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Review on the Legal Character of Penalty Clause of PPACA in USA - Is it a penalty or tax? -

  • Public Land Law Review
  • Abbr : KPLLR
  • 2014, 64(), pp.277-299
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Kim, Jae Sun 1

1중앙선거관리위원회

Accredited

ABSTRACT

PPACA, which was enacted in 2010, includes 1) individual mandates and 2) penalty clause. The legal character of the “penalty” clause is very unique under the USA constitutional and legal system as it 1) mandates taxpayers to buy private insurers in the market, and 2) they need to pay penalty to the government(IRS). The Supreme court of United States held the clauses as constitutional (although they held unconstitutional for medicare expansion). However, it still has controversies whether they are within the federal congress’s taxing and spending power or how the rules and regulations would actually function in the market across the 50 states. Korea government has been running monopolized insurance system, which provides more universal medical services regardless of the economic inequality. It’s benefits would be clear as it allocates medical costs under the shared responsibility principle. However, as time goes by, it is facing problems of the lack of financial sources and clear rules for the transparent spending of the collected money. Since the penalty clause of PPACA would be dealt as a tax, rather than a penalty, the PPACA and IRS regulations would govern the tax penalty resources. Therefore, looking into this new system and rule would be good references to us.

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