The IRS is offering an amazing deal to those who either fraudulently or mistakenly claimed Employee Retention Credits (ERC) to which they weren’t entitled.

If a taxpayer claimed and received ERC funds, and for whatever reason now realizes that they may not actually have qualified (either for a particular period or for the whole thing) — they can return 80% of the money to the IRS and call it a day.

Considering that more than 3.6 million claims have been submitted, and the IRS refunds run up to $26,000 per employee… we’re talking about big dollars here. As of July 31, 2023, the IRS Criminal Investigation division had initiated 252 investigations involving over $2.8 billion of potentially fraudulent ERC claims.

We were extremely diligent in filing ERC claims for our clients — it took literally months of effort in research, software development, calculations, data collection, interviews and narrative-writing, not to mention preparing the actual tax forms and support. So initially I was extremely frustrated to find that people who filed claims without substantiation could return only 80% of the money and keep 20% for themselves. However, IRS Commissioner Werfel explained the rationale behind this decision, as reported by Journal of Accountancy:

“We could not stand idly by as small businesses were being taken advantage of by promoters trying to get hefty fees,” he said. He later described the 80% figure as “an important incentive to participate in the disclosure program. Participating businesses do not need to repay all 100% of the payment they receive.”

And this makes sense. Not just our clients, but our own firm (which decidedly does not qualify for ERC) was bombarded by calls and official-looking forms designed to lure us in to thinking that we were entitled to this “free money”. And they charged exorbitant fees in the 20-30% range, without providing any of the substantiation a taxpayer would need in case of audit. As a result, these scams topped the list of the IRS “Dirty Dozen” in 2023.

So it’s not surprising that, although the process to participate in the voluntary disclosure program is quite easy and simple — one of the requirements is that the applicant must provide names, addresses, and phone numbers of any advisers or tax preparers who helped with the claim, as well as details about the services provided. I’m hoping that this will cause some of these “mills” to get what they deserve for defrauding small businesses and our government.

Taxpayers wishing to participate in the ERC voluntary disclosure program must notify the IRS by completing and submitting Form 15434, Application for Employee Retention Credit Voluntary Disclosure Program. Program participants will not be charged underpayment interest, and the IRS will not assert civil penalties against them for underpayment of employment tax attributable to the ERC. And those that cannot repay the required 80% might be considered for an installment agreement.

If you are among those who has submitted a claim that hasn’t been approved yet (or received your checks but have not yet cashed them), you can still withdraw your claim, following instructions on the IRS ERC FAQ (#5 under “Correcting an ERC Claim”). They even include a sample withdrawal form.

I’ve interviewed countless ERC claim companies and narrowed it down to only two with whom I have trusted my colleagues and their clients. (It’s truly stunning how many out there have no idea what they’re doing, even the ones that aren’t intentionally skirting the rules.) One of them, Tri-Merit, recently released an episode of Randy Crabtree’s Unique CPA Podcast that dives into the biggest ERC changes for 2024. The service of theirs I recommend the most often (for which I can offer a referral link) is their “ERC Verification” offering, where they take a look at what you’ve claimed and either verify that it was done correctly, or recommend changes and help process the amendments. They stress that it is never too late to fix a claim that has already been paid.

And for those of you who have filed accurate ERC claims and are still waiting for the IRS to end its moratorium — still no information on when processing will begin again. Keep your eye on the AICPA’s ERC Resource Center; or check in with my blog — I’ll be one of the first to joyfully report it when the time comes!

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