Section 2301 of the CARES Act outlines the rules of the ‘Employee Retention Credit for Employers Subject to Closure due to Covid-19’ which provides relief for startups and small businesses that were adversely affected by COVID-19 in two distinct ways. The bill has lots of legal jargon and is generally difficult to follow but we’ve broken it down into what it is that you need to know about the Employee Retention Credit for startups (“ERC”). We’ll break it down for you in the sections that follow.
What is it?
Your operations were fully or partially suspended during any calendar quarter in 2020 because of an order from a government authority due to COVID-19 (i.e. a state-wide order to ‘shelter in place’ like we have in Illinois) or
You experienced a significant decline in gross receipts during a calendar quarter in 2020
The operation of a trade or business may be partially suspended if an appropriate governmental authority imposes restrictions upon the business operations by limiting commerce, travel, or group meetings (for commercial, social, religious, or other purposes) due to COVID-19 such that the operation can still continue to operate but not at its normal capacity.
Example: A state governor issues an executive order closing all restaurants, bars, and similar establishments in the state in order to reduce the spread of COVID-19. However, the executive order allows those establishments to continue food or beverage sales to the public on a carry-out, drive-through, or delivery basis. This results in a partial suspension of the operations of the trade or business due to an order of an appropriate governmental authority with respect to any restaurants, bars, and similar establishments in the state that provided full sit-down service, a dining room, or other on-site eating facilities for customers prior to the executive order.
A significant decline in gross receipts begins with the first quarter in which an employer’s gross receipts for a calendar quarter in 2020 are less than 50 percent of its gross receipts for the same calendar quarter in 2019. The significant decline in gross receipts ends with the first calendar quarter that follows the first calendar quarter for which the employer’s 2020 gross receipts for the quarter are greater than 80 percent of its gross receipts for the same calendar quarter during 2019.
Example: An employer’s gross receipts were $100,000, $190,000, and $230,000 in the first, second, and third calendar quarters of 2020, respectively. Its gross receipts were $210,000, $230,000, and $250,000 in the first, second, and third calendar quarters of 2019, respectively. Thus, the employer’s 2020 first, second, and third quarter gross receipts were approximately 48%, 83%, and 92% of its 2019 first, second, and third quarter gross receipts, respectively. Accordingly, the employer had a significant decline in gross receipts commencing on the first day of the first calendar quarter of 2020 (the calendar quarter in which gross receipts were less than 50% of the same quarter in 2019) and ending on the first day of the third calendar quarter of 2020 (the quarter following the quarter for which the gross receipts were more than 80% of the same quarter in 2019). Thus the employer is entitled to a retention credit with respect to the first and second calendar quarters.
What types of costs qualify?
Vacation or sick pay
Employer portion of health insurance
Further, there is an additional test that has to be met in order to count the wages towards the credit amount, which is a function of how big your business is. If your business has more than 100 full time employees (on average) for 2019 then you can only count the wages of employees who are not working but still receiving pay. If your business has less than 100 employees (on average) in 2019 then all of the wages identified above will qualify. This could be very beneficial for startups, especially with those who have less than 100 employees and are in a state where a government mandated quarantine is in effect.
How can we determine the amount we’re eligible for?
Example 1: Eligible Employer pays $10,000 in qualified wages to Employee A in Q2 2020. The Employee Retention Credit available to the Eligible Employer for the qualified wages paid to Employee A is $5,000.Example 2: Eligible Employer pays Employee B $8,000 in qualified wages in Q2 2020 and $8,000 in qualified wages in Q3 2020. The credit available to the Eligible Employer for the qualified wages paid to Employee B is equal to $4,000 in Q2 and $1,000 in Q3 due to the overall limit of $10,000 on qualified wages per employee for all calendar quarters.
How do we claim the Employee Retention Credit for startups?
What is the fine print?
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