Recovery Startup Business Employee Retention Credit

For the third and fourth quarters of 2021, tax law provides an unusual incentive to small business entrepreneurs: the recovery startup business employee retention credit.

You want to learn about this bit of federal government largesse. If you’re an entrepreneur. Or if you’re a small business owner. Because it’s nearly unbelievable.

But in a nutshell? The federal government will give you up to $100,000 for paying your employees if you’ve started a new trade or business.

The Actual Statute

Let’s look at the actual Section 3134(c)(5) language. Because that rather clearly gives you the lay of the land.

Here’s the law Congress wrote and passed and which the President signed:

(5) Recovery startup business

The term “recovery startup business” means any employer-

(A) which began carrying on any trade or business after February 15, 2020,

(B) for which the average annual gross receipts of such employer (as determined under rules similar to the rules under section 448(c)(3)) for the 3-taxable-year period ending with the taxable year which precedes the calendar quarter for which the credit is determined under subsection (a) does not exceed $1,000,000, and

(C) which, with respect to such calendar quarter, is not described in subclause (I) or (II) of paragraph (2)(A)(ii).

That’s it.

So, to summarize? A trade or business you start after February 15, 2020.

A situation where the employer’s average annual gross receipts do not exceed $1,000,000.

Finally, a situation where the employer would not qualify for employee retention credits under the usual rules. Those usual rules? Revenues less than 80 percent as compared to the same quarter of 2019. Or government orders closing the business either fully or partially.

Note: We most recently discussed the “usual” qualification rules for employee retention credits here: Solving the Employee Retention Credit Partial Suspension Puzzle. And for the record, you would want to use the usual rules if you could, because they’re even more generous if you qualify.

Example of Trade or Business Started After February 15, 2020

Let me give you a couple of examples of trades or businesses started after February 15, 2020.

Example 1: You open a restaurant on February 16, 2020. In this case you qualify. Note that had you opened one day earlier? You would not qualify.

Example 2: You operate an accounting firm and prepare people’s taxes. So that’s one trade or business. But on August 15, 2021, you open an equestrian center. Which represents another trade or business. You do qualify for the credit potentially because you began carrying on a trade or business (the new equestrian center) after February 15, 2020.

Example of Gross Receipts Limitation

The statute limits the recovery startup business employee retention credit. Only businesses with average annual gross receipts of $1,000,000 or less for the three previous years qualify.

If you have less than three years of operation, you look only at the years you operated.  (This is why the law quoted above references Section 448(c)(3).)

Some examples show how this works.

Example 3: The fictional restauranteur from Example 1 generated zero revenue in 2018 and 2019 but $300,000 of revenue in 2020. His three-year average, therefore, equals $300,000 . Because ($300,000)/1 year equals $300,000. And, obviously, $300,000 “does not exceed $1,000,000.” Accordingly, he qualifies.

Example 4: The fictional tax accountant faces a more complicated situation. Following a rule specified in Section 3134(d), she needs to aggregate the gross receipts from the businesses she operates. But say the tax accounting firm generated $400,000 in 2018, $800,000 in 2019, and $1,200,000 in 2020. Further suppose the equestrian center generated zero revenue in 2018, 2019 and 2020. Because it only starts in 2021. In this case, the average gross receipts for the three years equals $800,000 because ($400,000+$800,000+$1,200,000+$0+$0+$0)/3 years equals $800,000. And because $800,000 “does not exceed $1,000,000,” she qualifies.

The Recovery Business Startup Employee Retention Credit Limit

One final thing to mention.

The usual employee retention credit in 2021 equals seventy percent of up to the first $10,000 an employer pays employees.

Example 5: An employer with ten employees who each earn $10,000 a quarter might receive $70,000 of employee retention credits, assuming she, he or they qualify. Note that if the employer paid each of these ten employees $15,000 for the quarter, the credit doesn’t increase in size. The formula only looks at the first $10,000 in wages an employee earns, giving the employer a credit equal to seventy percent of this amount.

The recovery business startup employee retention credit formula limits the benefit, however.

Quoting the statute, the credit “for any quarter, shall not exceed $50,000.”

Example 6: If the employer described in Example 5 doesn’t qualify for the usual employee retention credits but does qualify for a recovery startup business credit, the credit equals $50,000.

Note, too, that the credit only works for the third and fourth quarter of 2021—so two quarters.

But still, think about that. $100,000 is lot of money. You want to keep your eyes open for new trades or businesses you can start…

Other Resources

Here’s the full statute that creates the recovery startup business employee retention credit: 26 USC 3134: Employee retention credit for employers subject to closure due to COVID-19

IRS Notice 21-49 provides the only additional guidance on the recovery startup business credit (see pages 6 through 11) and it’s available here.