Updated FAQ: PPP Loan Certification Review

更新日期:2020年5月14日 - An additional extension has been granted until May 18 for companies to return their PPP loan if there is any question that the certification was made in “good faith.” The article below reflects the new extension.

On 2020年5月13日, the Small Business Administration (SBA) and the U.S. Treasury updated their FAQs to reflect how they would be reviewing the certifications made pertaining to 薪水保障计划 (PPP) loans.

这两个国家.S. Treasury and the SBA have been communicating their position over the past few weeks that companies receiving funding under PPP should review their certification that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.结果是, an additional extension was granted until May 18 for companies to return the loan if there was any question that the certification was not made in “good faith.”

The new FAQ (question 46 specifically) provides some clarity on how the good-faith certification will be applied. It provides a safe harbor for companies with loans under $2 million providing that they will be deemed to have made the certification in good faith. The FAQ also clarifies that if the borrower repays the loan after getting notification from the SBA, administrative enforcement will not be pursued.

你可以 read the entire FAQ by clicking here. Question 46 can be found in its entirety below:

46. 问题: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

答: 提交PPP申请时, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.“小企业管理局, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, 连同其附属公司,²⁰ received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. 除了, 考虑到大量的PPP贷款, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

重要的是, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, 以及其他适当的PPP贷款, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for 贷款宽恕. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

²⁰ 为了这个安全港, a borrower must include its affiliates to the extent required under the interim final rule on affiliates, 85 FR 20817(4月15日, 2020).

²¹ 问题46发布于2020年5月13日.