- Payments by an employer to independent contractors (in FAQ 15, the SBA made it clear that because independent contractors may apply for their own PPP loan, they are not includible in an employer’s PPP payroll costs for loan application purposes or for the purpose of loan forgiveness).
- Salary and wages paid to an employee in excess of $100,000 computed on an annualized basis.
- Wages paid to employees under the Expanded Family Medical Leave Act and Emergency Paid Sick Leave Acts (both contained within the Families First Coronavirus Response Act (FFCRA)) for which the employer receives the credits provided by the FFCRA.
Are there limits of the compensation allowed to be forgiven?
The PPP Loan Forgiveness Application instructions clarify that the exclusion of salary and wages paid in excess of $100,000 on an annualized basis means the maximum amount of salary and wages that can be included for an individual employee for the Covered Period is $15,385 ($100,000 ÷ 52 × 8 = $15,385). This limit only applies to salary and wages. It does not apply to an employee’s allocable share of group health care benefits and retirement benefits.
If the minister’s housing allowances were not calculated at the time of the initial PPP loan application, can I still include it as part of my loan forgiveness application?
Minister’s housing allowance has been deemed by the SBA both allowable and forgivable. Even if you didn’t include that as part of your calculation, you can’t add it, but it is forgivable.
Can I pay special bonuses to increase payroll expenses?
Any expenses created solely for the purpose of loan forgiveness (e.g. special bonuses) would not be included and approved. The intent by the SBA is not for you to use the money to create ad hoc compensation events for the singular purpose of maximizing loan forgiveness.
How do I measure the covered period of the PPP loan funds?
The SBA is literally talking about eight weeks or 56 days. That measurement is very specific and is different than a general two-month time calculation.
Is mortgage interest forgivable?
Mortgage interest is includible so long as the mortgage giving rise to the interest was in place on February 15, 2020. Only interest is includible, not the principal payment portion of your mortgage payment or any prepayment of principal or interest. In addition to real property mortgages, the Third Interim Final Rule makes it clear that interest on a loan secured by equipment (e.g., an automobile, office equipment, manufacturing equipment) is an eligible expense.
Is rent forgivable?
Rent is includible so long as the rental agreement was in place on February 15, 2020. This includes rent on real property and rent paid for the rental of equipment. The SBA has yet to provide clarity as to whether payments for certain services billed by a landlord along with rent (e.g., property insurance) and sales tax are includible. While the SBA has not addressed this specific question, it is our belief that rent must be paid to a third party.
Are utility expenses such as phone and internet not in the organization’s name forgivable?
Utility expenses can include electricity, gas, water, transportation, telephone (assuming it is in the organization’s name), and internet access. The utility service must have been in place on February 15, 2020. The SBA has yet to provide a definition of what is includible in transportation costs. Further, the SBA has not stated whether sewer service, trash collection, cellphone allowances for bring-your-own-device programs, or allowances for home internet service supporting work-from-home environments are allowable expenses. Payments for church parsonage utilities have not been addressed in specific SBA guidance. It would appear that a reasonable argument could be made that these utilities are either part of the cash compensation paid to a minister (in which case they would count as payroll costs in satisfying the 75% payroll cost threshold) or as the payment of utilities on church property.
When are payroll costs incurred?
Payroll costs are “incurred on the day the employee’s pay is earned.” Thus, if the Covered Period begins mid-pay period, only pay related to the days in the pay period that are also within the Covered Period are includible in payroll costs. To accommodate the fact that the Covered Period may end midway through a pay period, the instructions provide that all pay earned between the last pay period before the end of the Covered Period and the end of the Covered Period is includible in payroll costs and “eligible for forgiveness if paid on or before the next regular payroll date."
When are payroll costs paid?
Payroll costs are considered paid on the day that paychecks are distributed, or the Borrower originates an ACH credit transaction. This means that payroll is paid on the date when it is paid to employees and not on the date that funds are remitted to a payroll processing firm.
Is there an alternative payroll covered period?
The Alternative Payroll Covered Period begins on the first day of the first pay period that commences after the first PPP loan disbursement. As explained in the instructions: If the Borrower received its PPP loan proceeds on Monday, April 20, and the first day of its first pay period following its PPP loan disbursement is Sunday, April 26, the first day of the Alternative Payroll Covered Period is April 26 and the last day of the Alternative Payroll Covered Period is Saturday, June 20. If the Alternative Payroll Covered Period is selected, it must be used consistently for all payroll-related calculations throughout the application. The Alternative Payroll Covered Period is only applicable to payroll costs; it is not permitted for non-payroll costs. The Alternative Payroll Covered Period will simplify some of the payroll cost-related computations, but it will not alleviate issues with payroll paid in arrears. If the Alternative Payroll Covered Period is selected, pay would have to be earned during the Alternative Payroll Covered Period to be incurred within the Alternative Payroll Covered Period.
How are Nonpayroll-Related Costs handled?
The third way in which the SBA has responded to concerns regarding the Covered Period is to permit the inclusion of nonpayroll-related costs in forgivable expenditures so long as they are “incurred during the Covered Period and paid on or before the next regular billing date, even if the billing date is after the Covered Period.” In addition, the instructions state that nonpayroll costs “paid during the Covered Period” are includible but fail to reference whether such costs must have been incurred during the Covered Period. This seems inconsistent with the statute and you should wait to see if the SBA addresses this question in further guidance.
What happens if I fail to spend 75% of the loan on payroll-related expenses?
It is clear from the PPP Loan Forgiveness Application that a failure to use at least 75% of your loan proceeds for payroll costs will not result in the total forfeiture of loan forgiveness. It will only reduce the amount that will be forgiven.
What is the salary and wage reduction amount?
The Salary and Wage Reduction Amount considers whether an employee’s annual salary or hourly wage during the Covered Period declined by more than 25% when compared to the period beginning on January 1, 2020, and ending on March 31, 2020 (the most recent full calendar quarter before the Covered Period). If so, there will be a reduction in loan forgiveness.
How will FTE’s impact employee count?
The full-time equivalent reduction quotient (FTERQ) is an adjustment to the loan forgiveness amount. The FTERQ is computed on Schedule A using Lines 11 through 13. The FTERQ is computed by dividing the total average FTEs during the Covered Period by the total average FTEs during a reference period.
What is the FTE Reduction Safe Harbor?
The CARES Act provides a safe harbor for employers who decreased their FTE headcount at the outset of the COVID-19 pandemic and then restored headcount by June 30, 2020.
How does the receipt of an EIDL loan, impact PPP loan forgiveness calculations?
If you did receive an EIDL loan, it will be subtracted from your forgivable amount.
How long do I need to maintain documentation related to the PPP loan application and the forgiveness process?
It is a great idea to not only prepare your documentation for loan forgiveness now, but you will also want to keep this documentation to refer back to this process in the future. Documentation will be a mandatory part of the loan forgiveness application.
What major questions remain unanswered?
The PPP Loan Forgiveness Application and instructions fail to address every question. For example, questions remain regarding:
- Whether it is permissible to include the cost of buying back accrued vacation in forgivable payroll costs.
- If PPP loan proceeds can be used to make special, unscheduled employer retirement plan contributions, and whether such retirement plan contributions are includible in forgivable payroll costs.
- Whether a portion of rent paid in advance of the Covered Period for time periods contained within the Covered Period is a forgivable amount.
- The manner in which the normal cessation of operations of preschools and schools before the conclusion of the Covered Period impacts the headcount reduction factor and salary/wage reduction amount. In addition, the effect of an eight-week (56-day) covered period on includible payroll costs makes it clear that two full months of pay will not be forgiven since only pay earned during the Covered Period is forgivable.
