Tag Archives: Relief

With $130 Billion Left, PPP Application Deadline Extended

On July 1, 2020, the House waived through Senate-passed legislation (S. 4116) that extends the deadline to apply for a loan under the Paycheck Protection Program (PPP), the centerpiece of relief under the CARES Act. The PPP provides forgivable loans to certain small businesses to cover payroll and other permissible expenses.

The original deadline to apply for PPP loans was last Tuesday, June 30, 2020. With the President’s signature over the weekend on July 4, 2020, the deadline for businesses to take advantage of the nearly $130 billion in remaining PPP funds is now August 8, 2020. Business owners interested in applying for a PPP loan should contact their local lender about the program. We are happy to discuss the PPP and other available economic relief for your business.

PPP Bonuses, Hazard Pay Count Towards Forgivable Payroll Costs, and Other New Guidance

On May 22, 2020, a week after issuing the application form for the CARES Act’s Paycheck Protection Program (“PPP”) loan forgiveness, the Small Business Administration (“SBA”) released the twenty-six-page interim final rules that provide formal guidance to accompany the application package.

Most of the interim final rules reiterate the substance of the PPP loan forgiveness application, but they also include new pieces of significant guidance such as the inclusion of employee bonuses and hazard pay as forgivable payroll costs when paid to employees earning less than $100,000 a year. Such payments are eligible for forgiveness because, as a supplement to salary or wages, they are considered compensation.

Some of the other significant new guidance includes:

  • a further cap on the forgivable payroll expenses of owner-employees, as not to be confused with self-employed individuals, in an amount that is the lesser of 8/52 of 2019 compensation or $15,385 per employee;
  • application of the above cap across all business, suggesting that someone with an ownership interest in multiple business will be subject to the overall limitation; and
  • safe harbors to protect borrowers from a reduction in full-time employees due to the employees’ actions.

Unsurprisingly, questions remain following the release of the rules, such as the definition of an “owner-employee.” No additional IRS frequently asked questions  have been released to supplement the interim final rules.

IRS Issues Expanded FAQ Guidance on Employee Retention Credit

The Internal Revenue Service (“IRS”) has expanded its FAQ guidance on the Employee Retention Credit (“ERC”), which has been discussed in greater detail in a prior post. Enacted as part of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, the ERC provides a refundable tax credit to eligible employers for certain employment taxes equal to 50 percent of up to $10,000 in qualified wages paid per employee, effective March 12, 2020 through December 31, 2020. However, employers that received loans under the Paycheck Protection Program (“PPP”) are not eligible for the ERC.

The ERC FAQ was originally posted in late March, and the IRS has since continued to update it. The FAQ now has nearly 100 questions posed and answered on major-issue areas such as:

A more recent update relates to the eligibility of an employer who repays its PPP loan in accordance with the Small Business Administration (“SBA”) requirement that a business recertify in good-faith that the PPP loan was “necessary to support ongoing business operations” (previously discussed here, here, and here). Released May 8, 2020, the IRS FAQ 79 states that an employer that applied for the PPP loan, received payment, and “repays the loan by May 14, 2020 . . . will be treated as though the employer had not received a covered loan under the PPP for purposes of the Employee Retention Credit.” Therefore, the employer will be eligible for the credit if the employer is otherwise an eligible employer.

The original deadline for PPP loan repayment was May 7, 2020, but was extended to May 14, 2020 with FAQ 43 of the SBA’s PPP FAQs. The SBA then further extended the repayment deadline to Monday, May 18, 2020 in SBA FAQ 47, following its release of guidance which relieved borrowers with loans of less than $2 million from the “necessity” recertification. While the IRS ERC FAQ has not been updated to reflect the new May 18 deadline, we can only assume that those employers who do make repayment by this time would qualify for the ERC all the same. We note, however, that implicit in IRS FAQ 79 is that employers who do not voluntarily make timely repayment may not claim the ERC. In other words, any employer who is ultimately forced by the SBA to repay the loan would not be allowed to take the ERC.

While the PPP loan was at the top of most employers’ COVID-relief wish lists, and for obvious reasons, the ERC may be the next best option for those who erred on the side of repayment. We are happy to answer any questions employers that opted for repayment may have.

PPP Loans Less Than $2 Million Deemed Certified in Good Faith; Larger Loans Get Penalty Relief But Remain In Cloud of Repayment Uncertainty

On Wednesday, May 13, 2020, just a day before the deadline to recertify or repay Paycheck Protection Program (“PPP”) loans (previously discussed here), the Small Business Association (“SBA”) made good on its promise to provide further guidance as to what circumstances necessitate repayment with its release of FAQ 46. The new FAQ asks the following question:

“How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?”

The first part of the SBA’s answer reveals a safe harbor for borrowers of PPP loans with an original principal amount of less than $2 million. Borrowers who received loans below this threshold will be deemed to have certified in good faith that the loan was necessary, because they “are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans.” The SBA also admitted that it has bigger fish to fry, as removing these borrowers from the PPP loan pool will allow it to “conserve its finite audit resources and focus its reviews on larger loans.”

As for the $2 million-and-above borrowers, the FAQ goes on to say that they may still have an adequate basis for making the required good-faith certification depending on their circumstances. If, however, the SBA determines by its review that a borrower lacked an adequate basis for its PPP loan, the SBA will seek repayment of such loan and notify the lender that the borrower is ineligible for loan forgiveness. Further, the SBA will not take administrative enforcement action to collect repayment or make referrals to other agencies if the borrower voluntarily repays the loan after receiving notification from the SBA. The SBA did not offer a specific timeframe within which repayment would prevent administrative enforcement.

Borrowers who did receive loans of $2 million or more should consider setting aside enough funds to make a repayment should the SBA require it, though one wonders whether the SBA could use retention of such reserves as a basis to question the necessity—and hence the qualification—of the loan. That seems like an unfair catch-22, motivating “larger” small businesses to stop paying employees after the PPP measuring period ends. We hope the SBA will provide more clarification to help these businesses avoid that dilemma and to encourage businesses to continue deploying funds to keep their workforces in place after the PPP measurement period ends.

The SBA also released FAQ 47 later in the day on May 13, which automatically extends the repayment date to Monday, May 18, 2020. The stated reason for this extension is “to give borrowers an opportunity to review and consider FAQ 46.” The practical significance of FAQ 47 as it relates to the necessary-ness certification is unclear, given the penalty relief provided by FAQ 46.

PPP Repayment Deadline Extended But Confusion Remains

On May 5, 2020, the Small Business Administration (“SBA”) in consultation with the Department of Treasury (“Treasury”) announced in a new online FAQ that it is giving extra time for companies to repay loans they applied for and received in good faith under the initial guidance provided by the SBA to the Paycheck Protection Program (“PPP”). Originally set for May 7, 2020, the deadline to repay the loan without incurring penalties is now extended to May 14, 2020. The SBA also stated that it plans to issue “additional guidance on how it will review certification prior to May 14, 2020.” Continue reading

SBA Issues Potentially Overbroad Guidance Narrowing PPP Qualification Standards

Lawyers have a saying, “Bad Facts Make Bad Law.”  Recent Small Business Administration guidance regarding the Paycheck Protection Program proves it true in one more case.

Even as Congress moves to approve additional funds to the Paycheck Protection Program, the SBA issued a new FAQ in response to news stories about public companies receiving PPP money.  The FAQ states that “a public company with substantial market value and access to capital markets” may not receive PPP funding.  While understandable with respect to the companies in the headlines, it is concerning that the SBA could apply the guidance more broadly.  Doing so would cause more delays or denial in funding for smaller enterprises, and defeat Congress’ intent to support employee retention by private employers.

This is the new FAQ:

  1. Question: Do businesses owned by large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?

Answer: In addition to reviewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application. Although the CARES Act suspends the ordinary requirement that borrowers must be unable to obtain credit elsewhere (as defined in section 3(h) of the Small Business Act), borrowers still must certify in good faith that their PPP loan request is necessary. Specifically, before submitting a PPP application, all borrowers should review carefully the required certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business. For example, it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification. Lenders may rely on a borrower’s certification regarding the necessity of the loan request. Any borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith.

We understand the political motivation behind the guidance.  We also believe applying a strict standard based on a company’s value or a company’s access to outside capital or “other sources of liquidity” is perverse.  Congress intended the PPP to motivate companies to retain employees.  Valuable companies with reserves and access to capital will still furlough or release employees, as demand for their services or products drops.  For even those companies, the PPP is therefore “necessary to support ongoing business operations,” because given the current economic landscape they would not deplete reserves or access other sources of liquidity to retain unprofitable employees.  Understanding Congress wanted employers to retain their employees, we interpret the FAQ narrowly.  We hope the SBA will as well.

Attorney James-Allen McPheeters contributed to this post. 

IRS Releases Guidance on CARES Changes to Business Interest Expense Limitation and Bonus Depreciation for Qualified Improvement Property

The IRS has released guidance on certain business tax provisions of the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.  Released on Friday, April 10, Rev. Proc. 2020-22 informs taxpayers how to make certain elections with respect to the newly relaxed business interest expense limitation and provides real estate and farming businesses with the option to make late elections or withdraw pre-CARES elections. One week later, on Friday, April 17, 2020, the IRS announced in Rev. Proc. 2020-25 that  taxpayers may change their depreciation for certain qualified improvement property. It also allows taxpayers to make late, revoke, or withdraw certain depreciation elections. While both revenue procedures are separately significant, their interplay, and the interplay of the associated CARES provisions, may be especially important for certain electing real property and farming businesses.

Continue reading

Required Action for Healthcare Providers Receiving Relief

Healthcare providers should note that HHS has deposited funds in many of your bank accounts.  The funds are from two programs, the CMS Accelerated and Advance Program and the CARES Act Provider Relief Fund.  The CMS Accelerated and Advance Program is a loan against future payments from government healthcare programs and must be repaid (likely from reductions in future payments).  The CARES Act Provider Relief Fund is a grant program, but in order to retain the money you have received providers must sign and deliver an attestation within 30 days following receipt of the funds.  The clock has already started to run.  There has been much confusion about the CARES Act payment because the certification required that the provider be involved in the treatment or diagnosis of potential COVID-19 patients.  CMS has clarified, however, that any patient is a potential COVID-19 patient.  The newly published HHS Cares Act data page where you can access the required attestation and instructions and learn more about this important update.

Join Virtually: Labor & Employment Strategies Around COVID-19 Relief

We invite you to join our partner Jennifer Fowler-Hermes for a virtual presentation hosted by the Lakewood Ranch Business Alliance this Wednesday, April 8.

The program will answer questions around the new aid packages available to businesses as a result of the COVID-19 crisis. With the rollout of these new programs, business owners are scrambling to quickly understand the details surrounding the offered benefits, applications processes, and eligibility requirements. Jennifer will share guidance on how employers should approach the situation from an HR perspective and will be joined by a partner with Kerkering Barberio to provide insight on the tax and accounting implications.

Participants may join by video or phone. For more details and to register, visit LWRBA.

Business Tax Relief in the CARES Act

This post was updated April 6. 

On March 27, 2020, President Trump signed into law the $2.2 trillion Coronavirus Aid, Relief, and Economic Security (“CARES”) Act (H.R. 748). The CARES Act is the third stimulus package enacted amid the COVID-19 public health emergency, and while not the Act’s primary focus, it contains significant business tax relief. In a previous post, we provided an overview of the entire Act. This post covers the business tax changes and additions.

The key business tax provisions include:

  • The creation of an employee retention credit of up to 50% of the first $10,000 paid to each employee;
  • For taxable years 2018, 2019, and 2020, net operating loss carryovers (“NOLs”) are no longer subject to an 80% cap based on taxable income, and NOLS from 2018, 2019, and 2020 can be carried back five years;
  • For taxable years prior to January 1, 2021, the excess business loss limitation that applies to noncorporate taxpayers is repealed;
  • For taxable years beginning in 2019 or 2020, the interest expense limitation is increased to 50%, and taxpayers can use their 2019 adjusted taxable income for purposes of the 2020 calculation;
  • A technical correction to the depreciation treatment of qualified improvement property;
  • Unused corporate AMT credits through 2021 are accelerated for current full use and refundable for tax years 2018 and 2019;
  • Employer-side Social Security payroll tax payments may be delayed until January 1, 2021, with the first half due December 31, 2021 and the remainder due December 31, 2022;
  • An exclusion from income for certain loan forgiveness on loans taken out pursuant to other provisions of the CARES Act.

Employee Retention Credit

Effective for wages paid between March 13, 2020, and before January 1, 2021, the CARES Act allows for a refundable credit against Social Security taxes for each calendar quarter equal to 50% of the qualified wages paid to each employee. Employers may only take up to $10,000 of qualified wages into account for each employee for all calendar quarters, and the credit may be applied to the first $10,000 of compensation (including health benefits) paid to an eligible employee. This means that an eligible employer may receive a credit of up to $5,000 per employee, and there is no cap on the number of employees an employer may include in calculating the amount of the total aggregated credit. If the amount of an employer’s combined employee credits exceeds its quarterly employment taxes (as reduced by other credits), the excess will be treated as a refundable overpayment.

An “eligible employer” with respect to a calendar quarter, is an employer that had been carrying on a trade or business during the 2020 calendar year and (i) has operations that were fully or partially suspended during such calendar quarter due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings because of COVID-19, or (ii) has a significant decline in gross receipts for such calendar quarter. A significant decline begins with the quarter in which the gross receipts for the quarter were less than 50% of those in the same quarter in the prior calendar year. The decline ends with the quarter in which gross receipts are greater than 80% of the gross receipts for the same quarter in the prior calendar year.

For employers with more than 100 full-time employees, qualified wages are wages paid to employees currently retained even though not providing services for such employers due to either of the COVID-19-related reasons listed above. For employers with less than 100 employees, all wages paid to their retained employees are qualified wages even if the employees are currently still providing services for such employers. Qualified wages may not exceed the amount an employee would have received for working an equivalent amount of time during the 30 days prior a specified period affected by COV1D-19.

The credit is reduced by any credits taken by employers for qualified veterans and research expenditures for small businesses. Additionally, the amount of qualified wages for which an eligible employer may claim the Employee Retention Credit does not include the amount of qualified sick and family leave wages for which the employer received tax credits under the Families First Coronavirus Response Act (FFCRA).

There are other limitations that apply to certain employers. Specifically, any eligible employers that receive a covered loan under the Paycheck Protection Program of the CARES Act are not eligible for this credit. Further, if an employer is allowed a Work Opportunity Tax Credit with respect to an employee, then that employee is not included for purposes of this credit for any period with respect to the employer. Keeping in mind that the Paycheck Protection Program is only available for business with fewer than 500 employees, the Employee Retention Credit is therefore available to larger employers who meet the distressed business criteria listed above. Employers qualifying for both the Paycheck Protection Program and the Employee Retention Credit will have to determine which of the two is more advantageous for its particular business. Eligible employers may elect out of the credit for any calendar quarter.

Further, just as with the credits for paid family and sick leave under the FFCRA, these credits do not apply to certain United States government or State government employers. The credit does, however, apply to tax-exempt organizations described under section 501(c) of the Code, which covers everything from charities to business leagues to social clubs to credit unions, etc. Any of these tax-exempt employers is deemed to be an eligible employer with respect to all of its operations (notwithstanding that such operations may not be a trade or business), and the same exclusion for participation in the Paycheck Protection Program applies.

Relaxation of Net Operating Loss Rules

The Tax Cuts and Jobs Act (“TJCA”) only just recently changed the net operating loss (“NOL”) rules. For taxable years ending after December 31, 2017, NOLs were allowed to be carried forward indefinitely but could offset only 80% of a taxpayer’s taxable income (a change from 100%) and could no longer be carried back to prior years (previously a two-year carryback was allowed).

The CARES Act now provides that, for tax years beginning before January 1, 2021, the 80% taxable income limit does not apply, which means corporate and noncorporate taxpayers are allowed to use NOLs to fully offset taxable income. It also clarifies how the 80% limitation is to be applied when it goes back into effect for any taxable year beginning after December 31, 2020.

The CARES Act also provides that NOLs arising in a taxable year beginning after December 31, 2017 and before January 1, 2021 are to be treated automatically as a carryback to each of the five preceding taxable years, unless the taxpayer elects out of the carryback. The carryback therefore operates on an all-or-nothing basis, meaning taxpayers may not choose to carry NOLs back to one particular year within the five-year carryback period. An NOL arising in a tax year beginning in 2018, 2019, or 2020 must be carried back to the earliest year within the five-year carryback period in which there is taxable income, as early as 2013, 2014, and 2015, respectively. Considering the pre-2018 corporate tax rate was 35% (versus 21% now) and the top individual rate was 39.6% (versus 37% now), this carryback could be extremely valuable to certain taxpayers.

A taxpayer must make the election to forgo these NOL carrybacks for 2018, 2019, and 2020 at least by the filing deadline for one’s 2020 income tax return (including extensions). The decision to elect out is, however, allowed to be made for each year. This means that a taxpayer may opt out of the 2018 carryback without limiting its decision for 2019 and 2020. The IRS will likely release guidance advising taxpayers how to request refunds for NOL carrybacks or elect out of the automatic carryback. No refund can be claimed until the return for the tax year in which the NOL arises has been filed. For most taxpayers, the 2018 income tax return has been filed, meaning they may request a refund for a year to which a 2018 NOL is carried (the earliest of five prior years with taxable income). This can be done by filing an amended return or by filing a request for tentative refund. Taxpayers who have already filed for 2019 may do the same to make use of any NOLs for that year. No NOL may be carried back from 2020 until the tax year closes.

Remembering that you cannot pick and choose the year(s) to which an NOL is carried back, taxpayers should consider the opportunity to use an NOL to reduce or clear an underpayment of tax for a year within the five-year carryback range.

Special rules apply to real estate investment trusts (REITS) and life insurance companies. A REIT is not allowed to carry back any NOL, nor may an NOL be carried back to any year in which a taxpayer was formerly a REIT.

Suspended Excess Business Loss Rules

For years before January 1, 2021, the CARES Act repeals the excess business loss limitation that applies to noncorporate taxpayers (individual’s, partnerships, or S corporations) after the passive loss rules, and which disallows the use of a business loss in excess of $250,000, or $500,000 for joint filers against nonbusiness income, and treats such loss as an NOL carryover to the next tax year. This means noncorporate taxpayers with business losses arising in 2018, 2019, and 2020 can enjoy the five-year carryback without regard to the excess business loss rules. If you had a business loss that was limited in 2018 or 2019 under the excess business loss rules, then you may be able to obtain a refund by filing an amended tax return.         

Increased Business Interest Expense Limitation

Current law generally limits taxpayers’ deduction for a business interest expense to the sum of business interest income and 30% of adjusted taxable income. For most taxpayers, the CARES Act increases this 30% limit up to 50% of a taxpayer’s adjusted taxable income for tax years 2019 and 2020. A taxpayer may elect to not apply this increased limitation, but once the election is made, it can only be revoked by the Secretary of the Department of Treasury.

Special rules apply for partnerships. For partners in a partnership, the increase to 50% applies only to taxable years beginning in 2020 (therefore, excluding 2019), but a partner can carry over to 2020 any business interest that was disallowed in 2019 and deduct 50% of that amount, with the remaining 50% subject to the otherwise applicable rules. The CARES Act also allows any taxpayer to elect to use its 2019 adjusted taxable income instead of its 2020 adjusted taxable income when computing the business interest limitation for 2020. This will increase the amount of business interest expense most taxpayers are able to deduct, assuming their income was higher in 2019.

Technical Correction for Qualified Improvement Property

The TCJA mistakenly defined the term “qualified improvement property” in a way that prevented such property from being eligible for the intended 100% bonus depreciation. Qualified improvement property is generally defined as any improvement to an interior of a nonresidential building that is placed in service post-improvement, following the original date on which the building was placed in service. The CARES Act makes a technical amendment to Code section 168(e)(3)(E) correcting a drafting error by including qualified improvement property as “15-year property” instead of the mistaken recovery period of 39 years. This amendment applies retroactively to property placed in service after December 31, 2017. This provision is meant to not only increase a business’s cash flow by allowing them to amend a prior year’s return, but it is also meant to incentivize them to continue to invest in improvements during this public health emergency.

The IRS is expected to release guidance as to how taxpayers may claim the greater depreciation deduction through automatic accounting method change procedures. In the meantime, taxpayers may have the option of amending previously filed returns to retroactively claim any missed deductions.

Credit for Corporate Alternative Minimum Tax

Prior to the TCJA, the amount of alternative minimum tax (“AMT”) paid by a corporation was allowed as a credit in a subsequent taxable year. The TCJA repealed the AMT for corporations for taxable years beginning after December 31, 2017, but allowed corporations to treat 50% of any unused AMT credit as refundable in 2018, 2019, 2020, and 100% as refundable in 2021. The CARES Act accelerates this timeline, making the AMT credit 100% refundable for taxable years beginning in 2018 and 2019. Accordingly, the new law provides relief to corporate taxpayers with non-refunded AMT credits in 2018, who should be able to amend their 2018 returns (assuming they have been previously filed) and be refunded for those amounts.

Delay of Employer-Side Social Security Payroll Tax Payments

The employer’s portion of Social Security taxes for the period from enactment (March 27, 2020) up to January 1, 2021 will not be due until December 31, 2021, when half of the deferred amount is due, and December 31, 2022, when the other half is due. Similar rules allow deferral of 50% of the corresponding Federal self-employment taxes.

Federal withholding taxes, Medicare taxes and withholding, and employee social security withholding are not eligible for the deferral.

All employers are eligible for the deferral other than those who have loans forgiven under the CARES Act’s Paycheck Protection Program. However, there is some tension in the timing of potential loan forgiveness and at least the first payroll tax payment deadline. This means an employer could apply for a loan under the Paycheck Protection Program and not receive a loan until after the first payroll tax payment is due. In this situation, an employer is allowed to defer payroll tax payments until the employer subsequently receives loan forgiveness, because deferral is not disallowed until an employer has actually had loan amounts forgiven. We expect the IRS to release guidance as to how it plans to handle this situation. It may be that the IRS will not expect payment of any payroll taxes deferred prior to loan forgiveness until the first due date (December 31, 2021), or it may provide for a sooner claw back of any deferred payments.

Payroll tax deferral can be used in conjunction with the Employee Retention Credit, so long as the credit does not result in a refund to the employer.

Certain Loan Forgiveness Excluded from Income

The CARES Act allows certain small business loan forgiveness necessary to maintain payroll or pay mortgages, rent, or utilities incurred or paid by the borrower during the 8-week period beginning on the loan origination date. If a business applied for and received a $10,000 advance under the Economic Injury Disaster Loan provisions before transferring into the Paycheck Protection Program, such advance will be deducted from the total loan forgiveness amount. Any portion of the loan that is forgiven pursuant to the Act is excluded from taxable income.

There are numerous tax provisions in the CARES Act that could be beneficial to a business, including multiple opportunities to amend a prior year’s return to increase liquidity. Please do not hesitate to call us if we can assist you in taking advantage of any part of this legislation.

Christina J. Strasser
(941) 536-2048
cstrasser@williamsparker.com