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Tax relief strategies for resilience

By: David Erb
11.11.20

Read this if you are a business owner.

Here is some end-of-year tax information we would like to share. While it may vary in your specific situation, we are providing this general information for your review. Please contact us with any questions about your year-end preparations. 

As the world continues to contend with the COVID-19 pandemic and its economic fallout, businesses are doing all they can to mitigate risks and plan for a recovery that’s anything but certain. Here are some tax relief tactics that can help take your business from reacting to the day-to-day challenges to taking advantage of those incentives that are available to help move your business forward.

Tax strategies to generate immediate cash flow

While not exhaustive, here are several tax strategies to consider:

Debt and losses optimization

  • File net operating loss (NOL) carryback refund claims
  • File claim to relieve 2019 tax payments due with the 2019 returns for corporations expecting a 2020 loss 
  • Analyze the tax impact of income resulting from the cancellation of debt in the course of a debt restructuring
  • Consider claiming losses related to worthless, damaged, or abandoned property to generate losses 
  • Decrease estimated tax payments based on lower 2020 income projections, if overpayments are anticipated
  • Consider filing accounting method changes to accelerate deductions and defer income recognition with the goal of increasing a loss in 2020 for expanded loss carryback rules

Making the most of legislation and understand how the CARES Act can provide relief to employers: Defer payment of the employer’s share of Social Security taxes until the earlier of (1) Dec. 31, 2020, or (2) the date the employer’s Paycheck Protection Program (PPP) loan is forgiven

Take advantage of any remaining corporate AMT credit

Consider the Employee Retention Credit

Regardless of which tax strategies you leverage, keeping the focus on generating and retaining cash will help ensure your business can weather an extended period of disruption.

Optimizing operations: Uncover tax relief opportunities

The initial tumult of the pandemic and economic fallout has passed, but significant challenges remain. Although companies that have managed to survive up to this point may have overcome immediate safety and cash flow problems, we still face an uncertain future. No one can predict how long the downturn will last, whether the world will revert into crisis mode or the path towards long-term recovery has begun. 

Despite the uncertainty, savvy companies can position themselves to outperform their competitors by capitalizing on market shifts and strengthening their core business models. To do so, liquidity will continue to be at a premium, but many companies at this stage should be able to spend a bit in order to reap considerable returns. Tax planning is important to do just that. Consider which tax strategies can help you find a competitive edge, including: 

Uncovering missed opportunities for savings: 

  • R&D tax credit studies: The money companies spend on technology and innovation can offset payroll and income taxes via R&D tax credits.
  • Property tax assessment appeals: In the wake of the COVID-19 pandemic, some jurisdictions are reevaluating their property tax processes.
  • Cost segregation studies: Cost segregation studies can help owners of commercial or residential buildings increase cash flow by accelerating federal tax depreciation of certain assets.
  • State and local credits and incentives projects: By taking advantage of existing programs, as well as those implemented as a result of COVID-19, companies can qualify for state tax credits and business incentives. 
  • Opportunity zone program: This federal program is structured to encourage investors to shift capital from existing assets to distressed, low-income areas, and in doing so, deferring and even reducing taxes.

Maintaining compliance: If your business secured any federal funding in the early stages of the pandemic, those funds likely came with certain tax and financial reporting compliance measures attached. 

Continue to grow liquidity: Cash is still key to navigating an uncertain road ahead. Continue to leverage liquidity-generating tactics, such as:

  • Evaluating existing accounting methods and changing to optimal methods for accelerating deductions and deferring income recognition, thereby reducing taxable income and increasing cash flow.
  • Reviewing transfer pricing strategies to identify opportunities to optimize cash flow.
  • Pursuing a tax deduction through charitable donations.
  • Maximizing state NOLs through elections, structural changes, intercompany transactions, and triggering unrealized gains.

Moving forward: Adopt new business strategies to reimagine the future

In the recovery phase, demand for goods and services has returned to pre-pandemic-recession levels. The wisest companies won’t spend this time resting on their laurels but will instead use it to reimagine their futures. 

Plans made prior to spring 2020 may no longer make sense in a post-COVID world. Companies need to not only recover from COVID-19, but also integrate the lasting forces of change brought on by the pandemic to emerge more resilient and more agile than before it began. It’s time to reset vision and strategy—and tax needs to be an integral part of that process. Here are some tax considerations that can align with new business strategies: 

Workforce

During recovery, businesses have likely confirmed near-term strategies around where employees will work. While these plans need to balance employee safety and operational efficiency, they also come with important tax impacts. Tax considerations: 

  • Assess the tax implications of your mid- to long-term workforce strategy, whether you take an on-site, fully remote, or a hybrid approach
  • Ensure tax compliance with state or local tax withholding for employees working remotely 
  • Consider the tax implications of outsourcing any business functions

Finances

As demand for products and services increases, it’s likely profits will also grow, meaning many companies that may have been incurring losses may find themselves with taxable income again. At this point, tax strategies should focus on lowering the organization’s total tax liability. Tax considerations: 

  • Optimize the use of any available credits, incentives, deductions, exemptions, or other tax breaks 
  • Maximize the benefit of changes to the net operating loss rules included in the CARES Act 
  • Consider the foreign-derived intangible income (FDII) deduction, if applicable (i.e., companies that earn income from export activities)

Transactions

Many businesses may be considering strategic transactions, such as acquiring another company, merging with a peer, selling certain assets, or purchasing new resources. Each of these actions can have multiple tax consequences. Tax considerations: 

  • Assess potential tax benefits or liabilities of strategic transactions before they take place as a part of the due diligence process
  • Identify loss companies and plan around utilizing losses and credits
  • Structure acquisitions and divestitures in a tax-efficient manner to increase after-tax cash flow

Innovation

As companies reconfigure their businesses to adapt to COVID-19 changes—from greater shifts to e-commerce to outsourced back office functions to partially remote work arrangements—they should determine how to use tax strategies to offset the costs of these investments. Tax considerations:  

  • Consider using federal, state, or even other countries’ R&D tax credits to offset costs of new products, processes, software, and other innovations
  • Explore whether previously undertaken activities may also qualify for these credits 

Regulations and legislation

As the economy improves, regulatory oversight likely will also increase. Noncompliance can be costly and can reverse much of the progress a business has made in its recovery. At the same time, additional tax law changes are likely on the horizon, and companies will need to be able to act quickly when they appear. Tax considerations

  • Ensure compliance with rules around federal funding received during the pandemic
  • Monitor tax regulatory and legislative developments at all levels, especially in the area of digital taxation, post-election tax reform, and federal, state, and local policy changes 
  • Scenario plan to outline the potential impact of future tax legislation on the company’s overall tax liabilities

Transformation

Staying ahead in the “new normal” means accelerating efforts around digital transformation to build a business with agility and resilience at its core. This should always include evolving the tax function. Businesses must strive to fully integrate processes, people, technology, and data to understand total tax liability and forecast how decisions and changes will impact their tax standing. Tax considerations

  • Collaborate with leadership and other areas of the business on a company-wide approach to digital transformation efforts
  • Establish a clear, shared vision of the future state of the tax department
  • Develop the business case for transformation efforts

Whatever pivots your business takes once the worst has passed, tax strategy needs to be an integral part of the plan to move forward. Evolving your tax strategy alongside business strategy will help prevent unforeseen costs and maximize potential savings.
 

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If you received over $2 million in PPP funds, read on.

The Small Business Administration (SBA) has posted a new form to collect additional information on loan necessity from businesses that received over $2 million in PPP funds. The comment period is now open and closes on November 25, 2020. As we seek more clarity, here is what we know.

What is happening: 

The SBA released PPP Loan Necessity Questionnaires (Forms 3509 and 3510) for borrowers that received PPP loans of $2 million or more on October 30, 2020. The forms are not available at the SBA or Treasury websites, but were released through the PPP Loan Forgiveness portal to lenders.  

Here is an excellent description of what we know thus far. Here are our concerns: 

  • The timing and lack of clarity. The 10-day turnaround is very tight. It could be very difficult to manage if it hits during a month or quarter close, or even worse at year-end.

  • This is counter to what was described in the FAQs at the time, so it leaves us with many unanswered questions.
  • It appears that information on the form might be subject to FOIA. There is a toggle to indicate what information you consider to be confidential. We recommend that you carefully review what information you have not flagged as confidential before submitting the form.

Other considerations and actions you can take in the meantime:

  • We know that the questionnaire is triggered by submitting an application for forgiveness. Given some of the uncertainty of other program impacts and this additional information that is requested, it may be reasonable to wait to seek loan forgiveness until we determine the impact.
  • You may wish to comment on the federal notice. See instructions for submitting comments below.

COVID-19 business support

We will continue to post updates as we uncover them. Let us know if you have questions. For more information regarding the Paycheck Protection Program, the CARES Act, or other COVID-19 resources, see our COVID-19 Resource Center.

Instructions for submitting comments:
Agency Clearance Officer                  
Curtis Rich
Small Business Administration
409 3rd Street SW
5th Floor
Washington, DC 20416

and 

SBA Desk Officer
Office of Information and Regulatory Affairs
Office of Management and Budget
New Executive Office Building
Washington, DC  20503

Your comments should be titled as follows:
Title: Paycheck Protection Program
OMB Control Number: 3245-0407

Comments should include one or all of the following: 
(a) whether the collection of information is necessary, 
(b) whether the estimate of 1.6 hours to complete or review the proposed application form is accurate (42,000 applications, 67,833 annual hour burden), 
(c) whether there are ways to minimize this burden, and
(d) whether there are ways to enhance the quality, utility, and clarity of the information.

Article
Paycheck Protection Program: New regulatory announcements

Focus: Disaster Loan Program and Paycheck Protection Program (PPP)

Background

The Coronavirus Aid, Relief and Economic Security (CARES) Act will provide $562 million to cover administrative expenses and program subsidy for the US Small Business Administration (SBA) Economic Injury Disaster Loans and small business programs. 

Additionally, the CARES Act specifically provides the authorization for $349 billion for the SBA 7(a) program through December 31, 2020. 

SBA disaster loan program (updated for CARES Act) highlights


General
The US Small Business Administration is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the coronavirus and COVID-19.

Eligibility 
Industry may be subject to different standards, but the general rule of thumb is that the SBA defines most small businesses as having less than 500 people, both calculated on a standalone basis and together with its affiliates (see PPP below for more information). A company’s average annual sales may also be used for the small business designation. 

Historically, businesses that are not eligible for this program included casinos, charitable organizations, religious organizations, agricultural enterprises and real estate developers that are primarily involved in subdividing real property into lots and developing it for resale for themselves (other real estate entities may apply, such as landlords). 

However, the CARES Act expanded eligibility to include (i) any individual operating as a sole proprietor or independent contractor; (ii) private non-profits and (iii) Tribal businesses, cooperatives and ESOPs with fewer than 500 employees during January 31, 2020 to December 31, 2020.

If the entity has bad credit or has defaulted on a prior SBA loan, the entity is not eligible. The CARES Act removed the credit elsewhere requirement (i.e., previously if the business had credit available through another source, such as a line of credit, it was ineligible). 

Basic terms

  • Loan amount
    The lesser of $2 million or an amount determined that that borrower can repay (i.e., underwriting requirement).
  • Maximum term
    Up to 30 years and all payments on these loans will be deferred for 12 months from disbursement date. Interest will accrue.
  • Interest rate
    3.75% for for-profit business and 2.75% for a non-profit entity.
  • Collateral
    Loans for under $25,000 do not require collateral.  Any person with an interest in the company worth 20% or more must be a guarantor; however the CARES Act eliminates the guaranty requirement on advances and loans under $200,000. 
  • Use of proceeds
    Loan proceeds may be used to pay fixed debts (including short-term notes and balloon payments that are due within the next 12 months), payroll, accounts payable, and other bills the borrower would have to pay that but for the disaster would have been paid, such as mortgage payments. Landlords and other passive entities are eligible. Agriculture-related entities are eligible, but farmers are not. Borrowers must maintain proof of how the loan proceeds were used for three years from the date of disbursement. Borrowers cannot use the proceeds to expand their business, buy assets, make repairs to real estate or refinance long-term debt. 
  • Forgiveness
    No forgiveness provision.

Applying
Loan applications are available here

Length of time for funding
Upon submittal of a completed application, it can take 18-21 days to be approved and another four to five business days for funding. However, the SBA has never dealt with this much volume so expect delays.  

If funding is needed immediately, contact any SBA partnering non-profit lender and request an SBA microloan up to $50,000 or contact a commercial lending partner to see if they offer SBA express loans up to $1,000,000 (CARES Act increases this from $350,000 to $1,000,000) and/or SBA 7(a) loans up to $5 million. The 7(a) loans are typically processed within 30 days, while microloans and express loans are processed even more quickly. 

The CARES Act has also established an emergency grant to allow eligible entities who have applied for a disaster loan because of COVID-19 to request an advance of up to $10,000 on that loan. The SBA is to distribute the advance within three days. 

This advance does not need to be repaid, even if the applicant is denied a Disaster Loan. ($10,000,000,000 is appropriated for this program and funds will be distributed on a first come, first served basis). An applicant must self-certify that it is an eligible entity prior to receiving such an advance. Advances may be used for providing sick leave to employees, maintaining payroll, meeting increased costs to obtain materials, rent or mortgage payments, and payment of business obligations that cannot be paid due to loss of revenues. Applicants must apply directly with the SBA for this program.

Other considerations
Each company should review any current loan obligations and confirm that it does not include a provision forbidding that applicant from acquiring additional debt. If the document does, the applicant will want to discuss a waiver of that provision with its current lender. The lender should be amenable to this waiver and the applicant will want the waiver verified in writing. The lender should be amenable because the SBA disaster loan can be used to satisfy monthly debt obligations and any collateral taken by the SBA would be subordinate, if the same collateral secures the lender’s loan.

Under the CARES Act, Congress has also directed the SBA to use funds to make principal and interest payments, along with associated fees that may be owed on an existing SBA 7(a), 504 or micro-loan program covered loan, for a period of six months from the next payment due date. Any loan that may currently be on deferment will receive the six months of covered payments once the deferral period has ended. This provision will also cover loans that are made up to six months after the enactment of the CARES Act. If the loan maturity date conflicts with benefiting from this amendment, the lender can extend the maturity date of the loan. 

Newly enacted Paycheck Protection Program (PPP)


General
This new program will be offered with a 100% SBA guaranty through December 31, 2020, to lenders, after which the guaranty percentage will return to 75% for loans above $150,000 and 85% for loans below that amount. 

Eligibility 
A business, including a qualifying nonprofit organization, that was in operation on February 15, 2020, and either had employees for whom it paid salaries and payroll taxes or paid independent contractors, is eligible for PPP loans if it (a) meets the applicable North American Industry Classification System (NAICS) Code-based size standard or other applicable 7(a) loan size standard, both alone and together with its affiliates; or (b) has an employee headcount that is lower than the greater of (i) 500 employees or (ii) the employee size standard, if any, under the applicable NAICS Code. 

Businesses that fall within NAICS Code 72, which applies to accommodations and food services, are also eligible if they employ no more than 500 people per physical location. Sole proprietorships, independent contractors, and self-employed individuals are also eligible. It is unclear as of what date the size test will be applied, but historically, SBA size tests have been applied on the date of application for financing. More information on the NAICS-Code-based size standards can be found here

Borrowers are required to provide a good faith certification that the loan is necessary due to economic conditions brought about because of COVID-19 and that the borrower will use the funds to retain workers, maintain payroll and pay utilities, lease and/or mortgage payments.

The credit elsewhere test is waived under this program. 

Lenders shall base their underwriting on whether a business was operational on February 15, 2020, and had employees for whom it was responsible for or paid for services from an independent contractor. The legislation has directed lenders not to base their determinations on repayment ability at the present time because of the effects of COVID-19.

Applicants for SBA loan programs, including PPP loans, typically must include their affiliates when applying size tests to determine eligibility. That means that employees of other businesses under common control would count toward the maximum number of permitted employees. A business that is controlled by a private equity sponsor would likely be deemed an affiliate of the other businesses controlled by that sponsor and could thus be ineligible for PPP loans. However, the CARES Act waives the affiliation requirement for the following applicants:  

  1. Businesses within NAICS Code 72 with no more than 500 employees
  2. Franchises with codes assigned by the SBA, as reflected on the SBA franchise registry
  3. Businesses that receive financial assistance from one or more small business investment companies (SBIC) 

Basic terms

  • Loan amount
    Lesser of $10 million or 2.5 times the applicant’s average monthly payroll costs of the business over the year prior to the making of the loan (practically, this may become the year prior to the loan application), excluding the prorated portion of any annual compensation above $100,000 for any person. Note that under the CARES Act, “payroll costs” include vacation, parental, family, medical, and sick leave; allowances for dismissal or separation; payments for group health care benefits, including insurance premiums; and retirement benefits. Calculations vary slightly for seasonal businesses and businesses that were not in operation between February 15 and June 30, 2019. To the extent that a SBA Disaster Loan was used for a purpose other than those permitted for PPP Loans, the Disaster Loans may be refinanced with proceeds of PPP loans, in which case the maximum available PPP loan amount is increased by the amount of the Disaster Loans being refinanced. 
  • Maximum term
    Payments will be deferred for a minimum of 6 months and a maximum of 12. SBA is directed to issue guidance on the terms of this deferral. Any portion of the PPP loan that is not forgiven (see below) on or before December 31, 2020, shall automatically be a term loan for a maximum of 10 years. For PPP loans, the SBA has waived prepayment penalties.
  • Fees
    SBA will waive the guaranty fee and annual fee applicable to other 7(a) loans. 
  • Interest rate
    Maximum rate of 4%.
  • Collateral
    The standard requirements of collateral and a personal guaranty are waived under this program. Accordingly, there will be no recourse to owners or borrowers for nonpayment, except to the extent proceeds are used for an unauthorized purpose.
  • Use of proceeds
    This loan can be used for: (i) payroll support, excluding the prorated portion of any compensation above $100,000 per year for any person; (ii) group healthcare benefits costs and insurance premiums; (iii) mortgage interest (but not prepayments or principal payments) and rent payments incurred in the ordinary course of business, and (iv) utility payments. 
  • Forgiveness
    A borrower will be eligible for loan forgiveness related to a PPP loan in an amount equal to 8 weeks of payroll costs, and the interest on mortgage payments (not principal) made in the ordinary course of business, rent payments, or utility payments so long as all payments were obligations of the borrower prior to February 15, 2020. Payroll costs are limited to compensation for a single employee to be no more than $100,000 in wages and the amount of forgiveness cannot exceed the principal loan amount. 

    The amount of loan forgiveness will be reduced proportionally by any reduction in the borrower’s workforce, based on the full-time equivalent employees versus the period from either February 15, 2019, through June 30, 2019, or January 1, 2020, through February 29, 2020, as selected by the borrower, or a reduction of more than 25% of any employee’s compensation, measured against the most recent full quarter. If a borrower has already had to lay off employees due to COVID-19, employers are encouraged to rehire them by not being penalized for having a reduced payroll at the beginning of the covered period, which means the initial 8 week period after the loan’s origination date. 

    Accordingly, reductions in the number of employees or compensation occurring between February 15, 2020, and 30 days after enactment of the CARES Act will generally be ignored to the extent reversed by June 30, 2020. Any additional wages that may be paid to tipped workers are also covered in the calculation of payroll forgiveness. Borrowers must keep accurate records and document their payments because lenders will need to verify the payments to allow for loan forgiveness. Borrowers will not have to include any forgiven indebtedness as taxable income. 

Applying
A company needs to apply on or before June 30, 2020, with a lender who is currently approved as a 7(a) lender or who is approved by the SBA and the Treasury Department to become a PPP lender. PPP lenders have delegated authority to make and approve PPP loan, with no additional SBA approval required. 

There are certain portions of the CARES Act that require SBA to provide further guidance so there may be some slight changes to the rules and procedures as best practices present themselves. 

We recommend contacting existing 7(a) lenders as soon as possible to learn what you will need to provide for underwriting and approving a PPP loan. 

We are here to help
Please contact a BerryDunn professional if you have any questions, or would like to discuss your specific situation.

Article
Impact of CARES Act on SBA loans

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief and Economic Security (CARES) Act, which provides relief to taxpayers affected by the novel coronavirus and COVID-19. The CARES Act is the third round of federal government aid related to COVID-19. We have summarized the top provisions in the new legislation below, with more detailed alerts on individual provisions to follow. Click here for a link to the full text of the bill.

Compensation, benefits, and payroll relief
The law temporarily increases the amount of and expands eligibility for unemployment benefits, and it provides relief for workers who are self-employed. Additionally, several provisions assist certain employers who keep employees on payroll even though the employees are not able or needed to work. 

The cornerstone of the payroll protection aid is a streamlined application process for SBA loans that can be forgiven if an eligible employer maintains its workforce at certain levels. 

Additionally, certain employers affected by the pandemic who retain their employees will receive a credit against payroll taxes for 50% of eligible employee wages paid or incurred from March 13 to December 31, 2020. This employee retention credit would be provided for as much as $10,000 of qualifying wages, including health benefits. Eligible employers may defer remitting employer payroll tax payments that remain due for 2020 (after the credits are deducted), with half being due by December 31, 2021, and the balance due by December 31, 2022. 

Employers with fewer than 500 employees are also allowed to give terminated employees access to the mandated paid federal sick and child care leave benefits for which the employer is 100% reimbursed by the government through payroll tax credits, if the employer rehires the qualifying employees.

Any benefit that is driven off the definition of “employee” raises the issue of partner versus employee. The profits interest member that is receiving a W-2 may not be eligible for inclusion in the various benefit computations.

Eligible individuals can withdraw vested amounts up to $100,000 during 2020 without a 10% early distribution penalty, and income inclusion can be spread over three years. Repayment of distributions during the next three years will be treated as tax-free rollovers of the distribution. The bill also makes it easier to borrow money from 401(k) accounts, raising the limit to $100,000 from $50,000 for the first 180 days after enactment, and the payment dates for any loans due the rest of 2020 would be extended for a year.

Individuals do not have to take their 2020 required minimum distributions from their retirement funds. This avoids lost earnings power on the taxes due on distributions and maximizes the potential gain as the market recovers.

Two long-awaited provisions allow employers to assist employees with college loan debt through tax free payments up to $5,250 and restores over-the-counter medical supplies as permissible expenses that can be reimbursed through health care flexible spending accounts and health care savings accounts.

Deferral of net business losses for three years
Section 461(l) limits non-corporate taxpayers in their use of net business losses to offset other sources of income. As enacted in 2017, this limitation was effective for taxable years beginning after 2017 and before 2026, and applied after the basis, at-risk, and passive activity loss limitations. The amount of deductible net business losses is limited to $500,000 for married taxpayers filing a joint return and $250,000 for all other taxpayers. These amounts are indexed for inflation after 2018 (to $518,000 and $259,000, respectively, in 2020). Excess business losses are carried forward to the next succeeding taxable year and treated as a net operating loss in that year.

The CARES Act defers the effective date of Section 461(l) for three years, but also makes important technical corrections that will become effective when the limitation on excess business losses once again becomes applicable. Accordingly, net business losses from 2018, 2019, or 2020 may offset other sources of income, provided they are not otherwise limited by other provisions that remain in the Code. Beginning in 2021, the application of this limitation is clarified with respect to the treatment of wages and related deductions from employment, coordination with deductions under Section 172 (for net operating losses) or Section 199A (relating to qualified business income), and the treatment of business capital gains and losses.

Section 163(j) amended for taxable years beginning in 2019 and 2020
The CARES Act amends Section 163(j) solely for taxable years beginning in 2019 and 2020. With the exception of partnerships, and solely for taxable years beginning in 2019 and 2020, taxpayers may deduct business interest expense up to 50% of their adjusted taxable income (ATI), an increase from 30% of ATI under the TCJA, unless an election is made to use the lower limitation for any taxable year. Additionally, for any taxable year beginning in 2020, the taxpayer may elect to use its 2019 ATI for purposes of computing its 2020 Section 163(j) limitation. 

This will benefit taxpayers who may be facing reduced 2020 earnings as a result of the business implications of COVID-19. As such, taxpayers should be mindful of elections on their 2019 return that could impact their 2019 and 2020 business interest expense deduction. With respect to partnerships, the increased Section 163(j) limit from 30% to 50% of ATI only applies to taxable years beginning in 2020. However, in the case of any excess business interest expense allocated from a partnership for any taxable year beginning in 2019, 50% of such excess business interest expense is treated as not subject to the Section 163(j) limitation and is fully deductible by the partner in 2020. The remaining 50% of such excess business interest expense shall be subject to the limitations in the same manner as any other excess business interest expense so allocated. Each partner has the ability, under regulations to be prescribed by Treasury, to elect to have this special rule not applied. No rules are provided for application of this rule in the context of tiered partnership structures.

Net operating losses carryback allowed for taxable years beginning in 2018 and before 2021
The CARES Act provides for an elective five-year carryback of net operating losses (NOLs) generated in taxable years beginning after December 31, 2017, and before January 1, 2021. Taxpayers may elect to relinquish the entire five-year carryback period with respect to a particular year’s NOL, with the election being irrevocable once made. In addition, the 80% limitation on NOL deductions arising in taxable years beginning after December 31, 2017, has temporarily been pushed to taxable years beginning after December 31, 2020. 

Several ambiguities in the application of Section 172 arising as a result of drafting errors in the Tax Cuts and Jobs Act have also been corrected. As certain benefits (i.e., charitable contributions, Section 250 “GILTI” deductions, etc.) may be impacted by an adjustment to taxable income, and therefore reduce the effective value of any NOL deduction, taxpayers will have to determine whether to elect to forego the carryback. Moreover, the bill provides for two special rules for NOL carrybacks to years in which the taxpayer included income from its foreign subsidiaries under Section 965. Please consider the impact of this interaction with your international tax advisors. 

However, given the potential offset to income taxed under a 35% federal rate, and the uncertainty regarding the long-term impact of the COVID-19 crisis on future earnings, it seems likely that most companies will take advantage of the revisions. This is a technical point, but while the highest average federal rate was 35% before 2018, the highest marginal tax rate was 38.333% for taxable amounts between $15 million and $18.33 million. This was put in place as part of our progressive tax system to eliminate earlier benefits of the 34% tax rate. Companies may wish to revisit their tax accounting methodologies to defer income and accelerate deductions in order to maximize their current year losses to increase their NOL carrybacks to earlier years.

Alternative minimum tax credit refunds
The CARES Act allows the refundable alternative minimum tax credit to be completely refunded for taxable years beginning after December 31, 2018, or by election, taxable years beginning after December 31, 2017. Under the Tax Cuts and Jobs Act, the credit was refundable over a series of years with the remainder recoverable in 2021.

Technical correction to qualified improvement property
The CARES Act contains a technical correction to a drafting error in the Tax Cuts and Jobs Act that required qualified improvement property (QIP) to be depreciated over 39 years, rendering such property ineligible for bonus depreciation. With the technical correction applying retroactively to 2018, QIP is now 15-year property and eligible for 100% bonus depreciation. This will provide immediate current cash flow benefits and relief to taxpayers, especially those in the retail, restaurant, and hospitality industries. Taxpayers that placed QIP into service in 2019 can claim 100% bonus depreciation prospectively on their 2019 return and should consider whether they can file Form 4464 to quickly recover overpayments of 2019 estimated taxes. Taxpayers that placed QIP in service in 2018 and that filed their 2018 federal income tax return treating the assets as bonus-ineligible 39-year property should consider amending that return to treat such assets as bonus-eligible. For C corporations, in particular, claiming the bonus depreciation on an amended return can potentially generate NOLs that can be carried back five years under the new NOL provisions of the CARES Act to taxable years before 2018 when the tax rates were 35%, even though the carryback losses were generated in years when the tax rate was 21%. With the taxable income limit under Section 172(a) being removed, an NOL can fully offset income to generate the maximum cash refund for taxpayers that need immediate cash. Alternatively, in lieu of amending the 2018 return, taxpayers may file an automatic Form 3115, Application for Change in Accounting Method, with the 2019 return to take advantage of the new favorable treatment and claim the missed depreciation as a favorable Section 481(a) adjustment.

Effects of the CARES Act at the state and local levels
As with the Tax Cuts and Jobs Act, the tax implications of the CARES Act at the state level first depends on whether a state is a “rolling” Internal Revenue Code (IRC) conformity state or follows “fixed-date” conformity. For example, with respect to the modifications to Section 163(j), rolling states will automatically conform, unless they specifically decouple (but separate state ATI calculations will still be necessary). However, fixed-date conformity states will have to update their conformity dates to conform to the Section 163(j) modifications. 

A number of states have already updated during their current legislative sessions (e.g., Idaho, Indiana, Maine, Virginia, and West Virginia). Nonetheless, even if a state has updated, the effective date of the update may not apply to changes to the IRC enacted after January 1, 2020 (e.g., Arizona). 

A number of other states have either expressly decoupled from Section 163(j) or conform to an earlier version and will not follow the CARES Act changes (e.g., California, Connecticut, Georgia, Missouri, South Carolina, Tennessee (starting in 2020), Wisconsin). Similar considerations will apply to the NOL modifications for states that adopted the 80% limitation, and most states do not allow carrybacks. Likewise, in fixed-dated conformity states that do not update, the Section 461(l) limitation will still apply resulting in a separate state NOL for those states. 

These conformity questions add another layer of complexity to applying the tax provisions of the CARES Act at the state level. Further, once the COVID-19 crisis is past, rolling IRC conformity states must be monitored, as these states could decouple from these CARES Act provisions for purposes of state revenue.

2020 recovery refund checks for individuals
The CARES Act provides eligible individuals with a refund check equal to $1,200 ($2,400 for joint filers) plus $500 per qualifying child. The refund begins to phase out if the individual’s adjusted gross income (AGI) exceeds $75,000 ($150,000 for joint filers and $112,500 for head of household filers). The credit is completely phased out for individuals with no qualifying children if their AGI exceeds $99,000 ($198,000 for joint filers and $136,500 for head of household filers).

Eligible individuals do not include nonresident aliens, individuals who may be claimed as a dependent on another person’s return, estates, or trusts. Eligible individuals and qualifying children must all have a valid social security number. For married taxpayers who filed jointly with their most recent tax filings (2018 or 2019) but will file separately in 2020, each spouse will be deemed to have received one half of the credit.

A qualifying child (i) is a child, stepchild, eligible foster child, brother, sister, stepbrother, or stepsister, or a descendent of any of them, (ii) under age 17, (iii) who has not provided more than half of their own support, (iv) who has lived with the taxpayer for more than half of the year, and (v) who has not filed a joint return (other than only for a claim for refund) with the individual’s spouse for the taxable year beginning in the calendar year in which the taxable year of the taxpayer begins.

The refund is determined based on the taxpayer’s 2020 income tax return but is advanced to taxpayers based on their 2018 or 2019 tax return, as appropriate. If an eligible individual’s 2020 income is higher than the 2018 or 2019 income used to determine the rebate payment, the eligible individual will not be required to pay back any excess rebate. However, if the eligible individual’s 2020 income is lower than the 2018 or 2019 income used to determine the rebate payment such that the individual should have received a larger rebate, the eligible individual will be able to claim an additional credit generally equal to the difference of what was refunded and any additional eligible amount when they file their 2020 income tax return.

Individuals who have not filed a tax return in 2018 or 2019 may still receive an automatic advance based on their social security benefit statements (Form SSA-1099) or social security equivalent benefit statement (Form RRB-1099). Other individuals may be required to file a return to receive any benefits.

The CARES Act provides that the IRS will make automatic payments to individuals who have previously filed their income tax returns electronically, using direct deposit banking information provided on a return any time after January 1, 2018.

Charitable contributions

  • Above-the-line deductions: Under the CARES Act, an eligible individual may take a qualified charitable contribution deduction of up to $300 against their AGI in 2020. An eligible individual is any individual taxpayer who does not elect to itemize his or her deductions. A qualified charitable contribution is a charitable contribution (i) made in cash, (ii) for which a charitable contribution deduction is otherwise allowed, and (iii) that is made to certain publicly supported charities.

    This above-the-line charitable deduction may not be used to make contributions to a non-operating private foundation or to a donor advised fund.
  • Modification of limitations on cash contributions: Currently, individuals who make cash contributions to publicly supported charities are permitted a charitable contribution deduction of up to 60% of their AGI. Any such contributions in excess of the 60% AGI limitation may be carried forward as a charitable contribution in each of the five succeeding years.

    The CARES Act temporarily suspends the AGI limitation for qualifying cash contributions, instead permitting individual taxpayers to take a charitable contribution deduction for qualifying cash contributions made in 2020 to the extent such contributions do not exceed the excess of the individual’s contribution base over the amount of all other charitable contributions allowed as a deduction for the contribution year. Any excess is carried forward as a charitable contribution in each of the succeeding five years. Taxpayers wishing to take advantage of this provision must make an affirmative election on their 2020 income tax return.

    This provision is useful to taxpayers who elect to itemize their deductions in 2020 and make cash contributions to certain public charities. As with the aforementioned above-the-line deduction, contributions to non-operating private foundations or donor advised funds are not eligible.

    For corporations, the CARES Act temporarily increases the limitation on the deductibility of cash charitable contributions during 2020 from 10% to 25% of the taxpayer’s taxable income. The CARES Act also increases the limitation on deductions for contributions of food inventory from 15% to 25%.

We are here to help
Please contact a BerryDunn professional if you have any questions, or would like to discuss your specific situation.

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The CARES Act: Implications for businesses

The recent Tax Cuts and Jobs Act includes many sweeping tax law changes, some of which left taxpayers scrambling at the end of 2017 to maximize tax saving opportunities. While the dust settles on tax reform at the federal level, the whirlwind at the state level is just beginning, with many unanswered questions. We’ve pulled together a look at key changes in place or under consideration in a number of states.

One change in particular, the limitation on the individual itemized deduction for state and local taxes, resulted in many making a mad dash to prepay local property taxes.

Prior to the act, itemizing taxpayers could deduct certain state and local taxes, including property taxes, income or sales taxes (but not both), and other personal property taxes. The new act limits the state and local property tax deduction to $10,000. The increase in the standard deduction makes this irrelevant for many taxpayers, who will no longer itemize deductions due to the higher standard deduction. However, this limitation means more to higher-income taxpayers, especially those living in high-tax states. Many of these states are considering strategies to preserve the deduction for high-income residents.

The California approach

One strategy under consideration by states (including California, Illinois, and New Jersey), is to convert state and local tax expense, limited to $10,000, into deductible charitable contributions. Some proposals involve creating a state fund for public purposes that would allow income tax credits for taxpayers’ fund contributions. In New Jersey, the state senate voted to advance a bill that would allow local municipalities to set up charitable funds to which residents could donate their property taxes. While this may seem like a great solution, it seems unlikely taxpayers achieve the intended result.

Established case law and guidance indicate the portion of a charitable contribution for which a benefit is received is not deductible. The very intent of this strategy is to create a federal benefit to the taxpayer. The taxpayer’s state cash outflow would be neutral, and a federal benefit received in excess of any cost. It appears likely the IRS would find there is no net deductible charitable contribution, and given the revenue neutrality for the state, would see it as a tax.

The New York approach

Other states, including New York, have considered creating a new employer-side payroll tax, or otherwise shifting from an employee paid tax system to an employer paid tax system. This may be more viable than the charitable contribution strategy, but isn’t without its own hurdles. There is a risk that this just shifts tax burden, with the employer paying the employee’s income taxes (which in itself constitutes taxable income).

States with graduated tax rates would face a challenging task of addressing how to administratively apply this concept to a payroll tax. If successful, businesses would have increased employment costs, unless they can reduce salaries to offset the increase. The practical challenges present additional obstacles for success, in terms of employee morale, minimum wage issues, or other legal considerations. Even clearing the hurdles only addresses the issue as it relates to wage income, with other sources of income left behind.

This is less concerning in states with lower or no individual income taxes. These states often rely more heavily on sales taxes or entity level business taxes for revenue. While it is a much larger change for states to implement, there may now be more incentive for states to consider their own tax reform strategies.

How states address the additional burden placed on its residents, especially those in high tax jurisdictions, is only one. Many states' tax codes piggyback off of the federal rules, and states will have to consider how, or if they will conform to the federal changes, and to what degree. Until they address these issues, taxpayer uncertainty remains. If you have questions about the new law and how it affects your business, please contact me


 

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Going stateside: Tax reform

Read this if you are a community bank.

The Federal Deposit Insurance Corporation (FDIC) recently issued its second quarter 2021 Quarterly Banking Profile. The report provides financial information based on Call Reports filed by 4,951 FDIC-insured commercial banks and savings institutions. The report also contains a section specific to community bank performance. In second quarter 2021, this section included the financial information of 4,490 FDIC-insured community banks. BerryDunn’s key takeaways from the community bank section of the report are as follows:

  • There was a $1.9 billion increase in quarterly net income from a year prior despite continued net interest margin (NIM) compression. This increase was mainly due to higher net interest income and lower provision expenses. Net interest income had increased $1.4 billion due to 1) lower interest expense, 2) higher commercial and industrial (C&I) loan interest income, and 3) loan fees earned through the payoff and forgiveness of Paycheck Protection Program (PPP) loans. Provision expense decreased $2.3 billion from second quarter 2020. However, it remained positive at $46.1 million. For non-community banks, provision expense was negative $10.8 billion for second quarter 2021.
  • Quarterly NIM declined 26 basis points from second quarter 2020 to 3.25%. The average yield on earning assets fell 57 basis points to 3.57% while the average funding cost fell 31 basis points to 0.32%. Both of which are record lows.
  • Net operating revenue (net interest income plus non-interest income) increased by $1.6 billion from second quarter 2020, a 6.5% increase. This increase is attributable to higher revenue from service charges on deposit accounts (increased $134.8 million, or 23.5%, during the year ending second quarter 2021) and an increase in “all other noninterest income,” including, but not limited to, bankcard and credit card interchange fees, income and fees from wire transfers, and income and fees from automated teller machines (up $203.6 million, or 9.3%, during the year ending second quarter 2021).
  • Non-interest expense increased 7.8% from second quarter 2020. This increase was mainly attributable to salary and benefit expenses, which saw an increase of $688.2 million (7.8%). That being said, average assets per employee increased 8.4% from second quarter 2020. Non-interest expense as a percentage of average assets declined 18 basis points from second quarter 2020.
  • Noncurrent loan balances (loans 90 days or more past due or in nonaccrual status) declined by $894.6 million, or 7.1%, from first quarter 2021. The noncurrent rate improved 5 basis points to 0.68% from first quarter 2021.
  • The coverage ratio (allowance for loan and lease losses as a percentage of loans that are 90 days or more past due or in nonaccrual status) increased 39.8 percentage points year-over-year to 191.7%, a record high, due to declines in noncurrent loans. This ratio is well above the financial crisis average of 64.5%. The coverage ratio for community banks is 15.4 percentage points above the coverage ratio for non-community banks.
  • Eighty-eight community banks had adopted current expected credit loss (CECL) accounting as of second quarter. Community bank CECL adopters reported negative provision expense of $208.3 million in the second quarter compared to positive $254.5 million for community banks that have not yet adopted CECL.
  • Net charge-offs declined 8 basis points from second quarter 2020 to 0.05%. The net charge-off rate for consumer loans declined most among major loan categories, having decreased 51 basis points.
  • Trends in loans and leases showed a slight decrease from first quarter 2021, decreasing by 0.5%. This decrease was mainly seen in the C&I loan category, which was driven by a $38.3 billion decrease in PPP loan balances. The decrease in PPP loans was driven by the payoff and forgiveness of such loans. Despite the decrease in loans quarter-over-quarter, total loans and leases increased by $5.7 billion (0.3%) from second quarter 2020. The majority of growth was seen in commercial real estate portfolios (up $61.7 billion, or 8.9%), which helped to offset the decline in C&I, agricultural production, and 1-4 family mortgage loans during the year.
  • Two-thirds of community banks reported an increase in deposit volume during the second quarter. Growth in deposits above the insurance limit, $250,000, increased by $47.8 billion, or 4.7%, while alternative funding sources, such as brokered deposits, declined by $3.8 billion, or 6.7%, from first quarter 2021. 
  • The average community bank leverage ratio (CBLR) for the 1,789 banks that elected to use the CBLR framework was 11%.
  • The number of community banks declined by 38 to 4,490 from first quarter 2021. This change includes two new community banks, 12 banks transitioning from community to non-community banks, one bank transitioning from non-community to community bank, 27 community bank mergers or consolidations, and two community bank self-liquidations.

Second quarter 2021 was another strong quarter for community banks, as evidenced by the increase in year-over-year quarterly net income of 28.7% ($1.9 billion). However, tightening NIMs will force community banks to find creative ways to increase their NIM, grow their earning asset bases, or find ways to continue to increase non-interest income to maintain current net income levels. Some community banks have already started dedicating more time to non-traditional income streams, as evidenced by a 4.3% year-over-year increase in quarterly non-interest income. The importance of the efficiency ratio (non-interest expense as a percentage of total revenue) is also magnified as community banks attempt to manage their non-interest expenses in light of declining NIMs. Banks appear to be strongly focusing on non-interest expense management, as seen by the 18 basis point decline from second quarter 2020 in non-interest expense as a percentage of average assets, although inflated balance sheets may have something to do with the decrease in the percentage.

Furthermore, much uncertainty still exists. For instance, although significant charge-offs have not yet materialized, the financial picture for many borrowers remains uncertain. And, payment deferrals have made some credit quality indicators, such as past due status, less reliable. Payment deferrals for many borrowers are coming to a halt. So, the true financial picture of these borrowers may start to come into focus. The ability of community banks to maintain relationships with their borrowers and remain apprised of the results of their borrowers’ operations has never been more important. This monitoring will become increasingly important as we transition into a post-pandemic economy. For seasonal borrowers, current indications, such as the most recent results from the Federal Reserve’s Beige Book, show that economic activity was relatively strong over the summer of 2021. However, supply chain pressures and labor shortages could put a damper on the uptick in economic activity for these borrowers, making a successful transition into the “off-season” months that much more important. 

Also, as offices start to open, employers will start to reassess their office needs. Many employers have either created or revised remote working policies due to changing employee behavior. If remote working schedules persist, whether it be full-time or hybrid, the demand for office space may decline, causing instability for commercial real estate borrowers. Recent inflation concerns have also created uncertainty surrounding future Federal Reserve monetary policy. If an increase in the federal funds target rate is used to combat inflation, community banks could see their NIMs in another transitory stage.

As always, please don’t hesitate to reach out to BerryDunn’s Financial Services team if you have any questions.

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FDIC Issues its Second Quarter 2021 Quarterly Banking Profile

Read this if you use QuickBooks. 

Want to break up an estimate into multiple invoices? QuickBooks Online supports progress invoicing.

If you do large, multi-part projects for customers, you may not want to wait until absolutely everything is done before you send an invoice. This can be especially problematic when you have to purchase a lot of materials for a job that will eventually be billed to the customers.

QuickBooks Online has a solution for this: progress invoicing. Once you’ve had an estimate approved, you can split it into as many pieces as you need, sending partial invoices to your customer for products and services as you provide them, rather than waiting until the project is complete. If cash flow is a problem for you, this can be a very effective solution. You might be able to take on work that you otherwise couldn’t because you’ll be getting paid periodically.

Setup Required

Progress invoicing requires some special setup steps. First, you’ll need to see whether QuickBooks Online is prepared for the task. Click the gear icon in the upper right and select Account and settings under Your Company. Click the Sales tab and scroll down to Progress Invoicing. It may just say On to the right of Create multiple partial invoices from a single estimate. If it doesn’t, click the pencil icon to the right and turn it on. Then click Save and Done.

You’ll also have to choose a different template than the one you use for standard invoices. Click the gear icon and select Custom form styles. Click New style in the upper right and then click Invoice. Enter a new name for the template to replace My INVOICE Template, like Progress Invoice. Then click Dive in with a template or Change up the template under the Design tab. Select Airy new by clicking on it. This is the only template you can use for progress invoicing.

When you’re creating a template for your progress invoices, you’ll have to select Airy new.

Now, click on Edit print settings (or When in doubt, print it out). Make sure there’s no checkmark in the box in front of Fit printed form with pay stub in window envelope or Fit to window envelope. Then click on the Content tab. You’ll see a preview of the template (grayed out) to the right. Click the pencil icon in the middle section. Select the Show more activity options link at the bottom of the screen.

If you want to Group activity by (Day, Week, Month, or Type), check that box and select your preference. Go through the other options here and check or uncheck the boxes to meet your needs. Then click Done. You’ll see your new template in the list of Custom form styles.

QuickBooks Online allows you to designate one form style as the default. This is the form that will open when you create a new invoice or estimate template. If you plan to send a lot of progress invoices, you might want to make that the default. To do this, find your new template in the list on this page and click the down arrow next to Edit in the Action column. Click Make default. If you leave your standard invoice as the default, you can always switch when you’re creating an invoice by clicking the Customize button at the bottom of the screen.

Creating a Progress Invoice


You can see what your options are for your progress invoice.

Invoice and estimate forms in QuickBooks Online are very similar. The only major difference is that estimates contain a field for Expiration date. To start the process of progress invoicing, select an estimate that you want to bill that way. Click the Sales tab and select All Sales. Find your estimate and click on Create invoice in the Action column. A window like the one in the above image will appear.

You can bill a percentage of each line item or enter a custom amount for each line.  If you choose the latter, the invoice that opens will have zeroes in the Due column. You can alter the amount due for any of these by either a percentage or an amount and/or leave them at zero if you don’t want to bill a particular product or service. Either way, the Balance due will reflect your changes. When you’ve come to the last invoice for the project, you’ll check Remaining total of all lines.

Once you’ve chosen one of these options, click Create invoice. Double-check the form and then save it. You can now treat it as any other invoice. To see a list of your progress invoices, run the Estimates & Progress Invoicing Summary by Customer report.

As you can see, there are numerous steps involved in creating progress invoices. Each has to be done with precision, so the customer is billed the exact total amount due at the end. We can help you accomplish this. We’re also available to help with any other QuickBooks Online issues you have. Contact our Outsourced Accounting team to set up a consultation.

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How does progress invoicing work in QuickBooks Online?

Read this if you are interested in tax policy and infrastructure.

The Biden Administration has made tax policy a legislative priority, and the Treasury Department’s Green Book released in May provides additional details on these tax policy proposals. Congressional Democrats have also indicated their interest in tax legislation. The question is: Will we see federal tax legislation in the near future? To answer this question, we need to look at the Administration’s and Congress’ infrastructure legislative plans.

Infrastructure one

President Biden has been negotiating an infrastructure package with members of both parties. Although a bipartisan agreement fizzled in July, new life seems to have been breathed into a new agreement. During the week of July 26, 2021, the Senate reached bipartisan agreement on a $1 trillion package that includes roads, bridges, rail, airports, electric vehicles, clean water, and broadband internet, with revenue offsets such as new cryptocurrency information reporting requirements and an excise tax on chemicals. On August 10, 2021, the Senate voted 69 to 30 to pass the bill.

House consideration of the package is expected in coming weeks. Some progressive Democratic members of the House, however, have indicated that they may not vote in favor of this package unless a far larger second infrastructure package is ultimately approved.

This first infrastructure package is reportedly “paid for” outside income tax increases, which means that this infrastructure bill generally would not include the Administration’s tax proposals. There would likely be little to no Republican support for the package if the Administration’s tax priorities were included.

There does, however, continue to be strong interest by the Administration in moving forward with its tax policy priorities. That’s where a second infrastructure package comes in.

Infrastructure two

A second infrastructure package, referred to in the press as “human infrastructure,” is intended to address more intangible priorities, such as extension of the child care tax credit, healthcare, immigration and climate change. It is expected that the Administration’s and Congress’ tax policy priorities would be included in this bill. At this time, this estimated $3.5 trillion package does not enjoy bipartisan support. The package would be expected to pass the House, as House rules require only a simple majority for passage. Its path through the Senate, however, remains unclear.

In general, legislation needs only a simple majority to pass the Senate. Under current Senate rules, any senator may filibuster a piece of legislation, which amounts to unlimited speech and debate and, if unstopped, can effectively derail legislation. However, if 60 senators agree, they may vote to invoke “cloture,” which will end the filibuster and move the legislation to a substantive vote. (Cloture was invoked for Infrastructure One by a 67-33 vote.) It is expected that a second infrastructure bill would not pick up any Republican Senate votes, and there likely would be a Republican filibuster. Without any Republican support, cloture would be virtually impossible. 

There is, though, a procedural option available in the Senate to bypass the filibuster/cloture rules. Under the “budget reconciliation” process, legislation can pass the Senate with a simple majority without the threat of filibuster. While the budget reconciliation process also applies in the House, because there is no filibuster threat, the House does not need the procedure to advance legislation to a simple majority vote. 

Reconciliation bills must involve spending, revenue, or debt. There is a limit to the number of bills that may pass the Senate under budget reconciliation each year. The American Rescue Plan enacted in March 2021 utilized the budget reconciliation process to pass the Senate. The Senate parliamentarian has indicated that additional reconciliation bills may pass the Senate this year. Despite further availability of the budget reconciliation process in the Senate this year, passage of Infrastructure two is not a foregone conclusion. 

For a bill to pass the Senate under the budget reconciliation process, it needs only to garner a simple majority of votes, which, with the current Senate makeup, means 50 Democrats voting in favor, plus a 51st vote cast by Vice President Harris. There are, however, moderate Democratic senators who have indicated in recent weeks that they may not be willing to use the budget reconciliation process to advance any further legislation, at least in the short term.  

Nonetheless, on August 11, 2021, the Senate approved a budget resolution on party lines; this budget resolution will serve as the framework with which Infrastructure two will be considered on its merits. House Speaker Pelosi previously indicated that the House will not vote on a first infrastructure bill until the Senate takes procedural steps regarding Infrastructure two, so this crucial step makes the future of both packages brighter in both chambers of Congress.

Likelihood of a 2021 tax bill?

Infrastructure two is expected to be the vehicle in which tax policy priorities are included. With passage of the budget resolution in the Senate, this step certainly makes the prospects of ultimate passage much better. What remains unclear is what the underlying provisions will look like, as there remains some discomfort on the part of some moderate senators with its $3.5 trillion price tag.

All eyes are focused on two moderate Democratic senators: Kyrsten Sinema of Arizona and Joe Manchin of West Virginia. While Sinema has been instrumental in helping to reach a bipartisan deal on Infrastructure one, she indicated the week of July 26, 2021 that she does not currently support the price tag of the second bill. Manchin has also indicated displeasure with the bill’s cost. Without the support of both senators, a second bill would likely stall.

There is still plenty of time on the legislative calendar for negotiation and minds to change. Some issues members of Congress will consider are the price tag of any second infrastructure bill, whether they want to be the sole detractor within their party and whether there may be opportunity to address the policy issues in future legislation. 

Timing of a possible tax bill?

Although Congress is expected to take up consideration of Infrastructure two in the fall, whether it ultimately passes and what provisions it will contain is unclear. Senators Sinema and Manchin are two to watch over the coming weeks. 

What would be included?

The Green Book is a good starting point to understand the Administration’s tax policy priorities. Congress will have its priorities as well. If we do see tax legislation, some major provisions that can be expected to be included in a bill include increases in the corporate tax rate, individual tax rates, and capital gains rates, as well as estate tax changes and changes to international tax policy.

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2021 federal tax legislation? A review of the state of play

Read this if you are a plan sponsor of employee benefit plans.

This article is the ninth in a series to help employee benefit plan fiduciaries better understand their responsibilities and manage the risks of non-compliance with Employee Retirement Income Security Act (ERISA) requirements. You can read the previous articles here

Employee benefit plan loan basics 

If your plan’s adoption agreement is set up to allow loans, participants can borrow against their account balance. Some participants may find this an attractive option as the interest they pay on the loan is returned to their retirement account as opposed to other loans where the interest is paid to the lender. 

Additionally, while interest is charged at the market rate, it may be lower than other options available to the participant, such as a credit card or other unsecured debt. Unlike hardship distributions, there are no restrictions on the circumstances under which a participant may take a loan. A potential downside is that if the borrower defaults on the loan or ends their employment and cannot repay the loan in full, it converts from a loan to a deemed distribution, potentially incurring taxes and penalties.

If a participant decides that an employee benefit plan loan is their best option, they will apply for the loan through your plan administrator. Loans are limited in both size and quantity. Participants may take loans up to 50% of their vested account balance with a maximum loan of $50,000. The provisions of a plan determine how many loans an employee may have at once; however, the combined loan balances cannot exceed 50% of the employee’s vested balance or $50,000. Furthermore, the $50,000 loan maximum must also consider payments made on loans within the previous 12 months.

Repayment of employee benefit plan loans

Repayment of employee benefit plan loans may be done through after tax payroll contributions, making it a relatively easy process for the participant. If a plan sponsor elects to provide this repayment option, they must ensure that repayments are remitted to the plan in a timely manner, just as they must with other employee funded contributions. The term of the loan is typically limited to five years and must be repaid in at least quarterly installments. However, a loan can be extended to as long as thirty years if specified within the plan’s loan policy. If the loan term is for longer than five years, the loan proceeds must be used to purchase a primary residence.

Like any source of debt, there are pros and cons to taking out an employee benefit plan loan, and it remains an important option for participants to understand. The benefits include the ease of applying for such a loan and loan interest that is then added to the participant’s retirement account balance. Potential pitfalls include lost earnings during the loan period and the risk of the loan becoming a deemed distribution if the participant is unable to repay within the allotted time. 

If you would like more information, or have specific questions about your specific situation, please contact our Employee Benefits Audit team.

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Retirement plan loans: A brief review