PPP Update For Advisors, June Edition

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Financial advisors need to know about stiff new Paycheck Protection Program (PPP) loan forgiveness rules, the application process, and new applications forms.

SBA launched the PPP on April 3, 2020 and loaned 1.66 million businesses $342.3 billion in 14 days.

A second tranche of $310 billion of U.S. Government funding became effective on April 24 and is being distributed now. With a third tranche of Government funding very possible, newly released IRS guidance better defines requirements for loan forgiveness. Meanwhile, new IRS rules extend the deadline for spending PPP loan proceeds. At this session, you’ll learn about:

• advisors taking PPP – the controversy and disclosures required
• extension of the deadline to spend loan proceeds and still qualify for forgiveness
• new eligibility for rules Economic Injury Disaster Loan and Advance

This webinar is eligble for one hour of CE credit towards the CIMA® and CPWA® certifications, IRS EA CE, CFP® CE, PACE credit toward the CLU® and ChFC® designations and live CPA CPE credit.

(May 21, 2020, 7:30 p.m. EST) The tax relief regulations published by the IRS two weeks ago, in an unusual Q&A format, enable early withdrawals from qualified plans and IRAs for those harmed by the covid-19 epidemic. That’s a really big deal. Right?

Yes, but Bob Keebler says that the SECURE Act is an even bigger deal!

Point is, this is the most challenging time ever for tax and financial advisors. Financial planners are bombarded with one sweeping technical reform law after another.

Class Description

The trillions in U.S. Government aid to fight the coronavirus epidemic includes newly enacted measures enabling Americans to tap federally-qualified retirement accounts through penalty-free distributions, rollovers, and loans.

The objective of this class is to explain the technical tax provisions in Section 2202 of the CARES Act enacted on March 27 and the 1,800 word FAQ about the new rules published by the IRS on May 5. 

• Qualifying for the $100,000 penalty-free distribution
• Recognizing income from the coronavirus-related distribution over three-years
• Re-paying the coronavirus-related distribution
• The relevance of Notice 2005-92
• Outstanding loan repayment delay
• Limitations increased for new loans made between March 27 and September 22
• How the relief applies to employers
• Reporting distributions and repayments

Bob Keebler  the quintessential financial planning practitioner, earned an average rating of more than 4.8 stars (out of five) from A4A members in his last 12 monthly sessions. Bob, who has taught legal and accounting professionals about taxation of individuals for three decades, presents slides for 50 minutes and then answer questions.

This webinar is eligible for one hour of CE credit towards the CIMA® and CPWA® certifications, IRS EA CE, CFP® CE, PACE credit toward the CLU® and ChFC® designations and live CPA CPE credit.

Keebler Q&A About Paycheck Protection Program and CARES Act

April 4, 2020

Robert S. Keebler, CPA/PFS, MST, AEP (Distinguished), CGMA

Andrew Gluck, editor, Advisors4Advisors

Andrew Gluck: Hey, good afternoon, everybody. Welcome. Today is Saturday, April 4^th, 2020. It’s about 2:30 p.m. eastern time, and Bob is here with me to answer the questions to the session that he did two days ago. That session received a 9.6 out of 10 review, which is astounding. And people were very grateful for that session, and we appreciate that. But please do let us know that we’re doing this right for you. We think we are. We’re really working hard, obviously. We’re both here on Saturday and we’re doing this. Please let us know how we’re doing, and that you understand that we’re really trying to make this special for you.

Without further ado, Bob is here to answer those questions about the PPP and CARES Act. These acronyms that we didn’t know just a few days ago are now just part of our vernacular. Bob, thank you for doing this. Let me know if you want me to refer to the slides while you go through those questions.

Robert S. Keebler: Of course, Andy, and thank you for having me back. OK, here are the questions. I will read them and then I will answer the best I can.

Are self-employed people eligible for the Payroll Protection Program or the EIDL? Yes. Absolutely, yes.

Question 2: What about the FTE Headcount test for the covered period? What if I had some temporary employees during that time? Is there any adjustment for that? The answer to that is yes. There are going to be adjustments—it’s right in the law—for temporary employees.

Three: An employee is hired in December of 2009 at annual salary of 200,000 dollars. In looking at 2019 average monthly payroll, does one only consider the one month that the employee was paid, or can the employee annualize that one month? I think you’re stuck with just that one month of contribution.

Is the program on a first come, first serve basis? Is there a federal cap on the program? The cap is 349 billion dollars, so that’s out there.

Can a client do a Roth conversion if they waive the RMD? The answer to that is yes. Absolutely no problem. That was question 5. So, no problem with that.

Let’s look at question 6. There is an information sheet on the U.S. Treasury website, so there is information. The PPP Information Sheet is on the U.S. Treasury website.

OK, the next one: The head count criteria for the forgiveness of the PPP, do you know what that is? Do you have to have 100 percent or 75 percent of the staff on? There is a mathematical test. If you had 100 employees and you lost 20 of them, you would get 80 percent of the forgiveness. Now, you can rehire those people and get back to 100 percent.

Are payroll calculations per calendar year, or trailing, like April to April? No, they’re per calendar year right now.

For self-employed people, you’re going to take the profit off the business or, if it’s a partnership, the profit off schedule K.

Gluck: What number are you up to, Bob?

Keebler: That was question number 12.

Gluck: Thank you.

Keebler: Question 11: After creating an inherited spousal IRA to delay the RMD, can a survivor subsequently roll his or her own IRA next year, and then the deceased would turn 72? That’s correct. You can roll that over later. It’s not a problem.

For advisors, are AUM fees within the coverage, under 100K? Sure. If you had a sole proprietorship or a partnership that was all driven by AUM fees, if your income was under 100K, that would work.

OK, 14. Will refunds be delayed? I don’t think so. I think the IRS has promised to process all this as efficiently as possible.

OK, Andy, if we could just put up page 58 of the slides, please.

Slide 58: Individual Tax Relief – Retirement Plan Loans

Keebler: OK, the question is, it appears … Right. You don’t have to be directly affected by COVID-19. Simply, if the economy is hurting you, you’re able to borrow that 100,000 dollars from your retirement plan. And they’ve just increased that, so that should be pretty easy.

Go up to 59, please.

Slide 59: Individual Tax Relief – Temporary Waiver of RMDs

Keebler: Does that affect the 401(k) RMD? Yes. You would not have to take a distribution out of your 401(k). It’s not just IRAs.

OK, question 17: Will real estate passive losses be able to be deducted retroactively? No. Nothing changed with the passive loss rules, so you can’t go back and change that.

Question 18: How do you calculate a salary for a sole proprietor? It would be your income on Schedule C.

OK, 19: Can a business file for PPP if they have furloughed all employees, including the owner, and each employee has filed for unemployment, take the unemployment, and then rehire everyone before around April 30^th to maximize the eight weeks? Yes. There’s nothing to prohibit you from doing that.

Gluck: That is a great question. Just slow down on that one, again, because that is kind of a hardship case, I think, right? He’s saying that the employer—or she [laughs]—that the employer furloughed everybody. Those employees are receiving unemployment. And you’re saying, “Yep, you could still qualify for PPP”?

Keebler: That’s exactly what I’m saying.

Now, 20: In general, will the PPP be a preferable way to go, instead of the retention credit or the deferral of payroll taxes? That’s correct. Everybody’s agreeing that that’s the better way to go.

Gluck: Bob, one thing I was wondering about that I don’t see addressed here in these questions is, this is a first come, first serve basis, and there’s less than 350 billion dollars. I think it’s going to be really important for people to move on this stuff really quickly, won’t it?

Keebler: Yeah. You would need to get in line because the line’s going to fill up.

Question 21: If a client owns a dental practice that leases space from the owner’s LLC, will that count as a covered expense? Sure. No problem. There’s no related-party prohibitions in the statute.

Shouldn’t any business affected apply for the EIDL grant up to 10,000? Absolutely. There’s no harm in that.

Since banks seem to be not up and running yet, with the PPP for a dental practice where the wages are all under 100K, is it more ideal to be in control and take the employee retention credit and deferral of the employee payroll taxes? I would wait. I would give it a few weeks to see if they deny you, because you could always get back on that other track.

OK, there’s a question more for Fritz, which I’ll jump over, 24. Twenty-five is more for Fritz. So is 26.

Twenty-eight is for me. For PPP, are banks only working with current customers? No. They’ll take other people. But it’s going to delay you because if you’re already a customer, they’ve already been able to do all the anti-terrorism work for you.

OK, on the $1,200 check, if you filed a 2019 return, that’s the return they’re going to use. If you haven’t filed that, they’ll use the 2018 return.

OK, under CARES, the RMD for 2020 is waived. What about clients who withdrew the RMD in January and are now beyond their 60-day window? If you’re beyond the 60-day window, right now you can’t fix that. We’re waiting for guidance from the IRS on that.

Question 31: Are the $1,200 checks taxable? Do they need to be paid back? They’re not taxable, and they do not need to be paid back.

On the timeline for all states, 10 days seems optimistic. It’s terribly optimistic. It’s one thing if the government has your bank account number. If the government doesn’t have your bank account number, you’re going to get a paper check, and that could take up to 20 weeks.

OK, I know there was an overhaul in passive losses from real estate, as it refers to offsetting capital gains. Has anything changed with high-income earners being able to offset business income with their passive losses? Nothing’s changed there. It’s only active income can now offset business-type income.

OK, question 34 is more for Fritz.

Thirty-five: How will self-employed take a PPP loan? You get to use your profit off your Schedule C.

Question 36: Does the CARES Act include any special loan provisions for family farm owners? I think that’s being handled in a different part of the bill, so I’m not so sure. And I actually have Farm Credit checking on that for a farmer I represent. We do his estate planning, but they bring us special projects like this from time to time. And Farm Credit is looking into that.

Gluck: Bob? Bob?

Keebler: Go ahead, Andy.

Gluck: Well, finish what you were going to say about the farm.

Keebler: No, I’m good.

Gluck: With the PPP loan not being forgiven under certain circumstances, could you just talk about that formula? I mean, it has to do with how well you retain people, or what percent of people you retain, I think, or the salary. Could you just explain that limitation?

Keebler: Of course. There’s actually three limitations. The first limitation is a head count limitation. The second limitation is a dollar amount limitation, like if you cut everybody’s salary more than 25 percent, they would cut back on some of that forgiveness. And then, finally, there’s a third limitation, that if you ask them to forgive a thousand dollars, only if your payroll was 750 dollars or more would they forgive the whole thousand. If your amount was, say, 60 dollars of payroll, you could only have 80 dollars forgiven. You’re going to take the payroll divided by 0.75, and that will be the maximum forgiveness. So, there’s three tests there. Those are tests the clients’ CPAs are going to have to do.

Gluck: You also said something the other day about segregating the loan money. Just to keep compliance really clean, I think. Want to just mention that again?

Keebler: Oh, sure. You’re not going to get forgiveness if you use the money for anything but the enumerated items. And you’re going to have to prove that. So, what we’ve been suggesting is that you actually create a separate bank account, and only take money out of that bank account for those enumerated items—payrolls, rents, interest on mortgages. Those would be the primary things.

Gluck: The employer part of FICA … Oh, somebody asked that, right there, 39.

Keebler: Yeah, 39. You have to reduce your payroll by the 7.65 percent, but most people think it’s actually the employee’s side, not the employer’s side.

Now, going back one question, what would happen if the employees quit, which would reduce your head count through no fault of the employer? They haven’t allowed for that, so, I mean, that’s just tough. And it’s just going to reduce your forgiveness.

OK, question 40: What if you have a salaried, part-time employee for all of 2019 who plans to retire before the June 15^th lookback date? There’s nothing about that. Maybe what you’re going to have to do for that person … I would go to that person and incentivize them in some way, and pay them, because it looks like the government is going to be paying them after that point in time. That’s certainly what I would do. I would try to get them to stay to that date. You could always work out that they can … I mean, they have to come to work, but if they were doing a very hard job, you can give them a very easy job.

Does this three-year repayment rule apply to Roth distributions? I would have to look at that very closely. I just don’t know the answer to that. I’ll talk about that the next time we do an A4A presentation. I just don’t have the statute right in front of me quickly.

What if you took RMDs in order to complete a Roth conversion? Will they be able to repay those distributions and still qualify for the Roth conversion? I don’t think that’s a problem. I think you’re fine with that.

OK, is a business in bankruptcy eligible for the SBA loans? I really don’t know that. That’s a question that you’re going to have to go to the bank on and ask the banks about that. Remember, there are new provisions in the CARES Act dealing with bankruptcy, but I would bring that to the bankruptcy attorney that’s handling that for you and have he or she run that to ground.

OK, 44 we answered.

Forty-five: With regard to PPP loans, does payroll include an owner’s draw, or just payroll to the other employees? If you had a sole proprietorship or a partnership, it potentially would include the owner’s profit. I think that’s where we’re going with that.

Slide: Paycheck Protection Program Borrower Application Form

Keebler: If you look at the regulations that the SBA issued, some of that is enumerated in there. Those regulations came out Thursday night. Oh, I’m sorry. Maybe Wednesday night or Thursday night, like at 7 or 8 at night. So, take a look at those. I know they came out after I taped the A4A event.

Gluck: Bob, I put this up over here just in case you want to comment on any of this.

Keebler: Yeah, these forms aren’t very hard. Two comments. These really should be completed by the client with the help of their CPA. And you want to be very careful, if you’re a CPA, that you don’t inadvertently certify anything, because the client is supposed to do the certification. And you’re going to take on way too much liability if you certify anything. And then, if you get into trouble, if you’re working with somebody that has a criminal past, you ought to get somebody that does just SBA work, on the legal side, to help you with that, to see if there’s any workaround that would make them eligible for this. Because on the surface it looks like if you’ve committed serious crimes, you’re going to be pushed out of this program.

Gluck: Yeah, that certification of need, essentially, that you are signing is a serious compliance issue for a business owner, isn’t it? I mean, that’s why you recommended really being careful about what you’re signing [laughs]. Isn’t that what you’re saying? And just looking at this application, when you see, it’s clear. You’re certifying a bunch of things that are … You could be charged with—here’s the word, over here—fraud.

Keebler: Right. No, no, no, that’s the problem.

Gluck: Yeah. And what’s that certification called? You used the term the other day, that everybody is certifying that they’re not lying [laughs], essentially, right?

Keebler: Right, right. It’s a penalties of perjury thing.

Gluck: OK. Anything else that you want to go over here, on terms of maybe—

Keebler: No, I’m just always glad to help the A4A members. And we will probably have to follow up with this in the next few weeks, as this develops, but good luck helping your clients with this.

Gluck: And, indeed, advisors themselves. Any idea how many … I mean, is everybody going to apply for this, or like 90 percent of businesses? I know you said that if you have like six months of cash on hand to pay expenses, then you’re probably not going to qualify, and certifying that you have a need is going to be difficult. And that’s where the certification becomes so important, I think. But that’s pretty rare for people to have that sort of cash on hand, I would imagine. Could you give me any idea of, I mean, how big is this? And how far does 350 billion dollars go when you’re talking about that?

Keebler: It’s almost certain not to go far enough. Andy, it’s not going to go far enough. And what’s going to happen is Congress is going to have to authorize more money. So, it’s not going to go far enough.Word on the street is that the speaker of the House, Speaker Pelosi, would like to expand this.

Gluck: So, you think there’ll be authorization of more money for this? They’re going to come back to this?

Keebler: Undoubtedly.

Gluck: Really? Wow. OK. So, even if you’re late, get your application in. And it sounds like it’s going to be massive in terms of the people that can qualify, but we’ll know more about that in the next days. OK, Bob, thank you so much.

Keebler: You’re welcome, Andy. Always an honor to be here with A4A.

Gluck: OK, everybody, we’ll see you soon. Let us know if you have questions about the Q&A here. Thanks again, Bob.

Keebler: Thank you, Andy.