Withum COVID-19 Bill Update – 5/6/2020

May 6, 2020

“Grace period” extended and SBA commits to new guidance on eligibility – FAQ 43 was released May 5th, indicating that the May 7th deadline for companies to return PPP funds without penalty if they have determined they are not eligible has been extended to May 14thThe big news is that the SBA committed to providing “additional guidance” on how it will review the certifications made in the application prior to May 14, 2020.  This could mean that the SBA will further clarify (and possibly narrow) the scope of what they meant by the concept of “economic uncertainty.”  This is something that borrowers will need to closely consider. 

Clarification on Foreign Affiliates – FAQ 44 was released May 5th and clarified that, for the 500 employee limit, the employees of foreign affiliates need to be included.  This is important because many companies were under the impression that only US employees were considered when it came to affiliation guidance.  Thus, if a company had a foreign subsidiary, those employees will now need to be included for the purpose of the 500 FTE headcount limitation.  Keep in mind, the 500 employee limit considers ALL employees as a full employee.  So a part time employee is considered 1 person for the purpose of this calculation.  This may require some companies to re-evaluate their eligibility. 

Reminder Section:  (what should I be doing):

  • Call your payroll company about claiming the payroll tax deferrals and employee retention credits that were made available in the CARES Act.
  • Talk to your payroll company about the Sick Pay Bill (passed prior to the CARE Bill).
  • Be in constant communication with your bank (about status of your PPP application).
  • Consider speaking with your bank to discuss changes to terms of existing debt facilities.  The banking system remains strong.
  • If you have already applied for the PPP, start forecasting how you intend to spend the funds and how to qualify for the highest amount of forgiveness possible.
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