Will ERC Be Audited? Understanding the Implications for Token Holders

The Employee Retention Credit (ERC), a significant fiscal incentive ushered in by the CARES Act during the COVID-19 pandemic, was established to encourage employers to keep staff on payroll despite economic hardship.

There has been considerable discussion surrounding the potential audit of ERC claims by the IRS, especially as the agency has expressed concerns over the misuse of credits.

The risk of audit is a critical consideration for businesses that have claimed the ERC, as it determines the need for thorough documentation and compliance with complex tax laws.

A stack of documents labeled "ERC Audit" sits on a desk, alongside a computer displaying financial data. A calendar on the wall shows the current date

When contemplating the likelihood of ERC audits, businesses must understand the nuances of the tax provisions and the IRS’s approach to enforcement and compliance.

The ERC, designed to support employers financially impacted by the pandemic, has specific qualification criteria and requires meticulous record-keeping to substantiate claims.

As the IRS intensifies its focus on reviewing these claims, organizations must prepare for the possibility of being audited.

Proactive preparation and in-depth knowledge of the legal framework governing the ERC will be paramount for companies facing such scrutiny.

Key Takeaways

  • The potential for IRS audits of ERC claims is a prominent concern for businesses post-pandemic.
  • Accurate compliance and detailed documentation are vital for businesses that claim the ERC.
  • Understanding the legal framework of the ERC can help businesses prepare for and navigate IRS audits.

Understanding the Employee Retention Credit

The Employee Retention Credit (ERC) is a significant financial relief effort targeted at businesses affected by the COVID-19 pandemic, offering a tax benefit to retain employees on the payroll.

The credit’s intricacies necessitate a careful examination of eligibility requirements, credit calculations, and their adaptations due to pandemic-related changes in business operations.

Overview of ERC

The Employee Retention Tax Credit (ERC), established by the CARES Act and later amended by the Consolidated Appropriations Act and the American Rescue Plan Act, is a refundable tax credit designed to encourage businesses to keep employees on their payroll.

The credit initially covered wages paid after March 12, 2020, and before January 1, 2021, but subsequent legislation extended its availability.

Eligibility Requirements

To qualify for the ERC, employers must meet specific eligibility criteria such as experiencing a full or partial suspension of operations due to governmental orders related to COVID-19 or witnessing a significant decline in gross receipts compared to the same quarter in 2019.

Specifically, a gross receipts decline of more than 50% was required to qualify in 2020, which altered to more than 20% in 2021. The gross receipts test and the suspension of operations test are pivotal determinants for eligibility.

Calculating the Credit

Key in the ERC calculation is identifying qualified wages, which are dependent on the number of full-time employees and whether the employer is a small or large business as defined by IRC §3134.

For 2020, the credit rate was 50% of qualified wages up to $10,000 per employee annually. In 2021, this rate increased to 70% of up to $10,000 in wages per employee per quarter. Special considerations are made for recovery startup businesses under certain circumstances.

COVID-19 Influence

The ERC was a direct response to the economic disruption caused by COVID-19, tailored to assist businesses that maintained their workforce despite challenges like enforced telework, restrictions on travel, and group meetings.

Modifications to the program accounted for the changing nature of the pandemic, including interaction with the Paycheck Protection Program and allowances for nominal effect on operations. Understanding these factors is crucial for businesses applying for the credit, particularly when preparing for potential ERC audits.

Compliance and Documentation

Compliance and documentation are essential for businesses that have claimed the Employee Retention Credit (ERC). Accuracy in tax filings and adherence to IRS guidelines safeguard against potential audits.

Proper record-keeping ensures that companies can substantiate their ERC claims.

Documenting ERC Claims

Businesses must retain comprehensive records to support their ERC eligibilities, such as proof of business disruptions due to COVID-19 or a decline in gross receipts.

Documentation should include personnel and payroll records, and details of qualified wages for which they claimed the credit.

The Bennett Thrasher highlights the significance of maintaining thorough documentation, which can serve as evidence during an audit.

Tax Filing Requirements

To comply with tax filing obligations, companies must accurately report their ERC on the applicable employment tax returns.

For instance, Form 941, the quarterly employment tax return, is required for reporting the credit.

Reference to IRS Notice 2021-20, specifically Q&As #11-22, clarifies the reporting process.

Tax professionals play a critical role in ensuring that these filings meet IRS standards and can help navigate complex situations, like the interplay between ERC and PPP loan forgiveness.

Important IRS Notices

IRS notices, including Notice 2021-20, provide detailed guidance on ERC claims.

They address common issues and questions, such as determining qualified wages and the interaction with other tax benefits.

The notice explicitly covers critical aspects in Q&As #23-28, underlining the intricacies of compliance.

They should review the full notice on irs.gov for a thorough understanding of the requirements.

Companies need to stay updated on such IRS announcements to ensure robust compliance.

Audits and Legalities

The IRS maintains a vigilant stance on compliance with tax laws, where Employee Retention Credit (ERC) claims are subjected to meticulous scrutiny. Understanding the audit process, preparing to deal with IRS audits, and being aware of potential penalties are critical for those navigating the complexities of ERC claims.

The Audit Process

The IRS initiates an audit by sending a notification to the taxpayer, which may include Information Document Requests (IDRs) to obtain additional documentation.

They inspect whether the claimed tax credit adheres to the qualifying criteria set forth by legislation. Failure to provide satisfactory documentation can lead to further examination and adjustments.

Dealing with IRS Audits

Taxpayers facing an IRS audit should be prompt in responding to Information Document Requests.

They are encouraged to gather all pertinent records to substantiate the ERC claims.

Being prepared to explain any discrepancy and avoiding “double dipping” with other credits can minimize the ERC audit risk.

Penalties and Challenges

Failure to comply with an audit, or to substantiate ERC claims can result in penalties, including fines and the accrual of interest.

Taxpayers must be mindful of the statute of limitations—generally three years, though extended in certain circumstances such as substantial omissions or fraud.

It’s imperative to understand one’s rights and options throughout the challenging audit process.

Best Practices for ERC

When navigating the complexities of the Employee Retention Credit (ERC), companies need to adhere to certain best practices. This ensures compliance with IRS guidelines and prepares them for a potential audit.

Hiring a Trusted Tax Professional

For most businesses, engaging a trusted tax professional well-versed in ERC regulations is the foundational step in managing their claim.

These professionals stay updated on the latest Congressional actions and changes in tax law, which can impact ERC eligibility and claims processing.

A tax professional will guide them through eligibility tests and ensure that all claims adhere to the current legal framework.

It is imperative to choose someone who has a robust understanding of the interplay between ERC and the Paycheck Protection Program (PPP) to avoid any pitfalls related to double dipping.

Maintaining Accurate Records

One cannot understate the importance of keeping detailed and accurate financial statements and payroll records.

They must record substantiation for the credit such as, but not limited to, gross receipts for the relevant quarters and payroll records that correlate to the claimed credit.

When the IRS audits ERC claims, they will scrutinize these records meticulously.

There should be a clear trail documenting each element of the ERC calculation process.

Understanding the Link with PPP

The relationship between ERC and PPP loan forgiveness is particularly nuanced.

Careful consideration is required to ensure that wages used for claiming the ERC are not the same wages used for PPP forgiveness, as this would constitute double dipping.

Companies need to have distinct documentation that segregates the payroll costs allocated to PPP forgiveness from those claimed for the ERC.

During an audit, the IRS will look for clarity in these allocations to confirm compliance.


The likelihood of Employee Retention Credit (ERC) audits by the Internal Revenue Service (IRS) has been a topic of increasing concern for businesses. The IRS has signaled closer scrutiny of ERC claims, particularly those of substantial amounts. Consequently, businesses may find their ERC claims subject to audits, which could impose significant administrative and financial burdens if not prepared properly.

Businesses should not only ensure compliance with ERC regulations but also maintain meticulous documentation to substantiate their claims.

This includes keeping records of qualified wages and health plan expenses, along with any relevant correspondence with the IRS.

In the event of an audit, engaging a tax professional can help navigate the process and mitigate risks.

Over the years, the IRS has enhanced its efforts to address potential misuse of tax credits like the ERC. With the IRS issuing explicit warnings, it behooves companies to rigorously review their ERC claims in anticipation of possible audits.

Entities must approach their ERC claims with diligence, as any discrepancies could lead to extended audit durations and potential penalties.

Companies that have taken advantage of the ERC should remain vigilant and consult auditing experts to understand what an audit entails.

Additionally, awareness of red flags that could increase the risk of an audit can prove beneficial in reducing the likelihood of adverse outcomes from an IRS examination.

Frequently Asked Questions

Understanding the intricacies of the Employee Retention Credit (ERC) can help businesses navigate the possibility of an audit with confidence. The following frequently asked questions provide clarity on what may trigger an audit, how to prepare, the relevant statute of limitations, consequences of discrepancies found, the treatment of ERC for tax purposes, and official IRS guidelines on the matter.

What triggers an audit of the Employee Retention Credit?

An audit of the Employee Retention Credit may be triggered by inconsistencies in the credit claim, discrepancies in reported information, or random selection by the IRS.

Involvement with promoters offering risky ERC claims could also raise red flags leading to an audit.

How can businesses prepare for a potential ERC audit?

Businesses can prepare for a potential ERC audit by maintaining comprehensive records of their eligibility, such as documenting the impact of COVID-19 on their operations and retaining details of qualified wages paid.

Being familiar with the key questions the IRS may ask during an audit is also advisable.

What is the statute of limitations for auditing the Employee Retention Credit?

The typical statute of limitations for auditing the Employee Retention Credit is three years from the date the original return was filed or two years from the date the tax was paid, whichever is later. This timeframe dictates how long the IRS has to question and assess the credit.

What are the consequences if discrepancies are found during an ERC audit?

Discrepancies discovered during an ERC audit can lead to the denial of the credit, imposition of penalties, and the requirement to repay any improperly claimed amounts.

Understanding the audit process can be crucial for mitigating the consequences.

Is reporting of Employee Retention Credit as income required for tax purposes?

Reporting of Employee Retention Credit as income is not generally required for tax purposes because it is a credit against payroll taxes. However, claiming the credit can reduce the amount of deductible wages for the business, thus indirectly affecting taxable income.

Has the IRS issued any warnings or guidelines regarding the ERC credit audits?

The IRS has issued warnings regarding erroneous ERC claims and emphasized the need for accurate eligibility assessment.

It has also published frequently asked questions about the Employee Retention Credit, providing detailed guidance and alerts on common misconceptions and errors.

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