II 

118TH CONGRESS 

1ST SESSION S. 28 

To amend the Internal Revenue Code of 1986 to provide a partially refundable 

credit against payroll taxes for certain restaurants affected by the 

COVID–19 pandemic. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 24 (legislative day, JANUARY 3), 2023 

Mr. CARDIN (for himself, Mr. BROWN, Mrs. MURRAY, and Mr. MARKEY) introduced the following bill; which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code of 1986 to provide 

a partially refundable credit against payroll taxes for 

certain restaurants affected by the COVID–19 pandemic. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Restaurant Revitaliza5 tion Tax Credit Act’’. 

6 SEC. 2. RESTAURANT REVITALIZATION CREDIT. 

7 (a) IN GENERAL.—Subchapter D of chapter 21 of 

8 subtitle C of the Internal Revenue Code of 1986 is amend9 ed by adding at the end the following new section: 


kjohnson on DSK79L0C42PROD with BILLS
2 

•S 28 IS

1 ‘‘SEC. 3135. RESTAURANT REVITALIZATION CREDIT. 

2 ‘‘(a) IN GENERAL.—In the case of an eligible em3 ployer, there shall be allowed as a credit against applicable 

4 employment taxes for each calendar quarter an amount 

5 equal to 100 percent of the wages with respect to each 

6 employee of such employer for such calendar quarter. 

7 ‘‘(b) LIMITATIONS AND REFUNDABILITY.— 

8 ‘‘(1) IN GENERAL.—The aggregate amount of 

9 wages which may be taken into account under sub10 section (a) by the eligible employer for any calendar 

11 quarter shall not exceed $25,000. 

12 ‘‘(2) CREDIT LIMITED TO EMPLOYMENT

13 TAXES.—The credit allowed by subsection (a) with 

14 respect to any calendar quarter shall not exceed the 

15 applicable employment taxes (reduced by any credits 

16 allowed under subsections (e) and (f) of section 

17 3111) on the wages paid with respect to the employ18 ment of all the employees of the eligible employer for 

19 such calendar quarter. For purposes of the pre20 ceding sentence, the credit allowed under subsection 

21 (a) shall be applied first against applicable employ22 ment taxes described in subsection (c)(1)(A). 

23 ‘‘(3) PARTIAL REFUNDABILITY OF EXCESS

24 CREDIT.— 

25 ‘‘(A) IN GENERAL.—If the amount of the 

26 credit under subsection (a) exceeds the limitaVerDate Sep 11 2014 22:54 Jan 25, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S28.IS S28

kjohnson on DSK79L0C42PROD with BILLS
3 

•S 28 IS

1 tion of paragraph (2), so much of such excess 

2 as does not exceed the applicable employer re3 fund limitation shall be treated as an overpay4 ment that shall be refunded under sections 

5 6402(a) and 6413(b). 

6 ‘‘(B) APPLICABLE EMPLOYER REFUND

7 LIMITATION.—For purposes of subparagraph 

8 (A), the applicable employer refund limitation is 

9 the excess of— 

10 ‘‘(i) $25,000, over 

11 ‘‘(ii) the amount of credit treated as 

12 an overpayment of the eligible employer by 

13 reason of this paragraph for all preceding 

14 calendar quarters. 

15 ‘‘(C) REDUCTION BASED ON NUMBER OF

16 EMPLOYEES.—In the case of any eligible em17 ployer for which the average number of full18 time employees (within the meaning of section 

19 4980H) employed by such eligible employer 

20 during the last calendar quarter of 2022 

21 (rounded to the nearest multiple of 1) exceeds 

22 10, the $25,000 dollar amount under subpara23 graph (A)(ii)(I) shall be reduced (but not below 

24 zero) by the product of such excess and $2,500. 

25 ‘‘(c) DEFINITIONS.—For purposes of this section— 


kjohnson on DSK79L0C42PROD with BILLS
4 

•S 28 IS

1 ‘‘(1) APPLICABLE EMPLOYMENT TAXES.—The 

2 term ‘applicable employment taxes’ means the fol3 lowing: 

4 ‘‘(A) The taxes imposed under section 

5 3111(a). 

6 ‘‘(B) The taxes imposed under section 

7 3111(b). 

8 ‘‘(2) ELIGIBLE EMPLOYER.— 

9 ‘‘(A) IN GENERAL.—The term ‘eligible em10 ployer’ means any employer— 

11 ‘‘(i) which is an eligible entity (as de12 fined in section 5003(a) of the American 

13 Rescue Plan Act of 2021) which— 

14 ‘‘(I) was established before 

15 March 14, 2020, 

16 ‘‘(II) submitted an application 

17 for a grant under section 5003(c) of 

18 such Act in accordance with the pro19 cedures established by the Adminis20 trator of the Small Business Adminis21 tration under such section, 

22 ‘‘(III) certifies to the Secretary 

23 (in such form and manner as the Sec24 retary requires) that such employer 


kjohnson on DSK79L0C42PROD with BILLS
5 

•S 28 IS

1 was eligible for a grant under such 

2 section, and 

3 ‘‘(IV) did not receive any grant 

4 funds under such section due to a lack 

5 of funding, 

6 ‘‘(ii) which paid applicable employ7 ment taxes with respect to pay periods oc8 curring in at least 2 calendar quarters of 

9 calendar year 2021, and 

10 ‘‘(iii) which meets the gross receipts 

11 test of subparagraph (B). 

12 ‘‘(B) GROSS RECEIPTS TEST.—An em13 ployer meets the gross receipts test of this sub14 paragraph if— 

15 ‘‘(i) the gross receipts of such em16 ployer for any applicable calendar year 

17 were less than 50 percent the gross re18 ceipts of such employer for calendar year 

19 2019, or 

20 ‘‘(ii) the average gross receipts of 

21 such employer for all applicable calendar 

22 years were less than 70 percent the gross 

23 receipts of such employer for the calendar 

24 year 2019. 


kjohnson on DSK79L0C42PROD with BILLS
6 

•S 28 IS

1 ‘‘(C) APPLICABLE CALENDAR YEAR.—For 

2 purposes of this paragraph, the term ‘applicable 

3 calendar year’ means any of the following: 

4 ‘‘(i) Calendar year 2020. 

5 ‘‘(ii) Calendar year 2021. 

6 ‘‘(D) SPECIAL RULE FOR EMPLOYERS NOT

7 IN EXISTENCE FOR ENTIRETY OF 2019.—In the 

8 case of any employer that was in existence be9 fore January 1, 2020, but not in existence on 

10 January 1, 2019, the amount of gross receipts 

11 taken into account for any applicable calendar 

12 year shall be the amount of such gross receipts 

13 (determined without regard to this clause) mul14 tiplied by the ratio of— 

15 ‘‘(i) the number of days during 2019 

16 during which such employer was in exist17 ence, to 

18 ‘‘(ii) 365. 

19 ‘‘(E) SPECIAL RULE FOR EMPLOYERS NOT

20 IN EXISTENCE BEFORE 2020.—In the case of 

21 any employer that was not in existence before 

22 January 1, 2020, in applying this paragraph— 

23 ‘‘(i) the amount of gross receipts for 

24 calendar year 2019 shall be equal to the 

25 product of— 


kjohnson on DSK79L0C42PROD with BILLS
7 

•S 28 IS

1 ‘‘(I) the amount of gross receipts 

2 for the period beginning on the date 

3 the employer was established and end4 ing before March 14, 2020, and 

5 ‘‘(II) the ratio of 366 to the 

6 number of days in the period de7 scribed in subclause (I), and 

8 ‘‘(ii) the amount of gross receipts for 

9 calendar year 2020 shall be equal to the 

10 product of— 

11 ‘‘(I) the amount of gross receipts 

12 for the period beginning after March 

13 13, 2020, and ending on December 

14 31, 2020, and 

15 ‘‘(II) the ratio of 366 to the 

16 number of days in the period de17 scribed in subclause (I). 

18 ‘‘(3) WAGES.— 

19 ‘‘(A) IN GENERAL.—The term ‘wages’ has 

20 the meaning given such term under section 

21 3121(a), determined without regard to para22 graph (1) thereof. 

23 ‘‘(B) EXCEPTION.—Such term shall not in24 clude any wages taken into account under sec25 tions 41, 45A, 45P, 45S, 51, and 1396. 


kjohnson on DSK79L0C42PROD with BILLS
8 

•S 28 IS

1 ‘‘(4) OTHER TERMS.—Any term used in this 

2 section which is also used in this chapter shall have 

3 the same meaning as when used in this chapter. 

4 ‘‘(d) AGGREGATION RULE.—All persons treated as a 

5 single employer under subsection (a) or (b) of section 52, 

6 or subsection (m) or (o) of section 414, shall be treated 

7 as one employer for purposes of this section. 

8 ‘‘(e) ELECTION TO NOT TAKE CERTAIN WAGES

9 INTO ACCOUNT.—This section shall not apply to so much 

10 of the wages paid by an eligible employer as such employer 

11 elects (at such time and in such manner as the Secretary 

12 may prescribe) to not take into account for purposes of 

13 this section. 

14 ‘‘(f) THIRD PARTY PAYORS.—Any credit allowed 

15 under this section shall be treated as a credit described 

16 in section 3511(d)(2). 

17 ‘‘(g) TREATMENT OF DEPOSITS.—The Secretary 

18 shall waive any penalty under section 6656 for any failure 

19 to make a deposit of any applicable employment taxes if 

20 the Secretary determines that such failure was due to the 

21 reasonable anticipation of the credit allowed under this 

22 section. 

23 ‘‘(h) EXTENSION OF LIMITATION ON ASSESSMENT.— 

24 Notwithstanding section 6501, the limitation on the time 

25 period for the assessment of any amount attributable to 


kjohnson on DSK79L0C42PROD with BILLS
9 

•S 28 IS

1 a credit claimed under this section shall not expire before 

2 the date that is 5 years after the later of— 

3 ‘‘(1) the date on which the original return 

4 which includes the calendar quarter with respect to 

5 which such credit is determined is filed, or 

6 ‘‘(2) the date on which such return is treated 

7 as filed under section 6501(b)(2). 

8 ‘‘(i) REGULATIONS AND GUIDANCE.—The Secretary 

9 shall issue such forms, instructions, regulations, and other 

10 guidance as are necessary— 

11 ‘‘(1) with respect to the application of the cred12 it under subsection (a) to third party payors (includ13 ing professional employer organizations, certified 

14 professional employer organizations, or agents under 

15 section 3504), including regulations or guidance al16 lowing such payors to submit documentation nec17 essary to substantiate the eligible employer status of 

18 employers that use such payors, and 

19 ‘‘(2) to prevent the avoidance of the purposes of 

20 the limitations under this section, including through 

21 the leaseback of employees. 

22 Any forms, instructions, regulations, or other guidance de23 scribed in paragraph (1) shall require the customer to be 

24 responsible for the accounting of the credit and for any 

25 liability for improperly claimed credits and shall require 


kjohnson on DSK79L0C42PROD with BILLS
10 

•S 28 IS

1 the certified professional employer organization or other 

2 third party payor to accurately report such tax credits 

3 based on the information provided by the customer. 

4 ‘‘(j) APPLICATION.—This section shall only apply to 

5 wages paid after December 31, 2022, and before January 

6 1, 2024.’’. 

7 (b) REFUNDS.—Paragraph (2) of section 1324(b) of 

8 title 31, United States Code, is amended by inserting 

9 ‘‘3135,’’ after ‘‘3134,’’. 

10 (c) CLERICAL AMENDMENT.—The table of sections 

11 for subchapter D of chapter 21 of subtitle C of the Inter12 nal Revenue Code of 1986 is amended by adding at the 

13 end the following: 

‘‘Sec. 3135. Restaurant revitalization credit.’’. 

14 (d) COORDINATION WITH SMALL BUSINESS ADMIN15 ISTRATION.—The Administrator of the Small Business 

16 Administration shall coordinate with and provide informa17 tion to the Secretary of the Treasury (or the Secretary’s 

18 delegate) to assist in identifying employers that are eligi19 ble for the credit allowed by section 3135 of the Internal 

20 Revenue Code of 1986, as added by this section. 

21 (e) EFFECTIVE DATE.—The amendments made by 

22 this section shall apply to calendar quarters beginning 

23 after December 31, 2022. 

Æ 


kjohnson on DSK79L0C42PROD with BILLS