Infrastructure Investment and Jobs Act to Terminate Employee Retention Tax Credit Back to October 1, 2021

November 12, 2021

After passing the House, the new Infrastructure Investment and Jobs Act is expected to be signed by the President on Monday, November 15th. The new bill – containing provisions for disaster relief, capital contributions to public utilities, excise taxes, and pension interest rates – also includes the termination of the popular Employer Retention Tax Credit (ERTC) created by the Coronavirus Aid, Relief and Economic Security (CARES) Act in March of last year.

How has the IIJA changed the ERTC?

  1. The ERTC, which originally was available for all of 2021, was retroactively terminated by the IIJA to apply only to wages paid before October 1, 2021 unless the employer is a recovery start up business. Thus, for wages paid in the fourth calendar quarter of 2021, (a) the credit applies only to recovery startup businesses and (b) other employers can not claim the credit.
  2. In connection with the continued availability of the ERTC for recovery startup businesses in the fourth quarter of 2021, the IIJA also modified the definition of a recovery startup business so that a recovery startup business is one that (i) began operating after February 15, 2020, and (ii) has average annual gross receipts of less than $1 million. The pre-IIJA prerequisite that a recovery startup business must not have otherwise met the requirements for an eligible employer qualifying for the ERTC, i.e., having experienced a significant decline in gross receipts or having been subject to a full or partial suspension under a government order, no longer applies. Thus, because of the modified definition, an employer that was not a recovery startup business in the third quarter of 2021 might qualify as a recovery startup business in the fourth quarter of 2021 and be able to claim the ERTC for the fourth quarter of 2021.

How do the new ERTC changes impact my business?

If you retained payroll taxes in anticipation of receiving the ERTC based on post-September 30, 2021 payroll taxes, you will need to determine how and when to repay those taxes and address any other compliance issues. We anticipate that the IRS will issue guidance to assist employers in handling any compliance issues.

ERTC Prior to IIJA

Prior to this latest modification, eligible employers for the ERTC could claim the refundable credit against the employer’s share of Medicare (1.45% rate) taxes equal to 70% of the qualified wages paid to each employee (up to a limit of $10,000 of qualified wages per employee per calendar quarter) in the third and fourth calendar quarters of 2021. For the third and fourth quarters of 2021, a recovery startup business is an employer eligible to claim the ERTC.

Under pre-IIJA law, a recovery startup business was defined as a business that (1) began operating after February 15, 2020, (2) had average annual gross receipts of less than $1 million and (3) didn’t meet the eligibility requirement, applicable to other employers, of having experienced a significant decline in gross receipts or having been subject to a full or partial suspension under a government order. However, recovery startup businesses are subject to a maximum total credit of $50,000 per quarter for a maximum credit of $100,000 for 2021.

If you have additional questions or concerns about how the retroactive termination of the ERTC will affect your business, please contact us and we would be happy to assist you.

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