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Determining Whether a Business Qualifies Can Be Complicated

By Scott Foster & Jacob Kosakowski

 

Scott Foster

Scott Foster

Jacob Kosakowski

Jacob Kosakowski

Business owners have been bombarded recently with solicitations from firms offering to help them realize millions of dollars through the IRS’s Employee Retention Credit (ERC) program, which was included in the CARES Act adopted in the early phases of COVID-19. The CARES Act also contained the popular, and well-documented, Paycheck Protection Program (PPP), with forgivable loans that kept many businesses afloat.

Originally, if a business received a PPP loan, it was not eligible to receive ERC. The initial IRS guidance on this could not have been more clear: “an employer may not receive the Employee Retention Credit if the employer receives a PPP loan that is authorized under the CARES Act. An Eligible Employer that receives a PPP loan, regardless of the date of the loan, cannot claim the Employee Retention Credit.”

However, subsequent legislation, namely the Taxpayer Certainty and Disaster Tax Relief Act of 2020, enacted Dec. 27, 2020; the American Rescue Plan Act (ARPA) of 2021, enacted March 11, 2021; and the Infrastructure Investment and Jobs Act, enacted Nov. 15, 2021, greatly expanded eligibility for ERC.

While some of these firms are offering legitimate services and will help businesses file accurate and legitimate claims for ERC, business owners should proceed with extreme caution due to several factors: the very complex rules regarding eligibility for an ERC, the IRS’s near-automatic acceptance of these filings (and payment of the credit, of which the firm usually collects 25% or more), the very strong likelihood that these filings will be audited in years to come (the IRS has up to five years to audit ERC returns), and the equally strong likelihood that the less-reputable ERC firms will have closed their doors and have liquidated all assets before those audits are completed, leaving the business holding the proverbial bag for tax penalties, fines, and interest.

“Perhaps the most complicated facet of determining eligibility under ERC relates to how its provisions interact with the Internal Revenue Code’s special aggregation rules for businesses.”

The IRS issued a warning on Oct. 19, 2022, stating that some firms “are taking improper positions related to taxpayer eligibility for and computation of the credit.” The IRS warning goes on to explain that firms “often charge large upfront fees or a fee that is contingent on the amount of the refund and may not inform taxpayers that wage deductions claimed on the business’ federal income-tax return must be reduced by the amount of the credit.”

Determining whether a business qualifies for ERC can be quite complicated. If the business was fully or partially suspended due to a governmental order limiting commerce, travel, or group meetings related to COVID, then it may qualify for the time during which it was so suspended. If the business was not suspended but suffered a “significant decline in gross receipts,” it may also qualify. A significant decline in gross receipts is measured on a quarterly basis, comparing 2020 quarterly receipts to 2019 quarterly receipts (50% or greater decline), 2021 quarterly receipts to 2019 (20% or greater decline), or Q4 2020 receipts to Q4 2019 receipts (20% or greater decline).

Perhaps the most complicated facet of determining eligibility under ERC relates to how its provisions interact with the Internal Revenue Code’s special aggregation rules for businesses. Under the aggregation rules, multiple businesses may be combined into an ‘aggregated group’ based on common ownership, where all employees of an aggregated group will be treated as employed by a single employer. The members of an aggregated group are determined based upon the stock or membership interest ownership of a business entity. If multiple businesses are comprised of similar ownership, those businesses might be combined into an aggregated group.

The ownership of a business might be comprised of individuals, trusts, partnerships, or corporations. The ownership composition of a potential aggregated group must be closely examined because the aggregation rules and thresholds will differ based on whether the group consists of corporations, LLCs, or partnerships. Further, the relationship of individuals to one another will also impact how the aggregations rules operate.

By way of example, imagine three individuals: Alice, Brady, and Carol. Each own a one-third interest in each of Alpha LLC, Bravo LLC, and Charlie LLC. Under the aggregation rules, the three LLCs would form an aggregated group, known as a ‘brother-sister controlled group,’ based on their common ownership structure. All employees of all three LLCs would be treated as employed by a single employer. As another example, now assume that Alice and Brady own a one-half interest in Alpha LLC, Brady and Carol own a one-half interest in Bravo LLC, and Carol and Alice own a one-half interest in Charlie LLC. Under the aggregation rules, none of the LLCs would form an aggregated group with each other because any potential aggregated group would not meet the requisite ownership threshold requirements.

An aggregated group will impact how the members of such group are treated under the ERC provisions. Most notably, the aggregation rules affect the determination of a business’ average number of full-time employees, as well as what constitutes a ‘significant decline’ in gross receipts among members in an aggregated group. The aggregation rules also impact how suspensions due to governmental orders are enforced among members of an aggregated group. Businesses should consider carefully examining their ownership compositions so beneficial business aggregations are not missed.

And remember, if it sounds too good to be true, it likely is.

 

Scott Foster chairs Bulkley Richardson’s Business/Finance Department, and Jacob Kosakowski is an associate in the firm’s Trusts & Estates Department.

Banking and Financial Services

Saving Grace

By Barbara Trombley, MBA, CPA

 

The Internal Revenue Service has announced one of the biggest jumps in decades to the cap on 401(k) contributions. Americans will be able to save 10% more in their plans by making pre-tax contributions if they take full advantage of the new cap. The new limit is $22,500, up from $20,500 in 2022, and is applicable to all 401(k), 403(b), and other tax-advantaged savings plans.

Remember, a pre-tax contribution to a plan lowers your taxable income by the same amount in the tax year the contribution is made. The new caps also apply to Roth 401(k) or post-tax contributions (if your plan allows). The tax benefits to Roth 401(k) plans do not occur in the year the contribution is made, but later, when distributions are taken tax-free after the age of 59½.

Barbara Trombley

Barbara Trombley

“Many contributors wonder about the future of Social Security; this future will have to be addressed someday by our government. Currently, according to the Social Security website, the trust fund will run out in 2037.”

If an employee is age 50, they can also make a catch-up contribution. This limit has increased to $7,500 from $6,500 in 2022. This means an employee over the age of 50 can put up to $30,000 in their retirement plan this year with federally approved tax benefits. The IRS seems to be responding to the wave of inflation that has impacted the world and is encouraging Americans to save more for retirement.

Contribution limits to traditional IRAs and Roth IRAs will increase $500 to $6,500. Catch-up contributions to those over age 50 are not subject to annual cost-of-living increases and will remain at $1,000. If the taxpayer is not covered by a retirement plan at their place of employment, traditional IRA contributions are fully deductible. If the employee is eligible for a retirement plan at their place of employment, then the deductibility of a traditional IRA contribution is subject to earnings limits that can be found on the IRS website. The contribution may be fully, partially, or not deductible. Income limits also apply to the eligibility of Roth IRA contributions if the employee is covered by a retirement plan at work.

Building a robust retirement plan takes time but is imperative to supplement Social Security or pensions in retirement. Taking risks at a younger age by investing mostly in equities has historically been the best way to beat inflation and take advantage of compounding.

Compounding occurs when investments in assets generate earnings, and those earnings are reinvested, and they generate earnings. For example, a $10,000 initial investment that generates 10% annually for 25 years would grow to almost $110,000.

Strive to save at least 10% of your paycheck in a workplace retirement plan to build a nest egg to supplement other streams of income in retirement. Diligently saving and investing over a long period of time by making regular, monthly contributions into a retirement plan that includes the appropriate allocation of equities for your age is a great way to save for the future.

Speaking of Social Security, most people have heard of the large cost-of-living increase coming in 2023. The Social Security Administration has announced an 8.7% cost-of-living increase for 2023. All recipients, including future recipients, will benefit from this raise.

It is imperative to understand that Social Security was never intended to be the main source of retirement income for retirees. It was signed into law by President Franklin D. Roosevelt and was designed as a social insurance program to provide a minimum amount of security to workers that have contributed. It has evolved over the years to provide disability, widow’s and children’s benefits for a deceased earner, and other benefits.

Many contributors wonder about the future of Social Security; this future will have to be addressed someday by our government. Currently, according to the Social Security website, the trust fund will run out in 2037. At that time, current payroll tax collections will cover 76% of the benefits that will be paid out. Either benefits will have to be cut, payroll taxes increased, or the age at which a worker becomes eligible increased — perhaps a combination of all three.

Take responsibility for saving for your own retirement and utilize the generous tax benefits that qualified retirement plans provide.

 

Barbara Trombley, MBA, CPA is an owner and financial consultant with Trombley Associates. Securities offered through LPL Financial. Member FINRA/SIPC. Advisory services offered through Trombley Associates, a registered investment advisor and separate entity from LPL Financial. This material was created for educational and informational purposes only and is not intended as ERISA tax, legal, or investment advice.

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