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The Small Business Administration (SBA) has recently announced its intention to thoroughly audit all Paycheck Protection Program (PPP) loan recipients who received more than $2 million in federal funds, as well as some companies who received less. As a result, all companies who have received funds under the program must be prepared for the possibility of being audited. This includes understanding the types of issues that could potentially trigger liability under the CARES Act, the False Claims Act, and other federal statutes.
Among the key issues that are likely to cause problems for companies under the PPP include “loan stacking,” which is the act of obtaining multiple loans by submitting applications through multiple lenders. Misrepresenting information during the PPP loan application process is also a form of fraud that companies must be prepared to address during SBA audits. Additionally, fraudulently certifying the necessity of securing PPP funds, using PPP funds for ineligible business purposes, using PPP funds for fraudulent purposes, and committing fraud during an SBA audit by misrepresenting or concealing information can all lead to serious charges and potential criminal charges.
To prepare for the possibility of an SBA audit, companies should first collect the documentation used to support their PPP application and compile all pertinent records in a manner that allows for easy retrieval. They should also collect their post-application financial records, including documentation of the appropriate use of PPP funds. Additionally, it is important to re-assess whether the company met the PPP eligibility criteria at the time of application and currently meets the criteria. If not, companies may need to decide whether to return the funds and/or take other remedial action with the help of legal counsel.
Furthermore, companies should assess whether any of the other issues listed above are likely to lead to difficult questions in the event of an SBA audit and work with their company’s outside defense counsel to develop an effective audit defense strategy. To ensure that your company is not unnecessarily at risk in the event of an SBA PPP loan fraud audit, you should engage experienced defense counsel now, before the SBA makes an inquiry. This way, your company will be fully prepared to execute a proactive defense strategy focused on mitigating any potential liability.
The SBA is currently conducting an audit of every company that received a loan of $2 million or more under the federal Paycheck Protection Program. The PPP was part of a broader package related to the COVID-19 pandemic. There are strict eligibility requirements, and many companies obtained their loans illegally. When the PPP program was unveiled, it was flooded with applications. Its initial $349 billion allocation ran out very quickly. It was discovered that many companies applied for PPP loans, and were ineligible to receive the funds. Businesses that weren’t really struggling were getting loans. The program was intended to help companies with fewer than 500 employees, yet big chains like major steakhouses were getting multi-million dollar loans. These entities who shouldn’t have gotten the loan – were getting it, yet smaller businesses were unable to get funding.
These types of issues led to changes. Unlike traditional SBA loans, where the audit is done by the lending bank, PPP loan audits are conducted by the SBA directly. Congress allocated another $310 billion in late April.
In order to help business owners and lenders, the SBA issued a FAQ document with information that related to the program. The FAQ also provides guidance which extends beyond the PPP guidelines of the CARES Act. For example, in Question 46 – the SBA established a safe harbor for companies that received less than $2 million in stimulus funds. While the policy is that all companies who received more than $2 million under PPP will be audited, it’s also been mentioned that companies receiving smaller loans may be subject to spot checks for eligibility violations. In other words, all companies that received PPP loans must be prepared to face SBA audits – examining whether they satisfied the PPP requirements. All loan recipients have to be able to defend themselves against potential SBA audits alleging fraud under PPP.
Issues that may lead to liability in an SBA PPP Loan Fraud Audit
Because the SBA has stated it intends on auditing all PPP loan recipients that received more than $2 million in funds, all companies that received funds under the program must prepare for a potential audit. This starts with understanding what types of issues have the potential to trigger a potential criminal referral under the CARES Act, False Claims Act, and other federal statutes.
Loan Stacking: Under the PPP Companies are prohibited from obtaining multiple loans by submitting numerous applications via multiple lenders.
PPP Loan Application Fraud: Misrepresenting information during the loan application process is a form of fraud.
Fraudulent Loan Certification: One of the main issues the SBA will be examining during its audits is whether companies lied about the need of PPP funds.
Using PPP funds for Ineligible Purposes: PPP funds can only be used for payroll and other limited purposes.
Fraudulent Loan Forgiveness: When seeking repayment forgiveness under the PPP, companies have to submit documentation and certify that the documents are true, and they used the forgiveness amount for the correct purposes.
How to prepare for an SBA PPP Loan Audit
If you received a federal loan under the PPP, you should be prepared for the possibility of an SBA audit. It’s important to have complete documentation on how your company used the PPP loan to support the business. The information should be easy to retrieve in the event of an SBA audit. It’s important that you collect documentation demonstrating the company has met the PPP eligibility criteria requirement before submitting its application. If your company was not eligible at the time of the application, then you have to make a decision on whether to return the funds, or potentially hire an SBA fraud defense lawyer to help you.
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