IRS provides additional guidance to employers claiming the ERC

The IRS issued further guidance on the employee retention credit (ERC) on August 4th. It includes guidance for employers who pay qualified wages after June 30, 2021, and before January 1, 2022, and addresses changes made by the American Rescue Plan Act of 2021 (ARPA) to the employee retention credit that are applicable to the third and fourth quarters of 2021. Notice 2021-49 builds on prior guidance regarding the ERC provided in Notice 2021-20 and Notice 2021-23.

Changes to the ARPA include:

  • Making the credit available to eligible employers that pay qualified wages after June 30, 2021, and before January 1, 2022
  • Expanding the definition of eligible employer to include “recovery startup businesses”
  • Modifying the definition of qualified wages for “severely financially distressed employers” and
  • Providing that the ERC does not apply to qualified wages taken into account as payroll costs in connection with a shuttered venue grant under section 324 of the Economic Aid to Hard-Hit Small Businesses, Non-Profits, and Venues Act, or a restaurant revitalization grant under section 5003 of the ARP.

Notice 2021-49 also provides guidance on several other miscellaneous issues regarding the ERC for both 2020 and 2021. This guidance responds to questions that the Treasury Department and the IRS have been asked about the ERC, including:

  • Defining a full-time employee and whether that definition includes full-time equivalents
  • The treatment of tips as qualified wages and the interaction with the section 45B credit
  • The timing of the qualified wages deduction disallowance and whether taxpayers who already filed an income tax return must amend that return after claiming the credit on an adjusted employment tax return
  • Whether wages paid to majority owners and their spouses may be treated as qualified wages.


Eligible employers will report their total qualified wages and the related health insurance costs for each quarter on their employment tax returns on Form 941 for the applicable period. If a reduction in the employer’s employment tax deposits is not sufficient to cover the credit, some employers may receive an advance payment from the IRS by submitting Form 7200, Advance Payment of Employer Credits Due to COVID-19.