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GAO Report Highlights Need for Additional PPP Forgiveness Guidance

On September 21st (do you remember?), the U.S. Government Accountability Office released a report on the Federal Government’s COVID-19 response, including with respect to the Paycheck Protection Program. The GAO report provides additional statistical breakdown of the PPP loans, addresses some of the SBA’s oversight plans, and then addresses the need for further guidance on the PPP forgiveness process.

Updated Statistics

The GAO Report notes that most of the largest PPP loans (those over $2 million), were made during the first phase of the program, between April 3rd and April 26th. 75% of the loans for more than $2 million were approved in the first phase, with the report noting that this may have been due to increased scrutiny from the public, Treasury and SBA.

The vast majority of PPP loans were made to borrowers with 10 or fewer employees (73.6% of the loans) while the majority of PPP loan dollars went to businesses with 100 or fewer employees (67.6%). While borrowers with more than 500 employees were granted limited access to participate in the program, less than 0.1% of borrowers had more than 500 employees.

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PPP: Does a Borrower need its Lender’s Consent to a Change in Control Transaction?

Nothing in the CARES Act, Interim Final Rules, or Frequently Asked Questions currently requires Lender’s Consent in connection with a change in control transaction. However, the specific terms of the PPP Note signed by the borrower may require the Lender’s consent in a variety of situation.

(Note: This is one post in 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.)

Consistent with SBA PPP FAQ #19, no specific form of PPP note was required to be used by lenders. Each lender was authorized to use their own promissory note or an SBA form of promissory note. Many, but by no means all, PPP lenders ultimately used the SBA Standard Loan Note on Form 147 as the base of their PPP promissory notes.

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PPP: Who is subject to Owner-Employee Compensation Forgiveness Limitations?

Self-employed Schedule C (and Schedule F) filers, general partners, and other PPP borrowers that utilized 2019 IRS Form 1040 Schedule C line 31 net profit amount in calculating the amount of their PPP loan are clearly subject to these limitations. However, the SBA guidance also indicates that owner-employees of C-Corporations, S-Corporations and LLCs are subject to the owner-employee compensation limits, and the SBA guidance is silent on limited partners.

Update (8/24/20): The Treasury and SBA published a new Interim Final Rule that confirms the initial guidance did not include any exception based on the owner-employee’s percentage of ownership. However, the new rule also provides that “an owner-employee in a C- or S-Corporation who has less than a 5 percent ownership stake will not be subject to the owner-employee compensation rule.” While limited partners are not addressed in the new rule, we note the original Interim Final Rule which limited owner-employees only referenced general partners; accordingly presumably no formal exception for limited partners is necessary. This would also be consistent with the reasoning for less than 5% shareholders, as limited partners would generally “have no meaningful ability to influence decisions over how loan proceeds are allocated.”

(Note: This is the third 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 current Paycheck Protection Program Forgiveness Application asks all borrowers to certify as follows:

  • if a 24-week Covered Period applies, the forgiveness amount requested  does not exceed 2.5 months’ worth of 2019 compensation for any owner-employee or self-employed individual/general partner, capped at $20,833 per individual; and
  • if the Borrower has elected an 8-week Covered Period, the forgiveness amount requested does not exceed 8 weeks’ worth of 2019 compensation for any owner-employee or self-employed individual/general partner, capped at $15,385 per individual.

While the concept of owner-employee compensation was initially used by the SBA to calculate the amount that a small business with no employees was eligible for, with the expansion of the eligible covered period, the Treasury and SBA have also added restrictions on the use of compensation to “owner-employees” in calculation of the amount of payroll costs eligible for forgiveness. See, for example, the “Interim Final Rule on Revisions to Loan Forgiveness Interim Final Rule and SBA Loan Review Procedures Interim Final Rule” and the Frequently Asked Questions about Loan Forgiveness.

Unfortunately, to date, neither the Treasury nor the SBA has meaningfully defined what constitutes an “owner-employee” or provided any guidance as to whether borrowers need to limit W-2 compensation paid to an employee that happens to have an ownership interest (however small) in the borrower. The Frequently Asked Questions “defines” an owner-employee as “an owner who is also an employee.”

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(Final?) PPP Loan Approval Statistics through 8/8/2020

Barring further legislative action, the approval window for new Paycheck Protection Program Loans came to a close on August 8, 2020. Since the original launch on April 3rd following the CARES Act, 5,212,128 small businesses have borrowed $525 billion under the Paycheck Protection Program. On August 11th, the SBA published a Paycheck Protection Program Report with additional details.

The overall average loan size under the Paycheck Protection Program was $101 thousand, and this average steadily fell during the lifetime of the Paycheck Protection Program. But even that average number emphasizes the statistical differences between median and mean. While the average loan was just over $100 thousand, over 68% of the loans were for $50 thousand or less (and over 81% of PPP loans were smaller than the average PPP loan).

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PPP: Can Forgivable Payroll Costs Exceed Loan Amount?

Yes, in completing a Paycheck Protection Program loan forgiveness application, we believe a borrower can appropriately report actual payroll costs during the applicable covered period in excess of the original PPP loan amount. While actual forgiveness is ultimately limited to the amount of the PPP loan, the calculations provided for in the loan forgiveness application allow payroll costs to exceed the amount of the PPP loan, thereby permitting borrowers to potentially obtain full forgiveness even if the borrower is subject to FTE and/or salary/hourly wage reductions.

(Note: This is a first 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.)

In light of the 24-week covered period and the PPP loan amount being based on effectively 10 weeks of payroll costs, we believe most PPP borrowers will ultimately have payroll costs that significantly exceed the amount of their PPP loan principal. This should not only facilitate full loan forgiveness, but also may ease the calculations under the forgiveness application and reduce the need to be aggressive with regard to questionable forgivable expenses, FTE calculations, or safe harbor certifications. (As reflected in the Forgiveness API FAQ, so long as lenders agree with the final total forgiveness amount, such applications can be submitted as being approved in full, even if there is disagreement on certain line items.)

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Analysis of PPP Borrowers: Who Returned Funds?

While a lot has been written and said about the “need” certification when it comes to the Paycheck Protection Program, particularly for public companies, the SBA and Treasury have been relatively quiet about how many borrowers that received PPP funds elected to to take advantage of the government’s subsequent safe harbor to return funds. In connection with the forgiveness process, the SBA has indicated that it will review all loans in excess of $2 million, but will deem all borrowers of $2 million or less to have made the required certification concerning the necessity of the loan request in good faith.

Based on our analysis below, 88% of public borrowers that received PPP loans elected to retain their PPP proceeds, and 75% of borrowers approved for PPP loans of between $5 and $10 million did the same. Based on our discussions with PPP borrowers throughout the country, we think this is consistent with the economic uncertainty that was created by the coronavirus.

SEC Filings

Based on a review of SEC filings, Bryan Cave Leighton Paisner identified over 850 borrowers who indicated that they had received PPP loan approvals. 107 of these borrowers, or roughly 12 percent, subsequently indicated that they either ultimately did not accept the loan, or returned the loan proceeds. About 25% of public companies who returned their loans had PPP borrowings that were less than the $2 million threshold for review indicated above.

Of the 759 public companies that elected not to return their PPP funds, approximately 73% received $2 million or less, while the remaining 27% had PPP loans of more than $2 million. About 8% of the public company recipients received less than $100,000, while over 55% received less than $1 million.

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The Unsafe Waters of the PPP Purported FTE Reduction Safe Harbors

On June 17, 2020, the SBA and U.S. Treasury published an updated form of application and instructions for borrowers seeking forgiveness of their Paycheck Protection Program loans, as well as a new “EZ” form of application and instruction. In both cases, these applications generally implement the statutory changes required by the Paycheck Protection Program Flexibility Act.

While the improved likelihood of full forgiveness due to the 24-week covered period is likely to draw the most attention, potential compliance with two of the safe harbors provided to avoid a loss of forgiveness in the event of a reduction in the number of Full Time Equivalent (FTE) employees comparing the applicable “covered period” with the applicable reference period. Under the CARES Act, while borrowers are generally eligible for loan forgiveness for certain expenditures during the covered period, actual loan forgiveness must be reduced if the borrower’s weekly average number of FTE employees during the covered period was less than during the borrower’s chosen reference period (generally, February 15, 2019 through June 30, 2019 or January 1, 2020 and February 29, 2020; or, for seasonal employers, any consecutive 12-week period between May 1, 2019 and September 15, 2019).

However, under the revised PPP loan forgiveness application, there are certain FTE reduction exceptions and two safe harbors. Each of these provide potential relief from a decrease in forgiveness due to a reduction in FTE levels… but they also provide enhanced risk for borrowers needing to rely on them. In addition, general eligibility for the use of the Form EZ loan forgiveness application is conditioned on compliance with the reduction exceptions or one of the safe harbors.

FTE Forgiveness Reduction Exceptions

As provided in the original forgiveness application, in calculating the average number of FTE employees during the covered period, borrowers are permitted to effectively add back the FTEs for: (1) any positions for which the employer made a good-faith, written offer to rehire, which was rejected, (2) any employees who were fired for cause, voluntarily resigned, or voluntarily requested and received a reduction in hours. (If the positions were re-filled during the covered period, than borrowers are required not to double-count such positions.)

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PPP Loan Statistics Through June 6, 2020

From the launch of the Paycheck Protection Program (“PPP”) on April 3, 2020, through June 6, 2020, 5,458 lenders have approved loans to over 4.5 million small businesses for over $511 billion dollars. On June 7, 2020, the SBA published an updated Paycheck Protection Program Report with additional details.

To put some scale around the size of the program, for the last five years, the SBA has averaged annual total personal loans approved under its 7(a) small business loan program (the same umbrella under which PPP loans fall) of roughly $17.4 billion. Accordingly, in April and May of 2020, the SBA has processed roughly 29 years worth of SBA loans. While the rate of PPP loans being improved has slowed greatly, as discussed more below, this still highlights the size of the program and the strain under which the SBA has been operating.

Average Loan Size

The overall average size of a PPP loan is now approximately $113 thousand. This is down significantly from the first round of PPP funding, where the average approved PPP loan was $206 thousand. Based on the formula for PPP lending, this means the average borrower likely had monthly payroll costs of approximately $45 thousand.

Of course, the average size of PPP loan is certainly affected by a relatively small number of larger loans. As reflected above, the majority of loans made were for loans of less than $50 thousand (reflecting monthly payroll costs of less than $20 thousand). Over 85% of the total PPP loans made were for less than $150 thousand, and over 93% of the total PPP loans made were for less than $350 thousand. While significant ink (digitally and otherwise) has been spilled on larger PPP borrowers, less than 2% of the PPP loans made were for more than $1 million.

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PPP Flexibility Act Provides Additional Flexibility (and Potential Traps) for Borrowers and Lenders

H.R. 7010, the Paycheck Protection Program Flexibility Act of 2020 (the “PPP Flexibility Act”), was passed by the House of Representatives by a vote of 417-1 on May 28, 2020.  The Senate passed H.R. 7010 unanimously by voice vote on June 3, 2020.  President Trump signed the PPP Flexibility Act into law on June 5, 2020, making effective several modifications to the Paycheck Protection Program.

The PPP Flexibility Act causes a number of changes to the Paycheck Protection Program, including:

  • An extension of the forgiveness period from eight weeks to twenty-four weeks (optional for existing PPP borrowers), which will also presumably affect the relevant covered period for measuring reductions in employees or salary and wages;
  • A requirement for forgiveness to use 60% (rather than 75%) of the PPP loan proceeds on permissible payroll costs;
  • An extension of the deadline to re-hire employees for an exemption to the forgiveness limitation to December 31, 2020 (from June 30, 2020);
  • An additional statutory exemption for re-hiring employees based on a reduction in level of business activity due to COVID-19 and the government’s response;
  • An extension of the payment deferral period until loan forgiveness is granted or a loan forgiveness application is not filed in a timely manner;
  • A five-year loan maturity term for all new PPP loans (although existing loans will stay at two years unless borrower and lender mutually agree to extend; and
  • Permission for all PPP recipients to take advantage of the CARES Act provision permitting deferred payment of the employer’s share of Social Security taxes due on wages paid through the end of the year.

Our Bryan Cave Leighton Paisner LLP Client Alert on the PPP Flexibility Act goes into further details on each of these changes. We anticipate further regulations and guidance from the Treasury and Small Business Administration shortly, but the PPP Flexibility Act provides a number of choices for PPP borrowers to consider.

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Paycheck Protection Program and EIDL Advances

The interplay of Economic Injury Disaster Loan (EIDL) Loan Advances and Paycheck Protection Program (PPP) Loan Forgiveness is broken. Maybe there’s further guidance to come that will make the existing application and guidances makes sense, but as I’m reading the current guidance, PPP lenders could be required to “eat” the EIDL advances received by their PPP borrowers. While that’s certainly not the intent of the PPP, the existing mechanics may make that a reality.

Background

Section 1102 of the CARES Act provided that PPP borrowers who had received an EIDL loan between January 31, 2020 and April 3, 2020, could (and in some circumstances had to) increase their PPP loan amount to refinance outstanding EIDL loans. Section 1110 of the CARES Act provided that if an EIDL applicant received an EIDL advance subsequently was approved for a PPP loan, the advanced amount would be reduced from the loan forgiveness amount. (Whether Section 1110 of the Cares Act makes sense or not is also beyond this post; for now, I’m simply assuming it means what it says, at least with regard to EIDL advances related to COVID-19 existing at the time of PPP loan forgiveness.)

Note: Section 1102 only applied for existing EIDL loans as of April 3, 2020, while Section 1110 applies to subsequent EIDL advances, even if those amounts were not rolled into PPP loans.

Under the first Interim Final Rule, outstanding EIDL loans, less the amount of any outstanding EIDL advance, were rolled forward into the maximum PPP loan amount. Proceeds from any advance up to $10,000 on the EIDL loan would be deducted from the loan forgiveness amount on the PPP loan. “For purposes of determining the percentage of use of proceeds for payroll costs, the amount of any EIDL refinanced will be included. For purposes of loan forgiveness, however, the borrower will have to document the proceeds used for payroll costs in order to determine the amount of forgiveness.”

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