None of this affects the shared-responsibility payment, a penalty triggered by
failure to comply with the minimum coverage provision. Section 5000A is not a penalty
“provided by” chapter 68 of the Revenue Code. Congress placed the penalty in chapter
48 of the Revenue Code, and it did not include a provision treating the penalty as a “tax”
in the title, as it did with penalties provided in chapter 68. Distinct words have distinct
meanings. Congress said one thing in sections 6665(a)(2) and 6671(a), and something
else in section 5000A, and we should respect the difference. That is particularly so
where, as here, Congress had a reason for creating a difference: Unlike the penalties
listed in chapter 68, the shared responsibility payment has nothing to do with tax
enforcement. Cf. Mobile Republican Assembly v. United States, 353 F.3d 1357, 1362
n.5 (11th Cir. 2003) (holding that “tax penalties imposed for substantive violations of
laws not directly related to the tax code” do not implicate the Anti-Injunction Act).
No. 10-2388 Thomas More Law Center, et al. v. Obama, et al. Page 13
Section 5000A(g)(1), it is true, says that “[t]he penalty provided by this section
shall be paid upon notice and demand by the Secretary, and . . . shall be assessed and
collected in the same manner as an assessable penalty under subchapter B of chapter
68.” 26 U.S.C. § 5000A(g)(1) (emphasis added). The assessable penalties under
subchapter B in turn “shall be paid upon notice and demand by the Secretary, and shall
be assessed and collected in the same manner as taxes.” Id. § 6671(a). In the context
of a shared-responsibility payment to the United States for failing to buy medical
insurance, however, the most natural reading of the provision is that the “manner” of
assessment and collection mentioned in sections 5000A(g)(1) and 6671(a) refers to the
mechanisms the Internal Revenue Service employs to enforce penalties, not to the bar
against pre-enforcement challenges to taxes.
