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Draft Instructions for Forms 1094-C and 1095-C Make Accurate Completion of the Forms Imperative for the 2021 Reporting Season

November 17, 2021


The draft instructions for the Forms 1094-C and 1095-C for the 2021 reporting season were released in late September with subtle, but important changes. To an untrained eye, these changes may fly under the radar. However, for the first time since the Affordable Care Act’s (ACA’s) inception, employers who file incorrect or incomplete Forms 1095-C with the IRS may suffer costly penalties. The remainder of this article will explore the changes made in the draft instructions for the Forms 1094-C and 1095-C in 2021.

The 2020 instructions to the Forms 1094-C and 1095-C included language that asserted no penalty would be imposed under IRC sections 6721 or 6722 for incorrect or incomplete Forms 1095-C so long as the employer showed that it made good-faith efforts to comply with the information reporting requirements. Similar language has been included in Notices released by the IRS that correspond to all the ACA reporting seasons to date. However, Notice 2020-76, the Notice that extended the good-faith efforts relief for the 2020 reporting season and was incorporated into the final instructions for the Forms 1094-C and 1095-C in 2020, stated that the good-faith efforts relief would not continue for tax reporting seasons past 2020.

As a result of the good-faith efforts relief no longer applying, if an employer submits a Form 1095-C to the IRS or furnishes a Form 1095-C to an employee that is incorrect or incomplete, the employer could be penalized $280 per return. It should be noted that this penalty would apply twice to the same Form 1095-C, once for the Form 1095-C that is furnished to the employee and once for the Form 1095-C that is submitted to the IRS for a total of $560.

The chart below details the cost an employer could incur depending on the percentage of its Forms 1095-C that are filed incorrectly or incompletely. While the chart only discusses the penalty under IRC section 6721, if the IRS were to aggressively penalize an employer, the penalty could be doubled by the IRS by utilizing the penalty under IRC section 6722. The column labeled “# of Forms 1095-C” states the number of Forms 1095-C filed by the employer. The columns labeled with a “x%” state the presumed number of Forms 1095-C that are hypothetically filed incorrectly or incompletely. The dollar figure in the chart states the hypothetical penalty.

# of Forms 1095-C 1% 3% 5% 10% 15% 20% 25%
100 $280 $840 $1,400 $2,800 $4,200 $5,600 $7,000
1,000 $2,800 $8,400 $14,000 $28,000 $42,000 $56,000 $70,000
2,500 $7,000 $21,000 $35,000 $70,000 $105,000 $140,000 $175,000
5,000 $14,000 $42,000 $70,000 $140,000 $210,000 $280,000 $350,000
10,000 $28,000 $84,000 $140,000 $280,000 $420,000 $560,000 $700,000
25,000 $70,000 $210,000 $350,000 $700,000 $1,050,000 $1,400,000 $1,750,000
50,000 $140,000 $420,000 $700,000 $1,400,000 $2,100,000 $2,800,000 $3,500,000

As the chart above displays, an employer who submits 1,000 Forms 1095-C to the IRS with 10 percent of the Forms 1095-C being incorrect could be subject to a penalty of $28,000 under IRC section 6721. Additionally, that employer could be subject to a separate $28,000 penalty for furnishing incorrect Forms 1095-C to employees under IRC section 6722. Many employers and service providers in the ACA space have submitted Forms 1095-C to the IRS that have a much higher error rate than 10 percent in previous years. Consequently, it is easy to envision staggering penalties under IRC sections 6721 and 6722 if the IRS stringently enforces these penalties. As a result, employers must be confident that the information reported to the IRS on the Forms 1094-C and 1095-C is complete, meticulous and error free in order to avoid IRS penalties.

Accord Systems prides itself on accurate reporting since we began reporting information to the IRS on behalf of our clients during the first year of ACA reporting. Accord Systems created proprietary software to assure its clients reported accurate codes on line 14 and 16 of the Forms 1095-C. Our proprietary software generates a report for all our clients prior to submitting the Forms 1095-C to the IRS. The report generates and organizes all of the potential code combinations that may give rise to a penalty under IRC section 4980H as well as any code combinations that are not allowed by the instructions of the Forms 1094-C and 1095-C which could lead to a penalty under IRC sections 6721 and 6722. This allows Accord Systems’ clients to be proactive and correct potential errors before filing with the IRS. In 2016 Accord Systems enhanced its proprietary software to examine three month increments to flag impossible or odd coding scenarios. Again, this allows our clients to proactively correct problems prior to filing the Forms 1094-C and 1095-C with the IRS.

To date, Accord Systems proprietary software has provided tremendous value to its clients. Accord Systems has not had a single client receive a penalty related to IRC sections 6721, 6722 or 4980H. This is not only a testament to our clients' compliance efforts but also Accord Systems being able to easily review potential problematic line 14 and 16 code combinations before submitting the Forms 1094-C and 1095-C to the IRS. All employers need this type of software to prevent massive penalties being assessed under IRC sections 6721 and 6722 moving forward.

Additionally, for the first time in ACA reporting history the IRS appears set on keeping the deadline of January 31, 2022 to furnish the Forms 1095-C to employees. The 2021 draft instructions provide guidance on how an employer can request a 30 day extension. This extension is not automatically granted and therefore should not be relied upon by employers.

Two other small changes were made in the draft instructions to the Forms 1094-C and 1095-C. First, the maximum penalty under IRC sections 6721 and 6722 increased from $3,392,000 in 2020 to $3,426,000 in 2021. Second, two new codes were added for individual coverage health reimbursement arrangements (ICHRAs). Each new code involves employers who offered ICHRAs to the employee and the employee's spouse.

  • Code 1T – Individual coverage HRA offered to employee and spouse (no dependents) with affordability determined using employee’s primary residence location ZIP code.

  • Code 1U – Individual Coverage HRA offered to employee and spouse (not dependents) using employee’s primary employment site ZIP code affordability safe harbor.

Since both new codes deal with ICHRAs and both should never be used, as the new codes do not offer coverage to dependent children, these new codes will have little impact on employers. Any employer who is using an ICHRA as part of their ACA strategy should be utilizing codes 1M, 1N, 1P, or 1Q depending on who in the employee’s family is eligible to utilize the ICHRA.

We anticipate the final instructions will be released any week with minimal, if any, changes compared to the draft instructions. While it is still possible the IRS may release a Notice extending the good-faith efforts relief to 2021 reporting and extend the due date to furnish the Forms 1095-C to full-time employees, employers should not rely on such a Notice this year. As a result, it is essential that employers make sure that every line 14 and 16 code combination submitted to the IRS is error free. Accord Systems has proprietary software that will automatically audit every single line 14 and 16 code combination. Employers who submit incorrect or incomplete Forms 1095-C to the IRS could receive a $280 penalty per Form. This penalty can accrue to a large amount quickly with sloppy reporting. If you would like to learn more about our services, including our licensing agreement, or you have any questions regarding ACA reporting, please contact us.


About the author – Ryan Moulder serves as General Counsel at Accord Systems, LLC and is a Partner at Health Care Attorneys P.C. Ryan received his LL.M. from Georgetown University Law Center and his J.D. from Saint Louis University School of Law. He has distinguished himself as a leader in the Affordable Care Act arena and has written and spoken on a variety of ACA topics as it relates to compliance for companies.


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