The IRS defines voluntary disclosure as “a way for taxpayers with previously undisclosed income to contact the IRS and resolve their tax matters.” It’s their way of offering remiss taxpayers the opportunity to mitigate potential penalties.

This new program refers specifically to the COVID-era Employee Retention Credit (ERC). If you claimed and received the Employee Retention Credit (ERC) for 2021 tax periods, but you are, in fact, ineligible, you will need to repay the credit. The Voluntary Disclosure Program, or VDP, may be your chance to regroup.

An analysis conducted by the IRS found that a whopping 60% to 70% of applications for the ERC show an unacceptable “level of risk.” This is IRS lingo for claims they believe have a high likelihood of being ineligible for the credit. Tens of thousands of these are slated to be denied in the coming months. This high percentage of erroneous filings has inspired the IRS to temporarily reopen the Voluntary Disclosure Program and give businesses the chance to repair or retract their improperly filed claims to avoid potential civil penalties, audit costs and possible litigation.

Round two of the Voluntary Disclosure Program (VDP) was launched on August 15, 2024 and will close soon – on November 22, 2024​. The VDP offers a 15% discount on the repayment of a claimant’s errant claim and the opportunity to avoid penalties, audits, or fees associated with that incorrect claim.

The IRS is marketing this “discount” as defraying the high expenses that many businesses needed to pay their (overly aggressive) advisors or promoters in order to get the ERC in the first place. Couched in another way, the IRS is willing to pay 15% of the claim in order to get their hands on the other 85% and to get the business to rat on the promoters of ineligible claims.

The first ERC VDP earlier this year offered a more generous 20% discount, but that offer is gone. If a taxpayer believes that it is eligible for the ERC, but wants to recalculate to claim a different amount, it will have to file an amended return to report that reduced amount.

Only those who have claimed ERC for 2021 (not 2020) and have received the refund or the credit against their employment taxes, are eligible to take advantage of VDP 2.0. If a claimant has already received an IRS “clawback” notice demanding repayment, they’re out of luck. If they are in the middle of an employment tax exam for the credit period or are under criminal investigation, they have also lost their chance. When a claimant is accepted to the Voluntary Disclosure Program, they must execute a closing agreement explicitly stating that they are not entitled to the ERC – and the IRS doesn’t stop there. In its efforts to identify potentially abusive ERC promotors, the claimant will have to provide the names and contact information of the preparer or advisor who helped them submit the claim.

If you’ve applied for the ERC but have not yet received a credit or refund or have received a check but have left it uncashed, then you are not eligible for this program. Instead, the IRS offers a withdrawal process. This process effectively reverses your claim, treating it as if it was never filed. The IRS will graciously hold back from imposing penalties or interest as well. However, you won’t get the 15% “discount.” To date, the claim withdrawal process has led to more than 7,300 entities withdrawing $677 million.

The IRS continues hunting for erroneous or fraudulent ERC claims and has already mailed out thousands of letters disallowing unpaid ERC claims to businesses in these last few months. This deluge of letters represents more than $1 billion in ERC claims.

It is interesting to note that the IRS seems to be targeting only those that have already received their credits. For many businesses that have already received (and in most cases, spent) the monies, it would be very hard to part with what they already have in hand.

Do you need to rethink your ERC claim? Was your preparer above board? Was he or she knowledgeable about your business and informed about ERC qualifications? Was your eligibility based on “general supply chain disruptions?”

Our recent experience handling numerous ERC audits have shown us that the IRS has been operating under a policy of “deny first, ask questions later.” Your claim may deserve a revisit, and the Voluntary Disclosure Program may be your return ticket to proper compliance.

This material has been prepared for informational purposes only, and is not intended to provide or be relied upon for legal or tax advice. If you have any specific legal or tax questions regarding this content or related issues, please consult with your professional legal or tax advisor.