August 17, 2020
Authored by: Robert Klingler
No. PPP borrowers of any size may use Form 3508EZ, assuming they otherwise meet the eligibility requirements of that form.
(Note: This is the second in what we anticipate to be a series of posts regarding questions about the Paycheck Protection Program and Loan Forgiveness. A list of questions addressed so far is also available on our PPP Resources page. These questions and our answers are based on discussions with colleagues and clients, both lenders and borrowers. Our intention is to cover issues that, while potentially frequently asked, are not explicitly addressed in official FAQs or directly in Interim Final Rules. Our answers may ultimately be subject to change as additional guidance is provided, but reflect our view of the regulations at the time of posting.)
The U.S. Treasury Department and Small Business Administration have provided two forms for applying for forgiveness from Paycheck Protection Loans, and lenders have the further ability to develop their own comparable forms. Both the standard form, Form 3508, and the “simplified” form, Form 3508EZ, are available on the Treasury’s website, along with instructions.
Note: At this time, there appears to be bipartisan support in Congress for additional forgiveness relief for borrowers of $150,000 or less, potentially indicating a pathway for seeking forgiveness without completing Form 3508 or Form 3508EZ. While action on such relief appears tied up in the debate on other issues, there is no current urgency to seek forgiveness, as all payments under the PPP loan are deferred until the earlier of the SBA reimbursing the lender the amount of loan forgiveness or 10 months after the end of the relevant covered period if no forgiveness application is filed. Accordingly, smaller PPP borrowers may desire to delay filing any forgiveness application at this time.
Form 3508 and From 3508EZ are very similar, but are different in two ways: eligibility and the support information required. Notably, one area in which they are different is that both forms require a borrower to indicate if they, along with any affiliates, received PPP loans in excess of $2 million. This question would appear to flag the loan for further SBA review, consistent with FAQ 39, which indicated that the SBA would review all such loans independently. Accordingly, filing using Form 3508EZ will not avoid such review, and is presumably permitted for borrowers with loans in excess of $2 million. However, in connection with such a review, the borrower may be required to submit additional information.
Form 3508EZ is available for three categories of PPP borrowers:
- Borrowers who are self-employed individuals, independent contractors, or sole proprietors who had no employees at the time of the loan application and did not include any employee salaries in the computation of average monthly payroll in their PPP loan application.
- Borrowers who did not reduce annual salary or hourly wages by more than 25% for any employee earning less than $100,000 and did not reduce the number of employees or average paid hours between January 1, 2020 and the end of the applicable covered period (ignoring certain qualified reductions).
- Borrowers who did not reduce annual salary or hourly wages by more than 25% for any employee earning less than $100,000 and was unable to operate at the same business level due to COVID-19 guidance.
We’ve previously written about the uncertainty around relying upon the safe harbor for an inability to operate at the same business level due to COVID-19 guidance. However, for borrowers in eligibility categories #1 or #2 above, we are not aware of any negative in electing to file an application on Form 3508EZ.
Substantive, the primary difference between Forms 3058 and 3508EZ are the supporting documents and filings to calculate forgivable expenses. Specifically, Form 3508EZ does not require completion of PPP Schedule A or the PPP Schedule A Worksheet. In addition, PPP Borrowers submitting Form 3808EZ do not need to submit supporting documentation showing FTE equivalent calculations for the applicable reference period.
As Form 3508EZ requires less documentation, it also reduces the burden, and potential liability, on lenders in reviewing such PPP forgiveness applications. Accordingly, we would expect most PPP lenders to prefer receipt of Form 3508EZ.
Borrowers electing to rely on Form 3508EZ still need to keep ready supporting documentation in the event that either lenders or the SBA request additional information. Given the anticipated review of all PPP loans in excess of $2 million, such borrowers should be particularly focused on retaining such documentation.