Coronavirus Relief Update: The Latest Updates and the PPP Loan Initiative

Freeman Law, PLLC

2595 Dallas Parkway, Suite 420

Frisco, Texas

www.freemanlaw.com

Jason B. Freeman, J.D., CPA

Mr. Freeman is the founding member of Freeman Law, PLLC, a tax, white-collar, and litigation boutique law firm based in the Dallas-Fort Worth Metroplex. He is a trial attorney, author, adjunct professor at SMU’s School of Law, and licensed CPA. Mr. Freeman handles federal and state tax controversies and white-collar civil and criminal matters—including computer hacking, money laundering, embezzlement, bank fraud, tax evasion, securities and health care charges, and conspiracy. He also advises clients in tax planning and compliance matters.

Mr. Freeman was named to the American Bar Association’s “On the Rise –Top 40 Young Attorneys” in America list. He has been recognized multiple times by D Magazine as one of the Best Lawyers in Dallas for tax law and white-collar defense, and by Super Lawyers and Texas Monthly magazine as a Texas Rising Star. He is the President of the North Texas chapter of the American Academy of Attorney-CPAs, and the chairman-elect for the Texas Society of CPA's.

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The Coronavirus and Relief Developments Generally• Visit our website at www.freemanlaw.com to download the Freeman Law

Compendium of Recent Coronavirus Legislation and Regulatory Reform.• It can be accessed through the following specific

links: https://freemanlaw.com/blog/ and https://freemanlaw.com/freeman-laws-compendium-of-recent-coronavirus-legislation-and-regulatory-reform/

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IRS Updates

• IRS Notice 2020-18. Certain taxpayers automatically qualify to defer their federal income tax filings and payment of income tax until July 15, 2020.

• Eligibility. Any individual, trust, estate, partnership, association, company, or corporation with a federal income tax filing or payment deadline of April 15, 2020.

• Effect. For the above eligible taxpayers, the due date for filing a federal income tax return and making any federal income tax payment due April 15, 2020, is automatically postponed to July 15, 2020. These taxpayers do not need to file the applicable extension forms (Forms 4868 or 7004) to obtain the extension.

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IRS Updates Cont'd

• IRS Notice 2020-20. Certain taxpayers automatically qualify to defer their gift or generation-skipping transfer tax returns and payment of associated tax until July 15, 2020.

• Eligibility. Any person with a federal gift tax or generation-skipping transfer tax payment due or the requirement to file Form 709 on April 15, 2020.

• Effect. For the above eligible taxpayers, the due date for filing the Form 709 and making any associated gift or generation-skipping transfer tax is automatically postponed to July 15, 2020. These taxpayers do not need to file the applicable extension forms (Form 8892) to obtain the extension.

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IRS Updates Cont'd• IRS Notice 2020-23. Similar to prior Notices issued by the IRS in response to COVID-19, Notice 2020-23

automatically extends several filing and payment deadlines for returns and associated taxes. However, Notice 2020-23 is broader than prior notices in that it applies to more return filings and payment obligations.

• This relief includes not just the filing of Specified Forms, but also all schedules, returns, and other forms that are filed as attachments to Specified Forms or are required to be filed by the due date of Specified Forms, including, for example, Schedule H and Schedule SE, as well as Forms 3520, 5471, 5472, 8621, 8858, 8865, and 8938. This relief also includes any installment payments under section 965(h) due on or after April 1, 2020, and before July 15, 2020.

• Affected Taxpayers also have until July 15, 2020, to perform all Specified Time- Sensitive Actions, that are due to be performed on or after April 1, 2020, and before July 15, 2020. This relief includes the time for filing all petitions with the Tax Court, or for review of a decision rendered by the Tax Court, filing a claim for credit or refund of any tax, and bringing suit upon a claim for credit or refund of any tax. This notice does not provide relief for the time period for filing a petition with the Tax Court, or for filing a claim or bringing a suit for credit or refund if that period expired before April 1, 2020.

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IRS Updates Cont'd• IRS Notice 2020-23. • With respect to those Affected Taxpayers, a 30-day postponement is granted for Time- Sensitive

IRS Actions if the last date for performance of the action is on or after April 6, 2020, and before July 15, 2020

• The government acts that are extended include: (1) assessing tax; (2) giving or making any notice or demand for payment of tax; (3) collecting by levy or otherwise the amount of any tax liability; (4) bringing suit by the United States; and (5) allowing a credit or refund of tax.

• The following persons are “Affected Taxpayers”: • persons who are currently under examination (including an investigation to determine liability for an

assessable penalty under subchapter B of Chapter 68); • persons whose cases are with the Independent Office of Appeals; and • persons who, during the period beginning on or after April 6, 2020 and ending before July 15, 2020, file written

documents described in section 6501(c)(7) of the Code (amended returns) or submit payments with respect to a tax for which the time for assessment would otherwise expire during this period.

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IRS Updated Cont'd• IRS Notice 2020-22. The IRS is waiving additions to tax under Sec. 6656 for failure to make a deposit of

employment taxes (including withheld income taxes, taxes under the Federal Insurance Contributions Act, and taxes under the Railroad Retirement Tax Act).

• The waiver will apply to the extent that the amounts not deposited are equal to or less than the amount of refundable tax credits to which the employer is entitled under the Families First Coronavirus Response Act (Families First Act), P.L. 116-127 and under the Coronavirus Aid, Relief, and Economic Security Act (CARES) Act, P.L.116-136.

• The waiver will also apply to deposits of employment taxes reduced in anticipation of the credits for qualified sick leave wages, qualified family leave wages, and qualified health plan expenses paid beginning April 1, 2020, and ending Dec. 31, 2020, and deposits of employment taxes reduced in anticipation of the credits for qualified retention wages paid for the period beginning on March 13, 2020, and ending Dec. 31, 2020.

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IRS Updated Cont'd

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IRS Updated Cont'd

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IRS Updates Cont’d

IRS Updated Cont'd• IRS Accepting images of signatures and digital signatures for certain documents.

• Tax Court Status.

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The IRS's "People First" Initiative• On March 25, 2020, the IRS unveiled its new People First Initiative, which is a “sweeping

series of steps to assist taxpayers by providing relief on a variety of issues ranging from easing payment guidelines to postponing compliance actions.”

• Installment Agreements

• Offers-in-Compromise• Field and Automated Collection

• Audits

• Appeals

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H.R. 748: Coronavirus Aid and Economic Security Act (“CARES Act”)

• SBA Loan Programs• Individual Tax Provisions• Business Tax Provisions

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Paycheck Protection Program SBA Loans (“PPP Loans”)• The PPP is designed to provide loans of up to $10 million to qualifying

small businesses in order to encourage employee retention during the coronavirus crisis by providing financial assistance with the payment of certain operational costs.• If applicable requirements are met, part or all of the amount of the loan

may be forgiven without giving rise to cancellation-of-indebtedness income for federal tax purposes.

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Paycheck Protection Program SBA Loans (“PPP Loans”)• The PPP is designed to provide loans of up to $10 million to qualifying

small businesses in order to encourage employee retention during the coronavirus crisis by providing financial assistance with the payment of certain operational costs.• If applicable requirements are met, part or all of the amount of the loan

may be forgiven without giving rise to cancellation-of-indebtedness income for federal tax purposes.

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Paycheck Protection Program SBA Loans (“PPP Loans”)• SBA: the PPP is “first-come, first-served”

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PPP Loans

• Eligibility. Generally must have 500 or fewer employees.• Maximum Loan Amount. Generally, the maximum loan amount is limited to the

lesser of (i) the average total monthly payments by the applicant for payroll costs incurred during the 1-year period prior to the date on which the loan is made, multiplied by 2.5, or (ii) $10 million.

• Allowable Uses. The recipient may use the loan proceeds to pay: (1) payroll costs; (2) costs related to the continuation of group health care benefits; (3) employee salaries, commissions, or similar compensations; (4) interest on mortgage obligations; (5) rent; (6) utilities; and (7) interest on debt obligations incurred prior to February 15, 2020.

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PPP Loan Aspects

• Non-recourse.• No Personal Guarantee or Collateral.• Interest Rate.• Payment Deferral.• No Prepayment Penalty.

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PPP Certification

• Certification. A borrower under the PPP must make a good-faith certification:• That uncertainty of current economic conditions makes necessary the loan

request to support ongoing business operations;• Acknowledging that funds will be used to retain workers and maintain

payroll or make mortgage, lease, or utility payments;• That there are no other duplicative loan applications; and• During the period from February 15, 2020, through December 31, 2020, the

borrower has not received other loan amounts under the Act.

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Loan Forgiveness• A loan amount may be forgiven in an amount equal to the sum of the following costs incurred and payments made in the “covered

period,” which is the 8-week period beginning on the date of the origination of a covered loan (collectively, “Eligible Costs”):• Payroll costs;• payment of interest on a covered mortgage obligation;• payment on a covered rent obligation;• Any covered utility payment;

NOTE: Documentation Required.

Non-Taxability of Loan Forgiveness. While the forgiveness or cancellation of indebtednessis generally taxable under the I.R.C., the Act specifically provides that such amountsforgiven with respect to an amount equal to the sum of the costs described above areexcluded from gross income.

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Forgiveness Limitations

• Reduction in Number of Employees.• Reduction for Reduced Salary and Wages.

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PAYCHECK PROTECTION PROGRAM LOANS Frequently Asked Questions (FAQs)

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Agent Fees

• Who pays the fee to an agent who assists a borrower? • Agent fees will be paid by the lender out of the fees the lender receives from SBA.

Agents may not collect fees from the borrower or be paid out of the PPP loan proceeds. The total amount that an agent may collect from the lender for assistance in preparing an application for a PPP loan (including referral to the lender) may not exceed: • One (1) percent for loans of not more than $350,000; • 0.50 percent for loans of more than $350,000 and less than $2 million; and • 0.25 percent for loans of at least $2 million.Treasury PPP FAQs

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Agent Fees

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PAYCHECK PROTECTION PROGRAM LOANS Frequently Asked Questions (FAQs)

• Question: Are small business concerns (as defined in section 3 of the Small Business Act, 15 U.S.C. 632) required to have 500 or fewer employees to be eligible borrowers in the PPP? • Answer: No. Small business concerns can be

eligible borrowers even if they have more than 500 employees, as long as they satisfy the existing statutory and regulatory definition of a “small business concern” under section 3 of the Small Business Act, 15 U.S.C. 632. A business can qualify if it meets the SBA employee-based or revenue-based size standard corresponding to its primary industry

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Qualifying Businesses

• Question: Does my business have to qualify as a small business concern (as defined in section 3 of the Small Business Act, 15 U.S.C. 632) in order to participate in the PPP?

• Answer: No. In addition to small business concerns, a business is eligible for a PPP loan if the business has 500 or fewer employees whose principal place of residence is in the United States, or the business meets the SBA employee-based size standards for the industry in which it operates (if applicable). Similarly, PPP loans are also available for qualifying tax-exempt nonprofit organizations described in section 501(c)(3) of the Internal Revenue Code (IRC), tax-exempt veterans organization described in section 501(c)(19) of the IRC, and Tribal business concerns described in section 31(b)(2)(C) of the Small Business Act that have 500 or fewer employees whose principal place of residence is in the United States, or meet the SBA employee-based size standards for the industry in which they operate.

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PPP Issues -Ineligibility

• A Taxpayer is ineligible for a PPP loan if, for example: • You are engaged in any activity that is illegal under federal, state, or

local law; • You are a household employer (individuals who employ household

employees such as nannies or housekeepers); • An owner of 20 percent or more of the equity of the applicant is

incarcerated, on probation, on parole; presently subject to an indictment, criminal information, arraignment, or other means by which formal criminal charges are brought in any jurisdiction; or has been convicted of a felony within the last five years; or

• You, or any business owned or controlled by you or any of your owners, has ever obtained a direct or guaranteed loan from SBA or any other Federal agency that is currently delinquent or has defaulted within the last seven years and caused a loss to the government.

• SBA Interim Rule

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PPP Guidance –Payroll Costs

• Is there anything that is expressly excluded from the definition of payroll costs? • Yes. The Act expressly excludes the following:

• …..

• Federal employment taxes imposed or withheld between February 15, 2020 and June 30, 2020, including the employee’s and employer’s share of FICA (Federal Insurance Contributions Act) and Railroad Retirement Act taxes, and income taxes required to be withheld from employees; and [JBF: BUT SEE THE FOLLOWING SLIDE]

• SBA Interim Rule

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Treasury’s Latest PPP FAQ Guidance – Payroll Costs

• Question: How should a borrower account for federal taxes when determining its payroll costs for purposes of the maximum loan amount, allowable uses of a PPP loan, and the amount of a loan that may be forgiven?

• Answer: Under the Act, payroll costs are calculated on a gross basis without regard to (i.e., not including subtractions or additions based on) federal taxes imposed or withheld, such as the employee’s and employer’s share of Federal Insurance Contributions Act (FICA) and income taxes required to be withheld from employees. As a result, payroll costs are not reduced by taxes imposed on an employee and required to be withheld by the employer, but payroll costs do not include the employer’s share of payroll tax.

• For example, an employee who earned $4,000 per month in gross wages, from which $500 in federal taxes was withheld, would count as $4,000 in payroll costs. The employee would receive $3,500, and $500 would be paid to the federal government. However, the employer-side federal payroll taxes imposed on the $4,000 in wages are excluded from payroll costs under the statute.

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Payroll Costs

• Question: The CARES Act excludes from the definition of payroll costs any employee compensation in excess of an annual salary of $100,000. Does that exclusion apply to all employee benefits of monetary value?

• Answer: No. The exclusion of compensation in excess of $100,000 annually applies only to cash compensation, not to non-cash benefits, including: • employer contributions to defined-benefit or

defined-contribution retirement plans; • payment for the provision of employee benefits

consisting of group health care coverage, including insurance premiums; and

• payment of state and local taxes assessed on compensation of employees.

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Loan Forgiveness

• “[N]ot more than 25 percent of the loan forgiveness amount may be attributable to non-payroll costs. While the Act provides that borrowers are eligible for forgiveness in an amount equal to the sum of payroll costs and any payments of mortgage interest, rent, and utilities, the Administrator has determined that the non-payroll portion of the forgivable loan amount should be limited to effectuate the core purpose of the statute and ensure finite program resources are devoted primarily to payroll.”

• SBA Interim Rule

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PPP Guidance –Independent Contractors

• Do independent contractors count as employees for purposes of PPP loan calculations? • No, independent contractors have the ability to

apply for a PPP loan on their own so they do not count for purposes of a borrower’s PPP loan calculation. • SBA Interim Rule

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PPP Guidance –Forgiveness Period

• Question: The amount of forgiveness of a PPP loan depends on the borrower’s payroll costs over an eight-week period; when does that eight-week period begin? • Answer: The eight-week period begins

on the date the lender makes the first disbursement of the PPP loan to the borrower. The lender must make the first disbursement of the loan no later than ten calendar days from the date of loan approval.

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PPP Guidance – Affiliation Rules

• Affiliation Rules Generally - Are affiliates considered together for purposes of determining eligibility? • In most cases, a borrower will be considered together with its affiliates for

purposes of determining eligibility for the PPP. Under SBA rules, entities may be considered affiliates based on factors including stock ownership, overlapping management, and identity of interest.

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PPP Guidance – Affiliation Rules

• Question: Are borrowers required to apply SBA’s affiliation rules under 13 C.F.R. 121.301(f)?

• Answer: Yes. Borrowers must apply the affiliation rules set forth in SBA’s Interim Final Rule on Affiliation. A borrower must certify on the Borrower Application Form that the borrower is eligible to receive a PPP loan, and that certification means that the borrower is a small business concern as defined in section 3 of the Small Business Act (15 U.S.C. 632), meets the applicable SBA employee-based or revenue-based size standard, or meets the tests in SBA’s alternative size standard, after applying the affiliation rules, if applicable. SBA’s existing affiliation exclusions apply to the PPP, including, for example the exclusions under 13 CFR 121.103(b)(2).

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PPP Guidance – Affiliation Rules

• Question: Are lenders required to make an independent determination regarding applicability of affiliation rules under 13 C.F.R. 121.301(f) to borrowers? • Answer: No. It is the responsibility of the borrower to determine which

entities (if any) are its affiliates and determine the employee headcount of the borrower and its affiliates. Lenders are permitted to rely on borrowers’ certifications.

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PPP Guidance – Affiliation Rule

• Question: The affiliation rule based on ownership (13 C.F.R. 121.301(f)(1)) states that SBA will deem a minority shareholder in a business to control the business if the shareholder has the right to prevent a quorum or otherwise block action by the board of directors or shareholders. If a minority shareholder irrevocably gives up those rights, is it still considered to be an affiliate of the business? • Answer: No. If a minority shareholder in a business irrevocably waives or

relinquishes any existing rights specified in 13 C.F.R. 121.301(f)(1), the minority shareholder would no longer be an affiliate of the business (assuming no other relationship that triggers the affiliation rules).

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PPP Guidance -PEOs

• Question: What if an eligible borrower contracts with a third-party payer such as a payroll provider or a Professional Employer Organization (PEO) to process payroll and report payroll taxes?

• Answer: Eligible borrowers that use PEOs or similar payroll providers are required under some state registration laws to report wage and other data on the Employer Identification Number (EIN) of the PEO or other payroll provider. In these cases, payroll documentation provided by the payroll provider that indicates the amount of wages and payroll taxes reported to the IRS by the payroll provider for the borrower’s employees will be considered acceptable PPP loan payroll documentation. Relevant information from a Schedule R (Form 941), Allocation Schedule for Aggregate Form 941 Filers, attached to the PEO’s or other payroll provider’s Form 941, Employer’s Quarterly Federal Tax Return, should be used if it is available; otherwise, the eligible borrower should obtain a statement from the payroll provider documenting the amount of wages and payroll taxes. In addition, employees of the eligible borrower will not be considered employees of the eligible borrower’s payroll provider or PEO.

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PPP –Number of Employees

• Question: What time period should borrowers use to determine their number of employees and payroll costs to calculate their maximum loan amounts?

• Answer: In general, borrowers can calculate their aggregate payroll costs using data either from the previous 12 months or from calendar year 2019. For seasonal businesses, the applicant may use average monthly payroll for the period between February 15, 2019, or March 1, 2019, and June 30, 2019. An applicant that was not in business from February 15, 2019 to June 30, 2019 may use the average monthly payroll costs for the period January 1, 2020 through February 29, 2020.

• Borrowers may use their average employment over the same time periods to determine their number of employees, for the purposes of applying an employee-based size standard. Alternatively, borrowers may elect to use SBA’s usual calculation: the average number of employees per pay period in the 12 completed calendar months prior to the date of the loan application (or the average number of employees for each of the pay periods that the business has been operational, if it has not been operational for 12 months).

• Treasury PPP FAQs

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PPP – Misuse of PPP Funds

• What happens if PPP loan funds are misused? • If you use PPP funds for unauthorized purposes, SBA will direct you to

repay those amounts. If you knowingly use the funds for unauthorized purposes, you will be subject to additional liability such as charges for fraud. If one of your shareholders, members, or partners uses PPP funds for unauthorized purposes, SBA will have recourse against the shareholder, member, or partner for the unauthorized use.

• SBA Interim Rule

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