ERC is a tax benefit designed to help retain qualified employees. The ERC is designed as a gift. A qualified employee can receive ERC for the taxes withheld from his or her wages. Employees who work for more than a 5 day work week (40 hours) and who meet certain qualifications for permanent residency are eligible. If an employer cannot file a return on time, ERC is not available.
If you are an employer who has a qualified employee who has been in your organization for at least 90 days and you have not received a tax return or an invoice for the taxes withheld from your employee’s wages, the IRS may send a bill to the employer for the difference between what you have withheld from your employee’s wages and the total amount of taxes actually paid by the employee, including the additional ERC. If you have already paid a qualified employee more than you owe and the ERC was on your own withholding, ERC does not apply.
Employers must comply with all laws when providing or retaining employees or owe ERC to employees. Employee retention credit does not extend to new employees, same employer, different citizenship, or indirect workers or to an employee’s spouse or children. The benefits and rights described above only apply if the employer has not withheld taxes.
Employers are encouraged to send all tax returns on a timely basis to avoid penalties. If you have multiple employees and you have not filed an ETR within 4 months of the applicable ETR date, you may be subject to tax penalties of $250 per month for each 4-month period (30 months total). The IRS can charge $25 per hour in addition to these penalties if you have a single employee. See Publication 526, Individual Income Tax and Wage Tax Rules, for additional information.
Expense Reporting
An employee’s tax benefits related to the ERC are reported in his or her Form W-2, Employee’s Withholding Allowance Certificate, or (W-2E). The IRS requires employers to withhold the employee ERC and send the employer a Form W-2 for each qualified employee, including the employee’s spouse, as well as a Form 1099-MISC. The Form 1099-MISC includes information on all qualified employees who receive an ERC, including those who have qualified for ERC.
The Form 1099-MISC also includes information on the amount of the ERC paid, who paid it, and for what purposes. The form requires employers to include “Estate,” “Income,” and “Qualified Domestic Trip” amounts as well as an indication that it was withheld from the employee’s wages. Employers must report this information to the IRS on Form 1099-MISC-2 to provide a description of the taxes withheld. Be cautious in listing expenses on the Form 1099-MISC, particularly if the expense is deductible, because an employee’s inclusion of the expense on the Form W-2 can be an indicator of an illegal tax shelter.
Determination Of Qualified Income
The amount of qualified income for the ERC and in the Form W-2 varies depending on a variety of factors, including the employee’s residence, income, and the type of qualifying employer. There is no set income threshold.
Eligibility For ERC
The ERC is calculated based on the employee’s “tail” or fringe benefits, including:
- Exclusion of qualified education expenses for education, vocational rehabilitation, law enforcement, and military;
- Exclusion of qualified dependent care expenses for dependents and minors;
- Exclusion of qualified transportation expenses;
- Exclusion of qualified military reimbursements;
- Eligibility for the Thrift Savings Plan (TSP); and
- A program or program rule that excludes qualified distributions from a Roth or Traditional IRA.
Employers need to document in the Form W-2 that the fringe benefits do not include such excluded benefits.
Employer Withholding Tax
Withholding tax is due by the end of the first quarter after the tax deduction and on the 1099-MISC sent to the employee. The tax withholding must be calculated and reported for each employee on the applicable Form 1099-MISC, a form that is due to the IRS by the end of the third quarter.
Employers should not delay in filing an ETR if they have not withheld taxes and there is a potential for penalties. Employee retention credit offers employees the opportunity to receive an Earned Income Tax Credit for their employment and wages. In some instances, the EITC may reduce the employee’s tax liability. Be careful to verify that the EITC applies in each case.
Retention Credit Application
The Internal Revenue Service (IRS) requires employers to report the value of the employee’s ERC, including tax withheld, to the IRS within 45 days after the end of the tax year, for the purposes of determining whether the employee is entitled to an EITC, a retention credit, or to the ERS refund.
To avoid any potential penalties, it is critical to ensure that the withholding does not exceed the amount necessary to cover employee fringe benefits. Employers should carefully document in the Form W-2 the amount of ERC, including tax withheld, necessary to retain the employee’s eligibility for the EITC and the ERS refund.
Importance of Employee Retention Credit
Exclusion of employee fringe benefits from income by an employer can result in a refundable EITC of up to $6,318 for the 2016 tax year, as compared to the maximum of $3,044 for a single filer and $6,687 for a married couple filing jointly. In addition to the EITC, employees receive a credit for their contributions to a traditional and Roth IRA and a foreign-earned income credit equal to 50 percent of the employee’s eligible contributions for the 2016 tax year.
Here are few points that depicts the importance of Employee Retention Credit or ERC:
- ERC for Employment and Wages
The ERC for EWC is based on the employee’s wages paid by the employer. It is not based on other qualified benefits such as health insurance or health savings accounts. The employee’s share is 50 percent of the payroll tax paid by the employer and 35 percent of the employee’s wages.
EWC is available to employees who:
- Are an employee, other than an independent contractor.
- Employed at least 270 days during the 12-month period ending on March 31 of the tax year.
- Worked on a full-time basis for a qualified employer.
Payment of the ERC is required for all W-2 withholdings in 2017, including self-employment taxes, whether the employee has one or more qualifying employment. ERC is an overpayment of withholding tax, but not a penalty for overpayment.
- ERC for Non-Employee Benefits
Self-employment tax is also a non-employment tax. The ERC for non-employee benefits is equal to 50 percent of the cost of the benefits, including employer-provided transportation and health care, paid to an employee as compensation for services. In contrast, ERC for employee fringe benefits is based on the same method as the EWC. ERC for employee fringe benefits is available to employers with multiple or repeat employees.
The ERC for non-employee benefits is available to employers with an employee with 10 or more days of non-primary health coverage (i.e. for one month or longer in a 12-month period) or self-insuring employer (employer pays 100 percent of premiums for health insurance coverage). In contrast, the ERC for employee benefits is available to employers with an employee with 1 or more months of primary health coverage (i.e. for one month or longer in a 12-month period) or self-insuring employer (employer pays 100 percent of premiums for health insurance coverage).
Example 2a: Suppose the employee received the benefit of a $30,000 cash advance from her employer in 2016 for a consulting engagement that ended at the end of the tax year. She claims an ERC of $6,318 for her $30,000 cash advance and $3,032 for each additional $2,000 cash advance she received in 2016. (The $30,000 cash advance was a voluntary cash advance and did not accrue interest during the tax year.)
Example 2b: Suppose the employer paid the employee $300 per month for health insurance coverage. The employee’s health insurance coverage ended on December 31, 2015, and she was required to pay $400 in premiums for the coverage between January 1, 2016, and December 31, 2015. The $300 per month, cash advance tax is $30 for each month of health insurance coverage. Thus, the ERC for health insurance benefits is $300 x ($3,032 – $20) = $5,000.
- ERC for Retirement Contribution
The ERC for retirement contribution is based on the employee’s qualified retirement contributions.
- The employee’s share of the employee contribution for her qualified retirement plan is 25 percent of the employee’s wage base (defined as all salary except social security and Medicare taxes).
- The employee’s share of the employer contribution for a qualified retirement plan is 12.4 percent of the employee’s wage base.
- The employee’s share of the employer contribution for a pre-tax plan (defined as one that does not allow for a qualifying contribution) is 8.65 percent of the employee’s wage base.
Example 1: Suppose an employee’s retirement plan contribution for the year is $8,000. The employee’s share is $6,000. If the employee has $18,000 in taxable income, the total tax is $2,000 (i.e. $6,000 x .25) which is $3.05 per $1,000 of taxable income. The employee does not need to pay a penalty for underpayment of income taxes. The employer does not need to withhold any additional tax on this underpayment.
Example 2: Suppose the employee’s retirement plan contribution for the year is $4,000. The employee’s share is $3,000. If the employee has $15,000 in taxable income, the total tax is $2,400 (i.e. $4,000 x .25) which is $2.40 per $1,000 of taxable income. The employee does not need to pay a penalty for underpayment of income taxes. The employer does not need to withhold any additional tax on this underpayment.
Hence, ERC for retirement contributions is 100 percent. It is the employer’s responsibility to make sure that all of the employer contribution is actually paid.
- ERC for Subsidized Health Insurance
The ERC for subsidized health insurance is based on the employee’s share of the employee contribution for her subsidized health insurance plan. Employee retention credit can be used to offset employer contributions if the employee is leaving the employer group after contributing at least 3 months of premium or for 3 years. It is not possible to use the employer contribution to reduce an employee’s ERC.
Example 1: Suppose the employee’s share of the employee contribution is $6,000. The employer’s share is $6,000. The employee’s share of the employer contribution is $2,600. The employee’s share is 80 percent of the employer contribution. Thus, the employee’s share is $2,600 + $6,000 + $2,600 = $12,600. The employee does not need to pay a penalty for underpayment of income taxes. The employer does not need to withhold any additional tax on this underpayment.
Health industry reimbursements are based on the employee’s share of the employee contribution. Therefore, ERC for health insurance is based on the employee’s share of the employee’s contribution. The employer is not required to withhold any tax. The health insurer is required to withhold federal income tax at the employee’s marginal rate. The ERC will be calculated using ERC for health insurance.
Eliminate any other federal tax liabilities resulting from health insurance benefits. This reduces the company’s health insurance tax burden. An individual who is married and their spouse who is a non-citizen are not eligible for employer health insurance benefits.
- State Sales Tax Deduction
Sale of taxable goods by a retail merchant is a taxable transaction. Depending on state sales tax laws, you may need to deduct state and local sales tax. If the retail merchant charges no sales tax, the cost of goods is pure profit. If the retail merchant charges sales tax on the sale of taxable goods, then it is required to withhold the state sales tax. The federal tax withholding rate will be a percent of the gross sales price of the taxable goods. The cost of goods used to calculate ERC and sales tax should be the cost used to calculate the ERC.
If there is no sales tax and the taxable good is taxable income, then the cost should equal the after-tax cost. Employee retention credit may also be used to reduce state income taxes. You cannot deduct state sales taxes on employee-only housing (i.e., a home owned solely by an employee, rented solely by an employee or a home where an employee is also a renter).
Note: Failing to withhold income taxes on employee-only housing may result in employee wage and hour or overtime tax liabilities in some states. Some states do not allow a deduction for employee-only housing when the taxpayer has to pay income taxes on wages earned. This has a double impact for taxpayers who receive retirement benefits from an employer.
Workplace-sponsored private health insurance generally has a lower premium cost than employee health insurance. As a result, state and federal employee income taxes on a dollar of net employee income from wages earned are less than a dollar of net employee income from self-employment.
If the amount of gross income is under $75,000, employer contributions to HAS and other tax-deferred retirement accounts are 100 percent deductible from taxable income. If the amount of gross income is more than $75,000, employee contributions to HAS and other tax-deferred retirement accounts are fully deductible from taxable income.
Taxable distributions from retirement accounts are subject to ordinary income tax. Although the amounts may be subject to tax, the amounts are often tax-free as long as they are used to pay qualified medical expenses. For example, if an individual over the age of 65 receives a $3,000 HAS contribution and an exemption for qualified medical expenses, the individual can exclude the $3,000 contribution from taxable income.
The individual then can use the HAS contributions to pay qualified medical expenses. This may also be the case for retirement annuities and defined benefit pension plans, where the amount of income paid by the plan to eligible beneficiaries (such as employees) is excluded from income as long as the payments are for qualified medical expenses. If the medical expenses paid are higher than the individual’s eligible deduction, the taxes due on the excess amounts may be taxed at ordinary income tax rates.
- ERC Can Be Deducted Against Earned Income
Most of the ERC cost-of-living increases can be deducted against earned income. For example, consider a United States employee earning $70,000 per year with a one-year ERC increase of 3 percent. If the 3 percent ERC increase on that year’s wages is deducted against the $70,000 of earned income, the employee would not pay more than $1,625 in income tax (6.125 percent of $70,000, or $1,625). The result of using the new ERC amount would be that the employee’s after-tax income would be reduced by $1,625. In the example, the ERC change would reduce the $70,000 of gross income to $64,625, but the $64,625 would include an amount equal to $1,625.
Thus, ERC s can often reduce an employee’s state income tax burden. This is especially true in retirement where there may not be another tax to be paid on large or sudden tax-deferred withdrawals. In the most common situation, a taxpayer retired during the year and then took an early distribution from an IRA or 401(k) plan, resulting in a withdrawal that is taxable. If the IRS audits a taxpayer for a large withdrawal from retirement accounts, ERC can be a valuable tool to avoid paying the full amount of taxes due, along with interest and penalties.
- ERC Is Not Income
Eligibility for a home mortgage does not typically require a borrower to file a federal income tax return. ERC is not income, and tax returns are not required to disclose ERC payments to lenders or other lenders. Eligibility for an automobile loan does not typically require a borrower to file a federal income tax return. ERC is not income, and tax returns are not required to disclose ERC payments to lenders or other lenders.
Eligibility for a home mortgage, car loan, or other loan that does not require a federal income tax return is not generally expected to require the borrower to file a federal income tax return. These loans are typically secured against a property that is often vacant, and in the case of home mortgages, are secured by a lien on the property. Accordingly, the buyer usually does not report the ERC payments on his or her federal income tax return, but instead depresses or raises income (or deductions) to cover the payment to the lender.
Eligibility for an automobile loan typically requires the borrower to file a federal income tax return, as with most other loans. In the event that a borrower has an ERC shortfall, however, the shortfall can be covered by withholding the ERC amount from the auto loan. The borrower can then use the remainder to cover any income taxes due or pay additional taxes or interest that may be due.
The same is true for medical expenses. The maximum amount of interest, penalties, and taxes that a borrower can deduct from his or her income tax return in an ERC situation would be dependent on the loan agreement. When making medical expenses a deduction or credit, the amount must be equal to or greater than the total amount of the debt on which the medical expenses are deducted. The other factor to consider is whether the ERC issue is significant enough that the borrower needs to seek tax advice or do a financial analysis prior to obtaining the loan.
- ERC Payments Are Not Required
There are certain instances in which payment of ERC is not required by the law. These situations typically have to do with special rules (of which there are a few) that provide more generous treatment to borrowers in these situations. One of the most common is the “use-it-or-lose-it” rule.
In a nutshell, a borrower who pays an ERC obligation that he or she could not use had he or she paid it in the first place must “use” the ERC to get back any interest and penalties that he or she paid on the obligation. But because the ERC would still exist if the borrower paid it, he or she cannot currently or in the future use this obligation in the future without paying the full ERC amount. The borrower would, in effect, be placing a new mortgage on the property in exchange for paying the previous mortgage.
- ERC Payments Can Cause Interest to Increase
The typical situation in which an ERC payment increases the interest rate on a loan is when the borrower takes a mortgage and does not pay any interest on that mortgage for a number of years. The effect is that the interest rate on the existing mortgage will be greater than the rate on the new mortgage, and in some instances, the new rate can be as much as 4 percent higher. This issue has actually been a factor in several of the recent cases in which the Supreme Court ruled against lenders.
- Lenders Control the Decision
If a borrower does not make a payment on an ERC obligation, the obligation will be deemed to have been satisfied on the last day of the month following such payment and the ERC funds will be returned to the lender. However, if the ERC payment is not made, a lien on the borrower’s home remains. Since lenders can also foreclose on the property and sell it, the borrower could lose the property altogether, though the mortgage lender could still continue to collect the ERC and the buyer could continue to use the ERC money to pay the existing mortgage.
This situation is one of the reasons that it is generally better to pay the ERC when the payment can be made on the last day of the month following such payment. This is not always possible, of course. It could be that the ERC obligation that has been placed on the home by a lender in a purchase agreement would not be released until the loan is paid in full.
Another issue is that borrowers might not know when they have fulfilled the ERC obligation. In that situation, the existing lender would likely be the one to decide that the ERC had been paid, and, since they would have a lien on the property, they would probably do a default and demand the property for foreclosure. (Some courts have ruled that this is not permitted, however.)
- Homeownership Now Also Becomes a Burden for the Borrower
If the ERC payment is not made, home ownership might be hindered, since the responsibility for payments would be placed on the borrower and the homeowner could be placed in a situation in which the borrower has to pay property taxes, insurance, and other regular living expenses on an ERC debt that, in most cases, would still remain outstanding after the loan is paid.
Also, because some mortgage lenders may foreclose when a borrower defaults on an ERC, some homeowners who are trying to sell their homes or have just refinanced might find their home is no longer theirs, since the mortgage lender still has the right to sell the property and keep the ERC money.
- Receiving an ERC Payment Makes It More Difficult to Get a Loan
When a homebuyer makes an ERC payment, the homebuilder or seller usually does not receive a rebate for the ERC payment. It is an additional expense to the homebuyer. For many homebuilders and others who work in the homebuilding industry, the ERC payment represents a delay in getting a loan, since lenders are reluctant to grant a loan if they do not know when the ERC will be paid. The delay also affects the borrower, who might not be able to move into the home until the ERC money is received.
For example, the housing industry has long complained that homebuyers have difficulty obtaining financing while the ERC money is outstanding, so lenders often insist that all ERC payments be made promptly so that they can arrange for a final settlement of the ERC debt. Homebuyers often have little choice but to agree to make ERC payments on such short notice, although sometimes the delay may result in the buyer signing over a higher-interest mortgage for an extension of time to make the ERC payment.
For those who are seeking the best mortgage rates, the payment might be especially unattractive, since those who choose to pay ERC when they receive the ERC could be forced to pay a higher interest rate on their home loan, since some lenders are requiring that homebuyers who pay the ERC include that amount in the price that they have to pay on the loan.
- Homebuilders Have Other Fees Related to ERC
Homebuilders may charge additional fees when it is required to issue an ERC payment to homebuyers, such as an additional application fee. These costs can add to the cost of buying a home and could make the ERC even less attractive to homebuyers than it may have been previously.
Further, most homebuilders expect that if the ERC payment is made on time, the homebuyer will not make any ERC payments on subsequent homes, so homebuilders often require that the ERC payment be made in order to get the loan, so they do not have to issue an ERC payment again.
Also, homebuyers can often only be approved for a loan if the ERC is paid on time, so homebuilders typically charge that fee as well. Therefore, a homebuyer who intends to buy a house under the homebuilder’s program may find that he or she has to pay $1,000 to the homebuilder in order to get a $30,000 loan that is available to a homeowner who has the $30,000 to pay the ERC at the time the ERC is due.
- Homebuilders & Mortgage Brokers May Move Home Buyers Into a More Expensive Home
In some cases, the ERC payment might not make it possible for homebuyers to buy a home that is more affordable than the home that they are seeking. If a homebuyer finds a house that he or she wishes to buy at a price that he or she thinks is affordable, and is told that the ERC payment will not allow that house purchase, the homebuyer may be forced to use an ERC payment to buy a house that is less affordable than the one that the homebuyer would otherwise have been able to purchase.
For example, if a homebuilder sends homebuyers an offer to buy a home that is priced at $350,000 and the ERC payment is $10,000, it is likely that the homebuyer’s mortgage broker may point out that the $10,000 ERC payment is more than the homebuyer could afford to pay, so it would be inappropriate for the mortgage broker to let the homebuyer buy the $350,000 house. The mortgage broker may then ask the homebuyer to use the $10,000 ERC payment to buy a house priced at $360,000 instead.
Under the ERC program, it is unclear how mortgage brokers could realistically seek to prevent homebuyers from buying a home that they believe is more affordable than the one that they want to buy. In addition, the homebuilder might have a similar motive, and it might seek to maintain the lowest possible price for the homes that it is selling so that it can receive the biggest share of the $140 million that it is receiving in ERC payments, since each of the homes that the builder sells under the ERC program is likely to have to be sold to a different homebuyer than was sold to the homebuyer who received the ERC payment.
- ERC is Beneficial for Homebuyers in Several Other Areas of the Housing Market
The ERC program may also be beneficial to homebuyers in another area of the housing market: the home improvement industry. It is usually cheaper for homeowners to make home improvements themselves than to have them done professionally. The ERC program encourages homeowners to make their homes more energy efficient by providing them with the opportunity to make needed home improvements for free. Homeowners who make energy efficient improvements such as installing solar panels or high-efficiency air conditioners for free will be able to deduct those improvements on their tax returns, and they will be able to use the money that they would otherwise have paid to have these improvements done to make an ERC payment on their mortgage.
The ERC program may also be beneficial for homebuyers in another area of the housing market: student loan borrowers. Most borrowers who are not eligible for an FHA loan must pay private mortgage insurance (PMI) to protect their lender from defaulting on a loan. PMI premiums cost millions of dollars per year and are a considerable burden on many borrowers.
The ERC program, which does not require mortgage borrowers to pay PMI, may provide an alternative to the PMI system for some borrowers who would otherwise have to pay the premiums. For example, some young college graduates may be eligible for an FHA loan but who may not be able to qualify for a PMI-required mortgage because their income is too low. The ERC program could allow such borrowers to refinance their current PMI-covered mortgage into an ERC-eligible mortgage.
- The Fair Housing Act Requires That the ERC Payment Be Shared between Homebuyers in Each Household in the Purchasing Household
The Fair Housing Act requires that the ERC payment be used to “improve the quality of housing in the United States” and to “reduce the spread of housing poverty.” The Department of Housing and Urban Development’s website states that the program is intended to reduce housing market segregation and increase the number of fair housing choices available to consumers, which benefits “American families.” (http://www.hud.gov/ero/etip.html#achttab) HUD also states that the program has the primary effect of helping low-income and minority homebuyers, which is “consistent with HUD’s commitment to inclusive housing choice.” In addition, the ERC payment can be used to purchase the home in which a purchaser lives. As a result, the ERC payment is a benefit to the homebuyer and a disincentive for homebuyers in adjacent households from selling to each other.
Because the ERC payment is intended to help with housing market segregation and to reduce the spread of housing poverty, the policy requirements that the program has put in place preclude the program from serving to segregate homebuyers by income or race. The ERC payment must be used to buy a home in a neighborhood with an available supply of affordable homes in order to benefit financially or otherwise from the ERC payment. The policy requirements also prohibit discrimination by race, ethnicity, national origin, or sex when purchasing homes.
This was the first major action that HUD has taken to address housing market segregation. Other efforts have been undertaken since, to address segregation and income and wealth inequality in the housing market. The key policy differences between these approaches is that the ERC program uses a one-time payment to purchase a home rather than the ongoing support that the other programs provide for homebuyers, but it does not provide ongoing financial support to help homeowners with the cost of maintaining their homes.
- The ERC Program Benefits Homeowners in Cities With the Most Unaffordable Housing Markets
The City of Oakland is home to the most expensive housing market in the country. Because of this, a homeowner in Oakland who pays the full ERC payment, calculated using HUD’s Multiple Listing Service (MLS) data, would need to spend more than 1,000% of his or her income to be able to purchase a home there. And the majority of homeowners in Oakland are concentrated in some of the most expensive neighborhoods in the country. According to HUD’s 2006 Multifamily Housing Indicators report, of the 99 high-cost U.S. cities, the cities with the most unaffordable housing markets were Oakland, San Francisco, Seattle, New York, and Los Angeles. The ERC program helps low- and moderate-income families in Oakland buy homes in Oakland, but in some of the most expensive housing markets in the country.
In addition, housing data suggest that there may be racial bias in the selection of neighborhoods in which homeowners who qualify for the ERC payment are chosen to participate. This would result in the payment benefiting homeowners in areas that are more expensive and not in more affordable areas. In an analysis conducted by Enzyme Capital Management in 2016, their analysis found that Oakland, the city where the ERC payment is intended to help, is dominated by a group of neighborhoods that would be considered among the least racially and ethnically diverse neighborhoods in the United States. Their analysis also found that in Oakland the ERC payment is awarded at a higher price point than for other cities in the country. This could reduce homeownership opportunity for renters in Oakland.
The ERC program may also be beneficial to homeowners in a city where home prices are much lower than in Oakland, such as Seattle. A HUD study found that home prices in Seattle are less than half of those in Oakland. In Seattle, the homeowners who are eligible for the ERC payment pay just over 1% of their income to purchase their home.
Conclusion
One of the great benefits of the ERC deduction is that it can result in significant tax savings for certain taxpayers. In some cases, ERC can reduce an individual’s federal income tax bill by thousands of dollars. The importance of ERC can also result in some ERC-related disputes. These disputes are very important for taxpayers who are expecting a refund, and even more important for taxpayers who are paying taxes and expect to get a refund.
When engaging a tax professional to help with these matters, it is important to share all of your tax information with the tax professional. The most common dispute resolution issues involve determining the number of qualified expenses, determining the amount of ERC payments that can be deducted, and, in some cases, the timely filing of tax returns that may be required if the ERC issue is not resolved prior to the year in which the ERC payment would be due.
