Tag Archives: Small Business Administration (SBA)

Key Takeaways for PPP Borrowers: The Forgiveness Application is Finally Out!!

Contributed by Rebecca Dobbs Bush, May 18, 2020

Late Friday, May 15th, the SBA released long overdue guidance on how to determine and apply for forgiveness of loans received under the Paycheck Protection Program. The application and corresponding instructions can be found here on the SBA website.

Within the application and instructions, several common questions have finally been answered:

  1. How do we calculate payroll costs?  Do we go by pay period date or pay date?  What if the 8-week covered period doesn’t match up with our payroll?

A payroll cost must be either incurred OR paid. Initially, the CARES Act indicated that it had to be both incurred and paid during the 8-week period. You look to costs paid or incurred during the 8-weeks (or 56 days) counting the date you received the loan proceeds. You can also adjust your 8-week period to an “alternative” covered period if your payroll is at least bi-weekly or more frequent.  In that case, you can begin the 8-week period starting with the first pay period that begins immediately following the date you received the loan proceeds.

Payroll costs are considered “incurred” on the day that the employee’s pay is earned.  Payroll costs are considered “paid” on the day paychecks are distributed or the date the borrower originates an ACH credit transaction.

This is not exactly a windfall that will allow you to randomly payout money in order to maximize forgiveness.  In terms of cash compensation, no individual employee can account for more than $15,385 (i.e., $100,000 prorated over 8-weeks).  This cap operates to limit the amount of cash payroll costs that you can account for.

2. Can we pay non-payroll costs early and use PPP loan proceeds for those?

The answer to this is: maybe. Again, this is better than expected with the original language in the CARES Act indicating the cost had to be both incurred and paid.  Instead, the forgiveness application indicates that a permissible non-payroll cost must be either incurred or paid during the covered period.  Going a bit further, the instructions permit borrowers to account for those non-payroll expenses “paid on or before the next regular billing date, even if the billing date is after the Covered Period.”

For example: A borrower’s eight-week “Covered Period” ends on May 31st. The borrower’s internet bill is paid on the 15th of each month.  That borrower can use PPP loan proceeds to pay the bill due on May 15th and also pay the bill that would otherwise be due on June 15th as long as three things apply: 1) the internet service being paid is one that began before February 15th; 2) the June 15th bill is paid before the expiration of the 8-week period on May 31st; and 3) the additional payment is not going to cause the borrower to have total non-payroll costs that exceed 25% of the total forgiveness amount.

3. What is an FTE?  And how do we count part-timers?

Full-Time has been clarified to mean 40 hours per week.  To account for part-timers, a borrower has two options.  The borrower can take weekly hours worked and divide by 40 to determine a percentage FTE for anyone working less than 40 hours/week.  Alternatively, and at a borrower’s election, employees working 40 hours/week or more can be counted as 1 and employees working on a part-time basis can be counted as a .5. 

4. In determining FTE headcount, do we have to account for people who can’t, or don’t want to, work?

No!  This is a big relief for those employers that have been struggling with natural attrition of their employees.  The instructions recognize certain circumstances where a borrower can claim an exception and account for an individual as a FTE even though they are no longer employed with the company as of the date of the forgiveness application.  These are: 1) an employee that was “fired for cause;” 2) an employee who voluntarily resigned; or 3) an employee who  voluntarily requested and received a reduction of his or her hours.

In the event a borrower is going to rely on one of the exemptions, they will want documentation for the file to substantiate the basis of the exemption in the event they are subject to an audit by the SBA at a later date.

The SBA and Treasury Issue Safe Harbor for Necessity Certification and Extend Deadline to Repay PPP Loan

Contributed by guest author Andrew Podgorny, May 15, 2020

On May 13, 2020, the SBA and Treasury issued additional guidance with respect to the necessity certification that borrowers must make when applying for a PPP loan. FAQ #46 provides a safe harbor for borrowers receiving loans which are less than $2 million and also indicates that, in the event the SBA determines that a borrower receiving a loan in excess of $2 million lacks an adequate basis for making the necessity certification, such borrower will be afforded the opportunity to repay the loan. Specifically, FAQ #46 states:

Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

Moreover, in light of the timing of FAQ #46’s release, the SBA extended the deadline for borrowers to repay its PPP loan from May 14, 2020 to May 18, 2020.

Small Business Administration Providing Emergency Funding Due to COVID-19

Contributed by guest authors Michael Cortina and Brandt Hardy, March 23, 2020

The Small Business Administration (SBA) has become a direct lender to small businesses for emergency working capital needs due to the economic injuries that Coronavirus (COVID-19) is causing.  Small for-profit and non-profit businesses in Illinois, Indiana, Iowa and Michigan and specified counties that are contiguous to these states in Wisconsin, Missouri, and Kentucky (Covid-19 Disaster Areas) are eligible for these SBA Economic Injury Disaster Loans. The application process is online through the SBA website.

Small businesses interested in such emergency funding can utilize the SBA’s simple three-step process to apply. 

  • Step #1 is to click the “Eligible Disaster Area” and confirm that the business is in a Covid-19 Disaster Area.
  • Step #2 is to register for a secure password.
  • Step #3 is the application process.

The SBA Disaster Loans are up to $2,000,000.00 and, according to the SBA, the terms are determined on a case-to-case basis to keep payments affordable. The interest rates are 3.75% for a for-profit business, and 2.75% for non-profit one. The repayment terms can be for up to thirty (30) years. (Check our math, but the monthly payment on a $300,000 loan at 3.75% for thirty (30) years is about $1,389.35).  The proceeds can be used to pay fixed debt, payroll, accounts payable, and other bills that cannot be paid because of the Covid-19 economic disaster.  Loans over $25,000.00 will require the pledge of collateral, but the lack of sufficient collateral will not be an automatic disqualifier for such emergency funding.

The usual process for obtaining a loan through the SBA is for a business to apply for such a loan through their local approved lender who will help the business obtain the loan and also act as the loan’s servicer. The normal process can take at least 14 days, if not longer, to be completed. Now, because of the passage of the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the president, these emergency loans are being made directly by the SBA.

More information about these emergency SBA loans can be found on the SBA website.

While these emergency funds could be beneficial for small businesses in need of funds to keep their businesses afloat, what is the impact on financial institutions with dedicated SBA lenders that find themselves cut-out of the process?  Will financial institutions that currently partner with the SBA be called-upon to service these loans after they have been made?  Because details are still being determined, and the situation changes on a daily basis, the answers to these questions are not available right now.