Tag Archives: IRS guidance

Don’t Believe The Hype: IRS Provides Update on Employee Retention Credit (ERC) Processing

Thanks yet again, and as always, to Lisa Simpson from the AICPA Town Hall for her regular updates on what’s going on with Employee Retention Credit processing at the IRS. I can trust this team to make sure I’m getting the latest information, free from rumors and gossip, and that I’m able to both quell my clients’ concerns and also manage their expectations.

I had just been hearing some rumblings in one of my professional associations — someone had said, “seems inevitable that anyone who filed an ERC claim after September 2023 will need to file a lawsuit to get the claim paid,” and went on to suggest that it would be a great opportunity for a law firm, and wanted to know if we had referrals in this space.

First off, it made me nervous — our remaining ERC claims, all for deserving small business and non-profit clients of a colleague, worked really hard to make sure we had what we needed to submit their claims by January 31st, 2024, since there was pending legislation that might retroactively end the program after that date. They all were informed that it might be a year or more before they received the money, given the IRS moratorium — but certainly none of us expected to line the pockets of an attorney in order to get the claims paid out. And in fact, the claims were mostly small enough that my guess is most lawyers wouldn’t bother with them.

Secondly… it made me suspicious. On what basis was this guy saying a lawsuit would be “inevitable”? I attend every single AICPA Town Hall and hadn’t heard anyone suggest this. And what a sad thing to suggest it would be a “great opportunity” for a law firm — to specialize in making money off those desperate to finally receive what they and their accountants had already worked so hard to obtain.

As usual, I decided to quell those fears until the next AICPA Town Hall, and I’m so glad I did, as Lisa Simpson made ERC the first topic in her Technical Update. She explained the recent IRS news release that likely triggered the unfounded rumblings I was hearing, as well as referenced a new Journal of Accountancy article that delved deeper.

My takeaway was that: while 10-20% of claims are clearly fraudulent, and the IRS is in the process of denying them; and another 60-70% show an unacceptable level of risk and will be examined carefully — there are also between 10% and 20% of the claims show a low risk. The IRS “will begin judiciously processing” more of these claims, and, according to the release, expects some of these payments to be made later this summer.

To me, that’s all good news. It means they’re working through the piles and expediting the ones that have straightforward claims where the businesses played by the rules, processing the oldest ones first. The rest will be examined more critically, or in the case of blatant fraud, flat-out denied.

The one disappointing piece of information is that no claims submitted during the moratorium will be processed at this time. But at least we know the backlog is being cleared to make way for them. Since the moratorium was put in place, the IRS has received over 17,000 claims per week.

I’ve let my clients know that they shouldn’t budget for these dollars for at least another year, but that there’s no reason to presume they won’t eventually receive the claims that are due to them.

And yet again I learned that if something sounds sensational and suspicious… it might not be grounded in evidence and analysis. Rely only on your trusted advisors for the education and resources that will help you guide your small business clients. (And then provide links to those resources to the sensationalists who spread misinformation.)


If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. Ths allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.

ERC Voluntary Disclosure Program: aka Last Chance To Keep 20% Of Your Unentitled Pandemic Tax Credit Funds

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!


If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. Ths allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.

Tax Season 2023 Is Officially Open! Maybe. Okay, Not So Fast.

(Many thanks to the AICPA Town Hall for allowing members to leverage their resources, such as the slides included in this article. The opinions shared here are the author’s and not those of AICPA or CPA.com.)

Tax preparers everywhere spent the past two months gearing up for yesterday’s “opening day” of tax season, January 29th. It was an exciting time for us, as it was finally going to be a return to normal. What does that even mean anymore, you might ask? Well, most of the pandemic financial relief programs have wrapped up (save a straggler ERC claim here or there); amendments resulting from that era have almost all been filed; the odd rebates and credits that no one remembered the amounts for were a thing of the past; there were no last-minute tax extenders; and the season end-date actually lands on April 15th for the first time in ages. It felt like we finally had a handle on things and were back to the “normal” amount of seasonal overwork — rather than a Herculean lift, as was the case for the past four years.

Enter Congress. Despite the fact that The American Institute of Certified Public Accountants (AICPA), National Association of Tax Professionals (NATP) and small business advocacy groups have been lobbying for over a year to get an extension of certain popular tax benefits that expired in 2023, our leaders somehow managed to wait until after year-end to introduce legislation to that effect — Tax Relief for American Families and Workers Act — in a spectacular show of bipartisan ignorance. Never mind that the IRS e-file has been offline since November 18th, because it takes over two months to reprogram the systems for new tax laws, updates, and edits to tax forms.

As for January 30th, the legislation has yet to come up for a vote. And yet the IRS is telling taxpayers to go ahead and file when ready, and makes no reference to the pending legislation in today’s Outreach Connection email.

Some of the anticipated changes if the legislation passes as-written include popular business expensing programs that are designed to be leveraged throughout the year. Making them retroactive does nothing to spur the economy, as the decisions to buy equipment, invest in R&D, or take out loans were already made, last year.

To be clear: I’m not saying these aren’t potentially good changes for tax law, business, and the economy. Just that doing it at this late date is misguided in far too many ways.

And the part I really don’t understand is this: IRS Commissioner Werfel told reporters last Friday, “If there’s a change that impacts your return, we will make the change, and we will send you the update — whether it’s an additional refund or otherwise — without you having to take additional steps.” This is simply impossible for most of the business expensing features of the law, which are voluntary elections on the part of the taxpayer. Presumably this is a reference to the child tax credit provisions in the legislation — which have gotten the most press, but have little effect on small business owners, and are a small portion of the actual bill.

The House Ways and Means Committee released a statement recently indicating that the IRS “confirmed its intention to make necessary systems updates by around six weeks after the date of enactment”. Six weeks. Most refunds are issued within three. Six weeks takes us past the S-Corp and Partnership filing deadline. Six weeks?

Speaking of that deadline, many states announced e-filing would begin on the same date as the IRS opened federal tax season, but it turns out that our state (and I’m guessing others) did not release their S-Corp or Partnership forms with enough advance notice for our third-party tax software to program them into their system, so we are unable to e-file any Illinois business tax returns until February 7th. And we were freaking out about that delay. I can’t imagine what six weeks will look like.

To say nothing of the fact that the next government shutdown deadline is scheduled for one week before business tax returns are due. This should make for an even more laid-back season.

And to add to all of this, that the bill is being funded by an early end to the Employee Retention Credit program, as of January 31, 2024. We spent all of last week scrambling to get the remaining claims in, and won’t know whether that sprint was worth the anxiety or not until this bill passes (or doesn’t) — I feel terrible for those who find out in February that their claim’s due date is suddenly in the past.

Again, some of the provisions in this bill are great ideas — well thought-through, balanced, as well as good for business, families, and potentially the economy. Bad players in the world of ERC mills will finally have to deal with some consequences, and the 1099 burden for small vendors and freelancers will be eased as the threshold is finally indexed for inflation. Some good stuff.

So let’s pass this as 2024 legislation, just in time for the new year, as it should be… and get out of the way of tax season, already!


If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. Ths allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.

IRS Mileage Rate Increase For Second-Half Of 2022

Slide from AICPA Town Hall | (c) AICPA

Effective July 1, the IRS standard mileage rate — the amount that can be deducted per-mile in lieu of reporting actual costs — is increasing by 4-cents, to $0.65/mile, per Annoucement 2022-13.

The adjustment is being made in recognition of recent increases in the cost of gasoline. Normally, the adjustment is made annually, but in special cases such as this, the IRS Commissioner will make an exception.

Not only is this amount the official deductible amount when the optional standard method is used, but many businesses, and the federal government, also use it as the reimbursement rate for employee travel and transportation.

If you use a mileage-tracking template, make sure to update the per-mile multiplier. Most programs like Mile IQ do not track actual costs — they simply report the number based on a report’s date range, and the taxpayer or their CPA will do the math on the tax return. In 2011, the last time this happened, the IRS had a field for the number of miles driven Jan 1-June 30 and a separate field for those from July 1-Dec 31 — which is likely to be the case this year as well.

The 14 cents per mile rate for charitable organizations remains unchanged as it is set by statute.

IRS increases mileage rate for remainder of 2022 | Internal Revenue Service

If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. Ths allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.

K-2 & K-3 Requirement Issues For Small Businesses

2/16/22 UPDATE: Looks like the IRS may be issuing relief after all!

Check out this article — IRS to delay some K-2 and K-3 reporting requirements for partnerships | Accounting Today

The source is #15 in the IRS FAQ on the topic:

This Journal of Accountancy article walks through the particular scenario where this relief — only for tax year 2021 — applies. They note that:

The relief announced Wednesday applies where:

  • In tax year 2021, the direct partners in the domestic partnership are not foreign partnerships, foreign corporations, foreign individuals, foreign estates, or foreign trusts. 
  • In tax year 2021, the domestic partnership or S corporation has no foreign activity, including foreign taxes paid or accrued or ownership of assets that generate, have generated, or may reasonably be expected to generate foreign-source income (see Regs. Sec. 1.861-9(g)(3)).
  • In tax year 2020, the domestic partnership or S corporation did not provide to its partners or shareholders, nor did the partners or shareholders request, the information on the form or its attachments regarding:
    • Line 16, Form 1065, Schedules K and K-1 (line 14 for Form 1120-S), and
    • Line 20c, Form 1065, Schedules K and K-1 (controlled foreign corporations, passive foreign investment companies, 1120-F, Sec. 250, Sec. 864(c)(8), Sec. 721(c) partnerships, and Sec. 7874) (line 17d for Form 1120-S).
  • The domestic partnership or S corporation has no knowledge that the partners or shareholders are requesting such information for tax year 2021.

To learn more, I recommend this excellent Compass Tax Free 10-Minute Webinar update from 2/17/22 on the new FAQ relief for partnerships and S corporations with Thomas Gorczynski, EA USTCP, and Kevin J. Todd, EA, CPA.

(Our original blog post is below, for context and reference.)


K-2 Mountain (courtesy of Wikimedia Commons)

Yes, that photo is of K-2, the second-highest mountain on Earth, where apparently one person dies on the mountain for every four that reach the summit. (Didn’t expect that to show up in my search for a common-usage-right image of an IRS K-2 form.)

The good news is that — as frustrating and arduous as this new IRS K-2 and K-3 reporting requirement is — no one is likely to die while attempting to complete it, and therefore I think we should just all keep this extremely challenging K-2 mountain in mind before we get too frustrated about additional complexities in tax preparation.

In all seriousness, here’s the story:
1) The IRS, in an attempt to deter fraud, for 2021 began requiring all pass-through entities to disclose foreign transactions as part of the tax returns and the K-1 package to shareholders and partners.
2) Initially, the new schedules were only to be used by entities with international transactions to report.
3) In mid-January, the IRS issued revised instructions for the schedules that may require domestic partnerships and S corporations without any foreign source income or assets to prepare Schedules K-2 and K-3.
4) If even one of the partners or shareholders plans to or is required to report foreign tax credits on Form 1116, Foreign Tax Credit, the Partnership or S-Corp must prepare Schedules K-2 and K-3.
5) As a result, the complex and comprehensive “reporting requirement applies to a much larger percentage of pass-through-entity (PTE) returns than perhaps the IRS intended”, as Forbes pointed out.

“This seems like an overly burdensome requirement to quietly clarify in the middle of filing season.” – Tom Gorczynski, EA

All is not lost. Yes, we’re talking about well-over 20 additional pages of tax forms — but it’s likely that you won’t have to fill them all out. An exception from filing Part II and Part III, Section 2, on Schedule K-3 may apply for a pass-through-entity that:

  • only has US-source income;
  • does not have income or deductions that the partners can source or allocate and apportion; and
  • only has limited partners owning less than 10% of the capital and profits of the partnership at all times during the tax year.

(Though the IRS clarified that a business with no foreign-source income must still file Part II (foreign tax credit limitation) and Part III (information for preparing Forms 1116 or 1118) on Schedules K-2 and K-3 if their partners have items of international tax relevance.)

From the NATP Blog: “For preparers who are handling the returns of both the partnership and the partner, the partner can choose alternatives to filing Form 1116 and triggering the Schedules K-2 and K-3 filing requirements if one of the following applies:

  • The partner neither paid nor accrued any foreign taxes and there was no foreign tax credit carryover for the tax year;
  • The foreign tax paid was under the $300 individual reporting threshold ($600 for married filing jointly) for Form 1116, or an election is made under Section 904(j) of the Tax Code to report the credit without the form;
  • Schedule A is used to report a deduction for foreign taxes (which also avoids the $10,000 SALT cap).

“Preparers who are not completing returns for the partner reporting foreign tax payments will need to ask the partners/shareholders directly for their information. If they fail to respond to the request, the preparer will at least have made a documented, good-faith effort to obtain the required information and should be eligible for the good-faith relief outlined in Notice 2021-39.”

To add to the complexity, the availability of e-filing for the new Schedules K-2 and K-3 is:

  • March 20, 2022, for Form 1065
  • Mid-June 2022 for Form 1120-S
  • January 2023 for Form 8865

Therefore, for preparers who have to file Schedules K-2 or K-3, there are three options.
– One is to extend the returns, as e-filing is not available until after the current due date of both the S corporation and partnership returns.
– Another option is to paper-file the return, which will cause delays in processing.
– The third option (what we will likely do for those returns we cannot reasonably extend) is to prepare the K-2/K-3 forms and attach them to e-filed S-Corp and Partnership returns as a PDF. Generally the IRS is not great about referring to these attachments, and some tax software programs have problems delivering them; but at least it will show a good-faith attempt in the case of an audit.

Per Amber Gray-Fenner in Forbes, “These alternatives, while prudent, present some potentially serious unintended consequences:

  • The IRS may be inundated with PDF attachments that it is not prepared to process and review. PDF attachments are often separated from original returns never to be seen again—at least not until the taxpayer receives a notice looking for the “missing” information.
  • Many more PTE returns may be put on extension than would normally be the case.
  • Extended PTE returns mean extended 1040s, which is unsatisfactory to many taxpayers and tax professionals.”

In that same article, my colleague Fred Stein hopes “Occam’s Razor ‘kicks in and IRS realizes the unintended consequences this creates for many small businesses.’ If not, the additional work involved could cause PTE return preparation prices to increase by thirty to fifty percent.”

A summary from last week’s AICPA Town Hall:

We will be reaching out to all our S-Corp and Partnership clients to let them know about these new rules, and to ask that they obtain signed confirmation from each of their owners as to any personal requirement to file Form 1116 or another foreign-related tax form on the 1040 returns.

(For tax preparers who may not have any idea how to fill out these extremely long, complicated, new forms, Greg White is offering a live webinar on February 18th called “A Practical Approach to Quickly Filling Out Forms K-2 and K-3“.)

As you may have guessed, this unexpected new guidance will cause additional time, effort, and cost to all our small business S-Corps and Partnerships — almost none of whom actually have any foreign transaction exposure. After all the requests we’ve made of the IRS to reduce the tax preparation burden on small business owners and their CPAs, I wish I could say this is laughable.


In case that wasn’t enough for you, we’ve compiled a rich list of resources for your reading and watching enjoyment.

AICPA Resources:
Navigating the new Schedules K-2 and K-3 (Sept. 2021 Tax Advisor)
AICPA Comment Letter, K-2/K-3 (Sept. 2021)
AICPA Podcast on Practitioner Insights, K-2/K-3 (Nov. 2021)
IRS offers further K-2/K-3 relief, Journal of Accountancy (Feb. 2022)

NATP Resources:
2/10/22 National Association of Tax Professionals Blog Post – Tax preparers take note: another change for 2021 tax season with Schedules K-2 and K-3

Tax Speaker Resources:
2/4/22 Emergency Update Newsletter
2/9/22 Free 12-Minute Webinar – TaxSpeaker’s Solution to IRS’s New Form K-2 and K-3 for partnerships and S Corporations – YouTube

Compass Tax Resources:
2/10/22 Free 15-Minute Webinar – discussion on the new requirements for partnerships and S corporations with Thomas Gorczynski, EA USTCP, and Kevin J. Todd, EA, CPA
Compass Tax Resources:
2/17/22 Free 10-Minute Webinar – update on the new FAQ relief for partnerships and S corporations with Thomas Gorczynski, EA USTCP, and Kevin J. Todd, EA, CPA

IRS Resources:
Changes to the 2021 Instructions for Schedules K-2 and K-3 (Form
8865)
(Jan 18, 2022, IRS)
Changes to the 2021 S Corporation Instructions for Schedules K-2 and K-3 (Form 1120-S) (Jan 18, 2022, IRS)
Changes to the 2021 Partnership Instructions for Schedules K-2 and K-3 (Form 1065) (Jan 18, 2022, IRS)
Notice 2021-39 re: penalty relief for good faith compliance efforts
(June 2021, IRS)


If this or any other posts on the website were useful to you, and your financial situation permits it, please consider contributing to my tip jar. Ths allows me to continue to provide free accounting resources to small businesses who do not have the funds available to hire a CPA.