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October 2022 - Article

Is the ACA Penalty Entitled to Priority Treatment as a Tax Under the Bankruptcy Code?

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The article addresses the Patient Protection and Affordable Care Act (ACA) signed into law on March 23, 2010. The ACA requires certain individuals to maintain a “minimal essen­tial [health insurance] coverage” throughout the year, known as the “individual mandate.” A person sub­ject to the mandate who fails to main­tain the required insurance for one month or more is assessed a “shared responsibility payment.” The article focuses on several federal court decisions, including from the U.S. Supreme Court as well as contradictory rulings from the Third and Fifth Circuit Courts, that ana­lyzed whether the shared-responsibility payment is a tax under the Bankruptcy Code and, if so, whether such payments qualify for priority treatment. The authors conclude that “(w)hile the ACA no longer imposes a shared-respon­sibility payment, practitioners would be well-served to main­tain an awareness of the various factors that courts consider in determining the priority treatment of government claims.” View the article.