By Christopher Migliaccio, JD, Managing Director
The Employee Retention Credit (ERC) is a valuable tax credit provided by the U.S. government to offer financial assistance to businesses that were negatively impacted by the pandemic. Through February 2023, it has been estimated that over $50 billion in ERC funds have been paid to hundreds of thousands of businesses. With applications tied only to the submission of timely amended payroll tax returns, ERC funds will continue to be applied for and paid through April 2025.
We’ve written in great detail about the opportunities relating to the ERC. However, we’ve also seen an increase in deceptive communications relating to the ERC that are troubling – not just to us, but also to the IRS, which named claims regarding the ERC as #1 on its 2023 Dirty Dozen list of tax scams.
The ERC is a payroll tax credit, initially made available as part of the CARES Act in March 2020 and extended and changed over a number of relief bills in 2020 and 2021.
There are limited ways that a business could qualify for the ERC:
- Suspension of operations – If business operations were fully or partially suspended due to orders relating to COVID-19 mandated by an appropriate government authority in 2020 or the first three quarters of 2021, or
- Significant decline in gross receipts – If a business experienced at least a 50% decline in gross receipts in a 2020 calendar quarter compared to the same 2019 calendar quarter or at least a 20% decline in gross receipts in a 2021 calendar quarter compared to the same 2019 calendar quarter, or
- Qualified as a recovery startup business for the third or fourth quarters of 2021.
The qualification most at issue is the “suspension of operations” – that’s where the IRS is seeing most of the aggressive positions and outright fraud rooted. Click here for a detailed discussion of the IRS guidance in this area.
The seemingly unlimited amount of ERC monies, combined with complex rules and eligibility criteria, have recently spawned an explosion of marketing campaigns that you likely have seen, heard, or read through various communication platforms (email blasts, letters, radio and TV ads) … many which seem “too good to be true.” So aggressive and misleading are their tactics that in March 2023, promotion claims regarding ERC services topped the “2023 Dirty Dozen,” an annual list compiled by the IRS of the “worst of the worst” tax scams. The IRS indicated concerns with “blatant attempts by promoters to con ineligible people to claim the credit.”
While difficult to recognize by businesses genuinely seeking professional guidance, some of what we have seen firsthand include:
- False or exaggerated claims that a business might qualify, or the likelihood of success in claiming the credit. Many of these ads will indicate a “success rate” with the credit, which is currently meaningless when the IRS audit process is just beginning to ramp up.
- Falsification of documentation or manipulation of data to increase the credit, or to give the appearance the business is eligible when it is not. We have seen clients receive documents manipulated to look like an IRS notice stating that a company is “due” a credit.
- Calculations of the credit that do not factor in other government funding sources (PPP Loans, Shuttered Venue Grants, Restaurant Revitalization Funding), or omission of the fact that the credit must be reflected as a reduction in wages on an amended income tax return.
- Excessive fees or ones that are based on a percentage of the calculated or expected credit. A business claiming a contingent fee based on the credit amount has a significant conflict of interest and incentive to claim eligibility over a longer period.
- Identity theft and other frauds perpetrated using information sent by unsuspecting business owners.
Our best recommendation remains to work with an organization with a history of providing tax advice and one not charging a contingent fee.
Businesses should be careful when using others to calculate their Employee Retention Credit to ensure accuracy, compliance, confidentiality and clear communication throughout the process. Ultimately, the responsibility for an incorrect ERC calculation falls on the business claiming the credit. With the IRS having the ability to audit ERC claims for five years after filing, expect the IRS to hold businesses accountable, assessing significant penalties and interest in addition to having to repay the excess credit and, in some cases, pay additional fines or apply criminal prosecution, or both.
If you would like to know more about this topic, please contact:
Christopher Migliaccio, JD