Paycheck Protection Program (“PPP”) First and Second Draw Applications and Timing

By Alan R. Sasserath, CPA, MS and George Batas

It is tough for us to believe we are writing about new PPP Loans again, but here we are.

 

First some housekeeping, there are two types of PPP loans referenced in the latest guidance. “First Draw” PPP loans refer to the borrower’s first application whether received in the initial funding in 2020 or now, in 2021. “Second Draw” PPP loans refer to the borrowers that already received and spent the First Draw PPP loans. Requests for increases in a First Draw PPP loan would fall in the First Draw PPP loan application pool and are permitted in certain instances.

 

The SBA will open its portal to accept First Draw PPP loan applications from community banks today. On Wednesday, January 13th, the SBA will open its portal to accept Second Draw PPP loan applications. The SBA will open its portal to all banks shortly.

 

The current First and Second Draw PPP loan applications are linked below.

 

Eligibility requirements for the First Draw PPP loans have not changed. The requirements, in general, continue to be eligible small entities that have 500 employees or less or meet the alternative size standards.

 

In general, eligibility requirements for the Second Draw PPP loans are entities that:
  1. previously received and used a First Draw PPP loan on qualified expenses prior to the disbursement of the Second Draw PPP loan;
  2. are eligible small entities that have 300 employees or less; and
  3. can demonstrate at least a 25% reduction in gross receipts between the same quarter in 2019 and 2020.

 

If you think you are eligible for a First or Second Draw PPP loan, you should be in contact with your bank and financial advisors to assist you with the process. If you went through the process with a First Draw PPP loan, you should be reaching out to whomever you worked with on that.

 

We strongly suggest that you reach out to your advisors regarding this as soon as possible. While the applications are straightforward as they were the first time, there are always nuances. An example of one such nuance pertains to entities that are planning to use supplier costs to assist with PPP loan forgiveness. Under the latest guidance, an entity is permitted to use the cost of supplies that are essential to the operations of the entity at the time at which the expenditure is made when such expenditure is made pursuant to a contract, order, or purchase order in effect at any time before the covered period (the date that you received the First or Second Draw loan) with respect to the PPP loan. Our point is that you want your contracts, orders, and purchase orders to be in place prior to receiving the First or Second Draw PPP funds so you can use the related expenditures that occur in the 8-week to 24-week period following funding to assist with PPP loan forgiveness. If the contracts, orders, and purchase orders are not in place at the time funds are received, then such expenditures cannot be used unless an exception is met.

 

As always, we are here to help. If we can assist you in any way, please feel free to contact us.

 

 

Paycheck Protection Program Webinar – December 2020

Congressional leaders have reached a long-awaited agreement on a $900 billion stimulus package. The measure is expected to provide more than $284 billion for businesses and revive the Paycheck Protection Program (PPP), a lifeline federal loan program for small businesses that lapsed over the summer.
On December 23, 2020, Sasserath & Zoraian, LLP gave an informative webinar where Alan R. Sasserath explained the critical details you need to know about this new round of PPP, as well as updates to the existing PPP loan program.
Topics included:
  • Eligibility for “second round” PPP loans
  • Additional eligible expenses for existing PPP loans
  • Tax implications of PPP loans
  • Simplified forgiveness application
  • 501(c)(6) non-lobbying organizations
Below you will find the presentation materials and a video replay. We hope this information is helpful to you and as always, please contact us if we can be of further assistance.

Year-End Planning: Qualified Disaster Relief Under Section 139

By George Batas

As such an unprecedented year draws to a close, employers and employees alike may be interested to know that Section 139 of the Internal Revenue Code allows an employer to make qualified disaster relief payments to an individual on a tax-free basis. The employer would get a deduction for the payments and the individual would receive the money tax-free.

To qualify under Section 139, a two-prong test must be met. First, a “qualified” disaster must have occurred. Based on the Emergency Declaration, the pandemic has met this test. The second test is that payments must be considered “qualified” disaster relief payments. Qualified disaster relief payments are meant to include any amount to reimburse or pay reasonable and necessary personal, family, living, or funeral expenses because of a qualified disaster. Some expenses that could fall into this category include costs associated with establishing a home office, medical expenses related to COVID-19 and not covered by insurance, dependent care expenses incurred due to closure of existing care providers, costs associated with alternative forms of commuting due to mass transit being unavailable or unsafe, and costs to purchase PPE . The payments from Section 139 are not allowed to be a replacement of wages to an employee.

Although there is no specific requirement for employers to adopt a written plan or policy to make qualified disaster payments, it is recommended that the employer put together a plan that would communicate who is eligible for the payments, what expenses would be covered, whether the employee must provide receipts or other proof of payments, and how and when the payments are to be made. The IRS has specifically stated employees are not required to account for actual expenses to qualify for the Section 139 exclusion as long as the amount of payments can be “reasonably expected to be commensurate with the expenses incurred.” It is highly recommended that the employer have signed statements from employees affirming that their claims arise from an area covered by the disaster declaration, that they have incurred qualified expenses, and that their expenses will not be covered through an insurance policy.

If you have questions regarding Section 139 qualification, please contact us.

 

IRS Will Expand Identity Protection PIN Opt-in Program in 2021

The IRS announced this week that starting in January 2021, the Identity Protection (IP) PIN opt-in program will be expanded to all taxpayers who can properly verify their identities. The IP PIN is a six-digit number assigned to eligible taxpayers to help prevent the misuse of their Social Security number on fraudulent federal income tax returns. An IP PIN helps the IRS verify a taxpayer’s identity and accept their electronic or paper tax return.

The fastest way to get an IP PIN is through the IRS’s “Get An IP PIN” tool. Expected to be available in mid-January, the tool uses Secure Access authentication, which verifies a person’s identity through several different methods. Once received, an IP PIN is valid for one year; taxpayers must obtain a newly generated IP PIN each January. The IRS plans to offer an opt-out feature to the IP PIN program in 2022 if taxpayers find it is not right for them.

More information is available here.

Paycheck Protection Program (“PPP”) – Update November 2, 2020

By Alan R. Sasserath, CPA, MS

Several months have passed since a constant stream of critical PPP updates dominated our days. However, we are writing now because last week the Small Business Administration (“SBA”) released a notice that it will seek to obtain certain information from PPP loan borrowers whose PPP loan exceeds $2 million.

The SBA will seek to obtain such information via two new forms:

  1. Form 3509 – Loan Necessity Questionnaire (For-Profit Borrowers)
  2. Form 3510 – Loan Necessity Questionnaire (Non-Profit Borrowers)

Proposed versions of the forms are attached, and the public has until November 25, 2020 to submit comments regarding the content of such forms before they are finalized.

This request relates to the certification made by every company that applied to the PPP that stated, “Current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant” (the “Certification”).  This Certification has been the topic of many discussions.

Forms 3509 and 3510 also appear to be in response to the SBA’s PPP Loan FAQ #31 and FAQ #46.  These questions relate to the Certification and whether businesses owned by large companies have adequate sources of liquidity to support the business’s ongoing operations.

How will these forms affect other borrowers – those with PPP Loans of less than $2 million?  Pursuant to FAQ #46, “Any borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.”  Based on this, it appears that the forms may act as a helpful guide to such borrowers that may have questions regarding loan necessity, but (we hope) nothing more.

The forms include questions related to what the SBA refers to as a Business Activity Assessment and a Liquidity Assessment (“Assessments”).  Attached are copies of the FAQs referred to above.

One of the key points that we saw regarding such Assessments is that the Certification was required to be made at the time of the application and not at any point after that date.  The Assessments ask questions relating to financial activity occurring up through the end of the loan forgiveness covered period (the 24-week period after the date of the loan).

Based on the instructions, the completion of either form is required by every borrower that, together with its affiliates, received PPP loans with an original principal amount of $2 million or greater.  The completed form is due to the lender servicing the PPP loan within ten business days of receipt from the lender.

Since the Forms are not yet finalized, we believe that those with PPP loans of $2 million or more should at a minimum start formulating how they would respond to such a request.  For all recipients of PPP loans, we suggest that you document why you believe that you were able to make the Certification if ever asked for such information.

As always, we are available to help. Please contact us at 631-368-3110.

Tax Implications of Employees Traveling Between the United States and Canada

By Alan R. Sasserath, CPA, MS; Michael D. O’Brien, EA; and Richard Weber; CA

March 2012 Vol. 3 No. 3 The Tax Stringer – The global economy has produced a growing need for individuals flexible enough to work outside of their home countries, especially among companies with operations in both Canada and the United States. Proper tax planning is essential in minimizing the potential tax liability that can be associated with a work-related transfer between these two countries.
Several important tax policies exist for U.S. resident employees of U.S. corporations and for Canadian resident employees of Canadian corporations who render employment services in the other country. In both the United States and Canada, penalties that might be significant in amount may be imposed on employer corporations and their employees for failure to comply with the tax requirements of each country.
The two scenarios below can act as a general guide to help CPAs prepare for work relocation, although professional advice should be sought for real-life client situations. For simplicity, the two scenarios assume that the country of residence of the individual’s employer corporation is the same as the individual’s home country. These scenarios do not cover state, provincial or Social Security taxes. U.S. Residents Travelling to Canada to Perform Employment Duties Canadian (Host Country) Tax Implications
Liability of Employee to Tax in Canada. Nonresidents of Canada who earn income from employment rendered in Canada are typically subject to taxes on that income according to the domestic tax laws of Canada. But the Canada/U.S Tax Treaty (“the Treaty”) provides the following two helpful and distinct exemptions from such liability for Canadian tax:

  • First, employment income earned by a U.S. resident that is attributable to employment carried out in Canada will generally be exempt from tax in Canada if such remuneration for the calendar year is not more than $10,000 (measured in the currency of the host country – in this case, Canada).
  • A second exemption from Canadian tax may also be available if the individual is not physically present in Canada for more than 183 days in any 12-month period beginning or ending in the fiscal year in question and if the remuneration is not paid by or on behalf of a person who is a resident of Canada or borne by a “permanent establishment” in Canada. In the latter exemption, “borne by” means allowable as a deduction in computing taxable income.

For example, assume that an individual is a resident of the United States and is employed by a U.S. company. Assume also that the individual performs employment duties in Canada (for less than 183 days) at a Canadian branch office of the US. company. The Canadian source employment income earned by the individual for the calendar year exceeds $10,000 (Canadian). The amount of the individual’s Canadian source employment income is charged by the head office of the U.S. company to its Canadian branch office, which deducts the charge in computing its income for Canadian tax purposes. In this case, the individual would be subject to tax in Canada on the Canadian source employment income because the Canadian employment income is borne by the permanent establishment in Canada.

Tax Return Filing Requirement. Canada’s domestic tax laws contain an exemption from the requirement for individuals to file a Canadian tax return where “no tax is payable … for the year.” The Canada Revenue Agency (CRA) restricts the requirement to file a tax return to situations where an individual has to pay tax for the year or if the CRA requests the individual to file a tax return (for example, if a T4 slip has been filed by the employer). Also, an individual may want to file a tax return voluntarily to facilitate the claim for a refund due, such as for Canadian taxes withheld at source related to Canadian source employment income that is not subject to tax in Canada due to the Treaty.

U.S. (Home Country) Tax Implications

Employees working in Canada may be on a short-term (fewer than 12 months) or a long-term (more than 12 months) work assignment or may even be commuters who travel back and forth on a regular basis. U.S. citizens and residents remain taxable on their worldwide income and so all income earned will continue to be reported on the U.S. individual income tax return.

Short-term assignees may deduct away-from-home living expenses to the extent that they maintain their tax home in the United States and satisfy certain additional requirements. Long-term assignees will seek to meet the criteria enabling them to qualify for the foreign earned income and housing exclusions as applicable.

A U.S. person could qualify for up to $92,900 of foreign earned income exclusion in 2011 ($95,100 in 2012), in addition to claiming specified housing exclusions that vary by location. To qualify for these exclusions, taxpayers must satisfy one of two tests: they must maintain taxed homes outside the United States for a period that includes a complete U.S. tax year or they must maintain a taxed home outside the United States and be present outside the country for at least 330 days in any 365-day period. If they can satisfy one of these tests, the U.S. employee can reduce U.S. tax withheld in anticipation of claiming these exclusions on the U.S. tax return when filed.

Employees will also wish to ensure that they can utilize the maximum amount of foreign tax credit available on their U.S. tax return for Canadian taxes paid or accrued. To this end, income taxed by both the United States and Canada should ultimately be taxed only once-at the higher prevailing tax rate. Where the U.S. employer is obliged to withhold Canadian taxes on wages paid for work performed in Canada, the corresponding U.S. tax withholding can be suspended to avoid an undue withholding burden on the employee.

U.S. employees living and working in Canada for extended periods may face additional U.S. information reporting requirements in relation to interests that they acquire in foreign corporations, foreign trusts or foreign bank accounts.

Canadian Residents Travelling to the United States to Perform Employment Duties

U.S. (Host Country) Tax Implications

Liability of Employee to Tax in the United States. A foreign national working in the United States is likely to be engaged in a U.S. trade or business and therefore subject to U.S. tax at normal graduated tax rates unless such person qualifies as exempt under the Treaty.

Broadly speaking, Article XV of the Treaty permits taxation only in the country of residence for services rendered in the other country when-

  • remuneration does not exceed $10,000 (in the currency of the other country) or
  • the recipient is present in the other country for less than 183 days and the remuneration is not borne by an employer with a presence in the other country.

Tax Return Filing Requirement. The first consideration for any Canadian employee on U.S. work assignment is often whether the amount of time spent by that employee in the United States will give rise to a U.S. tax filing requirement and what (if any) provisions of Treaty will prevaiL As mentioned above, for those individuals on short­term business trips, spending less than 183 days per year in the United States or earning less than $10,000 per year from U.S. sources, the Treaty may permit taxation only in Canada. A treaty-based nonresident tax return will confirm this position.

Individuals will normally become U S. residents for tax purposes if they obtain permanent residence status (green card holder) or if they meet the substantial presence test, which is met in any year that an individual spends at least 31 days in the United States during the current year and 183 days in the United States when counting all of the current-year U.S. days, one-third of the prior-year U.S. days and one-sixth of the U.S. days in the second prior year. A foreign national may end up filing Form 1040, Form 1040NR, or a combination of both-known as a dual-status tax return-all depending on the actual residency start date, as well as on any elections that might be entered into for the year of arrival.

Canadian nationals working in the United States who become U.S. residents are subject to additional U.S. information reporting requirements in relation to interests they may have in foreign corporations, foreign trusts, and foreign bank accounts (including registered retirement savings plan accounts).

Canadian (Home Country) Tax Implications

Foreign Tax Credit Related to U.S. Taxes Incurred. In order to avoid what would otherwise constitute double taxation, Canada permits a foreign tax credit in respect of U.S. source employment income earned by a Canadian resident that is first subject to taxation in the United States. To ensure that no undue hardship would arise, an application to the CRA may be made by the individual to request a reduction in the amount of Canadian tax withheld at source that relates to U.S. source employment income that is subject to U.S. tax withholding.


Alan R. Sasserath, CPA, MS, started his career in the audit department
of Emst & Young before working in the tax departments of two large
regional firms. In 1996, he began his own practice and then joined with
Gregory Zoraian in 1997 to form Sasserath & Zoraian LLP. Mr. Sasserath
has more than 20 years of public accounting firm experience, with a
broad background in accounting, tax, audit, and financial planning. His
technical experience includes working with high-net-worth individuals and closely-held businesses. His industry experience includes technology
companies, real estate management companies, construction, and printing, as well as numerous service industries. He can be contacted at alan@sz-cpas.com or by phone at 631-368-3110.

Michael D. O’Brien, EA, is a tax principal at Sasserath & Zoraian, LLP
with over 20 years of experience in public accounting, most of it gained at PricewaterhouseCoopers and BOO in New York and, prior to that, at
KPMG in London. Mr. O’Brien has a wide range of private client, business
and international experience, specializing in cross-border tax situations
giving rise to offshore structure planning, as well as expatriate and
nonresident alien tax matters. He also engages in tax planning and
compliance for U.S. beneficiaries of foreign trusts, in addition to advising foreign athletes and entertainers. He can be reached at michael@sz-cpas.com or by phone at 631-368-3110.

Richard Weber, CA, is a tax principal at Fuller Landau, and he has
specialized in tax since 1996. Mr. Weber specializes in numerous areas
of corporate and personal tax, including corporate reorganizations, estate
planning, complex tax research, and cross-border tax planning. He works
with clients that operate in many industries and is knowledgeable about
U.S. companies expanding their businesses into Canada. He can be
contacted at rweber@fullerlandau.com or by phone at 416-645-6522.

View the original publication on The Tax Stringer here.