The Supreme Court is expected to render a decision in 2021 on the validity of the 2010 Patient Protection and Affordable Care Act (ACA) that may impact certain taxes you paid in prior years.  There is a remote possibility that the 3.8% net investment income tax, the 0.9% additional Medicare tax, and the individual mandate tax for 2016 or certain later tax years may be available for refund.

The central issue in the Supreme Court case is the constitutionality of the individual mandate, which is the ACA requirement for individuals to have health coverage.  Through 2018, certain individuals without health coverage paid a tax penalty, but the Tax Cuts and Jobs Act, enacted in December of 2017, reduced the penalty to zero effective January 1, 2019.  The questions the Supreme Court will now be addressing are (1) whether the plaintiffs have standing to challenge the individual mandate; (2) whether reducing the penalty to zero rendered the individual mandate unconstitutional; and (3) if so, whether the individual mandate is severable from the rest of the ACA.

Given that the Supreme Court previously ruled in 2012 that the individual mandate was constitutional as a tax, and since the reduction of the penalty to zero did not occur until 2017 effective in 2019, we believe that the chances are very remote that the Court would render a decision that could impact years prior to 2019.  Furthermore, our understanding is that the Supreme Court would need to overturn the ACA as a whole or otherwise deem the net investment income tax and additional Medicare tax as unconstitutional in order for these taxes to be impacted for 2016 or later years.

However, because the statute of limitations on the 2016 tax year, and possibly the 2017 tax year, will close before a final decision is rendered in this case, if you wish to preserve the opportunity to seek a refund of these taxes for these years, you can file a protective claim for refund.  A protective claim for refund informs the IRS to keep the tax year open (generally for refund purposes only) until the court case is decided.  The IRS simply holds the claim and does not act on it unless an amended return is filed. If the case does result in these taxes being invalid retroactively, you would then need to file an amended return to claim your refund.  If the case ends up not affecting any prior years, you simply do nothing.

You should consider whether filing a claim, in light of the very remote possibility that the ACA taxes are deemed unconstitutional for 2016 or 2017, is appropriate for your individual tax situation; it likely does not make economic sense unless you paid a large amount of these taxes.  The amount of ACA taxes that you paid for these years is reported on Form 1040 on these lines: Form 8960, Line 17; Form 8959, Line 18; and Form 1040, Line 61. For trusts and estates that filed Form 1041 for tax year 2016 or 2017, see Form 8960, Line 21.

After considering the costs and the uncertain benefits, if you wish to proceed, we can assist you in filing a protective claim for refund for the 2016 tax year (and later years, if needed).  Our fees for filing the protective claim for 2016 would be $2,500, and if an amended return is necessary after the Court’s decision, then additional fees of at least $4,000 would be incurred to file an amended return.  If you filed your 2016 tax return on or before July 15, 2017, your due date for filing a protective claim for 2016 is July 15, 2020.  If you filed your 2016 tax return after July 15, 2017, your due date for filing a 2016 protective claim is three years from the date you filed your 2016 return. If you filed your 2017 tax return on or before April 15, 2018, your due date for filing a protective claim is April 15, 2021.  If you filed your 2017 tax return after April 15, 2018, your due date for filing a 2017 protective claim is three years from the date you filed your 2017 return.

If you do not wish to file a protective claim, you do not need to do anything.  If you wish to pursue this or discuss it further before making your decision, please contact your CPA.