(SBA) issued a new interim rules on PPP – June 16, 2020

The Small Business Administration (SBA) issued a new interim rule on June 16, providing clarity on changes regarding the PPP. Specifically, the new rule gives detail on the amount of payroll costs that can be forgiven on a tax-free basis now that the covered period has been extended to 24 weeks.

This interim final rule also clarifies how much of the borrowers PPP loan can be spent on owner compensation within the new 24 week period.

The new rule states that companies can spend up to $46,154 per individual on payroll costs over the extended 24-week covered period to qualify for loan forgiveness. Payroll costs include covered benefits for employees ONLY, not owners, and can include healthcare expenses and retirement contributions.

This latest interim final rule also clarifies how much of the borrowers PPP loan can be spent on owner compensation within the new 24 week period. According to the rule, the amount permitted to be spent on owner compensation by individuals with self-employment income who file a Schedule C or F is determined based on eight weeks of 2019 net profit up to $15,385, or two and a half months of 2019 net profit up to $20,833 for a 24-week covered period.

In clarifying this issue SBA and Treasury stated … “This approach is consistent with the structure of the CARES Act and its overarching focus on keeping workers paid, and will prevent windfalls that Congress did not intend,” further explaining that “Specifically, Congress determined that the maximum loan amount is generally based on 2.5 months of the borrower’s average total monthly payroll costs during the one-year period preceding the loan.”

For example, a borrower with only one other employee who received a loan for two and a half months of his payroll plus two and a half months of payroll for the employee, for a total loan amount of five months of payroll. The government stated that without the new rule, that owner could theoretically lay off that employee, use a safe harbor in the new law, treat the entire amount as payroll, and have it forgiven.

“This would not only result in a windfall for the owner, by providing the owner with five months of payroll instead of 2.5 months, but also defeat the purpose of the CARES Act of protecting the paycheck of the employee,” the government said. “For borrowers with no employees, this limitation will have no effect, because the maximum loan amount for such borrowers already includes only 2.5 months of their payroll.”

SMALL BUSINESS ADMINISTRATION  13 CFR Part 120 [Docket No. SBA-2020-0037]  06/16/20
Business Loan Program Temporary Changes; Paycheck Protection Program – Revisions to
the Third and Sixth Interim Final Rules  (Full Text)