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ERC Audit Penalties: Understanding the Risks

Understanding ERC Audit Penalties

The Employee Retention Credit (ERC) was a valuable lifeline for businesses during the COVID-19 pandemic, but now, the IRS is cracking down on potential abuse through increased audits. If your business claimed the ERC, you may wonder – what are the penalties if you get audited and the IRS reduces or denies the credit? The stakes, can be high.

Common Penalties

The most common penalty is a 20% accuracy-related penalty. So, if your ERC is reduced by $10,000, you’ll owe $2,000 on top of repaying the excess credit.3 But, things escalate quickly, if the IRS asserts you committed civil fraud.

Civil Fraud Penalty

The penalty skyrockets to a whopping 75% of the disallowed amount. Using our example, your penalty would be $7,500 instead of $2,000.3 The IRS has a high bar for civil fraud – they must show you intentionally evaded taxes you knew you owed. Red flags include:

  • Claiming the ERC despite clearly not meeting eligibility
  • Using sham companies or false employees to multiply the credit
  • Fabricating documentation to support a larger credit3

Criminal Penalties

In extreme cases of deliberate fraud, the IRS may pursue criminal prosecution, which is very rare but devastating:

  • Up to $100,000 in fines for individuals ($500,000 for corporations)
  • Up to 5 years in prison3

Accurately claiming only what you’re entitled to is critical to avoid such severe consequences.

Failure-to-Deposit Penalty

Another risk is the failure-to-deposit penalty. If you initially claimed the refundable ERC but are later denied, the disallowed portion becomes an underpayment of payroll taxes. The penalty is 2-15% of the underpaid amount, depending on lateness.3 However, the IRS may waive this if you show reasonable cause.

Statute of Limitations

The IRS typically has 3 years from your filing to assess accuracy and civil fraud penalties. But, there’s no statute of limitations on criminal prosecution for tax fraud – they can pursue charges at any time if deliberate evasion is suspected.2

Christine Twomey
Christine Twomey
2024-03-21
Just had my Divorce case settled 2 months ago after having a horrible experience with another firm. I couldn’t be happier with Claire Banks and Elizabeth Garvey with their outstanding professionalism in doing so with Spodek Law Group. Any time I needed questions answered they were always prompt in doing so with all my uncertainties after 30 yrs of marriage.I feel from the bottom of my heart you will NOT be disappointed with either one. Thanks a million.
Brendan huisman
Brendan huisman
2024-03-18
Alex Zhik contacted me almost immediately when I reached out to Spodek for a consultation and was able to effectively communicate the path forward/consequences of my legal issue. I immediately agreed to hire Alex for his services and did not regret my choice. He was able to cover my case in court (with 1 day notice) and not only was he able to push my case down, he carefully negotiated a dismissal of the charge altogether. I highly recommend Spodek, and more specifically, Alex Zhik for all of your legal issues. Thanks guys!
Guerline Menard
Guerline Menard
2024-03-18
Thanks again Spodek law firm, particularly Esq Claire Banks who stood right there with us up to the finish line. Attached photos taken right outside of the court building and the smile on our faces represented victory, a breath of fresh air and satisfaction. We are very happy that this is over and we can move on with our lives. Thanks Spodek law 🙏🏼🙏🏼🙏🏼🙏🏼🙌🏼❤️
Keisha Parris
Keisha Parris
2024-03-15
Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.
Taïko Beauty
Taïko Beauty
2024-03-15
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!
Anthony Williams
Anthony Williams
2024-03-12
Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.
Loveth Okpedo
Loveth Okpedo
2024-03-12
Very professional, very transparent, over all a great experience
Bee L
Bee L
2024-02-28
Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.
divesh patel
divesh patel
2024-02-24
I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Mitigating Penalties

The best defense is thorough documentation proving your ERC eligibility:

  • Evidence of the required revenue decline in 2020/2021
  • Proof employees were retained but not working
  • Records of wages paid during eligible periods3

Promptly responding to IRS inquiries about your claims is crucial. If you get an audit notice, contact a tax professional immediately. They can help make the strongest case to avoid penalties.3 If the audit does reduce your eligible ERC, consider amending your return before the IRS formally asserts penalties. This may help avoid accuracy penalties, though not fraud penalties.3

Red Flags and Schemes

The IRS has identified numerous schemes wrongly obtaining ERC credits. Signs a so-called “expert” may be selling you an improper strategy:

  • Claiming eligibility for credits far exceeding payroll
  • Using sham companies or false employees
  • Advising you to fabricate documentation
  • Charging exorbitant contingency fees based on the credit3

Stick to reputable tax professionals with legitimate strategies for maximizing credits legally. If it seems too good to be true, it likely is.

Getting Help

Are you stressed about ERC penalties? Want to disclose mistakes or fraud? Facing an audit? Need penalty abatement help? Reach out to a tax professional through TaxCure for guidance based on your situation.5 At Spodek Law Group, our tax attorneys deeply understand ERC complexities. We can review returns, guide you through audits, and fight for penalty relief. Don’t go it alone – contact us for the strongest defense against crippling ERC audit penalties. Call us today at 212-210-1851 or schedule a free consultation online. 

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