Matter & Substance
  June 22, 2023

Employee Retention Credit Fraud Continues to Grow

Although the money was meant to act as a lifeline for struggling businesses, the Employee Retention Credit (ERC) has become a hotspot for fraud as pop-up firms take advantage of business owners. Despite the IRS’s warnings and recent convictions, there are still actors acting in a fraudulent manner in order to collect on fees from businesses improperly filing for the ERC. These de novo firms market themselves as tax credit specialists who can help clients get ERC refunds—even if they don’t qualify—then charge large fees upfront or take cuts of the refund for payment.

What is the ERC?

As the pandemic forced businesses and their employees into a lockdown—especially in early 2020—several programs were created to keep those businesses and their employees from financial ruin. One such program was the Employee Retention Credit, passed by Congress in March 2020 as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
For those businesses significantly impacted by COVID-19, the ERC is fully refundable against payroll taxes, meaning the government was willing to offer relief for those businesses who were losing money but still paying their workers. Businesses have until 2025 to retroactively claim the credit by filing an amended tax return.
To be eligible for the ERC, employers must have:

  • Sustained a full or partial suspension of operations due to orders from an appropriate governmental authority limiting commerce, travel or group meetings due to COVID-19 during 2020 or the first three quarters of 2021,

  • Experienced a significant decline in gross receipts during 2020 or a decline in gross receipts during the first three quarters of 2021, or

  • Qualified as a recovery startup business for the third or fourth quarters of 2021.

What does ERC fraud look like?

The Employee Retention Credit is a legitimate tax credit, but because the ERC rules and structure were adjusted from bill to bill, its changes have created an inconsistent understanding of eligibility. Many of these ERC providers have not dealt with the IRS in compliance or audit representation matters and do not seek nor understand the full details regarding the credit’s requirements. They may claim the IRS guidance is “incorrect” and try to push for aggressive positions without their clients’ understanding or consent.
Warning signs of fraud to look out for include:

  • Unsolicited calls or advertisements mentioning an "easy application process."

  • Lies about eligibility requirements.

  • Any “guarantees” the firms say they can provide, as it is unlikely those consultants will still be in existence years in the future when the claim is audited.

  • Statements that the promoter or company can determine ERC eligibility within minutes.

  • Large upfront fees to claim the credit.

  • Fees based on a percentage of the refund amount of Employee Retention Credit claimed.

  • Claims from the promoter that the business receiving the solicitation qualifies before any discussion of the group's tax situation.

  • Claims urging businesses to submit their application because there is “nothing to lose.” (Those who received the credit without qualification could have to repay not only the credit, but also substantial interest and penalties.)

We're here to help

We strongly encourage you to work only with a trusted specialty tax advisor on the ERC. If you need assistance in applying for the credit, look for established firms who have experience in dealing with other complicated tax laws, including R&D Tax Credits and Cost Segregation.

If you have any questions about the ERC or the fraud surrounding it, reach out to us today.