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Corona Virus (COVID-19) Federal Legislation

March 31, 2020

On Wednesday March 25, 2020, the Senate passed the Coronavirus Aid, Relief and Economic Security Act (CARES ACT) The House approved the statute on Friday, March 27, 2020 and the President announced he would sign the law into effect as soon as he receives it. The $2 trillion relief package contains direct payments to individuals and businesses as well as many tax-saving provisions that impact both individuals and businesses and which may affect prior tax years. It constitutes the largest spending bill in U.S. history dwarfing the $800 billion TARP legislation adopted to stem the 2008 recession.

Business Provisions

Small Business Loans

The CARES ACT provides for $350 billion of federally guaranteed loans to small businesses (defined as businesses with fewer than 500 employees); and if there are no payroll reductions below the level at March 24, 2020 the loan will be forgiven and amount to a cash grant to eligible businesses. Furthermore, the loan program will be administered by the banking system under the supervision of the Federal Reserve, so hopefully the complications and delays normally associated with Federal Government programs, will be alleviated.

The CARES ACT expands the Small Business Act to create a small business interruption loan program to make loans to a broad array of businesses as well as public and private nonprofits. Loan amounts are based on four months of payroll, mortgage, rent and debt payments, not to exceed $10,000,000. Taxpayers that receive loans before the end of June would be eligible to have the loan forgiven in an amount equal to the cost of maintaining payroll during the period from March through June. The Act provides that any debt forgiven under this provision is be excluded from gross income.

Employee Retention Credit

An eligible employer is allowed a credit against applicable employment taxes for each calendar quarter equal to 50% of qualified wages for each employee for such calendar quarter.

  • The amount of qualified wages for any employee taken into account by an employer for all calendar quarters is limited to $10,000.

  • The credit is limited to the employment taxes owed as reduced by other credits (including the Sick Leave and Family and Medical Leave credits under the Families First Coronavirus Response Act) for all employees of the eligible employer for such calendar quarter. If the employee retention credit exceeds this amount, the difference is an overpayment which can be refunded.

  • The credit is not available to employers who receive a small business interruption loan under the CARES Act (above), and future guidance is expected to provide for the recapture of credits if the employer receives such a loan after claiming the credit.

An eligible employer is one who (a) was carrying on a trade or business during calendar year 2020; (b) with respect to any calendar quarter for which (i) operations are fully or partially suspended due to orders from an appropriate government authority limiting commerce, travel, or group meeting due to COVID-19 or (ii) in which (beginning in first calendar quarter after 12/31/2019) there has been a significant decline in gross receipts (i.e., less than 50% gross receipts for same quarter in prior year and ending with calendar quarter for which gross receipts are greater than 80% same calendar quarter in prior year. Tax exempt organizations can also benefit from this credit.

Employer and Self-Employer Individual Deferral of Payroll Taxes

Employers and self-employed individuals can defer the payment of the 6.2% employer portion of employment taxes or self-employment taxes due during the “payroll tax deferral period” to December 31, 2021, and December 31, 2022. 50% of the deferred taxes will be required to be re-paid on each of these dates. Penalties will not apply for failure to make timely deposits for withholding these amounts.

The Payroll Tax Deferral Period is defined as the period beginning on date of enactment to January 1, 2021. This does not appear to be retroactive to January 1, 2020.

Net Operating Loss (NOL) Rules are Relaxed

Many of the rules limiting the use of net operating losses under the prior Tax Cuts and Jobs Act (TCJA) are suspended under the CARES ACT.

  • NOLs from 2018, 2019 or 2020 are eligible to be carried back for five years.

  • Additionally, the 80% limit on use of NOL carryforwards is also temporarily removed so that the NOL can fully offset income.

Those impacted by this rule should seek to carry back available losses to obtain cash refunds.

Limitation of Individuals’ Use of Business Losses

Under the TCJA, non-corporate taxpayers’ net business losses were limited under IRC section 461(l) to $250,000 ($500,000 for a joint filer). The CARES ACT would permit use of net business losses without limit for the 2018 tax year through 2020. If you were limited in the use of carryover loss used in 2018, this can produce an immediate refund

Corporate Alternate Minimum Tax Credit Refund

Under the TCJA, a C corporation with alternative minimum tax credits was entitled to a refund of these credits over a four-year period — 2018, 2019, 2020 and 2021. Under the CARES ACT, the corporation can receive the refund over a two-year period 2018 and 2019. Furthermore, if there will be any delay in filing the 2019 C corporation return, an election can be made to include the entire refundable amount in 2018.

Business Interest Limitation Under IRC Section 163(j)

The TCJA includes a limitation on the use of net business interest expense to 30% of Adjusted Taxable Income. The CARES ACT amends this rule for 2019 and 2020 and increases the limit from 30% of Adjusted Taxable Income to 50%. Additionally, since it is likely that 2020 income will be lower than 2019 due to the current economic circumstance, an election can be made to use the 2019 Adjusted Taxable Income for the 2020 tax year.

Bonus Depreciation Allowed on Qualified Improvement Property (QIP)

The Tax Cuts and Jobs Act intended to permit immediate write-off of costs related to Qualified Improvement Property. Due to a drafting error, this provision was not put into that legislation and caused QIP only to be eligible for depreciation over 39 years. The CARES ACT fixes this drafting error and specifically permits bonus depreciation to be taken on qualified costs retroactively. This allows amendment of 2018 and 2019 filed returns and provide a source of cash, particularly for those in the hospitality and restaurant industries.

Excise Tax Exemption

The bill also provides a temporary exception from excise tax on alcohol which is used to produce hand sanitizer.

Individual Provisions

Cash Payments

The CARES ACT provides for payments to individuals of up to $1,200 per person ($2,400 for a married couple) with an additional $500 for each qualifying child. The payment is subject to a phase-out for individuals with adjusted gross income over $75,000 and married persons filing jointly with AGI above $150,000. The amount of the payment is reduced by $5 for each $100 in income above the applicable threshold. The basic rebate amount is thus phased out in full for taxpayers with AGI of $99,000 for single filers and $198,000 for joint filers.

Nonresident alien individuals, individuals who are dependents of another, and estates or trusts are ineligible for the payment.

Payments will generally be based on 2018 tax return information. However, like the advanced tax premium credit under the Affordable Care Act, there is a true-up for the amount for which one is eligible on the filing of the 2020 tax return.

Retirement Fund Rules

In order to generate access to cash for individuals, the bill liberalizes the retirement plan rules, for 2020, dealing with premature distribution penalties, plan loans and required minimum distributions (RMDs).

The 10% premature early withdrawal penalty is waived for distributions of up to $100,000 from qualified retirement accounts and individual retirement accounts for coronavirus-related purposes. Additionally, the federal income tax on such distributions can be paid over a three-year period. The law also provides that these distributions can be recontributed back to the plan within a three- year period without affecting that year’s contribution cap.

The bill provides more flexible rules concerning loans from certain retirement accounts for coronavirus-related relief. The maximum amount of loans (when combined with existing loans) which can be taken from the plan is the lesser of $100,000 (up from $50,000) or 100% of the participant’s accrued benefit (up from 50%). In addition, there is a delay in the starting date of loan repayments back to the plan.

The bill also temporarily waives the required minimum distribution requirement from the plan for 2020. This permits those who do not need immediate funds to avoid cashing out investments at a low value.

A coronavirus-related distribution is one made to an individual where 1) he/she, a spouse or a dependent is diagnosed with COVID-19; or 2) the individual suffers adverse financial consequence due to being quarantined, furloughed, laid off, having work hours reduced, closing or reducing a business owned or operated by that person due to COVID-19, or other factors to be determined by Treasury. The qualified plan can accept an employee certification that this condition is satisfied. A single $100,000 limit applies to distributions by plans of a controlled group of businesses.

Charitable Contributions

Up to $300 of cash contributions for 2020 will be allowed for contributions to charities, whether the taxpayer itemizes or not, in determining adjusted gross income.

Additionally, an individual can elect to have the 50% of AGI limit not apply in 2020 for certain qualified contributions. However this does not apply to contributions to certain non-operating private foundations or amounts to establish or maintain a donor advised fund.

The limitation for C corporations, normally subject to a 10% of taxable income limit, is raised to 25% of taxable income.

The limitation on deductions for contributions of food inventory is increased from 15% to 25%.

Employer Payment of Student Loans Education Assistance Program

IRC Sec 127(c) of the Code is amended to include as a nontaxable employer-provided educational assistance program any payment of principal or interest made before January 1, 2021 (whether paid to the employee or a lender). Under current law, employees may exclude from gross income up to $5,250 in education assistance provided by their employers. The CARES Act expands the scope of education assistance to include payments by the employer of principal or interest on a student loan taken out by the employee for his own education. The exclusion is available if the employer pays the lender directly or pays the employee. The payment must be made before January 1, 2021. The overall $5,250 limit of current law continues to apply to all education assistance made during the year. An employee benefiting from an employer student loan payment loses the right to deduct interest on the loan.

THE ABOVE INFORMATION IS NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE OR RECOMMENDATIONS. To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein.