The top Republican and Democrat on the Senate Finance Committee said the Treasury Department “missed the mark” in new guidance that limits tax breaks for businesses that get their Paycheck Protection Program loans forgiven.
In a joint statement Thursday, Senate Finance Chairman Chuck Grassley and Democrat Ron Wyden said the Treasury is depriving some small businesses of much-needed economic relief by forcing them to choose between getting their PPP loans forgiven or claiming write-offs on expenses they covered with the loan money. The IRS published guidance on the issue Wednesday.
“Regrettably, Treasury has now doubled down on its position in new guidance that increases the tax burden on small businesses by accelerating their tax liability, all at a time when many businesses continue to struggle and some are again beginning to close,” Grassley and Wyden said.
The congressional reaction to the guidance puts additional pressure on the Treasury and Internal Revenue Service to allow taxpayers to claim the expense deductions. Grassley and Wyden encouraged the IRS to reverse its position.
The lawmakers said they are working to include language in year-end legislation clarifying that taxpayers qualify for expense deductions even if their loans are forgiven. That could be included in government spending legislation that Congress must pass by Dec. 11 before federal funding runs out.
Chris Moran, a tax attorney for law firm Venable LLP, said, “the IRS guidance seems to be inconsistent with congressional intent” in the CARES Act, which created PPP loans for businesses struggling from the pandemic. The law stated that the forgiven loan won’t be taxed, but didn’t specify whether companies could still write off the expenses they covered with that money.
Doug Dennerline is chief executive officer at Betterworks.
Cliff Rosenthal retired from the Consumer Financial Protection Bureau but is best known to CUs as the former CEO of the National Federation of Community Development Credit Unions (now nown as Inclusiv).
Stanley Keller is senior partner at Locke Lord LLP who focuses his practice on corporate and securities laws. He chaired the ABA’s Federal Regulation of Securities Committee during the height of the Sarbanes-Oxley era and in that role interacted on behalf of the private bar with the SEC, other governmental officials and the stock exchanges. He served as Chair of the ABA’s Legal Opinions Committee and is currently leading the effort to establish a statement of nationally recognized opinion practices. He also was Chair of the ABA’s Audit Responses Committee. He was active in the ABA’s Task Forces dealing with SEC Attorney Conduct Rules, Corporate Responsibility and Attorney-Client Privilege. As a member of the ABA’s Corporate Laws Committee, he was Special Reporter for the 2016 Revision of the Model Business Corporation Act and before that was Co-Chair of the Task Force that drafted the Massachusetts Business Corporation Law. He also Chaired the Boston Bar Association’s Business Law Section and Corporation Law Committee.
Excluding the forgiven loan from tax “is essentially meaningless if the expenses funded by the loan are nondeductible,” Moran said.
Still, many taxpayers aren’t expecting to get permission to claim the deductions, from the IRS or Congress, in the short term.
“I think most of them are, at least for now, resigned” to not getting the write-offs, Joe Kristan, a partner at the accounting firm Eide Bailly LLP in Des Moines, Iowa. “They’d certainly like to be allowed by Congress to step in and allow their deductions, but they’re not counting on it.”