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Tax Breaks

The Employee Retention Tax Credit Helps Keep Workers Working

The credit is worth up to $5,000 per paid employee for businesses financially harmed by the coronavirus pandemic that continue to keep employees on the payroll.

Congress is relying in part on tax relief to help boost the U.S. economy dragged down by the coronavirus pandemic. Take, for example, the employee retention tax credit (ERTC), a federal payroll tax break available to businesses that have been economically hurt by the coronavirus crisis but continue to keep employees on the payroll. It was enacted in March as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Eligible Employers

The credit of up to $5,000 per paid employee offsets the employer's 6.2% share of Social Security taxes, with the excess refundable. Eligible employers are those who have had to close shop or reduce hours because of a government order, or whose gross receipts in a quarter have declined by over 50%, compared with the same quarter in 2019. Charities and other tax-exempt organizations qualify for the credit. State and local governments, as well as the federal government, do not. Employers that get a loan under the Small Business Administration's Paycheck Protection Program are currently not eligible for the ERTC, either.

Amount of the Credit

The credit is 50% of up to $10,000 in qualified wages per employee. "Qualified wages" are wages paid from March 13 through December 31, 2020, and depend on the number of employees the business had in 2019. For firms averaging more than 100 employees in 2019, qualified wages are wages paid to employees only for the time they did not work. For smaller firms, all wages paid to employees are qualified wages, regardless of whether the employees worked or not. Qualified wages also consist of employer-provided health care, including the employer's cost of health coverage for unpaid, furloughed workers. (Note the IRS first said that the cost of employer health insurance for unpaid, furloughed workers isn't included in qualified wages, but changed its mind after getting pressure from congressional taxwriters). Qualified wages do not include wages computed in figuring the payroll tax credit for small employers that provide mandated paid sick or family leave to workers affected by the COVID-19 virus.

Claiming the Credit

As mentioned above, the ERTC offsets the employer's 6.2% share of Social Security taxes, with the excess refundable. Employers claim the credit on their quarterly Form 941, and they have two ways of quickly taking advantage of the break before they even file the 941. First, they can reduce employment tax deposits otherwise owed to the IRS by the amount of the ERTC the business qualifies for. Employment taxes that can be reduced include (1) withheld federal income tax from employee wages, and (2) the employees' and employer's shares of Social Security and Medicare taxes. Second, if the credit exceeds employment tax deposits, then employers can seek advance payments for the excess by filing new IRS Form 7200. Employers can fax the form to the IRS at 855-248-0552. When employers file their quarterly Form 941, they will need to reconcile the ERTC with any reduced deposits and/or advance payments they received.

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There are lots of rules and complexities involved with the ERTC. The IRS has provided online guidance on this credit in a set of FAQs covering various topics.

Making the Credit Better

The ERTC has support from Republicans and Democrats, who agree that the credit should be enhanced. The HEROES Act, the massive stimulus bill passed last week by the Democrat-controlled House of Representatives, would greatly improve the ERTC. The bill would raise the maximum credit amount from $5,000 to $36,000 per paid worker, extend the credit to eligible state and local government employers, change the 100-employee rule for determining qualified wages, and allow employers that take out PPP loans to qualify for the credit. Although many of the provisions in the House bill are a wish list for Democrats and have no chance of enactment, the ERTC enhancements have strong support in Congress from both sides of the aisle. For example, Kevin Brady (R-TX), the minority leader of the House Ways & Means Committee, said Republicans "were interested in continuing to make [the] credit work" and are "open to it." Expect to see these and maybe other improvements to the ERTC in the next stimulus legislation sometime in June or later this summer.

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