The U.S. Small Business Administration and the Treasury Department are making it easier for companies to get their Paycheck Protection Program loans of $50,000 or less forgiven with a simpler loan forgiveness application and interim final rule.
The new application form and rule were unveiled Thursday night, along with instructions for completing the form.
Darryl Wegner is a managing director in PKF O'Connor Davies' Forensic, Litigation and Valuation practice. Prior to joining PKF O'Connor Davies, he served as a special agent with the Federal Bureau of Investigation for 21 years where he conducted and led complex, multi-jurisdictional investigations involving anti-money laundering, financial and accounting fraud, securities fraud, insider trading, health care fraud, anti-bribery and anti-corruption, criminal antitrust, national security, counter threat finance and sanctions. He has extensive experience working with federal, state, local and international law enforcement and regulatory agencies. He began his FBI career in the Boston Field Office, investigating terrorism and white-collar crime while also serving as a crisis negotiator. He held several positions at FBI headquarters in Washington, D.C., including as the national leader of the bureau's Foreign Corrupt Practices Act, kleptocracy and antitrust programs, as one of the FBI's deputy chief human capital officers and led efforts to stand up a multidisciplinary nation state focused mission center. In addition to Boston and D.C., he was assigned to the FBI's Houston Field Office where he directed all white-collar crime investigations in southeast Texas. He started his professional career as an engineer in the automotive industry. After attending law school, he practiced as a corporate attorney for an international law firm in New York.
Gerald McMahon is a principal at W1 Global Inc. He has over 20 years of experience in the intelligence, national security and law enforcement communities. As the senior supervisory intelligence analyst for FBI Boston, he led one of the FBI's largest field intelligence programs comprising analysts, linguists and data specialists. He led teams, and interagency task forces covering the criminal, counterterrorism, counterintelligence and cyber programs. He has extensive experience managing crises and special events. In the FBI's Counterterrorism Division, McMahon advanced international terrorism investigations as an operations specialist, collaborating with domestic and international partners. As a tactical specialist on FBI Boston's Joint Terrorism Task Force, he conducted communications, network, and threat analysis. As a strategic analyst, McMahon authored analyses of current and emerging trends, with a focus on emerging technologies. McMahon is the recipient of two Office of the Director of National Intelligence Meritorious Unit Citation awards for his contributions to the 2006 US/UK Aviation Threat Task Force, and the 2013 Boston Marathon Bombing team. He was a Recanati-Kaplan Fellow with the Harvard Kennedy School of Government's Intelligence Project, where his research focused on the use of AI in intelligence analysis.
The PPP was part of the CARES Act passed by Congress in March to provide relief to struggling small businesses coping with the impact of the novel coronavirus and the economic downturn precipitated by the pandemic. It offered SBA-backed loans that could be forgiven as long as the business met conditions such as retaining employees for eight weeks. However, many businesses have been confused about the ever-changing rules for the hastily rolled out program and for getting their loans forgiven. Until a week ago, no loan forgiveness applications were being approved by the SBA. The SBA and the Treasury hope the new application will make the process a little less difficult for business owners, at least for the many who took out loans of $50,000 or less.
Under the new rule, PPP borrowers of $50,000 or less won’t have the amount of their loan forgiveness reduced based on reductions in full-time-equivalent employees or reductions in employee salary or wages. The newly simplified forgiveness application, Form 3508S, can be used by borrowers with a total loan amount of $50,000 or less, unless they and their affiliates received loans totaling $2 million or more.
“The PPP has provided 5.2 million loans worth $525 billion to American small businesses, providing critical economic relief and supporting more than 51 million jobs,” said Treasury Secretary Steven T. Mnuchin in a statement Thursday. “Today’s action streamlines the forgiveness process for PPP borrowers with loans of $50,000 or less and thousands of PPP lenders who worked around the clock to process loans quickly,” he continued. “We are committed to making the PPP forgiveness process as simple as possible while also protecting against fraud and misuse of funds. We continue to favor additional legislation to further simplify the forgiveness process.”
The SBA started approving PPP forgiveness applications and remitting forgiveness payments to PPP lenders for PPP borrowers on Oct. 2. The SBA said it plans to continue to process all PPP forgiveness applications in an “expeditious manner.”
“Nothing will stop the Trump Administration from supporting great American businesses and our great American workers,” said SBA administrator Jovita Carranza in a statement Thursday. “The Paycheck Protection Program has been an overwhelming success and served as a historic lifeline to America’s hurting small businesses and tens of millions of workers. The new form introduced today demonstrates our relentless commitment to using every tool in our toolbelt to help small businesses and the banks that have participated in this program. We are continuing to ensure that small businesses are supported as they recover.”
Many accountants have been helping their small business clients apply for PPP loans and fill out the loan forgiveness applications. Heather Bain, chair of the Small Business Committee of the Institute of Management Accountants and owner of Bain CPA Business Strategies in Houston, believes the new rule issued by the SBA on Thursday doesn’t go far enough, though, in simplifying the process.
“There weren’t really that many changes,” she said. “In fact the whole rule only reduced the complexities for calculating full-time equivalents and the reduction in wages. That’s it. The rule even says that doesn’t really apply to the majority of those loans that were under $50,000. That’s why they’re allowed under the de minimis rule in the first place. I don’t think we’re going to see that many businesses benefit from that rule. And what most of my clients and companies that I work with have said is that they were hoping for an automatic forgiveness where you don’t have to wait to find out for sure if you are going to get forgiveness, and that was not part of the interim final rule.”
The new rule may well disappoint many small business clients. “They were hoping for a certain loan amount and the forgiveness would just be automatic,” said Bain. “There wouldn’t be a lender decision and an SBA decision. It would just be if you signed your affidavit and completed it and turned it in, you would have automatic forgiveness. But that apparently is not part of any of the discussion with the new interim final rule.”
The changes are estimated to cover approximately 9 million forgiveness applications. “It was a fairly small statistic because many of the loans that are $50,000 or less were partnerships or self-employed or they didn’t have employees or had so few employees that they didn’t have the full-time equivalent [employee] reduction,” said Bain. “They didn’t have the calculation for reduction of wages or any of that. It only applies to those two issues. It doesn’t guarantee forgiveness. It still requires that the borrower provide additional information to the lender, certify how it’s reviewed, and calculate the payroll and non-payroll costs and all of those. All of the other rules still apply.”
The PPP loan application deadline ended on Aug. 8 with over $130 billion left unspent from the funds allocated to the program. House Speaker Nancy Pelosi, D-California, is continuing to negotiate with Mnuchin about reviving the program as part of a larger stimulus package, but Democrats and Republicans remain at odds over the size of the package and whether it should be piecemeal or be an all-encompassing package with relief for airlines, state and local governments, and offer another round of stimulus payments for individuals. However, demand for PPP loans from small businesses appeared to be flagging well before the deadline expired.
“They’re not really interested,” said Bain. “Most of the companies that I work with have mentioned that they’ve already taken the loan if they’re going to take the loan. That’s why there are funds left over. Because there is some exclusivity between being allowed to take certain payroll tax credits and applying for the loan, if they’ve already taken the credits, then they wouldn’t be eligible for the loan. So they’re not going to apply for the loan.”
To help small businesses cope with the recession, she recommends that accountants provide cash flow projections for them. “There are several procedures that companies go through when they’re in receivership,” said Bain. “One of them is the 13-week cash flow and those sorts of reports. That’s what I would recommend businesses look at is analyzing the business as if it were under receivership, and paying close attention to the cash flow and the forecasting from now until the end of 2020 so that they can make very high-quality decisions about how to spend their funds. And talk to a tax accountant about the tax deferrals and the estimated tax payments because the rule is either 100 percent of the tax from last year, which is probably an overestimate for most businesses this year, or 90 percent of this year. So if they’re making a 90 percent deposit for this year, many of the businesses will be OK as long as they do their very best at projecting their income. Especially for the companies that only have a $50,000 or less loan, if those expenses are not ever deemed to be deductible, then they still may have a little bit of wiggle room, depending on how much their revenue actually is.”
Businesses may also be able to take advantage of the net operating loss tax breaks in the CARES Act, which allow losses to be carried back five years.
“That is one of the big changes,” said Bain. “Now they can go back farther than before and so there will be a lot more amended returns once the losses are calculated for 2020 and even into 2021. There are many forecasts saying the market won’t recover until 2022, so 2021 will possibly be a net operating loss for many companies as well. That’s why cash flow management is so important because they may have paper losses because of depreciation and other deductions that are not cash deductions. That may help them significantly with their cash flow.”
The National Association for the Self-Employed welcomed the new SBA loan forgiveness changes. “The announcement by the Administration of a simplified process of loan forgiveness for small businesses who accessed $50,000 and less in PPP loans is an incredibly welcome sign,” said NASE president and CEO Keith Hall in a statement Friday. “We are thrilled about this new SBA and Treasury interim guidance to help small businesses during a time many of them are looking at the last quarter of estimated tax payments and year-end accounting. This newly announced guidance is a welcome step, but it can’t be the last step this year to help the American small business community who are desperate for critical relief now. Therefore, it’s imperative the Administration and Congress come back to the negotiating table and work together to provide the immediate financial relief for the American people and our nation’s small business community.”
