Employee Retention Tax Credits: Are Banks Eligible?

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As we previously reported, we believe banks could be eligible for the Employee Retention Tax Credits (ERTC); although it may not be as easy as we originally thought.

Most, if not all, states have deemed banking to be ‘essential services’ during the COVID-19 crisis.  Though many banks have elected to close their lobbies, change their hours, or in a few cases close some branches entirely, many of these changes have been voluntary and have not, technically, been government mandated.  The initial guidance about this credit was limited, but additional Frequently Asked Questions (FAQs) have been released by the IRS, and are addressed below.

Operation Suspension Clarification, FAQ #30

Q:  If a governmental order requires non-essential businesses to suspend operations but allows essential businesses to continue operations, is the essential business considered to have a full or partial suspension of operations?

A:  No.  An employer that operates an essential business is not considered to have a full or partial suspension of operations if the governmental order allows the employer to remain open, even though the governmental order requiring non-essential businesses to close may have an effect on the employer’s operations.

Based on this question, it appears banks may not be eligible; however, based on FAQ #34 below, a bank may be able to demonstrate they have been affected by COVID-19.

Operation Suspension Clarification, FAQ #34

Q:  If a governmental order requires an employer to close its workplace for certain purposes, but the workplace may remain operational for limited purposes, is the employer considered to have a suspension of operations?

A:  Yes.  If an employer’s workplace is closed by a governmental order for certain purposes, but the employer’s workplace may remain open for other purposes or the employer is able to continue certain operations remotely, the employer’s operations would be considered to be partially suspended.

The bank’s good-faith interpretation of state orders, as meaning lobbies must be closed unless absolutely necessary to conduct business, seems to fall within the guidelines given in FAQ #34.

Here’s a relevant excerpt from the Kansas order:

“All individuals performing essential functions authorized by this order must –  to the extent possible without significant disruption to essential functions – use telework capabilities to avoid meeting in person; and any essential functions being performed on-site or in-person must – to the extent possible without significant disruption to essential functions – follow appropriate safety protocols, including maintaining a six-foot distance between individuals and following other directives regarding social distancing, hygiene, and other efforts to slow the spread of COVID-19.”

If a bank can document that:

  1. Their interpretation of the stay-home order is that closing the lobby is necessary to comply with social distancing requirements in the order,
  2. Closing the lobby didn’t cause a “significant disruption” to the bank’s essential functions, and
  3. The closure, however, impacted its employees (or its need for employees on the schedule, etc.)

We believe a bank can make a good-faith argument that it qualifies for the credit; however, we think this is definitely a case-by-case basis. For example, some banks or branches are large enough to comply with the social distancing requirements in the Kansas order, but others aren’t – the branches whose lobbies aren’t large enough to comply with the six foot distancing rule and are therefore closed, would more clearly qualify for the credit.

For more information on the Employee Retention Tax Credit, please visit:  https://614id4802rj1n5bzhugm3ddx-wpengine.netdna-ssl.com/wp-content/uploads/2020/04/CARES-Act_When-and-How-to-Use-Employee-Retention-Tax-Credits.pdf

For more information on HR issues related to COVID-19, please visit to https://www.kcoe.com/covid19/

Please let us know if you have questions or would like to discuss your individual situation.

 

 

 

 

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