Coronavirus Aid, Relief, and Economic Security (“CARES”) Act

This week Congress passed and the president signed into law the CARES Act. This 335-page (840 under bill format), $2 trillion dollar piece of legislation contains a LOT of complicated provisions. I’ve skimmed through it and read multiple commentaries in detail to try to create a summary of the financial pieces that are most important to PWA clients. As always, there will be a lot of interpretations, details, and guidance that will follow from the IRS, the Dept. of Labor, the Treasury, SBA, etc. Here’s what I understand at this point:

· Direct Payments to Individuals – $1200 for individuals ($2400 for joint taxpayers) that are not dependents of another taxpayer + $500 for each child under age 17. The payments are reduced if income exceeds $75k (single), $112,500 (head of household), or $150k (joint), by $5 for every $1k in excess of the threshold (see the Tax Foundation’s excellent graphic on how this will work). For threshold income, the IRS will use 2019 adjusted gross income (AGI) for the initial payment. If you haven’t filed your 2019 return by the time the payment is calculated, they’ll use 2018 instead. The amounts you receive with then be reconciled against income on your 2020 tax return. If you should have received a payment based on 2020 income but did not, you’ll get the excess as a credit on your 2020 return. If you received more than you should have based on 2020 income, my understanding is that you will not have to repay the difference. Because of this, it may be best to make sure you get your 2019 tax return in ASAP if you’d qualify based on 2019 income, but not 2018 income, or to delay 2019 if you’d qualify based on 2018 but not 2019. These direct payments will be made by 4/6/2020 via direct deposit on file with the IRS as of the latest filed tax returns, or along with Social Security payments if you receive Social Security, or by check if you don’t receive Social Security and there is no direct deposit information on file or if the direct deposit information cannot be used for some other reason. The IRS is going to provide a phone number for issues around payments that aren’t received but should have been received. If you just cringed/laughed at the idea of millions of people potentially calling one IRS number and sitting on hold for days, so did I. It is what it is.

· Expanded Unemployment Benefits – $600 / week increase in benefits + 13 more weeks of benefit available + an expansion of benefits to those who normally don’t qualify (self-employed, independent contractors, and those with limited work history) + elimination of the one-week waiting period. Note that the average unemployment compensation amount prior to this expansion was only $372 / week nationwide, so an additional $600 / week is significant. For some workers, it may even be more than they were earning while working.

· Partially Forgivable Small Business Loans – The “Paycheck Protection Program”. $350 billion authorized. Businesses (including sole-proprietors and independent contractors) with 500 employees (full or part-time) or less, can borrow up to the lower of $10M or 2.5x monthly payroll (avg of the last year), excluding any amount over $100k per year for each individual. Self-employment income supposedly counts as payroll. I would venture to guess that S-Corp profits do not, since they don’t pay payroll taxes. Loan proceeds can be used for payroll support, employee salaries, mortgage payments, rent, utilities, and any other debt obligations incurred before the covered period. Loans are non-recourse (no personal guarantee or collateral needed) unless the proceeds are used for a non-approved purpose. Interest can’t exceed 4%. Loans can be for up to 10 years. Borrowers will be eligible for loan forgiveness for an amount equaling payroll (max $100k per employee) and operating costs for the first 8 weeks after the loan is issued. However, the loan forgiveness is subject to maintaining the same number of employee equivalents (FTEs) from 2/15/2020 to 6/30/2020 as it had in 2019 or from 1/1/2020 to 2/15/2020 and not cutting salaries/wages for those earning $100k or less by more than 25%. If you don’t maintain payroll, loan forgiveness is reduced / eliminated by a very complicated formula that isn’t clear to me. Please see this brochure produced by the Chamber of Commerce with more details on these loans. More great information is available in this Forbes article from 3/28, including some of the unanswered questions, specifically around how all of this works for businesses with no employees (like independent contractors). There are lots of open questions. If you own a small business, stay tuned for more info soon from the SBA, along with a list of eligible lenders that will facilitate the loan. These loans are going to be administered by the SBA which currently has nowhere near the manpower to handle what’s being asked of them (my opinion). The CARES Act recommends that SBA direct lenders to “prioritize small business concerns and entities in underserved and rural markets, including veterans and members of the military community, small business concerns owned and controlled by socially and economically disadvantaged individuals, women, and businesses in operation for less than 2 years.” I suspect there will be a lot of “first-come-first-served” prioritization as well, so getting to the front of the line once lenders are ready to accept applications could mean a lot if your business is dependent on this program for survival. You must apply by 6/30/2020 to be eligible for one of these loans. Keep in mind that there is an existing program via the SBA that has nothing to do with the CARES Act which is already available to provide loans up to $2M to small businesses impacted by covid-19. You can find more information at https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources, under the topic for Economic Injury Disaster Loan Program. The CARES Act also provides funding to lenders who agree to forbearance on existing SBA loans during the covid-19 emergency.

· Larger Business Loans – $500 billion authorized. Direct loans to corporations or via purchase in primary or secondary markets. Directed by Treasury with oversight from a bipartisan congressional oversight committee. A limited portion is made available for airlines, air cargo carriers and businesses critical to maintaining national security. Borrowers must be created, organized and have a significant presence in the United States. All loans are supposed to be secured and are intended for businesses that don’t have reasonable access to other credit. Borrowers can’t buy back their own stock, issue dividends, or reduce their workforce during the term of the loans. There are also compensation caps for highly-paid employees during the term of the loan. While the terms of the loan are at the discretion of Treasury, they must come along with a warrant (long-term term right to purchase stock at a fixed price), equity interest, or senior debt instrument. These are intended to compensate the government for the loan. Proceeds pay for the program, with any excess going to Social Security. Any company where a controlling interest (defined as over 20 percent of controlling stock) is held by president, the vice president, executive department head, or Member of Congress or their families is rendered ineligible for financial assistance in the form of loans or investments provided under the CARES Act.

· Employee Retention Tax Credit – Credit for businesses that were impacted by covid-19 (government stay-at-home orders, restrictions on operations, or at least a 50% decline in year-over-year revenue for at least one quarter). The credit is for 50% of the first $10k of qualified wages paid to employees between 3/12/2020 and 12/31/2020. For businesses with more than 100 employees, qualifying wages are those paid to employees while they’re unable to do their job. For those with 100 employees or less, qualifying wages are all wages paid. Employers who receive a loan under the “Paycheck Protection Program” are not eligible for this credit.

· Employer Payroll Tax Delay – employers can delay paying their half of payroll tax on wages for the remainder of 2020 to 2021 and 2022 (half each). Does not apply if the employer receives forgiveness of any loan made under the “Paycheck Protection Program” provisions described above.

· Retirement Plan Early Distributions – new hardship withdrawals up to $100k allowed for those with covid-19-related needs. The 10% penalty is waived. Tax is still due, but it can be spread over three years (it will be spread over three years by default, unless you elect out). You can also recontribute the amounts that were withdrawn within three years and face no additional tax. The re-contributions are not subject to the IRS contribution limits for any given year. To qualify, you have to get the virus, a spouse or dependent does, or you have to have virus-related financial difficulty which is pretty liberally defined (laid off, furloughed, hours reduced, income reduced, can’t work due to childcare needs, etc.).

· Retirement Plan Loans – increases the size of allowed loan to 100% or $100k, whichever is less from the current 50% or $50k, whichever is less. Loan payments due between 3/27/2020 and 12/31/2020 can be delayed for up to a year.

· Retirement Plan Required Minimum Distributions – these are suspended for all retirement plans and inherited retirement plans for 2020.

· Employer Payments For Student Loans – Up to $5250 of employer payments toward employee student loans would not be considered taxable to the employee.

· Individual Student Loan Payments – Federal student loan payments can be suspended, interest-free, through Sep 2020. Borrowers may need to take action though to stop any scheduled recurring payments (if desired). They may not be stopped automatically. No credit reporting impact.

· Mortgage Forbearance – individuals/families impacted by covid-19, with Federally-backed mortgages (FHA, Fannie, Freddie, VA, etc.) can request forbearance (no payments) for up to 180-days. If necessary, this can be extended by an additional 180-days. No penalties apply during forbearance, though interest continues to apply as scheduled.

· HSA/HRA/FSA Qualified Expenses – modified to allow over-the-counter drugs, not just prescription drugs, as qualified medical expenses. Also adds various feminine products to the allowed list of eligible expenses. I’m not sure that the broad inclusion of over-the-counter drugs was intended, but based on the changes made to the tax code by the CARES Act, it seems like that’s what happened. More to come on this as clarification emerges.

· Charitable Contributions – previously only allowed for those who itemize, a new, seemingly permanent tax deduction has been added for up to $300 of charitable contributions for those who don’t itemize. It’s what is known as an “above the line” deduction.

· Net Operating Loss (NOL) – losses in 2018, 2019, or 2020 can be carried back 5 years (have to elect out of that treatment if you don’t want it). TCJA previously eliminated carrybacks of two years so that all losses had to be carried forward. For individuals, losses can offset up to 100% of income vs. TCJA’s 80% limitation.

There are many other provisions providing funding for and modifying regulations dealing with health (including requiring that insurers cover all covid-19 treatments and vaccine and make all testing free to individuals, funding for hospitals, telehealth, drug development and access, the CDC, the VA and the building/rebuilding of the strategic national stockpile of medical supplies), education, state & local government, the arts, and banking.

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