Implementing the Families First Coronavirus Response Act (“FFCRA”): Department of Labor Provides Updated Guidance—Part II

Implementing the Families First Coronavirus Response Act (“FFCRA”): Department of Labor Provides Updated Guidance—Part II

Since the FFCRA’s enactment on March 18, 2020, the Department of Labor (“DOL”) has made good on its promise to release guidance on the implementation the new Emergency Family and Medical Leave Expansion Act (“E-FMLA”) and The Emergency Paid Sick Leave Act (“E-PSLA”) on a “rolling” basis.

The DOL has continually released guidance in the form of its Frequently Asked Questions (FAQs) webpage, with the most recent most recent version found here, as well as facts sheets and a new required workplace poster. More substantially, the DOL published its Temporary Regulations under the FFCRA in the Federal Register on April 6, 2020.

This update provides highlights and clarifications on issues employers should know moving forward.

 

The DOL Lifted its Stay on Enforcement – The FFCRA’s paid leave provisions became effective April 1, 2020. However, the DOL had a limited stay of enforcement until April 17, 2020. The DOL is now enforcing the FFCRA. So, employers need to immediately ensure they have FFCRA policies in place and are operating in compliance with the FFCRA’s provisions. Remember, the DOL will retroactively enforce violations back to the effective date of April 1, 2020, if employers have not since remedied the violations.

Small Business Exemption—the DOL has provided further information regarding the small business exemption to the FFCRA leave provisions. An employer (including a religious or nonprofit organization), with fewer than 50 employees is exempt from providing: (a) paid sick leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons and (b) expanded family and medical leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons, when doing so would jeopardize the viability of the small business as a going concern.

A small business may claim this exemption if an authorized officer of the business has determined that:

  1. The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at minimal capacity;
  2. The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail substantial risk to the financial health or operation capabilities of the small business because their specialized skills, knowledge of the business, or responsibilities; or
  3. There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Based on the DOL’s explanation of the small business exemption, it appears an employer could grant leave to some employees but deny leave to others depending on the financial impact. Further, the DOL requires that the small businesses claiming this exemption must document the determination that it is exempt. However, there is no requirement that the employer must send this documentation to the DOL. No specified form of documentation is explained or required, just as long as the documentation establishes one of the three requisite bases for exemption listed above.

“Substantially Similar Condition”—Of the six qualifying reasons for an employee to be eligible for E-PSLA benefits, the sixth defined reason is: “The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of Treasury and the Secretary of Labor.”

However, the U.S. Department of Health and Human Services (“HHS”) has not yet identified any “substantially similar condition” that would allow an employee to take paid sick leave. This appears to be a catchall provision that provides flexibility for defining additional reasons for leave in the future. Nonetheless, the DOL states it will issue guidance explaining when an employee may take paid sick leave because of a “substantially similar condition.”

Quarantine and Isolation Clarified—For the purposes of the FFCRA, a Federal, State, or local quarantine or isolation order includes quarantine or isolation orders, as well as shelter-in-place or stay-at-home orders, issued by any Federal, State, or local government authority that causes an employee to be unable to work (or telework). However, for such an order to qualify the employee for leave, being subject to the order must be the reason the employee is unable to perform work (or telework) that the employer has available for the employee. As result, an employee cannot take paid leave under the E-PSLA due to a quarantine or isolation order if the employer does not have work for the employee to perform due to the order or for other reasons.

Concurrent Usage of FFCRA Leave and Existing Employer Leave Policies—The DOL clarified that paid sick leave under the E-PSLA is in addition to any form of paid or unpaid leave already provided by an employer’s existing leave policy. An employer may not require the employer’s provided paid leave to cover the same hours as paid sick leave under the E-PSLA.

However, an employer may require that any paid leave available to an employee under the employer’s existing policies run concurrently with the paid leave under the E-FMLA to allow an employee to care his or her child because their school or place of care closed due to a COVID-19 related reason. In this situation, the employer must pay the employee’s full pay during the leave until the employee exhausts his or her available paid leave under the employer’s policy.

Additionally, upon agreement between the employer and employee, and subject to federal or state law, paid leave provided by an employer may be used to supplement the two-thirds pay the employee may receive under the E-FMLA so that the employee may receive the full amount of the employee’s normal compensation.

Lastly, an employee may choose—but an employer cannot require the employee—to take paid sick leave under the E-PSLA or paid leave under the employer’s existing leave policy for the first two weeks of unpaid E-FMLA leave, but not both.

12-Workweek Standard applies for FMLA and E-FMLA—An eligible employee is entitled to paid sick leave under the E-PSLA regardless of the amount of leave taken by the employee under the FMLA. However, if the employer was covered by FMLA prior to April 1, 2020, the employee’s eligibility for E-FMLA is contingent upon the employees’ FMLA leave usage during the employer’s designated 12-month period. An employee may take a total of 12 workweeks for both FMLA and E-FMLA during a 12-month period. If an employee has taken some—but not all—of their 12 workweeks under FMLA during the 12-month period, then the remaining leave available can be used pursuant to E-FMLA leave.

For example, if an employee took two weeks of FMLA leave in January 2020 to recover from surgery, the employee would have 10 weeks of FMLA leave remaining. Because E-FMLA is just an expanded type of FMLA, the employee would only be entitled to take 10 weeks of E-FMLA if they are eligible. If the employer has only become covered by FMLA on or after April 1, 2020, this analysis does not apply.

Conditions for Intermittent Leave—The DOL has clarified that although intermittent leave is not specifically permitted under the FFCRA, employers may allow it by policy. But conditions apply.

Unless the employee is teleworking, once the employee begins taking paid leave under the E-PSLA, the employee must continue to take paid sick leave each day until (1) the full amount of paid sick leave provided by the E-PSLA is used or (2) the employee no longer has a qualifying reason for taking paid sick leave. This is because an employee who qualifies for E-PSLA is a vector for coronavirus and the goal of E-PSLA is to prevent the spread of the virus.

However, if the employee and employer agree, a teleworking employee can receive paid sick leave under the E-PSLA or E-FMLA intermittently. Intermittent leave can be taken in any increment provided the employer and employee can agree. For instance, an employee could work from 8:00 AM to 12:00 PM, take leave from 12:00 PM to 2:00 PM, then return to teleworking. The employee could then request two hours-worth of leave.

In fact, the DOL encourages employers and employees to collaborate to achieve flexibility and meet mutual needs and is supportive of such voluntary arrangements that combine telework and intermittent leave. However, it is important to remember if an employee no longer has a qualifying reason for taking paid sick leave under E-PSLA or E-FMLA before the paid sick leave is exhausted, the employee may take any remaining paid sick leave later if another qualifying reason occurs until December 31, 2020.

Overtime—An employee may be entitled to FFCRA paid leave for more than 40 hours in a workweek, if the employee would have normally been scheduled for more than 40 hours per workweek. However, there is not a requirement for payment for E-PSLA hours at a premium rate, or that the employee receive more than 80 hours total of paid leave under the E-PSLA.

**Shuffield Lowman anticipates changes to develop as both federal and Florida government responds to this unprecedented health emergency. We will provide updates as we are able in this developing legal situation and other COVID-19 related employment legislation that may be enacted in the coming weeks and months.

***Disclaimer: The information contained herein provides an overview of developing and ongoing legislation and does not constitute legal advice for any particular situation.

Is COVID-19 Considered a Force Majeure Event Under Landlord & Tenant Agreements?

Is COVID-19 Considered a Force Majeure Event Under Landlord & Tenant Agreements?

Landlords and tenants in commercial lease agreements are justifiably concerned about the payment of rent during the COVID-19 crisis. Tenants all over the state are finding themselves unable to pay rent, as well as other monetary obligations under their leases, either as a direct result of the virus or as a result of the various effects of the virus, and are thus left wondering whether they will be evicted from their homes or places of business. For example, the “stay-at-home” orders issued by various state, municipal, and county governments have required many businesses to shut down entirely, eliminating all of the income necessary for the business to keep up with its rent obligations. Meanwhile, many Landlords’ rely upon rent and other monetary amounts paid under the lease to pay off their own obligations, including the mortgage on the property being rented, and are understandably worried about whether they will be able to make the next mortgage payment.

For tenants, relief from upcoming rental payments may come in the form of a “Force Majeure” clause – a clause often contained in contracts, including commercial leases, which excuses performance for various “Acts of God.” However, one should strongly consider all of its various options before choosing to not pay rent and send a landlord notice of a Force Majeure event; the failure to pay rent may result in a default under the lease, which may have repercussions that outlast the current crisis.

Communicate First.
A tenant should not immediately assume that it’s facing a default under the lease simply because he or she cannot pay rent at the current rate. Instead, tenants should first reach out to their landlords and discuss options to avoid a default, such as a temporary deferment or abatement of rent obligations, or a temporary reduction in rent. Likewise, landlords should be reaching out to their lenders to discuss alternative repayment options during the crisis. Commercial lenders may often be less flexible in offering relief, but they also may not necessarily want to go through a foreclosure and take possession of a commercial property which they may not have the resources to manage, and where mortgage payments may resume shortly once things return to normal. Landlords should consider whether there are any obligations they might not be able to comply with, such as co-tenancy requirements, construction of improvements, or maintenance requirements, and negotiate relief from those obligations, as well. Ultimately, it is incumbent on all parties to work together now and avoid conflicts, which may end up far outlasting the COVID-19 crisis itself.

Consider what efforts have been taken by governments to prevent evictions or foreclosures.|
While many governmental orders restricting evictions or foreclosures have focused specifically on residential properties, other governmental entities, such as local court systems, have entered orders creating moratoriums on foreclosure actions and eviction actions that may extend to the commercial context. For example, on April 2, 2020, Chief Judge Donald A. Myers, Jr. of the Ninth Judicial Circuit in Florida, serving Orange and Osceola counties, issued an administrative order suspending all foreclosure actions and sales until May 19, 2020. Such orders do not excuse rent payments or mortgage payments, but they may provide some additional leverage for tenants in negotiations with their landlords, and to landlords in negotiations with their lenders. In general, Court System closures, which have been enacted in various counties across Florida, also provide similar relief.

Review your lease for other provisions that may provide relief from payment obligations.
For example:

  • Provisions which provide for rent abatement in the event of loss of access to building or cessation of landlord’s services;
  • Condemnation/casualty provisions if they extend to loss of use due to governmental action or other loss of access to premises;
  • Co-tenancy requirements that may permit termination of a lease or a reduction in rent if a neighboring tenant is no longer in business;

Review insurance policies.
Landlords should review their rent loss coverages, and tenants should review their business interruption coverages.

What does the Force Majeure clause say?
Force majeure clauses will only be enforced based on their specific language, which can vary greatly from lease to lease. One should take time to review and understand the force majeure clause before taking any action.

  • Many force majeure clauses in commercial leases specifically exclude payment of rent or other monetary obligations from the type of performance that will be excused. If this is the case, the Force Majeure clause may not help a tenant who cannot pay rent but may nonetheless help provide the tenant a break from other lease obligations, such as the obligation to remain in business, which may be impossible under the current circumstances.
  • What kind of events are covered? Force majeure clauses generally list the events that will trigger their effect. Common examples are natural disasters (tornadoes, floods, hurricanes, etc.), wars, riots, labor strikes, and governmental action. In the context of the COVID-19 crisis, the most important terms may be “pandemic,” “epidemic,” “illness,” or other related terms. If those terms are not listed in the force majeure clause, one may consider whether “governmental action” is listed, and whether such a triggering event has occurred considering the “stay-at-home” orders and other government-imposed restrictions which have so severely restricted what a business can do to stay afloat financially. Finally, Force Majeure clauses often contain general “catch-all” language meant to encompass any event that is “beyond either party’s control,” which could certainly cover many of the circumstances currently impacting business.

 

Why is the tenant unable to pay rent?
In order for a force majeure clause to excuse the payment of rent or other obligations under the lease, a tenant must be unable to pay rent as a result of the COVID-19 virus, governmental action, or other related circumstances beyond the parties’ control, as applicable. Some questions to ask here include: has someone at the tenant’s business contracted the illness, or has the location been in contact with an infected individual, such that the tenant will have to close its business for purposes of quarantining itself from the public? Has the tenant been ordered or mandated by a governmental entity to close its business?

Economic downturn is not a Force Majeure event – Something that has been an unfortunate result of the current circumstances has been an overall weakening of the economy and financial markets. This alone may not be a Force Majeure event that would excuse the payment of rent. This is a critical distinction for tenants who have been deemed providers of “essential services” for purposes of the “stay-at-home” orders issued by the various governmental authorities. Such tenants, such as restaurants and grocery stores, have been permitted to stay in business, but may nonetheless be experiencing financial strain due to reduced sales. In other words, their inability to pay rent may come more as a result of the economic downturn caused by the COVID-19 crisis, than as a result of the actual force majeure event (i.e. the actual virus itself, or the governmental action resulting therefrom). In that case, it is less certain whether a tenant can successfully claim force majeure.

With so many factors to take into consideration, it can be difficult deciding which avenue is the best to take. Our commercial litigation and real estate teams are here to assist tenants and landlords with navigating this financially trying time by advising our clients on their options based on the specific terms outlined in their contracts.

For more information about whether COVID-19 is considered a Force Majeure event, you can contact us here.

 

The Importance of Having an Estate Plan | COVID-19

The Importance of Having an Estate Plan | COVID-19

The COVID-19 pandemic has certainly created a great deal of stress, anxiety, fear, and questions. We live in a time where our daily normal activities have been abruptly and completely disrupted. As an estate planning attorney, I have been asked many questions about the current importance of having one’s financial and health care legal affairs in order.

Most Americans do not have an estate plan and, generally speaking, prefer to postpone or otherwise avoid plans for sickness, disability, and death. However, not having the proper documents in place can cause numerous critical issues for individuals and/or their families at an already difficult time.

There is no “one size fits all” estate plan, even in a time of crisis. That said, a few documents that most everyone should have and keep up-to-date include the following:

  1. Living Will. In the event of incapacity, a Living Will allows one to direct whether or not to withhold or withdraw certain life prolonging procedures for a terminal condition or a persistent vegetative state.
  2. Health Care Surrogate Designation. A Florida resident may designate authority to a person to make all health care decisions on their behalf in the event of their incapacity.
  3. Pre Need Guardian Designation. A Florida resident may designate who will serve as the guardian of their person and property if they are ever determined to be incapacitated.
  4. Durable Power of Attorney. A Florida resident may delegate authority to another to act on their behalf, whether or not they are incapacitated.

Those Florida residents who own assets should also have a Last Will and Testament, and perhaps a Revocable Living Trust. A resident who dies without a Will and/or Trust will have Florida law dictate how their assets are distributed. One benefit of utilizing a Trust based plan over a Will based plan is the avoidance of a court-supervised probate proceeding. There are many reasons why people plan to avoid probate, including but not limited to, privacy, cost, and efficiency. A socially devastating pandemic is just one additional reason why many Florida residents wish to avoid probate, as most court proceedings stop. Residents who require a probate process in a time of crisis must simply be patient and wait. For family members who require immediate access to financial accounts or wish to sell titled assets, patience is easier said than done. Effective Trust planning can avoid or substantially mitigate such problems.

Florida residents who have already taken action to get their affairs in order are reminded to review their documents and ensure that they are kept current, particularly in light of a divorce, new marriage, birth of a child, and/or other relevant event.

While many of us are quarantined in our homes with a bit more time on our hands, it is an ideal opportunity to put a plan in place or to review a current, possibly outdated plan. Life and death do not get put on hold and neither should planning for them. A well-equipped estate planning law firm is able to handle most aspects of preparing a client’s estate plans virtually and remotely. I am fortunate to practice in a time where I have the ability to speak and consult with clients on the telephone or by using popular video conferencing platforms like Skype, Zoom, or Face Time. Clients are able to quickly and easily review document drafts via email. If you have questions about your estate plan, please do not hesitate to contact us here.

 

Families First Coronavirus Response Act Tax Credit Overview

Families First Coronavirus Response Act Tax Credit Overview

On March 20, 2020, the Internal Revenue Service (“IRS”) and the U.S. Department of Labor announced that small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse, dollar-for-dollar, the cost of providing Coronavirus (COVID-19) related leave to their employees. This relief to employees and small and midsize businesses is provided under the Families First Coronavirus Response Act (the “Act”), signed into law on March 18, 2020. All employers with fewer than five hundred (500) employees may take advantage of these credits if the employers provide employees with paid leave, either for the employee’s own health needs or to care for employee’s family members.

 

Overview
The Act created the refundable paid sick leave credit and the paid child care leave credit for eligible employers. Eligible employers are businesses and tax-exempt organizations with fewer than five hundred (500) employees that are required to provide emergency paid sick leave and emergency paid family and medical leave under the Act. Eligible employers will be able to claim these credits based on qualifying leave they provide employees between the Act’s effective date (April 1, 2020) and December 31, 2020 (the Act also provides equivalent credits to self-employed individuals under similar circumstances).

 

Paid Sick Leave Credit
For an employee who is unable to work (including telework) as a result of the COVID-19 pandemic, eligible employers may receive a refundable sick leave credit for sick leave at the employee’s regular rate of pay, up to five hundred eleven dollars ($511) per day and five thousand one hundred ten dollars ($5,110) in the aggregate, for a total of ten (10) days—equivalent to eighty (80) hours or two (2) full-time weeks on the job. For an employee who is caring for someone with Coronavirus, or is caring for a child because the child’s school or child care facility is closed, or the child care provider is unavailable due to the Coronavirus, eligible employers may claim a credit for two-thirds (2/3) of the employee’s regular rate of pay, up to two hundred dollars ($200) per day and two thousand dollars ($2,000) in the aggregate, for up to ten (10) days. The Coronavirus Aid, Relief, and Economic Security Act signed into law on March 27, 2020 (the “CARES Act”), updates the paid sick leave and child care leave provisions of the Act. Click here for more information on the CARES Act tax summary: https://shuffieldlowman.com/tax-update-cares-act-tax-provisions/.

 

Child Care Leave Credit
Eligible employers who provide child care leave pay because their employees are unable to work because of a need to care for a child whose school/child care facility is closed or whose child care provider is unavailable due to the Coronavirus may receive a refundable child care leave credit. This credit is equal to two-thirds (2/3) of the employee’s regular pay, capped at two hundred dollars ($200) per day or ten thousand dollars ($10,000) in the aggregate (note that up to ten (10) weeks of qualifying child care leave can be counted towards the child care leave credit).

 

Health Insurance Coverage
In addition to the sick leave credit and the child care leave credit discussed above, eligible employers are entitled to an additional tax credit determined based on costs to maintain health insurance coverage for the eligible employee during the sick leave and/or child care leave period.

 

Payment of Credits
When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employees’ share of Social Security and Medicare taxes. The employers then are required to deposit these federal taxes, along with the employer’s share of Social Security and Medicare taxes, with the IRS. Eligible employers who pay qualifying sick and/or child care leave will be able to retain an amount of the payroll taxes equal to the amount of qualifying sick and/or child care leave that they paid, rather than deposit them with the IRS. If there are not sufficient payroll taxes to cover the cost of qualified sick and/or child care leave paid, employers will be able to file a request for an accelerated payment from the IRS. Additional information on this process will be disclosed in forthcoming IRS guidance. The CARES Act updates the payroll provisions of the Act.

 

Exemption
Small businesses with fewer than fifty (50) employees will be eligible for an exemption from the leave requirements relating to school closings or child care unavailability where the requirements would jeopardize the ability of the business to continue. The Department of Labor will provide guidance to explain and articulate this exemption in the near future.

ShuffieldLowman’s Corporate and Tax team is here to help clients during this uncertain time. We can answer your questions, assist you in overcoming the current obstacles, and help navigate the proverbial waters of the new tax laws.

 

 

Tax Update: CARES Act Tax Provisions

Tax Update: CARES Act Tax Provisions

On Friday, March 27, 2020, Congress passed and the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act provides updates to the Families First Coronavirus Response Act (signed into law on March 18, 2020) and also provides a number of temporary and permanent changes to the Internal Revenue Code (“IRC”). The analysis below summarizes the relevant tax provisions of the CARES Act.

Employer Tax Credit

The CARES Act would add an employment tax credit for each calendar quarter equal to fifty percent (50%) of qualified wages paid to each eligible employee for that calendar quarter, up to ten thousand dollars ($10,000) per employee for all calendar quarters. An employer is eligible for this credit if the operation of the trade or business is fully or partially suspended during the calendar quarter due to orders of a governmental authority as a result of COVID-19. Employers are also eligible for this credit if in the first calendar quarter in which the employer has a reduction of gross receipts of more than fifty percent (50%) in a calendar quarter as compared to the same calendar quarter in the prior year, and eligibility for the credit continues in each calendar quarter as long as the employer has a reduction of gross receipts of more than eighty percent (80%) reduction of gross receipts from the calendar quarter in the prior year.

For employers with more than one hundred (100) full-time employees, qualified wages are only those wages paid to employees during the period that the employees are not providing services due to COVID-19. For employers with one hundred (100) or fewer full-time employees, all employee wages paid during the applicable period qualify for the credit, whether or not the employee is providing services to the employer. The amount of the credit is reduced by any credits allowed under Sections 7001 or 7003 of the Families First Coronavirus Relief Act. Lastly, employers are not eligible for this credit if the employer receives any small business interruption loans pursuant to section 1102 of the CARES Act.  

Extension Payment of Employer Payroll Taxes

Employer payroll taxes for the period beginning on the date the CARES Act is enacted until the end of the year are deferred. Fifty percent (50%) of those taxes are deferred until December 31, 2021, and the remaining fifty percent (50%) are deferred until December 31, 2022—similar provisions apply to self-employed individuals, however, fifty percent (50%) of the self-employment tax still needs to be remitted on the existing deadlines. 

Modification of Net Operating Losses

The Tax Cuts and Jobs Act (the “TCJA”), which was enacted in 2017, eliminated net operating loss carrybacks for certain years. Under the TCJA, Net Operating Losses (“NOLs”) arising after 2017 could be carried forward indefinitely, but were limited to eighty percent (80%) of taxable income in the relevant period. These rules were changed by the CARES Act to allow NOLs arising in tax years 2018, 2019 and 2020 to be carried back five (5) years. In addition, the eighty percent (80%) limitation created by the TCJA has been eliminated for tax years beginning before January 1, 2021, temporarily allowing NOLs to offset up to one hundred percent (100%) of a taxpayer’s current taxable income. Taxpayers cannot carryback back NOLs to offset foreign subsidiary earnings deemed repatriated under IRC section 965; however, taxpayers can elect to exclude any tax years in which the foreign earnings were included in gross income from the calculation of the five (5) year carryback period. Lastly, Real Estate Investment Trusts (“REITs”) will not be able to carry back losses, and losses may not be carried back to any REIT year.

Temporary Modification of Limitation on Losses for Taxpayers Other Than Corporations

As a result of the TCJA, a non-corporate taxpayer’s ability to deduct excess business losses was limited during tax years beginning after December 31, 2017 and before January 1, 2026.  Excess business losses are the amount by which the total deductions attributable to all of a taxpayer’s trades or businesses exceed such taxpayer’s total gross income and gains attributable to those trades or businesses plus two hundred fifty thousand dollars ($250,000) ($500,000 in the case of a joint return). The CARES Act amends this limitation so that it applies only to taxable years beginning after December 31, 2020; therefore, excess business losses that would otherwise be disallowed for taxable years 2018 through 2020 will be permitted.

Modification of Credit for Prior Year Minimum Tax Liability of Corporations

The corporate alternative minimum tax (“AMT”) was repealed by the TCJA; however, corporate alternative minimum credits were made available as refundable credits over several years, ending in 2021. The CARES Act accelerates the ability of companies to recover those refundable AMT credits by amending IRC Section 53 to accelerate the corporation’s ability to recover one hundred percent (100%) AMT credits beginning in 2019.

Temporary Modifications of Business Interest Expense

The amount of a taxpayer’s business interest expense allowable as a deduction is limited under IRC section 163(j) to thirty percent (30%) of the taxpayer’s adjusted taxable income; however, the CARES Act temporarily increases the amount of interest expense businesses are allowed to deduct to fifty percent (50%) for 2019 and 2020. Additionally, taxpayers may elect to use their 2019 adjusted taxable income in place of their 2020 adjusted taxable income for purposes of applying the interest expense limitation.

Qualified Improvement Property Fixes

The CARES Act makes technical corrections to IRC Section 168(k) to treat qualified improvement property as fifteen (15) year property for depreciation purposes and makes said properties eligible for bonus depreciation. These corrections are retroactive to the effective date of the TCJA (January 1, 2018).

Refundable Tax Credit for Individuals

The CARES Act provides up to a twelve hundred dollar ($1,200) refundable tax credit for individual filers ($2,400 for joint filers), with additional amounts of five hundred dollars ($500) per child in certain cases. The bill requires the Internal Revenue Service to refund or credit these amounts as quickly as possible, but in no event will any such refund or credit be allowed after December 31, 2020. These amounts are reduced for taxpayers with seventy-five thousand dollars ($75,000) or more in adjusted gross income for individual filers ($150,000 or more for joint filers), and completely phased out above ninety-nine thousand dollars ($99,000) for individual filers ($198,000 for joint filers).

With the sudden changes to several aspects of the law there is added confusion regarding what programs/relief are available; however, ShuffieldLowman’s Corporate and Tax team is here to help clients navigate these changes and to answer questions to assist clients in making those important business decisions.