Accessing more affordable health care coverage often is a major driver behind the decision of many small businesses to enter into employee leasing arrangements.  Many of these small businesses should consider if changing existing employee leasing practices makes sense to avoid unknowingly forfeiting or otherwise qualify to claim valuable health insurance premium tax credits  under new Internal Revenue Code (Code) § 45R.

Enacted as part of the sweeping health care reforms included in the  Patient Protection & Affordable Care Act (Affordable Care Act), Code § 45R generally offers a small employer that meets Code § 45R’s conditions (qualifying employer) to claim a tax credit for premiums that it pays for health insurance coverage to employees if:

• The employer had fewer than 25 full-time equivalent employees (“FTEs”) for the tax year;
• The average annual wages of its employees for the year must be less than $50,000 per FTE; and
• The employer pays premiums to provide employee health care coverage under a “qualifying arrangement.”

For purposes of Code § 45R, “qualifying arrangement” is an arrangement under which an qualifying employer pays premiums for each employee enrolled in health insurance coverage offered by the employer in an amount equal to a uniform percentage (not less than 50 percent) of the premium cost of the coverage.

An analysis of an advance copy of Internal Revenue Service (IRS) Notice 2010-82, scheduled for official publication on December 20, 2010, reveals that a small business that leases rather than employs directly workers gives up the ability to claim a Code § 45R tax credit for amounts paid toward health insurance premiums charged for leased employees when the leasing organization employs the worker even though the business could have claimed those amounts if it employed the worker and paid the premiums directly.  

According to Notice 2010-82, leased employees as defined in Code § 414(n) are counted in computing FTEs and average annual wages of businesses leasing their services (Service Recipient).  This means that that the use of leased employees will disqualify the business for the Code § 45R tax credit if its total workforce exceeds 25 FTEs when leased employees are taken into account.

Although Service Recipients must count these leased employees when calculating FTEs, and compensation for purposes of determining if the business is a qualified employer, the IRS says Code § 45R does not allow a Service Recipient to claim the Code §45R credit for health insurance premiums paid by or through a leasing organization for coverage of leased employees.  Since leasing organizations usually employ more than 25 FTEs, this means that neither business can claim any credit.

While the IRS won’t let Service Recipients claim credit for health premiums paid by a leasing company, Notice 2010-82 suggests that an otherwise qualifying small business can claim the tax credit for health premiums accessed through a leasing organization or other arrangement when the Service Recipient, and not the leasing organization, employs the workers and pays health premiums for coverage for the worker.  Assuming a business otherwise is a qualifying employer, Notice 2010-82 suggests that the business may claim the tax credit for premiums it pays to purchases qualifying health insurance for individuals employed as the common law employee of the business directly to a licensed insurer or to obtain insured coverage from a multiemployer plan that otherwise meets the requirements of Code § 45R. 

As with any decision about the use of leased employees, the feasibility and potential costs and benefits of structuring or restructuring the relationship with a worker who otherwise would be leased through a staffing company to claim the Code § 45R tax credit needs to be carefully evaluated before a business acts.  Businesses should carefully evaluate both the change in insurance costs, if any, and how the structuring of the relationship will affect other costs and liabilities.  Changing the relationship with a worker from employee to leased employee or visa versa can impact unemployment, employee benefit, employment liability, contractual, tort and other costs, obligations and other responsibilities.  In some instances, increased health insurance or other costs and liabilities may outweigh the tax benefits that a small business otherwise could get by qualifying for the Code § 45R tax credit.  Where the existing or contemplated relationship between business and the leasing organization already creates a co-employment relationship for many legal or financial purposes, however, restructuring the relationship to allow the business to directly employ workers but continue to use the payroll services of and access health coverage and other benefits for the worker under multiple employer benefit plans sponsored by the leasing organization may prove a viable and attractive option.  Moreover, as many businesses misunderstand legal risks and benefits of their employee leasing and other contingent workforce relationships, businesses should consult with competent legal counsel within the scope of attorney-client privilege to ensure that they have an accurate understanding of the legal implications of their existing employee leasing arrangements when evaluating these potential costs and benefits to avoid making misinformed decisions. 

Employers Urged To Seek Advice To Determine Tax Eligibility, Manage Legal Risks

Given the high cost of health insurance coverage, the Code § 45R credit may offers valuable savings for qualifying small employer.  Before providing coverage or estimating tax liabilities in reliance on the expectation of claiming the credit, however, an employer interested in claiming the credit should seek guidance from qualified tax counsel familiar with the Code § 45R rules and guidance as well as other applicable federal mandates impacting employer provided coverage.  The clarifications set forth in Notice 2010-82 illustrate that the rules for determining if an employer qualifies to claim a tax credit for health insurance premiums paid for employees under Code § 45R are anything but simple. In addition to meeting these conditions, employers offering or contributing to health coverage for employees can face a broad range of other legal and financial risk if they fail to properly understand and manage the organizational and personal responsibilities that can arise under applicable federal laws.  Where it is contemplated that health coverage will be accessed or provided through an employee leasing, staffing or multiple employee plan arrangement, other additional considerations also will apply.  Accordingly, small and other businesses that provide health coverage to employees or paying to lease the services of workers from a leasing organization that provides health coverage should review their options with experienced legal counsel within the scope of attorney-client privilege.

For More Information Or Assistance

You can learn more about these and other federal health plan mandates by listening to the recording of the 2010 Health Plan Update Briefing or reviewing other resources available here.  If you need help with these or other employee benefit, compensation or employment regulations or other related matters please contact Cynthia Marcotte Stamer here or (469)767-8872. 

Management attorney and consultant Cynthia Marcotte Stamer has more than 23 years experience advising and representing employers, employee benefit plans, their sponsors, fiduciaries, plan administrators, service providers, consultants, vendors, outsourcers, insurers, financial services providers, governments and others about health and other employee benefit, compensation, employment, insurance and financial services, and a wide range of other performance, legal and operational risk management practices and concerns.  Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization, Chair of the American Bar Association (ABA) RPTE Employee Benefit & Other Compensation Group, a Council Member of the ABA Joint Committee on Employee Benefits, and Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer is nationally recognized for her work helping clients to design, document, administer and defend health and other employee benefit plans and other related financial and insurance products and to manage risks associated with the offering and administration of these arrangements.  Her experience includes extensive work advising and representing employers, plans, plan fiduciaries, trustees, investors, and others about managing and resolving risks relating to fiduciary, contracting and other risks and responsibilities involved in the design, selection and administration of investments for employee benefit plans, and other fiduciary responsibility matters.  She also has extensive experience assisting these and other clients to investigate and determine the appropriateness of retirement plan investment selections to comply with ERISA and other fiduciary responsibility rules, as well as to defend challenges to investment offerings or decisions against complaints or actions brought by private plaintiffs, the Labor Department, state and federal securities regulators, insurers and others.  A prolific author and popular speaker, Ms. Stamer also publishes, conducts client and other training, speaks and consults extensively on employee benefit, compensation and human resources practices and concerns for the ABA, World At Work, SHRM, American Health Lawyers Association, Institute of Internal Auditors, Society for Professional Benefits Administrators, HCCA, Southwest Benefits Association and many other organizations.  Her insights on these and related topics have appeared in Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, Managed Healthcare, Health Leaders, various ABA publications and a many other national and local publications. To learn more about Ms. Stamer, her experience, involvements, programs and publications, see here or contact Ms. Stamer.

Other Resources & Developments

If you found this information of interest, you also may be interested in reviewing other recent updates by Ms. Stamer about the tax credit on Code §45R or other benefits, compensation or human resources matters including:

• Small Employers Sponsoring Health Coverage May Qualify For New Tax Credit, Must Act Quickly To Comply With Other New Federal Health Plan Mandates Under Affordable Care Act & Other Laws
• Read White Paper on New Guidance Clarifying Requirements For Small Employers To Claim Tax Credit for Health Premiums Paid For Employees
• 2011 Standard Mileage Rates Announced
• Proposed New Defined Benefit Plan Annual Funding Notice Rule Reminder of Need to Carefully Manage Pension Plan Responsibilities
• Affordable Care Act Grandfathered Plan Rules Loosened To Allow Insured Plans Making Some Insurance Changes To Qualify
• Update Employment Practices To Manage Genetic Info Discrimination Risks Under New EEOC Final GINA Regulations
• Blockbuster & Health Delivery Disability Discrimination Settlements Highlight Need For Tightened Disability Discrimination Risk Management
• DOL Proposes To Expand Investment Related Services Giving Rise to ERISA Fiduciary Status As Investment Fiduciary
• EEOC Attacks Medical Leave Denials As Prohibited Disability Discrimination
• ICE Invites Comments On Information Required For IMAGE Program Employers
• Affordable Care Act’s Health Plan External & Internal Review Safe Harbor & Other Regulations Require Health Plan Updates
• New Regulations & Court Decisions Require Health Plan Claims & Appeal Updates
• Rite Aid Pays $1 Million HIPAA Privacy Settlement As OCR Tightens HIPAA Regulations
• New Affordable Care Act Mandated High Risk Pre-Existing Condition Insurance Pool Program Regulations Prohibit Plan Dumping of High Risk Members, Set Other Rules
• Congress & Labor Department Considering Tightening of Retirement Plan Regulations
• Testimony Highlights Growing Exposure of Businesses Misclassifying Workers; Businesses Should Act to Minimize Risks
• Businesses Employing Children Should Review & Tighten Practices In Light of Tightened Rules & Increased Penalties
• Amended Rule Requires Federal Government Contractors To Post New “Employee Rights Under The National Labor” Poster

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THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2010 Cynthia Marcotte Stamer. Limited non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.