חוק הסיוע הכלכלי למשבר הקורונה האמריקאי, איך זה נוגע לכם?

מאת: רועי סער

בעבור: בעבור 'בלוג הקורונה' של מטה החדשנות


הממשל הפדרלי אימץ השבוע חבילת סיוע למשק האמריקאי ואישרה כחוק: בתוכנית יוענקו הלוואות, מענקים, הקטנת תשלומים ודחיית מיסים, יחד עם הרחבות פיסקליות נוספות, בשווי של 2 טריליון דולר (2,000 מיליארד דולר). החוק נקרא CARES ACT :

Coronavirus Aid, Relief and Economic Security (CARES) Act

בין ההטבות המובילות הינן:


הלוואות לעסקים קטנים, כאשר חלקן הופכות למענק בהמשך !! - (SBA 7(a

הלוואות באיזורים מוכי קורונה (כדוגמת ניו יורק) – EIDL loans

זיכוי כנגד תשלום מס הכנסה מעסיקים - EMPLOYEE RETENTION CREDIT )(SECTION 2301

דחיית תשלום מס הכנסה מעסיקים - PAYROLL TAX DEFERRAL


בהמשך, סיכום של שאלות ותשובות שנערכו ע"י דיויד פרנקל – Founder Collective , אשר מקילות על התמצאות בנבכי 880 העמודים של החוק. בכל מקרה, יש להיעזר באיש מקצוע אמריקאי לפני נקיטת צעדים. בתקווה בקרוב אצלנו...


CARES Act FAQ


By David Frankel -Founder Collective

This law is gigantic. The text is 880 pages long. What should I focus on now?

  • SBA 7(a) loan program

  • Economic Injury Disaster Loans (EIDL Loans)

  • Employee retention payroll credit

  • Deferment of employer social security tax payments

1. SECTION 7(A) LOANS


What are the basic terms of the SBA 7(a) loans? (More detailed descriptions can be found here.)


  • Size guidelines: Borrower must meet SBA guidelines for what constitutes a small business: 500 employees or less, revenue below certain limits set by industry (NAISC code).

  • Affiliation rules currently apply, which is a totality of the circumstances test to determine if shareholders have sufficient control rights such that their affiliates will be considered along with the borrower. (Lobbying is underway to fix this issue for VC and PE backed companies.)

  • Amount of loan is tied to borrower’s average total monthly payroll costs incurred during the one-year period during which the loan is made. The max loan amount is 2.5 times that average monthly payroll cost or $10 million, whichever is less.

  • Interest rate of not more than 4%. Loan term of up to 10 years for amount not forgiven.

  • No collateral or personal guarantees are required. Creditworthiness requirements have been eliminated.

  • 100% federally guaranteed.

  • CAREs provides complete loan deferment of principal, interest, and fees for 6-12 months.

  • Applications will be made through approved third-party SBA lenders.

What can 7(a) loans be used for?


  • Payroll costs

  • Costs related to continuation of certain employee benefits (healthcare plans, insurance, family leave, etc.)

  • Employee salaries, commissions, or similar compensation

  • Mortgage payments

  • Rent payments

  • Utilities

  • Interest on debt incurred before 2/15/2020.


What portion of 7(a) loans can be forgiven? Loans are eligible for forgiveness up to the amount spent by the borrower during an 8-week period after the origination date of the loan on:


  • Payroll costs

  • Interest payments on any mortgage incurred prior to 2/15/2020

  • Payment of rent

  • Payment of utilities

There are certain limitations on the amount that can be forgiven:

The amount eligible for forgiveness will be reduced proportionately by the number of employees laid off during the 8-week period beginning on the origination date of the loan relative to employment levels in prior periods specified in the law. The reduction also applies to salary reductions of greater than 25%.

Can I still get loan forgiveness if I have already laid off employees?

Yes. Borrowers that re-hire employees by June 30, 2020 that were previously laid off will not be penalized for having a reduced payroll at the beginning of the period.

Can I still get loan forgiveness if I have already reduced salaries or wages?

Yes. Borrowers that remedy reduced salaries or wages by June 30, 2020 will not be penalized for having reduced salaries or wages for one or more employees at the beginning of the period.

Can I still apply if I implement a RIF?

Yes. The eligibility requirements do not inquire into whether a company conducted RIFs or other employment actions. However, as discussed above, the amount of the loan that is eligible for forgiveness is reduced if RIFs are made and employees are not rehired by June 30, 2020.

Can I apply for a 7(a) loan and an EIDL loan?

Yes, but you cannot receive an EIDL loan and a 7(a) loan for the same purpose. If you have already received an EIDL loan, the purpose of that loan cannot be included in your application for a 7(a) loan.

I don’t know if I will be eligible for a 7(a) loan because of the affiliation rules. Should I apply?

There’s no harm in applying, unless you conclude that the payroll tax credit and payroll tax deferments are more valuable. (See below.) Notwithstanding the fact that the SBA may eventually issue rules waiving application of the affiliation rules, there are cases where VC investment will not trigger the rules, and there is a sense that some lenders may be pragmatic and not inquire into affiliation status at loan origination. Be careful, however, to answer all loan application questions truthfully. A team of lawyers is working with NVCA to develop guidance on some bright line rules and arguments that applicants can make to establish that the affiliation rules do not apply to them. That will be added here when it is ready.

2. EIDL LOANS


What are the basic terms of the EIDL loans? (More detailed descriptions can be found here.)


  • Size guidelines: Borrower must meet SBA guidelines for what constitutes a small business: 500 employees or less, revenue below certain limits set by industry (NAISC code).

  • Affiliation rules currently apply, which is a totality of the circumstances test to determine if shareholders have sufficient control rights such that their affiliates will be considered along with the borrower. (Lobbying is underway to fix this issue for VC and PE backed companies.)

  • Borrower must be located in a declared disaster area.

  • Borrower must have suffered “substantial economic injury” as a direct result of the declared disaster.

  • Amount of loan is up to $2 million.

  • Interest rate is 4%, except the rate is 3.75% for “small business concerns” and 2.75% for nonprofits.

  • The term of EIDL loans is not to exceed 30 years but will be determined by the borrower’s ability to repay.

  • CAREs act waived the requirements for personal guarantees for loans of $200,000 or less. Collateral could be required for loans above $25,000. Other creditworthiness requirements have been eliminated.

  • No federal guarantee. No deferment provided in CARES Act.

  • Applications made directly to the SBA.


What portion of EIDL loans can be forgiven?


  • There is no loan forgiveness program for EIDL loans.

  • Under the CARES Act, certain fast grants of up to $10,000 made to certain applicants do not have to be repaid.


Do the affiliation rules apply to EIDL loans?


Yes.


What can EIDL loans be used for?

  • Working capital to carry the business until resumption of normal operations.

  • Expenditure necessary to alleviate the specific economic injury, but not to exceed that which the business could have provided had the injury not occurred.

  • Providing sick leave to employees because of COVID-19.

  • Maintaining payroll to retain employees.

  • Paying increased costs to obtain materials unavailable from normal sources because of interrupted supply chains.

  • Making rent or mortgage payments.

  • Repaying obligations that cannot be met due to revenue losses.


Are there expenses EIDL loans cannot be used for?

Yes. EIDL loans cannot be used to:


  • Refinance indebtedness incurred prior to the disaster event.

  • Repair physical damage.

  • Pay, directly or indirectly, tax penalties or liability for negligence or fraud.

  • Pay dividends or disbursements to owners.



3. EMPLOYEE RETENTION CREDIT (SECTION 2301)

What is this tax credit

It provides a refundable credit against payroll taxes for 50% of wages paid by employers during the COVID-19 crisis. The credit is available to employers whose (1) operations were fully or partially suspended due to a COVID-19-related shut down order, 0r (2) gross receipts declined by more than 50 % when compared to the same quarter of 2019.

What wages are included in the credit?

The credit is based on qualified wages paid to the employee. For employers with greater than 100 full-time employees, qualified wages are wages paid to employees when they are not providing services due to the COVID-19 shut down. For eligible employers with 100 or fewer full-time employees, all employee wages qualify for the credit. The credit is for the first $10,000 of compensation, including health benefits, paid to an eligible employee between March 13, 2020 through December 31, 2020.

Can I receive the retention credit if I take out 7(a) loan?

No. If you take a 7(a) loan, you cannot also take the payroll tax credit. There is a question about whether employers can begin to claim the credit now since it will take some time to learn if they qualify for a 7(a) loan. The NVCA has asked the Treasury Department to permit a 60 day grace period to repay such taxes if employers elect to take the credit now and later receive a 7(a) loan.

4. PAYROLL TAX DEFERRAL


What is covered?

The CARES Act defers the payment of payroll taxes due from the period beginning on March 27, 2020 until December 31, 2020. The 6.2% OASIS portion of payroll taxes incurred by employers are deferred. Half of the deferred taxes are due on December 31, 2021, with the remainder due on December 31, 2022.

Can I defer taxes if I take out a 7(a) loan?

No. The law says that you cannot defer taxes if you receive forgiveness of the 7(a) loan. There is a question about whether employers can begin to defer taxes now since it will take some time to learn if they qualify for a 7(a) loan. The NVCA has asked the Treasury Department to permit a 60 day grace period to pay such taxes if employers elect to defer now and later receive a 7(a) loan.

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