Ever since the Treasury Department in early 2014 issued final regulations on the employer shared responsibility tax (ESR tax)1 and the related final reporting regulations (ESR regulations)2 under the Patient Protection and Affordable Care Act (ACA), practitioners have spent a large amount of energy focusing on the complex details (the trees) of the tax and regulations. However, to glean the significant aspects and the planning opportunities they offer, it’s necessary to focus on the big picture (the forest), including an analysis of (1) where the regulatory forest ends and (2) what the regulations don’t say or require.

Many practitioners have assumed that these rules define who is eligible for the ESR tax. In reality, the rules define when the ESR tax can be assessed on an employer and on which employees. While the ESR regulations can be used as eligibility rules, nothing requires that they define eligibility.

Originally published in Bloomberg BNA's Pension & Benefits Daily, 77 PBD, 04/22/2015.