Due to the COVID-19 crisis and the impact of the Wisconsin Safer at Home Order , we have been faced with the challenge of how to legally accomplish real estate transactions while adhering to social distancing requirements.

Before we even had heard of the concept of “social distancing”, a real estate transaction would culminate in an in person “closing”.  At the closing, all of the involved parties physically get together in one location and execute all documents to finalize the transaction. The closing occurs when, simultaneously, the title and ownership of the real estate transfers from the Seller to the Buyer (via a deed) and the transfer of money from the Buyer to the Seller occurs. These closings occur in person for several reasons (amongst them convenience and historical tradition), but another important reason is that there are legally required “formalities” that must be met for the conveyance of real estate to legally occur. One such formality is that the parties signing the conveyance documents must have a third party certify their signature before it is delivered to the Buyer. This is required by law in order for the Register of Deeds to accept the document and to record it–the final step in making the real estate conveyance legally effective. The purpose of this third party certification requirement is to provide assurance to the other involved parties and the public that the person who signed the conveyance document is actually the person they say they are. This provides assurance that the document isn’t being executed fraudulently.

Wisconsin law proscribes only two ways for this third party certification to be accomplished. The most common type of this third party certification is to have the signature witnessed by a notary public, or, as described under the statute, “acknowledgment”. Acknowledgement, however, to be legally effective, requires the notary to be physically present in the same room to witness the person signing the document before the notary can place their seal or stamp on the document. (We recognize that there is a new law going into effect May 1, 2020, Wisconsin Statutes Chapter 140, that allows for remote notarization of real estate documents via commercial remote notarization software. However, our research has found, at least as of the date of this post, that the cost associated with the third party remote notarization services are cost prohibitive).

That all being said, those wishing to buy or sell, or otherwise convey real estate (including refinancing of mortgages) during this time of social distancing can still accomplish the legally required formalities without having to meet with a notary.

In addition to the option for acknowledgement by a notary, Wisconsin law provides an alternative for Wisconsin Attorneys to certify real estate documents without being physically present to witness a signature. This option is referred to as “authentication”.

  • Deeds, Mortgages, and Other Conveyance Documents. For conveyances of Wisconsin real property, (with certain exceptions that are discussed below), Wisconsin licensed attorneys, per Wis. Stats. § 706.06(2) have the unique ability to authenticate the conveyance document (such as a deed or mortgage) and still allow the document to meet legally required formalities necessary for the document to qualify to be recorded.Where notarization (a/k/a acknowledgement) requires the notary’s physical presence in the same room as the signing person, for a Wisconsin attorney to authenticate the same document, the attorney does not have to be physically present in the same room to witness the signature. However, the attorney must be “familiar” with the person’s signature. If the attorney is familiar with the signature, the attorney can sign the authentication portion of the conveyance document.

    For many Wisconsin State Bar approved real estate forms such as deeds or mortgages that are commonly used in Wisconsin real estate transactions, there is pre-printed language on the bottom left side of the document for the attorney to authenticate the document. For other non-standard conveyance documents that need to be recorded, the attorney can draft the exact authentication language that is on the pre-printed State Bar forms, and then execute the document just as they would on the State Bar approved form. The attorney SHOULD NOT place a notary stamp or seal on the conveyance document if they are authenticating the document. The stamp or seal would be an indication that the attorney signed the document in an act of acknowledgement, not authentication.

    Where the attorney has documentation of the signing person’s signatures from other documents (for instance if the signer is a past client), this evidence can create familiarity of the signature for the attorney. For a new client, our practice is to get a sample of the signature (such as a copy of their ID with a signature on it) and to do a Facetime/Zoom/Skype call with the person signing the document to be authenticated by the attorney. During the call, the signing person will have signed the document, gotten the signed document to the attorney, and then the attorney would then hold up the signed document by the signing person and have them verbally verify over the video call that the signature is theirs.

    This practice can be useful to remotely authenticate documents without the necessity of a “drive-by notarization” as that practice still requires personal interaction. The client could pre-sign all documentation and mail and/or drop off at the attorney’s office, or even scan and forward the signed document via email or fax. The document can then authenticated by the attorney familiar with the signature after they’ve become familiar with the signature. Once authenticated, the document would then be ready and legally qualified to be recorded to effectuate the real estate conveyance at a remote closing. This option is also available for Wisconsin real estate for signing persons who are located out of state. This option may not only be beneficial for these times of social distancing, but in the future, for those wishing to conveniently transaction real estate related business remotely from their home.

  • Affidavits. Real estate transactions also require involved parties to sign affidavits under oath as a part of the the closing (Owner’s Affidavits, Gap Affidavits, etc.). These affidavits are typically related to the Title Insurance Policy to be issued after closing to the Buyer and lender. These affidavits are usually notarized at closing too! We’ve concluded that per Wis. Stats. § 706.06(3), affidavits related to Wisconsin real estate can also be authenticated by Attorneys in good standing with the State Bar of Wisconsin, but, that the Attorney authenticating must also be a registered as notary public (or otherwise authorized to administer oaths per Wis. Stats. § 887.01(1))  in order to do so. When signing the affidavit, the attorney should list his or her title as “Member of the State Bar of Wisconsin AND Notary Public”. Again, the Attorney should NOT place their stamp or seal on the document if they are authenticating the affidavit.
  • Termination of Decedent’s Interest in Property. As mentioned above, there is one exception we have found for certain types of real estate conveyances that cannot be accomplished by authentication and that must be accomplished by acknowledgement by a notary. This exception relates to execution of the Termination of a Decedent’s Interest in Real Estate (a/k/a TOD-110s/HT-110s). A conveyance of real estate pursuant to a TOD-110 would be done either under Wis. Stats. §§ 867.045 and 867.046. For these terminations to be legally effective, the statutes require that the person certifying the document declare that the applicant “appeared before him or her”. We interpret this to mean that the termination of the decedent’s interest under either of those sections cannot be effectuated without the person being within the physical presence when signing. You’ll note also that the standard TOD-110 form does not have a spot for an authentication and only have a spot for acknowledgment.

In sum, with the exception of the TOD-110/HT-110, we conclude that all real estate transactions with documents requiring a third party confirming a signature can be done via authentication and therefore do not require personal contact or notarization.

During this time, the attorneys of Schober Schober & Mitchell, S.C. are available (even remotely) to assist with your legal matters, including assisting with both residential and commercial real estate transactions, not only with closings, but also with negotiating offers and dealing with legal issues between signing the contract and closing. If you have concern about being able to accomplish a real estate transaction due to COVID-19, know that we can still assist you with the transaction and that it can be accomplished with limited to no physical interaction with others due to the unique ability of Wisconsin attorneys to authenticate real estate documents.

Call me, or one of our other real estate attorneys at 262-785-1820, visit our website at www.schoberlaw.com or email me, Attorney Jeremy M. Klang at jmk@schoberlaw.com. Stay healthy and safe!

What are “Full Time Equivalents” (or “FTE”) under the CARES Act, as they relate to PPP loan forgiveness? We did some digging and found several helpful links. First, is the healthcare.gov website that has an FTE calculator. According to healthcare.gov, “full time” is an average of at least 30 hours a week for more than 120 days/year. The calculator on the above link also has a “Learn how FTEs are calculated” link that gives a basic description. We played with the numbers. Say an employer had 10 full time employees and 158 hours of part time work, the calculator converted the part time work into 5 more full time employees. The basic calculation is: full time employees (those working 30 plus hours per week), plus the number you get when you divide total part time hours per week by 30. Here is an article from AccountingTools.com that further explains the calculation. Additionally, Section 16 of this CLA article describes how FTEs may be calculated under the PPP.

Regardless of which method you may prefer above, we caution you that until SBA issues regulations under the CARES Act, any such calculation is merely an “educated guess.” Please see and review your information with both your attorneys and your accountants as you prepare your case for forgiveness to be presented to your banker. This can be a real challenge for those whose 8 week period for determining PPP fund use has already begun!

If you need help, don’t hesitate contacting our business attorneys at Schober Schober & Mitchell, S.C. at (262)785-1820.

Here is a summary of the changes in Wisconsin Governor Evers’ extended Safer at Home Order. An important point to begin with is that it does not add any or remove categories of essential businesses. This Order in in effect until May 26, 2020 or until a superseding order comes from DHS.

Safe Business Practices

Section 2(b) of the Order outlines several practices that the Department of Health Services either encourages or requires essential business that remain open to implement. Some practices include complying with social distancing requirements, restricting the number of workers present, and adopting more rigid sanitation and cleaning procedures. Retail essential businesses have more restrictive practices mandated by the order, for example: limiting the number of customers in the establishment at any time based on square footage (either above or below 50,000 square feet). Businesses above 50,000 square feet are also required to, for at least 2 hours a day, only open for vulnerable populations.

Closures

Under the order, the remainder of the 2019­-20 school year is now cancelled. The Order also added public libraries to the closure list, except they may offer online services, curbside pickup, essential government functions, and food distribution. The DHS amended the Order to exempt golf courses from the “places of public amusement” closures. Golf courses may remain open, but have a rather strict list of guidelines that have to be followed, including prohibiting the use of golf carts and keeping the clubhouses and pro shops closed. People who live outside of the same house can play together, but must, to the extent practicable, observe social distancing.

Minimum Basic Operations

The Order significantly expanded the definition of minimum basic operations. In the previous order, minimum basic operations included only the most basic functions: security, inventory, payroll, and maintaining telework. Now, minimum basic operations also include: mailing and delivery, curbs-side pickup, and landscaping (if it can be done by one person). Arts and crafts stores may also have the number employees necessary to manufacture PPE.

If you find that you have questions as to how this may affect your business or operations, please call our knowledgeable attorneys at Schober Schober & Mitchell, S.C. at (262)785-1820.

This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

In a recent post, Attorney Jeremy Klang discussed the Paycheck Protection Program (PPP) loans under the CARES Act. This post will serve as an update regarding how the PPP and the Emergency Injury and Disaster Loans (EIDLs) interact. Head to the Business Law Blog for our other posts regarding COVID-19’s effects on the legal and business worlds particularly as those effects relate to Wisconsin businesses.

Who can apply?

Applicants for both loans must be adversely affected by COVID-19.

EIDL

·         Businesses with fewer than 500 employees;

·         most non-government, not for profit businesses; and

·         sole proprietors and independent contractors.

 

 PPP

·         Businesses with fewer than 500 employees;

·          non-government, not for profit businesses; and

·         sole proprietors, self-employed individuals, and independent contractors

How much are businesses eligible for? 

EIDL

·         Up to $2,000,000 with up to a $10,000 advance grant.

·         Businesses should receive this grant regardless of the status of their overall application.

 

 PPP

·         Up to $10 million, but

·         it is limited to 2.5 times the business’ average total monthly payments for payroll costs during the 1-year period before the date of the loan.

 

There has been a bit of confusion regarding the amount of the $10,000 businesses will be eligible for. The SBA has not provided official guidance on how it will determine the amount businesses are eligible for.

A since-removed bulletin from the Massachusetts SBA field office stated that the advance will be capped at $1,000 per employee. For example, if this ends up becoming the cap employers with five employees will only get a $5,000 advance. However, there has not been an official announcement from the SBA. We will keep this section up to date as more information becomes available.

What we do know about the advance is that while it does not need to be repaid, it will be subtracted from the forgiveness amount of the PPP if a business receives a PPP loan.   

What are the terms?

An underlying term that affects both of these loans is that the CARES Act prohibits borrowers who obtain both loans from using the loans for the same purposes.

EIDL

·         Interest rates are 3.75% for for-profit businesses and 2.75% for nonprofits.

·         Loans can be set at a maximum of 30-year terms and payments are deferred for one year.

 PPP

·         Can be forgiven up to the amount a business spends in the 8-week period following the origination of the loan provided the funds are used for payroll costs, interest on mortgage obligation, rent and utility payments, interest on other debt obligations incurred before February 15, 2020.

·         To have amounts forgiven, the amount spent on non-payroll costs cannot be greater than 25%.

·         The interest rate on any non-forgiven amount is 1%.

·         The remaining loan amount after forgiveness is set at a 2-year term and payments are deferred for six months.

What can the loans be used for?

EIDL

·         Pay fixed debts

·         Payroll

o   This includes sick leave. It is currently unclear whether the same restriction under the PPP applies regarding FFCRA leave.

·         Accounts payable

·         Other operating expenses that could have been paid but for the pandemic

 PPP

·         Payroll costs

o   This includes sick leave except for leave for which a credit is allowed under section 7001 of the FFCRA or qualified leave under section 7003 of the FFCRA.

·         Interests on mortgage obligations incurred before February 15, 2020

·         Rent, under lease agreements in force before February 15, 2020

·         Utilities, for which services began before February 15, 2020

 

Note that the approved uses for each loan generally overlap. Again, the loans cannot be used for the same purposes, so if a business receives both loans it will have to carefully analyze which loan is used for specific purposes.

Required documentation and other information

EIDL

·         Required Documents

o   Loan Application

o   Tax Information Authorization (IRS Form 4506T)

o   Personal Financial Statement

o   Schedule of Liabilities

·         Personal guarantees may not be required for loans less than $200,000.

·         Collateral is not required for loans less than $25,000.

·         Loan is administered by the SBA.

·         SBA will not require first-year tax returns, will not require other credit could have been obtained elsewhere, and approval can be based on credit score.

·         If funds are available, these loans can be applied for up until December 31, 2020.

 

 PPP

·         Required Documentation

o   Certification that the business was in operation on or before February 15, 2020

o   Certification that the business had employees

o   Verification of average monthly payroll costs

·         PPP loans are administered by individual lenders. See this link for a list of Wisconsin lenders.

·         Collateral is not required.

·         Personal guaranty is not required.

·         No requirement for seeking credit elsewhere.

·         If funds are available, these loans can be applied for up until June 30, 2020.

 The SBA is providing much needed financial support for small businesses across the country through the EIDL and PPP. We will continue watching for guidance as it comes down from the federal government. Follow our COVID-19 blog posts on www.wisconsinbusinesslawblog.com/. Please contact our offices at 262-785-1800 or visit our website www.schoberlaw.com to talk to the business law attorneys regarding the EIDL or PPP or any other business law questions related to COVID-19.

We just received word that late yesterday, the IRS extended the 45 and 180 day deadlines for Section 1031 transactions. It appears that such deadlines which fall between April 1st and July 14th will be extended to July 15, 2020. We have also been alerted that our colleagues at IPX 1031 are working diligently with the IRS requesting that the start date be moved back to January 20th. We will keep you informed!

For now, if you have a Section 1031 in progress, be sure to contact us if you are concerned about making your deadlines, and hopefully we can provide the most current information! Call us at (262)785-1820.

This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

To help navigate the Families First Coronavirus Response Act (FFCRA), the Department of Labor (DOL) published guidance on April 6, 2020. In our last post, we discussed the ins and outs of the leave provisions of the FFCRA. In this post, we will highlight that guidance. For information regarding the FFCRA, the Paycheck Protection Program under the CARES Act, or Wisconsin’s Safer At Home Order, see our prior posts on the Business Law Blog.

Definitions

The DOL determined that certain definitions needed further explanation and guidance to fully effectuate the FFCRA. Some definitions, like those for “son or daughter” or “person,” come from other laws like the Family and Medical Leave Act (FMLA) or the Fair Labor Standards Act (FLSA). The DOL further explained the law’s definition of “telework.” The DOL explains that telework is defined broadly under the FFCRA in order to “effectuate the statute’s underlying purposes . . . [and to] encourage employers and employees to implement highly flexible telework arrangements that allow employees to perform work, potentially at unconventional times[.]” The explanation of telework also clarifies that, because of these potentially unconventional work times, employers are still required to compensate employees for recorded hours, including overtime.

Paid Leave Entitlements

The DOL further explains each of the six reasons that an employee may take leave under the Emergency Paid Sick Leave Act (EPSLA). Those explanations are highlighted below:

  • Reason 1: Employee is unable to work or telework because the employee is subject to a federal, state, or local quarantine or isolation order.
  • This applies to broad stay at home orders that affect some or all people (like the one Governor Evers issued in March).
  • The question is “whether the employee would be able to work ‘but for’ being required to comply with a quarantine or isolation order.”
  • Employees cannot use this leave if they do not have work from the employer. This is because regardless of the pandemic, the employee in this instance would not be working anyway.
  • Telework is available under three circumstances: (1) the employer has work for the employee; (2) the employer permits the employee to perform the work from where the employee is quarantined or isolated; and (3) there are no extenuating circumstances that prevent the employee from performing the work.
  • Reason 2: Employee is unable to work or telework because the employee has been advised by a healthcare provider to self-quarantine for a COVID-19 related reason.
  • The healthcare provider must believe that the employee has COVID-19, may have COVID-19, or is particularly vulnerable to contracting COVID-19.
  • The employee is able to telework based on the same three criteria above. Some extenuating circumstances could include serious symptoms that prevent the employee from working.
  • Reason 3: Employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Symptoms include, but are not necessarily limited to, the typical COVID-19 symptoms like fever, dry cough, and shortness of breath.
  • Employee may take paid leave for time spent seeking such a diagnosis “for instance . . . making, waiting for, or attending an appointment for a test for COVID-19.”
  • Employees may not take paid leave for self-quarantine without seeking a diagnosis.
  • Employee may continue to take leave as long as experiencing symptoms, or after testing positive if instructed to self-quarantine.
  • Telework is based on the same criteria as (1) above.
  • Reason 4: Employee is caring for someone subject who is (a) subject to a Federal, State, or local quarantine or isolation order or (b) has been advised by a health care provider to self-quarantine due to COVID-19 concerns.
  • Employee must have “a genuine need to care for the individual.” The individual cannot be someone with whom the employee has no personal relationship. The individual “must be an immediate family member, roommate, or similar person with whom the employee has a relationship that creates an expectation that the employee would care for the person . . . .”
  • Reason 5: Employee needs to take care of employee’s son or daughter if (a) the child’s school or place of care has been closed or (b) the child care provider is unavailable due to COVID-19.
  • This only applies if the employee genuinely cannot work because they are the only person available to care for the employee’s son or daughter. If another co-parent, co-guardian, or the usual care giver is available and the employee can work, the employee may not take leave under this section.

Reason 6, a substantially similar condition specified by the Secretary of Health and Human Services, did not receive further guidance.

The common thread throughout the 5 reasons for taking emergency paid sick leave is that the employer must actually have work for the employee to do before the employee can take leave. The guidance provides a helpful example:

“[I]f a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. . . . [H]is inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.”

Paid Leave Rate of Pay & Hours of Leave

The DOL further explains the rate of pay requirements under the FFCRA. Remember, if an employee is taking leave for reasons (1)-(3), the employee is entitled to that employee’s regular rate of pay. If an employee takes leave for reasons (4)-(6), the employee is entitled to not less than 2/3 of the employee’s regular rate of pay. However, as the DOL explains, if the employee’s regular rate of pay is less than the federal, state, or local minimum wage, the employee is entitled to the highest applicable minimum wage for the duration of the employee’s leave. In Wisconsin, there is no difference between the state and federal minimum wage requirements, so employees whose regular rate of pay is lower than $7.25 an hour are entitled to $7.25 an hour for the duration of their leave.

Employees are entitled to hours of leave equal to the average hours the employee works over a two-week period. The DOL  explains that if an employee does not have a regular schedule (for example 9:00 a.m. to 5:00 p.m. Monday through Friday), the employee’s average number of hours worked should be calculated over a six-month period. If the employee has not been employed by that employer for at least six months, the rate is calculated based on the entire time of the employee’s employment.

Employers with fewer than 50 employees

The FFCRA provides that employers that employ fewer than 50 employees may be exempt from providing leave in certain circumstances. The Department clarified that those employers with fewer than 50 employees are exempt when:

  • Such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity;
  • The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the businesses, or responsibilities; or
  • The small employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services of the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.

Employers that deny leave based on these criteria are advised by the DOL to retain records that document the reasons for denial. However, those records should merely be retained by the employer and should not be sent to the DOL.

Interaction between EPSLA & EFMLA

Reason for paid leave (5) under the EPSLA and the only eligible reason under the EFMLA overlap; thus those provisions interact and can be used successively. The DOL explains that if an employee is taking paid leave to care for a son or daughter whose school has closed may first take the 10-day leave under the EPSLA first and then take the remaining 10 paid weeks under the EFMLA. This makes sense because taking leave under the EFMLA entitles an employee to 12 total weeks, but only 10 paid. Because the reasons for taking leave overlap, an employee can justifiably get all 12 weeks paid if that employee is eligible for both types of leave.

Temporary Non-Enforcement Period

This portion of this post deviates from the guidance that the DOL issued on April 6, 2020, but it is still important information for employers. On March 24, 2020—roughly a week before the FFCRA leave provisions took effect—the DOL issued a “Field Assistance Bulletin” that updated employees in the Wage & Hour Division on the DOL’s temporary non-enforcement policy.

The bulletin explains that the DOL “will observe a temporary period of non-enforcement of the FFCRA for the period of March 18 through April 17, 2020.” In order to get the benefits of the non-enforcement policy, an employer must make “reasonable, good faith effort to comply with the [FFCRA].” The bulletin goes on to explain what reasonably and in good faith mean in this context. Those terms apply only when all of the following are present:

  • The employer remedies any violations;
  • The violations were not “willful,” which means that the employer knew or should have known that the conduct was prohibited; and
  • The employer certifies in a writing sent to the DOL that the employer will comply with the FFCRA in the future.

If an employer is in violation of the FFCRA and does not meet all of the above requirements, the DOL may take action against the employer. It is important to note that this temporary non-enforcement period only applies to DOL enforcement. Aggrieved employees still have a private right of action against the employer under the FFCRA.

This guidance from the DOL is likely only the beginning of what we can expect from the federal agencies involved in these acts. Follow our COVID-19 blog posts on www.wisconsinbusinesslawblog.com/ as we will continue to update as more guidance comes down from the federal and state governments. Please contact our offices at 262-785-1800 or visit our website www.schoberlaw.com to talk to the business law attorneys regarding the new leave requirements or any of the new laws centered around COVID-19.

This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

On March 25, 2020 Wisconsin’s Safer At Home Order (the Order) went into effect. The order is Wisconsin’s version of  a shelter-in-place or stay at home order that other states such as Illinois, California, Michigan, and New York, among others, have enacted in response to the COVID-19 pandemic. The order mandates that Wisconsinites only leave their homes for essential activities, and when they do leave their homes, they should practice social distancing as recommended by the Department of Health and Safety and the Centers for Disease Control. This Order is in effect until 8:00 a.m. Friday April 24, 2020. Notwithstanding the sunset date of this first order, it is possible (and altogether likely) that the State may issue a superseding order extending its duration.

The upshot of this order is that businesses that are not “Essential Businesses and Operations” as defined by the order must cease in person business and convert to telework (work from home) or cease business altogether. By way of this post we hope to inform businesses of their resources to determine whether they are “essential” or what is still available for those deemed non-essential.

Am I an Essential Business or Operation?

While at first glance the Order initial appears to shutter thousands of businesses across the state, a careful reading of the Order shows that many, many businesses may actually qualify as essential and continued operating. Although many businesses may be able to remain open, they will be subject to the modified business practices to slow the spread of COVID-19. Section 13 of the Order provides a list of Essential Businesses and Operations. The Essential Businesses and Operations list includes the other operations already allowed under the Order (Essential Governmental Functions, Healthcare and Public Health Operations, Human Services Operations and Essential Infrastructure) as well as 26 other broad types of businesses and operations.

Notable categories include (1) “Stores that sell groceries and medicine”; (2) “Food and Beverage production, transport, and agriculture,” which keeps the supply chain for (1) in tact; (3) “Restaurants”; (4) “Bars; (5) “Media”; (6) “Financial institutions and services”; (7) “Hardware and supplies stores”; (8) “Critical trades.”; and (9) “Professional services.” These nine categories alone allow businesses such as grocery stores, pharmacies, gas stations, construction companies, law firms, accounting firms, hardware stores, banks, and newspapers and radio stations to remain open beyond only minimal business operations.

Each category has its own restrictions and additional guidelines. For instance, bars and restaurants may only remain open for take-out or delivery services, grocery stores must (like bars and restaurants) close any seating areas for food consumption, and professional services should encourage telework to the extent practicable.

Governor Evers posted an FAQ on the Order, which encourages all business owners or employees to carefully read the Order in its entirety and make a decision based on the Order to determine whether the business is essential. In the event that a business believes it is essential but is not listed on the Order, the Wisconsin Economic Development Corporation (WEDC) provides an inquiry. The WEDC website also includes dropdown definitions of each listed essential business (use the “list” hyperlink above).

 What if I am not essential?

The Order requires any non-essential business (again, carefully check the Order for this determination) to cease in person operations. Despite the mandated cessation, businesses may remain open to perform “Minimum Basic Operations.” Minimum Basic Operations include processing payroll, security, and checking and maintaining inventory. These operations also include those necessary to facilitate work from home capabilities for employees.

What if I want to remain open?

Section 17 of the Order provides enforcement of the Order. It provides that law enforcement agencies, including county sheriff departments, may enforce the Order according to Wisconsin Statute Section 252.25. This statute allows those agencies to enforce the order by fining violators up to $350, imprisoning them up to 30 days, or taking both actions.

What if my county, city, or town has its own order?

To maintain consistency across the state, the Order includes Section 19 “Supremacy.” This section states that the Order supersedes any order inconsistent with it. So, if your locality created its own order that is less restrictive than the State’s, the State’s will apply regardless of a local order.

The business attorneys at Schober, Schober & Mitchell, S.C. are here to guide your business through these strange and confusing times. Stay informed by keeping up with our COVID-19 Response Posts that will be posted on our Business Blog page. If you would like to talk to us regarding the Safer At Home Order or any other business considerations, implications, or issues surrounding the COVID-19 pandemic, please reach out at 262-785-1820 or by visiting our website at www.schoberlaw.com.

This article is the marvelous work of our current law clerk Kieran O’Day, who will be finishing his stint with us shortly and heading on to clerk with the Supreme Court for the State of Wisconsin!

COVID-19 has caused unprecedented illness across the country and has sparked Congress and federal agencies into swift action. In our last COVID-19 post, we discussed the Safer At Home Order that is in effect across the entire state. In this two post series, we will discuss what happens when employees get sick with, have to take care of a family member because of, or have to care for a child due to a closure because of COVID-19. The Families First Coronavirus Response Act went into effect April 1, 2020 and provides two distinct but related COVID-19 related paid leave provisions. This first post relates to both the Emergency Family and Medical Leave Expansion Act, which is an expansion of the Family Medical Leave Act (FMLA) medical leave and the Emergency Paid Sick Leave Act, which allows for sick leave outside of FMLA leave. Our second post of this series discusses the Department of Labor’s (DOL) guidance on the FFCRA.  By way of these posts, we hope to inform employers and employees of the requirements and effects of these two paid leave provisions.

Generally, both provisions apply to “covered employers.” Covered employers are those that have 500 employees or less. There are potential exemptions to certain employers with fewer than 50 employees and certain reinstatement exemptions for employers with fewer than 25 employees. Employees are defined broadly under the FFCRA as all full time, part time, or contract employees of an employer.

Emergency Family and Medical Leave Expansion Act

 Who does it apply to?

 This section of the FFCRA loosens the requirements for obtaining FMLA leave if it is connected to the COVID-19 pandemic. This section provides leave if:

  • The employee has been employed by the covered employer for at least 30 days; and
  • The “employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”

There are some important things to note with these two requirements. First, the 30-day employment period is significantly lower than the required employment period under standard FMLA leave. Typically, employees are not eligible for FMLA leave until they have been with the employer for 12 months, who have worked at least 1250 hours in the last 12 months, and at a location where at least 50 employees are employed within 75 miles. The only time related requirement under the FFCRA is that the employee be employed for at least 30 days.

Next, note that this expanded FMLA leave only apples if the employee is unable to work or telework because the employee has to take care of their son or daughter because the son or daughter’s school has closed due to COVID-19. As of this post, public and private K-12 schools in Wisconsin are closed through the expiration of the Safer At Home Order.

Finally, Under the FFCRA, a public health emergency is defined as “an emergency with respect to COVID-19 declared by a Federal, State, or local authority.”

 What do eligible employees receive?

If an employee is unable to work because they are taking care of a child they are eligible for the following benefits:

  • Up to 12 weeks leave, 10 weeks paid with the first two weeks unpaid at
  • Not less than 2/3 of the employee’s regular rate of pay (as defined by the Fair Labor Standards Act (FLSA)) for the number of hours that the employee would otherwise be normally scheduled to work.

Under the FFCRA, the maximum amount of paid leave compensation an employee may receive is $200 per day or a total of $10,000 in the aggregate. It is important to note that the maximum number of weeks an employee can get is 12 weeks, however, if schools reopen or the employee is otherwise able to begin working again, the leave period will conclude.

Do I have to restore my employees who took leave?

The short answer: Probably. Section 104(a)(1) of the FMLA requires employees who have taken leave be restored to the same position they had prior to taking leave, or one that is “equivalent.” An equivalent position is “a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.” Implying that Section 104(a)(1) applies in all other circumstances, the FFCRA makes an exception for employers that employ fewer than 25 employees under certain circumstances.

If such an employer is able to show that:

  • The employee took leave under the FFCRA;
  • The employee’s position when leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer that are caused by a public health emergency (COVID-19) during the period of leave;
  • The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee had when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and
  • If the reasonable efforts above fail, the employer makes reasonable efforts during the 1-year contact period if an equivalent position becomes available.

The 1-year contact period begins at the earlier of the end of the public health emergency (COVID-19) or the date 12 weeks after the employee commenced the employee’s leave. It is important to note that the FFCRA is due to expire at the end of 2020, however, the contact period extends for one year regardless of when in the year it occurs.

Emergency Paid Sick Leave Act

 The second leave provision that the FFCRA provides is sick leave completely separate from the leave provided above for COVID-19 related issues.

 Who does this leave apply to?

The leave provided under this section is much broader and provides leave for any employee that is employed by a covered employer under six (not one) circumstances. The six available circumstances are:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to an order as described in (1) or has been advised as described in (2);
  • The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID-19 precautions; or
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Note that unlike the FMLA expansion, this leave does not have any minimum employment requirement. Any employee who meets any of the above six circumstances is eligible for the emergency paid sick leave.

What are these employees eligible for?

The FFCRA splits the compensation plan under the emergency paid sick leave depending on the reason for which the employee is taking the leave.

If the employee is taking leave for reasons (1), (2), or (3), the employee is eligible for 80 hours (two weeks) of paid sick time for full time employees or, for part time employees, a number of hours equal to the number of hours that such employee works on average over a 2-week period.

Paid sick time is defined by the FFCRA in the following ways:

  • The rate is calculated based on the employee’s required compensation under sub (B) and the number of hours the employee would otherwise be normally scheduled to work except;
  • Under reasons (1), (2), and (3) the employee is provided the employee’s regular rate of pay provided that it does not exceed $511 per day or $5110 in the aggregate; and
  • Under reasons (4), (5), and (6), no less than two thirds of the employee’s regular rate of pay provided the amount does not exceed $200 per day or $2000 in the aggregate.

Employer Requirements/Prohibitions/Reimbursement

 What do I have to do?

 The FFCRA requires notice of these new employee rights. Think of the standard employment posters employers are required to have displayed. These posters are available through the Department of Labor (DOL) here.

Can I make an employee find a replacement prior to providing them leave?

No. This is expressly prohibited by the FFCRA.

 Can I make an employee use that employee’s other available leave benefits first?

 No. The FFCRA expressly prohibits employers from forcing employees to take other available, accrued leave prior to providing leave under the Act. However, the FFCRA also expressly allows employees to utilize other accrued leave prior to taking emergency paid sick leave, so they may end up with greater than 80 paid hours if they elect to do that.

How will I be repaid for providing leave?

The FFCRA states that employers will be provided tax credits for providing emergency paid sick leave or emergency family and medical leave.  The Internal Revenue Service has issued guidance on what tax credits it will provide and if employers will be eligible for refunds.

 How much notice do my employees need to provide?

The FFCRA states that an employee must provide the employer with a signed statement that supports the need for paid sick leave. That statement must include:

  • The employee’s name;
  • The date(s) for which leave is requested;
  • The COVID-19 qualifying reason for leave; and
  • A statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason.

While this documentation is required, employers cannot request documentation beyond the above. If employers attempt to require additional documentation such as proof of diagnosis or proof of symptoms, the employer could risk running afoul of the Americans with Disabilities Act, which limits the amount of medical information employers can request or demand from employees.

Navigating the new legislation and all of the regulations and rules that are set to come with it from the DOL and IRS will be confusing and time-consuming, but the attorneys at Schober, Schober & Mitchell, S.C. are staying up to date. Follow our COVID-19 blog posts on www.wisconsinbusinesslawblog.com/ as we will continue to update as more guidance comes down from the federal and governments. Please contact our offices at 262-785-1800 or visit our website www.schoberlaw.com to talk to the business law attorneys regarding the new leave requirements or any of the new laws centered around COVID-19.

Small businesses have been substantially affected by the rippling effects COVID-19 has had our society and the actions taken by federal, state, and municipal authorities to help minimize the spread of the virus in the United States. In Wisconsin, Governor Tony Evers issued a Safer at Home order on March 24, 2020 which classified some businesses as “essential”, allowing them to continue to operate, while classifying others as non-essential, prohibiting them from continuing operations, with some very limited exceptions. With the economic downturn this virus has caused, even “essential” businesses are hurting, resulting in employee layoffs and the legitimate possibility of businesses defaulting on ongoing overhead obligations such as rent, utilities, or mortgage payments.

To combat the potentially catastrophic effects this sudden economic downturn has had on small businesses, their owners, their employees, and the American economy as a whole, the Coronavirus Aid, Relief, and Economic Security Act (also known as the CARES Act), was enacted into law on March 27, 2020.

The CARES Act is over 880 pages. However, this post will focus only on the portion of the CARES Act that applies to small businesses in the form of small business loans through the Paycheck Protection Program. The intent of this program is to simultaneously assist small businesses by helping them avoid defaulting on ongoing overhead obligations, while also encouraging employers to retain and pay employees—thereby ensuring that employees can continue to support themselves and their families. While a loan may not seem much like a “stimulus,” there is potential for forgiveness of the loan so long as the business receiving the loan meets certain standards regarding employee retention and continued payment of those employees.  The rest of this post will summarize the basic points of how this loan program works for small businesses.

How Does the Loan Work?

  • Who is Eligible? Eligible businesses are those that have less than 500 employees, and also includes very small businesses, such as sole proprietors, independent contractors, and self-employed individuals. The business must also certify to the lending bank in writing that the uncertainty of current economic conditions makes the loan necessary to support its ongoing operations, acknowledge that the loan funds will be used to retain workers and maintain payroll, or make mortgage payments, lease payments, and utility payments. Additionally the business cannot get multiple Paycheck Protection Program loans and must make a certification to that effect to the lending bank.
  • Where does my business get the loan? Local banks/financial institutions will be the sources of the funds. The funds are authorized under the SBA 7(a) program, which is typically used for startups, business acquisitions, and other SBA funded loans. Remember, the SBA does not pay the money directly to the business, they just provide a guarantee to the bank up to a certain percentage of the loan amount. In this crisis, for loans granted under the Paycheck Protection program, the loans are going to be backed 100% by the SBA (up from typically lower percentages). This means that if the business defaults on the loan, the SBA will reimburse the bank for their loss.
  • How much interest will my business be charged? Interest rates cannot exceed 4%. Subsequent regulations have been issued since the original posting of this article. The interest rate on PPP loans will be 1%. 
  • How much of a loan can my business get? The maximum loan amount is $10 Million, but will be limited to 2.5 times the business’ average total monthly payments for payroll costs during the 1 year period before the date of the loan. If the business hasn’t been in business for a year, the loan amount is limited to 2.5 times the average monthly payroll costs incurred by the business during the period of January 1, 2020 through February 29, 2020.
  • What is included in “payroll costs” for determining how much my business can borrow?
    • Salary, wages, commission or similar compensation (except to the extent that an employee’s salary, wage or commission exceeds $100,000.00 annually, determined based on prorating the amount that would be paid from February 15, 2020 to June 30, 2020);
    • Payment of cash tip or equivalent;
    • Payment for vacation, parental, family, medical, or sick pay (except for those amounts paid for paid leave under the Families First Coronavirus Response Act, because those amounts are credited against an employer’s payroll tax liability);
    • Allowance for dismissal or separation;
    • Payment required for provision of group health benefits, including insurance premiums,
    • Payment of any retirement benefit;
    • Payment of state or local tax assessed on the compensation of employees; and
    • Sum of payment of any compensation to any sole proprietor or independent contractor not to exceed $100,000.00 per year prorated over the period of February 15, 2020 to June 30, 2020.
    • Subsequent regulations have been issued since the original posting of this article. Independent Contractor pay is not included for purposes of determining payroll costs.
  • What can the loan funds be used for?
    • payroll costs (as defined above);
    • Payments of interest on mortgage obligations but NOT principal incurred prior to February 15, 2020;
    • Rent obligations for obligations incurred prior to February 15, 2020;
    • Utility costs for utility service beginning prior to February 15, 2020;
    • Interest on any other debt obligations that were incurred prior to February 15, 2020.
  • Are personal guarantees required and will collateral be required? The SBA will not require any personal guarantee from the business owner. This does not mean that the particular bank will not require a personal guarantee or require the pledging of collateral!
  • Aren’t there fees with SBA loans? There is no (or to the extent possible) fee for the SBA loan;
  • Will there be a penalty if my business pays back the loan early? There is no prepayment penalty;
  • How long does my business have to pay it back? The loan amortization will be over no longer than a 10 year period if the loan is not forgiven. Subsequent regulations have been issued since the original posting of this article. The loan will be due in 2 years with monthly payments not due for six (6) months. 

How would loan forgiveness work?

Businesses in financial trouble due to the COVID-19 crisis may be thinking, why would I take on more debt right now? A critical part of the Paycheck Protection program is eligibility for loan forgiveness for the loans issued under this program. This may be an extremely useful resource for qualifying businesses wishing to take advantage of this program. However, businesses contemplating obtaining the loans should make sure they understand what they are getting into prior to taking on the loan.

  • How much of the loan can be forgiven? A business seeking a Payroll Protection Program loan can have its loan forgiven up to the amount (but not exceeding the loan amount) equal to costs incurred and payments made by the business during the period starting with the date the loan is made and 8 weeks after that, for the following expenses:
    • payroll costs (as defined above);
    • payment of interest on a mortgage obligation (the mortgage must have been in place before February 15, 2020);
    • payment of rent (under a lease arrangement entered into prior to February 15, 2020); and
    • payment of utilities (service must have begun prior to February 15, 2020).
    • Note: the initial SBA application for Paycheck Protection Program loans indicates that “due to likely high subscription, it is anticipated that not more than 25% of the forgiven amount may be for non-payroll costs.”
  • Is the forgiveness of debt taxable income? If there is loan that is forgiven, it is NOT included in gross income for income tax purposes (forgiveness of debt generally is taxable as income).
  • Are there limits on the forgiveness? There are limits/standards that must be met for the business to receive forgiveness on the loan for payment of the above amounts:
    • Employee retention: the amount of forgiveness for the above payments will be reduced if the business has fewer full time equivalent employees during the 8 week period after the loan is issued compared to the business’ average monthly full time equivalent employees during the period of February 15, 2019-June 30, 2019, or, if the business wasn’t open during that period, compared to the average number of full time equivalent employees per month during the period of January 1, 2020 through February 29, 2020. It is not clear from the Act what the SBA defines as a “full time employee equivalent”, as well as how part time employees fit within that definition. The SBA will need to issue guidance on these definitions in its regulations that are forthcoming.
    • Employee Compensation. The amount of forgiveness will also be reduced by every dollar of pay reduction of more than 25% of the employee’s normal wages/salary paid during the most recent full quarter that the employee was employed before the covered period. (For employees making $100,000.00 or more annually, the reduction would only occur to the extent those employees had their pay reduced less than 75% of $100,000.00).
    • Tipped workers: The Act states a business with tipped employees “may receive forgiveness for additional wages paid to those employees”. Unfortunately, this language is far from clear on how this will work. Does this mean that the business must pay an equivalent to 75% of average tips to those tipped employees in order to avoid reduction in loan forgiveness? Further guidance from the SBA will be needed on this point in upcoming regulations.
    • Exemption for Re-hires. The Act also allows for a grace period for the business to get employee employment levels and employee compensation levels to a position where they would be eligible for the forgiveness without regard to the reductions described above. If the employee reduction and/or the compensation reduction occurs between February 15 and April 26, 2020, so long as the business has eliminated the reduction in employment of employees or reduction in pay by June 30, 2020 then there shall not be a reduction in the loan forgiveness. This allows businesses that may have already laid off employees or reduced employee pay to get employment levels and pay levels back up to appropriate levels and still qualify for forgiveness.
    • Subsequent regulations have been issued since the original posting of this article. Not more than 25% of the forgiveness can be based upon non-payroll costs. 

Final Thoughts

  • The Payroll Protection Program under the CARES ACT provides small businesses the possibility of avoiding defaulting on mortgage payments, rent, and utility obligations, while also ensuring that their employees continue to get paid. Overall, it is a great help for both businesses and employees alike during this extremely difficult time.
  • However, businesses should understand that this program is done via a loan. Businesses should not go into the loan process expecting to automatically get loan forgiveness. There is risk that they may not qualify for the forgiveness (or may not qualify for 100% forgiveness), and therefore will have debt to pay back, though it will be over a 10 year period at a maximum of 4% interest.
  • Businesses will have to take extra care with their record-keeping to ensure that that they maximize their likelihood of obtaining loan forgiveness as these records will be heavily scrutinized in order for businesses to obtain that forgiveness. Additionally, businesses should understand that detailed records of the business, especially related to employees, must be kept in order to qualify for forgiveness.
  • Because some provisions are not entirely clear and need further explanation from the SBA, there may not be answers on these questions before a business needs the funds. If businesses take the plunge with a loan, they should understand the risk that they may not necessarily qualify for loan forgiveness. The subsequent regulations may have impact on eligibility.  Further, banks may not necessarily be able to provide substantial guidance on forgiveness eligibility until those regulations are issued. Businesses getting loans before regulations are issued should keep this in mind and understand the risk.
  • With the initial SBA application and now issued regulations on the PPP indicating the loans are payable over 2 years, and that not more 25% of the forgiven amount can be for non-payroll costs, businesses should understand how much they may have to pay back, the monthly payment amounts if that were the case, and also determine what their anticipated payroll and non-payroll costs will be, so they can more accurately project the extent of forgiveness they will receive. If they will not receive complete forgiveness, businesses should determine how the projected monthly payments will affect cash flow.
  • Practically speaking, this Act doesn’t change the fact that some businesses’ operations are substantially or completely reduced due to Stay at Home orders. As such, there may not be any work for employees or the same level of work for those employees. With that being said, the Payroll Protection Program may allow businesses to keep paying employees even if they are not working so the business can qualify for forgiveness for other overhead costs necessary to be paid to keep the business in business. Business owners will have to make the decision as to whether they wish to continue to make payments to those employees despite no or reduced services being provided in order to obtain loan forgiveness.

The attorneys at Schober Schober & Mitchell, S.C. are keeping up to date on the quickly changing laws regarding the COVID-19 crisis. Overall, we feel that the Payroll Protection Program under the CARES Act will be of benefit to many of our small business clients and hope that this will help all businesses weather this storm. We are available and happy to assist businesses who have questions on how they may be able to take advantage of this Paycheck Protection Program, as well as compliance with the other flurry of laws that have been passed recently related to COVID-19. Contact me, Attorney Jeremy M. Klang at jmk@schoberlaw.com and any of our business attorneys at 262-785-1820, or by visiting our website at www.schoberlaw.com.

This article, appearing in the January 9, 2019 Business Law Blog of the State Bar of Wisconsin, is brought to you through the consent of the following author, together with the permission of the Business Law Blog of the State Bar of Wisconsin. We are pleased to bring this article of significant importance to you from such an expert. We hope you enjoy this!

Thomas J. Nichols, Marquette 1979, is a shareholder with Meissner Tierney Fisher & Nichols S.C., Milwaukee, where he focuses his practice on business and tax law. 

 

James W. DeCleene,Marquette 2015, is an attorney with Meissner Tierney Fisher & Nichols S.C., Milwaukee, where he focuses his practice on business and tax law.

New 2017 Wisconsin Act 368 allows S corporations and partnerships to be taxed at the entity level – meaning potential tax savings for their owners. Thomas J. Nichols and James W. DeCleene discuss the act and its tax implications.

Included among the bills just passed by the Wisconsin Legislature is new 2017 Wisconsin Act 368(Act), sponsored and championed by Sen. Howard Marklein, a certified public accountant.

This Act contains provisions that allow pass-through entities – including S corporations, partnerships, limited liability companies, and other entities treated as partnerships under the Internal Revenue Code – to elect to be taxed at the entity level.

Why would people want to do that?

Because under the Tax Cuts and Jobs Act, the deduction of state income, property, and other taxes imposed at the individual level is limited to a maximum of $10,000 per return – but taxes imposed on pass-through entities are deductible at the entity level, and therefore reduce income passed through to the shareholders or other owners, thereby effectively making those taxes deductible.1

Net Savings

The economics work like this: Taxpayers subject to the top individual income tax rate of 7.65 percent in Wisconsin applicable to taxable income over $336,200 on a joint return and $168,100 on a separate return for calendar year 2018 are likely to have property taxes and income taxes on their nonpass-through income of at least $10,000. Thus, the state income taxes that they pay on their income from pass-through entities are effectively nondeductible.


These new provisions allow pass-through entities to elect to be taxed at the entity level at a flat rate of 7.9 percent (the Wisconsin corporate income tax rate).2

You probably see where this is going. A nondeductible 7.65 percent tax costs precisely that – namely 7.65 percent. However, a federal top-bracket owner of a pass-through entity that qualifies for the new 20-percent (federal only) deduction for qualified business income under section 199A of the Internal Revenue Code is subject to a top federal rate of 29.6 percent ([1 – 20%] X 37% = 29.6%).

This means that a deductible 7.9 percent tax costs only a net 5.56 percent ([1 – 29.6%] X 7.9% = 5.56%) after you take into account the deduction for state income taxes at the entity level.

If, for whatever reason, the business owner is not entitled to the 20-percent section 199A deduction, the overall net tax cost of the 7.9-percent state income tax actually goes down to approximately 4.98 percent ([1 – 37%] X 7.9% = 4.98%).

Bottom line: Profitable Wisconsin business owners could achieve after-tax savings of approximately 2.09 percent (or almost 2.7 percent for businesses that do not qualify for the section 199A deduction).

Tax Treatment

The actual tax effects of this election are specified in the Act.

As noted above, a flat tax of 7.9 percent is imposed at the entity level.3 Income, losses and deductions that would otherwise be passed through to S corporation and partnership owners are excluded for purposes of determining their taxable income at the individual level for Wisconsin.4

However, the basis in their respective ownership interests (stock in the case of S corporations and partnership interests for noncorporate entities) are still increased and decreased to reflect income or loss at the entity level, the same as they would be if no election had been made.5 And the distribution of “earnings and profits” accumulated during years in which this election is in effect would not be treated as dividends for Wisconsin (or federal) tax purposes.6

Net income and situs of income for entities making this election is computed and determined as if no election had been made.7 It is just taxed at the entity level, rather than at the owner level.8 Thus, an S corporation or partnership owned 100 percent by Wisconsin resident shareholders or partners would be taxed on 100 percent of its entire net income, even if some of that net income was apportioned or otherwise allocated out-of-state.

However, for example, an S corporation with two shareholders – a resident shareholder owning 60 percent of its stock and a nonresident shareholder owning the other 40 percent of its stock – and that has 90 percent of its income apportioned or allocated out-of-state would pay tax only on 64 percent of its income (60% X 100% + 40% X 10% = 60% + 4% = 64%).

Since the net income of S corporations and tax partnerships electing under these new provisions will be taxed at the entity level, they are eligible to credit against that tax the net income or franchise taxes paid at the entity level in other states, as well as individual income taxes paid at the entity level on composite returns filed in other states, to the extent such credited taxes are attributable to shareholders or partners who are Wisconsin resident individuals, estates, or trusts.9

Similarly to individuals, this credit is subject to an overall cap based upon the 7.9 percent tax rate imposed on the corresponding income.10

Significantly, such income, franchise, and composite taxes paid by electing S corporations or partnerships should not qualify for credit at the individual shareholder or partner level anyway, because the corresponding income will now not be reported at the individual level for Wisconsin tax purposes.11

It should also be noted that only resident individuals, estates or trusts are eligible for such credits in the first instance.

Caveats

Although the election is likely to be quite beneficial for numerous Wisconsin businesses, there are circumstances where it might not be advisable.

For example, S corporations and tax partnerships where a substantial amount of the pass-through income is subject to Wisconsin tax at substantially less than the top 7.65 percent rate might not benefit enough from the deductibility in order to offset the cost of having to pay tax at the higher 7.9 percent rate.

Similarly, it may not be advisable where S corporations, partnerships, or their respective shareholders and partners are eligible for credits, such as the manufacturing and agriculture credit, which reduce their effective Wisconsin tax rate.13

The only credits allowed to S corporations and partnerships electing under these new provisions are the credits for franchise, income, and composite taxes described above.14

Also, S corporations and partnerships with substantial out-of-state owners might not benefit if those owners are not allowed a corresponding exclusion or credit at the individual level in their home state for the income tax that is now being paid at the entity level here in Wisconsin.

The election may not be typically advisable for S corporations and partnerships that are experiencing losses, because there would be no deductible state taxes to begin with, and such losses would effectively be wasted.15

However, as explained below, this election may be made on or before the due date or extended due date of the relevant S corporation or partnership return.16 Thus, taxpayers and their accountants will have the opportunity to determine whether the election is beneficial and worth the extra compliance costs before committing to this regime. Taxpayers can even revoke the election within this same timeframe if they subsequently change their mind.17

Election

The election procedure itself mirrors the existing election for S corporations to opt out of “tax-option” status entirely for Wisconsin purposes only.18 However, it must be made each year, and will presumably be in some form of check-off or attachment on the Wisconsin return.

Just as with the existing Wis. Stat. section 71.365(4)(a) “opt out” election, this new election will also require the consent of persons owning more than 50 percent of the shares for an S corporation and more than 50 percent of the capital and profits for a tax partnership, though any such consent should be able to cover some or all future years.

The new election is available for S corporations starting with taxable years beginning on or after Jan. 1, 2018. Partnerships will only be eligible for taxable years beginning on or after Jan. 1, 2019.19 Thus, some year-end tax planning for S corporations now may be appropriate, but not essential given the optional nature of this relief.

Summary: A New Opportunity

Lawyers and accountants should be apprising their S corporation and tax partnership clients of this new opportunity.

For profitable businesses, the after-tax savings could be significant. S corporations are eligible immediately for 2018 taxable years; partnerships are not eligible until next year.

Endnotes

1 I.R.C. §164(b)(6); H.R. Rep. No. 115-466, at 260 n.172 (2017) (Conf. Rep.) (“[T]axes imposed at the entity level, such as a business tax imposed on pass-through entities, that are reflected in a partner’s or S corporation shareholder’s distributive or pro-rata share of income or loss on a Schedule K-1 (or similar form), will continue to reduce such partner’s or shareholder’s distributive or pro-rata share of income as under present law.”).

2 Wis. Stat. §§ 71.365(4m)(a), 71.21(6)(a)

3 Wis. Stat. §§ 71.365(4m)(a), 71.21(6)(a)

4 Wis. Stat. §§ 71.05(10)(dm), 71.36(1), 71.365(4m)(b), 71.21(6)(b)

5 Wis. Stat. §§ 71.365(1)(a), 71.21(6)(d)4

6 Wis. Stat. § 71.05(6)(a)14

7 Wis. Stat. §§ 71.365(4m)(d)1., 71.21(6)(a)

8 Wis. Stat. §§ 71.365(4m)(b), 71.21(6)(b)

9 Wis. Stat. § 71.07(7)(b)3

10 Wis. Stat. § 71.07(7)(c)

11 Wis. Stat. § 71.07(7)(b)1

12 Id.

13 See, e.g., Wis. Stat. § 71.07(5n)

14 Id.

15 Wis. Stat. §§ 71.05(10)(dm), 71.365(4m)(b), (d)3., 71.21(6)(b), (d)2

16 Wis. Stat. §§ 71.365(4m)(a), 71.21(6)(a)

17 Wis. Stat. §§ 71.365(4m)(c), 71.21(6)(c)

18 Compare Wis. Stat. section 71.365(4)(a), with Wis. Stat. sections 71.365(4m)(a) and 71.21(6)(a).

19 2017 Wisconsin Act 368 § 21(1)​