March 19, 2021
Thomas E. Rutledge, Member
Stoll Keenon Ogden PLLC
Recently the Kentucky General Assembly approved, and Governor Beshear signed, a bill that will for Kentucky income tax purposes, (i) allow taxpayers to deduct the expenses that were paid with such forgiven Paycheck Protection Program (PPP) loans, and (ii) confirms that forgiveness of PPP loans does not create taxable income for state income tax purposes. With these changes, Kentucky taxpayers will see enhanced benefits of having taken out PPP loans that have now been forgiven.
When PPP loans were created under the CARES Act, it was expressly provided that, upon forgiveness, a borrower would not recognize federal income tax. This provision is a departure from the general rule that, when a loan is not repaid, forgiveness of the loan constitutes income. As noted in a previous SKO Insider, there existed the question of whether the states would afford similar treatment for state income tax purposes. Receipt of the PPP loans (and the potential forgiveness the debt) raised another critical issue at both the federal and state levels for borrowers: whether the amounts paid with PPP loan proceeds could also be deducted on the borrower’s federal and state tax returns.
Let’s put this in context. Assume that a company borrowed $100,000 under the PPP loan program. All of those funds were expended to cover ordinary and necessary business expenses that would otherwise be deductible including rent, mortgage insurance and compensatory payments. On that basis the PPP loan is eligible for 100% forgiveness. Let’s assume as well that our borrower received full forgiveness on February 15, 2021.
Under the original CARES Act, our borrower does not recognize $100,000 of income (for federal income tax purposes) because the PPP loan has been forgiven. This raises the following questions: (i) whether the debt forgiveness is also not recognized for state income tax purposes; and (ii) whether our borrower can deduct from its income the amounts spent using the PPP loan proceeds.
Assume our borrower paid an employee $1,000 of W-2 payroll. All else being equal, that $1,000 would give rise to a tax deduction for the employer. But since that $1,000 was paid with a forgivable PPP loan, which did not initially give rise to income, could that deduction take place? Initially, the IRS said “no” to the effect that if you pay an expense with a forgivable PPP loan, the borrower cannot as well deduct that expense. That determination was made by the Internal Revenue Service in Notice 2020-32, a decision which generated significant pushback from groups including the American Society of CPAs and certain members of Congress. Ultimately, in the Consolidated Appropriations Act effective December 27, 2020, Congress squarely addressed the issue and provided that the expenses funded with a PPP loan are deductible. The IRS followed with Revenue Ruling 2021-2 confirming this treatment. For further discussion on this topic, please see the SKO Insider titled Congress Reverses IRS – Expenses Paid with PPP Loan Proceeds Are Deductible (December 28, 2020).
But that left open the question of state tax treatment. Thankfully, the Kentucky General Assembly has now stepped in. Under HB 278, (i) expenses funded with a forgiven PPP loan may be deducted on the borrower’s Kentucky income tax return, and (ii) forgiveness of a PPP loan will not, for purposes of Kentucky income, create taxable income.
Under Indiana law, the same treatment is in place.
Stoll Keenon Ogden understands that these are trying times for our clients and our country. Our firm operations have continued uninterrupted and our attorneys are equipped to serve as we always have – for more than 120 years.
If you would like to discuss the Paycheck Protection Program, the opportunities therein for your business, or other business-assistance programs available during the COVID-19 pandemic, please contact SKO’s SBA Loan Team led by Jamie Brodsky (502-568-5473) and Brad Keeton (502-568-5439).
Please also be sure to consult the Stoll Keenon Ogden Coronavirus Resource webpage for additional articles and information related to the latest information on new laws and directives enacted by federal, state, and local governments in response to the Coronavirus pandemic.