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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 24, 2020

COVID-19: Clarification on Tax Treatment for Forgiveness of Covered Loans

This week, Congress passed the new coronavirus relief bill (Consolidated Appropriations Act, 2021), which is before President Trump for signature. Though the bill includes a multitude of changes to the Paycheck Protection Program (PPP), for taxpayers, one of the most important involves the deductibility of expenses paid with forgiven PPP funds.

When the PPP was originally rolled out, the IRS issued Notice 2020-32, which concluded that expenses paid with PPP funds would not be deductible. Thus, while forgiveness would not generate taxable income, the denial of a deduction related to the use of the funds effectively made the loan taxable.

In the “Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act” section of the relief bill, Congress states, “No deduction shall be denied, no tax attribute shall be reduced, and no basis increase shall be denied, by reason of the exclusion from gross income.” This effectively provides borrowers with tax-free forgiveness of PPP loan proceeds and deductible expenses for those expenses paid with PPP funds. For partnerships and S corporations, any amount of income excluded due to forgiveness is to be treated as tax-exempt income. Furthermore, any increase in the adjusted basis of a partner’s partnership interest will equal such partner’s distributive share of the deductions. This will allow distributions to be made to the partners and shareholders of an S corporation, thus resulting in a tax-neutral transaction. 

It is important to note this rule applies to all PPP recipients, including those who have already received forgiveness, those who have already applied for forgiveness, and those who are eligible for a second round of borrowing. The only unknown is how the states will treat the deductibility of the expenses paid with the PPP loan. There have been indications that New York State will decouple from the federal treatment and disallow a deduction for expenses paid with the PPP loan. 

Additional legal alerts concerning changes to the PPP will be forthcoming.

If you have any questions regarding the content of this alert, please contact Roger Cominsky, Financial Institutions & Lending Practice Area chair, at rcominsky@barclaydamon.com; Danielle Katz, associate, at dkatz@barclaydamon.com; or Samantha Podlas, associate, at spodlas@barclaydamon.com.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.
 

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