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IRS Notice 2020-22 Offers Guidance on Retaining Withheld Taxes in Anticipation of Payroll or Employee Retention Tax Credits

IRS Notice 2020-22, issued on March 31, 2020, offers guidance with respect to the payroll credits under the Families First Coronavirus Response Act sections 7001 or 7003, or the employee retention credit under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act section 2301 for avoiding a failure to deposit penalty under section 6656 (“Section 6656”) of the Internal Revenue Code of 1986, as amended (“Code”).  The refundable tax credits, respectively, were intended to refund certain employers for required paid leave provided to employees due to coronavirus, or for wages to businesses suspending operations or incurring significant reductions in gross receipts due to COVID-19-related restrictions.  Both tax credits are capped at $10,000 per employee and expire on December 31, 2020.
An employer would not incur a Section 6656 penalty generally if the amount of withheld taxes not deposited is less than or equal to the amount of the payroll credit, to which the employer is entitled. The second requirement for waiver is that the employer has not filed IRS Form 7200 for an advance of the credit. Thus, the amount of credit for which an employer ultimately is eligible may be lower than anticipated. In that case, an employer that retains withheld taxes in the maximum amount of expected payroll credit may be liable under Section 6656. In addition, the employer would be subject to recapture of credit. In this instance, considering the respective benefits of retaining withheld taxes or seeking an advance of the payroll credit may be advisable.  Employers, the operations, workforce and revenues of which were affected by COVID-19 may consult with a tax advisor to determine eligibility for each of the tax credits and optimal method for claiming the credits or refunds of the excess credit where there is insufficient payroll tax liability.


Marina Vishnepolskaya’s practice focuses on domestic and cross-border tax and employee benefits matters. She counsels employers and executives on a wide range of employee benefits and executive compensation matters, including drafting and amending salary, bonus, cash and equity-based deferred compensation plans, fringe benefit plans and other compensation arrangements, employee policies and handbooks, employment and separation agreements, compliance with IRS voluntary plan correction requirements for nonqualified plans and related employment and tax laws.









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