15 Jan 2021 PPP Forgiveness and Expenses: State Tax Implications
Authored by RSM US LLP |
One of the largest relief measures in the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) is the Payroll Protection Program (PPP). The intent of the PPP is to assist both for-profit and nonprofit employers in maintaining their payroll during the COVID-19 crisis. Under the program, the Small Business Administration providing 100% federally insured loans for certain covered expenses. Generally, these loans are forgivable in full if employers retain employees at salary levels comparable to those before the crisis. Under normal circumstances, forgiven loan amounts are generally taxable for federal income tax purposes, but the CARES Act, under section 1106(i) of the act, expressly excludes the forgiveness of PPP loans from federal gross income, and thus federal income tax.
Will forgiven loan amounts be subject to state income taxation?
At first glance, determining whether debt forgiveness under the CARES Act is taxable in a state seems straightforward. In the 21 states and the District of Columbia that have rolling conformity to the Internal Revenue Code (IRC) the forgiven loans will likely not be subject to tax. These states conform to the latest version of the IRC including any amendments or revisions as they occur. Static or fixed-date conformity states conform to the IRC on a given date, or conform to specifically enumerated provisions. Accordingly, in the states with static or fixed-date conformity, taxpayers receiving loan forgiveness could face substantial state income tax liabilities as a result.
Whether a borrower’s loan forgiveness is taxable at the state level largely rests on the particular state’s conformity rules. That being said, taxpayers should be aware that it is difficult to generalize about conformity during a dynamic period of frequent state and federal changes. Some rolling conformity states may opt to decouple from the CARES Act, and thus the loan forgiveness exclusion, as New York recently did. Static conformity states may choose to conform to the CARES Act, much like Wisconsin. Many more static conformity states are likely to conform to the federal exclusion. However, most state legislatures have adjourned their sessions for the year. It is possible that legislators in these states will opt to exclude the forgiven loan amounts from state taxation when they return. It is imperative for borrowers to know the status of their states’ conformity rules and to plan accordingly.
An additional twist
Section 1106(i) of the CARES Act provides that forgiven loans are excluded from gross income for purposes of the IRC. That forgiveness provision does not amend the IRC. Most states calculate state income using some connection or conformity to the IRC. When reviewing state conformity for purposes of the PPP loan forgiveness exclusion, a state could take a position that section 1106(i) has no impact on whether the loans are forgiven for state tax purposes because, while the state may conform to the IRC, it may not conform to section 1106(i) and the other federal provisions in Title 15 (where the PPP provisions are codified) of the federal code. Accordingly, even in states that conform to the IRC, the federal loan forgiveness provisions may not apply to the state calculation of taxable income, resulting in the forgiveness included in state taxable income. While some states do conform to the IRC and other federal code provisions, others may only conform to the IRC, or Title 26. While highly nuanced, taxpayers should be aware that states may need to provide additional guidance clarifying that PPP loans are also forgiven for state tax purposes.
What about expenses?
An additional complexity at the state level is the treatment of expenses incurred when using the funds from the PPP. Originally, the IRS released Notice 2020-32 providing that taxpayers who receive forgiveness for a loan under the provisions of the PPP may not ‘double-dip’ by also deducting the amount paid out to employees as expenses if the payment of the expense results in the forgiveness of the loan. However, this was recently reversed when congress explicitly approved the deductibility of covered expenses paid with PPP funds through H.R. 133 and signed into law by the president on Dec. 27, 2020. The Notice was subsequently made obsolete by the IRS.
Similar to the nuance as to whether states will conform to the income exclusion, some states may deny the deduction or require income inclusion and allow the deduction. Ultimately, it is anticipated that the states will provided guidance on whether they will allow taxpayers a ‘double benefit’ with respect to PPP income and expenses.
Some states are taking affirmative steps to address these issues in legislation and guidance. For example, on June 30, 2020, North Carolina Governor Roy Cooper signed House Bill 1080, updating the state’s fixed conformity date to the Internal Revenue Code to May 1, 2020 and specifically incorporated the loan forgiveness provisions under section 1106 of the CARES Act. However, the bill also requires an addition modification for any expenses deducted under the IRC to the extent that payment of the expense results in forgiveness of a covered loan pursuant to section 1106(b) of the CARES Act. Subsequently, the North Carolina Department of Revenue released a notice on PPP forgiveness. That notice provides clear guidance on its treatment of both of these issues for both individuals and corporations. In both cases, the state provides that the amount of forgiven PPP loan is not included in the calculation of North Carolina taxable income. However, any expenses paid using the proceeds of the PPP loan that are deducted for federal tax purposes are not deductible when calculating North Carolina taxable income.
North Carolina is one of only a handful of states that have provided guidance on expenses as of the date of this article.
Taxpayers should carefully assess the state tax effects of applying for PPP loans and the consequences of successfully having those loans forgiven. It is critical to review the general conformity rules concerning forgiveness of debt, the state’s response to the CARES Act, and the treatment of expenses. It also important to understand the more subtle opportunities and risks associated with state taxation of loan forgiveness.
From a more practical perspective, many states will neither include the PPP loan forgiveness into income nor allow a deduction for those expenses, essentially creating the same state tax impact as if there was no PPP program. However, subsequent federal legislative changes to the PPP expense disallowance may impact the states, regardless of conformity. Additionally, taxpayers should be aware that pending quarterly estimates may need to be adjusted based on how states respond to forgiveness and expenses. Taxpayers with questions about the state response to PPP conformity and expense deduction are highly encouraged to reach out to their tax advisors as state guidance on these issues is beginning to increase.
Other state considerations for the COVID-19 pandemic can be found in RSM’s State tax planning in response to economic distress. For more information on the coronavirus, please see RSM’s Coronavirus Resource Center.
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This article was written by David Brunori , Brian Kirkell, Mo Bell-Jacobs and originally appeared on 2021-01-15.
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