FGMK Tax Alert – Expanded and Enhanced Employee Retention Credit

A) Businesses that have been affected by a governmental shutdown or have seen their YOY gross receipts drop by 50% that have 2020 payroll costs including any business that received PPP money.

OR

B) Businesses that have been affected by a governmental shutdown or have seen their YOY gross receipts drop by 20% that have 2021 payroll costs including any business that received PPP money.

A) In 2020, the credit is based on 50% of qualified wages, with the maximum credit effectively being $5,000 per employee for the year.

OR

B) In 2021, the credit is based on 70% of qualified wages, with the maximum credit effectively being $14,000 per employee for the year. 

• Any calendar quarter, or portion of calendar quarter for which the taxpayer is shut down (partially or fully) by governmental order.

OR

• Gross receipts for a quarter were less than 50% of the receipts in the same quarter in 2019; thereon, every subsequent quarter was also an eligible quarter until the END of the first quarter in which gross receipts exceeded 80% of the receipts from the same quarter in 2019.

Example:

This taxpayer would begin qualifying in Q2 and would lose qualification at the END of Q4.

• Any calendar quarter, or portion of calendar quarter for which the taxpayer is shut down (partially or fully) by governmental order.

OR

Elective Treatment: Either

A) YOY Method. Gross receipts for a quarter were less than 80% of the receipts in the same quarter in 2019; thereon, every subsequent quarter was also an eligible quarter until the END of the first quarter in which gross receipts exceeded 80% of the receipts from the same quarter in 2019 (or 2020 if business did not exist in 2019).

B) QOQ Method. Gross receipts for the immediately preceding calendar quarter is less than 80% of the corresponding quarter in 2019. Though not certain, it is likely this will be a quarter-by-quarter election.

Example:

In 2021, this taxpayer could elect to apply the quarter-on-quarter method, testing the immediately preceding quarter (Q4 of 2020) against the same quarter for 2019 and if less than 80%, test is met.      

The definition of QUALIFIED WAGES changes depending on how many full time equivalents (FTEs) – as determined under Code § 4980H (i.e., average of 30 hours per week or 130 hours per month).

For 2020 ….

If more than 100 FTEs, qualified wages only include wages paid to employees not to provide services during an eligible quarter (or portion thereof) were qualified wages.

In 2020, qualified wages were further capped to what an employee would have been paid for the preceding 30 days. This rule was designed to prevent an employer from bonusing out money to an employee in order to cause the employee to hit the $10,000 cap.

For 2021 ….

If more than 500 FTEs, qualified wages only include wages paid to employees not to provide services during an eligible quarter (or portion thereof) are qualified wages. Moreover, the rule designed to prevent bonusing amounts during affected quarters in order to maximize the $10,000 per quarter cap has been removed.

In 2020, qualified wages are capped at $10,000 per employee for ALL calendar quarters (i.e., looking at all the qualifying quarters – either due to a shut down order or the gross receipts test – the most amount of wages paid to any one employee is $10,000, whether paid all in one quarter or spread throughout all the qualifying quarters).

In 2021, qualified wages are capped at $10,000 per employee for ANY calendar quarter (i.e., in theory, if a business qualifies in both Q1 and Q2 of 2021, the maximum wages it could claim would be $20,000 to any one employee but it would have to pay $10,000 in each quarter).

The new law clarifies (as did the IRS in its May FAQs) that health plan expenses qualify as qualified wages even if a furloughed employee is not being paid. Given that many larger taxpayers (those with more than 500 employees) are required to maintain health insurance for furloughed employees (as well as many smaller employers from a practical standpoint), this should NOT be overlooked.

Unlike the 2020 ERC, the 2021 ERC may be claimed in advance if the taxpayer had less than 500 FTEs in 2019.

Gross Receipts include sales net of returns and allowances and all amounts received for services. In addition, administrative guidance specifically provides that gross receipts include interest, original issue discount, tax-exempt interest, dividends, rents, royalties, and annuities, regardless of whether those amounts are derived in the ordinary course of business. For capital asset transactions, gross receipts include proceeds less the adjusted basis in the property. Temp. Reg. § 1.448-1T(f)(2). Other items may be included in gross receipts. For example, gross receipts may include other types of tax-exempt income such as insurance proceeds. Gross receipts of an affiliated group are treated as those of a single employer for purposes of the ERC (pursuant to the IRS’s May FAQs).

If entities are treated as a single employer under Code §§ 52 or 414, then they are aggregated for purposes of the ERC. The rules of these code sections are very complex and require a detailed analysis of particular facts, but in very general terms, parent-subsidiary groups, brother-sister groups, combined ownership groups, and affiliated service groups are aggregated. Once aggregated, the ERC is allocated based on a proportionate share of qualified wages by each member of the affiliated group.

Order from an appropriate governmental authority limiting commerce, travel, or group meetings. While this has been the topic of much debate, the IRS issued FAQs in May that provided some guide posts.

A business may qualify in the following instances:

• • A business deemed essential with respect to some of its business operations but not with respect to other operations will be deemed to experience partial shutdown with respect to the operations that must be closed;
  • A business required to reduce its hours due to a governmental order;
  • A business with operations that are fully or partially suspended as a result of the inability to obtain critical goods or materials from its suppliers that were required by a governmental order to suspend operations;
  • A business that has multiple operations will be an eligible employer even if only some of its locations are closed;
  • An employer that is aggregated under the rules described above will be an eligible employer even if only one member of the aggregated group has its operations suspended by a governmental order; and
  • A business that is subject to suspension, but that has such a suspension lifted by the government, will be an eligible employer for the period during which it was forced to close.

On the other hand, the following will not be deemed eligible for ERC purposes:

• • An essential business that is allowed to remain open, even if the governmental order affects operations of the essential business without requiring it to be closed;
  • A business whose customers are required shut down by governmental order and therefore is unable to maintain regular operations; and
  • A business that is required to close a physical location, but that can continue regular operations through remote work.

Previously, the IRS has stated that in the event an employer determines in 2021 that a significant decline in gross receipts occurred during 2020, it may claim the employee retention credit on qualified wages paid during 2020. Generally, the employer would claim the credit by filing a Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund. Notwithstanding this, the recent legislation provides a mechanism by which a taxpayer could claim the 2020 credit (e.g., in the case of a business who previously received PPP money) against its 4th quarter Form 941 due on January 31, 2021.

A PEO will report the credits for the employer on an aggregate Form 941 and separately report the credits allocable to the employer on an accompanying Schedule R. The PEO does not have to complete Schedule R with regard to employers for which it is not claiming a credit. The employer will need to provide a copy of any filed Form 7200 to the PEO so it can properly report the credit on the Form 941.

Step 1: Determine whether the business has any qualifying quarters either because of a shutdown or decline in gross receipts. Remember that for 2020, it is comparable quarter for 2019. For 2021, it is either the current quarter against the comparable quarter for 2019, or at the election of the business, the immediate preceding quarter (e.g., Q4 of 2020) versus the comparable 2019 quarter.

Step 2: Determine how many average monthly FTEs it had. Note this is computed differently than the business may have done for PPP Loan purposes.

Step 3: Starting March 13, 2020, for every employee to whom the business paid eligible wages during an eligible quarter, the business gets a credit equal to 50% of those wages through December 31, 2020 and 70% of those wages paid from January 1, 2021 through June 30, 2021.