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Federal Register / Vol. 86, No. 173 / Friday, September 10, 2021 / Rules and Regulations for calendar quarters beginning after December 31, 2020, further amends section 2301 of the CARES Act to extend the application of the employee retention credit to qualified wages paid after December 31, 2020, and before July 1, 2021, and to modify the calculation of the credit amount for qualified wages paid during that time. Section 9651 of the ARP enacted section 3134 of the Code, effective for calendar quarters beginning after June 30, 2021, to provide an employee retention credit for qualified wages paid after June 30, 2021, and before January 1, 2022. The Department of the Treasury Treasury Department and the Internal Revenue Service IRS will continue to monitor potential legislation related to the employee retention credit that may impact certain rules described in this preamble.
The employee retention credit is available to any employer carrying on a trade or business during a calendar quarter that meets the requirements to be an eligible employer under section 3134, which include experiencing a full or partial suspension of business operations due to orders from an appropriate governmental authority limiting commerce, travel, or group meetings for commercial, social, religious, or other purposes due to COVID19, experiencing a decline in gross receipts, or qualifying as a recovery startup business.
For eligible employers that averaged more than 500 full-time employees within the meaning of section 4980H
during 2019 large eligible employers, qualified wages are wages and compensation including allocable qualified health plan expenses, up to $10,000 per employee per calendar quarter, paid to employees for the time during which they are not providing services due to a full or partial suspension of business operations or a decline in gross receipts. For eligible employers that averaged 500 full-time employees or fewer during 2019 small eligible employers, and for severely financially distressed employers as defined in section 3134c3Cii that are also large eligible employers, qualified wages are the wages and compensation including allocable qualified health plan expenses, up to $10,000 per employee per calendar quarter, paid with respect to an employee regardless of whether the employee is performing services during any period in the calendar quarter in which the business operations are fully or partially suspended due to a governmental order or during any calendar quarter in which the employer is experiencing a decline in gross
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receipts. If an employer was not in existence in 2019, an employer may use the average number of full-time employees in 2020 rather than 2019. If an employer is an eligible employer due to being a recovery startup business, the maximum aggregate employee retention credit the employer may claim in a calendar quarter is $50,000. In the third and fourth calendar quarters of 2021, a recovery startup business that is a small eligible employer may treat all wages paid with respect to an employee during the quarter as qualified wages. See Notice 202149.
The same wages or compensation cannot be counted for both the paid sick and family leave credits under sections 3131 and 3132 and the employee retention credit under section 3134.
Qualified wages for the employee retention credit also do not include any wages taken into account under sections 41, 45A, 45P, 45S, 51, and 1396 of the Code. See section 3134c3D.
Additionally, qualified wages do not include amounts taken into account as payroll costs for Paycheck Protection Program loan forgiveness and certain grants. See section 3134h.
Section 3134c4A provides that, for purposes of section 3134, the term wages means wages as defined in section 3121a 3 and compensation as defined in section 3231e.
The employee retention credit under section 3134 is equal to 70 percent of qualified wages paid. The credit is allowed against the taxes imposed on employers under section 3111b, first reduced by any tax credits allowed under sections 3131 and 3132, and against so much of the taxes imposed under section 3221a as are attributable to the rate in effect under section 3111b, as applicable, first reduced by any credits allowed under sections 3131
and 3132, on all wages and compensation paid to all employees.
Any credit amounts in excess of these taxes are treated as an overpayment that shall be refunded under sections 6402a and 6413b of the Code.
III. Refundability of Credits Sections 3131b4A, 3132b3A, and 3134b3 provide that if the amount of the paid sick and family leave credits which would include any increases in the credits under section 3133a and employee retention credit exceeds the taxes imposed under 3 For purposes of certain governmental organizations or entities as described in section 3134f2 of the Code, wages as defined in section 3121a are determined without regard to paragraphs 5, 6, 7, 10, and 13 of section 3121b except with respect to services performed in a penal institution by an inmate thereof.

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section 3111b and so much of the taxes imposed under section 3221a as are attributable to the rate in effect under section 3111b, as applicable, for any calendar quarter, after application of the other credits previously applied, such excess shall be treated as an overpayment that shall be refunded under sections 6402a and 6413b.
Section 6402a generally provides that, within the applicable period of limitations, overpayments may be credited against any liability in respect of an internal revenue tax on the part of the person who made the overpayment and any remaining balance refunded to such person. Section 6413b provides that if more than the correct amount of employment tax imposed by sections 3101, 3111, 3201, 3221, or 3402 is paid or deducted and the overpayment cannot be adjusted under section 6413a.4 the amount of the overpayment shall be refunded subject to the applicable statute of limitations as the Secretary may prescribe in regulations.
The IRS revised Form 941, Employers Quarterly Federal Tax Return, Form 943, Employers Annual Federal Tax Return for Agricultural Employees, Form 944, Employers Annual Federal Tax Return, and Form CT1, Employers Annual Railroad Retirement Tax Return, so that employers may use these returns to claim the paid sick and family leave credits under sections 3131
through 3133 and the employee retention credit under section 3134. The revised employment tax returns allow for any of these credits in excess of the taxes imposed under section 3111b and so much of the taxes imposed under section 3221a as are attributable to the rate in effect under section 3111b, as applicable, to be credited against other employment taxes and then for any remaining balance to be credited or refunded to the employer in accordance with section 6402a or section 6413b.
IV. Advance Payment of Credits and Erroneous Refunds Sections 3131b4B and 3132b3B provide that, in anticipation of the paid sick and family leave credits under these sections which would include any increases in the credits under section 3133a, including any refundable portions, these 4 Section 6413a addresses interest-free adjustments of overpayments. The section provides that if more than the correct amount of employment tax imposed by section 3101, 3111, 3201, 3221, or 3402 is paid with respect to any payment of remuneration, proper adjustments with respect to both the tax and the amount to be deducted, shall be made, without interest, in such manner and at such times as the Secretary may by regulations prescribe.

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