Answers to PPP Loan FAQs (Now That There's Fresh Funding for the Loans)

Eligibility Based on Size of the Business

Question: Are small businesses required to have 500 or fewer employees to be eligible for PPP loans?

Answer: No. The Small Business Administration (SBA) says businesses can be eligible for PPP loans even if they have more than 500 employees. For example, a business with more than 500 workers can qualify if it meets the SBA employee-based or revenue-based size standard corresponding to its primary industry.

A business can also qualify for a PPP loan as a small business if it met both tests in the SBA's "alternative size standard" as of March 27, 2020:

• The maximum tangible net worth of the business is not more than $15 million; and
• The average net income after federal income taxes (excluding any carry-over losses) of the business for the two full fiscal years before the date of the application is not more than $5 million.

Annual Compensation Over $100,000

Question: The CARES Act excludes annual employee compensation in excess of $100,000 from the definition of payroll costs. Does that exclusion apply to all employee benefits of monetary value?

Answer: No. The exclusion of annual compensation in excess of $100,000 applies only to cash compensation, not to non-cash benefits, such as employer contributions to retirement plans.

Sick Leave

Question: Do PPP loans cover paid sick leave?

Answer: Yes. PPP loans cover payroll costs, including costs for employee vacation, parental, family, medical and sick leave. But sick and family leave wages are excluded for which a credit is allowed under certain sections of the Families First Coronavirus Response Act.

Payroll Cost Exclusions

Question: Is there anything that is expressly excluded from the definition of payroll costs?

Answer: The CARES Act excludes the following:

• Compensation of an employee whose principal place of residence is outside the U.S.;
• Compensation of an individual employee exceeding $100,000 for the year; and
• Federal employment taxes imposed or withheld between February 15, 2020, and June 30, 2020.

Payments to Independent Contractors or Sole Proprietors

Question: Should payments that an eligible borrower made to an independent contractor or sole proprietor be included in calculations of the borrower's payroll costs?

Answer: No. Amounts paid to an independent contractor or sole proprietor should be excluded. However, an independent contractor or sole proprietor is eligible for a PPP loan if he or she satisfies the applicable requirements.

Start of 24-Week Period

Question: How much of a PPP loan that is forgiven depends on the borrower's payroll costs over a 24-week period. When does that 24-week period begin?

Answer: The 24-week period begins on the date the lender makes the first disbursement of the PPP loan.

Please note that borrowers who got their loans before June 5, 2020, have the option to use an eight-week period, which was the original spending period under the CARES Act, instead of the newer 24-week period.

Tax Deductions for Expenses

Question: Can a business claim a tax deduction for expenses that result in forgiveness of a PPP loan?

Answer: No. A tax deduction is generally available for all ordinary and necessary expenses paid or incurred during the year in carrying on any trade or business. Business-related payroll costs, mortgage interest, rent, and utilities are, therefore, normally deductible. However, no deduction is allowed for any expense that is otherwise exempt from tax. This prevents a double tax break.

Loan proceeds properly used (according to the CARES Act rules) for payroll, mortgage interest, rent, and utilities do not have to be repaid. In addition, income associated with PPP loan forgiveness is exempt from tax under the CARES Act. As a result, to prevent duplicate tax breaks, expenses that result in PPP loan forgiveness are not deductible.

Larger Companies

Question: Do businesses owned by large companies with adequate sources of liquidity to support the business's ongoing operations qualify for a PPP loan?

Answer: Probably not. Borrowers must certify in good faith that their PPP loan request is necessary to support their ongoing operations, taking into consideration their current business activity and their ability to tap other sources of funding. According to the SBA, "it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith."

Seasonal Businesses

Question: Is a seasonal business that was not fully ramped up on February 15, 2020, still eligible for a PPP loan?

Answer: Yes. The SBA says that in evaluating a borrower's eligibility, a lender may consider whether a seasonal business was in operation on February 15, 2020, or for an eight-week period between February 15, 2019, and June 30, 2019.