Terry, there's the rub. I have no justification to not count the payroll chronologically. I will have to forego cherry picking.
With regards to the 61%, a lot of clients submitted the forgiveness before the law changed. In IRS Notice 2021-20, question 49, examples 3 and 4 on pages 77-78, even if the full amount of payroll was reported, if you reported non-payroll expenses, the business was able to treat more of the payroll cost as qualified wages for ERC. Are 3508S filers which has no input for non-payroll expenses out of luck if they didn't adjust their payroll to 61% of the PPP forgiveness amount? I guess if I was conservative and didn't want any issues in the 5 year statute of limitation, I would just not push it.