Tax and financial advice from the Silicon Valley expert.

Employers claiming employee retention credit and digital currency owners hit by Infrastructure and Jobs Act

The House of Representatives passed H.R. 3684, Infrastructure and Jobs Act, on Friday, November 5, 2021, and sent it to President Biden for signature.

The Act includes very few tax provisions. Most of the publicity for controversial tax issues has focused on the Build Back Better social spending proposed legislation, which is still being negotiated in Congress and might not pass at all.

Most of the funding for the Infrastructure and Jobs Act is supposed to come from better enforcement of existing tax laws.

I’m going to focus on tax two provisions of the Infrastructure and Jobs Act that I expect will have the broadest impact.

First, the Employee Retention Credit of 70% of up to $10,000 of qualified wages per calendar quarter during 2021 has been scaled back. This provision was originally enacted to provide relief to employers suffering from reduced income or from having their operations fully or partially suspended by a governmental entity as a result of the COVID-19 pandemic. Under the Infrastructure and Jobs Act, wages paid after September 30, 2021 no longer qualify for the credit.

There is an exception to the change for a recovery startup business. The qualified wages for a recovery startup business is limited to $50,000 per calendar quarter. Under the Infrastructure and Jobs Act, the definition of a recovery startup business would be liberalized to be an employer that began carrying on any trade or business after February 15, 2020 and has gross receipts under $1,000,000. Also under the Infrastructure and Jobs Act, qualified wages of a recovery startup business paid before January 1, 2022 will continue to qualify for the credit.

Employers that qualify for the employee retention credit can apply for the credit before filing their quarterly federal payroll tax returns using federal Form 7200. They should stop applying in advance for the credit now and they shouldn’t claim the credit on their fourth quarter, 2021 federal payroll tax return (Form 941), unless the business is a recovery startup business.

Second, there are a number of provisions relating to Bitcoin and other digital currency. I think the most significant provision defines digital currency as cash for reporting cumulative cash transactions of $10,000 or more with a customer per year by businesses. That means if you buy a Tesla (or some other car) using Bitcoin (or some other digital currency), that transaction will be reported to the federal government. This provision is effective for transactions after December 31, 2023.

The reason for the compliance measures for digital currency is that every transaction with it has an income tax consequence, and many taxpayers aren’t reporting these transactions. For income tax reporting, digital currency is a capital asset, not cash.

Every business that accepts digital currency as a payment should consult with its tax advisor about the $10,000 or more per year reporting requirements. The penalties for failure to timely report are significant.

I’ve only hit some highlights in this alert. Consult with your tax advisors about any details of the Act that apply to you.

Tax and financial advice from the Silicon Valley expert.