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PPP Loan Insights: Forgiveness Does Not Mean Forgotten – Part I

July 27, 2021

SBA Post-Form 3509/3510 Information Requests

PPP loan forgiveness image

We are still waiting for the “official” SBA FAQ announcing the withdrawal of the Forms 3509/3510 Loan Necessity Questionnaire (“Questionnaire”) that, according to the SBA, will include additional information about its review process. In the meantime, PPP lenders have been told by the SBA that they no longer are required to request that borrowers who obtained loans of $2 million or more complete the Questionnaire.

Seemingly coinciding with the withdrawal of the Questionnaire, however, the SBA has instead been requesting from many of these same borrowers additional information and documentation that typically includes some or all of the following:

  • Payrolls report for 2019, itemized with a line for each employee’s gross wages during the year. Reduction in excess wages above $100,000 annualized must either be included in the report as a column or, alternatively, the report can be in spreadsheet format so that the SBA can compute it.
  • Addendum A to the Borrower Application Form—a list of all businesses owned by or having common management with the Applicant or any owner of the Applicant, and a description of the relationship.
  • 2019 Form 1120-S.
  • Executed, final Form 941s for all quarters 2020.
  • Last three years of Federal Tax Income Returns.
  • Last three years of Income Statements.
  • Last three years of Balance Sheets.
  • All records relating to the Borrower’s PPP loan, including documentation submitted with its PPP loan application, documentation supporting the Borrower’s certifications as to the necessity of the loan request and its eligibility for a PPP loan, documentation necessary to support the Borrower’s loan forgiveness application, and documentation demonstrating the Borrower’s material compliance with PPP requirements.

The SBA is also indicating in these requests that “[t]he Borrower must retain all such documentation in its files for six years after the date the loan is forgiven or repaid in full, and permit authorized representatives of SBA, including representatives of its Office of Inspector General, to access such files upon request.”

This is a significantly broader information request than what was required by the Questionnaire and enables the SBA to extract from those documents much of the same type of information as was sought by Form 3509, although without an opportunity for the borrower to provide accompanying explanations. Of particular concern is the request for financial information for periods following the date of the borrower’s PPP loan application, plus the vague, and seemingly open-ended, request for documentation related to necessity and eligibility. As always feared, it appears that the SBA is viewing loan necessity in hindsight, based upon post-application events, rather than the uncertainties present at the time of application.

Recommendation: Whether or not your PPP loan has been forgiven at this point, if you are a “higher-risk” PPP borrower[1], we recommend that you (i) assemble the information listed above, (ii) fill out a Questionnaire, including comprehensive explanations and context where applicable (i.e., where the response on its own may be perceived as raising a “red flag” without additional information), although do not file it, and (iii), to the extent you have not done so, prepare a “PPP loan white paper” setting forth the reasons why, at the time of your PPP loan application, current economic conditions made obtaining the loan necessary to support your ongoing operations. You also may want to include a discussion of actual performance and need. While the focus of the discussion should be on the facts and circumstances leading up to applying for the loan through May 18, 2020 (i.e., the Safe Harbor Date, or, if the loan was applied for after that date, the date the loan proceeds were received), if your actual performance was better than expected, include an analysis of the reasons why the events leading to positive actual performance were not certain or known at the time of your PPP loan application.

In preparing your PPP loan white paper, consider the following:

  • Attorney-Client Privilege Protection. In order to have your PPP loan white paper subject to the protection of the attorney-client privilege, it should be prepared to provide your attorney with information required by them to provide you with legal advice. Dykema has developed a list of questions to help guide borrowers in the preparation of the PPP loan white paper.
  • Assistance of Advisors. The PPP loan white paper will include a significant amount of financial and legal analysis. Your accounting, financial and legal advisors can assist you in putting together the analysis and in reviewing and commenting on the analysis. Your advisors can assist you in a variety of other ways.

Stout has professionals that developed a list of more than 60 factors that they believe the SBA, and/or any other government entity, will likely analyze in making their own determination as to whether a borrower had a need for the PPP loan at the time of its loan application. Stout’s team then uses its independent analysis of those 60+ factors to identify any potential issues or red flags, and/or develop a comprehensive independent report analyzing your economic need for the loan at the time of the application that can be provided to the SBA or other government agency if the loan necessity is ever challenged.

Both Dykema and Stout have professionals on staff who have handled similar government reviews, both for the government in areas outside of PPP and against the government, and are able to apply that experience and knowledge to help you assess your position under the PPP. We also are able to provide other ad hoc assistance to meet the needs of our clients based on each client’s specific facts and circumstances, including cases where the SBA or other agencies challenge loan eligibility.

Watch for future PPP Loan Insights:

  • Forgiveness Does Not Mean Forgotten – Part II
    Ongoing SEC Disclosure Obligations
  • Forgiveness Does Not Mean Forgotten – Part III
    Preparing for Your SBA Audit
  • Forgiveness Does Not Mean Forgotten – Part IV
    Preparing for M&A/Financing Due Diligence Examinations
  • Forgiveness Does Not Mean Forgotten – Part V
    Preparing for Government Contract Reimbursement Audits

Please contact Alexis Schostak, Dykema, (248-203-0598); Tom Vaughn, Dykema, (313-568-6524); Jonathan Feld, Dykema, (312-627-5680); Steve Sahara, Stout, (312-763-6229); Jesse R. Morton, Stout, (678-573-2686); Steve Lovoy, Jr., Stout, (678-573-2685); or your regular Dykema attorney or Stout advisor. 


[1] Higher risk PPP borrowers include those that obtained a loan of $2 million or more, are publicly-traded, are private equity or venture capital firm owned, have foreign ownership, obtained a loan at or close to the maximum amount of $10 million, have a complicated corporate structure or have numerous affiliates.

As part of our service to you, we regularly compile short reports on new and interesting developments and the issues the developments raise. Please recognize that these reports do not constitute legal advice and that we do not attempt to cover all such developments. Rules of certain state supreme courts may consider this advertising and require us to advise you of such designation. Your comments are always welcome. © 2021 Dykema Gossett PLLC.