Paycheck Protection Program Flexibility Act Signed Into Law

On Friday, June 7, 2020, the President signed the ‘‘Paycheck Protection Program Flexibility Act of 2020’’ (PPPFA) into law. This Act, recently passed in Congress by large bipartisan votes, makes a number of significant changes to the Paycheck Protection Program (PPP), which was passed by Congress on March 25, 2020, as part of the Coronavirus Aid Relief, and Economic Security (CARES) Act.

Here are the key changes made by Paycheck Protection Program Flexibility Act:

  • The Eight-week “Covered Period” is Extended to 24 weeks. The CARES Act required that borrowers under the PPP program spend the loan proceeds in just eight weeks. Many businesses found this a difficult challenge that would cause the unspent portion of their loan to be ineligible for the PPP’s loan forgiveness rules.  Borrowers now have a full 24 weeks (or December 31, 2020, if earlier) from their loan funding date to spend the loan proceeds.
  • Rehiring Safe Harbor Rules Extended. To receive maximum loan forgiveness, the CARES Act required borrows to maintain full-time equivalent employees at a level that existed prior to the Coronavirus pandemic and maintain compensation of full-time equivalent employees of at least 75{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of prior compensation levels. However, if the borrower had furloughed employees, they did not have to take those cuts into account if the levels of full-time equivalent employees were rehired and their wages are restored to previous levels by June 30, 2020.  The Paycheck Protection Program Flexibility Act extends this safe harbor date to December 31, 2020.
  • Flexibility if Unable to Re-Hire Employees. In addition to the extension of the safe-harbor date, the amount of a borrower’s loan forgiveness will not be reduced if the borrower can document that it was unable to rehire employees due to compliance with requirements established or guidance issued by Health and Human Services (HHS), the Centers for Disease Control and Prevention, (CDC), or the Occupational Safety and Health Administration (OSHA) during the period beginning on March 21, 2020, and ending December 31, 2020, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
  • PPP “75/25” Spending Rule Changed to a 60/40-Rule. While not in the CARES Act, a Small Business Administration (SBA) rule and the PPP loan application required that at least 75{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of a PPP borrower’s loan proceeds be spent on “payroll costs,” as defined in the CARES Act. PPPFA formally codifies this rule but gives borrowers the flexibility to spend up to 40{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} on qualified non-payroll expenses such as rent, mortgage interest and utilities.
  • Extension of Loan Deferral Period. The CARES Act required that if a loan was not forgiven, the payment of principal and interest on the loan was deferred for six months. After six months, the accrued interest became payable. PPPFA requirements provide for a complete payment deferral until the loan forgiveness amount is remitted by the SBA to the lender (thus satisfying the loan obligation), provided that the borrower applies for the loan forgiveness within 10 months after the end of the covered period. If the borrower does not apply for loan forgiveness, then amortized payments would be required under the loan.
  • Extension of Loan Maturity from Two Years to Five Years. While the CARES Act did not initially provide for a minimum loan maturity period, an SBA rule administratively set the minimum loan maturity date at two years. PPPFA in effect overrode that administrative decision, requiring that any new PPP loans effective after PPPFA must have a minimum maturity of five years. For PPP loans existing prior to the effective date of PPPFA, PPPFA provides that nothing in its enactment shall be construed to prohibit lenders and borrowers from mutually agreeing to modify the maturity terms of a PPP loan to confirm those existing loans to the new five-year maturity requirement.
  • Payroll Tax Deferral for PPP Borrowers. The CARES Act allows employers to defer payment of the employer’s portion of Social Security taxes due on employment compensation from March 27, 2020 through December 31, 2020. Such deferred tax must then be paid in two equal installments no later than December 31, 2021 and December 31, 2022, respectively. However, the CARES Act did not permit this deferral option to a PPP borrower after a PPP loan is forgiven. This rule was changed by PPPFA, thus allowing PPP borrowers to utilize this deferral option, even though their PPP loan is forgiven.
  • More Guidance Expected. PPPFA is effectively “a change of the rules in the middle of the game,” as many PPP borrowers are in the middle of their original eight-week “covered period” in which they were required to spend their PPP loan proceeds. We expect the Treasury Department and the SBA to issue further administrative guidance to help answer the likely questions from PPP borrowers as they adapt to the new rules. SYK will continue to monitor these developments.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

 

Notice and Comment Period for Proposed Corporate Activity Tax (“CAT”) Rules Ends

Time marches on and the time to comment on several of the Oregon Department of Revenue’s Corporate Activity Tax (“CAT”) rules ends today, May 26 at 5pm. While the Oregon State Bar Taxation Section did not officially comment on the rules, three attorneys, including Samuels Yoelin Kantor, LLP’s Valerie Sasaki, did submit comments on the math problem that is Proposed OAR 150-317-1200. Essentially, the CAT is only imposed on a taxpayer’s Oregon receipts. The question of how to calculate that though, has led to what we believe are some unintended, flawed results for taxpayers that have costs and labor concentrated relative to certain income streams.

While the section did not officially comment, several folks whose names don’t appear on the final comments contributed to discussing the comments and accompanying examples, which you can find below as downloads. We are proud to practice as a part of a community that values good tax policy, even in difficult times.

View comments on OAR 150-317-1200 and examples.

Valerie Sasaki specializes in jurisdictional tax consulting, working closely with Fortune 50 companies involved in audits before the Oregon or Washington Departments of Revenue. She also works with business owners on tax, business, and estate planning issues in Oregon or Southwest Washington.

Retirement Plan Participant May Elect Loan Repayment Deferrals

The Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 does more than aid small businesses. In addition to the PPP loans that received the bulk of the media attention, the CARES Act authorizes qualified retirement plan sponsors to amend retirement plans (401(a), 401(k), 403(b) and government plans) to help participants (qualified employees) who have been adversely economically impacted by the Coronavirus by allowing the deferral of loan payments. Once such an amendment is implemented by a plan sponsor, participants who have outstanding loan amounts from the qualified retirement plan may elect to defer loan payments for up to one year (with interest accruing) between now and December 31, 2020.

The retirement plan participant may elect loan repayment deferrals if they meet one of the following criteria:

  1. They are diagnosed with the Virus by a test approved by the CDC;
  2. Their spouse or dependent is diagnosed with the Virus by a test approved by the CDC; or
  3. They experienced adverse financial consequences as a result of being quarantined, being furloughed or laid off or having work hours reduced due to such virus or disease, being unable to work due to lack of child care due to such virus or disease, closing or reducing hours of a business owned or operated by the individual due to such virus or disease, or other factors as determined by the Secretary of the Treasury.

During any deferral period, interest would continue to accrue. Once loan payments recommence, the accrued interest is included in loan calculations to determine the new payment amounts.  The date of the final payment is adjusted by the length of time deferred. The Plan Sponsor may rely on an employee’s certification that the employee satisfies the condition.

Eric Wieland puts his mastery of tax law and sharp attention to detail to work in his practice. He focuses on the areas of Estate Planning, Business Planning, Taxation, Qualified Retirement Plans, ERISA Compliance, and Trust and Estate Administration. The belief that no two clients are alike and no set of legal circumstances or objectives are the same ­ is at the heart of his specialized, individual approach.

SBA Announces Reopening of Paycheck Protection Program (PPP)

The Small Business Administration (SBA) has announced that it will resume accepting Paycheck Protection Program (PPP) applications from participating lenders on Monday, April 27, 2020 at 10:30 am EDT.  The announcement comes following the April 23, 2020, passage by Congress of H.R.266, the “Paycheck Protection Program and Health Care Enhancement Act.” The President signed the bill into law on April 24, 2020. Among other appropriations to respond to the COVID-19 crisis, the bill adds an additional $310 billion in funding for the PPP.  The initial $349 billion in funding was exhausted in less than two weeks following the launch of the PPP.

The second round of funding is expected to also be depleted quickly. Therefore, potential borrowers that failed to receive funding in the first round of PPP should contact their lender as soon as possible to confirm that their loan applications are active.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

Treasury Department Releases Additional Guidance on Paycheck Protection Program

On April 8, 2020, the U. S. Treasury Department updated its “Frequently Asked Questions (FAQs)” guidance on the Paycheck Protection Program (PPP) that is being administered by the Small Business Administration (SBA). While this document was previously issued by the Treasury Department, it has been updated to address some of the questions that borrowers and lenders have raised as lenders have been inundated with applications for the forgivable loans under the PPP. Congress is currently considering allocating another $200 to $250 billion to the PPP.

Here of some of the highlights under the FAQs:

  • Computing the $100,000 Cap. For purposes of computing a borrower’s “payroll costs” (which is then multiplied by 2.5 to determine a borrower’s loan amount up to $10 million), the $100,000 cap on an individual’s compensation is limited to “cash compensation,” and does not include employer contributions to defined-benefit or defined-contribution retirement plans (e.g. employer 401(k) contributions), group health care coverage including insurance premiums, and state and local taxes assessed on employee compensation.
  • Vacation, Family Leave, Etc. PPP loans cover payroll costs, including costs for employee vacation, parental, family, medical, and sick leave. However, this does not include qualified sick and family leave wages for which a credit is allowed under the recently passed Families First Coronavirus Response Act.
  • Time frame of Payroll Costs Calculation. In calculating “payroll costs” for purposes of determining a borrower’s loan amount, borrowers can calculate their aggregate payroll costs using data either from the previous 12 months or from calendar year 2019.
  • Independent Contractors. Any amounts that an eligible borrower has paid to an independent contractor or sole proprietor are excluded from the “payroll costs” calculation. However, independent contractors and sole proprietors are themselves eligible to apply for their own PPP loans.
  • Use Gross Wages for Calculation. “Payroll costs” are based upon an employee’s gross compensation (i.e. not after-tax withholdings). However, the employer-side federal payroll taxes imposed on employee’s compensation is excluded from the payroll costs calculation.
  • Spending the PPP Money. For purposes of computing the loan amount that is eligible to be forgiven under PPP, the borrower must spend the loan proceeds within eight weeks beginning on the date “the lender makes the first disbursement of the PPP loan to the borrower.” The SBA has previously indicated that, for purposes of the loan forgiveness requirement, no more that 25{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the loan proceeds can be used for non-payroll costs permitted under PPP (i.e. rent, interest on mortgage obligations and utility payments).

The FAQs still do not address whether the income allocation to partners in a business taxed as a partnership are included in the payroll costs calculations. Our experience is that lenders have varying interpretations of this issue. Hopefully, more guidance with continue to be provided by the SBA and Treasury Department on this and other issues that have arisen under the PPP.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

Contracts, Coronavirus, and Force Majeure: How Does COVID-19 Affect Contract Obligations?

When I was a first year law student I learned about contract formation, contractual obligations, and breach of contract. We also learned about a term called Force Majeure. You may have recently seen the term.

Force Majeure is a French term that means something along the lines of “superior or irresistible force”, but it is also a term used in conjunction with contract law. In the context of contract law, force majeure is an uncontrollable event that prevents a party from fulfilling their contractual obligations. Force majeure is commonly thought of as a provision included in the terms and conditions of a contract. But, because “uncontrollable events which prevent a party from fulfilling their contractual obligations” seldom occur, especially on a wide spread basis, force majeure provisions aren’t invoked very often.

I have reviewed many contract provisions meant to excuse a party’s performance under a contract when circumstances beyond their control (such as wars, strikes, government actions, Acts of God, natural disasters) make it so that they can’t perform their obligations, but the events meant to invoke or trigger such contract provisions don’t occur very often. The current COVID-19 outbreak may qualify as such an event, especially in light of the fact that World Health Organization has declared COVID-19 a pandemic and the Governors of Oregon and Washington have issued shelter in place orders and have prohibited many commercial activities. The coronavirus pandemic will cause numerous businesses to not be able to perform their contractual obligations.

A business unable to perform its contractual obligations as a result of COVID-19 should determine if their contract includes a force majeure provision which excuses or delays their performance because of an uncontrollable event, such as the current outbreak. Because of the widespread affect coronavirus has and will have on the ability of a business to fulfill their contractual obligations, force majeure provisions will likely become heavily debated. Professionals across the country have already begun to discuss force majeure provisions and their effect on contract obligations.

Whether or not a force majeure provision excuses or delays a party’s obligation under a contract depends upon the specific language of the provision and the surrounding facts and circumstances. Every situation is different. But, even if a contract does not include a force majeure or similar provision, there may be other legal doctrines that excuse or delay performance, including impossibility or frustration of purpose. This is especially true in light of the recent government stay at home orders and prohibition of many commercial activities. In addition, as a general rule, recognized legal treatises hold that performance prevented by an act of God or other uncontrollable event may be excused.

The outbreak has had an adverse impact on many businesses. It is my hope that parties to a contract will act promptly and honor their implied duty to act in good faith and deal fairly with one another while addressing the adverse affects of the outbreak. If so, it won’t be necessary to argue over whether or not a contract provision, government action, or legal treatise excuses a party from performance under a contract.

If the outbreak has or will affect a party’s ability to fulfill their contract obligations, they should promptly notify the other party to their contract. The sooner the better. We don’t know how long it will take for the situation to improve. Document your communications. Provide details with regard to the impact on your business.

Whether the outbreak causes a business to not be able to provide the goods or services they contracted to provide or delays their ability to do so, or causes them to not be able to pay their bills, rent, or mortgage, if they want their performance to be excused or delayed they should act promptly and be transparent. If concessions or delayed performance are being sought by a party to a contract, they may be asked if they have sought assistance through the government relief programs or insurance coverage. Parties seeking to be excused from performance under a contract should be prepared to provide financial information regarding the impact of the outbreak and a business plan to address the impact.

Because every situation is different, if your business has or will be unable to perform your contractual obligations because of the outbreak, you should consider consulting with an attorney. Samuels Yoelin Kantor is available to assist with the legal issues raised by the COVID-19 outbreak.  If you need legal advice or guidance, please feel free to reach out to us. Even if we’re working remotely, we’ll promptly get back to you.

Van M. White III has more than 20 years of experience as a lawyer in Oregon and Washington. Van has been a partner at Samuels Yoelin Kantor since 2001 and has served on the firm’s management committee since 2010.

How to Prepare for Bankruptcy

This sudden economic downturn will cause a large number of individuals and corporate entity debtors to consider bankruptcy in order to get a better handle on their financial situation. While many associate declaring bankruptcy as an admission of failure or destitution, bankruptcy can actually offer debtors a path toward recovering from a devastating financial situation. When considering whether bankruptcy is the right option for your situation, it is essential to have a basic understanding of how bankruptcy works and the initial actions you should take should you need to proceed with bankruptcy.

Understand the Different Types of Bankruptcy

The different types of bankruptcy are referred to as “Chapters”, and likely only one form will apply to a specific situation.

  • Chapter 7 Liquidation
    • The simplest and most common bankruptcy, a “straight bankruptcy”.
    • Individuals and most corporate entity debtors can qualify for Chapter 7.
    • Debtors are not required to submit to a repayment plan, but it does require liquidation of all nonexempt assets to payback creditors.
  • Chapter 11 Reorganization
    • Form of bankruptcy for both individuals and corporate entity debtors.
    • Rather than liquidation, the debtor submits a reorganization plan that explains how it will be able to repay creditors over a period of time.
  • Chapter 13 Debt Adjustment
    • Form of bankruptcy for individual debtors only.
    • The individual debtor must have a certain level of income to qualify.
    • Rather than liquidating all assets, it allows the debtor to protect certain property and have enough time to pay off your debts within a monthly payment plan.

There are other much less common chapters of bankruptcy, but 7, 11 and 13 are the most utilized.

To properly prepare for bankruptcy, there are also a number of steps we recommend.

Gather Financial Statements

Regardless of the form of bankruptcy applicable to the situation, the first step requires getting financial statements in order. Order copies of all banking and financial account statements, obtain past filed federal and state tax returns, and figure out your income level from pay stubs, Form W-2 and Form 1099 and more. Depending on the amount of disposable income available, a debtor may or may not qualify for different chapters of bankruptcy.

Prepare an Asset List

Bankruptcy also requires a list of all assets and property owned. This does not mean listing out every piece of furniture or article of clothing, but rather a list of every significant asset that has actual value. Real property, bank accounts, investment accounts, retirement accounts, vehicles, luxury items all need inclusion on an asset list.

Get Current with Taxes

Debtors not current with their federal and state taxes will often encounter great difficulties in qualifying for bankruptcy. Tax returns determine past and current earning and asset holdings, and inform the IRS whether a debtor owes any additional taxes beyond W-2 withholding or past payments made. Any tax owed on returns not yet filed is also not dischargeable in bankruptcy.

Prepare a List of Creditors

Bankruptcy requires a debtor’s complete disclosure of all debts not only to the court, but also to all creditors. Any creditor left out will not be included in the bankruptcy, which could cause massive complications for a debtor thinking it will get a clean slate. Ordering a credit report from one of the three major credit agencies is a good way to confirm that no creditor is left off the list. The creditor list needs to include all secured, unsecured, and priority unsecured creditors. If you owe back taxes, the IRS is also considered a creditor.

Avoid Fraudulent Transfers

In the period leading up to a bankruptcy, a debtor’s actions and transfers will receive heavy scrutiny from both the court and creditors. If one attempts to sell, transfer or hide assets before a bankruptcy, the court may block the discharge of any debts and the debtor may even be subjected to criminal penalties. Payments in the ordinary course of business are permitted, and transfers or sales made in furtherance of paying debts and expenses are also allowed, but may require additional explanation and verification from the court and creditors. Also avoid preferential transfers to family member debts as those will also be potentially considered fraudulent transfers.

Retain Qualified Counsel

Navigating the complex bankruptcy laws also requires having effective legal representation. Our team of experts at SYK can help you make the right decisions and provide the advice you need in the event of bankruptcy.

 

Nicholas Rogers - Attorney

Nicholas D. Rogers joins SYK Estate Planning and Taxation practice with a passion for helping individuals, small business and nonprofits. His practice includes a focus on estate planning, federal and state tax controversy, business formation and planning, as well as trust and estate administration.

U.S. Treasury Releases Paycheck Protection Program Loan Application, Additional Information

On March 31, 2020, the U.S. Treasury Department released the initial loan application for borrowers under the “Paycheck Protection Program,” a Small Business Administration (SBA) forgivable loan program that is part of the CARES Act passed by Congress last week.  In addition, the Treasury Department provided borrowers with an “Information Sheet” for borrowers under the program.

Here are some notable highlights from these releases:

  • On the loan application, the borrower and each 20{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} or greater owner of the borrower must make certain certifications, including that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations” of the borrower, and the loan will be used “to retain workers and maintain payroll or make mortgage payments, lease payments, and utility payments.”
  • With respect to the future applications to potentially forgive the loan, the application states that “[d]ue to likely high subscription, it is anticipated that not more than twenty-five percent (25{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6}) of the forgiven amount may be for non-payroll costs.”
  • The Information Sheet states that borrowers can begin applying for the Paycheck Protection Loans on April 3, 2020 and includes a link to help borrowers locate a local SBA lender.

A link to the loan application can be found HERE.

A link to the Information Sheet can be found HERE.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

COVID-19: Changes in Federal Tax Law You Need to Know

In response to the COVID-19 pandemic, the last few weeks have seen an unprecedented series of legislative actions by Congress, as well as a number of significant administrative actions by the Internal Revenue Service. Here is a brief synopsis of federal tax extensions and changes due to COVID-19.

Federal Filing and Payment Deadlines Extended

Initially, the IRS only offered a payment deadline extension in response to COVID-19. However, after much pressure, the IRS in response has instead provided much more comprehensive relief to mostly taxpayers in the U.S.

All taxpayers refers to: individuals, trusts, estates, (some) partnerships, associations, companies (including LLCs), corporations, nonprofits, and more that have a filing date of April 15, 2020.

  • For all taxpayers who are required to file a federal income tax return and/or submit a federal income tax payment for the 2019 tax year, due on April 15, 2020, the due date for both filing and paying is extended to July 15, 2020. This applies to all taxpayers regardless of the amount of their federal tax obligation.
  • This applies to all filers of Forms 1040, 1040-SR, 1040-NR, 1040-NR-EZ, 1040-PR, 1040-SS, 1041, 1041-N, 1041-QFT, 1120, 1120-C, 1120-F, 1120-FSC, 1120-H, 1120-L, 1120-ND, 1120-PC, 1120-POL, 1120-REIT, 1120-RIC, 1120-SF, 8960 and 8991.
  • For self-employed taxpayers, relief is also provided for making federal estimated income tax payments.
  • The period of April 15, 2020 through July 15, 2020 is considered disregarded for the purposes of calculation of any interest, penalty, or addition to tax for failure to file the income tax returns or pay the income tax owed. Interest, penalties and any additions of tax will begin to accrue again on July 16, 2020.
  • No extension is provided for the payment or deposit of any other type of federal tax- including federal estate and gift tax.
  • Important to note that any taxpayer returns that were due on March 16, 2020, which include Form 1065, 1065-B, Form 1066, and Form 1120-S, are not included in any of the COVID-19 extensions for both filing and payment. However, any timely filed extensions will still extend the due date six months as normal.
  • For fiscal year taxpayers, if their federal income tax return for the fiscal year ending during 2019 is due on April 15, 2020, whether that is the original due date or the extension date, the taxpayer’s filing due date is postponed to July 15, 2020.

For taxpayers that qualify for extension, no additional form is required for the July 15, 2020.  Any additional extension beyond July 15, 2020 will require filing Form 4868 as usually required.

Business Tax Credits

On March 18, 2020, President Trump signed into law the Families First Coronavirus Act which eases compliance burdens on businesses. Additional business credits were then signed into law through the Coronavirus, Aid, Relief and Economic Security Act (CARES) on March 27.

Payroll Sick Leave Credit

The Emergency Paid Sick Leave Act (EPSLA) requires private employers with fewer than 500 employees to provide 80 hours of paid sick time to employees who are unable to work for virus-related reasons (certain exceptions may apply to less than 50-employee businesses). The pay is up to $511 per day with a $5,110 overall limit for each employee directly affected by the virus and up to $200 per day with a $2,000 overall limit for an employee providing care for someone with the virus.

The employer is allowed to receive a tax credit against their 6.2{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of the Social Security (OASDI) payroll tax (commonly known as the Railroad Retirement tax). This credit amount tracks to the per-employee limits described above. This credit can also be increased by both the amount of expenses in connection with a qualified health plan if the expenses are excludible from employee income, and the employer’s share of the payroll Medicare hospital tax imposed on any payments required under the EPSLA. Any credit amounts earned in excess of the 6.2{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} Railroad Retirement tax are refundable. The credit applies to wages paid in a period beginning no later than April 2, 2020, and ending on December 31, 2020.

Self-Employed Sick Leave Credit

Self-employed persons also qualify for a sick leave credit.  The credit treats the self-employed person as both the employer and employee for credit purposes. The $5,110 and $2,000 limits as described above in EPSLA, also apply here unless the self-employed person has insufficient self-employment income based on a formula. The credit applies to wages paid in a period beginning no later than April 2, 2020, and ending on December 31, 2020.

Payroll Family Leave Credit

The Emergency Family and Medical Leave Expansion Act (EFMLEA) requires employers with fewer than 500 employees to provide both paid and unpaid leave. This leave occurs when an employee must take care of a minor child due to a COVID-19 related emergency. The first 10 days can be unpaid, but then paid leave is required, based on the employee’s pay rate and pay hours. The leave cannot exceed $200 a day or $10,000 total per employee.

The corresponding tax credit functions substantially similar to the payroll tax credit described above. The credit is against the same 6.2{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} Railroad Retirement Tax, and tracks to the $200 and $10,000 dollars employee limits described above.

Self-Employed Family Leave Credit

The Act also provided the self-employed a similar refundable income tax credit for family leave. The self-employed person is treated as both employer and employee for purposes of the credit. The credit is subject to a $10,000 limit, and may be reduced if there is insufficient self-employment income determined by formula.

Wage Exemption

Any wages paid as required sick leave payments for either EPSLA or EFMLEA are not considered wages for purposes of the employer’s 6.2{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} portion of the payroll tax, again often referred to as the Railroad Retirement Tax.

Employee Retention Credit for Employers

For eligible employers who have their operations fully or partially suspended as a result of government order, or who have experienced a greater than 50{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} reduction in quarterly receipts, measured on a year-over-year basis, the provision provides a refundable payroll tax credit for 50{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} of wages to certain employees. Employers receiving Small Business Interruption Loans do not qualify for the credit. The qualifying wages depend on whether the employer has an average number of full-time employees in 2019 of 100 or fewer, if so, all employee wages are eligible.  If over 100 full-time employees, only the wages of furloughed employees or faced a reduction of hours as a result of employer’s closure or reduced gross receipts are eligible for the credit.

Other Changes in the Federal Tax Code

Recovery Rebates for Individuals

The CARES Act provides individuals with a refundable credit against income taxes they owe for the 2020 tax year equal to $1,200 ($2,400 for joint filers), not to exceed the tax liability for the year. Any taxpayer that has qualifying income (earned income, social security, and/or pension income), taxable income greater than zero, and gross income greater than the standard deduction, then the taxpayer is entitled to a refundable credit of at least $600 ($1,200 for joint filers), plus $500 per qualifying child. The phase-out begins at $75,000 ($150,000 for joint filers).

Payroll Tax Deferment

The CARES Act also allows employers and self-employed individuals to defer paying the employer portion of certain payroll taxes through the end of 2020. Half of the deferred amount of payroll taxes will be due December 31, 2021, and the remaining half will be due December 31, 2022. Any taxpayer receiving a Small Business Act Loan are excluded from this deferral program.

Deductibility of Interest Expenses Temporarily Increased

The Cares Act temporarily and retroactively increases the limitation of the deductibility of interest expense under Code Sec. 163(j)(1) from 30{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} to 50{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} for tax years 2019 and 2020.

Temporary Repeal of Taxable Income Limitation for Net Operating Losses (NOLs)

The Cares Act temporarily removes the taxable income limitation to allow an NOL to fully offset income. This will apply to the 2018, 2019 and 2020 tax years, allowing taxpayers to file amended returns and receive refunds for those that qualify.

Net Operating Loss (NOL) Rule Changes

Any losses arising in 2018, 2019, and 2020 can be carried back to the five preceding years. For any NOLs arising in tax years before 2021, those carrybacks may offset 100 percent of income for the prior 5 years. An amended return may be filed to claim the benefit back to the 2013 tax year.

Cancellation of Indebtedness Income

For small businesses that receive certain loans from the government under the CARES act, any such forgiveness of the loan granted to these taxpayers shall not be considered income.

More Changes Likely to Come

As the situation develops, we will continue to document additional changes made at the federal level.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.

Nicholas Rogers - Attorney

 

Nicholas D. Rogers joins SYK Estate Planning and Taxation practice with a passion for helping individuals, small business and nonprofits. His practice includes a focus on estate planning, federal and state tax controversy, business formation and planning, as well as trust and estate administration.

Congress Passes CARES Act, Adds Forgivable Loan Program for Small Businesses

Congress passes the CARES Act, by 96-0 vote. Adds forgivable loan program for small businesses.

Late in the evening on March 25th, the United States Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) by a vote of 96-0. The House passed the Act on Friday, March 27th. President Trump signed the Act into law a few hours later. While SamuelsLawBlog.com will provide additional details on the CARES Act in the coming days, here are additional details of the Act’s significant $349 billion expansion of the Small Business Administration’s (“SBA”) Section 7(a) loan program:

Eligibility Requirements.

Small business and nonprofit organizations are eligible if they have not more that 500 employees (or the SBA’s applicable size standard for the industry, if higher). Independent contractors and other self-employed individuals are also eligible for loans.

Maximum Loan Amounts.

Business will be able to borrow the lesser of: (i) $10 million; or (ii) the business’s average monthly payroll costs during the prior year, times 2.5, plus any outstanding principal owed on SBA disaster loans entered into after January 31, 2020. For this purpose, payroll costs include salaries and wages (but excluding annual compensation to any individual in excess of $100,000), commissions, tips, health insurance premiums, retirement benefits, state and local taxes assessed on employee compensation, as well as vacation, parental, family medical or sick leave benefits. Qualified sick leave and family leave wages under the recently-passed Families First Coronavirus Response Act are not to be included in the calculation of monthly payroll costs for purposes of this calculation.

Use of Loan Proceeds. 

Borrowers under this program can use the loan proceeds to cover costs for payroll (including sick, medical, and family leave, and health benefits), rent, mortgage interest payments (not principal), utilities, and interest on any other debt obligations that were incurred before February 15, 2020.

Loan Terms.

The Act caps the maximum interest for these loans at 4 percent. If the loan is not forgiven (see below), the remaining loan balance will have a maturity of not more than 10 years. Additionally, the Act waives collateral and personal guarantee requirements under the 7(a) program.  Loan payments under this program can be deferred for at least six months and not more than a year.

Loan Forgiveness

Borrowers that receive loans under this program would be eligible, under certain circumstances, to have a portion of these loans forgiven. The total amount of loan forgiveness would not be allowed to exceed the amount of 7(a) loans granted by the CARES Act but would otherwise be equal to the amount of expenditures of the borrower made in the 8 weeks following the loan’s closing on payroll costs, including payroll costs for tipped workers in excess of their normal pay level, mortgage interest (not principal), rental payments, and utilities, in each instance for arrangements that were in place prior to February 15, 2020.

Reduction in Loan Forgiveness Amount.

The policy behind the loan forgiveness provisions is to encourage businesses to keep employees on the payroll. Therefore, the amount that can be forgiven is reduced proportionally by the reduction in employees as compared to a prior base period (i.e. at the election of the borrower, either: the period from February 15, 2019 to June 30, 2019, or the period from January 1, 2020 to February 29, 2020). The amount of loan forgiveness would also be further reduced for any reduction in wages to an employee beyond a 25{45ef85514356201a9665f05d22c09675e96dde607afc20c57d108fe109b047b6} reduction in compensation compared to the prior year’s compensation. This would only apply to employees that earn not more than $100,000 on an annualized basis in any pay period. For employees that are laid off or that have their wages cut between February 15, 2020 and 30 days after passage of the Act, the borrower will not have to take those cuts into account if those employees are rehired or their wages are restored to prior levels by June 30, 2020.

Tax Free Loan Forgiveness.

Interestingly, the CARES Act also states that the amount of loan forgiveness provided under the Act is not included in the borrower’s income (i.e. the forgiveness is tax free!).

Timing of Loan Program.

The CARES Act allows the SBA to move quickly to approve loans under this program.  Once a lender receives an application for loan forgiveness, they have 60 days to issue a decision on the application.

Michael D. Walker is a business, tax and estate planning attorney who has worked with individuals and small to medium-sized businesses for nearly 30 years. A careful listener, Michael skillfully guides his clients to meet the wide variety of legal challenges they face in our current complex world.