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Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA

79 Pages Posted: 15 Jul 2012 Last revised: 1 Jul 2013

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Michael F. Cannon

Cato Institute

Date Written: July 16, 2012

Abstract

The Patient Protection and Affordable Care Act (PPACA) provides tax credits and subsidies for the purchase of qualifying health insurance plans on state-run insurance exchanges. Contrary to expectations, many states are refusing or otherwise failing to create such exchanges. An Internal Revenue Service (IRS) rule purports to extend these tax credits and subsidies to the purchase of health insurance in federal exchanges created in states without exchanges of their own. This rule lacks statutory authority. The text, structure, and history of the Act show that tax credits and subsidies are not available in federally run exchanges. The IRS rule is contrary to congressional intent and cannot be justified on other legal grounds. Because the granting of tax credits can trigger the imposition of fines on millions of individuals and employers, the IRS rule is likely to be challenged in court.

Keywords: health care, health insurance, Affordable Care Act, health insurance exchanges, tax credits, administrative law, Internal Revenue Service

JEL Classification: K32, K34

Suggested Citation

Adler, Jonathan H. and Cannon, Michael F., Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA (July 16, 2012). Health Matrix: Journal of Law-Medicine, Forthcoming; Case Legal Studies Research Paper No. 2012-27. Available at SSRN: https://ssrn.com/abstract=2106789

Jonathan H. Adler

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-2535 (Phone)
216-368-2086 (Fax)

HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

Michael F. Cannon (Contact Author)

Cato Institute ( email )

1000 Massachusetts Avenue, N.W.
Washington, DC 20001-5403
United States
202-218-4632 (Phone)
202-842-3490 (Fax)

HOME PAGE: http://www.cato.org/people/cannon.html

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