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Coronavirus COVID-19 Tax Update
This is your federal and state resource to learn more about revised tax deadlines and key tax information related to the coronavirus COVID-19 response.
Key Tax Updates
Federal
With the ECRA, the U.S. government clarified that expenses made with forgiven PPP funds will be fully deductible under regular business deduction rules.
With the ECRA, the U.S. government also clarified that interest and principal payments made by the government on borrowers' SBA 7(a) loans will not be included in gross taxable income.
For the 2019 tax year, the Treasury Department and Internal Revenue Service (IRS) provided special payment and filing relief to individuals and businesses in response to the COVID-19 outbreak. For the 2019 taxable year, income tax payment and filing deadlines were automatically extended until July 15, 2020. This relief applied only to federal income tax payments (including payments of tax on self-employment income), due on April 15. No such changes to the tax filing deadlines for the 2020 tax year have been made.
Employee Retention Tax Credit (ERTC)
The employee retention tax credit (“ERTC”), which is found in Section 2301 of the CARES Act. The ERTC has recently been updated by the CAA passed in December 2020. Under the CARES Act for 2020, the ERTC provided a refundable payroll tax credit for 50 percent of qualified wages up to a maximum of $5K per employee paid by employers to employees during the COVID-19 pandemic. Under the CAA for 2021, this tax credit is increased to 70 percent of qualified wages up to a maximum of $7K per employee. The credit is available to employers whose (1) operations were fully or partially suspended, due to a COVID-19-related shut-down order, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in 2019 for 2020 tax credits or by more than 20 percent for 2021 tax credits, all measured on a quarter-by-quarter basis.
For employers with greater than 100 full-time employees, qualified wages are wages paid to employees when they are not providing services due to the coronavirus-related circumstances described above. For eligible employers with 100 or fewer full-time employees, all employee wages qualify for the credit, whether the employer is open for business or subject to a shut-down order.
The first hurdle a business has to overcome to obtain the tax credits is fitting the definition of a “qualified business.” A business meets the definition when (1) operations were fully or partially suspended, due to a COVID-19-related shut-down [government mandated] order, or (2) gross receipts declined by more than 50 percent when compared to the same quarter in the prior year. The Act does not give precise definitions as to what constitutes either “partial” or “full” suspensions of operations, but arguments abound in many scenarios which would give employers a good faith basis to argue their operations were at least “partially” suspended due to the outbreak. Of course, if employers’ gross receipts declined by more than 50 percent compared to the same quarter last year, then they automatically qualify as a “qualified business” and the partial suspension argument is moot.
If the employer is a qualified business, then the second hurdle is determining if wages are “qualifying wages.” If the qualified business (with over 100 employees) is paying wages to employees that are unable to perform services due to full or partial suspension of operations or due to a loss of more than 50% of gross receipts, then those wages are deemed “qualified wages” and the credit applies. There is ambiguity regarding “performing services” and the act does not elaborate on this definition. Please note that even if the wages are qualified wages, there is a limitation clause that qualified wages may not “exceed the amount such employee would have been paid for working an equivalent duration during the 30 days immediately preceding such period.” Notably, the credit is provided for the first $10,000 of compensation, including health benefits, paid to an eligible employee. Wages paid under the FFCRA are not included as “qualified wages.” The credit is provided for wages paid or incurred from March 13, 2020 through December 31, 2020.
The ERTC allows a credit in each calendar quarter against the Old Age, Survivors, and Disability Insurance (“Medicare”) tax – or the Tier 1 tax imposed on employers subject to the Railroad Retirement Tax Act under 3221(a) of the IRC (“Tier 1 Tax”) – in the amount of 50 percent of wages ($5K max) paid by employers to employees during the COVID-19 crisis for 2020, and 70 percent ($7K max) for 2021. The amount of the credit is not to exceed the applicable employment taxes (i.e., the Medicare Tax or the Tier 1 Tax), as reduced by any credits allowed under IRC Section 3111(e)(credit for employment of qualified veterans) and IRC Section 3111(f)(credit for research expenditures of qualified small businesses) and Sections 7001 and 7003 of the Families First Coronavirus Response Act (which provide for a tax credit against amounts equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by an employer with respect to such calendar quarter) on the wages paid with respect to the employment of all the employees of the eligible employer for such calendar quarter.
Therefore, the “applicable employment taxes” (i.e., Medicare or Tier 1 taxes) are first reduced by the presently available credits (i.e., IRC Sections 3111(e) and (f), and those available under the FFCRA), and then further reduced by the ERTC credit.
If the amount of the ERTC exceeds the applicable employment taxes for any calendar quarter, such excess shall be treated as an overpayment that shall be refunded under sections 6402(a) (refunding of overpayments) and 6413(b) (same) of the Internal Revenue Code.
Paid Sick and Family Leave (FFCRA)
Small and midsize employers can still take advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing coronavirus-related leave to their employees. The CARES Act and ECRA gave all American businesses with fewer than 500 employees funds to provide employees with paid leave. Legislation will enable employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their pay checks and the public health measures needed to combat the virus. • Paid Sick Leave for Workers For COVID-19 related reasons, employees receive up to 80 hours of paid sick leave and expanded paid child care leave when employees’ children’s schools are closed or child care providers are unavailable.• Complete Coverage - Employers receive 100% reimbursement for paid leave pursuant to the Act. o Health insurance costs are also included in the credit. o Employers face no payroll tax liability. o Self-employed individuals receive an equivalent credit.• Fast Funds - Reimbursement will be quick and easy to obtain. o An immediate dollar-for-dollar tax offset against payroll taxes will be provided o Where a refund is owed, the IRS will send the refund as quickly as possible.• Small Business Protection - Employers with fewer than 50 employees are eligible for an exemption from the requirements to provide leave to care for a child whose school is closed, or child care is unavailable in cases where the viability of the business is threatened.• Easing Compliance - Requirements subject to 30-day nonenforcement period for good faith compliance efforts.
Businesses can retain and access funds that they would otherwise pay to the IRS in payroll taxes. If those amounts are not sufficient to cover the cost of paid leave, employers can seek an expedited advance from the IRS by submitting a streamlined claim form.
Payroll Tax Deferral
The CARES Act allows an employer to defer certain payroll taxes, specifically the employer contribution of Federal Insurance Contributions Act (“FICA”) taxes—with respect to their employees. Typically, the employer is obligated to remit its share (6.2%) of Social Security taxes for each employee’s covered wages to the Treasury electronically on a semi-weekly or monthly basis.
The employer payroll tax deferral, which is found in Section 2302 of the CARES Act, allows employers to defer certain payroll taxes incurred between March 27, 2020 (date of enactment) and December 31, 2020. Under Section 2302, employers can defer their 6.2% share of the Social Security tax on each employee’s covered wages for the rest of the year and pay half at the end of 2021 and half at the end of 2022.
It is important to note that Section 2302 does not cover other payroll taxes such as the Medicare tax (1.45%) or employee’s share of the Social Security tax. In addition, there is no dollar cap on the total amount of employer social security taxes that may be deferred through December 31, 2020.
In similar fashion, the provision outlines tax deferrals in an equivalent amount for self-employed individuals subject to the Self Employment Contributions Act (“SECA”) and employers and employee representatives subject to the Railroad Retirement Tax Act (“RRTA”). Specifically, Section 2302 allows self-employed individuals to defer 6.2% of their SECA tax on net earnings from self-employment (50% of the 12.4% portion attributable to Social Security) and enables employers and employee representatives to defer their 6.2% share of the Tier 1 tax (treated as a Social Security benefit for federal income tax purposes).
While the payroll tax deferral may be attractive to most employers (and parties subject to SECA and RRTA tax liability), it is important to note that the tax relief addressed in Section 2302 constitutes a deferral, rather than a waiver of tax obligations. Notwithstanding section 6302 of the Internal Revenue Code, an employer’s payments shall be treated as timely only if fifty percent of the deferred taxes are paid by December 31, 2021 and the remaining fifty percent are paid by December 31, 2022.
Please note that the Paycheck Protection Program Flexibility Act (PPPFA) passed on June 5th now allows businesses who get PPP loan forgiveness to also use this Payroll Tax Deferral.
Qualified Improvement Property Fixes
The CARES Act makes technical corrections to the 2017 Act to treat qualified improvement property as 15-year property for depreciation purposes, and makes it eligible for bonus depreciation. These corrections are retroactive to the effective date of the 2017 Act (January 1, 2018).
Refundable AMT credit modification
The corporate alternative minimum tax (“AMT”) was repealed by the 2017 Act. However, corporate AMT credits were made available as refundable credits over several years, ending in 2021. The CARES Act accelerates the ability of companies to recover those refundable AMT credits.
Fiducial is available to answer your questions and to provide guidance on these rapidly evolving issues, challenges and opportunities. In addition to the following, we are closely following the regulations on a state by state level defining essential business and other related matters. Please contact us if we may be of assistance.
Net Operating Loss (NOL) Carrybacks
The CARES Act relaxes the taxable income limitation and carryback limitation on a taxpayer’s use of Net Operating Losses (NOLs). Under the CARES Act, the taxable income limitation is temporarily suspended with retroactive effect, allowing NOLs (whether arising in or carried forward to taxable years beginning in 2018, 2019, or 2020) to fully offset the taxpayer’s taxable income for taxable years beginning before Jan. 1, 2021. Additionally, the CARES Act provides that NOLs arising in a taxable year beginning after Dec. 31, 2017, and before Jan. 1, 2021, generally may be carried back five years. Special rules would apply to real estate investment trusts and life insurance companies. Under the CARES Act, a U.S. shareholder of certain specified foreign corporations may not carry back net operating losses to offset any additional amount includible in its gross income by reason of tax code Section 965(a), a transition tax provision added by the TCJA. The taxpayer may elect, however, to exclude the taxable year in which such amounts are includible in its gross income from the five-year carryback period.
Increased Interest Expense Deduction under IRC s. 163(j)
Section 163(j) limits a taxpayer’s deduction for net business interest expense to 30% of the taxpayer’s “adjusted taxable income” or “ATI” for the taxable year (which is approximately equal to EBITDA for taxable years beginning before Jan. 1, 2022). The CARES Act makes two temporary changes to Section 163(j) that should materially increase the amount of deductions available to taxpayers with indebtedness and significantly increase their available after-tax cash:
● Because taxpayers may have significantly reduced ATI in 2020, the CARES Act allows taxpayers (at their election) to use their adjusted taxable income for their last taxable year beginning in 2019 for purposes of computing the Section 163(j) interest expense limitation for their first taxable year beginning in 2020, which may dramatically increase the amount of interest expense deductions available to the taxpayer. ● The CARES Act generally increases the Section 163(j) interest deduction limitation from 30% to 50% of adjusted taxable income for taxable years beginning in 2019 and 2020.
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