IRS Issues Guidance on ERC Termination

The chaotic situation which followed the arrival of the pandemic created significant financial challenges for many Atlanta businesses. The variety of government orders combined with public concern about transmission changed the business landscape virtually overnight. The shift meant many businesses needed new and immediate capital infusions to make it through the transition. The Employee Retention Tax Credit (ERC) which was implemented as part of the CARES Act was one of several programs designed to help. Along with other federal relief programs, many were saved from financial uncertainty.

Now that the pandemic has passed, many federal COVID-19 relief programs have closed. The ERC which was to expire at the end of 2021 was prematurely ended by the Infrastructure Investment and Jobs Act (Act) passed in mid-November. The allocated funds will now be redirected to help pay for the ambitious infrastructure investments and upgrades. The sudden termination left many Atlanta businesses with more questions than answers. The good news is the recently released IRS Notice 2021-65 provides important details many have been awaiting. To help clients, prospects, and others, Wilson Lewis has provided a summary of the key details below.  

ERC Termination

The guidance reaffirms the termination of the ERC effective September 30, 2021. It makes clear the traditional eligibility rules including the full/partial suspension of operations or decline in gross receipts (including severely financially distressed employers) no longer apply for the fourth quarter of 2021. In addition, the requirement that a recovery start-up business is not otherwise an eligible employer under traditional eligibility criteria has been removed.

Repayment Requirements

Since it was unclear whether ERC termination would be included in the Act, many had already applied for an advance payment against the expected credit amount for the 4^th quarter. Unfortunately, an advance payment of any portion of the ERC must be repaid as an employer is no longer eligible to receive the credit. Businesses have until the due date of the employment tax return which includes the last quarter of 2021. It is important to note that failure to repay may result in late fees, interest, and penalties as determined by the IRS.

Penalty Relief

It is possible to receive relief assuming all of the following conditions are met, including:

• An employer reduced the amount of employment tax deposits in anticipation of the ERC, and
• A deposit is made in the amount initially retained in anticipation of the credit on, or before, the due date for wages paid on December 31, 2021, and
• The tax liability arising from credit termination is reported on the applicable employment tax return.

In the event an employer does not qualify for this relief, it is possible to reply to a penalty notice with an explanation of circumstances and the IRS will consider whether a reasonable cause existed that warrants penalty abatement

Finally, any business (except a recovery start-up business) will be subject to a failure to deposit penalties if deposits are reduced after December 20, 2021. This means that Atlanta businesses should immediately contact internal/external payroll providers to ensure any scheduled reductions are properly adjusted.

Contact Us

The new IRS guidance provides important details about the termination of the ERC. To avoid any penalties or fines, it is important to ensure payroll tax deposits for the 4^th quarter do not include credit reductions. If you have questions about the information outlined above or need assistance retroactively claiming the Employee Retention Credit, Wilson Lewis can help. For additional information call 770-476-1004 or click here to contact us. We look forward to speaking with you soon.