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National accounting firm Withum shares some recent developments from the IRS with respect to the ERC and one PPP development.

IRS Issues Notice 2021-20:

On the evening of March 1, the IRS released 102 pages worth of guidance surrounding the 2020 ERC program. While much of the notice was regurgitating the FAQs already on its website, they did provide some notable clarifications:

• Self-employed individuals are not entitled to ERC with respect to their own wages, but can claim the credit for their employees’ wages.
• Entities subject to aggregation are treated as one employer to determine the following: (i) full or partial shutdown rule, (ii) gross receipts test, (iii) 2019 FTE calculation, and (iv) determining maximum credit per employee.
• Rules surrounding full or partial suspension of activities were greatly expanded, installing a definition of ‘nominal’ for businesses who have part of their business shut down while others are able to continue to operate. These rules are fairly facts and circumstances based, so we recommend you reach out to your advisor to discuss on a more detailed level. 
• Interplay of PPP is discussed with 7 examples provided – in general, the notice reaffirms the flexibility of wages to be allocated in advantageous manner between programs. It further clarifies that borrowers who have already submitted their loan forgiveness application can re-allocate wages to the ERC, provided those wages were not needed to obtain forgiveness within the context of the PPP forgiveness application was filed – any excess wages can be re-allocated as necessary.
• IRS confirmed that when claiming the 2020 credit, separate 941-Xs should be filed for each quarter. 

Taxation of the ERC:

We have received many questions around this, so we thought it appropriate to include a point of emphasis. Unfortunately, the ERC carries with it a disallowance of otherwise deductible costs in the amount of the credit. Because the amount of the credit will reduce otherwise deductible expenses, this means that taxable income for recipients will increase. Generally, this taxable income increase would occur in the year to which the credit relates. This is an important note, as companies applying now for the 2020 credit will have to adjust their 2020 taxable income and 2020 tax returns. This treatment seems particularly inequitable, especially because the actual credit amount for borrowers not receiving the amounts is not likely to be received until well after the tax deadline. We are working on a more detailed discussion of this issue, which will be posted in our resource center in short order. 

Federal Reserve Board Extends PPP Facility to June 30, 2021:

We also have one piece of news regarding the PPP to share. The Federal Reserve Board announced yesterday that it will extend the expiration date of the PPP servicing from March 31, 2021 to June 30, 2021. It is unclear whether this will also be followed by Congress and/or the SBA. The deadline of March 31, 2021 was set by the CAA, which would need to be updated in order to allow applications to be approved after March 31, 2021. If extended to June 30, 2021, this would provide businesses, including those with more than 20 employees who have not been able to apply for the PPP over the last two weeks, some comfort that they will not be up against a March 31 deadline to be approved. In theory, an extension also would provide the ability of a borrower who received PPP1 funding during 2021 to use the funds within the rules of the program and then apply for PPP2 funding prior to the cutoff date of June 30, 2021.  

These last two weeks have been busy from the IRS and SBA – with Congress in the final phases of stimulus package negotiations, we are sure to have further updates for you in the coming week. As always, we welcome you to follow along our Stimulus Package Headquarters resource center, where we will continue to publish information as notable guidance becomes available. If you have questions on the above information, please reach out to your Withum advisor.

National accounting firm Withum shares information about the Small Business Administration’s (SBA) new Interim Final Rule and updated FAQs.

SBA Issues a New Interim Final Rule (“IFR”):

Much-awaited guidance on the changes to the calculation for sole proprietors and independent contractors has been released. Would-be borrowers that fall into these two categories will now be able to utilize either their net income or their gross receipts as their portion of ‘payroll costs’ with respect to calculating the loan amount . While the overall $100,000 limitation still remains, the change benefits any sole proprietor or independent contractor who has less than $100,000 of net income reported on their schedule C, but higher gross receipts. A borrower who has payroll costs paid to employees must reduce their overall gross receipts for these payroll costs in order to avoid double dipping. 

An important (and sure to be controversial) point made in the IFR is that the SBA is implementing the change on a prospective basis, and will not allow borrowers who already have an approved loan to increase their loan amount. Finally, the SBA indicated that any borrower who utilizes the gross receipts metric to calculate their loan amount, and receives in excess of $150,000 in loan (presumably combined with employees), will not be covered by the safe harbor that presumes their loan necessity certification was made in good faith. 

The SBA has also released updated borrower loan application forms to account for these changes, which can be found here. 

SBA Issues Updated FAQs: 

Concurrent with the above IFR, the SBA released updated FAQs which now reflect the changes in FAQs as a result of the Consolidated Appropriations Act in December 22. The FAQs are 65 strong – some highlights are as follows:

• FAQ 14 updates the understanding of which period the borrowers should use to determine their number of employees – borrowers may use the average employment over the time period used to calculate their loan amount to determine their number of employees for purposes of applying an employee-based size standard. Borrowers may also elect to use the SBA’s usual calculation – average number of employees per pay period in the 12 calendar months prior to the date of the loan application.
  • FAQ 36 reminds borrowers that employee count for establishing eligibility under the 500 or 300 thresholds requires a company to count all employees, not FTEs. Example provided is 200 full-time employees, 50 part-time employees working 10 hours a week – resulting employee count is 250.
• FAQ 31 continues to indicate that all borrowers should review carefully the required certification that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.”
• FAQ 46 updates the prior safe harbor guidance issued around the loan necessity certification. Specifically, it indicates “because Second Draw PPP Loan borrowers must demonstrate that they have had a 25% reduction in gross revenues, all Second Draw PPP Loan borrowers will be deemed to have made the required certification concerning the necessity of the loan in good faith.” While not precluding the IRS from selecting certain loans for review, this is certainly a big update for all borrowers of PPP loans. 
• FAQ 53 reaffirms that borrowers of $2m+ loans for PPP1 will receive the Form 3509 Loan Necessity Questionnaire and that the SBA will utilize it in conjunction with other data to affirm that the borrower made economic uncertainty certifications in good faith at the time the loan application was made. The focus continues to remain on the time at which the loan application was made, regardless is subsequent developments resulted in the loan no longer being necessary. 
• New FAQ 61 provides color to the certification that the borrower has utilized all of the first draw PPP funds prior to the disbursement of PPP2 funding. Specifically, it indicates that a borrower can make this certification in good faith provided they have spent the funds on eligible expenses, regardless of the percentage of those funds used toward payroll costs. This appears to be a departure from a prior IFR, which seemed to indicate that the 60% requirement still had to be met.
• New FAQ 63 reaffirms previous guidance that the alternative size standard cannot be utilized to establish eligibility for a second draw loan.

This week has been a busy week from the IRS and SBA – be on the lookout in the next couple days for another update dedicated to discussing the guidance that was issued on the ERC. As always, we welcome you to follow along our Stimulus Package Headquarters resource center, where we will continue to publish information as notable guidance becomes available. If you have questions on the above information, please reach out to your Withum advisor.

National accounting firm Withum shares some thoughts on recent developments related to the PPP, PPP2, Loan Forgiveness, and Employee Retention Tax Credits.

White House Announces Changes to PPP:

Yesterday afternoon, President Biden announced changes to the PPP geared toward making the program easier to access for smaller businesses. Last night, the SBA released further guidance solidifying these changes: 

• Starting February 24, 2021 at 9am, the SBA will establish a 14-day exclusive loan application period for businesses/not for profits with fewer than 20 employees. 
• SBA will also enact the following changes to promote equitable access to SBA relief:
  • Allow sole proprietors, independent contractors and self-employed to receive more financial support by revising the PPP’s funding formulas for these categories
  • Eliminate restrictions for small business owners with non-fraud felony convictions and restrictions for student loan debt delinquency
  • Ensure access for non-citizen small business owners who are lawful US citizens (ITINs will be used for PPP)
• The adjustments to the funding formula for these groups are not available at this time, neither is any information on whether these borrowers who have previously received PPP2 funding can apply for more with their lender
• It is not clear if/how this will affect applications that are currently in processing with lenders or the SBA or whether funding will be delayed in these instances

PPP2 Update:

After re-opening for business in mid-January with new appropriations of $284 billion, the PPP has had it’s fair share of bumps along the way. Here are some updates:

• Through February 21, the program has had 1.9 million loans approved for approximately $140 billion in loan dollars during 2021. Average loan size of approximately $73k is considerably less than the first round, as expected due to the employee count and maximum loan amount standards imposed
• The SBA installed more than 50 validation checks to prevent fraud and misuse of program funds. An unintentional effect of this was that many otherwise eligible borrowers were being held from receiving funds due to “hold codes” not applicable to their situation. The SBA has indicated that they are working to correct this, and on February 10, 2020, issued guidance to lenders on how to bypass to allow borrowers to receive their funding. 
• The SBA has installed a loan cap of $35,000 per employee for funding within either a PPP1 or PPP2 loan. This cap is not specified anywhere in the legislation or subsequent guidance, however they have been limiting certain loan amounts of borrowers for this through the SBA E-Tran system. We believe this would be calculated at $20,833 in wages and $14,117 of employer sponsored health insurance, retirement contribution and state and local taxes.  We are not sure how they are determining the $14,117 amount as that information is not supplied on an employee basis.
• In last night’s release, the SBA announced they are working with their partners to improve the “digital front door” – presumably aimed at correcting some of the hold code issues previously identified. 

For a refresher on the eligibility criteria for receipt of a second draw PPP loan, please visit our article here.

Loan Forgiveness Update: 

The SBA has published the following forgiveness data through February 18, 2021:

Employee Retention Tax Credits (“ERC”):

Outside the PPP, the revamped ERC program has been the hottest topic of the new year for businesses in need of relief after the downturn has negatively impacted their revenues. The program, which carries a refundable $19,000 credit per employee for businesses who qualify for both 2020 and 2021, should be explored by ALL small businesses who have either had significant reductions in gross receipts or were fully or partially suspended due to government orders during 2020. A brief summary of each program is as follows: 

• 2020 Opportunity: The CAA removed the requirement that businesses cannot obtain a PPP loan and claim the ERC. This means that any business that previously obtained a PPP loan can now retroactively claim the ERC for 2020 if they qualify. The test for the 2020 ERC is that the business must have suffered either (i) a full or partial suspension of its business operations due to COVID-19, or (ii) it experienced a decline in gross receipts for any quarter in 2020 by more than 50% compared to the same quarter in 2019.
• 2021 Opportunity:  Under the CAA, businesses can now claim an ERC for the first two quarters of 2021, and the rules are less restrictive than they were in 2020. Two key changes include: (i) the maximum credit per employee is $14,000 in 2021, compared to $5,000 in 2020, and (ii) the decline in gross receipts test has been relaxed to include a decline of 20% instead of 50%. Businesses can also utilize the prior quarter to establish eligibility for the 2021 program.  This means for Q1 2021, the Q4 2020 can be used to determine the 20% decline in revenues. There are other expansions of the ERC that are favorable for businesses with employee counts between 100 and 500.
• Note that businesses can only claim the ERC for eligible wages that were not used to support PPP loan forgiveness, and this prohibition against double dipping applies in 2020 and in 2021. 

Our team has put together some resources for small businesses to start evaluating whether they might benefit from this program. Please visit our ERC flowcharts here, or our article on the overall program here. We also invite you to view our on-demand webinar from last week here.