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Employee retention credit receives clarification from new IRS guidance

August 25, 2021 Article 5 min read
Amy Forester Donny Lucaj

The IRS has weighed in on issues concerning the employee retention credit, such as the inclusion of COVID-19 relief funds in gross receipts and the treatment of tips in the calculation of qualified wages, providing answers to some open questions.

Business professional sitting at their desk using a red laptop computer on the desk.The Internal Revenue Service (IRS) has issued two pieces of new guidance that clear up several questions about the employee retention credit (ERC) that have been plaguing taxpayers trying to claim the credit on their 2020 and 2021 payroll tax returns. This new guidance answers some questions that date back to the enactment of the original credit in March 2020 and clarifies eligibility requirements and calculations for the credit through the third and fourth quarters of 2021. This is occurring at the same time that Congress is considering legislation that would shut down the ERC for most businesses on September 30.

PPP loan forgiveness, grants, and “gross receipts”

Since the ERC was originally enacted in 2020, taxpayers have been asking for clarification on the impact that other COVID-19 relief might have on a business’s gross receipts. Employers can qualify for the ERC in several ways. One method requires that an employer experiences a “significant decline in gross receipts” between the quarter in which eligibility is sought and the same quarter of 2019. Until the IRS released this recent guidance, taxpayers weren’t sure if COVID-19 relief amounts received from the government — such as Payroll Protection Program (PPP) loan forgiveness, shuttered venue operator grants, and restaurant revitalization grants — should be included in “gross receipts” when calculating a “significant decline.”

In Revenue Procedure 2021-33, the IRS created a special safe-harbor rule that allows taxpayers to exclude amounts received from the COVID-19 relief programs listed above from the calculation of “gross receipts” solely for the purpose of determining ERC eligibility. The safe harbor makes it clear that the amounts are still counted as gross receipts for all other tax purposes. By not mentioning any COVID-19 relief programs aside from the three listed above, the guidance implies that grants or loan forgiveness from any other program will continue to count as gross receipts for the ERC.

The IRS created a special safe-harbor rule that allows taxpayers to exclude amounts received from the COVID-19 relief programs.

Employee tips as “qualified wages”

IRS Notice 2021-49 answered several additional questions that had caused uncertainty for taxpayers hoping to claim the ERC. The notice confirmed tips received by employees count as “qualified wages” for employers calculating credit amounts and that employers could claim both an ERC and a FICA tip credit for the same tips.

The notice confirmed tips received by employees count as “qualified wages” for employers calculating credit amounts.

Treatment of owner wages

The new guidance is not so favorable for wages paid to those who own more than 50% of a business. In general, anybody related to a more-than-50% owner by blood or by marriage can’t be included in the ERC. Constructive ownership rules also apply when determining who is a more-than-50% owner. However, the rules don’t directly disqualify the owner from the ERC unless the constructive ownership rules are looked at broadly. The notice did exactly that, and concluded that the owner can’t be included in the ERC if that individual has a living sibling, spouse, ancestor, or lineal descendant (because that living family member will constructively own more than 50% of the business and the legal owner will be related to the constructive owner). So, wages paid to any person in the family of a more-than-50% owner, including the owner, are usually going to be disqualified from the ERC calculation.

Income tax impact

The notice also clarifies a timing issue related to adjusting wage expenses for the ERC. Employers can’t deduct wages that were used in the ERC calculation from taxable income up to the amount of the ERC. The new guidance states that an employer who deducted wages that were also the basis of an ERC claim must adjust income in the year the wages were paid, not the year the law was enacted or the refund claim was filed. Therefore, if an employer files a refund claim for an ERC for a quarter in 2020, the adjustment to taxable income equal to the ERC must also be included on its 2020 federal income tax return, even if that refund claim is filed in 2021 or later. Amended returns will be necessary for businesses that didn’t include adjustments on their 2020 returns.

New guidance for Q3 and Q4 while Congress considers an early end to ERC

The notice also provides information on two areas of expansion for the ERC in the third and fourth quarters of 2021. “Recovery startup businesses” become eligible for the ERC and “severely distressed employers” get to expand the amount of wages that they include in the ERC calculation. Recovery startup businesses are those that began operations after Feb. 15, 2020, and had less than $1 million in annual gross receipts. If they meet the criteria in the law, they calculate the ERC based on the same definition of “qualified wages” used by other eligible employers. The ERC for these businesses is limited to $50,000 per quarter.

Some businesses may qualify as “severely distressed employers” in the third and fourth quarters of 2021 if they experience a 90% decline in gross receipts compared to 2019. The notice provides examples of businesses that qualify as severely distressed and sets forth a process for those businesses to treat all wages paid to employees during that quarter as “qualified wages” for purposes of calculating the ERC.

Looking ahead

While the IRS was releasing guidance, Congress was considering legislation that would end the ERC for most eligible employers after September 30 of this year. The infrastructure bill that was passed by the Senate before the August recess includes a provision that would repeal the ERC for all businesses, with the exception of severely distressed employers, at the end of the third calendar quarter. Congress’ rationale for this repeal was that employers weren’t taking advantage of the program while many businesses assert that delays at the IRS have prevented them from obtaining ERC refunds, making it hard for Congress to understand the real magnitude of the outstanding credits. The House still must consider the infrastructure bill, so it’s impossible to say if the provision will be included in any final bill that may be sent to the president.

If you have any questions about how this new guidance on the ERC affects your business, please contact your Plante Moran advisor. 

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