One of the most important benefit of CARES Act is the Employee Retention Credit. Much like the rest of the Act, this credit was designed to support the economy and more specifically employment during the Pandemic. The benefit is powerful as it allows for up to 70% of eligible wages to be reimbursed as a credit for 2021. What that means is that IRS will treat up to 70% of eligible wages AS IF YOU HAD overpaid employment taxes and refund them as a credit (or apply them to future quarters). There is a wealth of information available on this topic, and IRS has published four notices expanding on it.
Unfortunately, the main IRS site still does not reflect correct information and there is a disclaimer on the site that effect. This post is not meant to explain the credit or its workings. That information is presented in the IRS Notice https://www.irs.gov/pub/irs-drop/n-21-20.pdf with quite some depth. This post is focused on one specific issue around attribution rules.
As written, for closely held businesses (most small businesses), there are specific rules that disallow wages of relatives of owners to be used as qualified wages. So, wages of a siblings, children, nieces, nephews, in-laws and grand parents are not allowed to be used as qualified wages. So far this is all logical, and makes sense, where it leaves logic is in what follows. One celebrated curiosity of law as written is that spouses are not attributed ownership interest, meaning if husband and wife each own 50% interest, there interest is NOT attributed to each other and their wages are qualified wages for reimbursement credit. HOWEVER, if they have a child, even if that child is a three month old baby, (who clearly does not draw any wages from the business), both husband and wife's share is allocated to the child, making the child a 100% owner for purposes of this analysis, and lo and behold, the now both husband and wife's wages are ineligible. As crazy as this sounds, that happens to be current status of the law and IRS position. IRS is aware how absurd this outcome is, and is hoping that Congress will fix it, however, it is not clear if Congress is aware how absurd this outcome is or will care enough to fix it. Until enough people become aware and campaign Congress, this crazy situation is unlikely to get fixed, and this "Child Penalty" will stay!
- For reference, steps involved in claiming the credit are different, depending on whether the credit is claimed prospectively or retrospectively. The simplest method is prospective at the time of filing the 941, and is generally as follows (assuming the business qualified based on one of criteria given):
- Determine the non-refundable portion of the credit (which basically for 3Q 2021 will work out to be half of medicare tax) based on worksheet 4 included in the form
- Determine the eligible wages - which should be the reported social security wages in general (adjusted for other credits or disallowed wages)
- Credit is 70% of eligible wages, and since it will exceed taxes owed, requesting a credit of overpayment
- Note: Excess credit is considered overpayment EVEN THOUGH it was never actually paid. Thats just the mechanism congress created to make payments