Congressman Dan Goldman, Senator Chuck Schumer Call for IRS to Expedite Processing of Low-Risk Employee Retention Credit Claims, Resolve Delays Costing More than $10 Billion to American Small Businesses

New York, NY – Congressman Dan Goldman (NY-10) and Senate Majority Leader Chuck Schumer (D-NY) on Friday led nine of their New York delegation colleagues in sending a letter to Internal Revenue Service (IRS) Commissioner Daniel Werfel calling on the agency to expedite the processing and resolution of a backlog of legitimate Employee Retention Credit (ERC) claims. The unresolved low-risk claims total more than $10 billion dollars in refunds that these businesses are awaiting.

The ERC was created in 2020 following the passage of the CARES Act to provide relief to small businesses and allow them to retain employees during the pandemic. Small businesses across New York City have been waiting for their claim to be processed since as early as 2020.

“We commend the agency’s work to resolve valid claims and protect against fraudulent ones, especially given the complexity of the ERC; however, our offices continue to hear from small businesses and nonprofits in our districts whose legitimate claims remain outstanding,” the Members wrote.

This backlog has had negative effects on small businesses in New York and nationwide. The moratorium was put in place so that the IRS could study a sample of ERC claims and determine potential markers of fraud. According to its review, the agency identified 10-20% of claims as high-risk, 60-70% of claims as having an unacceptable level of risk, and 10-20% as low-risk.

“These recent announcements are a step in the right direction to protect against improper claims and provide relief for legitimate businesses,” the Members continue. “However, the slow review process and the moratorium have caused significant delays and hardship for legitimate small businesses who have waited years for their credits.”

The members call for the IRS to address the ERC claim backlog by prioritizing early submissions and low-risk claims from struggling small businesses. Among those claims are those submitted through IRS-certified Professional Employer Organizations (PEOs), which file a single consolidated ERC claim Form 941-X on behalf of dozens, if not hundreds, of small businesses. Claims submitted through PEOs are subject to additional levels of scrutiny, lowering the risk of ERC claim fraud.

Additionally, the members call for the IRS to provide information on the following questions:

• For the 10-20% of low-risk claims identified by the IRS in its ERC review, how many of those claims have been processed to date? What steps will the IRS take to expedite the processing and payment of these claims?

• What challenges does the IRS face with resolving claims submitted by PEOs? Has the IRS considered expediting claims submitted by PEOs? Why or why not?

• What steps is the IRS taking to improve its cooperation with Members of Congress, the National Taxpayer Advocate, and the public to resolve ERC inquiries in a timely manner?

• What steps is the IRS taking to increase transparency on the status of ERC claims? Is the IRS considering additional tools for claimants to check on the status of their claim such as an online web portal? Why or why not?

• Mail theft is a significant concern for our constituents. Especially for ERC payments that can range upwards of $100,000, would the IRS consider allowing claimants to opt for direct deposit as a more secure method to receive their ERC payments instead of paper checks? If not, why?

Additional signatories to the letter include Senator Kirsten Gillibrand (D-NY), House Democratic Leader Hakeem Jeffries (NY-08), and Representatives Tim Kennedy (NY-26), Grace Meng (NY-06), Jerry Nadler (NY-12), Tom Suozzi (NY-03), Paul Tonko (NY-20), Ritchie Torres (NY-15), and Nydia Velázquez (NY-07).

Read the full letter here or below:

Dear Commissioner Werfel,

We are writing to you concerning the backlog in Employee Retention Credit (ERC) claims at the Internal Revenue Service (IRS). We commend the agency’s work to resolve valid claims and protect against fraudulent ones, especially given the complexity of the ERC; however, our offices continue to hear from small businesses and nonprofits in our districts whose legitimate claims remain outstanding. Therefore, we urge the IRS to swiftly resolve legitimate claims and provide more transparency on the status of existing claims, prioritizing early submissions and low-risk claims from struggling small businesses.

The ERC program has been a vital lifeline for small businesses across the nation and in our districts. Created by the CARES Act and furthered expanded by the Consolidated Appropriations Act of 2021 and the American Rescue Plan, this refundable tax credit helped small businesses retain their workforce during the COVID-19 pandemic.

Last fall, the IRS announced a moratorium on processing ERC claims submitted after Sept. 14, 2023, to give the agency time to review and analyze a large study group of ERC claims. On August 8, 2024, the agency announced it completed its review and would begin processing claims filed between September 14, 2023, and January 31, 2024. According to its review, the agency identified 10-20% of claims as high-risk, 60-70% of claims as having an unacceptable level of risk, and 10-20% as low-risk. The agency noted that it would immediately begin processing 50,000 valid ERC claims identified during the review and expects to process another large block of low-risk claims this Fall.

We commend the agency for its vigilance and actions to prevent bad actors from abusing this program. These recent announcements are a step in the right direction to protect against improper claims and provide relief for legitimate businesses. However, the slow review process and the moratorium have caused significant delays and hardship for legitimate small businesses who have waited years for their credits.

On June 26, 2024, Erin. M. Collins, the National Taxpayer Advocate, released her mid-year report to Congress which identified delays in processing ERC as a key taxpayer challenge. Her report noted that the IRS has a backlog of about 1.4 million ERC claims that have been submitted but have not been paid. The report also highlights that “many [businesses] have already waited a year or longer for the IRS to determine if their claim is valid,” and argues that, “it’s time for the IRS to … move forward addressing these ERC claims to ensure it protects the taxpayer’s right to finality and right to challenge the IRS’s position and be heard.” More than four years after the ERC program was created, we agree that it is long past time for these claims to be adjudicated and processed.

Additionally, many of our constituents applied for the ERC through IRS-certified Professional Employer Organizations (PEOs), which file a single consolidated ERC claim Form 941-X on behalf of dozens, if not hundreds, of small businesses. According to the National Association of Professional Employer Organizations (NAPEO): “As of December 9, 2023, the number of unprocessed Forms 941-X was approximately 1,057,000.” Given that forms submitted by IRS-certified PEOs are already subject to additional layers of scrutiny to ensure accuracy and eligibility and that a single form filed by a PEO could represent hundreds of legitimate small businesses, we encourage the agency to expedite processing these claims as a low-risk step to rapidly clear the ERC backlog.

We also respectfully request answers in writing to the following:

• For the 10-20% of low-risk claims identified by the IRS in its ERC review, how many of those claims have been processed to date? What steps will the IRS take to expedite the processing and payment of these claims?

• What challenges does the IRS face with resolving claims submitted by PEOs? Has the IRS considered expediting claims submitted by PEOs? Why or why not?

• What steps is the IRS taking to improve its cooperation with Members of Congress, the National Taxpayer Advocate, and the public to resolve ERC inquiries in a timely manner?

• What steps is the IRS taking to increase transparency on the status of ERC claims? Is the IRS considering additional tools for claimants to check on the status of their claim such as an online web portal? Why or why not?

• Mail theft is a significant concern for our constituents. Especially for ERC payments that can range upwards of $100,000, would the IRS consider allowing claimants to opt for direct deposit as a more secure method to receive their ERC payments instead of paper checks? If not, why?

Thank you, and we look forward to hearing from you on this important issue.