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The Coronavirus Aid, Relief, and Economic Security (CARES) Act contains a business relief provision known as the Employee Retention Credit (ERC), a refundable payroll tax credit for “qualified wages” paid to retained full-time employees from March 13, 2020, to Dec. 31, 2020. The purpose of the ERC was to encourage employers to keep employees on the payroll, even if they were not working during the covered, COVID-19, period.
The ERC was further expanded under both the Consolidated Appropriations Act, 2021 and the American Rescue Plan Act, and can now be claimed through Dec. 31, 2021 by eligible employers who retained employees during the pandemic.
What is the Employee Retention Credit?
The ERC is a refundable credit that businesses can claim on qualified wages, including certain health insurance costs, paid to employees.
CARES Act – 2020
For employers who qualify, including initial PPP recipients, the credit can be claimed against 50 percent of qualified wages paid between March 13 and December 31, 2020, up to $10,000 per employee annually.
Consolidated Appropriations Act – 2021
Employers who qualify, including PPP recipients, can claim a credit against 70% of qualified wages paid. Additionally, the wage amount that qualifies for the credit is now $10,000 per employee per quarter for the first two quarters of 2021.
American Rescue Plan Act – 2021
The credit remains at 70% of qualified wages up to a $10,000 limit per quarter, so a maximum of $7,000 per employee per quarter or up to $28,000 for all of 2021. However, under this law, certain startup businesses —started after Feb. 15, 2020 and forced to shut down due to government order — may be allowed a credit of up to $50,000 per quarter.
Which Employers Qualify for the Employee Retention Credit?
Following the enactment of the American Rescue Plan Act, most employers, including colleges, universities, hospitals and 501(c) organizations can qualify for the credit. Previously, the Consolidated Appropriations Act expanded qualifications to include businesses who took a PPP loan, including borrowers from the initial round of PPP who originally were ineligible to claim the tax credit.
Qualification is determined by one of two factors for eligible employers — and one of these factors must apply in the calendar quarter the employer wishes to utilize the credit:
- Trade or business was fully or partially suspended or had to reduce business hours due to a government order. The credit applies only for the portion of the quarter the business is suspended, not the entire quarter.
- Employer has a significant decline in gross receipts.
CARES Act – 2020
- Generally, if gross receipts in a calendar quarter are below 50% of gross receipts of the same calendar quarter in 2019, an employer would qualify. They are no longer eligible if their quarter gross receipts exceed 80% in the calendar quarter immediately following compared to the same calendar quarter in 2019.
Consolidated Appropriations Act, 2021
- Beginning in 2021, businesses must be impacted by forced closures or quarantines or have seen more than a 20% drop in gross receipts in the quarter compared to the same quarter in 2019.
- If you are a new business, the IRS allows the use of gross receipts for the quarter in which you started business as a reference for any quarter for which they do not have 2019 figures because you were not yet in business.
American Rescue Plan Act – 2021
- In addition to eligibility requirements under the Consolidated Appropriations Act 2021, businesses also have the option of determining eligibility based on gross receipts in the immediately preceding calendar quarter (compared with the corresponding quarter in 2019).
Note: A member of controlled or affiliated service groups are considered a single employer, so they must aggregate their gross receipts to determine when and if they qualify.
What wages qualify when calculating the retention credit?
In general, wages/compensation that are subject to FICA taxes, as well as qualified health expenses, qualify when calculating the employee retention credit. These must have been paid after March 12, 2020 and qualify for the credit if paid through Dec. 31, 2021. Remember, the credit can only be taken on wages that are not forgiven or expected to be forgiven under PPP or used for any other types of credits that are determined using wages.
Qualified health expenses, generally include the employer and employee pretax portion and not any after-tax amounts. Also, when determining the qualified wages that can be included, an employer must first identify the number of full-time employees.
For the purposes of the employee retention credit, a full-time employee is defined as one that in any calendar month in 2019 worked at least 30 hours per week or 130 hours in a month and is based on the employer shared responsibility provision in the ACA.
- Employers who were in business the entire calendar year in 2019 or 2020 would take the sum of the number of full-time employees in each calendar month and divide by 12.
- An employer who started a business during 2019 or 2020 determines the number of full-time employees by taking the sum of the number of full-time employees in each full calendar month in 2019 or 2020 in which the business operated and divide by that number of months.
- An employer who started a business in 2021 determines the number of full-time employees by taking the sum of the number of full-time employees in each full calendar month in 2021 that the business operated and divides by that number of months.
Note: The employee calculation of full-time equivalent (FTE) used for the PPP forgiveness report is not calculated the same way as a full-time employee for the employee retention credit.
CARES Act – 2020
Those who have more than 100 full-time employees can only use the qualified wages of employees who are not providing services because of suspension or decline in business. Furthermore, any wages paid for vacation, sick or other days off based on the employer’s current policy cannot be included in qualified wages for the larger employers. Basically, employers can only use this credit on employees who are not working.
Employers with 100 or fewer full-time employees can use all employee wages — those working, as well as any time paid not being at work with the exception of paid leave provided under the Families First Coronavirus Response Act.
Consolidated Appropriations Act – 2021
This law increased the employee limit to 500 for determining which wages are applicable for the credit.
American Rescue Plan Act – 2021
This law allows certain hardest-hit businesses to claim the credit against all employees' qualified wages instead of just those who are not providing services. To be eligible for the credit in 2021, an organization's gross receipts must be less than 80% compared to the same quarter in 2019.
Of note
- There is no double-dipping for credits. Employers who take the employee retention credit cannot take credit on those same qualified wages for paid family medical leave.
- If an employee’s wages are used to determine the Work Opportunity Tax Credit, they may not be used to determine the employee retention credit.
So, employers considering which credits to take should evaluate which one is better financially to their business.
How Does a Business Claim the Employee Retention Tax Credit Retroactively?
On March 1, 2021, the IRS issued Notice 2021-20 that provides guidance for employers claiming the Employee Retention Tax Credit, including guidance on how employers who received a PPP loan can retroactively claim the employee retention tax credit. In order to claim the credit for past quarters, employers must file Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund, for the applicable quarter(s) in which the qualified wages were paid. The IRS includes three examples (Q&A No. 57) to highlight the process.
How does a PEO client employer reconcile?
Employers utilizing a Professional Employer Organization (PEO) or Certified Professional Employer Organization (CPEO) do not have an individual 941 filed on their behalf, so it’s important for them to understand how they would reconcile this information and receive the credit. The IRS posted guidance to clarify how it would work.
If an eligible employer uses a PEO or CPEO, the retention credit is reported on the PEO/CPEO aggerate Form 941 and Schedule R.
Please reach out to Brixey & Meyer to help navigate the Employee Retention Credit. We are committed to keeping our clients, friends and families posted on the latest developments. You can simply comment below, visit our website or call us at 866.760.0940.