Employee Retention Credit Frequently Asked Questions
Q: What is the employee retention credit (ERC)?
A: The ERC is a fully refundable payroll tax credit.
Q: Are nonprofit organizations eligible to claim the ERC?
A: Yes. Nonprofit organizations, including churches and higher education institutions, can claim the ERC if they meet the eligibility criteria.
Q: Is the ERC still available?
A: Yes, it is still available to be claimed based upon qualified wages paid after March 13, 2020, through September 30, 2021.
Q: Is there a deadline for employers to claim the ERC?
A: Yes. To claim the ERC, employers need to use Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund, which is an amendment to prior-quarter payroll tax filings. The deadline to file those amendments is three years from the due date of the original Form 941.
Q: How much is the ERC?
A: The ERC can be a significant benefit for employers. The calculation is a percentage of the qualified wages that the employer paid during its eligibility timeframe.
If an employer is claiming the credit for qualified wages paid in 2020 quarters, the amount is 50% of the maximum amount of qualified wages. The maximum amount of qualified wages for 2020 is $10,000 per employee for the entire year.
For 2021 quarters, the credit is 70% of the maximum amount of qualified wages. The maximum amount of qualified wages for 2021 is $10,000 per employee per quarter.
Q: What are qualified wages? Are there any exclusions from qualified wages?
A: Qualified wages are those wages paid to employees during your eligibility timeframe. However, the amount of qualified wages depends upon several factors:
- If you are a large employer (100 or more employees in 2019 if claiming 2020 quarters; 500 or more employees in 2019 if claiming 2021 quarters), then your qualified wages are only those wages you paid to employees who were not providing services.
- You must exclude the payroll costs that you entered on your Paycheck Protection Program (PPP) loan forgiveness application and that were necessary to obtain full forgiveness of your PPP loan(s) from the qualified wages amount.
- Ministerial wages cannot be included as qualified wages.
Q: How does an employer calculate whether it is a small or large employer?
A: You will need to evaluate your 2019 employee headcount. If your organization did not exist in 2019, you should evaluate your 2020 headcount. Then, for each month, you will count each employee who worked an average of 30 hours per week or 130 hours per month. You will then add up each month and divide it by the number of months you were in existence during that year (2019 or 2020). That will represent your “average headcount” for the purpose of determining whether you are a small or large employer.
Q: How does an employer determine whether it is eligible for the ERC?
A: There are two separate and distinct pathways to being an eligible employer for the ERC. The first pathway is through experiencing a significant decline in gross receipts between quarters in 2020 or 2021, or both, compared to the same quarter in 2019. For 2020 quarters, the decline must be 50% or greater. For 2021 quarters, the decline must be 20% or greater.
The second pathway is through experiencing a full or partial suspension of services due to governmental orders that limited commerce, travel, or group meetings because of COVID-19. This is a fairly nuanced pathway and requires assessing the modifications made by an employer to their operations as a result of the governmental order, and then measuring whether those modifications had a more than nominal effect on its trade or business.
Q: What is included in “gross receipts” for the purpose of determining eligibility for the ERC?
A: Nearly all items of income are included in gross receipts. For tax-exempt employers, the IRS states in Notice 2021-20, Question and Answer 25, that gross receipts:
… includes, but is not limited to, the gross amount received as contributions, gifts, grants, and similar amounts… the gross amount received as dues or assessment from members or affiliated organizations… gross sales or receipts from business activities (including business activities unrelated to the purpose for which the organization qualifies for exemption [from income tax], the gross amount received from the sale of assets… and the gross amount received as investment income, such as interest, dividends, rents, and royalties.
Q: Are forgiven PPP loans included in that gross receipts amount?
A: No. Forgiven PPP loans may be excluded from the gross receipts calculation for the purpose of determining eligibility for the ERC.
Q: If an employer determines that it is eligible for the ERC, what type of documentation should it have available?
A: If an employer is eligible via the significant decline in gross receipts pathway, it should keep records of its financials for the 2019 quarter(s) as well as 2020 and 2021 quarter(s).
If an employer is eligible via the suspension of services pathway, it should keep robust records that substantiate the following:
- A description of the modifications the employer made to its operations;
- A timeline for the modifications made by the employer to its operations;
- A narrative that demonstrates the more than nominal impact that the modifications had on its trade or business; and
- A copy of the governmental order(s) that caused the employer to make the modifications noted above.
Q: How long does the IRS have to audit an employer’s claim of the ERC?
A: The IRS has allowed itself five years from the date of the employer claiming the ERC to audit the ERC claim.
Q: How do employers claim the ERC?
A: As noted above, employers use Form 941-X, Adjusted Employer’s Quarterly Federal Tax Return or Claim for Refund, to claim the ERC. The form has been retrofitted for ease of claiming various CARES Act and COVID-19 relief credits, including the ERC.
Q: How long is it taking for employers to receive their ERC claims?
A: It is taking a fairly lengthy amount of time, so patience is required. Further, it is an evolving time horizon, given that the IRS is still receiving 941 and 941-X Forms. As of January 26, 2022, the IRS had 1.1 million unprocessed 941 Forms. The IRS will first have to process those, then process any corresponding 941-X Forms. Therefore, we are not able to be very exact here. An estimate of anywhere between six and 16 months seems like a fairly safe approximation, though.
Q: What ERC services does CapinCrouse provide?
A: We want to be as helpful to you as possible as you explore the ERC. To that end, we provide the following types of services. (Note that these would be considered non-attest services when provided to our attest clients.)
- Initial consultations for those who are considering the ERC
- Consultations with those who have particular questions about the ERC
- Gathering and drafting of ERC eligibility documentation you can keep in case of an IRS audit or for external auditors
- Calculation of the amount of qualified wages and ERC claim
- Drafting and signing as paid preparer of the 941-X Form(s)
- Review of ERC claims that have already been made or are about to be made.
We can work with you to address your organization’s specific needs. Please do not hesitate to contact us if you have questions or would like more information.
Assistance with the Employee Retention Credit
Tax Implications of the Employee Retention Credit
Accounting and Reporting for the Employee Retention Credit
Chris serves as Partner and Tax Counsel at CapinCrouse. A licensed attorney, he advises exempt organizations of all sizes on a wide range of issues, including tax and employee benefit related matters, representation before state and federal tax authorities, and assistance with firm audit or advisory engagements to formulate advice and counsel on important operating and tax issues. Chris also assists clients with general tax issues, unrelated business income, charitable solicitation, and missionary employment structures. Prior to joining CapinCrouse in 2019, Chris served as the Executive Director of the Neighborhood Christian Legal Clinic, the nation’s largest Christian legal aid organization. Note: Although licensed to practice law in Indiana, Chris’s services through CapinCrouse do not involve the practice of law and consequently do not result in the creation of an attorney-client relationship.
Hello, I am trying to find out if the ERC refund can be used to as collateral for a loan, given that it may take a while to get it
We recommend that you consult with your lender to determine that. Thank you.
Am I qualify for ERC if my small business opened in January 2022?
The employee retention credit (ERC) is only available for wages paid between March 13, 2020 and September 30, 2021. If the employer can qualify as a recovery startup business, then it would be available for wages paid during the period of October 1, 2021 through December 31, 2021. Because your business did not start until January of 2022, it does not appear that you would have any qualified wages paid during the ERC timeframe. You can review this website from the IRS for more information: https://www.irs.gov/newsroom/employee-retention-credit-2020-vs-2021-comparison-chart
I was wondering if companies who apply for the ERC have their names published as public record, as the companies who received PPP Loans did? Thank you!
No, the IRS has not given any indication that organizations claiming the employee retention credit will have their names listed on any record.
Our company was founded in 2009, we had revenue through 2013, then no revenue from 2014 through 2019 (but we maintained the business license). We restarted “work” on the business in 2019 (proposed on a project, won work), and we claimed a small loss (<$2,000) in 2019 for some expenses. We did not have any revenue in 2019, but we had basis to claim the loss. We didn't hire any employees until Q2 of 2020 and didn't have any revenue until Q2 of 2020. Not sure if we qualify as a "recovery startup business" since we claimed a loss in 2019. Our revenue in Q2, Q3, and Q4 of 2021 was less than 80% of same quarters in Q2, Q3, and Q4 of 2020. We paid several employees in Q2, Q3, and Q4 of 2021. What are your thoughts on our eligibility to claim the ERTC?
Thank you for your question. We will reach out directly via email.
When do record the income for tax purposes…when you receive it of the period applicable? If it is for the period of 2020/2021 and I received it in 2023. Do I have to file amended returns?
The IRS has provided guidance on this question in both Notice 2021-20 and Notice 2021-49. In those Notices, the IRS has stated that if an employer receives an employee retention credit (ERC) based upon qualified wages that have previously been used as a deduction on a previous income tax return, then the employer will need to file an amended income tax return for the period during which those wages were paid. Therefore, the filing of the amended income tax return is not dependent on when the ERC is claimed or received; rather, it is dependent on when the qualified wages were paid. See IRS Notice 2021-20 (pg. 92) at https://www.irs.gov/pub/irs-drop/n-21-20.pdf and Notice 2021-49 (pg. 24) at https://www.irs.gov/pub/irs-drop/n-21-49.pdf for more information.