I 

117TH CONGRESS 

1ST SESSION H. R. 615 

To provide a payroll credit for certain fixed expenses of employers subject 

to closure by reason of COVID-19. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 28, 2021 

Mr. THOMPSON of California (for himself, Mr. HORSFORD, Mr. KELLY of 

Pennsylvania, and Mr. PANETTA) introduced the following bill; which was 

referred to the Committee on Ways and Means, and in addition to the 

Committee on Small Business, for a period to be subsequently determined 

by the Speaker, in each case for consideration of such provisions as fall 

within the jurisdiction of the committee concerned 

A BILL 

To provide a payroll credit for certain fixed expenses of 

employers subject to closure by reason of COVID-19. 

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 ‘‘Keeping the Lights 

5 On Act of 2021’’. 


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1 SEC. 2. PAYROLL CREDIT FOR CERTAIN FIXED EXPENSES 

2 OF EMPLOYERS SUBJECT TO CLOSURE BY 

3 REASON OF COVID-19. 

4 (a) IN GENERAL.—In the case of an eligible em5 ployer, there shall be allowed as a credit against applicable 

6 employment taxes for each calendar quarter an amount 

7 equal to 50 percent of the qualified fixed expenses paid 

8 or incurred by such employer during such calendar quar9 ter. 

10 (b) LIMITATIONS AND REFUNDABILITY.— 

11 (1) LIMITATION.—The qualified fixed expenses 

12 which may be taken into account under subsection 

13 (a) by any eligible employer for any calendar quarter 

14 shall not exceed the least of— 

15 (A) the qualified fixed expenses paid by the 

16 eligible employer in the same calendar quarter 

17 of calendar year 2019, 

18 (B) $50,000; or 

19 (C) the greater of— 

20 (i) 25 percent of the wages paid with 

21 respect to the employment of all the em22 ployees of the eligible employer for such 

23 calendar quarter; or 

24 (ii) 6.25 percent of the gross receipts 

25 of the eligible employer for calendar year 

26 2019. 


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1 (2) CREDIT LIMITED TO CERTAIN EMPLOYMENT

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

3 respect to any calendar quarter shall not exceed the 

4 applicable employment taxes for such calendar quar5 ter (reduced by any credits allowed under sub6 sections (e) and (f) of section 3111 of such Code, 

7 sections 7001 and 7003 of the Families First 

8 Coronavirus Response Act, section 2301 of the 

9 CARES Act, and sections 101, 102, and 304 of this 

10 division, for such quarter) on the wages paid with 

11 respect to the employment of all the employees of 

12 the eligible employer for such calendar quarter. 

13 (3) REFUNDABILITY OF EXCESS CREDIT.— 

14 (A) IN GENERAL.—If the amount of the 

15 credit under subsection (a) exceeds the limita16 tion of paragraph (2) for any calendar quarter, 

17 such excess shall be treated as an overpayment 

18 that shall be refunded under sections 6402(a) 

19 and 6413(b) of the Internal Revenue Code of 

20 1986. 

21 (B) TREATMENT OF PAYMENTS.—For pur22 poses of section 1324 of title 31, United States 

23 Code, any amounts due to an employer under 

24 this paragraph shall be treated in the same 


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1 manner as a refund due from a credit provision 

2 referred to in subsection (b)(2) of such section. 

3 (c) DEFINITIONS.—For purposes of this section— 

4 (1) APPLICABLE EMPLOYMENT TAXES.—The 

5 term ‘‘applicable employment taxes’’ means the fol6 lowing: 

7 (A) The taxes imposed under section 

8 3111(a) of the Internal Revenue Code of 1986. 

9 (B) So much of the taxes imposed under 

10 section 3221(a) of such Code as are attrib11 utable to the rate in effect under section 

12 3111(a) of such Code. 

13 (2) ELIGIBLE EMPLOYER.— 

14 (A) IN GENERAL.—The term ‘‘eligible em15 ployer’’ means any employer— 

16 (i) which was carrying on a trade or 

17 business immediately prior to the suspen18 sion described in clause (iii)(i) or imme19 diately prior to the period described in sub20 paragraph (B); 

21 (ii) which had either— 

22 (I) not more than 1,500 full-time 

23 equivalent employees (as determined 

24 for purposes of determining whether 

25 an employer is an applicable large emVerDate Sep 11 2014 04:28 Feb 20, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H615.IH H615

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1 ployer for purposes of section 

2 4980H(c)(2) of the Internal Revenue 

3 Code of 1986) for calendar year 2019; 

4 or 

5 (II) not more than $41,500,000 

6 of gross receipts in the last taxable 

7 year ending in 2019; and 

8 (iii) with respect to any calendar 

9 quarter, for which— 

10 (I) the operation of the trade or 

11 business described in clause (i) is fully 

12 or partially suspended during the cal13 endar quarter due to orders from an 

14 appropriate governmental authority 

15 limiting commerce, travel, or group 

16 meetings (for commercial, social, reli17 gious, or other purposes) due to the 

18 coronavirus disease 2019 (COVID– 

19 19); or 

20 (II) such calendar quarter is 

21 within the period described in sub22 paragraph (B). 

23 (B) SIGNIFICANT DECLINE IN GROSS RE24 CEIPTS.—The period described in this subpara25 graph is the period— 


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1 (i) beginning with the first calendar 

2 quarter beginning after December 31, 

3 2019, for which gross receipts (within the 

4 meaning of section 448(c) of the Internal 

5 Revenue Code of 1986) for the calendar 

6 quarter are less than 80 percent of gross 

7 receipts for the same calendar quarter in 

8 the prior year; and 

9 (ii) ending with the calendar quarter 

10 following the first calendar quarter begin11 ning after a calendar quarter described in 

12 clause (i) for which gross receipts of such 

13 employer are greater than 80 percent of 

14 gross receipts for the same calendar quar15 ter in the prior year. 

16 (C) TAX-EXEMPT ORGANIZATIONS.—In the 

17 case of an organization which is described in 

18 section 501(c) of the Internal Revenue Code of 

19 1986 and exempt from tax under section 501(a) 

20 of such Code— 

21 (i) clauses (i) and (iii)(I) of subpara22 graph (A) shall apply to all operations of 

23 such organization; and 

24 (ii) any reference in this section to 

25 gross receipts shall be treated as a refVerDate Sep 11 2014 04:28 Feb 20, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H615.IH H615

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1 erence to gross receipts within the meaning 

2 of section 6033 of the Internal Revenue 

3 Code of 1986. 

4 (D) PHASE-IN OF CREDIT WHERE BUSI5 NESS NOT SUSPENDED AND REDUCTION IN

6 GROSS RECEIPTS LESS THAN 50 PERCENT.— 

7 (i) IN GENERAL.—In the case of any 

8 calendar quarter with respect to which an 

9 eligible employer would not be an eligible 

10 employer if subparagraph (B)(i) were ap11 plied by substituting ‘‘50 percent’’ for ‘‘80 

12 percent’’, the amount of the credit allowed 

13 under subsection (a) shall be reduced by 

14 the amount which bears the same ratio to 

15 the amount of such credit (determined 

16 without regard to this subparagraph) as— 

17 (I) the excess gross receipts per18 centage point amount; bears to 

19 (II) 30 percentage points. 

20 (ii) EXCESS GROSS RECEIPTS PER21 CENTAGE POINT AMOUNT.—For purposes 

22 of this subparagraph, the term ‘‘excess 

23 gross receipts percentage point amount’’ 

24 means, with respect to any calendar quar25 ter, the excess of— 


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1 (I) the lowest of the gross re2 ceipts percentage point amounts de3 termined with respect to any calendar 

4 quarter during the period ending with 

5 such calendar quarter and beginning 

6 with the first calendar quarter during 

7 the period described in subparagraph 

8 (B); over 

9 (II) 50 percentage points. 

10 (iii) GROSS RECEIPTS PERCENTAGE

11 POINT AMOUNTS.—For purposes of this 

12 subparagraph, the term ‘‘gross receipts 

13 percentage point amount’’ means, with re14 spect to any calendar quarter, the percent15 age (expressed as a number of percentage 

16 points) obtained by dividing— 

17 (I) the gross receipts (within the 

18 meaning of subparagraph (B)) for 

19 such calendar quarter; by 

20 (II) the gross receipts for the 

21 same calendar quarter in calendar 

22 year 2019. 

23 (3) QUALIFIED FIXED EXPENSES.— 

24 (A) IN GENERAL.—The term ‘‘qualified 

25 fixed expenses’’ means the payment or accrual 


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1 of any covered mortgage obligation, covered 

2 rent obligation, or covered utility payment. 

3 Such term shall not include the prepayment of 

4 any obligation for a period in excess of a month 

5 unless the payment for such period is custom6 arily due in advance. 

7 (B) APPLICATION OF DEFINITIONS.—The 

8 terms ‘‘covered mortgage obligation’’, ‘‘covered 

9 rent obligation’’, and ‘‘covered utility payment’’ 

10 shall each have the same meaning as when used 

11 in section 1106 of the CARES Act. 

12 (4) SECRETARY.—The term ‘‘Secretary’’ means 

13 the Secretary of the Treasury or the Secretary’s del14 egate. 

15 (5) WAGES.— 

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

17 means wages (as defined in section 3121(a) of 

18 the Internal Revenue Code of 1986) and com19 pensation (as defined in section 3231(e) of such 

20 Code). For purposes of the preceding sentence 

21 (other than for purposes of subsection (b)(2)), 

22 wages as defined in section 3121(a) of such 

23 Code shall be determined without regard to 

24 paragraphs (1), (8), (10), (13), (18), (19), and 

25 (22) of section 3121(b) of such Code. 


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1 (B) ALLOWANCE FOR CERTAIN HEALTH

2 PLAN EXPENSES.— 

3 (i) IN GENERAL.—Such term shall in4 clude amounts paid or incurred by the eli5 gible employer to provide and maintain a 

6 group health plan (as defined in section 

7 5000(b)(1) of the Internal Revenue Code 

8 of 1986), but only to the extent that such 

9 amounts are excluded from the gross in10 come of employees by reason of section 

11 106(a) of such Code. 

12 (ii) ALLOCATION RULES.—For pur13 poses of this section, amounts treated as 

14 wages under clause (i) shall be treated as 

15 paid with respect to any employee (and 

16 with respect to any period) to the extent 

17 that such amounts are properly allocable to 

18 such employee (and to such period) in such 

19 manner as the Secretary may prescribe. 

20 Except as otherwise provided by the Sec21 retary, such allocation shall be treated as 

22 properly made if made on the basis of 

23 being pro rata among periods of coverage. 

24 (6) OTHER TERMS.—Except as otherwise pro25 vided in this section, any term used in this section 


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1 which is also used in chapter 21 or 22 of the Inter2 nal Revenue Code of 1986 shall have the same 

3 meaning as when used in such chapter. 

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

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

6 of the Internal Revenue Code of 1986, or subsection (m) 

7 or (o) of section 414 of such Code, shall be treated as 

8 one employer for purposes of this section. 

9 (e) DENIAL OF DOUBLE BENEFIT.—For purposes of 

10 chapter 1 of such Code, the gross income of any eligible 

11 employer, for the taxable year which includes the last day 

12 of any calendar quarter with respect to which a credit is 

13 allowed under this section, shall be increased by the 

14 amount of such credit. 

15 (f) CERTAIN GOVERNMENTAL EMPLOYERS.— 

16 (1) IN GENERAL.—The credit under this section 

17 shall not be allowed to the Federal Government, the 

18 government of any State, of the District of Colum19 bia, or of any possession of the United States, any 

20 tribal government, or any political subdivision, agen21 cy, or instrumentality of any of the foregoing. 

22 (2) EXCEPTION.—Paragraph (1) shall not 

23 apply to any organization described in section 

24 501(c)(1) of the Internal Revenue Code of 1986 and 

25 exempt from tax under section 501(a) of such Code. 


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1 (g) ELECTION TO NOT TAKE CERTAIN EXPENSES

2 INTO ACCOUNT.— 

3 (1) IN GENERAL.—If an eligible employer elects 

4 (at such time and in such manner as the Secretary 

5 may prescribe) to not take into account any amount 

6 of qualified fixed expensees for purposes of deter7 mining the credit under this section, such amount of 

8 qualified fixed expenses shall not be so taken into 

9 account. 

10 (2) COORDINATION WITH PAYCHECK PROTEC11 TION PROGRAM.—The Secretary, in consultation 

12 with the Administrator of the Small Business Ad13 ministration, shall issue guidance providing that cov14 ered mortgage obligations, covered rent obligations, 

15 and covered utility payments paid or incurred during 

16 the covered period shall not fail to be taken into ac17 count as qualified fixed expenses for purposes of de18 termining the credit under this section by reason of 

19 an election under paragraph (1) to the extent that 

20 a covered loan of the eligible employer is not for21 given by reason of a decision under section 1106(g). 

22 Terms used in the preceding sentence which are also 

23 used in section 1106 shall have the same meaning 

24 as when used in such section. 


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1 (h) TRANSFERS TO CERTAIN TRUST FUNDS.—There 

2 are hereby appropriated to the Federal Old-Age and Sur3 vivors Insurance Trust Fund and the Federal Disability 

4 Insurance Trust Fund established under section 201 of 

5 the Social Security Act (42 U.S.C. 401) and the Social 

6 Security Equivalent Benefit Account established under 

7 section 15A(a) of the Railroad Retirement Act of 1974 

8 (45 U.S.C. 231n–1(a)) amounts equal to the reduction in 

9 revenues to the Treasury by reason of this section (without 

10 regard to this subsection). Amounts appropriated by the 

11 preceding sentence shall be transferred from the general 

12 fund at such times and in such manner as to replicate 

13 to the extent possible the transfers which would have oc14 curred to such Trust Fund or Account had this section 

15 not been enacted. 

16 (i) TREATMENT OF DEPOSITS.—The Secretary shall 

17 waive any penalty under section 6656 of such Code for 

18 any failure to make a deposit of applicable employment 

19 taxes if the Secretary determines that such failure was due 

20 to the anticipation of the credit allowed under this section. 

21 (j) THIRD-PARTY PAYORS.—Any credit allowed 

22 under this section shall be treated as a credit described 

23 in section 3511(d)(2) of such Code. 


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1 (k) REGULATIONS AND GUIDANCE.—The Secretary 

2 shall issue such forms, instructions, regulations, and guid3 ance as are necessary— 

4 (1) to allow the advance payment of the credit 

5 under subsection (a), subject to the limitations pro6 vided in this section, based on such information as 

7 the Secretary shall require; 

8 (2) regulations or other guidance to provide for 

9 the reconciliation of such advance payment with the 

10 amount of the credit at the time of filing the return 

11 of tax for the applicable quarter or taxable year; 

12 (3) with respect to the application of the credit 

13 under subsection (a) to third-party payors (including 

14 professional employer organizations, certified profes15 sional employer organizations, or agents under sec16 tion 3504 of the Internal Revenue Code of 1986), 

17 including regulations or guidance allowing such 

18 payors to submit documentation necessary to sub19 stantiate the eligible employer status of employers 

20 that use such payors; 

21 (4) for application of subsection (b)(1)(A) and 

22 subparagraphs (A)(ii)(II) and (B) of subsection 

23 (c)(2) in the case of any employer which was not 

24 carrying on a trade or business for all or part of the 

25 same calendar quarter in the prior year; and 


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1 (5) for recapturing the benefit of credits deter2 mined under this section in cases where there is a 

3 subsequent adjustment to the credit determined 

4 under subsection (a). 

5 (l) APPLICATION OF SECTION.—This section shall 

6 apply only to qualified fixed expenses paid or accrued after 

7 March 12, 2020, and before January 1, 2022. 

8 (m) AMENDMENT TO PAYCHECK PROTECTION PRO9 GRAM TO COORDINATION WITH CREDIT FOR QUALIFIED

10 FIXED EXPENSES.—Section 1106 of the CARES Act is 

11 amended by adding at the end the following new sub12 section: 

13 ‘‘(l) COORDINATION WITH PAYROLL TAX CREDIT

14 FOR QUALIFIED FIXED EXPENSES.—For purposes of this 

15 section, any payment of interest on any covered mortgage 

16 obligation, any payment on any covered rent obligation, 

17 and any covered utility payment shall not include any 

18 qualified fixed expenses which are taken into account in 

19 determining the credit allowed under section 2 of the 

20 Keeping the Lights On Act of 2021.’’. 

Æ 


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