“Certification Safe Harbor” for PPP Loans Under $2m

The Treasury announced today that PPP borrowers with less than $2 million in loans are automatically deemed to have made the financial-necessity certification on the loan application in good faith. Treasury also somewhat softened its rhetoric towards those businesses that have borrowed more than $2 million, noting that while they will not automatically be deemed to have made the certification like the under $2m loans, they can show an “adequate basis” for making the certification under prior SBA guidance based on their individual facts and circumstances. The announcements were issued via FAQ No. 46 (available here).

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.