Five Stories That Matter in Michigan This Week – November 24, 2023

  1. Michigan Minimum Wage Set for Small Increase for 2024

Michigan’s minimum wage is set to increase on January 1, 2024, per the Improved Workforce Opportunity Wage Act of 2018 which establishes the annual schedule of increases. The minimum hourly wage will increase to $10.33 per hour; the 85% rate for minors aged 16 and 17 will increase to $8.78 per hour; the tipped employee rate of hourly pay increases to $3.93 per hour; and the training wage of $4.25 per hour for newly hired employees ages 16 to 19 for their first 90 days of employment remains unchanged.

Why it Matters: As we approach the new year, t’s important to be aware of new laws, and changes to existing laws, that are set to take effect as of January 1, 2024. Contact us with any questions.

———

  1. Streamline Corporate Transparency Act Reporting with a FinCEN Identifier

The Financial Crimes Enforcement Network (FinCEN), announced and elaborated on the use and availability of FinCEN identifiers. Under this new guidance, FinCEN identifiers may be crucial for business owners, particularly for those managing multiple entities.

Why it Matters: A FinCEN identifier is a unique number assigned by FinCEN to individuals and reporting companies, streamlining the reporting process under the CTA. Businesses will need to be prepared come 2024 for the new reporting requirements. Learn more from your Fraser Trebilcock attorneys.

———

  1. Michigan Cannabis Sales Exceed $262 Million in October

Cannabis sales surpassed $262 million in October, via the monthly report from the Michigan Cannabis Regulatory Agency. Michigan adult-use sales came in at $258,474,612.51, while medical sales came in at $4,416,590.58, totaling $262,891,203.09.

Why it Matters: Marijuana sales remain strong in Michigan, particularly for recreational use. However, there still are significant concerns about profitability and market oversaturation that the industry is contending with.

———

  1. Package of Clean Energy Bills Head to Governor’s Whitmer’s Desk

A package of bills, including one that would require companies to make 100% of their energy through renewables such as solar and wind by 2040, and also seeks to reduce energy waste, among other objectives, is on its way to Governor Whitmer’s desk for signature after passing both the Senate and House.

Why it Matters: Clean energy legislation is a major priority for Michigan Democrats but is opposed by Republicans and has received pushback from many business groups, who argue the legislation would increase energy costs.

———

  1. CRA Issues Bulletin for Product Recall

On November 20, the Cannabis Regulatory Agency (CRA), issued a bulletin for a voluntary product recall, after it was discovered that the product exceeds the maximum dosage of 10mg of THC per serving.

Why it Matters: It is important for cannabis producers to adhere to the rules and regulations when handling medical and adult-use cannabis, otherwise they can face product recalls and fines and/or penalties.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Business & Tax | Robert Burgee
Cannabis Law | Sean Gallagher
Energy, Utilities & Telecommunication | Sean Gallagher

Streamline Corporate Transparency Act Reporting with a FinCEN Identifier

While much has already been written about the Corporate Transparency Act of 2021 (“CTA”) – under which the vast majority of companies and other entities will have a reporting requirement at some time in 2024 – not a lot has been published regarding the actual mechanisms through which those reports will be made.

The Role of FinCEN Identifiers

This month, however, the Financial Crimes Enforcement Network (FinCEN), announced and elaborated on the use and availability of FinCEN identifiers. Under this new guidance, FinCEN identifiers may be crucial for business owners, particularly for those managing multiple entities. A FinCEN identifier is a unique number assigned by FinCEN to individuals and reporting companies, streamlining the reporting process under the CTA.

Simplifying Reporting for Individuals

Individuals can apply for a FinCEN identifier, providing all necessary information required in the initial report. Once an individual obtains this identifier, they can then provide it to any reporting company. The reporting company, in turn, can use this identifier number in their reports instead of the detailed information otherwise required, making the process more efficient.

Updating Information

A critical aspect of maintaining a FinCEN identifier is the obligation of the individual to keep information current. If there’s any change in the information provided by an individual for their FinCEN identifier, they must submit an updated application within 30 calendar days of the change. Similarly, if initial information was inaccurate, a corrected application is required within 30 days of becoming aware of the inaccuracy.

Conclusion

For serial entrepreneurs and those overseeing multiple business entities, obtaining a FinCEN identifier is a strategic move to streamline the reporting process under the Corporate Transparency Act. For reporting companies, requiring beneficial owners to obtain, report, and maintain their own FinCEN identifier number could be part of a policy to shift the reporting obligation to the beneficial owner when their information changes.

You can learn more about FinCEN identifiers pursuant to the final rule FinCEN recently published on the topic. The identifier process not only simplifies compliance but also ensures that all required information is accurately and efficiently communicated to FinCEN. If you have any questions, or require assistance, please contact Fraser Trebilcock attorney Bob Burgee.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.


Robert D. Burgee is an attorney at Fraser Trebilcock with over a decade of experience counseling clients with a focus on corporate structures and compliance, licensing, contracts, regulatory compliance, mergers and acquisitions, and a host of other matters related to the operation of small and medium-sized businesses and non-profits. You can reach him at 517.377.0848 or at bburgee@fraserlawfirm.com.

Five Stories That Matter in Michigan This Week – November 17, 2023

  1. Withdrawing Your Employee Retention Credit Claim: Navigating the New IRS Process

The ERC is a refundable tax credit intended for businesses that kept employees on their payroll while facing economic hardships caused by the pandemic. However, not long after its introduction, issues surfaced. Some businesses, influenced by the aggressive marketing of ERC promoters, have filed claims without fully meeting the eligibility criteria, leading to a slew of inaccurate claims.

Why it Matters: In order to provide a safe harbor to those entities that may have filed such false or inaccurate claims, the IRS has established a new withdrawal process. This measure is designed to aid businesses in re-evaluating the accuracy of their ERC claims and wish to avoid the penalties and other complications of incorrect filings. Learn more from your Fraser Trebilcock attorney.

———

  1. CRA Suspends Licenses of Medical and Adult-Use Marijuana Processor

On November 15, the Cannabis Regulatory Agency (CRA) suspended the medical and adult-use marijuana processor licenses of Michigan Investments 10, Inc, after it was determined that both businesses violated various administrative rules.

Why it Matters: After onsite inspections and reviews of the statewide monitoring system (Metrc) data, the CRA discovered that the businesses incorrectly entered data into the monitoring system and failed to properly track large quantities of product as well as other violations.

———

  1. CRA Publishes October 2023 Data: Average Price Hovers

Per data released by the Cannabis Regulatory Agency (CRA), the average retail price for adult-use sales of an ounce of cannabis in October was $97.62, a decrease from $100.14 in September. This is still a decrease from October 2022, where the average price was $102.65.

Why it Matters: While the prices of cannabis and cannabis-related products continue to decrease and make consumers happy, growers on the other hand are seeing profits decrease resulting in them seeking ways to halt new licenses to be granted in an effort to steady prices. Contact our cannabis law attorneys if you have any questions.

———

  1. Package of Clean Energy Bills Head to Governor’s Whitmer’s Desk

A package of bills, including one that would require companies to make 100% of their energy through renewables such as solar and wind by 2040, and also seeks to reduce energy waste, among other objectives, is on its way to Governor Whitmer’s desk for signature after passing both the Senate and House.

Why it Matters: Clean energy legislation is a major priority for Michigan Democrats but is opposed by Republicans and has received pushback from many business groups, who argue the legislation would increase energy costs.

———

  1. Corporate Transparency Act Takes Effect January 1, 2024

The federal Corporate Transparency Act (the “CTA”) takes effect on January 1, 2024. It will require many companies, including small businesses, to report certain beneficial ownership information to the Financial Crimes Enforcement Network, which is a division of the Treasury Department. We previously summarized key aspects of the CTA in a post on our blog, which you can find here.

Why it Matters: Willful failure to file an initial or updated report with FinCEN is subject to a $500/day fine (up to $10,000) and imprisonment for up to two years. If you have any questions about your compliance obligations, filing deadlines, or any other questions, please contact your Fraser Trebilcock attorney.

Related Practice Groups and Professionals

Business & Tax | Robert Burgee
Business & Tax | Paul McCord
Cannabis Law | Sean Gallagher
Energy, Utilities & Telecommunication | Sean Gallagher

Withdrawing Your Employee Retention Credit Claim: Navigating the New IRS Process

During the COVID-19 pandemic, the Employee Retention Credit (ERC) was seen as financial lifeline for many businesses who were faced with government-mandated shutdowns and significant revenue losses. However, clouded by the prospect of lucrative government benefits and a confusing set of requirements, many employers filed inaccurate, maybe even false claims – often as a result of aggressive marketing tactics. In order to provide a safe harbor to those entities that may have filed such false or inaccurate claims, the IRS has established a new withdrawal process. This measure is designed to aid businesses in re-evaluating the accuracy of their ERC claims and wish to avoid the penalties and other complications of incorrect filings.

Background on the ERC and Emerging Problems

The ERC is a refundable tax credit intended for businesses that kept employees on their payroll while facing economic hardships caused by the pandemic. However, not long after its introduction, issues surfaced. Some businesses, influenced by the aggressive marketing of ERC promoters, have filed claims without fully meeting the eligibility criteria, leading to a slew of inaccurate claims. Even in the months and years since the effects of the pandemic have subsided, these promoters continue with their aggressive marketing on TV, radio, spam emails and robocalls.

The IRS reports approximately 3.6 million claims have been made, and the process has been marred by concerns over compliance. Earlier this year the IRS included the ERC on it “Dirty Dozen” list – a list of the worst tax scams for businesses and individuals to be aware of. The IRS has become increasingly concerned by the growing number of illegitimate claims and messaging pushed by some promoters claiming, “anyone can qualify.” Consequently, in September 2023, the IRS imposed a moratorium on processing new ERC claims, and has initiated an intense audit process, with hundreds of criminal investigations targeting dubious filings and deceptive promoters. As a safeguard, a withdrawal process has been introduced, allowing employers to retract improperly filed claims before they lead to unwanted IRS scrutiny.

Understanding the Withdrawal Process

The withdrawal option provides a potential escape hatch for those who suspect their claim may not withstand IRS review. If you’re concerned about the accuracy of your ERC claim, here’s what you need to know about withdrawing it:

  1. Who Can Withdraw a Claim?

The ERC claim withdrawal instructions are available here. In general, you can use the withdrawal process if you:

  • Filed an adjusted employment return (Forms 941-X, 943-X, 944-X, CT-1X) solely to claim the ERC.
  • Have not received an ERCrefund check
  • Have not received a refund check but have been notified that you are under audit.
  • Received a refund check but have not cashed or deposited it.
  • Wish to withdraw the entire ERC claim.
  1. How to Withdraw a Claim

The IRS has established the steps necessary to withdraw a claim. Again, it’s important to carefully follow IRS instructions, which are summarized below:

  • Your Payroll Company Filed the Claim: If a payroll company filed your claim, consult them first. They might need to handle the withdrawal for you.
  • You Filed the Claim Yourself: If you filed the claim yourself and haven’t received a refund or been notified of an audit, you can fax your withdrawal request to the IRS using their special fax line. If faxing isn’t an option, mail your request. Be aware that mailing will result in slower processing.
  • Under Audit?: If you’ve been notified that your claim is under audit, you should send your withdrawal request directly to the assigned examiner, or respond to the audit notice if no examiner has been assigned.
  • Received a Refund Check?: If you have the refund check but haven’t cashed or deposited it, mail the voided check along with your withdrawal request using the instructions at gov/withdrawmyerc.

Avoiding Penalties and Interest

By withdrawing your claim, you can prevent future repayment demands, interest, and penalties. Essentially, the claim is treated as if it was never filed. It’s crucial to note, however, that this does not apply to fraudulent claims. If you willingly filed a false claim, withdrawal would not protect you from possible criminal prosecution.

Guidance for Those Who Received Payments

The IRS is also working on guidelines to assist employers who were misled into claiming the ERC and have already received the payment. The IRS anticipates that these details will be available this fall.

Conclusion

Navigating the ERC claims process can be daunting, especially amidst the backdrop of aggressive marketing and the risk of inaccurate filings. The IRS’s new withdrawal option provides a safety net for businesses that wish to avoid the pitfalls of a potentially erroneous claim. If you have any questions, or require assistance, please contact your Fraser Trebilcock attorney.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.


Robert D. Burgee is an attorney at Fraser Trebilcock with over a decade of experience counseling clients with a focus on corporate structures and compliance, licensing, contracts, regulatory compliance, mergers and acquisitions, and a host of other matters related to the operation of small and medium-sized businesses and non-profits. You can reach him at 517.377.0848 or at bburgee@fraserlawfirm.com.


Headshot of Fraser Trebilcock attorney Paul V. McCordFraser Trebilcock attorney Paul V. McCord has more than 20 years of tax litigation experience, including serving as a clerk on the U.S. Tax Court and as a judge of the Michigan Tax Tribunal. Paul has represented clients before the IRS, Michigan Department of Treasury, other state revenue departments and local units of government. He can be contacted at 517.377.0861 or pmccord@fraserlawfirm.com.

Five Stories That Matter in Michigan This Week – November 10, 2023

  1. Michigan House of Representatives Soon to be Divided Equally Between Democrats and Republicans

As a result of two Michigan House representatives winning mayoral races in this week’s elections, the House will soon be divided equally, 54-54, between Democrats and Republicans.

Why it Matters: A year after taking full control of the Michigan legislature for the first time in decades, Democrats will now have a harder time moving their agenda forward. Any legislation in the House will now, assuming Democrat unity, require support from at least one Republican House member. Expect greater legislative gridlock moving forward given that legislation must pass both the Senate and the House in order to be sent to Governor Whitmer for ratification.

———

  1. Ohio Passes Ballot Measure; Legalizes Recreational Marijuana

Following Tuesday’s results, Ohio has become the 24th state in the nation to legalize recreational marijuana.

Why it Matters: The measure will take effect in 30 days, meaning Ohio residents over the age of 21 will be able to use, grow, or sell marijuana under the supervision of the state’s regulatory body. Additionally, individuals are allowed to possess up to 2.5 ounces of marijuana and will be allowed to cultivate up to six marijuana plans at home. Learn more.

———

  1. Fraser Trebilcock Named a Tier 1 Law Firm in Lansing in Six Practice Areas for 2024

Fraser Trebilcock has received a First Tier ranking in Lansing in six practice areas by U.S. News – Best Lawyers® “Best Law Firms” in 2024.

Why it Matters: In addition to the First Tier ranking in six legal practice areas, Fraser Trebilcock has been named a Tier Two firm in Lansing for four practice areas and has also been named a Tier Three firm in Lansing for three practice areas. Learn more.

———

  1. Michigan Senate Passes Package of Clean Energy Bills

Three bills recently passed by the Michigan Senate would require companies to make 100% of their energy through renewables such as solar and wind by 2040, and also seeks to reduce energy waste, among other objectives. The bills have now moved to the Michigan House.

Why it Matters: Clean energy legislation is a major priority for Michigan Democrats but is opposed by Republicans and has received pushback from many business groups, who argue the legislation would increase energy costs.

———

  1. November Member Mixer in the Boji Tower

Join us for the November Member Mixer on Tuesday, November 14, at the historic Boji Tower, Lansing’s tallest and most historic building.

Why it Matters: Averaging 100+ attendees, Member Mixers occur on the second Tuesday of every month and provide an opportunity to gather and network, meet other members and business professionals and get a glimpse of a local business. Learn more.

Related Practice Groups and Professionals

Election Law | Thaddeus Morgan
Cannabis Law | Sean Gallagher
Energy, Utilities & Telecommunication | Sean Gallagher

Five Stories That Matter in Michigan This Week – November 3, 2023

  1. Michigan Senate Passes Package of Clean Energy Bills

Three bills recently passed by the Michigan Senate would require companies to make 100% of their energy through renewables such as solar and wind by 2040, and also seeks to reduce energy waste, among other objectives. The bills have now moved to the Michigan House.

Why it Matters: Clean energy legislation is a major priority for Michigan Democrats but is opposed by Republicans and has received pushback from many business groups, who argue the legislation would increase energy costs.

———

  1. Fraser Trebilcock Welcomes Andrew G. Martin to the Firm

Fraser Trebilcock is pleased to welcome Andrew G. Martin to the firm’s Lansing office, focusing his practice on intellectual property law, business law, health law, and litigation.

Why it Matters: Andrew is an experienced registered patent attorney with history working in the automotive, electrical, agricultural, and medical device industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. Andrew also provides general business and legal governance counseling to a variety of firms and individuals. Learn more about Andrew.

———

  1. Client Update: Corporate Transparency Act Report of Beneficial Ownership Information

Pursuant to the Corporate Transparency Act of 2021, beginning on January 1, 2024, most newly formed entities will be required to report to the Financial Crimes Enforcement Network information (FinCEN) about the identity of the entity’s beneficial owners and senior officers. And by the end of 2024, nearly all companies will have to report.

Why it Matters: There are roughly 1 million entities in good standing in the State of Michigan and at some time in 2024, most will need to make a beneficial ownership report to FinCEN. While there are numerous exemptions available, their application is limited to large enterprises and businesses that operate in industries that are already highly regulated. Therefore, it is important to remember that the reporting requirement will extend hundreds of thousands of entities. Learn more.

———

  1. Cass County Circuit Court Rules that Growing Cannabis is an “Agricultural Operation” Under Michigan’s General Property Tax Act

HRP Cassopolis, LLC (“HRP”) owns real property located in LaGrange Township, located in Cass County, Michigan. The property, which consists of two parcels, is leased to a cannabis grower and retailer. LaGrange Township’s assessor classified both parcels as “Commercial” under the Michigan General Property Tax Act (“GPTA”). In response to the classification, HRP submitted a petition to the board of review, which denied the petition. HRP then appealed to the State Tax Commission, which also upheld the decision to classify the parcels as commercial. HRP then filed a Claim of Appeal with the Cass County Circuit Court.

Why it Matters: On appeal, the appellee argued that the assessor properly classified the property as commercial because HRP did not establish that growing cannabis is an “agricultural operation” under the GPTA. The GPTA defines an agricultural operation as “growing and harvesting any agricultural, horticultural, or floricultural commodity.” The Circuit Court rejected the appellee’s arguments and ruled in favor of HRP. The court explained that caselaw requires it to give the words in a statute their plain and ordinary meaning, and in this case, according to the court, “cannabis cultivation falls squarely within [GPTA’s] definition of an agricultural operation.”

———

  1. November Member Mixer in the Boji Tower

Join us for the November Member Mixer on Tuesday, November 14, at the historic Boji Tower, Lansing’s tallest and most historic building.

Why it Matters: Averaging 100+ attendees, Member Mixers occur on the second Tuesday of every month and provide an opportunity to gather and network, meet other members and business professionals and get a glimpse of a local business. Learn more.

Related Practice Groups and Professionals

Energy, Utilities & Telecommunication | Sean Gallagher
Intellectual Property | Andrew Martin
Business & Tax | Robert Burgee
Cannabis Law | Sean Gallagher