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Avoiding Four Potential ERC Pitfalls

The Good News: The Employee Retention Credit could possibly be the tax credit of a lifetime. Many businesses across the US have already applied for and received their checks for this refundable payroll tax credit and it has been a game-changer for businesses negatively impacted during the pandemic.

The Bad News: Anytime the government gives away “free money,” there will almost always be someone waiting to take advantage. I frequently say “scammers gonna scam” and the Employee Retention Credit has provided a perfect opportunity for less than reputable ERC mills to take advantage of taxpayers. If you are considering capturing the ERC, you can avoid four potential pitfalls by asking the following questions of an ERC provider before you sign on the dotted line.

1. Who determines my eligibility?

The Employee Retention Credit is a complicated tax credit with potential audit ramifications. Some taxpayers’ claims rest partially or fully on the business suffering a more than nominal impact due to governmental mandates that restricted commerce, travel or gathering during 2020 and/or 2021. Determining eligibility based on government mandates requires an understanding of the law and subsequent guidance around the ERC. Most business owners don’t have the time to digest the details and make an accurate determination of eligibility.

However, some ERC mills require the taxpayer to self-determine their eligibility when mandates are involved. Be sure to look at the fine print to understand whether the ERC provider is going to determine your eligibility or push that back on you.

2. Is audit defense included? The IRS has five years to examine ERC claims after a taxpayer receives their refund. That’s a long time for penalties and interest to accrue on claims the IRS may find ineligible. We fully anticipate some percentage of ERC refunds will be audited over the next 5 years. With $80 Billion in funding recently given to the IRS, and a number of new enforcement agents tasked with ERC scrutiny, the rate of audit on ERC claims could be as high as 10-20%, but no one knows for sure.

Many ERC providers give no audit defense in their engagements. Check the contract to see if they will provide a licensed attorney to go toe-to-toe to help you keep your claim if it’s ever questioned.

3. What is your prior tax incentive experience?

It seems many ERC shops have popped up for the sole purpose of chasing the ERC. If you dig into the credentials of the ownership and staff in these firms, you may discover folks with robust backgrounds in multi-level marketing business models, but little to no expertise in federal tax incentives.

Track records and credentials matter in this space, so please check out who is overseeing the firm you vet out.

4. Are your fees tied to when I receive my refund?

Providers in the tax incentive space frequently tie their fee to the amount of credits found. But when the legal determination of eligibility isn’t provided on the front end and audit defense isn’t included on the back end, the provider has little motivation to create accurate credit claims. Add in that the IRS can take upwards of a year to process larger ERC refund claims, the fact that corporate returns must be amended if the ERC is claimed, and your payroll expenses must be reduced by the amount of Employee Retention Credits received, and fees are one area that should be given careful consideration.

Is the provider’s fee reasonable for the service provided and does it take into consideration the timing for you to receive your refund?

The Best News: The Employee Retention Credit is still an active tax credit for eligible businesses to claim! Tax Credit Collective uses a phased approach to identify, capture and defend our clients’ tax credit claims including the ERC (and other incentives). We have helped businesses in many industries capture this lucrative credit so they can maximize their business value.


About The Author

A Florida native turned Texan, Lindsay has worked with small to mid-size businesses in the DFW area since 2000. With a background in the public accounting industry, she understands the importance of helping to increase business profitability on both the top and bottom line. Lindsay has a passion for networking, connecting people, and public speaking. She helps small to midsize businesses and their CPAs improve their cash flow by uncovering specialized tax credits that were previously missed or underclaimed.

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