IRS makes statements on CARES Act Employee Retention Tax Credit risks

Executive summary: IRS statements on employee retention credit

The IRS has recently warned employers of some third parties promoting the CARES Act Employee Retention Tax Credit claims that may be improper.  The IRS warning also indicated that IRS examinations of such credits are underway.

Public statements made on employee retention credit

On Oct. 19, 2022 the IRS issued a news release warning employers to be wary of third parties who have ramped up campaigns to try and get employers to claim the Employee Retention Tax Credit (ERTC) when they may not actually qualify. Businesses are encouraged to be cautious of advertised schemes and direct solicitations promising tax savings from the ERTC that sound too good to be true. Often, these parties make money by charging large up-front fees or taking a contingent fee based on the credit amount. The third parties are not necessarily advising employers that wage deductions claimed on the business’s federal income tax return must be reduced by the amount of the credit. The IRS reminds taxpayers that ultimately, the taxpayer is responsible for the information reported on their tax return and improperly claiming the ERTC could result in the taxpayer being required to repay the credit along with penalties and interest.

In addition, the IRS is actively ramping up enforcement of ERTC refund claims. The IRS has stated publicly that the Small Business/Self-Employed Division of the IRS has trained 300 auditors to examine claims involving the ERTC. The IRS fully expects an influx of ERTC claims as it continues to catch up on pandemic-induced backlogs and is considering a soft letter campaign or voluntary disclosure practice for the ERTC. Taxpayers should have their substantiation documentation for the ERTC prepped and ready to submit in the event they are asked to provide it to the IRS.

Employee retention credit background

The ERTC is a refundable payroll tax credit that was enacted as part of the CARES Act in March 2020. The credit from the CARES Act is equal to 50% of payroll-related costs over the eligible period up to a maximum credit of $5,000 per employee for 2020. Later legislation expanded the ERTC through Sept. 30, 2021 with several changes, including allowing companies that obtained PPP loans to benefit from the ERTC. Additionally, for 2021, the definition of a small employer was expanded from 100 or fewer employees to 500 or fewer employees; the credit as a percentage of qualified wages increased from 50% to 70%, resulting in a credit up to a maximum of $7,000 per employee for each of three quarters in 2021. In order to qualify for the ERTC, a company must have experienced a significant decline in gross receipts for a quarter as compared to the same quarter in 2019 or have been fully or partially impacted by government orders imposed on commerce, travel, or group meetings. 

For additional details and FAQs on the ERTC see: Game-changing updates to the Employee Retention Credit  & Employee Retention Credit: Answers to frequently asked questions