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.

GUIDE TO SMALL BUSINESS COVID-19 EMERGENCY LOANS

As part of an end-of-year pandemic relief package, Congress has passed several changes to the Paycheck Protection Program (PPP) and created a “Second Draw” PPP for small businesses who have exhausted their initial loan. Other changes impact eligibility for initial PPP loans, the loan forgiveness process, and the tax treatment of PPP loans.

Congress has also made changes to other programs – including Economic Injury Disaster Loans (EIDL Program), the Employee Retention Tax Credit, a Venue Grant program, and SBA loan programs –that will benefit small businesses. Here’s everything small business owners need to know now:

Contents:

  • How Do These Changes Impact My Existing PPP Loan?
  • I Exhausted My Initial PPP Loan, How Does This Help Me?
  • What If I Never Received a PPP Loan?
  • Which Changes to Other Programs That May Help My Small Business Have Been Changed?
    • Expanded Employee Retention Tax Credit
    • EIDL Grants
    • Grants for Shuttered Venue Operators
    • SBA Loan Debt Forgiveness
  1. How Do New Changes Impact My Existing PPP Loan?

Tax Treatment: The new law overturns the IRS ruling and provides that regular business expenses paid for with PPP loan proceeds shall be deductible for tax purposes (applies to past and future loans).

Expanded List of Expenses Qualifying for Forgiveness: The list of expenses that PPP funds can be used for that qualify for loan forgiveness has been expanded to include:

  • “operations expenses” defined as payments for business software and cloud computing services and other human resources and accounting needs that facilitate business operations;
  • “supplier costs” defined as payments to a supplier for goods that are essential to the operations of the borrower pursuant to a contract or purchase order in effect before the PPP loan is disbursed or with respect to perishable goods, in effect at any time;
  • “worker protection expenses” defined as operating or capital expenditures to comply with public health guidance related to COVID-19, including things like drive-through windows and sneeze guards and the purchase of personal protective equipment (PPE); and
  • “covered property damage costs” defined as costs related to property damage or looting due to public disturbances in 2020 that are not covered by insurance or other compensation.

Remember: It is still the case that not more than 40% of the forgiven amount can be for non-payroll costs, which may limit how much of your loan can be forgiven.

Loan Forgiveness Reduction: If you also received an EIDL grant, your PPP loan forgiveness will no longer be reduced by the amount of the grant.

Loan Forgiveness Period: The period for which expenses count toward loan forgiveness will begin on the date of loan origination and end on a date of your choosing that is between 8 and 24 weeks after origination.

Simplified Application: If your loan was for less than $150,000, there will be a simplified one-page application process for loan forgiveness.

2. I Exhausted My Initial PPP Loan, How Does This Help Me?

The brand new “Second Draw” program is for small businesses, non-profits, sole proprietors, and independent contractors who have exhausted their initial PPP loan. The program will make new loans through March 31, 2021 or until the new funding is exhausted.

Eligibility: You are eligible for a second draw loan if you have exhausted your first PPP loan and

  1. you have less than 300 employees, and
  2. you have experienced a greater than 25% reduction in gross receipts during the first, second, third, or fourth quarter in 2020 relative to the same quarter in 2019.

Entities with significant ties to China are ineligible for a second draw loan.

Loan Amount: The maximum loan amount is the average monthly payroll costs for the entity during the 12 months prior to the loan or, at the election of the borrower, 2019 multiplied by 2.5 (or 3.5 for employers in the accommodation and food service industry).

Seasonal employers utilize average monthly payroll costs for a 12-week period between February 15, 2019 and February 15, 2020.

A loan may not exceed $2 million.

Loan Forgiveness: The amount of loan that can be forgiven is the lesser of:

  1. Costs incurred or expenditures made between the date of the origination of the loan and ending on a date of your choosing that is between 8 and 24 weeks after origination for: (a) payroll costs, (b) qualifying mortgage interest or rent obligations, (c) covered utility costs, (d) covered operations costs, (e) covered property damage, (f) covered supplier costs, and (g) covered worker protection expenditures; or
  2. Payroll costs for the same period divided by 0.60 (this serves as a cap on the total loan forgiveness to ensure that at least 60% of the total amount forgiven is for payroll costs).

Like original PPP loans, the amount of loan forgiveness can be reduced if the borrower has (1) reduced the number of employees or (2) employee salaries by more than 25%. However, the same safe harbors that apply to original PPP loans apply to Second Draw loans. Learn more about these Safe Harbors in our Guide for PPP Loan Forgiveness.

Set-Asides: $25 billion is set aside for employers with 10 or fewer employees or for loans less than $250,000 for entities located in a low-income neighborhood.

3. What If I Never Received a PPP Loan?

For new PPP applicants, the loan process will largely remain the same with a few major changes:

  • The PPP program is open through March 31, 2021 or until the new funding is exhausted.
  • If you are a 501(c)(6), a local news media organization, or a housing cooperative you may be newly eligible for a loan.
  • You may qualify even if you took advantage of the Employee Retention Tax Credit.
  • If you are a publicly traded company, you are now prohibited from receiving a loan.
  • Group insurance payment can be included in your payroll costs when determining your maximum loan amount (see Step 3 in our original Guide).
  • If you are a seasonal employer, you have greater flexibility in picking the 12-week period between February 15, 2019 and February 15, 2020 used to determine your payroll costs and thus your maximum loan amount.

New borrowers have until the end of the covered period of their loan (up to 24 weeks after origination) to restore a reduction in their number of employees or reduced wages in order to avoid having their loan forgiveness reduced. Note: The safe harbors for when an employer cannot find qualified employees or where complying with COVID related safety measures prevents a return to February 2020 levels of business activity and staffing remain in effect.

Set-Asides: $35 billion is set-aside for first time borrowers and $15 billion is set aside for employers with 10 or fewer employees or for loans less than $250,000 for entities located in a low-income neighborhood.

Remember: The other changes regarding eligible uses of PPP funds and loan forgiveness discussed above will also apply to your new loan. 

4. Which Other Programs That May Help My Small Business Have Been Changed or Updated?

Expanded Employee Retention Tax Credit: The new law significantly expands the employee retention tax credit beginning on January 1, 2021. The credit expires on June 30, 2021. The prior credit was 50% on $10,000 in qualified wages for the whole year (or a maximum of $5,000 per employee). The new credit is 70% on $10,000 in wages per quarter (or a maximum $14,000 per employee through June 30th).

The new law also expands which employers are eligible. Prior to the new law, the employee retention tax credit applied only to an employer who experienced a decline in gross receipts of more than 50% in a quarter compared to the same quarter in 2019. Eligibility is now expanded to include employers who experienced a decline of more than 20%.

In addition, the employee cap under which it is easier to claim the tax credit has been raised to 500 employees from 100 employees. Now, employers with 500 or fewer employees can claim the credit for wages to paid to employees irrespective of whether the employee is providing services.

Employers can now also receive both the Employee Retention Tax Credit and a PPP loan, just not to cover the same payroll expenses.

Remember: This is a refundable tax credit. See the Chamber’s original Guide to the ERTC for more information.

EIDL Grants: The new law reopens the $10,000 EIDL Grant program. Priority for the full amount of the EIDL grant will be given to small businesses with less than 300 employees, located in low-income neighborhoods, who have experienced a 30% reduction in gross receipts during any 8-week period between March 2, and December 31, 2020 compared to a comparable 8-week period before March 2. If you meet this description and received a grant that is less than $10,000 you can reapply to receive the difference.

Grants for Shuttered Venue Operators: The law creates a new $15 billion grant program for eligible live venue operators or promoters, theatrical producers, live performing arts organization operators, museum operators, motion picture theatre operators, or talent representatives that have experienced at least a 25% drop in revenue.

Grants are equal to the lesser of $10 million or 45% of gross earned revenue in 2019. Grants must be used for specified expenses such as payroll costs, rent, utilities, and personal protective equipment.

If you receive a grant you may not apply for a new PPP loan.

SBA Loan Debt Forgiveness: The new law resumes the government payment of monthly principal and interest on small business loans guaranteed by the SBA under the 7(a), 504, and Microloan programs. Borrowers with loans approved by the SBA prior to the CARES Act will receive an additional three months of payments beginning in February of 2021. Those payments will be capped at $9,000 per borrower per month.

After that, certain borrower will receive an additional five months of payments, including borrowers with SBA microloans or 7(a) Community Advantage loans or borrowers with any 7(a) or 504 loan in hard hit sectors: educational services; arts, entertainment and recreation; food service and accommodation; support activities for mining, and oil and gas extraction; apparel manufacturing; clothing and clothing accessories stores; sporting goods, hobby, book and music stores; air transportation; transit and ground passenger transportation; scenic and sightseeing transportation; publishing industries; motion picture and sound recording; broadcasting; rental and leasing services; and personal and laundry services.

New SBA loans made or approved between December 22, 2020 and September 30, 2021 will receive six months of government payment of principal and interest, also capped at $9,000 per month.