SBA releases guidance on PPP second draw loans

Application dates

Opening of program through March 31, 2021

Maximum loan size

$2 million; $4 million aggregate maximum for borrowers considered a single corporate group

Maturity

Five years

Revenue reduction qualification

Must be a 25% or more reduction for any quarter in 2020 as compared to same quarter in 2019; PPP borrower can use annual reduction if 2020 revenue is at least 25% less than 2019 annual revenue. 2020  revenue does not include amount of first PPP loan

Maximum number of employees qualification

300; for some borrowers 300 per physical location

General eligibility

A business concern, independent contractor, eligible self-employed individual, sole proprietor, nonprofit organization eligible for a First Draw PPP Loan, veterans organization, Tribal business concern, housing cooperative, small agricultural cooperative, eligible 501(c)(6) organization or destination marketing organization or an eligible nonprofit news organization

Must have previously received a first draw PPP loan and must have used or will use full amount of first draw loan prior to expected date of the second draw loan disbursement

Must employ not more than 300 employees or for entities that have an affiliation waiver, not more than 300 employees per physical location

Must have experienced a 2020 revenue reduction in excess of 25% as compared to 2019 (quarterly or annual)

Affiliation rules

Similar affiliation rules (and waivers) as first draw, except ownership affiliation rules are waived for a business concern with not more than 300 employees that is either a business concern that is assigned a NAICS code beginning with 72, a business concern that is majority owner or controlled by a business concern that is assigned a NAICS code beginning with 511110 or 5151, or a nonprofit organization that is assigned a NAICS code beginning with 5151

For purposes of computing employees, all employees of any domestic and/or foreign affiliates are included in the employee count

Excluded entities

Entities excluded from eligibility under initial PPP and:

A business concern or entity primarily engaged in political activities or lobbying activities

Any business concern or entity created in or organized under the laws of the People’s Republic of China or the Special Administrative Region of Hong Kong

Any business concern or entity that has significant operations in the People’s Republic of China or the Special Administrative Region of Hong Kong

Any business concern or entity that is more than 20%, directly or indirectly, owned by a business concern or entity created in or organized under the laws of the People’s Republic of China or the Special Administrative Region of Hong Kong

Any business concern or entity that retains, as a member of the board of directors of the business concern, a person who is a resident of the People’s Republic of China

Any person required to submit a registration statement under section 2 of the Foreign Agents Registration Act of 1938

A person or entity that that receives a grant for shuttered venue operators

Entities in which the President, the Vice President, the head of an Executive department, or a Member of Congress, or the spouse of such person owns, controls, or holds at least 20% of any class of equity

A publicly traded company, defined as an issuer, the securities of which are listed on an exchange registered as a national securities exchange

An entity that has previously received a second draw loan

An entity that has permanently closed

Payroll cost calculation

Similar to payroll cost computation under initial PPP loan program

Borrower can calculate average monthly payroll cost using 2020 calendar year, 2019 calendar year or using specific seasonal employer, new entity, Schedule C or Schedule F rules

General rules are that loan maximum is the lesser of 2.5x the computed average monthly payroll and $2 million. For NAICS code 72XXXX borrowers that are not seasonal employers or new entities, the maximum is the lesser of 3.5x the computed average monthly payroll and $2 million

Gross receipts reduction

Borrower must demonstrate at least a 25% reduction in gross receipts using any quarter in 2020 as compared to the same quarter in 2019

Special rules for borrowers that were not in business during certain 2019 quarters

A borrower that experienced at least a 25% annual decline in gross receipts from 2019 to 2020 can use the annual decline. The borrower must submit copies of its annual tax forms to substantiate the decline

Gross receipts includes all revenue in whatever form received or accrued (in accordance with the entity’s accounting method) from whatever source, including from the sales of products or services, interest, dividends, rents, royalties, fees or commissions, reduced by returns and allowances. Generally, receipts are considered ‘total income’ (or in the case of a sole proprietorship, independent contractor, or self-employed individual ‘gross income’) plus ’cost of goods sold,’ and excludes net capital gains or losses as these terms are defined and reported on IRS tax return forms.

Gross receipts do not include the following: taxes collected for and remitted to a taxing authority if included in gross or total income (such as sales or other taxes collected from customers and excluding taxes levied on the concern or its employees); proceeds from transactions between a concern and its domestic or foreign affiliates; and amounts collected for another by a travel agent, real estate agent, advertising agent, conference management service provider, freight forwarder or customs broker. All other items, such as subcontractor costs, reimbursements for purchases a contractor makes at a customer’s request, investment income and employee-based costs such as payroll taxes, may not be excluded from gross receipts.

Gross receipts also do not include funds received from the initial PPP loan

There are separate rules for calculating gross receipts of affiliates

For an eligible nonprofit organization, a veterans organization, an eligible nonprofit news organization, an eligible 501(c)(6) organization or eligible destination marketing organization, gross receipts means gross receipts within the meaning of section 6033 of the Internal Revenue Code of 1986.