Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: October 5, 2023
The Firm
201-896-4100 info@sh-law.com
Employee Retention Credit (ERC) scams are so prevalent that the Internal Revenue Service (IRS) recently announced an immediate moratorium through at least the end of the year on processing new claims. According to the IRS, a substantial share of new claims for the pandemic-era program are ineligible due to small businesses being scammed by aggressive promoters and marketing.
“For those people being pressured by promoters to apply for the Employee Retention Credit, I urge them to immediately pause and review their situation while we look to add new protections and safeguards to stop bad claims from ever coming in,” IRS Commissioner Danny Werfel said in a press statement. “In the meantime, businesses should seek out a trusted tax professional who actually understands the complex ERC rules, not a promoter or marketer hustling to get a hefty contingency fee. Businesses that receive ERC payments improperly face the daunting prospect of paying those back, so we urge the utmost caution. The moratorium will help protect taxpayers by adding a new safety net onto this program to focus on fraudulent claims and scammers taking advantage of honest taxpayers.”
The Employee Retention Credit is a refundable tax credit designed for businesses that continued paying employees during the COVID-19 pandemic while their business operations were fully or partially suspended due to a government order or they had a significant decline in gross receipts during the eligibility periods. Eligible businesses can claim a refundable tax credit against the employer share of Social Security tax equal to 70% of the qualified wages they pay to employees after December 31, 2020, through June 30, 2021.
The ERC is a complex claim with precise requirements that can be challenging to navigate, especially for small businesses. Many entities took advantage of this to aggressively promote the credit and make false promises of tax savings to those who are ineligible.
According to the IRS, below are several red flags that suggest you could be the target of an ERC scam:
IRS auditors are currently examining ERC claims posing the greatest risk. Additionally, the IRS Criminal Investigation division is actively working to identify fraud and promoters of fraudulent claims for potential referral for prosecution to the Justice Department.
Payouts for ERC claims will continue during the moratorium period but will proceed more slowly given the IRS’s detailed compliance reviews. According to the IRS, existing ERC claims will go from a standard processing goal of 90 days to 180 days – and much longer if the claim faces further review or audit. The agency may also require additional documentation from the taxpayer to ensure it is a legitimate claim.
Going forward, the IRS is working on new initiatives to help businesses who fell victim to scammers. The agency plans to enact a settlement program later this fall that will allow businesses to repay ERC claims, while avoiding penalties and future compliance action. The IRS is also finalizing the details of a special withdrawal option for those who have filed an ERC claim but the claim has not been processed. According to the IRS, the option, which will be available to taxpayers whose claim hasn’t yet been paid, will allow the taxpayers to avoid possible repayment issues and paying promoters contingency fees.
The ERC is a complex tax credit program with strict eligibility requirements. Given the significant risk of fraud, businesses should work with experienced professionals to determine the eligibility for the tax credit.
If you believe that may have already fallen victim to an ERC tax fraud scheme, it is also important to take prompt action. At Scarinci Hollenbeck, our dedicated tax attorneys can work with you to determine the best course of action to limit your losses.
If you have any questions or if you would like to discuss the matter further, please contact me, Jeff Pittard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Case law following the 2010 amendments to Federal Rule of Civil Procedure 26 offers guidance on how courts are likely to address whether an expert witness’s AI records are subject to discovery. Key Takeaways Rule 26 Expert Discovery After the 2010 Amendments This article addresses the question courts and lawyers have faced in recent cases: […]
Author: Chris Seelinger

“Show how 3M is 0% at fault.” The absurd tale of how a 350-page ChatGPT history for 3M’s expert witness was produced during a deposition is more likely than you think. It’s an inevitable trend, and an unsettled question for federal courts as experts make generative AI part of their workflow. Key Takeaways Expert Witness […]
Author: Chris Seelinger

Screenshots have changed the risks of electronic communications. The screenshot problem is that messages intended for one person or a small group can be copied, forwarded, preserved, and ultimately presented to opposing counsel, regulators, journalists, customers, or a jury. Businesses should recognize that a truly private digital conversation is increasingly unreliable and ensure their policies, […]
Author: Sean M. Pena

Developers, engineering, procurement, and construction (EPC) contractors, and equipment suppliers each play a critical role in completing a BESS project. However, when equipment costs rise, deliveries are delayed, or regulations change, determining who bears the financial consequences can become contentious. Well-drafted project agreements are essential to sound risk allocation. Key Takeaways This article is Part […]
Author: Nicholas Wall

IP infringement occurs when someone uses your intellectual property without your permission or beyond the scope of the permission you granted. Common examples of IP infringement include copying a product’s patented features or using a trademarked logo in a way that is likely to confuse consumers about the source or affiliation of goods or services. […]
Author: Michael Mietlicki

When facing public allegations of wrongdoing, companies should not let the speed of the public conversation dictate the speed of an investigation. An investigation designed to confirm a preferred narrative rather than establish the facts can create serious problems later, particularly if litigation, regulatory scrutiny, or employment claims follow. Key Takeaways When public allegations surface […]
Author: Sean M. Pena
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!