Key Tax Provisions in the New Stimulus Package

Shortly before the New Year, President Trump signed the Consolidated Appropriations Act (CAA), which contained nearly $900 billion of coronavirus-related relief to help business and individuals struggling with the ongoing effects of the pandemic.

We covered the pertinent Paycheck Protection Program details contained in the CAA in a December 23 alert as well as a December 30 webinar, which you can view here.

Now we're turning our attention to the key tax provisions contained in the CAA. The new legislation confirms the deductibility of business expenses paid for with PPP loan proceeds, extends and expands the Employee Retention Credit, and extends a number of tax deductions, credits, and incentives that were set to expire on December 31, 2020.

PPP Expense Deductions
The CAA confirms that business expenses that normally would be deductible for federal income tax purposes and paid out of PPP loans may be deducted for federal income tax purposes and that the borrower’s tax basis and other attributes of the borrower’s assets will not be reduced as a result of the PPP loan forgiveness.

This has been an area of uncertainty because, while the CARES Act provides that any amount of PPP loan forgiveness that normally would be includible in gross income will be excluded from gross income, it is silent on whether eligible business expenses attributable to PPP loan forgiveness are deductible for tax purposes. The IRS took the position in guidance that, because the proceeds of a forgiven PPP loan are not considered taxable income, expenses paid with forgiven PPP loan proceeds may not be deducted.

The CAA clarifies that such expenses are fully deductible—welcome news for struggling businesses. Importantly, the effective date of this provision applies to taxable years ending after the date of the enactment of the CARES Act. Thus, taxpayers that filed tax returns without deducting PPP-eligible deductions should consider amending such returns to claim the expenses.

Employee Retention Credit
The Employee Retention Credit (ERC), introduced under the CARES Act, is a refundable tax credit equal to 50 percent of up to $10,000 in qualified wages (i.e., a total of $5,000 per employee) paid by an eligible employer whose operations were suspended due to a COVID-19-related governmental order or whose gross receipts for any 2020 calendar quarter were less than 50 percent of its gross receipts for the same quarter in 2019.

The CAA makes the following changes to the ERC, which will apply from January 1 to June 30, 2021:

• The credit rate is increased from 50 percent to 70 percent of qualified wages and the limit on per-employee wages is increased from $10,000 for the year to $10,000 per quarter.
• The gross receipts eligibility threshold for employers is reduced from a 50 percent decline to a 20 percent decline in gross receipts for the same calendar quarter in 2019, a safe harbor is provided allowing employers to use prior quarter gross receipts to determine eligibility, and the ERC is available to employers that were not in existence during any quarter in 2019. The 100-employee threshold for determining “qualified wages” based on all wages is increased to 500 or fewer employees.
• The credit is available to certain government instrumentalities.
• The bill clarifies the determination of gross receipts for certain tax-exempt organizations and that group health plan expenses can be considered qualified wages even when no wages are paid to the employee.
• New, expansive provisions regarding advance payments of the ERC to small employers are included, such as special rules for seasonal employers and employers that were not in existence in 2019. The bill also provides reconciliation rules and provides that excess advance payments of the credit during a calendar quarter will be subject to tax that is the amount of the excess.
• Treasury and the SBA will issue guidance providing that payroll costs paid during the PPP covered period can be treated as qualified wages to the extent that such wages were not paid from the proceeds of a forgiven PPP loan. Further, the bill strikes the limitation that qualified wages paid or incurred by an eligible employer with respect to an employee may not exceed the amount that employee would have been paid for working during the 30 days immediately preceding that period (which, for example, allows employers to take the ERC for bonuses paid to essential workers).

The CAA also makes three retroactive changes that are effective as if they were included the CARES Act. Employers that received PPP loans may still qualify for the ERC with respect to wages that are not paid for with proceeds from a forgiven PPP loan. The bill also clarifies how tax-exempt organizations determine “gross receipts” and that group health care expenses can be considered “qualified wages” even when no other wages are paid to the employee.

FFCRA
The Families First Coronavirus Response Act (FFCRA) paid emergency sick and child-care leave and related tax credits are extended through March 31, 2021 on a voluntary basis. In other words, FFCRA leave is no longer mandatory, but employers that provide FFCRA leave from January 1 to March 31, 2021 may take a federal tax credit for providing such leave. Some clarifications have been made for self-employed individuals as if they were included in the FFCRA.

Business Meal Deduction
Businesses may deduct 100 percent of business-related restaurant meals during 2021 and 2022 (the deduction currently is available only for 50 percent of those expenses).

Charitable Donation Deduction
For taxable years beginning in 2021, taxpayers who do not itemize deductions may take a deduction for cash donations of up to $300 made to qualifying organizations. The CARES Act revised the charitable donation deduction rules to encourage donations following a decline after the enactment of the Tax Cuts and Jobs Act in 2017.

Medical Expense Deduction
The income threshold for unreimbursed medical expense deductions is permanently reduced from 10 percent to 7.5 percent so that more expenses may be deducted.

The CAA provides for a five-year extension of the following tax provisions that were scheduled to sunset on December 31, 2020: