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IRS - Employee Retention Credit Claims Fraud Warning

The IRS has warned employers to be wary of third parties who are taking improper positions related to taxpayer eligibility for and computation of the Employee Retention Credit (ERC) and are advising them to claim ERC when they may not qualify. The ERC is a refundable tax credit designed for businesses who continued paying employees during the shutdown due to the COVID-19 pandemic or had significant declines in gross receipts from March 13, 2020, to December 31, 2021. If the business filed an income tax return deducting qualified wages before it filed an employment tax return claiming the credit, the business should file an amended income tax return to correct any overstated wage deduction. The third parties also often charge large upfront fees or a fee that is contingent on the amount of the refund and may not inform taxpayers that wage deductions claimed on the business’ federal income tax return must be reduced by the amount of the credit.

The IRS has reminded employers that, to be eligible for the ERC, they must have:

  • Sustained a full or partial suspension of operations due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings due to COVID-19 during 2020 or the first three quarters of 2021.
  • Experienced a significant decline in gross receipts during 2020 or a decline in gross receipts during the first three quarters of 2021: or
  • Qualified as a recovery startup business for the third or fourth quarters of 2021

Further, the IRS has announced that, only recovery startup businesses are eligible for the ERC in the fourth quarter of 2021. Additionally, for any quarter, eligible employers cannot claim the ERC on wages that were reported as payroll costs in obtaining PPP loan forgiveness or that were used to claim certain other tax credits.