When the PPP program was first created, it was meant to assist business left struggling by the Covid-19 pandemic. One of the key provisions of the program, was that the Small Business Administration (SBA) would guarantee the loan which meant that borrowers could secure loans more easily. As mentioned in a previous blog, the government in the spring of 2020 started to go after the most egregious and problematic PPP loan applications and payments and really ramped up prosecutions.
But now, the DOJ, IRS, SEC etc are shifting their focus to more complex investigations. We have clients where the government is scrutinizing every aspect of the loan application such as
-was the box checked stating that you only had one entity
-were the necessity calculations correct
-were the payroll calculations correct
-was there an EIDL advance?
-was number of employees not correct due to using 1099s?
When applying for a PPP loan, you sign and certify that “the funds will be used to retain workers and maintain payroll; or make payments for mortgage interest, rent, utilities, covered operations expenditures, covered property damage costs, covered supplier costs, and covered worker protection expenditures as specified under the Paycheck Protection Program Rules; I understand that if the funds are knowingly used for unauthorized purposes, the federal government may hold me legally liable, such as for charges of fraud.”
The SBA is now auditing every loan worth over $2 million. Since you certify on the loan application: “I understand that loan forgiveness will be provided for the sum of documented payroll costs, covered mortgage interest payments, covered rent payments, covered utilities, covered operations expenditures, covered property damage costs, covered supplier costs, and covered worker protection expenditures, and not more than 40% of the forgiven amount may be for non-payroll costs. If required, the Applicant will provide to the Lender and/or SBA documentation verifying the number of full-time equivalent employees on the Applicant’s payroll as well as the dollar amounts of eligible expenses for the covered period following this loan.” It is easy for the government to try and not forgive the loan/pursue a civil judgement/pursue criminal charges.
Criminal charges can include:
18 USC § 1001 false statements
18 USC § 1014 loan fraud
18 USC § 1344 bank fraud
18 USC § 1341 mail fraud
18 USC § 1343 wire fraud
But also can include
18 USC § 1028A aggravated identity theft
(Please see, for example, Parallax SEC Complaint)
The government can also use the False Claims Act to enforce settlements relating to PPP loan issues. In January 2021, the DOJ announced its first civil settlement stemming from PPP loan fraud against SlideBelts, Inc., a California company who agreed to pay $100,000 in damages and penalties for making a misrepresentation in its application about its involvement in a bankruptcy proceeding among other things.
If the bank is asking a lot of questions about your PPP loan or application for forgiveness, or if the situation has been referred to the fraud department, call and seek a legal consultation with us here at Conaway & Strickler or contact us here.