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January 4, 2012

On January 3, 2012, the Internal Revenue Service issued Notice 2012-9, which amends interim guidance for employers on reporting the cost of their group health insurance to employees on Forms W-2 beginning in the 2012 tax year.

Like the initial guidance (Notice 2011-28), these latest modifications are in question-and-answer format. The changes come in response to solicited comments on the reporting requirement under Internal Revenue Code Section 6051(a) (14) as imposed by the Patient Protection and Affordable Care Act (Pub. L. No. 111-148), the agency said.

Those comments included questions on how to report employee assistance and wellness programs since those programs appear to be group health plans, Kevin P. Knopf, attorney-adviser to Treasury’s Office of Benefits Tax Counsel, said Oct. 14 at an event sponsored by the American Law Institute-American Bar Association.

Modifications to Notice 2011-28 include:

• Q&A-3 regarding federally recognized Indian tribal governments,

• Q&A-3 clarifying the reporting requirement for smaller businesses—those filing fewer than 250 W-2s,

• Q&A-7 clarifying the reporting requirement to certain employers not using a common paymaster,

• Q&A-20 clarifying the standard of reporting for dental and vision plans, and

• Q&A-23 correcting the reporting requirement regarding a shareholder-employee of an S corporation who is required to include the premium payments in gross income.

The notice builds on the earlier guidance by adding Q&A-32 through Q&A-38, IRS said. The new Q&As address issues such as cost of coverage under an employee assistance program and under a health reimbursement arrangement, and the application of the exception for fixed indemnity insurance offered by an employer on an after-tax basis.

The guidance is “generally applicable” beginning with 2012 Forms W-2, Wage and Tax Statement—that is for forms required for calendar year 2012, IRS said. However, employers required to file fewer than 250 2011 Forms W-2 will not be subject to the reporting requirement for 2012 Forms W-2, the agency said.

While this notice supersedes Notice 2011-28, Treasury and IRS will continue to consider comments submitted in response to Notice 2011-28 as they work to develop regulations under Section 6051(a)(14), the notice said.

Notice 2012-9 will appear in Internal Revenue Bulletin 2012-4, to be published Jan. 23.  01.04.2012

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