Proposed Legislation May Have ERC Implications
If enacted, The Tax Relief for American Families and Workers Act introduced on January 17, 2024, and approved by the House Ways and Means Committee on January 19th, would accelerate the due date for ERC submissions to January 31, 2024 (next Wednesday), and introduce measures to increase penalties on fraudulent promoters. The proposed earlier deadline would be applicable to all ERC claim submissions, creating a very narrow timeframe for submitting eligible claims.
What you thought wasn’t due until April 15, 2024 (2020 claims), or even April 15, 2025 (2021 claims), could become due next week.
IRS alerts businesses, tax-exempt groups of warning signs for misleading Employee Retention scams; simple steps can avoid improperly filing claims
WASHINGTON – As aggressive marketing continues; the Internal Revenue Service today renewed an alert for businesses to watch out for tell-tale signs of misleading claims involving the Employee Retention Credit.
The IRS and tax professionals continue to see a barrage of aggressive broadcast advertising, direct mail solicitations and online promotions involving the Employee Retention Credit. While the credit is real, aggressive promoters are wildly misrepresenting and exaggerating who can qualify for the credits.
The IRS has stepped up audit and criminal investigation work involving these claims. Businesses, tax-exempt organizations and others considering applying for this credit need to carefully review the official requirements for this limited program before applying. Those who improperly claim the credit face follow-up action from the IRS.
“The aggressive marketing of the Employee Retention Credit continues preying on innocent businesses and others,” said IRS Commissioner Danny Werfel. “Aggressive promoters present wildly misleading claims about this credit. They can pocket handsome fees while leaving those claiming the credit at risk of having the claims denied or facing scenarios where they need to repay the credit.”
The Employee Retention Credit (ERC), also sometimes called the Employee Retention Tax Credit or ERTC, is a legitimate tax credit. Many businesses legitimately apply for the pandemic-era credit. The IRS has added staff to handle ERC claims, which are time-consuming to process because they involve amended tax returns.
“This continual barrage of marketing by advertisers means many invalid claims are coming into the IRS, which also means it takes our hard-working employees longer to get to the legitimate Employee Retention Credits,” Werfel said. “The IRS understands the importance of these credits, and we appreciate the patience of businesses and tax professionals as we continue to work hard to get valid claims processed as quickly as possible while also protecting against fraud.”
The IRS has been issuing warnings about aggressive ERC scams since last year, and it made the agency’s list this year of the “Dirty Dozen” tax scams that people should watch out for.
This is an ongoing priority area in many ways, and the IRS continues to increase compliance work involving ERC. The IRS has trained auditors examining ERC claims posing the greatest risk, and the IRS Criminal Investigation division is working to identify fraud and promoters of fraudulent claims.
The IRS reminds anyone who improperly claims the ERC that they must pay it back, possibly with penalties and interest. A business or tax-exempt group could find itself in a much worse cash position if it has to pay back the credit than if the credit was never claimed in the first place. So, it’s important to avoid getting scammed.
When properly claimed, the ERC is a refundable tax credit designed for businesses that continued paying employees while shut down due to the COVID-19 pandemic or that had a significant decline in gross receipts during the eligibility periods. The credit is not available to individuals.
Warning signs of aggressive ERC marketing
There are important tips that people should be wary of involving the Employee Retention Credit. Warning signs to watch out for include:
- Unsolicited calls or advertisements mentioning an “easy application process.”
- Statements that the promoter or company can determine ERC eligibility within minutes.
- Large upfront fees to claim the credit.
- Fees based on a percentage of the refund amount of Employee Retention Credit claimed. This is a similar warning sign for average taxpayers, who should always avoid a tax preparer basing their fee on the size of the refund.
- Aggressive claims from the promoter that the business receiving the solicitation qualifies before any discussion of the group’s tax situation. In reality, the Employee Retention Credit is a complex credit that requires careful review before applying.
- The IRS also sees wildly aggressive suggestions from marketers urging businesses to submit the claim because there is nothing to lose. In reality, those improperly receiving the credit could have to repay the credit – along with substantial interest and penalties.
These promoters may lie about eligibility requirements. In addition, those using these companies could be at risk of someone using the credit as a ploy to steal the taxpayer’s identity or take a cut of the taxpayer’s improperly claimed credit.
How the promoters lure victims
The IRS continues to see a variety of ways that promoters can lure businesses, tax-exempt groups and others into applying for the credit.
- Aggressive marketing. This can be seen in countless places, including radio, television and online as well as phone calls and text messages.
- Direct mailing. Some ERC mills are sending out fake letters to taxpayers from the non-existent groups like the “Department of Employee Retention Credit.” These letters can be made to look like official IRS correspondence or an official government mailing with language urging immediate action.
- Leaving out key details. Third-party promoters of the ERC often don’t accurately explain eligibility requirements or how the credit is computed. They may make broad arguments suggesting that all employers are eligible without evaluating an employer’s individual circumstances.
- For example, only recovery startup businesses are eligible for the ERC in the fourth quarter of 2021, but promoters fail to explain this limit.
- Again, the promoters may not inform taxpayers that they need to reduce wage deductions claimed on their business’ federal income tax return by the amount of the Employee Retention Credit. This causes a domino effect of tax problems for the business.
- Payroll Protection Program participation. In addition, many of these promoters don’t tell employers that they can’t claim the ERC on wages that were reported as payroll costs if they obtained Paycheck Protection Program loan forgiveness.
How businesses and others can protect themselves
The IRS reminded businesses, tax-exempt groups and others being approached by these promoters that there are simple steps that can be taken to protect themselves from making an improper Employee Retention Credit.
- Work with a trusted tax professional. Eligible employers who need help claiming the credit should work with a trusted tax professional; the IRS urges people not to rely on the advice of those soliciting these credits. Promoters who are marketing this ultimately have a vested interest in making money; in many cases they are not looking out for the best interests of those applying.
- Don’t apply unless you believe you are legitimately qualified for this credit. Details about the credit are available on IRS.gov, and again a trusted tax professional – not someone promoting the credit – can provide critical professional advice on the ERC.
PPP forgiveness: One step closer for California businesses (02-18-21)
Governor Gavin Newsom, Senate President pro tempore Toni G. Atkins, and Assembly Speaker Anthony Rendon announced that they have reached an agreement on a package of immediate actions that will speed needed relief to individuals, families, and businesses suffering the most significant economic hardship from the COVID-19 recession.
Included in the agreement is partial conformity to new federal tax treatment for loans provided through the Paycheck Protection Program, allowing companies to deduct up to $150,000 in expenses covered by the PPP loan. All businesses that took out loans of $150,000 or less would be able to maximize their deduction for state purposes. Firms that took out higher loans would still be subject to the same ceiling of $150,000 in deductibility. This tax treatment would also extend to the Economic Injury Disaster Loans as well.
The proposal also includes stimulus payments to individuals, fee waivers for bars and restaurants, and continued grants of up to $25,000 for California businesses.
On Wednesday June 17, the SBA released the latest PPP loan forgiveness application. No word on whether this is the final version – as those of you who have been tracking this PPP madness from the beginning know, what is true today may not be true tomorrow. All details and links in this article from the trusted Journal of Accountancy:
The SBA will have two loan programs to assist you through COVID-19: the Disaster Relief Program, formally known as the Economic Injury Disaster Loan Program (EIDL) and the Paycheck Protection Program. Disaster Relief Program loans are handled directly through the SBA, not through the bank. These are long term, low interest rates loans. Here is the link to the website:
https://disasterloan.sba.gov/ela/Declarations/Index
- Loans are generally up to $2 million and for working capital.
- Rates are normally at Prime. Term is generally up to 30 years. Terms and conditions will come from SBA during the application process with SBA.
- Application Forms are electronic.
- Once you have applied with the SBA, they will handle the process from initial disbursement to final disbursement.
The stimulus bill (CARES Act) that was just signed by the President includes funding for a new SBA program called the Paycheck Protection Program. The Program Guide is being developed by the SBA and should be out in the next few weeks – until that happens no applications can be taken for this product. You would work with the bank on this program. The loan amount is determined by 2.5 X average monthly payroll of the business and there is a loan forgiveness feature – if employees are kept, the loan will be forgiven and the forgiveness does not have to be reported as taxable income – it would effectively be a grant.
Banks are advising clients to apply for the Disaster Relief Program Loan while the Paycheck Protection Program Guide is being developed and all the eligibility requirements and program details become known. Businesses cannot obtain both a Disaster loan and a Paycheck forgivable loan, but will be able to they weigh their options if they pursue loans through both programs.
A bipartisan IRS reform bill, Taxpayer First Act (HR3151) was signed into law by President Trump on July 1, 2019. This is the first legislation in 20 years aimed at modernizing the IRS and strengthening taxpayer rights.
The Taxpayer First Act:
- requires IRS to develop a plan to improve customer service;
- establishes an Independent Appeals Process and allows eligible taxpayers access to the IRS’s administrative file;
- includes provisions to improve IRS protections for ID theft;
- makes reductions to the threshold for e-filing;
- clarifies process is de novo (a new look at facts and law by the court) for innocent spouse relief from joint liability;
- bars collection of delinquent tax by a private debt collector if taxpayer’s AGI is below 200% of the federal poverty level;
- requires the IRS to provide advance notice to the taxpayer of a third party summons–at least 45 days before the beginning of contacts, but not more than one year before;
- requires the IRS to maintain its Free File Program;
- establishes new safeguards regarding seizure of funds for structured deposits meant to avoid the $10,000 form 8300 reporting; and
- directs IRS to allow credit and debit card payments of taxes if fees are paid by the taxpayer.
Security Summit warns of new IRS impersonation email scam; reminds taxpayers the IRS does not send unsolicited emails
WASHINGTON — The Internal Revenue Service and its Security Summit partners today warned taxpayers and tax professionals about a new IRS impersonation scam campaign spreading nationally on email. Remember: the IRS does not send unsolicited emails and never emails taxpayers about the status of refunds.
The IRS this week detected this new scam as taxpayers began notifying phishing@irs.gov about unsolicited emails from IRS imposters. The email subject line may vary, but recent examples use the phrase “Automatic Income Tax Reminder” or “Electronic Tax Return Reminder.”
The emails have links that show an IRS.gov-like website with details pretending to be about the taxpayer’s refund, electronic return or tax account. The emails contain a “temporary password” or “one-time password” to “access” the files to submit the refund. But when taxpayers try to access these, it turns out to be a malicious file.
“The IRS does not send emails about your tax refund or sensitive financial information,” said IRS Commissioner Chuck Rettig. “This latest scheme is yet another reminder that tax scams are a year-round business for thieves. We urge you to be on-guard at all times.”
This new scam uses dozens of compromised websites and web addresses that pose as IRS.gov, making it a challenge to shut down. By infecting computers with malware, these imposters may gain control of the taxpayer’s computer or secretly download software that tracks every keystroke, eventually giving them passwords to sensitive accounts, such as financial accounts.
The IRS, state tax agencies and the tax industry, which work together in the Security Summit effort, have made progress in their efforts to fight stolen identity refund fraud. But people remain vulnerable to scams by IRS imposters sending fake emails or harrassing phone calls.
The IRS doesn’t initiate contact with taxpayers by email, text messages or social media channels to request personal or financial information. This includes requests for PIN numbers, passwords or similar access information for credit cards, banks or other financial accounts.
The IRS also doesn’t call to demand immediate payment using a specific payment method such as a prepaid debit card, gift card or wire transfer. Generally, the IRS will first mail a bill to any taxpayer who owes taxes.
President Trump and Republican lawmakers currently are considering a second round of tax reform legislation as a follow-up to last year’s Tax Cuts and Jobs Act (TCJA). As of this writing, there’s been no actual bill drafted. However, House Ways and Means Committee Chair Kevin Brady (R-TX) just released a broad outline or framework of what the tax package may contain.
Proposed framework
One of the main themes of the proposed legislation is to make permanent certain provisions in the TCJA, including:
- Federal income tax rate cuts for individual taxpayers,
- The doubled child tax credit, and
- The deduction for up to 20% of qualified business income (QBI) from pass-through entities (sole proprietorships, partnerships, LLCs and S corporations).
These pro-taxpayer changes are scheduled to expire at the end of 2025 along with several other TCJA changes, some of which are not taxpayer-friendly.
The framework released by Brady also would help Americans save more for retirement. It would create a new Universal Savings Account that would allow tax-free withdrawals for a variety of needs and would expand Section 529 education savings plans to allow tax-free withdrawals to pay for apprenticeship fees to learn a trade, cover the cost of home schooling and help pay off student debt. Contributions to Universal Savings Accounts would be made with after-tax dollars, like contributions to Roth IRAs. The framework also proposes to permit families to access their retirement accounts penalty free after a birth or adoption and allow new businesses to write off more of their start-up costs.
President Trump has separately suggested lowering the corporate federal income tax rate from 21% to 20%. The TCJA permanently lowered the corporate rate from a maximum of 35% under prior law to a flat 21% for tax years beginning in 2018 and beyond.
Chairman Brady has indicated that indexing capital gains for inflation is also under consideration for Tax Reform 2.0. Indexing would allow taxpayers to increase the tax basis of capital gains assets — such as stocks, mutual fund shares and real estate — to account for inflation. Indexing would result in lower taxable gains when affected assets are sold for a profit. Some observers have argued that indexing could be achieved without the need for legislation by simply issuing IRS regulations that allow indexing.
No “extenders” in Tax Reform 2.0
Chairman Brady has indicated that any Tax Reform 2.0 package probably won’t include extensions of a number of tax breaks that Congress habitually allows to expire and then retroactively extends. These so-called “extenders” will likely be addressed by separate legislation. For individual taxpayers, the two important extenders are the deduction for up to $4,000 of qualified higher-education tuition and fees and tax-free treatment for up to $2 million of forgiven home mortgage debt. Both of these breaks expired at the end of 2017. Other extenders that expired at that time include several business depreciation and expensing breaks and energy related breaks.
Possible technical corrections legislation
Like most major legislation, the TCJA included some errors, oversights and omissions that Congress didn’t intend. Such glitches are typically fixed retroactively by so-called “technical corrections legislation.” House Speaker Paul Ryan (R-WI) has indicated that a technical corrections bill, mainly focused on international tax fixes, may be introduced after the November midterm election — when it would hopefully garner some support from congressional Democrats. Any technical corrections bill would probably be separate from the Tax Reform 2.0 bill.
Retirement savings bill
Separate from the Tax Reform 2.0 discussions, bipartisan legislation has been introduced in the U.S. Senate to help encourage Americans to save more for retirement. The Retirement Enhancement and Savings Act contains a number of incentives that include allowing employees to buy an annuity; making it easier for small companies to offer retirement plans; and permitting people older than age 70½ to contribute to traditional IRAs. It’s possible these provisions could be part of a 2.0 bill or they could make up a stand-alone bill.
Stay tuned
Chairman Brady is encouraging House Republicans to hold “listening sessions” with their constituents during the upcoming August recess with a view toward a committee vote in September. If all goes well, Republicans are tentatively scheduling a House vote on a Tax Reform 2.0 bill by the end of September. Bear in mind that the November midterm election may play into the final package of legislation, as vulnerable Republicans plead their cases for specific provisions. Contact us if you have questions about how the proposed legislation may affect your individual or business tax planning.