Senator objects to Congress' classification as a large employer for tax forms and a small one for Obamacare purposes.

Senator objects to Congress' classification as a large employer for tax forms and a small one for Obamacare purposes. mayamaya /

Oops. Did the IRS Send Capitol Hill Staff the Wrong Tax Form?

Senator Vitter sends commissioner complaint as part of challenge to OPM Obamacare rule.

Like millions of other taxpayers, congressional staff this tax filing season received a form designed to allow them to prove they are enrolled in a health plan under the 2010 Affordable Care Act.

Problem is, as noted by Sen. David Vitter, R-La., that form -- 1095-C -- is addressed to those working for an “applicable large employer.” Hill staff as of 2013 were deemed to work for a small employer under a controversial ruling by the Office of Personnel Management that Vitter has persistently sought to overturn.

On Wednesday, Vitter wrote a letter of inquiry to Internal Revenue Commissioner John Koskinen, on the same day that the Senate Homeland Security and Governmental Affairs Committee reported out the nomination of Beth Cobert to move from acting status to be permanent director at OPM.

Vitter, upset that OPM allowed Congress’ staff to be spared “the burden” of Obamacare, earlier suggested that he might seek to block Cobert’s confirmation if the personnel office doesn’t produce internal documents related to discussions that led to a decision to enroll congressional staff in the small-business division of the District of Columbia health insurance exchange.

In his letter to the IRS, Vitter said, “It has now come to my attention that, in order to comply with the Internal Revenue Code, Sections 6065 and 6056, the Senate Disbursing Office has provided IRS Form 1095C to congressional staff members on the payroll during 2015.” Those sections require employers with 50 or more employees to report their health insurance status to the IRS, and the Affordable Care Act defines a large employer as those with at least 50 full-time employees.

Yet “Congress has been registered as small employer, creating a conflict that is a cause of great concern,” Vitter said. “It is utterly absurd that Congress is to trying to be both.”

The senator asked Koskinen to respond immediately to two questions:

  • Can you confirm that the United States Congress, including the Senate and the House of Representatives, is a large employer?; and,
  • Has a violation of the Internal Revenue Code occurred if Congress has declared to the IRS they are a large employer but to the District of Columbia government they are a small employer?”

Vitter sent copies to the OPM director, the D.C. Health Benefit Exchange Authority, the House Chief Administrative Officer and the financial clerk of Senate Disbursing Office.

The IRS, in a Thursday statement to Government Executive, said, “We have received the congressional letter, we are reviewing it and will respond."

A Vitter spokesman told Government Executive that the senator may still seek to place a hold and block the Cobert nomination, depending on whether OPM responds to his information request. The nomination is likely to go to the floor as a unanimous consent vote, which could take place this week or the week after the President's Day recess.

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