionship to an employee but who are not tax dependents (for example, a 25-year old child or a domestic partner of the em- ployee) are treated as eligible for minimum essential coverage under the plan. In re- sponse to these comments, the final regu- lations provide that an individual who may enroll in minimum essential coverage be- cause of a relationship to another person eligible for the coverage, but for whom the other eligible person does not claim a per- sonal exemption deduction under section 151, is treated as eligible for minimum es- sential coverage under the coverage only for months that the related individual is enrolled in the coverage. This change re- flects the fact that the related individual is a member of a different family with differ- ent household income for purposes of the premium tax credit. Furthermore, a person who may not claim a related individual as a dependent is not responsible for the sec- tion 5000A penalty for the related individ- ual who does not receive coverage. Thus, the final regulations ensure that coverage available through another person does not create an obstacle to a related individual claiming a premium tax credit. 3.Computing the Premium Tax Credit a.Definition of coverage month Section 36B(c)(2)(A)(ii) and the pro- posed regulations provide that a month is a coverage month for an individual only if the individual is enrolled in a qualified health plan and is not eligible for other minimum essential coverage on the first day of the month, and the premiums are paid by the taxpayer or through advance credit payments. Consistent with the proposed regula- tions, the final regulations provide that an individual must be enrolled in a qualified health plan as of the first day of the month for a month to be a coverage month. How- ever, instead of testing whether the indi- vidual is eligible for other minimum es- sential coverage as of the first day of the month, the final regulations provide that an individual may have a coverage month as long as there is at least one day of the month when the individual is not eli- gible for other minimum essential cover- age. The final regulations also clarify that a month is not a coverage month for a tax- payer if the taxpayer’s share of premiums is not paid in full by the unextended due date for filing the taxpayer’s income tax re- turn for the taxable year. b.Third-party payments Under the proposed regulations, pre- miums another person pays for coverage of the taxpayer or a member of the tax- payer’s family for a month are treated as paid by the taxpayer solely for purposes of the month qualifying as a coverage month. Commentators asked for confirmation that an Indian tribe may pay premiums on be- half of a tribal member. The final regula- tions add an example illustrating that pre- miums paid for a taxpayer by an Indian tribe are treated as paid by the taxpayer un- der the coverage month rule. c.Adjusted monthly premium Under section 36B(b)(3)(C), the ad- justed monthly premium is the premium an issuer would charge to cover all members of a taxpayer’s coverage family, adjusted June 11, 20129912012–24 I.R.B. only for age. A commentator noted that the definition of adjusted monthly pre- mium in the proposed regulations does not include the statutory qualification that, in the case of a State participating in the wellness discount demonstration project under section 2705(d) of the Public Health Service Act, the adjusted monthly pre- mium is determined without regard to any premium discount or rebate under the project. The final regulations revise the definition of adjusted monthly premium in accordance with this comment and clarify that the premium may not be adjusted for tobacco use, see section 36B(b)(3)(C). d.Applicable benchmark plan i. In General Under section 36B(b)(3)(B), a tax- payer’s premium tax credit is computed based on the premium for the applicable second lowest cost silver plan in the rating area where the taxpayer resides and of- fered by the Exchange where the taxpayer enrolls in a qualified health plan. For simplicity, the proposed regulations refer to this plan as the applicable benchmark plan. Section 36B(b)(3)(B)(ii) describes the “applicable” benchmark plan as providing self-only or family coverage. The pro- posed regulations define family coverage as insurance that covers more than one in- dividual. The proposed regulations fur- ther provide that a taxpayer’s “applicable” benchmark plan is the benchmark plan that “applies” to the members of the taxpayer’s coverage family. The proposed regulations define the coverage family, in general, as the members of the taxpayer’s family (the individuals for whom the taxpayer prop- erly claims a personal exemption deduc- tion under section 151) who are not eligi- ble for other minimum essential coverage. The final regulations clarify that the cover- age family includes only those individuals in the taxpayer’s family who are not eligi- ble for other minimum essential coverage and enroll in a qualified health plan. For purposes of determining the bench- mark plan that “applies” to a coverage family, the proposed regulations provide that if an Exchange offers categories of family coverage (such as coverage for two adults or coverage for one adult plus chil- dren), the applicable benchmark plan for family coverage is the coverage category that applies to the members of the tax- payer’s coverage family who enroll in a qualified health plan. The final regula- tions delete the reference to coverage cat- egories. The final Exchange rules promul- gated by HHS removed references to rat- ing categories, which are a parallel con- cept to coverage categories. The final reg- ulations provide that the applicable bench- mark plan for family coverage is the plan that applies to the members of the tax- payer’s coverage family. Commentators requested clarification on how the applicable benchmark plan would be determined for a qualified health plan that covers children only. The fi- nal regulations provide an example in response to this comment. ii. Families Not Covered by One Applicable Benchmark Plan The proposed regulations provide that the premium for the applicable benchmark plan is the sum of the premiums for the ap- plicable benchmark plans that cover com- ponents of the taxpayer’s coverage family if a single benchmark plan would not cover the family, for example because members live in different rating areas. The final reg- ulations provide that, if there is at least one silver level plan offered on an Exchange that does not cover all members of a tax- payer’s coverage family under one policy and premium, for example because of non- traditional relationships within the family, the premium for the applicable benchmark plan is the single premium or the combi- nation of premiums that is the second low- est cost silver option for covering the entire family. The final regulations reserve rules for determining the applicable benchmark plan for families with members residing in different locations. Commentators stated that the final reg- ulations should allow domestic partners and other two-adult groups to use a fam- ily benchmark plan to compute their pre- mium tax credit if the Exchange allows both adults to be covered by the same qual- ified health plan. The final regulations do not adopt this suggestion. If the adults con- stitute two separate households for Federal tax purposes, section 36B requires a sep- arate credit computation for each house- hold that includes only those individuals for whom each taxpayer claims a personal exemption deduction under section 151. iii. Plans Closed to Enrollment The proposed regulations provide that, in general, an applicable benchmark plan is the second lowest cost silver plan offered through the Exchange at the time a tax- payer or family member enrolls. However, a plan does not cease to be a taxpayer’s applicable benchmark plan for that enroll- ment period because the plan or a lower cost plan closes to enrollment during the taxable year. Thus, a plan may continue to be an applicable benchmark plan if it closes to enrollment after a taxpayer en- rolls in a qualified health plan, but it is disregarded in determining the applicable benchmark plan if it is closed to enrollment at the time the taxpayer enrolls. A commentator requested that the fi- nal regulations exclude certain qualified health plans open to enrollment only to cer- tain individuals when determining which plan constitutes a taxpayer’s applicable benchmark plan. The final regulations clarify that a plan is taken into account in determining the taxpayer’s applicable benchmarkplanonlyifitisopentoen- rollment to one or more members of a taxpayer’s coverage family. iv. Changes Affecting Applicable Benchmark Plan Commentators asked whether a tax- payer’s applicable benchmark plan is locked in at enrollment and whether the benchmark plan could change during the year if a plan is decertified or if members of the taxpayer’s family leave the plan. The proposed regulations provide that a taxpayer’s applicable benchmark plan may change from month to month if changes in the taxpayer’s coverage family occur (for example, if a family member becomes eligible or ineligible for minimum essen- tial coverage during the taxable year). The proposed regulations also provide that a taxpayer’s applicable benchmark plan does not cease to be the applicable benchmark plan solely because the plan, or a lower cost plan, terminates or closes to enrollment during the year. The final regulations adopt the proposed regulations without change. 2012–24 I.R.B.992June 11, 2012 e.Combining qualified health plan premiums with premiums for other coverage Section 36B(b) and the proposed regu- lations provide that the premium tax credit is the lesser of (1) the premiums for the qualified health planor plans in which a taxpayer or family member enrolls, or (2) the difference between the premium for a benchmark qualified health plan and the amount of the premium that the taxpayer would be required to pay if the taxpayer purchased the benchmark plan (the tax- payer’s contribution amount). Commen- tators suggested that the final regulations allow taxpayers to determine the premium tax credit by combining the premiums for one or more qualified health plans with premiums a taxpayer pays for other min- imum essential coverage (particularly pre- miums for coverage under CHIP). Under the rule suggested by the commentators, the taxpayer’s contribution amount would be reduced by the amount of the family’s other premiums to ensure that a family could afford the combined premiums for qualified health plan coverage and CHIP or other coverage. Under section 36B(b)(2), the premium tax credit is computed by taking into ac- count only the premiums for qualified health plans. Thus, the credit may not be increased for premiums for other mini- mum essential coverage. f.Pediatric dental coverage Under section 36B(b)(3)(E), if an in- dividual enrolls in both a qualified health plan and a dental plan, the portion of the premium for the dental plan properly allo- cable to pediatric dental benefits that are essential health benefits is treated as pre- miums payable for a qualified health plan for purposes of determining the monthly premium. The proposed regulations re- quested comments on methods for deter- mining the amount of the premium prop- erly allocable to pediatric dental benefits. Commentators requested that the final regulations use a methodology that reflects the true costs of medical and dental care for children. Other commentators recom- mended that the Federal government split the value of the premium tax credit on a basis proportionate to the premium for the pediatric service in the dental plan and the qualified health plan premium. Some commentators requested a simple formula for allocating a taxpayer’s dental benefits premium to pediatric dental care. A com- mentator requested a safe harbor permit- ting dental insurance carriers to use a rea- sonable method based on sound actuarial practice. The final regulations provide that the portion of the premium for a stand-alone dental plan properly allocable to pediatric dental benefits is determined under guid- ance issued by HHS. Under the final HHS Exchange regulations at 45 CFR 156.210, a qualified health plan issuer that offers a standalone dental plan is required to pro- videinformationontheplan’sratestothe Exchange each year. It is anticipated that future HHS guidance will address how this required reporting on rates will include re- portingontheportionofthepremiumal- locable to pediatric dental coverage. g.Families with individuals not lawfully present Section 36B(e)(1)(B) describes a method for determining the FPL percent- age for families that include an individual not lawfully present (the statutory method) and allows a comparable method that reaches the same results to be prescribed by regulations. Commentators suggested that the final regulations provide a compa- rable method based on the Medicaid rules for income and family size determinations. The commentators’ suggested method may not reach the same result as the statu- tory method. Thus, the final regulations do not adopt this suggestion. The final regu- lations provide that the Commissioner may provide a comparablemethod in additional published guidance, see §601.601(d)(2). 4.Reconciling the Credit and Advance Credit Payments a.Months for which an issuer does not provide coverage Section 1412(c)(2)(B) of the Afford- able Care Act provides that an issuer re- ceiving an advance credit payment must reduce the premiums charged to the in- suredfortheperiodcoveredbythead- vance payment but may terminate cover- age if the insured fails to pay premiums for a 3-month period. The final HHS Ex- change regulations describe the operation of this grace period in more detail. Under the retroactive termination rule, if a tax- payer does not pay premiums in full for 3 months, the issuer must terminate cov- erage retroactive to the end of the first of those months and will be required to re- turn any advance payments received for any terminated coverage months. These fi- nal regulations clarify that a taxpayer does not have an advance credit payment for a month in which the issuer of the qualified health plan does not provide coverage and will not be required to reconcile payments for those months. The taxpayer will, how- ever, have to reconcile the payment for the first month of the grace period. If the tax- payer has not paid the taxpayer’s share of the premium for that month by the unex- tended due date for filing the return, the first month is not a coverage month, and the taxpayer is not eligible for the premium tax credit for that month. b.Changes in circumstances Section 36B(f) provides that a taxpayer must reconcile on the taxpayer’s income tax return for the taxable year the pre- mium tax credit allowed under section 36B with the advance payments paid during the course of the taxable year and must pay the amount of any excess advance payments as additional tax. For taxpayers with house- hold income below 400 percent of the FPL, the amount of additional tax liability the taxpayer must repay is capped. Commentators requested that the final regulations include rules to mitigate the ef- fects of the requirement to repay excess advance payments. Commentators sug- gested that the final regulations adopt a safe harbor for individuals and families who can demonstrate that they accurately reported any changes in income or fam- ily size to the Exchange and that their ad- vance payments were properly computed based on the information available at the time the payments were made. Commen- tators suggested that taxpayers who ex- perience changes in circumstances during the year, including taxpayers whose house- hold income for thetaxable year exceeds 400 percent of the FPL, should be allowed to prorate the repayment limitations based on the portion of the year the taxpayer re- ceives advance payments. Other commen- tators asked that taxpayers who would ex- perience a hardship as a result of repaying June 11, 20129932012–24 I.R.B. excess advance payments be exempt from the repayment requirement or that the IRS should disregard changes that cause in- come to slightly exceed 400 percent of the FPL. Commentators also suggested that taxpayers be allowed to compute their pre- mium tax credit using the largest family size of the household during the year rather than the family size reported on the tax re- turn. The statute sets forth clear rules for rec- onciling advance credit payments, which are not consistent with the suggestions made by the commentators. Accordingly, the final regulations do not adopt these comments. Commentators suggested that the IRS should offer automatic payment plans for taxpayers who have an additional tax li- ability and should not impose interest or penalties on this additional tax liability re- paid through the payment plan. Although these comments are beyond the scope of these final regulations, the IRS will con- sider possible avenues of administrative relief in appropriate cases for taxpayers who have additional tax liability as a result of excess advance payments. c.Changes in filing status i. Taxpayers Who Marry During the Taxable Year The proposed regulations provide that, like other taxpayers, newly-married tax- payers compute their premium tax credit using family size and household income as reported on their tax return and the appro- priate applicable benchmark plan for each coverage month regardless of whether the taxpayers were married or single during the month. The proposed regulations re- quest comments on alternative credit com- putations for taxpayers who receive ad- vance payments, marry during the year, and owe additional tax, even if the Ex- change accurately projects each spouse’s separate income. Some commentators suggested an al- ternative computation that computes the credit for the single months separately for each spouse as if each taxpayer’s annual income was one-half of the actual house- hold income for the year. For the married months, the credit would be computed using actual household income for the year. The premium tax credit would be the sum of the credits computed for the sin- gle months and the married months. This computation generally results in a smaller amount of excess advance payments com- pared to the amount computed under the proposed regulations. The final regulations adopt the alterna- tive credit computation suggested by the commentators as an option for taxpayers who marry during the taxable year. Under this alternative method, the credit for the single months is computed separately for each spouse as if each taxpayer’s annual income was one-half of the actual house- hold income for the year, the credit for the married months is computed using ac- tual household income for the year, and the premium tax credit is the sum of the credits computed for the single months and the married months. However, to avoid allowing taxpayers an increased amount of additional premium tax credit resulting from marriage, the final regulations cap any additional premium tax credit allowed to a taxpayer under this alternative com- putation method at the amount of addi- tional credit that results from computing the credit under the general rule. Commentators requested that the fi- nal regulations allow a year-of-marriage waiver on repaying excess advance pay- ments. The final regulations do not adopt these comments as these rules would cre- ate unwarranted benefits, for example in cases of taxpayers who marry during the year and owe additional tax because their income is significantly higher than what the Exchange projected. ii. Taxpayers Whose Marital Status Changes from Married to Single During the Taxable Year The proposed regulations provide that taxpayers who are married to each other at the beginning but not at the end of the tax- able year must allocate the premium for the applicable benchmark plan, the premium for the plan in which the taxpayers enroll, and the advance credit payments for the period the taxpayers are married. The pro- posed regulations permit the allocation to be made in any proportion, but if the tax- payers cannot agree on a proportion, these items are allocated 50 percent to each tax- payer. Commentators opined that the final regulations should provide for allocating these items to each taxpayer in proportion to each taxpayer’s household income. The final regulations do not adopt this sugges- tion as it would require divorced taxpayers to exchange income information or require the IRS to associate each taxpayer’s return with the other. Divorced taxpayers may allocate the premium for the applicable benchmark plan, the premium for the plan in which the taxpayers enroll, and the advance credit payments in proportion to household income under the final regula- tions if they choose. iii. Married Taxpayers Filing Separately Section 36B(c)(1)(C) provides that marriedtaxpayerswhodonotfileajoint return are not applicable taxpayers and are not allowed a premium tax credit. Ac- cordingly, married taxpayers who receive advance credit payments but do not file a joint return must repay the advance credit payments. The advance credit payments must be allocated equally to each taxpayer for purposes of determining the amount of excess advance payments. The final regulations clarify that this equal alloca- tion also applies if one spouse is treated as unmarried under section 7703(b) (and may, for example, properly claim the pre- mium tax credit on a return filed as head of household). The proposed regulations requested comments on special rules for taxpayers who receive advance payments but face challenges in meeting the joint return re- quirement, for example because of the incarceration of a spouse, domestic abuse, or a pending divorce. Numerous commentators stated that the final regulations should provide spe- cial rules allowing these spouses to file separate returns and claim the premium tax credit. Commentators suggested that abandoned spouses also warrant an excep- tion. Other commentators noted that other married taxpayers may face challenges in filing a joint return and asked for a hardship exemption from the joint filing requirement. Commentators suggested that taxpayers should be able to certify on the premium tax credit form that they meet the crite- ria for an exemption from the joint filing requirement. One commentator suggested granting an exception in case of domestic 2012–24 I.R.B.994June 11, 2012 violence for a taxpayer who has or during the taxable year had an order of protection. Some commentators, noting that many of these situations are not resolved in a single taxable year, requested a three-year exception to the joint filing requirement. The final regulations do not provide special rules allowing married taxpayers to claim the premium tax credit on separate returns. However, the IRS and the Trea- sury Department intend to propose addi- tional regulations regarding eligibility for the premium tax credit to address circum- stances in which domestic abuse, abandon- ment, or similar circumstances create ob- stacles to the ability of taxpayers to file joint returns. Comments are requested on the documentation that a taxpayer could provide to establish that he or she cannot file a joint return because of the domes- tic abuse, abandonment, or other similar circumstances, on what treatment should be accorded the other spouse if he or she does not file with documentation support- ing an exception, and the need for anti- abuse rules. 5.Information Reporting Commentators requested that the final regulations require an Exchange, in report- ing information under section 36B(f)(3), to strictly define and limit the use and dis- closure of immigration status information for any purpose other than ensuring effi- cient operation of the Exchange and pro- hibit the transfer of immigration status in- formation from the Exchange to the IRS. The final regulations do not include a rule responding to these comments because the IRS does not require information on immi- gration status of any individual in order to administer the premium tax credit and will not obtain this information. The Exchange will verify that an individual is a citizen or lawfully present and eligible to enroll in coverage through the Exchange. The proposed regulations provide that the IRS will provide rules on the time and manner of information reporting by Exchanges in additional published guid- ance, see §601.601(d)(2). Commentators requested that the final regulations pro- vide information on the time and manner of information reporting by Exchanges. A commentator suggested that the informa- tion returns should be provided to taxpay- ers by December 31. Another commenta- tor suggested that the annual information return should report the cost of the applica- ble benchmark plan on the first day of each month. The final regulations defer rules on the time for information reporting by Ex- changes to additional regulations, which are expected to provide for monthly report- ing by Exchanges to the IRS and an annual report to the IRS and the taxpayer due by January 31. 6.American Indians/Alaska Natives Commentators asked that the final reg- ulations provide special provisions for American Indians and Alaska Natives, for example that they be treated as eligible for employer-sponsored minimum essential coverage only if they are enrolled in the coverage, that they should not be required to pay any premiums for a qualified health plan, and that they be exempted from reconciliation. The IRS and HHS have conducted several tribal consultations on these and other issues under the proposed regulations. The final regulations do not adopt these suggestions, as they are incon- sistent with the statute. 7.Effective/Applicability Date These final regulations apply to taxable years ending after December 31, 2013. Special Analyses It has been determined that this Trea- sury decision is not a significant regula- tory action as defined in Executive Order 12866, as supplemented by Executive Or- der 13563. Therefore, a regulatory assess- ment is not required. Section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regu- lations, and, becausethe 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, the notice of proposed rule- making that preceded these final regula- tions was submitted to the Chief Counsel for Advocacy of the Small Business Ad- ministration for comment on its impact on small business, and no comments were re- ceived. Comments Written(includingelectronic) comments must be received by August 21, 2012. Comments should be submitted to Internal Revenue Service, CC:PA:LPD:PR(REG–131491–10), Room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044, or electronically towww.regulations.gov (IRS REG–131491–10). Alternatively, comments may be hand delivered between the hours of 8:00 a.m. and 4:00 p.m. MondaytoFridaytoCC:PA:LPD:PR (REG–131491–10), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue NW, Washington, D.C. All comments will be available for public inspection and copying. Drafting Information The principal authors of these fi- nal regulations are Shareen S. Pflanz, Frank W. Dunham III, Andrew S. Braden, 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 their development. ***** Adoption of Amendments to the Regulations Accordingly, 26 CFR parts 1 and 602 are amended as follows: PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding an entry in numerical 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. June 11, 20129952012–24 I.R.B. (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 povertyline 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) Obligation to complete administra- tive requirements to obtain coverage. (iii) Special rule for coverage for veter- ans and other individuals under chapter 17 or 18 of Title 38, U.S.C. (iv) Retroactive effect of eligibility de- termination. (v) Determination of Medicaid or Chil- dren’s Health Insurance Program (CHIP) ineligibility. (vi) Examples. (3) Employer-sponsored minimum es- sential coverage. (i) In general. (ii) Plan year. (iii) Eligibility for months during a plan year. (A) Failure to enroll in plan. (B) Waiting periods. (C) Example. (iv) Continuation coverage. (v) Affordable coverage. (A) In general. (1) Affordability for employee. (2) Affordability for related individual. (3)Employeesafeharbor. (4) Wellness incentives and employer contributions to health reimbursement ar- rangements. (B) Affordability for part-year period. (C) Required contribution percentage. (D) Examples. (vi) Minimum value. (vii) Enrollment in eligible employer- sponsored plan. (A) In general. (B) Automatic enrollment. (C) Examples. (4) Related individual not claimed as a personal exemption deduction. §1.36B–3 Computing the premium assistance credit amount. (a) In general. (b) Definitions. (c) Coverage month. (1) In general. (2) Premiums paid for a taxpayer. (3) Examples. (d) Premium assistance amount. (e) Adjusted monthly premium. (f) Applicable benchmark plan. (1) In general. (2) Family coverage. (3) Silver level plan not covering a tax- payer’s family. (4) Family members residing at differ- ent locations. (5) Plan closed to enrollment. (6) Benchmark plan terminates or closes to enrollment during the year. (7) Examples. (g) Applicable percentage. (1) In general. (2) Applicable percentage table. (3) Examples. (h) Plan covering more than one family. (1) In general. (2) Example. (i) Reserved. (j) Additional benefits. (1) In general. (2) Method of allocation. (3) Examples. (k) Pediatric dental coverage. (1) In general. (2) Method of allocation. (3) Example. (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) Coordination of premium tax credit with advance credit payments. (i) In general. (ii) Responsibility for advance credit payments. (iii) Advance credit payment for a month in which an issuer does not provide coverage. (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 who marry during the taxable year. (i) In general. (ii) Alternative computation of addi- tional tax liability. (A) In general. (B) Alternative premium assistance amounts for pre-marriage months. (C) Premium assistance amounts for marriage months. (3) Taxpayers not married to each other at the end of the taxable year. (4) Married taxpayers filing separate re- turns. (5) Taxpayers filing returns as head of household and married filing separately. (6) Examples. §1.36B–5 Information reporting by Exchanges. (a) Information required to be reported. (b) Time of reporting. (c) Manner of reporting. 2012–24 I.R.B.996June 11, 2012 §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)), the Department of Defense and Full-Year Continuing Appropriations Act, 2011, Public Law 112–10 (125 Stat. 38 (2011)), and the 3% Withholding Repeal and Job Creation Act, Public Law 112–56 (125 Stat. 711 (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 may in- clude individuals who are not subject to or are exempt from the penalty under section 5000Aforfailingtomaintainminimum essential coverage. (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 a return of tax imposed by section 1 for the taxable year (determined without regard to the excep- tion under section (1)(g)(7) to the require- ment 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— (i) Amounts excluded from gross in- come under section 911; (ii) Tax-exempt interest the taxpayer re- ceives or accrues during the taxable year; and (iii) Social security benefits (within the meaning of section 86(d)) not included in gross income under section 86. (f)Dependent. Dependent has the same meaning as in section 152. (g)Lawfully present. Lawfully present hasthesamemeaningasin45CFR 155.20. (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 annual open enrollment period preceding that taxable year. See 45 CFR 155.410. If a taxpayer’s primary residence changes during a taxable year from one state to a state with different Federal poverty guide- lines or married taxpayers reside in sepa- rate states with different Federal poverty guidelines (for example, Alaska or Hawaii and another state), the Federal poverty line that applies for purposes of section 36B and the associated regulations is the higher Federal poverty guideline (resulting in a lower percentage of the Federal poverty line for the taxpayers’ household income and family size). (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.[Reserved] (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 one or more members of the applicable tax- payer’s family (the applicable taxpayer or the applicable taxpayer’s spouse or depen- dent)— (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 (other than incarcer- ation pending disposition of charges) is not eligible to enroll in a qualified health plan through an Exchange. How- ever, the individual may be an appli- cable taxpayer if a family member is eligible to enroll in a qualified health plan. See sections 1312(f)(1)(B) and June 11, 20129972012–24 I.R.B. 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 lawfully present taxpayer or family member is not eligible for the Med- icaid 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 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 in- come 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.Anin- dividual is eligible for government-spon- sored minimum essential coverage if the individual meets the criteria for coverage under a government-sponsored program described in section 5000A(f)(1)(A) as of the first day of the first full month the individual may receive benefits under the program, subject to the limitation in paragraph (c)(2)(ii) of this section. The Commissioner may define eligibility for specific government-sponsored programs further in additional published guidance, see §601.601(d)(2) of this chapter. (ii)Obligation to complete administra- tive requirements to obtain coverage.An individual who meets the criteria for eligi- bility for government-sponsored minimum essential coverage must complete the re- quirements necessary to receive benefits. An individual who fails by the last day of the third full calendar month following the event that establishes eligibility under paragraph (c)(2)(i) of this section to com- plete the requirements to obtain govern- ment-sponsored minimum essential cov- erage (other than a veteran’s health care program) is treated as eligible for govern- ment-sponsored minimum essential cover- age as of the first day of the fourth calendar month following the event that establishes eligibility. (iii)Special rule for coverage for vet- erans and other individuals under chapter 17 or 18 of Title 38, U.S.C. An individual is eligible for minimum essential coverage under a health care program under chapter 17 or 18 of Title 38, U.S.C. only if the indi- vidual is enrolled in a health care program under chapter 17 or 18 of Title 38, U.S.C. identified as minimum essential coverage in regulations issued under section 5000A. (iv)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. (v)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, when the individ- ual enrolls in the qualified health plan, an Exchange determines or considers (within the meaning of 45 CFR 155.302(b)) the in- dividual to be not eligible for Medicaid or CHIP. (vi)Examples. The following examples illustrate the provisions of this paragraph (c)(2): Example 1.Delay in coverage effectiveness.On April 10, 2015, Taxpayer D applies for coverage under a government-sponsored health care program. D’s application is approved on July 12, 2015, but her coverage is not effective until September 1, 2015. Under paragraph (c)(2)(i) of this section, D is eli- gible for government-sponsored minimum essential coverage on September 1, 2015. Example 2.Time of eligibility. Taxpayer E turns 65 on June 3, 2015, and becomes eligible for Medi- care. Under section 5000A(f)(1)(A)(i), Medicare is minimum essential coverage. However, E must en- roll in Medicare to receive benefits. E enrolls in Medicare in September, which is the last month of E’s initial enrollment period. Thus, E may receive Medi- care benefits on December 1, 2015. Because E com- pleted the requirements necessary to receive Medi- care benefits by the last day of the third full calendar month after the event that establishes E’s eligibility (E turning 65), under paragraph (c)(2)(i) and (c)(2)(ii) of this section E is eligible for government-sponsored minimum essential coverage on December 1, 2015, 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 during E’s initial enrollment period. E is treated as eligible for government-spon- sored minimum essential coverage under paragraph (c)(2)(ii) of this section as of October 1, 2015, the first day of the fourth month following the event that establishes E’s eligibility (E turning 65). Example 4.Retroactive effect of eligibility.In November 2014, Taxpayer F enrolls in a qualified health plan for 2015 and receives advance credit payments. F loses her part-time employment and on April 10, 2015 applies for coverage under the Medicaid program. F’s application is approved on May 15, 2015, and her Medicaid coverage is effective as of April 1, 2015. Under paragraph (c)(2)(iv) of this section, F is eligible for government-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 G applies through the Exchange to enroll in health coverage for 2015. The Exchange determines that G is not eligible for Medicaid and estimates that G’s household income will be 140 percent of the Federal poverty line for G’s family size for purposes of determining advance credit payments. G enrolls in a qualified health plan 2012–24 I.R.B.998June 11, 2012 and begins receiving advance credit payments. G ex- periences a reduction in household income during the year and his household income for 2015 is 130 per- cent of the Federal poverty line (within the Medic- aid income threshold). However, under paragraph (c)(2)(v) of this section, G is treated as not eligible for Medicaid for 2015. Example 6.Mid-year Medicaid eligibility rede- termination.ThefactsarethesameasinExample 5, except that G returns to the Exchange in July 2015 and the Exchange determines that G is eligible for Medicaid. Medicaid approves G for coverage and the Exchange discontinues G’sadvance credit payments effective August 1. Under paragraphs (c)(2)(iv) and (c)(2)(v) of this section, G is treated as not eligible for Medicaid for the months when G is covered by a qual- ified health plan. G is eligible for government-spon- sored minimum essential coverage for the months af- ter G is approved for Medicaid and can receive ben- efits, 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 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 months during a plan year—(A)Failure to enroll in plan.An employee or related individual may be el- igible for minimum essential coverage un- der an eligible employer-sponsored plan for a month during a plan year if the em- ployee or related individual could have en- rolled in the plan for that month during an open or special enrollment period. (B)Waiting periods.Anemployeeor related individual is not eligible for min- imum essential coverage under an eligi- ble employer-sponsored plan during a re- quired waiting period before the coverage becomes effective. (C)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. Therefore, unless X’s plan is not affordable for B or does not provide minimum value, B is eligible for minimum essential coverage under X’s plan for the months that B is enrolled in the qualified health plan during X’s plan year (January through September 2015). (iv)Continuation coverage. An indi- vidual who may enrollin continuation cov- erage required under Federal law or a State law that provides comparable continuation coverage is eligible for minimum essential coverage only for months that the individ- ual is enrolled in the coverage. (v)Affordable coverage—(A)In general—(1)Affordability for em- ployee. Except as provided in paragraph (c)(3)(v)(A)(3) of this section, an eligible employer-sponsored plan is affordable for an employee if the portion of the an- nual premium the employee must pay, whether by salary reduction or otherwise (required contribution), for self-only cov- erage does not exceed the required contri- bution percentage (as defined in paragraph (c)(3)(v)(C) of this section) of the appli- cable taxpayer’s household income for the taxable year. (2)Affordability for related individual. [Reserved] (3)Employee safe harbor.Anem- ployer-sponsored plan is not affordable for an employee or a related individual for a plan year if, when the employee or a related individual enrolls in a qual- ified health plan for a period coinciding with the plan year (in whole or in part), an Exchange determines that the eligible employer-sponsored plan is not afford- able for that plan year. This paragraph (c)(3)(v)(A)(3) does not apply to a de- termination made as part of the redeter- mination process described in 45 CFR 155.335 unless the individual receiving an Exchange redetermination notification af- firmatively responds and provides current information on affordability. This para- graph (c)(3)(v)(A)(3) does not apply for an individual who, with reckless disregard for the facts, provides incorrect information to an Exchange concerning the portion of the annual premium for coverage for the employee or related individual under the plan. (4)Wellness incentives and employer contributions to health reimbursement arrangements. The Commissioner may provide rules in published guidance, see §601.601(d)(2) of this chapter, for de- termining how wellness incentives and amounts made available under a health reimbursement arrangement are treated in determining the affordability of eligible employer-sponsored coverage under this paragraph (c)(3)(v). (B)Affordability for part-year period. Affordability under paragraph (c)(3)(v)(A) of this section is determined separately for each employment period that is less than a full calendar year or for the portions of an employer’s plan year that fall in differ- ent taxable years of an applicable taxpayer (a part-year period). An eligible employer- sponsored plan is affordable for a part-year period if the employee’s annualized re- quired contribution for self-only coverage under the plan for the part-year period does not exceed the required contribution per- centage of the applicable taxpayer’s house- hold income for the taxable year. The em- ployee’s annualized required contribution is the employee’s required contribution for the part-year period times a fraction, the numerator of which is 12 and the denomi- nator of which is the number of months in the part-year period during the applicable taxpayer’s taxable year. Only full calen- dar months are included in the computa- tion under this paragraph (c)(3)(v)(B). (C)Required contribution percentage. The required contribution percentage is 9.5 percent. The percentage may be adjusted in published guidance, 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 premiumgrowthrelativetogrowthinthe consumer price index. (D)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 June 11, 20129992012–24 I.R.B. 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)ofthissection,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.[Reserved] Example 3.Determination of unaffordability at enrollment. (i) Taxpayer D is an employee of Em- ployer X. In November 2013 the Exchange for D’s rating area projects that D’s 2014 household income will be $37,000. It also verifies that D’s required contribution for self-only coverage under X’s health insurance plan will be $3,700 (10 percent of house- hold income). Consequently, the Exchange deter- mines that X’s plan is unaffordable. D enrolls in a qualified health plan and not in X’s plan. In Decem- ber 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 per- cent of D’s 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)(3)ofthissection,X’s plan is not affordable for D and D is not eligible for minimum essential coverage under X’s plan for 2014. Example 4.Determination of unaffordability for plan year. ThefactsarethesameasinExample 3, except that X’s employee health insurance plan year is September 1 to August 31. The Exchange for 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)(3) of this section, X’s plan is not afford- able for D and D is not eligible for minimum essen- tial coverage under X’s plan for the coverage months September to December 2014 and January through August 2015. Example 5. No affordability information affirma- tively provided for annual redetermination.(i)The facts are the same as inExample 3, except the Ex- change redetermines D’s eligibility for advance credit payments for 2015. D does not affirmatively provide the Exchange with current information regarding af- fordability and the Exchange determines that D’s cov- erage is not affordable for 2015 and approves advance credit payments based on information from the previ- ous enrollment period. In 2015, D’s required contri- bution for coverage under X’s plan is 9.4 percent of D’s household income. (ii) Because D does not respond to the Exchange notification and the Exchange makes an affordability determination based on information from an ear- lier year, the employee safe harbor in paragraph (c)(3)(v)(A)(3) of this section does not apply. D’s required contribution for 2015 does not exceed 9.5 percent of D’s household income. Thus, X’s plan is affordable for D for 2015 and D is eligible for minimum essential coverage for all months in 2015. Example 6.Determination of unaffordability for part of plan year (part-year period). (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 contribu- tion for self-only coverage for May through August is $150 per month ($1,800 for the full plan year). The Exchange for E’s rating area projects 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) Under paragraph (c)(3)(v)(B) of this section, whether coverage under X’splan is affordable for E is determined for the remainder of X’s plan year (May through August). E’s required contribution for a full plan year ($1,800) exceeds 9.5 percent of E’s house- hold income (1,800/18,000 = 10 percent). Therefore, the Exchange determines that X’s coverage is unaf- fordable for May through August. Although E’s ac- tual 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)(3) of this section, X’s plan is unafford- able for E for the part of the plan year May through August 2015. Consequently, E is not eligible for min- imum essential coverage under X’s plan for the period May through August 2015. Example 7.Affordability determined for part of a taxable year (part-year period). (i) Taxpayer F is 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 en- roll in X’s plan during X’s open season but enrolls in a qualified health plan for September through Decem- ber 2014. F does not request advance credit payments and does not ask the Exchange for his rating area to determine whether X’s coverage is affordable for F. 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 determine the affordability of X’s coverage for the part-year period in 2014 (September-December) un- der paragraph (c)(3)(v)(B) of this section. 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 toapprove advance credit payments or determine whether X’s coverage is af- fordable. 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 8.Coverage unaffordable at year end. TaxpayerGisemployedbyEmployerX.InNovem- ber 2014, the Exchange for 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)ofthissection,Gisnoteli- gible for minimum essential coverage under X’s plan for 2015. (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 to the employee under the plan (as determined under guidance issued by the Secretary of Health and Human 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. Except as provided in paragraph (c)(3)(vii)(B) of this section, the requirements of afford- ability and minimum value do not apply for months that an individual is enrolled in an eligible employer-sponsored plan. (B)Automatic enrollment.Anem- ployee or related individual is treated as not enrolled in an eligible employer-spon- sored plan for a month in a plan year or other period for which the employee or re- lated individual is automatically enrolled if the employee or related individual ter- minates the coverage before the later of the first day of the second full calendar month of that plan year or other period or the last day of any permissible opt-out pe- riod provided by the employer-sponsored plan or in regulations to be issued by the Department of Labor, for that plan year or other period. (C)Examples. The following examples illustrate the provisions of this paragraph (c)(3)(vii): Example 1. Taxpayer H is employed by Employer X in 2014. H’s required contribution for self-only employer coverage exceeds 9.5 percent of H’s 2014 household income. H enrolls in X’s calendar year plan for 2014. Under paragraph (c)(3)(vii)(A) of this section, H is eligible for minimum essential cover- age for 2014 because H is enrolled in an eligible em- ployer-sponsored plan for 2014. 2012–24 I.R.B.1000June 11, 2012 Example 2. The facts are the same as inExample 1, except that H terminates plan coverage on June 30, 2014. Under paragraph (c)(3)(vii)(A) of this section, H is eligible for minimum essential coverage under X’s plan for January through June 2014 but is not eligible for minimum essential coverage under X’s plan for July through December 2014. Example 3. ThefactsarethesameasinExam- ple 1, except that Employer X automatically enrolls H in the plan for calendar year 2015. H terminates the coverage on January 20, 2015. Under paragraph (c)(3)(vii)(B) of this section, H is not eligible for min- imum essential coverage under X’s plan for January 2015. (4)Related individual not claimed as a personal exemption deduction.Anin- dividual who may enroll in minimum es- sential coverage because of a relationship to another person eligible for the cover- age, but for whom the other eligible person does not claim a personal exemption de- duction under section 151, is treated as el- igible for minimum essential coverage un- der the coverage only for months that the related individual is enrolled in the cover- age. §1.36B–3 Computing the premium as- sistance 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 en- roll in a qualified health plan and are not eligible for minimum essential coverage (other than coverage in the individual mar- ket). (c)Coverage month—(1)In general.A month is a coverage month for an individ- ual if— (i) As of the first day of the month, the individual is enrolled in a qualified health plan through an Exchange; (ii) The taxpayer pays the taxpayer’s share of the premium for the individual’s coverage under the plan for the month by the unextended due date for filing the tax- payer’s income tax return for that taxable year, or the full premium for the month is paid by advance credit payments; and (iii) The individual is not eligible for the full calendar month for minimum essential coverage (within the meaning of §1.36B–2(c)) other than coverage de- scribed in section 5000A(f)(1)(C) (relating to coverage in the individual market). (2)Premiums paid for a taxpayer.Pre- miums another person pays for coverage of the taxpayer, taxpayer’s spouse, or depen- dent are treated as paid by the taxpayer. (3)Examples. The following examples illustrate the provisions of this paragraph (c): Example 1. (i) Taxpayer M is single with no de- pendents. In December 2013, M enrolls in a quali- fied health plan for 2014 and the Exchange approves advance credit payments. M pays M’s share of the premiums. On May 15, 2014, M enlists in the U.S. Army and is eligible immediately for government- 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 terminates enroll- ment in the qualified health plan that covers only N and enrolls in a qualified health plan that covers N and S for August through December 2014. N pays all premiums not covered by advance credit payments. (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. How- ever, O must pay premiums for health insurance for T. P enrolls T in a qualified health plan for 2014. O pays the portion of T’s qualified health plan premi- ums not covered by advance credit payments. (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 and not eligible for other minimum essential coverage are coverage months under paragraph (c)(1) of this section in com- puting P’s premium tax credit under paragraph (a) of this section. Example 4. Q, an American Indian, enrolls in a qualified health plan for 2014. Q’s tribe pays the por- tion of Q’s qualified health plan premiums not cov- ered by advance credit payments. Under paragraph (c)(2) of this section, the premiums that Q’s tribe pays for Q are treated as paid by Q. Thus, the months when Q is covered by a qualified health plan and not eligi- ble for other minimum essential coverage are cover- age months under paragraph (c)(1) of this section in computing Q’s premium taxcredit under paragraph (a)ofthissection. (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 1/12 of the product of a tax- payer’s household income and the appli- cable percentage for the taxable year. (e)Adjusted monthly premium.The adjusted monthly premium is the premium an issuer 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). The adjusted monthly premium is determined without regard to any premium discount or rebate under the wellness discount demonstration project under section 2705(d) of the Public Health Service Act (42 U.S.C. 300gg–4(d)) and may not include any adjustments for tobacco use. (f)Applicable benchmark plan—(1) In general. Except as otherwise pro- vided in this paragraph (f), the applica- ble benchmark plan for each coverage month is 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))) offered through the Ex- change for the rating area where the tax- payer 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. The applicable benchmark plan for family coverage is the second lowest cost silver plan that applies to the members of the taxpayer’s coverage June 11, 201210012012–24 I.R.B. family (such as a plan covering two adults if the members of a taxpayer’s coverage family are two adults). (3)Silver level plan not covering a tax- payer’s family. If one or more silver level plans for family coverage offered through an Exchange do not cover all members of a taxpayer’s coverage family under one policy (for example, because of the rela- tionships within the family), the premium for the applicable benchmark plan deter- mined under paragraphs (f)(1) and (f)(2) of this section may be the premium for a single policy or for more than one policy, whichever is the second lowest cost silver option. (4)Family members residing at differ- ent locations.[Reserved] (5)Plan closed to enrollment. A qual- ified health plan that is not open to en- rollment by a taxpayer or family member at the time the taxpayer or family mem- ber enrolls in a qualified health plan is disregarded in determining the applicable benchmark plan. (6)Benchmark plan terminates or closes to enrollment during the year.A qualified health plan that is the applicable benchmark plan under this paragraph (f) for a taxpayer does not cease to be the applicable benchmark plan solely because the plan or a lower cost plan terminates or closes to enrollment during the taxable year. (7)Examples. The following examples illustrate the rules of this paragraph (f). Unless otherwise stated, in each example the plans are open to enrollment to a tax- payerorfamilymemberatthetimeofen- rollment and are offered through the Ex- change for the rating area where the tax- payer resides: Example 1.Single taxpayer enrolls. Taxpayer M is single, has no dependents and enrolls in a qualified health plan. Under paragraph (f)(1)(i) of this section, M’s applicable benchmark plan is the second lowest cost silver plan providing self-only coverage for M. Example 2.Family enrolls. The facts are the same as inExample 1, except that M, her spouse N, and their dependent enroll in a qualified health plan. Un- der paragraphs (f)(1)(ii) and (f)(2) of this section, M’s and N’s applicable benchmark plan is the second low- est cost silver plan covering M, N, and their depen- dent. Example 3.Single taxpayer enrolls with nonde- pendent. Taxpayer O is single and resides with his daughter, K, but may not claim K as a dependent. O purchases family coverage for himself and K. Under paragraphs (f)(1)(i)(A) and (f)(1)(i)(C) of this sec- tion, O’s applicable benchmark plan is the second lowest cost silver plan providing self-only coverage for O. However, K may qualify for a premium tax credit if K is otherwise eligible. See paragraph (h) of this section. Example 4.Single taxpayer enrolls with depen- dent and nondependent. The facts are the same as in Example 3, except that O also resides with his teenage son, L, and claims L as a dependent. O purchases family coverage for himself, K, and L. Under para- graphs (f)(1)(ii) and (f)(2) of this section, O’s appli- cable benchmark plan is the second lowest cost silver plan covering O and L. Example 5.Children only enroll. The facts are thesameasinExample 4, except that O enrolls only K and L in the coverage. Under paragraph (f)(1)(i)(C) of this section, O’s applicable benchmark plan is the second lowest cost silver plan providing self-only coverage for L. Example 6.Applicable benchmark plan unrelated to coverage purchased. Taxpayers P and Q, who are married, reside with Q’s two teenage daughters, M and N, whom they claim as dependents. P and Q pur- chase self-only coveragefor P and family coverage for Q, M, and N. Under paragraphs (f)(1)(ii) and (f)(2) of this section, P’s and Q’s applicable benchmark plan is the second lowest cost silver plan covering P, Q, M, and N. Example 7.Change in coverage family. Taxpayer R is single and has no dependents when she enrolls in a qualified health plan for 2014. On August 1, 2014, R has a child, O, whom she claims as a de- pendent for 2014. R enrolls in a qualified health plan covering R and O effective August 1. Under para- graph (f)(1)(i) of this section, R’s applicable bench- mark plan for January through July is the second low- est cost silver plan providing self-only coverage for R. Under paragraphs (f)(1)(ii) and (f)(2) of this sec- tion, R’s applicable benchmark plan for the months August through December is the second lowest cost silver plan covering R and O. Example 8.Minimum essential coverage for some coverage months. Taxpayer S claims his daugh- ter, P, as a dependent. S and P enroll in a qualified health plan for 2014. S, but not P, is eligible for government-sponsored minimum essential cover- age for September to December 2014. Thus, under paragraph (c)(1)(iii) of this section, January through December are coverage months for P and January through August are coverage months for S. 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, S’s applicable benchmark plan for January through August is the second lowest cost silver plan under paragraphs (f)(1)(ii) and (f)(2) of this section covering S and P. Under paragraph (f)(1)(i)(C) of this section, S’s applicable benchmark plan for September through December is the second lowest cost silver plan providing self-only coverage for P. Example 9.Family member eligible for minimum essential coverage for the taxable year. The facts are the same as in Example 8, except that S is not eli- gible for government-sponsored minimum essential coverage for any months and P is eligible for gov- ernment-sponsored minimum essential coverage for the entire year. Under paragraph (f)(1)(i)(C) of this section, S’s applicable benchmark plan is the second lowest cost silver plan providing self-only coverage for S. Example 10.Qualified health plans not covering certain families. (i) Taxpayers V and W are married and live with W’s mother, K, whom they claim as a dependent. The Exchange for their rating area of- fers self-only and family coverage at the silver level through Issuers A, B, and C, who each offer only one silver level plan. Issuers A and B respectively charge V and W a monthly premium of $900 and $700 for family coverage, but do not allow individuals to en- roll a parent in family coverage. Issuers A and B re- spectively charge $600 and $400 for self-only cover- age for K. Issuer C offers a qualified health plan that provides family coverage for V, W, and K under one policy for a $1,200 monthly premium. Thus, the Ex- change offers the following silver level options for covering V’s and W’s coverage family: Issuer A: $1,500 for premiums for two policies ($900 for V and W, $600 for K) Issuer B: $1,100 for premiums for two policies ($700 for V and W, $400 for K) Issuer C: $1,200 for premiums for one policy ($1,200 for V, W, and K) (ii) Because some silver level qualified health plans for family coverage offered on the Exchange do not cover all members of their coverage family under one policy, under paragraph (f)(3) of this section, the premium for V’s and W’s applicable benchmark plan may be the premium for a single policy or for more than one policy. The coverage offered by Issuer C is the second lowest cost silver level option for covering V’s and W’s family. The premium for their applicable benchmark plan is the premium for the Issuer C coverage. Example 11. (i) The facts are the same as inEx- ample 10, except that Issuer B covers V, W, and K under one policy for a premium of $1,100, and Issuer C does not allow individuals to enroll parents in fam- ily coverage. Issuer C charges a monthly premium of $700 for family coverage for V and W and a monthly premium of $500 for self-only coverage for K. Thus, the Exchange offers the following silver level options for covering V’s and W’s coverage family: 2012–24 I.R.B.1002June 11, 2012 Issuer A: $1,500 for premiums for two policies ($900 for V and W, $600 for K) Issuer B: $1,100 for premiums for one policy ($1,100 for V, W, and K) Issuer C: $1,200 for premiums for two policies ($700 for V and W, $500 for K) (ii) The cover age offered by Issuer C is the sec- ond lowest cost silver level option for covering V’s and W’s family. The premium for their applicable benchmark pla n is the premiums for the two policies available through Issuer C. Example 12.Family members residing in differ- ent location s.[Reserved] Example 13.Qualified health plan closed to en- rollment. Taxpayer Y has two dependents, R and S. Y, R, and S enr oll in a qualified health plan. The Ex- change for the rating area where the family resides offers silver level plans J, K, L, and M, which are the first, seco nd, third, and fourth lowest cost silver plans covering Y’s family. When Y’s family enrolls, Plan J is closed to enrollment. Under paragraph (f)(5) of this sectio n, Plan J is disregarded in determining Y’s applicable benchmark plan, and Plan L is Y’s appli- cable benchmark plan. Example 14. Benchmark plan closes to new en- rollees during the year. (i) Taxpayers X, Y, and Z each have coverage families consisting of two adults. In the rati ng 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 the two adults in each cover age family offered through the Exchange. The X and Y families each enroll in a qualified health plan that is not the applicable benchmark plan (Plan 4) in Nove mber during the annual 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. (ii) Under paragraphs (f)(1), (f)(2), and (f)(6) of this section, the applicable benchmark plan is Plan 2forXandYfo r all coverage months during the year. The applicable benchmark plan for Z is Plan 3, because Plan 2 is not open to enrollment through the Exchange when the Z family enrolls. Example 15.Benchmark plan terminates for all enrollees during the year. The facts are the same as inExampl e14, except that Plan 2 terminates for all enrollees on June 30. Under paragraphs (f)(1), (f)(2), and (f)(6) of this section, Plan 2 is the appli- cable bench mark 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 deter- mines the taxpayer’s required share of premiums for the benchmark plan. This required share 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 per centage that the taxpayer’s household inc ome bears to the Federal poverty line for the taxpayer’s family size. The resultin g Federal poverty line per- centage is th en compared to the income categories d escribed in the table in para- graph (g)(2 ) of this section (or successor tables). An applicable percentage within an income ca tegory increases on a sliding scale in a li near manner and is rounded to the neares t one-hundredth of one percent. The applic able percentages in the table may be adju sted in published guidance, see §601.6 01(d)(2) of this chapter, for tax- able years beginning after December 31, 2014, to r eflect rates of premium growth relative to growth in income and, for tax- able year s beginning after December 31, 2018, to r eflect rates of premium growth relative to growth in the consumer price index. (2)Appli cable percentage table. Household income percentage of Federal poverty lineInitial 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): Example 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 wit h 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 per- cent. Thus, rounded to the nearest one-hundredth of one p ercent, A’s applicable percentage is 8.78, which is halfway between the initial percentage of 8.05 and the final percentage of 9.5. Exa mple 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 per centage 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- centage is 6.65, computed as follows. (ii) Determine the excess of B’s Federal poverty line percentage (210) over the initial household in- come percentage in B’s range (200), which is 10. De- ter mine the difference between the initial household income percentage in the taxpayer’s range (200) and the ending household income percentage in the tax- pay er’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: June 11, 201210032012–24 I.R.B. .20 X 1.75= .35 6.3 + .35= 6.65. (h)Plan covering more than one fam- ily—(1)In general. If a qualified health plan covers more than one family under a single policy, 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, house- hold income, and the benchmark plan that applies to the taxpayer under paragraph (f) of this section. In determining whether the amount computed under paragraph (d)(1) of this section (the premiums for the qual- ified health plan in which the taxpayer en- rolls) is less than the amount computed un- der paragraph (d)(2) of this section (the benchmark plan premium minus the prod- uct of household income and the applica- ble percentage), the premiums paid are al- located to each taxpayer in proportion to the premiums for each taxpayer’s applica- ble benchmark plan. (2)Example. The following example illustrates the rules of this paragraph (h): Example. (i) Taxpayers A and B enroll in a single pol icy under a qualified health plan. B is A’s 25-year old child who is not A’s dependent. B has no depen- dents. The plan covers A, B, and A’s two additional ch ildren who are A’s dependents. The premium for the plan in which A and B enroll is $15,000. The pre- mium for the second lowest cost silver family plan co vering only A and A’s dependents is $12,000 and the premium for the second lowest cost silver plan providing self-only coverage to B is $6,000. A and B are applicable taxpayers and otherwise eligible to claim the premium tax credit. (ii) Under paragraph (h)(1) of this section, both A a nd 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. The por- tion of the premium properly allocable to additional benefits is determined un- der guidance issued by the Secretary of Health and Human Services. See section 36B(b)(3)(D). (3)Examples. The following examples illustrate the rules of this paragraph (j): Example 1. (i) Taxpayer B enrolls in a qualified heal th plan that provides benefits in addition to the essential health benefits the plan must provide (addi- tional benefits). The monthly premium for the plan in whic h B enrolls is $385 (Amount 1), of which $35 is allocable to the additional benefits. The premium for B’s applicable benchmark plan is $440, of which $40 is a llocable to the additional benefits. The excess of the premium for B’s applicable benchmark plan over B’s $60 contribution amount (which is the product of B’s household income and the applicable percentage) is $380 per month (Amount 2). (ii) Under this paragraph (j), the premium for the qua lified health plan in which B enrolls and the ap- plicable benchmark premium each is reduced by the portion of the premium that is allocable to the addi- ti onal benefits provided under that plan. Therefore, Amount 1 is reduced to $350 ($385 - $35), the pre- mium for B’s applicable benchmark plan is reduced to $4 00 ($440 - $40), and Amount 2 is reduced to $340 ($400 less $60). B’s premium assistance amount for a coverage month is $340, the lesser of Amount 1 and A mount 2. Example 2. (i)ThefactsarethesameasinEx- ample 1, except that B’s applicable benchmark plan p rovides no benefits in addition to the essential health benefits required to be provided by the plan. Thus, under paragraph (j) of this section, only the amount o f the monthly premium for the plan in which B en- rolls is reduced by the portion of the premium that is allocable to the additional benefits provided un- der that plan, and Amount 1 is $350 ($385 - $35). The premium for B’s applicable benchmark plan is not reduced under this paragraph (j), and Amount 2 is $380 ($440 - $60). B’s premium assistance amount for a coverage month is $350, the lesser of these two amounts. (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)) (a stand-alone dental plan), the portion of the premium for the stand-alone dental plan that is properly allocable to pediatric dental benefits that are essential benefits required to be pro- vided by a qualified health plan is treated as a premium payable for the individual’s qualified health plan. (2)Method of allocation. The portion of the premium for a stand-alone dental plan properly allocableto pediatric dental benefits is determined under guidance is- sued by the Secretary of Health and Hu- man Services. (3)Example. The following example illustrates the rules of this paragraph (k): Example. (i) Taxpayer C and C’s dependent, R, enro ll in a qualified health plan. The premium for the plan in which C and R enroll is $7,200 ($600/month) (Amount 1). The plan does not provide dental cover- age. C also enrolls in a stand-alone dental plan cov- ering C and R. The portion of the premium for the dental plan allocable to pediatric dental benefits that are essential health benefitsis $240 ($20 per month). The excess of the premium for C’s applicable bench- mark plan over C’s contribution amount (the product of C ’s household income and the applicable percent- age) is $7,260 ($605/month) (Amount 2). (ii) Under this paragraph (k), the amount C pays fo r premiums (Amount 1) for purposes of computing the premium assistance amount is increased by the portion of the premium for the stand-alone dental plan al locable to pediatric dental benefits that are essential health benefits. Thus, the amount of the premiums for the plan in which C enrolls is treated as $620 for pu rposes of computing the amount of the premium tax credit. C’s premium assistance amount for each coverage month is $605 (Amount 2), the lesser of A mount 1 (increased by the premiums allocable to pediatric dental benefits) and Amount 2. (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 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. 2012–24 I.R.B.1004June 11, 2012 (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) The numerator of which is the Fed- 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 family size determined by including indi- viduals who are not lawfully present. (ii)Comparable method.TheCom- missioner may describe a comparable method in additional published guidance, see §601.601(d)(2) of this chapter. §1.36B–4 Reconciling the premium tax credit with advance credit payments. (a)Reconciliation—(1)Coordination of premium tax credit with advance credit payments—(i)In general. A taxpayer must reconcile the amount of credit al- lowed under section 36B with advance credit payments on the taxpayer’s income tax return for a taxable year. A taxpayer whose premium tax credit for the taxable year exceeds the taxpayer’s advance credit payments may receive the excess as an income tax refund. A taxpayer whose ad- vance credit payments for the taxable year exceed the taxpayer’s premium tax credit owes the excess as an additional income tax liability. (ii)Responsibility for advance credit payments. A taxpayer must reconcile all advance credit payments for coverage of any member of the taxpayer’s family. If advance credit payments are made for cov- erage of an individual for whom no tax- payer claims a personal exemption deduc- tion, the taxpayer who attests to the Ex- change to the intention to claim a personal exemption deduction for the individual as part of the determination that the taxpayer is eligible for advance credit payments for coverage of the individual must reconcile the advance credit payments. (iii)Advance credit payment for a month in which an issuer does not provide coverage. For purposes of reconciliation, a taxpayer does not have an advance credit payment for a month if the issuer of the qualified health plan in which the taxpayer or a family member is enrolled does not provide coverage for that month. (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. The applicable benchmark plan for each coverage month is determined under §1.36B–3(f). (3)Limitation on additional tax—(i)In general. The additional tax imposed under paragraph (a)(1) of this section on a tax- payer whose household income is less than 400 percent of the Federal poverty line is limited to the amounts provided in the ta- ble 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, see §601.601(d)(2) of this chapter, to reflect 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. The following examples i llustrate the rules of this paragraph (a). I n each example the taxpayer enrolls in a h igher cost qualified health plan than the a pplicable benchmark plan: Example 1.Household income increases.(i)Tax- payer A is single and has no dependents. The Ex- c hange for A’s rating area projects A’s 2014 house- hold income to be $27,925 (250 percent of the Federal poverty line for a family of one, applicable percent- age 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 $2,952, computed as follows: benchmark plan premium of $5,200 less contribution amount of $2,248 (projected household income of $27,925 x .0805) = $2,952. (ii) A’s household income for 2014 is $33,622, 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 $2,006 (benchmark plan premium of $5,200 less contribu- tion amount of $3,194 (household income of $33,622 x. 095)). Because A’s advance credit payments for 2014 are $2,952 and A’s 2014 credit is $2,006, A has excess advance payments of $946. Under paragraph ( a)(1) of this section, A’s tax liability for 2014 is increased by $946. Because A’s household income is between 300 percent and 400 percent of the Fed- e ral poverty line, if A’s excess advance payments exceeded $1,250, under the limitation of paragraph (a)(3) of this section, A’s additional tax liability would be limited to that amount. Example 2.Household income increases, repay- ment limitation applies. The facts are the same as inExample 1, except that A’s household income for 2014 is $43,560 (390 percent of the Federal poverty line for a family of one, applicable percentage 9.5). Consequently, A’s premium tax credit for 2014 is $1,062 ($5,200 benchmarkplanpremiumlesscon- tribution amount of $4,138 (household income of $43,560 x .095)). A’s advance credit payments for 2014 are $2,952; therefore, A has excess advance payments of $1,890. Because A’s household income is between 300 percent and 400 percent of the Fed- eral poverty line, A’s additional tax liability for the ta xable year is $1,250 under the repayment limitation of paragraph (a)(3) of this section. Example 3.Household income decreases.The f acts are the same as inExample 1, except that A’s actual household income for 2014 is $22,340 (200 percent of the Federal poverty line for a family o f one, applicable percentage 6.3). Consequently, A’s premium tax credit for 2014 is $3,793 ($5,200 benchmark plan premium less contribution amount o f $1,407 (household income of $22,340 x .063)). Because A’s advance credit payments for 2014 are $2,952, A is allowed an additional credit of $841 ($3,793 less $2,952). Example 4.Family size decreases. (i) Taxpay- ers B and C are married and have two children, K and L (ages 17 and 20), whom they claim as their de- pendents in 2013. The Exchange for their rating area projects their 2014 household income to be $63,388 (275 percent of the Federal poverty line for a family of four, applicable percentage 8.78). B and C enroll in a qualified health plan for 2014 that covers the four family members. The annual premium for the appli- cable benchmark plan is $14,100. B’s and C’s ad- June 11, 201210052012–24 I.R.B. vance credit payments for 2014 are $8,535, computed as follows: benchmark plan premium of $14,100 less contribution amount of $5,565 (projected household income of $63,388 x .0878) = $8,535. (ii) In 2014, B and C do not claim L as their de- pendent. Consequently, B’s and C’s family size for 2014 is three, their household income of $63,388 is 332 percent of the Federal poverty line for a family of three (applicable percentage 9.5), and the annual pre- mium for their applicable benchmark plan is $12,000. Their premium tax credit for 2014 is $5,978 ($12,000 benchmark plan premium less $6,022 contribution amount (household income of $63,388 x .095)). Be- cause B’s and C’s advance credit payments for 2014 are $8,535 and their 2014 credit is $5,978, B and C have excess advance payments of $2,557. B’s and C’s additional tax liability for 2014 under paragraph (a)(1) of this section, however, is limited to $2,500 under paragraph (a)(3) of this section. Example 5.Repayment limitation does not ap- ply. (i) Taxpayer D is single and has no dependents. The Exchange for D’s rating area approves advance credit payments for D based on 2014 household in- come of $39,095 (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 $1,486, computed as follows: benchmark plan premium of $5,200 less contribution amount of $3,714 (projected household income of $39,095 x .095) = $1,486. (ii) D’s actual household income for 2014 is $44,903, 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, D has excess advance payments of $1,486 (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 $1,486. Example 6.Coverage for less than a full taxable year. (i) Taxpayer F is single and has no dependents. In November 2013, the Exchange for F’s rating area projects F’s 2014 household income to be $27,925 (250 percent of the Federal poverty line for a fam- ily of one, applicable percentage 8.05). F enrolls in a qualified health plan. The annual premium for the applicable benchmark plan is $5,200. F’s monthly ad- vance credit payment is $246, computed as follows: benchmark plan premium of $5,200 less contribution amount of $2,248 (projected household income of $27,925 x .0805) = $2,952; $2,952/12 = $246. (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 $28,707 (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 $2,832 (benchmark plan premium of $5,200 less contribution amount of $2,368 (household income of $28,707 x .0825)). Because F has only eight coverage months in 2014, F’s credit is $1,888 ($2,832/12 x 8). Because F does not discontinue her Exchange coverage until Novem- ber 1, 2014, F’s advance credit payments for 2014 are $2,460 ($246 x 10). Consequently, F has excess advance payments of $572 ($2,460 less $1,888) and F’s tax liability for 2014 is increased by $572 under paragraph (a)(1) of this section. Example 7.Changes in coverage months and applicable benchmark plan. (i) Taxpayer E claims one dependent, F. E is eligible for government-spon- sored minimum essential coverage. E enrolls F in a qualified health plan for 2014. The Exchange for E’s rating area projects E’s 2014 household income to be $30,260 (200 percent of the Federal poverty line for a family of two, applicable percentage 6.3). The annual premium for E’s applicable benchmark plan is $5,200. E’s monthly advance credit payment is $275, computed as follows: benchmark plan pre- mium of $5,200 less contribution amount of $1,906 (projected household income of $30,260 x .063) = $3,294; $3,294/12 = $275. (ii) On August 1, 2014, E loses her eligibility for government-sponsored minimum essential coverage. E enrolls in the qualified health plan that covers 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 September through Decem- ber to be $675 as follows: benchmark plan premium of $10,000 less contribution amount of $1,906 (pro- jected household income of $30,260 x .063) = $8,094; $8,094/12 = $675. E’s household income for 2014 is $28,747 (190 percent of the Federal poverty line, ap- plicable 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) $1,925($275 x 7) Advance credit payments (Aug. to Dec.) 3 ,375 ($675 x 5) Total advance credit payments 5,300 Benchmark plan premium (Jan. to July)3,033 (($5,200/12) x 7) Benchmark plan premium (Aug. to Dec.)4 ,167 (($10,000/12) x 5) Total benchmark plan premium7,200 Contribution amount (taxable year household income X applicable percentage) 1,679 ($28,747 x .0584) Credit (total benchmark plan premium less contribution amou nt) 5,521 (iv) E’s advance credit payments for 2014 are $5,300. E’s premium tax credit is $5,521. Thus, E is allowed an additional credit of $221. Exam ple 8.Part-year coverage and changes in coverage months and applicable benchmark plan.(i) The f acts are the same as inExample 7, except that F is eligible for government-sponsored minimum es- sential coverage for January and February 2014, and Eenr olls F in a qualified health plan beginning in March 2014. Thus, March through July are cover- age m onths for F and August through December are coverage months for E and F. (ii) E reconciles her premium tax credit with ad- vanc e credit payments as follows: 2012–24 I.R.B.1006June 11, 2012 Advance credit payments (March to July) $1,375($275 x 5) Advance credit payments (Aug. to Dec.) 3 ,375 ($675 x 5) Total advance credit payments 4,750 Benchmark plan premium (March to July)2,167 (($5,200/12) x 5) Benchmark plan premium (Aug. to Dec.)4 ,167 (($10,000/12) x 5) Total benchmark plan premium6,334 Contribution amount for 10 coverage months (taxable year household income X applicable percentage X 10/12) 1,399 ($28,747 x .0584 x 10/12) Credit (total benchmark plan premium less contribution amount) 4,935 (iii) E’s ad vance credit payments for 2014 are $4,750. E’s premium tax credit is $4,935. Thus, E is allowed an additional credit of $185. Example 9.A dvance credit payments for months an issuer does not provide coverage. (i) Taxpayer F enrolls in a qualified health plan for 2014 and the Exchange ap proves advance credit payments. F pays the portion of the premium not covered by advance credit payments for January through April of 2014 but fails t o make payments in May, June, and July. As a result, the issuer of the qualified health plan initiates the 3-month grace period under section 1412(c)( 2)(B)(iv)(II) of the Affordable Care Act and 45 CFR 156.270(d). During the grace period the issuer continues to receive advance credit payments on behalf of F. On July 1 the issuer rescinds F’s coverage retroactive to the end of the first month of the grace period, May 31. (ii) Unde r paragraph (a)(1)(iii) of this section, F does not take into account advance credit payments for June or July of 2014 when reconciling the pre- mium tax credit with advance credit payments under paragraph (a)(1) of this section. (b)Changes in filing status—(1)In gen- eral. Except as provided in paragraph (b)(2) or (b)(3) of this section, a taxpayer whose marital status changes during the taxable year computes the premium tax credit by using the applicable benchmark plan or plans for the taxpayer’s marital status as of the first day of each cover- age month. The taxpayer’s contribution amount (household income for the taxable year times the applicable percentage) is de- termined using the taxpayer’s household income and family size at the end of the taxable year. (2)Taxpayers who marry during the taxable year—(i)In general.Taxpayers who marry during and file a joint return for the taxable year may compute the addi- tional tax imposed under paragraph (a)(1) of this section under paragraph (b)(2)(ii) of this section. Only taxpayers who are unmarried at the beginning of the taxable year and are married (within the meaning of section 7703) at the end of the taxable year, at lea st one of whom receives ad- vance credi t payments, may use this alter- native comp utation. (ii)Altern ative computation of addi- tional tax l iability—(A)In general.The additional tax liability determined under this parag raph (b)(2)(ii) is equal to the excess of t he taxpayers’ advance credit payments f or the taxable year over the amount of t he alternative marriage-year credit. T he alternative marriage-year credit is the sum of both taxpayers’ alter- native pr emium assistance amounts for the pre-marr iage months and the premium as- sistance amounts for the marriage months. This par agraph (b)(2)(ii) may not be used to incre ase the additional premium tax credit c omputed under paragraph (a)(1)(i) of this s ection. (B)Alte rnative premium assistance amounts for pre-marriage months.Tax- payers compute the alternative premium assist ance amounts for each taxpayer for each fu ll or partial month the taxpayers are unmarr ied as described in paragraph (a)(2) of this section, except that each taxpayer treats the amount of household income as one-h alf of the actual household income for th e taxable year and treats family size as the number of individuals in the tax- payer ’s family prior to the marriage. The taxpa yers may include a dependent of the taxp ayers for the taxable year in either taxp ayer’s family size for the pre-marriage mont hs. (C)P remium assistance amounts for marr iage months. Taxpayers compute the prem ium assistance amounts for each full mont h the taxpayers are married as de- scr ibed in paragraph (a)(2) of this section. (3)T axpayers not married to each other at t he end of the taxable year. Taxpayers who are married (within the meaning of sec tion 7703) to each other during a tax- able year bu t are not married to each other on the last d ay of the taxable year, and who are enrolle d in the same qualified health plan at any t ime during the taxable year, must alloc ate the premium for the applica- ble benchm ark plan, the premium for the plan in whi ch the taxpayers enroll, and the advance cr edit payments for the period the taxpayer s are married during the taxable year. The taxpayers may allocate these items to e ach former spouse in any propor- tion but m ust allocate all items in the same proporti on. If the taxpayers cannot agree on an all ocation, 50 percent of the pre- mium for the applicable benchmark plan, the prem iums for the plan in which the tax- payers e nroll, and the advance credit pay- ments fo r the married period are allocated to each taxpayer. If a plan covers only one of thes e taxpayers for any period during a taxabl e year, the amounts for that period are all ocated entirely to that taxpayer. (4)Mar ried taxpayers filing separate return s. The premium tax credit is allowed to marr ied (within the meaning of section 7703) taxpayers only if they file joint re- turns . See §1.36B–2(b)(2). A married taxpa yer who receives advance credit pay- ments and files an income tax return as marri ed filing separately has received ex- cess advance payments. Taxpayers who rece ive advance credit payments as mar- ried taxpayers and do not file a joint return must allocate the advance credit payments equa lly to each taxpayer. The repayment lim itation described in paragraph (a)(3) of thi s section applies to each taxpayer based on t he household income and family size rep orted on that taxpayer’s return. (5) Taxpayers filing returns as head of hou sehold and married filing separately. If t axpayers enroll in one qualified health pla n and receive advance credit payments ba sed on a filing status of married filing a June 11, 201210072012–24 I.R.B. joint tax return, and one taxpayer properly files a tax return as head of household and the other taxpayer files a tax return as mar- ried filing separately for that taxable year, advance credit payments are allocated to each taxpayer equally for any period the taxpayers are enrolled in the same quali- fied health plan. (6)Examples. The following examples illustrate the provisions of this paragraph (b). In each example the taxpayer enrolls in a higher cost qualified health plan than the applicable benchmark plan: Example 1.Taxpayers marry during the taxable year, general rule for computing additional tax.(i) P is a single taxpayer with no dependents. In 2013 the Exchange for the rating area where P resides determines that P’s 2014 household income will be $40,000 (358 percent of the Federal poverty line, applicable percentage 9.5). P enrolls in a quali- fied health plan. The premium for the applicable benchmark plan is $5,200. P’s monthly advance credit payment is $117, computed as follows: $5,200 benchmark plan premium minus contribution amount of $3,800 ($40,000 x .095) equals $1,400 (total ad- vance credit payment); $1,400/12 = $117. (ii) Q is a single taxpayer with two dependents. In 2013 the Exchange for the rating area where Q resides determines that Q’s 2014 household income will be $35,000 (183 percent of the Federal poverty line, applicable percentage 5.52). Q enrolls in a qualified health plan. The premium for the ap- plicable benchmark plan is $10,000. Q’s monthly advance credit payment is $672, computed as fol- lows: $10,000 benchmark plan premium minus contribution amount of $1,932 ($35,000 x .0552) equals $8,068 (total advance credit); $8,068/12 = $672. (iii) P and Q marry on July 17, 2014 and enroll in a single policy for a qualified health plan cover- ing four family members, effective August 1, 2014. The premium for the applicable benchmark plan is $14,000. Based on household income of $75,000 and a family size of four (325 percent of the Fed- eral poverty line, applicable percentage 9.5), the Ex- change approves advance credit payments of $573 per month, computed as follows: $14,000 benchmark plan premium minus contribution amount of $7,125 ($75,000 x .095) equals $6,875 (total advance credit); $6,875/12 = $573. (iv) P and Q file a joint return for 2014 and re- port $75,000 in household income and a family size of four. P and Q compute their credit at reconcilia- tion under paragraph (b)(1) of this section. They use the premiums for the applicable benchmark plans that apply for the months married and the months not mar- ried, and their contribution amount is based on their Federal poverty line percentage at the end of the tax- able year. P and Q reconciletheir premium tax credit with advance credit payments as follows: Advance payments for P (Jan. to July) $819 Advance payments for Q (Jan. to July)4,704 Advance payments for P and Q (Aug. to Dec.) 2 ,865 Total advance payments8,388 Benchmark plan premium for P (Jan. to July)3,033 BenchmarkplanpremiumforQ(Jan.toJuly) 5,833 BenchmarkplanpremiumforPandQ(Aug.toDec.) 5 ,833 Total benchmark plan premium14,699 Contribution amount (taxable year household income X applicable percentage) 7,125 Credit (total benchmark plan premium less contribution amount) 7,574 Additional tax814 (v) P’s and Q’s tax liability for 2014 is increased by $814 under paragraph (a)(1) of this section. Example 2. Taxpayers marry during the taxable year, alternative computation of additional tax.(i) ThefactsarethesameasinExample 1, except that P and Q compute their additional tax liability under paragraph (b)(2)(ii) of this section. P’s and Q’s additional tax is the excess of their advance credit payments for the taxable year ($8,388) over their alternative marriage-year credit, which is the sum of the alternative premium assistance amounts for the pre-marriage months and the premium assistance amounts for the marriage months. (ii) P and Q compute the alternative marriage- year credit as follows: 2012–24 I.R.B.1008June 11, 2012 Alternative premium assistance amounts for pre-marriage months BenchmarkplanpremiumforP(Jan.toJuly) $3,033 (($5,200/12) x 7) Contribution amount (1/2 taxable year household income X applicable percentage) X 7/12) $2,078 ($37,500 x .095 x 7/12) Alternative premium assistance amount for P’s pre-marriage months $955 ($3,033 - $2,078) Benchmark pl an premium for Q (Jan. to July) $5,833 (($10,000/12) x 7) Contribution amount (1/2 taxable year household income X applicable percentage X 7/12) $1,339 ($37, 500 x .0612 x 7/12) Alternative premium assistance amount for Q’s pre-marriage months $4,494 ($5,833 - $1,339) Premium assistance amount for marriage months Benchmark plan premium for P and Q (Aug. to Dec.) $5,833 (($14,000/12 x 5) Contribution amount (taxable year household income X applicable percentage X5/12) $2,969 ($75,000 x .095 x 5/12) Premium assistance amount for marriage months $2,864 ($5,833 - $2,969) Alternative marriage-year credit (sum of premium assistance amounts for pre-marriage months and marriage months): $955 + $4,494 + $2,864 = $8,313. (iii) P and Q reconcile their premium tax credit with advance credit payments by determining the ex- cess of their advance credit payments ($8,388) over their alternative marriage-year credit ($8,313). P and Q must increase their tax liability by $75 under para- graph ( a)(1)ofthissection. Example 3. Taxpayers marry during the taxable year, alternative computation of additional tax, al- ternat ive marriage-year tax credit exceeds advance credit payments. The facts are the same as inExam- ple 2, except that the amount of P’s and Q’s advance credi t payments is $8,301. Thus, their alternative marriage-year credit ($8,313) exceeds the amount of their advance credit payments ($8,301). Under para- graph (b)(2)(ii)(A) of this section, the amount of ad- ditional tax liability and additional tax credit that P and Q report on their tax return is $0. Example 4.Taxpayers marry during the taxable year, alternative computation of additional tax.(i) Taxpay er R is single and has no dependents. In 2013, the Exchange for the rating area where R resides determines that R’s 2014 household income will be $40,00 0 (358 percent of the Federal poverty line, applicable percentage 9.5). R enrolls in a quali- fied health plan. The premium for the applicable benchm ark plan is $5,200. R’s monthly advance credit payment is $117, computed as follows: $5,200 benchmark plan premium minus contribution amount of $3, 800 ($40,000 x .095) = $1,400 (total advance credit); $1,400/12 = $117. (ii) Taxpayer S is single with no dependents. In 2013, the Exchange for the rating area where S re- sides determines that S’s 2014 household income will be $20,000 (179 percent of the Federal poverty line, appl icable percentage 5.33). S enrolls in a qualified health plan. The premium for the applicable bench- mark plan is $5,200. S’s monthly advance credit pay- ment is $345, computed as follows: $5,200 bench- mark plan premium minus contribution amount of $1,066 ($20,000 x .0533) = $4,134 (total advance credit ); $4,134/12 = $345. (iii) R and S marry in September 2014 and enroll in a single policy for a qualified health plan cover- ing the m both, beginning October 1, 2014. The pre- mium for the applicable benchmark plan is $10,000. Based on household income of $60,000 and a family size o f two (397 percent of the Federal poverty line, applicable percentage 9.5), R’s and S’s monthly ad- vance credit payment is $358, computed as follows: $10,0 00 benchmark plan premium minus contribu- tion amount of $5,700 ($60,000 x .095) = $4,300; $4,300/12 = $358. R’s and S’s advance credit pay- ment s for 2014 are $5,232, computed as follows: Advance payments for R (Jan. to Sept.) $1,053($117 x 9) Advance payments for S (Jan. to Sept.) 3,105 ($34 5x9) Adva nce payments for R and S (Oct. to Dec.) 1 ,07 4 ($358 x 3) Total advance payments 5,23 2 (iv ) R and S file a joint return for 2014 and report $62,000 in household income and a family size of two (410 percent of the FPL for a family of 2). Thus, und er §1.36B–2(b)(2), R and S are not applicable taxpayers for 2014 and may not claim a premium tax credit for 2014. However, they compute their ad ditional tax liability under paragraph (b)(2)(ii) of thi s section. R’s and S’s additional tax is the excess of their advance credit payments for the taxable year ($5,232) over their alternative marriage-year cre dit, which is the sum of the alternative premium assistance amounts for the pre-marriage months and the premium assistance amounts for the marriage mo nths. In this case, R and S have no premium ass istance amounts for the married months because their household income is over 400 percent of the Federal poverty line for a family of 2. (v) R and S compute their alternative marriage- year credit as follows: June 11, 201210092012–24 I.R.B. Premium assistance amount for pre-marriage months Benchmark plan premium for R (Jan. to Sept.) $3,900 (($5,200/12) x 9) Contribution amount ((1/2 taxable year household income X applicable percentage) x 9/12) $2,053 ($31,000 x .0883 x 9/12) Premium assistance amount for R’s pre-marriage months $1,847 ($3,900 - $2,053) Benchmark pl an premium for S (Jan. to Sept.) $3,900 (($5,200/12) x 9) Contribution amount ((1/2 taxable year household income X applicable p ercentage) x 9/12) $2,053 ($31, 000x.0883x9/12) Premium assistance amountfor S’s pre-marriage months $1,847 ($3,900 - $2,053) Premium assistance amount for marriage months $0 Alternative marriage-year credit (sum of premium assistance amounts forpre-marriage months and marriage months): $1,847 + 1,847 + 0 = $3,694. (vi) R and S reconcile their premium tax credit with advance credit payments by determining the ex- cess of their advance credit payments ($5,232) over their alternative marriage-year credit ($3,694). R and S must increase their tax liability by $1,538 under paragraph (a)(1) of this section. Example 5.(i)Taxpayers marry during the taxable year, no additional tax liability. The facts are the same as inExample 4, except that S has no income and is enrolled in Medicaid for January through September 2014 and R’s and S’s household income for 2014 is $37,000 (245 percent of the Fed- eral poverty line, applicable percentage 7.88). Their advance credit payments for 2014 are $2,707 ($1,053 for R for January to September and $1,654 for R and S for October to December). Their premium tax credit for 2014 is $3,484 (total benchmark premium of $6,400 less contribution amount of $2,916). (ii) Because R’s and S’s premium tax credit of $3,484 exceeds their advance credit payments of $2,707, R and S are allowed an additional credit of $777. Although R and S marry in 2014, paragraph (b)(2) of this section (the alternative computation of additional tax for taxpayers who marry during the taxable year) does not apply because they do not owe additional tax for 2014. Example 6.Taxpayers divorce during the taxable year, 50 percent allocation. (i) Taxpayers V and W are married and have two dependents. In 2013, the Exchange for the rating area where the family resides determines that their 2014 household income will be $76,000 (330 percent of the Federal poverty line for a family of 4, applicable percentage 9.5). V and W 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 V and W’s contribution amount of $7,220 ($76,000 x .095) equals $6,880 (total ad- vance credit); $6,880/12 = $573. (ii) V and W divorce on June 17, 2014, and obtain separate qualified health plans beginning July 1, 2014. V enrolls based on household income of $60,000 and a family size of three (314 percent of the Federal poverty line, applicable percentage 9.5). The premium for the applicable benchmark plan is $10,000. The Exchange approves advance credit payments of $358 per month, computed as follows: $10,000 benchmark plan premium minus V’s contribution amount of $5,700 ($60,000 x .095) equals $4,300 (total advance credit); $4,300/12 = $358. (iii) W enrolls based on household income of $16,420 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 $381 per month, computed as follows: $5,200 benchmark plan premium minus W’s con- tribution amount of $627 ($16,420 x .0382) equals $4,573 (total advance credit); $4,573/12 = $381. V andWdonotagreeonanallocationofthepremium 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. (iv) V and W each compute their credit at recon- ciliation under paragraph (b)(1) of this section, using the premiums for the applicable benchmark plans that apply to them for the months married and the months not married, and the contribution amount based on their Federal poverty line percentages at the end of the taxable year. Under paragraph (b)(3) of this sec- tion, because V and W do not agree on an allocation, V and W must equally allocate the benchmark plan premium ($7,050) and the advance credit payments ($3,438) for the six-month period January through June 2014 when they are married and enrolled in the same qualified health plan. Thus, V and W each are allocated $3,525 of the benchmark plan premium ($7,050/2) and $1,719 of the advance credit payments ($3,438/2) for January through June. (v) V reports on his 2014 tax return $60,000 in household income and family size of three. W re- ports on her 2014 tax return $16,420 in household in- come and family size of one. V and W reconcile their premium tax credit with advance credit payments as follows: 2012–24 I.R.B.1010June 11, 2012 VW Allocated advance payments (Jan. to June) $ 1,719$ 1,719 Actual advance payments (July to Dec.)2 ,1482,286 Total advance payments3,867 4,005 Allocated benchmark plan premium (Jan. to June) 3,5253,525 Actual benchmark plan premium (July to Dec.) 5 ,000 2,600 Total benchmark plan premium 8,5256,125 Contribution amount (taxable year household income X applicable percentage) 5,700 627 Credit (tota l benchmark plan premium less contribution amount) 2,8255,498 Additional credit1,493 Additional tax1,042 (vi) Under paragraph (a)(1) of this section, on their tax returns V’s tax liability is increased by $1,042 and W is allowed $1,493 as additional credit. Example 7.Taxpayers divorce during the taxable year, allocation in proportion to household income. (i)ThefactsarethesameasinExample 6, except that V and W decide to allocate the benchmark plan premium ($7,050) and the advance credit payments ($3,438) for January through June 2014 in propor- tion to their household incomes (79 percent and 21 percent). Thus, V is allocated $5,570 of the bench- mark plan premiums ($7,050 x .79) and $2,716 of the advance credit payments ($3,438 x .79), and W is allocated $1,481 of thebenchmark plan premiums ($7,050 x .21) and $722 of the advance credit pay- ments ($3,438 x .21). V and W reconcile their pre- mium tax credit with advance credit payments as fol- lows: VW Allocated advance payments (Jan. to June) $2,716$ 722 Actual advance payments (July to Dec.)2 ,1482,286 Total advance payments4,8643,008 Allocated benchmark plan premium (Jan. to June) 5,570 1,481 Actual benchmark plan premium (July to Dec.) 5 ,000 2,600 Total benchmark plan premium 10,570 4,081 Contribution amount (taxable year household income X applicable percentage) 5,700 627 Credit (total benchmark plan premium less contribution amount) 4,870 3,454 Additional credit6446 (ii) Under paragraph (a)(1) of this section, on their tax returns V is allowed an additional credit of $6 and W is allowed an additional credit of $446. Example 8.Married taxpayers filing separate tax returns. (i) Taxpayers X and Yare married and have two dependents. In 2013, the Exchange for the rat- ing area where the family resides determines that their 2014 household income will be $76,000 (330 percent of the Federal poverty line for a family of 4, appli- cable percentage 9.5). W and Y enroll in a qualified health plan for 2014. The premium for the applica- ble benchmark plan is $14,100. X’s and Y’s monthly advance credit payment is $573, computed as fol- lows: $14,100 benchmark plan premium minus X’s and Y’s contribution amount of $7,220 ($76,000 x .095) equals $6,880 (total advance credit); $6,880/12 = $573. (ii) X and Y file income tax returns for 2014 using a married filing separately filing status. X reports household income of $60,000 and a family size of three (314 percent of the Federal poverty line). Y reports household income of $16,420 and a family size of one (147 percent of the Federal poverty line). (iii) Because X and Y are married but do not file a joint return for 2014, X and Y are not applicable tax- payers and are not allowed a premium tax credit for 2014. See §1.36B–2(b)(2). Under paragraph (b)(4) of this section, half of the advance credit payments ($6,880/2 = $3,440) is allocated to X and half is al- located to Y for purposes of determining their ex- cess advance payments. The repayment limitation described in paragraph (a)(3) of this section applies to X and Y based on the household income and fam- ily size reported on each return. Consequently, X’s tax liability for 2014 is increased by $2,500 and Y’s tax liability for 2014 is increased by $600. Example 9. (i) The facts are the same as inExam- ple 8, except that X and Y live apart for over 6 months of the year and X properly files an income tax return as head of household. Under section 7703(b), X is treated as unmarried and therefore is not required to file a joint return. If X otherwise qualifies as an appli- cable taxpayer, X may claim the premium tax credit based on the household income and family size X re- ports on the return. Y is not an applicable taxpayer and is not eligible to claim the premium tax credit. (ii) X must reconcile the amount of credit with advance credit payments under paragraph (a) of this section. The premium for the applicable benchmark plan covering X and his two dependents is $9,800. X’s premium tax credit is computed as follows: $9,800 benchmark plan premium minus X’s contri- bution amount of $5,700 ($60,000 x .095) equals $4,100. (iii) Under paragraph (b)(5) of this section, half of the advance payments ($6,880/2 = $3,440) is allo- cated to X and half is allocated to Y. Thus, X is en- titled to $660 additional premium tax credit ($4,100 - $3,440). Y has $3,440 excess advance payments, June 11, 201210112012–24 I.R.B. which is limited to $600 under paragraph (a)(3) of this section. §1.36B–5 Information reporting by Exchanges. (a)Information required to be reported. An Exchange must report to the Internal Revenue Service and each taxpayer the following information for the qualified health plan or plans in which the taxpayer or a member of the taxpayer’s family en- rolls through the Exchange— (1) The premium for the applicable benchmark plans used to compute advance credit payments and the period coverage was in effect; (2) The total premium for the cover- age in which the taxpayer or family mem- ber enrolls without reduction for advance credit payments; (3) The aggregate amount of any ad- vance credit payments; (4) The name, address and Social Secu- rity number (SSN) of the primary insured and the name and SSN or adoption tax- payer identification number 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 forandtheamountofthepremiumtax credit; (6) Any other information required in published guidance, see §601.601(d)(2) of this chapter, necessary to determine whether a taxpayer has received excess advance payments. (b)Time of reporting.[Reserved] (c)Manner of reporting.TheCom- missioner may provide rules in published guidance, see §601.601(d)(2) of this chap- ter, for the 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). ***** PART 602 — OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT Par. 5. The authority citation for part 602 continues to read as follows: Authority: 26 U.S.C. 7805. Par. 6. In §602.101, paragraph (b) is amended by adding an entry in numerical order to the table to read as follows: §602.101 OMB Control numbers. ***** (b) * * * CFR part or section where identified and described Current OMB Control No. ***** 1.36B–5 ........................................................... 1545–2232 ***** Steven T. Miller, Deputy Commissioner for Services and Enforcement. Approved May 16, 2012. Emily S. McMahon, Acting Assistant Secretary oftheTreasury(TaxPolicy). (Filed by the Office of the Federal Register on May 18, 2012, 11:15 a.m., and published in the issue of the Federal Register for May 23, 2012, 77 F.R. 30377) Section 108.—Income from Discharge of Indebtedness 26 CFR 108(a)–1: Income from discharge of indebt- edness. (Also: Sections 61(a)(12); 704; 752; 1.752–3). Income from discharge of indebted- ness.This ruling amplifies Revenue Rul- ing 92–53, 1992–2 C.B. 48, by describing how discharged partnership excess nonre- course debt is taken into account in mea- suring the insolvency of the partners under section 108(d)(3) of the Code. The rul- ing provides that to the extent discharged excess nonrecourse debt generates cancel- lation of indebtedness (COD) income that is allocated under section 704(b) (and the regulations thereunder), each partner treats its portion of the discharged excess nonre- course debt related to such COD income as a liability in measuring insolvency un- der section 108(d)(3). Rev. Rul. 92–53 amplified. Rev. Rul. 2012–14 ISSUE How do partners treat the partnership’s discharged excess nonrecourse debt in measuring insolvency under § 108(d)(3) of the Internal Revenue Code? FACTS X, an investor other than a partner- ship, and Holdco, a corporation, are equal partners in PRS, a partnership for federal tax purposes. In Year 1, PRS borrows 2012–24 I.R.B.1012June 11, 2012 $1,000,000 from Bank and signs a note payable to Bank for $1,000,000 that bears interest at a fixed market rate payable annually. The note is secured by real es- tate valued in excess of $1,000,000 that PRS acquires from Seller, in part with the proceeds of the note. The note is a non- recourse liability within the meaning of § 1.752–1(a)(2) of the Income Tax Reg- ulations. Neither PRS nor its partners (X and Holdco) are personally liable on the note. In Year 2, when the value of the real es- tate is $800,000 and the outstanding princi- pal on the note is $1,000,000, Bank agrees to modify the terms of the note by reducing the note’s principal amount to $825,000. At the time that the Bank reduces the note’s principal amount, PRS has no partnership minimum gain with respect to the note un- der § 1.704–2(d)(1). The modified note bears adequate stated interest within the meaning of § 1274(c)(2). The PRS part- nership agreement provides for income to be allocated equally to X and Holdco un- der § 704(b) and the regulations thereun- der. X and Holdco share PRS nonrecourse liabilities equally under § 1.752–3. At the time of the modification of the note, X and Holdco have no assets or liabili- ties other than their partnership interests in PRS. PRS’s sole asset is the real estate sub- ject to the note, and PRS’s sole liability is the note. The specific exclusion provided by § 108(a)(1)(A) (bankruptcy exception) does not apply in this case. LAW Section 61(a)(12) provides that gross income includes income from the dis- charge of indebtedness (COD). Section 1.61–12(a) provides that the discharge of indebtedness, in whole or in part, may result in the realization of income. Section 108(a)(1)(B) generally ex- cludes discharged indebtedness from a taxpayer’s gross income if the discharge occurs when the taxpayer is insolvent. Section 108(a)(3) limits the amount of in- come excluded by reason of § 108(a)(1)(B) to the amount by which the taxpayer is insolvent. Section 108(d)(3) defines “insolvent” as the excess of liabilities over the fair mar- ket value of assets. That section further provides that whether a taxpayer is insol- vent, and the amount by which the tax- payer is insolvent, is determined on the ba- sis of the taxpayer’s assets and liabilities immediately before the discharge. Section 108(d)(1) provides that indebt- edness of the taxpayer means any indebt- edness for which the taxpayer is liable, or subject to which the taxpayer holds prop- erty. Section 108(d)(6) provides that in the case of cancelled partnership debt, the in- solvency exception of § 108(a)(1)(B) ap- plies at the partner level. Rev. Rul. 92–53, 1992–2 C.B. 48, pro- vides that the amount by which a nonre- course debt exceeds the fair market value of the property securing the debt (excess nonrecourse debt) is treated as a liability in determining insolvency for purposes of § 108 to the extent that the excess nonre- course debt is discharged. ANALYSIS In order to properly apply Rev. Rul. 92–53 in a partnership context, the partner- ship’s discharged excess nonrecourse debt should be associatedwith the partner who in the absence of the insolvency or other § 108 exclusion would be required to pay the tax liability arising from the discharge of that debt. Therefore, a partnership’s dis- charged excess nonrecourse debt is treated as a liability of the partners for purposes of measuring the partners’ insolvency un- der § 108(d)(3) based upon how the COD income with respect to that portion of the debt is allocated among the partners un- der § 704(b) and the regulations thereun- der. See Rev. Rul. 99–43, 1999–2 C.B. 506, and Rev. Rul. 92–97, 1992–2 C.B. 124, regarding the application of § 704(b) to allocations of COD income. In this case, Bank cancels $175,000 of PRS’s $200,000 excess nonrecourse debt, generating $175,000 of COD income. PRS’s $175,000 COD income is allocated equally between X and Holdco under § 704(b) and the regulations thereunder. For purposes of measuring the insolvency of the partners, PRS’s discharged excess nonrecourse debt is treated as a liability of its partners based upon the COD income allocation. Thus, X treats $87,500 of PRS’s debt as a liability of X, and Holdco treats $87,500 of PRS’s debt as a liability of Holdco. X and Holdco treat their shares of the cancelled PRS excess nonrecourse debt as their own liabilities in determining whether, and to what extent, each is insol- vent within the meaning of § 108(d)(3). X and Holdco have no assets or liabil- ities other than their partnership interests in PRS. In this case, the value of X’s and Holdco’s partnership interests in PRS is zero. Immediately before Bank discharges the indebtedness, X’s liability exceeds the value of X’s partnership interest by $87,500, and similarly Holdco’s liability exceeds the value of Holdco’s partnership interest by $87,500. Therefore, X and Holdco are each insolvent to the extent of $87,500 under § 108(d)(3). Accord- ingly, X and Holdco each exclude their $87,500 amount of COD income under § 108(a)(1)(B). HOLDING For purposes of measuring a partner’s insolvency under § 108(d)(3), each partner treats as a liability an amount of the part- nership’s discharged excess nonrecourse debt that is based upon the allocation of COD income to such partner under § 704(b) and the regulations thereunder. EFFECT ON OTHER REVENUE RULINGS Rev. Rul. 92–53 is amplified. DRAFTING INFORMATION The principal authors of this ruling are Kevin I. Babitz and Anne W. Bryson of the Office of Associate Chief Counsel (Passthroughs & Special Industries). For further information regarding this revenue ruling, contact Kevin I. Babitz, Anne W. Bryson, or Charlotte Chyr at (202) 622–3060 (not a toll-free call). June 11, 201210132012–24 I.R.B. Part III. Administrative, Procedural, and Miscellaneous Extension of Interim Guidance on Modification of Section 833 Treatment of Certain Health Organizations Notice 2012–37 PURPOSE This notice extends the interim guid- ance provided in Notice 2011–51, 2011–27 I.R.B. 36, and Notice 2010–79, 2010–49 I.R.B. 809, as clarified and modified by Notice 2011–4, 2011–2 I.R.B. 282, and Rev. Proc. 2011–14, 2011–4 I.R.B. 330, on the interpretation and application of § 833(c)(5) of the Internal Revenue Code (Code). BACKGROUND Section 9016 of the Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010) (Afford- able Care Act), added § 833(c)(5) to the Code, effective for taxable years begin- ning after December 31, 2009. Section 833(c)(5) provides that § 833 does not ap- ply to an otherwise-eligible organization unless the organization’s medical loss ra- tio (MLR) during the taxable year is not less than 85 percent. For purposes of sec- tion 833(c)(5), an organization’s MLR is equal to the “percentage of total premium revenue expended on reimbursement for clinical services provided to enrollees un- der its policies during such taxable year (as reported under section 2718 of the Public Health Service Act).” In December 2010, the Depart- ment of Health and Human Services (HHS) issued interim final regulations implementing § 2718 of the Public Health Service Act (PHSA), 75 Fed. Reg. 74864 (December 1, 2010). The Department of Treasury (Treasury) and the Internal Revenue Service (the Service) subsequently issued Notice 2010–79 providing interim guidance and transitional relief on (1) the computation of a taxpayer’s MLR for purposes of § 833(c)(5), (2) the consequences of nonapplication of § 833 if § 833(c)(5) is not satisfied, and (3) changes in accounting method by reason of application or nonapplication of § 833. The interim guidance applied to the first taxable year beginning after December 31, 2009. In Notice 2011–51, Treasury and the Service extended the interim guidance and transitional relief to the first taxable year beginning after December 31, 2010. In December 2011, HHS issued final regulations, codified at 45 C.F.R. pt. 158, implementing the reporting requirements under § 2718 of the PHSA, 76 Fed. Reg. 76574 (December 7, 2011). The final reg- ulations became effective January 3, 2012, and the first reporting under § 2718 of the PHSA is due in June 2012. EXTENSION OF INTERIM GUIDANCE Section 833(c)(5) looks to information reported under § 2718 of the PHSA for pur- poses of determining whether a taxpayer’s MLR is at least 85 percent. Now that HHS has issued final regulations under § 2718, Treasury and the Service expect to pro- pose regulations under § 833(c)(5). How- ever, Treasury and the Service believe that the development of those proposed regula- tions should reflect the experience of both HHS and the affected taxpayers with the implementation of the HHS § 2718 reg- ulations, the first reporting under which occurs this year. Moreover, once Trea- sury and the Service have published pro- posed regulations, affected taxpayers will need time to determine the potential ef- fect of the proposed regulations, to pro- vide comments thereon, and to consider whether any program adjustments may be necessary in advance of the effective date of final regulations. Accordingly, the in- terim guidance and transitional relief pro- vided in Notices 2010–79 and 2011–51 are extended through the first taxable year be- ginning after December 31, 2012. REQUEST FOR COMMENTS Treasury and the Service invite com- ments on all aspects of §833(c)(5), includ- ing how the proposed regulations they an- ticipate issuing under that provision might take account of the specific reporting re- quired under § 2718 of the PHSA and coordinate the MLR computations under § 2718 of the PHSA and § 833(c)(5). Comments should be submitted in writ- ing on or before September 10, 2012. Comments should include a reference to Notice 2012–37. Send submissions to CC:PA:LPD:PR (Notice 2012–37), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washing- ton, DC 20224. 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 2012–37), Courier’s Desk, Internal Revenue Ser- vice, 1111 Constitution Avenue, NW, Washington, DC 20004, or sent electron- ically, via the following e-mail address: Notice.comments@irscounsel.treas.gov. Please include “Notice 2012–37” in the subject line of any electronic communications. Allcomments submitted will be available for public inspection and copying. EFFECT ON OTHER DOCUMENTS Notice 2011–51 is modified and super- seded. CONTACT INFORMATION The principal author of this notice is Graham R. Green of the Office of Associate Chief Counsel (Financial Institutions & Products). For further information regarding this notice, contact Graham R. Green at (202) 622–3970 (not a toll-free call). Implementation of Rev. Rul. 2006–57—Issues for Public Comment Notice 2012–38 PURPOSE This notice requests public comments on issues associated with Revenue Ruling 2006–57, 2006–2 C.B. 911, which became effective on January 1, 2012. Rev. Rul. 2006–57 provides guidance on the use of smartcards, debit or credit cards, or other electronic media to provide quali- fied transportation fringes under sections 132(a)(5) and (f) of the Internal Revenue Code (the Code). The Treasury Depart- ment and the Internal Revenue Service have become aware of changes in tech- nology that may give rise to the need for 2012–24 I.R.B.1014June 11, 2012 additional guidance on the use of elec- tronic media to provide transit benefits. BACKGROUND Section 132(a)(5) of the Code provides that any fringe benefit that is a qualified transportation fringe is excluded from gross income. Section 132(f)(1) provides that the term “qualified transportation fringe” means, when provided by an em- ployer to an employee, (1) transportation in a commuter highway vehicle between home and work, (2) any transit pass, (3) qualified parking, or (4) any qualified bi- cycle commuting reimbursement. Section 132(f)(5)(A) provides that a transit pass is any pass, token, farecard, voucher or similar item entitling a person to transportation (or transportation at a reduced price) if such transportation is on mass transit facilities or is provided by any person in the business of transport- ingpersonsforcompensationorhireina commuter highway vehicle. Section 132(f)(3) of the Code generally allows employers to use cash reimburse- ment arrangements to provide employees with qualified transportation fringe ben- efits. This section, however, prohibits use of such arrangements to provide tran- sit benefits “if a voucher or similar item which may be exchanged only for a tran- sit pass” is “readily available.” Section 1.132–9, Q/A–16(b) of the Regulations specifies that a voucher or similar item is not readily available if the entity provid- ing it imposes restrictions that effectively prevent the employer from obtaining vouchers appropriate for distribution to employees. Examples of such restrictions include: 1. Excessive fare media charges: The term “fare media charges” refers to extra fees that the voucher-provider requires employers to incur to furnish employees with vouchers. Such fees are excessive if the average annual fare media charges that the employer incurs to provide its employees with transit benefits via vouchers are more than one percent of the average annual value of the vouchers for a transit sys- tem. 2. Advance purchase requirements: A voucher-provider imposes an exces- sive advance purchase requirement if it “does not offer vouchers at regular intervals or fails to provide the voucher within a reasonable pe- riod after receiving payment for the voucher.” The regulations clarify that a requirement that employers pur- chase vouchers only once per year is an excessive advance purchase re- quirement, but a requirement that an employer purchase vouchers on a monthly basis is not. 3. Purchase quantity requirements: A voucher is not readily available if the voucher-provider requires the employer to purchase vouchers in quantities that are not reasonably ap- propriate considering the number of employees who use mass transit. 4. Limitations on denominations of available vouchers: A voucher is not readily available if the voucher-provider requires the em- ployer to purchase vouchers in de- nominations that are not appropriate for distribution to the employer’s em- ployees. Section 1.132–9, Q/A–16 of the Regu- lations provides that a qualified transporta- tion fringe includes cash reimbursement for transit passes made under abona fide reimbursement arrangement that meets substantiation requirements specified in the regulations. In discussing the applica- tion of Section 132(f) of the Code to reim- bursements, Section 1.132–9, Q/A–16(a) of the Regulations provides that a payment made before the date an expense has been incurred or paid is not a reimbursement; nor does abona fidereimbursement ar- rangement include an arrangement that is dependent solely upon an employee certifying in advance that the employee will incur expenses at some future date. Employers must implement reasonable procedures to ensure that employees have incurred expenses for transit passes in an amount equal to the reimbursement. What constitutes a reasonable procedure depends on the facts and circumstances of a particular arrangement. The Regulations further require employees to provide any such substantiation within a “reasonable period of time.” Rev. Rul. 2006–57 provides guidance on the use of smartcards, debit or credit cards, or other electronic media to provide employees with transportation fringes. The ruling was originally scheduled to become effective January 1, 2008. How- ever, Treasury and the IRS delayed the effective date of the ruling several times in order to give transit systems additional time to modify their technology to comply with the requirements set forth in Revenue Ruling 2006–57, mostrecently in Notice 2010–94, 2010–52 I.R.B. 927, which de- layed the effective date until January 1, 2012. There have been no subsequent notices delaying the effective date of the revenue ruling. The revenue ruling is therefore now effective. The revenue ruling includes four situ- ations that illustrate the tax treatment of arrangements under which employers use electronic media to provide employees with transportation benefits. Employers in the first situation distrib- ute “smartcards” to their employees. Em- ployees use the fare media value that is stored on these cards to pay for transporta- tion on the local transit system. The fare media value stored on the cards is useable only to pay for transportation on the local transit system. The revenue ruling there- fore concludes that the smartcards qualify as transit system vouchers under section 1.132–9(b) of the Regulations. The value of the fare media stored on the smartcards, up to the applicable monthly limit, is ex- cludable from an employee’s gross income as a qualified transportation benefit. Un- der section 1.132–9(b) Q/A–18, employ- ees are not required to substantiate their use of the smartcards. In the second situation, employers fur- nish employees with debit cards. These debit cards are restricted for use only at merchant terminals at points of sale at which only fare media for the local transit system is sold. Employers make monthly payments to the debit card provider, which the debit card provider then allocates to each employee’s card. The revenue ruling concludes that these terminal-restricted debit cards qualify as transit system vouch- ers under section 1.132–9(b) because, similar to the smartcards in the first situ- ation, they can be used only to purchase fare media on the local transit system. Amounts stored on these debit cards are excludable from employee’s gross in- comes to the extent that they do not exceed the applicable monthly limit and employ- ees are not required to substantiate their use of the debit cards. June 11, 201210152012–24 I.R.B. The revenue ruling’s third situation depicts an arrangement under which em- ployers provide employees with debit cards that employees can use to pur- chase transit benefits under circumstances in which vouchers or similar items ex- changeable only for transit passes are not readily available. These debit cards are restricted for use only at merchants that have been assigned a merchant category code (MCC-restricted) indicating that the merchants sell fare media for the local transit system. The merchants may or may not sell other merchandise. The revenue ruling concludes that these debit cards do not qualify as transit system vouchers under section 1.132–9(b) because there is nothing in the debit card technology that prevents the use of the cards to purchase items other than fare media for the local transit system. However, because tran- sit passes are not readily available to the employers in these circumstances, the em- ployers are permitted to distribute transit benefits viabona fidecash reimbursement arrangements. The revenue ruling con- cludes that the facts of this third situation result in abona fidecash reimbursement arrangement because employees are re- quired to pay for fare media with after-tax amounts during their first month of par- ticipation in the transportation benefit program, the employees must substantiate the amount of their monthly expenses to the employers, and the employers pro- vide funds that the debit card provider allocates to each debit card in an amount that does not exceed the lesser of the ap- plicable monthly limit or the amount of the employee’s substantiated fare media expenses for the prior month. The facts in the fourth situation are the same as those in the third situation, except that the employer provides employees with the MCC-restricted debit cards be- fore they begin work. Before using the MCC-restricted debit cards, employees must certify that the card will be used only to purchase transit passes. Further, written on each card is a statement that the card is to be used only for transit passes and, by using the card, the employees certify that the card is being used only to purchase transit passes. The revenue ruling con- cludes that the arrangement in the fourth situation does not meet the requirements of abona fidecash reimbursement arrange- ment because it provides for advances rather than reimbursements and because itreliessolelyonemployee certifications provided before expenses are incurred. Those certifications, standing alone, do not provide the substantiation of expenses incurred necessary for there to be abona fidereimbursement arrangement. At the time Rev. Rul. 2006–57 was issued, the Treasury Department and the Internal Revenue Service (IRS) lacked sufficient factual context to develop guid- ance regarding whether terminal-restricted debit cards were “readily available”. The revenue ruling indicates that the IRS in- tends “to issue guidance clarifying under what situations the cards are considered to be readily available and thus preclude cash reimbursement for transit benefits.” In the interim, employers may usebona fidecash reimbursement arrangements when the only available voucher or similar item is a terminal-restricted debit card. REQUESTS FOR COMMENT Treasury and the IRS have become aware that changes in fare media and in transit benefit administration may have created the need for guidance in addition to the guidance issued concerning the specific situations described in Rev. Rul. 2006–57. Developments in technology, an increase in the number of transit sys- tems and third parties providing electronic media for transit use, and the trend away fromuseofpaperfaremediaprovideaba- sis for concluding that the four situations described in Rev. Rul. 2006–57 may not cover the full range of available electronic media for providing fare media. Treasury and the IRS request com- ments on how electronic media may meet the statutory requirements under section 132(f) for providing transit benefits, either as vouchers or transit passes or through bona fidecash reimbursement arrange- ments in a manner other than those de- scribed in situations one through four in Rev. Rul. 2006–57. Also, Treasury and the IRS request comments on the avail- ability of terminal-restricted cards and any other electronic media qualifying as vouchers or transit passes for purposes of determining whether such items are readily available and, therefore, cash re- imbursement arrangements for providing transit benefits should be prohibited. Fi- nally, Treasury and the IRS request com- ments on challenges employers encounter in transitioning from paper transit passes or vouchers to electronic media that qual- ify as vouchers or transit passes, or from cash reimbursement arrangements to elec- tronic media qualifying as transit passes or vouchers. 1. Electronic Media other than those described in Revenue Ruling 2006–57 Revenue Ruling 2006–57 distinguishes the tax-treatment of terminal-restricted debit cards and MCC-restricted debit cards under the facts described in the situations. Specifically, the revenue ruling concludes that under the facts described in those sit- uations. a terminal-restricted debit card qualifies as a transit pass under section 132(f) of the Code, while MCC-restricted debit cards do not qualify as transit passes because the holders may be able use the MCC-restricted debit cards to purchase items other than fare media. Treasury and the IRS have become aware of technolog- ical advances that may enable providers of MCC-restricted debit cards to limit the use of these cards to such an extent that it is almost, if not entirely, impossible to use the cards to purchase any items other than fare media. In light of these technological advances, Treasury and the IRS request comments on circumstances in which the use of MCC-restricted debit cards is suf- ficiently circumscribed so that the cards qualify as transit passes or vouchers pro- viding transit benefits. 2. Definition of “readily available” As discussed in the Background sec- tion, employers may usebona fidecash reimbursement arrangements to provide employees with qualified transportation fringe benefits only if vouchers or sim- ilar items are not readily available. The regulations state that a voucher or similar item is not readily available if the entity providing the item imposes restrictions that effectively prevent employers from obtaining vouchers appropriate for dis- tribution to employees. Revenue Ruling 2006–57 did not provide guidance on what constitutes “readily available” in the context of terminal-restricted debit cards, but the revenue ruling indicated that this issue will be addressed in future guidance. The IRS requests comments on whether terminal-restricted debit cards are widely 2012–24 I.R.B.1016June 11, 2012 used, the availability of terminal-restricted debit cards in areas where paper vouchers are no longer accepted by the local transit system, the ease with which employers can acquire terminal-restricted debit cards to distribute transit benefits, and any is- sues that employers and/or employees are encountering in connection with the use of such cards. 3. Transitions from paper transit system vouchers to electronic vouchers or tobona fidecash reimbursement systems. Treasury and the IRS have become aware of issues arising in locations in which transit systems no longer accept pa- per transit passes. Some benefit providers in these locations that previously pro- vided transit benefits via paper vouchers now plan to provide benefits via elec- tronic media that qualify as transit passes or vouchers, or viabona fidecash reim- bursement arrangements because no other transit passes or vouchers are readily avail- able for use on the transit systems. The IRS requests administrators of, and par- ticipants in, such arrangements to provide comments concerning any issues that have arisen related to the transition from paper vouchers to other methodologies for pro- viding transportationfringe benefits. For example, employers transitioning from paper transit passes to cash reimbursement arrangements may have questions regard- ing how to comply with the requirement in section 1.132–9, Q/A–16 that employees incur expenses prior to the date employers make payments as they move from an in-kind arrangement, which does not have such a requirement regarding the timing of expenses, to a cash reimbursement ar- rangement. 4. Application ofbona fide reimbursement arrangement requirements in context of electronic media. Treasury and the IRS also requests comments concerning the circumstances under which the provision of transit ben- efits via electronic media constitutes a bona fidereimbursement arrangement. For example, the IRS has become aware of arrangements under which employers load funds onto electronic media at the beginning of each month after receiving an employee certification of expected transit expenses and then utilize one or both of the following: (1) true-up mecha- nisms under which employers periodically review statements detailing employees’ transactions and require employees to repay the costs of any “unauthorized” transactions, or (2) sweep-away mecha- nisms under which employers delete any unused amounts from employees’ elec- tronic media at the end of each month. The IRS requests comments concern- ing whether arrangements under which employers credit employees’ electronic media with amounts before the employ- ees actually incur transit expenses may qualify asbona fidecash reimbursement arrangements through use of one or both of these safeguards and if the employee provides reasonable substantiation of the expenses incurred within the meaning of Section 1.132–9, Q/A–16(c). The IRS also requests comments concerning any other similar safeguards that should en- able such up-front crediting of employees’ electronic mediato qualify asbona fide cash reimbursement arrangements. REQUEST FOR COMMENTS The IRS requests comments on the is- sues described above. Comments should besubmittedinwritingonorbeforeAu- gust 27, 2012. All Comments will be available for public inspection and copy- ing. Comments may be submitted in one of three ways: 1. By mail to CC:PA:LPD:PR (Notice 2012–38), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Sta- tion, Washington, DC 20044. 2.Electronicallyto Notice.Comments@irscounsel.treas.gov. Please include “Notice 2012–38” in the subject line of any electronic communications. 3. By hand-delivery Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (Notice 2012–38), Courier’s Desk, Internal Rev- enue Service, 1111 Constitution Ave., NW, Washington, DC 20224. DRAFTING INFORMATION The principal author of this announce- ment is Syd Gernstein of the Employment Tax 2, Tax Exempt and Government Entities Division. For further information regarding this announcement, contact Syd Gernstein or Jean Casey at (202) 622–6040 (not a toll-free call). June 11, 201210172012–24 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. 2012–24 I.R.B.iJune 11, 2012 Numerical Finding List 1 Bulletins 2012–1 through 2012–24 Announcements: 2012-1, 2012-1 I.R.B.249 2012-2, 2012-2 I.R.B.285 2012-3, 2012-4 I.R.B.335 2012-4, 2012-4 I.R.B.335 2012-5, 2012-5 I.R.B.348 2012-6, 2012-6 I.R.B.366 2012-7, 2012-6 I.R.B.367 2012-8, 2012-7 I.R.B.373 2012-9, 2012-7 I.R.B.377 2012-11, 2012-13 I.R.B.611 2012-12, 2012-12 I.R.B.562 2012-13, 2012-16 I.R.B.805 2012-14, 2012-14 I.R.B.721 2012-15, 2012-15 I.R.B.794 2012-16, 2012-18 I.R.B.876 2012-17, 2012-18 I.R.B.876 2012-18, 2012-16 I.R.B.845 2012-19, 2012-20 I.R.B.934 2012-20, 2012-18 I.R.B.876 2012-21, 2012-19 I.R.B.898 2012-22, 2012-19 I.R.B.899 2012-23, 2012-22 I.R.B.967 2012-24, 2012-23 I.R.B.982 Notices: 2012-1, 2012-2 I.R.B.260 2012-3, 2012-3 I.R.B.289 2012-4, 2012-3 I.R.B.290 2012-5, 2012-3 I.R.B.291 2012-6, 2012-3 I.R.B.293 2012-7, 2012-4 I.R.B.308 2012-8, 2012-4 I.R.B.309 2012-9, 2012-4 I.R.B.315 2012-10, 2012-5 I.R.B.343 2012-11, 2012-5 I.R.B.346 2012-12, 2012-6 I.R.B.365 2012-13, 2012-9 I.R.B.421 2012-14, 2012-8 I.R.B.411 2012-15, 2012-9 I.R.B.424 2012-16, 2012-9 I.R.B.427 2012-17, 2012-9 I.R.B.430 2012-18, 2012-10 I.R.B.438 2012-19, 2012-10 I.R.B.440 2012-20, 2012-13 I.R.B.574 2012-21, 2012-10 I.R.B.450 2012-22, 2012-13 I.R.B.576 2012-23, 2012-11 I.R.B.483 2012-24, 2012-13 I.R.B.578 2012-25, 2012-15 I.R.B.789 2012-26, 2012-17 I.R.B.847 2012-27, 2012-17 I.R.B.849 Notices— Continued: 2012-28, 2012-17 I.R.B.850 2012-29, 2012-18 I.R.B.872 2012-30, 2012-18 I.R.B.874 2012-31, 2012-20 I.R.B.906 2012-32, 2012-20 I.R.B.910 2012-33, 2012-20 I.R.B.912 2012-34, 2012-21 I.R.B.937 2012-35, 2012-21 I.R.B.937 2012-36, 2012-22 I.R.B.962 2012-37, 2012-24 I.R.B.1014 2012-38, 2012-24 I.R.B.1014 Proposed Regulations: REG-168745-03, 2012-14 I.R.B.718 REG-137589-07, 2012-21 I.R.B.942 REG-139991-08, 2012-21 I.R.B.945 REG-109369-10, 2012-9 I.R.B.434 REG-110980-10, 2012-13 I.R.B.581 REG-113770-10, 2012-13 I.R.B.587 REG-113903-10, 2012-11 I.R.B.486 REG-120282-10, 2012-11 I.R.B.487 REG-130302-10, 2012-8 I.R.B.412 REG-135491-10, 2012-16 I.R.B.803 REG-149625-10, 2012-2 I.R.B.279 REG-102988-11, 2012-4 I.R.B.326 REG-107548-11, 2012-23 I.R.B.977 REG-115809-11, 2012-13 I.R.B.598 REG-119632-11, 2012-23 I.R.B.978 REG-124627-11, 2012-8 I.R.B.417 REG-124791-11, 2012-15 I.R.B.791 REG-130777-11, 2012-5 I.R.B.347 REG-132736-11, 2012-15 I.R.B.793 REG-135071-11, 2012-12 I.R.B.561 REG-136008-11, 2012-19 I.R.B.881 REG-141268-11, 2012-19 I.R.B.896 REG-144267-11, 2012-21 I.R.B.949 REG-145474-11, 2012-11 I.R.B.495 REG-117645-12, 2012-22 I.R.B.965 Revenue Procedures: 2012-1, 2012-1 I.R.B.1 2012-2, 2012-1 I.R.B.92 2012-3, 2012-1 I.R.B.113 2012-4, 2012-1 I.R.B.125 2012-5, 2012-1 I.R.B.169 2012-6, 2012-1 I.R.B.197 2012-7, 2012-1 I.R.B.232 2012-8, 2012-1 I.R.B.235 2012-9, 2012-2 I.R.B.261 2012-10, 2012-2 I.R.B.273 2012-11, 2012-7 I.R.B.368 2012-12, 2012-2 I.R.B.275 2012-13, 2012-3 I.R.B.295 2012-14, 2012-3 I.R.B.296 2012-15, 2012-7 I.R.B.369 Revenue Procedures— Continued: 2012-16, 2012-10 I.R.B.452 2012-17, 2012-10 I.R.B.453 2012-18, 2012-10 I.R.B.455 2012-19, 2012-14 I.R.B.689 2012-20, 2012-14 I.R.B.700 2012-21, 2012-11 I.R.B.484 2012-22, 2012-17 I.R.B.853 2012-23, 2012-14 I.R.B.712 2012-24, 2012-20 I.R.B.913 2012-25, 2012-20 I.R.B.914 2012-26, 2012-20 I.R.B.933 2012-27, 2012-21 I.R.B.940 Revenue Rulings: 2012-1, 2012-2 I.R.B.255 2012-2, 2012-3 I.R.B.286 2012-3, 2012-8 I.R.B.383 2012-4, 2012-8 I.R.B.386 2012-5, 2012-5 I.R.B.337 2012-6, 2012-6 I.R.B.349 2012-7, 2012-6 I.R.B.362 2012-8, 2012-13 I.R.B.563 2012-9, 2012-11 I.R.B.475 2012-10, 2012-14 I.R.B.614 2012-11, 2012-14 I.R.B.686 2012-12, 2012-15 I.R.B.748 2012-13, 2012-19 I.R.B.878 2012-14, 2012-24 I.R.B.1012 2012-15, 2012-23 I.R.B.975 Treasury Decisions: 9559, 2012-2 I.R.B.252 9560, 2012-4 I.R.B.299 9561, 2012-5 I.R.B.341 9562, 2012-5 I.R.B.339 9563, 2012-6 I.R.B.354 9564, 2012-14 I.R.B.614 9565, 2012-8 I.R.B.378 9566, 2012-8 I.R.B.389 9567, 2012-8 I.R.B.395 9568, 2012-12 I.R.B.499 9569, 2012-11 I.R.B.465 9570, 2012-11 I.R.B.477 9571, 2012-11 I.R.B.468 9572, 2012-11 I.R.B.471 9573, 2012-12 I.R.B.498 9574, 2012-12 I.R.B.559 9575, 2012-15 I.R.B.749 9576, 2012-15 I.R.B.723 9577, 2012-15 I.R.B.730 9579, 2012-16 I.R.B.796 9580, 2012-16 I.R.B.801 9581, 2012-16 I.R.B.798 9582, 2012-18 I.R.B.868 9583, 2012-18 I.R.B.866 1 A cumulative list of all revenue rulings, revenue procedures, Treasury decisions, etc., published in Internal Revenue Bulletins 2011–27 through 2011–52 is in Internal Revenue Bulletin 2011–52, dated December 27, 2011. June 11, 2012ii2012–24 I.R.B. Treasury Decisions— Continued: 9584, 2012-20 I.R.B.900 9585, 2012-21 I.R.B.935 9586, 2011-22 I.R.B.960 9587, 2012-22 I.R.B.953 9588, 2012-23 I.R.B.969 9589, 2012-23 I.R.B.971 9590, 2012-24 I.R.B.986 2012–24 I.R.B.iiiJune 11, 2012 Finding List of Current Actions on Previously Published Items 1 Bulletins 2012–1 through 2012–24 Announcements: 2002-44 Supplemented by Notice 2012-13, 2012-9 I.R.B.421 2010-19 Obsoleted by Ann. 2012-12, 2012-12 I.R.B.562 2011-63 Corrected by Ann. 2012-9, 2012-7 I.R.B.377 Notices: 2006-52 As clarified and amplified by Notice 2008-40, is modified by Notice 2012-26, 2012-17 I.R.B.847 2006-87 Superseded by Notice 2012-19, 2012-10 I.R.B.440 2006-99 Superseded in part by Notice 2012-20, 2012-13 I.R.B.574 2007-25 Superseded by Notice 2012-19, 2012-10 I.R.B.440 2007-47 Obsoleted by REG-137589-07, 2012-21 I.R.B.942 2007-77 Superseded by Notice 2012-19, 2012-10 I.R.B.440 2007-95 Obsoleted in part by T.D. 9576, 2012-15 I.R.B.723 2008-98 Modified by Notice 2012-29, 2012-18 I.R.B.872 2008-107 Superseded by Notice 2012-19, 2012-10 I.R.B.440 2009-86 Modified by Notice 2012-29, 2012-18 I.R.B.872 2010-27 Superseded by Notice 2012-19, 2012-10 I.R.B.440 Notices— Continued: 2010-88 As modified by Ann. 2011-40, is superseded by Notice 2012-1, 2012-2 I.R.B.260 2010-92 Obsoleted by T.D. 9577, 2012-15 I.R.B.730 2011-8 Superseded by Notice 2012-19, 2012-10 I.R.B.440 2011-28 Superseded by Notice 2012-9, 2012-4 I.R.B.315 2011-51 Modified and superseded by Notice 2012-37, 2012-24 I.R.B.1014 Proposed Regulations: REG-208274-86 Withdrawn by Ann. 2012-11, 2012-13 I.R.B.611 REG-151687-10 Withdrawn by Ann. 2012-23, 2012-22 I.R.B.967 Revenue Procedures: 2000-43 Amplified, modified and superseded by Rev. Proc. 2012-18, 2012-10 I.R.B.455 2003-61 Superseded by Notice 2012-8, 2012-4 I.R.B.309 2007-44 Modified by Ann. 2012-3, 2012-4 I.R.B.335 2010-43 Superseded by Rev. Proc. 2012-22, 2012-17 I.R.B.853 2011-1 Superseded by Rev. Proc. 2012-1, 2012-1 I.R.B.1 2011-2 Superseded by Rev. Proc. 2012-2, 2012-1 I.R.B.92 2011-3 Superseded by Rev. Proc. 2012-3, 2012-1 I.R.B.113 2011-4 Superseded by Rev. Proc. 2012-4, 2012-1 I.R.B.125 Revenue Procedures— Continued: 2011-5 Superseded by Rev. Proc. 2012-5, 2012-1 I.R.B.169 2011-6 Superseded by Rev. Proc. 2012-6, 2012-1 I.R.B.197 2011-7 Superseded by Rev. Proc. 2012-7, 2012-1 I.R.B.232 2011-8 Superseded by Rev. Proc. 2012-8, 2012-1 I.R.B.235 2011-9 Superseded by Rev. Proc. 2012-9, 2012-2 I.R.B.261 2011-10 Superseded by Rev. Proc. 2012-10, 2012-2 I.R.B.273 2011-14 Modified and clarified by Rev. Proc. 2012-19, 2012-14 I.R.B.689 Rev. Proc. 2012-20, 2012-14 I.R.B.700 2011-23 Obsoleted in part by Rev. Proc. 2012-25, 2012-20 I.R.B.914 2011-37 Obsoleted in part by Rev. Proc. 2012-16, 2012-10 I.R.B.452 2011-40 Corrected by Ann. 2012-6, 2012-6 I.R.B.366 2011-49 Modified by Ann. 2012-3, 2012-4 I.R.B.335 2011-50 Corrected by Ann. 2012-6, 2012-6 I.R.B.366 2011-51 Corrected by Ann. 2012-6, 2012-6 I.R.B.366 2011-62 Corrected by Ann. 2012-17, 2012-18 I.R.B.876 2012-8 Corrected by Ann. 2012-7, 2012-6 I.R.B.367 Revenue Rulings: 92-19 Supplemented in part by Rev. Rul. 2012-6, 2012-6 I.R.B.349 1 A cumulative list of current actions on previously published items in Internal Revenue Bulletins 2011–27 through 2011–52 is in Internal Revenue Bulletin 2011–52, dated December 27, 2011. June 11, 2012iv2012–24 I.R.B. Revenue Rulings— Continued: 92-53 Amplified by Rev. Rul. 2012-14, 2012-24 I.R.B.1012 2008-40 Modified by Notice 2012-6, 2012-3 I.R.B.293 2011-1 Modified by Notice 2012-6, 2012-3 I.R.B.293 2012-9 Modified by Rev. Rul. 2012-12, 2012-15 I.R.B.748 Treasury Decision: 9517 Corrected by Ann. 2012-4, 2012-4 I.R.B.335 Ann. 2012-5, 2012-5 I.R.B.348 2012–24 I.R.B.vJune 11, 2012 June 11, 20122012–24 I.R.B. 2012–24 I.R.B.June 11, 2012 June 11, 20122012–24 I.R.B. Internal Revenue Service W ashington,DC20224 Official Business Penalty for Private Use, $300 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. These are sold on a single copy basis andare notincluded as part of the subscription to the Internal Revenue Bulletin. 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The first release is available in mid-December and the final release is available in late January. HOW TO ORDER Check the publications and/or subscription(s) desired on the reverse, complete the order blank, enclose the proper remittance, detach entire page, and mail to the Superintendent of Documents, P.O. Box 979050, St. Louis, MO 63197–9000. Please allow two to six weeks, plus mailing time, for delivery. WE WELCOME COMMENTS ABOUT THE INTERNAL REVENUE BU LLETIN If you have comments concerning the format or production of the Internal Revenue Bulletin or suggestions for improving it, we would be p leased to hear from you. You can email us your suggestions or comments through the IRS Internet Home Page (www.irs.gov) or write t o the IRS Bulletin Unit, SE:W:CAR:MP:T:M:S, Washington, DC 20224.
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