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Guidance on the Employee Retention Credit under Section 2301 of the Coronavirus Aid,

Relief, and Economic Security Act

Notice 2021-20

as Division EE of the Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, 134

Stat. 1182 (December 27, 2020). The guidance provided in this notice addresses the

employee retention credit as it applies to qualified wages paid after March 12, 2020, and

before January 1, 2021. This notice does not address the changes made by section

207 of the Relief Act that apply to the employee retention credit for qualified wages paid

after December 31, 2020. The Department of the Treasury (Treasury) and the Internal

Revenue Service (IRS) will address the modifications made by section 207 of the Relief

Act applicable to calendar quarters in 2021 in future guidance.

II. BACKGROUND

Section 2301 of the CARES Act allows a credit (employee retention credit or

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or all employees after March 12, 2020, and before January 1, 2021. Section 206 of the

Relief Act adopts amendments and technical changes to section 2301 of the CARES

Act for qualified wages paid after March 12, 2020, and before January 1, 2021, primarily

relating to who may claim the credit.

Section 207 of the Relief Act amends section

updated to reflect the changes made by the Relief Act. This notice incorporates the

information provided in the FAQs and addresses additional issues, including the

amendments to section 2301 of the CARES Act made by section 206 of the Relief Act.

This notice also identifies instances in which section 206 of the Relief Act made

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provisions of the CARES Act to which they relate.

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apply to qualified wages paid during the first and second quarter of 2021. Among other changes, section

207 of the Relief Act (1) makes the employee retention credit available for eligible employers paying

qualified wages that are paid after December 31, 2020, and before July 1, 2021; (2) increases the

maximum credit amount that may be claimed per employee (making it equal to 70 percent of $10,000 of

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changes to section 2301 of the CARES Act that resulted in rules that are substantially

similar to the interpretation provided in the FAQs.

The remainder of this Section II provides a summary of the relevant provisions of

section 2301 of the CARES Act, as amended by section 206 of the Relief Act, as they

affect the amount that an employer can request as an advance payment of the credit.

Section III of this notice provides guidance in Q/A format regarding the application of

section 2301 of the CARES Act. Any term defined in this Section II or within a Q/A in

Section III applies to all Q/A’s in Section III.

An employer that is an eligible employer as defined in section 2301(c)(2) of the

CARES Act and that, after March 12, 2020, and before January 1, 2021, pays qualified

wages, as defined in section 2301(c)(3) of the CARES Act, is entitled to claim the

employee retention credit against the taxes imposed on employers by section 3111(a)

of the Internal Revenue Code (Code) (employer’s share of the Old Age, Survivors, and

Disability Insurance (social security tax)), after these taxes are reduced by any credits

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claimed under section 3111(e) and (f) of the Code,

Families First Coronavirus Response Act (FFCRA), Pub. L. No. 116-127, 134 Stat. 178

(March 18, 2020),

and section 303(d) of the Relief Act.

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Eligible employers subject to

the Railroad Retirement Tax Act (RRTA) are entitled to take the employee retention

3111(a) of the Code. Section 3111(f) of the Code permits a qualified small business to elect to apply part

or all of its research credit available under section 41 against the tax imposed under section 3111(a) of

the Code.

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provide paid sick and family leave, up to specified limits, to employees unable to work or telework due to

certain circumstances related to COVID-19 may claim tax credits. The FFCRA, as amended by the

COVID-related Tax Relief Act of 2020 (COVID Relief Act), provides employers with fewer than 500

employees (eligible FFCRA employers) refundable tax credits that reimburse them for the cost of

providing paid sick and family leave wages to employees unable to work or telework for reasons related

imposed on employers under section 3221(a) of the Code as are attributable to the rate in effect under

section 3111(a) of the Code. The FFCRA required eligible FFCRA employers to provide paid leave to

such employees for periods after March 31, 2020, and before January 1, 2021. The COVID Relief Act

extended the period for which tax credits are available for employers providing paid sick and family leave

that otherwise would meet the requirements of the FFCRA until March 31, 2021, although the

requirement that employers provide the leave expired on December 31, 2020. See Section 286 of the

COVID Relief Act, which was enacted as Subtitle B of Title II of Division N of the Consolidated

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Section 2301(b)(3) of the CARES Act provides that if the amount of the credit

exceeds the applicable employment taxes (reduced by any credits claimed under

section 3111(e) and (f) of the Code, sections 7001 and 7003 of the FFCRA, or section

303(d) of the Relief Act) for any calendar quarter, then the excess is treated as an

Return.

Section 2301(k) of the CARES Act instructs the Secretary of the Treasury (or the

Secretary’s delegate) to waive the penalty under section 6656 of the Code for failure to

deposit the employer share of social security tax in anticipation of the allowance of the

refundable credit under the CARES Act. In addition, section 2301(l)(1) and (2) of the

CARES Act provides for the advance payment of the credit (subject to the limitations of

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the credit and based on information the Secretary requires) and the reconciliation of the

advance payment at the time of filing the employment tax return.

Notice 2020-22, 2020-17 I.R.B. 664, provides eligible employers relief from the

failure to deposit penalty imposed by section 6656 of the Code for an employer’s failure

amount of employment taxes that the employer does not timely deposit, reduced by the

amount of employment taxes not deposited in anticipation of the credits claimed under

sections 7001 and 7003 of the FFCRA, is less than or equal to the amount of the

employer’s anticipated employee retention credit for the calendar quarter as of the time

of the required deposit, and (3) the employer did not seek payment of an advance credit

by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19, with

respect to the anticipated credits it relied upon to reduce its deposits. Accordingly, in

anticipation of receiving the employee retention credit, eligible employers can (1) reduce

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their deposits of federal employment taxes, including withheld taxes, that would

otherwise be required, up to the amount of the anticipated credit, and (2) request an

advance of the amount of the anticipated credit that exceeds the reduced federal

employment tax deposits by filing Form 7200. Reductions in deposits and advance

business carried on during calendar year 2020 is fully or partially suspended due to

orders from an appropriate governmental authority limiting commerce, travel, or group

meetings (for commercial, social, religious, or other purposes) due to COVID-19, or (2)

such calendar quarter is within the period in which the employer had a significant

decline in gross receipts, as described in section 2301(c)(2)(B) of the CARES Act.

Section 2301(c)(2)(B)(i) of the CARES Act provides that the period during which

an employer experiences a significant decline in gross receipts begins with the first

calendar quarter beginning after December 31, 2019, for which gross receipts (within

the meaning of section 448(c) of the Code) for the calendar quarter are less than 50

percent of gross receipts for the same calendar quarter in the prior year. Section

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follows the first calendar quarter beginning after a calendar quarter described in section

2301(c)(2)(B)(i) of the CARES Act for which gross receipts of the employer are greater

than 80 percent of gross receipts for the same calendar quarter in the prior year.

Section 2301(c)(2)(C)(i) of the CARES Act provides that in the case of an

gross receipts in section 2301 of the CARES Act is treated as a reference to gross

receipts within the meaning of section 6033 of the Code. Therefore, tax-exempt

organizations should refer to the definition of gross receipts under section 6033 of the

Code to determine whether they experienced a significant decline in gross receipts

under section 2301 of the CARES Act.

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Section 2301(f) of the CARES Act provides that the employee retention credit

does not apply to the Government of the United States, the government of any State or

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political subdivision thereof, or any agency or instrumentality of those governments.

Accordingly, these entities are not eligible employers.

Prior to the Relief Act amendments, section 2301(j) of the CARES Act provided

that an eligible employer that received a covered loan under paragraph (36) of section

CARES Act.

Section 2301(a) of the CARES Act provides that the credit amount is equal to 50

percent of qualified wages with respect to each employee for each applicable calendar

quarter in 2020.

For purposes of determining “qualified wages,” section 2301(c)(5)(A) of the

CARES Act provides that the term “wages” generally means wages as defined in

section 3121(a) of the Code and compensation as defined in section 3231(e) of the

Code. Section 2301(c)(5)(B) of the CARES Act provides that “wages” include amounts

paid by an eligible employer to provide and maintain a group health plan (as defined in

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under the RRTA that is equivalent to the employer’s share of social security tax for the

period of March 27, 2020, through December 31, 2020. Section 2302 does not impact

an employer’s eligibility to claim the employee retention credit. However, because an

employer may defer deposits under section 2302 before reducing deposits in

Notice 2020-65, 2020-38 I.R.B. 567, as modified by Notice 2021-11, 2021-6

I.R.B. 827, permits employers to postpone the withholding and payment of the

during the period beginning on September 1, 2020, and ending on December 31, 2020.

Deferral under Notice 2020-65, as modified by Notice 2021-11, during the third or fourth

credit. However, because an employer may defer deposits of the employee’s share of

social security tax before reducing deposits in anticipation of claiming the credit, the

deferral may affect the amount that an employer may request as an advance of the

credit.

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Question 1: What is a “trade or business” for purposes of the employee retention

credit?

Answer 1: For purposes of the employee retention credit, “trade or business” has

the same meaning as when used in section 162 of the Code other than the trade or

business of performing services as an employee. Under section 162, an activity does

not qualify as a trade or business unless its primary purpose is to make a profit and it is

carried on with regularity and continuity. The facts and circumstances of each case

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determine whether an activity is a trade or business. A taxpayer does not necessarily

need to make a profit in any particular year in order to be in a trade or business as long

as a good faith profit motive is present.

For purposes of the employee retention credit, a tax-exempt organization

Answer 2: In general, for employment tax purposes, the IRS considers six

factors in determining whether an organization is a government instrumentality. The six

factors that are used to determine whether an organization is an instrumentality are:

• whether the organization is used for a governmental purpose and performs a

governmental function;

• whether performance of the organization’s function is on behalf of one or more

States or political subdivisions;

• whether there are any private interests involved, or whether the States or political

subdivisions involved have the powers and interests of an owner;

• whether control and supervision of the organization is vested in a public authority

or authorities;

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purposes of the employee retention credit.

Question 3: Are tribal governments and tribal entities eligible for the employee

retention credit?

Answer 3: Yes. Any tribal government or tribal entity that operates a trade or

business may be an eligible employer for purposes of the employee retention credit if it

otherwise satisfies the eligibility requirements to claim the credit.

As a general rule, whether activities constitute a trade or business for purposes

of the employee retention credit is determined under section 162 of the Code.

However, because tribal governments are not subject to income tax under the Code

and, therefore, are generally not otherwise required to determine whether an activity of

the tribe constitutes the carrying on of a trade or business under section 162, the

Treasury Department and IRS have concluded that the section 162 standards are not

the appropriate bases for determining whether a tribal government is carrying on a trade

or business for purposes of the employee retention credit. Instead, solely for purposes

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considered part of such trade or business activities, without the need for further analysis

of whether those activities meet a particular standard for identifying trade or business

operations. In addition, solely for purposes of the employee retention credit, any entity

that a tribal government reasonably believes shares the same tax status as the tribal

Answer 4: Yes. If an employer in a U.S. Territory otherwise qualifies for the

employee retention credit then the employer is entitled to claim the credit. Section

2301(c)(5)(A) of the CARES Act provides that qualified wages are, in general, wages as

defined in section 3121(a) of the Code for purposes of the Federal Insurance

Contributions Act (FICA) tax. Payments of wages by employers in U.S. Territories are

wages within the meaning of section 3121(a). Accordingly, eligible employers include

employers in the U.S. Territories that pay qualified wages and otherwise meet the

requirements for the credit.

Question 5: Are self-employed individuals eligible for the employee retention

credit?

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individual who employs other individuals in the self-employed individual’s trade or

business and who otherwise meets the requirements to be an eligible employer may be

eligible for the employee retention credit with respect to qualified wages the self-

employed individual pays to the employees.

the employment taxes attributable to the employees of the trade or business, may be

eligible for the employee retention credit, but only with respect to the trade or business

employees and their qualified wages paid with respect to the trade or business.

Question 7: What is the general impact of the aggregation rules that treat certain

entities as a single employer?

Answer 7: All entities that are members of a controlled group of corporations or

trades or businesses under common control under sections 52(a) or (b) of the Code,

members of an affiliated service group under section 414(m) of the Code, or otherwise

aggregated under section 414(o) of the Code are treated as a single employer for

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be aggregated are treated as a single employer for purposes of the following rules

applicable to the employee retention credit:

• Determining whether the employer experiences a significant decline in gross

• Determining whether the employer averaged more than 100 full-time

• Determining the maximum credit amount per employee.

The aggregation rules under section 52(a) and (b) generally apply to determine

which entities are treated as a single employer for purposes of the tax credits available

to an employer under section 51 of the Code, as well as for other Code provisions.

Under section 52(a), corporate taxpayers that are members of a controlled group

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partnerships, trusts, estates, corporations, or sole proprietorships in trades or

businesses under common control. Under this rule, entities are treated as a single

employer if they are under common control applying rules similar to the parent-

subsidiary or brother-sister controlled group rules or the rules for a combined group of

section 414(m)(4) through the use of separate organizations or other arrangements.

Many Code provisions, particularly those addressing employee benefits, apply the

aggregation rules of section 414(m) and (o). For example, section 414(t) generally

that it is identical with respect to each corporation, own more than 50 percent of the total voting power of

all classes of stock entitled to vote, or total value of shares of all classes of stock of each corporation. A

combined group of corporations is three or more corporations, each of which is a member of either a

parent-subsidiary or a brother-sister controlled group, and at least one of which is both the common

parent of a parent-subsidiary controlled group and also a member of a brother-sister controlled group.

See Treas. Reg. § 1.52-1.

There are three types of affiliated service groups described in section 414(m). The first and

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provides that the aggregation rules in section 414(m) and (o) apply to various Code

provisions listed in section 414(t)(2).

Question 8: How is the employee retention credit allocated to an eligible

employer that is a member of an aggregated group?

employers must apply the aggregation rules under section 52(a) and (b) and section

414(m) and (o) of the Code. For purposes of the employee retention credit, tribal

governments and tribal entity employers (as defined in Q/A–3) should use a reasonable,

good faith interpretation in determining how the aggregation rules apply.

Question 10: What “orders from an appropriate governmental authority” may be

taken into account by an employer for purposes of determining eligibility for the

employee retention credit?

Answer 10: Orders, proclamations, or decrees from the Federal government or

any State or local government may be taken into account by an employer as “orders

from an appropriate governmental authority” only if they limit “commerce, travel, or

group meetings (for commercial, social, religious, or other purposes) due to the

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coronavirus disease 2019 (COVID-19)” and relate to the suspension of an employer’s

operation of its trade or business. Orders that are not from the Federal government

must be from a State or local government that has jurisdiction over the employer’s

operations. These orders are referred to as “governmental orders.” Whether orders,

governmental order if it does not limit commerce, travel, or group meetings in any

manner. Further, such a declaration that limits commerce, travel, or group meetings,

but does so in a manner that does not relate to the suspension of an employer’s

operation of its trade or business does not rise to the level of a governmental order for

purposes of the employer’s determination of its eligibility for the employee retention

credit.

Governmental orders include:

• A State’s emergency proclamation that residents must shelter in place for a

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clients remotely, but employees cannot access specific equipment or tools that they

typically use in therapy and not all clients can be served remotely. Employer D’s

business operations are considered to be partially suspended due to the governmental

order because Employer D’s workplace, including access to physical therapy

required to close its workplace. Prior to the governmental order, Employer E’s

laboratory-based research operations could not be conducted remotely (other than

certain related administrative tasks) and employees involved in laboratory-based

research worked on-site. Employer E’s computer modeling research operations could

be conducted remotely, and employees who engaged in this portion of the business

often teleworked. Following the governmental order, the employees engaged in the

laboratory-based research cannot perform their work while the facility is closed and are

limited to performing administrative tasks during the closure. In contrast, all employees

engaged in computer modeling research are directed to telework, and those business

operations are able to continue in a comparable manner. Employer E’s business

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because Employer E’s laboratory-based research business operations cannot continue

in a comparable manner.

Question 16: What factors should be considered in determining if an employer is

able to continue operations comparable to its operations prior to closure such that the

(2) Portability of employees’ work. Determine the amount of portable work, or

(3) Need for presence in employee’s physical work space. Evaluate the role that

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(4) Transitioning to telework operations. If an employer can conduct comparable

Question 17: If a governmental order requires an employer to close its

workplace for certain purposes, but the workplace may remain operational for other

limited purposes, is the employer considered to have a suspension of operations due to

the governmental order?

Answer 17: If an employer’s workplace is closed due to a governmental order for

certain purposes, but the employer’s workplace may remain open for other limited

purposes, the employer’s operations would be considered to be partially suspended if,

under the facts and circumstances, the operations that are closed are more than a

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operations may continue, but the operations are subject to modification due to a

governmental order (for example, to satisfy distancing requirements), such a

modification of operations is considered to be a partial suspension of business

operations due to a governmental order if the modification required by the governmental

establishments for sit-down service. Employer F is allowed to continue food or

beverage sales to the public on a carry-out, drive-through, or delivery basis. On-site

dining is more than a nominal portion of Employer F’s business operations. Employer

F’s business operations are considered to be partially suspended because, under the

facts and circumstances, more than a nominal portion of its business operations—its

indoor and outdoor dining service—is suspended due to the governmental order.

Example 2: Same facts as Example 1, except that two months later, under a

subsequent governmental order, Employer F is permitted to offer sit-down service in its

outdoor space, but its indoor dining service continues to be closed. During this period,

Employer F is allowed to operate only its outdoor sit-down and carry-out service in

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partially suspended because, under the facts and circumstances, more than a nominal

portion of its business operations – its indoor dining service – is suspended due to a

governmental order. The following month, under a further governmental order,

Employer F is permitted to offer indoor dining service, in addition to outdoor sit-down

on its operations.

Example 3: Employer G, a retail business, must close its retail storefront

locations due to a governmental order. The retail business also maintains a website

through which it continues to fulfill online orders; the retailer’s online ordering and

fulfillment system is unaffected by the governmental order. The retail storefront

locations are more than a nominal portion of Employer G’s business operations.

Employer G’s business operations are considered to have been partially suspended due

to the governmental order requiring it to close its retail storefront locations, which are

more than a nominal portion of its business operations.

Example 4: Employer H, a hospital, is considered to be operating an essential

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However, the governmental order treats Employer H’s elective and non-urgent medical

procedures as non-essential business operations and prevents Employer H from

performing these services. Employer H suspends operations related to elective and

non-urgent medical procedures, which are more than a nominal portion of Employer H’s

essential business under a governmental order. However, the governmental order

requires grocery stores to discontinue their self-serve offerings, such as salad bars,

though they may offer prepared or prepackaged food. Employer I modifies its

operations to close its salad bar and other self-serve offerings and instead offers

prepackaged salads and other items. The salad bar and other self-serve offerings are

not more than a nominal portion of Employer I’s business operations. Further, the

governmental order requiring Employer I to discontinue its self-serve offerings does not

have more than a nominal effect on Employer I’s business operations under the facts

and circumstances, even though Employer I was required to modify its business

operations. Accordingly, Employer I’s business operations are not considered to be

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Example 6: Employer J, a large retailer, is required to close its storefront location

due to a governmental order, but is permitted to provide customers with curbside

service to pick up items ordered online or by phone. The retail storefront location is

more than a nominal portion of Employer J’s business operations. During this period,

governmental order results in customers waiting in line for a short period of time to enter

the store during certain busy times of the week, the size of Employer J’s storefront is

large enough that it is able to accommodate all of its customers after these short waits

outside the store. The governmental order requiring Employer J to enforce social

distancing guidelines does not have more than a nominal effect on Employer J’s

business operations under the facts and circumstances, even though Employer J is

required to modify its business operations. During this period, Employer J’s business

operations are not considered to be partially suspended due to the governmental order

because the governmental order requiring enforcement of social distancing guidelines

does not have more than a nominal effect on its operations.

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Question 18: What factors should be taken into account in determining whether

a modification required by a governmental order has more than a nominal effect on

business operations for purposes of Q/A–17?

Answer 18: The types of modifications that are contemplated by Q/A–17 are

coverings.

The mere fact that an employer must make a modification to business operations

due to a governmental order does not result in a partial suspension unless the

modification has more than a nominal effect on the employer’s business operations.

Whether a modification required by a governmental order has more than a nominal

effect on the business operations is based on the facts and circumstances. A

governmental order that results in a reduction in an employer’s ability to provide goods

or services in the normal course of the employer’s business of not less than 10 percent

will be deemed to have more than a nominal effect on the employer’s business

operations. For example, occupancy restrictions at a restaurant with indoor dining

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sufficient physical space to accommodate its customers regardless of the restriction will

likely not result in an actual, and more than nominal, reduction of the retailer’s ability to

provide goods to its customers.

Modifications altering customer behavior (for example, mask requirements or

Answer 19: Yes. An employer that reduces its operating hours due to a

governmental order is considered to have partially suspended its operations since the

employer’s operations have been limited by a governmental order.

Example: Employer K operates a food processing facility that normally operates

24 hours a day. A governmental order issued by the local health department requires

all food processing businesses to deep clean their workplaces once every 24 hours in

order to reduce the risk of COVID-19 exposure. In order to comply with the

governmental order, Employer K reduces its daily operating hours by five hours per day

so that a deep cleaning may be conducted within its workplace once every 24 hours.

Employer K is considered to have partially suspended its operations due to the

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Question 20: Is an employer that operates a trade or business in multiple

locations and is subject to governmental orders requiring full or partial suspension of its

operations in some jurisdictions, but not in others, considered to have a partial

suspension of operations?

other jurisdictions. To operate in a consistent manner in all jurisdictions, these

employers may establish a policy that complies with the local governmental orders, as

well as the Center for Disease Control and Prevention (CDC) recommendations and the

Department of Homeland Security (DHS) guidance; in this case, even though the

employer may not be subject to a governmental order to suspend operations of its trade

or business in certain jurisdictions, and may merely be following CDC or DHS guidelines

in those jurisdictions, the employer would still be considered to have partially suspended

operations due to the governmental orders requiring closure of its business operations

in certain jurisdictions. Therefore, the employer would be an eligible employer with

respect to all of its operations in all locations for calendar quarters during which the

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Because Employer B and Employer C are treated as a single employer under the

aggregation rules, they must be treated as a single employer for purposes of

determining whether there has been a significant decline in gross receipts. Neither

Employer B nor Employer C is subject to a governmental order suspending business

because Employers B and C are treated as a single employer for purposes of the

employee retention credit and had combined gross receipts of $2,000,000 in the second

quarter of 2019 and $1,150,000 in the second quarter of 2020. Their combined gross

receipts for the second quarter of 2020 would have had to be less than $1,000,000 (50

percent of $2,000,000) for Employers B and C to have experienced a significant decline

in gross receipts for the second quarter of 2020.

Question 27: How does an employer that started its business in 2019 determine

whether it experienced a significant decline in gross receipts for purposes of the

employee retention credit?

Answer 27: An employer that started its business in the first quarter of 2019

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comparison to the gross receipts for the same quarter in 2020 to determine whether it

experienced a significant decline in gross receipts in any quarter of 2020.

An employer that started its business in the second quarter of 2019 should use

that quarter as the base period to determine whether it experienced a significant decline

gross receipts for the first three quarters in 2020 and should use the fourth quarter of

2019 for comparison to the fourth quarter of 2020 to determine whether it experienced a

significant decline in gross receipts for that quarter.

An employer that started its business in the fourth quarter of 2019 should use

that quarter as the base period to determine whether it experienced a significant decline

in gross receipts for any quarter in 2020.

If an employer commenced business in the middle of a quarter in 2019, the

employer should estimate the gross receipts it would have had for the entire quarter

based on the gross receipts for the portion of the quarter that the business was in

operation. To calculate this amount, the employer may use any reasonable method,

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Question 28: How does an employer that acquires a trade or business during

the 2020 calendar year determine if the employer experienced a significant decline in

gross receipts?

Answer 28: For purposes of the employee retention credit, to determine whether

quarter when it owns an acquired business to its gross receipts for the same calendar

quarter in 2019, the employer may, to the extent the information is available, include the

gross receipts of the acquired business in its gross receipts for the 2019 calendar

quarter. Under this safe harbor approach, the employer may include these gross

receipts regardless of the fact that the employer did not own the acquired business

during that 2019 calendar quarter.

An employer that acquires a trade or business in the middle of a calendar quarter

in 2020 and that chooses to use this safe harbor approach must estimate the gross

receipts it would have had from that acquired business for the entire quarter based on

the gross receipts for the portion of the quarter that it owned and operated the acquired

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required to include only the gross receipts from the acquired business for the portion of

the quarter that it owned and operated the acquired business.

Example: Employer D acquired all of the assets of a trade or business in a

taxable transaction on January 1, 2020. The gross receipts of the acquired business

$50,000 in its gross receipts computation for the quarter beginning January 1, 2020,

and ending March 31, 2020 (because Employer D actually owned the trade or business)

and may include $200,000 in its gross receipts computation for the quarter beginning

January 1, 2019, and ending March 31, 2019.

Question 29: How is the maximum amount of the employee retention credit

available to eligible employers determined?

Answer 29: The credit equals 50 percent of qualified wages (including allocable

qualified health plan expenses) that an eligible employer pays in a calendar quarter.

The maximum amount of qualified wages (including allocable qualified health plan

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2020 is $10,000, which means that the maximum credit for qualified wages (including

allocable qualified health plan expenses) paid to any employee in 2020 is $5,000.

If an employee is employed by two or more entities treated as a single employer

under the aggregation rules, the maximum amount of qualified wages for all calendar

the credit per the return period for which the credit is claimed.

Example 1: Employer A is an eligible employer and pays $10,000 in qualified

wages to Employee B in the second quarter of 2020. The employee retention credit

available to Employer A for the qualified wages paid to Employee B is $5,000.

Example 2: Employer C is an eligible employer and pays $8,000 in qualified

wages to Employee D in the second quarter 2020 and $8,000 in qualified wages in the

third quarter 2020. The credit available to Employer C for the qualified wages paid to

Employee D is equal to $4,000 in the second quarter and $1,000 in the third quarter due

to the overall limit of 50 percent of $10,000 of qualified wages per employee for all

calendar quarters.

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employed by both Employer E and Employer F. Employee G received $10,000 in

qualified wages from each employer during the second quarter of 2020, for a total of

$20,000. Because Employers E and F are treated as a single employer under the

aggregation rules, the total amount of qualified wages that may be taken into account

quarter, Employers E and F are not entitled to the employee retention credit for wages

paid to Employee G in any remaining quarter in 2020.

Question 30: What are “qualified wages”?

3121(a) of the Code) and compensation (as defined in section 3231(e) of the Code),

both determined without regard to the social security wage base, paid by an eligible

employer to some or all of its employees after March 12, 2020, and before January 1,

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2021.

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paid by an eligible employer to provide and maintain a group health plan (as defined in

section 5000(b)(1) of the Code), but only to the extent that the amounts are excluded

from the gross income of employees by reason of section 106(a) of the Code. Amounts

account under sections 7001 and 7003 of the FFCRA.

The specific circumstances in which wage payments by an eligible employer will

be considered qualified wages depend, in part, on the average number of full-time

employees the eligible employer employed during 2019. For a large eligible employer

(more than 100 employees), qualified wages are the wages paid to an employee for

time that the employee is not providing services due to either (1) a full or partial

suspension of the employer's business operations due to a governmental order, or (2)

the business experiencing a significant decline in gross receipts. For a small eligible

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employer (100 or fewer employees), qualified wages are the wages paid with respect to

an employee during any period in the calendar quarter in which the business operations

are fully or partially suspended due to a governmental order or during any calendar

quarter in which the business is experiencing a significant decline in gross receipts.

Code. Employer A also makes matching and nonelective contributions to the qualified

section 401(k) plan and pays the portion of the cost of maintaining the group health plan

remaining after the employees’ share. None of these amounts are wages taken into

account for purposes of the credits claimed under sections 7001 and 7003 of the

FFCRA.

Employer A may treat as qualified wages the amounts its employees contribute

as pre-tax salary reduction contributions to the qualified section 401(k) plan with respect

to the period of the partial suspension of operations because those amounts are wages

within the meaning of section 3121(a).

Employer A may also treat all amounts paid toward maintaining the group health

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period of the partial suspension of operations as qualified health plan expenses and

thus as qualified wages.

Employer A may not treat as qualified wages the amounts Employer A

contributes as matching or nonelective contributions to the qualified section 401(k) plan,

Answer 31: The term “full-time employee” means an employee who, with respect

to any calendar month in 2019, had an average of at least 30 hours of service per week

or 130 hours of service in the month (130 hours of service in a month is treated as the

monthly equivalent of at least 30 hours of service per week), as determined in

accordance with section 4980H of the Code. An employer that operated its business for

the entire 2019 calendar year determines the number of its full-time employees by

taking the sum of the number of full-time employees in each calendar month in 2019

and dividing that number by 12.

An employer that started its business operations during 2019 determines the

number of its full-time employees by taking the sum of the number of full-time

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business and dividing that sum by the number of full calendar months in 2019 in which

the employer operated its business.

An employer that started its business operations during 2020 determines the

number of its full-time employees by taking the sum of the number of full-time

aggregation rules are treated as a single employer for purposes of determining the

employer’s average number of employees.

Example: Employers B and C each averaged 75 full-time employees in 2019.

Employers B and C are treated as a single employer under the aggregation rules and

therefore are treated as a single employer for purposes of determining the employee

retention credit; they are an eligible employer. Employers B and C together averaged

150 full-time employees in 2019. Because Employers B and C are a large eligible

employer, each employer is eligible for the employee retention credit only for wages

paid to an employee that is not providing services due to either (1) a full or partial

suspension of operations by governmental order, or (2) a significant decline in gross

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sections 7001 and 7003 of the FFCRA. In this case, 90 percent of wages paid to these

employees during the period the clubs were closed are qualified wages.

Example 2: Employer J, a large eligible employer operating a consulting firm,

closed its offices due to various governmental orders and required all employees to

purposes of the employee retention credit?

Answer 38: A large eligible employer may not treat as qualified wages amounts

paid to employees for paid time off for vacations, holidays, sick days and other days off.

These wages are paid pursuant to existing leave policies that represent benefits

accrued during a prior period in which the employees provided services and are not

wages paid for time in which the employees are not providing services.

However, a small eligible employer may treat all wages paid with respect to

employees during the period of the full or partial suspension of operations or a calendar

quarter in which it has a significant decline in gross receipts, even if under a pre-existing

vacation, sick and other leave policy, as qualified wages for purposes of the employee

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Question 39: May an eligible employer treat payments made to former

employees who have terminated employment as qualified wages for purposes of the

employee retention credit?

Answer 39: Payments, including severance payments or other post-termination

respect to an employee during the time for which the employee retention credit may be

claimed. Whether an employee has terminated employment is based on all of the facts

and circumstances, including whether the employer has treated the employment

relationship as terminated for purposes other than the continuation of wage payments.

Question 40: Do qualified health plan expenses include both the portion of the

cost paid by the eligible employer and the portion of the cost paid by the employee?

Answer 40: Yes. However, amounts that the employee paid for with after-tax

contributions are not considered qualified health plan expenses. The amount of

qualified health plan expenses taken into account in determining the amount of qualified

wages generally includes both the portion of the cost paid by the eligible employer and

the portion of the cost paid by the employee with pre-tax salary reduction contributions.

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Question 41: May a small eligible employer treat its health plan expenses as

qualified wages for purposes of the employee retention credit?

Answer 41: A small eligible employer may treat its health plan expenses paid or

incurred, after March 12, 2020, and before January 1, 2021, with respect to any

qualified wages even if the employees are not working and the eligible employer does

not pay the employees any wages for the time they are not working.

Example 1: Employer A is a small eligible employer subject to a governmental

order that partially suspends the operation of its trade or business. In response to the

governmental order, Employer A reduces all employees’ hours by 50 percent. It pays

wages to the employees only for the time the employees are providing services, but

Employer A continues to provide the employees with full health care coverage.

Employer A’s health plan expenses allocable to wages paid during the period its

operations were partially suspended may be treated as qualified wages for purposes of

the employee retention credit.

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governmental order, Employer B lays off or furloughs all of its employees (but does not

treat these employees as terminated for employment tax purposes). It does not pay

wages to its employees for the time they are laid off or furloughed and not working, but

it continues the employees’ health care coverage. Employer B’s health plan expenses

expenses paid or incurred, after March 12, 2020, and before January 1, 2021, allocable

to the time that the employees are not providing services during any period in a

calendar quarter in which the employer’s business operations are fully or partially

suspended due to a governmental order or a calendar quarter in which the employer

experiences a significant decline in gross receipts, although only $10,000 per employee

for all calendar quarters can be taken into account for the employee retention credit.

However, a large eligible employer may not treat as qualified wages health plan

expenses allocable to the time the employees are providing services.

Example 1: Employer C is a large eligible employer subject to a governmental

order that partially suspends the operation of its trade or business. In response to the

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Employer C continues to provide the employees with full health care coverage. The 50

percent of Employer C’s health plan expenses allocable to the time that employees are

not providing services may be treated as qualified wages. Employer C may not treat the

other 50 percent of health plan expenses allocable to the time the employees are

cover 100 percent of the employees’ health plan expenses. Employer D may treat as

qualified wages: (i) the 10 percent of the wages that it pays employees for time the

employees are not providing services, plus (ii) 50 percent of the health plan expenses,

because these health plan expenses are allocable to the time that employees were not

providing services.

Example 3: Employer E is a large eligible employer subject to a governmental

order that fully suspends the operations of its trade or business. Employer E lays off or

furloughs its employees (but does not treat these employees as terminated for

employment tax purposes) and does not pay wages to the employees, but does

continue to cover 100 percent of the employees’ health plan expenses. Employer E

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Question 43: For an eligible employer that sponsors more than one plan for its

employees (for example, both a group health plan and a health flexible spending

arrangement (health FSA)), or more than one plan covering different employees, how

are the qualified health plan expenses for each employee determined?

plan, how are the qualified health plan expenses of that plan allocated on a pro rata

basis?

Answer 44: An eligible employer who sponsors a fully-insured group health plan

may use any reasonable method to determine and allocate the plan expenses, including

(1) the COBRA applicable premium for the employee typically available from the

insurer, (2) one average premium rate for all employees, or (3) a substantially similar

method that takes into account the average premium rate determined separately for

employees with self-only and other than self-only coverage.

If an eligible employer chooses to use one average premium rate for all

employees, the allocable amount for each day an employee covered by the insured

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(1) The eligible employer’s overall annual premium for the employees covered by the

policy is divided by the number of employees covered by the policy to determine the

average annual premium per employee.

(2) The average annual premium per employee is divided by the average number of

reasonable method for calculating work days for part-time and seasonal employees.

(3) The resulting premium should be adjusted to reflect any portion that employees

contribute after-tax.

(4) The resulting amount is the amount allocated to each day of qualified wages.

Example: Employer F sponsors an insured group health plan that covers 400

employees, some with self-only coverage and some with family coverage. Each

employee is expected to have 260 work days a year (i.e., five days a week for 52

weeks). The employees contribute a portion of their premium by pre-tax salary

reduction, with different amounts for self-only and family coverage. The total annual

premium for the 400 employees is $5.2 million (this includes both the amount paid by

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For an eligible employer using one average premium rate for all employees, the

average annual premium rate is $5.2 million divided by 400, or $13,000. For each

employee expected to have 260 work days a year, this results in a daily average

premium rate equal to $13,000 divided by 260, or $50. This $50 is the amount of

expenses, including (1) the COBRA applicable premium for the employee typically

available from the administrator, or (2) any reasonable actuarial method to determine

the estimated annual expenses of the plan.

If the eligible employer uses a reasonable actuarial method to determine the

estimated annual expenses of the plan, then rules similar to the rules for insured plans

are used to determine the amount of qualified health plan expenses allocated to an

employee. That is, the estimated annual expense is divided by the number of

employees covered by the plan, and that amount is divided by the average number of

work days during the year for all covered employees (treating days of paid leave as

work days and any day on which an employee performs any work as a work day). The

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contribute after-tax. The resulting amount is the amount allocated to each day of

qualified wages.

Question 46: For an eligible employer who contributes to a health savings

account (HSA), or Archer Medical Saving Account (Archer MSA) and sponsors a high

Question 47: For an eligible employer who sponsors a health reimbursement

arrangement (HRA), a health flexible spending arrangement (health FSA), or a qualified

small employer health reimbursement arrangement (QSEHRA), are contributions to the

HRA, health FSA, or QSEHRA included in the qualified health plan expenses?

Answer 47: The amount of qualified health plan expenses may include

contributions to an HRA (including an individual coverage HRA), or a health FSA, but

not contributions to a QSEHRA. To allocate contributions to an HRA or a health FSA,

eligible employers should use the amount of contributions made by or on behalf of the

particular employee.

Question 48: Are health plan expenses that are allocable to qualified sick leave

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7001 and 7003 of the FFCRA excluded from the definition of qualified wages for

purposes of the employee retention credit?

Answer 48: Yes. Wages for which an eligible employer may claim the employee

retention credit do not include the qualified sick leave wages and qualified family leave

employee retention credit for any qualified wages paid to employees if the employer is

Section 206(c)(2)(B)(i) of the Relief Act struck section 2301(j) of the CARES Act, effective

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that are not qualified wages and $30,000 of payroll costs that are qualified wages.

Employer D received a decision under section 7A(g) of the Small Business Act in the

first quarter of 2021 for forgiveness of the entire PPP loan amount of $200,000.

Employer D is deemed to have made an election not to take into account

Employer D is not deemed to have made an election with respect to the $120,000 of

qualified wages that are not included in the payroll costs reported on the PPP Loan

Forgiveness Application. Accordingly, Employer D may take into account the $120,000

of qualified wages ($150,000 of qualified wages paid minus $30,000 of qualified wages

included in the payroll costs reported on the PPP Loan Forgiveness Application) for

purposes of the employee retention credit.

Example 7: Same facts as Example 6 except Employer D’s PPP loan is not

forgiven by reason of a decision under section 7A(g) of the Small Business Act.

Employer D may treat the full $150,000 as qualified wages (the $30,000 of qualified

wages included in the payroll costs reported on the PPP Loan Forgiveness Application,

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Question 50: How does an eligible employer claim the employee retention credit

for qualified wages?

Answer 50: An eligible employer claims the employee retention credit for

wages, as well as the employer's share of social security and Medicare tax.

In anticipation of receiving the employee retention credit, eligible employers can

(1) reduce their deposits of federal employment taxes, including withheld taxes, that

would otherwise be required up to the amount of the anticipated credit, and (2) request

an advance of the amount of the anticipated credit that exceeds the reduced federal

employment tax deposits by filing Form 7200.

Example: Employer A paid $10,000 in qualified wages (including allocable

qualified health plan expenses), among other wages. After deferral of the employer's

share of social security tax under section 2302 of the CARES Act, Employer A is

otherwise required to deposit $8,000 in federal employment taxes for all of its

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defer the employee’s share of social security tax. Employer A has no credits under

sections 7001 and 7003 of the FFCRA. Employer A is not a tax-exempt organization

eligible for the credit under section 303(d) of the Relief Act. In anticipation of the

employee retention credit, Employer A may keep up to $5,000 of the $8,000 of taxes

Answer 51: Yes. If an eligible employer does not have sufficient federal

employment taxes set aside for deposit to cover the amount of the anticipated credit,

the eligible employer may request an advance payment of the credit. The amount of the

advance payment will depend on the application of other relief provisions to the

employer. For example, eligible employers are permitted to defer the deposit and

payment of the employer's share of social security tax under section 2302 of the

CARES Act and the employee’s share of social security tax under Notice 2020-65 and

may do so prior to reducing any deposits in anticipation of the credit. Therefore,

assuming an employer defers deposit of social security tax under section 2302 of the

CARES Act and Notice 2020-65, the employer should take into account any permitted

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sections 7001 and 7003 of the FFCRA related to qualified sick leave wages and

qualified family leave wages that the employer paid, and (4) for any tax-exempt

organization employer, any credit under section 303(d) of the Relief Act, before

determining the amount that it should request as an advance payment of the employee

reduction covers the full amount of the anticipated credit, it should not file a Form 7200.

Example: Employer B paid $20,000 in qualified wages to two employees (each

employee was paid $10,000 in qualified wages) and is therefore entitled to a credit of

$10,000. Employer B is otherwise required to deposit $8,000 in federal employment

taxes on all wages paid to all employees, after deferring its employer's share of social

security tax under section 2302 of the CARES Act. Employer B did not choose to use

the relief under Notice 2020-65 to defer the employee’s share of social security tax.

Employer B has no credits under sections 7001 and 7003 of the FFCRA. Employer B is

not a tax-exempt organization eligible for the credit under section 303(d) of the Relief

Act. Employer B can keep the entire $8,000 of taxes that Employer B was otherwise

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claim on the Form 941. Employer B may make a request for an advance payment of

the credit for the remaining $2,000 by submitting Form 7200.

Question 52: Is there a minimum advance amount that can be claimed on a

Form 7200?

paid in 2020?

Answer 53: Eligible employers that filed quarterly federal employment tax returns

for 2020 had the ability to submit a Form 7200 to request an advance for each calendar

quarter before the earlier of (1) the date the employer filed the Form 941 for the relevant

quarter or (2) the due date for filing the quarterly employment tax return, as provided

below:

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At the date of publication of this notice, the due dates for the quarterly federal

employment tax returns for 2020 have passed, and Forms 7200 submitted after the due

dates for credits claimed in the relevant quarters in 2020 will not be processed.

Eligible employers filing a Form 943 or Form 944 for 2020 had the ability to

Railroad Retirement Tax Return for 2020.

Question 54: Who can sign a Form 7200? Should a taxpayer submit additional

documents to confirm that a person is authorized to sign a Form 7200?

Answer 54: For corporations, the president, vice president, or other principal

officer who is duly authorized may sign a Form 7200. For partnerships (including an

LLC treated as a partnership) or unincorporated organizations, a responsible and duly

authorized partner, member, or officer having knowledge of the entity’s affairs may sign

a Form 7200. For a single-member LLC treated as a disregarded entity for federal

income tax purposes, the instructions provide that the owner or a principal officer who is

duly authorized may sign the Form. For trusts or estates, the fiduciary may sign the

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In many circumstances, whether the person signing the Form 7200 is duly

authorized or has knowledge of the partnership’s or unincorporated organization’s

affairs is not apparent on the Form 7200. To help expedite and ensure proper

processing of Forms 7200, if a taxpayer has duly authorized an officer, partner, or

rules, will the individual entities separately report their credit on their federal

employment tax returns?

Answer 55: Yes. Each eligible employer will report its employee retention credit

on its federal employment tax return (or on its third-party payer's federal employment

tax return) without regard to its aggregation with other entities as a single employer for

purposes of the credit. Each eligible employer's credit will be the amount of the credit

apportioned among the members of the aggregated group on the basis of each

member's proportionate share of the qualified wages giving rise to the credit per the

return period for which the credit is claimed.

Question 56: May an eligible employer elect to not take into account qualified

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Answer 56: Yes. Any eligible employer may elect to not take certain qualified

wages into account for purposes of the employee retention credit by not claiming the

credit for those qualified wages on its federal employment tax return. In addition, an

eligible employer that received a PPP loan is deemed to have made an election to not

wages are not paid pursuant to a pre-existing vacation, sick and other personal leave

policy. The wages may be treated as either qualified sick leave wages under section

7001 of the FFCRA or as qualified wages for purposes of the employee retention credit.

Employer C may elect to not take into account any amount of the $10,000 of wages as

qualified wages for purposes of the employee retention credit.

Question 57: May an eligible employer that files quarterly federal employment

tax returns take into account qualified wages paid in a past calendar quarter in which

the eligible employer may have been entitled to claim the credit, but elected not to do

so?

Answer 57: Yes. An eligible employer may file a claim for refund or make an

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retention credit to which it was entitled on qualified wages paid in that past calendar

quarter, following the rules and procedures for making those claims or adjustments.

An eligible employer that received a PPP loan and did not claim the employee

retention credit may file a Form 941-X for the relevant calendar quarters in which the

Business Act.

Example 1: Employer D is an eligible employer and paid qualified wages during

the second quarter of 2020 but did not claim an employee retention credit on its second

quarter 2020 Form 941. Employer D did not receive a PPP loan. If Employer D

subsequently decides to claim the credit to which it is entitled for the second quarter of

2020, Employer D should file a Form 941-X for the previously filed second quarter 2020

Form 941 within the appropriate timeframe to make an interest-free adjustment or claim

a refund. Employer D should not use a subsequent Form 941 to claim an employee

retention credit for qualified wages paid in the second quarter of 2020.

Example 2: Employer E received a PPP loan of $200,000. Employer E is an

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PPP Loan Forgiveness Application and reported the $250,000 of qualified wages as

payroll costs in support of forgiveness of the entire PPP loan. Employer E received a

decision under section 7A(g) of the Small Business Act in the first quarter of 2021 for

forgiveness of the entire PPP loan amount of $200,000.

Form 941 within the appropriate timeframe to make an interest-free adjustment or claim

a refund for the second quarter, as appropriate. Under these facts, Employer E should

not use a subsequent Form 941 to claim an employee retention credit for qualified

wages paid in the second quarter of 2020.

Example 3: Same facts as Example 2, except that Employer E’s PPP loan is not

forgiven by reason of a decision under section 7A(g) of the Small Business Act. If

Employer E decides to claim the credit to which it is entitled for 2020 with regard to the

$250,000 of qualified wages, Employer E may file a Form 941-X for the previously filed

second quarter Form 941 within the appropriate timeframe to make an interest-free

adjustment or claim a refund for the second quarter in 2020. Alternatively, Employer E

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Question 64: When should the name and EIN of a third-party payer be included

on Form 7200?

Answer 64: Common law employers who file Form 7200 to claim an advance

payment of credits are required to include on the form the name and EIN of the third-

of advance payment of the credits to the federal employment tax return for the calendar

quarter, only those third-party payers who will file a federal employment tax return on

behalf of a common law employer using the third-party payer’s name and EIN should be

listed on the Form 7200. Typically, CPEOs, PEOs, and other 3504 agents fall into this

category of third-party payers.

If a third-party payer will file the federal employment tax return on a common law

employer’s behalf using the common law employer’s name and EIN and not the name

and EIN of the third-party payer, the common law employer should not include the name

and EIN of the third-party payer on the Form 7200. Typically, reporting agents and

payroll service providers fall into this category of third-party payers.

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Question 65: If a common law employer uses a third-party payer for only a

portion of their workforce, should the employer list the third-party payer on the Form

7200?

Answer 65: In some cases, a common law employer may use the services of a

If the common law employer is claiming advance payments of credits for both

wages paid directly to employees that will be reported on its own federal employment

tax return and wages paid to other employees by a third-party payer that will be

reported on the third-party payer’s federal employment tax return, two separate Forms

7200 should be filed: one for the wages paid by the common law employer with the

name and EIN of the common law employer, and one for the wages paid by the third-

party payer with the name and EIN of both the common law employer and the third-

party payer.

To help expedite and ensure proper processing of Form 7200 and reconciliation

of advance payment of the credits to the federal employment tax return when a common

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name and EIN of the third-party payer only on the Form 7200 for advance payment of

the credits for wages paid by the third-party payer and reported on the third-party

payer’s federal employment tax return. The common law employer should not include

the name and EIN of the third-party payer on the Form 7200 for advance payments of

collect from the client employer any information necessary to accurately claim the

employee retention credit on its client employer's behalf. This includes obtaining

information with respect to the client employer's claims for credits under sections 7001

and 7003 of the FFCRA and under section 45S of the Code, as well as whether the

client employer has received a Paycheck Protection Program loan authorized under the

CARES Act.

Question 67: May third-party payers rely on client employer information

regarding the employee retention credit?

Answer 67: Yes. If a third-party payer (such as a CPEO, PEO, or other section

3504 agent) is claiming the employee retention credit on behalf of the client employer,

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Either the third-party payer or the client employer may maintain all records which

substantiate the client employer's eligibility for the employee retention credit. However,

if the client employer maintains the records, upon request by the IRS, the third-party

payer must obtain from the client employer and provide to the IRS records that

Question 68: Upon request by the IRS, what records must third-party payers

obtain from their client employers to substantiate the client employer's eligibility for the

employee retention credit?

Answer 68: If a third-party payer is claiming the employee retention credit on

behalf of the client employer, it must, at the IRS's request, be able to obtain from the

client employer and provide to the IRS records that substantiate client employer's

eligibility for the employee retention credit.

Question 69: Are client employers responsible for avoiding a "double benefit"

with respect to the employee retention credit and the credit under section 45S of the

Code?

of the Code. The client employer cannot use wages that were used to claim the

employee retention credit and reported by the third-party payer on the client employer’s

behalf to claim the section 45S credit on its income tax return.

Answer 70: An eligible employer will adequately substantiate eligibility for the

employee retention credit if the employer creates and maintains records that include the

following information:

• Documentation to show how the employer determined the amount of

• Documentation related to the determination of whether the employer is a

• Copies of the completed federal employment tax returns that the employer

later. These should be available for IRS review.

Any collection of information associated with this notice has been submitted to

the Office of Management and Budget for review under OMB control number 1545-0029

in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). An

agency may not conduct or sponsor and a person is not required to respond to a

please contact Ms. Pond or Mr. Mekadenaumporn at 202-317-6798 (not a toll-free call).