IRS Sued for Millions Over Employee Retention Credit (ERC) Delays

Lawsuits are descending upon the IRS over tax refunds related to the Employee Retention Credit, and this could just be the beginning.

For example, an industrial staffing company in Ohio, forced to suspend hiring events due to government shutdowns, is seeking over $5 million in tax refunds related to the ERC, a complaint filed last month said. Also, a North Carolina-based daycare filed suit against the IRS, asking for more than $394,000 in owed refunds.

These and other legal complaints come as the tax agency attempts to dig itself out of a massive backlog dating back to the pandemic over erroneous ERC claims. Some employers faced delays in claims processing for years, and now several thousand are receiving a notice of claim disallowance.

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Furthermore, the IRS admitted some rejection letters were wrong after businesses clawed back in an appeal.

However, recently, the tax agency announced progress in clearing its ERC backlog. Processing is underway on approximately 400,000 claims, which represent about $10 billion.

“The IRS understands the vital importance of Employee Retention Credits payments for struggling small businesses, and we are continuing to make important progress on one of the most complex tax administration provisions we've ever had,” IRS Commissioner Danny Werfel said in a statement.

Still, here’s why some employers are going to court over ERC refunds.

IRS overwhelmed by ERC claims

The ERC is a refundable tax credit created to incentivize businesses to keep their employees on payroll during COVID-related business shutdowns. As previously reported by Kiplinger, abusive promoters advertised the ability to claim the ERC to unsuspecting employers, leading to a surplus of errors and ERC fraud.

The IRS has had its fair share of challenges handling ERC claims. At one point, the National Taxpayer Advocate reported that the pileup had grown to about 1.4 million.

It’s been about a month since the IRS restarted processing claims following a one-year pause, and the agency is even urging employers to participate in its Voluntary Disclosure Program to fix ERC claims at a discount.

Despite these strides, many employers waiting on claims are not happy. Some say they haven’t even had the courtesy of receiving an explanation or notice of disallowance explaining the delays.

IRS faces million-dollar ERC lawsuit in Ohio

An Ohio-based industrial staffing company is suing for $5.1 million in refunds linked to pandemic-era ERC claims.

The complaint filed in September argues that The Job Center LLC, a limited liability company, is entitled to retention credits for five quarters from 2020 to 2021 under the “government shutdown” provision.

Furthermore, the plaintiff states that due to the COVID-19 pandemic, the business was forced to suspend or modify regular operations to comply with state, local, and federal-issued orders.

This impacted travel, group meetings, hiring events, and commerce across its locations in Ohio, Kentucky, Indiana, Pennsylvania, New Hampshire, Missouri, Georgia, North Carolina, Texas, and Arizona, according to the filing.

Even though the company filed a refund request on June 20, 2023, the complaint alleges the IRS failed to justify the delays or issue any notices of disallowance, audit, or deficiency for the claims.

Due to the inaction, The Job Center LLC is asking the IRS to pay the owed credits and award the company interest and attorney fees.

North Carolina daycare claims it was unjustly denied ERC

In a similar move, a North Carolina daycare center filed a lawsuit against the IRS for more than $394,000 in owed employee retention credits, plus interest.

The complaint argues that Miss Marta’s Inc., which operates as The Learning Tree, qualifies for the ERC under the “gross receipts” provision of the CARES Act, as the company suffered a decline in gross receipts for six quarters from 2020-2021.

The Learning Tree also alleges that it filed amended returns to claim the ERC on time. Still, despite doing so, its claim was disallowed after the moratorium period without review to justify the decision.

“After a lengthy delay, the IRS has failed to process The Learning Tree’s claim for an ERC refund,” the complaint says. “The IRS has delayed processing ERC claims to such an extent that it has effectively suspended the program.”

IRS responds to legal challenges

The aforementioned complaints add to a laundry list of lawsuits contending that the IRS failed to issue an ERC refund.

For instance, an Arizona-based tax advisory and tech firm sued the agency alleging that the moratorium period on ERC claims was “unlawful.”

IRS Deputy Commissioner Douglas O’Donnell made a declaration justifying the ERC processing delays, which included:

• The agency received an “unprecedented surge” in claims and a significant share were ineligible
• Many ERC claims were “complex” and required a manual review from an IRS employee
• The IRS had to add resources to “address the unusually high volume of claims”

Should you file a tax refund lawsuit against the IRS?

Before filing a tax refund suit, you must first claim for refund or credit with the IRS using Form 941-X. Furthermore, a refund lawsuit cannot “be begun before the expiration of 6 months from the date of filing the claim” unless the IRS denies the claim — then you can proceed immediately.

It’s worth mentioning that if you receive a notice of disallowance, you’ll have 30 days to dispute the decision to protect your two-year timeline to request an appeal or file a suit.

Related

• Incorrect ERC? IRS Point to Five Red Flags
• Non-Refundable vs. Refundable Tax Credits: What’s the Difference?
• IRS Restarts Processing of Some ERC Refunds