What is the Penalty for a False ERC Claim? Understanding the Consequences

The Employee Retention Credit (ERC) was a significant tax relief program introduced to assist businesses that retained employees during the COVID-19 pandemic. Designed to encourage employers to keep workers on their payroll, the ERC offered a refundable tax credit against certain employment taxes. However, the complexity of the program has sometimes led to misunderstandable claims or, in worse cases, fraudulent filings. Filing a false ERC claim can result in severe consequences, including monetary penalties, interest on unpaid taxes, and potential criminal charges.

Understanding the seriousness of these penalties is essential for businesses and tax professionals. The Internal Revenue Service (IRS) has specific guidelines on eligibility criteria for ERC claims and the procedures to follow if an incorrect claim has been made. In the event of an overclaimed ERC, voluntary disclosure or amended tax returns can mitigate the severity of potential penalties. The IRS actively pursues enforcement actions in case of false or fraudulent claims, underscoring the need for accuracy and integrity when claiming ERC on tax returns.

Key Takeaways

  • The ERC was established to support businesses that kept employees during the pandemic.
  • Filing a false ERC claim can lead to severe financial and legal penalties.
  • Voluntary disclosure and amended returns can reduce the severity of penalties.

Understanding ERC and Its Purpose

The Employee Retention Credit (ERC) was established as a financial incentive for businesses to keep employees on their payroll during the economic disruptions caused by COVID-19. This refundable tax credit was designed to support both small businesses and larger employers navigating the challenges of the pandemic.

Origins and Legislative Background

The ERC was introduced under the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020. It was a response to the COVID-19 crisis, aimed at incentivizing employers to retain their employees despite significant financial hardship and operational disruptions. Initially, the credit covered wages paid between March 12, 2020, and January 1, 2021, but subsequent legislative updates extended its availability.

Key Provisions of the Employee Retention Credit

The ERC provides a refundable tax credit to eligible employers. Key aspects include:

  • Qualifying Wages: Eligibility for the credit is linked to wages paid to employees during periods of business suspension or significant decline in gross receipts.
  • Credit Amount: The ERC originally allowed for a maximum of 50% of up to $10,000 in wages paid per employee per year, which could result in a credit of up to $5,000 per employee. The percentage and limits were altered in subsequent amendments to the CARES Act.
  • Eligible Employers: All employers, regardless of size, are eligible for the credit if they meet certain conditions related to the impact of COVID-19 on their business operations.
  • Refundability: As a refundable credit, if the amount of the ERC exceeds the employer’s share of Social Security taxes, the excess is refunded to the employer.

By offering this credit, the government aimed to alleviate some of the financial strain on employers, encouraging them to maintain their workforce during the pandemic’s uncertainty.

Eligibility Criteria for ERC Claims

To qualify for the Employee Retention Credit (ERC), employers must meet specific criteria outlined by the IRS. These criteria determine whether they can claim the credit and, if so, the amount they may be eligible to receive. The eligibility is based on several factors, including employer size, revenue reduction, and the impact of government orders due to COVID-19.

Employer Types and Size

Eligible employers include businesses, tax-exempt organizations, and startups that operated during the qualifying period. The size of the employer determines which wages are qualified for the credit:

  • Employers with 100 or fewer full-time employees can claim credit on all wages paid to employees.
  • For those with more than 100 employees, credit is limited to wages paid to employees for time they did not provide services.

Gross Receipts Test

The gross receipts test is a threshold that decides eligibility based on the company’s revenue:

  • Employers must experience a significant decline in gross receipts — a 50% reduction in 2020 compared to the same quarter in 2019, or a 20% reduction in 2021 compared to the same quarter in 2019.
  • Gross receipts include total sales (net of returns and allowances) and all amounts received for services.

COVID-19 Impact Assessment

Employers must show that their operations were either fully or partially suspended by government orders due to COVID-19 to qualify:

  • Full suspension occurs when a governmental authority requires an employer to cease all operations.
  • Partial suspension takes place when, due to orders from a governmental authority, an employer continues some, but not all, of its typical operations.

The Employee Retention Credit is an incentive for eligible employers to retain their workforce despite the economic hardship brought on by the pandemic. It is essential for employers seeking the credit to thoroughly evaluate their eligibility based on these specific IRS criteria to ensure compliance and avoid the penalties associated with false ERC claims.

Correctly Filing an Amended ERC Claim

Employers seeking to amend their Employee Retention Credit (ERC) claims must adhere to specific procedural guidelines to ensure compliance and accuracy. Timely and proper amendments can help avoid penalties associated with incorrect filings.

Preparing Form 941-X

When preparing Form 941-X, employers should meticulously review the original return to identify any discrepancies. Employers need to:

  • Complete each applicable line on Form 941-X, providing the corrected amount.
  • Explain the corrections on the form, detailing why the original report was incorrect.
  • Specify the quarter in which the corrections are being made.
  • For an ERC claim, enter the corrected amount of qualified wages and healthcare expenses.
  • Sign and date the form before submission.

Determining Qualified Wages

Determining qualified wages is crucial when filing an amended employment tax return for an ERC claim:

  1. Identify all wages paid during eligible quarters that are considered “qualified wages” under the ERC criteria.
  2. Calculate the credit amount based on the qualified wages and include this in the adjusted amounts on Form 941-X.
  3. Understand that qualified wages may differ depending on the employer’s number of full-time employees and the specific quarter in question.

This process ensures that the payroll data within the amended employment tax return accurately reflects the tax relief intended by the ERC program. Properly identifying and claiming qualified wages aids in the compliant and beneficial use of the ERC.

Penalties for False or Fraudulent Claims

When individuals or entities misrepresent the truth to claim Employee Retention Credits (ERC), they face severe penalties. These penalties range from significant financial repercussions to legal consequences, including potential criminal investigations.

Legal Ramifications

Under 18 U.S. Code § 287, those who present a false claim against the United States or any of its departments, knowing the claim to be fictitious, fraudulent, or false, are subject to criminal penalties. This may include imprisonment for up to five years. Additionally, if the action is willful, the Internal Revenue Service (IRS) might open a criminal investigation into the matter, further escalating the severity of the situation.

Financial Consequences

On the financial side, the penalties can be substantial. According to the False Claims Act, individuals found guilty of making false claims may be held liable to pay up to three times the government’s damages, plus penalties adjusted for inflation. Presently, penalties can be as high as $27,018 per violation, which, with multiple violations, can accumulate to millions of dollars. Furthermore, the fraud may lead to an assessment of interest, increasing the total tax liability. If charged with willful neglect in the submission of false claims, the financial damages may extend beyond penalties and interest, jeopardizing the entity’s financial stability.

Action in Case of ERC Overclaim

When a business overclaims the Employee Retention Credit (ERC), it must navigate a process that involves repaying excess funds and amending tax records. Failure to do so can result in penalties and interest accruing over time.

Repayment Process

Once an overclaim is identified, the repayment process initiates. The business must repay the full amount of the ERC that was improperly claimed. This repayment should occur as promptly as possible to minimize the accumulation of interest and potential penalties. If the Internal Revenue Service (IRS) discovers the overclaim before the business does, it may issue a letter demanding repayment.

Amending Incorrect Claims

To rectify an incorrect ERC claim, businesses must file an amended employment tax return. This step corrects the tax records and formally acknowledges the error. While amending the claim, it’s crucial to accurately calculate the correct amount of ERC the business was eligible to receive. Businesses may seek penalty relief if they have reasonable cause for the incorrect claim, but this does not necessarily exempt them from owing interest on the funds that need to be repaid.

Third-Party Involvement and Responsibility

In the realm of the Employee Retention Credit (ERC), third parties, such as promoters and tax return preparers, hold significant influence and responsibility. Their actions can lead to severe penalties if they advise or prepare false claims.

Roles of Promoters and Preparers

Promoters are individuals or companies that actively encourage employers to apply for the ERC. They often position themselves as experts on the ERC guidelines and advocate for the maximum possible credit. Tax return preparers, on the other hand, are the professionals who prepare and file tax credit claims, including the ERC, on behalf of their clients. They are expected to conduct due diligence to ensure the accuracy of claims.

The Internal Revenue Service (IRS) has highlighted the critical role these entities play and has issued warnings advising employers to seek guidance from a trusted tax professional within the tax professional community. This move underscores the necessity of accurate claim preparation and substantiation to comply with federal tax laws.

Penalties for Third Party Misconduct

The IRS has made it clear that if third parties engage in behavior that results in improper ERC claims, they can face significant penalties. The enforcement actions can encompass fines for each false claim and additional legal consequences for conduct deemed fraudulent or deceitful.

Taxpayers are encouraged to verify the credentials and reputation of anyone advising them on the ERC, as trusted tax professionals are expected to uphold the integrity of the tax system and safeguard their clients from potential legal and financial repercussions.

IRS Guidance and Resources

The Internal Revenue Service (IRS) provides specific guidelines and resources to assist taxpayers with the Employee Retention Credit (ERC). These resources detail the consequences of false claims and the steps required for compliance.

Notices and Official Announcements

The IRS has released several notices relevant to the ERC, clarifying the qualifications, application procedures, and penalties associated with improper claims:

  • Notice 2021-49: Guides the ERC as it relates to qualified wages paid after June 30, 2021, and before January 1, 2022.
  • Notice 2021-20: Offers a detailed explanation of the rules for the ERC as originally enacted and its subsequent amendments.
  • Notice 2021-23: Expands upon updates to the ERC for the first two calendar quarters of 2021.
  • Notice 2021-65: Warns employers about the need to decrease their deduction for wages by the amount of any ERC received, and outlines the potential penalties for non-compliance.

Online Documentation

The IRS maintains a comprehensive hub of online documentation on the official IRS website, irs.gov:

  • Detailed guidance on the ERC program.
  • Frequent updates on the application process.
  • Information on the IRS’s expanded efforts to combat aggressive and dubious ERC claims.
  • Access to FAQs about the Employee Retention Credit Voluntary Disclosure Program, which is significant for those who may have received the ERC improperly and wish to partake in voluntary correction avenues.

All the above-mentioned notices and documentation help in ascertaining the eligibility criteria, claiming process, and penalties for incorrect or false ERC claims, thus serving as essential resources for employers and their advisors.

Audits and Enforcement by IRS

The Internal Revenue Service takes a stringent stance on ensuring compliance with tax laws, particularly in the realm of Employee Retention Credit (ERC) claims. Erroneous claims can lead to audits and significant enforcement actions, including penalties and, in severe cases, criminal charges.

Audit Process

When the IRS detects discrepancies or suspicious activity in ERC claims, auditors may initiate an in-depth review of the taxpayer’s records. Typically, this process begins with a notification to the taxpayer and a request for additional information. During an audit, the IRS will scrutinize the authenticity and accuracy of the data reported on the relevant Form 941 (Employer’s Quarterly Federal Tax Return) or Form 944 (Employer’s Annual Federal Tax Return). The IRS Lead Development Center may also be involved in identifying and assessing potentially fraudulent claims.

IRS Enforcement Actions

In cases where the audit reveals false ERC claims, the IRS takes enforcement actions that can range from civil penalties to criminal charges, depending on the severity of noncompliance. Penalties may include a percentage of the overstated credit, interest, and additional fines. The IRS Commissioner, currently Danny Werfel, oversees that these enforcement actions align with federal tax regulations. Should an audit uncover evidence of tax fraud, the case might be escalated to the IRS Criminal Investigation Division, leading to potential prosecution and stiffer penalties, including imprisonment.

Avoiding and Reporting Tax Scams

Awareness and due diligence are crucial in recognizing and dealing with tax scams. These fraudulent activities not only threaten personal and business finances but also undermine the integrity of the tax system.

Identifying Deceptive Practices

When encountering advertised tax schemes, individuals and businesses should be vigilant for signs of deception. Promises of inflated refunds or credits, such as aggressive claims for the Employee Retention Credit, are often red flags. Taxpayers are advised to be cautious of:

  • Unsolicited Contact: Any unexpected contact claiming to be from the IRS should be scrutinized, especially if it demands immediate payment or personal information.
  • Pressure Tactics: Be wary of entities that push for quick actions regarding taxes, as it can be a tactic to elicit information or money without due diligence.
  • Guarantees: No legitimate tax professional can offer guaranteed outcomes before knowing a taxpayer’s unique financial situation.

Safe Reporting Mechanisms

In the event of encountering a suspected tax-related scam, the IRS provides several reporting mechanisms to ensure that taxpayers can safely communicate their concerns:

  1. Phishing: If one receives a suspicious IRS-related email, it should be forwarded to phishing@irs.gov.
  2. Scam Calls: Phone scams can be reported through the Treasury Inspector General for Tax Administration (TIGTA) at tigta.gov.

Taxpayers should remember that there are legal ways to explore tax savings, but they should always engage with reputable professionals to avoid falling into illegal activities that could be financially damaging and may constitute a financial lifeline to scammers.

Safe Practices for ERC Claims

Ensuring accuracy when filing an Employee Retention Credit (ERC) claim is crucial for avoiding penalties. Companies should focus on compliance with tax laws and proper documentation. Below are strategies to achieve these objectives.

Working with Tax Professionals

Engaging with qualified tax professionals is a significant step towards filing valid ERC claims. These professionals can provide guidance on complex tax matters, including ERTC eligibility and calculating payroll costs. By working with experts well-versed in the nuances of the tax code, businesses can ensure they meet the standards for administrative relief and that currently required returns are accurately and timely filed.

Maintaining Compliant Records

Companies are advised to meticulously maintain records that support their ERC claims, specifically detailing payroll costs and qualifying activities. Documentation should include:

  • Payroll reports showing amounts paid to employees.
  • Files indicating periods of business suspension or decline in gross receipts.
  • Dates and details of qualifying events.

Record maintenance not only supports compliance but also serves as evidence of reasonable cause in cases where additional justification is required for the claim. Proper records may also expedite any review process by the IRS.


Employers found guilty of claiming a false Employee Retention Credit (ERC) face serious repercussions. Penalties range from heavy fines to potential criminal charges. The IRS is vigilant in detecting such fraudulent activities which not only misappropriate tax savings but also undermine the integrity of relief measures enacted due to COVID-19.

Any business or individual considering the ERC should be acutely aware that it’s a refundable tax credit, designed for employers who retained employees during the pandemic. Claims must align strictly with IRS regulations to avoid penalties.

Due diligence is key. Employers must ensure that they meet the eligibility requirements and maintain accurate records. It is advisable to consult with tax professionals before submitting an ERC claim.

Should the IRS discover a false claim, they may demand immediate repayment of the credit plus interest. Additional penalties could also be applied, and if deceit or intentional disregard for the rules is evident, charges may escalate. Employers are encouraged to promptly correct any inadvertent errors by contacting the IRS, potentially mitigating further consequences.

Businesses need to approach the ERC with caution and respect for the law, grasping the serious nature of false claims. The reward of tax savings should never overshadow the risk of severe penalties.

Frequently Asked Questions

Navigating the complexities of the Employee Retention Credit (ERC) can be challenging, especially when it comes to understanding the penalties associated with false claims. Businesses must comprehend the regulations and potential consequences of incorrect filings.

What are the consequences of filing an erroneous Employee Retention Credit claim?

If a business files an erroneous Employee Retention Credit claim, it may face repayments, penalties, and interest. The IRS has been actively auditing claims and notifying taxpayers of disallowed credits.

What does IRC 6676 indicate regarding penalties for erroneous refund claims?

IRC Section 6676 imposes a penalty on erroneous refund or credit claims, including those for the ERC. This penalty is equal to 20% of the disallowed amount unless the claimant can prove that the error was due to a reasonable cause.

How does the IRS handle audits involving Employee Retention Credit?

The IRS approaches audits involving the Employee Retention Credit by scrutinizing the information provided and the eligibility of the business for the credit. Claims found to be incorrect or fraudulent may result in the aforementioned penalties.

Could receiving an Employee Retention Credit erroneously lead to incarceration?

Incarceration is unlikely in the case of a simple error; however, if the claim is found to be fraudulent or part of a larger tax evasion scheme, criminal charges could be filed, which may result in imprisonment.

What are the implications of an ERC audit finding a false claim?

An ERC audit that uncovers a false claim can lead to the repayment of the credit with interest, the imposition of penalties, and potentially, the filing of criminal charges in serious cases of fraud.

How long does the IRS have to assess a penalty for an erroneous refund?

The IRS generally has a three-year statute of limitations to assess a penalty for an erroneous refund or credit, including the Employee Retention Credit. However, this period may be extended if the error pertains to a substantial understatement of income tax.

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