Skip to content

IRS Commissioner’s Warning: ERC Fraud on the Rise, Threatening Legitimate Businesses

    Published July 27, 2023 – The Employee Retention Credit (ERC) is a valuable tax incentive introduced by the Internal Revenue Service (IRS) to provide financial relief to businesses during challenging economic conditions. The ERC was initially established as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020 and has been extended and modified through subsequent legislation to support businesses amid the ongoing recovery from the COVID-19 pandemic.


    big paper with the letters erc representing the employee retention credit erc from the government in response to shutdowns and economic slowdowns

    The ERC is designed to encourage employers to retain their employees by providing a refundable tax credit for eligible wages paid during specific periods. To qualify, businesses must meet certain criteria, such as experiencing significant revenue declines or facing government-imposed restrictions due to the pandemic. The credit amount is based on a percentage of qualified wages, and businesses can claim it on their federal employment tax returns.

    In response to the increasing reports of fraudulent activities related to the ERC, IRS Commissioner Danny Werfel made a significant announcement during a recent press conference. He emphasized the urgency of curbing this fraud, which has been draining valuable resources and undermining the effectiveness of the ERC program in assisting deserving businesses.

    Commissioner Werfel outlined the impact of fraudulent claims on the nation’s economy, stating that the IRS has identified a surge in suspicious applications seeking to exploit the ERC. Such actions not only defraud the government but also jeopardize the financial stability of honest businesses that rely on this credit to survive and retain their workforce.

    With the IRS successfully clearing the backlog of tax returns and refund processing from previous years, the agency is now turning its attention to address the rising concerns regarding fraudulent claims of the ERC. Fraudsters have been exploiting vulnerabilities in the program, leading to significant financial losses and hindering the intended benefits for legitimate businesses.

    To effectively address this issue, the IRS is ramping up its efforts to detect and prevent fraudulent activities. The agency is investing in advanced data analytics and artificial intelligence tools to identify patterns and anomalies indicative of potential fraud. Moreover, they are working closely with other government agencies, such as the Small Business Administration (SBA) and the Federal Bureau of Investigation (FBI), to share information and collaborate on investigations.

    The IRS plans to implement new measures and a comprehensive outline to combat ERC fraud effectively. The main objectives of these measures are to enhance verification processes, identify suspicious claims promptly, and prevent fraudulent actors from taking advantage of the program. By strengthening controls and incorporating innovative technologies, the IRS aims to safeguard the integrity of the ERC program and ensure it fulfills its intended purpose of supporting businesses during times of economic hardship. The following sections will delve into the specific strategies the IRS aims to employ to achieve these objectives and protect the interests of honest businesses and taxpayers alike.

    Background and Current Status of the Employee Retention Credit

    The Employee Retention Credit (ERC) was introduced as a critical component of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which was signed into law in March 2020. The primary goal of the ERC was to provide much-needed financial assistance to businesses adversely affected by the COVID-19 pandemic and encourage them to retain their employees during the economic downturn. The ERC was specifically targeted at businesses that experienced significant revenue declines or were subject to government-imposed restrictions that resulted in a suspension or partial suspension of operations.

    Since its inception, the ERC has witnessed a substantial influx of claims submitted to the Internal Revenue Service (IRS). The IRS has received a staggering number of applications from businesses seeking to avail themselves of the credit to alleviate the financial burdens brought on by the pandemic. The surge in demand for the ERC prompted the IRS to streamline its processes to accommodate the high volume of applications and efficiently disburse funds to eligible businesses.

    Processing the overwhelming number of ERC claims posed significant challenges for the IRS, leading to some delays in refund disbursements. However, over time, the IRS has made notable progress in addressing the backlog of claims and streamlining the application process. By investing in technological advancements and increasing manpower, the IRS managed to expedite the processing of claims, ensuring that deserving businesses received much-needed financial relief in a timely manner.

    While the IRS made considerable strides in handling the large volume of legitimate ERC claims, this surge also exposed vulnerabilities in the system, leading to an increase in fraudulent activities. Fraudsters capitalized on the situation, submitting false or exaggerated claims to illicitly obtain tax credits they were not entitled to, thereby undermining the purpose and integrity of the ERC program. As a result, the IRS has recognized the urgency to implement new measures to curb Employee Retention Credit fraud effectively. The upcoming sections will delve into the specific strategies and measures the IRS plans to adopt to safeguard the ERC program and protect honest businesses from falling victim to fraudulent practices.

    Rising Concerns: Scammers and Misleading Marketing

    The IRS has noted a concerning trend in the percentage of legitimate Employee Retention Credit (ERC) claims submitted in recent months. While the initial surge in applications was largely from eligible businesses seeking genuine financial support during the pandemic, there has been a noticeable decline in the proportion of valid claims. This decline raises red flags and has prompted the IRS to investigate further to identify potential fraudulent activities.

    One of the contributing factors to the rise in fraudulent ERC claims is the proliferation of misleading marketing tactics employed by scammers. These unscrupulous individuals and entities have been advertising false promises of guaranteed ERC eligibility or inflated credit amounts, enticing businesses to submit questionable claims. As a result, many unsuspecting businesses, desperate for financial relief, have fallen prey to these deceptive schemes, unknowingly becoming part of the fraudulent activity.

    To counter the escalating fraudulent activities surrounding the ERC, the IRS is taking proactive measures to strengthen its compliance efforts. The agency is providing comprehensive training to auditors and tax specialists to equip them with the necessary knowledge and skills to identify high-risk claims accurately. By enhancing the capabilities of its workforce, the IRS aims to swiftly detect and investigate suspicious applications, ensuring that only deserving businesses receive the credit.

    The IRS’s Criminal Investigation (CI) Division plays a crucial role in combating Employee Retention Credit fraud. This specialized division is dedicated to investigating and prosecuting tax-related crimes, including fraudulent ERC claims. The CI Division collaborates with other law enforcement agencies to track down and apprehend individuals involved in fraudulent activities, sending a strong message that such actions will not be tolerated and will be met with serious consequences.

    As the IRS continues to refine its strategies and implement new measures, it remains committed to preserving the integrity of the Employee Retention Credit program. By addressing the rising concerns related to scammers and misleading marketing, the IRS aims to create a more secure environment for businesses to access the financial assistance they genuinely need and deserve during challenging economic times. The upcoming sections will explore additional approaches the IRS plans to adopt in its fight against ERC fraud, including enhanced verification processes and technological advancements to stay ahead of evolving fraudulent tactics.

    IRS’s Measures to Counter Scammers and Provide Clarity

    To tackle the rising concerns of Employee Retention Credit (ERC) fraud and provide businesses with better guidance, the IRS is taking steps to offer extra-legal clarity on ERC rules and eligibility criteria. By providing businesses with clearer guidelines, the IRS aims to minimize confusion and ensure that only qualified entities benefit from the credit. This additional clarity will help legitimate businesses understand their eligibility and claim the credit accurately while discouraging scammers from taking advantage of ambiguous rules.

    In an effort to address specific scenarios and potential ambiguities surrounding the ERC, the IRS plans to release a Legal Advice Memorandum (LAM) that will provide guidance on five distinct situations. These scenarios are commonly encountered by businesses, and the LAM will clarify how the ERC rules apply in each case. The goal is to create a comprehensive reference for taxpayers and tax professionals to better navigate the complexities of the ERC and ensure compliance with the program’s requirements.

    The IRS recognizes that supply chain disruptions have been a significant challenge for many businesses during the pandemic, affecting their ability to retain employees. To address this issue, the agency will offer clarity on how supply chain disruptions impact eligibility for the ERC. By clearly defining the requirements for qualification in such cases, the IRS aims to ensure that businesses genuinely affected by supply chain disruptions can avail themselves of the credit.

    With misleading marketing tactics and false promises becoming prevalent, the IRS is actively countering unscrupulous promoters who deceive businesses into submitting ineligible claims. By issuing clear guidelines and publicly addressing false claims made by such promoters, the IRS seeks to protect businesses from falling victim to fraudulent schemes and deter scammers from exploiting the ERC program.

    The IRS acknowledges the crucial role tax professionals play in assisting businesses with ERC claims. To support tax practitioners, the agency will provide guidance and resources to help them better understand the ERC rules and requirements. By empowering tax professionals with accurate information, the IRS aims to foster compliance and ensure that eligible businesses receive the credit promptly and accurately.

    The IRS acknowledges that many tax practitioners face challenges in identifying and addressing fraudulent ERC claims. To aid these professionals, the agency plans to establish channels for reporting suspected fraudulent activities and provide support in investigating such claims. By collaborating with tax practitioners, the IRS aims to build a strong defense against scammers and maintain the integrity of the ERC program.

    Through these comprehensive measures, the IRS is actively working to curb Employee Retention Credit fraud and protect businesses from falling victim to deceptive practices. By providing legal clarity, issuing guidance on specific scenarios, and supporting tax professionals, the IRS is enhancing the effectiveness of the ERC program in providing financial relief to businesses genuinely in need during these challenging economic times. The upcoming sections will explore additional strategies, including enhanced verification processes and the use of advanced technologies, that the IRS plans to implement to strengthen its defense against fraudulent activities.

    Consequences of Improperly Claiming the Employee Retention Credit

    Tax professionals who inadvertently assist businesses in improperly claiming the Employee Retention Credit (ERC) may face significant consequences. Scammers and unscrupulous promoters often attract clients with false promises of guaranteed credits or inflated amounts, leading tax professionals to unknowingly engage in fraudulent activities on behalf of their clients. This not only jeopardizes the reputation of the tax professionals but also exposes them to potential legal and ethical ramifications.

    Inadvertently assisting with fraudulent ERC claims diverts valuable resources and attention away from legitimate tax matters. The Internal Revenue Service (IRS) must allocate time and effort to investigate and address fraudulent activities, thereby hindering its ability to focus on essential tasks such as processing valid claims and providing support to honest businesses. As a result, tax professionals who unintentionally participate in fraudulent activities indirectly impact the IRS’s overall efficiency and its ability to provide assistance to those who genuinely need it.

    Businesses that knowingly or unknowingly file fraudulent ERC claims face severe risks and consequences. If the IRS identifies a fraudulent claim, the business may be required to repay the claimed credit amount along with applicable penalties and interest. Moreover, the business could be subject to additional penalties, fines, and even criminal charges, depending on the severity of the fraudulent activity. Such consequences not only lead to financial losses but also tarnish the reputation of the business, potentially leading to long-term negative impacts on its operations and relationships with stakeholders.

    The IRS is committed to thoroughly investigating suspected instances of ERC fraud, and businesses should be cautious of the potential follow-up actions that may arise from such investigations. If the IRS identifies inaccuracies or fraudulent activities in the ERC claim, the business will be subject to audits and further scrutiny. The process can be time-consuming and may require extensive documentation and cooperation from the business. Additionally, the business may face legal challenges and reputational damage, leading to decreased trust from customers, investors, and partners.

    Eligibility Period and Filing Deadline for the ERC

    The Employee Retention Credit (ERC) program comes with specific limitations on the period of eligibility during which businesses can claim the credit. As part of the IRS’s new measures to curb fraud, it is essential for businesses to understand the precise time frame within which they can qualify for the ERC. The eligibility period for the ERC begins on March 13, 2020, and extends until December 31, 2021. This means that eligible wages paid to employees during this period may be eligible for the credit.

    Eligible Period: March 13, 2020, to December 31, 2021
    The IRS has established a clear cut-off date for the eligibility period of the ERC. Businesses must ensure that their claimed wages fall within this timeframe to qualify for the credit. Any wages paid outside this period are not eligible for the ERC, and businesses should exercise caution to avoid erroneous claims.

    Extended Claim Deadline: Until April 15, 2025
    The IRS recognizes that businesses may need time to compile and submit accurate information for the ERC claim, especially amidst the challenges posed by the pandemic. In response to this, the IRS has extended the deadline for filing claims until April 15, 2025. This extended deadline provides businesses with ample time to carefully assess their eligibility, gather necessary documentation, and accurately submit their ERC claims.

    By imposing specific limitations on the eligibility period and providing an extended claim deadline, the IRS aims to ensure that businesses have sufficient time to comply with the program’s requirements without rushing their claims. This approach not only reduces the likelihood of erroneous claims but also minimizes the potential for fraudulent activities. Businesses should be aware of these critical dates and adhere to the guidelines to avoid penalties and ensure their ERC claims are legitimate and well-supported.

    As part of its efforts to counter fraudulent practices, the IRS is closely monitoring claims filed after the extended deadline. Any claims made after April 15, 2025, will be subject to heightened scrutiny and rigorous verification processes. The IRS encourages businesses to submit their claims promptly to avoid delays in processing and potential follow-up actions.

    The Impact of Misleading Marketing on the ERC

    The Employee Retention Credit (ERC) has become a prime target for misleading marketing tactics employed by scammers and unscrupulous promoters. These fraudulent entities exploit the desperation of businesses seeking financial relief during the pandemic, making false promises of guaranteed credits or exaggerated benefits. As a result, there has been a surge in misleading marketing campaigns that lure unsuspecting businesses into submitting improper ERC claims.

    The prevalence of misleading marketing has adverse effects on various stakeholders involved in the ERC program. Tax professionals, who act as intermediaries between businesses and the IRS, may unwittingly fall victim to false claims propagated by unscrupulous promoters. When tax professionals unknowingly assist businesses in submitting fraudulent claims, it not only exposes them to potential legal and ethical consequences but also diverts their attention from legitimate tax matters. As a result, the IRS must allocate valuable resources to investigate these fraudulent activities, diverting attention from other essential tasks, such as processing valid claims and providing support to honest businesses.

    Businesses that succumb to misleading marketing tactics and submit improper ERC claims also face significant negative consequences. In addition to potential penalties, fines, and reputational damage, businesses may find themselves at the center of IRS investigations, leading to audits and further scrutiny. These investigations are time-consuming and can disrupt business operations, leading to financial losses and reputational harm.

    While misleading marketing has shared negative consequences for tax professionals, the IRS, and businesses, promoters who engage in such activities often escape the immediate repercussions. These promoters may profit from the confusion and desperation of businesses seeking financial relief, and as a result, they may continue to perpetrate fraudulent schemes without immediate consequences.

    To address the impact of misleading marketing on the ERC program, the IRS plans to provide extra legal clarity on ERC rules and eligibility criteria. By offering clear guidelines and publicly addressing false claims made by unscrupulous promoters, the IRS aims to safeguard businesses from falling victim to deceptive marketing tactics. Additionally, the IRS’s enhanced compliance efforts, including training auditors to identify high-risk claims and collaborating with the Criminal Investigation Division, will help deter scammers and protect the integrity of the ERC program.