Read this if your company is eligible for the Employee Retention Credit (ERC) and has filed a claim.
After conducting a review of ERC claims from businesses and organizations nationwide, the IRS has announced it will be denying tens of thousands of claims. IRS Commissioner Danny Wefel commented, “The completion of this review provided the IRS with new insight into risky ERC activity and confirmed widespread concerns about a large number of improper claims.” Werfel added that the agency will now work to pay claims to help taxpayers and small businesses that didn’t have any red flags on their claims.
The review of claims looked at more than one million ERC claims, representing more than $86 billion. The IRS found that 10 to 20% of the claims to be high-risk, showing clear signs of being incorrect. Additionally, the IRS estimates that between 60 and 70% of claims have unacceptable levels of risk. As a result, the IRS will be gathering more information to improve the agency’s compliance, reduce the time to resolve valid ERC claims, and protect against improper payments moving forward.
The IRS is asking Congress to close the ERC program to additional applications and extend the statute of limitations to allow them more time to pursue improper claims. These changes are included in a stalled House-passed tax bill that seems unlikely to pass the Senate.
“The whole world has changed involving Employee Retention Credits since the deepest days of the pandemic,” Werfel said. “Anyone applying for this credit needs to talk to a trusted tax professional and closely review the eligibility requirements, not someone playing fast and loose and trying to make a fast buck off well-meaning taxpayers. People need to be cautious of promoters trying to take advantage of today’s announcement to drive more business. People should remember the IRS continues to be very active in our compliance lanes on Employee Retention Credits.”
Our take: For those employers still waiting to receive their ERC claims and who worked with a non-tax professional to calculate and claim the credit, now is the time to determine if you have (or received from the third-party vendor) the appropriate documentation to verify eligibility to claim the credit and confirm the calculation of the credit. At a minimum, you should have documented support for the reduction in gross receipts test or full/partial shutdown test related to the eligibility of the businesses or organizations to claim the credit and detailed support.
IRS encourages patience, as claims processing will take some time
The IRS cautioned taxpayers who filed ERC claims that the process will take time, and the agency warned that processing speeds will not return to levels that occurred last summer. Taxpayers with claims do not need to take any action at this point, and they should await further notification from the IRS. The agency emphasized those with ERC claims should not call IRS toll-free lines because additional information is generally not available on these claims as processing work continues.
“These complex claims take time, and the IRS remains deeply concerned about how many taxpayers have been misled and deluded by promoters into thinking they’re eligible for a big payday. The reality is many aren’t,” Werfel said. “People may think they are on safe ground, but many are simply not eligible under the law. The IRS continues to urge those with pending claims to use this period to review the guideline checklist on IRS.gov, talk to a legitimate tax professional rather than a promoter and use the special IRS withdrawal program when there’s an issue.”
Our take: The IRS is advising employers not to contact the IRS regarding the status of the ERC claims. However, we recommend employers call the IRS to make sure it has received the applicable Form(s) 941-X. We have encountered situations where the employer mailed the Forms 941-X to the IRS via certified mail/return receipt, received the return receipt, and the IRS has no record of receiving the Form. The applicable Forms 941-X should be re-submitted to the IRS.
In addition, we recommend an employer who has received payment for some, but not all claims call the IRS to verify the outstanding Forms 941-X are actually on file at the IRS.
ERC claims processing moratorium to continue
Last October, the IRS announced a moratorium on processing claims submitted after Sept. 14, 2023, to give the agency time to digitize information on the large study group of nearly 1 million ERC claims. The IRS intends to keep that moratorium in place. This will give the IRS time to gather additional feedback from Congress and other partners, on the future direction of the Employee Retention Credit program.
Our take: It is still possible to submit valid claims during the moratorium. However, any claims submitted after January 31, 2024, would not be valid under the stalled House-passed tax bill. That bill would eliminate new ERC claims after January 31, 2024. It is still unclear if the Senate will take up the bill and, if it does, the January 31st date may not be retained.
IRS resources
The IRS provides resources to help people learn more about the ERC and check their eligibility. Businesses are encouraged to consult their trusted tax professional. Here are some resources to help you determine if you have a risky ERC claim:
IRS claim withdrawal process
As the IRS review found a large number of questionable claims, the IRS encourages taxpayers with unprocessed claims to take advantage of the special IRS ERC Withdrawal Program to avoid future compliance issues. Please note that taxpayers who received an ERC check, but have yet to cash or deposit it, can use this process to withdraw the claim and return the check. The IRS will treat the claim as unfiled and will not accrue any interest or penalties.
If you have any other questions on the ERC or your claim in particular, please contact us. We are here to help.