The Tax Refund Guarantee is an optional “add-on service” that EZ-ERC may offer to an EZ-ERC Client (“Client”) to provide financial protection (in the form of a guaranty or third-party insurance as discussed below) for their employee retention credit (“ERC”) claim(s). Should the Internal Revenue Service (“IRS”) assess an unfavorable “Adjustment Amount” (defined below), the Tax Refund Guarantee allows a Client to still receive and/or maintain their ERC claim.
Under the Tax Refund Guarantee, an Adjustment Amount is any amount of any ERCs applied for with EZ-ERC’s assistance that have been denied or required to be returned to the IRS due to the IRS concluding that the Client was not an “eligible employer” for all or a portion of the ERC claim period.
The Adjustment Amount is equal to the total unfavorable IRS adjustment(s) less: (i) all fees owed to EZ-ERC and/or affiliated entities; and (ii) a retention equal to 10% of the ERC. The retention is akin to a “deductible” that you might encounter on an insurance policy.
The Adjustment Amount includes any penalties or interest on penalties imposed or assessed by the IRS, provided such penalties and interest do not cause the Adjustment Amount to be greater than the total ERC claim. In general, such penalties should be capped at 20% of the ERC claim; and therefore, safe to expect that penalties and interest on such penalties should not cause the Adjustment Amount to be greater than the ERC claim.
The Tax Refund Guarantee does not protect you against adjustments due to: (i) legislative changes after the Tax Refund Guarantee is issued; (ii) omission, untrue or inaccurate information provided by Client or their representatives; (iii) inconsistent treatment or reporting by Client (e.g., failure to make necessary income tax adjustments); (iv) fraudulent or criminal conduct of Client; (v) administrative errors made by the IRS or U.S. Postal Service in calculating, processing, and delivering the physical refund checks; and (vi) failure to properly notify EZ-ERC of the proposed adjustment(s).
The Tax Refund Guarantee expires on the date the statute of limitations lapses for the IRS to examine your amended payroll tax filing. For calendar year 2020 quarters, this date is April 15, 2024. For the first and second quarters of 2021, this date is April 15, 2025. For the third and fourth quarters of 2021, this date is April 15, 2027.
Qualifying EZ-ERC Clients may be offered the Tax Refund Guarantee at the time the Client Engagement Letter (“CEL”) is executed (with limited exceptions after the CEL is executed, but in all cases, before the ERC Claims are remitted to the IRS).
EZ-ERC will evaluate Client’s industry, potential or actual ERC amount, and the availability and sufficiency of certain source documentation to evaluate whether a particular Client may qualify for the Tax Refund Guarantee. In the event EZ-ERC offers the Tax Refund Guarantee to a Client prior to signing the CEL and later determines that Client is no longer qualified (i.e., after conducting functional interviews with Client and retrieving additional data), Client will reserve the right to cancel EZ-ERC’s CEL in full, or otherwise come to a mutually agreed upon path forward.
For Clients that EZ-ERC does not prequalify for the Tax Refund Guarantee at the time the CEL is signed, EZ-ERC reserves the right to offer the Tax Refund Guarantee at a later date.
If EZ-ERC offers the Tax Refund Guarantee at the time the CEL is signed, EZ-ERC will offer a combined fee of 20% – 25%, which includes EZ-ERC’s regular scope of ERC consulting services, as well as the Tax Refund Guarantee. The 20% fee will apply to Client opting to pay EZ-ERC’s fees due in full at the time the ERC Claims are remitted to the IRS. The 25% fee will apply to Clients seeking to defer EZ-ERC’s fees until the time the IRS processes their refund checks.
To the extent that the Tax Refund Guarantee is offered after the CEL is signed, the Tax Refund Guarantee fee may vary from 8 – 12%, depending on the specific Client facts and circumstances, and will be incremental to the Fee Option selected pursuant to the traditional CEL.
The Tax Refund Guarantee is not a regulated insurance product, but rather a financial guarantee.
Generally, the Tax Refund Guarantee will be issued by Waverly Guaranty LLC, an affiliate of EZ-ERC, which is backed by Waverly Risk Advisors Corp, a licensed and regulated insurance company in the State of Delaware that carries sufficient capital reserves, as determined by a third-party actuary.
At EZ-ERC’s option, the Tax Refund Guarantee may be substituted for a tax insurance policy issued by Certa Insurance, the tax insurance division of Lloyd’s of London, which maintains an A+ (Strong) credit rating from Standard & Poor’s.
To the extent EZ-ERC substitutes the Tax Refund Guarantee with a tax insurance policy from Certa, EZ-ERC will ensure each respective Client receives the equivalent risk coverage and outcomes that would otherwise be provided through the Tax Refund Guarantee (i.e., the Adjustment Amount will be computed in an equivalent manner).
No. The Tax Refund Guarantee is not the same as EZ-ERC’s E&O professional liability insurance or similar products. While we are aware of some ERC service providers claiming that their E&O policies will cover a Client’s financial losses related to their ERC claims, we believe these claims to be misleading (particularly in light of these service providers advertising that their services are 100% risk free as a result of those policies).