Paying the Price for Vice: The Evolving Landscape of Excise Taxes in America

While excise or vice taxes have long been a part of the American tax landscape related to alcohol and cigarettes, the recent invention of vaping and legalization of marijuana and other substances is changing the landscape.

What Are Excise Taxes?

Excise taxes are taxes on specific types of consumable products such as alcohol or tobacco for one of two reasons. First, as vice taxes in order to raise revenue to cover the costs related to consumption; and second, to deter consumption itself. Unlike other types of consumption taxes such as sales tax, these are specific to certain products.

Do They Change Behavior?

Theoretically, when you increase the price of a product such as alcohol through the addition of excise taxes, demand should go down. While this may be a deterrent and limit demand, excise taxes certainly haven’t proven to be a feasible way to eliminate behaviors. A pack of cigarettes can cost upward of $15 in major cities, but there are still people smoking. It’s a similar situation with drinking and gambling.

It’s All About the Benjamins

While we think of excise taxes as vice taxes today in many respects, the main point isn’t to change behavior – it is to raise revenue. Excise taxes pre-date the United States and were one of the main forms of government funding in America before income tax was created. Alcohol taxation goes back to George Washington’s presidency and incited the infamous Whiskey Rebellions. Cigarette taxes were introduced as a way to pay for the Civil War. In the end, it’s about the money generated as there are easier and more effective ways to regulate behavior.

New Products Equal New Taxes

The legalization of marijuana by states raises the issue of excise taxes on this product. Unlike tobacco, where one of the goals is to decrease consumption, the situation here is more one of legalizing something to raise consumption and generate revenue as a result.

Marijuana taxation is more akin to alcohol in the years following prohibition. In both cases, you have large-scale illegal operations and illicit consumption with the aim of moving them to legitimate status. In this sense, it’s different than other vice taxes. 

Initially, at least, the authorized market will have to operate in parallel with the black market for the same product, limiting the amount of taxes that can be raised when there is still an unregulated and untaxed alternative.

Beyond Marijuana

Aside from marijuana, there are other new products that could be taxed and generate revenue, the most notable being vapor products. While vaping products are not really that new, the market is just growing to a substantial size.

Taxing vaping products is more complicated and problematic. Some consider these products to be just as harmful as cigarettes, while others not so much. There is evidence that nicotine consumed via vaping is less harmful than through smoking cigarettes.

Theoretically then, the government should apply less taxes as a result if the harm and therefore cost to society is less.  The problem with this is that less revenue is raised. As noted before, we come back to the issue that vice taxes are often revenue-raising tools disguised as public safety measures.

Too Successful For Its Own Good

Vice taxes can be too successful, with tobacco as the best example. While people may stop buying cigarettes, they don’t stop consuming cigarettes; instead, they buy them elsewhere.

For example, more than 50 percent of cigarettes consumed in New York are purchased out of state. If you push too far, people will react.

Conclusion

Excise and vice taxes are here to stay. While varying arguments can be made that they benefit society by shaping behaviors, it is undeniable that state, local and the federal government are addicted to the revenue generated.

2021 Social Security Tax and Benefit Increases Announced

The Social Security Administration recently announced 2021 increases to both benefits and the taxable wage base for FICA taxes.

Increases Announced for 2021

Workers are facing a 3.7 percent increase in the taxable wage base subject to Social Security taxes, increasing the amount from $137,700 up to $142,800. This means high earners who make as much as or more than the taxable wage base will pay $8,853.60 of the employee withholding portion or $17,707.20 in total for the self-employed – who pay both employee and employer portions of the tax.

Retirees receiving benefits will only garner a 1.3 percent cost-of-living (COLA) raise in 2021, resulting in a raise of $20 per month for the average single beneficiary and $33 per month for the average retired couple. COLA increases for beneficiaries have been low for a long time, with several years seeing zero increases in the past decade or so. You can see the historic trend of COLA increases in the chart below, going back to 1975.

Historical Social Security COLA Increases1
Year Increase Year Increase
2020 1.3% 1997 2.1%
2019 1.6% 1996 2.9%
2018 2.8% 1995 2.6%
2017 2.0% 1994 2.8%
2016 0.3% 1993 2.6%
2015 0.0% 1992 3.0%
2014 1.7% 1991 3.7%
2013 1.5% 1990 5.4%
2012 1.7% 1989 4.7%
2011 3.6% 1988 4.0%
2010 0.0% 1987 4.2%
2009 0.0% 1986 1.3%
2008 5.8% 1985 3.1%
2007 2.3% 1984 3.5%
2006 3.3% 1983 3.5%
2005 4.1% 1982 7.4%
2004 2.7% 1981 11.2%
2003 2.1% 1980 14.3%
2002 1.4% 1979 9.9%
2001 2.6% 1978 6.5%
2000 3.5% 1977 5.9%
1999 2.5% 1976 6.4%
1998 1.3% 1975 8.0%

Medical Expenses Outpacing COLA increases

Low COLA increases are putting pressure on retirees’ finances as medical expenses are rising at a much faster pace, with some believing they are given too little weight in the COLA calculation. Moreover, retirees need to consider Medicare Part B and Part D premiums.

While the official 2021 premiums are not announced yet, there are estimates out there that Part B premiums (covering doctor and outpatient services) will raise $9 per month, or approximately 6.2% percent, from $144.30 to $153.30. These are just average figures, as there are income-related surcharges that apply to both Part B and Part D drug premiums. During 2020, for example, individuals making more than $87k per year and couples filing jointly making over $174k per year began paying higher premiums for Part B and Part D than other recipients, with those at the top of the surcharge paying almost $1,000 per month for Part B premiums alone.

Income Caps on Working Beneficiaries

Finally, there are new earnings limits for workers below full retirement age (age 66 for people born in 1943 through 1954). In 2021, those who are not at full retirement age will lose $1 in Social Security benefits for every $2 they earn over $1,580 a month ($18,960 per year). After reaching one’s full retirement age, there are no earning thresholds that will impact benefits.

Conclusion

The 2021 COLA increase continues the recent trend of coming in low and putting pressure on retirees’ finances, while medical expenses continue to rise at much faster rates. As a result, retirees will see less disposable income from their benefits, while high-earning workers will see continued tax increases that outpace benefit payouts. This puts pressure on all beneficiaries of the system.

1 Starting in 1975, Social Security benefit increases have been based on cost-of-living adjustments (COLAs). Pre-1975, the benefit increases were set by legislation.

Our Top 6 Year-End Tax Planning Tips

Our Top 6 Year-End Tax Planning 2020This has been a year of economic and tax uncertainty with the impact of the COVID-19 pandemic, potential stimulus bills, and the presidential election. As a result, tax planning may be more important than usual this year. To help guide you, we will cover six year-end tax planning strategies – three for individuals and three for businesses.

Individual Year-End Tax Planning Tips and Strategies

1. Take advantage of above-the-line charitable deductions.

Unlike previous years, where taxpayers needed to itemize their deductions in order to see any tax benefit from charitable deductions, everyone can benefit on their 2020 tax return. The CARES Act created an above-the-line charitable deduction for taxpayers who don’t itemize. In order to benefit from the $300 cash contributions deduction, make sure to donate before the end of the year if you haven’t already.

2. Stimulus Check Impact

The CARES Act also created the stimulus payments of up to $1,200 per taxpayer and $500 per qualified dependent child. While the initial round of stimulus checks was based on 2018 or 2019 tax return filing information, these stimulus payments are technically pre-paid 2020 tax credits. As a result, your 2020 tax return will calculate the credit due based on your income level, and there’s nothing but good news here. If your 2020 return shows you should receive an additional credit, you can claim it on your return. But if your return shows a credit less than a stimulus check you’ve already received, there is no clawback.

3. Investment With Opportunity Zones

Congress created powerful incentives for investing in very specific geographic regions by creating special tax treatment for “opportunity zones.” Investments in opportunity zones offer taxpayers the potential to defer tax on gains until as late as 2026. Moreover, there is the potential to recognize only 90 percent of gains on investments held for at least five years; and no tax on those held for 10 years (there are other rules, but they are out of the scope of this article). As a result, investments in opportunity zones can provide tax-free potential and protect against future tax law changes.

Business Year-End Tax Planning Tips and Strategies

1. Accelerate AMT Refunds

The Tax Cuts and Jobs Act repealed the corporate Alternative Minimum Tax (AMT) and let companies claim all of their unused AMT credits in any taxable year beginning after 2017 but before 2022. The CARES Act accelerated the refund timeline, letting companies claim all their unused credits in either 2018 or 2019. For many, the most effective way to take advantage of this is to file a tentative refund claim on Form 1139, which must be done by Dec. 31, 2020.

2. Use Current Losses for Quick Refunds

The CARES Act brought back a tax provision that allows businesses to take current losses and offset them against income from prior years and receive refunds now. Net operating losses (NOLs) that are the result of 2018, 2019, and 2020 business activity can be carried five years back to claim refunds against taxes paid.

Careful consideration should be given to the strategy for claiming these NOL carry-backs because, depending on the type of business entity, your tax rate may have been higher in some of the five available years versus others. Make sure to leverage any tax rate arbitrage to maximize your benefit.

3. Payroll Tax Deduction Timing

Another provision of the CARES Act gives employers the option to postpone payment of their portion of Social Security taxes until the end of 2020. The deferred amounts are due half by the end of 2021 and 2022. This may be great from a liquidity perspective; however, depending on your business’s accounting, this could also mean a deferral of the deductibility of this expense as well. You should weigh the liquidity benefits of the deferral versus the value of a current year deduction – especially considering the accelerated NOL provisions discussed above.

Conclusion

These are just a few of the potential year-end tax planning strategies you can employ before the end of 2020. Make sure to consider these and speak with your tax advisor to see what makes the most sense for your situation.

What’s Next for a Stimulus Bill?

Covid-19 Stimulus Bill Number 2The Senate Republicans’ slimmed-down stimulus bill recently failed to materialize after receiving less than the 60 votes needed to move forward. The “skinny” stimulus bill, with a price tag of only $650 billion, was intended to be a way to quickly inject stimulus into the economy and bypass both the multi-trillion-dollar Republican HEALS Act and the Democratic HEROES Act.

The current stimulus limbo leaves millions of Americans in a position of uncertainty. Four main areas that the Senate bill intended to address but are now up in the air include a second round of stimulus checks and the impact on struggling tenants and homeowners, as well as the long-term unemployed.

Next Round of Stimulus Checks

The first stimulus bill, the CARES Act, sent more than $300 billion in stimulus checks to Americans back in March to help mitigate the effects of COVID-19 slowdowns. While this helped millions, many people’s jobs or businesses remain impaired due to the economic impact of the pandemic, and they are hoping for a second stimulus check to help them get by.

With the failure of the Senate bill and the stalemate in the House, the chances of a second round of checks continues to diminish. On the bright side, the U.S. Treasury noted it is ready to print and mail the checks as soon as something is authorized.

Troubled Tenants and Homeowners

The economic fallout from the pandemic placed many tenants and homeowners in the position of being evicted or foreclosed. The CARES Act from March placed a temporary moratorium on evictions and foreclosures, sparing millions. Following this measure, President Trump issued an executive order in August granting the CDC authority to cease evictions as a measure to prevent the spread of COVID-19. The CDC took this order and announced a stop to all evictions until the end of 2020.

For homeowners with federally backed mortgages, the CARES Act moratoriums on single-family foreclosures were also extended until the end of 2020. Moreover, many states passed laws protecting those without federally backed loans from foreclosure.

For both renters and homeowners, these protections will disappear once we enter 2021 unless the government steps in with new legislation or regulations. Keep in mind that for both renters and mortgage holders, payments are being deferred and not canceled – so ultimately, they will still need to make the payments.

Long-Term Unemployment

Millions remain unemployed due to the pandemic; without federal help, their unemployment benefits will expire soon. The CARES Act gave an additional 13 weeks of benefits on top of the initial 26 weeks of unemployment insurance benefits; however, for those impacted on the front-end of the pandemic, these extended benefits will expire at the end of November.

The Senate bill included $300 per week of benefits through the last week of 2020; however, with this failing and without additional aid to state funds, the long-term unemployed won’t have anything to rely on if Congress does nothing.

Conclusion

Democrats responded with a smaller version of their original second-round stimulus bill, coming in a price tag of $2.2 trillion, down from the original $3.4 trillion. This is likely too high a price tag still to garner Republican support. If nothing happens before the mid-October recess, then we will all be waiting until after the Nov. 3 election.

3 State Level Tax Hikes That Might Be Coming Due to COVID-19

No surprise, but Americans are consuming and spending less since the coronavirus kicked in.  Retail sales dropped to 8.7 percent in March, the largest month-over-month decline since the Census Bureau started tracking this data. Previously, the sharpest decline was less than half this – at 3.9 percent from October 2008 to November 2008, during the previous economic crisis. The reduction in consumer spending is due in part to lockdowns, spending more time at home for fear of the virus, and the economic impact – whether it’s losing a job, reduced hours, or in anticipation of tougher times ahead.

While consumer spending is down at a net level, there appear to be some winners and some losers in the post-COVID world of staying in and working from home. Restaurants and apparel are the hardest hit, whereas online retailers, home, garden, grocery, and alcohol sales are all up.

The decline and shift in consumer spending are having a strong negative impact on state sales tax revenues. Nationwide, sales taxes account for approximately 20 percent of all state revenue, so the decline in consumer spending will have a material impact on state budgets. As a result, states are looking at new ways to generate or increase revenue to offset the trend. Below we’ll look at three ways states are looking to raise taxes to make up for holes in their budgets.

Grocery Staples 

Eating out less and working from home mean Americans are spending more at the grocery store; approximately 13 percent more year-over-year, per Census data. The issue for states is that groceries are generally not taxed or low-taxed, although there are a few items that apply the full tax rate.

Kansas, for example, applies the full sales tax rate to groceries. The consequence of this is that grocery sales make up about 15 percent of Kansas’ total sales tax revenue. The consequence of this policy is that the state’s sales tax revenue has barely taken a hit year-to-date.

States are taking notice and may move to the trend of taxing groceries as a way to recover part of their declining sales tax revenues.

Digital Taxes

Another trend is the increase in streaming services and one-time rentals/purchases of digital goods for entertainment and working at home. Currently, 22 states tax streaming services, and 30 states tax digital goods. Other states will look to start taxing these services as well, and digital taxes will start to expand into cloud storage and other services as more people work remotely.

Sin Taxes

Sin taxes are taxes on goods and services that are “bad” for us; think alcohol, tobacco, gambling, and marijuana (where it’s legal). Increases in sin taxes are generally easier to pass as they don’t apply to the overall general population and politicians can play the moral angle.

During the last recession, for example, lawmakers in more than 12 states increased tobacco and liquor taxes. Newer sin taxes are being instituted, such as those on vaping equipment and supplies.

Conclusion

The exact form and structure will vary, but one thing is certain: States will institute or increase taxes in areas where the money is being spent to ensure their sales tax revenue remains stable. 

R&D Tax Credits May be Part of the Next Tax Relief Bill

As the economic impact of COVID-19 lingers and an impending second wave is on everyone’s mind, Congress is already thinking of new legislation to stimulate the economy. One of the ideas on the top of the list is an expansion of the Research and Development (R&D) tax credit as part of the next COVID-19 relief bill.

Proposals for the R&D Tax Credit

There are numerous proposals for changing the R&D tax credits. It is seen as an investment in the U.S. economy, with some believing the credit is an effective tool to combat offshoring. Some of the main proposals for changes to the R&D tax credit include:

  • Doubling the current credit
  • Giving businesses the ability to immediately use the credit instead of having carryforward credits
  • Expanding the credit for domestic manufacturing
  • Increasing the refundable amount for startups

Will My Business Qualify?

The best candidates for R&D tax credit are companies that operate in the following spaces: manufacturing, architecture, engineering, construction, software, life sciences and medical devices. The key determinate is whether your company makes or improves something; this will give you the best chance to qualify.

Contractors

There is a misconception that if your business is hired or contracted to perform work for other organizations that you cannot qualify for the R&D tax credit. This is not necessarily true; contractors (especially government contractors) can qualify if they have both economic risk and retain substantial rights as contractors.

Startups

The R&D tax credit is refundable in part (against employer payroll tax) for startups. The idea is to expand the refundability so that the credit can be offset against more than just payroll taxes and even perhaps to make it refundable (to some degree) in general. The idea here is that startups won’t be forced to carryforward credits for years and can then reinvest the cashflow to accelerate growth and jobs creation.

Internal Use Software

Internal use software is software that companies develop themselves. It can be stand-alone software or modifications to existing systems through substantial improvements, the development of add-ons or modules – the idea is to expand the space of what qualifies for the credit for internal use software. This would allow companies that traditionally wouldn’t have qualified (such as finance institutions, banks and retail stores) to now potentially be eligible.

Conclusion

This next relief package is likely to be considered prior to the summer congressional recess. Many analysts believe the bill will focus on provisions that help businesses hire back laid-off workers, retain current employees and grow over the long-term. It’s likely the R&D tax credit will play a key role in the latter objective.

R&D Tax Credits May be Part of the Next Tax Relief Bill

R&D Tax Credits, Next Tax Relief BillAs the economic impact of COVID-19 lingers and an impending second wave is on everyone’s mind, Congress is already thinking of new legislation to stimulate the economy. One of the ideas on the top of the list is an expansion of the Research and Development (R&D) tax credit as part of the next COVID-19 relief bill.

Proposals for the R&D Tax Credit

There are numerous proposals for changing the R&D tax credits. It is seen as an investment in the U.S. economy, with some believing the credit is an effective tool to combat offshoring. Some of the main proposals for changes to the R&D tax credit include:

  • Doubling the current credit
  • Giving businesses the ability to immediately use the credit instead of having carryforward credits
  • Expanding the credit for domestic manufacturing
  • Increasing the refundable amount for startups

Will My Business Qualify?

The best candidates for R&D tax credit are companies that operate in the following spaces: manufacturing, architecture, engineering, construction, software, life sciences and medical devices. The key determinate is whether your company makes or improves something; this will give you the best chance to qualify.

Contractors

There is a misconception that if your business is hired or contracted to perform work for other organizations that you cannot qualify for the R&D tax credit. This is not necessarily true; contractors (especially government contractors) can qualify if they have both economic risk and retain substantial rights as contractors.

Startups

The R&D tax credit is refundable in part (against employer payroll tax) for startups. The idea is to expand the refundability so that the credit can be offset against more than just payroll taxes and even perhaps to make it refundable (to some degree) in general. The idea here is that startups won’t be forced to carryforward credits for years and can then reinvest the cashflow to accelerate growth and jobs creation.

Internal Use Software

Internal use software is software that companies develop themselves. It can be stand-alone software or modifications to existing systems through substantial improvements, the development of add-ons or modules – the idea is to expand the space of what qualifies for the credit for internal use software. This would allow companies that traditionally wouldn’t have qualified (such as finance institutions, banks and retail stores) to now potentially be eligible.

Conclusion

This next relief package is likely to be considered prior to the summer congressional recess. Many analysts believe the bill will focus on provisions that help businesses hire back laid-off workers, retain current employees and grow over the long-term. It’s likely the R&D tax credit will play a key role in the latter objective.

HEROES ACT Can Combat Economic Downtown

The HEROES Act, otherwise known as the Health and Economic Recovery Omnibus Emergency Solutions Act, can greatly improve the benefits for the earned income tax credit (EITC) for eligible workers who don’t have children. This legislation would also help wage earners in the business-to-consumer and leisure sectors of the economy impacted severely by the coronavirus pandemic.

Looking at the HEROES Act legislation and how it would help childless wage earners, we need to examine the rules surrounding the EITC and how many additional filers may qualify. While childless students pursuing formal education are still required to be 25 for EITC eligibility, filers as young as 19 (down from 25 years old), as well as filers aged up to 67 (up from 64), are now able to apply for the childless EITC. This legislation would also increase the credit’s ceiling to $1,487, from $538.

Looking at these proposed amendments to the tax code, this would act as a one-time stimulus to the economy when the credit is disbursed to eligible filers, specifically focused on low-income wage earners. Based on a review by the Tax Policy Center, 75 percent of the benefits created by the HEROES Act legislation for the EITC would be directed toward the lowest fifth of U.S. earners. Sectors of the economy that will benefit from this effect include health care, manufacturing, construction, and professional services.

However, there is one consideration that must be taken into account, especially in periods of low economic growth. If eligible wage earners see their earnings fall, then the EITC also will become smaller. There is a possibility that the U.S. House and Senate may work together to modify this legislation to speed up or get rid of the phasing-in process, thereby correcting this flaw.   

Another piece of the HEROES Act changes how people can claim the EITC when they file their 2020 taxes. The legislation will allow filers to claim their EITC according to their 2019 or 2020 income, permitting filers to choose the tax year that gives them a more favorable credit. This takes inspiration from other tax years when victims of natural disasters were able to obtain more favorable tax credits. The HEROES Act will give this choice of tax years to all filers eligible for the EITC, not exclusively for childless workers.

Regardless of the process, this could aid in stabilizing economic conditions now or in the future, regardless of why the economy suffers. This is because this legislation would ensure a falling EITC doesn’t increase a wage earner’s overall losses.

Making this type of change to how the EITC is awarded to childless workers would give greater certainty for more predictable financial help and streamline things for legislators and government officials to distribute monies during the next economic downturn.

No matter what form this legislation ultimately takes, if and when it’s signed into law, there are other pieces of legislation containing similar amendments to the EITC found within the HEROES Act. Elements proposed for improving the EITC for eligible filers are contained within the Working Families Tax Relief Act, the Middle-Class Act, and the Cost-of-Living Refund.

IRS Questions and Answers on COVID-19 IRA and 401(k) Loans & Distributions

The CARES Act stimulus package substantially relaxed the rules around certain retirement account loan and distribution requirements, but with much confusion. As a result, the IRS recently put out a FAQ document to address the COVID-19 rule relaxation around IRA and 401(k) loans and distributions. This important information should come as welcome news for the nearly one percent of all retirement plan holders who have already taken a distribution under the new rules, according to Fidelity Investments.

Who’s eligible?

If you, a spouse or dependent tested positive for COVID-19, you automatically qualify. You also may qualify under less direct circumstances, such as experiencing economic hardship due to being quarantined, laid off, receiving a reduction in work hours, or missing work because you don’t have childcare. Business owners who are forced to close or reduce operating hours also qualify.

How Much Can I Take Out? 

COVID-19 impacted individuals can take up to $100k in distributions without paying the 10 percent penalty imposed on early withdrawals by people under 59½ years old. The $100,000 limit is the total for all the plans you have. For example, if you take $70k out of your 401(k), you can take only up to $30k out of your IRA under these rules. You will still owe taxes on the distributions as ordinary income; however, you are able to pay the taxes owed over a three-year period.

Can I Pay Myself Back?

The law also allows you to pay yourself back. Taxpayers can replace their distributions if they do so within a three-year timeframe. This means that if you take out a distribution in 2020, start to pay the taxes owed over the three-year rule and then pay back the distribution in 2022, you’ll be able to amend your 2020 and 2021 returns to get a refund, as well as not pay the tax you would have owed in 2022.

How Do Loans Work?

The maximum amount you can borrow increases from $50,000 to $100,000. You also can borrow the entire amount of your plan balance up to this limit (net of any outstanding loans). Moreover, for any loans you already have within the plan, the due date for payments due through the end of 2020 can be postponed for up to one year.

Is There Anything Else I Should Know?

Yes. First, there is more guidance coming from the IRS. Second, if you are eager to know what this formal guidance will look like, you can turn to the Hurricane Katrina relief rules from 2005 as this is what is expected will apply for the COVID-19 measures as well. Lastly, the IRS will generate a new form 8915E where taxpayers will report the repayment of COVID-19 covered distributions.

Be Right About Free Money: Potential Legal Risks of the Paycheck Protection Loan Program

Paycheck Protection Loan ProgramOne of the most important provisions of the CARES Act for small businesses is called the Paycheck Protection Program (PPP). The PPP is a $349 billion program designed to assist small businesses (fewer than 500 employees) facing financial difficulties as a result of the COVID-19 pandemic through specifically structured loans.

The loan program offers funding to cover payroll for up to eight weeks, with the intent of stemming from unemployment. These loans can be forgiven and essentially become a grant if your business meets certain criteria with no need to repay the money.

As the old saying goes, there’s no such thing as a free lunch – or in this case, free government money. There are potential legal risks that could jeopardize the forgivability of the loan.

Conditional Grants

Another way to look at the PPP loans is as conditional grants. The U.S. Small Business Administration (SBA) notes that loans will be forgiven in full if the funds are used for appropriate costs. Covered costs include payroll, mortgage interest, rent and utilities. Further, the payroll costs must account for at least 75 percent of the loan proceeds used. The employer needs to maintain or quickly rehire employees and maintain wage and salary levels in order to receive 100 percent forgiveness.

The Devil’s in the Certification Details

The loan application process requires certain certifications. Businesses that are still operating need to certify that the current economic uncertainty makes the loan necessary to keep operations going.

If this seems vague, it’s because it is. There probably isn’t a small business out there that is not facing significant uncertainty in the current climate. The problem is that the certification standard the PPP lays out is extremely subjective. As a result, with the encouragement for businesses to apply, many may do so under the impression that they will have their loan fully forgiven to only run into trouble later if they don’t meet the certification standards.

Legal Risks

By not providing any definition about the nature or extent of the required impact to operations that would make the loan request “necessary to support ongoing operations,” the SBA is making both applicants and lenders apprehensive.

Some law firms are even warning clients via their newsletters about potential legal exposure under the False Claims Act (FCA). Legal counsels are cautioning that a misrepresentation included in an application could result in FCA liability. Businesses must navigate between being as aggressive as possible to bolster their application while staying within the rules of the program.

More Certification Guidance is Needed

The government agencies involved need to provide more clear and objective guidance on the conditions needed to meet the certification requirements of the loan application process. Without clear and definable guidance as to what constitutes facing economic uncertainty, small businesses could face problems in the future.

Objective criteria such as a percentage of revenue decline or order capacity would provide a rather bright-line test and give both guidance to businesses and confidence in the process.