Form 8928 - Return Of Certain Excise Taxes Under Chapter 43 Of The Internal Revenue Code Page 2
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When Does the Reporting Obligation Become Effective?
The reporting obligation is effective for plan years beginning on or after Jan. 1, 2010.
When Are the Payment of the Excise Tax and Filing of Form 8928 Due?
In all instances, the excise tax must be paid to the IRS at the same time and place that Form
8928 is filed. However, the deadline for reporting on Form 8928 will vary depending on the
type of violation. Employers must file and report violations on Form 8928 and remit payment:
•
On or before a liable employer’s (or in some cases insurer’s, HMO’s or third-party
administrator’s) income tax return filing due date, for violations related to COBRA, HIPAA,
GINA, MHPAEA, the Newborns’ and Mothers’ Health Protection Act, and Michelle’s Law. An
extension to file income taxes does not extend the date for filing Form 8928.
•
On or before April 15 following an impermissible contribution, for violations of the HSA or
Archer MSA comparability rules.
How Is the Excise Tax Amount Determined?
The amount of excise tax imposed for a violation remains unchanged by the new regulations
and will vary depending on the type of violation.
•
The excise tax for noncompliance with the rules related to COBRA, HIPAA, GINA, MHPAEA,
the Newborns’ and Mothers’ Health Protection Act, and Michelle’s Law generally is $100 per
individual per day (for each individual to whom the violation relates for each day of
noncompliance). However, this excise tax is subject to certain limits and other special rules.
•
The excise tax for noncompliance with the rules related to HSA and Archer MSA comparable
employer contributions is generally 35 percent of the aggregate employer contributions made
to all HSAs or Archer MSAs during the applicable calendar year.
How Can the Excise Tax Be Avoided?
The excise tax for violations of any of the group health plan rules other than the comparable
contribution requirements for HSAs and Archer MSAs can be avoided in a variety of
circumstances.
•
First, no excise tax is imposed during the period when the employer did not know, or
exercising reasonable diligence would not have known, a plan failure existed.
•
Second, once the plan failure is discovered, no excise tax will be imposed if the failure was
attributable to reasonable cause and the failure is “corrected.”
For these purposes, “corrected” means fixing the failure retroactively (to the extent possible)
within 30 days of the first date on which the error was known or should have been known, and
placing any affected individual in at least the same financial position as he or she would have
been had the failure not occurred. Also, the IRS may waive all or part of the excise tax if the
amount of tax is deemed excessive relative to the failure involved and the failure was
attributable to reasonable cause and not to willful neglect. In addition, governmental plans,
church plans and certain small plans might be exempt from the excise tax under certain
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