by Ryan Lauer, author, Barnes Dennig

Passed as part of the CARES Act at the onset of COVID-19 in the spring of 2020, the Employee Retention Tax Credit (ERTC) Program, in very simple terms, is a credit for continuing to pay employees during the pandemic if certain tests are met.

While the name suggests it’s related to tax, it’s an actual cash refund if you qualify. The credit is driven off of headcount and can add up to a significant sum depending on your total headcount and payroll. It can add up quickly, even for small organizations, as the credit could be up to $5,000 per employee in calendar year 2020 and up to $21,000 per employee in calendar year 2021. If your organization experienced either a gross receipts decline or more than a nominal portion of your business was suspended in 2020 or 2021 because of a government order, you may qualify.

The ERTC did not garner the media attention the Payroll Protection Program (PPP) did when the CARES Act first went into effect because, at that time, businesses and organizations were only allowed to pursue one program – and the vast majority chose the PPP route. However, the Consolidated Appropriations Act (CAA) passed in late 2020 reversed course and allowed taxpayers to pursue ERTC even if they took a PPP loan. Overnight, the number of organizations that could qualify exploded and has resulted in significant cash refunds for thousands of organizations.

The ERTC program is in place for wages paid between March 13, 2020, and Sept. 30, 2021. President Biden signed the Infrastructure Innovation and Jobs Act back in November 2021, sunsetting the Employee Retention Tax Credit (ERTC) program one quarter early (with some exceptions for recovery startups). This early “cut-off” eliminated the 4th quarter of 2021 as a qualifying quarter for the credit – but it doesn’t preclude taxpayers from still claiming the credit for prior eligible quarters.

Qualification: Gross receipts method

To qualify under the gross receipts method, your organization must have experienced a 50% decline in gross receipts during a calendar quarter in 2020 as compared to the same calendar quarter in 2019. To quality in 2021, the threshold is lowered to only a 20% decline in gross receipts as compared to the same calendar quarter in 2019. PPP loan proceeds (when received or when forgiven) are not included as a gross receipt for purposes of this test. While the 50% decline to qualify in 2020 is a steep mark to hit, the reduction to 20% in 2021 results in many more organizations qualifying for the credit. Having said that, the gross receipts method is not the only way to qualify for the credit.

Qualification: Government suspension of operations/partial suspension

Didn’t meet the gross receipts decline test or have a full business shutdown as a result of a government order? There’s still a chance organizations that operated as essential businesses could qualify for the Employee Retention Tax Credit. To qualify under a partial government shutdown, a business unit or program that comprised at least 10% of the gross receipts in the same quarter in 2019 and was suspended from operations (as a result of a COVID-19 government shutdown order), would qualify the entire organization.

For example, if Business Unit A (or Program A) was shut down for a period of time at the onset of COVID-19, and the unit generated 15% of 2nd Quarter revenue in 2019, that could potentially qualify the overall business for the ERTC during the 2020 shutdown period.

Furthermore, in this example, it’s not only Business Unit A that has qualifying wages for the credit: all wages of all business units of the company would qualify during this period of time. Thus, as long as a nominal portion (10%) of the business was suspended, it could be enough to qualify the whole business for the credit.

Eligible wages

Wages that are eligible to be utilized for the credit include W-2 gross wages, pre-tax employee paid health insurance premiums and employer-side paid health insurance premiums. One caveat to keep in mind – wages utilized for PPP forgiveness, or any other credit, cannot also be utilized as qualifying wages for the Employee Retention Tax Credit. Having said that, organizations that received PPP proceeds are still seeing sizeable refunds on the ERTC side, so taking a PPP loan isn’t a reason to not consider the ERTC.

Other considerations

The Employee Retention Tax Credit is a taxable credit. The funding is taxable in the year the wages were paid and could require an amended tax return for taxable legal entities. However, non-profits will not have tax burden related to the credit and may not need to amend their 990s for this.

The ERTC is claimed on an amended quarterly payroll tax return (Form 941X). Once the IRS processes Form 941X, a check is issued to the taxpayer for the credit amount, plus interest. The statute of limitations for filing amended payroll tax returns is three years from the due date of the return, meaning to apply for the Employee Retention Tax Credit for the 2nd quarter of 2020, the amended return needs to be submitted by July 2023. Therefore, there’s still time to apply for the credit.

Find out if you qualify

The Employee Retention Tax Credit can be a massive opportunity if your organization qualifies. With the potential credit up to $5,000 per employee in calendar year 2020 and up to $21,000 per employee in calendar year 2021, organizations both big and small could greatly benefit from applying for the credit.

If you have questions about the qualification process, or want to know if your organization can benefit from the Employee Retention Tax Credit, talk to a member of the Barnes Dennig non-profit team today.

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