By Gabriel B. Herman

The $900 billion Consolidated Appropriations Act of 2021 (the Act) modifies the Paycheck Protection Program (PPP) in a variety of business-friendly ways likely to benefit both existing PPP borrowers and businesses that receive a second PPP Loan.

Specifically, the Act includes the following noteworthy changes:

Uses Eligible for Forgiveness

The Act expands on the types of expenses that PPP borrowers may use their proceeds to pay and later seek forgiveness. Notably, these changes apply to existing borrowers that have not received loan forgiveness.

Originally, PPP borrowers were eligible to seek forgiveness only for amounts spent on payroll costs, covered mortgage interest payments, rent and certain utility payments. In addition to the original permitted uses, the Act now permits PPP borrowers to seek forgiveness for the following:

  • Covered Operations Expenditures: payments for any business software or cloud computing service that facilities business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records, and expenses.
  • Covered Property Damage Costs: costs related to property damage and vandalism or looting due to public disturbances that occurred during 2020 that was not covered by insurance or other compensation.
  • Covered Supplier Costs: expenditures made to a supplier for goods that are essential to the operation of the PPP borrower at the time at which the expenditure is made, and is made pursuant to a contract, or order in effect any time before the applicable covered period or with respect to perishable goods, in effect before or at any time during the covered period.
  • Covered Worker Protection Expenditures: operating or capital expenditure to facilitate the adaptation of business activities to comply with requirements established or guidance issued by the DHS, CDC, OSHA, or equivalent state or local guidance. Examples of eligible expenses include amounts spent to purchase, maintain, or renovate indoor, outdoor, and drive-through business space, as well as personal protective equipment.

The inclusion of such additional covered costs is likely to benefit existing PPP borrowers who have not yet received forgiveness and who were previously unable to use 100% of their loan proceeds on forgivable expenses. In such an instance, existing PPP borrowers may now be able to increase the amount of loan forgiveness sought by including proceeds spent on the newly added covered expenses.

The Act does not modify the requirement that 60% of the forgiven amount be spent on eligible payroll costs.

Forgiveness Process

The Act introduces a simplified forgiveness application for PPP borrowers with loans of $150,000 or less. Such borrowers now only need to execute a one-page certification as to the number of employees the company was able to retain, the estimated amount spent on covered payroll costs and the total loan amount. Unlike previous applications, the forgiveness certification for loans of $150,000 or less will not require that PPP borrowers document how responses to certain questions were determined. Rather, PPP borrowers will only be required to self-certify as to PPP eligibility and how loan proceeds were used. PPP borrowers will remain obligated to comply with certain record-keeping requirements including the need to retain employment and payroll records for four years. PPP borrowers should be aware that the SBA reserves the right to audit the forgiveness certification. Congress has instructed the SBA to release the forgiveness certification within seven days of the Act becoming law.

The Act does not alter the Loan Necessity Questionnaire (form 3509) required to be submitted by each PPP borrower that, together with its affiliates, received a PPP loan in the original principal amount of $2 million or more.

Tax Treatment

Reversing prior IRS rulings, the Act confirms that: (1) the amount of loan forgiveness will not be considered taxable income and (2) deductible expenses paid with forgiven PPP proceeds will remain tax-deductible.

In IRS Revenue Ruling 2020-27 issued earlier this fall, the IRS stated that expenses paid with forgiven PPP proceeds typically would not be deductible. The Act overrides that Revenue Ruling and provides that the expenses are deductible, despite the fact that the loan proceeds are not includable in income. This change is retroactive and applies to all PPP borrowers, whether forgiveness has or has not been granted.

EIDL Changes

The Act makes clear that EIDL grants are not taxable income and businesses will not forgo a tax deduction for qualified expenses paid for with EIDL funds. In addition, the Act repeals the prior requirement that an EIDL grant would reduce the amount of PPP forgiveness. The SBA is expected to issue guidance as it relates to borrowers that have already received loan forgiveness and whose forgivable amount was reduced by the amount of its EIDL grant.

Due to the historically changing nature of the PPP, we encourage all existing PPP borrowers, and businesses interest in borrowing under the PPP Second Draw, to continue to monitor Fox Rothschild’s Coronavirus Response Resource Center for future updates.