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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.