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COVID-19: Paycheck Protection Program Loan Forgiveness – What You Need to Know

Last week, hundreds of thousands of applications for loans under the Paycheck Protection Program (PPP) were submitted to banks all over the country, and it’s likely that many more  will be submitted in the coming weeks.  So far, businesses have been focused rightfully on receiving the PPP loan. As loans are actually advanced to borrowers, we expect the focus will turn to ensuring that as much of the loan as possible is forgiven. 

The U.S. Treasury has indicated that it will provide additional guidance on PPP loan forgiveness, but with loans being advanced as early as this week, understanding forgiveness is important now. This is because the key to forgiveness is spending money on forgivable expenses in the eight weeks following the advance of the loan. 

The CARES Act provides that up to the entire principal balance of the loan may be forgiven. The interim final rule indicates that accrued interest may also be forgiven. There are, however, important limitations that apply:

  1. Forgivable Purposes. As most know, PPP loan proceeds may be used only for certain allowable purposes. What is less well known is that only certain of those purposes also result in the loan being forgiven. Those purposes are:  payroll costs (which has the same meaning as payroll for purposes of determining the amount of the loan), interest on mortgages securing real or personal property (incurred before February 15, 2020), rent (for leases in force before February 15, 2020) and utilities (for services that began before February 15, 2020). 

  2. Eight-Week Period. Only costs incurred and payments made for forgivable expenses during the eight-week period beginning on the date of the PPP loan advance will result in forgiveness. For businesses with weekly or biweekly payroll periods, this makes it likely that they will have eight or four full pay periods included. [1] For businesses with semi-monthly payroll periods, however, depending on the date of advance, three or four periods may fall within the first eight weeks. Depending on further guidance from Treasury, businesses may need to tweak their payroll period to ensure maximum forgiveness.

  3. 75% Payroll Cost Minimum. Treasury, in the interim final rule, added a restriction limiting the amount forgiven for non-payroll costs to 25% of the amount forgiven. This is designed to be consistent with the requirement that no more than 25% of the loan be used for non-payroll costs, i.e., that at least 75% of the loan be used for payroll costs.

  4. Reductions. The forgiven amount is also reduced for businesses that reduce their headcount and/or reduce salaries/wages paid to employees.

  • Headcount. If a business’s average full-time equivalent employees during each month of the eight-week period is less than the average during either the period from February 15, 2019, to June 30, 2019, or January 1, 2020, to February 20, 2020 (at the business’s choice), the forgiven amount is reduced by the percentage reduction in headcount. In other words, if headcount is reduced by 10%, the forgiven loan amount is also reduced by 10%. 

  • Salary/Wages. With respect to employees earning less than $100,000, the amount forgiven is reduced by the amount of any reduction in salary/wages during the eight-week period that exceeds 25% of the employee’s salary/wages for the most recent full quarter.  

  • Rehiring. Importantly, the headcount and salary reductions discussed above will not include any reduction between February 15, 2020, and April 27, 2020, if the business remedies the reduction on or before June 30, 2020. This is designed to incentivize businesses to rehire laid off and furloughed employees.

Although each business’ situation will be unique, this Excel calculator is designed to assist with estimating the amount of a PPP loan that may be forgiven. 

We expect Treasury to provide further guidance regarding loan forgiveness, and we will send out an updated alert when that guidance is issued.

In the event that your company receives an SBA loan under the CARES Act, the identity of your company, the amount borrowed, loan forgiveness, and other information about the loan or your company may be subject to public disclosure (i) by SBA under the Freedom of Information Act or (ii) if your loan information is obtained by the U.S. Congress or other governmental authorities.

[1] We note that there is some ambiguity in the statute and guidance regarding whether payroll costs incurred during the 8-week period qualify for forgiveness if they are not also paid during the 8-week period.  This could be relevant for businesses that pay on a bi-weekly basis one week in arrears.  We hope future guidance from Treasury will address this issue. 

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 104
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Kris J. Eimicke, tax lawyer, Pierce Atwood
Partner

Kris Eimicke concentrates his practice on tax issues and economic development programs, with a special emphasis on state and federal new markets tax credit (NMTC) programs, renewable energy tax credits, historic rehabilitation tax credits, and the newly created opportunity zone program. Kris also regularly advises businesses, tax-exempt organizations, and individuals on tax issues related to a variety of business transactions, as well as representation before the Internal Revenue Service, state revenue agencies, and the courts on tax matters. 

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Mary-Laura Greely Business Attorney Pierce Atwood Boston, MA
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Mary-Laura Greely has extensive experience in mergers and acquisitions involving private and public companies, private equity, venture capital, and general corporate representation. She advises companies on strategic acquisitions and dispositions, equity structures, debt and equity financings, management buy-outs, corporate governance and succession planning, employment, intellectual property protection, and licensing arrangements. She has had significant experience representing both buyers and sellers in cross-border transactions.

Her clients represent a broad range of industries, including manufacturing, distribution, information technology, health care, medical device, financial services, retail, food and beverage, franchising, consumer products, and social entrepreneurial businesses.

Prior to joining Pierce Atwood, Mary-Laura was a partner in the Corporate Practice Group at Brown Rudnick LLP and Mintz Levin.  In 2008, a transaction involving the sale of her client to a large publicly-held speech recognition software company was awarded the "Tech Dealmaker Award" from Mass High Tech and The Association for Corporate Growth Boston.

In 2013, a significant asset acquisition by a leading financial service company, and an investment management company from one of the country's largest servicers of home loans on which she served as a team of advisors, was selected for the "M&A Advisor Deal of the Year" Award.

Mary-Laura has been a guest lecturer on various panels at Massachusetts Continuing Legal Education (MCLE), Babson College, and Boston University School of Law. She has served as outside legal advisor to numerous start-ups at Harvard Business School.

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Christopher E. Howard Corporate Finance Attorney Pierce Atwood Law Firm Portland Maine
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Chris Howard has a unique combination of technical legal skills and hands-on business and finance experience, enabling him to integrate these disciplines into strategies that match client objectives and provide clients with a competitive advantage. His forte is in managing complex commercial transactions and development projects in time-sensitive environments, and in accessing all sectors of the capital markets.

Chris' practice has four areas of focus:

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Stephen MacGillivray Real Estate Attorney Pierce Atwood Law Firm
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Steve MacGillivray has more than 20 years of experience advising companies, high net worth individuals, and organizations of all sizes in matters related to complex litigation as well as real property disputes including zoning and land use, title, easement and access, condominium disputes, adverse possession and prescriptive rights, commercial leases and claims based on trespass, nuisance, and other property-related torts.

He has successfully assisted developers in the appeal of denials of zoning, wetlands, or environmental permitting, and has represented municipalities on issues...

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Scott E. Pueschel Business Attorney Pierce Atwood Portsmouth, NH
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My practice philosophy is simple –  I pride myself on being practical.  I am also a believer that success in the business world is not achieved by playing a zero-sum game, but rather in the art of finding the win-win situation in a spirit of good faith and cooperation.  When it comes to transactions, my goal is to get the deal done on a reasonable basis for my client, without playing games, and as efficiently as possible while making realistic assessments of risk and reward.   When it comes to day-to-day support for my clients, I look for opportunities to impart my own business judgment...

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