What’s new: In an ongoing effort to curb abuse of the Employee Retention Tax Credit, the IRS recently released a Generic Legal Advice Memorandum (GLAM) to further stress the strict requirements for claiming the Employee Retention Tax Credit (ERTC) based on a full or partial suspension of business operations related to supply chain disruptions.

Background: The ERTC is a refundable credit against certain employment taxes paid by businesses impacted by the COVID-19 pandemic. To claim it, a dealership must have experienced either:

  • A full or partial shutdown due to a government order related to the pandemic, or
  • A gross receipts decline of at least 50% for the same calendar quarter from 2019 to 2020, or at least 20% for the same calendar quarter from 2019 to 2021 (only the first three quarters of 2021 qualify).

Why it matters: The GLAM addresses the first criterion (first bullet above) by describing several scenarios that do not satisfy the requirements for claiming the ERTC. Its analysis specifies that, to claim the ERTC based on a supplier’s inability to deliver critical goods and materials, a taxpayer must show that a qualifying governmental order caused the supplier and the taxpayer to suspend their business operations.

Certain promoters have pushed ineligible businesses to claim the ERTC based on supply chain disruptions that are tangentially related to the COVID-19 pandemic. The GLAM makes clear that the IRS takes a strict view on this type of ERTC claim and IRS Commissioner Danny Werfel reiterated this message recently, noting that the IRS is working aggressively to address a flood of fraudulent and erroneous ERTC claims. Several CPAs have also expressed concern to NADA about the exposure of dealers who claim the ERTC based on a full or partial suspension of their operations.

What’s next: NADA encourages dealers that have claimed the ERTC based on a supply chain disruption, or that are considering doing so, to share and discuss the GLAM with their tax advisor.

Go deeper: Read the IRS GLAM on ERTCs