phila hfma may 26 2011 s mariani

WithumSmith+Brown, PC ▪ BE IN A POSITION OF STRENGTH1

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BY SCOTT J. MARIANI, JD ,PARTNER PRACTICE LEADER, HEALTHCARE SERVICES GROUP MAY 26, 2011

A CLOSER LOOKHealthcare Tax Update


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Extension of President Bush Tax Cuts

Part I


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EXPIRING FEDERAL TAX PROVISIONS EFFECTIVE DECEMBER 31, 2010 – EXTENDED TO 2013

Individual Income Tax Rates

• Starting in 2013, the marginal Federal Individual Income tax rates for the top two brackets rise from 33% and 35% back to the year 2000 levels of 36% and 39.6%; respectively.


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Dividend Tax Rate

• Starting in 2013 qualified dividends are no longer taxed at a rate of 15% and return to being taxed as ordinary income.


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Capital Gains Tax Rate

• Starting in 2013 long term capital gains tax rate increases from 15% to 20%.


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Child Tax Credit

• Starting in 2013 the child tax credit for eligible households returns to $500 per child from $1,000.


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Dependent Care Tax Credit

• Starting in 2013 the dollar amount limit for creditable expenses is reduced from $3,000 to $2,400 ($6,000 to $4,800 for 2 or more children), thus reducing the credit.


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EXPIRING FEDERAL TAX PROVISIONS EFFECTIVE DECEMBER 31, 2010 – EXTENDED TO 2013 Effective December 31, 2012 there are 64

additional Federal tax provisions due to expire.

Stay tuned, Presidential election in November, 2012.


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YEAR 2013 TAX INCREASE EXAMPLE

Married filing joint $500K ordinary wages, $100K dividends from US Corporation and $100K of stock capital gains.

Ordinary wages – 35% to 36/39.6% Dividend income - marginal rate - 15% to

39.6% LT Capital Gains 15% to 20% FIT approximately $175K to $221K


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Form 990, Return Of An Organization Exempt From Income Tax

Part II


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FORM 990-EZ – TRANSITIONAL RELIEF

May file 990-EZ for: If gross receipts are: And if assets are:

2008 Form (generally filed in 2009)

<$1,000,000 <$2,500,000

2009 Form (generally filed in 2010

<$500,000 <$1,250,000

2010 and later Forms <$200,000 <$500,000


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2010 FORM 990, PART XI

Reconciliation of Net Assets


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2010 FORM 990, SCHEDULES

New narrative parts have been added to Schedules E, G, K, L and R. No longer utilize Schedule O for these schedules.


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FORM 990

Who’s looking at your Form 990 and why? IRS State taxing authority Employees – current & former Newspapers Competitors Unions The General Public; including donors www.guidestar.org


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JEOPARDY! NFP ORGANIZATIONS

Base compensation: $1,423,685

Bonus and incentive compensation: $3,514,305

Other compensation: $ 171,175

Total Form W-2 Box 5, Medicare wages: $5,109,165


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Deferred compensation: $94,844

Nontaxable benefits: $21,339

Total Compensation: $5,225,348


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Perquisites First class or charter travel Travel for companions Health or social club dues or initiation fees Personal services

Who is the commissioner of the PGA Tour?

Source 2009 Form 990 PGA Tour, Inc.; GuideStar


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Other compensation: $309,000



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Deferred compensation: $0




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Perquisites

First class or charter travel Travel for companions Tax indemnification and gross-up payments Housing allowance or residence for personal

use

Who is the commissioner of the NFL?

Source 2009 Form 990 NFL Management Council; GuideStar


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Other compensation: $312,102



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Deferred compensation: $0




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Perquisites

First class or charter travel Highest paid I/C for services Steve A. Fehr, Legal Counsel, $606,351

Who is the head of the MLB player’s union?Source 2009 Form 990 Major League Baseball

Players Association; GuideStar


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COMPENSATION AND FORM 990

“It is very important to reconcile from total gross compensation to Form W-2, Box 5, Medicare wages.”


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STATEMENT OF FACT

"The IRS EO division will never stop looking at NFP executive compensation and benefits."


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SCHEDULE H, PART I, COMMUNITY BENEFIT

Community Benefit1. AHA versus CHA model (excludes bad

debt at cost and Medicare shortfall)2. Schedule H, Part III reports bad debt and

Medicare shortfall. Also asks for why you feel bad debt and Medicare shortfall should be treated as community benefit.

3. Costs not charges4. Senate Finance Committee – 5% Test


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5. Categories of Community Benefita. Charity care and Medicaid shortfallb. Community Health Programs and

Servicesc. Health Professions Educationd. Subsidized Health Servicese. Researchf. Cash and in-kind contributions


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1. What are we seeing?

a. Charity care, Medicaid short fall and medical residency programs are “big drivers”.

b.CB percentages ranging from 2% - 15.2%.

c. Majority in the 6 – 9% range


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2009 FORM 990, SCHEDULE H - REGIONAL INFO

AtlantiCare Regional Medical Center Net community benefit costs: $48,199,394 Community benefit percentage: 8.95%


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Capital Health System Net community benefit costs: $27,984,615 Community benefit percentage: 6.25%


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Cooper Health System Net community benefit costs: $66,199,022 Community benefit percentage: 9.36%


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Kennedy University Hospital Net community benefit costs: $28,198,629 Community benefit percentage: 6.4%


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South Jersey Health System Net community benefit costs: $39,088,468 Community benefit percentage: 11.98%


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Virtua West Jersey Hospital - Camden Net community benefit costs: $53,219,949 Community benefit percentage: 9.43%


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Virtua Memorial Hospital Net community benefit costs: $22,964,428 Community benefit percentage: 8.15%


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2009 FORM 990, SCHEDULE H – NATIONAL INFO

Robert Wood Johnson University Hospital, New Jersey

Net community benefit costs: $57,429,074 Community benefit percentage: 8.57% Revenue less expenses: $32,800,937


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The New York and Presbyterian Hospital, New York



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North Shore University Hospital - Manhasset, New York



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The Cleveland Clinic Foundation, Ohio Net community benefit costs: $486,070,980 Community benefit percentage: 14.45% Revenue less expenses: $274,420,332


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Mayo Clinic, Minnesota Net community benefit costs: $761,338,867 Community benefit percentage: 29.23% Revenue less expenses: ($25,984,493)


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2009 FORM 990, SCHEDULE H - OBSERVATION

"Not all institutions are applying the current rules uniformly. There are many gray areas and not bright line criteria for inclusions and exclusions."


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2009 FORM 990, SCHEDULE H - CONSIDERATION

Mandatory review by IRS of every hospital's schedule H once every three years. What do your schedule H workpapers look like?

IRS – Will not take exam form.


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HOSPITAL – TAX EXEMPTION

Community Benefit Standard, Rev. Rul.69-545

Charity Care Standard, Rev.Rul.56-185


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GROUP EXEMPTION RULINGS

The IRS does not like them.

Original draft of new Form 990 prohibited them.

IRS review and approval time is extremely slow, approximately 12-14 months.

Results in 2 separate Forms 990.


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Entities must give up their own separate tax-exempt status and IRS determination letter; may have to re-apply for tax-exempt status if the organization wants to file its own separate Form 990 again prospectively.


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Part VII of core Form 990 BOT's gets very long and redundant, utilize schedule O.

Combined Schedule H, including community benefit percentage, except for Part V.


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Reduction in disclosure of Top 5 highest paid employees after your officers and key employees.

New entities do not need to file a Form 1023, Application for Tax-Exemption.

Annual group exemption letter update to IRS 90 days prior to end of year.


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Patient Protection and Affordable Care Act (PPACA) March 2010

Part II


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HOSPITAL REQUIREMENTS - PPACA

New IRC Section 501(r) as part of the PPACA.

Four new hospital requirements.

Effective date, tax years beginning after March 23, 2010 (July 1, 2010 through June 30, 2011).


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IRS guidance still forthcoming.

“2010 Schedule H too burdensome,” April 20, 2011 AHA, HFMA, and VHA letter to the IRS.

Exception: mandatory CHNA (July 1, 2012 through June 30, 2013).


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Facility by facility basis, multiple hospitals, one Federal tax id #.

Attach your audited financial statements to your hospital Form 990.

Mandatory review by the IRS of every Schedule H once every 3 years.


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1. COMMUNITY HEALTH-NEEDS ASSESSMENT

Each hospital must have conducted either a community health-needs assessment (“CHNA”) in the taxable year or in either of the two taxable years immediately preceding the taxable year.

Applicable to 6/30/2013 Forms 990.


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1. COMMUNITY HEALTH-NEEDS ASSESSMENT Each hospital • adopt an implementation strategy for meeting the community health needs identified in the assessment; • the CHNA must take into account input from a broad cross section of the community served by the hospital, including those with special knowledge of or expertise in public health; and • the CHNA must be made available to the general public.


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2. FINANCIAL ASSISTANCE POLICY (“FAP”)

Each hospital must adopt and make widely available a written FAP:• First:

► Eligibility criteria for financial assistance and whether such assistance includes free or discounted care;

► The basis for calculating amounts charged to patients;

► The method for applying for financial assistance; and


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► For hospitals that do not have a separate billing and collections policy, a statement of the collection-related actions the hospital may take in connection with non-payment;

► How the hospital will widely publicize the policy within the community it serves.


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• Second:► Each hospital must commit to provide

non-discriminatory emergency care, regardless of whether the individual is eligible for financial assistance under the hospital’s FAP.


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3. LIMITATION ON PATIENT CHARGES

Each hospital must limit the charges for emergency or other medically necessary care provided to patients eligible for financial assistance under its FAP to not more than the lowest amounts charged to patients who currently have insurance covering such care.

Each hospital is also prohibited from using gross charges.


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4. LIMITATION ON COLLECTION EFFORTS

A hospital may not carry out “extraordinary collection actions” until it has made “reasonable efforts” to determine whether a patient is eligible for assistance under the hospital’s FAP.


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4. LIMITATION ON COLLECTION EFFORTS

The definition of “reasonable efforts” is to be determined by subsequent regulation, although presumably the latter would include notification to patients of the written financial policy upon admission, in the bill, and by subsequent telephone calls.


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SCHEDULE H, PART V, FACILITY INFORMATION

Section A, Hospital Facilities, by total revenue

Section B, Facility Policies and Practices (for each facility listed in Part V, Section A)

1.Community health needs assessment, questions 1-7

2.Financial assistance policy, questions 8-13


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SCHEDULE H, PART V, FACILITY INFORMATION

Section B (continued)3. Billing and collections, questions 14-17

4. Emergency medical care, question 18

5. Charges for medical care policy, questions 19-21

Section C, Non-hospital facilities, by total revenue


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MAJOR TAX PROVISIONS - 2012

Certain businesses must begin reporting the value of health care benefits on employees’ Form W-2 statements.

New Form 1099 tax information reporting is required for businesses making in excess of $600 over the course of a calendar year to corporations. Repealed April 2011.


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2012 FORM W-2 HEALTH CARE REPORTING

IRS provides interim guidance - April 2011New reporting has no tax ramifications.

"To provide useful and comparable consumer information to employees."


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Aggregate cost of employer sponsored health care coverage.

Aggregate cost exclusions.

ER sponsored health care coverage exclusions.


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Relief for small employers (less than 250 Forms W-2 in the prior year)

Terminated employees


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A new 0.9% surtax will be added to the 1.45% Hospital Insurance (Medicare) payroll taxes paid by individuals earning more than $200,000 per year ($250,000 for joint filers). Subject to payroll withholding.

New IRS Code Section 1411 imposes a 3.8% tax on unearned income of individuals earning more than $200,000 per year ($250,000 for joint filers).

Contributions to health care FSA’s limited to $2,500 as of 1/1/2013.


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U.S. citizens and legal residents are required to maintain “minimum essential coverage”.

Penalty is the greater of $95 or 1% of the taxpayer’s income over the threshold amount of income required for income tax return filing.

2015 - $325 or 2%

2016 - $695 or 2.5%


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A 40% excise tax on high-cost health insurance plans goes into effect. The tax, paid by insurers or self-insured firms, is on the amount in excess of $10,200 for individuals and $27,500 for families.

Health cost adjustment percentage – between 2010 and 2018.

Excise tax is not tax deductible. Excise tax passed to the consumers.


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IRS Employment Tax Initiative

Part IV


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IRS EMPLOYMENT TAX INITIATIVE

Announced in 2009

6,000 U.S. taxpayers over 3 years

Originally 10-15% NFP organizations

Revised to 25% NFP organizations

Started in March 2010


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EMPLOYMENT TAX ISSUES

Form W-2 and Form 1099 to the same individual

Worker misclassification

Improper treatment of fringe benefits

Review of travel/entertainment expenses – corporate credit cards

FICA exempt individuals

Back-up withholding tax; no Forms 1099/W-9


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EMPLOYMENT TAX ISSUES

Excess Benefit Transactions:1. IRC Section 4958 – Intermediate Sanctions

a. Enacted in 1996, TBOR-2b. Alternative to revocation of tax-exempt

status2. Applies to certain transactions between

IRC 501(c)(3) and IRC Section 501(c)(4) organizations and a “disqualified person.”

3. Generally, a non-FMV transaction.


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IRS EMPLOYMENT TAX INITIATIVE – ACTION STEPS

1. Perform a self-assessment

2. Consider voluntary compliance filing with the IRS

3. Be proactive as part of your organization’s overall tax compliance program


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SELF-ASSESSMENT; EMPLOYMENT TAXES

1. A review of all senior management fringe benefits for imputation on Form W-2; including a review of the company corporate credit card, meals and entertainment and back-up documentation.

2. A comparison of all employee social security numbers to the accounts payable paid file and Forms 1099 issued.


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3. A review of all individuals who were paid as an independent contractor for proper worker classification determination between employee or independent contractor.

4. A written policy and procedure should be prepared with respect to worker determination between employee or independent contractor.

5. A review to ensure that a completed Form W-9 is on file for all vendors and independent contractors.


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6. A review of all “non-1099 required” vendors to determine if a Form 1099 should have been issued under current IRS rules and regulations.

7. A written accounts payable policy should be prepared applicable to all vendors, including obtaining a completed Form W-9 and determining whether or not a Form 1099 is required prior to processing payment.


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Accountable Care Organizations

Part V


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ACCOUNTABLE CARE ORGANIZATIONS ("ACO'S")

IRS Notice 2011-20 issued March 31, 2011

Soliciting comments until May 31, 2011

Private inurement and private benefit

Unrelated business income ("UBI")


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ACCOUNTABLE CARE ORGANIZATIONS ("ACO'S")

Whether IRC Section 501(c)(3) hospitals and other tax-exempt healthcare organizations participating in the Medicare Shared Savings Program (“MSSP”) through an ACO may be impacted by current limitations placed on such organizations under the IRS. Case-by-case basis, based on all the facts and circumstances.


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PARTICIPATION IN AN ACO

A tax-exempt hospital's participation in an ACO may include:

1. membership in a nonprofit corporation;2. ownership of shares in a corporation; 3. ownership of an interest in a partnership or

an LLC; and 4. contractual arrangements with the ACO

and/or its other participants.


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CMS REGULATION AND OVERSIGHT

A tax-exempt hospital's participation in an ACO will not result in private inurement or private benefit if the following factors are met:

1. The terms of the tax-exempt hospital's participation in the MSSP through the ACO (including its share of MSSP payments or losses and expenses) are set forth in advance in a written agreement negotiated at arm's length.

2. CMS has accepted the ACO into and has not terminated the ACO from the MSSP.


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3. The tax-exempt hospital's share of economic benefits derived from the ACO (including its share of MSSP payments) is proportional to the benefits or contributions the hospital provides to the ACO.

4. The ownership interest received by the tax-exempt hospital, if any, is proportional and equal in value to its capital contributions to the ACO. All ACO returns of capital, allocations, and distributions are made in proportion to such ownership interest.


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5. The tax-exempt hospital's share of the ACO's losses (including its share of MSSP losses) does not exceed the share of ACO economic benefits to which the hospital is entitled.

6. All contracts and transactions entered into by the tax-exempt hospital with the ACO and the ACO's participants, and by the ACO with the ACO's participants and any other parties, are at fair market value.


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UNRELATED BUSINESS INCOME TAX

Whether the participation of a tax-exempt hospital in an ACO and its share of the activities generating the MSSP payments are substantially related to the performance of the tax-exempt hospital's charitable purposes?


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UNRELATED BUSINESS INCOME TAX

IRS, absent any private inurement or private benefit, and as long as the ACO meets all of the eligibility requirements established by CMS for participation in the MSSP, it expects that any MSSP payments received by the tax-exempt hospital from an ACO would derive from activities that are substantially related to the performance of the charitable purpose of "lessening the burdens of government."


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NON-MSSP ACTIVITIES OF THE ACO

ACO conducts activities outside of MSSP (such as entering into and operating under shared savings arrangements with other types of health insurance payors).

Unlikely lessens the burdens of government.


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IRS views any negotiation with private health insurers on behalf of unrelated parties as generally not a charitable activity, regardless of whether such an agreement involves a program aimed at achieving cost savings in healthcare delivery.


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Certain non-MSSP activities may further or be substantially related to an exempt purpose of the tax-exempt hospital. An example would be an ACO participating in shared savings arrangements with Medicaid, which may further the charitable purpose of relieving the poor or underprivileged.


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Nonprofit Health Insurance Insurers

Part VI


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NONPROFIT HEALTH INSURANCE INSURERS

PPACA requires DHHS to establish a Consumer Operated and Oriented Plan ("CO-OP") program to foster the creation of qualified non profit health insurance issuers to offer qualified health plans in individual and small group markets. The CO-OP program is intended to make grants or loans to qualified nonprofit health insurance issuers.


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NONPROFIT HEALTH INSURANCE INSURERS New IRC Section 501(c)(29) as part of the

PPACA

IRS Notice 2011-23 issued March 11, 2011

Soliciting comments until May 27, 2011


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WHAT IS A NONPROFIT HEALTH INSURANCE ISSUER? An organization: That is organized as a nonprofit, member

corporation under state law. Which substantially all of the activities of

which consist of the issuance of qualified health plans in the individual and small group markets in each state in which it is licensed to issue such plans; and

That meets various additional requirements as follows.


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QUALIFICATION CONDITIONS

The organization must have received a grant or loan under the CO-OP program and be in compliance with the requirements of PPACA §1322 and the terms of its loan or grant under the CO-OP program.

The organization must have given notice to the secretary of the Treasury in the manner prescribed by (not yet issued) regulations that it is applying for recognition of its exempt status as an organization described in IRC Section 501(c)(29);


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No part of the organization's net earnings can inure to the benefit of any private shareholder or individual , except as provided in narrow exceptions listed in PPACA § 1322 (c)(4) (which requires the issuer’s profits to be used to lower premiums, improve benefits, or for other programs intended to improve the quality of health care delivered to the organization’s members).


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No substantial part of the organization's activities can consist of attempting to influence legislation, and the organization cannot participate in, or intervene in, any political campaign.


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Qualified nonprofit health insurance issuers will be required to file an annual information return and provide certain specified information, including the amount of reserves required by each state in which the organization is licensed to issue qualified health plans and the amount of reserves on hand.


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NONPROFIT HEALTH INSURANCE INSURERS May apply to IRS for tax-exempt status Failure to apply or if tax-exempt status is

revoked may result in taxation as an insurance company

The IRS is currently not accepting applications for recognition as a tax-exempt organization, Form 1023

Traditional IRC section 501(c)(3) principles apply


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Foreign reporting Form 90-22.1, Report of Foreign Bank and Financial Accounts

Part VII


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WHO MUST FILE

A U.S. person must file a FBAR if that person has a financial interest in, signature authority or other authority over any financial account in a foreign country and the aggregate value of these account(s) exceeds $10,000 at any time during the calendar year.


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FINANCIAL INTEREST DEFINED

Financial interest includes accounts for which the U.S. person is the owner of record or has legal title, whether the account is maintained on his or her own benefit or for the benefit of others including non-United States persons.


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FINANCIAL INTEREST DEFINED

Financial interest also includes accounts where the owner of record or holder of legal title is a person acting as an agent, nominee, or in some other capacity on behalf of a U.S. person.

Financial interest in an account also includes a corporation in which a U.S. person directly or indirectly owns more than 50 percent of the total value of the shares of stock.


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SIGNATURE AUTHORITY DEFINED

A U.S. person has account authority over an account if that person can control the disposition of money or other property in the account by delivery of a document containing his/her signature to the bank or other person with whom the account is maintained.


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TYPICAL FORM 90-22.1 FILERS

The owner of the foreign captive (e.g. hospital)

Certain officers of the owner (e.g. hospital CEO and CFO)


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OTHER CONSIDERATIONS

The owner of the captive may have other filing requirements, Forms 5471 and 926

Form 990, schedule F, Statement of Activities Outside the U.S.

Form 990, schedule R, Related Organizations Primary activity: Financial vehicle, not

insurance Individuals who file Form 90-22.1 also must

disclose on their Form 1040, schedule B


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DUE DATE AND RECORDKEEPING

Filed with U.S. Treasury on or before June 30th. FBAR records should be maintained 5 years from June 30th.


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Other IRS EO Issues

Part VIII


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OTHER IRS EO ISSUES

Proposed regulations - disclosure to State officials regarding tax-exempt organizations.

990-N e-postcard and automatic revocation.

Elimination of advanced ruling process for 501(c)(3) public charities.

Draft executive order could expand donor disclosures.

Cell phone legislation.


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OTHER IRS EO ISSUES

2011 EO Work Plan:

Executive Compensation.

Supporting Organizations.

Medical resident FICA.

Gaming Non-Filer Project.


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OTHER IRS EO ISSUES

2011 EO Work Plan (continued):

Governance Check Sheet, Form 14114.

Controlling Organizations.

Charitable Spending.

Colleges and Universities.


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THANK YOU!

Scott J. Mariani, JD, PartnerWithumSmith+Brown, PC465 South StreetSuite 200Morristown, NJ [email protected]

mailto:[email protected]