Is it only if they have not sent an audit - or even those who are being audited can do the voluntary disclosure?
Q1. Who is eligible for the ERC-VDP? (added December 21, 2023)
A1. Businesses, tax-exempt organizations and government entities that are not under criminal investigation or notified that IRS intends to commence such an investigation are eligible to apply for ERC-VDP for each tax period that meets the requirements below:
Your ERC claimed on a Form 941, 941-X, 941-PR, 941-PR-X, 941-SS-X, 943, 943-X, 944, 944-X, CT-1, or CT-1-X has been processed and paid as a refund, which you have cashed or deposited, or paid in the form of a credit applied to the tax period or another tax period;
You're entitled to $0 ERC;
You're not under employment tax examination (audit) by the IRS;The IRS has not reversed or notified you of intent to reverse your ERC to $0;
For instance, if you received a notice or letter from the IRS disallowing your ERC, you are not eligible for ERC-VDP for the period(s) on that notice or letter. Disallowance Notices or Letters from IRS, if they indicate ERC disallowance, include but are not limited to:
Letter 950-D, Employment Tax 30 Day Letter
Letter 5376, Full/Partial Claim Disallowance
Letter 6362, COVID-19 Employer Credit Disallowance Letter for PPP Loan Recipient or Government Entity
Letter 6362-A, COVID-19 Employer Credit Disallowance for Third Party Payor reporting a Government Entity
Letter 905, Final Partial Claim Disallowance Letter
Letter 906, Final Full Claim Disallowance Letter
You have not reversed your ERC to $0:
For instance, if you previously filed an amended employment tax return to eliminate all of your ERC, you generally aren't eligible for ERC-VDP for the period(s) you amended. However, if you filed this amended employment tax return before December 21, 2023, IRS will review your ERC-VDP application on a case-by-case basis for eligibility into ERC-VDP.
IRS doesn't have information from a third party alerting us to your ERC noncompliance.
IRS doesn't have information directly related to your ERC noncompliance from an enforcement action.
Please note that if you willfully filed an employment tax return that fraudulently claimed ERC, or if you assisted or conspired in such conduct, filing for ERC-VDP will not exempt you from potential criminal investigation and prosecution.
If you're not eligible to participate in ERC-VDP:
Because your ERC has not been paid, you can still consider the ERC withdrawal process.
Because you can't repay your ERC-VDP liability, you're not approved for an installment agreement, or for any other reason, you can amend your incorrect returns and review other IRS payment options to pay back your full ERC.
