ERC Road Ready Flash Cards
What does LB&I stand for? What is the requirement for review by LB&I?
LB&I = Large Business and International.
LB&I Division is responsible for tax administration activities for domestic and foreign businesses with a United States tax reporting requirement and assets equal to or exceeding $10 million as well as the Global High Wealth and International Individual Compliance programs.
What does SB/SE stand for? What is the requirement for review by SB/SE?
SB/SE = small business/self employed.
SB/SE operating division serves small business owners and self-employed taxpayers with business interests having less than $10 million of assets.
What is the 280C election with respect to ERC?
Section IRC 280C(a) generally disallows a deduction for the portion of wages or salaries paid or incurred equal to the sum of certain credits determined for the taxable year.
ERC is not taxed, but you do have to amend your tax return by reducing the reported amount of salaries and wages by the amount of ERC claimed that year. Line X — “salaries and wages (less any employment credits”
What statutes and notices pertain to ERC and what is their general significance?
Employee Retention Credit is provided under Section 2301of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), as amended by Section 206 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Relief Act), which was enacted as Division EE of the Consolidated Appropriations Act 2021.
Section 2301 of the CARES Act allows ERC for eligible employers, including tax-exempt organizations, that pay qualified wages, including certain health plan expenses, to some or all employees after March 12, 2020 and before January 1, 2021.
Section 206 of the Relief Act adopts amendments and technical changes to Section 2301 of the CARES Act. Section 207 of the Relief Act amends Section 2301 to extend the application of the ERC to qualified wages paid after December 31, 2020 and before July 1, 2021, and to modify the calculation of the credit amount for qualified wages paid during that time.
Notice 2021-20: IRS posted FAQs to aid taxpayers in calculating and claiming the ERC. Only provides guidance for section 2301 of the CARES Act and the amendments made by Section 206 of the Relief Act.
Notice 2021-23: Amplifies Notice 2021-20 by providing guidance with respect to the amendments made to section 2301 of the CARES Act by section 207 of the Relief Act, which are effective beginning January 1, 2021.
Section 9651 of the American Rescue Plan Act of 2021, provides an ERC for wages paid after June 30, 2021, and before January 1, 2022.
Notice 2021-49: Amplifies both Notice 2021-20 and Notice 2021-23 by providing additional guidance on the ERC, applicable to the third and fourth quarters of 2021.
Infrastructure Act retroactively limited eligibility for the ERC for the fourth quarter of 2021 to employers that qualify as recovery startup businesses.
What is the statute of limitations for claiming ERC? What statute governs the SOL?
The deadline for amending Form 941 with a 941-X to claim 2020 ERC is April 15, 2024; and for 2021 ERC is April 15, 2025. The American Rescue Plan of 2021 extended the statute of limitations for ERC claimed in the third and fourth quarters of 2021 from the normal three years (for payroll tax) to five years–extending the time for the IRS to make adjustments until April 15, 2027 for legitimate claims.
Identify the following form and its purpose: 2848.
Form 2848 is a Power of Attorney and Declaration of Representative. It authorizes an individual to represent the taxpayer before the IRS.
Identify the following forms and their purpose: 941 & 941-X.
Form 941 is used by employers to report income taxes, social security taxes, or Medicare taxes withheld from employee paychecks. And to pay the employer’s portion of Social Security of Medicare tax. Form 941 also allows employers to claim certain tax credits or adjustments.
Form 941-X is used to correct errors on a Form 941 that was previously filed.
Identify the following form and its purpose: 4564.
The IRS uses Form 4564 to request information from taxpayer in an audit. The Form is called an Information Document Request (IDR).
Identify the following form and its purpose: 5701.
Form 5701 is called the Notice of Proposed Adjustment (NOPA). It is issued after the revenue agent has completed their field examination. In the Form, each potential issue the Agent has found will be presented, the legal authorities under which the action is proceeding, the IRS rational for the proposed adjustment and the taxpayer’s position. It gives the taxpayer three choices: 1) agree with the proposed adjustment; 2) disagree with the proposed adjustment; and 3) present additional information that might help resolve the issue.
R&D Tax Credit:
Is a government-sponsored tax incentive that may be claimed by taxpaying businesses that develop, design, or improve products, processes, formulas, invention, software, or technology (PPFIST). Permitted purposes include improving performance, function, quality, or reliability.
It is calculated based on the wages of the employees performing the qualifying work and can be claimed at the federal and state levels.
179D Tax Deduction:
(Energy Efficient Commercial Building Deduction). Allows building owners (or designers) to claim a deduction for energy-efficient buildings or installing systems to that effect.
Interior lighting, HVAC and hot water, and building envelopes (roof, windows, walls).
To qualify, newly constructed or renovated buildings must meet or exceed some key energy reduction requirements and ASHRAE standards. Section 179D is meant to stimulate the economy by rewarding architecture, engineering, and design-build contractor businesses for their work on government-owned buildings.
alliantNational:
alliantgroup’s National Tax Office. Assists CPAs and U.S. businesses when faced with threats from the IRS and state tax officials as well as with tax planning issues, both domestic and international. Their office is in D.C. and consists of attorneys, former IRS commissioners, and congressional councilmen. Broad range of TCS and Audit defense.
Two of the most common types of controlled groups, and provide the rules used to conduct a CG analysis for the two types listed:
- Parent-Subsidiary:
In one or more chains of corporations where a) there is a common parent corporation; and b) the common parent corporation owns more than 50% of the total: combined voting power of all classes of stock entitled to vote of at least one of the other corporations, or value of shares of all classes of stock of at least one of the other corporations.
If these requirements are satisfied, the parent-subsidiary controlled group will also include any corporation that is owned more than 50% by any other corporation that is a member of the group.
- Brother-Sister:
Controlled group of two or more corporations where both of the following requirements are satisfied.
a) 80 PERCENT OWNERSHIP: five or fewer persons who are individuals, estates, or trusts own at least 80% of: the total combined voting power of all classes of stock entitled to vote of each corporation or the total value of shares of all classes of each stock of each corporation; and
b) IDENTICAL OWNERSHIP: the same five or fewer persons, taking into account ownership only to the extent that it is identical with respect to each corporation, owns more than 50 percent of the total: combined voting power of all classes of stock entitled to vote of each corporation, taking into account the stock ownership of each person, or value of shares of all classes of stock of each corporation, taking into account the stock ownership of each person.
Requirements for a Taxpayer to be eligible for the ERC under the gross receipts test?
For 2020, the period during which there is a significant decline in gross receipts is determined by identifying the first calendar quarter in 2020 in which an employer’s gross receipts are less than 50% of its gross receipts for the same calendar quarter in 2019. Period ends in January 2021 or the quarter following the first quarter in which an employer’s 2020 quarterly gross receipts are greater than 80% of its gross receipts for the same calendar quarter in 2019.
For 2021, an employer is an eligible employer with respect to any calendar quarter for which its gross receipts for the calendar quarter are less than 80% of its gross receipts for the same calendar quarter in 2019 (20% drop).
Requirements for a Taxpayer to be eligible for the ERC under the more than nominal test?
An employer is considered to have a partial or full suspension of operations if, under the facts and circumstances, a more than nominal portion of its business operations are suspended by a governmental order. A portion of an employer’s business operations will be deemed to constitute more than a nominal portion of its business operations if either (1) the gross receipts from that portion of the business operations is not less than 10 percent of the total gross receipts (determined using the gross receipts of the same calendar quarter in 2019), or (2) the hours of service performed by employees in that portion of the business is not less than 10 percent of the total number of hours of service performed by all employees in the employer’s business (determined by using the number of hours of service performed by employees in the same calendar quarter in 2019).
What is a governmental order? [FAQ 10]
Orders, proclamations, or decrees from the federal government or any state or local government if they limit “commerce, travel, or group meetings due to COVID-19” and relate to the suspension of an employer’s operation of its trade or business. Statements made to the media or declarations that do not limit commerce, travel, or group meetings or does without relating to the suspension of an employer’s operation of its trade or business does not rise to the level of a governmental order.
Government orders include:
1. An order from the city’s mayor stating that all non-essential businesses must close for a specified period.
2. A State’s emergency proclamation that residents must stay at home, other than residents who are employed by an essential business.
3. An order from a local official imposing a curfew on residents that impacts the operating hours of a trade or business for a specified period;
4. An order from a local health department mandating a workplace closure for cleaning and disinfecting.
Recovery Startup:
An employer that 1) began carrying on any trade or business after February 15, 2020; 2) for which the average annual gross receipts of the employer does not exceed $1,000,000; and 3) that is not otherwise an eligible employer due to a full or partial suspension of operations or a decline in gross receipts. The amount of credit allowed for each of the third and fourth quarters of 2021 cannot exceed $50,000.
The determination of when an employer began carrying on a trade or business:
A taxpayer has not begun carrying on a trade or business until such time as the business has begun to function as a going concern and performed those activities for which it was organized (Richmond Television Corp v. U.S.; NCNB Corporation v. U.S.). Includes any activity carried on for the production of income from selling goods or performing services–also intent to produce profit. Facts and circumstances used include:
1. regularity of the activities;
2. regularity of the transactions;
3. production of income; and
4. ongoing efforts to further the interests of your business.
Government Instrumentality? [FAQ 2]
Six Factors–none determinative:
1. whether an organization is used for a governmental purpose and performs governmental functions;
2. whether performance of the organization’s function is on behalf of one or more States of political subdivisions;
3. whether there are any private interests involved, or whether the states or political subdivisions involved have the powers and interests of an owner;
4. whether control and supervision of the organization is vested in a public authority or authorities;
5. if express or implied statutory or other authority is necessary for the creation and/or use of such an instrumentality, and whether such authority exists; and
6. the degree of financial autonomy and the source of its operating expenses.
What is the general impact of the aggregation rules that treat certain entities as a single employer?
All entities that are members of a controlled group, members of an affiliated service group, or otherwise aggregated are treated as a single employer.
Specifically when:
*determining whether the employer has a trade or business operation that was fully or partially suspended due to orders related to COVID-19 from an appropriate governmental authority.
*determining whether the employer experiences a significant decline in gross receipts.
*determining whether the employer averaged more than 100/500 full-time employees.
*determining the maximum credit amount per employee.
Aggregation rules can be found under section 52(a) or (b) of the Code, or section 414(m) or (o) of the code [26 U.S. Code Section 52; 26 U.S. Code Section 414]. Control group has the meaning by section 1563(a) except that more than 50% shall be substituted for at least 80 percent each place it appears in section 1563(a)(1).