Qualifications for Employee Retention Tax Credit Greatly Enhanced for 2021

The Employee Retention Credit (“ERC”) is now available to a broader cross-section of businesses in 2021 as compared to 2020, with the potential for tens of thousands to millions in savings on federal payroll taxes as a fully refundable IRS payroll tax credit for employers.


The maximum payroll tax credit under the ERC program for 2021 is $7,000 per employee per quarter, which translates into a maximum credit of $28,000 per employee for 2021 (70% of the first $10,000 of eligible wages per quarter, per employee; assuming a business qualifies for all 2021 quarters).

For 2020 the maximum payroll credit was $5,000 per employee per annum (50% of the first $10,000 of eligible wages).

For example, if a small business with 50 employees is deemed eligible for all four quarters of 2021 it could potentially receive a $1,400,000 IRS payroll tax credit (50 employees x $28,000).


In order to qualify for the ERC, a business must experience either a government-mandated full/partial suspension of operations or a significant decline in gross receipts.

For 2021 a “significant decline” in gross receipts is if an employer’s gross receipts for a given quarter are less than 80% of their gross receipts for the same calendar quarter in 2019. For 2020 the corresponding percentage above was 50%.

For all 2021 quarters, an optional election is available which allows a lookback to the prior quarter if there hasn’t been a 20% decline in gross receipts. The election allows a lookback at gross receipts of the immediately preceding calendar quarter. For instance, for Q1 2021, a taxpayer can elect to use Q4 2020 and compare its gross receipts to Q4 2019.

Employee Count

Businesses of any size may potentially benefit from the ERC. However, there are limitations on the ERC for “large employers”. If a business is deemed to be a large employer, it can only claim the ERC for wages paid to employees not to work or employer-paid health insurance premiums for furloughed employees. A large employer for purposes of the ERC is defined as a business that had averaged more than 500 full-time monthly employees.

If a business is not deemed to be a large employer it may potentially claim the credit for all eligible employees, whether working or not.

Interplay Between the ERC and PPP

Eligible businesses can claim the ERC on wages that are not used toward payroll costs when applying for PPP forgiveness. Businesses should analyze their payroll costs in order to obtain 100% PPP loan forgiveness and maximize their ERC. The PPP loan forgiveness program allows businesses to report up to 40% of qualified non-payroll costs (utilities, rent, etc.) on its application.

The ERC is claimed on IRS Form 941. An eligible business may reduce its federal employment tax deposits by the allowable ERC amount. If the ERC exceeds the remaining federal employment tax deposits for that quarter, the business may file Form 7200 to claim an advance refund. In order to claim the ERC for previously filed quarters a Form 941-X must be filed.

The information presented here should not be construed as legal, tax, accounting, or valuation advice. No one should act on such information without appropriate professional advice and after a thorough examination of the particular situation