Experts from Practical Law and Checkpoint address the common questions we’re hearing as small businesses and their advisors navigate the new Paycheck Protection Program.
PPP application and loan termsThe deadline to file a PPP loan application is May 31, 2021. While the program was extended through June 30, 2021, the Small Business Administration can process only those applications that were submitted by lenders before June 1, 2021. (Source: PPP Extension Act of 2021).
Your bank must make the first disbursement of the loan within ten calendar days from the date of loan approval. (Source: SBA FAQs on PPP Loans dated as of March 3, 2021, Question 20).
PPP loans that receive an SBA loan number on or after June 5, 2020 have a term of five years. If a PPP loan received an SBA loan number before June 5, 2020, the loan has a two-year maturity, unless the borrower and lender mutually agree to extend the term of the loan to five years. (Source: SBA FAQs on PPP Loans dated as of March 3, 2021, Question 49).
The length of payment deferral depends on whether the borrower applies for loan forgiveness. If the borrower applies for loan forgiveness, payments of interest, principal, and fees on PPP loans are deferred until the amount approved for forgiveness, if any, is remitted by the SBA to the lender. If the borrower has not applied for forgiveness by the date that is 10 months after the end of the covered loan, payment deferral will end on that date. For example, if a business received a PPP loan disbursed on June 25, 2020, the 24-week covered period would end on December 10, 2020. If the business does not submit a loan forgiveness application to its lender by October 10, 2021, it must begin making payments as of October 10, 2021. (Source: SBA FAQs on PPP Loan Forgiveness dated as of October 13, 2020).
The covered period is the timeframe used to calculate PPP loan forgiveness. PPP funds spent on costs incurred after the covered period ends are not eligible for forgiveness. The covered period for a PPP loan begins on the date the lender disburses the PPP loan and ends on any date selected by the borrower that occurs during the period (1) beginning on the date that is 8 weeks after the date of disbursement and (2) ending on the date that is 24 weeks after the date of disbursement (Source: SBA FAQs on PPP Loans dated as of March 3, 2021, 2020, Question 20).
No. You may rely on the laws, rules, and guidance available at the time of your application. However, if your previously submitted loan application has not yet been processed, you may revise your application based on clarifications reflected in the new guidance (Source: SBA FAQs on PPP Loans dated as of March 3, 2021, Question 17).
Yes. Title III allows eligible entities to receive a second PPP loan, referred to as a "second draw." A prospective borrower is generally eligible to receive a second draw PPP loan if it: (a) previously received a first draw PPP Loan and will or has used the full amount only for authorized uses, (b) employs not more than 300 employees and (c) demonstrates at least a 25% reduction in gross receipts in any quarter of 2020 relative to the same 2019 quarter (Source: SBA FAQs on PPP Loans dated as of March 3, 2021, Questions 5, 46, and 61).
Borrowers are not required to request loan forgiveness. (Source: SBA FAQs on PPP Loan Forgiveness dated as of October 13, 2020).
To receive PPP loan forgiveness, the borrower must complete and submit the Loan Forgiveness Application (SBA Form 3508, 3508EZ, or the lender's equivalent form) to the lender that originated or is servicing the loan. The borrower is responsible for providing the lender an accurate calculation of the loan forgiveness amount. The lender then reviews the forgiveness application, issues a decision to the SBA, and notifies the borrower of the forgiveness amount, if any, paid by SBA to the lender. (Source: SBA Procedural Notice, effective July 23, 2020).
The SBA began accepting loan forgiveness decisions from lenders on August 10, 2020. Generally, borrowers will submit a Loan Forgiveness Application following the end of the covered period. A borrower may apply for loan forgiveness before the end of the loan’s covered period, provided that (a) the borrower has used all of the loan proceeds for which it’s requesting forgiveness and (b) the forgiveness application accounts for any salary reductions in excess of 25% for the full covered period (between 8 and 24 weeks). If a borrower does not apply for forgiveness within 10 months of the end of the covered period, it must begin making payments on the loan at that time. (Source: SBA Procedural Notice, effective July 23, 2020).
The lender must finish its review of the Loan Forgiveness Application and submit its decision on the application to the SBA within 60 days of receiving the application from the borrower. The lender must submit to the SBA (a) its decision on whether the loan should be forgiven, (b) the amount of the loan to be forgiven, and (c) other required documents. (Source: SBA Procedural Notice, effective July 23, 2020).
A borrower that submits its loan forgiveness application within 10 months of the end of the loan’s covered period is not required to make any payments until the forgiveness amount, if any, is remitted to the lender by SBA. If the loan is fully forgiven, the borrower is not responsible for any payments. If the loan is only partially forgiven, unless that decision is successfully challenged, the borrower must repay the unforgiven amount according to the terms of the loan. The lender is responsible for notifying the borrower of remittance by SBA of the loan forgiveness amount (or that SBA determined that no amount of the loan is eligible for forgiveness) and the date on which the borrower’s first payment is due, if applicable. (Source: SBA FAQs on PPP Loan Forgiveness dated as of October 13, 2020.)
If the lender does not forgive the loan, or only partly forgives it, the borrower must pay the balance due before the loan matures. Interest accrues during the time between the disbursement of the loan and SBA remittance of the forgiveness amount to the lender, if any. The borrower is responsible for paying the accrued interest on any amount of the loan that is not forgiven. (Source: SBA FAQs on PPP Loan Forgiveness dated as of October 13, 2020).
Yes. After the lender notifies you that the loan is either not forgiven or only partly forgiven, you may notify the lender that you’re requesting the SBA to review the lender's decision. You must file that request with within 30 days of receiving the lender's notice. If the SBA accepts the review request, the SBA will notify the borrower and the lender of the results of its review. There does not appear to be a time frame for the SBA to complete its review. (Source: SBA Procedural Notice, effective July 23, 2020).
The covered period for the loan forgiveness calculation begins on the date the lender makes the first disbursement of the PPP loan to the business but if you have a biweekly (or more frequent) payroll cycle, you may choose to have the period start on the first day of the first payroll period after the loan disbursement date. (Source: SBA FAQs on PPP Loan Forgiveness dated as of October 13, 2020)
Yes. At least 60% of the total loan proceeds must be used for eligible payroll costs in order to be eligible for full loan forgiveness. In addition, at least 60% of the loan forgiveness amount (which may be lower than the total loan proceeds) must be used for eligible payroll costs. The threshold was originally set at 75% in the CARES Act and was reduced to 60% by the Paycheck Protection Program Flexibility Act (Source: PPP Flexibility Act, P.L. 116-142, June 5, 2020).
Although the business used less than 60% of the total loan proceeds for payroll costs, partial loan forgiveness is available. Based on current interpretations of the loan forgiveness program, the estimated loan forgiveness amount would be $85,000, not zero, calculated as follows. Because $15,000 was used for non-eligible costs, the potential loan forgiveness amount would be capped at $85,000. The $55,000 used for payroll costs is 64.7% of $85,000. Therefore, since more than 60% of the forgivable amount of the PPP loan was used for payroll, the estimated loan forgiveness amount would be $85,000. (Source: 86 Fed. Reg. 3692, January 14, 2021).
Unless an exception or safe harbor applies, the loan forgiveness amount is subject to reduction as a result of decreases in FTE employees, salaries, or wages. (PPP Loan Forgiveness Application Form 3508 Revised January 19, 2021).
In calculating loan forgiveness, the borrower can exclude a reduction in FTE employees for (a) any positions for which the borrower made a good-faith, written offer to rehire an individual who was an employee on February 15, 2020, and the borrower was unable to hire similarly qualified employees for unfilled positions by December 31, 2020 (i) for a PPP loan made before December 27, 2020, or (ii) the last day of the 8- to 24-week covered period for a PPP loan made after December 27, 2020, (b) any positions for which the borrower made a good-faith, written offer to restore any reduction in hours, at the same salary or wages, during the covered period and the employee rejected the offer, and (c) any employees who were fired for cause, voluntarily resigned, or voluntarily requested and received a reduction of their hours and for which the position was not filled by a new employee. (PPP Loan Forgiveness Application Form 3508 Revised January 19, 2021).
The borrower is exempt from the FTE-based reduction in loan forgiveness if it can, in good faith, document that it was unable to operate between February 15, 2020, and the end of the covered period at the same level of business activity as before February 15, 2020, due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 (or, for a PPP loan made after December 27, 2020, requirements established or guidance issued between March 1, 2020 and the last day of the covered period), by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration, related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19 (Source: PPP Loan Forgiveness Application Form 3508 Revised January 19, 2021).
A borrower is exempt from the FTE-based reduction in loan forgiveness if it reduced its FTE employee levels during the period beginning February 15, 2020, and ending April 26, 2020, provided the borrower restored its FTE employee levels to the levels in the pay period that included February 15, 2020 by December 31, 2020 (for a PPP loan made before December 27, 2020), or the last day of the covered period (for a PPP loan made after December 27, 2020). (Source: PPP Loan Forgiveness Application Form 3508 Revised January 19, 2021).
No. Under the COVID-related Tax Relief Act of 2020, no deduction is denied, no tax attribute is reduced, and no basis increase is denied by reason of the exclusion from gross income of the forgiveness of an eligible recipient's covered loan. This applies for tax years ending after March 27, 2020. Note that the COVID-related Tax Relief Act of 2020 applies only to federal income taxes. While many states will also follow the federal framework, PPP loan forgiveness may be subject to income tax in some states. (Source: Revenue Ruling 2021-02).
If the expenses are otherwise deductible, yes. Deductions for payments of eligible expenses are allowed even though such payments would result (or be expected to result) in the forgiveness of a covered PPP loan. This provision applies to tax years ending after March 27, 2020 (Source: Revenue Ruling 2021-02).
If your business received a PPP loan, you may also claim the Employee Retention Credit for any qualified wages paid to employees as long as your business is an eligible employer that meets the requirements for the credit. However, qualified wages for which your business claims the Employee Retention Credit are excluded from payroll costs paid during the covered period that qualify for forgiveness under the PPP (Source: IRS Notice 2021-20). As for paid leave credits, receiving credits for qualified leave wages does not disqualify your business from receiving the PPP loan to which it is otherwise entitled under section 1102 of the CARES Act. However, the amount of the PPP loan is reduced by the amount of the qualified leave wages for which your business is allowed tax credits, and those wages are not eligible as "payroll costs" for purposes of receiving loan forgiveness under section 1106 of the CARES Act (Source: IRS Special Issues for Employers: Taxation and Deductibility of Tax Credits) The CARES Act also allows employers to defer deposits and payments of the 6.2% employer share of social security tax for 1-2 years. Under the PPP Flexibility Act, a business is still eligible for this payroll tax deferral even after it is granted PPP loan forgiveness (Paycheck Protection Program Flexibility Act, P.L. 116-142, June 5, 2020).