SEC. 3121. DEFINITIONS.
(a)WAGES.—For purposes of this chapter,
the term “wages” means all remuneration for employment,
including the cash value of all remuneration (including benefits)
paid in any medium other than cash; except that such term shall
not include—
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(1) in the case of the taxes imposed by sections 3101(a) and
3111(a) that part of the remuneration which, after remuneration
(other than remuneration referred to in the succeeding paragraphs
of this subsection) equal to the contribution and benefit base
(as determined under section 230 of the Social Security Act) with
respect to employment has been paid to an individual by an employer
during the calendar year with respect to which such applicable
contribution and benefit base is effective, is paid to such individual
by such employer during such calendar year. If an employer (hereinafter
referred to as successor employer) during any calendar year acquires
substantially all the property used in a trade or business of
another employer (hereinafter referred to as a predecessor), or
used in a separate unit of a trade or business of a predecessor,
and immediately after the acquisition employs in his trade or
business an individual who immediately prior to the acquisition
was employed in the trade or business of such predecessor, then,
for the purpose of determining whether the successor employer
has paid remuneration (other than remuneration referred to in the
succeeding paragraphs of this subsection) with respect to employment equal
to the contribution and benefit base (as determined under subsection (x))
to such individual during such calendar year, any remuneration
(other than remuneration referred to in the succeeding paragraphs
of this subsection) with respect to employment paid (or considered
under this paragraph as having been paid) to such individual by
such predecessor during such calendar year and prior to such acquisition
shall be considered as having been paid by such successor employer;
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(2) the amount of any payment (including any amount paid by
an employer for insurance or annuities, or into a fund, to provide
for any such payment) made to, or on behalf of, an employee or
any of his dependents under a plan or system established by an
employer which makes provision for his employees generally (or
for his employees generally and their dependents) or for a class
or classes of his employees (or for a class or classes of his
employees and their dependents), on account of—
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(A) sickness or accident disability (but, in the case of payments
made to an employee or any of his dependents, this subparagraph
shall exclude from the term “wages” only payments
which are received under a workmen's compensation law), or
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(B) medical or hospitalization expenses in connection with
sickness or accident disability, or
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(C) death, except that this paragraph does not apply to a payment
for group-term life insurance to the extent that such payment is
includible in the gross income of the employee;
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[(3) Stricken.[9]]
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(4) any payment on account of sickness or accident disability,
or medical or hospitalization expenses in connection with sickness
or accident disability, made by an employer to, or on behalf of,
an employee after the expiration of 6 calendar months following
the last calendar month in which the employee worked for such employer;
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(5) any payment made to, or on behalf of, an employee or his
beneficiary—
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(A) from or to a trust described in section 401(a) which is
exempt from tax under section 501(a) at the time of such payment
unless such payment is made to an employee of the trust as remuneration
for services rendered as such employee and not as a beneficiary
of the trust,
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(B) under or to an annuity plan which, at the time of such
payment, is a plan described in section 403(a),
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(C) under a simplified employee pension (as defined in section
408(k)(1)), other than any contributions described in section
408(k)(6),
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(D) under or to an annuity contract described in section 403(b),
other than a payment for the purchase of such contract which is
made by reason of a salary reduction agreement (whether evidenced
by a written instrument or otherwise),
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(E) under or to an exempt governmental deferred compensation
plan (as defined in subsection (v)(3)),
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(F) to supplement pension benefits under a plan or trust described
in any of the foregoing provisions of this paragraph to take into
account some portion or all of the increase in the cost of living
(as determined by the Secretary of Labor) since retirement but
only if such supplemental payments are under a plan which is treated
as a welfare plan under section 3(2)(B)(ii) of the Employee Retirement
Income Security Act of 1974,
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(G) under a cafeteria plan (within the meaning of section 125)
if such payment would not be treated as wages without regard to
such plan and it is reasonable to believe that (if section 125
applied for purposes of this section) section 125 would not treat
any wages as constructively received,
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(H) under an arrangement to which section 408(p) applies, other
than any elective contributions under paragraph (2)(A)(i) thereof,
or
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(I) under a plan described in section 457(e)(11)(A)(ii) and
maintained by an eligible employer (as defined in section 457(e)(1));
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(6) the payment by an employer (without deduction from the
remuneration of the employee)—
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(A) of the tax imposed upon an employee under section 3101,
or
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(B) of any payment required from an employee under a State
unemployment compensation law,
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with respect to remuneration paid to an employee for domestic
service in a private home of the employer or for agricultural
labor;
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(7)(A) remuneration paid in any medium other than cash to an
employee for service not in the course of the employer's trade
or business or for domestic service in a private home of the employer;
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(B) cash remuneration paid by an employer in any calendar year
to an employee for domestic service in a private home of the employer
(including domestic) on a farm operated for profit[10], if the
cash remuneration paid in such year by the employer to the employee
for such service is less than the applicable dollar threshold (as
defined in subsection (x)) for such year;
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(C) cash remuneration paid by an employer in any calendar year
to an employee for service not in the course of the employer's
trade or business, if the cash remuneration paid in such year by
the employer to the employee for such service is less than $100.
As used in this subparagraph, the term “service not in
the course of the employer's trade or business” does not
include domestic service in a private home of the employer and
does not include service described in subsection (g)(5);
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(8)(A) remuneration paid in any medium other than cash for
agricultural labor;
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(B) cash remuneration paid by an employer in any calendar year
to an employee for agricultural labor unless—
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(i) the cash remuneration paid in such year by the employer
to the employee for such labor is $150 or more, or
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(ii) the employer's expenditures for agricultural labor in such
year equal or exceed $2,500,
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except that clause (ii) shall not apply in determining whether
remuneration paid to an employee constitutes “wages ” under
this section if such employee (I) is employed as a hand harvest
laborer and is paid on a piece rate basis in an operation which
has been, and is customarily and generally recognized as having
been, paid on a piece rate basis in the region of employment, (II)
commutes daily from his permanent residence to the farm on which
he is so employed, and (III) has been employed in agriculture less than
13 weeks during the preceding calendar year;
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[(9) Stricken.[11]]
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(10) remuneration paid by an employer in any calendar year to
an employee for service described in subsection (d)(3)(C) (relating
to home workers), if the cash remuneration paid in such year by
the employer to the employee for such service is less than $100;
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(11) remuneration paid to or on behalf of an employee if (and
to the extent that) at the time of the payment of such remuneration
it is reasonable to believe that a corresponding deduction is
allowable under section 217 (determined without regard to section
274(n));
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(12)(A) tips paid in any medium other than cash;
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(B) cash tips received by an employee in any calendar month
in the course of his employment by an employer unless the amount
of such cash tips is $20 or more;
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(13) any payment or series of payments by an employer to an
employee or any of his dependents which is paid—
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(A) upon or after the termination of an employee's employment
relationship because of (i) death, or (ii) retirement for disability,
and
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(B) under a plan established by the employer which makes provision for
his employees generally or a class or classes of his employees
(or for such employees or class or classes of employees and their
dependents),
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other than any such payment or series of payments which would
have been paid if the employee's employment relationship had not
been so terminated;
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(14) any payment made by an employer to a survivor or the estate
of a former employee after the calendar year in which such employee
died;
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(15) any payment made by an employer to an employee, if at the
time such payment is made such employee is entitled to disability
insurance benefits under section 223(a) of the Social Security
Act and such entitlement commenced prior to the calendar year in
which such payment is made, and if such employee did not perform
any services for such employer during the period for which such
payment is made;
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(16) remuneration paid by an organization exempt from income
tax under section 501(a) (other than an organization described
in section 401(a)) or under section 521 in any calendar year to
an employee for service rendered in the employ of such organization,
if the remuneration paid in such year by the organization to the
employee for such service is less than $100;
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(17) any contribution, payment, or service provided by an employer which
may be excluded from the gross income of an employee, his spouse, or
his dependents, under the provisions of section 120 (relating to
amounts received under qualified group legal services plans);
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(18) any payment made, or benefit furnished, to or for the
benefit of an employee if at the time of such payment or such furnishing
it is reasonable to believe that the employee will be able to exclude
such payment or benefit from income under section 127, 129 or 134(b)(4)[12]
;
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(19) the value of any meals or lodging furnished by or on behalf
of the employer if at the time of such furnishing it is reasonable
to believe that the employee will be able to exclude such items
from income under section 119;
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(20) any benefit provided to or on behalf of an employee if
at the time such benefit is provided it is reasonable to believe
that the employee will be able to exclude such benefit from income
under section 74(c), 117, or 132; or
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(21) in the case of a member of an Indian tribe, any remuneration
on which no tax is imposed by this chapter by reason of section
7873 (relating to income derived by Indians from exercise of fishing
rights).
Nothing in the regulations prescribed for purposes of chapter
24 (relating to income tax withholding) which provides an exclusion
from “wages” as used in such chapter shall be
construed to require a similar exclusion from “wages” in the
regulations prescribed for purposes of this chapter. Except as
otherwise provided in regulations prescribed by the Secretary,
any third party which makes a payment included in wages solely
by reason of the parenthetical matter contained in subparagraph
(A) of paragraph (2) shall be treated for purposes of this chapter
and chapter 22 as the employer with respect to such wages.
(b)EMPLOYMENT.—For purposes of this chapter,
the term “employment” means any service, of whatever
nature, performed (A) by an employee for the person employing
him, irrespective of the citizenship or residence of either, (i)
within the United States, or (ii) on or in connection with an
American vessel or American aircraft under a contract of service
which is entered into within the United States or during the performance
of which and while the employee is employed on the vessel or aircraft
it touches at a port in the United States, if the employee is employed
on and in connection with such vessel or aircraft when outside
the United States, or (B) outside the United States by a citizen
or resident of the United States as an employee for an American
employer (as defined in subsection (h)), or (C) if it is service,
regardless of where or by whom performed, which is designated as
employment or recognized as equivalent to employment under an agreement
entered into under section 233 of the Social Security Act; except
that such term shall not include—
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(1) service performed by foreign agricultural workers lawfully
admitted to the United States from the Bahamas, Jamaica, and the
other British West Indies, or from any other foreign country or
possession thereof, on a temporary basis to perform agricultural
labor;
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(2) domestic service performed in a local college club, or local
chapter of a college fraternity or sorority, by a student who is
enrolled and is regularly attending classes at a school, college,
or university;
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(3)(A) service performed by a child under the age of 18 in the
employ of his father or mother;
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(B) service not in the course of the employer's trade or business,
or domestic service in a private home of the employer, performed
by an individual under the age of 21 in the employ of his father
or mother, or performed by an individual in the employ of his spouse
or son or daughter; except that the provisions of this subparagraph
shall not be applicable to such domestic service performed by an
individual in the employ of his son or daughter if—
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(i) the employer is a surviving spouse or a divorced individual
and has not remarried, or has a spouse living in the home who
has a mental or physical condition which results in such spouse's
being incapable of caring for a son, daughter, stepson, or stepdaughter
(referred to in clause (ii)) for at least 4 continuous weeks in
the calendar quarter in which the service is rendered, and
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(ii) a son, daughter, stepson, or stepdaughter of such employer
is living in the home, and
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(iii) the son, daughter, stepson, or stepdaughter (referred
to in clause (ii)) has not attained age 18 or has a mental or
physical condition which requires the personal care and supervision
of an adult for at least 4 continuous weeks in the calendar quarter
in which the service is rendered;
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(4) service performed by an individual on or in connection with
a vessel not an American vessel, or on or in connection with an
aircraft not an American aircraft, if (A) the individual is employed
on and in connection with such vessel or aircraft, when outside
the United States and (B)(i) such individual is not a citizen of
the United States or (ii) the employer is not an American employer;
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(5) service performed in the employ of the United States or
any instrumentality of the United States, if such service—
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(A) would be excluded from the term “employment” for
purposes of this title if the provisions of paragraphs (5) and
(6) of this subsection as in effect in January 1983 had remained
in effect, and
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(B) is performed by an individual who—
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(i) has been continuously performing service described in subparagraph
(A) since December 31, 1983, and for purposes of this clause—
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(I) if an individual performing service described in subparagraph
(A) returns to the performance of such service after being separated
therefrom for a period of less than 366 consecutive days, regardless
of whether the period began before, on, or after December 31, 1983,
then such service shall be considered continuous,
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(II) if an individual performing service described in subparagraph
(A) returns to the performance of such service after being detailed
or transferred to an international organization as described under
section 3343 of subchapter III of chapter 33 of title 5, United
States Code, or under section 3581 of chapter 35 of such title,
then the service performed for that organization shall be considered
service described in subparagraph (A),
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(III) if an individual performing service described in subparagraph
(A) is reemployed or reinstated after being separated from such
service for the purpose of accepting employment with the American
Institute in Taiwan as provided under section 3310 of chapter 48
of title 22, United States Code, then the service performed for
that Institute shall be considered service described in subparagraph
(A),
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(IV) if an individual performing service described in subparagraph
(A) returns to the performance of such service after performing
service as a member of a uniformed service (including, for purposes
of this clause, service in the National Guard and temporary service
in the Coast Guard Reserve) and after exercising restoration or
reemployment rights as provided under chapter 43 of title 38, United
States Code, then the service so performed as a member of a uniformed
service shall be considered service described in subparagraph (A),
and
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(V) if an individual performing service described in subparagraph
(A) returns to the performance of such service after employment
(by a tribal organization) to which section 105(e)(2) of the Indian
Self-Determination Act applies, then the service performed for
that tribal organization shall be considered service described
in subparagraph (A); or
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(ii) is receiving an annuity from the Civil Service Retirement
and Disability Fund, or benefits (for service as an employee)
under another retirement system established by a law of the United
States for employees of the Federal Government (other than for
members of the uniformed service);
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except that this paragraph shall not apply with respect to
any such service performed on or after any date on which such
individual performs—
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(C) service performed as the President or Vice President of
the United States,
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(D) service performed—
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(i) in a position placed in the Executive Schedule under sections 5312
through 5317 of title 5, United States Code,
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(ii) as a noncareer appointee in the Senior Executive Service
or a noncareer member of the Senior Foreign Service, or
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(iii) in a position to which the individual is appointed by
the President (or his designee) or the Vice President under section
105(a)(1), 106(a)(1), or 107(a)(1) or (b)(1) of title 3, United
States Code, if the maximum rate of basic pay for such position
is at or above the rate for level V of the Executive Schedule,
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(E) service performed as the Chief Justice of the United States,
an Associate Justice of the Supreme Court, a judge of a United
States court of appeals, a judge of a United States district court
(including the district court of a territory), a judge of the United
States Claims Court[13], a judge of the United States Court of
International Trade, a judge of the United States Tax Court, a
United States magistrate, or a referee in bankruptcy or United
States bankruptcy judge,
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(F) service performed as a Member, Delegate, or Resident Commissioner
of or to the Congress,
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(G) any other service in the legislative branch of the Federal
Government if such service—
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(i) is performed by an individual who was not subject to subchapter
III of chapter 83 of title 5, United States Code, or to another
retirement system established by a law of the United States for
employees of the Federal Government (other than for members of
the uniformed services), on December 31, 1983, or
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(ii) is performed by an individual who has, at any time after
December 31, 1983, received a lump-sum payment under section 8342(a)
of title 5, United States Code, or under the corresponding provision
of the law establishing the other retirement system described in
clause (i), or
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(iii) is performed by an individual after such individual has
otherwise ceased to be subject to subchapter III of chapter 83
of title 5, United States Code (without having an application
pending for coverage under such subchapter), while performing service
in the legislative branch (determined without regard to the provisions
of subparagraph (B) relating to continuity of employment), for
any period of time after December 31, 1983,
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and for purposes of this subparagraph (G) an individual is
subject to such subchapter III or to any such other retirement
system at any time only if (a) such individual's pay is subject
to deductions, contributions, or similar payments (concurrent
with the service being performed at that time) under section 8334(a)
of such title 5 or the corresponding provision of the law establishing
such other system, or (in a case to which section 8332(k)(1) of
such title applies) such individual is making payments of amounts
equivalent to such deductions, contributions, or similar payments
while on leave without pay, or (b) such individual is receiving
an annuity from the Civil Service Retirement and Disability Fund,
or is receiving benefits (for service as an employee) under another
retirement system established by a law of the United States for
employees of the Federal Government (other than for members of
the uniformed services), or
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(H) service performed by an individual—
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(i) on or after the effective date of an election by such individual, under
section 301 of the Federal Employees' Retirement System Act of
1986[14], section 307 of the Central Intelligence Agency Retirement
Act (50 U.S.C. 2157), or the Federal Employees' Retirement System
Open Enrollment Act of 1997 to become subject to the Federal Employees'
Retirement System provided in chapter 84 of title 5, United States
Code, or
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(ii) on or after the effective date of an election by such
individual, under regulations issued under section 860 of the Foreign Service
Act of 1980, to become subject to the Foreign Service Pension System
provided in subchapter II of chapter 8 of title I of such Act;
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(6) service performed in the employ of the United States or
any instrumentality of the United States if such service is performed—
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(A) in a penal institution of the United States by an inmate
thereof;
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(B) by any individual as an employee included under section
5351(2) of title 5, United States Code (relating to certain interns,
student nurses, and other student employees of hospitals of the
Federal Government), other than as a medical or dental intern or
a medical or dental resident in training; or
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(C) by any individual as an employee serving on a temporary
basis in case of fire, storm, earthquake, flood, or other similar
emergency;
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(7) service performed in the employ of a State, or any political
subdivision thereof, or any instrumentality of any one or more
of the foregoing which is wholly owned thereby, except that this
paragraph shall not apply in the case of—
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(A) service which, under subsection (j), constitutes covered
transportation service,
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(B) service in the employ of the Government of Guam or the
Government of American Samoa or any political subdivision thereof,
or of any instrumentality of any one or more of the foregoing which
is wholly owned thereby, performed by an officer or employee thereof
(including a member of the legislature of any such Government or
political subdivision), and, for purposes of this title with respect
to the taxes imposed by this chapter—
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(i) any person whose service as such an officer or employee
is not covered by a retirement system established by a law of the
United States shall not, with respect to such service, be regarded
as an employee of the United States or any agency or instrumentality thereof,
and
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(ii) the remuneration for service described in clause (i) (including
fees paid to a public official) shall be deemed to have been paid by
the Government of Guam or the Government of American Samoa or by
a political subdivision thereof or an instrumentality of any one
or more of the foregoing which is wholly owned thereby, whichever
is appropriate,
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(C) service performed in the employ of the District of Columbia
or any instrumentality which is wholly owned thereby, if such
service is not covered by a retirement system established by a
law of the United States (other than the Federal Employees Retirement
System provided in chapter 84 of title 5, United States Code);
except that the provisions of this subparagraph shall not be applicable
to service performed—
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(i) in a hospital or penal institution by a patient or inmate
thereof;
-
(ii) by any individual as an employee included under section
5351(2) of title 5, United States Code (relating to certain interns, student
nurses, and other student employees of hospitals of the District
of Columbia Government), other than as a medical or dental intern
or as a medical or dental resident in training;
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(iii) by any individual as an employee serving on a temporary
basis in case of fire, storm, snow, earthquake, flood or other
similar emergency; or
-
(iv) by a member of a board, committee, or council of the District of
Columbia, paid on a per diem, meeting, or other fee basis,
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(D) service performed in the employ of the Government of Guam
(or any instrumentality which is wholly owned by such Government)
by an employee properly classified as a temporary or intermittent employee,
if such service is not covered by a retirement system established
by a law of Guam; except that (i) the provisions of this subparagraph
shall not be applicable to services performed by an elected official
or a member of the legislature or in a hospital or penal institution
by a patient or inmate thereof, and (ii) for purposes of this subparagraph,
clauses (i) and (ii) of subparagraph (B) shall apply,
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(E) service included under an agreement entered into pursuant
to section 218 of the Social Security Act, or
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(F) service in the employ of a State (other than the District
of Columbia, Guam, or American Samoa), of any political subdivision
thereof, or of any instrumentality of any one or more of the foregoing
which is wholly owned thereby, by an individual who is not a member
of a retirement system of such State, political subdivision, or
instrumentality, except that the provisions of this subparagraph
shall not be applicable to service performed—
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(i) by an individual who is employed to relieve such individual
from unemployment;
-
(ii) in a hospital, home, or other institution by a patient
or inmate thereof,
-
(iii) by any individual as an employee serving on a temporary
basis in case of fire, storm, snow, earthquake, flood, or other
similar emergency;
-
(iv) by an election official or election worker if the remuneration paid
in a calendar year for such service is less than $1,000 with respect
to service performed during any calendar year commending on or
after January 1, 1995, ending on or before December 31, 1999, and
the adjusted amount determined under section 218(c)(8)(B) of the
Social Security Act for any calendar year commencing on or after
January 1, 2000, with respect to service performed during such
calendar year; or
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(v) by an employee in a position compensated solely on a fee
basis which is treated pursuant to section 1402(c)(2)(E) as a
trade or business for purposes of inclusion of such fees in net
earnings from self-employment;
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for purposes of this subparagraph, except as provided in regulations
prescribed by the Secretary, the term “retirement system” has
the meaning given such term by section 218(b)(4) of the Social
Security Act.
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(8)(A) service performed by a duly ordained, commissioned, or
licensed minister of a church in the exercise of his ministry or
by a member of a religious order in the exercise of duties required
by such order, except that this subparagraph shall not apply to
service performed by a member of such an order in the exercise
of such duties, if an election of coverage under subsection (r)
is in effect with respect to such order, or with respect to the autonomous
subdivision thereof to which such member belongs;
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(B) service performed in the employ of a church or qualified
church-controlled organization if such church or organization
has in effect an election under subsection (w), other than service
in an unrelated trade or business (within the meaning of section
513(a));
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(9) service performed by an individual as an employee or employee
representative as defined in section 3231;
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(10) service performed in the employ of—
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(A) a school, college, or university, or
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(B) an organization described in section 509(a)(3) if the organization is
organized, and at all times thereafter is operated, exclusively
for the benefit of, to perform the functions of, or to carry out
the purposes of a school, college, or university and is operated,
supervised, or controlled by or in connection with such school,
college, or university, unless it is a school, college, or university
of a State or a political subdivision thereof and the services
performed in its employ by a student referred to in section 218(c)(5)
of the Social Security Act are covered under the agreement between
the Commissioner of Social Security and such State entered into
pursuant to section 218 of such Act;
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if such service is performed by a student who is enrolled and
regularly attending classes at such school, college, or university;
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(11) service performed in the employ of a foreign government
(including service as a consular or other officer or employee or
a nondiplomatic representative);
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(12) service performed in the employ of an instrumentality
wholly owned by a foreign government—
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(A) if the service is of a character similar to that performed
in foreign countries by employees of the United States Government
or of an instrumentality thereof; and
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(B) if the Secretary of State shall certify to the Secretary
of the Treasury that the foreign government, with respect to whose
instrumentality and employees thereof exemption is claimed, grants
an equivalent exemption with respect to similar service performed
in the foreign country by employees of the United States Government
and of instrumentalities thereof;
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(13) service performed as a student nurse in the employ of a
hospital or a nurses' training school by an individual who is
enrolled and is regularly attending classes in a nurses' training
school chartered or approved pursuant to State law;
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(14)(A) service performed by an individual under the age of
18 in the delivery or distribution of newspapers or shopping news,
not including delivery or distribution to any point for subsequent
delivery or distribution;
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(B) service performed by an individual in, and at the time of,
the sale of newspapers or magazines to ultimate consumers, under
an arrangement under which the newspapers or magazines are to be
sold by him at a fixed price, his compensation being based on
the retention of the excess of such price over the amount at which
the newspapers or magazines are charged to him, whether or not
he is guaranteed a minimum amount of compensation for such service,
or is entitled to be credited with the unsold newspapers or magazines
turned back;
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(15) service performed in the employ of an international organization, except
service which constitutes “employment” under
subsection (y);
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(16) service performed by an individual under an arrangement
with the owner or tenant of land pursuant to which—
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(A) such individual undertakes to produce agricultural or horticultural
commodities (including livestock, bees, poultry, and fur-bearing animals
and wildlife) on such land,
-
(B) the agricultural or horticultural commodities produced by
such individual, or the proceeds therefrom, are to be divided
between such individual and such owner or tenant, and
-
(C) the amount of such individual's share depends on the amount
of the agricultural or horticultural commodities produced;
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(17) service in the employ of any organization which is performed
(A) in any year during any part of which such organization is registered,
or there is in effect a final order of the Subversive Activities
Control Board requiring such organization to register, under the
Internal Security Act of 1950, as amended, as a Communist-action
organization, a Communist-front organization, or a Communist-infiltrated
organization, and (B) after June 30, 1956;
-
(18) service performed in Guam by a resident of the Republic
of the Philippines while in Guam on a temporary basis as a nonimmigrant
alien admitted to Guam pursuant to section 101(a)(15)(H)(ii) of
the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii));
-
(19) Service[15] which is performed by a nonresident alien
individual for the period he is temporarily present in the United
States as a nonimmigrant under subparagraph (F), (J), (M), or (Q)
of section 101(a)(15) of the Immigration and Nationality Act, as
amended, and which is performed to carry out the purpose specified
in subparagraph (F), (J), (M), or (Q) as the case may be; or
-
(20) service (other than service described in paragraph (3)(A))
performed by an individual on a boat engaged in catching fish or
other forms of aquatic animal life under an arrangement with the
owner or operator of such boat pursuant to which—
-
(A) such individual does not receive any cash remuneration other
than as provided in subparagraph (B) and other than cash remuneration—
-
(i) which does not exceed $100 per trip;
-
(ii) which is contingent on a minimum catch; and
-
(iii) which is paid solely for additional duties (such as mate,
engineer, or cook) for which additional cash remuneration is traditional
in the industry,
-
(B) such individual receives a share of the boat's (or the
boats' in the case of a fishing operation involving more than one
boat) catch of fish or other forms of aquatic animal life or a
share of the proceeds from the sale of such catch, and
-
(C) the amount of such individual's share depends on the amount
of the boat's (or the boats' in the case of a fishing operation
involving more than one boat) catch of fish or other forms of
aquatic animal life,
-
but only if the operating crew of such boat (or each boat from
which the individual receives a share in the case of a fishing
operation involving more than one boat) is normally made up of
fewer than 10 individuals; or
-
(21) domestic service in a private home of an employer which—
-
(A) is performed in any year by an individual under the age
of 18 during any portion of such year; and
-
(B) is not the principal occupation of such employee.
-
For purposes of paragraph (20), the operating crew of a boat
shall be treated as normally made up of fewer than 10 individuals
if the average size of the operating crew on trips made during
the preceding 4 calendar quarters consisted of fewer than 10 individuals.
(c)INCLUDED AND EXCLUDED SERVICE.—For purposes
of this chapter, if the services performed during one-half or
more of any pay period by an employee for the person employing
him constitute employment, all the services of such employee for
such period shall be deemed to be employment; but if the services
performed during more than one-half of any such pay period by an employee
for the person employing him do not constitute employment, then none
of the services of such employee for such period shall be deemed
to be employment. As used in this subsection, the term “pay
period” means a period (of not more than 31 consecutive
days) for which a payment of remuneration is ordinarily made to
the employee by the person employing him. This subsection shall
not be applicable with respect to services performed in a pay period
by an employee for the person employing him, where any of such
service is excepted by subsection (b)(9).
(d)EMPLOYEE.—For purposes of this chapter,
the term “employee” means—
-
(1) any officer of a corporation; or
-
(2) any individual who, under the usual common law rules applicable
in determining the employer-employee relationship, has the status
of an employee; or
-
(3) any individual (other than an individual who is an employee
under paragraph (1) or (2)) who performs services for remuneration
for any person—
-
(A) as an agent-driver or commission-driver engaged in distributing meat
products, vegetable products, fruit products, bakery products, beverages
(other than milk), or laundry or dry-cleaning services, for his principal;
-
(B) as a full-time life insurance salesman;
-
(C) as a home worker performing work, according to specifications furnished
by the person for whom the services are performed, on materials
or goods furnished by such person which are required to be returned
to such person or a person designated by him; or
-
(D) as a traveling or city salesman, other than as an agent-driver
or commission-driver, engaged upon a full-time basis in the solicitation on
behalf of, and the transmission to, his principal (except for side-line sales
activities on behalf of some other person) of orders from wholesalers,
retailers, contractors, or operators of hotels, restaurants, or
other similar establishments for merchandise for resale or supplies
for use in their business operations;
-
if the contract of service contemplates that substantially
all of such services are to be performed personally by such individual;
except that an individual shall not be included in the term “employee” under
the provisions of this paragraph if such individual has a substantial
investment in facilities used in connection with the performance
of such services (other than in facilities for transportation),
or if the services are in the nature of a single transaction not
part of a continuing relationship with the person for whom the
services are performed; or
-
(4) any individual who performs services that are included under
an agreement entered into pursuant to section 218 of the Social
Security Act.
(e)STATE, UNITED STATES, AND CITIZEN.—For
purposes of this chapter—
-
(1) STATE.—The term “State”
includes the District of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, Guam, and American Samoa.
-
(2) UNITED STATES.—The term “United
States” when used in a geographical sense includes the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American
Samoa.
An individual who is a citizen of the Commonwealth of Puerto
Rico (but not otherwise a citizen of the United States) shall be
considered, for purposes of this section, as a citizen of the
United States.
(f)AMERICAN VESSEL AND AIRCRAFT.—For purposes
of this chapter, the term “American vessel” means
any vessel documented or numbered under the laws of the United
States; and includes any vessel which is neither documented or
numbered under the laws of the United States nor documented under
the laws of any foreign country, if its crew is employed solely
by one or more citizens or residents of the United States or corporations
organized under the laws of the United States or of any State;
and the term “American aircraft” means an aircraft
registered under the laws of the United States.
(g)AGRICULTURAL LABOR.—For purposes of
this chapter, the term “agricultural labor” includes
all service performed—
-
(1) on a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the raising,
shearing, feeding, caring for, training, and management of livestock,
bees, poultry, and fur-bearing animals and wildlife;
-
(2) in the employ of the owner or tenant or other operator of
a farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and equipment,
or in salvaging timber or clearing land of brush and other debris
left by a hurricane, if the major part of such service is performed
on a farm;
-
(3) in connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g)
of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j),
or in connection with the ginning of cotton, or in connection
with the operation or maintenance of ditches, canals, reservoirs,
or waterways, not owned or operated for profit, used exclusively
for supplying and storing water for farming purposes;
-
(4)(A) in the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing, grading,
storing, or delivering to storage or to market or to a carrier
for transportation to market, in its unmanufactured state, any
agricultural or horticultural commodity; but only if such operator
produced more than one-half of the commodity with respect to which
such service is performed;
-
(B) in the employ of a group of operators of farms (other than
a cooperative organization) in the performance of service described
in subparagraph (A), but only if such operators produced all of
the commodity with respect to which such service is performed.
For purposes of this subparagraph, any unincorporated group of
operators shall be deemed a cooperative organization if the number
of operators comprising such group is more than 20 at any time
during the calendar year in which such service is performed;
-
(C) the provisions of subparagraphs (A) and (B) shall not be
deemed to be applicable with respect to service performed in connection
with commercial canning or commercial freezing or in connection
with any agricultural or horticultural commodity after its delivery
to a terminal market for distribution for consumption; or
-
(5) on a farm operated for profit if such service is not in
the course of the employer's trade or business [16].
(h)AMERICAN EMPLOYER.—For purposes of this
chapter, the term “American employer” means an
employer which is—
-
(1) the United States or any instrumentality thereof,
-
(2) an individual who is a resident of the United States,
-
(3) a partnership, if two-thirds or more of the partners are
residents of the United States,
-
(4) a trust, if all of the trustees are residents of the United
States, or
-
(5) a corporation organized under the laws of the United States
or of any State.
(i) COMPUTATION OF WAGES IN CERTAIN
CASES.—
-
(1) DOMESTIC SERVICE.—For purposes
of this chapter, in the case of domestic service described in subsection
(a)(7)(B), any payment of cash remuneration for such service which
is more or less than a whole-dollar amount shall, under such conditions
and to such extent as may be prescribed by regulations made under
this chapter, be computed to the nearest dollar. For the purpose
of the computation to the nearest dollar, the payment of a fractional
part of a dollar shall be disregarded unless it amounts to one-half
dollar or more, in which case it shall be increased to $1. The
amount of any payment of cash remuneration so computed to the nearest
dollar shall, in lieu of the amount actually paid, be deemed to
constitute the amount of cash remuneration for purposes of subsection (a)(7)(B).
-
(2) SERVICE IN THE UNIFORMED SERVICES.—For
purposes of this chapter, in the case of an individual performing
service, as a member of a uniformed service, to which the provisions
of subsection (m)(1) are applicable, the term “wages” shall,
subject to the provisions of subsection (a)(1) of this section,
include as such individual's remuneration for such service only
(A) his basic pay as described in chapter 3 and section 1009 of title
37, United States Code, in the case of an individual performing
service to which subparagraph (A) of such subsection (m)(1) applies,
or (B) his compensation for such service as determined under section
206(a) of title 37, United States Code, in the case of an individual
performing service to which subparagraph (B) of such subsection
(m)(1) applies.
-
(3) PEACE CORPS VOLUNTEER SERVICE.—For
purposes of this chapter, in the case of an individual performing
service, as a volunteer or volunteer leader within the meaning
of the Peace Corps Act, to which the provisions of section 3121(p)
are applicable, the term “wages” shall, subject
to the provisions of subsection (a)(1) of this section, include
as such individual's remuneration for such service only amounts
paid pursuant to section 5(c) or 6(1) of the Peace Corps Act.
-
(4) SERVICE PERFORMED BY CERTAIN MEMBERS OF RELIGIOUS
ORDERS.—For purposes of this chapter, in any case
where an individual is a member of a religious order (as defined
in subsection (r)(2)) performing service in the exercise of duties
required by such order, and an election of coverage under subsection
(r) is in effect with respect to such order or with respect to
the autonomous subdivision thereof to which such member belongs,
the term “wages” shall, subject to the provisions
of subsection (a)(1), include as such individual's remuneration
for such service the fair market value of any board, lodging, clothing,
and other perquisites furnished to such member by such order or
subdivision thereof or by any other person or organization pursuant
to an agreement with such order or subdivision, except that the
amount included as such individual's remuneration under this paragraph
shall not be less than $100 a month.
-
(5) SERVICE PERFORMED BY CERTAIN RETIRED JUSTICES
AND JUDGES.—For purposes of this chapter, in the case
of an individual performing service under the provisions of section
294 of title 28, United States Code (relating to assignment of
retired justices and judges to active duty), the term “wages” shall
not include any payment under section 371(b) of such title 28 which
is received during the period of such service.
(j)COVERED TRANSPORTATION SERVICE.—For
purposes of this chapter—
-
(1) EXISTING TRANSPORTATION SYSTEMS—GENERAL
RULE.—Except as provided in paragraph (2), all service
performed in the employ of a State or political subdivision in
connection with its operation of a public transportation system
shall constitute covered transportation service if any part of
the transportation system was acquired from private ownership
after 1936 and prior to 1951.
-
(2) EXISTING TRANSPORTATION SYSTEMS—CASES
IN WHICH NO TRANSPORTATION EMPLOYEES, OR ONLY CERTAIN EMPLOYEES,
ARE COVERED.—Service performed in the employ of a
State or political subdivision in connection with the operation
of its public transportation system shall not constitute covered
transportation service if—
-
(A) any part of the transportation system was acquired from
private ownership after 1936 and prior to 1951, and substantially
all service in connection with the operation of the transportation
system was, on December 31, 1950, covered under a general retirement
system providing benefits which, by reason of a provision of the
State constitution dealing specifically with retirement systems
of the State or political subdivisions thereof, cannot be diminished
or impaired; or
-
(B) no part of the transportation system operated by the State
or political subdivision on December 31, 1950, was acquired from
private ownership after 1936 and prior to 1951;
-
except that if such State or political subdivision makes an
acquisition after 1950 from private ownership of any part of its
transportation system, then, in the case of any employee who—
-
(C) became an employee of such State or political subdivision
in connection with and at the time of its acquisition after 1950
of such part, and
-
(D) prior to such acquisition rendered service in employment
(including as employment service covered by an agreement under
section 218 of the Social Security Act) in connection with the
operation of such part of the transportation system acquired by
the State or political subdivision,
-
the service of such employee in connection with the operation
of the transportation system shall constitute covered transportation
service, commencing with the first day of the third calendar quarter
following the calendar quarter in which the acquisition of such
part took place, unless on such first day such service of such
employee is covered by a general retirement system which does not,
with respect to such employee, contain special provisions applicable
only to employees described in subparagraph (C).
-
(3) TRANSPORTATION SYSTEMS ACQUIRED AFTER 1950.—All
service performed in the employ of a State or political subdivision
thereof in connection with its operation of a public transportation
system shall constitute covered transportation service if the transportation
system was not operated by the State or political subdivision prior
to 1951 and, at the time of its first acquisition (after 1950)
from private ownership of any part of its transportation system,
the State or political subdivision did not have a general retirement
system covering substantially all service performed in connection
with the operation of the transportation system.
-
(4) DEFINITIONS.—For purposes of this
subsection—
-
(A) The term “general retirement system” means
any pension, annuity, retirement, or similar fund or system established
by a State or by a political subdivision thereof for employees
of the State, political subdivision, or both; but such term shall
not include such a fund or system which covers only service performed
in positions connected with the operation of its public transportation
system.
-
(B) A transportation system or a part thereof shall be considered
to have been acquired by a State or political subdivision from
private ownership if prior to the acquisition service performed
by employees in connection with the operation of the system or
part thereof acquired constituted employment under this chapter
or subchapter A of chapter 9 of the Internal Revenue Code of 1939
or was covered by an agreement made pursuant to section 218 of
the Social Security Act and some of such employees became employees
of the State or political subdivision in connection with and at
the time of such acquisition.
-
(C) The term “political subdivision” includes
an instrumentality of—
-
(i) a State,
-
(ii) one or more political subdivisions of a State, or
-
(iii) a State and one or more of its political subdivisions.
[(k) Repealed.[17]]
(l) AGREEMENTS ENTERED INTO BY AMERICAN
EMPLOYERS WITH RESPECT TO FOREIGN AFFILIATES.—
-
(1) AGREEMENT WITH RESPECT TO CERTAIN EMPLOYEES
OF FOREIGN AFFILIATE.—The Secretary shall, at the
American employer's request, enter into an agreement (in such
manner and form as may be prescribed by the Secretary) with any
American employer (as defined in subsection (h)) who desires to
have the insurance system established by title II of the Social
Security Act extended to service performed outside the United
States in the employ of any 1 or more of such employer's foreign
affiliates (as defined in paragraph (6)) by all employees who
are citizens or residents of the United States, except that the
agreement shall not apply to any service performed by, or remuneration
paid to, an employee if such service or remuneration would be excluded
from the term “employment” or “wages”,
as defined in this section, had the service been performed in the
United States. Such agreement may be amended at any time so as
to be made applicable, in the same manner and under the same conditions,
with respect to any other foreign affiliate of such American employer.
Such agreement shall be applicable with respect to citizens or
residents of the United States who, on or after the effective date
of the agreement, are employees of and perform services outside
the United States for any foreign affiliate specified in the agreement.
Such agreement shall provide—
-
(A) that the American employer shall pay to the Secretary, at
such time or times as the Secretary may by regulations prescribe,
amounts equivalent to the sum of the taxes which would be imposed
by sections 3101 and 3111 (including amounts equivalent to the
interest, additions to the taxes, additional amounts, and penalties
which would be applicable) with respect to the remuneration which
would be wages if the services covered by the agreement constituted
employment as defined in this section; and
-
(B) that the American employer will comply with such regulations
relating to payments and reports as the Secretary may prescribe
to carry out the purposes of this subsection.
-
(2) EFFECTIVE PERIOD OF AGREEMENT.—An
agreement entered into pursuant to paragraph (1) shall be in effect
for the period beginning with the first day of the calendar quarter
in which such agreement is entered into or the first day of the
succeeding calendar quarter, as may be specified in the agreement;
except that in case such agreement is amended to include the services
performed for any other affiliate and such amendment is executed after
the first month following the first calendar quarter for which
the agreement is in effect, the agreement shall be in effect with
respect to service performed for such other affiliate only after
the calendar quarter in which such amendment is executed. Notwithstanding
any other provision of this subsection, the period for which any
such agreement is effective with respect to any foreign entity
shall terminate at the end of any calendar quarter in which the
foreign entity, at any time in such quarter, ceases to be a foreign
affiliate as defined in paragraph (6).
-
(3) NO TERMINATION OF AGREEMENT.—No
agreement under this subsection may be terminated, either in its
entirety or with respect to any foreign affiliate, on or after
June 15, 1989.
-
(4) DEPOSITS IN TRUST FUNDS.—For purposes
of section 201 of the Social Security Act, relating to appropriations
to the Federal Old-Age and Survivors Insurance Trust Fund and the
Federal Disability Insurance Trust Fund, such remuneration—
-
(A) paid for services covered by an agreement entered into
pursuant to paragraph (1) as would be wages if the services constituted
employment, and
-
(B) as is reported to the Secretary pursuant to the provisions
of such agreement or of the regulations issued under this subsection,
-
shall be considered wages subject to the taxes imposed by this
chapter.
-
(5) OVERPAYMENTS AND UNDERPAYMENTS.—
-
(A) If more or less than the correct amount due under an agreement entered
into pursuant to this subsection is paid with respect to any payment
of remuneration, proper adjustments with respect to the amounts
due under such agreement shall be made, without interest, in such
manner and at such times as may be required by regulations prescribed
by the Secretary.
-
(B) If an overpayment cannot be adjusted under subparagraph
(A), the amount thereof shall be paid by the Secretary, through
the Fiscal Service of the Treasury Department, but only if a claim
for such overpayment is filed with the Secretary within two years
from the time such overpayment was made.
-
(6) FOREIGN AFFILIATE DEFINED.—For
purposes of this subsection and section 210(a) of the Social Security
Act—
-
(A) IN GENERAL.—A foreign affiliate
of an American employer is any foreign entity in which such American
employer has not less than a 10- percent interest.
-
(B) DETERMINATION OF 10-PERCENT INTEREST.—For
purposes of subparagraph (A), an American employer has a 10-percent
interest in any entity if such employer has such an interest directly
(or through one or more entities)—
-
(i) in the case of a corporation, in the voting stock thereof,
and
-
(ii) in the case of any other entity, in the profits thereof.
-
(7) AMERICAN EMPLOYER AS SEPARATE ENTITY.—Each
American employer which enters into an agreement pursuant to paragraph
(1) of this subsection shall, for purposes of this subsection and
section 6413(c)(2)(C), relating to special refunds in the case
of employees of certain foreign entities, be considered an employer
in its capacity as a party to such agreement separate and distinct
from its identity as a person employing individuals on its own
account.
-
(8) REGULATIONS.—Regulations of the
Secretary to carry out the purposes of this subsection shall be
designed to make the requirements imposed on American employers
with respect to services covered by an agreement entered into
pursuant to this subsection the same, so far as practicable, as
those imposed upon employers pursuant to this title with respect
to the taxes imposed by this chapter.
(m)SERVICE IN THE UNIFORMED SERVICES.—For
purposes of this chapter—
-
(1) INCLUSION OF SERVICE.—The term
“employment” shall, notwithstanding the provisions
of subsection (b) of this section, include—
-
(A) service performed by an individual as a member of a uniformed service
on active duty, but such term shall not include any such service which
is performed while on leave without pay, and
-
(B) service performed by an individual as a member of a uniformed service
on inactive duty training.
-
(2) ACTIVE DUTY.—The term “active
duty” means “active duty” as described
in section 102 of the Servicemen's and Veterans' Survivor Benefits
Act, except that it shall also include “active duty for
training” as described in such section.
-
(3) INACTIVE DUTY TRAINING.—The term
“inactive duty training” means “inactive
duty training” as described in such section 102.
(n)MEMBER OF A UNIFORMED SERVICE.—For purposes
of this chapter, the term “member of a uniformed service” means
any person appointed, enlisted, or inducted in a component of the
Army, Navy, Air Force, Marine Corps, or Coast Guard (including
a reserve component as defined in section 101(27) of title 38,
United States Code), or in one of those services without specification of
component, or as a commissioned officer of the Coast and Geodetic
Survey, the National Oceanic and Atmospheric Administration Corps,
or the Regular or Reserve Corps of the Public Health Service, and
any person serving in the Army or Air Force under call or conscription.
The term includes—
-
(1) a retired member of any of those services;
-
(2) a member of the Fleet Reserve or Fleet Marine Corps Reserve;
-
(3) a cadet at the United States Military Academy, a midshipman
at the United States Naval Academy, and a cadet at the United
States Coast Guard Academy or United States Air Force Academy;
-
(4) a member of the Reserve Officers' Training Corps, the Naval
Reserve Officers' Training Corps, or the Air Force Reserve Officers'
Training Corps, when ordered to annual training duty for fourteen
days or more, and while performing authorized travel to and from
that duty; and
-
(5) any person while en route to or from, or at, a place for
final acceptance or for entry upon active duty in the military,
naval, or air service—
-
(A) who has been provisionally accepted for such duty; or
-
(B) who, under the Military Selective Service Act, has been
selected for active military, naval, or air service;
-
and has been ordered or directed to proceed to such place.
The term does not include a temporary member of the Coast Guard
Reserve.
(o)CREW LEADER.—For purposes of this chapter,
the term “crew leader” means an individual who
furnishes individuals to perform agricultural labor for another
person, if such individual pays (either on his own behalf or on
behalf of such person) the individuals so furnished by him for
the agricultural labor performed by them and if such individual
has not entered into a written agreement with such person whereby
such individual has been designated as an employee of such person;
and such individuals furnished by the crew leader to perform agricultural
labor for another person shall be deemed to be the employees of
such crew leader. For purposes of this chapter and chapter 2, a crew
leader shall, with respect to service performed in furnishing individuals
to perform agricultural labor for another person and service performed
as a member of the crew, be deemed not to be an employee of such
other person.
(p)PEACE CORPS VOLUNTEER SERVICE.—For purposes
of this chapter, the term “employment” shall,
notwithstanding the provisions of subsection (b) of this section,
include service performed by an individual as a volunteer or volunteer leader
within the meaning of the Peace Corps Act.
(q)TIPS INCLUDED FOR BOTH EMPLOYEE AND EMPLOYER TAXES.—For
purposes of this chapter, tips received by an employee in the course
of his employment shall be considered remuneration for such employment
(and deemed to have been paid by the employer for purposes of subsections
(a) and (b) of section 3111). Such remuneration shall be deemed
to be paid at the time a written statement including such tips
is furnished to the employer pursuant to section 6053(a) or (if
no statement including such tips is so furnished) at the time received;
except that, in determining the employer's liability in connection
with the taxes imposed by section 3111 with respect to such tips
in any case where no statement including such tips was so furnished
(or to the extent that the statement so furnished was inaccurate
or incomplete), such remuneration shall be deemed for purposes
of subtitle F to be paid on the date on which notice and demand
for such taxes is made to the employer by the Secretary.
(r) ELECTION OF COVERAGE BY RELIGIOUS
ORDERS.—
-
(1) CERTIFICATE OF ELECTION BY ORDER.—A
religious order whose members are required to take a vow of poverty,
or any autonomous subdivision of such order, may file a certificate
(in such form and manner, and with such official, as may be prescribed
by regulations under this chapter) electing to have the insurance
system established by title II of the Social Security Act extended
to services performed by its members in the exercise of duties
required by such order or such subdivision thereof. Such certificate
of election shall provide that—
-
(A) such election of coverage by such order or subdivision shall
be irrevocable;
-
(B) such election shall apply to all current and future members
of such order, or in the case of a subdivision thereof to all
current and future members of such order who belong to such subdivision;
-
(C) all services performed by a member of such an order or
subdivision in the exercise of duties required by such order or
subdivision shall be deemed to have been performed by such member
as an employee of such order or subdivision; and
-
(D) the wages of each member, upon which such order or subdivision shall
pay the taxes imposed by sections 3101 and 3111, will be determined
as provided in subsection (i)(4).
-
(2) DEFINITION OF MEMBER.—For purposes
of this subsection, a member of a religious order means any individual
who is subject to a vow of poverty as a member of such order and
who performs tasks usually required (and to the extent usually
required) of an active member of such order and who is not considered
retired because of old age or total disability.
-
(3) EFFECTIVE DATE FOR ELECTION.—(A)
A certificate of election of coverage shall be in effect, for
purposes of subsection (b)(8) and for purposes of section 210(a)(8)
of the Social Security Act, for the period beginning with whichever
of the following may be designated by the order or subdivision
thereof:
-
(i) the first day of the calendar quarter in which the certificate
is filed,
-
(ii) the first day of the calendar quarter succeeding such
quarter, or
-
(iii) the first day of any calendar quarter preceding the calendar quarter
in which the certificate is filed, except that such date may not be
earlier than the first day of the twentieth calendar quarter preceding the
quarter in which such certificate is filed.
-
Whenever a date is designated under clause (iii), the election
shall apply to services performed before the quarter in which
the certificate is filed only if the member performing such services
was a member at the time such services were performed and is living
on the first day of the quarter in which such certificate is filed.
-
(B) If a certificate of election filed pursuant to this subsection
is effective for one or more calendar quarters prior to the quarter
in which such certificate is filed, then—
-
(i) for purposes of computing interest and for purposes of
section 6651 (relating to addition to tax for failure to file tax
return), the due date for the return and payment of the tax for
such prior calendar quarters resulting from the filing of such
certificate shall be the last day of the calendar month following
the calendar quarter in which the certificate is filed; and
-
(ii) the statutory period for the assessment of such tax shall
not expire before the expiration of 3 years from such due date.
(s)CONCURRENT EMPLOYMENT BY TWO OR MORE EMPLOYERS.—For
purposes of sections 3102, 3111, and 3121(a)(1), if two or more
related corporations concurrently employ the same individual and
compensate such individual through a common paymaster which is
one of such corporations, each such corporation shall be considered
to have paid as remuneration to such individual only the amounts
actually disbursed by it to such individual and shall not be considered
to have paid as remuneration to such individual amounts actually
disbursed to such individual by another of such corporations.
[(t) Repealed.[18]]
(u) APPLICATION OF HOSPITAL INSURANCE
TAX TO FEDERAL, STATE, AND LOCAL EMPLOYMENT.—
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(1) FEDERAL EMPLOYMENT.—For purposes
of the taxes imposed by sections 3101(b) and 3111(b), subsection
(b) shall be applied without regard to paragraph (5) thereof.
-
(2) STATE AND LOCAL EMPLOYMENT.—For
purposes of the taxes imposed by sections 3101(b) and 3111(b)—
-
(A) IN GENERAL.—Except as provided
in subparagraphs (B) and (C), subsection (b) shall be applied
without regard to paragraph (7) thereof.
-
(B) EXCEPTION FOR CERTAIN SERVICES.—Service
shall not be treated as employment by reason of subparagraph (A)
if—
-
(i) the service is included under an agreement under section
218 of the Social Security Act, or
-
(ii) the service is performed—
-
(I) by an individual who is employed by a State or political
subdivision thereof to relieve him from unemployment,
-
(II) in a hospital, home, or other institution by a patient
or inmate thereof as an employee of a State or political subdivision
thereof or of the District of Columbia,
-
(III) by an individual, as an employee of a State or political
subdivision thereof or of the District of Columbia, serving on
a temporary basis in case of fire, storm, snow, earthquake, flood
or other similar emergency,
-
(IV) by any individual as an employee included under section
5351(2) of title 5, United States Code (relating to certain interns,
student nurses, and other student employees of hospitals of the
District of Columbia Government), other than as a medical or dental
intern or a medical or dental resident in training,
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(V) by an election official or election worker if the remuneration
paid in a calendar year for such service is less than $1,000 with
respect to service performed during any calendar year commencing
on or after January 1, 1995, ending on or before December 31, 1999,
and the adjusted amount determined under section 218(c)(8)(B) of
the Social Security Act for any calendar year commencing on or
after January 1, 2000, with respect to service performed during
such calendar year, or
-
(VI) by an individual in a position described in section 1402(c)(2)(E).
-
As used in this subparagraph, the terms “State” and
“political subdivision” have the meanings given
those terms in section 218(b) of the Social Security Act.
-
(C) EXCEPTION FOR CURRENT EMPLOYMENT WHICH CONTINUES.—Service
performed for an employer shall not be treated as employment by
reason of subparagraph (A) if—
-
(i) such service would be excluded from the term “employment” for
purposes of this chapter if subparagraph (A) did not apply;
-
(ii) such service is performed by an individual—
-
(I) who was performing substantial and regular service for remuneration
for that employer before April 1, 1986,
-
(II) who is a bona fide employee of that employer on March 31,
1986, and
-
(III) whose employment relationship with that employer was not
entered into for purposes of meeting the requirements of this
subparagraph; and
-
(iii) the employment relationship with that employer has not
been terminated after March 31, 1986.
-
(D) TREATMENT OF AGENCIES AND INSTRUMENTALITIES.— For
purposes of subparagraph (C), under regulations—
-
(i) All agencies and instrumentalities of a State (as defined
in section 218(b) of the Social Security Act) or of the District
of Columbia shall be treated as a single employer.
-
(ii) All agencies and instrumentalities of a political subdivision of
a State (as so defined) shall be treated as a single employer and shall
not be treated as described in clause (i).
-
(3) MEDICARE QUALIFIED GOVERNMENT EMPLOYMENT.—For
purposes of this chapter, the term “medicare qualified
government employment” means service which—
-
(A) is employment (as defined in subsection (b)) with the application of
paragraphs (1) and (2), but
-
(B) would not be employment (as so defined) without the application of
such paragraphs.
(v) TREATMENT OF CERTAIN DEFERRED
COMPENSATION AND SALARY REDUCTION ARRANGEMENTS.—
-
(1) CERTAIN EMPLOYER CONTRIBUTIONS TREATED AS WAGES.—Nothing in
any paragraph of subsection (a) (other than paragraph (1)) shall
exclude from the term “wages”—
-
(A) any employer contribution under a qualified cash or deferred
arrangement (as defined in section 401(k)) to the extent not included
in gross income by reason of section 402(e)(3), or
-
(B) any amount treated as an employer contribution under section
414(h)(2) where the pickup referred to in such section is pursuant
to a salary reduction agreement (whether evidenced by a written
instrument or otherwise).
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(2) TREATMENT OF CERTAIN NONQUALIFIED DEFERRED
COMPENSATION PLANS.—
-
(A) IN GENERAL.—Any amount deferred
under a nonqualified deferred compensation plan shall be taken
into account for purposes of this chapter as of the later of—
-
(i) when the services are performed, or
-
(ii) when there is no substantial risk of forfeiture of the
rights to such amount.
-
The preceding sentence shall not apply to any excess parachute
payment (as defined in section 280G(b)).
-
(B) TAXED ONLY ONCE.—Any amount taken
into account as wages by reason of subparagraph (A) (and the income
attributable thereto) shall not thereafter be treated as wages
for purposes of this chapter.
-
(C) NONQUALIFIED DEFERRED COMPENSATION PLAN.—For
purposes of this paragraph, the term “nonqualified deferred
compensation plan” means any plan or other arrangement
for deferral of compensation other than a plan described in subsection
(a)(5).
-
(3) EXEMPT GOVERNMENTAL DEFERRED COMPENSATION PLAN.—For purposes
of subsection (a)(5), the term “exempt governmental deferred compensation
plan” means any plan providing for deferral of compensation
established and maintained for its employees by the United States,
by a State or political subdivision thereof, or by an agency or
instrumentality of any of the foregoing. Such term shall not include—
-
(A) any plan to which section 83, 402(b), 403(c), 457(a), or
457(f)(1) applies,
-
(B) any annuity contract described in section 403(b), and
-
(C) the Thrift Savings Fund (within the meaning of subchapter
III of chapter 84 of title 5, United States Code).
(w) EXEMPTION OF CHURCHES AND QUALIFIED
CHURCH-CONTROLLED ORGANIZATIONS.—
-
(1) GENERAL RULE.—Any church or qualified
church-controlled organization (as defined in paragraph (3)) may
make an election within the time period described in paragraph
(2), in accordance with such procedures as the Secretary determines
to be appropriate, that services performed in the employ of such
church or organization shall be excluded from employment for purposes
of title II of the Social Security Act and this chapter. An election
may be made under this subsection only if the church or qualified church-
controlled organization states that such church or organization
is opposed for religious reasons to the payment of the tax imposed
under section 3111.
-
(2) TIMING AND DURATION OF ELECTION.—
An election under this subsection must be made prior to the
first date, more than 90 days after July 18, 1984, on which a quarterly
employment tax return for the tax imposed under section 3111 is
due, or would be due but for the election, from such church or
organization. An election under this subsection shall apply to
current and future employees, and shall apply to service performed after
December 31, 1983. The election may be revoked by the church or
organization under regulations prescribed by the Secretary. The
election shall be revoked by the Secretary if such church or organization
fails to furnish the information required under section 6051 to
the Secretary for a period of 2 years or more with respect to remuneration
paid for such services by such church or organization, and, upon
request by the Secretary, fails to furnish all such previously
unfurnished information for the period covered by the election.
Any revocation under the preceding sentence shall apply retroactively
to the beginning of the 2-year period for which the information
was not furnished.
-
(3) DEFINITIONS.—
-
(A) For purposes of this subsection, the term “church” means
a church, a convention or association of churches, or an elementary
or secondary school which is controlled, operated, or principally
supported by a church or by a convention or association of churches.
-
(B) For purposes of this subsection, the term “qualified
church-controlled organization” means any church-controlled
tax-exempt organization described in section 501(c)(3), other than
an organization which—
-
(i) offers goods, services, or facilities for sale, other than
on an incidental basis, to the general public, other than goods,
services, or facilities which are sold at a nominal charge which
is substantially less than the cost of providing such goods, services,
or facilities; and
-
(ii) normally receives more than 25 percent of its support from
either (I) governmental sources, or (II) receipts from admissions, sales
of merchandise, performance of services, or furnishing of facilities,
in activities which are not unrelated trades or businesses, or
both.
(x)APPLICABLE DOLLAR THRESHOLD.—For purposes
of this subsection (a)(7)(B), the term “applicable dollar
threshold” means $1,000. In the case of calendar years
after 1995, the Commissioner of Social Security shall adjust such
$1,000 amount at the same time and in the same manner as under
section 215(a)(1)(B)(ii) of the Social Security Act with respect
to the amounts referred to in section 215(a)(1)(B)(i) of such Act,
except that, for purposes of this paragraph, 1993 shall be substituted
for the calendar year referred to in section 215(a)(1)(B)(ii)(II)
of such Act. If any amount as adjusted under the preceding sentence
is not a multiple of $100, such amount shall be rounded to the
next lowest multiply of $100.
(y) SERVICE IN THE EMPLOY OF INTERNATIONAL
ORGANIZATIONS BY CERTAIN TRANSFERRED FEDERAL EMPLOYEES.—
-
(1) IN GENERAL.—For purposes of this
chapter, service performed in the employ of an international organization
by an individual pursuant to a transfer of such individual to such
international organization pursuant to section 3582 of title 5,
United States Code, shall constitute “employment” if—
-
(A) immediately before such transfer, such individual performed
service with a Federal agency which constituted “employment” under subsection
(b) for purposes of the taxes imposed by sections 3101(a) and 3111(a),
and
-
(B) such individual would be entitled, upon separation from
such international organization and proper application, to reemployment with
such Federal agency under such section 3582.
-
(2) DEFINITIONS.—For purposes of this
subsection—
-
(A) FEDERAL AGENCY.—The term “Federal
agency” means an agency, as defined in section 3581(1)
of title 5, United States Code.
-
(B) INTERNATIONAL ORGANIZATION.—The
term “international organization” has the meaning
provided such term by section 3581(3) of title 5, United States
Code.