Survive a PPP Audit
Olivier Le Moal

Survive a PPP Audit

If you were the beneficiary of Paycheck Protection Program dollars and anticipate loan forgiveness, then you run the risk of an IRS audit. Here's how to persevere if you get targeted.

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July 24, 2020

The Paycheck Protection Program (PPP) was aimed at helping small businesses keep workers on the payroll and pay other bills during the pandemic.  However, confusion about turning PPP loans into non-repayable grants is palatable.  The U.S. Department of the Treasury and the Small Business Administration (SBA) have promised they will audit all PPP loan recipients who seek loan forgiveness.  

Today the IRS is reaping larger and larger amounts from fewer and fewer targeted snow removal and ice management businesses thanks to better profiling of potential audit targets and better use of their limited resources.  The IRS’s own figures reveal that, in general, only one or two percent of all taxpayers actually face audits each year, the nerve-wracking threat of a potential audit remains high.

PPP LOANS
PPP loans are loans that may be forgiven if the snow removal business meets certain criteria, chiefly spending at least 75% of the loan amount on payroll and no more than 25% on rent, mortgage interest and utilities.  Sweetening the pot, the Coronavirus Aid, Relief and Economic Security (CARES) Act allowed any amount forgiven can be ignored for federal tax purposes.  Of course, no tax deduction is allowed for otherwise deductible expenses (e.g., payroll costs, rent, etc.) if the payment of the expense results in forgiveness of the covered loan.

 

Most of the problems surrounding the PPP involve the conditions needed to turn the loans into grants.  PPP loan recipients were required to certify that “current economic uncertainty makes the loan request necessary to support the ongoing operations of the Applicant.”  What’s more, snow removal contractors and businesses seeking loan forgiveness were also required to certify they “used the forgiveness amount of keep employees and make eligible mortgage interest, rent and utility payments.”

Certifications found to be inaccurate or untrue are punishable under criminal and civil law.  But, how can anyone certify to an uncertainty and what makes the funds necessary?  Ultimately, of course, it will be the courts that decide, but given the stakes, all borrowers can expect a bare-minimum file review -– or a deep-dive forensic audit.

In addition to SBA audits, borrowers must prepare for investigation by the Special Inspector General for Pandemic Recovery and reviews by the Pandemic Response Accountability Committee and the Congressional Oversight Commission, although these presumably will be limited to borrowers of larger amounts.

A snow or ice removal business that fails a PPP audit jeopardizes all or part of their loan forgiveness and, potentially face False Claim Act prosecution by the U.S. Department of Justice (DOJ).  In the face of the threat posed by all of these audits and reviews and a lack of guidance about calculating the portion of the loan that is forgivable, many contractors and other business owners are concerned that they’ll be on the hook to repay those amounts.

RECORDS AND MORE RECORDS
Many snow and ice removal business owners, even those with no intent to commit fraud, often fall short when it comes to documentation and paperwork.  More often than not, businesses are cautioned to keep good records for tax purposes.  This time, those records could be crucial to forgiveness of a PPP loan.

Even if the snow removal business pays its taxes dutifully, it may be penalized for lacking documentation.  After all, the law requires every taxpayer to retain the records used when preparing the tax returns.  Those records generally should be kept for three years from the date the return is filed.

A good recordkeeping strategy might include depositing PPP funds into a separate bank account.  Beyond that, all expenses should be documented.  Utility bills, rent statements, leases, cancelled checks, bank statements tracing any electronic transfers and other expenses that qualify for loan forgiveness such as health insurance.

These amounts should be consistent with the amounts in the loan forgiveness application.  Obviously, judgement is required to project revenue and expenses during these uncertain times, including the ramp-up period as the snow and ice removal business reopens but before the economy returns to pre-pandemic levels.

PPP RECORDKEEPING CRITERIA
Auditors consider contemporaneous documentation – or an accurate written record of how the funds were applied – as more persuasive than information created once an audit or review begins.  In other words, it is more efficient to organize records and documents now rather than attempt to create them later when under pressure.

Among the supporting documentation for funds used to cover payroll costs, mortgage interest, rent and utility costs should be:

  • Payroll verification to demonstrate funds used for payroll, mortgage interest or lease and utility payments.
  • Invoices for mortgage interest, lease payments and utility services.
  • Lease agreements stating amount due.
  • General ledger entries showing use of PPP funds.

When it comes to showing employee and compensation levels, from periods beginning February 15, 2020, through the end of the period after the loan was made include:

  • Payment records such as payroll tax reports, employee benefit records and compensation records.
  • Calculation of full-time equivalents and pay rates, and
  • Documentation to support headcount changes.

Any remaining cash surpluses should be supported by documenting the use of those funds beyond the period analyzed.  Naturally, the underlying supporting documents should provide enough support for the certification.


Although the threat of PPP loan and loan forgiveness audits is a major concern, wading through a backlog of applications, removing duplicates from borrowers that applied at more than one bank and the Congressional confusion continue to slow the process.  But, don’t forget about the IRS, an agency that appears increasingly determined to find and audit all businesses.

A SMALLER TARGET
Computers are less forgiving than humans.  Any snow and ice removal contractor who hopes to survive and thrive under the new algorithm-based IRS, should follow a few guidelines.
Always be prepared for scrutiny.  Understanding the tax rules and potential red flags is essential to knowing what information should be saved and for how long.
Be prepared to move quickly.  Information Document Requests (IDRs) and face-to-face audits now move on a shockingly fast timeline so have a plan of action.  Build a relationship with an accountant who can step in quickly when you get the dreaded IRS audit notice.
Consistency is key.  Inconsistencies in paperwork happen even to honest people when the accounting is not handled professionally.  The IRS, however, is increasingly seeing discrepancies as fraud until proven otherwise.
Expect no mercy. IRS agents are being allowed no wiggle room and no grace.  This attitude is being passed on to the businesses they deal with.

TAXPAYER RIGHTS
The Taxpayers Bill of Rights, part of the IRS Restructuring and Reform Act of 1998, requires the IRS to provide a written statement detailing the taxpayer’s rights and the IRS’s obligations during the audit, appeals, refund and collection processes.
These rights include:

  • A right to professional and courteous treatment by IRS employees.
  • A right to privacy and confidentiality about tax matters.
  • A right to know why the IRS is asking for information, how the IRS will use it and what will happen if the requested information is not provided.
  • A right to appeal disagreements, both within the IRS and before the courts.

Among the most important of the rights given every taxpayer whose returns are targeted for an audit is whether to be represented by a tax professional, or whether to attempt to answer the IRS's questions alone.  Another important consideration for everyone and every business owner and manager being audited is where to hold that meeting.  Not too surprisingly, there is no one right answer.

HAVING THE LAST WORD
Until a snow and ice removal contractor agrees with the IRS, the appeals process remains open.  Most importantly, from the initial screening for accuracy that each return receives up to the final appeal has been exhausted, mistakes in the favor of the taxpayer are discovered in about 25% of all cases.

The IRS is usually quite sympathetic to honest mistakes and more than willing to discuss underpayments of taxes that may result from the many so-called "gray" areas of our tax rules.  They'll frequently negotiate the amount of tax due on occasion.  But they don't like fraud.

Honesty and clarity go a long way toward preventing, dealing with and surviving an IRS audit.  Naturally, every snow removal and ice management operation should have a strategy for avoiding audits as well as for dealing with an IRS auditor.  A fallback position if those strategies fail should also be in place.

PROFESSIONAL HELP NEEDED
The PPP was intended to ensure all businesses had access to sufficient resources to keep workers employed while the snow removal operation weathered the coronavirus pandemic.  Borrowers should not be frightened by the government’s warning that audits are inevitable, instead preparing now to ensure those benefits are not lost.

Beginning early, maintaining accurate documentation, assessing risks and considering the assessment criteria and preparing for a likely audit from any of a variety of sources can help every snow and ice removal business withstand the added scrutiny.  The advice and assistance of a qualified professional is also an invaluable tool.

Mark E. Battersby is Snow Magazine's finance and accounting writer. He's based out of Ardmore, Pa.