Get ACA Penalty Relief by Filing a Protective Refund Claim

In Texas v. U.S., No. 19-10011 (5th Cir. December 18, 2019; REVISED January 9, 2020), the U.S. Court of Appeals for the Fifth Circuit declared the individual mandate portion of the Affordable Care Act (ACA) unconstitutional, based largely on the penalty’s reduction to zero starting in 2019 by the Tax Cuts and Jobs Act (TCJA). This decision affirmed an earlier ruling by the federal District Court in Texas that found the mandate, as well as the rest of the ACA, unconstitutional.

In light of the Circuit Court’s recent decision, taxpayers may want to file protective claims for refunds paid in prior years. These penalties would include the individual shared responsibility penalty for tax years 2016, 2017, and 2018.

Although the ruling clearly found the individual mandate unconstitutional, the Fifth Circuit sent the case back to the District Court to determine what other parts, if any, of the ACA were now invalid due to the unconstitutionality of the individual mandate. It is very unlikely that the District Court will decide this issue soon, and the U.S. Supreme Court has refused to accept the case for an expedited review.

Therefore, the status of the rest of the ACA (including the shared responsibility penalty) could potentially change, and this uncertainty will likely remain until either (1) Congress revises the ACA, or (2) the U.S. Supreme Court takes up the Texas case for its own review. Currently, the ACA (Obamacare) is still the law of the land.

How to File a protective claim

A “protective claim” for a refund is a refund claim that is dependent on potential future action. This later action could be a court decision, new law, or a later acquisition of information that would not be available by the normal deadline for filing a refund claim.

 A protective claim must:

  • Be in writing and be signed,
  • Include the taxpayer’s name, address, and identifying number (SSN, EIN, or ITIN),
  • Identify and describe the contingencies affecting the claim,
  • Clearly alert the IRS as to the essential nature of the claim, and
  • Identify the specific year(s) for which a refund is sought.

Although it is possible to file a protective refund claim using a standard amended return (Form 1040X), the IRS will not immediately send out a refund as a result of this claim. That is because, under current ACA rules, the ACA penalty calculation applied prior to 2019. The protective claim ensures only that the statute of limitations (normally, three years from the filing deadline) will not bar a refund, should the law later change.

A protective claim for tax year 2016 must be filed by April 15, 2020; tax year 2017 must be filed by April 15, 2021; and tax year 2018 must be filed by April 15, 2022.