Yesterday the NFIB Legal Center sent IRS Commissioner Hon. John Koskinen a letter voicing concerns over recently finalized regulations governing employers under the Affordable Care Act. Specifically, the letter raised several important questions about the “transition relief” regulations, which IRS announced last month. The questions were as follows:
(1) Why Did IRS Finalize the Regulations Without Giving the Regulated Community an Opportunity for Notice and Comment on the Newly Added “Transition Relief” Provisions?
(2) What is the Legal Authority for Enforcing the Employer Mandate Against Businesses With 100 Full- Time or Full-Time Equivalent Employees, While Exempting Businesses with 99?
(3) What is the Legal Authority for Requiring Businesses to Justify Personnel Changes as a Condition of Invoking “Transition Relief?”
(4) Does IRS Claim the Authority to Require Businesses to Justify Personnel Changes Once the Employer Mandate is Fully Enforced Against Businesses with 50 or More Full-Time or Full-Time Equivalent Employees?
(5) If IRS Claims the Authority to Require Businesses to Justify Down-Sizing Below 50 Full-Time or Full-Time Equivalent Employees, Will IRS Exercise Such Authority?
(6) What is the Legal Authority for IRS Certifying that the Final Regulation is Not a Significant Regulatory Action?
We will have to wait and see what kind of response we get from the IRS. But, we think these are important questions that should be answered in a timely fashion. We specifically hope that the IRS will disavow the authority to require businesses to justify personnel changes once the Employer Mandate if fully enforced because there is no basis in the ACA for imposing such a requirement on businesses.
The full letter can be found here.