Employee Retention Credit

The Employee Retention Credit  (ERC), is a fully refundable tax credit for a percentage of the qualified wages paid to employees. It’s applied to an employer’s federal payroll tax liability and any excess credit is refundable. It was created in March, 2020 as a response to the Covid pandemic and was aimed at encouraging employers to keep their workers employed during the pandemic. The ERC was originally set to expire on January 1, 2022.

However, the Infrastructure Investment and Jobs Act which was enacted on November 15, 2021 amended the law so that the ERC now applies only to wages paid before October 1, 2021. In other words, any wages paid after September 30, 2021 are ineligible for the credit -with the exception of recovery start-up businesses.

There’s Still Time to Claim the ERC in 2022

Since the ERC was amended, not terminated, eligible businesses can file a claim for a retroactive ERC refund on previously paid qualified wages (between March 13, 2020 through September 30, 2021) by filing IRS Form 941-X (Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund)

Form 941-X must be filed by the later of 3 years from the date the original Form 941 was filed or 2 years from the date the tax was paid.

Also, the ERC program has undergone a number of changes and employers previously ineligible may now qualify to file for retroactive reimbursement. For example, under the original ERC, employers could not apply for both a Payroll Paycheck Protection (PPP) loan and ERC.  This restriction no longer exists and employers who received a PPP loan can now claim the ERC for 2021. If an employer applied for loan forgiveness and it was approved, the employer can’t claim this credit for wages paid with the PPP loan. If the forgiveness request wasn’t granted, the employer can use the wages paid with the PPP loan to claim the ERC. As stated above, employers may apply retroactively for the ERC.

Eligible Businesses

There is no size limit on eligibility for the ERC. However, small and large businesses are treated differently.

Qualified Wages

Generally, qualified wages are compensation you pay to employees, including qualified health plan expenses.  Employers will need to check with the health and welfare trust administrator for the correct allocable amount of group health care costs.

If you are considered a severely financially distressed employer, you may treat all wages paid during the third quarter of 2021 as qualified wages,  A severely financially distressed employer is an eligible employer that experiences a decline in gross receipts of more than 90% compared to the same 2019 calendar quarter.

2020 Employee Retention Credit

If Employer’s average was more than 100 full-time employees in 2019, qualified wages are the wages paid to employees who are not providing services because of:

  • A full or partial suspension of operations by order of a governmental authority due to the coronavirus, or
  • A  significant decline (50% or more) in  gross  receipts

Qualified wages can’t exceed what the employer would have paid the employee for an equivalent duration during the 30 days preceding the economic hardship.

If employer’s average was fewer than 100 full-time employees in 2019, qualified wages are the wages paid to any employee (regardless of whether or not the employee is working) because of:

  • A full or partial suspension of operations by order of a governmental authority due to the coronavirus, or
  • A significant decline in gross receipts.

In 2020, a significant decline in gross receipts is a 50% decrease in gross receipts compared to the same calendar quarter in 2019.

2021 Employee Retention Credit

If Employer’s average was more than 500 full-time employees in 2019, qualified wages are the wages paid to employees who are not providing services because of:

  • A full or partial suspension of operations by order of a governmental authority because of the coronavirus. or
  • A significant decline in gross receipts.

In 2021, the significant decline is a 20% decrease in gross receipts compared to the same quarter in 2019.

If you are a large employer and didn’t pay any employees for not working during 2020 and 2021, you’re not eligible for this ERC credit.  But if you paid employees for working and not working, then the wages you paid employees for not working qualify for this credit.

If you are considered a severely financially distressed employer, you may treat all wages paid during the third quarter of 2021 as qualified wages. A severely financially distressed employer is an eligible employer that experiences a decline in gross receipts of more than 90% compared to the same 2019 calendar quarter.

How is the Retroactive Employee Retention Credit Claimed

Employers report their qualified wages and related credits for each calendar quarter that they qualify for the credit on Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund.

If an Employer qualifies and receives the credit, they will need to reduce the total wages reported for that tax year on their income tax return for that year.  This could mean that they will need to file amended income tax returns for both the 2020 and the 2021 tax years.

When reporting qualified wages for the ERC, remember that paid leave wages can’t be included in your calculation of qualified wages for the ERC.

Also, if an Employer received a PPP loan, they are now no longer prohibited from claiming the ERC. If they applied for loan forgiveness and it was approved, they can’t claim this credit for wages paid with the PPP loan.  If the forgiveness request was denied, then the Employer can use wages paid with the PPP loan to claim the ERC.

The information contained herein is issued for general informational and educational purposes only and is not intended to address the specific circumstances of any particular individual or entity or replace or be a substitute for consultation with the Employer’s business tax advisor or payroll specialist.

 

Note: Information has been provided by legal counsel and is intended to offer guidance.

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