THE COUNSELOR - Forchelli Deegan Terrana Law
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Winter 2022// VOL. LXVIII
THE COUNSELOR
L ast Chance for Businesses to Claim
the Employee Tax Retention Credit
— Rachel L. Partain, Esq.
In March 2020, Congress created the Employee Retention Tax Credit (ERTC) to help prevent job
losses and wage reductions as a result of the pandemic. Under the CARES Act, employers that
were forced to suspend operations in full or in part as a result of COVID-19 governmental
orders or that experienced significant declines in gross receipts were eligible for the ERTC.
The ERTC is a credit that is claimed on employment tax returns for qualified wages paid to
employees.
Congress, the Treasury Department, and the IRS created a complex set of rules to determine
whether an employer is eligible for the ERTC and the amount of the ERTC available to an
employer. Also, the contours of the ERTC changed several times throughout the program. For Rachel L. Partain,
Partner
example, when the ERTC was first created, employers could not claim the ERTC if they
received a PPP loan. Since most businesses applied for PPP loans, many employers
disregarded the ETRC.
Subsequently, Congress expanded the ERTC to allow employers to claim the ERTC even if they had received a PPP
loan. However, employers cannot use the same wages for both PPP loan forgiveness and the ERTC. Congress made
this change retroactive to March 2020.
The ERTC ended on September 30, 2021 for most employers, although certain small businesses that were formed after
February 15, 2020 could claim the ERTC through December 31, 2021.
We are seeing that many employers have yet to take advantage of the ERTC for 2020 and 2021. Employers may file
amended returns if they were eligible for the ERTC but did not claim the credit on their originally-filed employment
tax returns. Generally, employers have three years from the date they filed their original employment tax returns or
two years from when they paid employment tax to file refund claims.
Employers will need to review the ERTC rules to determine whether they are eligible for the credit, focusing on how
government orders impacted their business operations and revenue. Employers who are in a position to file refund
claims should also try to maximize the amount of credit claimed on their amended returns. In particular, employers
with multiple businesses should determine whether the businesses are affiliated and treated as one employer under
the ERTC.
FDT’s Tax practice group provides guidance to businesses looking to take advantage of tax savings opportunities.
Please contact us if you have any questions.
EVENTS and SPEAKING ENGAGEMENTS
Awards and
attended the Harboring Hearts Lindsay Mesh Lotito attended
Recognition
Gerard R. Luckman participated Department’s NCPD Foundation’s
in St. John’s University School of Golf Outing cocktail reception. London Jewelers’ event
Inaugural Gala. supporting Rescue Paw
Law’s Student-Alumni Career Jeffrey D. Forchelli, Russell G.
Conference. He was a member of Tisman, Michael A. Berger, Foundation.
the Corporate, Securities, Richard A. Blumberg, Frank W.
Bankruptcy and Tax panel. Brennan, Lisa M. Casa, Michael
A. Ciaffa, Raymond A.
Castronovo, Andrew E. Curto,
Danielle B. Gatto, Nathan R.
Jones, Alexander Leong,
Jacqueline A. Rappel, Jonah H.
Blumenthal and Danielle E.
Gregory S. Lisi, Mary E. Tricolla attended the Nassau
Mongioi and Virginia A. County Bar Association’s Gerard R. Luckman was a guest FDT received its first “Best Law Firms” ranking. The firm
Kawochka attended the WE Judiciary Night 2021. speaker at the Nassau County Bar is included in the 2022 Edition of U.S. News – Best
CARE Fund of the Nassau Association’s Bankruptcy Law Lawyers’ “Best Law Firms” list as a Tier 2 firm on Long
Daniel P. Deegan hosted a County Bar Association’s 25th Jeffrey D. Forchelli attended the Island for Litigation – Labor & Employment.
breakfast meeting for the Long North Shore Historical Museum’s Committee meeting CLE,
Annual Golf & Tennis Classic. “Review of Small Business
Island Association’s Young Gala.
Professionals Committee. He is a Judy L. Simoncic, Andrea Reorganization Under Subchapter
Tsoukalas Curto, Gabriella E. Mary E. Mongioi, David J. V.”
member of the LIA’s Board of Borkon, Jeremy M. Musella,
Directors. Robert L. Renda is a Botticelli, Jessica A. Leis & Gregory W. Carman attended the
Danielle B. Gatto attended the Kelan C. Sullivan and Michael
member of the Committee. A. Berger attended NY Vet Expo Nassau County Village Officials
Collaborate with Edge Leadership Association’s 95th Annual
Conference Welcome Back in NYC.
Testimonial Dinner.
cocktail reception. Jonah H. Blumenthal
participated on a St. John’s Gregory S. Lisi attended the
Jeffrey D. Forchelli, James C. Nassau County Women’s Bar
Ricca, William F. Bonesso, University School of Law alumni
panel guiding current students Association’s Annual Holiday Gregory S. Lisi was honored by Schneps Media as an A
Gerard R. Luckman & Virginia Cocktail Party & Mitten
A. Kawochka and their spouses, on the transition from law school Lister, which recognizes extraordinary men from
to law practice. Fundraiser benefitting The Safe Manhattan to Montauk who make a difference in their
attended the Columbus Citizens Center LI.
Foundation’s 77th Annual Andrea Tsoukalas Curto & professions and communities.
Columbus Day Celebration in Jessica A. Leis hosted a Nassau Kathleen Deegan Dickson and
Raymond A. Castronovo was a Daniel S. Dornfeld presented,
panelist at the New England Real New York City. County Women’s Bar Foundation
fundraiser, “Fashion for a Cause,” “Zoning and Leasing
Estate Journal’s virtual event, Considerations for the Cannabis
“Cannabis Facilities & with image consultant and
branding expert Melanie Industry,” at the Commercial
Construction.” Industrial Brokers Society’s (CIBS)
Lippman. Judy L. Simoncic,
James C. Ricca was the honoree Nicole S. Forchelli, Virginia A. Lunch & Learn.
at, the Cleary School for the Kawochka, Kristina E. Sornchai,
Deaf’s 30th Annual Golf Classic. Lucy A. Miller and Lindsay
John V. Terrana, Lindsay Mesh Mesh Lotito participated.
Lotito, Kristina E. Sornchai,
Zachary J. Manasia, John P. Andrea Tsoukalas Curto
Gregory W. Carman attended the attended Bethpage Federal Credit Jeremy M. Musella was inducted into Long Island Business
Bues, Jennifer Menz and Lisa News’ 30 Under Thirty Class of 2021.
Coppola attended the dinner. Nassau County Village Officials Union’s 13th Annual Turkey
Association’s Dinner & Debate. Drive benefiting Island Harvest.
FDT’s Long Island General
Counsel Network (LIGCN) Andrea Tsoukalas Curto, Jessica
sponsored a virtual coffee tasting A. Leis, Brian W. Kennedy & Elbert F. Nasis, Daniel S.
networking event. FDT’s LIGCN Erik W. Snipas, and professionals Dornfeld and Brian W. Kennedy
is co-chaired by Joseph V. from various disciplines, attended the HIA-LI’s 44th
Cuomo and Lisa M. Casa. In presented a CLE, “Mock Board of Annual Meeting and Legislative
addition to Joe and Lisa, Kristina Appeals Hearing — A Zoning Program.
Perspective on Opening a Mary E. Mongioi was named a 2022 Crain’s New York
E. Sornchai and Lucy A. Miller Business’ Notable Women in Law honoree.
joined the tasting. Marijuana Retail Store.” Judy L.
Simoncic and Lindsay Mesh
Andrea Tsoukalas Curto & Lotito participated in the Zoom. Mary E. Mongioi, Michael A.
William F. Bonesso attended the Berger, Danielle E. Tricolla &
Nassau County Police Russell G. Tisman and his wife
RECENT SUCCESSES I #FirmAdvantage RECENT SUCCESSES: continued I #FirmAdvantage
abuts a preserve. The lot was unique opportunity for the methodologies from both the
and $225,000 project loan challenging to develop because
secured by commercial firm’s attorneys to attend leased fee and fee simple
it had been abandoned for educational property tax schools of thought,
condominium units located in several years and did not have
New York City and the assets lectures and stay on the supported by the actual
proper access or utility cutting edge of emergent real financial experience of the
of Borrower and Guarantors. LAND USE & ZONING connections. Mrs. Curto estate tax topics. The Firm subject property, and
BANKING & FINANCE Steven G. Gaebler negotiated Clients Peter Florey and Len garnered community support also supports the IPT’s boosted by comparable sales
James C. Ricca negotiated and and closed a $11,625,000 D’Amico, of D&F Development for these projects and mission by sponsoring the of similar stores in the area.
closed a $25,000,000 mortgage mortgage loan secured by Group, along with Islip Town addressed neighbor concerns Symposium annually. After extensive negotiations,
loan for an Institutional Lender property in Brooklyn on behalf Supervisor, Angie Carpenter, for a successful result in each Ms. Forchelli obtained a real
secured by an apartment of an Institutional Lender. cut the ribbon at the opening of case. estate tax benefit of more
complex in Stockbridge, Steven G. Gaebler and the Bay Shore Senior Residence than $160,000 for the client.
Georgia. Lindsay Mesh Lotito and LGBT Center.
Lindsay Mesh Lotito, on behalf negotiated and closed a
of New York Community Bank, $15,500,000 mortgage loan
Tax Certiorari
negotiated and closed a secured by property in Deer
$26,000,000 mortgage loan Park, New York on behalf of Real Estate John V. Terrana and Robert
secured by a mixed-use luxury Citibank, N.A. L. Renda represented a Tax, Trusts & Estates
apartment building in Jersey James P. Rosenzweig regional surgery center and
City, New Jersey. Rendering of Bay Shore Senior represented the Riese medical practice with offices The firm represented the
Residence & LGBT Center Organization, as landlord, in in Suffolk County. The client Sellers in negotiating a series
James C. Ricca closed on behalf connection with a Times
of Republic Bank a mortgage approached the firm of integrated contracts, and
This affordable housing Square Manhattan commercial concerned that the town may thereafter closing on the sale
loan secured by a commercial lease workout. The final
condominium unit located at
Litigation community is the first of its have been over-charging of a group of licensed
kind, offering a safe transaction involved the them. What Messrs. Terrana nursing home facilities, both
United Nations Plaza. collection of substantial rent
Danielle B. Gatto and Peter B. environment and housing for and Renda discovered was with respect to the business
Lindsay Mesh Lotito and Skelos were successful in LGBT seniors. Jessica A. Leis arrears and the creation of an excessive taxation by almost operations and conveyance
James C. Ricca negotiated and having the appellate division attended the event. Kathleen improved lease security 50%. In a pre-trial settlement, of the underlying real estate.
closed a $6,000,000 term loan dismiss one appeal and Deegan Dickson and Ms. Leis package to guaranty the firm recovered $330,000 The aggregate selling price
secured by the assets of otherwise affirm orders from worked to secure the project’s continuing cash flow to the for the client. was approximately
Borrower in conjunction with a the Queens County Supreme Suffolk County Dept of Health client. $83,000,000. This transaction
$6,000,000 unsecured revolving Douglas W. Atkins
Court, which, through the approvals, and Daniel P. James P. Rosenzweig prosecuted a property tax was handled almost
line of credit on behalf of an course of three separate Deegan secured financial negotiated and completed for completely by James P.
Institutional Lender. case against the Town of
decisions, granted our clients’ assistance and a PILOT on the Seller an eight-figure contract Islip on behalf of an Rosenzweig and Jonah H.
John P. Bues represented an motion to dismiss the entire project through the Town of of sale of a commercial automotive site owner. Mr. Blumenthal in coordination
Institutional Lender in closing case. In the action, the plaintiff Islip IDA. building located on lower Atkins argued that the town with Robert H. Groman. The
an $8,200,000 construction loan asserted causes of action Andrea Tsoukalas Curto Broadway in New York City. was misclassifying the use of sale included multiple 1031
to finance the construction of a against our clients for breach of obtained zoning approvals for The attorneys from the Tax the property as service tax compliant real estate
new medical marijuana contract, conversion and a two-lot subdivision of a Certiorari Department, instead of its actual use, exchanges that had to be
processing plant in New Jersey. intentional infliction of 2-acre estate in the Village of members of the Institute for storage. Additionally, Mr. coordinated with the closing
John P. Bues represented emotional distress, all of which Sands Point which was once Professionals in Taxation Atkins successfully argued of the sales. Mr. Rosenzweig
Hanover Community Bank in were dismissed with prejudice. owned by crooner Perry Como. (IPT), attended IPT’s annual that the assessed value was work with the 1031 qualified
successfully closing a Richard A. Blumberg and She also obtained approvals for Property Tax Symposium in well above market. The intermediary to design and
$6,500,000 loan secured by five Danielle B. Gatto were a two-lot subdivision in the Westminster, Colorado in result for the client was a implement a complex deal
(5) apartment buildings located successful, after an in-person hamlet of Glenwood Landing, November, 2021. IPT’s refund of $107,000. structure to ensure that the
in Brooklyn and the Bronx. hearing, in vacating a Town of Oyster Bay. In membership includes tax clients’ tax benefits were
Nicole S. Forchelli resolved preserved and their business
Steven G. Gaebler negotiated temporary restraining order addition, Ms. Curto obtained industry leaders across all a property tax matter for a
arising from a plaintiff’s claim variances and site plan classes of real estate: shopping expectations met.
and closed on behalf of Hanmi national department store
Bank a $18,375,000 acquisition of adverse possession over our approval for a new multi- malls, big box retail, senior chain relating to two of their
loan, a $2,400,000 building loan client’s property. million-dollar residence in the living, multi-family dwellings, properties in Upstate New
Village of Sands Point which etc. The Symposium is a York. Ms. Forchelli proffered
FIRM MENTIONS
Newsday • Andrew E. Curto was featured in Association Long Island
the “Ones to Watch Spotlight.” appointment was published. Gregory S. Lisi’s Nassau County Bar A ssociaton Presidential Recap
• Daniel P. Deegan was quoted in
the article, “Virus-fueled • Judy L. Simoncic, Kathleen • Gregory S. Lisi was featured
expansion.” Deegan Dickson, Andrea in LIBN’s WHO’s WHO in At the half way point of my term as President of the Nassau County
• Daniel P. Deegan was quoted in Tsoukalas Curto and Jessica A. Labor Law Special Section Bar Association (NCBA), I am proud of the growth we have had
the article, “Developer wins tax Leis were featured in the Women City & State New and impressed by the resilience of our members. Despite the
breaks for 72-unit apartment in Real Estate (WIRE) Spotlight. York challenges presented by COVID, we have increased membership
building in Westbury.” • Daniel S. Dornfeld was featured • Gregory S. Lisi was included for the first time in over a decade as well as put on programs that
in the Year in Review Spotlight. in Long Island Power 100. help the general public understand the Rule of Law, embrace
New York Real Estate Law360
diversity and inclusion, assist people being foreclosed upon and
Journal published: support people who still have legal issues after Hurricane Sandy
• Danielle E. Tricolla’s article, and other disasters. We have been able to assist attorneys who have
• Aaron Gershonowitz & Brian “Practical Considerations for
Kennedy’s article, “Land Use NY Cannabis Licensing,” was
returned to the profession after a long absence due to child rearing
and the Takings Clause of the included in Law360’s or disability and helped private companies deal with the ever-
United States Constitution.” Cannabis: The Top Law360 changing COVID rules and regulations. We provide a lawyer
• Rachel L. Partain’s welcome Guest Articles of 2021. referral service to help people who are in need of any attorney but
• Andrea Tsoukalas Curto’s announcement. Nassau Lawyer do not know what type of attorney they need, and provide a
participation in the Bethpage • John P. Gordon’s article, “Law: charitable arm for attorneys and others to give back to the
Federal Credit Union’s 13th • Peter B. Skelos, Jeffrey D. community. In 2022 we are setting up a victims rights panel and
Prevailing wage law for IDA Forchelli, Gregory S. Lisi,
Annual Turkey Drive benefitting projects goes into effect on Jan. 1, providing more opportunities for companies and individuals to get
Island Harvest was featured in the Lindsay Mesh Lotito, Robert
2022.” L. Renda and Danielle E. information on new Covid laws and regulations. We will also
“On Our Island: Non-Profit increase access to attorneys for questions by businesses and the
highlights of the week” section. • Judy L. Simoncic’s appointment Tricolla were featured in the
to Chair of the NCBA’s In Brief column. general public. Plus, we are reopening the restaurant for lunch and
• Daniel P. Deegan was quoted in Municipal Law and Land Use dinner/weekend catering at our beautiful building in Mineola. It
the article, “New plan for tool • Stephanie M. Alberts’
Committee. appointment to Co-Chair of has been a great honor to lead the nearly 5,000 attorneys of the
sites.”
• Zachary J. Manasia’s article, the NCBA’s Surrogate’s Court Nassau County Bar Association through a difficult and incredibly
Long Island Business “Blockchain Use Cases for Real Estates and Trusts Committee memorable year.
News Estate Transactions.” was published.
• Jeremy M. Musella’s 30 Under • Daniel S. Dornfeld & Gregory • John P. Gordon’s welcome
Thirty profile was published. W. Carman’s Page 2 column, announcement was published.
“Lease Considerations for Notable Appointments
• Daniel P. Deegan was mentioned • Judy L. Simoncic’s
in the article, “LI developer gets Cannabis Dispensaries – a Brief appointment to Chair of the
IDA assist for $26.9M Mineola Overview.” NCBA’s Municipal Law and
project.” Best Lawyers® Land Use Committee was
• Daniel S. Dornfeld was quoted in • Gregory S. Lisi and Danielle E. published.
the article, “Häagen-Dazs and Tricolla were listed in the 2021 • Mary E. Mongioi was named
Tombstone pizza distributor plans Business Edition: The Litigation a Crain’s New York Business’
new Hauppauge home.” Issue 2022 Notable Women in Law
• Judy L. Simoncic was featured in LI Herald honoree.
WHO’s WHO in Commercial & • Danielle E. Tricolla & Robert
Residential Real Estate Law • Daniel P. Deegan was
mentioned and quoted in the L. Renda’s promotions
Special Section. announcement was published.
article, “IDA mulls tax breaks for
New York Law Baldwin Commons; Affordable Wagner Magazine
Journal published: development takes step • Jeffrey D. Forchelli was Gregory W. Danielle E. Robert L. Renda Stephanie M. Gerard R.
• John P. Gordon’s welcome forward.” interviewed by his alma mater, Carman joined the Tricolla was was promoted to Alberts, Partner, Luckman was
announcement. Wagner College, for the story, promoted to Partner on January was appointed to
firm’s Land Use & elected President
• Danielle E. Tricolla, Robert L. “Back to Business: Seahawk Zoning, Litigation Partner on January 1, 2022. He is a co-chair of the of the Turnaround
Renda’s promotions business leaders tell us about and Cannabis 1, 2022. She is Co- member of the Tax firm’s Tax, Trusts Management
announcement. their COVID ‘new normal’.” practice groups as chair of the Certiorari practice & Estates practice Association’s
an Associate. Cannabis practice group. group. (TMA) Long Island
• Stephanie M. Alberts’ group and a Chapter.
appointment to FDT Tax, Trusts & member of the
Estates Co-Chair. Litigation practice
group.
New York Real Estate • Gerard R. Luckman’s
Journal Turnaround Management
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