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Several days ago we posted a blog on the SBA’s announcement that it plans to closely scrutinize whether borrowers’ certifications of need were made in good faith, and if the certification was not made in good faith, the borrower is advised pay their PPP funds back by May 7, 2020.

The need certification had to be made by every borrower upon application for the PPP loan, and it reads: “Current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.”

SBA direction on the need certification applies to large and small companies

Though this direction from the SBA on the need certification came on the heels of attacks on the PPP for giving millions to large, publicly traded companies, the SBA has since made it clear that this direction applies to all borrowers, large and small.  According to the SBA, they will audit all PPP loans over $2 million, and all loans, no matter the size, are subject to being audited.

Anyone who is found to have not made the certification of need in good faith could be subject to criminal and civil penalties.

How can you show your need certification was made in good faith?

Unfortunately, it is not clear what evidence the SBA will require to prove your need certification was made in good faith.  The only direction that has been given is in the SBA’s FAQ document in the answer to question 31, which in relevant part reads:

Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business.  For example, 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, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification.

Borrowers should carefully consider based on their particular business, industry and circumstances whether their certification of need was made in good faith.  And, for those who have made a good faith certification, they should document the factors they considered in making that certification.

What is the safe harbor?

For any company that may not have made their certification of need in good faith, the safe harbor is included in the SBA’s Interim Final Rule posted on April 24, 2020, and reads:

Any borrower that applied for a PPP loan prior to the issuance of this regulation and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith.

That safe harbor expires this Thursday, May 7,2020.

Conclusion

The SBA continues to issue guidance on the PPP, and that guidance often comes after it is needed and sometimes changes the rules of the PPP in the middle of the game.  Finney Law Firm is keeping a close eye on new guidance and will continue to update you through our blog.  For questions, please contact Rebecca L. Simpson at 513.797.2856.

As small businesses are beginning to receive and spend their Paycheck Protection Program (“PPP”) funds, many have questions on how they can spend those funds to maximize forgiveness of their loan. The CARES Act and the Small Business Administration (SBA) have given general guidance around what is required for PPP loan forgiveness, but the devil is in the details and many important questions regarding forgiveness have been left unanswered thus far.

Guidance on impact of employee declining offer of rehire

Some positive news on this topic, however, is that in its FAQ document (see question 40), the SBA has now issued guidance on this common question:

Will a borrower’s PPP loan forgiveness amount (pursuant to section 1106 of the CARES Act and SBA’s implementing rules and guidance) be reduced if the borrower laid off an employee, offered to rehire the same employee, but the employee declined the offer? 

According to the FAQ document, the answer is in general “no.”  The guidance goes on, however, to note that the SBA and Treasury intend to issue an Interim Final Rule outlining the parameters for forgiveness under these circumstances, including:

• The offer to rehire must be for the same salary/wages and same number of hours;
• The offer to rehire must be in writing and in good faith; and
• The employee’s rejection of the offer must be documented by the borrower.

More guidance needed on important questions

This new guidance, hopefully, signals that more will be forthcoming from the SBA and Treasury on how borrowers can maximize loan forgiveness.  Some unanswered questions that remain include:

• For self-employed and independent contractors whose PPP loan amount is based on Schedule C, Line 31 of their IRS Form 1040, the regulations allow these individuals to pay themselves only 8 weeks of “payroll” (average net profit) out of their PPP funds. Mathematically, that 8 weeks only works out to about 74% of the loan amount, but the regulations require the borrower to spend 75% on payroll.  Will that impact forgiveness?
• Many small businesses received loans that are larger than 8 weeks of their average monthly payroll plus their mortgage interest, rent, and utilities. Can these businesses use these extra funds to pay their employees bonuses or hire more employees?
• Can self-rental payments be forgiven?
• Are there parameters around rehiring to maintain the same level of full-time employees? Do you have to hire for the same positions or can you create new positions?
• If the IRS requires you to show evidence that your certification of need was in good faith, what type of evidence will be sufficient?

These are just some of the unanswered questions surrounding forgiveness of PPP loans.  Finney Law Firm will continue to monitor guidance on PPP forgiveness as it is issued and will post updates on our blog.  If you have questions, please contact Rebecca L. Simpson at 513.797.2856.

If you have received Paycheck Protection Program (PPP) funds, you should be aware that the IRS has issued a notice that will increase the cost of using those funds.   According to IRS Notice 2020-32:

Specifically, this notice clarifies that no deduction is allowed under the Internal Revenue Code (Code) for an expense that is otherwise deductible if the payment of the expense results in forgiveness of a covered loan pursuant to section 1106(b) of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

What does this IRS ruling mean?

Normally businesses can deduct business expenses such as costs for payroll, mortgage interest, rent and utilities.   But, if you received a PPP loan and use the funds properly on those  four types of expenses so that your PPP loan is forgiven, the amount you spent on those expenses from PPP funds will no longer be deductible.

Why would the IRS make this rule?

According to the IRS, they are trying to prevent small businesses who receive PPP funds from getting what the IRS sees as a double tax benefit on the same dollars.  Normally when a loan is forgiven, the amount forgiven is counted as taxable income to the taxpayer.  In the CARES Act, Congress specifically provided that the amount of PPP loan forgiven will NOT count as taxable income.  So, the IRS sees that special tax exemption as one tax benefit.  According to the IRS, if a small business were also able to deduct the amount of PPP funds they spent to make the loan forgivable, then the deduction would be a second tax benefit on the same dollars.

The rule seems inconsistent with the intent of Congress.

While the IRS’s ruling in Notice 2020-32 is consistent with how exemptions and deductions are normally handed, it seems to run contrary to the intent of Congress in the CARES Act.  Given that Congress specifically provided that PPP loan forgiveness would not be counted as taxable income, it seems the intent of Congress was to provide small businesses with rescue funds without adverse tax consequences.  So, it will be interesting to see if Congress takes action to stop the adverse tax consequences the IRS just announced.

What does this mean for your business?

This ruling means that the cost of using your PPP funds will be higher than you likely anticipated.  If all or part of your PPP loan is forgiven, you will lose tax deductions on the business expenses you paid as directed by Congress and the SBA to make your PPP loan forgivable.

Conclusion

The Finney Law Firm will continue to stay on top of the latest PPP guidance and provide updates on our blog.  If you have questions, feel free to contact Rebecca L. Simpson (513.797.2856).

Saturday’s Wall Street Journal featured the lawsuit filed by the 1851 Center for Constitutional Law‘s and Finney Law Firm‘s suit against Dr. Amy Acton and the Ohio Department of Health for their failure to provide due process hearings for businesses forced to close under her Emergency COVID-19 Pandemic Orders. The client seeking relief in the lawsuit is Tanya Rutner Hartman and her business, a bridal shop, Gilded Social, LLC.

A link to the article is here.

A link to the original Complaint is here.

For more information, contact attorney Christopher P. Finney (513.943.6655).

Today, the US House of Representatives passed the second phase of funding for the Paycheck Protection Program, providing another $310 billion in funding for the forgivable small business loans.  President Trump has said he plans on signing the bill tonight.

This means tens of thousands of applications pending at banks and other lending institutions throughout the country can now be funded.

It is not clear if this supplemental funding will mean full funding for the program.  Many businesses, sole proprietors and 1099 contractors have not yet even filed their applications.