Rodney P. Mock and Jeffrey Tolin, both of California Polytechnic State University, have published an article entitled “Purchase or Else: The Health Insurance ‘Tax’” in Tax Notes. The article examines the nature of the tax or penalty imposed on taxpayers who fail to purchase health care coverage meeting proposed criteria of acceptability.

Both the Senate and House version of health care legislation contain such a provision.

Is the financial extraction a tax or a penalty?   Is a constitutionally legitimate exercise of the federal government’s power?  These issues are given extensive and persuasive analysis in the article.

From the article abstract:

With the Affordable Health Care for America Act, H.R. 3962, 111th Cong. (2009) passed by the U.S. House of Representatives and the U.S. Senate’s version of a health care bill, the Patient Protection and Affordable Health Care Act, H.R. 3590, 111th Cong. (2009) recently passed, this article reviews the particulars of each Act’s respective tax or penalty imposed on individual taxpayers who fail to purchase acceptable health care coverage, and questions whether or not such constitutes a “tax” at all, and if such does, whether or not it is an unconstitutional regulatory tax, indirectly regulating that which Congress cannot under the “Commerce Clause” of the U.S. Constitution; namely, non-participating taxpayers who merely “fail to purchase.”

The article appears in Tax Notes, Vol. 126, No. 224, 2010and may be downloaded from SSRN.

See, Mock , Rodney P. and Tolin, Jeffrey, Purchase or Else: The Health Insurance ‘Tax’ (January 11, 2010). Tax Notes, Vol. 126, No. 224, 2010.