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COVID-19: Economic Stimulus and SBA Loans

A summary of information on the various Small Business Association (SBA) loans that are available under the new federal economic stimulus package. Continually updated; last update May 26.

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AFP Board of Editors member Jacob Weichholz, frequent contributor Daniel Mayo, Chris DeMayo and their colleagues at WithumSmith + Brown have put together a summary of information on the various Small Business Association (SBA) loans that are available under the Coronavirus Aid, Relief and Economic Security (CARES) Act.

CAVEAT: This update is as of May 26, 2020. Things are changing constantly so the information needs to be verified before acting on it.

In an effort to provide some clarity, we want to break down in plain English some information about what we know about the SBA loans and other financial incentives that are part of the latest economic stimulus bill that has been passed.

A checklist of current steps you should be taking is below and updated as needed.

The legislation provides for forms of economic stimulus. When it comes to the business “middle market” there is one main area of focus, SBA loans. The legislation provides for funds to bolster the current disaster relief funds available through the SBA as well as carved out funds for new forms of funding, under the ‘Payroll Protection Program,’ of which a portion may be “forgivable” SBA loans. This is commonly referred to as Section 1105, or Section 7(a) loans. We want to provide some insight into what we know about these loan programs right now:

Update 5/26/20

Today we wanted to alert borrowers to a new Interim Final Ruling (IFR) that was released on May 22:

IFR 14. On May 22, the SBA issued its 14th “final” ruling with respect to the PPP. We have written extensively about it in this article. Much of this ruling seems to support assertions made on the application itself which recently was released. The application came out before this ruling, and an application is certainly not “law,” thus this IFR was needed to cement the SBAs views on a variety of issues.

We highly recommend you read the entire article as many topics were covered, but here are some notable highlights:

Reminder Section: (what should I be doing):

Update 5/22

Today we wanted to alert borrowers to a meaningful potential change to the PPP Program:

The Paycheck Protection Flexibility Act: Critics of the PPP have been vocal in outlining the flaws of the program. It was a loan product that was created for the entire middle market; however, in a complex economy, it has not been equally helpful for all businesses.

Take a restaurant for example: By its nature, a restaurant has high non-payroll costs (e.g., rent) and may have relatively low payroll costs (servers often make minimum wage). After the Pandemic hit, the CARES Act increased unemployment by $600 per week (over and above state unemployment) regardless of a recipients previous earnings. As a result, in some cases, low-wage earners are actually making more money on unemployment than they were when employed, thus giving them no reason to go back to work, especially if a business was shut down due to COVID-19 (like many restaurants were).

The PPP forces restaurants to bring back employees and put them on payroll, resulting in them actually receiving less income than they were receiving when on unemployment. At the same time, the expense the business really needs relief from is rent, and these types of non-payroll expenses are limited to 25% of the loan forgiveness amount. In the end, the employees made less money and the restaurant was unable to get most of its critical expenses paid and forgiven. This scenario happened over and over again in the middle market in ways that many could not have predicted.

Enter the proposed solution:

Changes to the PPP to correct for some of these issues were first introduced in the HEROS Act, a bill largely drafted by house Democrats and that has completely stalled in the senate. The HEROS Act is a massive $3 trillion bill (larger than the CARES Act) that introduced a wide variety of stimulus measures. The bill contained pragmatic PPP changes that would have solves the issue above, but it wound up being a victim of the political process. To combat this, the Paycheck Protection Flexibility Act was introduced, the it is a standalone piece of legislation that largely carves the PPP changes out of the HEROS Act. This Article outlines the background of the issues and many of the bipartisan proposed changes.

This bill apparently has bipartisan support (including the President) and we have heard from multiple sources that it may be voted on as early as next week. The changes would be very meaningful for all borrowers — here are some:

Changes Proposed:

We are watching this closely and will report if we see changes or momentum relating to this bill.

Update 5/21/20

Today we wanted to alert Borrowers to a meaningful change to the forgiveness calculation that was subtly put forward on the new application:

On April 3rd, Treasury released a PPP Borrower Information Fact Sheet that was meant to clarify key questions with respect to the application process. In particular, this document reaffirmed the definition of “Payroll Costs” (Page 2) and clarified that Salaries include bonuses and other forms of compensation subject to the $100k cap. It also clearly shows that “other compensation” such as vacation pay and severance were separate items, to be included over and above the cap. Th guidance aligned with the way the law was written.

In the newly-released loan forgiveness application, the SBA defines “payroll” to include an employee’s Cash Compensation and Non-Cash Compensation. Then it further defines Cash Compensation (see below), which is capped at $15,385 per employee during the covered period, to include any form of cash compensation such as severance and vacation payouts. This was a very subtle change that went unnoticed by many. This change is contrary to the way the law is written and will have a meaningful impact on Borrowers who were expecting these forms of compensation to be “over and above the cap.” We recommend that you review your calculations to determined what impact, if any, this change produces. We will be monitoring this issue as the SBA seems to have silently reversed its prior guidance.

Cash Compensation: Enter the sum of gross salary, gross wages, gross tips, gross commissions, paid leave (vacation, family, medical or sick leave, not including leave covered by the Families First Coronavirus Response Act), and allowances for dismissal or separation paid or incurred during the Covered Period or the Alternative Payroll Covered Period. For each individual employee, the total amount of cash compensation eligible for forgiveness may not exceed an annual salary of $100,000, as prorated for the Covered Period; therefore, do not enter more than $15,385 in Table 1 or Table 2 for any individual employee.

Update 5/20/20

Today we wanted to do a deep dive on the FTE rehire rule, a provision that may be meaningful for many borrowers:

FTE Safe Harbor (“Rehire Rule”): A deep dive into the FTE Safe Harbor rule. The CARES Act and subsequent Interim Final Rules/FAQs go to great lengths to describe how to reduce forgiveness if there is a reduction of FTEs. However, from the beginning, there has been a strangely drafted “rehire rule” that we candidly suspected may have been a drafting error. However, when the new application came out it became clear that this rule still exists and will be employed. With that being said, we wanted to walk through how this rule works, as the effect is a complete restoration of your FTEs within the calculation even if you don’t hire employees back during the covered period, for some borrowers, this is very meaningful. Here are the rules/steps:

Safe Harbor Rule (i.e., Rehire Rule)

In what appears to be a disproportionate benefit, the SBA is allowing the borrower to completely ignore a mathematical reduction of FTEs during the covered period if: 1) it had ANY reduction of employment during the period noted above; and 2) it resolved that reduction as of a single point in time (6/30). Documentation requirements appear to require at least a single payment for pay period covering 6/30 and there is no indication how long individual must remain an employee. We remain skeptical that this will not somehow change or be update through future guidance, but this is what we have right now.

Let’s look at an example:

Facts:

Analysis:

Update 5/18/20

Today we wanted to go over significant updates/clarifications to the forgiveness calculation that came out late on 5/15:

PPP Forgiveness Application: On May 15, new guidance regarding the calculation of forgiveness was issued in the form of a forgiveness application. Our firm has provided a detailed analysis of the document in this article. The introduction of this document is significant because it clarifies many questions with respect to how the calculation works. We suspect more guidance will come out but it is fair to assume this is the “bulk” of what we should expect to get. We highly recommend that you read the article summarizing the application, but here are some highlights:

There is no question it is illogical, but it appears you can lower your headcount during the covered period as much as you want, as long as, on a single day, you have more FTEs than you did during your Feb. 15, 2020 payroll run.

Update 5/15/20

Today we wanted to discuss questions on forgiveness and a clarification on loan proceeds:

Can I Re-Apply for a loan if I returned it? This week, the SBA confirmed that a safe harbor exists for borrowers whose loan is less than $2M. The SBA will not question eligibility as all borrowers in this population will be deemed to have made the application in good faith. This was a significant development as many borrowers returned their loans because, while they believed they were eligible, they were uncomfortable with the amount of ambiguity relating to the “eligibility” standards in place and the threat of criminal action. Based on a discussion with a bank this week, we learned that borrowers could re-apply if they returned their original loan and wish to obtain a new one. We recommend discussing with your bank if this applies to you.

How do you treat furloughed employees with respect to loan forgiveness? We have been getting this question quite a bit over the last few weeks: Is a furloughed employee still an employee or considered laid off for purposes of the forgiveness calculation? Why does this matter? It matters because when you calculate forgiveness you start with determining a ratio of FTEs during the covered period to FTEs during a base period (see forgiveness calculation). If a furloughed employee is considered laid off, then they represent a reduction in FTEs which reduces overall forgiveness. If they are considered an employee, you need to consider whether they add to the FTE count (based on hours worked) and whether they also have a “salary reduction in excess of 25% of compensation” if they make less than $100,000 a year annually. The current guidance does not address this directly, but it is something we are monitoring closely because the forgiveness impact is different under each scenario. Regardless, we believe that if an employee is furloughed, and the Company is still covering benefits, then those benefits would be includable as a forgivable expense.

Partnerships can increase their PPP loans. On May 14, the SBA issued an Interim final rule that confirmed partnerships can increase their PPP loans if their initial loan amount did not include partner compensation. During the application process there was a lot of confusion regarding what constituted “payroll costs.” Partners in partnerships are technically not considered employees and many lenders excluded the income allocated to Partners from the payroll cost definition. This resulted in a significant decrease in their loan amount and also left partners out in the cold when it came to getting compensated from the PPP loan proceeds during the covered period. This clarification allows partnerships to go back to their lender and to request an increase in the loan amount, which is a welcome change for many especially since it appears that funds continue to remain available for borrowers.

Update 5/14

In this update, we provide an analysis of one of the more meaningful FAQs that we have received in the last few weeks addressing eligibility:

Guidance on Eligibility. FAQ 46 was released yesterday (full text below) which provided additional guidance on eligibility, we have released and article on this FAQ as well given its importance. Shortly after that, FAQ 47 was released which extended the deadline for those who wish to return their PPP funds to May 18th. 

So what are the highlights?

“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”

  1. 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, 20 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.

Update 5/13

Some news with respect to the recently-proposed HEROES Act.

The HEROS Act. We now have new legislation that is in play, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act. This was introduced by the House yesterday, you can find expanded text here. This is obviously a first draft of new legislation and it needs to go through the legislative process. Right now we believe this was a bill largely authored by Democrats in the House, thus it needs to get Republican support, go through the Senate and get congressional committee level support as well. So what does that mean? At a minimum, expect changes, and it is possible this never actually makes its way into law — e.g., some Republicans have announced that the bill is “dead on arrival”.

There is no way to cover everything from the bill in one update, but for now, let’s break down cover what is most impactful to the middle market:

Update 5/12

Some news with respect to the Mainstreet Lending Program and other PPP news:

Mainstreet Lending Program Update. The Mainstreet Lending Program was first unveiled in April, and got a good deal of publicity as a potential source of liquidity for a wide variety of companies, especially those who could not get the PPP. The U.S. Chamber of Commerce put together probably the most clear and succinct description of the program, its requirements, limitations and eligibility. Similar to the PPP, this program will be administered through banks. For those who have asked, Yes you can have both the PPP and a loan from this program.  The big question now is, when will it be available? There is no clear answer, we are monitoring closely and will certainly report when we get new information.

Tech Company sues to keep PPP funds. Eligibly has been a source of controversy for sure, navigating the Statue and subsequent Interim Final Rulings have been a daunting task. Zumasys is a software company that has filed a lawsuit to try to stop the SBA from enforcing eligibly requirements put in place as a result of the April 23rd Interim Final Ruling. We doubt this is going anywhere, but interesting none the less.

The first PPP fraud discovered. The Justice Department’s criminal division has announced the first arrests relating to PPP fraud, this article describes an elaborate scheme which took place in New England to divert PPP funds to fictitious companies.

Update 5/11

In this update, some news with respect to the status of the PPP and some comments from the SBA’s Inspector General:

Demand for the PPP may be fading. There were a few articles that came out today (example CBS and Business Insider) indicating that the demand for PPP loans seem to be slowing, one article indicated that as much as 40% of the second tranche of funds remain available. This is likely the result of the recent surge of comments from various sources (Mnuchin, Treasury, etc.) which have led companies to question eligibility, but also an indicator that general demand is finally being met. For those who are still attempting to attain a loan, it appears there is still time.

Comments from the SBA Inspector General. The Office of Inspector General’s mission is to “provide independent, objective oversight to improve the integrity, accountability, and performance of the SBA.” This group authored an analysis of the PPP implementation process and also outlined some concerns regarding the forgiveness process and the term of the loans.  There is a lot to unpack with respect to the document but here are some thoughts that were drawn from and important expert (below). We don’t yet know if this document will somehow influence changes in the program, given the nature of the covered period, there is very limited time to do so. It is possible that it will only be informational, we will see:

“In addition to the 75-percent payroll criteria, the maturity term established by the Administrator and the Secretary would require the borrowers to repay any amount not eligible for forgiveness within the remainder of the initial 2-year term. The Act, however, allowed for a maximum maturity of up to 10 years. SBA’s requirements could result in an unintended burden to the borrowers. For example, PPP borrowers who do not use at least 75 percent of the loan for payroll (therefore use more than 25 percent of their loan proceeds for nonpayroll expenses) may not be able to have all of their loan forgiven. It may be important to consider that many small businesses have more operational expenses than employee expenses. Our review of data from round one found that tens of thousands of borrowers would not meet the 75-percent payroll cost threshold and would therefore have to repay the amount of nonpayroll costs in excess of 25 percent in less than 2 years.”

Update 5/8/20

Some news with respect to our upcoming webinar, opening offices, a new FAQ and EIDL loans:

Re-Opening Offices. While our daily updates have been centered around the PPP and other stimulus, I wanted to share an article written by our Chief Talent Officer which outlines thoughts regarding an approach for re-opening offices. It gives a glimpse into what the “new normal” might look like in the future and may provide some ideas to our clients as they start contemplating that move.

Use of EIDL Proceeds. We are starting to hear of clients receiving the EIDL loan (which they applied for long before the PPP). The question we are receiving is: Can we have both? How do they interplay?

Yes, you can have both the PPP and EIDL loan at the same time. Keep in mind that you cannot use both loans for the same purpose, meaning you cannot use the EIDL for payroll costs, then ask for forgiveness of payroll costs relating to your PPP loan. The EIDL allows for a much more broad set of expenses that are “allowable” than the PPP and has a repayment term that can be as long as 30 years at a competitive, fixed interest rate, it can serve as a nice source of liquidity if you are able to receive it.

FAQ 45. A new FAQ came out confirming if a Borrower returns their PPP loan, they will be eligible for the Employee Retention Credit. Nothing earth shattering here, but a welcomed clarification. As a reminder you ARE allowed to take advantage of the Payroll Tax Deferral if you received the PPP.

  1. Question: Is an employer that repays its PPP loan by the safe harbor deadline (May 14, 2020) eligible for the Employee Retention Credit?

Answer: Yes. An employer that applied for a PPP loan, received payment, and repays the loan by the safe harbor deadline (May 14, 2020) will be treated as though the employer had not received a covered loan under the PPP for purposes of the Employee Retention Credit.

Webinar on Forgiveness. On May 21st at 11am we will be hosting a webinar on how to calculate forgiveness. Feel free to RSVP if you are interested in joining. Based on recent FAQs we “suspect” new guidance will be out by Mid-May and thus we will have time to digest and discuss on the 21st. Given response rates from previous webinars, we recommend RSVPing as soon as you know you will be joining.

Also, here is a link to our PPP and the Enigma of Loan Forgiveness Update!

Update 5/7

This update addresses rumors on changes to the PPP and FAQs complexities.

Possible changes to the PPP. An article written by the NY Times talks about possible changes to the PPP program. There has been an undercurrent of discussion around the length of the covered period and if it should be extended. We have not heard anything that leads us to believe that the notion of extending the covered period is getting serious traction, but the article clearly indicates that certain members of Congress are focusing in on some of the PPPs inherent shortcomings. If this develops, we will certainly let you know.

Inconsistencies on FAQs. As FAQs continue to come out, we are starting to see inconsistencies between old and new FAQs. As an example, FAQ 3 and FAQ 44 address eligibility. Importantly it addresses an interplay between the size standard and affiliation with foreign entities (Parents, Subs and Sibling affiliations). FAQ 44 appears to close the loop on how to deal with a foreign entity when it comes to the size standard (i.e., the 500 employee test), but FAQ 3 appears to open the door to the notion that you only look at U.S. employees when considering the size standard. Issues like this are creating confusion as Borrowers try to understand what the “final” set of rules actually are.

A possible place to look for guidance when this comes up is FAQ 17, which appears to indicate that Borrowers and lenders may rely on the laws, rules, and guidance available at the time of their relevant application if it was made prior to April 2nd. If it was made after that period and new guidance has come out that is contrary to a position you took, you should consider discussing with counsel.

Reminder of where to find updates on forgiveness calculation. On April 13th we authored an article which covered a host of questions that we need to have answered when it comes to flaws/ambiguities in the forgiveness calculation. Since that date there have been over 20 new FAQs, we have updated this article to address the FAQs and their impact, it is a single source of information for what remains unknown for those who are struggling with issues.

 

Update 5/6

New FAQs that need to be considered on eligibility:

“Grace period” extended and SBA commits to new guidance on eligibility. FAQ 43 was released on May 5, indicating that the May 7th deadline for companies to return PPP funds without penalty if they have determined they are not eligible has been extended to May 14thThe big news is that the SBA committed to providing “additional guidance” on how it will review the certifications made in the application prior to May 14, 2020. This could mean that the SBA will further clarify (and possibly narrow) the scope of what they meant by the concept of “economic uncertainty.” This is something that Borrowers will need to closely consider.

Clarification on Foreign Affiliates. FAQ 44 was released last night and clarified that, for the 500 employee limit, the employees of foreign affiliates need to be included. This is important because many companies were under the impression that only U.S. employees were considered when it came to affiliation guidance. Thus, if a company had a foreign subsidiary, those employees will now need to be included for the purpose of the 500 FTE headcount limitation. Keep in mind, the 500 employee limit considers ALL employees as a full employee. So a part time employee is considered one person for the purpose of this calculation. This may require some companies to re-evaluate their eligibility.

Update 5/5

“Grace period” extended and SBA commits to new guidance on eligibility. FAQ 31 has been a controversial communication from the SBA, casting doubt among PPP Borrowers with respect to eligibility, forcing them to re-evaluate if the loan was “meant for them” without any additional substantive guidance from the SBA. The New York Times wrote a great article outlining some of the many struggles companies are dealing with when it comes to obtaining the PPP and how to use the funds.

While many have viewed this FAQ as targeting pubic companies and companies “owned by large companies,” you should consult your counsel and advisors if you are unsure about your facts. Otherwise our recommendation remains the same, that you should document the facts as you knew them at the time of your application/loan agreement and memorialize them in board minutes if you keep them.

In the end, the FAQ is confusing to read, and some believe that this was the intent of the writers. They did not want to draw “clear and definable lines” when it comes to eligibility, but instead wanted to force borrowers to take a hard look at their application in the hopes of deterring “bad actors.” We will learn more about their intent when the time comes for forgiveness applications to be evaluated.

The debate on deductibility continues. Mnuchin was on record on May 5 re-affirming his view that he does not believe that the expenses paid with forgiven PPP funds are deductible. This is after at least one member of Congress indicated last week that they intend to ensure that businesses do in fact get the deduction. We will continue to monitor this as it has significant consequences from a tax perspective.

Update 5/4

Some news with respect to PPP stats, a new FAQ and an update regarding deductibility of expenses funded by PPP proceeds:

New Info on PPP as of May 1:

Data from the public markets. There is not a lot of data available in the private markets on who received loans, and which banks processed them. Based on the fact that public companies are required to disclose these debt facilities, we are able to get a bit more granular as to what industries received funds, and which banks handled the most volume. This link provides some interesting insights into how the process went. To be clear, we have no judgment as to whether or not public companies were eligible for the funds (obviously a topic of public debate recently) but we wanted to share the data points for those who are interested.

Confirmation on taxability of deductions. The IRS provided formal guidance on April 30 which confirms our suspicion, expenses that were funded with PPP proceeds will not be deductible, and the forgiveness of the PPP loan is not includable in income. In theory this should mean that the loan is a “push” from a tax perspective. That said, if employees whose salaries were funded with PPP money were still productive, that could result in your Company having taxable revenue and limited costs of revenue during the period, thus more taxable income than you would normally have. This is likely not a meaningful concern now, but something for companies to consider in connection with estimated tax payments.

For those who didn’t get the PPP – Reminder on Employee Retention Tax Credit. The Employee Retention Tax Credit (ERTC) is available to those who did not receive PPP loans. The IRS has issued a set of FAQs that provides some fairly clear guidance on who is eligible and how one can benefit from the credit.

The ERTC generally is available to employers who had either fully or partially suspended operations during any calendar quarter in 2020 due to COVID or experienced a significant decline in gross receipts during any calendar quarter. A significant decline is defined as gross receipts in 2020 being less than 50% of the company’s gross receipts for the same calendar quarter in 2019.

The credit equals 50% of the qualified wages (including qualified health plan expenses) that an Eligible Employer pays in a calendar quarter. The maximum amount of qualified wages taken into account with respect to each employee for all calendar quarters is $10,000, so that the maximum credit for qualified wages paid to any employee is $5,000.

For some companies this can work out to a fruitful cash flow benefit. We recommend you speak to us or your payroll provider to learn more. This also raises an interesting issue for businesses that obtained a PPP loan but ended up returning it for one reason or another. Technically, the fact that a PPP loan was obtained prevents them from claiming the ERTC, but certainly there is an equitable argument to be made that no PPP loan was obtained.

New Act passed: On April 24, the President signed into law what is effectively a replenishment of the PPP. The Act also provides financial support to certain healthcare institutions and specifically earmarks $60B of PPP funds for smaller regional banks in an effort to try to ensure that small businesses get “preferred access” to forgivable loans. Banks were permitted to start sending applications to the SBA on that day. The original funds lasted only 13 days, we expect these funds will be available for considerably less time as, unlike the original loan process, there are a slew of applications already “in the pipeline” and ready to go.

On April 27, the PPP funds began flowing again, we have heard of many clients getting approvals and an equal number of clients are waiting as banks deal with delays and crashes due to volume of applications. Today we wanted to share some news with respect to more comments from Steve Mnuchin as well as some thoughts on accounting and tax issues:

PPP audits are coming. Steve Mnuchin made headlines on April 28 when he declared that ALL companies who received over $2M of PPP funds will be audited. Mnuchin has been outspoken over the last week in the warnings he has issued regarding eligibility. Today in his latest statement to the middle market, he re-affirms the need for Companies to prepare solid documentation around both the use of funds and the companies evaluation, at the time of application, that “Current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant”. Critics have quipped that Mnuchin is continuing to try to “move the goalposts” when it comes to the PPP through his statements, and may be creating more confusion than clarity. In previously-analyzed FAQs regarding eligibility, companies have until May 7th to return PPP funds without penalty if they have determined they are not eligible.

Mnuchin went on to say “This was a program designed for small businesses. It was not a program that was designed for public companies that had liquidity.” The reality is that the CARES Act, as it was written, certainly did not bake-in any of the parameters in that Mnuchin is asserting into the law, enhancing a concern that the rules are being changed in real time.

Further guidance on the threat of “audits” that made headlines on April 28. As noted in the April 29 update, above, Mnuchin made it clear that all loans over $2M would be “audited.” The new FAQ appears to clarify the current thinking. What remains unclear is how they intend to evaluate a certification that was written so broadly that it allowed almost any company to consider themselves eligible.

  1. Question: Will SBA review individual PPP loan files?

Answer: Yes. In FAQ #31, SBA reminded all borrowers of an important certification required to obtain a PPP loan. To further ensure PPP loans are limited to eligible borrowers in need, the SBA has decided, in consultation with the Department of the Treasury, that it will review all loans in excess of $2 million, in addition to other loans as appropriate, following the lender’s submission of the borrower’s loan forgiveness application. Additional guidance implementing this procedure will be forthcoming.

Four nuggets here:

  1. In the FAQ they use the word “review” rather than audit, which may signal a less invasive analysis.
  2. It is clear that this review will occur after the borrower submits an application for forgiveness and before the lender approves the request.  It remains unclear “who” will be doing this review (Lender, SBA, or third party).
  3. The review appears to be focused on the “need” of the borrower at the time of certification.
  4. There is a promise of additional guidance.

Accounting for the PPP. We have received a lot of questions around the accounting for the loan proceeds. How to book the loan is fairly straightforward (debt) but what about the forgiveness? Our current point of view is that this should be viewed as a Gain Contingency (ASC-450 for the accounting fans out there). The idea would be that the loan remains on the books (in full) until such time that the bank has formally confirmed what portion (if any) of the loan is forgiven. The portion that is forgiven will be included as “other income” after operating expenses in the income statement. Interest on the full balance of the loan should accrue from the point in time the loan is received, and any forgivable portion would follow the same accounting treatment. Expenses associated with the PPP would be recognized no differently than any other expenses in the ordinary course.

What about taxes? It is clear that the forgiven portion of the loan will not be taxable based on the language of section 1106(j) of the CARES Act. With respect to the expenses relating to this tax-free income, the prevailing view is that these expenses would not be deductible (under IRC section 265), which addresses expenses relating to tax-exempt income. In relevant part, that section states that “No deduction shall be allowed for any amount otherwise allowable as a deduction which is allocable to one or more classes of income other than interest wholly exempt from the taxes imposed by this subtitle.”

New FAQ from the SBA regarding PPP eligibility: The SBA issued a new FAQ on April 23 which has a clear connection to Steve Mnuchin’s comments in a press conference on April 22. The FAQ addresses eligibility. This has been a hot topic as the media has started to report on large, prominent companies who received PPP funds while some smaller companies have struggled to participate. Mnuchin made it clear that the Fed and SBA were going to put parameters around eligibility ahead of the next tranche of PPP funds being issued since the statute was so broad. Below is the output of that statement. Candidly it might result in many more questions than answers. Our analysis follows.

  1. Question: Do businesses owned by large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?

Answer: In addition to reviewing applicable affiliation rules to determine eligibility, all borrowers must assess their economic need for a PPP loan under the standard established by the CARES Act and the PPP regulations at the time of the loan application. Although the CARES Act suspends the ordinary requirement that borrowers must be unable to obtain credit elsewhere (as defined in section 3(h) of the Small Business Act), borrowers still must certify in good faith that their PPP loan request is necessary. Specifically, before submitting a PPP application, all borrowers should review carefully the required certification that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Borrowers must make this certification in good faith, taking into account their current business activity and their ability to access other sources of liquidity sufficient to support their ongoing operations in a manner that is not significantly detrimental to the business. For example, it is unlikely that a public company with substantial market value and access to capital markets will be able to make the required certification in good faith, and such a company should be prepared to demonstrate to SBA, upon request, the basis for its certification. Lenders may rely on a borrower’s certification regarding the necessity of the loan request. Any borrower that applied for a PPP loan prior to the issuance of this guidance and repays the loan in full by May 7, 2020 will be deemed by SBA to have made the required certification in good faith.11

Analysis

Conclusion: At the end of the day, the SBA drafted this to “cast a wide net” when it comes to who could be pulled into the spectrum of being ineligible. These terms are likely intentionally undefined to allow for the SBA to debate the facts with a loan recipient if they desire. Companies should carefully read this, come to their own conclusions and document them if the time comes that the SBA asks. This “feels” like a message to the public markets, but it could be interpreted in many ways.

Clarification on Maximum Loan Proceeds

On April 30, the SBA and Treasury released the 6th Interim Final Rule (yes they are up to 6) indicating that there is a maximum loan amount of $20M for any businesses that are part of a “single corporate group,” which it defined to include entities that are “majority owned” by a “common parent”. This is likely in response to the fact that certain companies had each of their subsidiaries apply for loans at the subsidiary level, multiplying the number of loans (for each subsidiary). This clarifies that the applicant needs to inform the SBA of the fact that they received excess proceeds or is required to rescind their application, however it falls short of saying the applicant needs to return the funds. Also this appears to apply only to applicants that have not yet received disbursements as of 4/30/20.

Who should be paying attention to this? FAQ uses the term “corporate group” and “common parent”. This begs the question: Do portfolio companies of VCs and PEs fall into this group? There is no clear definition of the terms used. This “feels” like it was meant for subsidiaries that are managed by a corporate parent (i.e., hotel chains, restaurant chains, etc.) but there is no clear definition provided of the terms used. This follows the pattern of ambiguity we have seen over the last few days, attempting to cast doubt amongst the public and force applicants continuously to evaluate eligibility.

Excerpt of the actual guidance:

Question: Can a single corporate group receive unlimited PPP loans?

No. To preserve the limited resources available to the PPP program, and in light of the previous lapse of PPP appropriations and the high demand for PPP loans, businesses that are part of a single corporate group shall in no event receive more than $20,000,000 of PPP loans in the aggregate.

It is the responsibility of an applicant for a PPP loan to notify the lender if the applicant has applied for or received PPP loans in excess of the amount permitted by this interim final rule and withdraw or request cancellation of any pending PPP loan application or approved PPP loan not in compliance with the limitation set forth in this rule. Failure by the applicant to do so will be regarded as a use of PPP funds for unauthorized purposes, and the loan will not be eligible for forgiveness.

For purposes of this limit, businesses are part of a single corporate group if they are majority owned, directly or indirectly, by a common parent. This limitation shall be immediately effective with respect to any loan that has not yet been fully disbursed as of April 30, 2020.

It is the responsibility of an applicant for a PPP loan to notify the lender if the applicant has applied for or received PPP loans in excess of the amount permitted by this interim final rule and withdraw or request cancellation of any pending PPP loan application or approved PPP loan not in compliance with the limitation set forth in this rule.

Main Street Lending Program

There was an update with respect to the main street lending program on April 28, and below we address some client questions and analyze a new FAQ

Whatever happened to the Main Street Lending Program? A few weeks ago the Fed unveiled its “Main Street Lending Program” which was meant to offer sources of low cost debt and liquidity to “larger” companies, especially those who could not qualify for the PPP. It was thought that the program would be available by now, however it turns out that the Fed is continuing to work with banks to solicit feedback on how to craft the program to make it most effective. For now, stay tuned, as there is no clear date that it will be available to the middle market.

“Payments made and costs incurred” during the covered period. We continue to get a lot of questions about what “counts” toward forgiveness during the eight week covered period.

For example: If my covered period starts on 4/28, and I paid payroll which was earned from 4/8 to 4/25 on 4/29, is that includable as payroll in the covered period? Alternatively, if my covered period ends on 6/28 and I incur payroll from 6/12 to 6/27 and pay it on 6/29 is that excluded from the calculation?

Analysis

The statute indicates that “payments made and costs incurred” during the covered period are subject to forgiveness. We need to get further clarification from the SBA on what exactly Congress meant by this. Some are interpreting this as an “and” scenario, thus an expense must be incurred AND paid. Some view it as an “or” scenario, thus an expense can be either incurred OR paid to be included. We simply do not yet know for sure what the true intent of this language was.

That said, our current view is that companies should continue to make payments “in the ordinary course”, and not make payments that they would not have ordinarily made during the eight-week period. At the same time, we “think” the intent of the language is to give companies credit for ordinary expenses incurred. Meaning, you will get credit for 8 weeks of payroll paid, you would not however get credit for jamming 10 weeks into the calculation as a result of changing your normal payroll practices. If timing of normal (ordinary course) payments of payroll does not align with your 8-week period, as in the example above, then we expect that the SBA would allow for a calculation resulting in a reasonable outcome. This is nothing more than our expectation at this point, but it seems in line with the spirit of the CARES Act. When we get further guidance we will share it.

New FAQ on eligibility. On April 28, the SBA issued FAQ number 37. The question and answer were both very basic, but likely will sow even more confusion among applicants:

  1. Question: Do businesses owned by private companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?

Answer: See response to FAQ #31.14

FAQ 31 was a reference to the recent (and somewhat controversial) FAQ asking if companies owned by “large companies with adequate sources of liquidity to support the business’s ongoing operations qualify for a PPP loan?” This FAQ is interesting, because FAQ 31 didn’t specifically include or exclude private companies from its question, so it is unclear why the SBA decided that it needed to take this step and offer even further clarification. Also this FAQ does not seem to answer its own question, it just refers to another question’s answer … which doesn’t really address the question either — very strange. One could surmise that the SBA may be trying to narrow in on a point of view regarding PE/VC investors, but even that doesn’t make a lot of sense given the fact that in the 3rd Interim Final Ruling (IFR) an FAQ specifically states that portfolio companies of PE funds are in fact eligible as long as they meet the affiliation guidance. Your guess on all of this is as good as ours.

In the end, FAQs like this don’t really do much to create clarity, and certainly raise concerns from the middle market who are seeking to act in good faith. Our recommendation ultimately remains the same — document your position and the circumstances that existed at the time you applied for the loan, if you are unsure, certainly consider consulting counsel. We also recommend documenting the uncertainties that existed within your board minutes (if you keep them) so it is clear as to what the facts were, and what was known or knowable at the time you applied.

Hedge Funds and PPP Loans

Hedge funds and PE firms are confirmed as ineligible: A new FAQ from the weekend of April 25 foreclosed on the possibility that hedge funds or PE firms could take advantage of the PPP. The door is still open however for their portfolio of investments. FAQ below…

  1. Is a hedge fund or private equity firm eligible for a PPP loan?

No. Hedge funds and private equity firms are primarily engaged in investment or speculation, and such businesses are therefore ineligible to receive a PPP loan. The Administrator, in consultation with the Secretary, does not believe that Congress intended for these types of businesses, which are generally ineligible for section 7(a) loans under existing SBA regulations, to obtain PPP financing.

Update as of April 20:

After the PPP funds were all spoken for, the business community is currently split between groups: Those who are now working through how to spend their PPP funds (and obtain forgiveness) and those who were not fortunate enough to get funds in the “first round” of this program, waiting for relief. Here are a few reminders with respect to forgiveness and some thoughts on how to “stand ready” to participate again.

Editor’s Note: The following items refer to the PPP loan program, for which the funds have been spoken for as of April 17 (see How much money is left in the pot? below). The other items have been kept in case more funds are released for the PPP program.

STEVEN MNUCHIN: Well, again, let me say, the most important issue is execution on what we have. We have a lot of money. We need to get that into hard-working American’s hands. We also have facilities that we’re working closely with the fed that will inject a lot of money into the economy quickly. As I said, we need to get these things going in the next few weeks. Having money that’s sitting around and distributing in months does no good to hard-working Americans. One of the things I’ve heard is, you know, the small business program will be so popular we’ll run out of our 350 billion. If that’s the case, that will be the top of the list for me to go back to Congress on. It has huge bipartisan support and want to protect small business. But we’re also coming out with a Main Street Lending Program with the Fed that will help mid-sized businesses, we’ll be looking at programs for state and local governments. We’ve already had programs for large companies, for money markets to support money markets. So, I can assure you, Jay Powell and I are working around-the-clock at providing liquidity into the economy.

FAQs: Deferral of Employment Tax Deposits and Payments

New FAQs that came out on April 12 from the IRS that may impact a vast majority of companies with respect to payroll tax deferral.

As a reminder, the CARES Act allows for an Employer payroll deferral — Employers and self-employed individuals can defer payment of the employer’s share (6.2%) of the Social Security payroll tax, but the deferred amount must be repaid in equal installments by Dec. 31, 2021 and Dec. 31, 2022.

If I get the PPP loan, can I also qualify for payroll deferral?

Up until recently, the prevailing thought was no. However this answer creates a bit of an unintended consequence, the PPP loan funds salary (which includes employee payroll taxes) but how do businesses that have cash flow constraints fund the employer portion of payroll taxes? Below is an excerpt from the April 12 IRS FAQs from the IRS yesterday which clarifies and also creates a great opportunity for clients to improve cash flow. We recommend that you reach out to your payroll provider prior to running your mid-month April payroll.

The FAQ implies that you can defer payroll taxes from now until such time that the PPP loan is “forgiven.” Forgiveness will be granted generally within 60 days of the end of the “covered period” which is the eight week period after an applicant receives a PPP loan, thus creating an opportunity to defer employer payroll taxes for up to a 16 week period.

From IRS FAQ (Question 4):

Can an employer that has applied for and received a PPP loan that is not yet forgiven defer deposit and payment of the employer’s share of social security tax without incurring failure to deposit and failure to pay penalties?

Yes. Employers who have received a PPP loan, but whose loan has not yet been forgiven, may defer deposit and payment of the employer’s share of social security tax that otherwise would be required to be made beginning on March 27, 2020, through the date the lender issues a decision to forgive the loan in accordance with paragraph (g) of section 1106 of the CARES Act, without incurring failure to deposit and failure to pay penalties. Once an employer receives a decision from its lender that its PPP loan is forgiven, the employer is no longer eligible to defer deposit and payment of the employer’s share of social security tax due after that date. However, the amount of the deposit and payment of the employer’s share of social security tax that was deferred through the date that the PPP loan is forgiven continues to be deferred and will be due on the “applicable dates,” as described in FAQs 7 and 8.

We strongly recommend you read the rest of the IRS FAQs linked above and speak to Withum or your financial adviser for interpretive guidance.

Guidelines from SBA

On April 2, the SBA produced guidance for the first time since the CARES Act passed. The guidance clarifies some significant questions we have all been grappling with, but many questions remain unanswered. Based on this document and the analysis below, we recommend you review and revise your loan calculations ASAP and communicate consistently with your bank regarding when they will accept applications.

Here are some highlights with respect to what we are seeing:

New Clarity on Who Is Eligible, the “Alternative Size Standard”

As noted, the SBA issued new clarifying guidance on who is eligible for the PPP loan program. Many have traditionally looked at the most well-known eligibility factor — do you have 500 or fewer employees in the United States. Most larger middle market companies concluded that they are not eligible. However the FAQs released on April 6th highlighted an interesting method that could be used as an alternative to qualify even if you have more than 500 employees, the “alternative size method.” Within this method, you could have OVER 500 employees in the United States and still qualify if your average net income over the last two years was below $5M and as of March 27, 2020 your “tangible net worth” was below $15M. This provision may have opened up eligibility to a wide variety of companies that are over 500 U.S. employees. We recommend that if you have more than 500 employees, you review eligibility to see if this applies to you.

The American Institute of CPAs (AICPA) on Calculating Forgiveness and Base Period for Payroll Costs

The AICPA’s Take on How to Calculate Forgiveness

The AICPA has released its recommendations of how it would like to see the SBA calculate forgiveness and published it yesterday. The AICPAs view is non-authoritative, however they have indicated in the past that they have been in contact and collaborated with the SBA on PPP matters, so it is possible that their views may be a lens into what to expect.

AICPA Recommends Using 2019 Payroll As the Base Period for Calculating Payroll Costs

There has been a tremendous amount of confusion as to what period should be used in determining a Companies “Payroll Costs” for the purposes of the calculation of the “Maximum Loan Amount” (MLA).  Guidance put out by the SBA has been inconsistent on this issue, for example, recent interpretive guidance issued on April 2 clearly stated that the SBA wants applicants to use the “last twelve months,” yet that same guidance urged the Banks to obtain 2019 information from clients to validate the calculation (remaining silent on the need to obtain 2020 information despite the calculation referring to “the last twelve months”).  More confusion came when others compared this guidance to FAQs issued by the SBA itself on the PPP loan which indicated that “most companies” will use 2019 data to calculate the MLA.

 Adding even more confusion to the mix, the SBA indicated in the April 2 guidance that the applicant needed to REDUCE the MLA any federal payroll tax withheld as well as income tax withheld from the period of 2/15/2020 to 6/30/20.  Following this guidance could result in a meaningful reduction of the MLA.

This combination of facts could lead a company to ask themselves: 

Everyone has been scrambling to try to figure out the “right path,” reading tea leaves to guess what the authors of this guidance “meant” when they wrote these provisions.  In the end, almost all applicants simply want to do the right thing, but many have felt uneasy trying to come to a conclusion, that includes their professional advisers!

To help clarify the AICPA has issued guidance as of April 4 in collaboration with the SBA. Mark Koziel, CPA, CGMA, the AICPA’s executive vice president has indicated:

“Based upon statements from members of Congress, it appears that the intent of the PPP was to base the salary calculation on gross wages with no adjustment for federal taxes. This ensures that payroll tax expenses are not passed on to the small businesses in need. In a program of this magnitude, it’s expected that guidance will evolve and terms will be clarified.”

So what does that mean?

  1. Talk to your service team!!  Work with your advisers to make sure your application makes sense.
  2. If you used 2019 to calculate the MLA, and did not reduce it for any income taxes, then you appear to have calculated in line with the AICPA’s guideline.
  3. If you submitted an application using the 12 months ended March 31 to calculate the MLA and did not reduce it for federal withholding taxes, speak to your advisers and/or the bank to confirm if it is acceptable.
  4. If you used the 12 months ended March 31 and you reduced that amount by federal income tax withholdings, we would recommend revisiting the approach.

New guidance continues to come out on a daily basis, the key is to make sure you are preparing and submitting in “good faith” and are clear with your banking institution on the approach you are taking.

Other Issues

Treasury FAQ

On April 6th the treasury released a short FAQ document which addresses many common questions. We have attached them to this email and we have summarized some of the relevant areas below. We strongly recommend you read the document in full and consider how it may impact your application. We have added some other items to consider as well as new issues arise daily.

FAQs Analysis

  1. Do lenders need to “verify” the calculation (Question 1): No, lenders can accept the application in “good faith.” This is meaningful because it allows for faster processing, however, further places the burden of analysis on the borrower.
  2. Eligibility further expanded (Question 2 and 3): This is a fairly meaningful clarification as it seems to indicate that companies can qualify as a small business even if they have over 500 employees provided that they meet one of 3 tests in the existing regulations.  This is important because up until now, most thought that the numerical statutory test (greater of 500 employees or employee based size standard) was the exclusive one.  This will open the PPP up to more companies for sure.
  3. Do Lenders need to verify Borrower certifications on Affiliation (Question 4): No.  This further reaffirms that lenders are processing the applications, and not fully underwriting them.  They are not required to make their own determination on affiliation, leaving it to the borrower to apply based on their good-faith analysis.
  4. Affiliation rules further clarified (Question 5): The SBA seems to be reaffirming that borrowers must analyze affiliation under section 13 C.F.R. 121.301(f), something that was confirmed in the interim final rule on affiliation late last week. It is still not clear whether affiliation applies to the numerical statutory test (as described above).
  5. Affiliation Minority interest rules clarified (Question 6): If a minority shareholder of the borrower irrevocably waives a right that made it an affiliate, then the affiliation rules do not apply to that shareholder.
  6. Confirmation of the $100k Cap (Question 7): This has been a major source of confusion and this might be the most valuable clarification in the document. Yes, your benefits are included over and above the $100k salary cap for the purpose of calculating Payroll Costs. If your bank capped you at $100k (all salaries and benefits together), then send them the FAQs so they can revise their calculation ASAP.
  7. Clarification on how the PPP interplays with Sick Leave (Question 8): The reduction in “payroll costs” applies only to qualified sick and family leave under the Families First Coronavirus Response Act.
  8. Rules for seasonal businesses clarified (Question 9): Provides simple clarifications on what period to use to determine the maximum loan amount.
  9. Rules related to using a PEO are clarified (Question 10): This was a minor clarification that made sense. If you use a PEO, then you cannot provide support like IRS Form 941 (a payroll form) because you technically lease employees from someone else. This merely clarifies that you need to provide an equivalent report from the PEO that allows the lender to see the support for your gross salary calculation.
  10. Can one person sign on behalf of the Company (Question 11): Yes. A welcomed clarification as companies were dealing with logistical issues here.
  11. If the applicant committed a felony, does that disqualify the application (Question 12): It may not depending on facts.
  12. Do banks need to use the same application (Question 13): No, as we have seen, banks are permitted to use their own applications for the purpose of the PPP as long as they request the same information as the SBA’s application. There will be no “universal” process.
  13. What time period should the borrower use to calculate the maximum loan amount and the number of “average employees” (Question 14): Another welcome clarification, this leaves it up to the borrower to decide what period to use, as we suspected. Although it does clarify that the average number of employees should be based on the period that you selected to calculate Payroll Costs.
  14. Clarifying payments to independent contractors (Question 15): As we suspected, payments made to Independent Contractors and Sole Proprietors should not be included in payroll costs; however, they can apply on their own.
  15. Accounting for federal taxes when determining the maximum loan amount (Question 16): This is a source of confusion and seems to have been especially troublesome for payroll companies preparing reports. This clarifies that only gross salary is considered when determining salary, there are no adjustments (positive or negative) for employer and employee federal income taxes or FICA.
  16. What happens if I file under the old rules prior to this clarification (Question 17): With these clarifications, some borrowers may have found that their previously-submitted application was incorrect. They are permitted to revise the application, but are not “required” to do so as long as they applied in good faith and were following the rules and guidance available at the time.
  17. Relaxation of KYC rules for the purpose of the PPP (Question 18): This has been a source of stress for clients whose banks are not accepting or have not yet accepted loan applications. The question: can I do this with another bank? The concern was that banks could not “onboard” new clients because of KYC rules, this clarifies that this is not the case and that the normal KYC data does not have to be collected in advance of the application.

Reminder Section: (what should I be doing): (updated May 14)

Withum principal, and frequent AFP contributor, Daniel Mayo has put together a summary of the CARES Act here. Withum has also set up a COVID-19 email alert through which news is sent as the issues evolve. Sign up here.

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Jacob Weichholz is a member of the Accounting and Financial Planning for Law Firms Board of Editors. He is a Principal at WithumSmith+Brown, CPA’s and Consultants in their New York office. Jake has serviced and advised law firms of all sizes for over 30 years. He co-leads the New York office Law Firm practice of Withum. He can be reached at jweichholz@withum.com.

Daniel Mayo is a Principal at WithumSmith+Brown. He is a member of Withum’s National Tax Services Group and has over 20 years of professional tax experience. He oversees U.S. Federal income tax research, planning and review and is frequently an author and speaker on U.S. Federal and International Income Tax topics. Daniel has experience in federal, international and financial products taxation as well as in capital markets, M&A and cross-border transactions. Daniel received his BS in Accounting from Rutgers College, his JD, cum laude from Seton Hall University School of Law, and his LLM in Tax from New York University School of Law. He is a member of the New York and New Jersey Bars and is an adjunct faculty member at the Georgetown University Law Center.

Chris DeMayo is a partner at Withum and serves as the firm’s Practice leader for the Technology and Emerging Growth Services Group. In addition to servicing his clients, his responsibilities include representing the firm in the marketplace, developing marketplace strategies, leading the growth and success of the firm’s technology and emerging growth practice. Beyond accounting, he has developed a deeply focused skill set within the sector as a strategic adviser and consultant. His expertise spans a variety of industry verticals within the technology and emerging growth community including but not limited to Ad-Tech, E-Commerce, Ed-Tech, Digital Media, Social Media, AR/VR, AI and Crypto based companies. Chris has authored numerous articles on a variety of topics and is frequently scheduled on speaking engagements at industry events.

Withum’s Brian Lovett and Sal Falzone, Jr. have also contributed to this article.

The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.

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