Proceed with Caution on Your SBA Loan

(Updated as of May 5) Feds Offer Clarification on Unforgivable SBA Loans:

Securing a Small Business Administration (SBA) loan connected with the CARES Act for COVID-19 relief has been difficult enough. But the complications don’t stop once you have a loan: it’s important to understand how the loans will be audited and forgiven (or not). We recently sent the following points to our clients. Please consult a tax expert before taking any further action since federal guidance is being issued often and every organization’s situation is different.

According to announcements and a joint SBA and U.S. Treasury FAQ document as of May 3, 2020:

  • All loans of $2 million or more will be audited. Smaller loans are subject to audit.
  • The bank originating the loan and processing the forgiveness paperwork will also be performing the audit as part of the forgiveness process.
  • Small “qualifying” companies owned by large businesses will no longer qualify for these loans.
  • Businesses that meet the following criteria do not qualify for a PPP loan: “businesses who, with current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business.” Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business.
  • A non-qualifying business that received a PPP loan has until May 7, 2020, to return the loan proceeds with no penalties.

In addition, the IRS announced last week in Notice 2020-32 that deductions paid with “forgiven” loans would NOT BE DEDUCTIBLE. However, this notice seems incorrect in its analysis for at least two reasons:

  1. Statutory interpretation. The rules provide that legislators do not use unnecessary words, phrases, sentences, paragraphs, etc. so that any interpretation which would render other areas meaningless are not valid. The law, before the CARES Act, states basically that a taxpayer has income to the extent of debt relief. Their interpretation of the new clause makes no changes in current law.
  2. In a previous financial crisis, Congress passed a law that allowed solvent banks to acquire insolvent banks, with the FDIC guaranteeing the assets of the acquired bank. When the buyer requested reimbursement, the FDIC paid for the assets that went bad. In addition, the buying bank also claimed losses on these assets on their tax returns (considered double dipping on the same asset). Again, the IRS disallowed this deduction. However, the taxpayers prevailed in these cases [Centex Corp v. US, 395 F.3d 1283 (Fed. Cir. 2005), also FDIC v First Heights Bank FSB, 229 F.3rd 528 (6th Cir. 2000)].

Many organizations including the AICPA and state CPA societies agree and are challenging this interpretation by the IRS.

Stay tuned and consult a tax expert before deciding how to utilize your loan. If we can be of any further assistance, please feel free to contact us.

Original post written April 27, 2020:

A new $484 billion in funding arrived in part to help small businesses through the financial hardships of the coronavirus crisis. The recent infusion provides additional funding for loans, particularly for the Small Business Administration (SBA) Paycheck Protection Program (PPP).

The SBA resumed accepting PPP applications from participating lenders on April 27, 2020. The Wall Street Journal reports that those who had already been approved but hadn’t yet received funds, and those who apply and are approved during this second round, should receive PPP funds within 7 to 10 days. The key, though, is to make sure you receive confirmation of loan approval from your SBA-authorized lender.

“Many bank clients believe they’ve been approved, but weren’t. The best way for a business owner to check whether or not they’ve been approved is to follow up directly with their lender,” WSJ states.

SBA resumed processing Economic Injury Disaster Loan (EIDL) and advance applications that were already in the queue on a first-come, first-served basis. An EIDL portal to receive new applications—including those from agricultural enterprises—will be ready as soon as possible.

But before requesting a PPP or any other EIDL or advance for COVID-19 relief, consider the terms and conditions carefully. Many small businesses are finding out too late that the money they borrowed and, in some cases, already spent will not wholly qualify for loan forgiveness. For instance, S Corp owners are finding out that only the portion of income they declare as their salary (up to $100,000) and payroll expenses for tax purposes will qualify for PPP loan forgiveness. This does not typically include owner draws, distributions, or loans to shareholders. Only a small portion of other business expenses like interest on mortgage obligations, rent, and utilities qualify—and only if that money is used within eight weeks of receiving the loan. You must also maintain a certain level of staffing and salary/payroll levels if you have employees.

It’s a situation that will continue to evolve, raise concerns, and require clarification for months to come. The bottom line is that while you may qualify now, you could be surprised come tax time or later to find out the loan had more strings attached than you thought. We have recently sent worksheets to assist businesses with not only tracking these expenses, but also computing the forgiveness amounts. Feel free to contact us with questions or to receive these worksheets.

Photo via 123rf.com

May 5, 2020

Client Spotlight

As a business owner, what can you do to eliminate tax surprises? Before jumping on tax liability insurance to insure your tax bill, consider what…
From accountant to owner, and now to a successful exit! Amir Kamel proved that “everything good takes time”—including walking away on your own terms. Read…
After waiting 11 years for his visa, Amir Kamel’s journey from Cairo to building a multi-million dollar Texas business is a true masterclass in grit,…
Used wisely, 100% bonus depreciation can fuel growth and protect cash flow; used poorly, it can create unnecessary debt and future tax friction….
Discover how this San Antonio entrepreneur transitioned from managing communities to constructing them—doubling his commercial construction firm’s size year over year….
In the eyes of the IRS, student-athletes landing NIL deals are now self-run businesses. Learn the tax implications and four golden rules critical to their…
Disputes in closely held businesses rarely stem from simple math errors. Instead, they arise from “creative” accounting that obscures the business’s true economic reality….
While you might not be signing an addendum with the Acting Attorney General, you CAN use closing agreements and statutes of limitation to create your…
When building wealth in Texas, poor planning can result in hefty taxation as you earn your way to the top….
A new precedent is forming in the tax courts that can cost even innocent taxpayers hundreds of thousands of dollars….
George Clooney’s recent relocation to France highlights a complex financial dilemma: maintain dual citizenship and face dual tax systems, or renounce U.S. citizenship and trigger…
A business seizure is a last-ditch effort following many other attempts at tax collections. Here’s what to watch for and how to respond….

Blogs and Articles

Do Businesses Need Tax Liability Insurance?

As a business owner, what can you do to eliminate tax surprises? Before jumping on tax liability insurance to insure your tax bill, consider what...

Do Businesses Need Tax Liability Insurance?

Read More

Princess Professional

From accountant to owner, and now to a successful exit! Amir Kamel proved that "everything good takes time"—including walking away on your own terms. Read...

Princess Professional

Read More

Princess Beauty Supply

After waiting 11 years for his visa, Amir Kamel's journey from Cairo to building a multi-million dollar Texas business is a true masterclass in grit,...

Princess Beauty Supply

Read More

100% Bonus Depreciation: Hits and Misses

Used wisely, 100% bonus depreciation can fuel growth and protect cash flow; used poorly, it can create unnecessary debt and future tax friction....

100% Bonus Depreciation: Hits and Misses

Read More

DJS Resources

Discover how this San Antonio entrepreneur transitioned from managing communities to constructing them—doubling his commercial construction firm's size year over year....

DJS Resources

Read More

College Athlete NIL Tax Implications: When Fantasy Becomes Reality

In the eyes of the IRS, student-athletes landing NIL deals are now self-run businesses. Learn the tax implications and four golden rules critical to their...

College Athlete NIL Tax Implications: When Fantasy Becomes Reality

Read More

Profit-Sharing Disputes: IDing What Went Wrong

Disputes in closely held businesses rarely stem from simple math errors. Instead, they arise from "creative" accounting that obscures the business's true economic reality....

Profit-Sharing Disputes: IDing What Went Wrong

Read More

What’s the Deal with Trump’s Forever Tax-Immunity Loophole?

While you might not be signing an addendum with the Acting Attorney General, you CAN use closing agreements and statutes of limitation to create your...

What’s the Deal with Trump’s Forever Tax-Immunity Loophole?

Read More

Secret Texas Wealth Tax Traps

When building wealth in Texas, poor planning can result in hefty taxation as you earn your way to the top....

Secret Texas Wealth Tax Traps

Read More

How Long to Keep Tax Records? Forever Might Be Best 

A new precedent is forming in the tax courts that can cost even innocent taxpayers hundreds of thousands of dollars....

How Long to Keep Tax Records? Forever Might Be Best 

Read More

George Clooney’s Exit Tax Dilemma

George Clooney's recent relocation to France highlights a complex financial dilemma: maintain dual citizenship and face dual tax systems, or renounce U.S. citizenship and trigger...

George Clooney’s Exit Tax Dilemma

Read More

Avoiding a Business Seizure for Nonpayment of Taxes

A business seizure is a last-ditch effort following many other attempts at tax collections. Here’s what to watch for and how to respond....

Avoiding a Business Seizure for Nonpayment of Taxes

Read More

4NS-Supply

How do you go from zero sales to 800% growth while maintaining a medical career? Dr. Paul Pallan shares his story of dual-career success and...

4NS-Supply

Read More

Better Tax Preparer Oversight May Be on the Way

Tax preparer oversight might soon be getting a rehaul thanks to a bipartisan Senate bill that aims to impose stricter standards and penalties for misconduct....

Better Tax Preparer Oversight May Be on the Way

Read More

J. Anthony’s Refrigeration

From U.S. Navy technical training to founding J. Anthony’s Refrigeration in 1988, learn how John Bianchi’s commitment to excellence and high-level expertise built a trusted...

J. Anthony’s Refrigeration

Read More

Now Accepting New Clients

Let’s Start the Conversation

Let’s take a look at your finances together. We offer a complimentary 1-hour call to review your past tax returns. If we see a way to help you, we will.

Want to receive tax strategies and tips direct to your inbox?

Name(Required)