May 4, 2021
Thomas E. Rutledge
Member, Stoll Keenon Ogden PLLC
Kaitlyn J. George
Member, Stoll Keenon Ogden PLLC
The American Rescue Plan Act passed earlier this year created the Restatement Revitalization Fund (the “RRF”), providing for some $28.6 billion (yes, that is with a “B”) in grants for restaurants and bars that have suffered during the COVID-19 pandemic.
On May 3, the Small Business Administration, who has oversight of the Restaurant Revitalization Fund (“RRF”), opened its website, and RRF applications may now be submitted.
Who is eligible for the RRF?
The breadth of the program is significant, including any “restaurant, food stand, food truck, food cart, caterer, saloon, inn, tavern, bar, lounge, brewpub, tasting room, taproom, licensed facility or premises of a beverage alcohol producer where the public may taste, sample, or purchase products.” There are, however, excluded bars and restaurants that are part of a publicly-traded company or that are owned by a state or local government. Also, owners of more than 20 restaurants are ineligible. However, owners of a franchise, who do not control more than 20 locations, are eligible to apply. Subject to additional limitations, snack and nonalcoholic beverage bars, and bakeries are also eligible for participation. There are, with respect to brewpubs, breweries and microbreweries, wineries and distilleries, as well as inns, additional eligibility requirements.
Applying for an RRF
Similar to the Paycheck Protection Program, companies will need to submit a variety of information in order to determine the eligibility for an RRF and as well determine the amount that may be received. In a departure from PPP, many point-of-sale providers including Clover, NCR Corporation, Square and Toast are cooperating in the submission of the applications. By using a POS provider, the historic information as to sales is easily collected and submitted. It is not necessary, however, that the application be made through a POS provider. Generally speaking, in addition to the completed application, applicants will need to submit:
Particular rules are set forth in the Restaurant Revitalization Fund Program Guide published by the SBA; find that document on this website: Restaurant Revitalization Funding Program Guide (sba.gov).
For the first 21 days after May 3, the SBA will “prioritize reviewing applications from small businesses owned by women, veterans, and socially and economically disadvantaged individuals.” After that 21-day period, all applications will be reviewed on a first-come, first-served basis. It bears noting that the SBA has a regulation (§ 124.103) regarding who will constitute a member of a “socially disadvantaged” group. Likewise, there is a regulation (§ 124.104) addressing who is economically disadvantaged.
Funding Limits for an RRF
While there are special rules for companies that started operation in 2020, the general rule for companies in operation in 2019 and prior periods is that RRF grants are equal to 2019 gross revenue less 2020 gross revenue less any phase 1 or phase 2 PPP loans received by the applicant. There is a functional cap of $5 million that can go to any single location.
Permitted Uses of RRF Funds
Again, like the PPP, RRF funds may be used only for certain purposes, namely:
RRF is a Grant, and Not a Loan, Program
While the PPP was a forgivable loan program, the RRF is a grant; assuming that the funds received are applied to permitted purposes before March 11, 2023, there is no repayment obligation. This treatment is advantageous as compared to PPP as there is no ambiguity as to financial and tax accounting treatment. Further, RRF funds are not, assuming the terms of the program are satisfied, taxable income to the recipient.
Further detail as to permitted use of the RRF funds is set forth on page 10 of the RRF Program Guide mentioned above. These permitted purposes are far broader then were allowed under the PPP. All RRF funds must be used by March 11, 2023; funds not applied to a permitted expense by that date much be returned to the SBA. RRP participants will be required to certify the application of the funds.
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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.