This is a wonky post about tax law and at the same time a pissed-off post about political advocacy under cover of "neutral" commentary that takes advantage of people's ignorance of a nuanced area of law.
Bruce Willey, an Iowa-based tax lawyer, claims in a pearl-clutching post on Kiplinger that recent IRS guidance on Paycheck Protection Program (PPP) loan forgiveness "could bankrupt small businesses:"
On April 30, late in the evening — when few people were likely paying attention — the IRS released guidance that essentially nullified much of the benefit of the Paycheck Protection Program (PPP) created under the CARES Act. It stated that those who receive PPP may not receive tax deductions for using those funds to pay expenses. That includes expenses like payroll and rent, the very point of the PPP.
Let’s say a small-business owner requests and receives $600,000 to cover payroll for the 10 weeks where he or she is covered by the PPP. If they can’t deduct that amount as expenses, that means their federal tax burden clocks in at a rate of 37%.
That equates to a $222,000 increase in their taxable income. Meaning the effective tax-free benefit of the loan is $378,000, not the $600,000 intended by the law.
No, no, no, it does not. And it's easy to see why.
Let's say that the small business takes $600k in PPP loans and pays out $600k in payrolls (including employer payroll taxes) in 2020. Let's also say the business takes in $600k in sales revenue, and that their total 2020 deductible expenses would be $1.2m regardless of the PPP.
So: Under the CARES act, they have $600k in taxable income and $1.2m in deductible expenses. But, since 50% of their 2020 books income was the $600k grant, they can only deduct 50% of that $1.2m—i.e., $600k. Result: $0 adjusted gross income and $0 taxes.
Now let's look at what happens if Bailey's wish comes true, and why the IRS said no. If the business can deduct the full $1.2m, they will have a net operating loss (NOL) of $600k, that they can use to offset future income. And that can generate future NOLs until they finally have enough AGI to offset the full NOL. A $600k NOL for a $1.2m-a-year business would probably wipe out their income tax burden for many years.
In other words, the result of the IRS guidance isn't that the IRS would cost the business money; it's that it would prevent the business from avoiding legitimate taxes in future years. And Willey knows this; he's just hoping you don't.
(Also, the IRS releases guidance every Friday night, which he also knows. But people who don't deal with income tax regularly probably don't, which he's counting on.)