On November 18, 2020, the Internal Revenue Service issued Revenue Ruling 2020-27 which provides needed clarity on a taxpayers’ ability to deduct eligible expenses for Paycheck Protection Program (PPP) loan forgiveness.
The Ruling notes that a taxpayer that received a covered loan guaranteed under the PPP and paid or incurred certain otherwise deductible expenses listed in section 1106(b) of the CARES Act may not deduct those expenses in the taxable year in which the expenses were paid or incurred if, at the end of such taxable year, the taxpayer reasonably expects to receive forgiveness of the covered loan on the basis of the expenses it paid or accrued during the covered period, even if the taxpayer has not submitted an application for forgiveness of the covered loan by the end of such taxable year.
What if forgiveness is denied, in whole or part, or not requested?
In conjunction with the Ruling, the IRS issued Revenue Procedure 2020-51 to outline the steps for when:
1.) The eligible expenses are paid or incurred during the taxpayer’s 2020 taxable year,
2.) The taxpayer receives a covered loan guaranteed under the PPP, which at the end of the taxpayer’s 2020 taxable year the taxpayer expects to be forgiven in a subsequent taxable year, and
3.) In a subsequent taxable year, the taxpayer’s request for forgiveness of the covered loan is denied, in whole or in part, or the taxpayer decides never to request forgiveness of the covered loan.
The Rev Procedure provides for two safe harbors for taxpayers in the event forgiveness is denied, in whole or in part, or otherwise not requested that would allow for the deduction of expenses in either the 2020 or a subsequent tax year.
Questions we still have
While the Ruling provides information on the deductibility of expenses and the tactical approach for borrowers whose forgiveness is denied or not requested, additional clarification is still needed. This guidance does not address the order in which the eligible expenses (payroll, rent, utilities and mortgage interest) lose the ability to be deducted.
Further, the guidance does not address other matters that could have significant tax implications including, but not limited to, the impact on the following:
- Qualified business income deduction (Section 199A)
- Research and development credits
- Interest deduction limitation (Section 163(j))
Need Assistance in Choosing the Right PPP Loan Forgiveness Application?
We have put together a flowchart that can help: How to Select the Right Loan Forgiveness Application
The Small Business Administration (SBA) and Treasury announced on October 8 that a simplified application (Form 3508S) for Paycheck Protection Program (PPP) loan forgiveness is now available for borrowers whose loans fall in the $50,000 or less threshold. As more and more businesses begin filing for PPP loan forgiveness, this change outlined in a new interim final rule greatly simplifies the process for borrowers with smaller loans. However, it is important to note that this simplified form is not equal to automatic forgiveness.
Among the simplified provisions for borrowers with $50,000 or less in PPP loans is the exemption from a reduction in forgiveness based on reductions in full-time-equivalent (FTE) employees as well as reductions in employee salaries or wages. While certifications and documentation of payroll and non-payroll costs will still be required, this move streamlines the process significantly for borrowers with smaller loans who will not be responsible for potentially complicated calculations for FTE and salary reductions.
Borrowers with loans of $50,000 or less who are also included in affiliate loans totaling $2 million or more are not eligible for the new application. The SBA estimates that approximately 3.57 million loans were issued for $50,000 or less or $63 billion of the PPP funds, and that about 1.71 million of the loans were for businesses with one or zero employees.
Below are additional considerations to keep in mind:
- If you are the business owner, the amount that is eligible for forgiveness is capped at $20,833.
- Your forgiveness amount cannot exceed the principal of the loan even if you have additional qualifying expenses above and beyond the principal.
- If your business received an EIDL Advance, it is assumed the grant amount is counted toward your taxable income (definitive language has not been released), but expenses paid by the grant would be tax deductible.
- Remember to maintain adequate PPP records for six years, as all forgiveness requests are subject to audit by the SBA.
Updates for lenders
Lenders should note the further guidance on their responsibilities released with the notice which includes review of borrower documentation for eligible costs for forgiveness for all forgiveness applications. Lenders are required to confirm receipt of the borrower certifications the borrower’s documentation of payroll and non–payroll costs. Borrowers are responsible for their calculations and accuracy of the information provided, and lenders are permitted to rely on what the borrower has submitted.
It’s important to note that the amount of forgiveness cannot exceed the principal amount of the loan even if a borrower submits documentation for eligible costs exceeding the amount of their PPP loan.
Regardless of what form is submitted for forgiveness, lenders must:
- Confirm receipt of the documentation for payroll and non-payroll costs
- Confirm the borrower calculations, if applicable, up to the amount required to achieve forgiveness
Many questions remain about the tax treatment of some expenses that fall under the PPP. Contact your CPA for assistance with your forgiveness application and to have a thorough discussion about the impact your PPP loan has on your tax strategy and when is the best time to apply for forgiveness.
Employers can now defer payroll tax withholding on employee compensation for the last four months of 2020 and then withhold the deferred amounts in the first four months of 2021, confirms a recent update from the IRS. President Trump’s memorandum on Aug. 8 gave employers the ability to defer payroll taxes for employees affected by the COVID-19 pandemic in an effort to provide financial relief.
The guidance directs that employers can defer the withholding, deposit, and payment of the employee portion of the old-age, survivors, and disability insurance (OASDI) tax under Sec. 3102(a) and Railroad Retirement Act Tier 1 under Sec. 3201 from employee wages from Sept. 1 to Dec. 31, 2020.
Employers must then withhold and pay the deferred taxes from wages and compensation during the period from Jan. 1, 2021, and April 30, 2021, with interest, penalties, and additions to tax to begin accruing starting May 1, 2021. Included in the notice is a line that indicates, if necessary, employers can “make arrangements to otherwise collect the total Applicable Taxes from the employee,” such as if an employee leaves the company before the end of April 2021, but does not provide details on what that entails.
Employees with pretax wages or compensation during any biweekly pay period totally less than $4,000 qualify for the deferral. Amounts normally excluded from wages or compensation under Secs. 3121(a) or 3231(e) are not included in calculating the applicable wages. The determination of applicable wages should be made on a period-by-period basis.
Companies may choose whether or not to enact the payroll tax deferral. We are closely monitoring updates related this and other presidential executive orders and will communicate if more information becomes available. For questions or assistance with this payroll tax deferral, contact us.
On Aug. 24, the Small Business Administration (SBA) and Treasury issued the latest interim final rule update to the Paycheck Protection Program (PPP) that seeks to clarify guidance related to owner-employee compensation and non-payroll costs. This guidance has been long-awaited and clears up several questions borrowers have had about forgiveness. Here are the main points:
1. Owner-employees of C or S corporations are exempt from the PPP owner-employee compensation rule for loan forgiveness if they have a less than 5% stake in the business. The intent is to provide forgiveness for compensation of owner-employees who do not have a considerable or meaningful ability to influence decisions over loan allocations. This clarifies earlier guidance that capped the owner-employee compensation regardless of what stake they have in the business.
2. Loan forgiveness for non-payroll costs may not include amounts attributable to the business operation of a tenant or subtenant of the PPP borrower. The SBA provides a few examples of what this means:
- Borrowers renting an office building and subletting a portion to another business can only claim the difference between their rental cost and the sublet income.
- Borrowers with a mortgage on the building in which it operates who lease a portion of the building to another business can only claim a portion of the mortgage interest limited to the percent share of fair market value of the space not leased.
- Borrowers sharing rented space with another business must prorate rent and utility payments like they would for 2019 tax filings or, if new, expected 2020 tax filings.
- Borrowers working from home may only claim the share of covered expenses deductible on the 2019 tax filings or, if new, expected 2020 tax filings.
3. To achieve loan forgiveness on rent or lease payments to a related third–party, borrowers must ensure that (1) the amount of loan forgiveness requested does not exceed the amount of mortgage interest owed on the property attributable to the business’s rented space during the covered period, and (2) the lease and mortgage meet the Feb. 15, 2020, requirement for establishment. Earlier guidance had not addressed related third-party leases.
It’s important to note that mortgage interest payments to a related party are not eligible for forgiveness as PPP loans are not intended to cover payments to a business’s owner because of how the business is structured – they are intended to help businesses cover non-payroll costs owed to third parties.
For questions on any of these rules or assistance with your PPP loan forgiveness application, contact us today.
In an effort to help businesses cope with the impact of COVID-19, the CARES Act passed by Congress in March of this year eliminated some of the restrictions on the business interest deduction set in place in 2017 by the Tax Cuts and Jobs Act (TCJA). Now, the IRS has released much-needed guidance and final regulations for business interest expense deductions.
Limiting the business interest deduction was originally a way of helping pay for the TCJA and began with tax years starting after Dec. 31, 2017. The deduction was limited to the sum of:
- The taxpayer’s business interest income
- 30% (or 50% if applicable) of the taxpayer’s adjusted taxable income, and
- the taxpayer’s floor plan financing interest expense
The final regulations state that the deduction does not apply to:
- Certain small businesses with gross receipts of $26 million or less (applies to 2020 tax year, adjusted annually for inflation)
- Electing real property trades or businesses (cannot claim additional first-year depreciation deduction on certain types of property held)
- Electing farming businesses (cannot claim additional first-year depreciation deduction on certain types of property held)
- Certain regulated public utilities
Taxpayers must use Form 8990 to calculate and report their deduction and the carry-forward amount of disallowed business interest expense.
Additional regulations released by the IRS cleared up some of the remaining questions including issues related to the CARES Act. These additional regulations can be used with limitations until the final regulations are published in the Federal Register.
Additionally, a safe harbor was created in Notice 2020-59 that allows taxpayers engaged in a trade or a business managing or operating qualified residential living facilities to treat that as a real property trade or businesses in order to qualify as an electing real property trade or business.
Reach out for assistance with understanding and reporting your business interest expense.
On August 8, 2020, President Trump signed an executive order extending certain aspects of COVID-19 relief in the absence of a new bill from Congress. The executive order includes several measures to protect individuals as provisions of the CARES Act expire or have expired.
Here’s what was in the order:
Payroll tax delay – The order authorizes the Treasury to consider methods to defer the employee share of Social Security taxes (IRC section 3101(a) and Railroad Retirement Act taxes under section 3201(a)) for employees earning up to $104,000 per year ($4,000 biweekly) for a period beginning Sept. 1, 2020, through Dec. 31, 2020. No interest, penalty, or additional assessment would be charged on the deferred amount. At this point, this is not effective. It means the Treasury can exercise authority and explore ways to achieve forgiveness on the deferred amounts, such as legislation. While nothing will be done until the Treasury issues guidance, employers will need to be mindful of this as the liability of this payment could fall on them depending on the final rule.
Unemployment benefits – The $600 per week unemployment benefit authorized by the CARES Act expired on July 31. The executive order retroactively authorizes $400 per week from Aug. 1; however, states must contribute $100 and the remaining $300 would come from the federal government. The funding for the federal portion would come from the FEMA Disaster Relief Funds and would continue until the earlier of Dec. 6, 2020, or a drop in the Fund balance to below $25 billion. The state portion is to come from federal funds already distributed to the states. Questions of whether the FEMA funds can be used for this purpose are still outstanding.
Evictions – The evictions portion of the executive order asks the secretary of HHS and director of CDC to consider whether halting residential evictions is reasonably necessary to help prevent further spread of COVID-19 and also authorizes the Treasury Secretary and HUD Secretary to consider potential financial assistance for renters. The CARES Act banned evictions through July 25 for properties with federal mortgage programs or HUD funds.
Student loans – The student loan interest deferral enacted by the CARES Act is set to expire Sept. 30, 2020. The executive order would waive student loan interest until Dec. 31, 2020, for loans held by the Department of Education only.
Final guidance is required from the respective agencies before some of these measures can be enacted. Contact us with questions.
The Small Business Administration (SBA) and Treasury released an updated Paycheck Protection Program (PPP) FAQ on Aug. 4 in an effort to address PPP loan forgiveness issues that have arisen as borrowers begin to complete their applications. The 23 FAQs address various aspects of PPP forgiveness including general loan forgiveness, payroll costs, non-payroll costs, and loan forgiveness reductions. Here is a brief overview of some of the most notable clarified guidance.
General loan forgiveness
- Sole proprietors, independent contractors, and self-employed individuals with no employees and no employee salaries included in average monthly payroll at the time of PPP loan application should use PPP Loan Forgiveness Application Form 3508EZ.
- Borrowers who submit their loan forgiveness application within 10 months of the completion of the covered period do not need to make payments until the forgiveness amount is remitted to the lender by the SBA.
- Borrowers who must repay a portion of the loan should know interest is accrued from the time of disbursement and the SBA remittance of the forgiveness amount. Borrowers whose full loan is forgiven do not need to pay the accrued interest.
Payroll costs forgiveness
- Owner-employee is defined as someone who is both an owner and an employee of a C corporation. This was not previously defined.
- Compensation limitation for owners is cumulative across all businesses if there are multiple.
- S corporation considerations
- Health insurance costs do not qualify as compensation for S corporation employees that own at least 2% of the business nor for family members of such employees.
- S corporation owner-employees with less than 2% ownership can count health insurance costs.
- Unemployment and state income taxes are eligible for forgiveness.
- Employer retirement contributions are eligible capped at 20.833% of 2019 contributions.
- C corporation considerations
- Forgiveness is allowed for employee shareholder compensation including state unemployment and income taxes and corporate contributions to employee health insurance.
- Employer retirement contributions are eligible capped at 20.833% of 2019 contributions.
- Employer contributions for retirement and group health benefits that were accelerated from periods outside of the covered period or alternative covered period are not eligible for forgiveness.
Non-payroll costs forgiveness
- Payments of transportation utility fees assessed by state and local governments are eligible for forgiveness.
- The alternative payroll covered period does not apply to non-payroll costs.
- Leases that existed prior to Feb. 15, 2020, but expired or renewed during the covered period are eligible for forgiveness.
- Interest payments on mortgage loans for real or personal property that existed prior to Feb. 15, 2020, but were refinanced during the covered period are eligible for forgiveness.
- Benefits are not to be included in the determination for a 25% reduction in employees’ hourly or salary wages.
- It is still unclear whether tips for restaurant employees are included, so restaurant owners may want to make up for lost tips to avoid the reduction.
- Borrowers should include employees who made more than $100,000 in 2019 when calculating FTE reduction exceptions.
The FAQ document also includes several examples for making calculations related to the above questions. Contact us for questions and assistance with your PPP loan forgiveness application.
Economic downturns are an almost inevitable reality for nearly every business owner. Decisions made far away from your community, catastrophic and unpredictable weather events, and even global pandemics as we’ve seen this year can disrupt the health and viability of a business. During these challenging times, business owners have to make difficult decisions about the future of their business that not only affect them but also their employees, vendors, clients, and communities. It’s an enormous responsibility to bear, but you don’t have to go it alone.
Your CPA advisor is your best resource for tackling the challenges of an economic downturn. As an outside party, they can help you make smart business decisions that protect your vision and mission while remaining financially responsible. Your CPA can help you:
Optimize your books
Never underestimate the power of good bookkeeping. By keeping your books in order, your CPA can help you plan and project for the future at each stage of an economic downturn. This includes planning for temporary closures and tiered re-openings (and potentially a back-and-forth of both depending on the state of the country and market). When your books are clean and up to date, you can better project how events and decisions will impact your finances on a weekly, monthly, and quarterly basis. Your CPA can help you flex the numbers on fixed and variable expenses to account for increases in costs, decreases in income, and potential changes to payroll. Knowing your numbers intimately can help you make better-informed decisions.
Minimize your tax burden
During times of economic crisis, staying abreast of new and changing tax legislation will be essential to projecting tax burden and uncovering tax savings opportunities. Your CPA is the best person to handle this because they know your business and your industry inside and out and can help you uncover tax savings opportunities that are unique to your circumstances. They do all the research, and you reap the rewards. With a CPA’s assistance, you achieve deductions and credits you may not have realized were available and develop a plan to defer costs where allowed depending on your business, industry, and location. Taxes are not an area you should or need to face alone during an economic downturn. Your CPA has done the homework, so you don’t have to.
Rationalize your decision making
When markets are in flux and your business is facing unprecedented challenges, the decisions you make can make or break your business. But you don’t have to go it alone. Your accountant can help you make data-informed decisions whether that be how to pay vendors, when and how to apply lines of credit, and the best ways to use your capital. Negotiating contracts with vendors that meet your needs and theirs during a downturn will not only achieve cost savings but also preserve relationships – your CPA can help develop a plan that makes sense. Knowing when to engage lines of credit can help you make better moves that you can either afford to pay back later, or maybe prevent you from taking on credit you can’t handle – your CPA can guide you in this process. Knowing where to allocate capital will be key to maintaining operations, and you may need guidance on what expenses to cut and what to keep such as marketing and payroll – your CPA can help you project the ramifications. With your CPA by your side, you don’t have to operate in a silo of decision-making.
Maximize your sense of relief
Most of all, your CPA can provide perspective, alleviate business back-end burden, and help advise you on financially feasible and sound decisions when much of the world feels like it’s in chaos. You have a lot to focus on during a downturn including how to handle your customers and employees in a changing marketplace. Having someone who can help you stay fiscally viable as you work through tough times, and develop a plan for future success, provides a welcome peace of mind.
You don’t have to go through any economic downturn alone. Your CPA can help you shoulder the challenges and weather the storms so you can continue doing what you do best – running your business.
The U.S. Senate and House of Representatives have both unanimously agreed to extend the Paycheck Protection Program (PPP) by five weeks in an effort to continue providing relief for small businesses hit hard by the pandemic. Applications officially closed for the program on June 30 when the Senate voted for a last-minute extension. President Trump is expected to sign the bill.
This extension would give small businesses until Aug. 8 to apply for a share of the approximately $129 billion in remaining PPP funding through the Small Business Administration (SBA). Thanks to the PPP Flexibility Act passed on June 5, recipients have 24 weeks to use loan funds for payroll and other essential expenses like rent/mortgage and utilities. The Flexibility Act also lowered the threshold for payroll expenses to 60% to achieve full forgiveness with a few safe harbor considerations. Over 4.9 million loans have been approved by the SBA so far, worth more than $520 billion.
Contact us for assistance in compiling information for your PPP forgiveness application to present to your lender.
In the midst of the uncertainty and instability that the COVID-19 pandemic has created for businesses and individuals, some relief is available for taxpayers in the form of deductible losses thanks to the preexisting Internal Revenue Code (IRC) Section 165(i). While the CARES Act and FFCRA have received much of the attention, taxpayers may also find relief thanks to Section 165(i) which allows for losses sustained as a result of the pandemic in 2020 to be claimed on the taxpayer’s 2019 tax return.
This deduction is triggered by a federally declared disaster, like the pandemic which was declared a national emergency on March 13, 2020. In the case of this deduction, losses attributed to federally declared disasters can be deducted on the previous year’s return. While not often used, this deduction comes at the right time for businesses struggling during the pandemic.
In order to claim the Section 165(i) deduction, losses must:
- Be attributable to a federally declared disaster
- Occur in a disaster area
- Not be compensated by insurance or otherwise
While some taxpayers will fit into this deduction, the rules and procedures are complex.
Examples of deductible losses as a result of COVID-19 vary from costs related to running your business during a pandemic like investments in personal protective equipment and cleaning supplies and services, to the closure of stores and facilities and disposal of unsaleable inventory. Other eligible costs include certain termination payments, losses from property sales or exchanges, abandonment of leasehold improvements, and nonrefundable event payments, to name a few.
To make the Section 165(i) election, taxpayers must include Form 4684, “Casualties and Thefts,” with their return within six months from the due date for filing the taxpayer’s federal income tax return for the disaster year.
We can assist you with identifying your deductible expenses and following the complex rules and procedures for making this election. Reach out for assistance.