Read this if your company is eligible for the Employee Retention Credit (ERC) and has filed a claim.
In a recent news release, the IRS announced that it will begin processing low-risk ERC claims submitted prior to September 15, 2023, when a moratorium on processing new claims was effective. The IRS indicated 50,000 low-risk ERC claims will be processed and paid out quickly. The IRS projects payments will begin in September, with additional payments going out in subsequent weeks. The IRS anticipates adding another large block of additional low-risk claims for processing and payment in the fall.
The IRS also indicated it has sent out 28,000 disallowance letters in recent weeks to businesses whose claims showed a high risk of being incorrect. The IRS estimates that these disallowances will prevent up to $5 billion in improper payments. We have seen a couple of denial letters that relate to the quarter ended September 30, 2021. Those denial letters indicate the IRS does not believe the employer was subject to government orders that impacted operations—nor did the employer incur a significant reduction in gross receipts. If you received a denial letter related to the quarter ended September 30, 2021, and do not have the appropriate support for the impact of government orders or a reduction in gross receipts then it may not make sense to appeal the denial.
The IRS also announced that it has shifted the moratorium period on new claims that was effective as of September 14, 2023. Per the agency, it will now start judiciously processing claims filed between Sept. 14, 2023, and Jan. 31, 2024. Like the rest of the ERC inventory, work will focus on the highest and lowest risk claims at the top and bottom end of the spectrum. This means there will be instances where the agency will start taking action on claims submitted in this time period when the agency has seen a sound basis to pay or deny a refund claim.
Given the complexity of the ERC (and to reduce the risk of improper payments), the IRS is moving methodically and deliberately on both the disallowances as well as additional payments to balance the needs of businesses with legitimate claims against the promoter-fueled wave of improper claims that came into the agency.
“The Employee Retention Credit is one of the most complex tax provisions ever administered by the IRS, and the agency continues working hard to balance our work to protect taxpayers from improper claims while also making payments to qualifying businesses,” said IRS Commissioner Danny Werfel. “It has been a time-consuming process to separate valid claims from invalid ones. During the past year, we maintained a steady cadence of both ERC approvals and disapprovals.”
As the IRS begins to process additional claims, the agency reminds businesses that they may receive payments for some valid tax periods—generally quarters—while the IRS continues to review other periods for eligibility. ERC eligibility can vary from one tax period to another if, for example, government orders were no longer in place or a business’s gross receipts increased. Alternatively, qualified wages may vary due to a forgiven Paycheck Protection Program loan or because an employer already claimed the maximum amount of qualified wages in an earlier tax period.
The IRS also reminds businesses that if they receive a denial of an ERC claim, they have options available to file an administrative appeal by responding back to the address on the denial letter. IRS.gov also has additional information on administrative appeals with the IRS-independent Office of Appeals.
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.
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. We have encountered situations where the IRS has no record of receiving a Form 941-X and the client has the return receipt confirming receipt by the IRS.
Lastly, employers who receive a denial letter are encouraged to reach out to their tax advisor for assistance with the appeals process if they believe they are in fact eligible for the credit.