What is the Employee Retention Tax Credit (ERTC)?

Last Updated on April 21, 2022 / HR Compliance

HR Question:

What is the Employee Retention Tax Credit (ERTC) and how can I take advantage of this program?

HR Answer:

As an incentive to employers of all sizes to keep employees on payroll, the Employee Retention Tax Credit (ERTC) was created to help employers navigate the unprecedented impact of COVID-19.  The ERTC is a refundable tax credit formed within the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), and further extended/expanded under the Consolidated Appropriations Act (CAA) and American Rescue Plan Act (ARPA).

Originally, to be eligible for the credit as of March 2020, an employer must actively carry on a trade or business during the calendar year 2020 and meet either of the following:

1. Full/Partial Suspension Test: If an eligible employer experiences a calendar quarter in which trade or business is fully or partially suspended due to an order of government authority restricting commerce, travel or group meetings (this includes but is not limited to commercial, social and religious purposes) due to the COVID-19 pandemic.
2. Gross Receipts Test: If an eligible employer experiences a significant decrease in gross receipts (AKA revenue) resulting in more than a 50% drop when compared to the same quarter in the previous year. (Until gross receipts exceed 80% of gross receipts in the prior quarter).

Originally, the credit was worth 50% of “qualified wages” – including health care benefits – up to $10,000 per eligible employee from March 13, 2020 – December 31, 2020. In other words, the maximum benefit for 2020 resulted in credit of up to $5,000 per employee.  Companies can STILL do this today.

CAA Changes

In December 2020, Congress revised the provision resulting in the Consolidated Appropriations Act (CAA), extending the credit for eligible employers that continue to pay wages during COVID-19 closures or recorded reduced revenue through June 30, 2021. The CCA also:

• Increased the amount of the credit to 70% of qualified wages, beginning January 1, 2021, and raised the limit on per-employee qualified wages from $10,000 per year to $10,000 per quarter. In other words, you can obtain a credit as high as $7,000 per quarter per employee.
• Expanded eligibility by reducing the requisite year-over-year gross receipt reduction from 50% to only 20%. And it raised the threshold for determining whether a business is a “large employer” — and therefore subject to a stricter standard when computing the qualified wage base — from 100 to 500 employees.
• Provided that employers who receive PPP loans still qualify for the ERTC for qualified wages not paid with forgiven PPP funds. (This provides an incentive for PPP borrowers to maximize the nonpayroll costs for which they claim loan forgiveness.)

ARPA Changes

The American Rescue Plan Act (ARPA) was created to increase the speed of recovery to the economic and health struggles faced by COVID-19. The new law extended the ERTC through the end of 2021 and expands the pool of employers who can take advantage of the credit by including so-called “recovery startup businesses.” A recovery startup business generally is an employer that:

• Began operating after February 15, 2020, and
• Has average annual gross receipts of less than or equal to $1 million.

While these employers can claim the credit without suspended operations or reduced receipts, it’s limited to $50,000 total per quarter.

The ARPA also targets extra relief at “severely financially distressed employers,” meaning those with less than 10% of gross receipts for 2021 when compared to the same period in 2019. Such employers can count as qualified wages any wages paid to an employee during any calendar quarter — regardless of employer size. Otherwise, the ARPA continues to distinguish between large employers and small employers for purposes of determining qualified wages.

Note that the ARPA extends the statute of limitations for the IRS to evaluate ERC claims. The IRS will have five years, as opposed to the typical three years, from the date the original return for the calendar quarter for which the credit is computed is deemed filed.

Additional IRS Guidance

Prior to the passage of the ARPA, the IRS issued additional guidance on the ERTC that helps determine whether operations were partially suspended because of a COVID-19 related government order.

The IRS has previously stated that “more than a nominal portion” of operations had to be suspended, meaning:

• Gross receipts from the suspended operations are 10% or more of total gross receipts,
• Hours of service performed by employees in the suspended operations are 10% or more of total hours of service, or
• Modifications to operations result in a reduction of 10% or more of the employer’s ability to provide goods or services.

How can my company claim the ERTC?

The ERTC is a payroll tax credit to be reported on Form 941 and may be up to a total of $33,000 per employee for 2020/2021 depending on facts. Any eligible employer can claim ERTC in either/both 2020 and 2021. Special care should be taken when calculating and claiming the credit, especially if the business also received a PPP loan, or other government funding since COVID-19, as IRS rules required an analysis to avoid any “double-dipping.”

Every business is unique and the amount of your ERTC will vary depending on the time period, number of employees, and other factors. To effectively position your business with the benefits of the ERTC, it is encouraged to partner with a tax consultant who knows your industry and the tax laws. To have a discussion about the potential of ERTC during calendar years 2020 and 2021, reach out to Clark Schaefer Hackett consultant Phil Hurak (pshurak@cshco.com) today.

Special thanks to Phil Hurak for writing this edition of our HR Question of the Week!

For additional information regarding the ERTC, please visit the CSH COVID Resource Center containing articles on ERTC, PPP, FFCRA, and other benefits potentially available to your business.

Strategic HR knows that keeping abreast of HR Compliance issues can be daunting, especially when the laws keep changing. We can help you stay compliant by fielding your questions and offering resources to help you identify and mitigate compliance issues. Visit our HR Compliance page to learn about our auditing services which can help you identify trouble spots in your HR function.