The COVID-19 Relief Bill, supported by Senator Cornyn and signed into law on December 27, 2020, included $325 billion in aid for small businesses. The bill breaks this down into $284 billion to the U.S. Small Business Association (SBA) for first and second round Paycheck Protection Program (PPP) forgivable small business loans and allocates $20 billion to provide Economic Injury Disaster Loan (EIDL) Grants to businesses in low-income communities. In addition, the bill includes Senator Cornyn’s Save our Stages Act, which means shuttered live venues, independent movie theaters, and cultural institutions will have access to $15 billion in dedicated funding. The bill also includes $12 billion for Community Development Financial Institutions and Minority Depository Institutions to help business in low-income and minority communities.
Paycheck Protection Program 2 (PPP2): The newly created PPP2 program includes topline changes, but SBA is expected to further refine what Congress passed as it starts rolling it out in the next two weeks. PPP2 loans will be available to first-time qualified borrowers and, for the first time, to businesses that previously received a PPP loan. Specifically, previous PPP recipients may apply for another loan of up to $2 million, provided they:
· Have 300 or fewer employees.
· Have used or will use the full amount of their first PPP loan.
· Can show a 25% gross revenue decline in any 2020 quarter compared with the same quarter in 2019.
· Note: PPP2 also makes the second round forgivable loans available to Sec. 501(c)(6) business leagues, such as chambers of commerce, visitors’ bureaus, etc., and “destination marketing organizations” (as defined in the act), provided they have 300 or fewer employees and do not receive more than 15% of receipts from lobbying. The lobbying activities must comprise no more than 15% of the organization’s total activities and have cost no more than $1 million during the most recent tax year that ended prior to Feb. 15, 2020.
PPP2 will also permit first-time borrowers from the following groups:
· Businesses with 500 or fewer employees that are eligible for other SBA 7(a) loans.
· Sole proprietors, independent contractors, and eligible self-employed individuals.
· Not-for-profits, including churches.
· Accommodation and food services operations (those with North American Industry Classification System (NAICS) codes starting with 72) with fewer than 300 employees per physical location.
· Note: The bill allows borrowers that returned all or part of a previous PPP loan to reapply for the maximum amount available to them.
PPP loan terms: As with PPP1, the costs eligible for loan forgiveness in PPP2 include payroll, rent, covered mortgage interest, and utilities. PPP2 also makes the following potentially forgivable:
· Covered worker protection and facility modification expenditures, including personal protective equipment, to comply with COVID-19 federal health and safety guidelines.
· Expenditures to suppliers that are essential at the time of purchase to the recipient’s current operations.
· Covered operating costs such as software and cloud computing services and accounting needs.
· Note: To be eligible for full loan forgiveness, PPP borrowers will have to spend no less than 60% of the funds on payroll over a covered period of either eight or 24 weeks — the same timeframe PPP1 had when it stopped accepting applications in August.
PPP2 borrowers may receive a loan amount of up to 2.5 times their average monthly payroll costs in the year prior to the loan or the calendar year, the same as with PPP1, but the maximum loan amount has been cut from $10 million in the first round to the previously mentioned $2 million maximum. PPP borrowers with NAICS codes starting with 72 (hotels and restaurants) can get up to 3.5 times their average monthly payroll costs, again subject to a $2 million maximum.
Simplified application: The new COVID-19 relief bill also:
· Creates a simplified forgiveness application process for PPP loans of $150,000 or less. Specifically, a borrower shall receive forgiveness if a borrower signs and submits to the lender a certification that is not more than one page in length, includes a description of the number of employees the borrower was able to retain because of the loan, the estimated total amount of the loan spent on payroll costs, and the total loan amount. The SBA must create the simplified application form within 24 days of the bill’s enactment and may not require additional materials unless necessary to substantiate revenue loss requirements or satisfy relevant statutory or regulatory requirements. Borrowers are required to retain relevant records related to employment for four years and other records for three years, as the SBA may review and audit these loans to check for fraud.
· Repeals the requirement that PPP1 and PPP2 borrowers deduct the amount of any EIDL advance from their PPP forgiveness amount.
· Includes set-asides to support first- and second-time PPP borrowers with 10 or fewer employees, first-time PPP borrowers that have recently been made eligible, and for loans made by community lenders.
Tax deductibility for PPP expenses: The bill also includes Senator Cornyn’s Small Business Protection Act, which clarifies that business expenses paid with forgiven PPP loans are tax-deductible. This supersedes earlier IRS guidance that such expenses could not be deducted and brings the policy in line with Congress’s intent when it created the original PPP.
The COVID-19 relief bill clarifies that “no deduction shall be denied, no tax attribute shall be reduced, and no basis increase shall be denied, by reason of the exclusion from gross income provided” by Section 1106 of the CARES Act. This provision applies to loans under both the original PPP and subsequent PPP loans.