Late Friday, March 27, President Trump signed the third stimulus package (the Coronavirus Aid, Relief, and Economic Security (or CARES) Act) with an estimated cost of $2 trillion to help offset the effects of the COVID-19 virus. The Act contains many tax-related provisions for both businesses and individuals. Of most importance are the following, with many of the details and mechanics to be fleshed out in the coming days and weeks. Please do not hesitate to reach out to any BrownWinick attorney in our Tax Group to discuss your specific situation.
Employer Payroll Tax Payment Delay
The Act allows employers to delay payment of their share of the 6.2% Social Security portion of payroll taxes relating to calendar year 2020 for almost two years — until December 31, 2022. (For now, continue depositing the employees’ share of payroll tax, Medicare tax, and income tax withholding as well as the employer’s share of Medicare tax.) One-half of the delayed employer taxes are due by December 31, 2021, while the second half is due by December 31, 2022. Since the Paycheck Protection Program Flexibility Act (the “PPPFA”) was signed into law on June 5, 2020 this delay is now also available to employers who have benefited from SBA loan forgiveness under the CARES Act (discussed below and here). Employers who have received PPP funds may continue to defer payroll taxes until their bank notifies them their loan has been forgiven. The deferral period for payroll began on the Act’s enactment date, March 27, 2020.
Employee Retention Payroll Tax Credit
The Act creates the Employee Retention Tax Credit, a refundable payroll tax credit for 50% of qualified wages paid to employees from March 13, 2020 through December 31, 2020. 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% when compared to the same quarter in the prior year. Employers claim the refundable credits against their portion of Social Security tax on their quarterly payroll tax returns.
The credit is based on “qualified wages” paid to the employee. For employers with greater than 100 full-time employees, qualified wages are limited to wages paid to employees who are not providing services due to a COVID-19-related suspension or shut-down. 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 (subject to the reduction in gross receipts requirement).
The credit is available up to $10,000 of qualified wages per employee, including health benefits. This means a qualified employer can offset (or receive a credit) of up to $5,000 against the employer’s portion of Social Security taxes per employee from March 13, 2020 to December 31, 2020.
This credit is unavailable for employers who receive a loan under Small Business Administration’s (SBA) 7(a) Loan Program and is reduced for employers who claim a payroll tax credit under the Families First Coronavirus Response Act.
Employer Payroll Tax Deposits and Refunds
The Act authorizes the IRS to waive penalties for employers who fail to make their regular payroll tax deposits in anticipation of qualifying for and receiving the Employee Retention Payroll Credit due to COVID-19 (discussed above) as well as the credits for Paid Sick Leave and Paid Family Leave included in the Families First Coronavirus Response Act (discussed previously by BrownWinick here). Eligible employers can benefit from this relief by retaining an amount of all federal employment taxes (including the employer’s and employee’s share of Social Security and Medicare taxes, as well as income tax withheld from employees) equal to the amount of the credit the employer reasonable anticipates receiving in connection with wages the employer has paid. If the amount of the employer’s deposit obligation is less than the amount of credit for which the employer is eligible, the employer may request an advance refund of excess credits from the IRS by submitting a Form 7200. Employers who reduce their payroll tax deposits or claim an advance refund by filing a Form 7200 will be expected to reconcile the credit amounts taken on their quarterly Form 941 payroll tax return.
Loan Forgiveness for Paycheck Protection Program Loans
The new Paycheck Protection Program added to the SBA 7(a) Loan Program upon enactment of the Act offers loans to “small businesses” and certain other types of businesses and organizations to cover a variety of costs, including but not limited to payroll costs, utilities, and rent under a lease agreement. If certain requirements are met (discussed here), these loans may be forgiven, at least in part. Notably, the Act specifically excludes loan forgiveness under the Paycheck Protection Program from being considered cancellation of debt income at the Federal level, meaning that this loan forgiveness is not includible in Federal gross income as would otherwise be the case. Tax treatment at the state level may vary..
Iowa has provided guidance that PPP loans that are forgiven and properly excluded from Federal gross income, as discussed above, are also excludable from income for Iowa tax purposes. Note that the Iowa exclusion is not applicable for PPP loan forgiveness for tax years beginning prior to January 1, 2020. Tax treatment by other states may vary.
It is important to note that employers that receive a loan under the Paycheck Protection Program are disqualified from also receiving an Employee Retention Payroll Tax Credit as discussed above.
Employer-Provided Student Loan Relief
In addition to employer-provided educational assistance currently available under Internal Revenue Code Section 127(c), the Act has expanded existing benefits to allow employers to contribute up to $5,250 annually on a tax-free basis toward an employee’s qualified education loan for the employee’s education. As a result, such educational assistance is excluded from the employee’s gross income. The expansion (including employer payments toward employees’ student loans) is applicable for payments made beginning on Friday, March 27, 2020, and before January 1, 2021.
It is important to note that employer-provided student loan relief that is excluded from the employee’s gross income is ineligible for the student loan interest deduction as this would otherwise generate a double benefit.
Modification to the Net Operating Loss and Excess Business Loss Limitations
For tax years 2018 through 2020, there is a suspension of the limitation imposed by the Tax Cuts and Jobs Act (TCJA) of deducting losses only up to 80% of taxable income, thereby allowing fuller use of losses incurred in these years. The limitation is reinstated in a modified manner going forward for tax years beginning after December 31, 2020. Moreover, losses incurred in these 2018 through 2020 years may now be carried back to the five years preceding the loss year. There are special rules for certain fiscal year taxpayers.
For non-corporate taxpayers, the excess business loss limitation has been retroactively repealed for calendar years 2018 through 2020, freeing up the ability to amend a prior year’s return to more fully utilize losses and generate a cash refund. The limitation is reinstated for 2021 and beyond with a modified calculation.
Modification to the Business Interest Limitation
Previously, a taxpayer could deduct business interest generally up to 30% of taxable income. For tax years beginning in 2019 and 2020, this limitation has been increased to 50%, with special rules for partnerships allocating certain interest to their partners.
Other Miscellaneous Provisions for Consideration
- Retroactive qualification of “qualified improvement property” for bonus deprecation (effective back to the Tax Cuts and Job Act so consider amending prior years’ income tax returns).
- Distributions from certain qualified accounts for Coronavirus-related expenses are not subject to the 10% early withdrawal tax up to an individual’s distributions of $100,000. The income taxation thereof can be spread out over three years, or the distributions can be repaid to the account.
- Waiver of requirement of minimum distributions for calendar year 2020 for certain plans and IRAs.
- Current Internal Revenue Code section 139 (enacted in response to 9/11) excludes from income an individual’s receipt of a “qualified disaster relief payment.” This should allow employers to provide payments to employees for “reasonable and necessary personal, family, living, or funeral expenses incurred as a result of [COVID-19].” Such qualifying payments are non-taxable to the employee and not considered wages for any tax withholding purpose. Potential qualifying expenses include amounts required to set up or maintain a home office, increased childcare expenses, and others. Payments designed to replaced lost income (lost wages, lost business income, or unemployment benefits), however, do not qualify for IRC section 139 treatment, nor do expenses that are reimbursed by insurance or otherwise. An employer making such payments should maintain contemporaneous written records about what expenses it is covering and the justification for such payments.
For more information on the tax implications of the CARES Act provisions, please contact your BrownWinick attorney or any of these BrownWinick’s attorneys:
Chris Nuss, Cindy Lande, Colin Hendricks, Maggie Simonson
This article was written for general informational purposes and summarizes the tax laws as currently written without significant guidance. As such, it should not be relied upon for compliance with the Internal Revenue Code.