The Consolidated Appropriations Act, 2021 signed into law by the President on December 27, 2020, contains significant enhancement and extension on various business and individual tax laws. Under the new tax law, the employee retention credit is modified, extended, and made available to PPP borrowers. The credit can be claimed by many businesses that retained employees despite significant decrease in revenue and can provide additional cash benefits to companies affected by COVID-19.

The credit applies to wages paid after March 12, 2020, and before July 1, 2021 (previously only until December 31, 2020.) For 2021, the credit is also increased from 50 to 70 percent of the qualified wages with respect to each employee. This provision is an extension of the original law which was enacted on March 27, 2020 with some modifications.

Qualified Employer

Effective January 1, 2021 eligible employers to be determined on a quarterly basis to include:

  1. One whose trade or business is fully or partially suspended during the calendar quarter due to orders from an appropriate governmental authority limiting commerce, trade, or group meetings (for commercial, social, religious, or other purposes) due to COVID-19, or
  2. An employer that experiences more than 20% decline in gross receipts for the calendar quarter during first two quarters of 2021. The 50% decline test has not changed for 2020 calendar year. For purposes of determining eligibility for gross receipt test, employers need to compare quarterly gross receipts as follows:

Eligible employer

Quarters comparison

Gross receipt decline %

Q1 2020

Q1 2020 to Q1 2019


Q2 2020

Q2 2020 to Q2 2019


Q3 2020

Q3 2020 to Q3 2019


Q4 2020

Q4 2020 to Q4 2019


Q1 2021

Q1 2021 to Q1 2019 or

Q4 2020 to Q4 2019*


Q2 2021

Q2 2021 to Q2 2019 or

Q1 2021 to Q1 2019*


*An employer may elect to compare the gross receipts for the immediately preceding calendar quarter to the gross receipts for the corresponding quarter in calendar year 2019.

  • Employers that did not exist at the beginning of Q1 and Q2 2019 should use Q1 or Q2 2020, respectively.
  • The Secretary of the Treasury will determine the time and manner of making the election.

The new law provides more favorable rules for determining eligible employers by lowering the eligibility threshold to 20 percent in 2021 rather than 50 percent decline in gross receipts, required for 2020 eligibility.

Although governmental employers are not eligible to be considered a qualified employer, effective January 1, 2021, an exception was added to include:

  • Governmental employers that are colleges or universities, and
  • Governmental employers that have as their principal purpose or function the provision of medical or hospital care.

Tax-exempt organizations are eligible for the employee retention credit since the enactment of the original law.

Qualified Employee

Under the original law, for a company with more than 100 employees, no credit was available for employees who were able to provide services for the employer. However, a company with 100 and less employees were eligible for the credit even if the employee was working.

The new tax law has modified this provision, effective Jan. 1, 2021 this threshold will be raised to 500 employees. As a result, companies with 500 or fewer employees will be eligible for the credit regardless of whether employees provided any services.

Qualified Wages

The provision that limits qualified wages to the amount the employee would have been paid for working an equivalent amount of time during the 30 days immediately preceding such quarter is eliminated. Additionally, the amount of qualified wages for which the credit can be claimed includes health benefits.

Effective Jan 1, 2021 the credit has also been increased to 70% of the qualified wages and an eligible employer can claim a credit for up to $10,000 of qualified wages paid for any qualified quarter, instead of all calendar quarters. Therefore, effective January 1, 2021 the credit cap is increased to $7,000 ($10,000 qualified wages x 70% tax credit rate) for two quarters for a possible maximum benefit of $14,000 per employee. The maximum credit for 2020 remains $5,000 per employee.

Advance payments

Small employers may elect for any calendar quarter to receive an advance payment of the credit. A small employer for this purpose is an employer with an average number of full-time employees (FTE) employed during 2019 of fewer than 500. The advance credit is limited to 70 percent of the average quarterly wages by the employer in 2019. If an employer was not in existence in 2019, the rules are applied using the year 2020. The Treasury department will issue guidance to allow an advance payment of the credit. As with many provisions under the CARES Act, companies should be mindful of controlled groups and affiliate rules when determining the average FTE.

Paycheck Protection Program

The original rule that prohibits an eligible employer from claiming the employee retention credit if the employer received a PPP loan is eliminated for both 2020 and 2021. However, the credit may not be claimed for wages used for PPP loan forgiveness calculation. An eligible employer can elect not to take an amount of qualified wages into account for purposes of the employee retention credit. The election is made at the time and in the manner provided by the IRS. Additional guidance from Department of Treasury is expected.

Lastly, it is important to note that claiming the credit decreases the benefit of other business credits available. Qualified employers are unable to count wages used to determine the employee retention credit in the calculation of other credits such as the Work Opportunity Tax Credit or the Employer Credit for Paid Family and Medical Leave. Additionally, wages considered in determining the employee retention credit will also not be eligible to determine the following additional credits: the research and development credit, the Indian employment credit, the military differential wage payment credit, and the empowerment zone employment credit.

To discuss these provisions or any others law changes in the Consolidated Appropriation Act and how they may benefit you, please contact your HLB Gross Collins, P.C. adviser or the author, Beza Asrat.

HLB Gross Collins, P.C. is committed to bringing you the most up-to-date and accurate information. We will continue to share relevant information as the COVID-19 situation continues to develop. Please note that this information may change from the time of publication, as the news is evolving on a daily basis. As with any business, tax, or financial guidance, you should always consult a professional to determine applicability to your specific situation.