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American Rescue Plan Act: Changes to Paycheck Protection Program, Certain Tax and ERISA Provisions, and Other Small Business Relief

March 12, 2021

Overview

On March 11, 2021, President Biden signed into law the American Rescue Plan Act of 2021 (the “Act”), the $1.9 trillion pandemic aid bill. The Act contains some limited changes to the Paycheck Protection Program (“PPP”) and other tax, Employee Retirement Income Security Act (“ERISA’), and small business relief provisions. Those items include:

  • Addition to PPP of a new category of not-for-profits called “additional covered nonprofit entities,” which are those nonprofits described in Section 501(c)of the Internal Revenue Code (“Code”) other than 501(c)(3), 501(c)(4), 501(c)(6), or 501(c)(19) organizations and exempt from tax under Section 501(a) of the Code, provided that: (a) the organization does not receive more than 15% of receipts from lobbying activities; (b) the lobbying activities do not comprise more than 15% of activities; (c) the cost of lobbying activities of the organization did not exceed $1 million during the most recent tax year that ended prior to February 15, 2020; and (d) the organization employs not more than 300 employees.
  • Expanded eligibility of PPP to some larger not-for-profits, that is, (a) a nonprofit organization that employs not more than 500 employees per physical location; and (b) an additional covered nonprofit entity that employs not more than 300 employees per physical location.
  • Addition to PPP eligibility for internet-only news and periodical publishers with a NAICS code of 519130, as long as the business has no more than 500 employees or the applicable U.S. Small Business Administration size standard, per physical location, and the organization certifies it is an internet-only news or periodical publisher engaged in the collection and distribution of local or regional and national news and information, and that the loan will be used to support expenses at the component of the business concern that supports local or regional news.
  • Eligibility of borrowers of First Draw and Second Draw PPP Loans after December 27, 2020, to receive a Shuttered Venue Operators Grant (“SVOG”), but the amount of the SVOG will be reduced by the amount of the PPP funds approved.
  • Allocations of funding to benefit small businesses through a variety of programs, including $28.6 billion for restaurants and bars (the “Restaurant Revitalization Fund”), an additional $15 billion for Targeted Economic Injury Disaster Loans (“EIDL”) advance payments, $1.25 billion for shuttered venue operators, $100 million to establish a Community Navigator pilot program, and an additional $7.25 billion for the PPP.
  • Extension of Employee Retention Credit (“ERC”) through the end of 2021. After June 30, 2021, the credit will apply against an employer’s Medicare hospital insurance (“HI”) taxes rather than Social Security Old Age, Survivor’s, and Disability Insurance (“OASDI”) taxes. The credit would continue to be refundable for employers with insufficient tax liability. The Consolidated Appropriations Act enacted in December 2020 had previously extended the ERC through June 30, 2021, increased the credit percentage from 50% to 70%, increased the per employee limit on qualifying wages to $10,000 per quarter, and expanded the eligibility of qualifying employers.
  • Extension of unemployment provisions to September 6, 2021.
  • Changes to Earned Income Tax Credit: For the 2021 tax year, taxpayers with no qualifying children will see changes to the computation of their earned income credit, including increases in (a) the phase-out percentage, (b) the earned income amount, and (c) the phase-out amount.
  • Changes to Child and Dependent Care Credit: The child tax credit is increased to $3,000 per child (and $3,600 for children under age six), with phase-outs at $150,000 for joint taxpayers, $112,500 for heads of household, and $75,000 for other taxpayers.
  • Addition to Section 162(m) individuals: For tax years after 2026, corporations will be required to subject the compensation of their five highest compensated employees to the limitations of Section 162(m).
  • Extension of Section 461(l) limitation on excess business losses of noncorporate taxpayers by one year through 2027.
  • Increased limit on annual contributions to a dependent care flexible spending account. With the increase, the limit is $10,500 (married couple or single person) or $5,250 (married person filing separately) for 2021 only (the annual contribution limit returns to $5,000 and $2,500 in 2022).
  • Fully subsidized COBRA premium payments for employees and family members who have lost coverage due to a reduction in hours of employment or loss of employment.
  • Financial assistance program for multiemployer (union) pension plans that are severely underfunded and meeting other criteria. The Pension Benefit Guaranty Corporation (“PBGC”) is required to issue regulations regarding the application procedure within 120 days. It remains to be seen whether the financial assistance will be included when underfunded plans calculate withdrawal liability.
  • An increase in the PBGC premiums for multiemployer pension plans from $31 to $52 per participant.

The PPP deadline was not extended—the deadline remains March 31, 2021.

Schwabe is committed to providing our clients with up-to-date resources to understand the CARES Act and navigate the COVID-19 pandemic. For more information about the PPP Loan Forgiveness Application, visit our PPP Portal. This article summarizes aspects of the law; it does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

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