August 22 update. Taxpayers who do not have minimum essential coverage (through an employer, a government program, or individual insurance) or qualify for an exemption must pay an individual responsibility tax. The tax is calculated on a monthly basis and is the greater of either a fixed dollar amount or 2.5 percent of household income above the tax filing limit, up to the the national average premium for a bronze (60 percent actuarial value) health plan.

The IRS has announced that for the 2017 tax filing season the average bronze plan premium used for calculating the maximum penalty will be $272 for each member of a tax household up to $1,360 for five or more members. (Note: This update has been revised to correct the filing season and maximum individual penalty referred to in the second paragraph.)

Original Post. There has been considerable speculation since President Trump’s Inauguration Day Affordable Care Act Executive Order as to whether the Internal Revenue Service is in fact enforcing the individual and employer mandates. The IRS website has insisted that the mandates are still in force, despite the Executive Order and despite the fact that the IRS decided not to implement for 2016 tax filings a program rejecting “silent returns” that did not indicate compliance with individual mandate requirements.

There is evidence, however, that many taxpayers do not believe it. An April report from the Treasury Inspector General for Taxpayer Services found that as of March 31, a third fewer taxpayers were paying the penalty than had been the case a year earlier. More importantly, insurers seem to believe that the IRS is not enforcing the mandate, or at least that taxpayers do not believe the IRS is enforcing the mandate, and are raising their rates for 2018 to account for the deteriorating of the risk pool that nonenforcement of the mandate will cause.

It is of note, therefore, that Robert Sheen at the ACA Times has identified several letters from the IRS reaffirming that it is still in fact enforcing the individual, and employer, mandates.

One is a letter reportedly sent in April by the IRS General Counsel to Congressman Bill Huizenga (R-MI) in response to an inquiry as to whether the IRS could waive the employer mandate with respect to a particular employer. The IRS replied that there was no provision in the ACA for waiver of the mandate penalty when it applied and that: “The Executive Order does not change the law; the legislative provisions of the ACA are still in force until changed by the Congress, and taxpayers remain required to follow the law and pay what they may owe.”

In a second letter in June, responding to an individual who had written to President Trump, the IRS similarly responded:

The Executive Order does not change the law; the legislative provisions of the ACA are still in force until changed by the Congress, and taxpayers remain required to follow the law, including the requirement to have minimum essential coverage for each month, qualify for a coverage exemption for the month, or make a shared responsibility payment.

Of course, whether taxpayers believe it, and whether insurers believe taxpayers believe it, is another question.