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Daily News

WASHINGTON, D.C. — The U.S. Small Business Administration (SBA), in consultation with the U.S. Treasury Department, reopened the Paycheck Protection Program (PPP) loan portal to PPP-eligible lenders with $1 billion or less in assets for first- and second-draw applications on Jan. 15. The portal will fully open on Tuesday, Jan. 19 to all participating PPP lenders.

“A second round of PPP could not have come at a better time, and the SBA is making every effort to ensure small businesses have the emergency financial support they need to continuing weathering this time of uncertainty,” SBA Administrator Jovita Carranza said. “SBA has worked expeditiously to ensure our policies and systems are relaunched so that this vital small-business aid helps communities hardest-hit by the pandemic. I strongly encourage America’s entrepreneurs needing financial assistance to apply for a first- or second-draw PPP loan.”

First-draw PPP Loans are for those borrowers who have not received a PPP loan before Aug. 8. The first round of the PPP, which ran from March to August 2020, helped 5.2 million small businesses keep 51 million American workers employed.

Second-draw PPP loans are for eligible small businesses with 300 employees or fewer that previously received a first-draw PPP loan and will use or have used the full amount only for authorized uses, and that can demonstrate at least a 25% reduction in gross receipts between comparable quarters in 2019 and 2020. The maximum amount of a second-draw PPP loan is $2 million.

Updated PPP lender forms, guidance, and resources are available at www.sba.gov/ppp and www.treasury.gov/cares.

Banking and Financial Services

More Relief from the CARES Act

By Lisa White

On March 27, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law. Since its inception, much of the focus has been on the establishment of additional funding sources, such as the Paycheck Protection Program (PPP), or on the creation of new tax credits, such as the Employee Retention Credit.

However, the act also made some significant revisions to existing tax law to provide additional relief to affected businesses. This article takes a closer look at two of these provisions and delves into how the related benefits associated with the changes might be derived.

Technical Correction for Qualified Improvement Property

The Protecting Americans from Tax Hikes (PATH) Act of 2015 created a new category of asset called ‘qualified improvement property’ or QIP. This term referred to any improvement to an interior portion of non-residential real property, but excluded expenditures for elevators or escalators, enlargements, and interior structural components. Although this category of asset technically had a 39-year cost-recovery period, it was specifically identified as being eligible for bonus depreciation.

When the Tax Cuts and Jobs Act (TCJA) was signed into law at the end of 2017, the intention was to assign a shorter, 15-year recovery life to qualified improvement property, thus ensuring its eligibility for the enhanced 100% bonus depreciation provision also included in the TCJA. Unfortunately, the necessary wording was not included in the final bill, resulting in qualified improvement property retaining its 39-year cost-recovery period, but excluding it from being eligible for bonus depreciation.

Lisa White

Lisa White

“With proper planning and timely tax-advisor consultation, realizing additional relief during these unprecedented times can be achieved.”

Not only did the CARES Act include the technical correction necessary for QIP to have its originally intended 15-year cost-recovery period, but the correction was directed to apply retroactively to all eligible assets placed in service after Dec. 31, 2017.

Then, in mid-April, the IRS provided guidance on how to capture this additional benefit from the change in the depreciable life and the possible eligibility for bonus depreciation. Primarily, the two methods are to either file amended returns for the impacted year(s) or to file a Change in Accounting Method (Form 3115), which allows a ‘catch-up’ for the differences in the recovery periods and applicable depreciation methods.

Here’s an example: A business holds commercial rental property and operates on a Dec. 31 year-end. On July 15, 2018, the business incurred expenses of $150,000 in costs that meet the QIP definition. Assume Section 179 expense was not taken. Due to the technical error in the law, only $1,763 of depreciation expense was allowed in 2018, and $3,846 of depreciation expense would be allowed in 2019. With the technical correction, bonus depreciation can now be taken on the entire amount of the qualified improvement property even though it was placed in service in 2018:

• If the 2019 tax return has already been filed, an amended return should be filed for both the 2018 and 2019 tax years. Taxable income in 2018 will be reduced by the additional $148,237 ($150,000 – $1,763) of accelerated depreciation expense, and taxable income in 2019 will be increased by the removal of the $3,846 of depreciation expense originally recognized.

• If the 2019 tax return has not yet been filed, filing a Form 3115 might provide the easier option. Instead of filing two years of returns, only the 2019 tax return is filed, and the $148,237 of additional accelerated depreciation expense not captured in 2018 is included in the 2019 tax return as a section 481(a) adjustment.

It is important to note that there are certain circumstances where either an amended return or an administrative adjustment request (AAR) must be filed. It is important to consult with your tax advisor to determine the best course of action.

Changes to the Business Interest Limitation

Although most of the provisions enacted as part of the TCJA were intended to be favorable to taxpayers, some new components had the opposite effect. One of these was the revision and expansion of the business-interest-limitation rules. If subject to the new rules, the regulation essentially limited the amount of business interest expense to 30% of taxable income adjusted for, among other things, depreciation.

The interest expense in excess of this 30% threshold would not be deductible in the current year but would instead be carried forward to the following tax years.

The TCJA also included an option for certain businesses to elect out of having this regulation apply. Instead, these businesses that met the definition of a ‘real property trade or business’ could make an irrevocable election to realize a longer recovery period for the cost of real property and to forego any bonus depreciation that would otherwise be allowed on that real property.

Prior to the retroactive change under the CARES Act, the differences in the recovery periods were not substantial, and none of the real property was eligible for bonus depreciation. However, with the CARES Act’s retroactive fix to qualified improvement property, that property is now eligible for bonus depreciation. The loss of being able to take that accelerated depreciation, in addition to another CARES Act provision increasing the limitation threshold from 30% to 50% (for all businesses except partnerships) for 2019 and 2020, might now result in the impact of the irrevocable election having an undue, unfavorable result.

To provide relief to those businesses that made the irrevocable election and that could now benefit from the shorter recovery period, and the applicable depreciation methods, the IRS has issued guidance that provides for the irrevocable election to be rescinded for tax years 2018 or 2019. This is accomplished by filing an amended return for the year the election was made. If 2018 was the election year, and 2019 has already been filed, 2019 must be amended as well to reflect any changes to taxable income resulting from withdrawing the election.

So, What Now?

The CARES Act provides several relief provisions, including a number that can be realized through proper tax planning. Owners of non-residential (i.e. commercial) real property should review any expenditures that were capitalized in 2018 and 2019 to see if any of these costs can be realized now under the new qualified improvement property measures.

Also, it would be prudent to review any elections made during those tax years that might need to be revisited to make sure those elections still result in the most favorable tax position.

As with most things related to the tax code, the final answer is usually complex and nuanced and somewhere in the grey. But with proper planning and timely tax-advisor consultation, realizing additional relief during these unprecedented times can be achieved.

Lisa White, CPA is a tax manager at Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.; (413) 536-8510.

Daily News

WASHINGTON, D.C. — The U.S. House of Representatives voted Thursday to give small businesses financially strapped by the COVID-19 crisis more flexibility to spend forgivable loans for payrolls and expenses from the government’s popular Paycheck Protection Program (PPP), Bloomberg News reported.

The 417-1 vote sends the measure to the Senate, which may seek changes. The bill’s sponsors say urgent action is needed because the eight-week period when proceeds must be spent for loans to be forgiven will begin expiring Friday for the first loan recipients after the U.S. Small Business Administration program opened April 3.

The House measure would give companies much more time to spend the money — within 24 weeks or until the end of the year, whichever comes first — and still qualify to have their PPP loans forgiven. Businesses would also have up to five years, instead of two years, to repay any money owed on a loan and could use a greater percentage of proceeds on rent and other approved non-payroll expenses.

Coronavirus Features

The Questions Keep Coming

The Paycheck Protection Program (PPP) was created by the CARES Act to provide forgivable loans to eligible small businesses to keep American workers on the payroll during the COVID-19 pandemic. The SBA recently provided updates to its PPP guidance and also released the form application for PPP loan forgiveness, which will help small businesses seek forgiveness at the conclusion of the eight-week covered period, which begins with the disbursement of their loans.

Here are five common questions area attorneys have been hearing from business owners concerned about how PPP funds may be used in order to be forgiven.

Where can I spend my PPP loan in order for it to be forgiven?

“You’ve got to use 75% of what was loaned for payroll purposes,” said Kathryn Crouss, shareholder with Bacon Wilson. “Obviously, that’s salaries and wages, but other money employers spend on payroll costs count as well — vacation pay, parental or family leave, paid sick leave, or if there’s an employer match for plan premiums. So the definition of ‘payroll costs’ is relatively broad.

“The remaining money can be spent on other approved expenses — keeping the lights on or mortgage or rent or utility bills, those sorts of things,” she added. “Assuming you can prove to the government that you have spent 75% of the loan on qualified payroll expenses and the remaining portion on other qualifying expenses, then the loan should be forgiven and becomes a grant rather than a loan.”

In addition, she added, “if an employer brings an employee back on and that employee used to make, say, $3,000 a month, if they pay them less, they have to be within 75% to be forgiven. That’s not true for head count — they still have to have the same number of employees; not necessarily the same people, but the same head count.”

How do you measure whether an employee’s salary or wages were reduced by more than 25%?

“This may be the area that was causing the most angst among business owners, since it seemed mathematically impossible to not have reduced compensation by at least 25% if you were comparing compensation in the first quarter of 2020 — 13 weeks — to the covered period of eight weeks,” said Scott Foster, partner with Bulkley Richardson. “Fortunately, the SBA has opted to focus only on either the annualized salary for exempt employees, or the average hourly wage for non-exempt employees. Also, with respect to the salaried employees making more than $100,000 per year during the first quarter, as long as the annualized salary remains above $100,000 during the covered period, then any reduction in salary is not considered a reduction under this test.”

What about employees that were furloughed or laid off, but now refuse to return to work?

“For any employee the business has offered to re-employ in writing, and the employee (for whatever reason) refuses to accept re-employment, this will not reduce the loan-forgiveness amount,” Foster said.

Amy Royal, CEO of Royal, P.C., noted that she’s had many questions of this type. “They’re asking, ‘if I want to make sure I get loan forgiveness, how do I address a situation where I’ve offered to bring people back and they’ve said, thanks but no thanks?’ Obviously, those people have their own unemployment issues because if they’ve been offered a job and continue to take unemployment benefits, that could, in certain circumstances, be fraudulent.”

As for the employer, “if you make a good-faith offer to rehire someone with PPP money, make sure that offer is in writing,” she added. “If the employee rejects the offer, make sure you, as a business, have documented that. It will help you when you apply for loan forgiveness. That issue has been a real concern.”

Crouss agreed, noting that some employees may have legitimate reservations about returning to work — for instance, because they have a 95-year-old parent and don’t want to infect them.

“Make sure that conversation is in writing,” she said. “If they say they can’t return, get that response in writing as well, save that correspondence, and put those documents in their personnel file. Where we’re heading is, the head-count piece may be forgiven if they have that kind of documentation.”

Interestingly, Foster noted, “the application states that any employee fired for cause during the covered period does not reduce the borrower’s loan forgiveness. Oddly, this could mean that an employee that was fired for cause prior to the covered period would still count as a missing FTE during the covered period.”

My employees have nothing to do until my business is allowed to reopen and ramps back up. What if I want to save the PPP funds for after the eight-week period?

For example, Royal said, “if you’re a restaurant, you’re not open now. Maybe, if you’re lucky, you’re doing takeout, but the bulk of your business is full service. So the timing has presented issues because they can’t be fully ramped up now, but they’ve got to avail themselves of the funds right now before they run out.”

Businesses may absolutely hang onto the money and use it beyond the eight-week window, she explained — but they will have to pay it back over two years with 1% interest.

“That’s a very attractive loan,” Crouss noted. “Many businesses are making that decision — which is a perfectly sound decision. This only goes for eight weeks, and when you get that amount of money, it should cover your payroll for eight weeks, but what happens if the world hasn’t righted itself? So maybe it makes sense to save it for a rainy day and think of it as a loan and not a forgivable grant.”

Do I have to claim the PPP loan as income?

“The good news is, the IRS has spoken and said no,” Royal said. However, expenses paid for with PPP funds are also not deductible. “That makes sense — you can’t double dip. The way I conceptualize this is, it didn’t happen. We’re going to pretend this period didn’t happen for tax purposes.”

—Joseph Bednar

Coronavirus Sections Special Coverage

Seeking Forgiveness with Little Guidance

By Scott Foster

The Paycheck Protection Program (PPP), part of the CARES Act, was launched just over a month ago to much fanfare and promise, but has been bogged down since with technical malfunctions, overwhelmed bankers, political missteps, and incomplete guidance from the U.S. Small Business Administration (SBA). Current guidance on the forgiveness of these loans is scant, additional guidance has been recently posted, and more is expected in the near future. The SBA’s FAQs for PPP have been updated several times a week since they were originally published on April 3, reflecting the current thinking of the SBA in interpreting the CARES Act.

Many businesses have already received their PPP loan proceeds and are wondering: how should I use these funds? How do I document that use? Will all of my PPP loan be forgiven? Unfortunately, until the SBA issues complete guidance — or Congress amends the CARES Act, which is quite likely — we are all in a bit of limbo, but let’s start with what we know today.

What is the covered period? The eight-week period starts on the day your PPP loan was disbursed/funded. Therefore, if your loan was funded on April 15, your covered period should be from April 15 to June 9. Only expenses that are related to the covered period are potentially forgivable.

What expenses are forgivable? First category: payroll expenses, including health insurance and retirement expenses, subject to a cap of $100,000 per year for salary per person. This translates into a $15,384 cap on forgivable compensation. Self-employment income is included in payroll expenses, but the amount that can be forgiven is 8/52nd of that individual’s self-employment income for 2019. Second category: rent (or interest payments on your mortgage) and utilities. But the forgivable amounts in this category cannot exceed 25% of the total amount to be forgiven (said another way, these expenses cannot be greater than one-third of your payroll expenses). Therefore, incurring payroll expenses during the covered period is critical to receiving any loan forgiveness.

If I have $100,000 in forgivable expenses, but I have fewer employees on payroll, does that matter? Yes. The CARES Act provides that any forgiveness is reduced proportionately to the extent your full-time equivalent employees (FTEs) during the covered period are fewer than the FTEs your business had either at the start of 2020 or early 2019. However, the CARES Act also provides that, if you rehire any employee laid off between Feb. 15 and April 26 by June 30, that employee then counts as a FTE during the covered period (but this won’t increase the amount of your potential forgiveness, since the forgiveness is based on your actual payroll expenses in the covered period).

I laid off several employees, but now that I have the PPP loan, I’m ready to hire them back. However, they are making more on unemployment (with the $600-per-week temporary federal bonus) than I can pay them. Now what? There are a bunch of interrelated issues here, but the bottom line is this: as long as you offer the employee their job back, then they should no longer qualify for unemployment, and the SBA has indicated that, if the employee doesn’t return after you offer them their old job, that won’t count against you for the FTE test. This is one issue that members of Congress have cited in a push to amend the CARES Act to extend the covered period for certain impacted businesses, so there is a chance we will see an amendment that would, for example, extend the covered period to 16 weeks.

What documentation will I need to provide to get forgiveness? At a minimum, you can expect to need to provide the same information you provided to obtain the loan: payroll records (ideally a report from your payroll provider), proof of rent payments, utility bills, and a copy of your lease. You will also need to document the number of FTEs you have during the covered period and compare that to the number of FTEs that you had in either the 2019 or 2020 testing period.

Should I put the PPP loan proceeds in a separate account? Ideally, yes. This is a recommended best practice. You will need to show that you used these funds for their intended use. If the funds are co-mingled with other funds, that might make it more difficult to demonstrate how the PPP funds were used.

We are an essential business and have not felt any significant negative effects yet. Can we still use the PPP loan funds? This is one of the murkiest areas, and we need further guidance from the SBA, especially in light of recent unhelpful comments from U.S. Sen. Ron Johnson and Treasury Secretary Steven Mnuchin. On one hand, every business is America is facing some degree of uncertainty, even if you are up and running. What happens if one of your employees get sick? Or if a major customer shuts down? Or a supplier is unable to meet your needs? On the other hand, if you truly are not feeling any impact, then was the certification you made on the application (“current economic uncertainty makes this loan request necessary to support the ongoing operations”) really accurate?

We are recommending that you document the uncertainty your business is facing, even if the uncertainty never comes to pass, along with any steps you are taking and costs you are incurring to mitigate the risks. For example, did you increase pay to your employees during the state of emergency? Have costs associated with cleaning or sanitizing your facility increased? You may also want to document what you would have done had the PPP loan not been available. For example, would you have reduced hours or furloughed employees in anticipation of decreased income?

My business is currently closed due to the governor’s order. What should I do? The only way to have any portion of your loan forgiven is to spend the proceeds on payroll. You either need to try to hire back your employees (maybe to only lay them off again at the end of the covered period) or pay back the unforgiven portion of the loan (which is accruing interest at the rate of 1% on any amount not forgiven). Currently, there is no way to use the PPP loan proceeds after the covered period and have those expenses forgiven.

Scott Foster is a partner at Bulkley Richardson.

COVID-19 Daily News

WASHINGTON, D.C. — The U.S. Small Business Administration (SBA) resumed accepting Paycheck Protection Program (PPP) loan applications on April 27 from approved lenders on behalf of any eligible borrower, following an infusion of $310 billion into the program last week.

“The PPP has supported more than 1.66 million small businesses and protected over 30 million jobs for hardworking Americans. With the additional funds appropriated by Congress, tens of millions of additional workers will benefit from this critical relief,” SBA Administrator Jovita Carranza and U.S. Treasury Secretary Steven Mnuchin said in a statement. “We encourage all approved lenders to process loan applications previously submitted by eligible borrowers and disburse funds expeditiously. All eligible borrowers who need these funds should work with an approved lender to apply. Borrowers should carefully review PPP regulations and guidance and the certifications required to obtain a loan.”

For more information on the PPP, visit sba.gov/paycheckprotection.

Coronavirus

Mixed Bag

Matt Sosik helped Char Gentes

Matt Sosik helped Char Gentes secure a PPP loan through bankESB that kept Riverside Industries employees paid for eight weeks

Char Gentes calls the Paycheck Protection Program “a lifeline.” Her nearly 200 employees no doubt agree.

Gentes is the president and CEO of Riverside Industries, a nonprofit that serves people with disabilities, helping them find ways to achieve daily independence, from securing and maintaining jobs to undertaking activities like voting and going to the store.

In mid-March, the organization was shut down by the same mandate that has shuttered the doors on countless businesses and nonprofits across Massachusetts. Four weeks later, Riverside hadn’t laid anyone off — but that situation was unsustainable.

“We had been keeping our employees paid as we were waiting to hear what the state reimbursement was going to be; actually, a lot of nonprofits were doing that,” Gentes told BusinessWest. “The senior management, myself, and the board were all on the same page — we wanted to keep our employees home, we wanted to have their back, and we wanted, as much as possible, to continue to pay them 100% and make sure they had health insurance. These human-service workers are often people who live paycheck to paycheck.”

When bankESB approved a Paycheck Protection Program (PPP) loan to Riverside Industries, Gentes could breathe a little easier, as the loan will allow it to pay its employees for the next eight weeks.

“We’re grateful for those eight weeks, and we certainly hope to be able to open our doors sometime in June,” she said.

While Riverside’s Easthampton facilities are closed, its mission has not stopped, as the organization continues working with clients under a new remote service model. Without the PPP loan, Gentes said that she would be facing some difficult decisions on how to keep her organization operational.

That contrast — between desperation and relief — explains why so many small businesses are frustrated with the PPP, which quickly ran out of money, and also generated plenty of confusion in the banks where business owners applied for loans.

The PPP is a small-business stimulus program included in the federal government’s Coronavirus Aid, Relief, and Economic Security (CARES) Act. The PPP initially provided $349 billion for U.S. Small Business Administration (SBA) lenders like bankESB to fund loans to businesses in order to guarantee eight weeks of payroll and other costs to help businesses remain viable. To qualify, businesses must have 500 or fewer employees and demonstrate that they have been negatively affected by COVID-19.

When the $349 billion ran out in less than two weeks, the shortfall generated an immediate outcry — not only for a second infusion of funding, but because of news that large, national companies were claiming tens of millions in PPP funds while small businesses couldn’t get access.

That second round of funding — $310 billion in total, approved by the U.S. Congress on April 22 — may not last much longer, but banks have likely learned lessons from the first round.

Sense of Urgency

Matt Sosik, president and CEO of bankESB, remembers those first days of the PPP well.

“It was harrowing. They did, in fact, rush it because they felt the urgency … but the program was not ready for prime time,” he recalled. “When it rolled out, a lot of people were frustrated, but — and I’m not trying to sound defensive — I wish people wouldn’t blame local banks. We were in the dark; the customers knew what we knew, and it wasn’t enough. They didn’t provide enough instruction.

“In the end, we made it out on the other side, and we got caught up,” Sosik told BusinessWest in mid-April, noting that the three banks in the Hometown Financial Group family, including bankESB, approved $100 million under the program, and spent the next week getting money into the hands of the people who were approved.

“It was very, very difficult — a massive amount of work by our employees. They kept grinding and got us out on the other side of things,” he said.

U.S. Treasury Secretary Steven Mnuchin reported that, following the PPP launch, the SBA processed more than 14 years’ worth of loans in less than 14 days.

“The PPP enjoyed broad-based participation across the country from lenders of all sizes and a wide array of industries and businesses,” he noted. “From its start on April 3, PPP provided payroll assistance to more than 1.6 million small businesses in all 50 states and territories. Nearly 5,000 lenders participated in this critical program, including significant lending by community banks and credit unions. Nearly 20% of the amount approved was processed by lenders with less than $1 billion in assets, and approximately 60% of the loans were approved by banks with $10 billion of assets or less. No lender accounted for more than 5% of the total dollar amount of the program.”

“It was harrowing. They did, in fact, rush it because they felt the urgency … but the program was not ready for prime time.”

The majority of these loans — 74% — were for under $150,000, he noted, but that didn’t stop a swell of outrage following reports of large companies, from Ruth’s Chris Steak House to Hallidor Energy, claiming eight-figure PPP loans.

Few in Washington balked at the need for additional funding. The second round of $310 billion is part of a larger, $480 billion relief package that also includes money for hospitals and expanded COVID-19 testing. Of the $310 billion, $60 billion will be set aside for smaller lending facilities, including community financial institutions; small, insured depository institutions; and credit unions with assets under $10 billion.

The Next Wave

Bankers hope for a smoother process getting the new funds approved.

“It got off to a rocky start and got a lot of bad press — I Googled and found maybe one story with a remotely positive angle to it,” Sosik said, before coming back to Riverside Industries. “This is a story about the good parts of humanity — the work Riverside does and our ability to play a small role in helping them stay alive. They do such incredible work, such necessary work.

“Riverside is a strong organization financially,” he went on. “It’s just that, when funding isn’t coming in, it doesn’t have a war chest to keep dipping into.”

As for Gentes, she’s hoping the loan helps her not only take care of employees, but prepare them to return when the governor says it’s OK to open the doors and restart person-to-person services.

“When we’re ready, we need our workforce to come back, and we need them to be ready to come back,” she said, adding that the organization’s roughly 150 clients are called once a week, maybe twice, to make sure they’re OK. “We’re in the process of developing remote learning, and assessing what each client has available to them in terms of technology to make this happen.”

Countless other small businesses and nonprofits have equally pressing needs, and could use a lifeline, she told BusinessWest. “Without it, a lot of nonprofits will go under.”

Sosik likes hearing that.

“I have to admit, it’s heartwarming to make a difference,” he said. “And I’ve heard some other good stories. There’s so much uncertainty — ‘I’ve put all my blood, sweat, and tears into my business; is it all over for me?’ To relieve that pressure has been a heartwarming experience for us.”

Joseph Bednar can be reached at [email protected]

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