[Title 26 CFR ]
[Code of Federal Regulations (annual edition) - April 1, 2000 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                    26


          Parts 30 to 39

                         Revised as of April 1, 2000

Internal Revenue





          Containing a Codification of documents of general 
          applicability and future effect
          As of April 1, 2000
          With Ancillaries
          Published by
          the Office of the Federal Register
          National Archives and Records
          Administration

As a Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2000



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 26:
          Chapter I--Internal Revenue Service, Department of 
          the Treasury (Continued)                                   3
  Finding Aids:
      Table of CFR Titles and Chapters........................     531
      Alphabetical List of Agencies Appearing in the CFR......     549
      Table of OMB control numbers............................     559
      List of CFR Sections Affected...........................     577



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                     ----------------------------

                     Cite this Code:  CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  26 CFR 31.0-1 
                       refers to title 26, part 
                       31, section 0-1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, April 1, 2000), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
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Customer Service call 202-512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Weekly Compilation of Presidential Documents and 
the Privacy Act Compilation are available in electronic format at 
www.access.gpo.gov/nara (``GPO Access''). For more information, contact 
Electronic Information Dissemination Services, U.S. Government Printing 
Office. Phone 202-512-1530, or 888-293-6498 (toll-free). E-mail, 
[email protected].

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

April 1, 2000.



[[Page ix]]



                               THIS TITLE

    Title 26--Internal Revenue is composed of nineteen volumes. The 
contents of these volumes represent all current regulations issued by 
the Internal Revenue Service, Department of the Treasury, as of April 1, 
2000. The first twelve volumes comprise part 1 (Subchapter A--Income 
Tax) and are arranged by sections as follows: Secs. 1.0-1-1.60; 
Secs. 1.61-1.169; Secs. 1.170-1.300; Secs. 1.301-1.400; Secs. 1.401-
1.440; Secs. 1.441-1.500; Secs. 1.501-1.640; Secs. 1.641-1.850; 
Secs. 1.851-1.907; Secs. 1.908-1.1000; Secs. 1.1001-1.1400 and 
Sec. 1.1401 to end. The thirteenth volume containing parts 2-29, 
includes the remainder of subchapter A and all of Subchapter B--Estate 
and Gift Taxes. The last six volumes contain parts 30-39 (Subchapter C--
Employment Taxes and Collection of Income Tax at Source); parts 40-49; 
parts 50-299 (Subchapter D--Miscellaneous Excise Taxes); parts 300-499 
(Subchapter F--Procedure and Administration); parts 500-599 (Subchapter 
G--Regulations under Tax Conventions); and part 600 to end (Subchapter 
H--Internal Revenue Practice).

    The OMB control numbers for Title 26 appear in Sec. 602.101 of this 
chapter. For the convenience of the user, Sec. 602.101 appears in the 
Finding Aids section of the volumes containing parts 1 to 599.

    For this volume, Bonnie J. Fritts was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                       TITLE 26--INTERNAL REVENUE




                   (This book contains parts 30 to 39)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Internal Revenue Service, Department of the 
  Treasury (continued)......................................          31

[[Page 3]]



                   CHAPTER I--INTERNAL REVENUE SERVICE






                      DEPARTMENT OF THE TREASURY--






                               (Continued)




                            (Parts 30 to 39)

  --------------------------------------------------------------------


  Editorial Note: IRS published a document at 45 FR 6088, Jan. 25, 1980, 
deleting statutory sections from their regulations. In Chapter I, cross 
references to the deleted material have been changed to the 
corresponding sections of the IRS Code of 1954 or to the appropriate 
regulations sections. When either such change produced a redundancy, the 
cross reference has been deleted. For further explanation, see 45 FR 
20795, March 31, 1980.

  SUBCHAPTER C--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
Part                                                                Page
31              Employment taxes and collection of income 
                    tax at source...........................           5
32              Temporary employment tax regulations under 
                    the Act of December 29, 1981 (Pub. L. 
                    97-123).................................         401
34              [Reserved]

35              Employment tax and collection of income tax 
                    at source regulations under the Tax 
                    Equity and Fiscal Responsibility Act of 
                    1982....................................         408
35a             Temporary employment tax regulations under 
                    the Interest and Dividend Tax Compliance 
                    Act of 1983.............................         436
36              Contract coverage of employees of foreign 
                    subsidiaries............................         518
37-39           [Reserved]

[[Page 5]]





  SUBCHAPTER C--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE





PART 31--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE--Table of Contents




                         Subpart A--Introduction

Sec.
31.0-1  Introduction.
31.0-2  General definitions and use of terms.
31.0-3  Scope of regulations.
31.0-4  Extent to which the regulations in this part supersede prior 
          regulations.

  Subpart B--Federal Insurance Contributions Act (Chapter 21, Internal 
                          Revenue Code of 1954)

                            Tax on Employees

31.3101-1  Measure of employee tax.
31.3101-2  Rates and computation of employee tax.
31.3101-3  When employee tax attaches.
31.3102-1  Collection of, and liability for, employee tax; in general.
31.3102-2  Manner and time of payment of employee tax.
31.3102-3  Collection of, and liability for, employee tax on tips.

                            Tax on Employers

31.3111-1  Measure of employer tax.
31.3111-2  Rates and computation of employer tax.
31.3111-3  When employer tax attaches.
31.3111-4  Liability for employer tax.
31.3111-5  Manner and time of payment of employer tax.
31.3112-1  Instrumentalities of the United States specifically exempted 
          from the employer tax.

                           General Provisions

31.3121(a)-1  Wages.
31.3121(a)-1T  Question and answer relating to the definition of wages 
          in section 3121(a) (Temporary).
31.3121(a)-2  Wages; when paid and received.
31.3121(a)-3  Reimbursement and other expense allowance amounts.
31.3121(a)(1)-1  Annual wage limitation.
31.3121(a)(2)-1  Payments under employers' plans on account of 
          retirement, sickness or accident disability, medical or 
          hospitalization expenses, or death.
31.3121(a)(3)-1  Retirement payments.
31.3121(a)(4)-1  Payments on account of sickness or accident disability, 
          or medical or hospitalization expenses.
31.3121(a)(5)-1  Payments from or to certain tax-exempt trusts, or under 
          or to certain annuity plans or bond purchase plans.
31.3121(a)(6)-1  Payment by an employer of employee tax under section 
          3101 or employee contributions under a State law.
31.3121(a)(7)-1  Payments for services not in the course of employer's 
          trade or business or for domestic service.
31.3121(a)(8)-1  Payments for agricultural labor.
31.3121(a)(9)-1  Payments to employees for nonwork periods.
31.3121(a)(10)-1  Payments to certain home workers.
31.3121(a)(11)-1  Moving expenses.
31.3121(a)(12)-1  Tips.
31.3121(a)(13)-1  Payments under certain employers' plans after 
          retirement, disability, or death.
31.3121(a)(14)-1  Payments by employer to survivor or estate of former 
          employee.
31.3121(a)(15)-1  Payments by employer to disabled former employee.
31.3121(a)(18)-1  Payments or benefits under a qualified educational 
          assistance program.
31.3121(b)-1  Employment; services to which the regulations in this 
          subpart apply.
31.3121(b)-2  Employment; services performed before 1955.
31.3121(b)-3  Employment; services performed after 1954.
31.3121(b)-4  Employment; excepted services in general.
31.3121(b)(1)-1  Certain services performed by foreign agricultural 
          workers, or performed before 1959 in connection with 
          oleoresinous products.
31.3121(b)(2)-1  Domestic service performed by students for certain 
          college organizations.
31.3121(b)(3)-1  Family employment.
31.3121(b)(4)-1  Services performed on or in connection with a non-
          American vessel or aircraft.
31.3121(b)(5)-1  Services in employ of an instrumentality of the United 
          States specifically exempted from the employer tax.
31.3121(b)(6)-1  Services in employ of United States or instrumentality 
          thereof.
31.3121(b)(7)-1  Services in employ of States or their political 
          subdivisions or instrumentalities.
31.3121(b)(7)-2  Service by employees who are not members of a public 
          retirement system.
31.3121(b)(8)-1  Services performed by a minister of a church or a 
          member of a religious order.

[[Page 6]]

31.3121(b)(8)-2  Services in employ of religious, charitable, 
          educational, or certain other organizations exempt from income 
          tax.
31.3121(b)(9)-1  Railroad industry; services performed by an employee or 
          an employee representative as defined in section 3231.
31.3121(b)(10)-1  Services for remuneration of less than $50 for 
          calendar quarter in the employ of certain organizations exempt 
          from income tax.
31.3121(b)(10)-2  Services performed by certain students in the employ 
          of a school, college, or university, or of a nonprofit 
          organization auxiliary to a school, college, or university.
31.3121(b)(11)-1  Services in the employ of a foreign government.
31.3121(b)(12)-1  Services in employ of wholly owned instrumentality of 
          foreign government.
31.3121(b)(13)-1  Services of student nurse or hospital intern.
31.3121(b)(14)-1  Services in delivery or distribution of newspapers, 
          shopping news, or magazines.
31.3121(b)(15)-1  Services in employ of international organization.
31.3121(b)(16)-1  Services performed under share-farming arrangement.
31.3121(b)(17)-1  Services in employ of Communist organization.
31.3121(b)(18)-1  Services performed by a resident of the Republic of 
          the Philippines while temporarily in Guam.
31.3121(b)(19)-1  Services of certain nonresident aliens.
31.3121(b)(20)-1  Service performed on a boat engaged in catching fish.
31.3121(c)-1  Included and excluded services.
31.3121(d)-1  Who are employees.
31.3121(d)-2  Who are employers.
31.3121(e)-1  State, United States, and citizen.
31.3121(f)-1  American vessel and aircraft.
31.3121(g)-1  Agricultural labor.
31.3121(h)-1  American employer.
31.3121(i)-1  Computation to nearest dollar of cash remuneration for 
          domestic service.
31.3121(i)-2  Computation of remuneration for service performed by an 
          individual as a member of a uniformed service.
31.3121(i)-3  Computation of remuneration for service performed by an 
          individual as a volunteer or volunteer leader within the 
          meaning of the Peace Corps Act.
31.3121(i)-4  Computation of remuneration for service performed by 
          certain members of religious orders.
31.3121(j)-1  Covered transportation service.
31.3121(k)-1  Waiver of exemption from taxes.
31.3121(k)-2  Waivers of exemption; original effective date changed 
          retroactively.
31.3121(k)-3  Request for coverage of individual employed by exempt 
          organization before August 1, 1956.
31.3121(k)-4  Constructive filing of waivers of exemption from social 
          security taxes by certain tax-exempt organizations.
31.3121(l)-1  Agreements entered into by domestic corporations with 
          respect to foreign subsidiaries.
31.3121(o)-1  Crew leader.
31.3121(q)-1  Tips included for employee taxes.
31.3121(r)-1  Election of coverage by religious orders.
31.3121(s)-1  Concurrent employment by related corporations with common 
          paymaster.
31.3121(v)(2)-1  Treatment of amounts deferred under certain 
          nonqualified deferred compensation plans.
31.3121(v)(2)-2  Effective dates and transition rules.
31.3123-1  Deductions by an employer from remuneration of an employee.

  Subpart C--Railroad Retirement Tax Act (Chapter 22, Internal Revenue 
                              Code of 1954)

                            Tax on Employees

31.3201-1  Measure of employee tax.
31.3201-2  Rates and computation of employee tax.
31.3202-1  Collection of, and liability for, employee tax.

                     Tax on Employee Representatives

31.3211-1  Measure of employee representative tax.
31.3211-2  Rates and computation of employee representative tax.
31.3211-3  Employee representative supplemental tax.
31.3212-1  Determination of compensation.

                            Tax on Employers

31.3221-1  Measure of employer tax.
31.3221-2  Rates and computation of employer tax.
31.3221-3  Supplemental tax.
31.3221-4  Exception from supplemental tax.

                           General Provisions

31.3231(a)-1  Who are employers.
31.3231(b)-1  Who are employees.
31.3231(c)-1  Who are employee representatives.
31.3231(d)-1  Service.
31.3231(e)-1  Compensation.
31.3231(e)-2  Contribution base.

 Subpart D--Federal Unemployment Tax Act (Chapter 23, Internal Revenue 
                              Code of 1954)

31.3301-1  Persons liable for tax.

[[Page 7]]

31.3301-2  Measure of tax.
31.3301-3  Rate and computation of tax.
31.3301-4  When wages are paid.
31.3302(a)-1  Credit against tax for contributions paid.
31.3302(a)-2  Refund of State contributions.
31.3302(a)-3  Proof of credit under section 3302(a).
31.3302(b)-1  Additional credit against tax.
31.3302(b)-2  Proof of additional credit under section 3302(b).
31.3302(c)-1  Limit on total credits.
31.3302(d)-1  Definitions and special rules relating to limit on total 
          credits.
31.3302(e)-1  Successor employer.
31.3306(a)-1  Who are employers.
31.3306(b)-1  Wages.
31.3306(b)-1T  Question and answer relating to the definition of wages 
          in section 3306(b) (Temporary).
31.3306(b)-2  Reimbursement and other expense allowance amounts.
31.3306(b)(1)-1  $3,000 limitation.
31.3306(b)(2)-1  Payments under employers' plans on account of 
          retirement, sickness or accident disability, medical or 
          hospitalization expenses, or death.
31.3306(b)(3)-1  Retirement payments.
31.3306(b)(4)-1  Payments on account of sickness or accident disability, 
          or medical or hospitalization expenses.
31.3306(b)(5)-1  Payments from or to certain tax-exempt trusts, or under 
          or to certain annuity plans or bond purchase plans.
31.3306(b)(6)-1  Payment by an employer of employee tax under section 
          3101 or employee contributions under a State law.
31.3306(b)(7)-1  Payments other than in cash for service not in the 
          course of employer's trade or business.
31.3306(b)(8)-1  Payments to employees for non-work periods.
31.3306(b)(9)-1  Moving expenses.
31.3306(b)(10)-1  Payments under certain employers' plans after 
          retirement, disability, or death.
31.3306(b)(13)-1  Payments or benefits under a qualified educational 
          assistance program.
31.3306(c)-1  Employment; services performed before 1955.
31.3306(c)-2  Employment; services performed after 1954.
31.3306(c)-3  Employment; excepted services in general.
31.3306(c)(1)-1  Agricultural labor.
31.3306(c)(2)-1  Domestic service.
31.3306(c)(3)-1  Services not in the course of employer's trade or 
          business.
31.3306(c)(4)-1  Services on or in connection with a non-American vessel 
          or aircraft.
31.3306(c)(5)-1  Family employment.
31.3306(c)(6)-1  Services in employ of United States or instrumentality 
          thereof.
31.3306(c)(7)-1  Services in employ of States or their political 
          subdivisions or instrumentalities.
31.3306(c)(8)-1  Services in employ of religious, charitable, 
          educational, or certain other organizations exempt from income 
          tax.
31.3306(c)(9)-1  Railroad industry; services performed by an employee or 
          an employee representative under the Railroad Unemployment 
          Insurance Act.
31.3306(c)(10)-1  Services in the employ of certain organizations exempt 
          from income tax.
31.3306(c)(10)-2  Services of student in employ of school, college, or 
          university.
31.3306(c)(10)-3  Services before 1962 in employ of certain employees' 
          beneficiary associations.
31.3306(c)(11)-1  Services in employ of foreign government.
31.3306(c)(12)-1  Services in employ of wholly owned instrumentality of 
          foreign government.
31.3306(c)(13)-1  Services of student nurse or hospital intern.
31.3306(c)(14)-1  Services of insurance agent or solicitor.
31.3306(c)(15)-1  Services in delivery or distribution of newspapers, 
          shopping news, or magazines.
31.3306(c)(16)-1  Services in employ of international organization.
31.3306(c)(17)-1  Fishing services.
31.3306(c)(18)-1  Services of certain nonresident aliens.
31.3306(d)-1  Included and excluded service.
31.3306(i)-1  Who are employees.
31.3306(j)-1  State, United States, and citizen.
31.3306(k)-1  Agricultural labor.
31.3306(m)-1  American vessel and aircraft.
31.3306(n)-1  Services on American vessel whose business is conducted by 
          general agent of Secretary of Commerce.
31.3306(p)-1  Employees or related corporations.
31.3306(r)(2)-1  Treatment of amounts deferred under certain 
          nonqualified deferred compensation plans.
31.3307-1  Deductions by an employer from remuneration of an employee.
31.3308-1  Instrumentalities of the United States specifically exempted 
          from tax imposed by section 3301.

              Subpart E--Collection of Income Tax at Source

31.3401(a)-1  Wages.
31.3401(a)-1T  Question and answer relating to the definition of wages 
          in section 3401(a) (Temporary).
31.3401(a)-2  Exclusions from wages.
31.3401(a)-3  Amounts deemed wages under voluntary withholding 
          agreements.
31.3401(a)-4  Reimbursements and other expense allowance amounts.
31.3401(a)(1)-1  Remuneration of members of the Armed Forces of the 
          United States

[[Page 8]]

          for active service in combat zone or while hospitalized as a 
          result of such service.
31.3401(a)(2)-1  Agricultural labor.
31.3401(a)(3)-1  Remuneration for domestic service.
31.3401(a)(4)-1  Cash remuneration for service not in the course of 
          employer's trade or business.
31.3401(a)(5)-1  Remuneration for services for foreign government or 
          international organization.
31.3401(a)(6)-1  Remuneration for services of nonresident alien 
          individuals.
31.3401(a)(6)-1A  Remuneration for services of certain nonresident alien 
          individuals paid before January 1, 1967.
31.3401(a)(7)-1  Remuneration paid before January 1, 1967, for services 
          performed by nonresident alien individuals who are residents 
          of a contiguous country and who enter and leave the United 
          States at frequent intervals.
31.3401(a)(8)(A)-1  Remuneration for services performed outside the 
          United States by citizens of the United States.
31.3401(a)(8)(B)-1  Remuneration for services performed in possession of 
          the United States (other than Puerto Rico) by citizen of the 
          United States.
31.3401(a)(8)(C)-1  Remuneration for services performed in Puerto Rico 
          by citizen of the United States.
31.3401(a)(9)-1  Remuneration for services performed by a minister of a 
          church or a member of a religious order.
31.3401(a)(10)-1  Remuneration for services in delivery or distribution 
          of newspapers, shopping news, or magazines.
31.3401(a)(11)-1  Remuneration other than in cash for service not in the 
          course of employer's trade or business.
31.3401(a)(12)-1  Payments from or to certain tax-exempt trusts, or 
          under or to certain annuity plans or bond purchase plans, or 
          to individual retirement plans.
31.3401(a)(13)-1  Remuneration for services performed by Peace Corps 
          volunteers.
31.3401(a)(14)-1  Group-term life insurance.
31.3401(a)(15)-1  Moving expenses.
31.3401(a)(16)-1  Tips.
31.3401(a)(17)-1  Remuneration for services performed on a boat engaged 
          in catching fish.
31.3401(a)(18)-1  Payments or benefits under a qualified educational 
          assistance program.
31.3401(a)(19)-1  Reimbursements under a self-insured medical 
          reimbursement plan.
31.3401(b)-1  Payroll period.
31.3401(c)-1  Employee.
31.3401(d)-1  Employer.
31.3401(e)-1  Number of withholding exemptions claimed.
31.3401(f)-1  Tips.
31.3402(a)-1  Requirement of withholding.
31.3402(b)-1  Percentage method of withholding.
31.3402(c)-1  Wage bracket withholding.
31.3402(d)-1  Failure to withhold.
31.3402(e)-1  Included and excluded wages.
31.3402(f)(1)-1  Withholding exemptions.
31.3402(f)(2)-1  Withholding exemption certificates.
31.3402(f)(3)-1  When withholding exemption certificate takes effect.
31.3402(f)(4)-1  Period during which withholding exemption certificate 
          remains in effect.
31.3402(f)(4)-2  Effective period of withholding exemption certificate.
31.3402(f)(5)-1  Form and contents of withholding exemption 
          certificates.
31.3402(f)(6)-1  Withholding exemptions for nonresident alien 
          individuals.
31.3402(g)-1  Supplemental wage payments.
31.3402(g)-2  Wages paid for payroll period of more than one year.
31.3402(g)-3  Wages paid through an agent, fiduciary, or other person on 
          behalf of two or more employers.
31.3402(h)(1)-1  Withholding on basis of average wages.
31.3402(h)(2)-1  Withholding on basis of annualized wages.
31.3402(h)(3)-1  Withholding on basis of cumulative wages.
31.3402(h)(4)-1  Other methods.
31.3402(i)-1  Additional withholding.
31.3402(i)-2  Increases or decreases in withholding.
31.3402(j)-1  Remuneration other than in cash for service performed by 
          retail commission salesman.
31.3402(k)-1  Special rule for tips.
31.3402(l)-1  Determination and disclosure of marital status.
31.3402(m)-1  Withholding allowances.
31.3402(n)-1  Employees incurring no income tax liability.
31.3402(o)-1  Extension of withholding to supplemental unemployment 
          compensation benefits.
31.3402(o)-2  Extension of withholding to annuity payments if requested 
          by payee.
31.3402(o)-3  Extension of withholding to sick pay.
31.3402(p)-1  Voluntary withholding agreements.
31.3402(q)-1  Extension of withholding to certain gambling winnings.
31.3402(r)-1  Withholding on distributions of Indian gaming profits to 
          tribal members.
31.3403-1  Liability for tax.
31.3404-1  Return and payment by governmental employer.
31.3405(c)-1  Withholding on eligible rollover distributions; questions 
          and answers.
31.3406-0  Outline of the backup withholding regulations.
31.3406a-1  Backup withholding requirement on reportable payments.

[[Page 9]]

31.3406a-2  Definition of payors obligated to backup withhold.
31.3406a-3  Scope and extent of accounts subject to backup withholding.
31.3406a-4  Time when payments are considered to be paid and subject to 
          backup withholding.
31.3406(b((2)-1  Reportable interest payment.
31.3406(b)(2)-2  Original issue discount.
31.3406(b)(2)-3  Window transactions.
31.3406(b)(2)-4  Reportable dividend payment.
31.3406(b)(2)-5  Reportable patronage dividend payment.
31.3406(b)(3)-1  Reportable payments of rents, commissions, nonemployee 
          compensation, etc.
31.3406(b)(3)-2  Reportable barter exchanges and gross proceeds of sales 
          of securities or commodities by brokers.
31.3406(b)(3)-3  Reportable payments by certain fishing boat operators.
31.3406(b)(3)-4  Reportable payments of royalties.
31.3406(b)(4)-1  Exemption for certain minimal payments.
31.3406(c)-1  Notified payee underreporting of reportable interest or 
          dividend payments.
31.3406(d)-1  Manner required for furnishing a taxpayer identification 
          number.
31.3406(d)-2  Payee certification failure.
31.3406(d)-3  Special 30-day rules for certain reportable payments.
31.3406(d)-4  Special rules for readily tradable instruments acquired 
          through a broker.
31.3406(d)-5  Backup withholding when the Service or a broker notifies 
          the payor to withhold because the payee's taxpayer 
          identification number is incorrect.
31.3406(e)-1  Period during which backup withholding is required.
31.3406(f)-1  Confidentiality of information.
31.3406(g)-1  Exception for payments to certain payees and certain other 
          payments.
31.3406(g)-2  Exception for reportable payments for which withholding is 
          otherwise required.
31.3406(g)-3  Exemption while payee is waiting for a taxpayer 
          identification number.
31.3406(h)-1  Definitions.
31.3406(h)-2  Special rules.
31.3406(h)-3  Certificates.
31.3406(i)-1  Effective date.
31.3406(j)-1  Taxpayer Identification Number (TIN) matching program.

Subpart F--General Provisions Relating to Employment Taxes (Chapter 25, 
                     Internal Revenue Code of 1954)

31.3501(a)-1T  Question and answer relating to the time employers must 
          collect and pay the taxes on noncash fringe benefits 
          (Temporary).
31.3502-1  Nondeductibility of taxes in computing taxable income.
31.3503-1  Tax under chapter 21 or 22 paid under wrong chapter.
31.3504-1  Acts to be performed by agents.
31.3505-1  Liability of third parties paying or providing for wages.
31.3506-1  Companion sitting placement services.
31.3507-1  Advance payments of earned income credit.
31.3507-2  Earned income credit advance payment certificates.

     Subpart G--Administrative Provisions of Special Application to 
 Employment Taxes (Selected Provisions of Subtitle F, Internal Revenue 
                              Code of 1954)

31.6001-1  Records in general.
31.6001-2  Additional records under Federal Insurance Contributions Act.
31.6001-3  Additional records under Railroad Retirement Tax Act.
31.6001-4  Additional records under Federal Unemployment Tax Act.
31.6001-5  Additional records in connection with collection of income 
          tax at source on wages.
31.6001-6  Notice by district director requiring returns, statements, or 
          the keeping of records.
31.6011(a)-1  Returns under Federal Insurance Contributions Act.
31.6011(a)-2  Returns under Railroad Retirement Tax Act.
31.6011(a)-3  Returns under Federal Unemployment Tax Act.
31.6011(a)-3A  Returns of the railroad unemployment repayment tax.
31.6011(a)-4  Returns of income tax withheld.
31.6011(a)-5  Monthly returns.
31.6011(a)-6  Final returns.
31.6011(a)-7  Execution of returns.
31.6011(a)-8  Composite return in lieu of specified form.
31.6011(a)-9  Instructions to forms control as to which form is to be 
          used.
31.6011(a)-10  Instructions to forms may waive filing requirement in 
          case of no liability tax returns.
31.6011(b)-1  Employers' identification numbers.
31.6011(b)-2  Employees' account numbers.
31.6051-1  Statements for employees.
31.6051-2  Information returns on Form W-3 and Internal Revenue Service 
          copies of Forms W-2.
31.6051-3  Statements required in case of sick pay paid by third 
          parties.
31.6051-4  Statement required in case of backup withholding.
31.6053-1  Report of tips by employee to employer.
31.6053-2  Employer statement of uncollected employee tax.
31.6053-3  Reporting by certain large food or beverage establishments 
          with respect to tips.

[[Page 10]]

31.6053-4  Substantiation requirements for tipped employees.
31.6061-1  Signing of returns.
31.6065(a)-1  Verification of returns or other documents.
31.6071(a)-1  Time for filing returns and other documents.
31.6071(a)-1A  Time for filing returns with respect to the railroad 
          unemployment repayment tax.
31.6081(a)-1  Extensions of time for filing returns and other documents.
31.6091-1  Place for filing returns.
31.6101-1  Period covered by returns.
31.6109-1  Supplying of identifying numbers.
31.6151-1  Time for paying tax.
31.6157-1  Cross reference.
31.6161(a)(1)-1  Extensions of time for paying tax.
31.6205-1  Adjustments of underpayments.
31.6205-2  Adjustments of underpayments of hospital insurance taxes that 
          accrue after March 31, 1986, and before January 1, 1987, with 
          respect to wages of State and local government employees.
31.6302-0  Table of Contents.
31.6302-1  Federal tax deposit rules for withheld income taxes and taxes 
          under the Federal Insurance Contributions Act (FICA) 
          attributable to payments made after December 31, 1992.
31.6302-2  Federal Tax Deposit Rules for amounts withheld under the 
          Railroad Retirement Tax Act (R.R.T.A.) attributable to 
          payments made after December 31, 1992.
31.6302-3  Federal tax deposit rules for amounts withheld under the 
          backup withholding requirements of section 3406 for payments 
          made after December 31, 1992.
31.6302-4  Federal tax deposit rules for withheld income taxes 
          attributable to nonpayroll payments made after December 31, 
          1993.
31.6302(b)-1  Method of collection.
31.6302(c)-1  Use of Government depositories in connection with taxes 
          under Federal Insurance Contributions Act and income tax 
          withheld for amounts attributable to payments made before 
          January 1, 1993.
31.6302(c)-2  Use of Government depositories in connection with employee 
          and employer taxes under Railroad Retirement Tax Act for 
          amounts attributable to payments made before January 1, 1993.
31.6302(c)-2A  Use of Government depositaries in connection with the 
          railroad unemployment repayment tax.
31.6302(c)-3  Use of Government depositaries in connection with tax 
          under the Federal Unemployment Tax Act.
31.6302(c)-4  Cross references.
31.6361-1  Collection and administration of qualified State individual 
          income taxes.
31.6402(a)-1  Credits or refunds.
31.6402(a)-2  Credit or refund of tax under Federal Insurance 
          Contributions Act or Railroad Retirement Tax Act.
31.6402(a)-3  Refund of Federal unemployment tax.
31.6404(a)-1  Abatements.
31.6413(a)-1  Repayment by employer of tax erroneously collected from 
          employee.
31.6413(a)-2  Adjustment of overpayments.
31.6413(a)-3  Repayment by payor of tax erroneously collected from 
          payee.
31.6413(b)-1  Overpayments of certain employment taxes.
31.6413(c)-1  Special refunds.
31.6414-1  Credit or refund of income tax withheld from wages.
31.6652(c)-1  Failure of employee to report tips for purposes of the 
          Federal Insurance Contributions Act.
31.6674-1  Penalties for fraudulent statement or failure to furnish 
          statement.
31.6682-1  False information with respect to withholding.
31.7805-1  Promulgation of regulations.
31.9999-0  Effective dates.

    Authority: 26 U.S.C. 7805.
    Sections 31.3121(a)-1, 31.3121(a)-3, 31.3231(e)-1, 31.3231(e)-3, 
31.3306(b)-1, 31.3306(b)-2, 31.3401(a)-1, and 31.3401(a)-4 also issued 
under 26 U.S.C. 62.
    Section 31.3121(b)(7)-2 also issued under 26 U.S.C. 3121(b)(7)(F).
    Section 31.3121(b)(19)-1 also issued under 26 U.S.C. 7701(b)(11).
    Section 31.3306(c)(18)-1 also issued under 26 U.S.C. 7701(b)(11).
    Section 31.3401(a)(6)-1 also issued under 26 U.S.C. 1441(c)(4) and 
26 U.S.C. 3401(a)(6).
    Section 31.3402(f)(1)-1 also issued under 26 U.S.C. 3402(m).
    Section 31.3402(f)(5)-1 also issued under 26 U.S.C. 3402 (i) and 
(m).
    Section 31.3402(r)-1 also issued under 26 U.S.C. 3402(p) and (r).
    Sections 31.3406(a)-1 through 31.3406(i)-1 also issued under 26 
U.S.C.3406(i).
    Section 31.3406(j)-1 also issued under 26 U.S.C. 3406(i).
    Section 31.6011(a)-3A is also issued under the authority of 26 
U.S.C. 6011.
    Section 31.6011(a)-4 also issued under 26 U.S.C. 6011.
    Section 31.6051-1(d) also issued under 26 U.S.C. 6051.
    Section 31.6051-2 also issued under 26 U.S.C. 6051.
    Sections 31.6053-3 (b)(5), (h) and (j)(9) and 31.6053-4 are also 
issued under sec. 1072 of Pub. L. 98-369, 98 Stat. 1052; and 26 U.S.C. 
6001.
    Sections 31.6053-3T and 31.6053-4T are also issued under sec. 1072 
of Pub. L. 98-369, 98 Stat. 1052; and 26 U.S.C. 6001.
    Section 31.6071-1 also issued under 26 U.S.C. 6071.
    Section 31.6071(a)-1A is also issued under the authority of 26 
U.S.C. 6071.

[[Page 11]]

    Section 31.6081-1 also issued under 26 U.S.C. 6081.
    Section 31.6205-2 is also issued under 26 U.S.C. 6205(a)(1).
    Sections 31.6302-1 through 31.6302-3 also issued under 26 U.S.C. 
6302 (a), (c), and (h).
    Section 31.6302-4 also issued under 26 U.S.C. 6302 (a) and (c).
    Section 31.6302(c)-2A is also issued under 26 U.S.C. 6302 and 
6157(d).
    Section 31.6302(c)-3 also issued under 26 U.S.C. 6302(h).

    Source: T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 
1960, unless otherwise noted.



                         Subpart A--Introduction



Sec. 31.0-1  Introduction.

    (a) In general. The regulations in this part relate to the 
employment taxes imposed by subtitle C (chapters 21 to 25, inclusive) of 
the Internal Revenue Code of 1954, as amended. References in the 
regulations to the ``Internal Revenue Code'' or the ``Code'' are 
references to the Internal Revenue Code of 1954, as amended, unless 
otherwise indicated. References to the Federal Insurance Contributions 
Act, the Railroad Retirement Tax Act, and the Federal Unemployment Tax 
Act are references to chapters 21, 22, and 23, respectively, of the 
Code. References to sections of law are references to sections of the 
Internal Revenue Code unless otherwise indicated. The regulations in 
this part also provide rules relating to the deposit of other taxes by 
electronic funds transfer.
    (b) Division of regulations. The regulations in this part are 
divided into 7 subparts. Subpart A contains provisions relating to 
general definitions and use of terms, the division and scope of the 
regulations in this part, and the extent to which the regulations in 
this part supersede prior regulations relating to employment taxes. 
Subpart B relates to the taxes under the Federal Insurance Contributions 
Act. Subpart C relates to the taxes under the Railroad Retirement Tax 
Act. Subpart D relates to the tax under the Federal Unemployment Tax 
Act. Subpart E relates to the collection of income tax at source on 
wages under chapter 24 of the Code. Subpart F relates to the provisions 
of chapter 25 of the Code which are applicable in respect of the taxes 
imposed by chapters 21 to 24, inclusive, of the Code. Subpart G relates 
to selected provisions of subtitle F of the Code, relating to procedure 
and administration, which have special application in respect of the 
taxes imposed by subtitle C of the Code. Inasmuch as these regulations 
constitute Part 31 of Title 26 of the Code of Federal Regulations, each 
section of the regulations is preceded by a section symbol and 31 
followed by a decimal point (Sec. 31.). Sections of law or references 
thereto are preceded by ``Sec.'' or the word ``section''.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 8723, 62 FR 
37492, July 14, 1997]



Sec. 31.0-2  General definitions and use of terms.

    (a) In general. As used in the regulations in this part, unless 
otherwise expressly indicated--
    (1) The terms defined in the provisions of law contained in the 
regulations in this part shall have the meanings so assigned to them.
    (2) The Internal Revenue Code of 1954 means the act approved August 
16, 1954 (26 U.S.C.), entitled ``An act to revise the internal revenue 
laws of the United States'', as amended.
    (3) The Internal Revenue Code of 1939 means the act approved 
February 10, 1939 (53 Stat., Part 1), as amended.
    (4) The Social Security Act means the act approved August 14, 1935 
(42 U.S.C. c. 7), as amended.
    (5) (i) The Social Security Amendments of 1954 means the act 
approved September 1, 1954 (68 Stat. 1052), as amended.
    (ii) The Social Security Amendments of 1956 means the act approved 
August 1, 1956 (70 Stat. 807), as amended.
    (iii) The Social Security Amendments of 1958 means the act approved 
August 28, 1958 (72 Stat. 1013), as amended.
    (iv) The Social Security Amendments of 1960 means the act approved 
September 13, 1960 (74 Stat. 924).
    (v) The Social Security Amendments of 1961 means the act approved 
June 30, 1961 (75 Stat. 131).
    (vi) The Social Security Amendments of 1965 means the act approved 
July 30, 1965 (79 Stat. 286).

[[Page 12]]

    (vii) The Social Security Amendments of 1967 means the act approved 
January 2, 1968 (81 Stat. 821).
    (viii) The Social Security Amendments of 1972 means the act approved 
October 30, 1972 (86 Stat. 1329).
    (6) The Social Security Administration means the Social Security 
Administration of the Department of Health and Human Services. (See the 
Statement of Organization and delegations of Authority of the Department 
of Health and Human Services (20 CFR Part 1996).)
    (7) District director means district director of internal revenue. 
The term also includes the Director of International Operations in all 
cases where the authority to perform the functions which may be 
performed by a district director has been delegated to the Director of 
International Operations.
    (8) Person includes an individual, a corporation, a partnership, a 
trust or estate, a joint-stock company, an association, or a syndicate, 
group, pool, joint venture or other unincorporated organization or 
group, through or by means of which any business, financial operation, 
or venture is carried on. It includes a guardian, committee, trustee, 
executor, administrator, trustee in bankruptcy, receiver, assignee for 
the benefit of creditors, conservator, or any person acting in a 
fiduciary capacity.
    (9) Calendar quarter means a period of 3 calendar months ending on 
March 31, June 30, September 30, or December 31.
    (10) Account number means the identifying number of an employee 
assigned, as the case may be, under the Internal Revenue Code of 1954, 
under Subchapter A of Chapter 9 of the Internal Revenue Code of 1939, or 
under Title VIII of the Social Security Act. See also Sec. 301.7701-11 
of this chapter (Regulations on Procedure and Administration).
    (11) Identification number means the identifying number of an 
employer assigned, as the case may be, under the Internal Revenue Code 
of 1954, under Subchapter A or D of Chapter 9 of the Internal Revenue 
Code of 1939, or under Title VIII of the Social Security Act. See also 
Sec. 301.7701-12 of this chapter (Regulations on Procedure and 
Administration).
    (12) Regulations 90 means the regulations approved February 17, 1936 
(26 CFR (1939) Part 400), as amended, relating to the excise tax on 
employers under Title IX of the Social Security Act, and such 
regulations as made applicable to Subchapter C of Chapter 9 and other 
provisions of the Internal Revenue Code of 1939 by Treasury Decision 
4885, approved February 11, 1939 (26 CFR (1939) 1943 Cum. Supp., p. 
5876), together with any amendments to such regulations as so made 
applicable to the Internal Revenue Code of 1939.
    (13) Regulations 91 means the regulations approved November 9, 1936 
(26 CFR (1939) Part 401), as amended, relating to the employees' tax and 
the employers' tax under Title VIII of the Social Security Act, and such 
regulations as made applicable to Subchapter A of Chapter 9 and other 
provisions of the Internal Revenue Code of 1939 by Treasury Decision 
4885, approved February 11, 1939 (26 CFR (1939) 1943 Cum. Supp., p. 
5876), together with any amendments to such regulations as so made 
applicable to the Internal Revenue Code of 1939.
    (14) Regulations 106 means the regulations approved February 24, 
1940 (26 CFR (1939) Part 402), as amended, relating to the employees' 
tax and the employers' tax under the Federal Insurance Contributions Act 
(Subchapter A of Chapter 9 of the Internal Revenue Code of 1939) with 
respect to the period after 1939 and before 1951.
    (15) Regulations 107 means the regulations approved September 12, 
1940 (26 CFR (1939) Part 403), as amended, relating to the excise tax on 
employers under the Federal Unemployment Tax Act (Subchapter C of 
Chapter 9 of the Internal Revenue Code of 1939) with respect to the 
period after 1939 and before 1955.
    (16) Regulations 114 means the regulations approved December 30, 
1948 (26 CFR (1939) Part 411), as amended, relating to the employers' 
tax, employees' tax, and employee representatives' tax under the 
Railroad Retirement Tax Act (Subchapter B of Chapter 9 of the Internal 
Revenue Code of 1939) with respect to compensation paid after 1948

[[Page 13]]

for services rendered after 1946 and before 1955.
    (17) Regulations 120 means the regulations approved December 22, 
1953 (26 CFR (1939) Part 406), as amended, relating to collection of 
income tax at source on wages under Subchapter D of Chapter 9 of the 
Internal Revenue Code of 1939 with respect to the period after 1953 and 
before 1955.
    (18) Regulations 128 means the regulations approved December 6, 1951 
(26 CFR (1939) Part 408), as amended, relating to the employee tax and 
the employer tax under the Federal Insurance Contributions Act 
(Subchapter A of Chapter 9 of the Internal Revenue Code of 1939) with 
respect to the period after 1950 and before 1955.
    (19) The cross references in the regulations in this part to other 
portions of the regulations, when the word ``see'' is used, are made 
only for convenience and shall be given no legal effect.
    (b) Subpart B. As used in Subpart B of this part, unless otherwise 
expressly indicated--
    (1) Act means the Federal Insurance Contributions Act.
    (2) Taxes means the employee tax and the employer tax, as 
respectively defined in this paragraph.
    (3) Employee tax means the tax (with respect to wages received by an 
employee after Dec. 31, 1965, the taxes) imposed by section 3101 of the 
Code.
    (4) Employer tax means the tax (with respect to wages paid by an 
employer after Dec. 31, 1965, the taxes) imposed by section 3111 of the 
Code.
    (c) Subpart C. As used in Subpart C of this part, unless otherwise 
expressly indicated--
    (1) Act means the Railroad Retirement Tax Act.
    (2) Railway Labor Act means the act approved May 20, 1926 (45 U.S.C. 
c. 8), as amended.
    (3) Railroad Retirement Act of 1937 means the act approved June 24, 
1937 (45 U.S.C. 228a and following), as amended.
    (4) Railroad Retirement Board means the board established pursuant 
to section 10 of the Railroad Retirement Act of 1937 (45 U.S.C. 228j).
    (5) Tax means the employee tax, the employee representative tax, or 
the employer tax, as respectively defined in this paragraph.
    (6) Employee tax means the tax imposed by section 3201 of the Code.
    (7) Employee representative tax means the tax imposed by section 
3211 of the Code.
    (8) Employer tax means the tax imposed by section 3221 of the Code.
    (d) Subpart D. As used in Subpart D of this part, unless otherwise 
expressly indicated:
    (1) Act means the Federal Unemployment Tax Act.
    (2) Railroad Unemployment Insurance Act means the act approved June 
25, 1938 (45 U.S.C. c. 11), as amended.
    (3) Tax means the tax imposed by section 3301 of the Code.
    (e) Subpart E. As used in Subpart E of this part, unless otherwise 
expressly indicated, tax means the tax required to be deducted and 
withheld from wages under section 3402 of the Code.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 
8516, Aug. 25, 1962; T.D. 6658, 28 FR 6631, June 27, 1963; T.D. 6983, 33 
FR 18013, Dec. 4, 1968; T.D. 7280, 38 FR 18369, July 10, 1973]



Sec. 31.0-3  Scope of regulations.

    (a) Subpart B. The regulations in Subpart B of this part relate to 
the imposition of the employee tax and the employer tax under the 
Federal Insurance Contributions Act with respect to wages paid and 
received after 1954 for employment performed after 1936. In addition to 
employment in the case of remuneration therefor paid and received after 
1954, the regulations in Subpart B of this part relate also to 
employment performed after 1954 in the case of remuneration therefor 
paid and received before 1955. The regulations in Subpart B of this part 
include provisions relating to the definition of terms applicable in the 
determination of the taxes under the Federal Insurance Contributions 
Act, such as ``employee'', ``wages'', and ``employment''. The provisions 
of Subpart B of this part relating to ``employment'' are applicable 
also, (1) to the extent provided in Sec. 31.3121(b)-2, to services 
performed before 1955 the remuneration for which is paid after 1954, and 
(2) to the extent provided in Sec. 31.3121(k)-3, to services performed 
before 1955 the remuneration

[[Page 14]]

for which was paid before 1955. (For prior regulations on similar 
subject matter, see 26 CFR (1939) Part 408 (Regulations 128).)
    (b) Subpart C. The regulations in Subpart C of this part relate to 
the imposition of the employee tax, the employee representative tax, and 
the employer tax under the Railroad Retirement Tax Act with respect to 
compensation paid after 1954, for services rendered after such date. The 
regulations in Subpart C of this part include provisions relating to the 
definition of terms applicable in the determination of the taxes under 
the Railroad Retirement Tax Act, such as ``employee'', ``employee 
representative'', ``employer'', and ``compensation''. (For prior 
regulations on similar subject matter, see 26 CFR (1939) Part 411 
(Regulations 114).)
    (c) Subpart D. The regulations in Subpart D of this part relate to 
the imposition on employers of the excise tax under the Federal 
Unemployment Tax Act for the calendar year 1955 and subsequent calendar 
years with respect to wages paid after 1954 for employment performed 
after 1938. In addition to employment in the case of remuneration 
therefor paid after 1954, the regulations in Subpart D of this part 
relate also to employment performed after 1954 in the case of 
remuneration therefor paid before 1955. The regulations in Subpart D of 
this part include provisions relating to the definition of terms 
applicable in the determination of the tax under the Federal 
Unemployment Tax Act, such as ``employee'', ``employer'', 
``employment'', and ``wages''. The regulations in Subpart D of this part 
also include provisions relating to the credits against the Federal tax 
for State contributions. (For prior regulations on similar subject 
matter, see 26 CFR (1939) Part 403 (Regulations 107).)
    (d) Subpart E. The regulations in Subpart E of this part relate to 
the withholding under chapter 24 of the Code of income tax at source on 
wages paid after 1954, regardless of when such wages were earned. The 
regulations in Subpart E of this part include provisions relating to the 
definition of terms applicable in the determination of the tax under 
chapter 24 of the Code, such as ``employee'', ``employer'', and 
``wages''. (For prior regulations on similar subject matter, see 26 CFR 
(1939) Part 406 (Regulations 120).)
    (e) Subpart F. The regulations in Subpart F of this part deal with 
the general provisions contained in chapter 25 of the Code, which relate 
to the employment taxes imposed by chapters 21 to 24, inclusive, of the 
Code. (For prior regulations on the subject matter of section 3503, see 
26 CFR (1939) 411.802 and 408.803 (Regulations 114 and 128, 
respectively). For prior regulations on the subject matter of section 
3504, see 26 CFR (1939) 406.807 and 408.906 (Regulations 120 and 128, 
respectively).)
    (f) Subpart G. The regulations in Subpart G of this part, which are 
prescribed under selected provisions of subtitle F of the Code, relate 
to the procedural and administrative requirements in respect of records, 
returns, deposits, payments, and related matters applicable to the 
employment taxes imposed by subtitle C (chapters 21 to 25, inclusive) of 
the Code. In addition, the provisions of Subpart G of this part relate 
to adjustments and to claims for refund, credit, or abatement, made 
after 1954, in connection with the employment taxes imposed by subtitle 
C of the Internal Revenue Code of 1954, by chapter 9 of the Internal 
Revenue Code of 1939, or by the corresponding provisions of prior law, 
but not to any adjustment reported, or credit taken, in whole or in part 
on any return or supplemental return filed on or before July 31, 1960. 
The provisions of Subpart G of this part also relate to deposits of 
taxes imposed by subchapter B of chapter 9 of the 1939 Code or by 
corresponding provisions of prior law with respect to compensation paid 
after 1954 for services rendered before 1955. For other administrative 
provisions which have application to the employment taxes imposed by 
subtitle C of the Code, see Part 301 of this chapter (Regulations on 
Procedure and Administration). (The administrative and procedural 
regulations applicable with respect to a particular employment tax for a 
prior period were combined with the substantive regulations relating to 
such tax for such period. For the regulations applicable to the 
respective taxes for prior periods, see paragraphs (a), (b), (c), and 
(d) of this section.) Subpart G of this part also provides

[[Page 15]]

rules relating to the deposit of other taxes by electronic funds 
transfer.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8305, July 2, 1964; T.D. 8723, 62 FR 37493, July 14, 1997]



Sec. 31.0-4  Extent to which the regulations in this part supersede prior regulations.

    The regulations in this part, with respect to the subject matter 
within the scope thereof, supersede 25 CFR (1939) Parts 403, 406, 408, 
and 411 (Regulations 107, 120, 128, and 114, respectively). The 
Regulation on Monthly Returns and Payment of Employment Taxes (23 FR 
5006) are also superseded.



  Subpart B--Federal Insurance Contributions Act (Chapter 21, Internal 
                          Revenue Code of 1954)

                            Tax on Employees



Sec. 31.3101-1  Measure of employee tax.

    The employee tax is measured by the amount of wages received after 
1954 with respect to employment after 1936. See Sec. 31.3121(a)-1, 
relating to wages; and Secs. 31.3121(b)-1 to 31.3121(b)-4, inclusive, 
relating to employment. For provisions relating to the time of receipt 
of wages, see Sec. 31.3121(a)-2.

[T.D. 6744, 29 FR 8305, July 2, 1964]



Sec. 31.3101-2  Rates and computation of employee tax.

    (a) Old-age, survivors, and disability insurance. The rates of 
employee tax for old-age, survivors, and disability insurance with 
respect to wages received in calendar years after 1954 are as follows:

 
                        Calendar year                           Percent
 
1955 and 1956................................................          2
1957 and 1958................................................       2.25
1959.........................................................        2.5
1960 and 1961................................................          3
1962.........................................................      3.125
1963 to 1965, both inclusive.................................      3.625
1966.........................................................       3.85
1967.........................................................        3.9
1968.........................................................        3.8
1969 and 1970................................................        4.2
1971 and 1972................................................        4.6
1973.........................................................       4.85
1974 to 2010, both inclusive.................................       4.95
2011 and subsequent calendar years...........................       5.95
 

    (b) Hospital insurance. The rates of employee tax for hospital 
insurance with respect to wages received in calendar years after 1965 
are as follows:

 
                        Calendar year                           Percent
 
1966.........................................................       0.35
1967.........................................................        .50
1968 to 1972, both inclusive.................................        .60
1973.........................................................        1.0
1974 to 1977, both inclusive.................................       0.90
1978 to 1980, both inclusive.................................       1.10
1981 to 1985, both inclusive.................................       1.35
1986 and subsequent calendar years...........................       1.50
 

    (c) Computation of employee tax. The employee tax is computed by 
applying to the wages received by the employee the rate in effect at the 
time such wages are received.

    Example. In 1972, employee A performed for employer X services which 
constituted employment (see Sec. 31.3121(b)-2). In 1973 A receives from 
X $1,000 as remuneration for such services. The tax is payable at the 
5.85 percent rate (4.85 percent plus 1.0 percent) in effect for the 
calendar year 1973 (the year in which the wages are received) and not at 
the 5.2 percent rate which was in effect for the calendar year 1972 (the 
year in which the services were performed).

[T.D. 7374, 40 FR 30947, July 24, 1975]



Sec. 31.3101-3  When employee tax attaches.

    The employee tax attaches at the time that the wages are received by 
the employee. For provisions relating to the time of such receipt, see 
Sec. 31.3121(a)-2.



Sec. 31.3102-1  Collection of, and liability for, employee tax; in general.

    (a) The employer shall collect from each of his employees the 
employee tax with respect to wages for employment performed for the 
employer by the employee. The employer shall make the collection by 
deducting or causing to be deducted the amount of the employee tax from 
such wages as and when paid. (For provisions relating to the time of 
such payment, see Sec. 31.3121(a)-2.) The employer is required to 
collect the tax, notwithstanding the wages are paid in something other 
than money, and to pay over the tax in money. (As to the exclusion from 
wages of remuneration paid in any medium other than cash for certain 
types of services, see Sec. 31.3121(a)(7)-1, relating to such 
remuneration paid for service not in the course of the employer's

[[Page 16]]

trade or business or for domestic service in a private home of the 
employer; and Sec. 31.3121(a)(8)-1, relating to such remuneration paid 
for agricultural labor.) For provisions relating to the collection of, 
and liability for, employee tax in respect of tips, see Sec. 31.3102-3.
    (b) The employer is permitted, but not required, to deduct amounts 
equivalent to employee tax from payments to an employee of cash 
remuneration to which the sections referred to in this paragraph are 
applicable prior to the time that the sum of such payments equals:
    (1) $50 in the calendar quarter, for service not in the course of 
the employer's trade or business, to which Sec. 31.3121(a)(7)-1 is 
applicable; or
    (2) $50 in the calendar quarter, for domestic service in a private 
home of the employer, to which Sec. 31.3121(a)(7)-1 is applicable; or
    (3) (i) $100 in the calendar year 1955 or 1956, for agricultural 
labor, to which Sec. 31.3121(a)(8)-1 is applicable; or
    (ii) $150 in any calendar year after 1956, for agricultural labor, 
to which Sec. 31.3121(a)(8)-1 is applicable, but only to the extent that 
such payments are made prior to the twentieth day in such calendar year 
on which the employee has performed such agricultural labor for the 
employer for cash remuneration computed on a time basis; or
    (4) $50 in the calendar quarter, for service performed as a home 
worker, to which Sec. 31.3121(a)(10)-1 is applicable.

At such time as the sum of the cash payments in the calendar quarter or 
the calendar year, as the case may be, for a type of service referred to 
in this paragraph equals or exceeds the amount specified, the employer 
is required to collect from the employee any amount of employee tax not 
previously deducted. Further, at such time in any calendar year after 
1956 as the employee has performed agricultural labor for the employer 
on 20 days during such year for cash remuneration computed on a time 
basis, the employer is required, regardless of the amount of 
remuneration paid by him to the employee in the calendar year, to 
collect from the employee any amount of employee tax not previously 
deducted. If an employer pays cash remuneration to an employee for two 
or more of the types of service referred to in this paragraph, the 
provisions of this paragraph are to be applied separately to the amount 
of remuneration attributable to each type of service. For provisions 
relating to the repayment to an employee, or other disposition, of 
amounts deducted from an employee's remuneration in excess of the 
correct amount of employee tax, see Sec. 31.6413(a)-1. The application 
of this paragraph may be illustrated by the following examples:

    Example 1. In the calendar year 1957 employer X makes several 
payments of cash remuneration to employee A for agricultural labor which 
constitutes employment. In March employee A works on some part of each 
of 8 days for which employer X makes his first payment of such cash 
remuneration to A in the amount of $40. X deducts 90 cents (2\1/4\ 
percent of $40) as an amount equivalent to employee tax. In June A works 
5 days for which X makes his second payment of cash remuneration to A in 
the amount of $50. X does not deduct from this payment an amount 
equivalent to employee tax. In October A works 6 days for which X makes 
his third payment of cash remuneration to A in the amount of $60. This 
amount brings the sum of such payments in 1957 to $150, and X is now 
required to collect employee tax from A even though A has performed 
agricultural labor for X on only 19 days in 1957 and regardless of 
whether the cash remuneration for A's services is computed on a time 
basis. The amount of employee tax applicable to the $150 paid by X to A 
is $3.38 (2\1/4\ percent of $150). Inasmuch as X previously deducted 90 
cents in March 1957, X is required to deduct $2.48 ($3.38 minus 90 
cents) from the $60 paid in October 1957.
    Example 2. In the calendar year 1957 employer Y makes several 
payments of cash remuneration to employee B for agricultural labor which 
constitutes employment. B's cash remuneration is computed on a time 
basis. In January employer Y makes his first payment to employee B in 
the amount of $20 for work performed in 1957 on each of 5 days. Y 
deducts 45 cents (2\1/4\ percent of $20) as an amount equivalent to 
employee tax. In April Y makes his second payment of cash remuneration 
to B in the amount of $40 for work performed in 1957 on each of 10 days. 
Y deducts 90 cents (2\1/4\ percent of $40) as an amount equivalent to 
employee tax. In May B works for Y on each of 5 days and on the last of 
such days Y makes his third payment of cash remuneration to B in the 
amount of $20 for such work. This period of work brings to 20 the number 
of days in the calendar year 1957 on which B has performed agricultural

[[Page 17]]

labor for Y for cash remuneration computed on a time basis, and Y is 
required to collect employee tax from B even though the amount of 
remuneration paid is less than $150. The amount of employee tax 
applicable to the $80 paid by Y to B is $1.80 (2\1/4\ percent of $80). 
Inasmuch as Y previously deducted $1.35 in 1957 (45 cents in January and 
90 cents in April), Y is required to deduct 45 cents ($1.80 minus $1.35) 
from the $20 paid in May 1957.

    (c) In collecting employee tax, the employer shall disregard any 
fractional part of a cent of such tax unless it amounts to one-half cent 
or more, in which case it shall be increased to 1 cent. The employer is 
liable for the employee tax with respect to all wages paid by him to 
each of his employees whether or not it is collected from the employee. 
If, for example, the employer deducts less than the correct amount of 
tax, or if he fails to deduct any part of the tax, he is nevertheless 
liable for the correct amount of the tax. Until collected from him the 
employee also is liable for the employee tax with respect to all the 
wages received by him. Any employee tax collected by or on behalf of an 
employer is a special fund in trust for the United States. See section 
7501. The employer is indemnified against the claims and demands of any 
person for the amount of any payment of such tax made by the employer to 
the district director.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8305, July 2, 1964; T.D. 7001, 34 FR 998, Jan. 23, 1969]



Sec. 31.3102-2  Manner and time of payment of employee tax.

    The employee tax is payable to the district director in the manner 
and at the time prescribed in Subpart G of the regulations in this part. 
For provisions relating to the payment by an employee of employee tax in 
respect of tips, see paragraph (d) of Sec. 31.3102-3.

[T.D. 7001, 34 FR 998, Jan. 23, 1969]



Sec. 31.3102-3  Collection of, and liability for, employee tax on tips.

    (a) Collection of tax from employee-- (1) In general. Subject to the 
limitations set forth in subparagraph (2) of this paragraph, the 
employer shall collect from each of his employees the employee tax on 
those tips received by the employee which constitute wages for purposes 
of the tax imposed by section 3101. (For provisions relating to the 
treatment of tips as wages, see 3121(a)(12) and 3121(q).) The employer 
shall make the collection by deducting or causing to be deducted the 
amount of the employee tax from wages (exclusive of tips) which are 
under the control of the employer or other funds turned over by the 
employee to the employer (see subparagraph (3) of this paragraph). For 
purposes of this section the term ``wages (exclusive of tips) which are 
under the control of the employer'' means, with respect to a payment of 
wages, an amount equal to wages as defined in section 3121(a) except 
that tips and noncash remuneration which are wages are not included, 
less the sum of--
    (i) The tax under section 3101 required to be collected by the 
employer in respect of wages as defined in section 3121(a) (exclusive of 
tips);
    (ii) The tax under section 3402 required to be collected by the 
employer in respect of wages as defined in section 3401(a) (exclusive of 
tips); and
    (iii) The amount of taxes imposed on the remuneration of an employee 
withheld by the employer pursuant to State and local law (including 
amounts withheld under an agreement between the employer and the 
employee pursuant to such law) except that the amount of taxes taken 
into account in this subdivision shall not include any amount 
attributable to tips.
    (2) Limitations. An employer is required to collect employee tax on 
tips which constitute wages only in respect of those tips which are 
reported by the employee to the employer in a written statement 
furnished to the employer pursuant to section 6053(a). The employer is 
responsible for the collection of employee tax on tips reported to him 
only to the extent that the employer can--
    (i) During the period beginning at the time the written statement is 
submitted to him and ending at the close of the 10th day of the month 
following the month in which the statement was submitted, or
    (ii) In the case of an employer who elects to deduct the tax on an 
estimated basis (see paragraph (c) of this

[[Page 18]]

section), during the period beginning at the time the written statement 
is submitted to him and ending at the close of the 30th day following 
the quarter in which the statement was submitted,

collect the employee tax by deducting it or causing it to be deducted as 
provided in subparagraph (1).
    (3) Furnishing of funds to employer. If the amount of employee tax 
in respect of tips reported by the employee to the employer in a written 
statement (or statements) furnished pursuant to section 6053(a) exceeds 
the wages (exclusive of tips) which are under the control of the 
employer, the employee may furnish to the employer, within the period 
specified in subparagraph (2) (i) or (ii) of this paragraph (whichever 
is applicable), an amount of money equal to the amount of such excess.
    (b) Less than $20 of tips. Notwithstanding the provisions of 
paragraph (a) of this section, if an employee furnishes to his employer 
a written statement--
    (1) Covering a period of less than 1 month, and
    (2) The statement is furnished to the employer prior to the close of 
the 10th day of the month following the month in which the tips were 
actually received by the employee, and
    (3) The aggregate amount of tips reported in the statement and in 
all other statements previously furnished by the employee covering 
periods within the same month is less than $20, and the statements, 
collectively, do not cover the entire month,

the employer may deduct amounts equivalent to employee tax on such tips 
from wages (exclusive of tips) which are under the control of the 
employer or other funds turned over by the employee to the employer. For 
provisions relating to the repayment to an employee, or other 
disposition, of amounts deducted from an employee's remuneration in 
excess of the correct amount of employee tax, see Sec. 31.6413(a)-1. (As 
to the exclusion from wages of tips of less than $20, see 
Sec. 31.3121(a)(12)-1.)
    (c) Collection of employee tax on estimated basis--(1) In general. 
Subject to certain limitations and conditions, an employer may, at his 
discretion, make collection of the employee tax in respect of tips 
reported by an employee to the employer on an estimated basis. An 
employer who elects to make collection of the employee tax on an 
estimated basis shall:
    (i) In respect of each employee, make an estimate of the amount of 
tips that will be reported, pursuant to section 6053(a), by the employee 
to the employer in a calendar quarter.
    (ii) Determine the amount which must be deducted upon each payment 
of wages (exclusive of tips) which are under the control of the employer 
to be made during the quarter by the employer to the employee in order 
to collect from the employee during the quarter an amount equal to the 
amount obtained by multiplying the estimated quarterly tips by the sum 
of the rates of tax under subsections (a) and (b) of section 3101.
    (iii) Deduct from any payment of such employee's wages (exclusive of 
tips) which are under the control of the employer, or from funds 
referred to in paragraph (a)(3) of this section, such amount as may be 
necessary to adjust the amount of tax withheld on the estimated basis to 
conform to the amount of employee tax imposed upon, and required to be 
deducted in respect of, tips reported by the employee to the employer 
during the calendar quarter in written statements furnished to the 
employer pursuant to section 6053(a). If an adjustment is required, the 
additional employee tax required to be collected may be deducted upon 
any payment of the employee's wages (exclusive of tips) which are under 
the control of the employer during the quarter and within the first 30 
days following the quarter or from funds turned over by the employee to 
the employer for such purposes within such period. For provisions 
relating to the repayment to an employee, or other disposition, of 
amounts deducted from an employee's remuneration in excess of the 
correct amount of employee tax, see Sec. 31.6413(a)-1.
    (2) Estimating tips employee will report-- (i) Initial estimate. The 
initial estimate of the amount of tips that will be reported by a 
particular employee in a calendar quarter shall be made on the basis of 
the facts and circumstances surrounding the employment of that

[[Page 19]]

employee. However, if a number of employees are employed under 
substantially the same circumstances and working conditions, the initial 
estimate established for one such employee may be used as the initial 
estimate for other employees in that group.
    (ii) Adjusting estimate. If the quarterly estimate of tips in 
respect of a particular employee continues to differ substantially from 
the amount of tips reported by the employee and there are no unusual 
factors involved (for example, an extended absence from work due to 
illness) the employer shall make an appropriate adjustment of his 
estimate of the amount of tips that will be reported by the employee.
    (iii) Reasonableness of estimate. The employer must be prepared, 
upon request of the district director, to disclose the factors upon 
which he relied in making the estimate, and his reasons for believing 
that the estimate is reasonable.
    (d) Employee tax not collected by employer. If--
    (1) The amount of the employee tax imposed by section 3101 in 
respect of those tips received by an employee which constitute wages 
exceeds
    (2) The amount of employee tax imposed by section 3101 (in respect 
of tips reported by the employee to the employer) which can be collected 
by the employer from such employee's wages (exclusive of tips) which are 
under the control of the employer or from funds referred to in paragraph 
(a)(3) of this section,

the employee shall be liable for the payment of tax in an amount equal 
to such excess. For provisions relating to the manner and time of 
payment of employee tax by an employee, see paragraph (d) of 
Sec. 31.6011(a)-1 and paragraph (a)(4) of Sec. 31.6071(a)-1. For 
provisions relating to statements required to be furnished by employers 
to employees in respect of uncollected employee tax on tips reported to 
the employer, see Sec. 31.6053-2.

[T.D. 7001, 34 FR 998, Jan. 23, 1969; 34 FR 1554, Jan. 31, 1969]

                            Tax on Employers



Sec. 31.3111-1  Measure of employer tax.

    The employer tax is measured by the amount of wages paid after 1954 
with respect to employment after 1936. See Sec. 31.3121(a)-1, relating 
to wages, and Secs. 31.3121(b)-1 to 31.3121(b)-4, inclusive, relating to 
employment. For provisions relating to time of payment of wages, see 
Sec. 31.3121(a)-2.

[T.D. 6744, 29 FR 8306, July 2, 1964]



Sec. 31.3111-2  Rates and computation of employer tax.

    (a) Old-age, survivors, and disability insurance. The rates of 
employer tax for old-age, survivors, and disability insurance with 
respect to wages paid in calendar years after 1954 are as follows:

 
                        Calendar year                           Percent
 
1955 and 1956................................................          2
1957 and 1958................................................       2.25
1959.........................................................        2.5
1960 and 1961................................................          3
1962.........................................................      3.125
1963 to 1965, both inclusive.................................      3.625
1966.........................................................       3.85
1967.........................................................        3.9
1968.........................................................        3.8
1969 and 1970................................................        4.2
1971 and 1972................................................        4.6
1973.........................................................       4.85
1974 to 2010, both inclusive.................................       4.95
2011 and subsequent calendar years...........................       5.95
 

    (b) Hospital insurance. The rates of employer tax for hospital 
insurance with respect to wages paid in calendar years after 1965 are as 
follows:

 
                        Calendar year                           Percent
 
1966.........................................................       0.35
1967.........................................................        .50
1968 to 1972, both inclusive.................................        .60
1973.........................................................        1.0
1974 to 1977, both inclusive.................................       0.90
1978 to 1980, both inclusive.................................       1.10
1981 to 1985, both inclusive.................................       1.35
1986 and subsequent calendar years...........................       1.50
 

    (c) Computation of employer tax. The employer tax is computed by 
applying to the wages paid by the employer the rate in effect at the 
time such wages are paid.

[T.D. 6983, 33 FR 18014, Dec. 4, 1968, as amended by T.D. 7374, 40 FR 
30948, July 24, 1975]



Sec. 31.3111-3  When employer tax attaches.

    The employer tax attaches at the time that the wages are paid by the

[[Page 20]]

employer. For provisions relating to the time of such payment, see 
Sec. 31.3121(a)-2.



Sec. 31.3111-4  Liability for employer tax.

    The employer is liable for the employer tax with respect to the 
wages paid to his employees for employment performed for him.



Sec. 31.3111-5  Manner and time of payment of employer tax.

    The employer tax is payable to the district director in the manner 
and at the time prescribed in Subpart G of the regulations in this part.



Sec. 31.3112-1  Instrumentalities of the United States specifically exempted from the employer tax.

    Section 3112 makes ineffectual as to the employer tax imposed by 
section 3111 those provisions of law which grant to an instrumentality 
of the United States an exemption from taxation, unless such provisions 
grant a specific exemption from the tax imposed by section 3111 by an 
express reference to such section or the corresponding section of prior 
law (section 1410 of the Internal Revenue Code of 1939). Thus, the 
general exemptions from Federal taxation granted by various statutes to 
certain instrumentalities of the United States without specific 
reference to the tax imposed by section 3111 or by section 1410 of the 
1939 Code are rendered inoperative insofar as such exemptions relate to 
the tax imposed by section 3111. For provisions relating to the 
exception from employment of services performed in the employ of an 
instrumentality of the United States specifically exempted from the 
employer tax, see Sec. 31.3121(b)(5)-1. For provisions relating to 
services performed for an instrumentality exempt on December 31, 1950, 
from the employer tax, see paragraph (c) of Sec. 31.3121 (b) (6)-1.

                           General Provisions



Sec. 31.3121(a)-1  Wages.

    (a)(1) Whether remuneration paid after 1954 for employment performed 
after 1936 constitutes wages is determined under section 3121(a). This 
section and Secs. 31.3121(a)(1)-1 to 31.3121(a)(15)-1, inclusive 
(relating to the statutory exclusions from wages), apply with respect 
only to remuneration paid after 1954 for employment performed after 
1936. Whether remuneration paid after 1936 and before 1940 for 
employment performed after 1936 constitutes wages shall be determined in 
accordance with the applicable provisions of law and of 26 CFR (1939) 
Part 401 (Regulations 91). Whether remuneration paid after 1939 and 
before 1951 for employment performed after 1936 constitutes wages shall 
be determined in accordance with the applicable provisions of law and of 
26 CFR (1939) Part 402 (Regulations 106). Whether remuneration paid 
after 1950 and before 1955 for employment performed after 1936 
constitutes wages shall be determined in accordance with the applicable 
provisions of law and of 26 CFR (1939) Part 408 (Regulations 128).
    (2) The term compensation as used in section 3231(e) of the Internal 
Revenue Code has the same meaning as the term wages as used in this 
section, determined without regard to section 3121(b)(9), except as 
specifically limited by the Railroad Retirement Tax Act (chapter 22 of 
the Internal Revenue Code) or regulation. The Commissioner may provide 
any additional guidance that may be necessary or appropriate in applying 
the definitions of sections 3121(a) and 3231(e).
    (b) The term ``wages'' means all remuneration for employment unless 
specifically excepted under section 3121(a) (see Secs. 31.3121(a)(1)-1 
to 31.3121(a)(15)-1, inclusive) or paragraph (j) of this section.
    (c) The name by which the remuneration for employment is designated 
is immaterial. Thus, salaries, fees, bonuses, and commissions on sales 
or on insurance premiums, are wages if paid as compensation for 
employment.
    (d) Generally the basis upon which the remuneration is paid is 
immaterial in determining whether the remuneration constitutes wages. 
Thus, it may be paid on the basis of piecework, or a percentage of 
profits; and it may be paid hourly, daily, weekly, monthly, or annually. 
See, however, Sec. 31.3121(a)(8)-1 which relates to the treatment of 
cash remuneration computed on a time basis for agricultural labor.

[[Page 21]]

    (e) Generally the medium in which the remuneration is paid is also 
immaterial. It may be paid in cash or in something other than cash, as 
for example, goods, lodging, food, or clothing. Remuneration paid in 
items other than cash shall be computed on the basis of the fair value 
of such items at the time of payment. See, however, Secs. 31.3121 
(a)(7)-1, 31.3121(a)(8)-1, 31.3121(a)(10)-1, and 31.3121(a)(12)-1, 
relating to the treatment of remuneration paid in any medium other than 
cash for services not in the course of the employer's trade or business 
and for domestic service in a private home of the employer, for 
agricultural labor, for services performed by certain homeworkers, and 
as tips, respectively.
    (f) Ordinarily, facilities or privileges (such as entertainment, 
medical services, or so-called ``courtesy'' discounts on purchases), 
furnished or offered by an employer to his employees generally, are not 
considered as remuneration for employment if such facilities or 
privileges are of relatively small value and are offered or furnished by 
the employer merely as a means of promoting the health, good will, 
contentment, or efficiency of his employees. The term ``facilities or 
privileges'', however, does not ordinarily include the value of meals or 
lodging furnished, for example, to restaurant or hotel employees, or to 
seamen or other employees aboard vessels, since generally these items 
constitute an appreciable part of the total remuneration of such 
employees.
    (g) Amounts of so-called ``vacation allowances'' paid to an employee 
constitute wages. Thus, the salary of an employee on vacation, paid 
notwithstanding his absence from work, constitutes wages.
    (h) Amounts paid specifically--either as advances or 
reimbursements--for traveling or other bona fide ordinary and necessary 
expenses incurred or reasonably expected to be incurred in the business 
of the employer are not wages. Traveling and other reimbursed expenses 
must be identified either by making a separate payment or by 
specifically indicating the separate amounts where both wages and 
expense allowances are combined in a single payment. For amounts that 
are received by an employee on or after July 1, 1990, with respect to 
expenses paid or incurred on or after July 1, 1990, see Sec. 31.3121(a)-
3.
    (i) Remuneration for employment, unless such remuneration is 
specifically excepted under section 3121(a) or paragraph (j) of this 
section, constitutes wages even though at the time paid the relationship 
of employer and employee no longer exists between the person in whose 
employ the services were performed and the individual who performed 
them.

    Example. A is employed by B during the month of January 1955 in 
employment and is entitled to receive remuneration of $100 for the 
services performed for B, the employer, during the month. A leaves the 
employ of B at the close of business on January 31, 1955. On February 
15, 1955 (when A is no longer an employee of B), B pays A the 
remuneration of $100 which was earned for the services performed in 
January. The $100 is wages and the taxes are payable with respect 
thereto.

    (j) In addition to the exclusions specified in Secs. 31.3121(a)(1)-1 
to 31.3121(a)(15)-1, inclusive, the following types of payments are 
excluded from wages:
    (1) Remuneration for services which do not constitute employment 
under section 3121(b) and which are not deemed to be employment under 
section 3121(c) (see Sec. 31.3121(c)-1).
    (2) Remuneration for services which are deemed not to be employment 
under section 3121(c) (see Sec. 31.3121(c)-1).
    (3) Tips or gratuities paid, prior to January 1, 1966, directly to 
an employee by a customer of an employer, and not accounted for by the 
employee to the employer. For provisions relating to the treatment of 
tips received by an employee after December 31, 1965, as wages, see 
Secs. 31.3121(a)(12) and 31.3121(q).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7001, 34 FR 
999, Jan. 23, 1969; T.D. 7374, 40 FR 30948, July 24, 1975; T.D. 8276, 54 
FR 51027, Dec. 12, 1989; T.D. 8324, 55 FR 51696, Dec. 17, 1990; T.D. 
8582, 59 FR 66189, Dec. 23, 1994]



Sec. 31.3121(a)-1T  Question and answer relating to the definition of wages in section 3121(a) (Temporary).

    The following question and answer relates to the definition of wages 
in section 3121(a) of the Internal Revenue Code of 1954, as amended by 
section

[[Page 22]]

531(d)(1)(A) of the Tax Reform Act of 1984 (98 Stat. 885):
    Q-1: Are fringe benefits included in the definition of ``wages'' 
under section 3121(a)?
    A-1: Yes, unless specifically excluded from the definition of 
``wages'' pursuant to section 3121(a)(1) through (20). For example, a 
fringe benefit provided to or on behalf of an employee is excluded from 
the definition of ``wages'' 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 117 or 132.

[T.D. 8004, 50 FR 755, Jan. 7, 1985]



Sec. 31.3121(a)-2  Wages; when paid and received.

    (a) In general, wages are received by an employee at the time that 
they are paid by the employer to the employee. Wages are paid by an 
employer at the time that they are actually or constructively paid 
unless under paragraph (c) of this section they are deemed to be 
subsequently paid. For provisions relating to the time when tips 
received by an employee are deemed paid to the employee, see 
Sec. 31.3121(q)-1.
    (b) Wages are constructively paid when they are credited to the 
account of or set apart for an employee so that they may be drawn upon 
by him at any time although not then actually reduced to possession. To 
constitute payment in such a case the wages must be credited to or set 
apart for the employee without any substantial limitation or restriction 
as to the time or manner of payment or condition upon which payment is 
to be made, and must be made available to him so that they may be drawn 
upon at any time, and their payment brought within his own control and 
disposition. For provisions relating to the treatment of deductions from 
remuneration as payments of remuneration, see Sec. 31.3123-1.
    (c) (1) The first $50 of cash remuneration paid, either actually or 
constructively, by an employer to an employee in a calendar quarter 
for--
    (i) Service to which Sec. 31.3121(a)(7)-1 is applicable (service not 
in the course of the employer's trade or business and domestic service 
in a private home of the employer); or
    (ii) Service to which Sec. 31.3121(a)(10)-1 is applicable (service 
performed by certain home workers),

shall be deemed to be paid by the employer to the employee at the first 
moment of time in such calendar quarter that the sum of such cash 
payments made within such quarter is at least $50.
    (2)(i) The first $100 of cash remuneration paid, either actually or 
constructively, by an employer to an employee in the calendar year 1955 
or 1956 for agricultural labor to which Sec. 31.3121 (a)(8)-1 is 
applicable shall be deemed to be paid by the employer to the employee at 
the first moment of time in such calendar year that the sum of such cash 
payments made within such year is at least $100.
    (ii) Cash remuneration paid, either actually or constructively, by 
an employer to an employee in a calendar year after 1956 for 
agricultural labor to which Sec. 31.3121(a)(8)-1 is applicable, and 
before either of the events described in (a) or (b) of this subdivision 
has occurred, shall be deemed to be paid upon the occurrence of the 
earlier of such events, as follows:
    (a) The first moment of time in such calendar year that the sum of 
the payments of such remuneration is at least $150, or
    (b) The twentieth day in such calendar year on which the employee 
has performed such agricultural labor for the employer for cash 
remuneration computed on a time basis.
    (3) If an employer pays cash remuneration to an employee for two or 
more of the types of service referred to in this paragraph, the 
provisions of this paragraph are to be applied separately to the amount 
of remuneration attributable to each type of service.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8306, July 2, 1964; T.D. 7001, 34 FR 999, Jan. 23, 1969]



Sec. 31.3121(a)-3  Reimbursement and other expense allowance amounts.

    (a) When excluded from wages. If a reimbursement or other expense 
allowance arrangement meets the requirements of section 62(c) of the 
Code and

[[Page 23]]

Sec. 1.62-2 and the expenses are substantiated within a reasonable 
period of time, payments made under the arrangement that do not exceed 
the substantiated expenses are treated as paid under an accountable plan 
and are not wages. In addition, if both wages and the reimbursement or 
other expense allowance are combined in a single payment, the 
reimbursement or other expense allowance must be identified either by 
making a separate payment or by specifically identifying the amount of 
the reimbursement or other expense allowance.
    (b) When included in wages--(1) Accountable plans--(i) General rule. 
Except as provided in paragraph (b)(1)(ii) of this section, if a 
reimbursement or other expense allowance arrangement satisfies the 
requirements of section 62(c) and Sec. 1.62-2, but the expenses are not 
substantiated within a reasonable period of time or amounts in excess of 
the substantiated expenses are not returned within a reasonable period 
of time, the amount paid under the arrangement in excess of the 
substantiated expenses is treated as paid under a nonaccountable plan, 
is included in wages, and is subject to withholding and payment of 
employment taxes no later than the first payroll period following the 
end of the reasonable period.
    (ii) Per diem or mileage allowances. If a reimbursement or other 
expense allowance arrangement providing a per diem or mileage allowance 
satisfies the requirements of section 62(c) and Sec. 1.62-2, but the 
allowance is paid at a rate for each day or mile of travel that exceeds 
the amount of the employee's expenses deemed substantiated for a day or 
mile of travel, the excess portion is treated as paid under a 
nonaccountable plan and is included in wages. In the case of a per diem 
or mileage allowance paid as a reimbursement, the excess portion is 
subject to withholding and payment of employment taxes when paid. In the 
case of a per diem or mileage allowance paid as an advance, the excess 
portion is subject to withholding and payment of employment taxes no 
later than the first payroll period following the payroll period in 
which the expenses with respect to which the advance was paid (i.e., the 
days or miles of travel) are substantiated. The Commissioner may, in his 
discretion, prescribe special rules in pronouncements of general 
applicability regarding the timing of withholding and payment of 
employment taxes on per diem and mileage allowances.
    (2) Nonaccountable plans. If a reimbursement or other expense 
allowance arrangement does not satisfy the requirements of section 62(c) 
and Sec. 1.62-2 (e.g., the arrangement does not require expenses to be 
substantiated or require amounts in excess of the substantiated expenses 
to be returned), all amounts paid under the arrangement are treated as 
paid under a nonaccountable plan, are included in wages, and are subject 
to withholding and payment of employment taxes when paid.
    (c) Effective dates. This section generally applies to payments made 
under reimbursement or other expense allowance arrangements received by 
an employee on or after July 1, 1990, with respect to expenses paid or 
incurred on or after July 1, 1990. Paragraph (b)(1)(ii) of this section 
applies to payments made under reimbursement or other expense allowance 
arrangements received by an employee on or after January 1, 1991, with 
respect to expenses paid or incurred on or after January 1, 1991.

[T.D. 8324, 55 FR 51696, Dec. 17, 1990]



Sec. 31.3121(a)(1)-1  Annual wage limitation.

    (a) In general. (1) The term ``wages'' does not include that part of 
the remuneration paid by an employer to an employee within any calendar 
year--
    (i) After 1954 and before 1959 which exceeds the first $4,200 of 
remuneration,
    (ii) After 1958 and before 1966 which exceeds the first $4,800 of 
remuneration,
    (iii) After 1965 and before 1968 which exceeds the first $6,600 of 
remuneration,
    (iv) After 1967 and before 1972 which exceeds the first $7,800 of 
remuneration,
    (v) After 1971 and before 1973 which exceeds the first $9,000 of 
remuneration,
    (vi) After 1972 and before 1974 which exceeds the first $10,800 of 
remuneration,

[[Page 24]]

    (vii) After 1973 and before 1975 which exceeds the first $13,200 of 
remuneration, or
    (viii) After 1974 which exceeds the amount equal to the contribution 
and benefit base (as determined under section 230 of the Social Security 
Act) which is effective for such calendar year

(exclusive of remuneration excepted from wages in accordance with 
paragraph (j) of Sec. 31.3121(a)-1 or Secs. 31.3121(a)(2)-1 to 
31.3121(a)(15)-1, inclusive) paid within the calendar year by an 
employer to the employee for employment performed for him at any time 
after 1936. For provisions relating to the treatment of tips for 
purposes of the annual wage limitation see Sec. 31.3121(q)-1.
    (2) The annual wage limitation applies only if the remuneration 
received during any 1 calendar year by an employee from the same 
employer for employment performed after 1936 exceeds the amount of such 
limitation. The limitation in such case relates to the amount of 
remuneration received during any 1 calendar year for employment after 
1936 and not to the amount of remuneration for employment performed in 
any 1 calendar year.

    Example. Employee A, in 1967 receives $7,000 from employer B in part 
payment of $8,000 due him from employment performed in 1967. In 1968 A 
receives from employer B the balance of $1,000 due him for employment 
performed in 1967, and thereafter in 1968 also receives $7,000 for 
employment performed in 1968 for employer B. The first $6,600 of the 
$7,000 received during 1967 is subject to the taxes in 1967. The 
remaining $400 received in 1967 is not included as wages and is not 
subject to the taxes. The balance of $1,000 received in 1968 for 
employment during 1967 is subject to the taxes during 1968 as is also 
the first $6,800 of the $7,000 thereafter received in 1968 ($1,000 plus 
$6,800 totaling $7,800, which is the annual wage limitation applicable 
to remuneration received in 1968 by an employee from any one employer). 
The remaining $200 received in 1968 is not included as wages and is not 
subject to the taxes.

    (3) If during a calendar year the employee receives remuneration 
from more than one employer, the annual wage limitation does not apply 
to the aggregate remuneration received from all of such employers, but 
instead applies to the remuneration received during such calendar year 
from each employer with respect to employment after 1936. In such case 
the first remuneration received in any calendar year after 1974 up to 
the amount equal to the contribution and benefit base (as determined 
under section 230 of the Social Security Act) (the first $13,200 
received in 1974, the first $10,800 received in 1973, the first $9,000 
received in 1972, the first $7,800 received in any calendar year after 
1967 and before 1972, the first $6,600 received in any calendar year 
after 1965 and before 1968, the first $4,800 received in any calendar 
year after 1958 and before 1966, or the first $4,200 received in any 
calendar year after 1954 and before 1959) from each employer constitutes 
wages and is subject to the taxes, even though, under section 6413(c), 
the employee may be entitled to a special credit or refund of a portion 
of the employee tax deducted from his wages received during the calendar 
year. In this connection and in connection with the two examples 
immediately following, see Sec. 31.6413(c)-1, relating to special 
credits or refunds of employee tax. In connection with the annual wage 
limitation in the case of remuneration paid for services performed in 
the employ of the United States or a wholly owned instrumentality 
thereof, see Sec. 31.3122. In connection with the annual wage limitation 
in the case of remuneration paid for services performed in the employ of 
the Government of Guam, the Government of American Samoa, the District 
of Columbia, a political subdivision of the Government of Guam, or the 
Government of American Samoa, or any instrumentality of any of the 
foregoing which is wholly owned thereby, see Sec. 31.3125. In connection 
with the application of the annual wage limitation, see also paragraph 
(b) of this section, relating to the circumstances under which wages 
paid by a predecessor employer are deemed to be paid by his successor. 
In connection with the annual wage limitation in the case of 
remuneration paid after December 31, 1978, from two or more related 
corporations that compensate an employee through a common paymaster, see 
Sec. 31.3121(s)-1.

    Example 1. During 1968 employee C receives from employer D a salary 
of $1,300 a month

[[Page 25]]

for employment performed for D during the first 7 months of 1968, or 
total remuneration of $9,100. At the end of the 6th month C has received 
$7,800 from employer D, and only that part of his total remuneration 
from D constitutes wages subject to the taxes. The $1,300 received by 
employee C from employer D in the 7th month is not included as wages and 
is not subject to the taxes. At the end of the 7th month C leaves the 
employ of D and enters the employ of E. C receives remuneration of 
$1,560 a month from employer E in each of the remaining 5 months of 
1968, or total remuneration of $7,800 from employer E. The entire $7,800 
received by C from employer E constitutes wages and is subject to the 
taxes. Thus, the first $7,800 received from employer D and the entire 
$7,800 received from employer E constitute wages.
    Example 2. During the calendar year 1968 F is simultaneously an 
officer (an employee) of the X Corporation, the Y Corporation, and the Z 
Corporation and during such year receives a salary of $7,800 from each 
corporation. Each $7,800 received by F from each of the Corporations X, 
Y, and Z (whether or not such corporations are related) constitutes 
wages and is subject to the taxes.

    (b) Wages paid by predecessor attributed to successor. (1) If an 
employer (hereinafter referred to as a successor) 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 if 
immediately after the acquisition the successor 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 
purposes of the application of the annual wage limitation set forth in 
paragraph (a) of this section, any remuneration (exclusive of 
remuneration excepted from wages in accordance with paragraph (j) of 
Sec. 31.3121(a)-1 or Secs. 31.3121(a)(2)-1 to 31.3121(a)(15)-1, 
inclusive) with respect to employment paid (or considered under this 
paragraph as having been paid) to such individual by the predecessor 
during such calendar year and prior to the acquisition shall be 
considered as having been paid by the successor.
    (2) The wages paid, or considered as having been paid, by a 
predecessor to an employee shall, for purposes of the annual wage 
limitation, be treated as having been paid to such employee by a 
successor if:
    (i) The successor during a calendar year acquired substantially all 
the property used in a trade or business, or used in a separate unit of 
a trade or business, of the predecessor;
    (ii) Such employee was employed in the trade or business of the 
predecessor immediately prior to the acquisition and is employed by the 
successor in his trade or business immediately after the acquisition; 
and
    (iii) Such wages were paid during the calendar year in which the 
acquisition occurred and prior to such acquisition.
    (3) The method of acquisition by an employer of the property of 
another employer is immaterial. The acquisition may occur as a 
consequence of the incorporation of a business by a sole proprietor or a 
partnership, the continuance without interruption of the business of a 
previously existing partnership by a new partnership or by a sole 
proprietor, or a purchase or any other transaction whereby substantially 
all the property used in a trade or business, or used in a separate unit 
of a trade or business, of one employer is acquired by another employer.
    (4) Substantially all the property used in a separate unit of a 
trade or business may consist of substantially all the property used in 
the performance of an essential operation of the trade or business, or 
it may consist of substantially all the property used in a relatively 
self-sustaining entity which forms a part of the trade or business.

    Example 1. The M Corporation which is engaged in the manufacture of 
automobiles, including the manufacture of automobile engines, 
discontinues the manufacture of the engines and transfers all the 
property used in such manufacturing operation to the N Company. The N 
Company is considered to have acquired a separate unit of the trade or 
business of the M Corporation, namely, its engine manufacturing unit.
    Example 2. The R Corporation which is engaged in the operation of a 
chain of grocery stores transfers one of such stores to the S Company. 
The S Company is considered to have acquired a separate unit of the 
trade or business of the R Corporation.

    (5) A successor may receive credit for wages paid to an employee by 
a predecessor only if immediately prior to the acquisition the employee 
was employed

[[Page 26]]

by the predecessor in his trade or business which was acquired by the 
successor and if immediately after the acquisition such employee is 
employed by the successor in his trade or business (whether or not in 
the same trade or business in which the acquired property is used). If 
the acquisition involves only a separate unit of a trade or business of 
the predecessor, the employee need not have been employed by the 
predecessor in that unit provided he was employed in the trade or 
business of which the acquired unit was a part.

    Example. The Y Corporation in 1968 acquires by purchase all the 
property of the X Company and immediately after the acquisition employs 
in its trade or business employee A, who, immediately prior to the 
acquisition, was employed by the X Company. The X Company has in 1968 
(the calendar year in which the acquisition occurs) and prior to the 
acquisition paid $5,000 of wages to A. The Y Corporation in 1968 pays to 
A remuneration of $5,000 with respect to employment. Only $2,800 of the 
remuneration paid by the Y Corporation is considered to be wages. For 
purposes of the $7,800 limitation, the Y Corporation is credited with 
the $5,000 paid to A by the X Company. If in the same calendar year, the 
Z Company acquires the property by purchase from the Y Corporation and A 
immediately after the acquistion is employed by the Z Company in its 
trade or business, no part of the remuneration paid to A by the Z 
Company in the year of the acquisition will be considered to be wages. 
The Z Company will be credited with the remuneration paid to A by the Y 
Corporation and also with the wages paid to A by the X Company 
(considered for purposes of the application of the $7,800 limitation as 
having also been paid by the Y Corporation).

    (6) Where a corporation described in section 501(c)(3) which is 
exempt from income tax under section 501(a) has in effect a certificate 
filed pursuant to section 3121(k), or pursuant to section 1426(1) of the 
Internal Revenue Code of 1939, waiving its exemption from the taxes 
imposed by the Act, the activity in which such corporation is engaged is 
considered to be its trade or business for the purpose of determining 
whether the transferred property was used in the trade or business of 
the predecessor and for the purpose of determining whether the 
employment by the predecessor and the successor of an individual whose 
services were retained by the successor constitute employment in a trade 
or business. Thus, if a charitable or religious organization, subject to 
the taxes by virtue of its certificate, acquires all the property of 
another such organization likewise subject to the taxes and retains the 
services of employees of the predecessor, wages paid to such employees 
by the predecessor in the year of the acquisition (and prior to such 
acquisition) will be attributed to the successor for purposes of the 
annual wage limitation.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8307, July 2, 1964; T.D. 6983, 33 FR 18015, Dec. 4, 1968; T.D. 7374, 40 
FR 30948, July 24, 1975; T.D. 7660, 44 FR 75139, Dec. 19, 1979]



Sec. 31.3121(a)(2)-1  Payments under employers' plans on account of retirement, sickness or accident disability, medical or hospitalization expenses, or death.

    (a) The term ``wages'' does not include 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--
    (1) An employee's retirement,
    (2) Sickness or accident disability of an employee or any of his 
dependents,
    (3) Medical or hospitalization expenses in connection with sickness 
or accident disability of an employee or any of his dependents, or
    (4) Death of an employee or any of his dependents.
    (b) The plan or system established by an employer need not provide 
for payments on account of all of the specified items, but such plan or 
system may provide for any one or more of such items. Payments for any 
one or more of such items under a plan or system established by an 
employer solely for the dependents of his employees are not within this 
exclusion from wages.
    (c) Dependents of an employee include the employee's husband or 
wife,

[[Page 27]]

children, and any other members of the employee's immediate family.
    (d) It is immaterial for purposes of this exclusion whether the 
amount or possibility of such benefit payments is taken into 
consideration in fixing the amount of an employee's remuneration or 
whether such payments are required, expressly or impliedly, by the 
contract of service.



Sec. 31.3121(a)(3)-1  Retirement payments.

    The term ``wages'' does not include any payment made by an employer 
to an employee (including any amount paid by an employer for insurance 
or annuities, or into a fund, to provide for any such payment) on 
account of the employee's retirement. Thus, payments made to an employee 
on account of his retirement are excluded from wages under this 
exception even though not made under a plan or system.



Sec. 31.3121(a)(4)-1  Payments on account of sickness or accident disability, or medical or hospitalization expenses.

    The term ``wages'' does not include any payment made by an employer 
to, or on behalf of, an employee on account of the employee's sickness 
or accident disability or the medical or hospitalization expenses in 
connection with the employee's sickness or accident disability, if such 
payment is made after the expiration of 6 calendar months following the 
last calendar month in which such employee worked for such employer. 
Such payments are excluded from wages under this exception even though 
not made under a plan or system. If the employee does not actually 
perform services for the employer during the requisite period, the 
existence of the employer- employee relationship during that period is 
immaterial.



Sec. 31.3121(a)(5)-1  Payments from or to certain tax-exempt trusts, or under or to certain annuity plans or bond purchase plans.

    (a) Payments from or to certain tax- exempt trusts. The term 
``wages'' does not include any payment made--
    (1) By an employer, on behalf of an employee or his beneficiary, 
into a trust, or
    (2) To, or on behalf of, an employee or his beneficiary from a 
trust.

If at the time of such payment the trust is exempt from tax under 
section 501(a) as an organization described in section 401(a). A payment 
made to an employee of such a trust for services rendered as an employee 
of the trust and not as a beneficiary thereof is not within this 
exclusion from wages.
    (b) Payments under or to certain annuity plans. (1) The term 
``wages'' does not include any payment made after December 31, 1962--
    (i) By an employer, on behalf of an employee or his beneficiary, 
into an annuity plan, or
    (ii) To, or on behalf of, an employee or his beneficiary under an 
annuity plan, if at the time of such payment the annuity plan is a plan 
described in section 403(a).
    (2) The term ``wages'' does not include any payment made before 
January 1, 1963--
    (i) By an employer, on behalf of an employee or his beneficiary, 
into an annuity plan, or
    (ii) To, or on behalf of, an employee or his beneficiary under an 
annuity plan,

if at the time of such payment the annuity plan meets the requirements 
of section 401(a)(3), (4), (5), and (6).
    (c) Payments under or to certain bond purchase plans. The term 
``wages'' does not include any payment made after December 31, 1962--
    (1) By an employer, on behalf of an employee or his beneficiary, 
into a bond purchase plan, or
    (2) To, or on behalf of, an employee or his beneficiary under a bond 
purchase plan,

if at the time of such payment the plan is a qualified bond purchase 
plan described in section 405(a).

[T.D. 6876, 31 FR 2596, Feb. 10, 1966]



Sec. 31.3121(a)(6)-1  Payment by an employer of employee tax under section 3101 or employee contributions under a State law.

    The term ``wages'' does not include any payment by an employer 
(without deduction from the remuneration of, or other reimbursement 
from, the employee) of either (a) the employee tax

[[Page 28]]

imposed by section 3101 or the corresponding section of prior law, or 
(b) any payment required from an employee under a State unemployment 
compensation law.



Sec. 31.3121(a)(7)-1  Payments for services not in the course of employer's trade or business or for domestic service.

    (a) Meaning of terms--(1) Services not in the course of employer's 
trade or business. The term ``services not in the course of the 
employer's trade or business'' includes services that do not promote or 
advance the trade or business of the employer. Such term does not 
include services performed for a corporation. As used in this section, 
the term does not include service not in the course of the employer's 
trade or business performed on a farm operated for profit or domestic 
service in a private home of the employer. See paragraph (f) of 
Sec. 31.3121(g)-1 for provisions relating to services not in the course 
of the employer's trade or business performed on a farm operated for 
profit.
    (2) Domestic service in a private home of the employer. Services of 
a household nature performed by an employee in or about a private home 
of the person by whom he is employed constitute domestic service in a 
private home of the employer. A private home is a fixed place of abode 
of an individual or family. A separate and distinct dwelling unit 
maintained by an individual in an apartment house, hotel, or other 
similar establishment may constitute a private home. If a dwelling house 
is used primarily as a boarding or lodging house for the purpose of 
supplying board or lodging to the public as a business enterprise, it is 
not a private home. In general, services of a household nature in or 
about a private home include services performed by cooks, waiters, 
butlers, housekeepers, governesses, maids, valets, baby sitters, 
janitors, laundresses, furnacemen, caretakers, handymen, gardeners, 
footmen, grooms, and chauffeurs of automobiles for family use. The term 
``domestic service in a private home of the employer'' does not include 
the services enumerated above unless such services are performed in or 
about a private home of the employer. Services not of a household 
nature, such as services performed as a private secretary, tutor, or 
librarian, even though performed in the employer's home, are not 
included within the term ``domestic service in a private home of the 
employer''. As used in this section, the term does not include domestic 
service in a private home of the employer performed on a farm operated 
for profit or service not in the course of the employer's trade or 
business. See paragraph (f) Sec. 31.3121(g)-1 for provisions relating to 
domestic service in a private home of the employer performed on a farm 
operated for profit.
    (b) Payments other than in cash. The term ``wages'' does not include 
remuneration paid in any medium other than cash (1) for service not in 
the course of the employer's trade or business, or (2) for domestic 
service in a private home of the employer. Cash remuneration includes 
checks and other monetary media of exchange. Remuneration paid in any 
medium other than cash, such as lodging, food, clothing, car tokens, 
transportation passes or tickets, or other goods or commodities, for 
service not in the course of the employer's trade or business or for 
domestic service in a private home of the employer does not constitute 
wages.
    (c) Cash payments. (1) The term ``wages'' does not include cash 
remuneration paid by an employer in any calendar quarter after 1954 to 
an employee for--
    (i) Domestic service in a private home of the employer, or
    (ii) Service not in the course of the employer's trade or business,

unless the cash remuneration paid in such quarter by the employer to the 
employee for such service is $50 or more.
    (2) The test relating to cash remuneration of $50 or more is based 
on the remuneration paid in a calendar quarter rather than on the 
remuneration earned during a calendar quarter. It is immaterial whether 
the remuneration was earned before 1955 or after 1954.

    Example. In the calendar quarter ending March 31, 1955, employer X 
pays employee A cash remuneration of $50 for service not in the course 
of X's trade or business. Such remuneration constitutes wages subject to 
the

[[Page 29]]

taxes even though $10 thereof represents payment for such service 
performed by A for X in December 1954.

In determining whether $50 or more has been paid either for domestic 
service in a private home of the employer or for service not in the 
course of the employer's trade or business, only cash remuneration for 
such service shall be taken into account. Cash remuneration includes 
checks and other monetary media of exchange. Remuneration paid in any 
other medium, such as lodging, food, clothing, car tokens, 
transportation passes or tickets, or other goods or commodities, is 
disregarded in determining whether the cash-remuneration test is met. If 
an employee receives cash remuneration from an employer in a calendar 
quarter for both types of services the $50 cash-remuneration test is to 
be applied separately to each type of service. If an employee receives 
cash remuneration from more than one employer in a calendar quarter for 
domestic service in a private home of the employer or for service not in 
the course of the employer's trade or business, the $50 cash-
remuneration test is to be applied separately to the remuneration 
received from each employer. See Sec. 31.3102-1, relating to deduction 
of employee tax or amounts equivalent to the tax from cash payments for 
the services described in this section; Sec. 31.3121(a)-2, relating to 
time of payment of wages for such services; and Sec. 31.3121(i)-1, 
relating to computations to the nearest dollar of any payment of cash 
remuneration for domestic service in a private home of the employer.



Sec. 31.3121(a)(8)-1  Payments for agricultural labor.

    (a) Scope of this section. For purposes of the regulations in this 
section, the term ``agricultural labor'' means only such agricultural 
labor (see Sec. 31.3121(g)-1) as constitutes employment or is deemed to 
constitute employment by reason of the rules relating to included and 
excluded services contained in section 3121(c) (see Sec. 31.3121(c)-1) 
or the corresponding section of prior law.
    (b) Payments other than in cash. The term ``wages'' does not include 
remuneration paid in any medium other than cash for agricultural labor. 
For meaning of the term ``cash remuneration'', see paragraph (f) of the 
regulations in this section.
    (c) Cash payments. (1) The term ``wages'' does not include cash 
remuneration paid by an employer in the calendar year 1955 or 1956 to an 
employee for agricultural labor unless the cash remuneration paid in 
such year by the employer to the employee for such labor is $100 or 
more.
    (2)(i) The term ``wages'' does not include cash remuneration paid by 
an employer in any calendar year after 1956 to an employee for 
agricultural labor unless the cash remuneration paid in such year by the 
employer to the employee for such labor is $150 or more, or unless the 
employee performs agricultural labor for the employer on 20 days or more 
during such year for cash remuneration computed on a time basis.
    (ii) The application of the provisions of this subparagraph may be 
illustrated by the following example:

    Example. On 18 days in 1957 A performs agricultural labor for X for 
cash remuneration of $8 per day, and X pays A $144 in such year. A 
performs no further service for X. Neither the $150-cash-remuneration 
test nor the 20-day test is met. Accordingly, the remuneration paid by X 
to A is not subject to the taxes. If in 1957 A had performed 
agricultural labor for X on 20 days for cash remuneration of $7.20 per 
day, the $144 paid by X to A would have been subject to the taxes 
because the 20-day test would have been met. Or if A had performed the 
18 days of agricultural labor for cash remuneration of $8.50 per day and 
had been paid in full therefor in 1957, his cash remuneration of $153 
would have been subject to the taxes because the $150-cash-remuneration 
test would have been met.

    (d) Application of cash-remuneration test. (1) If an employee 
receives cash remuneration from an employer both for services which 
constitute agricultural labor and for services which do not constitute 
agricultural labor, only the amount of such remuneration which is 
attributable to agricultural labor shall be included in determining 
whether cash remuneration of $150 or more ($100 or more in 1955 or 1956) 
has been paid in the calendar year by the employer to the employee for 
agricultural labor.

    Example. Employer X operates a store and also is engaged in farming 
operations. Employee A, who regularly performs services for

[[Page 30]]

X in connection with the operation of the store, works on X's farm when 
additional help is required for the farm activities. In the calendar 
year 1957, X pays A $140 in cash computed on a time basis for 
agricultural labor performed on 19 different days in such year, and 
$2,260 for services performed in connection with the operation of the 
store. Since the cash remuneration paid by X to A in the calendar year 
1957 for agricultural labor is less than $150, the cash-remuneration 
test is not met. Since A performed agricultural labor for X on less than 
20 days in 1957, the 20-day test set forth in section 3121(a)(8) is not 
met. The $140 paid by X to A in 1957 for agricultural labor does not 
constitute wages and is not subject to the taxes.

    (2) The test relating to cash remuneration of $150 or more ($100 or 
more in 1955 or 1956) is based on the cash remuneration paid in a 
calendar year rather than on the remuneration earned during a calendar 
year. It is immaterial if such cash remuneration is paid in a calendar 
year other than the year in which the agricultural labor is performed.

    Example. Employer X pays cash remuneration of $150 in the calendar 
year 1957 to employee A for agricultural labor. Such remuneration 
constitutes wages even though $10 of such amount represents payment for 
agricultural labor performed by A for X in December 1956.

    (3) In determining whether $150 or more ($100 or more in 1955 or 
1956) has been paid to an employee for agricultural labor, only cash 
remuneration for such labor shall be taken into account. If an employee 
receives cash remuneration in any one calendar year from more than one 
employer for agricultural labor, the cash-remuneration test is to be 
applied with respect to the remuneration received by the employee from 
each employer in such calendar year for such labor.
    (e) Application of 20-day test. (1) Only agricultural labor for 
which cash remuneration is computed on a time basis is taken into 
account in determining whether an employee performs such labor for such 
remuneration on 20 days or more during a calendar year after 1956. For 
purposes of the 20-day test, the amount of such remuneration is 
immaterial, and it is immaterial if, in addition to cash remuneration 
computed on a time basis, the remuneration for such labor also includes 
remuneration other than cash or remuneration which is not computed on a 
time basis. If cash remuneration paid to an employee after 1956 for 
agricultural labor is computed on a time basis, such cash remuneration 
does not constitute ``wages'' unless it is paid in a calendar year in 
which either the 20-day test or the $150-cash-remuneration test is met.

    Example. Employer X employs A to construct fences on a farm owned by 
X. The work constitutes agricultural labor and is performed on 50 days 
in November and December 1957. A is not employed by X at any other time. 
A's remuneration consists of meals and lodging, $5 cash per day, and 
additional cash measured by the amount of fence constructed. X pays A 
$140 cash in December 1957 and $160 cash in January 1958, in full 
payment for the work. Inasmuch as A has performed agricultural labor for 
X on 50 days in 1957, for remuneration computed on a time basis, the 20-
day test is met for 1957 and the $140 cash paid in 1957 is subject to 
the taxes. It is immaterial that the $150-cash-remuneration test is not 
met for 1957. Inasmuch as X has paid A $160 cash remuneration in 1958 
for agricultural labor, the $150-cash-remuneration test is met for 1958 
and the $160 cash paid in 1958 is subject to the taxes. It is immaterial 
that the 20-day test is not met for 1958. If the remuneration paid by X 
to A in January 1958 had been in an amount less than $150, neither the 
$150-cash-remuneration test nor the 20-day test would have been met for 
the calendar year 1958, and the remuneration paid by X to A in such year 
would not have been subject to the taxes.

    (2) For the purpose of determining whether an employee performs 
agricultural labor for an employer on 20 days or more during any 
calendar year after 1956, for cash remuneration computed on a time 
basis, there shall be counted as one day--
    (i) Any day or portion thereof on which the employee actually 
performs such labor for cash remuneration computed one time basis; and
    (ii) Any day or portion thereof on which the employee does not 
perform agricultural labor but with respect to which cash remuneration 
is paid or payable to the employee for such labor, such as a day on 
which the employee is sick or on vacation.

An employee who on a particular day reports for work and, at the 
direction of his employer, holds himself in readiness to perform 
agricultural labor shall

[[Page 31]]

be considered to be engaged in the actual performance of such labor on 
that day. For purposes of the regulations in this section, a day is a 
period of 24 hours commencing at midnight and ending at midnight.

    Example. During the period of 20 days beginning April 11, 1957 and 
ending April 30, 1957, employee A was employed by employer X to perform 
agricultural labor on X's farm. The agreement provided that A would be 
furnished room and board at the farm and would be paid cash wages of 
$150 per month. On one day during the 20-day period A was sick and 
unable to work, and on another day X directed A to refrain from work 
because of weather conditions. At the termination of A's employment X 
paid A cash wages of $100 for the full 20-day period. The 20-day test 
had been met and the $100 cash wages were subject to the taxes.

    (3) If in any one calendar year an employee performs agricultural 
labor for more than one employer, the 20-day test is to be applied with 
respect to the agricultural labor performed by the employee in such year 
for each employer.
    (f) Meaning of ``cash remuneration.'' Cash remuneration includes 
checks and other monetary media of exchange. Cash remuneration does not 
include payments made in any other medium, such as lodging, food, 
clothing, car tokens, transportation passes or tickets, farm products, 
or other goods or commodities.
    (g) Cross references. (1) For provisions relating to deductions of 
employee tax or amounts equivalent to the tax from cash payments for 
agricultural labor, see Sec. 31.3102-1.
    (2) For provisions relating to the time of payment of wages for 
agricultural labor, see Sec. 31.3121(a)-2.
    (3) For provisions relating to records to be kept with respect to 
agricultural labor, see paragraph (b) of Sec. 31.6001-2.

[T.D. 6744, 29 FR 8308, July 2, 1964]



Sec. 31.3121(a)(9)-1  Payments to employees for nonwork periods.

    (a) The term ``wages'' does not include any payment (other than 
vacation or sick pay) made by an employer to an employee for a period 
throughout which the employment relationship exists between the employer 
and the employee, but in which the employee does not work (other than 
being subject to call for the performance of work) for the employer, if 
such payment is made after the calendar month in which--
    (1) The employee attains age 65, if the employee is a man to whom 
the payment is made before January 1975, or if the employee is a woman 
to whom the payment is made before November 1956, or
    (2) The employee attains age 62, if the employee is a man to whom 
the payment is made after December 1974, or if the employee is a woman 
to whom the payment is made after October 1956.
    (b) Vacation or sick pay is not within this exclusion from wages. If 
the employee does any work for the employer in the period for which the 
payment is made, no remuneration paid by such employer to such employee 
with respect to such period is within this exclusion from wages.

    Example. Mrs. A, an employee of X, attained the age of 62 on 
September 15, 1956, and discontinued the performance of regular work for 
X on September 30, 1956. Their employment relationship continued for 
several years until Mrs. A's death, and X paid Mrs. A $50 per month as 
consideration for Mrs. A's agreement to work when asked by X. The 
payment for each month was made on the first day of each succeeding 
month. After September 30, 1956, the only work performed by Mrs. A for X 
was performed on one day in October 1956. The payment made by X to Mrs. 
A on November 1 (for October 1956) is not excluded from wages under this 
exception, but the payments made thereafter are excluded from wages. The 
payment on November 1 was not excluded because Mrs. A worked for X on 
one day in October 1956. (Inasmuch as Mrs. A had attained age 62 in 
September 1956, the November 1 payment would have been excluded if Mrs. 
A had not performed any work for X in October 1956.)

[T.D. 6744, 29 FR 8309, July 2, 1964, as amended by T.D. 7373, 40 FR 
30957, July 24, 1975; 40 FR 32831, Aug. 5, 1975]



Sec. 31.3121(a)(10)-1  Payments to certain home workers.

    (a) The term ``wages'' does not include remuneration paid by an 
employer in any calendar quarter to an employee--
    (1) For services performed after 1954 as a home worker who is an 
employee by reason of the provisions of section 3121(d)(3)(C) (see 
paragraph (d) of Sec. 31.3121(d)-1), or

[[Page 32]]

    (2) For services performed after 1950 and before 1955 as a home 
worker who is an employee by reason of the provisions of section 
1426(d)(3)(C) of the Internal Revenue Code of 1939. unless the cash 
remuneration paid in such quarter by the employer to the employee for 
such services is $50 or more. The test relating to cash remuneration of 
$50 or more is based on remuneration paid in a calendar quarter rather 
than on remuneration earned during a calendar quarter. If $50 or more of 
cash remuneration is paid in a particular calendar quarter, it is 
immaterial whether the $50 is in payment for services performed during 
the quarter of payment or during any other quarter.
    (b) The application of paragraph (a) of this section may be 
illustrated by the following examples:

    Example 1. A, a home worker, performs services for X, a 
manufacturer, in 1954 and 1955. In the performance of the home work A is 
an employee both in 1954 (by reason of section 1426(d)(3)(C) of the 1939 
Code) and in 1955 (by reason of section 3121(d)(3)(C)). In March 1955, A 
returns to X articles made by A at home from materials received by A 
from X in 1954. X pays A cash remuneration of $50 for such work when the 
finished articles are delivered. The $50 includes $10 which represents 
remuneration for home work performed by A in 1954. The entire $50 is 
subject to the taxes.
    Example 2. Assume that the same transactions occur, but that A is 
not subject in 1954 to licensing requirements under the laws of the 
State in which the home work is performed. A, therefore, does not 
perform home work in 1954 as an employee of X by reason of section 
1426(d)(3)(C) of the 1939 Code, and the $10 paid in 1955 for such work 
is not remuneration for employment. The remaining $40 for the home work 
performed in 1955 is remuneration for employment, but is excluded from 
wages by application of the $50 cash-remuneration test.

    (c) In the event an employee receives remuneration in any one 
calendar quarter from more than one employer for services performed as a 
home worker of the character described in paragraph (a) of this section, 
the regulations in this section are to be applied with respect to the 
remuneration received by the employee from each employer in such 
calendar quarter for such services. This exclusion from wages has no 
application to remuneration paid for services performed as a home worker 
who is an employee under either section 3121(d)(2)(see paragraph (c) of 
Sec. 31.3121(d)-1) or section 1426(d)(2) of the 1939 Code, relating to 
common law employees.
    (d) Cash remuneration includes checks and other monetary media of 
exchange. Remuneration paid in any other medium, such as clothing, car 
tokens, transportation passes or tickets, or other goods or commodities, 
is disregarded in determining whether the $50 cash-remuneration test is 
met. If the cash remuneration paid in any calendar quarter by an 
employer to an employee for services performed as a home worker of the 
character described in paragraph (a) of this section is $50 or more, 
then no remuneration, whether in cash or in any medium other than cash, 
paid by the employer to the employee in such calendar quarter for such 
services is excluded from wages under this exception.
    (e) For provisions relating to whether a home worker is an employee 
under section 1426(d)(3)(C) of the 1939 Code, see Sec. 408.204 of 
Regulations 128; 26 CFR (1939) Part 408. See also Sec. 31.3102-1, 
relating to deduction of employee tax or amounts equivalent to the tax 
from cash payments for services performed as a home worker of the 
character described in paragraph (a) of this section, and 
Sec. 31.3121(a)-2, relating to the time of payment of wages for such 
services.



Sec. 31.3121(a)(11)-1  Moving expenses.

    (a) The term ``wages'' does not include remuneration paid on or 
after November 1, 1964, to or on behalf of an employee, either as an 
advance or a reimbursement, specifically for moving expenses incurred or 
expected to be incurred, if (and to the extent that) at the time of 
payment it is reasonable to believe that a corresponding deduction is or 
will be allowable to the employee under section 217. The reasonable 
belief contemplated by the statute may be based upon any evidence 
reasonably sufficient to induce such belief, even though such evidence 
may be insufficient upon closer examination by the district director or 
the courts finally to establish that a deduction is allowable under 
section 217. The reasonable belief shall be based upon the application 
of section 217 and the regulations thereunder in Part 1 of this chapter

[[Page 33]]

(Income Tax Regulations). When used in this section, the term ``moving 
expenses'' has the same meaning as when used in section 217 and the 
regulations thereunder.
    (b) Except as otherwise provided in paragraph (a) of this section, 
or in a numbered paragraph of section 3121(a), amounts paid to or on 
behalf of an employee for moving expenses are wages for purposes of 
section 3121(a).

[T.D. 7375, 40 FR 42350, Sept. 12, 1975]



Sec. 31.3121(a)(12)-1  Tips.

    The term ``wages'' does not include remuneration received by an 
employee after December 1965 in the form of tips if--
    (a) The tips are paid in any medium other than cash, or
    (b) The cash tips received by an employee in any calendar month in 
the course of his employment by an employer are less than $20.

If the cash tips received by an employee in a calendar month after 
December 1965 in the course of his employment by an employer amount to 
$20 or more, none of the cash tips received by the employee in such 
calendar month are excluded from the term ``wages'' under this section. 
The cash tips to which this section applies include checks and other 
monetary media of exchange. Tips received by an employee in any medium 
other than cash, such as passes, tickets, or other goods or commodities 
do not constitute wages. If an employee in any calendar month performs 
services for two or more employers and receives tips in the course of 
his employment by each employer, the $20 test is to be applied 
separately with respect to the cash tips received by the employee in 
respect of his services for each employer and not to the total cash tips 
received by the employee during the month. As to the time tips are 
deemed paid, see Sec. 31.3121(q)-1. For provisions relating to the 
treatment of tips received by an employee prior to 1966, see paragraph 
(j)(3) of Sec. 31.3121 (a)-1.

[T.D. 7001, 34 FR 999, Jan. 23, 1969]



Sec. 31.3121(a)(13)-1  Payments under certain employers' plans after retirement, disability, or death.

    (a) In general. The term ``wages'' does not include the amount of 
any payment or series of payments made after January 2, 1968, by an 
employer to, or on behalf of, an employee or any of his dependents under 
a plan established by the employer which makes provisions 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), which is paid or 
commences to be paid upon or within a reasonable time after the 
termination of an employee's employment relationship because of the 
employee's--
    (1) Death,
    (2) Retirement for disability, or
    (3) Retirement after attaining an age specified in the plan 
established by the employer or in a pension plan of the employer at the 
age at which a person in the employee's circumstances is eligible for 
retirement.

A payment or series of payments made under the circumstances described 
in the preceding sentence is excluded from ``wages'' even if made 
pursuant to an incentive compensation plan which also provides for the 
making of other types of payments. However, any payment or series of 
payments which would have been paid if the employee's relationship had 
not been terminated is not excluded from ``wages'' under this section 
and section 3121(a)(13). For example, lump-sum payments for unused 
vacation time or a final paycheck received after retirement are payments 
which the employee would have received whether or not he retired and 
therefore are not excluded from ``wages'' under this section. Further, 
if any payment is made upon or after termination of employment for any 
reason other than those set out in subparagraphs (1), (2), and (3) of 
this paragraph such payment is not excludable from ``wages'' by this 
section. For example, if a pension plan provides for retirement upon 
disability, completion of 30 years of service, or attainment of age 65, 
and if an employee who is not disabled retires at age 61 after 30 years

[[Page 34]]

of service, none of the retirement payments made to the employee under 
the pension plan (including any made after he is 65) is excludable from 
``wages'' under this section. However, if the pension plan had 
conditioned retirement after 30 years of service upon attainment of age 
60, all of the retirement payments would have been excludable.
    (b) Plan. The plan or system established by an employer need not 
provide for payments because of termination of employment for all the 
reasons set out in paragraphs (a)(1), (2), and (3) of this section, but 
such plan or system may provide for payments because of termination for 
any one or more of such reasons. Payments because of termination of 
employment for any one or more of such reasons under a plan or system 
established by an employer solely for the dependents of his employees 
are not within this exclusion from wages.
    (c) Dependents. Dependents of an employee include the employee's 
husband or wife, children, and any other members of the employee's 
immediate family.
    (d) Benefit payment. It is immaterial for purposes of this exclusion 
whether the amount or possibility of benefit payments is paid on account 
of services rendered or taken into consideration in fixing the amount of 
an employee's remuneration or whether such payments are required, 
expressly or impliedly, by the contract of service.
    (e) Example. The application of this section may be illustrated by 
the following example:

    Example. A, an employee, receives a salary of $1,500 a month, 
payable on the 5th day of the month following the month for which the 
salary is earned. A's employer has established an incentive compensation 
plan for a class of his employees, including A, providing for the 
payment of deferred compensation on termination of employment, including 
termination upon an employee's death, retirement at age 65 (the 
retirement age specified in the plan), or retirement for disability. On 
March 1, 1973, A attains the age of 65 and retires. On March 5, 1973, A 
receives $5,500 from his employer of which $1,500 represents A's salary 
for services he performed in February 1973, and $4,000 represents 
incentive compensation paid under the employer's plan. The amount of 
$4,000 is excluded from ``wages'' under this section. The amount of 
$1,500 is not excluded from ``wages'' under this section.

[T.D. 7374, 40 FR 30949, July 24, 1975]



Sec. 31.3121(a)(14)-1  Payments by employer to survivor or estate of former employee.

    The term ``wages'' does not include any payment by an employer to a 
survivor or the estate of a former employee made after 1972 and after 
the calendar year in which such employee died.

[T.D. 7374, 40 FR 30950, July 24, 1975, as amended by T.D. 7373, 40 FR 
30957, July 24, 1975]



Sec. 31.3121(a)(15)-1  Payments by employer to disabled former employee.

    The term ``wages'' does not include any payment made after 1972 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 service for such employer during the period for 
which such payment is made.

[T.D. 7374, 40 FR 30950, July 24, 1975, as amended by T.D. 7373, 40 FR 
30957, July 24, 1975]



Sec. 31.3121(a)(18)-1  Payments or benefits under a qualified educational assistance program.

    The term ``wages'' does not include any payment made, or benefit 
furnished, to or for the benefit of an employee in a taxable year 
beginning after December 31, 1978, if at the time of such payment or 
furnishing it is reasonable to believe that the employee will be able to 
exclude such payment or benefit from income under section 127.

[T.D. 7898, 48 FR 31019, July 6, 1983]



Sec. 31.3121(b)-1  Employment; services to which the regulations in this subpart apply.

    (a) The provisions of the regulations in this subpart relating to 
the term ``employment'' apply with respect to services performed after 
1954. Certain provisions also apply with respect to services performed 
before 1955 for which the remuneration is paid after

[[Page 35]]

1954 (see paragraph (b) of Sec. 31.3121(b)-2. For provisions relating 
generally to services performed before 1955, see paragraph (a) of 
Sec. 31.3121 (b)-2. For provisions relating to the circumstances under 
which services which do not constitute employment are nevertheless 
deemed to be employment, and relating to the circumstances under which 
services which constitute employment are nevertheless deemed not to be 
employment, see Sec. 31.3121 (c)-1. For provisions relating to who are 
employees and who are employers see Secs. 31.3121 (d)-1 and 31.3121 (d)-
2, respectively.
    (b) The taxes apply with respect to remuneration paid after 1954 for 
services performed before 1955, as well as for services performed after 
1954, to the extent that the remuneration and services constitute wages 
and employment. See Secs. 31.3121(a)-1 to 31.3121(a)(13)-1 relating to 
wages.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6983, 33 FR 
18015, Dec. 4, 1968]



Sec. 31.3121(b)-2  Employment; services performed before 1955.

    (a) General rule. (1) Subject to the provisions of paragraph (b) of 
this section:
    (i) Services performed after 1936 and before 1955 which were 
employment under the applicable law in effect before 1955 constitute 
employment under section 3121(b).
    (ii) Services performed after 1936 and before 1955 which were not 
employment under the applicable law in effect before 1955 do not 
constitute employment under section 3121(b).
    (2) Except as provided in paragraph (b) of this section, 
determination of whether services performed before 1955 constitute 
employment shall be made in accordance with the applicable provisions of 
law in effect before 1955 and of the regulations thereunder. The 
regulations applicable in determining whether service performed after 
1936 and before 1955 constitute employment are as follows:
    (i) Services performed after 1936 and before 1940--26 CFR (1939) 
Part 401 (Regulations 91).
    (ii) Services performed after 1939 and before 1951--26 CFR (1939) 
Part 402 (Regulations 106).
    (iii) Services performed after 1950 and before 1955--26 CFR (1939) 
Part 408 (Regulations 128).
    (b) Certain services performed before 1955 the remuneration for 
which is paid after 1954. (1) Services of the following character 
performed before 1955, for which remuneration is paid after 1954, 
constitute employment under section 3121(b):
    (i) Agricultural labor, as defined in section 3121(g) (see 
Sec. 31.3121(g)-1), other than services of the character described in 
section 3121(b)(1) (relating to services performed in connection with 
the production or harvesting of certain oleoresinous products and 
services performed by certain foreign agricultural workers), which, at 
the time performed, constituted employment under section 1426(b) of the 
1939 Code, or would have constituted employment except for the 
provisions of section 1426(b)(1) of such Code, as in effect at the time 
the services were performed.
    (ii) Services not in the course of the employers' trade or business 
(see paragraph (a)(1) of Sec. 31.3121(a)(7)-1) which, at the time 
performed, constituted employment under section 1426(b) of the 1939 
Code, or would have constituted employment except for the provisions of 
section 1426(b)(3) of such Code, as in effect at the time the services 
were performed.
    (2) Services of the character described in paragraphs (a) and (b) of 
Sec. 31.3121(b)(1)-1, which were performed by certain foreign 
agricultural workers before 1955 and the remuneration for which is paid 
after 1954, do not constitute employment under section 3121(b), 
irrespective of whether they constituted employment under section 
1426(b) of the 1939 Code, as in effect at the time the services were 
performed.
    (3) This paragraph has no application to services performed before 
1955 and the remuneration for which was paid before 1955.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8309, July 2, 1964]

[[Page 36]]



Sec. 31.3121(b)-3  Employment; services performed after 1954.

    (a) In general. Whether services performed after 1954 constitute 
employment is determined in accordance with the provisions of section 
3121(b).
    (b) Services performed within the United States. Services performed 
after 1954 within the United States (see Sec. 31.3121(e)-1) by an 
employee for his employer, unless specifically excepted by section 
3121(b), constitute employment. With respect to services performed 
within the United States, the place where the contract of service is 
entered into is immaterial. The citizenship or residence of the employee 
or of the employer also is immaterial except to the extent provided in 
any specific exception from employment. Thus, the employee and the 
employer may be citizens and residents of a foreign country and the 
contract of service may be entered into in a foreign country, and yet, 
if the employee under such contract performs services within the United 
States, there may be to that extent employment.
    (c) Services performed outside the United States--(1) In general. 
Except as provided in paragraphs (c)(2) and (3) of this section, 
services performed outside the United States (see Sec. 31.3121(e)-1) do 
not constitute employment.
    (2) On or in connection with an American vessel or American 
aircraft. (i) Services performed after 1954 by an employee for an 
employer ``on or in connection with'' an American vessel or American 
aircraft outside the United States (see Sec. 31.3121(e)-1) constitute 
employment if:
    (a) The employee is also employed ``on and in connection with'' such 
vessel or aircraft when outside the United States; and
    (b) The services are performed under a contract of service, between 
the employee and the employer, which is entered into within the United 
States, or during the performance of the contract under which the 
services are performed and while the employee is employed on the vessel 
or aircraft it touches at a port within the United States; and
    (c) The services are not excepted under section 3121(b).
    (ii) An employee performs services on and in connection with the 
vessel or aircraft if he performs services on such vessel or aircraft 
which are also in connection with the vessel or aircraft. Services 
performed on the vessel by employees as officers or members of the crew, 
or as employees of concessionaires, of the vessel, for example, are 
performed under such circumstances, since such services are also 
connected with the vessel. Similarly, services performed on the aircraft 
by employees as officers or members of the crew of the aircraft are 
performed on and in connection with such aircraft. Services may be 
performed on the vessel or aircraft, however, which have no connection 
with it, as in the case of services performed by an employee while on 
the vessel or aircraft merely as a passenger in the general sense. For 
example, the services of a buyer in the employ of a department store 
while he is a passenger on a vessel are not in connection with the 
vessel.
    (iii) If services are performed by an employee ``on and in 
connection with'' an American vessel or American aircraft when outside 
the United States and the conditions listed in paragraph (c)(2)(i) (b) 
and (c) of this section are met, then the services of that employee 
performed on or in connection with the vessel or aircraft constitute 
employment. The expression ``on or in connection with'' refers not only 
to services performed on the vessel or aircraft but also to services 
connected with the vessel or aircraft which are not actually performed 
on it (for example, shore services performed as officers or members of 
the crew, or as employees of concessionaires, of the vessel).
    (iv) Services performed by a member of the crew or other employee 
whose contract of service is not entered into within the United States, 
and during the performance of which and while the employee is employed 
on the vessel or aircraft it does not touch at a port within the United 
States, do not constitute employment under this subparagraph, 
notwithstanding services performed by other members of the crew or other 
employees on or in connection with the vessel or aircraft may constitute 
employment.

[[Page 37]]

    (v) A vessel includes every description of watercraft, or other 
contrivance, used as a means of transportation on water. An aircraft 
includes every description of craft, or other contrivance, used as a 
means of transportation through the air. In the case of an aircraft, the 
term ``port'' means an airport. An airport means an area on land or 
water used regularly by aircraft for receiving or discharging passengers 
or cargo. For definitions of ``American vessel'' and ``American 
aircraft'', see Sec. 31.3121(f)-1.
    (vi) With respect to services performed outside the United States on 
or in connection with an American vessel or American aircraft, the 
citizenship or residence of the employee is immaterial, and the 
citizenship or residence of the employer is material only in case it has 
a bearing in determining whether a vessel is an American vessel.
    (3) By a citizen of the United States as an employee for an American 
employer. Services performed after 1954 outside the United States by a 
citizen of the United States as an employee for an American employer 
constitute employment provided the services are not specifically 
excepted under section 3121(b). For definitions of ``citizen of the 
United States'' and ``American employer'', see Secs. 31.3121(e)-1 and 
3121 (h)-1, respectively.
    (4) By a citizen of the United States as an employee for a foreign 
subsidiary corporation. For provisions relating to the extension of the 
Federal old-age, survivors, and disability insurance system established 
by title II of the Social Security Act to certain services not 
constituting employment which are performed outside the United States by 
citizens of the United States in the employ of a foreign subsidiary of a 
domestic corporation, see section 3121(1) and Part 36 of this chapter 
(Regulations Relating to Contract Coverage of Employees of Foreign 
Subsidiaries).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8309, July 2, 1964]



Sec. 31.3121(b)-4  Employment; excepted services in general.

    (a) Services performed by an employee for an employer do not 
constitute employment for purposes of the taxes if they are specifically 
excepted from employment under any of the numbered paragraphs of section 
3121(b). Services so excepted do not constitute employment for purposes 
of the taxes even though they are performed within the United States, or 
are performed outside the United States on or in connection with an 
American vessel or American aircraft, or are performed outside the 
United States by a citizen of the United States for an American 
employer. If not otherwise provided in the regulations relating to the 
numbered paragraphs of section 3121(b), such regulations apply to 
services performed after 1954.
    (b) The exception attaches to the services performed by the employee 
and not to the employee as an individual; that is, the exception applies 
only to the services in an excepted class rendered by the employee.

    Example. A is an individual who is employed part time by B to 
perform services which are specifically excepted from employment under 
one of the numbered paragraphs of section 312(b). A is also employed by 
C part time to perform services which constitute employment. While no 
tax liability is incurred with respect to A's remuneration for services 
performed in the employ of B (the services being excepted from 
employment), the exception does not embrace the services performed by A 
in the employ of C (which constitute employment) and the taxes attached 
with respect to the wages (see Sec. 31.3121(a)-1) for such services.

    (c) For provisions relating to the circumstances under which 
services which are excepted are nevertheless deemed to be employment, 
and relating to the circumstances under which services which are not 
excepted are nevertheless deemed not to be employment, see 
Sec. 31.3121(c)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8310, July 2, 1964]



Sec. 31.3121(b)(1)-1  Certain services performed by foreign agricultural workers, or performed before 1959 in connection with oleoresinous products.

    (a) Services of workers from Mexico. Services performed before 1965 
by foreign agricultural workers from the Republic of Mexico under 
contracts entered into in accordance with title V of

[[Page 38]]

the Agricultural Act of 1949, as amended, are excepted from employment. 
Contracts entered into pursuant to the provisions of such title V may 
provide for the performance only of services which constitute 
``agricultural employment''. The term ``agricultural employment'' 
includes certain services which do not constitute ``agricultural labor'' 
as that term is defined in section 3121(g) (see Sec. 31.3121(g)-1. For 
purposes of title V of the Agricultural Act of 1949, as amended, the 
term ``agricultural employment'' includes services or activities 
included within the provisions of section 3(f) of the Fair Labor 
Standards Act of 1938, as amended, or section 3121(g) of the Internal 
Revenue Code. Under section 507 of the Agricultural Act of 1949, as 
amended, and as in effect before October 3, 1961, the term 
``agricultural employment'' included also horticultural employment, 
cotton ginning, compressing and storing, crushing of oil seeds, and the 
packing, canning, freezing, drying, or other processing of perishable or 
seasonable agricultural products.
    (b) Services of workers from British West Indies. Services performed 
by a foreign agricultural worker lawfully admitted to the United States 
from the Bahamas, Jamaica, or the other British West Indies, on a 
temporary basis to perform form agricultural labor are excepted from 
employment.
    (c) Services performed after 1956 by foreign workers. Services 
performed after 1956 by a foreign agricultural worker lawfully admitted 
to the United States from any foreign country or possession thereof, 
including the Republic of Mexico, on a temporary basis to perform 
agricultural labor are excepted from employment.
    (d) Services performed before 1959 in connection with the production 
or harvesting of certain oleoresinous products. Services performed 
before 1959 in connection with the production or harvesting of crude gum 
(oleoresin) from a living tree or the processing of such crude gum into 
gum spirits of turpentine and gum rosin, provided the processing is 
carried on by the original producer of the crude gum, are expected from 
employment. However, the services to which this paragraph relates 
constitute agricultural labor as defined in section 3121(g) (see 
paragraph (d) of Sec. 31.3121(g)-1). Thus, any cash remuneration paid 
for such services, to the extent that the services are deemed to 
constitute employment by reason of the rules relating to included and 
excluded services continued in section 3121(c) (see Sec. 31.3121(c)-1), 
is taken into account in applying the test prescribed in section 
3121(a)(8)(B) for determining whether cash remuneration paid for 
agricultural labor constitutes wages (see paragraph (c) of 
Sec. 31.3121(a)(8)-1).
    (e) Cross-reference. See paragraph (b) of Sec. 31.3121(b)-2 for 
provisions relating to the status of services of the character to which 
paragraphs (a) and (b) of this section apply which were performed before 
1955 and the remuneration for which is paid after 1954.

[T.D. 6744, 29 FR 8310, July 2, 1964]



Sec. 31.3121(b)(2)-1  Domestic service performed by students for certain college organizations.

    (a) Services of a household nature performed in or about the club 
rooms or house of a local college club, or in or about the club rooms or 
house of a local chapter of a college fraternity or sorority, by a 
student who is enrolled and regularly attending classes at a school, 
college, or university are excepted from employment. For purposes of 
this exception, the statutory tests are the type of services performed 
by the employee, the character of the place where the services are 
performed, and the status of the employee as a student enrolled and 
regularly attending classes at a school, college, or university.
    (b) In general, services of a household nature in or about the club 
rooms or house of a local college club or local chapter of a college 
fraternity or sorority include services rendered by cooks, waiters, 
butlers, maids, janitors, laundresses, furnacemen, handymen, gardeners, 
housekeepers, and housemothers.
    (c) A local college club or local chapter of a college fraternity or 
sorority does not include an alumni club or chapter. If the club rooms 
or house of a local college club or local chapter of a college 
fraternity or sorority is used primarily for the purpose of supplying 
board or lodging to students or the

[[Page 39]]

public as a business enterprise, the services performed therein are not 
within the exception.
    (d) The term ``school, college, or university'' within the meaning 
of this exception is to be taken in its commonly or generally accepted 
sense.
    (e) Services of a household nature are not within the exception if 
performed in or about rooming or lodging houses, boarding houses, clubs 
(except local college clubs) hotels, hospitals, eleemosynary 
institutions, or commercial offices or establishments.
    (f) For provisions relating to domestic service in a private home of 
the employer, see Sec. 31.3121(a)(7)-1.



Sec. 31.3121(b)(3)-1  Family employment.

    (a) Certain services are excepted from employment because of the 
existence of a family relationship between the employee and the 
individual employing him. The exceptions are as follows:
    (1) Services performed by an individual in the employ of his or her 
spouse;
    (2) (i) Services performed before 1961 by a father or mother in the 
employ of his or her son or daughter;
    (ii) Services not in the course of the employer's trade or business, 
or domestic service in a private home of the employer, performed after 
1960 but prior to 1968 by a father or mother in the employ of his or her 
son or daughter;
    (iii) Services not in the course of the employer's trade or 
business, or domestic service in a private home of the employer, 
performed after 1967 by a father or mother in the employ of his or her 
son or daughter unless (a) the employer has a child (including an 
adopted child or stepchild) living in his or her home who is under age 
18 or who 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 services are rendered; and (b) the 
employer is during the calendar quarter in which the services are 
rendered:
    (1) A widow or widower;
    (2) A divorced person who has not remarried; or
    (3) A married person who 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 such child for at least 4 continuous weeks in 
the calendar quarter in which the services are rendered; and
    (3) Services performed by a son or daughter under the age of 21 in 
the employ of his or her father or mother.
    (b) Under paragraph (a) (1) and (2) (i) of this section, the 
exception is conditioned solely upon the family relationship between the 
employee and the individual employing him. Under paragraph (a)(2) (ii) 
and (iii) of this section, in addition to the family relationship, there 
is a further requirement that the services performed after 1960 and 
before 1968 for purposes of paragraph (a)(2)(ii) and after 1967 for 
purposes of paragraph (a)(2)(iii) shall be services not in the course of 
the employer's trade or business or shall be domestic service in a 
private home of the employer. The terms ``services not in the course of 
the employer's trade or business'' and ``domestic service in a private 
home of the employer'' have the same meaning as when used in 
Sec. 31.3121(a) (7)-1, except that it is immaterial under paragraphs 
(a)(2) (ii) and (iii) of this section whether or not such services are 
performed on a farm operated for profit. The mere fact that a mental or 
physical disability, whether temporary or permanent, renders a child or 
spouse incapable of self-support does not necessarily mean that the 
child requires the personal care and supervision of an adult or that the 
spouse is incapable of caring for a child within the meaning of 
paragraph (a)(2)(iii) of this section. A written statement by a doctor 
of the existence of the mental or physical condition of the child or 
spouse which states that the child requires the personal care and 
supervision of an adult or that the spouse is incapable of caring for a 
child and which sets forth the period of time during which the condition 
has existed and is likely to exist will usually be sufficient evidence 
to establish the existence and duration of the condition at the time of 
the statement. Under paragraph (a)(3) of this section, in addition to 
the family relationship, there is a further requirement that the son or 
daughter shall be under

[[Page 40]]

the age of 21, and the exception continues only during the time that the 
son or daughter is under the age of 21.
    (c) Services performed in the employ of a corporation are not within 
the exception. Services performed in the employ of a partnership are not 
within the exception unless the requisite family relationship exists 
between the employee and each of the partners comprising the 
partnership.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8311, July 2, 1964; T.D. 7374, 40 FR 30950, July 24, 1975]



Sec. 31.3121(b)(4)-1  Services performed on or in connection with a non-American vessel or aircraft.

    (a) Services performed within the United States by an employee for 
an employer ``on or in connection with'' a vessel not an American 
vessel, or ``on or in connection with'' an aircraft not an American 
aircraft, are excepted from employment if--
    (1) The employee is employed by such employer ``on and in connection 
with'' such vessel or aircraft when outside the United States, and
    (2) (i) The employee is not a citizen of the United States, or (ii) 
the employer is not an American employer.
    (b) An employee performs services on and in connection with the 
vessel or aircraft if he performs services on the vessel or aircraft 
when outside the United States which are also in connection with the 
vessel or aircraft. Services performed on the vessel outside the United 
States by employees as officers or members of the crew, or by employees 
of concessionaires, of the vessel, for example, are performed under such 
circumstances, since such services are also connected with the vessel. 
Similarly, services performed on the aircraft outside the United States 
by employees as officers or members of the crew of the aircraft are 
performed on and in connection with such aircraft. Services may be 
performed on the vessel or aircraft, however, which have no connection 
with it, as in the case of services performed by an employee while on 
the vessel or aircraft merely as a passenger in the general sense. For 
example, the services of a buyer in the employ of a department store 
while he is a passenger on a vessel are not in connection with the 
vessel.
    (c) The expression ``on or in connection with'' refers not only to 
services performed on the vessel or aircraft but also to services 
connected with the vessel or aircraft which are not actually performed 
on it (for example, shore services performed as officers or members of 
the crew, or as employees of concessionaires, of the vessel).
    (d) Services performed within the United States on or in connection 
with a non-American vessel or aircraft for an employer by an employee 
who is not a citizen of the United States are excepted from employment, 
irrespective of whether the employer is or is not an American employer, 
provided the employee also is employed by such employer on and in 
connection with the vessel or aircraft when outside the United States. 
Services performed within the United States on or in connection with a 
non-American vessel or aircraft by an employee for an employer who is 
not an American employer also are excepted from employment, irrespective 
of whether the employee is or is not a citizen of the United States, 
provided the employee also is employed by such employer on and in 
connection with the vessel or aircraft when outside the United States. 
Services performed within the United States on or in connection with a 
non-American vessel or aircraft for an American employer by an employee 
who is a citizen of the United States are not excepted from employment 
under section 3121(b)(4), irrespective of whether the employee is 
employed by such employer on and in connection with the vessel or 
aircraft when outside the United States. Further, section 3121(b)(4) 
does not except from employment services performed within the United 
States for an employer, whether or not an American employer, on or in 
connection with a non-American vessel or aircraft by an employee, 
whether or not a citizen of the United States, who is not also employed 
by such employer on and in connection with the vessel or aircraft when 
outside the United States.
    (e) Services performed outside the United States on or in connection 
with a vessel not an American vessel, or on

[[Page 41]]

or in connection with an aircraft not an American aircraft, by a citizen 
of the United States as an employee for an American employer are not 
excepted from employment under section 3121(b)(4), irrespective of 
whether the employee is employed on and in connection with such vessel 
or aircraft when outside the United States. Services performed outside 
the United States on or in connection with a vessel not an American 
vessel or on or in connection with an aircraft not an American aircraft, 
either by an employee who is not a citizen of the United States or for 
an employer who is not an American employer, do not, in any event, 
constitute employment. See paragraph (c) of Sec. 31.3121(b)-3, relating 
to services performed outside the United States which constitute 
employment.
    (f) See paragraph (c)(2)(v) of Sec. 31.3121(b)-3 for definitions of 
``vessel'' and ``aircraft'', Sec. 31.3121(f)-1, for definitions of 
``American vessel'' and ``American aircraft'', Sec. 31.3121(e)-1, for 
definition of ``citizen of the United States'', and Sec. 31.3121(h)-1, 
for definition of ``American employer''.



Sec. 31.3121(b)(5)-1  Services in employ of an instrumentality of the United States specifically exempted from the employer tax.

    Services performed in the employ of an instrumentality of the United 
States are excepted from employment if such instrumentality is exempt 
from the employer tax imposed by section 3111 by virtue of any other 
provision of law which specifically refers to such section 3111 or the 
corresponding section of prior law (section 1410 of the Internal Revenue 
Code of 1939) in granting exemption from the employer tax. This 
exception does not operate to exclude from employment services performed 
in the employ of an instrumentality of the United States unless the 
Congress has granted to such instrumentality a specific exemption from 
the tax imposed by section 3111 or the corresponding section of prior 
law. For provisions which make general exemptions from Federal taxation 
ineffectual as to the employer tax imposed by section 3111, see 
Sec. 31.3112-1. For other exceptions from employment applicable with 
respect to services performed in the employ of an instrumentality of the 
United States, see Sec. 31.3121(b)(6)-1.



Sec. 31.3121(b)(6)-1  Services in employ of United States or instrumentality thereof.

    (a) In general. This section relates to services performed in the 
employ of the United States Government or in the employ of an 
instrumentality of the United States. Particular services which are not 
excepted from employment under one rule set forth in this section may 
nevertheless be excepted under another rule set forth in this section or 
under Sec. 31.3121(b)(5)-1, relating to services in the employ of an 
instrumentality of the United States specifically exempted from the 
employer tax. Moreover, services performed in the employ of the United 
States or of any instrumentality thereof which are not excepted from 
employment under paragraph (5) or (6) of section 3121(b) may 
nevertheless be excepted under some other paragraph of such section. For 
provisions relating generally to the application of the taxes in the 
case of services performed in the employ of the United States or a 
wholly owned instrumentality thereof, see 3122. For provisions relating 
to the computation of remuneration for service performed by an 
individual as a member of a uniformed service or for service performed 
by an individual as a volunteer or volunteer leader within the meaning 
of the Peace Corps Act, see Sec. 31.3121(i)-2 and Sec. 31.3121(i)-3, 
respectively.
    (b) Services covered under a retirement system established by a law 
of the United States. Services performed in the employ of the United 
States or in the employ of any instrumentality thereof are excepted from 
employment under section 3121(b)(6)(A) if such services are covered 
under a law enacted by the Congress of the United States which 
specifically provides for the establishment of a retirement system for 
employees of the United States or of such instrumentality. 
Determinations as to whether services are covered by a retirement system 
of the requisite character are to be made as of the time such services 
are performed. Services of an employee who has an option to

[[Page 42]]

have his services covered under a retirement system are not covered 
under such retirement system unless and until he exercises such option. 
The test is whether particular services performed by an employee are 
covered by a retirement system of the requisite character rather than 
whether the position in which such services are performed is covered by 
such retirement system.
    (c) Services performed for an instrumentality not subject to 
employer tax on December 31, 1950, and covered under a retirement system 
established by such instrumentality. (1) Subject to the provisions of 
subparagraph (4) of this paragraph, services performed in the employ of 
an instrumentality of the United States are excepted from employment 
under section 3121(b)(6)(B) if--
    (i) The particular instrumentality was not subject on December 31, 
1950, to the employer tax imposed by section 1410 of the Internal 
Revenue Code of 1939, and
    (ii) The services are covered by a retirement system established by 
such instrumentality.
    (2) If the particular instrumentality was not in existence on 
December 31, 1950, but is created thereafter under a law which was in 
effect on December 31, 1950, services performed in the employ of such 
instrumentality are excepted from employment (unless otherwise provided 
in paragraph (c)(4) of this section) if--
    (i) The instrumentality had it been in existence on December 31, 
1950, would not have been subject on that date to the employer tax 
imposed by section 1410 of the Internal Revenue Code of 1939, and
    (ii) The services are covered by a retirement system established by 
such instrumentality.

It is immaterial, for purposes of this exception, whether the exemption 
from the employer tax on December 31, 1950, resulted, or would have 
resulted, from a tax exemption as such in effect on December 31, 1950, 
or from the provisions of section 1426(b) (6) of the Internal Revenue 
Code of 1939 in effect on that date, relating to the exception from 
employment of services performed in the employ of certain 
instrumentalities of the United States.
    (3) Determinations as to whether services performed in the employ of 
an instrumentality referred to in paragraph (c)(1) or (2) of this 
section are covered by a retirement system established by such 
instrumentality are to be made as of the time such services are 
performed. Services of an employee who has an option to have his 
services covered under a retirement system established by the 
instrumentality are not covered under such retirement system unless and 
until he exercises such option. The test is whether particular services 
performed by an employee are covered by a retirement system established 
by the instrumentality rather than whether the position in which such 
services are performed is covered by such retirement system.
    (4) The exception from employment provided in section 3121(b)(6)(B) 
has no application with respect to any of the following classes of 
services:
    (i) Services performed in the employ of a corporation which is 
wholly owned by the United States;
    (ii) Services performed in the employ of a production credit 
association, a Federal Reserve Bank, or a Federal Credit Union; services 
performed before December 31, 1959, in the employ of a national farm 
loan association; services performed after December 30, 1959, in the 
employ of a Federal land bank association; services performed after 
December 31, 1959, in the employ of a Federal land bank, a Federal 
intermediate credit bank, or a bank for cooperatives; services performed 
after December 31, 1972, in the employ of a Federal home loan bank; and 
services performed after December 31, 1966, and before January 1, 1973, 
in the employ of a Federal home loan bank, in the case of individuals 
who are in such employ on the latter date, provided that an amount equal 
to the taxes imposed by sections 3101 and 3111 with respect to all such 
services performed by all such individuals are paid under the provisions 
of section 3122 by July 1, 1973;
    (iii) Services performed in the employ of a State, county, or 
community committee under the Commodity Stabilization Service;

[[Page 43]]

    (iv) Services performed by a civilian employee, not compensated from 
funds appropriated by the Congress, in the Army and Air Force Exchange 
Service, Army and Air Force Motion Picture Service, Navy Exchanges, 
Marine Corps Exchanges, or other activities, conducted by an 
instrumentality of the United States subject to the jurisdiction of the 
Secretary of Defense, at installations of the Department of Defense for 
the comfort, pleasure, contentment, and mental and physical improvement 
of personnel of such Department; or
    (v) Services performed by a civilian employee, not compensated from 
funds appropriated by the Congress, in the Coast Guard Exchanges or 
other activities, conducted by an instrumentality of the United States 
subject to the jurisdiction of the Secretary of the Treasury, at 
installations of the Coast Guard for the comfort, pleasure, contentment, 
and mental and physical improvement of personnel of the Coast Guard.
    (d) Special classes of services. The following classes of services 
performed either in the employ of the United States or in the employ of 
any instrumentality thereof are excepted from employment under section 
3121(b)(6)(C):
    (1) Services performed as the President or Vice President of the 
United States or a Member, Delegate, or Resident Commissioner, of or to 
the Congress of the United States;
    (2) Services performed in the legislative branch of the United 
States Government;
    (3) Services performed in a penal institution of the United States 
by an inmate thereof;
    (4) (i) Except as provided in paragraph (d)(4)(ii) of this section, 
services performed by student nurses, medical or dental interns, 
residents in training, student dietitians, student physical therapists, 
or student occupational therapists, assigned or attached to a hospital, 
clinic, or medical or dental laboratory operated by any department, 
agency, or instrumentality of the U.S. Government, or by certain other 
student employees described in section 5351(2) of title 5, United States 
Code.
    (ii) The provisions of paragraph (d)(4)(i) of this section have no 
application to services performed after 1965 by medical or dental 
interns or by medical or dental residents in training.
    (5) Services performed by an individual as an employee serving on a 
temporary basis in case of fire, storm, earthquake, flood, or other 
similar emergency; and
    (6) (i) Except as provided in paragraph (d)(6)(ii) of this section, 
services performed by an individual to whom subchapter III of chapter 83 
of title 5, United States Code (civil service retirement) does not apply 
because he is, with respect to such services, subject to another 
retirement system, established either by a law of the United States or 
by the agency or instrumentality of the United States for which such 
services are performed.
    (ii) The provisions of paragraph (d)(6)(i) of this section have no 
application to service performed by an individual to whom subchapter III 
of chapter 83 of title 5, United States Code (civil service retirement) 
does not apply because such individual is subject to the retirement 
system of the Tennessee Valley Authority, if such service is subject to 
the plan approved by the Secretary of Health and Human Services on 
December 28, 1956, pursuant to section 104 (i)(2) of the Social Security 
Amendments of 1956 (70 Stat. 827). See section 201(m)(4) of such 
amendments for provisions relating to the timeliness of payment of tax 
with respect to remuneration paid before 1957 for such services, and 
barring the imposition of interest on the amount of any such tax due for 
any period before December 28, 1956.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8311, July 2, 1964; T.D. 6983, 33 FR 18016, Dec. 4, 1968; T.D. 7373, 40 
FR 30957, July 24, 1975]



Sec. 31.3121(b)(7)-1  Services in employ of States or their political subdivisions or instrumentalities.

    (a) In general. Except as provided in other paragraphs of this 
section, services performed in the employ of any State, any political 
subdivision of a State, or any instrumentality of one or more States or 
political subdivisions thereof which is wholly owned by one

[[Page 44]]

or more States or political subdivisions are excepted from employment. 
For the definition of the term ``State'', as used in this section, see 
Sec. 31.3121(e)-1.
    (b) Covered transportation service. The exception from employment 
under section 3121(b)(7) does not apply to covered transportation 
service as defined in section 3121(j). See that section and 31.3121(j)-
1.
    (c) Government of American Samoa. The exception from employment 
under section 3121(b)(7) does not apply to services performed after 1960 
in the employ of the Government of American Samoa, any political 
subdivision thereof, or any instrumentality of such Government or 
political subdivision, or combination thereof, which is wholly owned 
thereby, performed by an officer or employee thereof (including a member 
of the legislature of such Government or political subdivision).
    (d) District of Columbia. The exception from employment under 
section 3121(b)(7) does not apply to services performed after September 
30, 1965, 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. Notwithstanding the preceding sentence the following classes of 
services performed either in the employ of the District of Columbia or 
in the employ of any instrumentality which is wholly owned thereby are 
excepted from employment:
    (1) Services performed in a hospital or penal institution by a 
patient or inmate thereof.
    (2) Services performed by student nurses, student dietitians, 
student physical therapists, or student occupational therapists assigned 
or attached to a hospital, clinic, or medical or dental laboratory 
operated by the District of Columbia or by any wholly owned 
instrumentality thereof, or by certain other student employees described 
in section 5351(2) of title 5, United States Code. This subparagraph 
does not apply to services performed by medical or dental interns or by 
medical or dental residents in training described in such section 
5351(2).
    (3) Services performed by an individual as an employee serving on a 
temporary basis in case of fire, storm, snow, earthquake, flood, or 
other similar emergency.
    (4) Services performed by a member of a board, committee, or council 
of the District of Columbia, paid on a per diem, meeting, or other fee 
basis.
    (e) Government of Guam. The exception from employment under section 
3121(b)(7) does not apply to services performed after 1972 in the employ 
of the Government of Guam or any instrumentality which is wholly owned 
thereby, 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. The preceding sentence shall not 
apply to the 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. For purposes of this paragraph--
    (1) Any person whose services as an officer or employee of such 
Government or instrumentality 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
    (2) The remuneration for service described in subparagraph (1) 
(including fees paid to a public official) shall be deemed to have been 
paid by such Government or instrumentality.

[T.D. 6744, 29 FR 8312, July 2, 1964, as amended by T.D. 6983, 33 FR 
18016, Dec. 4, 1968; T.D. 7373, 40 FR 30958, July 24, 1975]



Sec. 31.3121(b)(7)-2  Service by employees who are not members of a public retirement system.

    (a) Table of contents. This paragraph contains a listing of the 
major headings of this Sec. 31.3121(b)(7)-2.

  Sec. 31.3121(b)(7)-2  Service by employees who are not members of a 
                        public retirement system.

    (a) Table of contents.
    (b) Introduction.
    (c) General rule.
    (1) Inclusion in employment of service by employees who are not 
members of a retirement system.

[[Page 45]]

    (2) Treatment of individuals employed in more than one position.
    (d) Definition of qualified participant.
    (1) General rule.
    (2) Special rule for part time, seasonal and temporary employees.
    (3) Alternative lookback rule.
    (4) Treatment of former participants.
    (e) Definition of retirement system.
    (1) Requirement that system provide retirement-type benefits.
    (2) Requirement that system provide minimum level of benefits.
    (f) Transition rules.
    (1) Application of qualified participant rules during 1991.
    (2) Additional transition rules for plans in existence on November 
5, 1990.

    (b) Introduction. Under section 3121(b)(7)(F), wages of an employee 
of a State or local government are generally subject to tax under FlCA 
after July 1, 1991, unless the employee is a member of a retirement 
system maintained by the State or local government entity. This section 
31.3121(b)(7)-2 provides rules for determining whether an employee is a 
``member of a retirement system''. These rules generally treat an 
employee as a member of a retirement system if he or she participates in 
a system that provides retirement benefits, and has an accrued benefit 
or receives an allocation under the system that is comparable to the 
benefits he or she would have or receive under Social Security. In the 
case of part-time, seasonal and temporary employees, this minimum 
retirement benefit is required to be nonforfeitable.
    (c) General rule--(1) Inclusion in employment of service by 
employees who are not members of a retirement system. Except in the case 
of service described in sections 3121(b)(7)(F) (i) through (v), the 
exception from employment under section 3121(b)(7) does not apply to 
service in the employ of a State or any political subdivision thereof, 
or of any instrumentality of one or more of the foregoing that is wholly 
owned thereby, after July 1, 1991, unless the employee is a member of a 
retirement system of such State, political subdivision or 
instrumentality at the time the service is performed. An employee is not 
a member of a retirement system at the time service is performed unless 
at that time he or she is a qualified participant (as defined in 
paragraph (d) of this section) in a retirement system that meets the 
requirements of paragraph (e) of this section with respect to that 
employee.
    (2) Treatment of individuals employed in more than one position. 
Under section 3121(b)(7)(F), whether an employee is a member of a 
retirement system is determined on an entity-by-entity rather than a 
position-by-position basis. Thus, if an employee is a member of a 
retirement system with respect to service he or she performs in one 
position in the employ of a State, political subdivision or 
instrumentality thereof, the employee is generally treated as a member 
of a retirement system with respect to all service performed for the 
same State, political subdivision or instrumentality in any other 
positions. A State is a separate entity from its political subdivisions, 
and an instrumentality is a separate entity from the State or political 
subdivision by which it is owned for purposes of this rule. See 
paragraph (e)(2) of this section, however, for rules relating to service 
and compensation required to be taken into account in determining 
whether an employee is a member of a retirement system for purposes of 
this section. This rule is illustrated by the following examples:

    Example 1. An individual is employed full-time by a county and is a 
qualified participant (as defined in paragraph (d) of this section) in 
its retirement plan with regard to such employment. In addition to this 
full-time employment, the individual is employed part-time in another 
position with the same county. The part-time position is not covered by 
the county retirement plan, however, and neither the service nor the 
compensation in the part-time position is considered in determining the 
employee's retirement benefit under the county retirement plan. 
Nevertheless, if the retirement plan meets the requirements of paragraph 
(e) of this section with respect to the individual, the exclusion from 
employment under section 3121(b)(7) applies to both the employee's full-
time and part-time service with the county.
    Example 2. An individual is employed full-time by a State and is a 
member of its retirement plan. The individual is also employed part-time 
by a city located in the State, but does not participate in the city's 
retirement plan. The services of the individual for the city are not 
excluded from employment under section 3121(b)(7), because

[[Page 46]]

the determination of whether services constitute employment for such 
purposes is made separately with respect to each political subdivision 
for which services are performed.

    (d) Definition of qualified participant--(1) General rule--(i) 
Defined benefit retirement systems. Whether an employee is a qualified 
participant in a defined benefit retirement system is determined as 
services are performed. An employee is a qualified participant in a 
defined benefit retirement system (within the meaning of paragraph 
(e)(1) of this section) with respect to services performed on a given 
day if, on that day, he or she is or ever has been an actual participant 
in the retirement system and, on that day, he or she actually has a 
total accrued benefit under the retirement system that meets the minimum 
retirement benefit requirement of paragraph (e)(2) of this section. An 
employee may not be treated as an actual participant or as actually 
having an accrued benefit for this purpose to the extent that such 
participation or benefit is subject to any conditions (other than 
vesting), such as a requirement that the employee attain a minimum age, 
perform a minimum period of service, make an election in order to 
participate, or be present at the end of the plan year in order to be 
credited with an accrual, that have not been satisfied. The rules of 
this paragraph (d)(1)(i) are illustrated by the following examples:

    Example 1. A State maintains a defined benefit plan that is a 
retirement system within the meaning of paragraph (e)(1) of this 
section. Under the terms of the plan, employees in positions covered by 
the plan must complete 6 months of service before becoming participants. 
The exception from employment in section 3121(b)(7) does not apply to 
services of an employee during the employee's 6 months of service prior 
to his or her initial entry into the plan. The same result occurs even 
if, upon the satisfaction of this service requirement, the employee is 
given credit under the plan for all service with the employer (i.e., if 
service is credited for the 6-month waiting period). This is true even 
if the employee makes a required contribution in order to gain the 
retroactive credit. The same result also occurs if the employee can 
elect to participate in the plan before the end of the 6-month waiting 
period, but does not elect to do so.
    Example 2. A political subdivision maintains a defined benefit plan 
that is a retirement system within the meaning of paragraph (e)(1) of 
this section. Under the terms of the plan, service during a plan year is 
not credited for accrual purposes unless a participant has at least 
1,000 hours of service during the year. Benefits that accrue only upon 
satisfaction of this 1,000-hour requirement may not be taken into 
account in determining whether an employee is a qualified participant in 
the plan before the 1,000-hour requirement is satisfied.

    (ii) Defined contribution retirement systems. Whether an employee is 
a qualified participant in a defined contribution retirement system is 
determined as services are performed. An employee is a qualified 
participant in a defined contribution or other individual account 
retirement system (within the meaning of paragraph (e)(1) of this 
section) with respect to services performed on a given day if, on that 
day, he or she has satisfied all conditions (other than vesting) for 
receiving an allocation to his or her account (exclusive of earnings) 
that meets the minimum retirement benefit requirement of paragraph 
(e)(2) of this section with respect to compensation during any period 
ending on that day and beginning on or after the beginning of the plan 
year of the retirement system. This is the case regardless of whether 
the allocations were made or accrued before the effective date of 
section 3121(b)(7)(F). This rule is illustrated by the following 
examples:

    Example 1. A State-owned hospital maintains a nonelective defined 
contribution plan that is a retirement system within the meaning of 
paragraph (e)(1) of this section. Under the terms of the plan, employees 
must be employed on the last day of a plan year in order to receive any 
allocation for the year. Employees may not be treated as qualified 
participants in the plan before the last day of the year.
    Example 2. Assume the same facts as in Example 1 except that, under 
the terms of the plan, an employee who terminates service before the end 
of a plan year receives a pro rata portion of the allocation he or she 
would have received at the end of the year, e.g., based on compensation 
earned since the beginning of the plan year. If the pro rata allocation 
available on a given day would meet the minimum retirement benefit 
requirement of paragraph (e)(2) of this section with respect to 
compensation from the beginning of the plan year through that day (or 
some

[[Page 47]]

later day), employees are treated as qualified participants in the plan 
on that day.
    Example 3. A political subdivision maintalns an elective defined 
contribution plan that is a retirement system within the meaning of 
paragraph (e)(1) of this section. The plan has a calendar year plan year 
and two open seasons--in December and June--when employees can change 
their contribution elections. In December, an employee elects not to 
contribute to the plan. In June, the employee elects (beginning July 1) 
to contribute a uniform percentage of compensation for each pay period 
to the plan for the remainder of the plan year. The employee is not a 
qualified participant in the plan during the period January-June, 
because no allocations are made to the employee's account with respect 
to compensation during that time, and it is not certain at that time 
that any allocations will be made. If the level of contributions during 
the period July-December meets the minimum retirement benefit 
requirement of paragraph (e)(2) of this section with respect to 
compensation during that period, however, the employee is treated as a 
qualified participant during that period.
    Example 4. Assume the same facts as in Example 3, except that the 
plan allows participants to cancel their elections in cases of economic 
hardship. In October, the employee suffers an economic hardship and 
cancels the election (effective November 1). If the contributions during 
the period July-October are high enough to meet the minimum retirement 
benefit requirement of paragraph (e)(2) of this section with respect to 
compensation during that period, the employee is treated as a qualified 
participant during that period. In addition, if the contributions during 
the period July-October are high enough to meet the requirements for the 
entire period July-December, the employee is treated as a qualified 
participant in the plan throughout the period July-December, even though 
no allocations are made to the employee's account in the last two months 
of the year. There is no requirement that the period used to determine 
whether an employee is a qualified participant on a given day remain the 
same from day to day, as long as the period begins on or after the 
beginning of the plan year and ends on the date the determination is 
being made.
    (2) Special rule for part-time, seasonal and temporary employees--
(i) In general. A part-time, seasonal or temporary employee is generally 
not a qualified participant on a given day unless any benefit relied 
upon to meet the requirements of paragraph (d)(1) of this section is 
100-percent nonforfeitable on that day. This requirement may be applied 
solely to the portion of an employee's benefit under the retirement 
system attributable to compensation and service while an employee is a 
part-time, seasonal or temporary employee, provided that such service is 
taken into account with respect to the remaining portion of the benefit 
for vesting purposes. Rules similar to the rules in section 411(a)(11) 
are applicable in determining whether a benefit is nonforfeitable. Thus, 
a benefit does not fail to be nonforfeitable solely because it can be 
immediately distributed upon separation of service without the consent 
of the employee, provided that the present value of the benefit does not 
exceed the cash-out limit in effect under Sec. 1.411(a)-11T(c)(3)(ii) of 
this chapter.
    (ii) Treatment of employees entitled to certain distributions upon 
death or separation from service. A part-time, seasonal or temporary 
employee's benefit under a retirement system is considered 
nonforfeitable within the meaning of paragraph (d)(2)(i) of this section 
on a given day if on that day the employee is unconditionally entitled 
under the retirement system to a single-sum distribution on account of 
death or separation from service of an amount that is at least equal to 
7.5 percent of the participant's compensation (within the meaning of 
paragraph (e)(2)(iii)(B) of this section) for all periods of credited 
service taken into account in determining whether the employee's benefit 
under the retirement system meets the minimum retirement benefit 
requirement of paragraph (e)(2) of this section. An employee will be 
considered to be unconditionally entitled to a single-sum distribution 
notwithstanding the fact that the distribution may be forfeitable (in 
whole or in part) upon a finding of such employee's criminal misconduct. 
The participant must be entitled to interest on the distributable amount 
through the date of distribution, at a rate meeting the requirements of 
paragraph (e)(2)(iii)(C) of this section, as part of the single sum. See 
paragraph (f)(2)(i)(C) for a transition rule relating to this 
nonforfeitable benefit safe harbor. The rule of this paragraph 
(d)(2)(ii) is illustrated by the following example:


[[Page 48]]


    Example. An employee is required to contribute 7.5 percent of his or 
her compensation to a State's defined benefit plan each year. The 
contribution is ``picked up'' by the employer in accordance with section 
414(h). Under the plan, these amounts plus interest accrued since the 
date each amount was contributed are refundable to the employee in all 
cases upon the employee's death or separation from service with the 
employer. If the interest rate meets the requirements of paragraph 
(e)(2)(iii)(C) of this section, then the employee's benefits under the 
plan are considered nonforfeitable and thus meet the requirement of 
paragraph (d)(2)(i) of this section. Of course, the benefit under the 
plan must still meet the minimum retirement benefit requirement for 
defined benefit plans of paragraph (e)(2)(ii) of this section.

    (iii) Definitions of part-time, seasonal and temporary employee--(A) 
Definition of part-time employee. For purposes of this section, a part-
time employee is any employee who normally works 20 hours or less per 
week. A teacher employed by a post-secondary educational institution 
(e.g., a community or junior college, post-secondary vocational school, 
college, university or graduate school) is not considered a part-time 
employee for purposes of this section if he or she normally has 
classroom hours of one-half or more of the number of classroom hours 
designated by the educational institution as constituting full-time 
employment, provided that such designation is reasonable under all the 
facts and circumstances. In addition, elected officials and election 
workers (otherwise described in section 3121(b)(7)(F)(iv) but paid in 
excess of $100 annually) are not considered part-time, seasonal or 
temporary employees for purposes of this section. The rules of this 
paragraph (d)(2)(iii) are illustrated by the following example:

    Example. A community college treats a teacher as a full-time 
employee if the teacher is assigned to work 15 classroom hours per week. 
A new teacher is assigned to work 8 classroom hours per week. Because 
the assigned classroom hours of the teacher are at least one-half of the 
school's definition of full-time teacher, the teacher is not a part-time 
employee.

    (B) Definition of seasonal employee. For purposes of this section, a 
seasonal employee is any employee who normally works on a full-time 
basis less than 5 months in a year. Thus, for example, individuals who 
are hired by a political subdivision during the tax return season in 
order to process incoming returns and work full-time over a 3-month 
period are seasonal employees.
    (C) Definition of temporary employee. For purposes of this section, 
a temporary employee is any employee performing services under a 
contractual arrangement with the employer of 2 years or less duration. 
Possible contract extensions may be considered in determining the 
duration of a contractual arrangement, but only if, under the facts and 
circumstances, there is a significant likelihood that the employee's 
contract will be extended. Future contract extensions are considered 
significantly likely to occur for purposes of this rule if on average 80 
percent of similarly situated employees (i.e., those in the same or a 
similar job classification with expiring employment contracts) have had 
bona fide offers to renew their contracts in the immediately preceding 2 
academic or calendar years. In addition, future contract extensions are 
considered significantly likely to occur if the employee with respect to 
whom the determination is being made has a history of contract 
extensions with respect to his or her current position. An employee is 
not considered a temporary employee for purposes of this rule solely 
because he or she is included in a unit of employees covered by a 
collective bargaining agreement of 2 years or less duration.
    (D) Treatment of employees participating in certain systems. Whether 
an employee is a part-time, seasonal or temporary employee with respect 
to allocations or benefits under a retirement system is generally 
determined based on service in the position in which the allocations or 
benefits were earned, and does not take into account service in other 
positions with the same or different States, political subdivisions or 
instrumentalities thereof. All of an employee's service in other 
positions with the same or different States, political subdivisions or 
instrumentalities thereof may be taken into account for purposes of 
determining whether an employee is a part-time, seasonal or temporary 
employee with respect to benefits under the retirement system, however, 
Provided that:

[[Page 49]]

The employee's service in the other positions is or was covered by the 
retirement system; all service aggregated for purposes of determining 
whether an employee is a part-time, seasonal or temporary employee (and 
related compensation) is aggregated under the system for all purposes in 
determining benefits (including vesting); and the employee is treated at 
least as favorably as a full-time employee under the retirement system 
for benefit accrual purposes. The rule of this paragraph (d)(2)(iii)(D) 
is illustrated by the following example:

    Example. Assume that an employee works 15 hours per week for a 
county and 10 hours per week for a municipality, and that both of these 
political subdivisions contribute to the same state-wide public employee 
retirement system. Assume further that the employee's service in both 
positions is aggregated under the system for all purposes in determining 
benefits (including vesting). If the employee is covered under the 
retirement system with respect to both positions and is treated for 
benefit accrual purposes at least as favorably as full-time employees 
under the retirement system, then the employee is not considered a part-
time employee of either the county or the municipality for purposes of 
the nonforfeitable benefit requirement of paragraph (d)(2)(i) of this 
section.

    (3) Alternative lookback rule--(i) In general. An employee may be 
treated as a qualified participant in a retirement system throughout a 
calendar year if he or she was a qualified participant in such system 
(within the meaning of paragraphs (d) (1) and (2) of this section) at 
the end of the plan year of the system ending in the previous calendar 
year. This rule is illustrated by the following examples:

    Example 1. A political subdivision maintains a plan that is a 
retirement system within the meaning of paragraph (e)(1) of this 
section. An employee is a qualified participant within the meaning of 
paragraph (d)(1) of this section in the plan on the last day of the plan 
year ending on May 31, 1995. If the alternative lookback rule is used to 
determine FICA liability, no such liability exists with respect to the 
employee or employer for calendar year 1996 by reason of section 
3121(b)(7)(F). The same result would apply if the determination is being 
made with respect to calendar year 1992 and the lookback year was the 
plan year ending May 31, 1991, even though that plan year ended before 
the effective date of section 3121(b)(7)(F).
    Example 2. A political subdivision maintains an elective defined 
contribution plan described in section 457(b) of the Code. An employee 
is eligible to participate in the plan but does not elect to contribute 
for a plan year. Under the general rule of paragraph (d)(1) of this 
section, the employee is not a qualified participant in the plan during 
the plan year because contributions sufficient to meet the minimum 
retirement benefit requirement of paragraph (e)(2) of this section are 
not being made. However, if an employee's status as a qualified 
participant is being determined under the alternative lookback rule, 
then the employee is a qualified participant for the calendar year in 
which the determination is being made if he of she was a qualified 
participant as of the end of the plan year that ended in the previous 
calendar year.

    (ii) Application in first year of participation. If the alternative 
lookback rule is used, an employee who participates in the retirement 
system may be treated as a qualified participant on any given day during 
his or her first plan year of participation in a retirement system 
(within the meaning of paragraph (e)(1) of this section) if and only if 
it is reasonable on such day to believe that the employee will be a 
qualified participant (within the meaning of paragraphs (d)(1) and (2) 
of this section) on the last day of such plan year. In the case of a 
defined contribution retirement system, the determination of whether the 
employee is actually (or is expected to be) a qualified participant at 
the end of the plan year must take into account all compensation since 
the commencement of participation. See paragraph (d)(3)(iv) of this 
section. If this reasonable belief is correct, and the employee is a 
qualified participant on the last day of his or her first plan year of 
participation, then the exception from employment in section 3121(b)(7) 
will apply without regard to section 3121(b)(7)(F) to services of the 
employee for the balance of the calendar year in which the plan year 
ends. For purposes of this paragraph (d)(3)(ii), it is not reasonable to 
assume the establishment of a new plan until such establishment actually 
occurs. In addition, the rule in this paragraph (d)(3)(ii) may not be 
used to treat an employee as a qualified participant until the employee 
actually becomes a participant in the retirement system. In the case of 
a retirement system that

[[Page 50]]

does not permit a new employee to participate until the first day of the 
first month beginning after the employee's commencement of service, or 
some earlier date, a new employee who is not a part-time, seasonal or 
temporary employee may be treated as a qualified participant until such 
date. This 1-month rule of administrative convenience applies without 
regard to whether the employer has a reasonable belief that the employee 
will be a qualified participant. The rules of this paragraph (d)(3)(ii) 
are illustrated by the following examples:

    Example 1. A political subdivision maintains a plan that is a 
retirement system within the meaning of paragraph (e)(1) of this section 
and uses the alternative lookback rule of this paragraph (d)(3). Under 
the terms of the plan, service during a plan year is not credited for 
accrual purposes unless a participant has at least 1,000 hours of 
service during the year. Assume that an employee becomes a participant. 
If it is reasonable to believe that the employee will be credited with 
1,000 hours of service by the last day of his or her first year of 
participation and thereby become a qualified participant by reason of 
accruing a benefit that meets the minimum retirement benefit requirement 
of paragraph (e)(2) of this section, the services of the employee are 
not subject to FICA tax from the date of initial participation until the 
end of that plan year. If the employee is a qualified participant on the 
last day of his or her first plan year of participation, then the 
exception from employment for purposes of FICA will apply to services of 
the employee for the balance of the calendar year in which the plan year 
ended.
    Example 2. Assume the same facts as Example 1, except that the 
employee is a newly hired employee and the plan provides that an 
employee may not participate until the first day of his or her first 
full month of employment. Under the 1-month rule of convenience, the 
employee may be treated as a qualified participant until the first date 
on which he or she could participate in the plan.

    (iii) Application in last year of participation. If the alternative 
lookback rule is used, an employee may be treated as a qualified 
participant on any given day during his or her last year of 
participation in a retirement system (within the meaning of paragraph 
(e)(1) of this section) if and only if it is reasonable to believe on 
such day that the employee, will be a qualified participant (within the 
meaning of paragraphs (d)(1) and (2) of this section) on his or her last 
day of participation. For purposes of this paragraph (d)(3)(iii), an 
employee's last year of participation means the plan year that the 
employer reasonably ascertains is the final year of such employee's 
participation (e.g., where the employee has a scheduled retirement date 
or where the employer intends to terminate the plan).
    (iv) Special rule for defined contribution retirement systems. An 
employee may not be treated as a qualified participant in a defined 
contribution retirement system under this paragraph (d)(3) if 
compensation for less than a full plan year or other 12-month period is 
regularly taken into account in determining allocations to the 
employee's account for the plan year unless, under all of the facts and 
circumstances, such arrangement is not a device to avoid the imposition 
of FICA taxes. For example, an arrangement under which compensation 
taken into account is limited to the contribution base described in 
section 3121(x)(1) is not considered a device to avoid FICA taxes by 
reason of such limitation. See paragraph (e)(2)(iii)(B) of this section 
for a rule permitting the use of such limitation. This rule is 
illustrated by the following example:

    Example. A political subdivision maintains a defined contribution 
plan that covers all of its full-time employees and is a retirement 
system within the meaning of paragraph (e)(1) of this section. Under the 
plan, a portion of each participant's compensation in the final month of 
every plan year is allocated to the participant's account. Employees 
covered under the plan generally may not be treated as qualified 
participants under the alternative lookback rule for any portion of the 
calendar year following the year in which such allocation is made.

    (v) Consistency requirement. Beginning with calendar year 1992, if 
the alternative lookback rule is used to determine whether an employee 
is a qualified participant, it must be used consistently from year to 
year and with respect to all employees of the State, political 
subdivision or instrumentality thereof making the determination. If a 
retirement system is sponsored by more than one State, political 
subdivision or instrumentality, this consistency requirement applies 
separately to each plan sponsor.

[[Page 51]]

    (4) Treatment of former participants--(i) In general. In general, 
the rules of this paragraph (d) apply equally to former participants who 
continue to perform service for the same State, political subdivision or 
instrumentality thereof or who return after a break in service. Thus, 
for example, a former employee of a political subdivision with a 
deferred benefit under a defined benefit retirement system maintained by 
the political subdivision who is reemployed by the political subdivision 
but does not resume participation in the retirement system, may continue 
to be a qualified participant in the system after becoming reemployed if 
his or her total accrued benefit under the system meets the minimum 
retirement benefit requirement of paragraph (e)(2) of this section 
(taking into account all periods of service (including current service) 
required to be taken into account under that paragraph). See also 
paragraph (e)(2)(v) of this section for situations in which benefits 
under a retirement system may be taken into account even though they 
relate to service for another employer.
    (ii) Treatment of re-hired annuitants. An employee who is a former 
participant in a retirement system maintained by a State, political 
subdivision or instrumentality thereof, who has previously retired from 
service with the State, political subdivision or instrumentality, and 
who is either in pay status (i.e., is currently receiving retirement 
benefits) under the retirement system or has reached nomal retirement 
age under the retirement system, is deemed to be a qualified participant 
in the retirement system without regard to whether he or she continues 
to accrue a benefit or whether the distribution of benefits under the 
retirement system has been suspended pending cessation of services. This 
rule also applies in the case of an employee who has retired from 
service with another State, political subdivision or instrumentality 
thereof that maintains the same retirement system as the current 
employer, provided the employee is a former participant in the system by 
reason of the employee's former employment. Thus, for example, if a 
teacher retires from service with a school district that participates in 
a state-wide teachers' retirement system, begins to receive benefits 
from the system, and later becomes a substitute teacher in another 
school district that participates in the same state-wide system, the 
employee is treated as a re-hired annuitant under this paragraph 
(d)(4)(ii).
    (e) Definition of retirement system--(1) Requirement that system 
provide retirement-type benefits. For purposes of section 3121(b)(7)(F), 
a retirement system includes any pension, annuity, retirement or similar 
fund or system within the meaning of section 218 of the Social Security 
Act that is maintained by a State, political subdivision or 
instrumentality thereof to provide retirement benefits to its employees 
who are participants. Whether a plan is maintained to provide retirement 
benefits with respect to an employee is determined under the facts and 
circumstances of each case. For example, a plan providing only retiree 
health insurance or other deferred welfare benefits is not considered a 
retirement system for this purpose. The legal form of the system is 
generally not relevant. Thus, for example, a retirement system may 
include a plan described in section 401(a), an annuity plan or contract 
under section 403 or a plan described in section 457(b) or (f) of the 
Internal Revenue Code. In addition, the Social Security system is not a 
retirement system for purposes of section 3121(b)(7)(F) and this 
section. These rules are illustrated by the following examples:

    Example 1. Under an employment arrangement, a portion of an 
employee's compensation is regularly deferred for 5 years. Because a 
plan that defers the receipt of compensation for a short span of time 
rather than until retirement is not a plan that provides retirement 
benefits, this arrangement is not a retirement system for purposes of 
section 3121(b)(7)(F).
    Example 2. An individual holds two positions with the same political 
subdivision. The wages earned in one position are subject to FICA tax 
pursuant to an agreement (under section 218 of the Social Security Act) 
between the Secretary of Health and Human Services and the State in 
which the political subdivision is located. Because the Social Security 
system is not a retirement system for purposes of section 3121(b)(7)(F), 
the exception from employment in section 3121(b)(7) does not apply to 
service in the

[[Page 52]]

other position unless the employee is otherwise a member of a retirement 
system of such political subdivision.

    (2) Requirement that system provide minimum level of benefits--(i) 
In general. A pension, annuity, retirement or similar fund or system is 
not a retirement system with respect to an employee unless it provides a 
retirement benefit to the employee that is comparable to the benefit 
provided under the Old-Age portion of the Old-Age, Survivor and 
Disability Insurance program of Social Security. Whether a retirement 
system meets this requirement is generally determined on an individual-
by-individual basis. Thus, for example, a pension plan that is not a 
retirement system with respect to an employee may nevertheless be a 
retirement system with respect to other employees covered by the system.
    (ii) Defined benefit retirement systems. A defined benefit 
retirement system maintained by a State, political subdivision or 
instrumentality thereof meets the requirements of this paragraph (e)(2) 
with respect to an employee on a given day if and only if, on that day, 
the employee has an accrued benefit under the system that entitles the 
employee to an annual benefit commencing on or before his or her Social 
Security retirement age that is at least equal to the annual Primary 
Insurance Amount the employee would have under Social Security. For this 
purpose, the Primary Insurance Amount an individual would have under 
Social Security is determined as it would be under the Social Security 
Act if the employee had been covered under Social Security for all 
periods of service with the State, political subdivision or 
instrumentality, had never performed service for any other employer, and 
had been fully insured within the meaning of section 214(a) of the 
Social Security Act, except that all periods of service with the State, 
political subdivision or instrumentality must be taken into account 
(i.e., without reduction for low-earning years).
    (iii) Defined contribution retirement systems--(A) In general. A 
defined contribution retirement system maintained by a State, political 
subdivision or instrumentality thereof meets the requirements of 
paragraph (e)(2)(i) of this section with respect to an employee if and 
only if allocations to the employee's account (not including earnings) 
for a period are at least 7.5 percent of the employee's compensation for 
service for the State, political subdivision or instrumentality during 
the period. Matching contributions by the employer may be taken into 
account for this purpose.
    (B) Definition of compensation. The definition of compensation used 
in determining whether a defined contribution retirement system meets 
the minimum retirement benefit requirement must generally be no less 
inclusive than the definition of the employee's base pay as designated 
by the employer or the retirement system, provided such designation is 
reasonable under all the facts and circumstances. Thus, for example, a 
defined contribution retirement system will not fail to meet this 
requirement merely because it disregards for all purposes one or more of 
the following: overtime pay, bonuses, or single-sum amounts received on 
account of death or separation from service under a bona fide vacation, 
compensatory time or sick pay plan, or under severance pay plans. 
Furthermore, any compensation remaining after such amounts are 
disregarded that is in excess of the contribution base described in 
section 3121(x)(1) at the beginning of the plan year may also be 
disregarded. The rules of this paragraph are illustrated by the 
following example:

    Example. A political subdivision maintains an elective defined 
contribution plan that is a retirement system within the meaning of 
paragraph (e)(1) of this section. The plan has a calendar year plan 
year. In 1995, an employee contributes to the plan at a rate of 7.5 
percent of base pay. Assume that the employee will reach the maximum 
contribution base described in section 3121(x)(1) in October of 1995. 
The employee is a qualified participant in the plan for all of the 1995 
plan year without regard to whether the employee ceases to participate 
at any time after reaching the maximum contribution base.

    (C) Reasonable interest rate requirement. A defined contribution 
retirement system does not satisfy this paragraph (e)(2) with respect to 
an employee unless the employee's account is credited with earnings at a 
rate that is reasonable under all the facts and circumstances, or 
employees' accounts

[[Page 53]]

are held in a separate trust that is subject to general fiduciary 
standards and are credited with actual earnings on the trust fund. 
Whether the interest rate with which an employee's account is credited 
is reasonable is determined after reducing the rate to adjust for the 
payment of any administrative expenses. The rule of this paragraph 
(e)(2)(iii)(C) is illustrated by the following example:

    Example. A political subdivision maintains a defined contribution 
plan described in section 457(b). Under the plan, the accounts of 
participants are credited annually on the basis of a variable interest 
rate formula determined as of the beginning of the plan year. The 
formula requires an interest rate (after adjustment for administrative 
expense payments) equal to 100 percent of the Applicable Federal Rate 
for long-term debt instruments. This interest rate constitutes a 
reasonable rate of interest.

    (iv) Treatment of emloyees employed in more than one position with 
the same entity. All service and compensation of an employee with 
respect to his or her employment with a State, political subdivision or 
instrumentality thereof must generally be considered in determining 
whether a benefit meets the requirement of this paragraph (e)(2). 
However, for individuals employed simultaneously in multiple positions 
with the same entity, this determination may (but is not required to) be 
made solely by reference to the service and compensation related to a 
single position of the employee with the State, political subdivision or 
instrumentality thereof making the determination, provided that the 
position is not a part-time, seasonal or temporary position.
    (v) Treatment of employees participating in certain systems. In 
general, only compensation from and service for the State, political 
subdivision or instrumentality thereof that employs the employee (and 
the allocations or benefits related to such compensation or service) on 
a given day are considered in determining whether the employee's benefit 
under the retirement system on that day meets the requirements of this 
paragraph (e)(2), even if the employee has other allocations or benefits 
under the same retirement system from service with another State, 
political subdivision or instrumentality thereof. However, an employee's 
total allocations or benefits under a retirement system maintained by 
multiple States, political subdivisions or instrumentalities thereof 
(including the current employer) may be taken into account if:
    (A) The compensation and service on which the additional allocations 
or benefits are based are also taken into account in determining whether 
the employee's allocations or benefits satisfy the minimum retirement 
benefit requirement;
    (B) The retirement system takes all service and compensation of the 
employee in all positions covered by the system into account for all 
benefit determination purposes; and
    (C) If the employee is a part-time, seasonal or temporary employee, 
he or she is treated under the plan for benefit accrual purposes in as 
favorable a manner as a full-time employee participating in the system.
    (vi) Additional testing methods. Additional testing methods may be 
designated by the Commissioner in revenue procedures, revenue rulings, 
notices or other documents of general applicability.
    (f) Transition rules--(1) Application of qualified participant rules 
during 1991--(i) In general. An employee may be treated as a qualified 
participant in a retirement system (within the meaning of paragraph 
(e)(1) of this section) on a given day during the period July 1 through 
December 31, 1991, if it is reasonable on that day to believe that he or 
she will be a qualified participant under the general rule in paragraphs 
(d) (1) and (2) of this section by January 1, 1992 (taking into account 
only service and compensation on or after such date). For purposes of 
this paragraph (f)(1)(i), given the facts and circumstances of a 
particular case, it may be reasonable to assume that the terms of a plan 
will be changed or that a new retirement system will be established by 
the end of calendar year 1991, as long as affirmative steps have been 
taken to accomplish this result.
    (ii) Extension of reliance period if legislative action required. If 
a plan amendment or other action is necessary in order to treat an 
employee as a member of a retirement system for purposes

[[Page 54]]

of this section, such amendment or other action may only be taken by a 
legislative body that does not convene during the period July 1, 1991, 
through December 31, 1991, and the other requirements of paragraph 
(f)(1)(i) of this section are met, the end of the reasonable reliance 
period (including the rule that service and compensation prior to that 
date may be disregarded) provided under paragraph (f)(1)(i) of this 
section is extended from December 31, 1991, to the date that is the last 
day of the first legislative session commencing after December 31, 1991. 
These rules are illustrated by the following examples:

    Example 1. A State maintains a defined benefit plan that meets the 
requirements of paragraph (e) of this section. The plan does not cover a 
particular class of full-time employees as of July 1, 1991. However, in 
light of the enactment of section 3121(b)(7)(F), State officials 
administering the plan for the State intend to request that the 
legislature amend the State statute to include that class of employees 
in the existing plan and otherwise to modify the terms of the plan to 
meet the requirements of section 3121(b)(7)(F) and this section. The 
State legislature meets from January through March each year, and 
legislative action is required to expand coverage under the plan. State 
officials administering the plan have publicized the proposed amendment 
providing for the addition of these employees to the plan. Under the 
transition rule for 1991, if it is reasonable to believe that the 
legislature will pass this bill in the 1992 session, service by the 
employees who will be covered under the plan by reason of the amendment 
is not treated as employment by reason of section 3121(b)(7)(F) during 
the period prior to April 1, 1992. This is true regardless of whether 
the plan provides retroactive coverage for the period July 1, 1991 
through March 31, 1992.
    Example 2. Assume the same facts as in Example 1, except that 
legislative action is not required in order to expand coverage under the 
plan, and that publication of the proposed change to the plan occurs in 
1991. Assume further that coverage is expanded under the plan to include 
the new class of full-time employees as of April 1, 1992. Despite this 
action, in this situation the service by those employees during the 
period January 1, 1992 through March 31, 1992 is not excluded from 
``employment'' under section 3121(b)(7)(F), and wages for that period 
are generally subject to FICA taxes even if the plan provides 
retroactive coverage for any portion of the period July 1, 1991 to March 
31, 1992.

    (2) Additional transition rules for plans in existence on November 
5, 1990--(i) Application of minimum retirement benefit requirement to 
defined benefit retirement systems in plan years beginning before 1993--
(A) In general. A defined benefit retirement system maintained by a 
State, political subdivision or instrumentality thereof on November 5, 
1990, is not subject to the minimum retirement benefit requirement of 
paragraph (e)(2) of this section for any plan year beginning before 
January 1, 1993, with respect to individuals who were actually covered 
under the system on November 5, 1990. Such a retirement system is also 
not subject to the minimum retirement benefit requirement of paragraph 
(e)(2) of this section with respect to an employee who becomes a 
participant after November 5, 1990, if he or she is employed in a 
position that was covered under the retirement system on November 5, 
1990, without regard to whether such coverage was mandatory or elective. 
A retirement system is not described in this paragraph (f)(2)(i)(A) if 
there has been a material decrease in the level of retirement benefits 
under the retirement system pursuant to an amendment adopted subsequent 
to November 5, 1990. Whether such a material decrease in benefits has 
occurred is determined under the facts and circumstances of each case. A 
decrease in benefits is not material to the extent that it does not 
decrease the benefit payable at normal retirement age. These rules are 
illustrated by the following examples:

    Example 1. The retirement formula under a retirement plan that was 
in existence on November 5, 1990, is amended to use career average 
compensation instead of a high 3-year average, without any increase in 
the benefit formula. This amendment constitutes a material decrease in 
the level of benefit under the retirement plan. Therefore, the 
retirement plan is subject to the minimum retirement benefit requirement 
for the plan year for which the amendment is effective and for all 
succeeding plan years.
    Example 2. A defined benefit retirement plan that was in existence 
on November 5, 1990, is subsequently amended to include part-time 
employees. Previously, this class of employees was not covered under the 
plan either on a mandatory or on an elective basis. The plan is subject 
to the minimum retirement benefit requirement with respect to the part-
time employees because this

[[Page 55]]

class of employees was previously excluded from coverage under the 
retirement plan. Of course, the nonforfeitable benefit rule applies to 
the benefit relied upon to meet the minimum retirement benefit 
requirement with respect to any part-time, seasonal or temporary 
employee covered during this period.

    (B) Treatment in plan years beginning after 1992 of benefits accrued 
during previous plan years. The general rule that a defined benefit 
retirement system meets the minimum retirement benefit requirement on 
the basis of total benefits and service accrued to date is modified for 
plans in existence on November 5, 1990. If a defined benefit retirement 
system in existence on November 5, 1990, does not meet the minimum 
retirement benefit requirement solely because the benefits accrued for 
an employee (with respect to whom the system is entitled to relief under 
paragraph (f)(2)(i)(A) of this section) as of the last day of the last 
plan year beginning before January 1, 1993, do not meet the minimum 
retirement benefit requirement of paragraph (e)(2) of this section with 
respect to service and compensation before that time, then the 
retirement system will be deemed to comply with the requirements of 
paragraph (e)(2) of this section if the future service accruals would 
comply with the requirement of paragraph (e)(2) of this section. If 
retirement benefits under a retirement system in existence on November 
5, 1990 are materially decreased within the meaning of paragraph 
(f)(2)(i)(A) of this section, then the date the decrease is effective is 
substituted for January 1, 1993 for purposes of this paragraph. The rule 
of this paragraph (f)(2)(i)(B) is illustrated by the following example:

    Example. A defined benefit plan maintained by a State was in 
existence on November 5, 1990. It provides a retirement benefit on the 
last day of the 1992 plan year that is insufficient to meet the 
requirements of paragraph (e)(2) of this section based on employees' 
total service and compensation with the State at that time. The plan 
will nevertheless meet the requirements of paragraph (e)(2) of this 
section if it is amended to provide benefits sufficient to meet the 
requirements of paragraph (e)(2) of this section based on employees' 
service and compensation in plan years beginning after December 31, 
1992.

    (C) Treatment of part-time, seasonal or temporary employees. A 
defined benefit retirement system is not exempt from the minimum 
retirement benefit requirement with respect to a part-time, seasonal or 
temporary employee during the transition period provided in paragraph 
(f)(2)(i)(A) of this section unless any retirement benefit provided to 
the employee is 100-percent nonforfeitable within the meaning of 
paragraph (d)(2) of this section. In determining whether the benefit is 
nonforfeitable, the special rule in paragraph (d)(2)(ii) of this section 
is modified in two respects during the transition period: first, the 
percentage of compensation required to be available for distribution is 
reduced from 7.5 percent to 6 percent; and second, the period of service 
with respect to which compensation must be determined is modified to 
include all periods of participation by the employee in the system since 
July 1, 1991.
    (ii) Application of minimum retirement benefit requirement to 
defined contribution retirement systems in plan years beginning before 
1993. A defined contribution retirement system maintained by a State, 
political subdivision or instrumentality thereof on November 5, 1990, 
meets the minimum retirement benefit requirement of paragraph (e) (2) of 
this section with respect to an employee for any plan year beginning 
before January 1, 1993, if mandatory allocations to the employee's 
account (not including earnings) for a period are at least 6 percent 
(rather than 7.5 percent) of the employee's compensation for service to 
the State, political subdivision or instrumentality during the period, 
and the plan otherwise meets the requirements of paragraph (e)(2)(iii) 
of this section. This transition rule is only available with respect to 
an employee who is actually covered under the system on November 5, 
1990, and to an employee who becomes a participant after November 5, 
1990, if he or she is employed in a position that was covered under the 
retirement system on November 5, 1990, without regard to whether such 
coverage was mandatory or elective. In addition, this transition rule is 
not available with respect to a part-time, seasonal or temporary 
employee unless the mandatory allocation required under this paragraph 
(f)(2)(ii)

[[Page 56]]

is 100-percent nonforfeitable within the meaning of paragraph (d)(2) of 
this section. A retirement system is not described in this paragraph 
(f)(2)(ii) if there has been a material decrease in the level of 
retirement benefits under the retirement system pursuant to an amendment 
adopted subsequent to November 5, 1990. Whether such a material decrease 
in benefits has occurred is determined under all the facts and 
circumstances.
    (iii) Application of qualified participant rules. A participant with 
respect to whom relief is granted under paragraph (f)(2)(i)(A) of this 
section may be treated as a qualified participant in the defined benefit 
retirement system on a given day if, on that day, he or she is actually 
a participant in the retirement system, and, on that day, it is 
reasonable to believe that the participant will actually accrue a 
benefit before the end of the plan year of such retirement system in 
which the determination is made. A participant is not treated as 
accruing a benefit for purposes of this rule if his or her accrued 
benefits increase solely as a result of an increase in compensation. 
However, an employee is treated as a qualified participant for a plan 
year if the employee meets all of the applicable conditions for accruing 
the maximum current benefit for such year but fails to accrue a benefit 
solely because of a uniformly applicable benefit limit under the plan. 
In addition, an employee may be treated as a qualified participant in 
the system on a given day if the employee is a re-hired annuitant within 
the meaning of paragraph (d)(4)(ii) of this section. This rule is 
illustrated by the following example:

    Example. A political subdivision maintains a defined benefit plan 
that is a retirement system within the meaning of paragraph (e)(1) of 
this section but does not meet the requirements of paragraph (e)(2) of 
this section. If the plan is not subject to the minimum retirement 
benefit requirement, an employee who is a participant in the retirement 
plan as of the end of a plan year beginning before January 1, 1993, and 
may reasonably be expected to accrue a benefit under the plan by the end 
of such plan year may be treated as a qualified participant in the plan 
throughout the plan year regardless of the actual amount of the accrual.

[T.D. 8354, 56 FR 29570, June 28, 1991; 56 FR 40246, Aug. 14, 1991, as 
amended by T.D. 8794, 63 FR 70338, Dec. 21, 1998]



Sec. 31.3121(b)(8)-1  Services performed by a minister of a church or a member of a religious order.

    (a) In general. Services 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 his duties required by 
such order, are excluded from employment, except that services performed 
by a member of such an order in the exercise of such duties (whether 
performed for the order or for another employer) are included in 
employment if an election of coverage under section 3121(r) and 
Sec. 31.3121(r)-1 is in effect with respect to such order or with 
respect to the autonomous subdivision thereof to which such member 
belongs. For provisions relating to the election available to certain 
ministers and members of religious orders with respect to the extension 
of the Federal old-age, survivors, and disability insurance system 
established by title II of the Social Security Act to certain services 
performed by them, see Part 1 of this chapter (Income Tax Regulations).
    (b) Service by a minister in the exercise of his ministry. Except as 
provided in paragraph (c)(3) of this section, service performed by a 
minister in the exercise of his ministry includes the ministration of 
sacerdotal functions and the conduct of religious worship, and the 
control, conduct, and maintenance of religious organizations (including 
the religious boards, societies, and other integral agencies of such 
organizations), under the authority of a religious body constituting a 
church or church denomination. The following rules are applicable in 
determining whether services performed by a minister are performed in 
the exercise of his ministry:
    (1) Whether service performed by a minister constitutes the conduct 
of religious worship or the ministration of

[[Page 57]]

sacerdotal functions depends on the tenets and practices of the 
particular religious body constituting his church or church 
denomination.
    (2) Service performed by a minister in the control, conduct, and 
maintenance of a religious organization relates to directing, managing, 
or promoting the activities of such organization. Any religious 
organization is deemed to be under the authority of a religious body 
constituting a church or church denomination if it is organized and 
dedicated to carrying out the tenets and principles of a faith in 
accordance with either the requirements or sanctions governing the 
creation of institutions of the faith. The term ``religious 
organization'' has the same meaning and application as is given to the 
term for income tax purposes.
    (3) (i) If a minister is performing service in the conduct of 
religious worship or the ministration of sacerdotal functions, such 
service is in the exercise of his ministry whether or not it is 
performed for a religious organization.
    (ii) The rule in paragraph (b)(3)(i) of this section may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is engaged to perform service 
as chaplain at N University. M devotes his entire time to performing his 
duties as chaplain which include the conduct of religious worship, 
offering spiritual counsel to the university students, and teaching a 
class in religion. M is performing service in the exercise of his 
ministry.

    (4) (i) If a minister is performing service for an organization 
which is operated as an integral agency, of a religious organization 
under the authority of a religious body constituting a church or church 
denomination, all service performed by the minister in the conduct of 
religious worship, in the ministration of sacerdotal functions, or in 
the control conduct, and maintenance of such organization (see paragraph 
(b)(2) of this section) is in the exercise of his ministry.
    (ii) The rule in paragraph (b)(4)(i) of this section may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is engaged by the N Religious 
Board to serve as director of one of its departments. He performs no 
other service. The N Religious Board is an integral agency of O, a 
religious organization operating under the authority of a religious body 
constituting a church denomination. M is performing service in the 
exercise of his ministry.

    (5) (i) If a minister, pursuant to an assignment or designation by a 
religious body constituting his church, performs service for an 
organization which is neither a religious organization nor operated as 
an integral agency of a religious organization, all service performed by 
him, even though such service may not involve the conduct of religious 
worship or the ministration of sacerdotal functions, is in the exercise 
of his ministry.
    (ii) The rule in paragraph (b)(5)(i) of this section may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is assigned by X, the 
religious body constituting his church, to perform advisory service to Y 
Company in connection with the publication of a book dealing with the 
history of M's church denomination. Y is neither a religious 
organization nor operated as an integral agency of a religious 
organization. M performs no other service for X or Y. M is performing 
service in the exercise of his ministry.

    (c) Service by a minister not in the exercise of his ministry. (1) 
Section 3121(b)(8)(A) does not except from employment service performed 
by a duly ordained, commissioned, or licensed minister of a church which 
is not in the exercise of his ministry.
    (2) (i) If a minister is performing service for an organization 
which is neither a religious organization nor operated as an integral 
agency of a religious organization and the service is not performed 
pursuant to an assignment or designation by his ecclesiastical 
superiors, then only the service performed by him in the conduct of 
religious worship or the ministration of sacerdotal functions is in the 
exercise of his ministry. See, however, paragraph (c)(3) of this 
section.
    (ii) The rule in paragraph (c)(2)(i) of this section may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is engaged by N University to 
teach history and mathematics. He performs no other service for N 
although from time to time he performs marriages and conducts funerals 
for relatives and friends. N University is neither

[[Page 58]]

a religious organization nor operated as an integral agency of a 
religious organization. M is not performing the service for N pursuant 
to an assignment or designation by his ecclesiastical superiors. The 
service performed by M for N University is not in the exercise of his 
ministry. However, service performed by M in performing marriages and 
conducting funerals is in the exercise of his ministry.

    (3) Service performed by a duly ordained, commissioned, or licensed 
minister of a church as an employee of the United States, or a State, 
Territory, or possession of the United States, or the District of 
Columbia, or a foreign government, or a political subdivision of any of 
the foregoing, is not considered to be in the exercise of his ministry 
for purposes of the taxes, even though such service may involve the 
ministration of sacerdotal function or the conduct of religious worship. 
Thus, for example, service performed by an individual as a chaplain in 
the Armed Forces of the United States is considered to be performed by a 
commissioned officer in his capacity as such, and not by a minister in 
the exercise of his ministry. Similarly, service performed by an 
employee of a State as a chaplain in a State prison is considered to be 
performed by a civil servant of the State and not by a minister in the 
exercise of his ministry.
    (d) Service in the exercise of duties required by a religious order. 
Service performed by a member of a religious order in the exercise of 
duties required by such order includes all duties required of the member 
by the order. The nature or extent of such service is immaterial so long 
as it is a service which he is directed or required to perform by his 
ecclesiastical superiors.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7280, 38 FR 18369, July 10, 1973]



Sec. 31.3121(b)(8)-2  Services in employ of religious, charitable, educational, or certain other organizations exempt from income tax.

    (a) Services performed by an employee in the employ of a religious, 
charitable, educational, or other organization described in section 
501(c)(3) which is exempt from income tax under section 501(a) are 
excepted from employment. However, this exception does not apply to 
services with respect to which a certificate, filed pursuant to section 
3121 (k) or (r), or section 1426(l) of the Internal Revenue Code of 
1939, is in effect. For provisions relating to the services with respect 
to which such a certificate is in effect, see Secs. 31.3121(k)-1 and 
31.3121(r)-1.
    (b) For provisions relating to exemption from income tax of an 
organization described in section 501(c)(3), see Part 1 of this chapter 
(Income Tax Regulations). For provisions relating to waiver by an 
organization of its exemption from the taxes imposed by sections 3101 
and 3111, see Sec. 31.3121(k)-1. See also Sec. 31.3121(b)(8)-1, relating 
to services performed by a 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; Sec. 31.3121(b)(10)-1, relating to services for 
remuneration of less than $50 for calendar quarter in the employ of 
certain organizations exempt from income tax; Sec. 31.3121(b)(10)-2, 
relating to services performed in the employ of a school, college, or 
university by certain students; and Sec. 31.3121(b)(13)-1, relating to 
services performed by certain student nurses and hospital interns.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7280, 38 FR 18369, July 10, 1973]



Sec. 31.3121(b)(9)-1  Railroad industry; services performed by an employee or an employee representative as defined in section 3231.

    Services performed by an individual as an ``employee'' or as an 
``employee representative'', as those terms are defined in section 3231, 
are excepted from employment. For definitions of employee and employee 
representatives, see Secs. 31.3231(b)-1 and 31.3231(c)-1.



Sec. 31.3121(b)(10)-1  Services for remuneration of less than $50 for calendar quarter in the employ of certain organizations exempt from income tax.

    (a) Services performed by an employee in a calendar quarter in the 
employ of an organization exempt from income tax under section 501(a) 
(other than an organization described in section 401(a)) or under 
section 521 are excepted from employment if the remuneration for the 
services is less than

[[Page 59]]

$50. The test relating to remuneration of $50 is based on the 
remuneration earned during a calendar quarter rather than on the 
remuneration paid in a calendar quarter. The exception applies 
separately with respect to each organization for which the employee 
renders services in a calendar quarter. The type of services performed 
by the employee and the place where the services are performed are 
immaterial; the statutory tests are the character of the organization in 
the employ of which the services are performed and the amount of the 
remuneration for services performed by the employee in the calendar 
quarter. For provisions relating to exemption from income tax under 
section 501(a) or 521, see Part 1 of this chapter (Income Tax 
Regulations).

    Example 1. X is a local lodge of a fraternal organization and is 
exempt from income tax under section 501(a) as an organization of the 
character described in section 501(c)(8). X has two paid employees, A, 
who serves exclusively as recording secretary for the lodge, and B, who 
performs services for the lodge as janitor of its clubhouse. For 
services performed during the first calendar quarter of 1955 (that is, 
January 1, 1955, through March 31, 1955, both dates inclusive) A earns a 
total of $30. For services performed by certain student quarter B earns 
$180. Since the remuneration for the services performed by A during such 
quarter is less than $50, all of such services are expected, and the 
taxes do not attach with respect to any of the remuneration for such 
services. Since the remuneration for the services performed by B during 
such quarter, however, is not less than $50, none of such services are 
excepted, and the taxes attached with respect to all of the remuneration 
for such services (that is, $180) as and when paid.
    Example 2. The facts are the same as in example 1, above, except 
that on April 1, 1955, A's salary is increased and, for services 
performed during the calendar quarter beginning on that date (that is, 
April 1, 1955, through June 30, 1955, both dates inclusive), A earns a 
total of $60. Although all of the services performed by A during the 
first quarter were excepted, none of A's services performed during the 
second quarter are excepted since the remuneration for such services is 
not less than $50. The taxes attach with respect to all of the 
remuneration for services performed during the second quarter (that is, 
$60) as and when paid.
    Example 3. The facts are the same as in example 1, above, except 
that A earns $120 for services performed during the year 1955, and such 
amount is paid to him in a lump sum at the end of the year. The services 
performed by A in any calendar quarter during the year are excepted if 
the portion of the $120 attributable to services performed in that 
quarter is less than $50. If, however, the portion of the $120 
attributable to services performed in any calendar quarter during the 
year is not less than $50, the services during that quarter are not 
excepted, and the taxes attach with respect to that portion of the 
remuneration attributable to his services in that quarter.

    (b) See Sec. 31.3121(b)(8)-2, relating to services performed in the 
employ of religious, charitable, educational, and certain other 
organizations exempt from income tax; Sec. 31.3121(b)(8)-1, relating to 
services performed by a 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; Sec. 31.3121(b)(10)-2, relating to services 
performed by certain students in the employ of a school, college, or 
university or of a nonprofit organization auxiliary to a school, 
college, or university; and Sec. 31.3121(b)(13)-1, relating to services 
performed by certain student nurses and hospital interns.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7373, 40 FR 30958, July 24, 1975]



Sec. 31.3121(b)(10)-2  Services performed by certain students in the employ of a school, college, or university, or of a nonprofit organization auxiliary to a 
          school, college, or university.

    (a) (1) Services performed in the employ of a school, college, or 
university (whether or not such organization is exempt from income tax) 
are excepted from employment, if the services are performed by a student 
who is enrolled and is regularly attending classes at such school, 
college, or university.
    (2) Services performed after 1972 in the employ of an organization 
which is--
    (i) Described in section 509(a)(3) and Sec. 1.509(a)-4;
    (ii) Organized, and at all times thereafter operated, exclusively 
for the benefit of, to perform the functions of, or to carry out the 
purposes of a school, college, or university; and
    (iii) Operated, supervised, or controlled by or in connection with 
such school, college, or university;

[[Page 60]]


are excepted from employment, if the services are performed by a student 
who is enrolled and is regularly attending classes at such school, 
college, or university. The preceding sentence shall not apply to 
services performed in the employ of a school, college, or university of 
a State or a political subdivision thereof by a student referred to in 
section 218(c)(5) of the Social Security Act (42 U.S.C. 418(c)(5)) if 
such services are covered under the agreement between the Secretary of 
Health, Education, and Welfare and such State entered into pursuant to 
section 218 of such Act. For the definitions of ``operated, supervised, 
or controlled by'', ``supervised or controlled in connection with'', and 
``operated in connection with'', see paragraphs (g), (h), and (i), 
respectively, of Sec. 1.509(a)-4.
    (b) For purposes of this exception, the amount of remuneration for 
services performed by the employee in the calendar quarter, the type of 
services performed by the employee, and the place where the services are 
performed are immaterial. The statutory tests are (1) the character of 
the organization in the employ of which the services are performed as a 
school, college, or university, or as an organization described in 
paragraph (a)(2) of this section, and (2) the status of the employee as 
a student enrolled and regularly attending classes at the school, 
college, or university by which he is employed or with which his 
employer is affiliated.
    (c) The status of the employee as a student performing the services 
shall be determined on the basis of the relationship of such employee 
with the organization for which the services are performed. An employee 
who performs services in the employ of a school, college, or university, 
as an incident to and for the purpose of pursuing a course of study at 
such school, college, or university has the status of a student in the 
performance of such services. An employee who performs services in the 
employ of an organization described in paragraph (a)(2) of this section, 
as an incident to and for the purpose of pursuing a course of study at a 
school, college, or university with which such organization is 
affiliated, has the status of a student in the performance of such 
services.
    (d) The term ``school, college, or university'' within the meaning 
of this exception is to be taken in its commonly or generally accepted 
sense.
    (e) For provisions relating to domestic service performed by a 
student in a local college club, or local chapter of a college 
fraternity or sorority, see Sec. 31.3121(b)(2)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7373, 40 FR 30958, July 24, 1975]



Sec. 31.3121(b)(11)-1  Services in the employ of a foreign government.

    (a) Services performed by an employee in the employ of a foreign 
government are excepted from employment. The exception includes not only 
services performed by ambassadors, ministers, and other diplomatic 
officers and employees but also services performed as a consular or 
other officer or employee of a foreign government, or as a nondiplomatic 
representative thereof.
    (b) For purposes of this exception, the citizenship or residence of 
the employee is immaterial. It is also immaterial whether the foreign 
government grants an equivalent exemption with respect to similar 
services performed in the foreign country by citizens of the United 
States.



Sec. 31.3121(b)(12)-1  Services in employ of wholly owned instrumentality of foreign government.

    (a) Services performed by an employee in the employ of certain 
instrumentalities of a foreign government are excepted from employment. 
The exception includes all services performed in the employ of an 
instrumentality of the government of a foreign country, if--
    (1) The instrumentality is wholly owned by the foreign government;
    (2) The services are of a character similar to those performed in 
foreign countries by employees of the United States Government or of an 
instrumentality thereof; and
    (3) The Secretary of State certifies 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

[[Page 61]]

to services performed in the foreign country by employees of the United 
States Government and of instrumentalities thereof.
    (b) For purposes of this exception, the citizenship or residence of 
the employee is immaterial.



Sec. 31.3121(b)(13)-1  Services of student nurse or hospital intern.

    (a) Services performed as a student nurse in the employ of a 
hospital or a nurses' training school are excepted from employment, if 
the student nurse is enrolled and regularly attending classes in a 
nurses' training school and such nurses' training school is chartered or 
approved pursuant to State law.
    (b) Services performed before 1966 as an intern (as distinguished 
from a resident doctor), in the employ of a hospital are excepted from 
employment, if the intern has completed a 4 years' course in a medical 
school chartered or approved pursuant to State law.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6983, 33 FR 
18017, Dec. 4, 1968]



Sec. 31.3121(b)(14)-1  Services in delivery or distribution of newspapers, shopping news, or magazines.

    (a) Services of individuals under age 18. Services performed by an 
employee under the age of 18 in the delivery or distribution of 
newspapers or shopping news, not including delivery or distribution (as, 
for example, by a regional distributor) to any point for subsequent 
delivery or distribution, are excepted from employment. Thus, the 
services performed by an employee under the age of 18 in making house-
to-house delivery or sale of newspapers or shopping news, including 
handbills and other similar types of advertising material, are excepted 
from employment. The services are excepted irrespective of the form or 
method of compensation. Incidental services by the employees who makes 
the house-to-house delivery, such as services in assembling newspapers, 
are considered to be within the exception. The exception continues only 
during the time that the employee is under the age of 18.
    (b) Services of individuals of any age. Services performed by an 
employee 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, are excepted from 
employment. The services are excepted whether or not the employee is 
guaranteed a minimum amount of compensation for such services, or is 
entitled to be credited with the unsold newspapers or magazines turned 
back. Moreover, the services are excepted without regard to the age of 
the employee. Services performed other than at the time of sale to the 
ultimate consumer are not within the exception. Thus, the services of a 
regional distributor which are antecedent to but not immediately part of 
the sale to the ultimate consumer are not within the exception. However, 
incidental services by the employee who makes the sale to the ultimate 
consumer, such as services in assembling newspapers or in taking 
newspapers or magazines to the place of sale, are considered to be 
within the exception.



Sec. 31.3121(b)(15)-1  Services in employ of international organization.

    (a) Subject to the provisions of section 1 of the International 
Organizations Immunities Act (22 U.S.C. 288), services performed in the 
employ of an international organization as defined in section 
7701(a)(18) are excepted from employment.
    (b) (1) Section 7701(a)(18) provides as follows:

    Sec. 7701. Definitions. (a) When used in this title, where not 
otherwise distinctly expressed or manifestly incompatible with the 
intent thereof--

                                * * * * *

    (18) International organization. The term ``international 
organization'' means a public international organization entitled to 
enjoy privileges, exemptions, and immunities as an international 
organization under the International Organizations Immunities Act (22 
U.S.C. 288-288f).

    (2) Section 1 of the International Organizations Immunities Act 
provides as follows:


[[Page 62]]


    Sec. 1 [International Organizations Immunities Act.] For the 
purposes of this title [International Organizations Immunities Act], the 
term ``international organization'' means a public international 
organization in which the United States participates pursuant to any 
treaty or under the authority of any Act of Congress authorizing such 
participation or making an appropriation for such participation, and 
which shall have been designated by the President through appropriate 
Executive order as being entitled to enjoy the privileges, exemptions, 
and immunities herein provided. The President shall be authorized, in 
the light of the functions performed by any such international 
organization, by appropriate Executive order to withhold or withdraw 
from any such organization or its officers or employees any of the 
privileges, exemptions, and immunities provided for in this title 
(including the amendments made by this title) or to condition or limit 
the enjoyment by any such organization or its officers or employees of 
any such privilege, exemption, or immunity. The president shall be 
authorized, if in his judgment such action should be justified by reason 
of the abuse by an international organization or its officers and 
employees of the privileges, exemptions, and immunities herein provided 
or for any other reason, at any time to revoke the designation of any 
international organization under this section, whereupon the 
international organization in question shall cease to be classed as an 
international organization for the purposes of this title.



Sec. 31.3121(b)(16)-1  Services performed under share-farming arrangement.

    (a) The term ``employment'' does not include services performed by 
an individual under an arrangement with the owner or tenant of land 
pursuant to which--
    (1) Such individual undertakes to produce agricultural or 
horticultural commodities (including livestock, bees, poultry, and fur-
bearing animals and wildlife) on such land,
    (2) 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
    (3) The amount of such individual's share depends on the amount of 
the agricultural or horticultural commodities produced.

For purposes of this exception, the arrangement pursuant to which the 
individual's services are performed must meet the specified statutory 
conditions.
    (b) If the arrangement between the parties provides that the 
individual who undertakes to produce a crop or livestock is to be 
compensated at a specified rate of pay or is to receive a fixed sum of 
money or a stipulated quantity of the commodities to be produced, 
without regard to the amount actually produced, as distinguished from a 
proportionate share of the crop or livestock, or the proceeds therefrom, 
the services performed by such individual in the production of such crop 
or livestock is not within the exception.
    (c) For provisions relating to the status, under the Self-Employment 
Contributions Act of 1954, of the services which are excepted from 
``employment'' under this section, see the regulations under section 
1402(a) in Part 1 of this chapter (Income Tax Regulations).

[T.D. 6744, 29 FR 8313, July 2, 1964]



Sec. 31.3121(b)(17)-1  Services in employ of Communist organization.

    The term ``employment'' does not include services performed in the 
employ of any organization in any calendar quarter beginning after June 
30, 1956, and 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 (50 U.S.C. 781 et seq.), as amended, as a 
Communist-action organization, a Communist-front organization, or a 
Communist-infiltrated organization.

[T.D. 6744, 29 FR 8313, July 2, 1964]



Sec. 31.3121(b)(18)-1  Services performed by a resident of the Republic of the Philippines while temporarily in Guam.

    (a) Services performed after 1960 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) are excepted from 
employment.
    (b) Section 101(a)(15)(H) of the Immigration and Nationality Act 
provides as follows:


[[Page 63]]


    Sec. 101. Definitions. [Immigration and Nationality Act (66 Stat. 
166)]
    (a) As used in this chapter--

                                * * * * *

    (15) The term ``immigrant'' means every alien except an alien who is 
within one of the following classes of nonimmigrant aliens--

                                * * * * *

    (H) An alien having a residence in a foreign country which he has no 
intention of abandoning (i) who is of distinguished merit and ability 
and who is coming temporarily to the United States to perform temporary 
services of an exceptional nature requiring merit and ability; or (ii) 
who is coming temporarily to the United States to perform other 
temporary services or labor, if unemployed persons capable of performing 
such service or labor cannot be found in this country; or (iii) who is 
coming temporarily to the United States as an industrial trainee;

[T.D. 6744, 29 FR 8313, July 2, 1964]



Sec. 31.3121(b)(19)-1  Services of certain nonresident aliens.

    (a) (1) Services performed after 1961 by a nonresident alien 
individual who is temporarily present in the United States as a 
nonimmigrant under subparagraph (F) or (J) of section 101(a)(15) of the 
Immigration and Nationality Act (8 U.S.C. 1101), as amended, are 
excepted from employment if the services are performed to carry out a 
purpose for which the individual was admitted. For purposes of this 
section an alien individual who is temporarily present in the United 
States as a nonimmigrant under such subparagraph (F) or (J) is deemed to 
be a nonresident alien individual. The preceding sentence does not apply 
to the extent it is inconsistent with section 7701(b) and the 
regulations under that section. A nonresident alien individual who is 
temporarily present in the United States as a nonimmigrant under such 
subparagraph (J) includes an alien individual admitted to the United 
States as an ``exchange visitor'' under section 201 of the United States 
Information and Educational Exchange Act of 1948 (22 U.S.C. 1446).
    (2) If services are performed by a nonresident alien individual's 
alien spouse or minor child, who is temporarily present in the United 
States as a nonimmigrant under subparagraph (F) or (J) of section 
101(a)(15) of the Immigration and Nationality Act, as amended, the 
services are not deemed for purposes of this section to be performed to 
carry out a purpose for which such individual was admitted. The services 
of such spouse or child are excepted from employment under this section 
only if the spouse or child was admitted for a purpose specified in such 
subparagraph (F) or (J) and if the services are performed to carry out 
such purpose.
    (b) Section 101 of the Immigration and Nationality Act (8 U.S.C. 
1101), as amended, provides in part as follows:

    Sec. 101. Definitions. [Immigration and Nationality Act (68 Stat. 
166)]
    (a) As used in this chapter--* * *
    (15) The term ``immigrant'' means every alien except an alien who is 
within one of the following classes of nonimmigrant aliens--

                                * * * * *

    (F) (i) An alien having a residence in a foreign country which he 
has no intention of abandoning, who is a bona fide student qualified to 
pursue a full course of study and who seeks to enter the United States 
temporarily and solely for the purpose of pursuing such a course of 
study at an established institution of learning or other recognized 
place of study in the United States, particularly designated by him and 
approved by the Attorney General after consultation with the Office of 
Education of the United States, which institution or place of study 
shall have agreed to report to the Attorney General the termination of 
attendance of each nonimmigrant student, and if any such institution of 
learning or place of study fails to make reports promptly the approval 
shall be withdrawn, and (ii) the alien spouse and minor children of any 
such alien if accompanying him or following to join him;

                                * * * * *

    (J) An alien having a residence in a foreign country which he has no 
intention of abandoning who is a bona fide student, scholar, trainee, 
teacher, professor, research assistant, specialist, or leader in a field 
of specialized knowledge or skill, or other person of similar 
description, who is coming temporarily to the United States as a 
participant in a program designated by the Secretary of State, for the 
purpose of teaching, instructing or lecturing, studying, observing, 
conducting research, consulting, demonstrating special skills, or 
receiving training, and the alien spouse and minor children of any such

[[Page 64]]

alien if accompanying him or following to join him.

                                * * * * *

[Sec. 101, Immigration and Nationality Act, as amended by sec. 101, Act 
of June 27, 1952, 66 Stat. 166; sec. 109, Act of Sept. 21, 1961, 75 
Stat. 534]


[T.D. 6744, 29 FR 8313, July 2, 1964, as amended by T.D. 8411, 57 FR 
15241, Apr. 27, 1992]



Sec. 31.3121(b)(20)-1  Service performed on a boat engaged in catching fish.

    (a) In general. (1) Service performed on or after December 31, 1954, 
by an individual on a boat engaged in catching fish or other forms of 
aquatic animal life (hereinafter ``fish'') are excepted from employment 
if--
    (i) The individual receives a share of the boat's (or boats' for a 
fishing operation involving more than one boat) catch of fish or a share 
of the proceeds from the sale of the catch,
    (ii) The amount of the individual's share depends solely on the 
amount of the boat's (or boats' for a fishing operation involving more 
than one boat) catch of fish.
    (iii) The individual does not receive and is not entitled to 
receive, any cash remuneration, other than remuneration that is 
described in sub-division (1) of this subparagraph, and
    (iv) The crew of the boat (or of each boat from which the individual 
receives a share of the catch) normally is made up of fewer than 10 
individuals.
    (2) The requirement of paragraph (a)(1)(ii) is not satisfied if 
there exists an agreement with the boat's (or boats') owner or operator 
by which the individual's remuneration is determined partially or fully 
by a factor not dependent on the size of the catch. For example, if a 
boat is operated under a remuneration arrangement, e.g., a collective 
agreement which specifies that crew members, in addition to receiving a 
share of the catch, are entitled to an hourly wage for repairing nets, 
regardless of whether this wage is actually paid, then all the crew 
members covered by the arrangement are entitled to receive cash 
remuneration other than a share of the catch and their services are not 
excepted from employment by section 3121(b)(20).
    (3) The operating crew of a boat includes all persons on the boat 
(including the captain) who receive any form of remuneration in exchange 
for services rendered while on a boat engaged in catching fish. See 
Sec. 1.6050A-1 for reporting requirements for the operator of a boat 
engaged in catching fish with respect to individuals performing services 
described in this section.
    (4) During the same return period, service performed by a crew 
member may be excepted from employment by section 3121(b)(20) and this 
section for one voyage and not so excepted on a subsequent voyage on the 
same or on a different boat.
    (5) During the same voyage, service performed by one crew member may 
be excepted from employment by section 3121(b)(20) and this section but 
service performed by another crew member may not be so excepted.
    (b) Special rule. Services performed after December 31, 1954, and 
before October 4, 1976, on a boat by an individual engaged in catching 
fish are not excepted from employment for any voyage (for purposes of 
section 3121(b) and the corresponding regulations), even though the 
individual satisfies the requirements of paragraphs (a)(1)(i) through 
(iv) of this section, if the owner or operator of the boat engaged in 
catching fish treated the individual as an employee. For purposes of 
this subparagraph, the individual was treated as an employee if--
    (1) Form 941 was voluntarily filed by the boat operator or owner, 
regardless of whether the tax imposed by chapter 21 was withheld. For 
purposes of this subdivision, the filing of Form 941 is not voluntary if 
the filing was the result of action taken by the Service pursuant to 
section 6651(a) (relating to addition to the tax for failure to file tax 
return or to pay tax);
    (2) The boat owner or operator withheld from the individual's share 
the tax imposed by chapter 21, regardless of whether the tax was paid 
over to the Service; or
    (3) The boat owner or operator made full or partial payment of the 
tax imposed by chapter 21, unless the payment was made pursuant to 
section 7422(a) (relating to no civil actions for refund prior to filing 
claim for refund).

[[Page 65]]

However, for purposes of this paragraph crew members whose services, but 
for paragraphs (a)(1)(i) through (iii), would have been excepted from 
employment by section 3121(b)(20) are not required to pay self-
employment tax on income earned in performing those services. See 
Sec. 1.1402(c)-3(g). Moreover, in such cases the employer is not 
entitled to a refund of the employer's share of any tax imposed by 
chapter 21 that was paid.

[T.D. 7716, 45 FR 57123, Aug. 27, 1980]



Sec. 31.3121(c)-1  Included and excluded services.

    (a) If a portion of the services performed by an employee for an 
employer during a pay period constitutes employment, and the remainder 
does not constitute employment, all the services performed by the 
employee for the employer during the period shall for purposes of the 
taxes be treated alike, that is, either all as included or all as 
excluded. The time during which the employee performs services which 
under section 3121(b) constitute employment, and the time during which 
he performs services which under such section do not constitute 
employment, within the pay period, determine whether all the services 
during the pay period shall be deemed to be included or excluded.
    (b) If one-half or more of the employee's time in the employ of a 
particular person in a pay period is spent in performing services which 
constitute employment, then all the services of that employee for that 
person in that pay period shall be deemed to be employment.
    (c) If less than one-half of the employee's time in the employ of a 
particular person in a pay period is spent in performing services which 
constitute employment, then none of the services of that employee for 
that person in that pay period shall be deemed to be employment.
    (d) The application of the provisions of paragraphs (a), (b), and 
(c) of this section may be illustrated by the following example:

    Example. The AB Club, which is a local college club within the 
meaning of section 3121(b)(2), employs D, a student who is enrolled and 
is regularly attending classes at a university, to perform domestic 
service for the club and to keep the club's books. The domestic services 
performed by D for the AB Club do not constitute employment, and his 
services as the club's bookkeeper constitute employment. D receives a 
payment at the end of each month for all services which he performs for 
the club. During a particular month D spends 60 hours in performing 
domestic service for the club and 40 hours as the club's bookkeeper. 
None of D's services during the month are deemed to be employment, since 
less than one-half of his services during the month constitutes 
employment. During another month D spends 35 hours in the performance of 
domestic services and 60 hours in keeping the club's books. All of D's 
services during the month are deemed to be employment, since one-half or 
more of his services during the month constitutes employment.

    (e) For purposes of this section, a ``pay period'' is the period (of 
not more than 31 consecutive calendar days) for which a payment of 
remuneration is ordinarily made to the employee by the employer. Thus, 
if the periods for which payments of remuneration are made to the 
employee by the employer are of uniform duration, each such period 
constitutes a ``pay period''. If, however, the periods occasionally vary 
in duration, the ``pay period'' is the period for which a payment of 
remuneration is ordinarily made to the employee by the employer, even 
though that period does not coincide with the actual period for which a 
particular payment of remuneration is made. For example, if an employer 
ordinarily pays a particular employee for each calendar week at the end 
of the week, but the employee receives a payment in the middle of the 
week for the portion of the week already elapsed and receives the 
remainder at the end of the week, the ``pay period'' is still the 
calendar week; or if, instead, that employee is sent on a trip by such 
employer and receives at the end of the third week a single remuneration 
payment for three weeks' services, the ``pay period'' is still the 
calendar week.
    (f) If there is only one period (and such period does not exceed 31 
consecutive calendar days) for which a payment of remuneration is made 
to the employee by the employer, such period is deemed to be a ``pay 
period'' for purposes of this section.

[[Page 66]]

    (g) The rules set forth in this section do not apply (1) with 
respect to any services performed by the employee for the employer if 
the periods for which such employer makes payments of remuneration to 
the employee vary to the extent that there is no period ``for which a 
payment of remuneration is ordinarily made to the employee'', or (2) 
with respect to any services performed by the employee for the employer 
if the period for which a payment of remuneration is ordinarily made to 
the employee by such employer exceeds 31 consecutive calendar days, or 
(3) with respect to any service performed by the employee for the 
employer during a pay period if any of such service is excepted by 
section 3121(b)(9) (see Sec. 31.3121(b)(9)-1).
    (h) If during any period for which a person makes a payment of 
remuneration to an employee only a portion of the employee's services 
constitutes employment, but the rules prescribed in this section are not 
applicable, the taxes attach with respect to such services as constitute 
employment as defined in section 3121(b).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8313, July 2, 1964]



Sec. 31.3121(d)-1  Who are employees.

    (a) In general. (1) Whether an individual is an employee with 
respect to services performed after 1954 is determined in accordance 
with section 3121(d) and (o) and section 3506. This section of the 
regulations applies with respect only to services performed after 1954. 
Whether an individual is an employee with respect to services performed 
after 1936 and before 1940 shall be determined in accordance with the 
applicable provisions of law and of 26 CFR (1939) Part 401 (Regulations 
91). Whether an individual is an employee with respect to services 
performed after 1939 and before 1951 shall be determined in accordance 
with the applicable provisions of law and of 26 CFR (1939) Part 402 
(Regulations 106). Whether an individual is an employee with respect to 
services performed after 1950 and before 1955 shall be determined in 
accordance with the applicable provisions of law and of 26 CFR (1939) 
Part 408 (Regulations 128).
    (2) Section 3121(d) contains three separate and independent tests 
for determining who are employees. Paragraphs (b), (c), and (d) of this 
section relate to the respective tests. Paragraph (b) relates to the 
test for determining whether an officer of a corporation is an employee 
of the corporation. Paragraph (c) relates to the test for determining 
whether an individual is an employee under the usual common law rules. 
Paragraph (d) relates to the test for determining which individuals in 
certain occupational groups who are not employees under the usual common 
law rules are included as employees. If an individual is an employee 
under any one of the tests, he is to be considered an employee for 
purposes of the regulations in this subpart whether or not he is an 
employee under any of the other tests.
    (3) If the relationship of employer and employee exists, the 
designation or description of the relationship by the parties as 
anything other than that of employer and employee is immaterial. Thus, 
if such relationship exists, it is of no consequence that the employee 
is designated as a partner, coadventurer, agent, independent contractor, 
or the like.
    (4) All classes or grades of employees are included within the 
relationship of employer and employee. Thus, superintendents, managers, 
and other supervisory personnel are employees.
    (5) Although an individual may be an employee under this section, 
his services may be of such a nature, or performed under such 
circumstances, as not to constitute employment (see Sec. 31.3121(b)-3).
    (b) Corporate officers. Generally, an officer of a corporation is an 
employee of the corporation. However, an officer of a corporation who as 
such does not perform any services or performs only minor services and 
who neither receives nor is entitled to receive, directly or indirectly, 
any remuneration is considered not to be an employee of the corporation. 
A director of a corporation in his capacity as such is not an employee 
of the corporation.
    (c) Common law employees. (1) Every individual is an employee if 
under the usual common law rules the relationship between him and the 
person for

[[Page 67]]

whom he performs services is the legal relationship of employer and 
employee.
    (2) Generally such relationship exists when the person for whom 
services are performed has the right to control and direct the 
individual who performs the services, not only as to the result to be 
accomplished by the work but also as to the details and means by which 
that result is accomplished. That is, an employee is subject to the will 
and control of the employer not only as to what shall be done but how it 
shall be done. In this connection, it is not necessary that the employer 
actually direct or control the manner in which the services are 
performed; it is sufficient if he has the right to do so. The right to 
discharge is also an important factor indicating that the person 
possessing that right is an employer. Other factors characteristic of an 
employer, but not necessarily present in every case, are the furnishing 
of tools and the furnishing of a place to work, to the individual who 
performs the services. In general, if an individual is subject to the 
control or direction of another merely as to the result to be 
accomplished by the work and not as to the means and methods for 
accomplishing the result, he is an independent contractor. An individual 
performing services as an independent contractor is not as to such 
services an employee under the usual common law rules. Individuals such 
as physicians, lawyers, dentists, veterinarians, construction 
contractors, public stenographers, and auctioneers, engaged in the 
pursuit of an independent trade, business, or profession, in which they 
offer their services to the public, are independent contractors and not 
employees.
    (3) Whether the relationship of employer and employee exists under 
the usual common law rules will in doubtful cases be determined upon an 
examination of the particular facts of each case.
    (d) Special classes of employees. (1) In addition to individuals who 
are employees under paragraph (b) or (c) of this section, other 
individuals are employees if they perform services for remuneration 
under certain prescribed circumstances in the following occupational 
groups:
    (i) 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;
    (ii) As a full-time life insurance salesman;
    (iii) 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
    (iv) 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.
    (2) In order for an individual to be an employee under this 
paragraph, the individual must perform services in an occupation falling 
within one of the enumerated groups. If the individual does not perform 
services in one of the designated occupational groups, he is not an 
employee under this paragraph. An individual who is not an employee 
under this paragraph may nevertheless be an employee under paragraph (b) 
or (c) of this section. The language used to designate the respective 
occupational groups relates to fields of endeavor in which particular 
designations are not necessarily in universal use with respect to the 
same service. The designations are addressed to the actual services 
without regard to any technical or colloquial labels which may be 
attached to such services. Thus, a determination whether services fall 
within one of the designated occupational groups depends upon the facts 
of the particular situation.
    (3) The factual situations set forth below are illustrative of some 
of the individuals falling within each of the above enumerated 
occupational groups. The illustrative factual situations are as follows:

[[Page 68]]

    (i) Agent-driver or commission-driver. This occupational group 
includes agent-drivers or commission-drivers who are engaged in 
distributing meat or meat products, vegetables or vegetable products, 
fruit or fruit products, bakery products, beverages (other than milk), 
or laundry or dry-cleaning services for their principals. An agent-
driver or commission-driver includes an individual who operates his own 
truck or the truck of the person for whom he performs services, serves 
customers designated by such person as well as those solicited on his 
own, and whose compensation is a commission on his sales or the 
difference between the price he charges his customers and the price he 
pays to such person for the product or service.
    (ii) Full-time life insurance salesman. An individual whose entire 
or principal business activity is devoted to the solicitation of life 
insurance or annuity contracts, or both, primarily for one life 
insurance company is a full-time life insurance salesman. Such a 
salesman ordinarily uses the office space provided by the company or its 
general agent, and stenographic assistance, telephone facilities, forms, 
rate books, and advertising materials are usually made available to him 
without cost. An individual who is engaged in the general insurance 
business under a contract or contracts of service which do not 
contemplate that the individual's principal business activity will be 
the solicitation of life insurance or annuity contracts, or both, for 
one company, or any individual who devotes only part time to the 
solicitation of life insurance contracts, including annuity contracts, 
and is principally engaged in other endeavors, is not a full-time life 
insurance salesman.
    (iii) Home workers. This occupational group includes a worker who 
performs services off the premises of the person for whom the services 
are performed, according to specifications furnished by such person, on 
materials or goods furnished by such person which are required to be 
returned to such person or a person designated by him. For provisions 
relating to the determination of wages in the case of a home worker to 
whom this subdivision is applicable, see Sec. 31.3121(a)(10)-1.
    (iv) Traveling or city salesman. (a) This occupational group 
includes a city or traveling salesman who is 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 or persons) 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. 
An agent-driver or commission-driver is not within this occupational 
group. City or traveling salesmen who sell to retailers or to the others 
specified, operate off the premises of their principals, and are 
generally compensated on a commission basis, are within this 
occupational group. Such salesmen are generally not controlled as to the 
details of their services or the means by which they cover their 
territories, but in the ordinary case they are expected to call on 
regular customers with a fair degree of regularity.
    (b) In order for a city or traveling salesman to be included within 
this occupational group, his entire or principal business activity must 
be devoted to the solicitation of orders for one principal. Thus, the 
multiple-line salesman generally is not within this occupational group. 
However, if the salesman solicits orders primarily for one principal, he 
is not excluded from this occupational group solely because of side-line 
sales activities on behalf of one or more other persons. In such a case, 
the salesman is within this occupational group only with respect to the 
services performed for the person for whom he primarily solicits orders 
and not with respect to the services performed for such other persons. 
The following examples illustrate the application of the foregoing 
provisions:

    Example 1. Salesman A's principal business activity is the 
solicitation of orders from retail pharmacies on behalf of the X 
Wholesale Drug Company. A also occasionally solicits orders for drugs on 
behalf of the Y and Z Companies. A is within this occupational group 
with respect to his services for the X Company but not with respect to 
his services for either the Y Company or the Z Company.
    Example 2. Salesman B's principal business activity is the 
solicitation of orders from retail hardware stores on behalf of the R 
Tool

[[Page 69]]

Company and the S Cooking Utensil Company. B regularly solicits orders 
on behalf of both companies. B is not within this occupational group 
with respect to the services performed for either the R Company or the S 
Company.
    Example 3. Salesman C's principal business activity is the house-to-
house solicitation of orders on behalf of the T Brush Company. C 
occasionally solicits such orders from retail stores and restaurants. C 
is not within this occupational group.

    (4)(i) The fact that an individual falls within one of the 
enumerated occupational groups, however, does not make such individual 
an employee under this paragraph unless (a) the contract of service 
contemplates that substantially all the services to which the contract 
relates in the particular designated occupation are to be performed 
personally by such individual, (b) such individual has no substantial 
investment in the facilities used in connection with the performance of 
such services (other than in facilities for transportation) and (c) such 
services are part of a continuing relationship with the person for whom 
the services are performed and are not in the nature of a single 
transaction.
    (ii) The term ``contract of service'', as used in this paragraph, 
means an arrangement, formal or informal, under which the particular 
services are performed. The requirement that the contract of service 
shall contemplate that substantially all the services to which the 
contract relates in the particular designated occupation are to be 
performed personally by the individual means that it is not contemplated 
that any material part of the services to which the contract relates in 
such occupation will be delegated to any other person by the individual 
who undertakes under the contract to perform such services.
    (iii) The facilities to which reference is made in this paragraph 
include equipment and premises available for the work or enterprise as 
distinguished from education, training, and experience, but do not 
include such tools, instruments, equipment, or clothing, as are commonly 
or frequently provided by employees. An investment in an automobile by 
an individual which is used primarily for his own transportation in 
connection with the performance of services for another person has no 
significance under this paragraph, since such investment is comparable 
to outlays for transportation by an individual performing similar 
services who does not own an automobile. Moreover, the investment in 
facilities for the transportation of the goods or commodities to which 
the services relate is to be excluded in determining the investment in a 
particular case. If an individual has a substantial investment in 
facilities of the requisite character, he is not an employee within the 
meaning of this paragraph, since a substantial investment of the 
requisite character standing alone is sufficient to exclude the 
individual from the employee concept under this paragraph.
    (iv) If the services are not performed as part of a continuing 
relationship with the person for whom the services are performed, but 
are in the nature of a single transaction, the individual performing 
such services is not an employee of such person within the meaning of 
this paragraph. The fact that the services are not performed on 
consecutive workdays does not indicate that the services are not 
performed as part of a continuing relationship.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8314, July 2, 1964; T.D. 7691, 45 24129, Apr. 9, 1980]



Sec. 31.3121(d)-2  Who are employers.

    (a) Every person is an employer if he employs one or more employees. 
Neither the number of employees employed nor the period during which any 
such employee is employed is material for the purpose of determining 
whether the person for whom the services are performed is an employer.
    (b) An employer may be an individual, a corporation, a partnership, 
a trust, an estate, a joint-stock company, an association, or a 
syndicate, group, pool, joint venture, or other unincorporated 
organization, group, or entity. A trust or estate, rather than the 
fiduciary acting for on behalf of the trust or estate, is generally the 
employer.
    (c) Although a person may be an employer under this section, 
services performed in his employ may be of such a

[[Page 70]]

nature, or performed under such circumstances, as not to constitute 
employment (see Sec. 31.3121(b)-3).



Sec. 31.3121(e)-1  State, United States, and citizen.

    (a) When used in the regulations in this subpart, the term ``State'' 
includes the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, the Territories of Alaska and Hawaii before their 
admission as States, and (when used with respect to services performed 
after 1960) Guam and American Samoa.
    (b) When used in the regulations in this subpart, the term ``United 
States'', when used in a geographical sense, means the several states 
(including the Territories of Alaska and Hawaii before their admission 
as States), the District of Columbia, the Commonwealth of Puerto Rico, 
and the Virgin Islands. When used in the regulations in this subpart 
with respect to services performed after 1960, the term ``United 
States'' also includes Guam and American Samoa when the term is used in 
a geographical sense. The term ``citizen of the United States'' includes 
a citizen of the Commonwealth of Puerto Rico or the Virgin Islands, and, 
effective January 1, 1961, a citizen of Guam or American Samoa.

[T.D. 6744, 29 FR 8314, July 2, 1964]



Sec. 31.3121(f)-1  American vessel and aircraft.

    (a) The term ``American vessel'' means any vessel which is 
documented (that is, registered, enrolled, or licensed) or numbered in 
conformity with the laws of the United States. It also includes any 
vessel which is neither documented nor numbered under the laws of the 
United States, nor documented under the laws of any foreign country, if 
the crew of such vessel 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. (For provisions relating to the 
terms ``State'' and ``citizen'', see Sec. 31.3121 (e)-1.)
    (b) The term ``American aircraft'' means any aircraft registered 
under the laws of the United States.
    (c) For provisions relating to services performed outside the United 
States on or in connection with an American vessel or American aircraft, 
see paragraph (c)(2) of Sec. 31.3121(b)-3.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8314, July 2, 1964]



Sec. 31.3121(g)-1  Agricultural labor.

    (a) In general. (1) The term ``agricultural labor'' as defined in 
section 3121(g) includes services of the character described in 
paragraph (b), (c), (d), (e), and (f) of this section. In general, 
however, the term does not include services performed in connection with 
forestry, lumbering, or landscaping.
    (2) The term ``farm'' as used in the regulations in this subpart 
includes stock, dairy, poultry, fruit, fur-bearing animal, and truck 
farms, plantations, ranches, nurseries, ranges, orchards, and such 
greenhouses and other similar structures as are used primarily for the 
raising of agricultural or horticultural commodities. Greenhouses and 
other similar structures used primarily for other purposes (for example, 
display, storage, and fabrication of wreaths, corsages, and bouquets) do 
not constitute ``farms''.
    (3) For provisions relating to the exception from employment 
provided with respect to services performed by certain foreign 
agricultural workers and to services performed before 1959 in connection 
with the production or harvesting of certain oleoresinous products, see 
Sec. 31.3121(b)(1)-1. For provisions relating to the exclusion from 
wages of remuneration paid in any medium other than cash for 
agricultural labor and to the test for determining whether cash 
remuneration paid for agricultural labor constitutes wages, see 
Sec. 31.3121(a)(8)-1.
    (b) Services described in section 3121(g)(1). (1) Services performed 
on a farm by an employee of any person in connection with any of the 
following activities constitute agricultural labor:
    (i) The cultivation of the soil;
    (ii) The raising, shearing, feeding, caring for, training, or 
management of livestock, bees, poultry, fur-bearing animals, or 
wildlife; or

[[Page 71]]

    (iii) The raising or harvesting of any other agricultural or 
horticultural commodity.
    (2) Services performed in connection with the production or 
harvesting of maple sap, or in connection with the raising or harvesting 
of mushrooms, or in connection with the hatching of poultry constitute 
agricultural labor only if such services are performed on a farm. Thus, 
services performed in connection with the operation of a hatchery, if 
not operated as part of a poultry or other farm, do not constitute 
agricultural labor.
    (c) Services described in section 3121(g)(2). (1) The following 
services performed by an employee in the employ of the owner or tenant 
or other operator of one or more farms constitute agricultural labor, 
provided the major part of such services is performed on a farm:
    (i) Services performed in connection with the operation, management, 
conservation, improvement, or maintenance of any of such farms or its 
tools or equipment; or
    (ii) Services performed in salvaging timber, or clearing land of 
brush and other debris, left by a hurricane.
    (2) The services described in paragraph (c)(1)(i) of this section 
may include, for example, services performed by carpenters, painters, 
mechanics, farm supervisors, irrigation engineers, bookkeepers, and 
other skilled or semiskilled workers, which contribute in any way to the 
conduct of the farm or farms, as such, operated by the person employing 
them, as distinguished from any other enterprise in which such person 
may be engaged.
    (3) Since the services described in this paragraph must be performed 
in the employ of the owner or tenant or other operator of the farm, the 
term ``agricultural labor'' does not include services performed by 
employees of a commercial painting concern, for example, which contracts 
with a farmer to renovate his farm properties.
    (d) Services described in section 3121(g)(3). Services performed by 
an employee in the employ of any person in connection with any of the 
following operations constitute agricultural labor without regard to the 
place where such services are performed:
    (1) The ginning of cotton;
    (2) The operation or maintenance of ditches, canals, reservoirs, or 
waterways, not owned or operated for profit, used exclusively for 
supplying or storing water for farming purposes; or
    (3) The production or harvesting of crude gum (oleoresin) from a 
living tree or the processing of such crude gum into gum spirits of 
turpentine and gum rosin, provided such processing is carried on by the 
original producer of such crude gum.
    (e) Services described in section 3121(g)(4). (1) Services performed 
by an employee in the handling, planting, drying, packing, packaging, 
processing, freezing, grading, storing, or delivering to storage or to 
market or to a carrier for transportation to market, of any agricultural 
or horticultural commodity constitute agricultural labor if:
    (i) Such services are performed by the employee in the employ of an 
operator of a farm or in the employ of a group of operators of farms 
(other than a cooperative organization);
    (ii) Such services are performed with respect to the commodity in 
its unmanufactured state; and
    (iii) Such operator produced more than one-half of the commodity 
with respect to which such services are performed during the pay period, 
or such group of operators produced all of the commodity with respect to 
which such services are performed during the pay period.
    (2) The term ``operator of a farm'' as used in this paragraph means 
an owner, tenant, or other person, in possession of a farm and engaged 
in the operation of such farm.
    (3) The services described in this paragraph do not constitute 
agricultural labor if performed in the employ of a cooperative 
organization. The term ``organization'' includes corporations, joint-
stock companies, and associations which are treated as corporations 
pursuant to section 7701(a)(3) of the Internal Revenue Code. For 
purposes of this paragraph, 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 
quarter in which the services involved are performed.

[[Page 72]]

    (4) Processing services which change the commodity from its raw or 
natural state do not constitute agricultural labor. For example the 
extraction of juices from fruits or vegetables is a processing operation 
which changes the character of the fruits or vegetables from their raw 
or natural state and, therefore, does not constitute agricultural labor. 
Likewise, services performed in the processing of maple sap into maple 
sirup or maple sugar do not constitute agricultural labor. On the other 
hand, services rendered in the cutting and drying of fruits or 
vegetables are processing operations which do not change the character 
of the fruits or vegetables and, therefore, constitute agricultural 
labor, if the other requisite conditions are met. Services performed 
with respect to a commodity after its character has been changed from 
its raw or natural state by a processing operation do not constitute 
agricultural labor.
    (5) The term ``commodity'' refers to a single agricultural or 
horticultural product, for example, all apples are to be treated as a 
single commodity, while apples and peaches are to be treated as two 
separate commodities. The services with respect to each such commodity 
are to be considered separately in determining whether the condition set 
forth in paragraph (e)(1)(iii) of this section has been satisfied. The 
portion of the commodity produced by an operator or group of operators 
with respect to which the services described in this paragraph are 
performed by a particular employee shall be determined on the basis of 
the pay period in which such services were performed by such employee.
    (6) The services described in this paragraph do not include services 
performed in connection with commercial canning or commercial freezing 
or in connection with any commodity after its delivery to a terminal 
market for distribution for consumption. Moreover, since the services 
described in this paragraph must be rendered in the actual handling, 
planting, drying, packing, packaging, processing, freezing, grading, 
storing, or delivering to storage or to market or to a carrier for 
transportation to market, of the commodity, such services do not, for 
example, include services performed as stenographers, bookkeepers, 
clerks, and other office employees, even though such services may be in 
connection with such activities. However, to the extent that the 
services of such individuals are performed in the employ of the owner or 
tenant or other operator of a farm and are rendered in major part on a 
farm, they may be within the provisions of paragraph (c) of this 
section.
    (f) Services described in section 3121(g)(5). (1) Service not in the 
course of the employer's trade or business (see paragraph (a)(1) of 
Sec. 31.3121(a)(7)-1) or domestic service in a private home of the 
employer (see paragraph (a)(2) of Sec. 31.3121(a)(7)-1) constitutes 
agricultural labor if such service is performed on a farm operated for 
profit. The determination whether remuneration for any such service 
performed on a farm operated for profit constitutes wages is to be made 
under Sec. 31.3121(a)(8)-1 rather than under Sec. 31.3121(a)(7)-1. For 
provisions relating to the exception from employment provided with 
respect to any such service performed after 1960 by a father or mother 
in the employ of his or her son or daughter, see Sec. 31.3121(b)(3)-1.
    (2) Generally, a farm is not operated for profit if it is occupied 
by the employer primarily for residential purposes, or is used primarily 
for the pleasure of the employer or his family such as for the 
entertainment of guests or as a hobby of the employer or his family.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8315, July 2, 1964]



Sec. 31.3121(h)-1  American employer.

    (a) 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. For provisions relating to the terms ``State'' and ``United 
States'', see Sec. 31.3121(e)-1.

[[Page 73]]

    (b) For provisions relating to services performed outside the United 
States by a citizen of the United States as an employee for an American 
employer, see paragraph (c)(3) of Sec. 31.3121(b)-3 and paragraph (e) of 
Sec. 31.3121(b)(4)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 
8315, July 2, 1964]



Sec. 31.3121(i)-1  Computation to nearest dollar of cash remuneration for domestic service.

    An employer may, for purposes of the act, elect to compute to the 
nearest dollar any payment of cash remuneration for domestic service 
described in section 3121(a)(7)(B) (see Sec. 31.3121(a)(7)-1) which is 
more or less than a whole-dollar amount. 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 one dollar. For example, 
any amount actually paid between $4.50 and $5.49, inclusive, may be 
treated as $5 for purposes of the taxes imposed by the act. If an 
employer elects this method of computation with respect to any payment 
of cash remuneration made in a calendar quarter for domestic service in 
his private home, he must use the same method in computing each payment 
of cash remuneration of more or less than a whole-dollar amount made to 
each of his employees in such calendar quarter for domestic service in 
his private home. Moreover, if an employer elects this method of 
computation with respect to payments of the prescribed character made in 
any calendar quarter, the amount of each 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 the act. Thus, the amount of cash payments so computed to 
the nearest dollar shall be used for purposes of determining whether 
such payments constitute wages; for purposes of applying the employee 
and employer tax rates to the wage payments; for purposes of any 
required record keeping; and for purposes of reporting and paying the 
employee tax and employer tax with respect to such wage payments.



Sec. 31.3121(i)-2  Computation of remuneration for service performed by an individual as a member of a uniformed service.

    In the case of an individual performing service after December 31, 
1956, as a member of a uniformed service (see section 31.3121(n)), to 
which the provisions of section 3121(m)(1) (see Sec. 31.3121(m)) are 
applicable, the term ``wages'' shall, subject to the provisions of 
section 3121(a)(1) (see Sec. 31.3121(a)-1), include as the individual's 
remuneration for such service only his basic pay as described in section 
102(10) of the Servicemen's and Veterans' Survivor Benefits Act (38 
U.S.C. 401(1), 403; 72 Stat. 1126).

[T.D. 6744, 29 FR 8315, July 2, 1964]



Sec. 31.3121(i)-3  Computation of remuneration for service performed by an individual as a volunteer or volunteer leader within the meaning of the Peace Corps 
          Act.

    In the case of an individual performing service in his capacity as a 
volunteer or volunteer leader within the meaning of the Peace Corps Act 
(see section 31.3121(p)), the term ``wages'' shall, subject to the 
provisions of section 3121(a)(1) (see Sec. 31.3121(a)-1), include as 
such individual's remuneration for such service only amounts paid 
pursuant to section 5(c) or section 6(1) of the Peace Corps Act (22 
U.S.C. 2501; 75 Stat. 612).

[T.D. 6744, 29 FR 8315, July 2, 1964]



Sec. 31.3121(i)-4  Computation of remuneration for service performed by certain members of religious orders.

    In any case where an individual is a member of a religious order (as 
defined in section 3121(r)(2) and paragraph (b) of Sec. 31.3121(r)-1) 
performing service in the exercise of duties required by such order, and 
an election of coverage under section 3121(r) and Sec. 31.3121(r)-1 is 
in effect with respect to such order or the autonomous subdivision 
thereof to which such member belongs, the term ``wages'' shall, subject 
to the provisions of section 3121(a)(1) (relating to

[[Page 74]]

definition of wages), 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 or by 
any other person or organization pursuant to an agreement (whether 
written or oral) with such order or subdivision. Such other perquisites 
shall include any cash either paid by such order or subdivision or paid 
by another employer and not required by such order or subdivision to be 
remitted to it. For purposes of this section, perquisites shall be 
considered to be furnished over the period during which the member 
receives the benefit of them. (See example 4 of this section.) In no 
case shall the amount included as such individual's remuneration under 
this paragraph be less than $100 a month. All relevant facts and 
elements of value shall be considered in every case. Where the fair 
market value of any board, lodging, clothing, and other perquisites 
furnished to all members of an electing religious order or autonomous 
subdivision (or to all in a group of members) does not vary 
significantly, such order or subdivision may treat all of its members 
(or all in such group of members) as having a uniform wage. The 
provisions of this section may be illustrated by the following examples 
of the treatment of particular perquisites:

    Example 1. M is a religious order which requires its members to take 
a vow of poverty and which has made an election under section 3121(r). 
Under section 3121(i)(4), M must include in the wages of its members the 
fair market value of the clothing it provides for its members. M and 
several other religious orders using essentially the same type of 
religious habit purchase clothing for their members from either of two 
suppliers in arms-length transactions. The fair market value of such 
clothing (i.e., the price at which such items would change hands between 
a willing buyer and a willing seller, neither being under any compulsion 
to buy or to sell) is determined by reference to the actual sales price 
of these suppliers to the religious orders.
    Example 2. N is a religious order which requires its members to take 
a vow of poverty and which has made an election under section 3121(r). N 
operates a seminary adjacent to a university. Students at the university 
obtain lodging and board on campus from the university for its fair 
market value of $2,000 for the school year. Such lodging and board is 
essentially the same as that provided by N at its seminary to N's 
members subject to a vow of poverty. Accordingly, the amount to be 
included in the ``wages'' of such members with respect to lodging and 
board for the same period of time is $2,000.
    Example 3. O is a religious order which requires its members to take 
a vow of poverty and to observe silence, and which has made an election 
under section 3121(r). O operates a monastery in a remote rural area. 
Under section 3121(i)(4), O must include in the wages of its members 
assigned to this monastery the fair market value of the board and 
lodging furnished to them. In making a determination of the fair market 
value of such board and lodging, the remoteness of the monastery, as 
well as the smallness of the rooms and the simplicity of their 
furnishings, affect this determination. However, the facts that the 
facility is used by a religious order as a monastery and that the 
order's members maintain silence do not affect the fair market value of 
such items.
    Example 4. P is a religious order which requires its members to take 
a vow of poverty and which has made an election under section 3121(r). 
Several of P's members are attending a university on a full-time basis. 
The fair market value of the board and lodging of each of such members 
at the university is $1,000 per semester. P pays the university $1,000 
at the beginning of each semester for the board and lodging of each of 
such members. In addition, P gives each such member a $400 cash advance 
to cover his miscellaneous expenses during the semester. Under section 
3121(i)(4), P must prorate the fair market value of such members' board 
and lodging, as well as the miscellaneous items, over the semester and 
include such value in the determination of ``wages''.
    Example 5. Q is a religious order which is a corporation organized 
under the laws of Wisconsin, which requires its members to take a vow of 
poverty, and which has made an election under section 3121(r). Q has 
convents in rural South America and in suburbs and central city areas of 
the United States. Characteristically, in the United States its suburban 
convents provide somewhat larger and newer rooms for its members than do 
its convents in city areas. Moreover, its suburban convents have more 
extensive grounds and somewhat more elaborate facilities than do its 
older convents in city areas. However, both types of convents limit 
resident members to a single, plainly furnished room and provide them 
meals which are comparable. Q's members in South America live in 
extremely primitive dwellings and otherwise have extremely modest 
perquisites. Under section 3121(i)(4), Q may report a uniform wage for 
its members who live in suburban convents and city convents in the 
United

[[Page 75]]

States, as the board, lodging, and perquisites furnished these members 
do not vary significantly from one convent to the other. Q may report 
another uniform wage (but not less than $100 per month apiece) for its 
members who are citizens of the United States and who reside in South 
America based on the fair market value of the perquisites furnished 
these individuals, as the fair market value of the perquisites furnished 
these individuals varies significantly from that of those furnished its 
members who live in its domestic convents but does not vary 
significantly among members in South America whose wages are subject to 
tax.

[T.D. 7280, 38 FR 18369, July 10, 1973]



Sec. 31.3121(j)-1  Covered transportation service.

    (a) Transportation systems acquired in whole or in part after 1936 
and before 1951--(1) In general. Except as provided in subparagraph (2) 
of this paragraph, all service performed in the employ of a State or 
political subdivision thereof in connection with its operation of a 
public transportation system constitutes covered transportation service 
if any part of the transportation system was acquired from private 
ownership after 1936 and before 1951. For purposes of this subparagraph, 
it is immaterial whether any part of the transportation system was 
acquired before 1937 or after 1950, whether the employee was hired 
before, during, or after 1950, or whether the employee had been employed 
by the employer from whom the State or political subdivision acquired 
its transportation system or any part thereof.
    (2) General retirement system protected by State constitution. 
Except as provided in paragraph (a)(3) of this section, service 
performed in the employ of a State or political subdivision in 
connection with its operation of a public transportation system acquired 
in whole or in part from private ownership after 1936 and before 1951 
does not constitute covered transportation service, if 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 are protected from diminution or impairment 
under the State constitution by reason of an express provision, dealing 
specifically with retirement systems established by the State or 
political subdivisions of the State, which forbids such diminution or 
impairment.
    (3) Additions to certain transportation systems by acquisition after 
1950. This subparagraph is applicable only in case of an acquisition 
after 1950 from private ownership of an addition to an existing public 
transportation system which was acquired in whole or in part by a State 
or political subdivision thereof from private ownership after 1936 and 
before 1951 and then only in case service for such existing 
transportation system did not constitute covered transportation service 
by reason of the provisions of subparagraph (2) of this paragraph. 
Service in connection with the operation of such transportation system 
(including any additions acquired after 1950) constitutes covered 
transportation service commencing with the first day of the third 
calendar quarter following the calendar quarter in which the addition to 
the existing transportation system was acquired, if such service is 
performed by an employee who became an employee of the State or 
political subdivision in connection with and at the time of its 
acquisition from private ownership of such addition and who before the 
acquisition of such addition rendered service in employment in 
connection with the operation of the addition so acquired by such State 
or political subdivision. However, service performed by such employee in 
connection with the operation of the transportation system does not 
constitute covered transportation service if, on the first day of the 
third calendar quarter following the calendar quarter in which the 
addition was acquired, such service is covered by a general retirement 
system which does not, with respect to such employee, contain special 
provisions applicable only to employees who became employees of the 
State or political subdivision in connection with and at the time of its 
acquisition of such addition.
    (b) Transportation systems in operation on December 31, 1950, no 
part of which was acquired after 1936 and before 1951--(1) In general. 
Except as provided in paragraph (b)(2) of this section, no service 
performed in the employ of a State or a political subdivision thereof in 
connection with its operation of a

[[Page 76]]

public transportation system constitutes covered transportation service 
if no part of such transportation system operated by the State or 
political subdivision on December 31, 1950, was acquired from private 
ownership after 1936 and before 1951.
    (2) Additions acquired after 1950. This subparagraph is applicable 
only in case of an acquisition after 1950 from private ownership of an 
addition to an existing public transportation system which was operated 
by a State or political subdivision on December 31, 1950, but no part of 
which was acquired from private ownership after 1936 and before 1951. 
Service in connection with the operation of such transportation system 
(including any additions acquired after 1950) constitutes covered 
transportation service commencing with the first day of the third 
calendar quarter following the calendar quarter in which the addition to 
the existing transportation system was acquired, if such service is 
performed by an employee who became an employee of the State or 
political subdivision in connection with and at the time of its 
acquisition from private ownership of such addition and who before the 
acquisition of such addition rendered service in employment in 
connection with the operation of the addition so acquired by such State 
or political subdivision. However, service performed by such employee in 
connection with the operation of the transportation system does not 
constitute covered transportation service if, on the first day of the 
third calendar quarter following the calendar quarter in which the 
addition was acquired, such service is covered by a general retirement 
system which does not, with respect to such employee, contain special 
provisions applicable only to employees who became employees of the 
State or political subdivision in connection with and at the time of its 
acquisition of such addition.
    (c) 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 
constitutes covered transportation service if the transportation system 
was not operated by the State or political subdivision before 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.
    (d) Definitions. For purposes of this section:
    (1) 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 does not include such a fund or 
system which covers only service performed in positions connected with 
the operation of its public transportation system.
    (2) A transportation system or a part thereof is considered to have 
been acquired by a State or political subdivision from private ownership 
if prior to the acquisition service performed by the employees in 
connection with the operation of the system or an acquired part thereof 
constituted employment under the act or under subchapter A of chapter 9 
of the Internal Revenue Code of 1939 or was covered by an agreement 
entered into pursuant to section 218 of the Social Security Act (42 
U.S.C. 418), and some of such employees became employees of the State or 
political subdivision in connection with and at the time of such 
acquisition.
    (3) The term ``political subdivision'' includes an instrumentality 
of a State, of one or more political subdivisions of a State, or of a 
State and one or more of its political subdivisions.
    (4) The term ``employment'' includes service covered by an agreement 
entered into pursuant to section 218 of the Social Security Act.



Sec. 31.3121(k)-1  Waiver of exemption from taxes.

    (a) Who may file a waiver certificate--(1) In general. If services 
performed in the employ of an organization are excepted from employment 
under section 3121(b)(8)(B), the organization may file a waiver 
certificate on Form SS-15, together with a list on Form SS-15a, 
certifying that it desires to have the Federal old-age, survivors, and 
disability

[[Page 77]]

insurance system established by title II of the Social Security Act 
extended to services performed by its employees. (For provisions 
relating to the exception under section 3121(b)(8)(B), see that section 
and Sec. 31.3121(b)(8)-2.) A certificate in effect under section 1426(1) 
of the Internal Revenue Code of 1939 on December 31, 1954, remains in 
effect under, and is subject to the provisions of, section 3121(k). If 
the period covered by a certificate filed under section 3121(k), or 
under section 1426(l) of the Internal Revenue Code of 1939, is 
terminated by an organization, a certificate may not thereafter be filed 
by the organization under section 3121(k). For regulations relating to 
certificates filed under section 1426(l) of the Internal Revenue Code of 
1939, see 26 CFR (1939) 408.216 (Regulations 128).
    (2) Organizations having two separate groups of employees. If an 
organization is eligible to file a certificate under section 3121(k), 
and the organization employs both individuals who are in positions 
covered by a pension, annuity, retirement, or similar fund or system 
established by a State or by a political subdivision thereof and 
individuals who are not in such positions, the organization shall divide 
its employees into two separate groups for purposes of any certificate 
filed after August 28, 1958. One group shall consist of all employees 
who are in positions covered by such a fund or system and (i) are 
members of such fund or system, or (ii) are not members of such fund or 
system but are eligible to become members thereof. The other group shall 
consist of all remaining employees. An organization which has so divided 
its employees into two groups may file a certificate after August 28, 
1958, with respect to the employees in either group, or may file a 
separate certificate after such date with respect to employees in each 
group.
    (3) Certificates filed before September 14, 1960. A certificate 
filed before September 14, 1960, is void unless at least two-thirds of 
the employees, determined on the basis of the facts which existed as of 
the date the certificate was filed, concurred in the filing of the 
certificate, and the organization certified to such concurrence in the 
certificate. All individuals who were employees of the organization 
within the meaning of section 3121(d) (see Sec. 31.3121(d)-1) shall be 
included in determining whether two-thirds of the employees of the 
organization concurred in the filing of the certificate; except that 
there shall not be included (i) those employees who at the time of the 
filing of the certificate were performing for the organization services 
only of the character specified in paragraphs (8)(A), (10)(B), and (13) 
of section 3121(b) (see Secs. 31.3121(b)(8)-1, 31.3121(b)(10)-2, and 
31.3121(b)(13)-1, respectively), (ii) those alien employees who at the 
time of the filing of the certificate were performing services for such 
organization under an arrangement which provided for the performance 
only of services outside the United States not on or in connection with 
an American vessel or American aircraft, and (iii) in connection with 
certificates filed after August 28, 1958, those employees who at the 
time of the filing of the certificate were in a group to which such 
certificate was not applicable because of the provisions of section 
3121(k)(1)(E). (See paragraph (a)(2) of this section.) As used in this 
subparagraph, the term ``alien employee'' does not include an employee 
who was a citizen of the Commonwealth of Puerto Rico or a citizen of the 
Virgin Islands, and the term ``United States'' includes Puerto Rico and 
the Virgin Islands.
    (b) Execution and amendment of certificate--(1) Use of prescribed 
forms. An organization filing a certificate pursuant to section 3121(k) 
shall use Form SS-15, in accordance with the regulations and 
instructions applicable thereto. The certificate may be filed only if it 
is accompanied by a list on Form SS-15a, containing the signature, 
address, and social security account number, if any, of each employee, 
if any, who concurs in the filing of the certificate. (For provisions 
relating to account numbers, see Sec. 31.6011(b)-2.) If no employee 
concurs in a certificate filed after September 13, 1960, that fact 
should be stated on the Form SS-15a. (For provisions relating to the 
concurrence of employees in certificates filed before September 14, 
1960, see paragraph (a)(3) of this section.)

[[Page 78]]

    (2) Amendment of list on Form SS- 15a--(i) Certificate filed after 
August 28, 1958. The list on Form SS-15a accompanying a certificate 
filed after August 28, 1958, under section 3121(k), may be amended at 
any time before the expiration of the twenty-fourth month following the 
calendar quarter in which the certificate is filed, by filing a 
supplemental list or lists on Form SS-15a Supplement, containing the 
signature, address, and social security account number, if any, of each 
additional employee who concurs in the filing of the certificate.
    (ii) Certificate filed before August 29, 1958. The list on Form SS-
15a which accompanied a certificate filed before August 29, 1958, under 
section 3121(k) or under section 1426(l) of the Internal Revenue Code of 
1939, may be amended by filing a supplemental list or lists on Form SS-
15a Supplement at any time after August 31, 1954, and before the 
expiration of the twenty-fourth month following the first calendar 
quarter for which the certificate was in effect, or before January 1, 
1959, whichever is the later.
    (3) Where to file certificate or amendment. The certificate on Form 
SS-15 and accompanying list on Form SS-15a of an organization which is 
required to make a return on Form 941 pursuant to Sec. 31.6011(a)-1 or 
Sec. 31.6011(a)-4 shall be filed with the internal revenue officer 
designated in the instructions applicable to Form SS-15 and Form SS-15a. 
The Form SS-15 and Form SS-15a of any other organization shall be filed 
in accordance with the provisions of Sec. 31.6091-1 which are otherwise 
applicable to returns. Each Form SS-15a Supplement shall be filed with 
the internal revenue officer with whom the related Forms SS-15 and SS-
15a were filed.
    (c) Effect of waiver--(1) In general. The exception from employment 
under section 3121(b)(8)(B) does not apply to services with respect to 
which a certificate, filed pursuant to section 3121(k), or section 
1426(l) of the Internal Revenue Code of 1939, is in effect. (See 
Secs. 31.3121(b)(8) and 31.3121(b)(8)-2). If an organization has divided 
its employees into two groups, as set forth in paragraph (a)(2) of this 
section, a certificate filed with respect to either group shall have no 
effect with respect to services performed by an employee as a member of 
the other group; and the provisions of this subparagraph shall apply as 
if each group were separately employed by a different organization. A 
certificate is not terminated if the organization loses its exemption 
under section 501(a) as an organization of the character described in 
section 501(c)(3), but continues effective with respect to any 
subsequent periods during which the organization is so exempt. The 
certificate of an organization may be in effect without being applicable 
to services performed by every employee of the organization. 
Subparagraph (2) of this paragraph relates to the beginning of the 
period for which a certificate is in effect. Subparagraph (3) of this 
paragraph relates to the services with respect to which a certificate is 
in effect. Even though a certificate is in effect with respect to the 
services of an employee, such services may be excepted from employment 
under some provision of section 3121(b) other than paragraph (8)(B) 
thereof. For example, service performed in any calendar quarter in the 
employ of an organization described in section 501(c)(3) and exempt from 
income tax under section 501(a) is excepted from employment under 
section 3121(b)(10)(A) if the remuneration for such service is less than 
$50, regardless of whether the organization files a certificate.
    (2) Beginning of effective period of waiver--(i) Certificate filed 
after July 30, 1965. A certificate filed after July 30, 1965, by an 
organization pursuant to section 3121(k) shall be in effect for the 
period beginning with one of the following dates, which shall be 
designated by the organization on the certificate:
    (a) The first day of the calendar quarter in which the certificate 
is filed,
    (b) The first day of the calendar quarter immediately following the 
quarter in which the certificate is filed, or
    (c) 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 20th calendar quarter preceding the 
quarter in which such certificate is filed. Thus, a certificate filed in 
December 1965 may be made effective, pursuant to this paragraph 
(c)(2)(i)(c), for the period beginning

[[Page 79]]

with the first day of the calendar quarter beginning October 1, 1960, or 
the first day of any other calendar quarter beginning after October 1, 
1960, and before October 1, 1965.
    (ii) Certificate filed after August 28, 1958, and before July 31, 
1965. A certificate filed after August 28, 1958, and before July 31, 
1965, by an organization pursuant to section 3121(k) shall be in effect 
for the period beginning with one of the following dates, which shall be 
designated by the organization on the certificate:
    (a) The first day of the calendar quarter in which the certificate 
is filed,
    (b) The first day of the calendar quarter immediately following the 
quarter in which the certificate is filed, or
    (c) The first day of any calendar quarter preceding the calendar 
quarter in which the certificate is filed, except that, in the case of a 
certificate filed before 1960, such date may not be earlier than January 
1, 1956, and in the case of a certificate filed after 1959 (but before 
July 31, 1965), such date may not be earlier than the first day of the 
fourth calendar quarter preceding the quarter in which the certificate 
is filed. Thus, a certificate filed in December 1959 may be made 
effective for the calendar quarter beginning January 1, 1956; but a 
certificate filed in January 1960 may not be made effective for a 
calendar quarter beginning before January 1, 1959.
    (iii) Certificate filed after 1956 and before August 29, 1958. A 
certificate filed by an organization after 1956 and before August 29, 
1958 pursuant to section 3121(k), became effective for the period 
beginning with one of the following dates, as designated by the 
organization on the certificate:
    (a) The first day of the calendar quarter in which the certificate 
was filed, or
    (b) The first day of the calendar quarter immediately following the 
quarter in which the certificate was filed.
    (iv) Certificate filed before 1957. A certificate filed before 1957 
pursuant to section 3121(k) became effective for the period beginning 
with the first day following the close of the calendar quarter in which 
the certificate was filed. In no case, however, shall a certificate 
filed under the provisions of section 3121(k) be in effect with respect 
to services performed before January 1, 1955. (For regulations relating 
to waiver certificates filed under section 1426(l) of the Internal 
Revenue Code of 1939, see 26 CFR (1939) 408.216 (Regulations 128).)
    (3) Services to which certificate applies--(i) In general. If an 
organization's certificate is in effect (see paragraph (c)(2) of this 
section), the certificate becomes effective with respect to services 
performed in its employ by each individual (a) who enters the employ of 
the organization after the calendar quarter in which the certificate is 
filed, as set forth in paragraph (c)(3)(ii) of this section, or (b) 
whose signature appears on the list on Form SS-15a, as set forth in 
paragraph (c)(3)(iii) of this section, or (c) whose signature appears on 
a Form SS-15a Supplement, as set forth in paragraph (c)(3)(iv) or (v) of 
this section. The first date on which such a certificate becomes 
effective with respect to an employee's services shall be the earliest 
date applicable under this subparagraph. An organization's certificate 
is not effective with respect to the services of an employee who is in 
its employ in the calendar quarter in which the certificate is filed and 
who does not sign Form SS-15a or Form SS-15a Supplement, so long as his 
employment relationship with the organization, at the close of the 
calendar quarter in which the certificate is filed and thereafter, 
continues without interruption.
    (ii) Employee hired after quarter in which certificate is filed. If 
an individual enters the employ of an organization on or after the first 
day following the close of the calendar quarter in which the 
organization files a certificate pursuant to section 3121(k), the 
certificate shall be in effect with respect to services performed by the 
individual in the employ of the organization on and after the day he 
enters the employ of the organization. A former employee of the 
organization who is rehired on or after the first day following the 
close of the calendar quarter in which such a certificate is filed shall 
be considered to have entered the employ of the organization after such 
calendar quarter, regardless of whether such individual concurred in the 
filing of the certificate.

[[Page 80]]

    (iii) Employee who signs Form SS-15a. A certificate on Form SS-15 
filed by an organization pursuant to section 3121(k) shall be in effect 
with respect to services performed by an individual in the employ of the 
organization on and after the first day for which the certificate is in 
effect, if such individual's signature appears on the list on Form SS-
15a which accompanies such certificate.
    (iv) Employee who signs Form SS-15a Supplement to concur in 
certificate filed after August 28, 1958. If the list on Form SS-15a 
accompanying a certificate filed after August 28, 1958, by an 
organization pursuant to section 3121(k) is amended in accordance with 
paragraph (b)(2)(i) of this section by the filing of a supplemental list 
on Form SS-15a Supplement, the certificate shall be in effect with 
respect to the services of each individual whose signature appears on 
the supplemental list, performed in the employ of the organization--
    (a) On and after the first day for which the certificate is in 
effect, if the supplemental list is filed on or before the last day of 
the month following the calendar quarter in which the certificate is 
filed, or
    (b) On and after the first day of the calendar quarter in which the 
supplemental list is filed, if such list is filed after the close of the 
first month following the calendar quarter in which the certificate is 
filed.
    (v) Employee who signed Form SS-15a Supplement to concur in 
certificate filed before August 29, 1958. If the list on Form SS-15a 
which accompanied a certificate filed before August 29, 1958, by an 
organization pursuant to section 3121(k), or pursuant to section 1426(l) 
of the Internal Revenue Code of 1939, was amended in accordance with 
paragraph (b)(2)(ii) of this section by the filing of a supplemental 
list on Form SS-15a Supplement, the certificate shall be in effect with 
respect to the services of each individual whose signature appears on 
the supplemental list, performed in the employ of the organization--
    (a) On and after the first day for which the certificate is in 
effect, if the supplemental list was filed on or before the last day of 
the month following the first calendar quarter for which the certificate 
was in effect, or
    (b) On and after the first day following the close of the calendar 
quarter in which the supplemental list was filed, but not before January 
1, 1955, if such list was filed after the close of the first month 
following the first calendar quarter for which the certificate is in 
effect.
    (4) Administrative provisions applicable when certificate has 
retroactive effect. For purposes of computing interest and for purposes 
of section 6651 (relating to addition to tax for failure to file tax 
return), in any case in which a certificate filed pursuant to section 
3121(k)(1) is effective pursuant to section 3121(k)(1)(B)(iii) (as 
originally enacted and as amended by section 316(a) of the Social 
Security Amendments of 1965) for one or more calendar quarters prior to 
the quarter in which the certificate is filed, 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. The statutory period for the assessment of the tax for such 
prior calendar quarters shall not expire before the expiration of 3 
years from such due date. A waiver certificate (as described in section 
3121(k)(1) and this section) furnished to the Internal Revenue Service 
after February 12, 1976, shall not be considered filed with the Internal 
Revenue Service unless interest paid to the organization (or credited to 
its account) in connection with a claim for credit or refund of taxes, 
which claim was based upon the exemption from taxes the organization is 
waiving by such certificate, is repaid. The interest so paid must be 
repaid only to the extent such interest relates to any taxes for which 
the organization or its employees would be liable by reason of the 
waiver certificate. Furthermore, when a waiver certificate has been 
filed prior to the payment of a refund of taxes based upon the exemption 
from taxes the organization in waiving, no credit or refund in respect 
of the taxes for which the exemption has been waived shall be allowed. 
If repayment of the interest is made as required by this subparagraph, 
on or before the last

[[Page 81]]

day of the calendar month following the calendar quarter in which the 
certificate is furnished to the Internal Revenue Service, such 
certificate shall be considered to have been filed on the date it was 
originally furnished. If repayment occurs after that day, such 
certificate shall be considered to have been filed on the date of the 
repayment. References in this subparagraph to a waiver certificate refer 
also to any supplement to such a certificate.
    (d) Termination of waiver by organization. (1) The period for which 
a certificate filed pursuant to section 3121(k), or pursuant to section 
1426(l) of the Internal Revenue Code of 1939, is in effect may be 
terminated by the organization upon giving to the district director with 
whom the organization is filing returns 2 years' advance notice in 
writing of its desire to terminate the effect of the certificate at the 
end of a specified calendar quarter, but only if, at the time of the 
receipt of such notice by the district director, the certificate has 
been in effect for a period of not less than 8 years. The notice of 
termination shall be signed by the president or other principal officer 
of the organization. Such notice shall be dated and shall show (i) the 
title of the officer signing the notice, (ii) the name, address, and 
identification number of the organization, (iii) the district director 
with whom the certificate was filed, (iv) the date on which the 
certificate became effective, and (v) the date on which the certificate 
is to be terminated. No particular form is prescribed for the notice of 
termination.
    (2) In computing the effective period which must precede the date of 
receipt of the notice of termination, there shall be disregarded any 
period or periods as to which the organization was not exempt from 
income tax under section 501(a) as an organization of the character 
described in section 501(c)(3) or under section 101(6) of the Internal 
Revenue Code of 1939.
    (3) The notice of termination may be revoked by the organization by 
giving, prior to the close of the calendar quarter specified in the 
notice of termination, a written notice of such revocation. The notice 
of revocation shall be filed with the district director with whom the 
notice of termination was filed. The notice of revocation shall be 
signed by the president or other principal officer of the organization. 
Such notice shall be dated and shall show (i) the title of the officer 
signing the notice, (ii) the name, address, and identification number of 
the organization, and (iii) the date of the notice of termination to be 
revoked. No particular form is prescribed for the notice of revocation.
    (e) Termination of waiver by Commissioner. (1) The period for which 
a certificate filed pursuant to section 3121(k), or pursuant to section 
1426(l) of the Internal Revenue Code of 1939, is in effect may be 
terminated by the Commissioner, with the prior concurrence of the 
Secretary of Health, Education, and Welfare, upon a finding by the 
Commissioner that the organization has failed to comply substantially 
with the requirements applicable with respect to the taxes imposed by 
the act (or the corresponding provisions of prior law) or is no longer 
able to comply therewith. The Commissioner shall give the organization 
not less than 60 days' advance notice in writing that the period covered 
by the certificate will terminate at the end of the calendar quarter 
specified in the notice of termination.
    (2) The notice of termination may be revoked by the Commissioner, 
with the prior concurrence of the Secretary of Health, Education, and 
Welfare, by giving written notice of revocation to the organization 
before the close of the calendar quarter specified in the notice of 
termination.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6983, 33 FR 
18018, Dec. 4, 1968; T.D. 7012, 34 FR 7693, May 15, 1969; T.D. 7476, 42 
FR 17874, Apr. 4, 1977]



Sec. 31.3121(k)-2  Waivers of exemption; original effective date changed retroactively.

    (a) Certificates filed after 1955 and before August 29, 1958. (1) An 
organization which filed a certificate under section 3121(k) after 1955 
and before August 29, 1958, may file a request on Form SS-15b at any 
time before 1960 to have such certificate made effective, with respect 
to the services of individuals who concurred in the filing of such 
certificate (initially, or by signing a supplemental

[[Page 82]]

list on Form SS-15a Supplement which was filed before Aug. 29, 1958) and 
whose signatures also appeared on such request on Form SS-15b, for the 
period beginning with the first day of any calendar quarter after 1955 
which preceded the first calendar quarter for which the certificate 
originally was effective.
    (2) 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 any calendar quarter 
resulting from the filing of a request referred to in paragraph (a)(1) 
of this section shall be the last day of the calendar month following 
the calendar quarter in which the request is filed. The statutory period 
for the assessment of such tax shall not expire before the expiration of 
3 years from such due date.
    (b) Certificate filed before 1966. (1) An organization which filed a 
certificate on Form SS-15 under section 3121(k)(1)(A) before January 1, 
1966, may amend such certificate during 1965 or 1966 to make the 
certificate effective beginning with the first day of a calendar quarter 
preceding the date designated by the organization on the certificate 
(see paragraph (c)(2) of Sec. 31.3121(k)-1). The amendment of the 
certificate shall be made by filing a Certificate For Retroactive 
Coverage on Form SS-15b. A certificate on Form SS-15 may be amended to 
be effective for the period beginning with the first day of any calendar 
quarter which precedes the calendar quarter for which the certificate 
was originally effective, except that such a certificate may not be made 
effective, through an amendment, for any calendar quarter which begins 
earlier than the 20th calendar quarter preceding the calendar quarter in 
which the organization files a Certificate For Retroactive Coverage on 
Form SS-15b. Thus, if a Certificate For Retroactive Coverage is filed in 
May 1966 in respect of a certificate on Form SS-15 filed in 1965, the 
certificate on Form SS-15 may not be made effective for a calendar 
quarter preceding the quarter beginning April 1, 1961. A certificate on 
Form SS-15 which is amended by a Certificate For Retroactive Coverage on 
Form SS-15b will be effective for the period preceding the first 
calendar quarter for which the certificate originally was effective only 
with respect to the services of individuals who concurred in the filing 
of the certificate (initially, or by signing a supplemental list on Form 
SS-15a Supplement which was filed prior to the date on which the 
Certificate For Retroactive Coverage was filed) and whose signatures 
also appear on the Certificate For Retroactive Coverage on Form SS-15b. 
A Certificate For Retroactive Coverage shall be filed with the district 
director with whom the related Form SS-15 was filed.
    (2) 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 any calendar quarter 
resulting from the filing of an amendment referred to in paragraph 
(b)(1) of this section shall be the last day of the calendar month 
following the calendar quarter in which the amendment is filed. The 
statutory period for the assessment of such tax shall not expire before 
the expiration of 3 years from such due date.

[T.D. 6983, 33 FR 18018, Dec. 4, 1968]



Sec. 31.3121(k)-3  Request for coverage of individual employed by exempt organization before August 1, 1956.

    (a) Application of this section. This section is applicable to 
requests made after July 31, 1956, and before September 14, 1960, under 
section 403 of the Social Security Amendments of 1954, as amended, 
except that nothing in this section shall render invalid any act 
performed pursuant to, and in accordance with, Revenue Ruling 57-11, 
Cumulative Bulletin 1957-1, page 344, or Revenue Ruling 58-514, 
Cumulative Bulletin 1958-2, page 733. (For regulations relating to 
requests made before August 1, 1956, under section 403 of the Social 
Security Amendments of 1954, see 26 CFR (1939) 408.216(c) and (d) 
(Regulations 128).)
    (b) Organization which did not have waiver certificate in effect--
(1) Coverage requested by employee before August 27, 1958. Pursuant to 
section 403(a) of the Social Security Amendments of 1954, as amended by 
section 401 of the Social Security Amendments of 1956, any individual 
who, as an employee, performed

[[Page 83]]

services after December 31, 1950, and before August 1, 1956, for an 
organization described in section 501(c)(3) which was exempt from income 
tax under section 501(a), or which was exempt from income tax under 
section 101(6) of the Internal Revenue Code of 1939, but which failed to 
file, before August 1, 1956, a valid waiver certificate under section 
3121(k), or under section 1426(l) of the Internal Revenue Code of 1939, 
may request after July 31, 1956, and before August 27, 1958, that such 
part of the remuneration received by him for services performed in the 
employ of the organization after 1950 and before 1957 with respect to 
which employee and employer taxes were paid be deemed to constitute 
remuneration for employment, if:
    (i) Any of the services performed by the individual after December 
31, 1950, and before January 1, 1957, would have constituted employment 
if such a certificate on Form SS-15 filed by the organization had been 
in effect for the period during which the services were performed and 
the individual's signature had appeared on the accompanying list on Form 
SS-15a;
    (ii) The employee and employer taxes were paid with respect to any 
part of the remuneration received by the individual from the 
organization for such services;
    (iii) A part of such taxes was paid before August 1, 1956;
    (iv) Such taxes as were paid before August 1, 1956, were paid by the 
organization in good faith and upon the assumption that it had filed a 
valid certificate under section 3121(k), or under section 1426(l) of the 
Internal Revenue Code of 1939; and
    (v) No refund (or credit) of such taxes had been obtained by either 
the employee or the employer, exclusive of any refund (or credit) which 
would have been allowable if the services performed by the individual 
had constituted employment.
    (2) Coverage requested by employee after August 26, 1958, and before 
September 14, 1960. Requests may be made after August 26, 1958, and 
before September 14, 1960, pursuant to section 403(a) of the Social 
Security Amendments of 1954, as amended by section 401 of the Social 
Security Amendments of 1956, by the Act of August 27, 1958 (Pub. L. 85-
785, 72 Stat. 938), and by section 105(b)(6) of the Social Security 
Amendments of 1960. Any individual who, as an employee, performed 
services after December 31, 1950, and before August 1, 1956, for an 
organization described in section 501(c)(3) which was exempt from income 
tax under section 501(a), or which was exempt from income tax under 
section 101(6) of the Internal Revenue Code of 1939, but which did not 
have in effect during the entire period in which the individual was so 
employed a valid waiver certificate under section 3121(k), or under 
section 1326(l) of the Internal Revenue Code of 1939, may request after 
August 26, 1958, and before September 14, 1960, that such part of the 
remuneration received by him for services performed in the employ of the 
organization after 1950 and before 1957 with respect to which employee 
and employer taxes were paid be deemed to constitute remuneration for 
employment, if:
    (i) Any of the services performed by the individual after December 
31, 1950, and before January 1, 1957, would have constituted employment 
if such a certificate on Form SS-15 filed by the organization had been 
in effect for the period during which the services were performed and 
the individual's signature had appeared on the accompanying list on Form 
SS-15a;
    (ii) The employee and employer taxes were paid with respect to any 
part of the remuneration received by the individual from the 
organization for such services performed during the period in which the 
organization did not have a valid waiver certificate in effect;
    (iii) A part of such taxes was paid before August 1, 1956;
    (iv) Such taxes as were paid before August 1, 1956, were paid by the 
organization in good faith, and either without knowledge that a waiver 
certificate was necessary or upon the assumption that it had filed a 
valid certificate under section 3121(k), or under section 1426(l) of the 
Internal Revenue Code of 1939; and
    (v) No refund (or credit) of such taxes has been obtained by either 
the employee or the employer, exclusive of any refund (or credit) which 
would be allowable if the services performed by

[[Page 84]]

the individual had constituted employment.
    (3) Execution and filing of request. (i) Except where the 
alternative procedure set forth in paragraph (b)(3)(ii) of this section 
is followed, the request of an individual under section 403(a) of the 
Social Security Amendments of 1954, as amended, is required to be made 
and filed as provided in this subdivision. The request shall be made in 
writing, be signed and dated by the individual, and include:
    (a) The name and address of the organization for which the services 
were performed;
    (b) The name, address, and social security account number of the 
individual;
    (c) A statement that the individual has not obtained refund or 
credit (other than a refund or credit which would have been allowable if 
the services had constituted employment) from the district director of 
any part of the employee tax paid with respect to remuneration received 
by him from the organization for services performed after 1950 and 
before 1957; and
    (d) A request that all remuneration received by him from the 
organization for such services with respect to which employee and 
employer taxes had been paid shall be deemed to constitute remuneration 
for employment to the extent authorized by section 403(a) of the Social 
Security Amendments of 1954, as amended.

The request of an individual shall be accompanied by a statement of the 
organization incorporating the substance of each of the five conditions 
listed in paragraph (b)(1) or (2), whichever is appropriate, of this 
section. The statement of the organization shall show also that the 
individual performed services for the organization after December 31, 
1950, and before August 1, 1956; that the organization was an 
organization described in section 501(c)(3) which was exempt from income 
tax under section 501(a) or was exempt from income tax under section 
101(6) of the Internal Revenue Code of 1939, and the district director 
with whom returns on Form 941 were filed. The organization's statement 
shall be signed by the president or other principal officer of the 
organization who shall certify that the statement is correct to the best 
of his knowledge and belief. If the statement of the organization is not 
submitted with the individual's request, the individual shall include in 
his request an explanation of his inability to submit the statement. 
Other information may be required, but should be submitted only upon 
receipt of a specific request therefore. No particular form is 
prescribed for the request of the individual or the statement of the 
organization required to be submitted with the request. The individual's 
request should be filed with the district director with whom the 
organization files returns on Form 941. If the individual is deceased or 
mentally incompetent and the request is made by the legal representative 
of the individual or other person authorized to act on his behalf, the 
request shall be accompanied by evidence showing such person's authority 
to make the request.
    (ii) An organization which has or had in its employ individuals with 
respect to whom section 403(a) of the Social Security Amendments of 
1954, as amended, is applicable may, if it so desires, prepare a form or 
forms for use by any such individual or individuals in making requests 
under such section. Any such form shall provide space for the signature 
of the individual or individuals and contain such information as 
required to be included in a request (see paragraph (b)(3)(i) of this 
section). Any such form used by more than one individual, and any such 
form used by one individual which is signed and returned to the 
organization, shall be submitted by the organization, together with its 
statement (as required in paragraph (b)(3)(i) of this section), to the 
district director with whom the organization files its returns on Form 
941. An individual is not required to use a form prepared by the 
organization but may, at his election, file his request in accordance 
with the provisions of paragraph (b)(3)(i) of this section.
    (4) Optional tax payments by organization. An organization which 
prior to August 1, 1956, reported and paid employee and employer taxes 
with respect to any portion of the remuneration paid to an individual, 
who is eligible to file a request under section 403(a) of

[[Page 85]]

the Social Security Amendments of 1954, as amended, for services 
performed by him after 1950 and before 1957, may report and pay such 
taxes before September 14, 1960, with respect to any remaining portion 
of such remuneration which would have constituted wages if a certificate 
had been in effect with respect to such services. Such taxes may be 
reported as an adjustment without interest in the manner prescribed in 
Subpart G of the regulations in this part.
    (5) Effect of request. If a request is made and filed under the 
conditions stated in this paragraph with respect to one or more 
individuals, remuneration for services performed by each such individual 
after 1950 and before 1957, with respect to which the employee and 
employer taxes are paid on or before the date on which the request was 
filed with the district director, will be deemed to constitute 
remuneration for employment to the extent that such services would have 
constituted employment as defined in section 3121(b), or in section 
1426(b) of the Internal Revenue Code of 1939, if a certificate had been 
in effect with respect to such services. However, the provisions of 
section 3121(a) and Secs. 31.3121(a)-1 to 31.3121(a)(10)-1, inclusive, 
of the regulations in this part or the provisions of section 1426(a) of 
the Internal Revenue Code of 1939 and the regulations in 26 CFR (1939) 
408.226 and 408.227 (Regulations 128), as the case may be, are 
applicable in determining the extent to which such remuneration for 
employment constitutes wages for purposes of the employee and employer 
taxes.
    (c) Individual who failed to sign list of concurring employees--(1) 
In general. Pursuant to section 403(b) of the Social Security Amendments 
of 1954, as amended, any individual who, as an employee, performed 
services after December 31, 1950, and before August 1, 1956, for an 
organization which filed a valid certificate under section 3121(k), or 
under section 1426(l) of the Internal Revenue Code of 1939, but who 
failed to sign the list of employees concurring in the filing of such 
certificate, may request on or before January 1, 1959, that the 
remuneration received by him for such services be deemed to constitute 
remuneration for employment, if:
    (i) Any of the services performed by the individual after December 
31, 1950, and before August 1, 1956, would have constituted employment 
if the signature of such individual had appeared on the list of 
employees who concurred in the filing of the certificate;
    (ii) The employee and employer taxes were paid before August 1, 
1956, with respect to any part of the remuneration received by the 
individual from the organization for such services; and
    (iii) No refund (or credit) of such taxes has been obtained either 
by the employee or the employer, exclusive of any refund (or credit) 
which would be allowable if the services performed by the individual had 
constituted employment.
    (2) Execution and filing of request. (i) Except where the 
alternative procedure set forth in subdivision (ii) of this subparagraph 
is followed, the request of an individual under section 403(b) of the 
Social Security Amendments of 1954, as amended, shall be made and filed 
as provided in this subdivision. The request shall be filed on or before 
January 1, 1959, be made in writing, be signed and dated by the 
individual, and include:
    (a) The name and address of the organization for which the services 
were performed;
    (b) The name, address, and social security account number of the 
individual;
    (c) A statement that the individual has not obtained a refund or 
credit (other than a refund or credit which would be allowable if the 
services had constituted employment) from the district director of any 
part of the employee tax paid before August 1, 1956, with respect to 
remuneration received by him from the organization;
    (d) A request that all remuneration received by the individual from 
the organization for services performed after 1950 and before August 1, 
1956, with respect to which employee and employer taxes were paid before 
August 1, 1956, shall be deemed to constitute remuneration for 
employment to the extent authorized by section 403(b) of the Social 
Security Amendments of 1954, as amended; and
    (e) A statement that the individual understands that, upon the 
filing of

[[Page 86]]

such request with the district director, (1) he will be deemed to have 
concurred in the certificate which was previously filed by the 
organization, and (2) the employee and employer taxes will be applicable 
to all wages received, and to be received, by him for services performed 
for the organization on or after the effective date of such certificate 
to the extent that such taxes would have been applicable if he had 
signed the list on Form SS-15a submitted with the certificate.

The request of an individual shall be accompanied by a statement of the 
organization incorporating the substance of each of the three conditions 
listed in paragraph (c)(1) of this section. The statement of the 
organization should also show that the individual performed services for 
the organization after December 31, 1950, and before August 1, 1956; 
that the organization filed a valid certificate under section 3121(k), 
or under section 1426(l) of the Internal Revenue Code of 1939; and the 
district director with whom returns on Form 941 are filed. Such 
statement shall be signed by the president or other principal officer of 
the organization who shall certify that the statement is correct to the 
best of his knowledge and belief. If the statement of the organization 
is not submitted with the individual's request, the individual shall 
include in his request an explanation of his inability to submit such 
statement. Other information may be required, but should be submitted 
only upon receipt of a specific request therefor. No particular form is 
prescribed for the request of the individual or the statement of the 
organization required to be submitted with the request. The individual's 
request should be filed with the district director with whom the 
organization files returns on Form 941. If the individual is deceased or 
mentally incompetent and the request is made by the legal representative 
of the individual or other person authorized to act on his behalf, the 
request shall be accompanied by evidence showing such persons' authority 
to make the request.
    (ii) An organization which has or had in its employ individuals with 
respect to whom section 403(b) of the Social Security Amendments of 
1954, as amended, is applicable, may, if it so desires, prepare a form 
or forms for use by any such individual or individuals in making 
requests under such section. Any such form shall provide space for the 
signature of the individual or individuals and contain such information 
as is required by paragraph (c)(1)(i) of this section to be included in 
a request. Any such form used by more than one individual, and any such 
form used by one individual, and any such form used by one individual 
which is signed and returned to the organization, shall be submitted by 
the organization, together with its statement (as required in paragraph 
(c)(1)(i) of this section), to the district director with whom the 
organization files returns on Form 941. An individual is not required to 
use a form prepared by the organization but may, at his election, file 
his request in accordance with the provisions of subdivisions (i) of 
this subparagraph.
    (3) Effect of request. An individual who makes and files a request 
under the conditions stated in this paragraph with respect to services 
performed as an employee of an organization described in section 
501(c)(3) which was exempt from income tax under section 501(a), or 
which was exempt from income tax under section 101(6) of the Internal 
Revenue Code of 1939, will be deemed to have signed the list 
accompanying the certificate filed by the organization under section 
3121(k), or under section 1426(l) of the Internal Revenue Code of 1939. 
Accordingly, all services performed by the individual for the 
organization on and after the effective date of the certificate will 
constitute employment to the same extent as if he had, in fact, signed 
the list. The employee tax and employer tax are applicable with respect 
to any remuneration paid to the employee by the organization which 
constitutes wages. If less than the correct amount of such taxes has 
been paid, the additional amount due should be reported as an adjustment 
without interest within the time specified in subpart G of the 
regulations in this part.

[T.D. 6744, 29 FR 8318, July 2, 1964]

[[Page 87]]



Sec. 31.3121(k)-4  Constructive filing of waivers of exemption from social security taxes by certain tax-exempt organizations.

    (a) Constructive filing of waiver certificate where no refund or 
credit has been allowed. (1) This paragraph applies (except as provided 
in subparagraph (3) of this paragraph) to an organization if all of the 
following four conditions are met.
    (i) The organization is one described in section 501(c)(3) of the 
Internal Revenue Code of 1954, which is exempt from income tax under 
section 501(a) of the Code.
    (ii) The organization did not file a valid waiver certificate under 
section 3121(k)(1) of the Internal Revenue Code of 1954 (or the 
corresponding provision of prior law) as of the later of October 19, 
1976, or the earliest date on which it satisfies paragraph (a)(1)(iii) 
of this section.
    (iii) The taxes imposed by sections 3101 and 3111 of the Code were 
paid with respect to remuneration paid by the organization to its 
employees, as though such certificate had been filed, during any period 
that includes all or part of at least three consecutive calendar 
quarters and that did not terminate before the end of the third calendar 
quarter of 1973.
    (iv) The Internal Revenue Service did not allow (or erroneously 
allowed) a refund or credit of any part of the taxes paid as described 
in subdivision (iii) of this subparagraph with respect to remuneration 
for services performed on or after April 1, 1973. For purposes of the 
previous sentence, a refund or credit which would have been allowed, 
even if a valid waiver certificate filed under section 3121(k)(1) had 
been in effect, shall be disregarded. A refund or credit will be 
regarded as having been erroneously allowed if it was credited by the 
Internal Revenue Service to the taxpayer account of the organization or 
any of its employees on or after September 9, 1976, even though it was 
properly made under the law in effect when made.
    (2) (i) An organization to which this paragraph applies shall be 
deemed to have filed a valid waiver certificate under section 3121(k)(1) 
(or the corresponding provision of prior law) for purposes of section 
210(a)(8)(B) of the Social Security Act and section 3121(b)(8)(B). The 
waiver certificate shall be deemed to have been filed on the first day 
of the period described in paragraph (a)(1)(iii) of this section and 
shall be effective on the first day of the calendar quarter in which 
such period began. However, such waiver is effective only with respect 
to remuneration for services performed after 1950.
    (ii) The waiver certificate shall be deemed to have been accompanied 
by a list containing the signature, address, and social security number 
(if any) of each employee with respect to whom the taxes imposed by 
sections 3101 and 3111 were paid as described in paragraph (a)(1)(iii) 
of this section. Each such employee shall be deemed to have concurred in 
the filing of the certificate for purposes of section 210(a)(8)(B) of 
the Social Security Act and section 3121(b)(8)(B). A statement 
containing the name, address, and employer identification number of the 
organization, and the name, last known address, and social security 
number (if any) of each employee described in the preceding sentence 
shall be filed by the organization at the request of the Internal 
Revenue Service.
    (iii) The services of all employees entering or reentering the 
employ of an organization on or after the first day following the close 
of the calendar quarter in which the organization is deemed to have 
filed the waiver certificate, performed on or after the day of such 
entry or reentry, shall be covered by the certificate.
    (3) This paragraph (a) shall not apply to an organization if--
    (i) Prior to the end of the period referred to in paragraph 
(a)(1)(iii) (and, in addition, in the case of an organization organized 
on or before October 9, 1969, prior to October 19, 1976), the 
organization had applied for a ruling or determination letter 
acknowledging it to be exempt from income tax under section 501(c)(3);
    (ii) The organization subsequently received such ruling or 
determination letter;
    (iii) The organization did not pay any taxes under sections 3101 and 
3111 with respect to any employee for any calendar quarter ending after 
the twelfth

[[Page 88]]

month following the date of mailing of the ruling or determination 
letter; and
    (iv) The organization did not pay any taxes under sections 3101 and 
3111 with respect to any calendar quarter beginning after the later of 
December 31, 1975, or the date on which the ruling or determination 
letter was issued.
    (4) In the case of an organization which is deemed under this 
paragraph to have filed a valid waiver certificate under section 
3121(k)(1), if the period with respect to which the taxes imposed by 
sections 3101 and 3111 were paid by the organization (as described in 
paragraph (a)(1)(iii) of this section) terminated prior to October 1, 
1976, taxes under sections 3101 and 3111 with respect to remuneration 
paid by the organization after the termination of such period and prior 
to July 1, 1977, which remained unpaid on December 20, 1977 (or which 
were paid after October 19, 1976, but prior to December 20, 1977), shall 
not be due or payable (or, if paid, shall be refunded). Similarly, an 
organization that received a refund or credit of the taxes described in 
paragraph (a)(1)(iii) of this section after September 8, 1976, shall not 
be liable for the taxes imposed by sections 3101 and 3111 with respect 
to remuneration paid by it prior to July 1, 1977, for which the 
organization received the refund or credit. The waiver certificate, 
which an organization described in this subparagraph is deemed to have 
filed, shall not apply to any service with respect to the remuneration 
for which the taxes imposed by sections 3101 and 3111 are not due or 
payable (or are refunded) by reason of this subparagraph.
    (5) In the case of an organization which is deemed under this 
paragraph to have filed a valid waiver certificate under section 
3121(k)(1), if the taxes imposed by sections 3101 and 3111 were not paid 
during the period referred to in paragraph (a)(1)(iii) of this section 
(whether the period has terminated or not) with respect to remuneration 
paid by the organization to individuals who became its employees after 
the close of the calendar quarter in which such period began, taxes 
under sections 3101 and 3111 with respect to remuneration paid prior to 
July 1, 1977, to such employees, which remain unpaid on December 20, 
1977 (or which were paid after October 19, 1976, but prior to December 
20, 1977), shall not be due or payable (or, if paid, shall be refunded). 
The waiver certificate, which an organization described in this 
subparagraph is deemed to have filed, shall not apply to any service 
with respect to remuneration for which the taxes imposed by sections 
3101 and 3111 are not due or payable (or are refunded) by reason of this 
subparagraph.
    (6) This subparagraph allows certain employees to obtain social 
security coverage for service not covered by a deemed-filed waiver 
certificate by reason of section 3121(k)(4)(C) and paragraph (a)(4) or 
(5) of this section. To qualify under this subparagraph, all of the 
following conditions must be met.
    (i) An individual performed service as an employee of an 
organization which is deemed under this paragraph to have filed a waiver 
certificate under section 3121(k)(1), on or after the first day of the 
period described in paragraph (a)(1)(iii) of this section and before 
July 1, 1977.
    (ii) The service performed by the individual does not constitute 
employment (as defined in section 210 (a) of the Social Security Act and 
section 3121(b) of the Code) because the waiver certificate which the 
organization is deemed to have filed is inapplicable to such service by 
reason of section 3121(k)(4)(C), but would constitute employment (as so 
defined) in the absence of section 3121(k)(4)(C).
    (iii) The individual files a request on or before April 15, 1980, in 
the manner and form, and with such official, as may be prescribed by 
regulations under title II of the Social Security Act.
    (iv) That request is accompanied by full payment of the taxes, which 
would have been paid under section 3101 with respect to the remuneration 
for the service described in paragraph (a)(6)(ii) of this section but 
for the application of section 3121(k)(4)(C) (or by satisfactory 
evidence that appropriate arrangements have been made for the payment of 
such taxes in installments as provided in section 3121(k)(8) and 
paragraph (d) of this section).

If these conditions are satisfied, the remuneration paid for the service 
described in paragraph (a)(6)(i) of this section shall be deemed to 
constitute

[[Page 89]]

remuneration for employment. In any case where remuneration paid by an 
organization to an individual is deemed under this subparagraph to 
constitute remuneration for employment, such organization shall be 
liable (notwithstanding any other provision of the Code or regulations) 
for payment of the taxes it would have been required to pay under 
section 3111 with respect to such remuneration but for the application 
of section 3121(k)(4)(C). The due date for the return and payment by the 
organization of the taxes described in the preceding sentence shall be 
the last day of the calendar month following the calendar quarter in 
which the organization is notified in writing of the employee's request. 
However, see paragraph (d) of this section which permits the payment of 
these taxes in installments.
    (b) Constructive filing of waiver certificate where refund or credit 
has been allowed and new certificate is not filed. (1) This paragraph 
applies to an organization which meets two conditions. First, it must be 
an organization to which paragraph (a) of this section would apply but 
for its failure to satisfy the requirement of paragraph (a)(1)(iv) of 
this section because a refund or credit of taxes was allowed before 
September 9, 1976. Second, it must not have filed an actual valid waiver 
certificate under section 3121(k)(1) in accordance with the requirements 
of paragraph (c) of this section.
    (2) An organization to which this paragraph applies shall be deemed, 
for purposes of section 210(a)(8)(B) of the Social Security Act and 
section 3121(b)(8)(B), to have filed a valid waiver certificate under 
section 3121(k)(1) on April 1, 1978. Such certificate shall be effective 
for the period beginning on the first day of the first calendar quarter 
with respect to which the refund or credit referred to in paragraph 
(b)(1) of this section was allowed (or, if later, on July 1, 1973).
    (3) If an organization is deemed under this paragraph to have filed 
a waiver certificate on April 1, 1978, the provisions of paragraph 
(a)(2)(ii) and (iii) of this section (relating to employees covered by a 
deemed-filed waiver certificate) shall apply. Such certificate shall 
supersede any certificate which may have been actually filed by such 
organization prior to that date.
    (4) Where an organization is deemed under this paragraph to have 
filed a waiver certificate on April 1, 1978, the due date for the return 
and payment of the taxes imposed by sections 3101 and 3111 for wages 
paid prior to April 1, 1978, with respect to services constituting 
employment by reason of such certificate shall be August 1, 1978. 
However, see paragraph (d) of this section which permits the payment of 
these taxes in installments. Such taxes (along with the amount of any 
interest paid in connection with the refund or credit described in 
paragraph (b)(1) of this section) shall be a liability of such 
organization, payable from its own funds. No portion of such taxes (or 
interest) shall be deducted from the wages of (or otherwise collected 
from) the individuals who performed such services, and those individuals 
shall have no liability for the payment thereof.
    (5) This subparagraph allows certain employees of organizations 
covered under this paragraph to obtain social security coverage for 
periods prior to those covered by a deemed-filed waiver certificate. To 
qualify under this subparagraph, all of the following conditions must be 
met.
    (i) An individual performed service, as an employee of an 
organization deemed under this paragraph to have filed a waiver 
certificate under section 3121(k)(1), at any time prior to the period 
for which such certificate is effective.
    (ii) The taxes imposed by sections 3101 and 3111 were paid with 
respect to remuneration paid for such service, but such service (or any 
part thereof) does not constitute employment (as defined in section 
210(a) of the Social Security Act and section 3121(b)) because the 
applicable taxes so paid were refunded or credited (otherwise than 
through a refund or credit which would have been allowed if a valid 
waiver certificate filed under section 3121(k)(1) had been in effect) 
prior to September 9, 1976.
    (iii) Any portion of such service (with respect to which taxes were 
paid and refunded or credited as described in paragraph (b)(5)(ii) of 
this section) would constitute employment (as so

[[Page 90]]

defined) if the organization had actually filed under section 3121(k)(1) 
a valid waiver certificate effective as provided in paragraph (c)(2) of 
this section (with such individual's signature appearing on the 
accompanying list).

If this subparagraph applies, the remuneration paid for the portion of 
such service described in paragraph (b)(5)(iii) of this section shall be 
deemed to constitute remuneration for employment (as defined in section 
210(a) of the Social Security Act and section 3121(b)), where such 
individual filed a request on or before April 15, 1980 (in the manner 
and form, and with such official, as may be prescribed by regulations 
under title II of the Social Security Act), accompanied by full 
repayment of the taxes which were paid under section 3101 with respect 
to such remuneration and were refunded or credited (or by satisfactory 
evidence that arrangements have been made for the payment of such taxes 
in installments as provided in section 3121(k)(8) and paragraph (d) of 
this section). In any case where remuneration paid by an organization to 
an individual is deemed under this subparagraph to constitute 
remuneration for employment such organization shall be liable 
(notwithstanding any other provision of the Code or regulations) for 
repayment of any taxes which it paid under section 3111 with respect to 
such remuneration and which were refunded or credited to it. Any 
interest received by the organization or its employees in connection 
with a refund or credit with respect to such taxes shall be remitted 
with the repayment of taxes pursuant to this subparagraph.
    (c) Actual filing of waiver certificate by April 1, 1978, where 
refund or credit has been allowed. (1) An organization may file an 
actual waiver certificate in accordance with paragraphs (c)(2) and (3) 
of this section if it is an organization to which paragraph (a) of this 
section would apply but for its failure to meet the condition set forth 
in paragraph (a)(1)(iv) of this section.
    (2) An organization described in paragraph (c)(1) of this section 
was permitted to file an actual waiver certificate on or before April 1, 
1978. This certificate must be effective for the period beginning on or 
before the first day of the first calendar quarter with respect to which 
a refund or credit described in paragraph (b)(1) of this section was 
allowed (or, if later, with the first day of the earliest calendar 
quarter for which such certificate may be in effect under section 
3121(k)(1)(B)(iii)). Such waiver certificate must have been accompanied 
by a list described in section 3121(k)(1)(A), containing the signature, 
address, and social security number of each concurring employee (if 
any).
    (3) Such a waiver certificate shall be valid only if the 
organization complied with the following notification requirements and, 
on or before April 30, 1978, filed (with the service center of the 
Internal Revenue Service with which the waiver certificate was filed) a 
certification that it had complied with these notification requirements. 
However, these requirements shall be conclusively presumed to have been 
met with respect to any employees who concurred in the filing of the 
waiver certificate.
    (i) Written notification of the option to obtain social security 
coverage for the retroactive period covered by the waiver certificate is 
required to have been given to all current and former employees of the 
organization with respect to whose remuneration taxes imposed by 
sections 3101 and 3111 were paid for any part of the period covered by 
the waiver certificate. For purposes of the preceding sentence, in the 
case of a former employee a mailing of notification to his or her last 
known address shall constitute delivery to the former employee. This 
notification must have been given at least 30 days prior to the date by 
which the employee was required to inform the organization whether he or 
she elects the retroactive social security coverage.
    (ii) The notification required by this subparagraph must have stated 
the earliest date for which the waiver certificate is effective and the 
date by which the employee must have informed the organization of a 
decision to elect the retroactive coverage. In addition, the 
notification must have advised the employee how to obtain information as 
to the quarters of social security coverage to be obtained and any taxes 
or interest for which the employee would be liable if the election

[[Page 91]]

was made. The organization must have provided this information to any 
interested employee at least 14 days prior to the last day on which such 
employee was to have informed the organization of any election.
    (iii) If the notification resulted in any employee electing the 
retroactive coverage whose signature did not appear on the list of 
concurring employees which accompanied a previously filed waiver 
certificate, the certification that was supplied on or before April 30, 
1978, must have been accompanied by a special amendment to that list. 
Any employee whose name appears on this special amended list shall be 
treated as if his or her name appeared on the list of concurring 
employees filed with the waiver certificate. The preceding sentence 
shall only apply with respect to amended lists of concurring employees 
filed to comply with the requirements of this subparagraph.
    (4) Any interest received in connection with a refund or credit 
described in paragraph (b)(1) of this section must have been repaid on 
or before April 30, 1978, with respect to each employee who concurs in 
the filing of a waiver certificate pursuant to this paragraph. 
Notwithstanding the provisions of paragraph (c)(4) of Sec. 31.3121(k)-1, 
if such interest was repaid on or before April 30, 1978, the waiver 
certificate shall be considered to have been filed on the date it was 
originally furnished to the Internal Revenue Service.
    (d) Installment payment of taxes for retroactive coverage. This 
paragraph applies if--
    (1) An organization is deemed under paragraph (a) of this section to 
have filed a valid waiver certificate, but the applicable period 
described in paragraph (a)(1)(iii) has terminated and all or part of the 
taxes imposed by sections 3101 and 3111, with respect to remuneration 
paid by such organization to its employees after the close of such 
period, remains payable notwithstanding section 3121(k)(4)(C) and 
paragraph (a)(4) of this section; or
    (2) An organization described in paragraph (c) files a valid waiver 
certificate by March 31, 1978, or, not having filed the certificate by 
that date, is seemed to have filed the certificate on April 1, 1978, 
under paragraph (b); or
    (3) An individual files a request under paragraph (a)(6) or (b)(5) 
to have service treated as constituting remuneration for employment (as 
defined in section 210(a) of the Social Security Act and section 
3121(b)).

If this paragraph applies, the taxes due under sections 3101 and 3111 
(together with any additions to tax or interest other than interest 
described in paragraph (c)(4)) with respect to service constituting 
employment by reason of the waiver certificate for any period prior to 
the first day of the calendar quarter in which the certificate is filed 
or deemed filed, or with respect to service constituting employment by 
reason of an employee request, may be paid in installments over an 
appropriate period of time, as determined by the district director. In 
determining the appropriate period of time, the district director shall 
exercise forbearance and, to the extent possible, grant the organization 
an installment agreement that will allow it sufficient funds to carry 
out its basic mission. If any installment is not paid on or before the 
date fixed for its payment, the total unpaid amount shall become payable 
immediately and shall be paid upon notice and demand.
    (e) Application of certain provisions to cases of constructive 
filing. (1) Except as provided in paragraphs (e)(2) and (3) of this 
section, all of the provisions of section 3121(k) (other than 
subparagraphs (B), (F), and (H) of section 3121(k)(1)) and the 
regulations thereunder (including the provisions requiring the payment 
of taxes under sections 3101 and 3111 with respect to the services 
involved), shall apply with respect to any certificate which is deemed 
to have been filed under paragraph (a) or (b) of this section, in the 
same way they would apply if the certificate had been actually filed on 
that day under section 3121(k)(1).
    (2) The provisions of section 3121(k)(1)(E) shall not apply unless 
the taxes described in paragraph (a)(1)(iii) of this section were paid 
by the organization as though a separate certificate had been filed with 
respect to one or both of the groups to which such provisions relate.

[[Page 92]]

    (3) The action of the organization in obtaining the refund or credit 
described in paragraph (b)(1) of this section shall not be considered a 
termination of such organization's coverage period for purposes of 
section 3121(k)(3).
    (4) Any organization which is deemed to have filed a waiver 
certificate under paragraph (a) or (b) of this section shall be 
considered for purposes of section 3102(b) to have been required to 
deduct the taxes imposed by section 3101 with respect to the services 
involved.

[T.D. 7647, 44 FR 59524, Oct. 16, 1979]



Sec. 31.3121(l)-1  Agreements entered into by domestic corporations with respect to foreign subsidiaries.

    For provisions relating to the extension of the Federal old-age, 
survivors, and disability insurance system established by title II of 
the Social Security Act to certain services performed outside the United 
States by citizens of the United States in the employ of a foreign 
subsidiary of a domestic corporation, see the Regulations Relating to 
Contract Coverage of Employees of Foreign Subsidiaries (part 36 of this 
chapter).



Sec. 31.3121(o)-1  Crew leader.

    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. For purposes of this chapter a crew leader is 
deemed to be the employer of the individuals furnished by him to perform 
agricultural labor, after 1956, for another person, and the crew leader 
is deemed not to be an employee of such other person with respect to the 
performance of services by him after 1956 in furnishing such individuals 
or as a member of the crew. An individual is not a crew leader within 
the meaning of section 3121(o) and of this section if he does not pay 
the agricultural workers furnished by him to perform agricultural labor 
for another person, or if there is an agreement between such individual 
and the person for whom the agricultural labor is performed whereby such 
individual is designated as an employee of such person. Whether or not 
such individual is an employee will be determined under the usual 
common-law rules (see paragraph (c) of Sec. 31.3121(d)-1).

[T.D. 6744, 29 FR 8320, July 2, 1964]



Sec. 31.3121(q)-1  Tips included for employee taxes.

    (a) In general. Except as otherwise provided in paragraph (b) of 
this section, tips received after 1965 by an employee in the course of 
his employment shall be considered remuneration for employment. (For 
definition of the term ``employee'' see 3121(d) and Sec. 31.3121(d)-1.) 
Tips reported by an employee to his employer in a written statement 
furnished to the employer pursuant to section 6053(a) (see Sec. 31.6053-
1) shall be deemed to be paid to the employee at the time the written 
statement is furnished to the employer. Tips received by an employee 
which are not reported to his employer in a written statement furnished 
pursuant to section 6053(a) shall be deemed to be paid to the employee 
at the time the tips are actually received by the employee. For 
provisions relating to the collection of employee tax in respect of tips 
from the employee, see Sec. 31.3102-3.
    (b) Tips not included for employer taxes. Tips received after 1965 
by an employee in the course of his employment do not constitute 
remuneration for employment for purposes of computing wages subject to 
the taxes imposed by subsections (a) and (b) of section 3111.
    (c) Tips received by an employee in course of his employment. Tips 
are considered to be received by an employee in the course of his 
employment for an employer regardless of whether the tips are received 
by the employee from a person other than his employer or are paid to the 
employee by the employer. However, only those tips which are received by 
an employee on his own behalf (as distinguished from tips received on 
behalf of another employee) shall be considered as remuneration paid to 
the employee. Thus, where employees practice tip splitting (for example, 
where waiters pay a portion of

[[Page 93]]

the tips received by them to the busboys), each employee who receives a 
portion of a tip left by a customer of the employer is considered to 
have received tips in the course of his employment.
    (d) Computation of annual wage limitation. In connection with the 
application of the annual wage limitation (see Sec. 31.3121(a)(1)-1), 
tips reported by an employee to his employer in a written statement 
furnished to the employer pursuant to section 6053(a) shall be taken 
into account for purposes of the tax imposed by section 3101. However, 
since tips received by an employee in the course of his employment do 
not constitute remuneration for employment for purposes of the tax 
imposed by section 3111, they are disregarded for purposes of the annual 
wage limitation in respect of such tax. Accordingly, separate 
computations for purposes of the annual wage limitation may be required 
in respect of an employee who receives tips. The provisions of this 
paragraph may be illustrated by the following example:

    Example. During 1966, A is employed as a waiter by X restaurant and 
is paid wages by X restaurant at the rate of $100 a week. At the end of 
October 1966, A has been paid weekly wages in the amount of $4,300 and 
has reported tips in the amount of $2,200. On November 6, 1966, A is 
paid an additional week's wages in the amount of $100 and on November 9, 
1966, A furnishes X restaurant a report of tips actually received by him 
during October. The annual wage limitation of $6,600 (weekly wages of 
$4,400 ($4,300 plus $100) and tips of $2,200) had been reached for 
purposes of the tax imposed by section 3101 prior to November 9 and, 
accordingly, no portion of the tips included in the report furnished on 
that date constitutes wages. However, since tips do not constitute 
remuneration for employment for purposes of the tax imposed by section 
3111, the weekly wages paid to A during the remainder of 1966 will be 
subject to the tax imposed by section 3111.

[T.D. 7001, 34 FR 1000, Jan. 23, 1969]



Sec. 31.3121(r)-1  Election of coverage by religious orders.

    (a) In general. A religious order whose members are required to take 
a vow of poverty, or any autonomous subdivision of such an order, may 
elect to have the Federal old-age, survivors, and disability 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 subdivision. See section 3121(i)(4) and Sec. 31.3121(i)-4 
for provisions relating to the computation of the amount of remuneration 
of such members. For purposes of this section, a subdivision of a 
religious order is autonomous if it directs and governs its members, if 
it is responsible for its members' care and maintenance, if it is 
responsible for the members' support and maintenance in retirement, and 
if the members live under the authority of a religious superior who is 
elected by them or appointed by higher authority.
    (b) Definition of member--(1) In general. For purposes of section 
3121(r) and this section, a member of a religious order means any 
individual who is subject to a vow of poverty as a member of such order, 
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.
    (2) Retirement because of old age--(i) In general. For purposes of 
section 3121(r)(2) and this paragraph, an individual is considered 
retired because of old age if (A) in view of all the services performed 
by the individual and the surrounding circumstances it is reasonable to 
consider him to be retired, and (B) his retirement occurred by reason of 
old age. Even though an individual performs some services in the 
exercise of duties required by the religious order, the first test (the 
retirement test) is met where it is reasonable to consider the 
individual to be retired.
    (ii) Factors to be considered. In determining whether it is 
reasonable to consider an individual to be retired, consideration is 
first to be given to all of the following factors:
    (A) Nature of services. Consideration is given to the nature of the 
services performed by the individual in the exercise of duties required 
by his religious order. The more highly skilled and valuable such 
services are, the more likely the individual rendering such services is 
not reasonably considered retired. Also, whether such services are

[[Page 94]]

of a type performed principally by retired members of the individual's 
religious order may be significant.
    (B) Amount of time. Consideration is also given to the amount of 
time the individual devotes to the performance of services in the 
exercise of duties required by his religious order. This time includes 
all the time spent by him in any activity in connection with services 
that might appropriately be performed in the exercise of duties required 
of active members by the order. Normally, an individual who, solely by 
reason of his advanced age, performs services of less than 45 hours per 
month shall be considered retired. In no event shall an individual who, 
solely by reason of his advanced age, performs services of less than 15 
hours per month not be considered retired.
    (C) Comparison of services rendered before and after retirement. In 
addition, consideration is given to the nature and extent of the 
services rendered by the individual before he ``retired,'' as compared 
with the services performed thereafter. A large reduction in the 
importance or amount of services performed by the individual in the 
exercise of duties required by his religious order tends to show that 
the individual is retired; absence of such reduction tends to show that 
the individual is not retired. Normally, an individual who reduces by at 
least 75 percent the amount of services performed shall be considered 
retired.

Where consideration of the factors described in paragraph (b)(2)(ii) of 
this section does not establish whether an individual is or is not 
reasonably considered retired, all other factors are considered.
    (iii) Examples. The rules of this subparagraph may be illustrated by 
the following examples:
    Example 1. A is a member of a religious order who is subject to a 
vow of poverty. A's religious order is principally engaged in providing 
nursing services, and A has been fully trained in the nursing 
profession. In accordance with the practices of her order, upon 
attaining the age of 65, A is relieved of her nursing duties by reason 
of her age, and is assigned to a mother house where she is required to 
perform only such duties as light housekeeping and ordinary gardening. A 
is reasonably considered retired since the services she is performing 
are simple in nature, are markedly less skilled than those professional 
services which she previously performed, are of a type performed 
principally by retired members of her order, and are performed at a 
location to which members frequently retire.

    Example 2. Assume the same facts as in example 1 except that A is 
not reassigned to a mother house. Instead, she is reassigned to full-
time duties in a hospital not utilizing her nursing skills. Whether A 
has met the retirement test requires consideration of the nature of her 
work. If A's new duties are almost entirely of a make-work nature 
primarily to occupy her body and mind, she is reasonably considered 
retired. However, if they are essential to the operation of the 
hospital, she is not reasonably considered retired.
    Example 3. B is a member of a religious order who is subject to a 
vow of poverty. As such, he provides supportive services to his order, 
such as housekeeping, cooking, and gardening. By reason of having 
attained the age of 62, he reduces the number of hours spent per day in 
these services from 8 hours to 2 hours. B is reasonably considered 
retired in view of the large reduction in the amount of time he devotes 
to his duties.
    Example 4. C is a member of a religious order who is subject to a 
vow of poverty. In his capacity as a member of the order, he performs 
duties as president of a university. Upon attaining the age of 65, C is 
relieved of his duties as president of the university and instead 
becomes a member of its faculty, teaching two courses whereas full-time 
members of the faculty normally teach four comparable courses. Although 
C's duties are no longer as demanding as those he previously performed, 
and although the amount of his time required for them is less than full 
time, he is nonetheless performing duties requiring a high degree of 
skill for a substantial amount of time. Accordingly, C is not reasonably 
considered retired.
    Example 5. Assume the same facts as in example 4, except that C 
teaches only one course upon being relieved of his position as president 
by reason of age. C is reasonably considered retired.
    Example 6. D is a member of a contemplative order who is subject to 
a vow of poverty. In accordance with the practices of his order, upon 
attaining the age of 70, D reduces by 50 percent the amount of time 
spent performing the normal duties of active members of his order. D is 
not reasonably considered retired.
    Example 7. Assume the same facts as in example 6, except that 
because of his age D no longer participates in the more rigorous 
liturgical services of the order and that the amount of time which he 
spends in all duties which might appropriately be performed by active 
members of his order is reduced by 75 percent. D is reasonably 
considered retired

[[Page 95]]

in view of the large reduction in his participation in the usual 
devotional routine of his order.

    (3) Retirement because of total disability. For purposes of section 
3121(r)(2) and this paragraph, an individual is considered retired 
because of total disability (i) if he is unable, by reason of a 
medically determinable physical or mental impairment, to perform the 
tasks usually required of an active member of his order to the extent 
necessary to maintain his status as an active member, and (ii) if such 
impairment is reasonably expected to prevent his resumption of the 
performance of such tasks to such extent. A physical or mental 
impairment is an impairment that results from anatomical, physiological, 
or psychological abnormalities which are demonstrable by medically 
acceptable clinical and laboratory diagnostic techniques. Statements of 
the individual, including his own description of his impairment 
(symptoms), are, alone, insufficient to establish the presence of a 
physical or mental impairment.
    (4) Evidentiary requirements with respect to retirement. There shall 
be attached to the return of taxes paid pursuant to an election under 
section 3121(r) a summary of the facts upon which any determination has 
been made by the religious order or autonomous subdivision that one or 
more of its members retired during the period covered by such return. 
Each summary shall contain the name and social security number of each 
such retired member as well as the date of his retirement. Such order or 
subdivision shall maintain records of the details relating to each such 
``retirement'' sufficient to show whether or not such member or members 
has in fact retired.
    (c) Certificates of election--(1) In general. A religious order or 
an autonomous subdivision of such an order desiring to make an election 
of coverage pursuant to section 3121(r) and this section shall file a 
certificate of election on Form SS-16 in accordance with the 
instructions thereto. However, in the case of an election made before 
August 9, 1973, a document other than Form SS-16 shall constitute a 
certificate of election if it purports to be a binding election of 
coverage and if it is filed with an appropriate official of the Internal 
Revenue Service. Such a document shall be given the effect it would have 
if it were a certificate of election containing the provisions required 
by paragraph (c)(2) of this section. However, it should subsequently be 
supplemented by a Form SS-16.
    (2) Provisions of certificates. Each certificate of election shall 
provide that--
    (i) Such election of coverage by such order or subdivision shall be 
irrevocable,
    (ii) 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,
    (iii) All services performed by a member of such 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
    (iv) The wages of each member, upon which such order or subdivision 
shall pay the taxes imposed on employees and employers by sections 3101 
and 3111, will be determined as provided in section 3121(i)(4).
    (d) Effective date of election--(1) In general. Except as provided 
in paragraph (e) of this section, a certificate of election of coverage 
filed by a religious order or its subdivision pursuant to section 
3121(r) and this section shall be in effect, for purposes of section 
3121(b)(8)(A) and for purposes of section 210(a)(8)(A) of the Social 
Security Act, for the period beginning with whichever of the following 
may be designated by the electing religious order or subdivision:
    (i) The first day of the calendar quarter in which the certificate 
is filed,
    (ii) The first day of the calendar quarter immediately following the 
quarter in which the certificate is filed, 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 20th calendar quarter preceding the 
quarter in which such certificate is filed.

[[Page 96]]

    (2) Retroactive elections. Whenever a date is designated as provided 
in paragraph (d)(1)(iii) of this section, 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. Thus, the election applies 
to an individual who is no longer a member of a religious order on the 
first day of such quarter if he performed services as a member at any 
time on or after the date so designated and is living on the first day 
of the quarter in which such certificate is filed. For purposes of 
computing interest and for purposes of section 6651 (relating to 
additions to tax for failure to file tax return or to pay tax), in any 
case in which such a date is designated the due date for the return and 
payment of the tax, for calendar quarters prior to the quarter in which 
the certificate is filed, 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. The statutory period for the 
assessment of the tax for such prior calendar quarters shall not expire 
before the expiration of 3 years from such due date.
    (e) Coordination with coverage of lay employees. If at the time the 
certificate of election of coverage is filed by a religious order or 
autonomous subdivision, a certificate of waiver of exemption under 
section 3121(k) (extending coverage to any lay employees) is not in 
effect, the certificate of election shall not become effective unless 
the order or subdivision files a Form SS-15, and a Form SS-15a to 
accompany the certificate on Form SS-15, as provided by section 3121(k) 
and Secs. 31.3121(k)-1 through 31.3121(k)-3. The preceding sentence 
applies even though an order or subdivision has no lay employees at the 
time it files a certificate of election of coverage. The effective date 
of the certificate of waiver of exemption must be no later than the date 
on which the certificate of election becomes effective, and it must be 
specified on the certificate of waiver of exemption that such 
certificate is irrevocable. The certificate of waiver of exemption 
required under this paragraph shall be filed notwithstanding the 
provisions of section 3121(k)(3) (relating to no renewal of the waiver 
of exemption) which otherwise would prohibit the filing of a waiver of 
exemption if an earlier waiver of exemption had previously been 
terminated. If at the time the certificate of election of coverage is 
filed a certificate of waiver of exemption is in effect with respect to 
the electing religious order or autonomous subdivision, the filing of 
the certificate of election shall constitute an amendment of the 
certificate of waiver of exemption making the latter certificate 
irrevocable.

[T.D. 7280, 38 FR 18370, July 10, 1973]



Sec. 31.3121(s)-1  Concurrent employment by related corporations with common paymaster.

    (a) In general. For purposes of sections 3102, 3111, and 3121(a)(1), 
except as otherwise provided in paragraph (c) of this section, when two 
or more related corporations concurrently employ the same individual and 
compensate that individual through a common paymaster which is one of 
the related corporations that employs the individual, each of the 
corporations is considered to have paid only the remuneration it 
actually disburses to that individual. This rule applies whether the 
remuneration was paid with respect to the employment relationship of the 
individual with the disbursing corporation or was paid on behalf of 
another related corporation. Accordingly, if all of the remuneration to 
the individual from the related corporations is disbursed through the 
common paymaster, the total amount of taxes imposed with respect to the 
remuneration under sections 3102 and 3111 is determined as though the 
individual has only one employer (the common paymaster). The common 
paymaster is responsible for filing information and tax returns and 
issuing Forms W-2 with respect to wages it is considered to have paid 
under this section. Section 3121(s) and this section apply only to 
remuneration disbursed in the form of money, check or similar instrument 
by one of the related corporations or its agent.

[[Page 97]]

    (b) Definitions. The definitions contained in this paragraph are 
applicable only for purposes of this section and Sec. 31.3306(p)-1.
    (1) Related corporations. Corporations shall be considered related 
corporations for an entire calendar quarter (as defined in Sec. 31.0-
2(a)(9)) if they satisfy any one of the following four tests at any time 
during that calendar quarter:
    (i) The corporations are members of a ``controlled group of 
corporations'', as defined in section 1563 of the Code, or would be 
members if section 1563(a)(4) and (b) did not apply and if the phrase 
``more than 50 percent'' were substituted for the phrase ``at least 80 
percent'' wherever it appears in section 1563(a).
    (ii) In the case of a corporation that does not issue stock, either 
fifty percent or more of the members of one corporation's board of 
directors (or other governing body) are members of the other 
corporation's board of directors (or other governing body), or the 
holders of fifty percent or more of the voting power to select such 
members are concurrently the holders of more than fifty percent of that 
power with respect to the other corporation.
    (iii) Fifty percent or more of one corporation's officers are 
concurrently officers of the other corporation.
    (iv) Thirty percent or more of one corporation's employees are 
concurrently employees of the other corporation.

The following examples illustrate the application of this paragraph:

    Example 1. (a) X Corporation employs individuals A, B, D, E, F, G, 
and H. Y Corporation employs individuals A, B, and C. Z Corporation 
employs individuals A, C, I, J, K, L, and M. X Corporation is the 
paymaster for all thirteen individuals. The corporations have no 
officers or stockholders in common.
    (b) X and Y are related corporations because at least 30 percent of 
Y's employees are also employees of X. Y and Z are related corporations 
because at least 30 percent of Y's employees are also employees of Z. X 
and Z are not related corporations because neither corporation has 30 
percent of its employees concurrently employed by the other corporation.
    (c) For purposes of determining the amount of the tax liability 
under sections 3102 and 3111, individual B is treated as having one 
employer. Individual C has two employers for these purposes, although Y 
and Z are related corporations, because C is not employed by X 
Corporation, the common paymaster. Individual A also is treated as 
having two employers for the purposes of these sections because X and Y 
Corporations are treated as one employer, and Z Corporation is treated 
as a second employer (since it is not related to the paymaster, X 
Corporation). Of course, individuals D, E, F, G, H, I, J, K, L, and M 
are not concurrently employed by two or more corporations, and, 
accordingly, section 3121 (s) is inapplicable to them.
    Example 2. M and N Corporations are both related to Corporation O 
but are not related to each other. Individual A is concurrently employed 
by all three corporations and paid by O, their common paymaster. 
Although M and N are not related, O is treated as the employer for A's 
employment with M, N, and O.
    Example 3. Corporations X, Y, and Z meet the definition of related 
corporations for the first time on April 12, 1979, and cease to meet it 
on July 5, 1979. A is concurrently employed by X, Y, and Z throughout 
1979. In each of the four calendar quarters of 1979, A's remuneration 
from X, Y, and Z is $2,000, $10,000, and $30,000, respectively. All of 
the remuneration to A from X, Y, and Z for the year is disbursed by X, 
the common paymaster. Under these circumstances, the amount of wages 
subject to sections 3102 and 3111 is as follows:
    For the first calendar quarter

 
                X                          Y                   Z
 
             $2,000                     $10,000             $22,900
 
 
 

    For the second calendar quarter

 
                X                          Y                   Z
 
             $20,900                       0                   0
 
($22,900-$2,000)
 


    For the third calendar quarter

 
                X                          Y                   Z
 
                0                          0                   0
 
 
 


    For the fourth calendar quarter

 
                X                          Y                   Z
 
                0                       $10,000                0
 
 
 



Of course, if the corporations had been related throughout all of 1979, 
only $22,900 of X's first quarter disbursement would have constituted 
wages subject to sections 3102 and 3111.


[[Page 98]]


    (2) Common paymaster--(i) In general. A common paymaster of a group 
of related corporations is any member thereof that disburses 
remuneration to employees of two or more of those corporations on their 
behalf and that is responsible for keeping books and records for the 
payroll with respect to those employees. The common paymaster is not 
required to disburse remuneration to all the employees of those two or 
more related corporations, but the provisions of this section do not 
apply to any remuneration to an employee that is not disbursed through a 
common paymaster. The common paymaster may pay concurrently employed 
individuals under this section by one combined paycheck, drawn on a 
single bank account, or by separate paychecks, drawn by the common 
paymaster on the accounts of one or more employing corporations.
    (ii) Multiple common paymasters. A group of related corporations may 
have more than one common paymaster. Some of the related corporations 
may use one common paymaster and others of the related corporations use 
another common paymaster with respect to a certain class of employees. A 
corporation that uses a common paymaster to disburse remuneration to 
certain of its employees may use a different common paymaster to 
disburse remuneration to other employees.
    (iii) Examples. The rules of this subparagraph are illustrated by 
the following examples:

    Example 1. S, T, U, and V are related corporations with 2,000 
employees collectively. Forty of these employees are concurrently 
employed by two or more of the corporations, during a calendar quarter. 
The four corporations arrange for S to disburse remuneration to thirty 
of these forty employees for their services. Under these facts, S is the 
common paymaster of S, T, U, and V with respect to the thirty employees. 
S is not a common paymaster with respect to the remaining employees.
    Example 2. (a) W, X, Y, and Z are related corporations. The 
corporations collectively have 20,000 employees. Two hundred of the 
employees are top-level executives and managers, sixty of whom are 
concurrently employed by two or more of the corporations during a 
calendar quarter. Six thousand of the employees are skilled artisans, 
all of whom are concurrently employed by two or more of the corporations 
during the calendar year. The four corporations arrange for Z to 
disburse remuneration to the sixty executives who are concurrently 
employed by two or more of the corporations. W and X arrange for X to 
disburse remuneration to the artisans who are concurrently employed by W 
and X.
    (b) A is an executive who is concurrently employed only by W, Y, and 
Z during the calendar year. Under these facts, Z is a common paymaster 
for W, Y, and Z with respect to A. Assuming that the other requirements 
of this section are met, the amount of the tax liability under sections 
3102 and 3111 is determined as if Z were A's only employer for the 
calendar quarter.
    (c) B is a skilled artisan who is concurrently employed only by W 
and X during the calendar year. Under these facts, X is a common 
paymaster for S and X with respect to B. Assuming that the other 
requirements of this section are met, the amount of the tax liability 
under sections 3102 and 3111 is determined as if X were B's only 
employer for the calendar quarter.

    (3) Concurrent employment. For purposes of this section, the term 
``concurrent employment'' means the contemporaneous existence of an 
employment relationship (within the meaning of section 3121(b)) between 
an individual and two or more corporations. Such a relationship 
contemplates the performance of services by the employee for the benefit 
of the employing corporation (not merely for the benefit of the group of 
corporations), in exchange for remuneration which, if deductible for the 
purposes of Federal income tax, would be deductible by the employing 
corporation. The contemporaneous existence of an employment relationship 
with each corporation is the decisive factor; if it exists, the fact 
that a particular employee is on leave or otherwise temporarily inactive 
is immaterial. However, employment is not concurrent with respect to one 
of the related corporations if the employee's employment relationship 
with that corporation is completely nonexistent during periods when the 
employee is not performing services for that corporation. An employment 
relationship is completely nonexistent if all rights and obligations of 
the employer and employee with respect to employment have terminated, 
other than those that customarily exist after employment relationships 
terminate. Examples of

[[Page 99]]

rights and obligations that customarily exist after employment 
relationships terminate include those with respect to remuneration not 
yet paid, employer's property used by the employee not yet returned to 
the employer, severance pay, and lump-sum termination payments from a 
deferred compensation plan. Circumstances that suggest that an 
employment relationship has become completely nonexistent include 
unconditional termination of participation in deferred compensation 
plans of the employer, forfeiture of seniority claims, and forfeiture of 
unused fringe benefits such as vacation or sick pay. Of course, the 
continued existence of an employment relationship between an individual 
and a corporation is not necessarily established by the individual's 
continued participation in a deferred compensation plan, retention of 
seniority rights, etc., since continuation of those benefits may be 
attributable to employment with a second corporation related to the 
first corporation if the corporations have common benefits plans or if 
the benefits are continued as a matter of corporate reciprocity. An 
individual who does not perform substantial services in exchange for 
remuneration from a corporation is presumed not employed by that 
corporation. Concurrent employment need not exist for any particular 
length of time to meet the requirements of this section, but this 
section only applies to remuneration disbursed by a common paymaster to 
an individual who is concurrently employed by the common paymaster and 
at least one other related corporation at the time the individual 
performs the services for which the remuneration is paid. If the 
employment relationship is nonexistent during a quarter, that employee 
may not be counted towards the 30-percent test set forth in paragraph 
(b)(1)(iv) of this section; however, even if the employment relationship 
is nonexistent, section 3121(s) of the Code would apply to remuneration 
paid to the former employee for services rendered while the employee was 
a common employee. The principles of this subparagraph are illustrated 
by the following examples.

    Example 1. M, N, and O are related corporations which use N as a 
common paymaster with respect to officers. Their respective headquarters 
are located in three separate cities several hundred miles apart. A is 
an officer of M, N, and O who performs substantial services for each 
corporation. A does not work a set length of time at each corporate 
headquarters, and when A leaves one corporate headquarters, it is not 
known when A will return, although it is expected that A will return. 
Under these facts, A is concurrently employed by the three corporations.
    Example 2. P, Q, and R are related corporations whose geographical 
zones of business activity do not overlap. P, Q, and R have a common 
pension plan and arrange for Q to be a common paymaster for managers and 
executives. All three corporations maintain cafeterias for the use of 
their employees. B is a cafeteria manager who has worked at P's 
headquarters for 3 years. On June 1, 1980, B is transferred from P to 
the position of cafeteria manager of R. There are no plans for B's 
return to P. B's accrued pension benefits, vacation and sick pay, do not 
change as a result of the transfer. The decision to transfer B was made 
by Q, the parent corporation. Under these facts, B is not concurrently 
employed by P and R, because B's employment relationship with P was 
completely nonexistent during B's employment with R. Furthermore, 
section 3121(s) is inapplicable since B also was not employed by Q, the 
common paymaster, because B never contracted to perform services for 
remuneration from Q, and Q did not have the right to control the day-to-
day duties of B's work.
    Example 3. C is employed by two related corporations, S and T. C was 
concurrently employed by these corporations between April 1, 1979, and 
June 30, 1979. The corporations used T as the common paymaster with 
respect to C's wages between May 1, 1979, and September 30, 1979. T pays 
C on May 15 for services performed between April 1 and April 30, on July 
15 for services performed between June 1 and June 30, and on August 15 
for services performed between July 1 and July 31. Section 3121 (s) 
applies to the first two payments but does not apply to the third 
payment (there was no concurrent employment). However, if the third 
payment was made by T for services performed for T, T counts the amounts 
previously disbursed to C in 1979 while C was concurrently employed by S 
and T towards the wage base (see section 3121 (a)(1)).

    (c) Allocation of employment taxes--(1) Responsibility to pay tax. 
If the requirements of this section are met, the common paymaster has 
the primary responsibility for remitting taxes pursuant to sections 3102 
and 3111 with respect to the remuneration it disburses as the common 
paymaster. The common paymaster computes these taxes

[[Page 100]]

as though it were the sole employer of the concurrently employed 
individuals. If the common paymaster fails to remit these taxes (in 
whole or in part), it remains liable for the full amount of the unpaid 
portion of these taxes. In addition, each of the other related 
corporations using the common paymaster is jointly and severally liable 
for its appropriate share of these taxes. That share is an amount equal 
to the lesser of:
    (i) The amount of the liability of the common paymaster under 
section 3121(s), after taking account of any tax payments made, or
    (ii) The amount of the liability under sections 3102 and 3111 which, 
but for section 3121(s), would have existed with respect to the 
remuneration from such other related corporation, reduced by an 
allocable portion of any taxes previously paid by the common paymaster 
with respect to that remuneration.

The portion of taxes previously paid by the common paymaster that is 
allocable to each related corporation is determined by multiplying the 
amount of taxes paid by a fraction, the numerator of which is the 
portion of the amount of employment tax liability of the common 
paymaster under section 3121(s) that is allocable to such related 
corporation under paragraph (c)(2) of this section, and the denominator 
of which is the total amount of the common paymaster's liability under 
section 3121(s), both determined without regard to any prior tax 
payments. These rules apply whether or not the tax on employees was 
withheld from the employees' wages.
    (2) Allocation of tax--(i) In general. If the related corporations 
maintain a record of the remuneration disbursed to the employee for 
services performed for each corporation, the remuneration-based 
allocation rules of paragraph (c)(2)(ii) of this section apply. If the 
related corporations do not maintain this record of remuneration, the 
group-wide allocation rules of paragraph (c)(2)(iii) of this section 
apply. In all cases, allocations must be made with respect to each 
payment of wages. The allocation of employment tax liabilities pursuant 
to this subparagraph also determines which related corporation may be 
entitled to income tax deductions with respect to the payments of those 
taxes.
    (ii) Remuneration-based allocation rules. Under the remuneration-
based method of allocation, each related corporation that remunerates an 
employee through a common paymaster has allocated to it for each pay 
period an amount of tax determined according to the following formula:

Portion of wage payment constituting
 re-
  muneration to the employee for           Tax on employees under
 services                                   section 3102 and
  performed for the corporation              tax on employers under
                                            section 3111
-------------------------------------   x    that the common paymaster
              ---------                     is required
Total wage payment constituting remu-        to remit with respect to
                                            the wage pay-
  neration to the employee for all           ment
 services
  performed for the related
 corporations
  using the common paymaster
 



----------------------------------------------------------------------------------------------------------------
                                            Remuneration                                 Tax on
                             ------------------------------------------    Tax on       employees
        Wage payments                                                     employers     withheld        Total
                                    X             Y           Total         under         under
                                                                        section 3111  section 3102
----------------------------------------------------------------------------------------------------------------
1...........................        $3,000        $1,000        $4,000       $245.20       $245.20       $490.40
2-3.........................  ............         8,000         8,000        490.40        490.40        980.80
4...........................         1,000         3,000         4,000        245.20        245.20        490.40
5...........................         4,000  ............         4,000        245.20        245.20        490.40

[[Page 101]]

 
6...........................         2,000         2,000         4,000        177.77        177.77        355.54
7-13........................        10,000        18,000        28,000             0             0             0
                             -----------------------------------------------------------------------------------
    Total...................        20,000        32,000        52,000      1,403.77      1,403.77      2,807.54
----------------------------------------------------------------------------------------------------------------

                                                                                                    [GRAPHIC] [TIFF OMITTED] TC05OC91.016
                                                                                                    

    (ii) If Y remits none of the taxes to the Internal Revenue Service, 
X is liable for $2,452.00 (the entire amount due pursuant to sections 
3102 and 3111 with respect to the remuneration to A from X) (12.26%  x  
$20,000). Any amount remitted by X to the Internal Revenue Service under 
these circumstances is also credited against the liability of the common 
paymaster, Y. However, only the portion of the employment taxes 
allocated to X under (i) above may be deducted by X as employment taxes 
paid by it in respect of wages paid by it to its employees.
    (iii) If Y remits $1,000.00 of the total $2,807.54 due, Y as common 
paymaster remains liable for $1,807.54 ($2,807.54 minus $1,000). X's 
liability is the lesser of $1,807.54 (the liability of the common 
paymaster), or X's total liability, in the absence of section 3121 (s), 
on wages paid through the common paymaster ($2,452.00) minus a credit 
for an allocable part of the amount remitted by Y. The part is $412.66

[GRAPHIC] [TIFF OMITTED] TC05OC91.017

    (iii) Group-wide allocation rules. Under the group-wide method of 
allocation, the district director may allocate the taxes imposed by 
sections 3102 and 3111 in an appropriate manner to a related corporation 
that remunerates an employee through a common paymaster if the common 
paymaster fails to remit the taxes to the Internal Revenue Service. 
Allocation in an appropriate manner varies according to the 
circumstances. It may be based on sales, property, corporate payroll, or 
any other basis that reflects the distribution of the services performed 
by the employee, or a combination of the foregoing bases. To the extent 
practicable, the district director may use the principles of Sec. 1.482-
2(b) in making the allocations.

[[Page 102]]

    (d) Effective date. This section is effective with respect to wages 
paid after December 31, 1978.

[T.D. 7660, 44 FR 75139, Dec. 19, 1979; 45 FR 17986, Mar. 20, 1980]



Sec. 31.3121(v)(2)-1  Treatment of amounts deferred under certain nonqualified deferred compensation plans.

    (a) Timing of wage inclusion--(1) General timing rule for wages. 
Remuneration for employment that constitutes wages within the meaning of 
section 3121(a) generally is taken into account for purposes of the 
Federal Insurance Contributions Act (FICA) taxes imposed under sections 
3101 and 3111 at the time the remuneration is actually or constructively 
paid. See Sec. 31.3121(a)-2(a).
    (2) Special timing rule for an amount deferred under a nonqualified 
deferred compensation plan--(i) In general. To the extent that 
remuneration deferred under a nonqualified deferred compensation plan 
constitutes wages within the meaning of section 3121(a), the 
remuneration is subject to the special timing rule described in this 
paragraph (a)(2). Remuneration is considered deferred under a 
nonqualified deferred compensation plan within the meaning of section 
3121(v)(2) and this section only if it is provided pursuant to a plan 
described in paragraph (b) of this section. The amount deferred under a 
nonqualified deferred compensation plan is determined under paragraph 
(c) of this section.
    (ii) Special timing rule. Except as otherwise provided in this 
section, an amount deferred under a nonqualified deferred compensation 
plan is required to be taken into account as wages for FICA tax purposes 
as of the later of--
    (A) The date on which the services creating the right to that amount 
are performed (within the meaning of paragraph (e)(2) of this section); 
or
    (B) The date on which the right to that amount is no longer subject 
to a substantial risk of forfeiture (within the meaning of paragraph 
(e)(3) of this section).
    (iii) Inclusion in wages only once (nonduplication rule). Once an 
amount deferred under a nonqualified deferred compensation plan is taken 
into account (within the meaning of paragraph (d)(1) of this section), 
then neither the amount taken into account nor the income attributable 
to the amount taken into account (within the meaning of paragraph (d)(2) 
of this section) is treated as wages for FICA tax purposes at any time 
thereafter.
    (iv) Benefits that do not result from a deferral of compensation. If 
a nonqualified deferred compensation plan (within the meaning of 
paragraph (b)(1) of this section) provides both a benefit that results 
from the deferral of compensation (within the meaning of paragraph 
(b)(3) of this section) and a benefit that does not result from the 
deferral of compensation, the benefit that does not result from the 
deferral of compensation is not subject to the special timing rule 
described in this paragraph (a)(2). For example, if a nonqualified 
deferred compensation plan provides retirement benefits which result 
from the deferral of compensation and disability pay (within the meaning 
of paragraph (b)(4)(iv)(C) of this section) which does not result from 
the deferral of compensation, the retirement benefits provided under the 
plan are subject to the special timing rule in this paragraph (a)(2) and 
the disability pay is not.
    (v) Remuneration that does not constitute wages. If remuneration 
under a nonqualified deferred compensation plan does not constitute 
wages within the meaning of section 3121(a), then that remuneration is 
not taken into account as wages for FICA tax purposes under either the 
general timing rule described in paragraph (a)(1) of this section or the 
special timing rule described in this paragraph (a)(2). For example, 
benefits under a death benefit plan described in section 3121(a)(13) do 
not constitute wages for FICA tax purposes. Therefore, these benefits 
are not included as wages under the general timing rule described in 
paragraph (a)(1) of this section or the special timing rule described in 
this paragraph (a)(2), even if the death benefit plan would otherwise be 
considered a nonqualified deferred compensation plan within the meaning 
of paragraph (b)(1) of this section.
    (b) Nonqualified deferred compensation plan--(1) In general. For 
purposes of this section, the term nonqualified deferred compensation 
plan means any

[[Page 103]]

plan or other arrangement, other than a plan described in section 
3121(a)(5), that is established (within the meaning of paragraph (b)(2) 
of this section) by an employer for one or more of its employees, and 
that provides for the deferral of compensation (within the meaning of 
paragraph (b)(3) of this section). A nonqualified deferred compensation 
plan may be adopted unilaterally by the employer or may be negotiated 
among or agreed to by the employer and one or more employees or employee 
representatives. A plan may constitute a nonqualified deferred 
compensation plan under this section without regard to whether the 
deferrals under the plan are made pursuant to an election by the 
employee or whether the amounts deferred are treated as deferred 
compensation for income tax purposes (e.g., whether the amounts are 
subject to the deduction rules of section 404). In addition, a plan may 
constitute a nonqualified deferred compensation plan under this section 
whether or not it is an employee benefit plan under section 3(3) of the 
Employee Retirement Income Security Act of 1974 (ERISA), as amended (29 
U.S.C. 1002(3)). For purposes of this section, except where the context 
indicates otherwise, the term plan includes a plan or other arrangement.
    (2) Plan establishment--(i) Date plan is established. For purposes 
of this section, a plan is established on the latest of the date on 
which it is adopted, the date on which it is effective, and the date on 
which the material terms of the plan are set forth in writing. For 
purposes of this section, a plan will be deemed to be set forth in 
writing if it is set forth in any other form that is approved by the 
Commissioner. The material terms of the plan include the amount (or the 
method or formula for determining the amount) of deferred compensation 
to be provided under the plan and the time when it may or will be 
provided.
    (ii) Plan amendments. In the case of an amendment that increases the 
amount deferred under a nonqualified deferred compensation plan, the 
plan is not considered established with respect to the additional amount 
deferred until the plan, as amended, is established in accordance with 
paragraph (b)(2)(i) of this section.
    (iii) Transition rule for written plan requirement. For purposes of 
this section, an unwritten plan that was adopted and effective before 
March 25, 1996, is treated as established under this section as of the 
later of the date on which it was adopted or became effective, provided 
that the material terms of the plan are set forth in writing before 
January 1, 2000.
    (3) Plan must provide for the deferral of compensation--(i) Deferral 
of compensation defined. A plan provides for the deferral of 
compensation with respect to an employee only if, under the terms of the 
plan and the relevant facts and circumstances, the employee has a 
legally binding right during a calendar year to compensation that has 
not been actually or constructively received and that, pursuant to the 
terms of the plan, is payable to (or on behalf of) the employee in a 
later year. An employee does not have a legally binding right to 
compensation if that compensation may be unilaterally reduced or 
eliminated by the employer after the services creating the right to the 
compensation have been performed. For this purpose, compensation is not 
considered subject to unilateral reduction or elimination merely because 
it may be reduced or eliminated by operation of the objective terms of 
the plan, such as the application of an objective provision creating a 
substantial risk of forfeiture (within the meaning of section 83). 
Similarly, an employee does not fail to have a legally binding right to 
compensation merely because the amount of compensation is determined 
under a formula that provides for benefits to be offset by benefits 
provided under a plan that is qualified under section 401(a), or because 
benefits are reduced due to investment losses or, in a final average pay 
plan, subsequent decreases in compensation.
    (ii) Compensation payable pursuant to the employer's customary 
payment timing arrangement. There is no deferral of compensation (within 
the meaning of this paragraph (b)(3)) merely because compensation is 
paid after the last day

[[Page 104]]

of a calendar year pursuant to the timing arrangement under which the 
employer ordinarily compensates employees for services performed during 
a payroll period described in section 3401(b).
    (iii) Short-term deferrals. If, under a nonqualified deferred 
compensation plan, there is a deferral of compensation (within the 
meaning of this paragraph (b)(3)) that causes an amount to be deferred 
from a calendar year to a date that is not more than a brief period of 
time after the end of that calendar year, then, at the employer's 
option, that amount may be treated as if it were not subject to the 
special timing rule described in paragraph (a)(2) of this section. An 
employer may apply this option only if the employer does so for all 
employees covered by the plan and all substantially similar nonqualified 
deferred compensation plans. For purposes of this paragraph (b)(3)(iii), 
whether compensation is deferred to a date that is not more than a brief 
period of time after the end of a calendar year is determined in 
accordance with Sec. 1.404(b)-1T, Q&A-2, of this chapter.
    (4) Plans, arrangements, and benefits that do not provide for the 
deferral of compensation--(i) In general. Notwithstanding paragraph 
(b)(3)(i) of this section, an amount or benefit described in any of 
paragraphs (b)(4)(ii) through (viii) of this section is not treated as 
resulting from the deferral of compensation for purposes of section 
3121(v)(2) and this section and, thus, is not subject to the special 
timing rule of paragraph (a)(2) of this section.
    (ii) Stock options, stock appreciation rights, and other stock value 
rights. The grant of a stock option, stock appreciation right, or other 
stock value right does not constitute the deferral of compensation for 
purposes of section 3121(v)(2). In addition, amounts received as a 
result of the exercise of a stock option, stock appreciation right, or 
other stock value right do not result from the deferral of compensation 
for purposes of section 3121(v)(2) if such amounts are actually or 
constructively received in the calendar year of the exercise. For 
purposes of this paragraph (b)(4)(ii), a stock value right is a right 
granted to an employee with respect to one or more shares of employer 
stock that, to the extent exercised, entitles the employee to a payment 
for each share of stock equal to the excess, or a percentage of the 
excess, of the value of a share of the employer's stock on the date of 
exercise over a specified price (greater than zero).
    Thus, for example, the term stock value right does not include a 
phantom stock or other arrangement under which an employee is awarded 
the right to receive a fixed payment equal to the value of a specified 
number of shares of employer stock.
    (iii) Restricted property. If an employee receives property from, or 
pursuant to, a plan maintained by an employer, there is no deferral of 
compensation (within the meaning of section 3121(v)(2)) merely because 
the value of the property is not includible in income (under section 83) 
in the year of receipt by reason of the property being nontransferable 
and subject to a substantial risk of forfeiture. However, a plan under 
which an employee obtains a legally binding right to receive property 
(whether or not the property is restricted property) in a future year 
may provide for the deferral of compensation within the meaning of 
paragraph (b)(3) of this section and, accordingly, may constitute a 
nonqualified deferred compensation plan, even though benefits under the 
plan are or may be paid in the form of property.
    (iv) Certain welfare benefits--(A) In general. Vacation benefits, 
sick leave, compensatory time, disability pay, severance pay, and death 
benefits do not result from the deferral of compensation for purposes of 
section 3121(v)(2), even if those benefits constitute wages within the 
meaning of section 3121(a).
    (B) Severance pay. Benefits that are provided under a severance pay 
arrangement (within the meaning of section 3(2)(B)(i) of ERISA) that 
satisfies the conditions in 29 CFR 2510.3-2(b)(1)(i) through (iii) are 
considered severance pay for purposes of this paragraph (b)(4)(iv). If 
benefits are provided under a severance pay arrangement (within the 
meaning of section 3(2)(B)(i) of ERISA), but do not satisfy one or more 
of the conditions in 29 CFR 2510.3-2(b)(1)(i) through (iii), then 
whether those benefits are severance

[[Page 105]]

pay within the meaning of this paragraph (b)(4)(iv) depends upon the 
relevant facts and circumstances. For this purpose, relevant facts and 
circumstances include whether the benefits are provided over a short 
period of time commencing immediately after (or shortly after) 
termination of employment or for a substantial period of time following 
termination of employment and whether the benefits are provided after 
any termination or only after retirement (or another specified type of 
termination). Benefits provided under a severance pay arrangement 
(within the meaning of section 3(2)(B)(i) of ERISA) are in all cases 
severance pay within the meaning of this paragraph (b)(4)(iv) if the 
benefits payable under the plan upon an employee's termination of 
employment are payable only if that termination is involuntary.
    (C) Death benefits and disability pay--(1) General definition. 
Payments made under a nonqualified deferred compensation plan in the 
event of death are death benefits within the meaning of this paragraph 
(b)(4)(iv), but only to the extent the total benefits payable under the 
plan exceed the lifetime benefits payable under the plan. Similarly, 
payments made under a nonqualified deferred compensation plan in the 
event of disability are disability pay within the meaning of this 
paragraph (b)(4)(iv), but only to the extent the disability benefits 
payable under the plan exceed the lifetime benefits payable under the 
plan. Accordingly, any benefits that a nonqualified deferred 
compensation plan provides in the event of death or disability that are 
associated with an amount deferred under this section are disregarded in 
applying this section to the extent the benefits payable under the plan 
in the event of death or in the event of disability have a value in 
excess of the lifetime benefits payable under the plan.
    (2) Total benefits payable defined. For purposes of paragraph 
(b)(4)(iv)(C)(1) of this section, the term total benefits payable under 
a plan means the present value of the total benefits payable to or on 
behalf of the employee (including benefits payable in the event of the 
employee's death) under the plan, disregarding any benefits that are 
payable only in the event of disability and determined separately with 
respect to each form of distribution or other election that may apply 
with respect to the employee.
    (3) Disability benefits payable defined. For purposes of paragraph 
(b)(4)(iv)(C)(1) of this section, the term disability benefits payable 
under a plan means the present value of the benefits payable to or on 
behalf of the employee under the plan, including benefits payable in the 
event of the employee's disability but excluding death benefits within 
the meaning of this paragraph (b)(4)(iv).
    (4) Lifetime benefits payable defined. For purposes of paragraph 
(b)(4)(iv)(C)(1) of this section, the term lifetime benefits payable 
under a plan means the present value of the benefits that could be 
payable to the employee under the plan during the employee's lifetime, 
determined under the plan's optional form of distribution or other 
election that is or was available to the employee at any time with 
respect to the amount deferred and that provides the largest present 
value to the employee during the employee's lifetime of any such form or 
election so available.
    (5) Rules of application. For purposes of determining present value 
under this paragraph (b)(4)(iv)(C), present value is determined as of 
the time immediately preceding the time the amount deferred under a 
nonqualified deferred compensation plan is required to be taken into 
account under paragraph (e) of this section, using actuarial assumptions 
that are reasonable as of that date but taking into consideration only 
benefits that result from the deferral of compensation, as determined 
under this paragraph (b), and benefits payable in the event of death or 
disability. In addition, for purposes of paragraph (b)(4)(iv)(C)(4) of 
this section, present value must be determined without any discount for 
the probability that the employee may die before benefit payments 
commence and without regard to any benefits payable solely in the event 
of disability.
    (v) Certain benefits provided in connection with impending 
termination--(A) In

[[Page 106]]

general. Benefits provided in connection with impending termination of 
employment under paragraph (b)(4)(v)(B) or (C) of this section do not 
result from the deferral of compensation within the meaning of section 
3121(v)(2).
    (B) Window benefits--(1) In general. For purposes of this paragraph 
(b)(4)(v), except as provided in paragraph (b)(4)(v)(B)(3) of this 
section, a window benefit is provided in connection with impending 
termination of employment. For this purpose, a window benefit is an 
early retirement benefit, retirement-type subsidy, social security 
supplement, or other form of benefit made available by an employer for a 
limited period of time (no greater than one year) to employees who 
terminate employment during that period or to employees who terminate 
employment during that period under specified circumstances.
    (2) Special rule for recurring window benefits. A benefit will not 
be considered a window benefit if an employer establishes a pattern of 
repeatedly providing for similar benefits in similar situations for 
substantially consecutive, limited periods of time. Whether the 
recurrence of these benefits constitutes a pattern of amendments is 
determined based on the facts and circumstances. Although no one factor 
is determinative, relevant factors include whether the benefits are on 
account of a specific business event or condition, the degree to which 
the benefits relate to the event or condition, and whether the event or 
condition is temporary or discrete or is a permanent aspect of the 
employer's business.
    (3) Transition rule for window benefits. In the case of a window 
benefit that is made available for a period of time that begins before 
January 1, 2000, an employer may choose to treat the window benefit as a 
benefit that results from the deferral of compensation if the sole 
reason the window benefit would otherwise fail to be provided pursuant 
to a nonqualified deferred compensation plan is the application of 
paragraph (b)(4)(v)(B)(1) of this section.
    (C) Termination within 12 months of establishment of a benefit or 
plan. For purposes of this paragraph (b)(4)(v), a benefit is provided in 
connection with impending termination of employment, without regard to 
whether it constitutes a window benefit, if--
    (1) An employee's termination of employment occurs within 12 months 
of the establishment of the plan (or amendment) providing the benefit; 
and
    (2) The facts and circumstances indicate that the plan (or 
amendment) is established in contemplation of the employee's impending 
termination of employment.
    (vi) Benefits established after termination. Benefits established 
with respect to an employee after the employee's termination of 
employment do not result from a deferral of compensation within the 
meaning of section 3121(v)(2). However, cost-of-living adjustments on 
benefit payments under a nonqualified deferred compensation plan (within 
the meaning of paragraph (b) of this section) shall not be considered 
benefits established after the employee's termination of employment for 
purposes of this paragraph (b)(4)(vi) merely because the employee does 
not obtain the right to the adjustment until after the employee's 
termination of employment. For purposes of the preceding sentence, cost-
of-living adjustments are payments that satisfy conditions similar to 
those of 29 CFR 2510.3-2(g)(1)(ii) and (iii).
    (vii) Excess parachute payments. An excess parachute payment (as 
defined in section 280G(b)) under an agreement entered into or renewed 
after June 14, 1984, in taxable years ending after such date, does not 
result from the deferral of compensation within the meaning of section 
3121(v)(2). For this purpose, any contract entered into before June 15, 
1984, that is amended after June 14, 1984, in any relevant significant 
aspect, is treated as a contract entered into after June 14, 1984.
    (viii) Compensation for current services. A plan does not provide 
for the deferral of compensation within the meaning of section 
3121(v)(2) if, based on the relevant facts and circumstances, the 
compensation is paid for current services.
    (5) Examples. This paragraph (b) is illustrated by the following 
examples:

    Example 1: (i) In December of 2001, Employer L tells Employee A 
that, if specified goals are satisfied for 2002, Employee A will

[[Page 107]]

receive a bonus on July 1, 2003, equal to a specified percentage of 2002 
compensation. Because Employee A meets the specified goals, Employer L 
pays the bonus to Employee A on July 1, 2003, consistent with its oral 
commitment.
    (ii) This arrangement is not a nonqualified deferred compensation 
plan under this section because its terms were not set forth in writing 
and, therefore, it was not established in accordance with paragraph 
(b)(2) of this section.
    Example 2: (i) In 2004, Employer M establishes a compensation 
arrangement for Employee B under which Employer M agrees to pay Employee 
B a specified amount based on a percentage of his salary for 2004. The 
amount due is to be paid out of the general assets of Employer M and is 
payable in 2008.
    (ii) Employee B has a legally binding right during 2004 to an amount 
of compensation that has not been actually or constructively received 
and that, pursuant to the terms of the arrangement, is payable in a 
later year. Therefore, the arrangement provides for the deferral of 
compensation.
    Example 3: (i) Employer N establishes a nonqualified deferred 
compensation plan (within the meaning of paragraph (b)(1) of this 
section) for Employee C in 1984. The plan is amended on January 1, 2001, 
to increase benefits, and the amendment provides that the increase in 
benefits is on account of Employee C's performance of services for 
Employer N from 1985 through 2000.
    (ii) The additional benefits that resulted from the plan amendment 
cannot be taken into account as amounts deferred for 1985 through 2000, 
even though the plan was established before then. Pursuant to paragraphs 
(b)(2)(ii) and (e)(1) of this section, the additional benefits cannot be 
taken into account before the latest of the date on which the amendment 
is adopted, the date on which the amendment is effective, or the date on 
which the material terms of the plan, as amended, are set forth in 
writing.
    Example 4: (i) In 2002, Employer O, a state or local government, 
establishes a plan for certain employees that provides for the deferral 
of compensation and that is subject to section 457(a).
    (ii) Paragraph (b)(1) of this section provides that nonqualified 
deferred compensation plan means any plan that is established by an 
employer and that provides for the deferral of compensation, other than 
a plan described in section 3121(a)(5). Section 3121(a)(5) lists, among 
other plans, an exempt governmental deferred compensation plan as 
defined in section 3121(v)(3). Under section 3121(v)(3)(A), this 
definition does not include any plan to which section 457(a) applies. 
Thus, the plan established by Employer O is not an exempt governmental 
deferred compensation plan described in section 3121(v)(3) and, 
consequently, is not a plan described in section 3121(a)(5). 
Accordingly, the plan is a nonqualified deferred compensation plan 
within the meaning of section 3121(v)(2) and paragraph (b)(1) of this 
section.
    (iii) However, the general timing rule of paragraph (a)(1) of this 
section and the special timing rule of paragraph (a)(2) of this section 
apply only to remuneration for employment that constitutes wages. Under 
section 3121(b)(7), certain service performed in the employ of a state, 
or any political subdivision of a state, is not employment. Thus, even 
though the plan is a nonqualified deferred compensation plan, the extent 
to which section 3121(v)(2) applies to a participating employee will 
depend on whether or not the service performed for Employer O is 
excluded from the definition of employment under section 3121(b)(7).
    Example 5: (i) In 2000, Employer P establishes a plan that provides 
for bonuses to be paid to employees based on an objective formula that 
takes into account the employees' performance for the year. Employer P 
does not have the discretion to reduce the amount of any employee's 
bonus after the end of the year. The bonus is not actually calculated 
until March 1 of the following year, and is paid on March 15 of that 
following year.
    (ii) The plan provides for the deferral of compensation because the 
employees have a legally binding right, as of the last day of a calendar 
year, to an amount of compensation that has not been actually or 
constructively received and, pursuant to the terms of the plan, that 
compensation is payable in a later year. However, because the bonuses 
under the plan are paid within a brief period of time after the end of 
the calendar year from which they are deferred, Employer P may choose, 
pursuant to paragraph (b)(3)(iii) of this section, to treat all the 
bonuses as if they are not subject to the special timing rule of 
paragraph (a)(2) of this section.
    (iii) If the employer uses the special timing rule, the amount 
deferred would be taken into account as wages on December 31, 2000. If 
the employer chooses not to use the special timing rule, the amount of 
the bonus is wages on the date it is actually or constructively paid, 
March 15, 2000.
    Example 6: (i) Employer Q establishes a plan under which bonuses 
based on performance in one year may be paid on February 1 of the 
following year at the discretion of the board of directors. The board of 
directors meets in January of each year to determine the amount, if any, 
of the bonuses to be paid based on performance in the prior year.
    (ii) Because an employee does not have a legally binding right to 
any bonus until January of the year in which the bonus is paid, any 
bonus paid under the plan in that year is not deferred from the 
preceding calendar year, and the plan does not provide for the deferral 
of compensation within the meaning of paragraph (b)(3)(i) of this 
section.

[[Page 108]]

    Example 7: (i) Employer R maintains a plan for employees that 
provides nonqualified stock options described in Sec. 1.83-7(a) of this 
chapter. Under the plan, employees are granted in 2001 the option to 
acquire shares of employer stock at the fair market value of the shares 
on the date of grant ($50 per share). The options can be exercised at 
any time from the date of grant through 2010. The options do not have a 
readily ascertainable fair market value for purposes of section 83 at 
the date of grant, and shares are issued upon the exercise of the 
options without being subject to a substantial risk of forfeiture within 
the meaning of section 83. In 2005, when the fair market value of a 
share of employer stock is $80, Employee D exercises an option to 
acquire 1,000 shares.
    (ii) Under paragraph (b)(4)(ii) of this section, neither the grant 
of a stock option nor amounts received currently as a result of the 
exercise of a stock option result from the deferral of compensation for 
purposes of section 3121(v)(2). Thus, under the general timing rule of 
paragraph (a)(1) of this section, the $30,000 spread between the amount 
paid for the shares ($50,000) and the fair market value of the shares on 
the date of exercise ($80,000) is taken into account as wages for FICA 
tax purposes in the year of exercise.
    (iii) If the options had been granted at $45 per share, $5 per share 
below the fair market value on date of grant, the $35,000 spread between 
the amount paid for the shares ($45,000) and the fair market value of 
the shares on the date of exercise ($80,000) would similarly be taken 
into account as wages for FICA tax purposes in the year of exercise.
    Example 8: (i) Employer T establishes a phantom stock plan for 
certain employees. Under the plan, an employee is credited on the last 
day of each calendar year with a dollar amount equal to the fair market 
value of 1,000 shares of employer stock. Upon termination of employment 
for any reason, each employee is entitled to receive the value on the 
date of termination, in cash or employer stock, of the shares with which 
he or she has been credited.
    (ii) Because compensation to which the employee has a legally 
binding right as of the last day of one year is paid in a subsequent 
year, the phantom stock plan provides for the deferral of compensation. 
The phantom stock plan does not provide stock value rights within the 
meaning of paragraph (b)(4)(ii) of this section because it provides for 
awards equal in value to the full fair market value of a specified 
number of shares of Employer T stock, rather than the excess of that 
fair market value over a specified price.
    Example 9: (i) Employer U establishes a severance pay arrangement 
(within the meaning of section 3(2)(b)(i) of ERISA) which provides for 
payments solely upon an employee's death, disability, or dismissal from 
employment. The amount of the payments to an employee is based on the 
length of continuous active service with Employer U at the time of 
dismissal, and is paid in monthly installments over a period of three 
years.
    (ii) Because benefits payable under the plan upon termination of 
employment are payable only upon an employee's involuntary termination, 
the plan is a severance pay plan within the meaning of paragraph 
(b)(4)(iv)(B) of this section. Thus, the benefits are not treated as 
resulting from the deferral of compensation for purposes of section 
3121(v)(2).
    Example 10: (i) Employer V establishes a nonqualified deferred 
compensation plan under which employees will receive benefit payments 
commencing at age 65 as a life annuity or in one of several actuarially 
equivalent annuity forms. If an employee dies before benefit payments 
commence under the plan, a benefit is payable to the employee's 
designated beneficiary in a single lump sum payment equal to the present 
value of the employee's annuity benefit. This benefit (sometimes called 
a full reserve death benefit) is calculated using the applicable 
interest rate specified in section 417(e) and, for the period after age 
65, the applicable mortality table specified in section 417(e), both of 
which are reasonable actuarial assumptions. During 2002, Employee E 
obtains a legally binding right to an annuity benefit under the plan, 
payable at age 65. This annuity benefit has a present value of $10,000 
at the end of 2002, determined using the same assumptions as are used 
under the plan to calculate the full reserve death benefit.
    (ii) The present value, at the end of 2002, of the total benefits 
payable to or on behalf of Employee E (i.e., the sum of the present 
value of the annuity benefit commencing at age 65, and the present value 
of the full reserve death benefit, with both determined using the 
actuarial assumptions described in paragraph (i) of this Example 10, 
except also taking into account the probability of death prior to age 
65) is $10,000. This present value does not exceed the present value of 
the annuity benefits that could be payable to Employee E under the plan 
during Employee E's lifetime determined without a discount for the 
possibility that Employee E might die before age 65 (also $10,000). 
Thus, the benefit payable in the event of Employee E's death is not a 
death benefit for purposes of paragraph (b)(4)(iv) of this section.
    (iii) The same result would apply in the case of a plan that bases 
benefits on an interest bearing account balance and pays the account 
balance at termination of employment or death (because the sum of the 
deferred benefits payable in the future if the employee terminates 
employment before death with a discount for the probability of death 
before that date plus the present value of the

[[Page 109]]

benefit payable in the event of death necessarily equals the present 
value of the deferred benefits payable with no discount for the 
probability of death).
    Example 11: (i) The facts are the same as in Example 10, except 
that, in lieu of the full reserve death benefit, the plan provides a 
monthly life annuity benefit to an employee's spouse in the event of the 
employee's death before benefit payments commence equal to 100 percent 
of the monthly annuity that would be payable to the employee at age 65 
under the life annuity form. Employee E is age 63 and has a spouse who 
is age 51. The sum of the present value of Employee E's annuity benefit 
commencing at age 65 determined with a discount for the possibility that 
Employee E might die before age 65 and the present value of the 100 
percent annuity death benefit for Employee E's spouse exceeds $10,000.
    (ii) The amount deferred for 2002 is $10,000 (because the 100 
percent annuity death benefit for Employee E's spouse is disregarded to 
the extent that the total benefits payable to or on behalf of Employee E 
exceeds the present value of the annuity benefits that could be payable 
to Employee E under the plan during Employee E's lifetime without a 
discount for the probability of Employee E's death before benefit 
payments commence).
    Example 12: (i) On January 1, 2001, Employer W establishes a plan 
that covers only Employee F, who owns a significant portion of the 
business and who has 30 years of service as of that date. The plan 
provides that, upon Employee F's termination of employment at any time, 
he will receive $200,000 per year for each of the immediately succeeding 
five years. Employee F terminates employment on March 1, 2001.
    (ii) Because Employee F terminates employment within 12 months of 
the establishment of the plan and the facts and circumstances set forth 
above indicate that the plan was established in contemplation of 
impending termination of employment, the plan is considered to be 
established in connection with impending termination within the meaning 
of paragraph (b)(4)(v) of this section. Therefore, the benefits provided 
under the plan are not treated as resulting from the deferral of 
compensation for purposes of section 3121(v)(2).
    Example 13: (i) Employer X establishes a plan on January 1, 2004, to 
supplement the qualified retirement benefits of recently hired 55-year 
old Employee G, who forfeited retirement benefits with her former 
employer in order to accept employment with Employer X. The plan 
provides that Employee G will receive $50,000 per year for life 
beginning at age 65, regardless of when she terminates employment. On 
April 15, 2004, Employee G unexpectedly terminates employment.
    (ii) The facts and circumstances indicate that the plan was not 
established in contemplation of impending termination. Thus, even though 
Employee G terminated employment within 12 months of the establishment 
of the plan, the plan is not considered to be established in connection 
with impending termination within the meaning of paragraph (b)(4)(v) of 
this section. Benefits provided under the plan are treated as resulting 
from the deferral of compensation for purposes of section 3121(v)(2).
    Example 14: (i) Employer Y establishes a plan to provide 
supplemental retirement benefits to a group of management employees who 
are at various stages of their careers. All employees covered by the 
plan are subject to the same benefit formula. Employee H is planning to 
(and actually does) retire within six months of the date on which the 
plan is established.
    (ii) Even though Employee H terminated employment within 12 months 
of the establishment of the plan, the plan is not considered to have 
been established in connection with Employee H's impending termination 
within the meaning of paragraph (b)(4)(v) of this section because the 
facts and circumstances indicate otherwise.
    Example 15: (i) Employee J owns 100 percent of Employer Z, a 
corporation that provides consulting services. Substantially all of 
Employer Z's revenue is derived as a result of the services performed by 
Employee J. In each of 2001, 2002, and 2003, Employer Z has gross 
receipts of $180,000 and expenses (other than salary) of $80,000. In 
each of 2001 and 2002, Employer Z pays Employee J a salary of $100,000 
for services performed in each of those years. On December 31, 2002, 
Employer Z establishes a plan to pay Employee J $80,000 in 2003. The 
plan recites that the payment is in recognition of prior services. In 
2003, Employer Z pays Employee J a salary of $20,000 and the $80,000 due 
under the plan.
    (ii) The facts and circumstances described above indicate that the 
$80,000 paid pursuant to the plan is based on services performed by 
Employee J in 2003 and, thus, is paid for current services within the 
meaning of paragraph (b)(4)(viii) of this section. Accordingly, the plan 
does not provide for the deferral of compensation within the meaning of 
section 3121(v)(2), and the $80,000 payment is included as wages in 2003 
under the general timing rule of paragraph (a)(1) of this section.

    (c) Determination of the amount deferred--(1) Account balance 
plans--(i) General rule. For purposes of this section, if benefits for 
an employee are provided under a nonqualified deferred compensation plan 
that is an account balance plan, the amount deferred for a period equals 
the principal amount credited to the employee's account for

[[Page 110]]

the period, increased or decreased by any income attributable to the 
principal amount through the date the principal amount is required to be 
taken into account as wages under paragraph (e) of this section.
    (ii) Definitions--(A) Account balance plan. For purposes of this 
section, an account balance plan is a nonqualified deferred compensation 
plan under the terms of which a principal amount (or amounts) is 
credited to an individual account for an employee, the income 
attributable to each principal amount is credited (or debited) to the 
individual account, and the benefits payable to the employee are based 
solely on the balance credited to the individual account.
    (B) Income. For purposes of this section, income means any increase 
or decrease in the amount credited to an employee's account that is 
attributable to amounts previously credited to the employee's account, 
regardless of whether the plan denominates that increase or decrease as 
income.
    (iii) Additional rules--(A) Commingled accounts. A plan does not 
fail to be an account balance plan merely because, under the terms of 
the plan, benefits payable to an employee are based solely on a 
specified percentage of an account maintained for all (or a portion of) 
plan participants under which principal amounts and income are credited 
(or debited) to such account.
    (B) Bifurcation permitted. An employer may treat a portion of a 
nonqualified deferred compensation plan as a separate account balance 
plan if that portion satisfies the requirements of this paragraph (c)(1) 
and the amount payable to employees under that portion is determined 
independently of the amount payable under the other portion of the plan.
    (C) Actuarial equivalents. A plan does not fail to be an account 
balance plan merely because the plan permits employees to elect to 
receive their benefits under the plan in a form of benefit other than 
payment of the account balance, provided the amount of benefit payable 
in that other form is actuarially equivalent to payment of the account 
balance using actuarial assumptions that are reasonable. Conversely, a 
plan is not an account balance plan if it provides an optional form of 
benefit that is not actuarially equivalent to the account balance using 
actuarial assumptions that are reasonable. For this purpose, the 
determination of whether forms are actuarially equivalent using 
actuarial assumptions that are reasonable is determined under the rules 
applicable to nonaccount balance plans under paragraph (c)(2)(iii) of 
this section.
    (2) Nonaccount balance plans--(i) General rule. For purposes of this 
section, if benefits for an employee are provided under a nonqualified 
deferred compensation plan that is not an account balance plan (a 
nonaccount balance plan), the amount deferred for a period equals the 
present value of the additional future payment or payments to which the 
employee has obtained a legally binding right (as described in paragraph 
(b)(3)(i) of this section) under the plan during that period.
    (ii) Present value defined. For purposes of this section, present 
value means the value as of a specified date of an amount or series of 
amounts due thereafter, where each amount is multiplied by the 
probability that the condition or conditions on which payment of the 
amount is contingent will be satisfied, and is discounted according to 
an assumed rate of interest to reflect the time value of money. For 
purposes of this section, the present value must be determined as of the 
date the amount deferred is required to be taken into account as wages 
under paragraph (e) of this section using actuarial assumptions and 
methods that are reasonable as of that date. For this purpose, a 
discount for the probability that an employee will die before 
commencement of benefit payments is permitted, but only to the extent 
that benefits will be forfeited upon death. In addition, the present 
value cannot be discounted for the probability that payments will not be 
made (or will be reduced) because of the unfunded status of the plan, 
the risk associated with any deemed or actual investment of amounts 
deferred under the plan, the risk that the employer, the trustee, or 
another party will be unwilling or unable to pay, the possibility of 
future plan amendments, the possibility of a future change in the law, 
or similar

[[Page 111]]

risks or contingencies. Nor is the present value affected by the 
possibility that some of the payments due under the plan will be 
eligible for one of the exclusions from wages in section 3121(a).
    (iii) Treatment of actuarially equivalent benefits--(A) In general. 
In the case of a nonaccount balance plan that permits employees to 
receive their benefits in more than one form or commencing at more than 
one date, the amount deferred is determined by assuming that payments 
are made in the normal form of benefit commencing at normal commencement 
date if the requirements of paragraph (c)(2)(iii)(B) of this section are 
satisfied. Accordingly, in the case of a nonaccount balance plan that 
permits employees to receive their benefits in more than one form or 
commencing at more than one date, unless the requirements of paragraph 
(c)(2)(iii)(B) of this section are satisfied, the amount deferred is 
treated as not reasonably ascertainable under the rules of paragraph 
(e)(4)(i)(B) of this section until a form of benefit and a time of 
commencement are selected.
    (B) Use of normal form commencing at normal commencement date. The 
requirements of this paragraph (c)(2)(iii)(B) are satisfied by a 
nonaccount balance plan if the plan has a single normal form of benefit 
commencing at normal commencement date for the amount deferred and each 
other optional form is actuarially equivalent to the normal form of 
benefit commencing at normal commencement date using actuarial 
assumptions that are reasonable. For this purpose, each form of benefit 
for payment of the amount deferred commencing at a date is a separate 
optional form. For purposes of this paragraph (c)(2)(iii)(B), each 
optional form is actuarially equivalent to the normal form of benefit 
commencing at normal commencement date only if the terms of the plan in 
effect when the amount is deferred provide for every optional form to be 
actuarially equivalent and further provide for actuarial assumptions to 
determine actuarial equivalency that will be reasonable at the time the 
optional form is selected, without regard to whether market interest 
rates are higher or lower at the time the optional form is selected than 
at the time the amount is deferred. Thus, a plan that provides for every 
optional form to be actuarially equivalent satisfies this paragraph 
(c)(2)(iii)(B) if it provides for actuarial equivalence to be 
determined--
    (1) When an optional form is selected or when benefit payments under 
the optional form commence, based on assumptions that are reasonable 
then;
    (2) Based on an index that reflects market rates of interest from 
time to time (for example, the plan specifies that all benefits will be 
actuarially equivalent using the applicable interest rate and applicable 
mortality table specified in section 417(e)); or
    (3) Based on actuarial assumptions specified in the plan and 
provides for those assumptions to be revised to be reasonable 
assumptions if they cease to be reasonable assumptions.
    (C) Fixed mortality assumptions permitted. A plan does not fail to 
satisfy paragraph (c)(2)(iii)(B) of this section merely because the plan 
specifies a fixed mortality assumption that is reasonable at the time 
the amount is deferred, even if that assumption is not reasonable at the 
time the optional form is selected. (But see paragraph (c)(2)(iii)(E) of 
this section for additional rules that apply if the mortality assumption 
is not reasonable at the time the optional form is selected.)
    (D) Normal form of benefit commencing at normal commencement date 
defined. For purposes of this paragraph (c)(2)(iii), the normal form of 
benefit commencing at normal commencement date under the plan is the 
form, and date of commencement, under which the payments due to the 
employee under the plan are expressed, prior to adjustments for form or 
timing of commencement of payments.
    (E) Rule applicable if actuarial assumptions cease to be reasonable. 
If the terms of the plan in effect when an amount is deferred provide 
for actuarial assumptions to determine actuarial equivalency that will 
be reasonable at the time the optional form is selected or payments 
commence as provided in paragraph (c)(2)(iii)(B) of this section, but, 
at that time, the actuarial assumptions used under the plan are not 
reasonable, the employee will be treated as obtaining a legally binding 
right

[[Page 112]]

at that time (or, if earlier, at the date on which the plan is amended 
to provide actuarial assumptions that are not reasonable) to any 
additional benefits that result from the use of an unreasonable 
actuarial assumption. This might occur, for example, if the plan 
specifies that the actuarial assumptions will be reasonable assumptions 
to be set at the time the optional form is selected and the assumptions 
used are in fact not reasonable at that time.
    (3) Separate determination for each period. The amount deferred 
under this paragraph (c) is determined separately for each period for 
which there is an amount deferred under the plan. In addition, 
paragraphs (d) and (e) of this section are applied separately with 
respect to the amount deferred for each such period. Thus, for example, 
the fraction described in paragraph (d)(1)(ii)(B) of this section and 
the amount of the true-up at the resolution date described in paragraph 
(e)(4)(ii)(B) of this section are determined separately with respect to 
each amount deferred. See paragraph (e)(4)(ii)(D) of this section for 
special rules for allocating amounts deferred over more than one year.
    (4) Examples. This paragraph (c) is illustrated by the following 
examples. (The examples illustrate the rules in this paragraph (c) and 
include various interest rate and mortality table assumptions, including 
the applicable section 417(e) mortality table, the GAM 83 (male) 
mortality table, and UP-84 mortality table. These tables can be obtained 
from the Society of Actuaries at its internet site at http://
www.soa.org.) The examples are as follows:

    Example 1: (i) Employer M establishes a nonqualified deferred 
compensation plan for Employee A. Under the plan, 10 percent of annual 
compensation is credited on behalf of Employee A on December 31 of each 
year. In addition, a reasonable rate of interest is credited quarterly 
on the balance credited to Employee A as of the last day of the 
preceding quarter. All amounts credited under the plan are 100 percent 
vested and the benefits payable to Employee A are based solely on the 
balance credited to Employee A's account.
    (ii) The plan is an account balance plan. Thus, pursuant to 
paragraph (c)(1) of this section, the amount deferred for a calendar 
year is equal to 10 percent of annual compensation.
    Example 2: (i) Employer N establishes a nonqualified deferred 
compensation plan for Employee B. Under the plan, 2.5 percent of annual 
compensation is credited quarterly on behalf of Employee B. In addition, 
a reasonable rate of interest is credited quarterly on the balance 
credited to Employee B's account as of the last day of the preceding 
quarter. All amounts credited under the plan are 100 percent vested, and 
the benefits payable to Employee B are based solely on the balance 
credited to Employee B's account. As permitted by paragraph (e)(5) of 
this section, any amount deferred under the plan for the calendar year 
is taken into account as wages on the last day of the year.
    (ii) The plan is an account balance plan. Thus, pursuant to 
paragraph (c)(1) of this section, the amount deferred for a calendar 
year equals 10 percent of annual compensation (i.e., the sum of the 
principal amounts credited to Employee B's account for the year) plus 
the interest credited with respect to that 10 percent principal amount 
through the last day of the calendar year. If Employer N had not chosen 
to apply paragraph (e)(5) of this section and, thus, had taken into 
account 2.5 percent of compensation quarterly, the interest credited 
with respect to those quarterly amounts would not have been treated as 
part of the amount deferred for the year.
    Example 3: (i) Employer O establishes a nonqualified deferred 
compensation plan for a group of five employees. Under the plan, a 
specified sum is credited to an account for the benefit of the group of 
employees on July 31 of each year. Income on the balance of the account 
is credited annually at a rate that is reasonable for each year. The 
benefit payable to an employee is equal to one-fifth of the account 
balance and is payable, at the employee's option, in a lump sum or in 10 
annual installments that reflect income on the balance.
    (ii) The plan is an account balance plan notwithstanding the fact 
that the employee's benefit is equal to a specified percentage of an 
account maintained for a group of employees.
    Example 4: (i) The facts are the same as in Example 3, except that 
the plan also permits an employee to elect a life annuity that is 
actuarially equivalent to the account balance based on the applicable 
interest rate and applicable mortality table specified in section 417(e) 
at the time the benefit is elected by the employee.
    (ii) Under paragraphs (c)(1)(iii)(C) and (c)(2)(iii) of this 
section, the plan does not fail to be an account balance plan merely 
because the plan permits employees to elect to receive their benefits 
under the plan in a form that is actuarially equivalent to payment of 
the account balance using actuarial

[[Page 113]]

assumptions that are reasonable at the time the form is selected.
    Example 5: (i) Employer P establishes a nonqualified deferred 
compensation plan for a group of employees. Under the plan, each 
participating employee has a fully vested right to receive a life 
annuity, payable monthly beginning at age 65, equal to the product of 2 
percent for each year of service and the employee's highest average 
annual compensation for any 3-year period. The plan also provides that, 
if an employee dies before age 65, the present value of the future 
payments will be paid to his or her beneficiary. As permitted under 
paragraph (e)(5) of this section, any amount deferred under the plan for 
a calendar year is taken into account as FICA wages as of the last day 
of the year. As of December 31, 2002, Employee C is age 60, has 25 years 
of service, and high 3-year average compensation of $100,000 (the 
average for the years 2000 through 2002). As of December 31, 2003, 
Employee C is age 61, has 26 years of service, and has high 3-year 
average compensation of $104,000. As of December 31, 2004, Employee C is 
age 62, has 27 years of service, and has high 3-year average 
compensation of $105,000. The assumptions that Employer P uses to 
determine the amount deferred for 2003 (a 7 percent interest rate and, 
for the period after commencement of benefit payments, the GAM 83 (male) 
mortality table) and for 2004 (a 7.5 percent interest rate and, for the 
period after commencement of benefit payments, the GAM 83 (male) 
mortality table) are assumed, solely for purposes of this example, to be 
reasonable actuarial assumptions.
    (ii) As of December 31, 2002, Employee C has a legally binding right 
to receive lifetime payments of $50,000 (2 percent  x  25 years  x  
$100,000) per year. As of December 31, 2003, Employee C has a legally 
binding right to receive lifetime payments of $54,080 (2 percent  x  26 
years  x  $104,000) per year. Thus, during 2003, Employee C has earned a 
legally binding right to additional lifetime payments of $4,080 
($54,080-$50,000) per year beginning at age 65. The amount deferred for 
2003 is the present value, as of December 31, 2003, of these additional 
payments, which is $28,767 ($4,080  x  the present value factor for a 
deferred annuity payable at age 65, using the specified actuarial 
assumptions for 2003). Similarly, during 2004, Employee C has earned a 
legally binding right to additional lifetime payments of $2,620 (2 
percent  x  27 years  x  $105,000, minus $54,080) per year beginning at 
age 65. The amount deferred for 2004 is the present value, as of 
December 31, 2004, of these additional payments, which is $18,845 
($2,620  x  the present value factor for a deferred annuity payable at 
age 65, using the specified actuarial assumptions for 2004).
    Example 6: (i) Employer Q establishes a nonqualified deferred 
compensation plan for Employee D on January 1, 2001, when Employee D is 
age 63. During 2001, Employee D obtains a fully vested right to receive 
a life annuity under the nonqualified deferred compensation plan equal 
to the excess of $200,000 over the life annuity benefits payable to 
Employee D under a qualified defined benefit pension plan sponsored by 
Employer Q. The life annuity benefit payable annually under the 
qualified plan is the lesser of $200,000 and the section 415(b)(1)(A) 
limitation in effect for the year, where the section 415(b)(1)(A) 
limitation is automatically adjusted to reflect changes in the cost of 
living. Benefits under both the qualified and nonqualified plan are 
payable monthly beginning at age 65. For purposes of this example, the 
section 415(b)(1)(A) limit for 2001 is assumed to be $140,000. The 
nonqualified plan provides no benefits in the event Employee D dies 
prior to commencement of benefit payments. As permitted under paragraph 
(e)(5) of this section, any amount deferred under the plan for a 
calendar year is taken into account as FICA wages as of the last day of 
the year. The assumptions that Employer Q uses to determine the amount 
deferred for 2001 (a 7 percent interest rate, a 3 percent increase in 
the cost of living and the GAM 83 (male) mortality table) are assumed, 
solely for purposes of this example, to be reasonable actuarial 
assumptions. As of December 31, 2001, Employee D has a legally binding 
right to receive lifetime payments as set forth in the following table:

----------------------------------------------------------------------------------------------------------------
                                                                                      Assumed
                                                                                  qualified plan    Net annual
                              Year                                 Annual gross   annual payment   payment under
                                                                      amount      (based on cost   nonqualified
                                                                                    of  living)        plan
----------------------------------------------------------------------------------------------------------------
2003............................................................        $200,000        $145,000         $55,000
2004............................................................         200,000         150,000          50,000
2005............................................................         200,000         155,000          45,000
2006............................................................         200,000         160,000          40,000
2007............................................................         200,000         165,000          35,000
2008............................................................         200,000         170,000          30,000
2009............................................................         200,000         175,000          25,000
2010............................................................         200,000         180,000          20,000
2011............................................................         200,000         185,000          15,000
2012............................................................         200,000         190,000          10,000
2013............................................................         200,000         195,000           5,000

[[Page 114]]

 
2014 and thereafter.............................................         200,000      205,000 or               0
                                                                                         greater
----------------------------------------------------------------------------------------------------------------

    (ii) The amount deferred for 2001 is the present value, as of 
December 31, 2001, of the net lifetime payments under the nonqualified 
plan, or $223,753.

    (d) Amounts taken into account and income attributable thereto--(1) 
Amounts taken into account--(i) In general. For purposes of this 
section, an amount deferred under a nonqualified deferred compensation 
plan is taken into account as of the date it is included in computing 
the amount of wages as defined in section 3121(a), but only to the 
extent that any additional FICA tax that results from such inclusion 
(including any interest and penalties for late payment) is actually paid 
before the expiration of the applicable period of limitations for the 
period in which the amount deferred was required to be taken into 
account under paragraph (e) of this section. Because an amount deferred 
for a calendar year is combined with the employee's other wages for the 
year for purposes of computing FICA taxes with respect to the employee 
for the year, if the employee has other wages that equal or exceed the 
wage base limitations for the Old-Age, Survivors, and Disability 
Insurance (OASDI) portion (or, in the case of years before 1994, the 
Hospital Insurance (HI) portion) of FICA for the year, no portion of the 
amount deferred will actually result in additional OASDI (or HI) tax. 
However, because there is no wage base limitation for the HI portion of 
FICA for years after 1993, the entire amount deferred (in addition to 
all other wages) is subject to the HI tax for the year and, thus, will 
not be considered taken into account for purposes of this section unless 
the HI tax relating to the amount deferred is actually paid. In 
determining whether any additional FICA tax relating to the amount 
deferred is actually paid, any FICA tax paid in a year is treated as 
paid with respect to an amount deferred only after FICA tax is paid on 
all other wages for the year.
    (ii) Amounts not taken into account--(A) Failure to take an amount 
deferred into account under the special timing rule. If an amount 
deferred for a period (as determined under paragraph (c) of this 
section) is not taken into account, then the nonduplication rule of 
paragraph (a)(2)(iii) of this section does not apply, and benefit 
payments attributable to that amount deferred are included as wages in 
accordance with the general timing rule of paragraph (a)(1) of this 
section. For example, if an amount deferred is required to be taken into 
account in a particular year under paragraph (e) of this section, but 
the employer fails to pay the additional FICA tax resulting from that 
amount, then the amount deferred and the income attributable to that 
amount must be included as wages when actually or constructively paid.
    (B) Failure to take a portion of an amount deferred into account 
under the special timing rule. If, as of the date an amount deferred is 
required to be taken into account, only a portion of the amount deferred 
(as determined under paragraph (c) of this section) has been taken into 
account, then a portion of each subsequent benefit payment that is 
attributable to that amount is excluded from wages pursuant to the 
nonduplication rule of paragraph (a)(2)(iii) of this section and the 
balance is subject to the general timing rule of paragraph (a)(1) of 
this section. The portion that is excluded from wages is fixed 
immediately before the attributable benefit payments commence (or, if 
later, the date the amount deferred is required to be taken into 
account) and is determined by multiplying each such payment by a 
fraction, the numerator of which is the amount that was taken into 
account (plus income attributable to that amount determined under 
paragraph

[[Page 115]]

(d)(2) of this section through the date the portion is fixed) and the 
denominator of which is the present value of the future benefit payments 
attributable to the amount deferred, determined as of the date the 
portion is fixed. For this purpose, if the requirements of paragraph 
(c)(2)(iii)(B) of this section are satisfied, the present value is 
determined by assuming that payments are made in the normal form of 
benefit commencing at normal commencement date. In addition, if the 
employer demonstrates that the amount deferred was determined using 
reasonable actuarial assumptions as determined by the Commissioner, the 
present value of the future benefit payments attributable to the amount 
deferred is determined using those assumptions. In any other case, see 
paragraph (d)(2)(iii) of this section.
    (2) Income attributable to the amount taken into account--(i) 
Account balance plans--(A) In general. For purposes of the 
nonduplication rule of paragraph (a)(2)(iii) of this section, in the 
case of an account balance plan, the income attributable to the amount 
taken into account means any amount credited on behalf of an employee 
under the terms of the plan that is income (within the meaning of 
paragraph (c)(1)(ii)(B) of this section) attributable to an amount 
previously taken into account (within the meaning of paragraph (d)(1) of 
this section), but only if the income reflects a rate of return that 
does not exceed either the rate of return on a predetermined actual 
investment (as determined in accordance with paragraph (d)(2)(i)(B) of 
this section) or, if the income does not reflect the rate of return on a 
predetermined actual investment (as so determined), a reasonable rate of 
interest (as determined in accordance with paragraph (d)(2)(i)(C) of 
this section).
    (B) Rules relating to actual investment--(1) In general. For 
purposes of this paragraph (d)(2)(i), the rate of return on a 
predetermined actual investment for any period means the rate of total 
return (including increases or decreases in fair market value) that 
would apply if the account balance were, during the applicable period, 
actually invested in one or more investments that are identified in 
accordance with the plan before the beginning of the period. For this 
purpose, an account balance plan can determine income based on the rate 
of return of a predetermined actual investment regardless of whether 
assets associated with the plan or the employer are actually invested 
therein and regardless of whether that investment is generally available 
to the public. For example, an account balance plan could provide that 
income on the account balance is determined based on an employee's 
prospective election among various investment alternatives that are 
available under the employer's section 401(k) plan, even if one of those 
investment alternatives is not generally available to the public. In 
addition, an actual investment includes an investment identified by 
reference to any stock index with respect to which there are positions 
traded on a national securities exchange described in section 
1256(g)(7)(A).
    (2) Certain rates of return not based on predetermined actual 
investment. A rate of return will not be treated as the rate of return 
on a predetermined actual investment within the meaning of this 
paragraph (d)(2)(i)(B) if the rate of return (to any extent or under any 
conditions) is based on the greater of the rate of return of two or more 
actual investments, is based on the greater of the rate of return on an 
actual investment and a rate of interest (whether or not the rate of 
interest would otherwise be reasonable under paragraph (d)(2)(i)(C) of 
this section), or is based on the rate of return on an actual investment 
that is not predetermined. For example, if a plan bases the rate of 
return on the greater of the rate of return on a predetermined actual 
investment (such as the value of the employer's stock), and a 0 percent 
interest rate (i.e., without regard to decreases in the value of that 
investment), the plan is using a rate of return that is not a rate of 
return on a predetermined actual investment within the meaning of this 
paragraph (d)(2)(i)(B).
    (C) Rules relating to reasonable interest rates--(1) In general. If 
income for a period is credited to an account balance plan on a basis 
other than the rate of return on a predetermined actual investment (as 
determined in accordance

[[Page 116]]

with paragraph (d)(2)(i)(B) of this section), then, except as otherwise 
provided in this paragraph (d)(2)(i)(C), the determination of whether 
the income for the period is based on a reasonable rate of interest will 
be made at the time the amount deferred is required to be taken into 
account and annually thereafter.
    (2) Fixed rates permitted. If, with respect to an amount deferred 
for a period, an account balance plan provides for a fixed rate of 
interest to be credited, and the rate is to be reset under the plan at a 
specified future date that is not later than the end of the fifth 
calendar year that begins after the beginning of the period, the rate is 
reasonable at the beginning of the period, and the rate is not changed 
before the reset date, then the rate will be treated as reasonable in 
all future periods before the reset date.
    (ii) Nonaccount balance plans. For purposes of the nonduplication 
rule of paragraph (a)(2)(iii) of this section, in the case of a 
nonaccount balance plan, the income attributable to the amount taken 
into account means the increase, due solely to the passage of time, in 
the present value of the future payments to which the employee has 
obtained a legally binding right, the present value of which constituted 
the amount taken into account (determined as of the date such amount was 
taken into account), but only if the amount taken into account was 
determined using reasonable actuarial assumptions and methods. Thus, for 
each year, there will be an increase (determined using the same interest 
rate used to determine the amount taken into account) resulting from the 
shortening of the discount period before the future payments are made, 
plus, if applicable, an increase in the present value resulting from the 
employee's survivorship during the year. As a result, if the amount 
deferred for a period is determined using a reasonable interest rate and 
other reasonable actuarial assumptions and methods, and the amount is 
taken into account when required under paragraph (e) of this section, 
then, under the nonduplication rule of paragraph (a)(2)(iii) of this 
section, none of the future payments attributable to that amount will be 
subject to FICA tax when paid.
    (iii) Unreasonable rates of return--(A) Account balance plans. This 
paragraph (d)(2)(iii)(A) applies to an account balance plan under which 
the income credited is based on neither a predetermined actual 
investment, within the meaning of paragraph (d)(2)(i)(B) of this 
section, nor a rate of interest that is reasonable, within the meaning 
of paragraph (d)(2)(i)(C) of this section, as determined by the 
Commissioner. In that event, the employer must calculate the amount that 
would be credited as income under a reasonable rate of interest, 
determine the excess (if any) of the amount credited under the plan over 
the income that would be credited using the reasonable rate of interest, 
and take that excess into account as an additional amount deferred in 
the year the income is credited. If the employer fails to calculate the 
amount that would be credited as income under a reasonable rate of 
interest and to take the excess into account as an additional amount 
deferred in the year the income is credited, or the employer otherwise 
fails to take the full amount deferred into account, then the excess of 
the income credited under the plan over the income that would be 
credited using AFR will be treated as an amount deferred in the year the 
income is credited. For purposes of this section, AFR means the mid-term 
applicable federal rate (as defined pursuant to section 1274(d)) for 
January 1 of the calendar year, compounded annually. In addition, 
pursuant to paragraph (d)(1)(ii) of this section, the excess over the 
income that would result from the application of AFR and any income 
attributable to that excess are subject to the general timing rule of 
paragraph (a)(1) of this section.
    (B) Nonaccount balance plans. If any actuarial assumption or method 
used to determine the amount taken into account under a nonaccount 
balance plan is not reasonable, as determined by the Commissioner, then 
the income attributable to the amount taken into account is limited to 
the income that would result from the application of the AFR and, if 
applicable, the applicable mortality table under section 
417(e)(3)(A)(ii)(I) (the 417(e) mortality

[[Page 117]]

table), both determined as of the January 1 of the calendar year in 
which the amount was taken into account. In addition, paragraph 
(d)(1)(ii)(B) of this section applies and, in calculating the fraction 
described in paragraph (d)(1)(ii)(B) of this section (at the date 
specified in paragraph (d)(1)(ii)(B) of this section), the numerator is 
the amount taken into account plus income (as limited under this 
paragraph (d)(2)(iii)(B)), and the present value in the denominator is 
determined using the AFR, the 417(e) mortality table, and reasonable 
assumptions as to cost of living, each determined as of the time the 
amount deferred was required to be taken into account.
    (3) Examples. This paragraph (d) is illustrated by the following 
examples:

    Example 1: (i) In 2001, Employer M establishes a nonqualified 
deferred compensation plan for Employee A under which all benefits are 
100 percent vested. In 2002, Employee A has $200,000 of current annual 
compensation from Employer M that is subject to FICA tax. The amount 
deferred under the plan on behalf of Employee A for 2002 is $20,000. 
Thus, Employee A has total wages for FICA tax purposes of $220,000. 
Because Employee A has other wages that exceed the OASDI wage base for 
2002, no additional OASDI tax is due as a result of the $20,000 amount 
deferred. Because there is no wage base limitation for the HI portion of 
FICA, additional HI tax liability results from the $20,000 amount 
deferred. However, Employer M fails to pay the additional HI tax.
    (ii) Under paragraph (d)(1)(i) of this section, an amount deferred 
is considered taken into account as wages for FICA tax purposes as of 
the date it is included in computing FICA wages, but only if any 
additional FICA tax liability that results from inclusion of the amount 
deferred is actually paid. Because the HI tax resulting from the $20,000 
amount deferred was not paid, that amount deferred was not taken into 
account within the meaning of paragraph (d)(1) of this section. Thus, 
pursuant to paragraph (d)(1)(ii) of this section, benefit payments 
attributable to the $20,000 amount deferred will be included as wages in 
accordance with the general timing rule of paragraph (a)(1) of this 
section and will be subject to the HI portion of FICA tax when actually 
or constructively paid (and the OASDI portion of FICA tax to the extent 
Employee A's wages do not exceed the OASDI wage base limitation).
    Example 2: (i) The facts are the same as in Example 1, except that 
Employer M takes all actions necessary to correct its failure to pay the 
additional tax before the applicable period of limitations expires for 
2002 (including payment of any applicable interest and penalties).
    (ii) Because the HI tax resulting from the $20,000 amount deferred 
is paid, that amount deferred is considered taken into account for 2002. 
Thus, in accordance with paragraph (a)(2)(iii) of this section, neither 
the amount deferred nor the income attributable to the amount taken into 
account will be treated as wages for FICA tax purposes at any time 
thereafter.
    Example 3: (i) Employer N establishes a nonqualified deferred 
compensation plan under which all benefits are 100 percent vested. Under 
the plan, an employee's account is credited with a contribution equal to 
10 percent of salary on December 31 of each year. The employee's account 
balance also is increased each December 31 by interest on the total 
amounts credited to the employee's account as of the preceding December 
31. The interest rate specified in the plan results in income credits 
that are not based on the rate of return on a predetermined actual 
investment within the meaning of paragraph (d)(2)(i)(B) of this section, 
and that are greater than the income that would result from application 
of a reasonable rate of interest within the meaning of paragraph 
(d)(2)(i)(C) of this section. Employer N fails to take into account an 
additional amount for the excess of the income credited under the plan 
over a reasonable rate of interest.
    (ii) Pursuant to paragraph (d)(2)(iii)(A) of this section, the 
income credits in excess of the income that would be credited using the 
AFR are considered additional amounts deferred in the year credited.
    Example 4: (i) The facts are the same as in Example 3, except that 
the annual increase is based on Moody's Average Corporate Bond Yield.
    (ii) Because this index reflects a reasonable rate of interest, the 
income credited under the plan is considered income attributable to the 
amount taken into account within the meaning of paragraph (d)(2)(i) of 
this section.
    Example 5: (i) The facts are the same as in Example 3, except that 
the annual increase (or decrease) is based on the rate of total return 
on Employer N's publicly traded common stock.
    (ii) Because the income credited under the plan does not exceed the 
actual rate of return on a predetermined actual investment, the income 
credited is considered income attributable to the amount taken into 
account within the meaning of paragraph (d)(2)(i) of this section.
    Example 6: (i) The facts are the same as in Example 3, except that 
the annual rate of increase or decrease is equal to the greater of the 
rate of total return on a specified aggressive growth mutual fund or the 
rate of return on a specified income-oriented mutual fund. Employer N 
fails to take into account an additional amount for the excess of the

[[Page 118]]

income credited under the plan over a reasonable rate of interest.
    (ii) Because the rate of increase or decrease is based on the 
greater of two rates of returns, the increase is not based on the return 
on a predetermined actual investment within the meaning of paragraph 
(d)(2)(i)(B) of this section. Thus, if the rate of return credited under 
the plan (i.e., the greater of the rates of return of the two mutual 
funds) exceeds the income that would be credited using the AFR, the 
excess is not considered income attributable to the amount taken into 
account within the meaning of paragraph (d)(2)(i) of this section and, 
pursuant to paragraph (d)(2)(iii)(A) of this section, is considered an 
additional amount deferred.
    Example 7: (i) The facts are the same as in Example 6, except that 
the annual increase or decrease with respect to 50 percent of the 
employee's account is equal to the rate of total return on the specified 
aggressive growth mutual fund and the annual increase or decrease with 
respect to the other 50 percent of the employee's account is equal to 
the increase or decrease in the Standard & Poor's 500 Index.
    (ii) Because the increase or decrease attributable to any portion of 
the employee's account is based on the return on a predetermined actual 
investment, the entire increase or decrease is considered income 
attributable to the amount taken into account within the meaning of 
paragraph (d)(2)(i) of this section.
    Example 8: (i) The facts are the same as in Example 3, except that, 
pursuant to the terms of the plan, before the beginning of each year, 
the board of directors of Employer N designates a specific investment on 
which the following year's annual increase or decrease will be based. 
The board is authorized to switch investments more frequently on a 
prospective basis. Before the beginning of 2004, the board designates 
Company A stock as the investment for 2004. Before the beginning of 
2005, the board designates Company B stock as the investment for 2005. 
At the end of 2005, the board determines that the return on Company B 
stock was lower than expected and changes its designation for 2005 to 
the rate of return on Company C stock, which had a higher return during 
2005. Employer N fails to take into account an additional amount for the 
excess of the income credited under the plan over a reasonable rate of 
interest.
    (ii) The annual increase or decrease for 2004 is based on the return 
of a predetermined actual investment. Although the annual increase or 
decrease for 2005 is based on an actual investment, the actual 
investment is not predetermined since it was not designated before the 
beginning of 2005. Pursuant to paragraph (d)(2)(iii)(A) of this section, 
the excess of the income credited under the plan over the income 
determined using AFR is an additional amount deferred for 2005.
    Example 9: (i) Employer O establishes a nonqualified deferred 
compensation plan for Employee B. Under the plan, if Employee B survives 
until age 65, he has a fully vested right to receive a lump sum payment 
at that age, equal to the product of 10 percent per year of service and 
Employee B's highest average annual compensation for any 3-year period, 
but no benefits are payable in the event Employee B dies prior to age 
65. As permitted under paragraph (e)(5) of this section, any amount 
deferred under the plan for the calendar year is taken into account as 
wages as of the last day of the year. As of December 31, 2002, Employee 
B has 25 years of service and Employee B's high 3-year average 
compensation is $100,000 (the average for the years 2000 through 2002). 
As of December 31, 2002, Employee B has a legally binding right to 
receive a payment at age 65 of $250,000 (10 percent  x  25 years  x  
$100,000). As of December 31, 2003, Employee B is age 63, has 26 years 
of service, and has high 3-year average compensation of $104,000. As of 
December 31, 2003, Employee B has a legally binding right to receive a 
payment at age 65 of $270,400 (10 percent  x  26 years  x  $104,000). 
Thus, during 2003, Employee B has earned a legally binding right to an 
additional payment at age 65 of $20,400 ($270,400-$250,000). The 
assumptions that Employer O uses to determine the amount deferred for 
2003 are a 7 percent interest rate and the GAM 83 (male) mortality 
table, which, solely for purposes of this example, are assumed to be 
reasonable actuarial assumptions. The amount deferred for 2003 is the 
present value, as of December 31, 2003, of the $20,400 payment, which is 
$17,353. Employer O takes this amount into account by including it in 
Employee B's FICA wages for 2003 and paying the additional FICA tax.
    (ii) Under paragraph (d)(2)(ii) of this section, the income 
attributable to the amount that was taken into account is the increase 
in the present value of the future payment due solely to the passage of 
time, because the amount deferred was determined using reasonable 
actuarial assumptions and methods. As of the payment date at age 65, the 
present value of the future payment earned during 2003 is $20,400. The 
entire difference between the $20,400 and the $17,353 amount deferred 
($3,047) is the increase in the present value of the future payment due 
solely to the passage of time, and thus constitutes income attributable 
to the amount taken into account. Because the amount deferred was taken 
into account, the entire payment of $20,400 represents either an amount 
deferred that was previously taken into account ($17,353) or income 
attributable to that amount ($3,047). Accordingly, pursuant to the 
nonduplication rule of paragraph

[[Page 119]]

(a)(2)(iii) of this section, none of the payment is included in wages.
    Example 10: (i) The facts are the same as in Example 9, except that, 
instead of providing a lump sum equal to 10 percent of average 
compensation per year of service, the plan provides Employee B with a 
fully vested right to receive a life annuity, payable monthly beginning 
at age 65, equal to the product of 2 percent for each year of service 
and Employee B's highest average annual compensation for any 3-year 
period. The plan also provides that, if Employee B dies before age 65, 
the present value of the future payments will be paid to his or her 
beneficiary. As of December 31, 2002, Employee B has a legally binding 
right to receive lifetime payments of $50,000 (2 percent  x  25 years 
x  $100,000) per year. As of December 31, 2003, Employee B has a legally 
binding right to receive lifetime payments of $54,080 (2 percent  x  26 
years  x  $104,000) per year. Thus, during 2003, Employee B has earned a 
legally binding right to additional lifetime payments of $4,080 
($54,080-$50,000) per year beginning at age 65. The amount deferred for 
2003 is $32,935, which is the present value, as of December 31, 2003, of 
these additional payments, determined using the same actuarial 
assumptions and methods used in Example 9, except that there is no 
discount for the probability of death prior to age 65. Employer O takes 
this amount into account by including it in Employee B's FICA wages for 
2003 and paying the additional FICA tax.
    (ii) Under paragraph (d)(2)(ii) of this section, the income 
attributable to the amount that was taken into account is the increase 
in the present value of the future payments due solely to the passage of 
time, because the amount deferred was determined using reasonable 
actuarial assumptions and methods. Because the amount deferred was taken 
into account, each annual payment of $4,080 attributable to the amount 
deferred in 2003 represents either an amount deferred that was 
previously taken into account or income attributable to that amount. 
Accordingly, pursuant to the nonduplication rule of paragraph 
(a)(2)(iii) of this section, none of the payments are included in wages.
    Example 11: (i) The facts are the same as in Example 10, except that 
no amount is taken into account for 2003 because Employer O fails to pay 
the additional FICA tax.
    (ii) Under paragraph (d)(1)(ii)(A) of this section, if an amount 
deferred for a period is not taken into account, then the benefit 
payments attributable to that amount deferred are included as wages in 
accordance with the general timing rule of paragraph (a)(1) of this 
section. In this case, assuming that the amounts deferred in other 
periods were taken into account, $4,080 of each year's total benefit 
payments will be included in wages when actually or constructively paid, 
in accordance with the general timing rule.
    Example 12: (i) Employer P establishes an account balance plan on 
January 1, 2002, under which all benefits are 100 percent vested. The 
plan provides that amounts deferred will be credited annually with 
interest beginning in 2002 at a rate that is greater than a reasonable 
rate of interest. Employer P treats the excess over the applicable 
interest rate in section 417(e) as an additional amount deferred for 
2002 and in each year thereafter, and takes the additional amount into 
account by including it in FICA wages and paying the additional FICA tax 
for the year.
    (ii) Under the nonduplication rule in paragraph (a)(2)(iii) of this 
section, the benefits paid under the plan will be excluded from wages 
for FICA tax purposes.
    Example 13: (i) The facts are the same as in Example 9, except that, 
in determining the amount deferred, Employer O uses a 15 percent 
interest rate, which, solely for purposes of this example, is assumed 
not to be a reasonable interest rate. Employer O determines that the 
amount deferred for 2003 is the present value, as of December 31, 2003, 
of the $20,400 payment, which is $15,023. Employer O includes $15,023 in 
wages and pays any resulting FICA tax. Solely for purposes of this 
example, it is assumed that the AFR as of January 1, 2003, is 7 percent.
    (ii) Under paragraph (d)(2)(iii)(B) of this section, if any 
actuarial assumption or method is not reasonable, then the income 
attributable to the amount taken into account is limited to the income 
that would result from application of the AFR and, if applicable, the 
417(e) mortality table. Because the 15 percent interest rate is 
unreasonable, the income attributable to the amount taken into account 
is limited to the income that would result from using a 7 percent 
interest rate and, in this case, an increase for survivorship using the 
417(e) mortality table. Under these assumptions, the income attributable 
to the $15,023 amount taken into account for 2003 is $1,199 in 2004 and 
$1,313 in 2005. Under paragraph (d)(1)(ii) of this section, the sum of 
these amounts ($17,535) is excluded from Employee B's wages pursuant to 
the nonduplication rule of paragraph (a)(2)(iii) of this section, and 
the balance of the payment ($2,865) is subject to the general timing 
rule of paragraph (a)(1) of this section and, thus, is included in 
Employee B's wages when actually or constructively paid.
    (iii) The same result can be reached by multiplying the attributable 
benefit payments by a fraction, the numerator of which is the amount 
taken into account, and the denominator of which is the amount deferred 
that would have been taken into account at the same time had the amount 
deferred been calculated using the AFR and the 417(e) mortality table. 
These assumptions are determined as of January 1 of the calendar year in 
which the amount was taken into account.

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In this Example 13, the fraction would be $15,023 divided by $17,478, 
which equals .85954. The $20,400 payment is multiplied by this fraction 
to determine the amount of the payment that is excluded from wages 
pursuant to the nonduplication rule of paragraph (a)(2)(iii) of this 
section. Thus, $17,535 ($20,400 x .85954) is excluded from wages and the 
balance ($2,865) is subject to FICA tax when actually or constructively 
paid.
    Example 14: (i) The facts are the same as Example 10, except that 
Employer O calculates the amount deferred for 2003 as $18,252 and takes 
that amount into account by including that amount in wages and paying 
any resulting FICA tax. The assumptions that Employer O uses to 
determine the amount deferred are a 15 percent interest rate and, for 
the period after commencement of benefit payments, the GAM 83 (male) 
mortality table. The 15 percent interest rate is assumed, solely for 
purposes of this example, not to be a reasonable actuarial assumption. 
Solely for purposes of this example, it is assumed that the AFR as of 
January 1, 2003, is 7 percent.
    (ii) Under paragraph (d)(2)(iii)(B) of this section, if any 
actuarial assumption or method used is not reasonable, then the income 
attributable to the amount taken into account is limited to the income 
that would result from application of the AFR and, if applicable, the 
417(e) mortality table. Because the 15 percent interest rate is not 
reasonable, the income attributable to the amount taken into account is 
equal to the income that would result from using a 7 percent interest 
rate and the amount taken into account is treated as if it represented a 
portion of the amount deferred for purposes of applying paragraph 
(d)(1)(ii)(B) of this section. Under these assumptions, the income 
attributable to the $18,252 amount taken into account for 2003 is $1,278 
in 2004 and $1,367 in 2005. Under paragraph (d)(1)(ii)(B) of this 
section, the portion of each benefit payment attributable to the amount 
deferred that is excluded from wages pursuant to the nonduplication rule 
of paragraph (a)(2)(iii) of this section is determined at benefit 
commencement by multiplying each benefit payment by a fraction, the 
numerator of which is the amount taken into account (plus income 
attributable to that amount) and the denominator of which is the present 
value of future benefit payments attributable to the amount deferred. 
Because the interest rate assumption is not reasonable, not only is the 
income limited to the application of the AFR, but the present value in 
the denominator must be determined using the AFR and (if applicable) the 
417(e) mortality table. In this case, the present value is $40,283 and 
thus the fraction is $20,897 divided by $40,283, or .51875. Thus, $2,116 
(.51875  x  $4,080) of each year's benefit payment is excluded from 
wages and the balance of each year's payment ($1,964) is subject to the 
general timing rule of paragraph (a)(1) of this section and is included 
in wages when actually or constructively paid.
    (iii) The same result can be reached by multiplying the attributable 
benefit payments by a fraction the numerator of which is the amount 
taken into account, and the denominator of which is the amount deferred 
that would have been taken into account at the same time had the amount 
deferred been calculated using the AFR and the 417(e) mortality table. 
These assumptions are determined as of January 1 of the calendar year in 
which the amount was taken into account. In this Example 14, the 
fraction would be $18,252 divided by $35,185, which equals .51875. The 
$4,080 annual payment is multiplied by this fraction to determine the 
amount of the payment that is excluded from wages pursuant to the 
nonduplication rule of paragraph (a)(2)(iii) of this section. Thus, 
$2,116 ($4,080  x  .51875) is excluded from wages and the balance 
($1,964) is subject to FICA tax when actually or constructively paid.

    (e) Time amounts deferred are required to be taken into account--(1) 
In general. Except as otherwise provided in this paragraph (e), an 
amount deferred under a nonqualified deferred compensation plan must be 
taken into account as wages for FICA tax purposes as of the later of the 
date on which services creating the right to the amount deferred are 
performed (within the meaning of paragraph (e)(2) of this section) or 
the date on which the right to the amount deferred is no longer subject 
to a substantial risk of forfeiture (within the meaning of paragraph 
(e)(3) of this section). However, in no event may any amount deferred 
under a nonqualified deferred compensation plan be taken into account as 
wages for FICA tax purposes prior to the establishment of the plan 
providing for the amount deferred (or, if later, the plan amendment 
providing for the amount deferred). Therefore, if an amount is deferred 
pursuant to the terms of a legally binding agreement that is not put in 
writing until after the amount would otherwise be taken into account 
under this paragraph (e)(1), the amount deferred (including any 
attributable income) must be taken into account as wages for FICA tax 
purposes as of the date the material terms of the plan are put in 
writing.
    (2) Services creating the right to an amount deferred. For purposes 
of this

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section, services creating the right to an amount deferred under a 
nonqualified deferred compensation plan are considered to be performed 
as of the date on which, under the terms of the plan and all the facts 
and circumstances, the employee has performed all of the services 
necessary to obtain a legally binding right (as described in paragraph 
(b)(3)(i) of this section) to the amount deferred.
    (3) Substantial risk of forfeiture. For purposes of this section, 
the determination of whether a substantial risk of forfeiture exists 
must be made in accordance with the principles of section 83 and the 
regulations thereunder.
    (4) Amount deferred that is not reasonably ascertainable under a 
nonaccount balance plan--(i) In general--(A) Date required to be taken 
into account. Notwithstanding any other provision of this paragraph (e), 
an amount deferred under a nonaccount balance plan is not required to be 
taken into account as wages under the special timing rule of paragraph 
(a)(2) of this section until the first date on which all of the amount 
deferred is reasonably ascertainable (the resolution date). In this 
case, the amount required to be taken into account as of the resolution 
date is determined in accordance with paragraph (c)(2) of this section.
    (B) Definition of reasonably ascertainable. For purposes of this 
paragraph (e)(4), an amount deferred is considered reasonably 
ascertainable on the first date on which the amount, form, and 
commencement date of the benefit payments attributable to the amount 
deferred are known, and the only actuarial or other assumptions 
regarding future events or circumstances needed to determine the amount 
deferred are interest and mortality. For this purpose, the form and 
commencement date of the benefit payments attributable to the amount 
deferred are treated as known if the requirements of paragraph 
(c)(2)(iii)(B) of this section (under which payments are treated as 
being made in the normal form of benefit commencing at normal 
commencement date) are satisfied. In addition, an amount deferred does 
not fail to be reasonably ascertainable on a date merely because the 
exact amount of the benefit payable cannot readily be calculated on that 
date or merely because the exact amount of the benefit payable depends 
on future changes in the cost of living. If the exact amount of the 
benefit payable depends on future changes in the cost of living, the 
amount deferred must be determined using a reasonable assumption as to 
the future changes in the cost of living. For example, the amount of a 
benefit is treated as known even if the exact amount of the benefit 
payable cannot be determined until future changes in the cost of living 
are reflected in the section 415 limitation on benefits payable under a 
qualified retirement plan.
    (ii) Earlier inclusion permitted--(A) In general. With respect to an 
amount deferred that is not reasonably ascertainable, an employer may 
choose to take an amount into account at any date or dates (an early 
inclusion date or dates) before the resolution date (but not before the 
date described in paragraph (e)(1) of this section with respect to the 
amount deferred). Thus, for example, with respect to an amount deferred 
under a nonaccount balance plan that is not reasonably ascertainable 
because the plan permits employees to receive their benefits in more 
than one form or commencing at more than one date (and the requirements 
of paragraph (c)(2)(iii) of this section are not satisfied), an employer 
may choose to take an amount into account on the date otherwise 
described in paragraph (e)(1) of this section before the form and 
commencement date are selected (based on assumptions as to the form and 
commencement date for the benefit payments) or may choose to wait until 
the form and commencement date of the benefit payments are selected. An 
employer that chooses to take an amount into account at an early 
inclusion date under this paragraph (e)(4)(ii) for an employee under a 
plan is not required until the resolution date to identify the period to 
which the amount taken into account relates.
    (B) True-up at resolution date. If, with respect to an amount 
deferred for a period, an employer chooses to take an amount into 
account as of an early inclusion date in accordance with this

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paragraph (e)(4)(ii) and the benefit payments attributable to the amount 
deferred exceed the benefit payments that are actuarially equivalent to 
the amount taken into account at the early inclusion date (payable in 
the same form and using the same commencement date as the benefit 
payments attributable to the amount deferred), then the present value of 
the difference in the benefits, determined in accordance with paragraph 
(c)(2) of this section, must be taken into account as of the resolution 
date.
    (C) Actuarial assumptions. For purposes of determining the benefits 
that are actuarially equivalent to the amount taken into account as of 
an early inclusion date, the amount taken into account is converted to 
an actuarially equivalent benefit payable in the same form and 
commencing on the same date as the actual benefit payments attributable 
to the amount deferred using an interest rate, and, if applicable, 
mortality and cost-of-living assumptions, that were reasonable as of the 
early inclusion date. Thus, with respect to an amount deferred for a 
period, the amount required to be taken into account as of the 
resolution date is the present value (determined using an interest rate, 
and, if applicable, mortality and cost-of-living assumptions, that are 
reasonable as of the resolution date) of the excess, if any, of the 
future benefit payments attributable to the amount deferred over the 
future benefits payable in the same form and commencing on the same date 
that are actuarially equivalent to the portion of the amount deferred 
that was taken into account as of the early inclusion date (where 
actuarial equivalence is determined using an interest rate, and, if 
applicable, mortality and cost-of-living assumptions, that were 
reasonable as of the early inclusion date).
    (D) Allocation rules for amounts deferred over more than one 
period--(1) General rule. The rules of this paragraph (e)(4)(ii)(D) 
apply for purposes of determining whether an amount has been included 
under this paragraph (e)(4) before the earliest date permitted under 
paragraph (e)(1) of this section.
    (2) Future compensation increases. Increases in an employee's 
compensation after the early inclusion date must be disregarded.
    (3) Early retirement subsidies. An early retirement subsidy that the 
employee ultimately receives may be taken into account at an early 
inclusion date if the employee would have a legally binding right to the 
subsidy at the early inclusion date but for any condition that the 
employee continue to render services. Accordingly, an employer may take 
into account at an early inclusion date any early retirement subsidy 
that the employee ultimately receives to the extent that elimination or 
reduction of that subsidy would violate section 411(d)(6)(B)(i) if that 
section applied to the plan.
    (4) Allocation with respect to offsets. In any case in which a 
series of amounts are deferred over more than one period, the amounts 
deferred are not reasonably ascertainable until a single resolution date 
and the benefit payments attributable to the entire series are 
determined under a formula that provides a gross benefit that in the 
aggregate is subject to an objective reduction for future events under 
the terms of the plan, such as an offset for the aggregate benefits 
payable under a plan qualified under section 401(a), the attribution of 
benefit payments to the amount deferred in each period is determined 
under the rules of this paragraph (e)(4)(ii)(D)(4). In a case described 
in the preceding sentence, the benefit payments made as a result of the 
series of amounts deferred may be treated as attributable to the amount 
deferred as of the earliest period in which the employee obtained a 
legally binding right to a benefit under the plan equal to the excess, 
if any, of the amount of the gross benefit attributable to that period 
(determined at the resolution date), over the amount of the reduction 
determined as of the end of that period. Thus, for example, if an 
employee obtains a legally binding right in each of several years to 
benefit payments from a nonqualified deferred compensation plan that 
provides for a specified gross benefit for the years to be offset by the 
benefits payable under a qualified plan, the amount deferred in the 
first year may be treated as equal to the gross benefit

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for the year, reduced by the offset applicable at the end of the year 
(even if the offset increases after the end of the year).
    (E) Treatment of benefits paid before the resolution date. If a 
benefit payment is attributable to an amount deferred that is not 
reasonably ascertainable at the time of payment (or is paid before the 
date selected under paragraph (e)(5) of this section), and the employer 
has previously taken an amount into account with respect to the amount 
deferred under the early inclusion rule of this paragraph (e)(4), then, 
in lieu of the pro rata rule provided in paragraph (d)(1)(ii)(B) of this 
section, a first-in-first-out rule applies in determining the portion of 
the benefit payment attributable to the amount taken into account. Under 
this first-in-first-out rule, the benefit payment is compared to the sum 
of the amount taken into account at the early inclusion date and the 
income attributable to that amount. If the benefit payment equals or 
exceeds the amount taken into account at the early inclusion date and 
the income attributable to that amount as of the date of the benefit 
payment, the benefit payment is included as wages under the general 
timing rule of paragraph (a)(1) of this section to the extent of any 
excess, and the amount taken into account at the early inclusion date 
(and income attributable to that amount) is disregarded thereafter with 
respect to the amount deferred. If the amount taken into account at the 
early inclusion date and the income attributable to that amount as of 
the date of the benefit payment exceeds the benefit payment, the benefit 
payment is not included as wages under the general timing rule of 
paragraph (a)(1) of this section and, in determining the amount that 
must be taken into account thereafter with respect to the amount 
deferred, the amount taken into account at the early inclusion date, 
plus attributable income as of the date of the benefit payment, is 
reduced by the amount of the benefit payment, and only the excess plus 
future income attributable to the excess (credited using assumptions 
that were reasonable on the early inclusion date) is taken into 
consideration. If amounts have been taken into account at more than one 
early inclusion date, this paragraph (e)(4)(ii)(E) applies on a first-
in-first-out basis, beginning with the amount taken into account at the 
earliest early inclusion date (including income attributable thereto).
    (5) Rule of administrative convenience. For purposes of this 
section, an employer may treat an amount deferred as required to be 
taken into account under this paragraph (e) on any date that is later 
than, but within the same calendar year as, the actual date on which the 
amount deferred is otherwise required to be taken into account under 
this paragraph (e). For example, if services creating the right to an 
amount deferred are considered performed under paragraph (e)(2) of this 
section periodically throughout a year, the employer may nevertheless 
treat the services creating the right to that amount deferred as 
performed on December 31 of that year. If an employer uses the rule of 
administrative convenience described in this paragraph (e)(5), any 
determination of whether the income attributable to an amount deferred 
under an account balance plan is based on a reasonable rate of interest 
or whether the actuarial assumptions used to determine the present value 
of an amount deferred in a nonaccount balance plan are reasonable will 
be made as of the date the employer selects to take the amount into 
account.
    (6) Portions of an amount deferred required to be taken into account 
on more than one date. If different portions of an amount deferred are 
required to be taken into account under paragraph (e)(1) of this section 
on more than one date (e.g., on account of a graded vesting schedule), 
then each such portion is considered a separate amount deferred for 
purposes of this section.
    (7) Examples. This paragraph (e) is illustrated by the following 
examples:

    Example 1: (i) Employer M establishes a nonqualified deferred 
compensation plan for Employee A on November 1, 2005. Under the plan, 
which is an account balance plan, Employee A obtains a legally binding 
right on the last day of each calendar year (if Employee A is employed 
on that date) to be credited with a principal amount equal to 5

[[Page 124]]

percent of compensation for the year. In addition, a reasonable rate of 
interest is credited quarterly. Employee A's account balance is 
nonforfeitable and is payable upon Employee A's termination of 
employment. For 2006, the principal amount credited to Employee A under 
the plan (which, in this case, is also the amount deferred within the 
meaning of paragraph (c) of this section) is $25,000.
    (ii) Under paragraph (e)(2) of this section, the services creating 
the right to the $25,000 amount deferred are considered performed as of 
December 31, 2006, the date on which Employee A has performed all of the 
services necessary to obtain a legally binding right to the amount 
deferred. Thus, in accordance with paragraph (e)(1) of this section, the 
$25,000 amount deferred must be taken into account as of December 31, 
2006, which is the later of the date on which services creating the 
right to the amount deferred are performed or the date on which the 
right to the amount deferred is no longer subject to a substantial risk 
of forfeiture.
    Example 2: (i) The facts are the same as in Example 1, except that 
the principal amount credited under the plan on the last day of each 
year (and attributable interest) is forfeited if the employee terminates 
employment within five years of that date.
    (ii) Under paragraph (e)(3) of this section, the determination of 
whether the right to an amount deferred is subject to a substantial risk 
of forfeiture is made in accordance with the principles of section 83. 
Under Sec. 1.83-3(c) of this chapter, a substantial risk of forfeiture 
generally exists where rights in property that are transferred are 
conditioned, directly or indirectly, upon the future performance of 
substantial services. Because Employee A's right to receive the $25,000 
principal amount (and attributable interest) is conditioned on the 
performance of services for five years, a substantial risk of forfeiture 
exists with respect to that amount deferred until December 31, 2011.
    (iii) December 31, 2011, is the later of the date on which services 
creating the right to the amount deferred are performed or the date on 
which the right to the amount deferred is no longer subject to a 
substantial risk of forfeiture. Thus, in accordance with paragraph 
(e)(1) of this section, the amount deferred (which, pursuant to 
paragraph (c)(1) of this section, is equal to the $25,000 principal 
amount credited to Employee A's account on December 31, 2006, plus the 
interest credited with respect to that principal amount through December 
31, 2011) must be taken into account as of December 31, 2011.
    Example 3: (i) The facts are the same as in Example 2, except that 
the principal amount credited under the plan on the last day of each 
year (and attributable interest) becomes nonforfeitable according to a 
graded vesting schedule under which 20 percent is vested as of December 
31, 2007; 40 percent is vested as of December 31, 2008; 60 percent is 
vested as of December 31, 2009; 80 percent is vested as of December 31, 
2010; and 100 percent is vested as of December 31, 2011. Because these 
dates are later than the date on which the services creating the right 
to the amount deferred are considered performed (December 31, 2006), the 
amount deferred is required to be taken into account as of these dates 
that fall in five different years.
    (ii) Paragraph (e)(6) of this section provides that, if different 
portions of an amount deferred are required to be taken into account 
under paragraph (e)(1) of this section on more than one date, then each 
such portion is considered a separate amount deferred for purposes of 
this section. Thus, $5,000 of the principal amount, plus interest 
credited through December 31, 2007, is taken into account as an amount 
deferred on December 31, 2007; $5,000 of the principal amount, plus 
interest credited through December 31, 2008, is taken into account as a 
separate amount deferred on December 31, 2008; etc.
    Example 4: (i) On November 21, 2001, Employer N establishes a 
nonqualified deferred compensation plan under which all benefits are 100 
percent vested. The plan provides for Employee B (who is age 45) to 
receive a lump sum benefit of $500,000 at age 65. This benefit will be 
forfeited if Employee B dies before age 65.
    (ii) Because the amount, form, and commencement date of the benefit 
are known, and the only assumptions needed to determine the amount 
deferred are interest and mortality, the amount deferred is reasonably 
ascertainable within the meaning of paragraph (e)(4)(i) of this section 
on November 21, 2001.
    Example 5: (i) The facts are the same as in Example 4, except that 
plan provides that the lump sum will be paid at the later of age 65 or 
termination of employment and provides that the $500,000 payable to 
Employee B is increased by 5 percent per year for each year that payment 
is deferred beyond age 65.
    (ii) Because the commencement date of the benefit payment is 
contingent on when Employee B terminates employment, the commencement 
date of the benefit payment is not known. Thus, the amount deferred is 
not reasonably ascertainable within the meaning of paragraph (e)(4)(i) 
of this section, unless the plan satisfies the requirements of paragraph 
(c)(2)(iii)(B) of this section. Because the fixed 5 percent factor may 
not be reasonable at the time benefit payments commence (i.e., 5 percent 
might be higher or lower than a reasonable interest rate when payments 
commence), the plan fails to satisfy paragraph (c)(2)(iii)(B) of this 
section and accordingly the amount deferred is not reasonably 
ascertainable until termination of employment.

[[Page 125]]

    Example 6: (i) The facts are the same as in Example 4, except that 
the $500,000 is payable to Employee B at the later of age 55 or 
termination of employment.
    (ii) Because the commencement date of the benefit payment is 
contingent on when Employee B terminates employment, the commencement 
date of the benefit payment is not known. Thus, the amount deferred is 
not reasonably ascertainable until termination of employment.
    Example 7: (i) The facts are the same as in Example 4, except that 
Employee B may elect to take the benefit in the form of a life annuity 
of $50,000 per year (commencing at age 65).
    (ii) Because the plan permits employees to elect to receive benefits 
in more than one form and the alternative forms may not have the same 
value when Employee B makes his election, the plan fails to satisfy the 
requirements of paragraph (c)(2)(iii)(B) of this section until a form of 
benefit is selected. Thus, the amount deferred is not reasonably 
ascertainable until then.
    Example 8: (i) Employer O establishes a nonqualified deferred 
compensation plan. The plan is a supplemental executive retirement plan 
(SERP) that provides Employee C with a fully vested right to receive a 
pension, in the form of a life annuity payable monthly, beginning at age 
65, equal to the excess of 3 percent of Employee C's final 3-year 
average pay for each year of participation up to 15 years, over the 
amount payable to Employee C from Employer O's qualified pension plan. 
The amount payable under the qualified pension plan is a life annuity 
payable monthly, beginning at age 65, equal to 1.5 percent of final 3-
year average pay for each year of employment, excluding pay in excess of 
the section 401(a)(17) compensation limit. No benefits are payable under 
the SERP if Employee C dies before age 65. Employee C becomes a 
participant in the SERP on January 1, 2001, at age 44. The amount 
deferred under the SERP for any year is not reasonably ascertainable 
prior to termination of employment because the amount of the benefit is 
not known and the determination of the amount deferred requires 
assumptions other than interest and mortality (e.g., an assumption as to 
Employee C's average pay for the final three years of employment). As 
permitted by paragraph (e)(4)(i) of this section, Employer O chooses not 
to take any amount into account for any year before the resolution date. 
Employee C terminates employment on December 31, 2018 when he is age 62.
    (ii) As of the date Employee C terminates employment, the amount of 
the benefit is known and the only actuarial or other assumptions needed 
to determine the amount deferred are an interest rate assumption and a 
mortality assumption. At that time, the amount deferred in each past 
year becomes reasonably ascertainable, and Employer O is able to 
determine that during 2001 Employee C earned a legally binding right to 
a life annuity of $4,000 per year beginning in 2021 when Employee C is 
age 65. Employer O determines the present value of Employee C's future 
benefit payments under the SERP as of this resolution date (December 31, 
2018), using a 7 percent interest rate and the UP-84 mortality table, 
which, solely for purposes of this example, are assumed to be reasonable 
actuarial assumptions for December 31, 2018. The special timing rule 
will be satisfied if the resulting present value, $26,950, is taken into 
account on that date in accordance with paragraph (d)(1) of this 
section.
    Example 9: (i) The facts are the same as in Example 8, except that 
the plan provides that Employee C may choose to receive early retirement 
benefits on an unreduced basis at any time after age 60 if Employee C 
has completed 15 years of service by that date.
    (ii) As of the date Employee C terminates employment, the amount of 
the benefit is known and the only actuarial or other assumptions needed 
to determine the amount deferred are an interest rate assumption and a 
mortality assumption. At that time, the amount deferred in each past 
year becomes reasonably ascertainable, and Employer O is able to 
determine that during 2001 Employee C earned a legally binding right to 
a life annuity of $4,000 per year beginning on December 31, 2018 when 
Employee C is age 62. Employer O determines the present value of 
Employee C's future benefit payments under the SERP as of this 
resolution date (December 31, 2018), using a 7 percent interest rate and 
the UP-84 mortality table, which, solely for purposes of this example, 
are assumed to be reasonable actuarial assumptions for December 31, 
2018. The special timing rule will be satisfied if the resulting present 
value, $37,576, is taken into account on that date in accordance with 
paragraph (d)(1) of this section.
    Example 10: (i) The facts are the same as in Example 9, except that, 
as permitted under paragraph (e)(4)(ii) of this section, Employer O 
chooses to take an amount into account before the amount deferred for 
2001 is reasonably ascertainable. The amount that Employer O takes into 
account on December 31, 2001, is $13,043 (the present value of a life 
annuity of $4,000 per year, payable at age 62, using a 6 percent 
interest rate and the UP-84 mortality table). Employer O does not take 
any other amount into account before the resolution date.
    (ii) In accordance with paragraph (e)(4)(ii)(B) of this section, 
Employer O must determine any additional amount required to be taken 
into account in 2018. If the $4,000 payable in the form of a life 
annuity beginning at age 62 exceeds the life annuity which is 
actuarially equivalent to the $13,043 previously taken into account, the 
present

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value of the excess must be taken into account. In this Example 10, the 
$13,043 previously taken into account is actuarially equivalent to a 
$4,000 annuity commencing at age 62 using a 6 percent interest rate and 
the UP-84 mortality table ( which, solely for purposes of this example, 
are assumed to be reasonable actuarial assumptions for December 31, 
2001). Accordingly, no additional amount need be taken into account in 
2018, regardless of any changes in market rates of interest between 2001 
and 2018.
    Example 11: (i) The facts are the same as in Example 9, except that, 
as permitted under paragraph (e)(4)(ii) of this section, Employer O 
chooses to take an amount into account before the amount deferred for 
2001 is reasonably ascertainable. The amount that Employer O takes into 
account on December 31, 2001, is $9,569 (the present value of a life 
annuity of $4,000 per year, payable at age 65, using a 6 percent 
interest rate and the UP-84 mortality table). Employer O does not take 
any other amount into account before the resolution date.
    (ii) In accordance with paragraph (e)(4)(ii)(B) of this section, 
Employer O must determine any additional amount required to be taken 
into account in 2018. If the $4,000 payable in the form of a life 
annuity beginning in 2018 at age 62 exceeds the life annuity which is 
actuarially equivalent to the $9,569 previously taken into account, the 
present value of the excess must be taken into account. In this case, 
the $9,569 previously taken into account is actuarially equivalent to a 
$2,935 annuity commencing at age 62 using a 6 percent interest rate and 
the UP-84 mortality table (which, solely for purposes of this example, 
are assumed to be reasonable actuarial assumptions for December 31, 
2001). Accordingly, an additional amount needs to be taken into account 
in 2018 equal to the present value of the excess of the $4,000 annual 
stream of benefit payments to which Employee C obtained a legally 
binding right during 2001 over the $2,935 annual stream of benefit 
payments which is actuarially equivalent to the amount previously taken 
into account. This present value (i.e., the present value of a life 
annuity equal to $4,000 minus $2,935, or $1,065 annually) is determined 
by Employer O to be $10,005 as of the resolution date using a 7 percent 
interest rate and the UP-84 mortality table (which, solely for purposes 
of this example, are assumed to be reasonable actuarial assumptions for 
December 31, 2018).
    Example 12: (i) The facts are the same as in Example 9, except that 
the amount that Employer O takes into account on December 31, 2001, is 
$15,834 (the present value of $4,000, payable at age 60, using a 6 
percent interest rate and the UP-84 mortality table). Employer O does 
not take any other amount into account before the resolution date.
    (ii) In accordance with paragraph (e)(4)(ii)(B) of this section, 
Employer O must determine any additional amount required to be taken 
into account in 2018. If the $4,000 payable in the form of a life 
annuity beginning at age 62 exceeds the life annuity which is 
actuarially equivalent to the $15,834 previously taken into account, the 
present value of the excess must be taken into account. In this case, 
the $15,834 previously taken into account is actuarially equivalent to a 
$4,856 annuity commencing at age 62 using a 6 percent interest rate and 
the UP-84 mortality table (which, solely for purposes of this example, 
are assumed to be reasonable actuarial assumptions for December 31, 
2001). Because the life annuity of $4,856 per year (which is equivalent 
to the amount taken into account at the early inclusion date) exceeds 
the $4,000 annuity attributable to the amount deferred in 2001, no 
additional amount is required to be taken into account for that amount 
deferred as of the resolution date. Employer O may claim a refund or 
credit for the overpayment of FICA tax with respect to amounts taken 
into account prior to the resolution date to the extent permitted by 
sections 6402, 6413, and 6511.
    Example 13: (i) The facts are the same as in Example 12, except that 
Employee C became a participant in the SERP on January 1, 2000. In 
addition, Employer O determines in 2018 that during 2000 Employee C 
earned a legally binding right to a life annuity of $1,500 per year 
beginning on December 31, 2018.
    (ii) Employer O may allocate the $15,834 previously taken into 
account among any amounts deferred on or before the early inclusion 
date. At the resolution date, Employer O will have to take into account 
the present value of an annuity equal to the excess of the life annuity 
attributable to the amounts deferred for 2000 and 2001 over a life 
annuity of $4,856 per year.
    Example 14: (i) In 2003, Employer P establishes a nonqualified 
deferred compensation plan for Employee D. The plan provides that, in 
consideration of Employee D's services to be performed on Project X in 
2004, Employee D will have a nonforfeitable right to receive 1 percent 
per year of Employer P's net profits associated with Project X for each 
of the immediately succeeding three years. No services beyond 2004 are 
required. The 1 percent of net profits payable each year will be paid on 
March 31 of the immediately succeeding year. One percent of net profits 
associated with Project X is $750,000 in 2005, $400,000 in 2006, and 
$90,000 in 2007. Employee D receives $750,000 on March 31, 2006, 
$400,000 on March 31, 2007, and $90,000 on March 31, 2008.
    (ii) Because the services creating the right to all of the amount 
deferred are performed in 2004, the benefit payments based on the

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2005, 2006, and 2007 net profits are all attributable to the amount 
deferred in 2004. However, because the present value of Employee D's 
future benefit is contingent on future profits, the determination of the 
amount deferred requires the use of assumptions other than interest, 
mortality, and cost of living. Thus, all of the amount deferred in 2004 
will not be reasonably ascertainable within the meaning of paragraph 
(e)(4)(i) of this section until December 31, 2007 (which is the 
resolution date). Employer P does not choose to take any amount into 
account prior to the amount deferred becoming reasonably ascertainable.
    (iii) However, paragraph (d)(1)(ii)(A) of this section provides that 
a benefit payment attributable to an amount deferred under a 
nonqualified deferred compensation plan must be included as wages when 
actually or constructively paid if the amount deferred has not been 
taken into account as wages under the special timing rule of paragraph 
(a)(2) of this section. Thus, the benefit payments in 2006 and 2007 must 
be included as wages when paid.
    (iv) As of December 31, 2007, all of the amount deferred under the 
plan becomes reasonably ascertainable because the amount of the benefit 
payable attributable to the amount deferred is treated as known under 
paragraph (e)(4)(i)(B) of this section, and the only assumption needed 
to determine the present value of the future benefits is interest. 
However, since Employer P was required to treat the payments in 2006 and 
2007 as wages when paid under the general timing rule of paragraph 
(a)(1) of this section, only the present value of the payment to be made 
in 2008 is required to be taken into account as of the resolution date 
(December 31, 2007) under the special timing rule of paragraph (a)(2) of 
this section. Using an interest rate of 10 percent per year (which, 
solely for purposes of this Example 14, is assumed to be reasonable), 
Employer P determines that on December 31, 2007, the present value of 
the future benefits is $87,881, and Employer P includes that additional 
amount in wages for 2007. (Note that Employer P can choose to use the 
lag method of withholding described in paragraph (f)(3) of this section, 
which allows the resolution date amount to be taken into account no 
later than March 31, 2008, provided that the amount deferred is 
increased by interest using the AFR for January of 2008.)
    Example 15: (i) The facts are the same as in Example 14, except that 
Employer P chooses the early inclusion option permitted by paragraph 
(e)(4)(ii) of this section to take $1,000,000 into account on December 
31, 2004, before the amount deferred for 2004 is reasonably 
ascertainable.
    (ii) Pursuant to paragraph (e)(4)(ii)(E) of this section, in 
applying the nonduplication rule of paragraph (a)(2)(iii) of this 
section, a first-in-first-out rule applies in determining the benefit 
payments that are attributable to amounts previously taken into account. 
Using the 10 percent interest rate, Employer P determines that the 
$750,000 benefit payment on March 31, 2006, and the March 31, 2007, 
benefit payment of $400,000 are less than the $1,000,000 taken into 
account at the early inclusion date, plus attributable income, and, 
therefore, are not included in wages when paid.
    (iii) Under paragraph (e)(4)(ii)(E) of this section, if an employer 
chooses to take an amount into account before the resolution date, the 
amount taken into account (plus income attributable to that amount) is 
disregarded to the extent the amount is attributed to benefit payments 
made before the resolution date. Thus, Employer P must reduce the 
$1,000,000 taken into account in 2004 (plus income attributable to that 
amount) based upon the two benefit payments ($750,000 and $400,000) that 
were excluded from wages. Using an interest rate of 10 percent, Employer 
P determines that the amount taken into account in 2004 plus interest to 
the resolution date and reduced based upon the two benefit payments is 
$15,228 and the additional amount that is required to be taken into 
account as of December 31, 2007, is $72,653 ($87,881-$15,228).
    Example 16: (i) Employee E obtains a fully vested, legally binding 
right during 2002, 2003, and 2004 to payments from a nonqualified 
deferred compensation plan of Employer Q under which the benefits are 
based on a formula that includes an actuarial offset by the account 
balance under a qualified defined contribution plan of Employer Q as of 
December 31, 2004. The payments from the nonqualified deferred 
compensation plan are to commence on December 31, 2005. At the 
resolution date for the amounts earned during 2002, 2003, and 2004, 
which is December 31, 2004, Employee E has a legally binding right to a 
net annual benefit of $100,000 payable for life to commence on December 
31, 2005. On the resolution date, Employer Q determines that on December 
31, 2002, Employee E had a legally binding right to receive $100,000 
annually for life beginning on December 31, 2005 (as a result of the 
gross benefit under the nonqualified plan being $120,000 annually for 
life, and the offset being $20,000 annually for life, as of December 31, 
2002). On December 31, 2003, Employee E had a legally binding right to 
receive $95,000 annually for life beginning on December 31, 2005 (as a 
result of the gross benefit under the nonqualified plan being $135,000 
annually for life, and the offset being $40,000 annually for life, as of 
December 31, 2003). On December 31, 2004, Employee E had a legally 
binding right to receive $100,000 annually for life beginning on 
December 31, 2005 (as a result of the gross benefit under the 
nonqualified plan being $145,000 annually for life, and the offset being

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$45,000 annually for life, as of December 31, 2004).
    (ii) In this case, pursuant to paragraph (e)(4)(ii)(D)(4) of this 
section, Employer Q can attribute the entire $100,000 life annuity to 
the amount deferred for 2002, even though Employee E's benefit under the 
nonqualified deferred compensation plan is reduced to $95,000 in 2003.
    Example 17: (i) In 2010, Employee F performs services for which she 
earns a right to 10 percent of the proceeds from the sale of a motion 
picture. In 2011, Employee F performs services for which she earns a 
right to 10 percent of the proceeds from the sale of another motion 
picture. These proceeds are calculated by subtracting the total 
advertising expenses for both movies. Payment is to be made in the year 
following the date on which both pictures have been sold, but not later 
than 2018. At the end of 2010, the advertising expenses for both 
pictures totaled $300,000. The first motion picture is sold for 
$10,000,000 in 2014. The second motion picture is sold for $17,000,000 
in 2017. At the end of 2017, the advertising expenses totaled 
$1,700,000. In 2018, Employee F is paid $2,530,000 (10 percent of the 
sum of $10,000,000 and $17,000,000 minus $1,700,000).
    (ii) Pursuant to paragraph (e)(4)(ii)(D)(4) of this section, 
$970,000 (10 percent of the excess of the gross proceeds from the sale 
of the first motion picture at the resolution date in 2017 over the 
advertising expenses incurred at the end of 2010) of the payment made in 
2018 can be attributed to the amount deferred in 2010 (and with the 
remaining payment of $1,560,000 to be attributed to the amount deferred 
in 2011).

    (f) Withholding--(1) In general. Unless an employer applies an 
alternative method described in paragraph (f)(2) or (3) of this section, 
an amount deferred under a nonqualified deferred compensation plan for 
any employee is treated, for purposes of withholding and depositing FICA 
tax, as wages paid by the employer and received by the employee at the 
time it is taken into account in accordance with paragraph (e) of this 
section. However, paragraphs (f)(2) and (3) of this section provide 
alternative methods which may be used with respect to an amount deferred 
for an employee. An employer is not required to be consistent in 
applying the alternatives described in this paragraph (f) with respect 
to different employees or amounts deferred.
    (2) Estimated method--(i) In general. Under the alternative method 
provided in this paragraph (f)(2), the employer may make a reasonable 
estimate of the amount deferred on the date on which the amount is taken 
into account in accordance with paragraph (e) of this section and take 
that estimated amount into account as wages paid by the employer and 
received by the employee on that date (the estimate date), for purposes 
of withholding and depositing FICA tax.
    (ii) Underestimate of the amount deferred--(A) General rule. If the 
employer underestimates the amount deferred (as determined after 
calculating the actual amount deferred that should have been taken into 
account as of the date on which the amount was taken into account in 
accordance with paragraph (e) of this section, using an interest rate 
and other actuarial assumptions that are reasonable as of that date), 
the employer may treat the shortfall as wages paid as of the estimate 
date or as of any date that is no later than three months after the 
estimate date. In either case, the shortfall does not include the income 
credited to the amount deferred after the amount is taken into account 
in accordance with paragraph (e) of this section.
    (B) Shortfall is treated as wages paid on a date after the estimate 
date. If the employer chooses to treat the shortfall as wages paid on a 
date that is no later than three months after the estimate date, the 
employer must take that shortfall into account as wages paid by the 
employer and received by the employee on that date, for purposes of 
withholding and depositing FICA tax.
    (C) Shortfall is treated as wages paid on the estimate date. If the 
employer chooses to treat the shortfall as wages paid as of the estimate 
date, the shortfall is treated as an error for purposes of withholding 
and depositing FICA tax. Appropriate adjustments may be made in 
accordance with section 6205(a) and the regulations thereunder; however, 
for purposes of Sec. 31.6205-1(b), the error need not be treated as 
ascertained before the date that is three months after the estimate 
date.
    (D) Reporting. The employer must report the shortfall as wages on 
Form 941, Employer's Quarterly Federal Tax Return (and, if applicable, 
Form 941c, Supporting Statement to Correct Information) and Form W-2, 
Wage and Tax Statement (or, if applicable, Form W-

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2c, Corrected Wage and Tax Statement) in accordance with its treatment 
of the shortfall under paragraph (f)(2)(ii) (B) or (C) of this section.
    (iii) Overestimate of the amount deferred. If the employer 
overestimates the amount deferred (as determined after calculating the 
actual amount deferred that should have been taken into account as of 
the date on which the amount was taken into account in accordance with 
paragraph (e) of this section, using an interest rate and actuarial 
assumptions that are reasonable as of that date) and deposits more than 
the amount required, the employer may claim a refund or credit in 
accordance with sections 6402, 6413, and 6511. A Form 941c, or an 
equivalent statement, must accompany each claim for refund. In addition, 
Form W-2 or, if applicable, Form W-2c must also reflect the actual 
amount deferred that should have been taken into account.
    (3) Lag method. Under the alternative method provided in this 
paragraph (f)(3), an amount deferred, plus interest, may be treated as 
wages paid by the employer and received by the employee, for purposes of 
withholding and depositing FICA tax, on any date that is no later than 
three months after the date the amount is required to be taken into 
account in accordance with paragraph (e) of this section. For purposes 
of this paragraph (f)(3), the amount deferred must be increased by 
interest through the date on which the wages are treated as paid, at a 
rate that is not less than AFR. If the employer withholds and deposits 
FICA tax in accordance with this paragraph (f)(3), the employer will be 
treated as having taken into account the amount deferred plus income to 
the date on which the wages are treated as paid.
    (4) Examples. This paragraph (f) is illustrated by the following 
examples:

    Example 1: (i) Employer M maintains a nonqualified deferred 
compensation plan that is an account balance plan. The plan provides for 
annual bonuses based on current year profits to be deferred until 
termination of employment. Employer M's profits for 2003, and thus the 
amount deferred, is reasonably ascertainable, but Employer M calculates 
the amount deferred on March 3, 2004, when the relevant data is 
available.
    (ii) In accordance with the alternative method described in 
paragraph (f)(2) of this section, Employer M makes a reasonable estimate 
that the amount deferred that must be taken into account as of December 
31, 2003, for Employee A is $20,000, and withholds and deposits FICA tax 
on that amount as if it were wages paid by Employer M and received by 
Employee A on that date. In January of 2004, Employer M files and 
furnishes Form W-2 for Employee A including the $20,000 in FICA wages. 
On March 3, 2004, Employer M determines that the actual amount deferred 
that should have been taken into account on December 31, 2003, was 
$22,000.
    (iii) In accordance with the alternative method described in 
paragraph (f)(2)(ii) of this section, Employer M may treat the 
additional $2,000 as wages paid to and received by Employee A on 
December 31, 2003, the estimate date. Employer M may treat the $2,000 
shortfall as an error ascertained on March 3, 2004, and withhold and 
deposit FICA tax on that amount. Form W-2c for Employee A for 2003 must 
include the $2,000 shortfall in FICA wages. Employer M must also correct 
the information on Form 941 for the last quarter of 2003, reporting the 
adjustment on Form 941 for the first quarter of 2004, accompanied by 
Form 941c for the last quarter of 2003.
    (iv) Instead, Employer M may treat the $2,000 shortfall as wages 
paid on March 31, 2004, and withhold and deposit FICA tax on that amount 
as if it were wages paid by Employer M and received by Employee A on 
that date. Form W-2 for Employee A for 2004 and Form 941 for the first 
quarter of 2004 must include the $2,000 shortfall in FICA wages.
    Example 2: (i) The facts are the same as in Example 1, except that 
on March 3, 2004, Employer M determines that the actual amount deferred 
that should have been taken into account on December 31, 2003, was 
$19,000.
    (ii) Under paragraph (f)(2)(iii) of this section, Employer M may, in 
accordance with sections 6402, 6413, and 6511, claim a refund or credit 
for the overpayment of tax resulting from the overestimate. In addition, 
Employer M must file and furnish a Form W-2c for Employee A and must 
correct the information on Form 941 for the last quarter of 2003.
    Example 3: (i) The facts are the same as in Example 1, except that 
Employer M does not make a reasonable estimate of the amount deferred 
that must be taken into account as of December 31, 2003. Instead, 
Employer M withholds and deposits FICA tax on the amount deferred plus 
interest on that amount using AFR (for January 2004) as if it were wages 
paid by Employer M and received by Employee A on March 15, 2004.
    (ii) Under the alternative method described in paragraph (f)(3) of 
this section, the amount taken into account on March 15, 2004 (including 
the interest), will be treated as FICA wages paid to and received by 
Employee A on March 15, 2004.

[[Page 130]]

    Example 4: (i) The facts are the same as in Example 1, except that 
an amount is also deferred for Employee B which is required to be taken 
into account on October 15, 2003, and Employer M chooses to use the lag 
method in paragraph (f)(3) of this section in order to provide time to 
calculate the amount deferred.
    (ii) Employer M may use any date not later than January 15, 2004, to 
take the amount deferred into account (provided that the amount deferred 
includes interest, at AFR for January 1, 2003, through December 31, 
2003, and at AFR for January 1, 2004, through January 15, 2004).

    (g) Effective date and transition rules--(1) General effective date. 
Except for paragraphs (g)(2) through (4) of this section, this section 
is applicable on and after January 1, 2000. Thus, paragraphs (a) through 
(f) of this section apply to amounts deferred on or after January 1, 
2000; to amounts deferred before January 1, 2000, which cease to be 
subject to a substantial risk of forfeiture on or after January 1, 2000, 
or for which a resolution date occurs on or after January 1, 2000; and 
to benefits actually or constructively paid on or after January 1, 2000.
    (2) Reasonable, good faith interpretation for amounts deferred and 
benefits paid before January 1, 2000--(i) In general. For periods before 
January 1, 2000 (including amounts deferred before January 1, 2000, and 
any benefits actually or constructively paid before January 1, 2000, 
that are attributable to those amounts deferred), an employer may rely 
on a reasonable, good faith interpretation of section 3121(v)(2), taking 
into account pre-existing guidance. An employer will be deemed to have 
determined FICA tax liability and satisfied FICA withholding 
requirements in accordance with a reasonable, good faith interpretation 
of section 3121(v)(2) if the employer has complied with paragraphs (a) 
through (f) of this section. For purposes of paragraphs (g)(2) through 
(4) of this section, and subject to paragraphs (g)(2)(ii) and (iii) of 
this section, whether an employer that has not complied with paragraphs 
(a) through (f) of this section has determined FICA tax liability and 
satisfied FICA withholding requirements in accordance with a reasonable, 
good faith interpretation of section 3121(v)(2) will be determined based 
on the relevant facts and circumstances, including consistency of 
treatment by the employer and the extent to which the employer has 
resolved unclear issues in its favor.
    (ii) Plan must be established or adopted. If an amount is deferred 
under a plan before January 1, 2000, and benefit payments attributable 
to that amount are actually or constructively paid on or after January 
1, 2000, then in no event will an employer's treatment of the amount 
deferred be considered to be in accordance with a reasonable, good faith 
interpretation of section 3121(v)(2) if the employer treats that amount 
as taken into account as wages for FICA tax purposes prior to the 
establishment of the plan (within the meaning of paragraph (b)(2) of 
this section) providing for the deferred compensation (or, if later, the 
establishment of the plan as amended to provide for the deferred 
compensation, as provided in paragraph (b)(2)(ii) of this section). If 
an amount is deferred under a plan before January 1, 2000, and benefit 
payments attributable to that amount are actually or constructively paid 
before January 1, 2000, then in no event will the employer's treatment 
of that amount deferred be considered to be in accordance with a 
reasonable, good faith interpretation of section 3121(v)(2) if the 
employer treats that amount as taken into account as wages for FICA tax 
purposes prior to the adoption of the plan providing for the deferred 
compensation (or, if later, the adoption of the plan amendment providing 
the deferred compensation). For example, awards, bonuses, raises, 
incentive payments, and other similar amounts granted under a plan as 
compensation for past services may not be taken into account under 
section 3121(v)(2) prior to the establishment (or, if applicable, the 
adoption) of the plan.
    (iii) Certain changes in position for stock options, stock 
appreciation rights, and other stock value rights not reasonable, good 
faith interpretation. In the case of a stock option, stock appreciation 
right, or other stock value right (as defined in paragraph (b)(4)(ii) of 
this section) that is exercised before January 1, 2000, an employer that 
treats the exercise as not subject to FICA tax as a result of the 
nonduplication rule of section 3121(v)(2)(B) is not

[[Page 131]]

acting in accordance with a reasonable, good faith interpretation of 
section 3121(v)(2) if the employer has not treated that grant and all 
earlier grants as subject to section 3121(v)(2) by reporting the current 
value of such options and rights as FICA wages on Form 941 filed for the 
quarter during which each grant was made (or, if later, for the quarter 
during which each grant ceased to be subject to a substantial risk of 
forfeiture).
    (3) Optional adjustments to conform with this section for pre-
effective-date open periods--(i) General rule. If an employer determined 
FICA tax liability with respect to section 3121(v)(2) in any period 
ending before January 1, 2000, for which the applicable period of 
limitations has not expired on January 1, 2000 (pre-effective-date open 
periods), in a manner that was not in accordance with this section, the 
employer may adjust its FICA tax determination for that period to 
conform to this section. Thus, if an amount deferred was taken into 
account in a pre-effective-date open period when it was not required to 
be taken into account (e.g., an amount taken into account before it 
became reasonably ascertainable), the employer may claim a refund or 
credit for any FICA tax paid on that amount to the extent permitted by 
sections 6402, 6413, and 6511.
    (ii) Consistency required. In the case of a plan that is not a 
nonqualified deferred compensation plan (within the meaning of paragraph 
(b)(1) of this section), if any payment was actually or constructively 
paid to an employee under the plan in a pre-effective-date open period 
and that payment was not included in FICA wages by reason of the 
employer's treatment of the plan as a nonqualified deferred compensation 
plan, then the employer may claim a refund or credit for FICA tax paid 
on amounts treated as amounts deferred under the plan (in accordance 
with the employer's treatment of the plan as a nonqualified deferred 
compensation plan) for that employee for pre-effective-date open periods 
only to the extent that the FICA tax paid on all amounts treated as 
amounts deferred for the employee in all pre-effective-date open periods 
under the plan exceeds the FICA tax that would have been due on the 
benefits actually or constructively paid to the employee in those 
periods under the plan if those benefits were included in FICA wages 
when paid. If any benefit payments attributable to amounts deferred 
after December 31, 1993, were actually or constructively paid to an 
employee under a nonqualified deferred compensation plan (within the 
meaning of paragraph (b)(1) of this section) in a pre-effective-date 
open period, but these payments were treated as subject to FICA tax 
because the employer treated the plan as not being a nonqualified 
deferred compensation plan, then the employer may claim a refund or 
credit for the FICA tax paid on those benefit payments only to the 
extent that the FICA tax paid on those benefit payments exceeds the FICA 
tax that would have been due on the amounts deferred to which those 
benefit payments are attributable if those amounts deferred had been 
taken into account when they would have been required to have been taken 
into account under this section (if this section had been in effect 
then).
    (iii) Reporting. Any employer that adjusts its FICA tax 
determination in accordance with paragraphs (g)(3)(i) and (ii) of this 
section must make appropriate adjustments on Form 941 and Form 941c for 
the affected periods, and, in addition, must file and furnish Form W-2, 
or, if applicable, Form W-2c, for any affected employee so that the 
Social Security Administration may correctly post the amount deferred to 
the employee's earnings record. The adjustments may be made in 
accordance with section 6205(a) and the regulations thereunder; however, 
for purposes of Sec. 31.6205-1(b), the error is not required to be 
treated as ascertained before March 31, 2000.
    (4) Application of reasonable, good faith standard--(i) Plans that 
are not subject to section 3121(v)(2). If a plan is not a nonqualified 
deferred compensation plan within the meaning of paragraph (b)(1) of 
this section, but, for a period ending prior to January 1, 2000, and, 
pursuant to a reasonable, good faith interpretation of section 
3121(v)(2), an amount under the plan was taken into account (within the 
meaning of paragraph (d)(1) of this section) as an amount deferred

[[Page 132]]

under a nonqualified deferred compensation plan, then, pursuant to 
paragraph (g)(2) of this section, the following rules shall apply--
    (A) With respect to benefit payments actually or constructively paid 
before January 1, 2000, that are attributable to amounts previously 
taken into account under the plan, no additional FICA tax will be due;
    (B) On or after January 1, 2000, benefit payments under the plan 
must be taken into account as wages when actually or constructively paid 
in accordance with paragraph (a)(1) of this section; and
    (C) To the extent permitted by paragraph (g)(3) of this section, the 
employer may claim a refund or credit for FICA tax actually paid on 
amounts taken into account prior to January 1, 2000.
    (ii) Plans that are subject to section 3121(v)(2) for which the 
amount deferred has not been fully taken into account--(A) In general. 
The rules of paragraphs (g)(4)(ii)(B) through (E) of this section apply 
if a plan is a nonqualified deferred compensation plan (within the 
meaning of paragraph (b)(1) of this section) and, with respect to an 
amount deferred under the plan for an employee prior to January 1, 2000, 
the employer, in accordance with a reasonable, good faith interpretation 
of section 3121(v)(2), either took into account an amount that is less 
than the amount that would have been required to be taken into account 
if paragraphs (a) through (f) of this section had been in effect for 
that period or took no amount into account. Thus, paragraphs 
(g)(4)(ii)(B) through (E) of this section apply both to an employer that 
treated the plan as if it were not a nonqualified deferred compensation 
plan within the meaning of section 3121(v)(2) (by withholding and paying 
FICA tax due on benefits actually or constructively paid under the plan 
during that period, if any) and to an employer that treated the plan as 
a nonqualified deferred compensation plan within the meaning of section 
3121(v)(2).
    (B) No additional tax required. Pursuant to paragraph (g)(2) of this 
section, no additional FICA tax will be due for any period ending prior 
to January 1, 2000.
    (C) General timing rule applicable. In accordance with paragraph 
(d)(1)(ii) of this section, except as provided in paragraphs (g)(4)(ii) 
(D) and (E), the general timing rule described in paragraph (a)(1) of 
this section applies to benefits actually or constructively paid on or 
after January 1, 2000, attributable to an amount deferred in a period 
before January 1, 2000, to the extent the amount taken into account was 
less than the amount that would have been required to be taken into 
account if paragraphs (a) through (f) of this section had been in effect 
before January 1, 2000.
    (D) Special rule for amounts deferred before 1994. The difference 
between the amount that was taken into account in any period ending 
prior to January 1, 1994, and the amount that would have been required 
or permitted to be taken into account in that period if paragraphs (a) 
through (f) of this section had been in effect is treated as if it had 
been taken into account within the meaning of paragraph (d)(1) of this 
section. For example, in the case of an amount deferred before 1994 that 
was not reasonably ascertainable (and which was not subject to a 
substantial risk of forfeiture), the employer is treated as if it had 
anticipated the actual amount, form, and commencement date for the 
benefit payments attributable to the amount deferred and had taken the 
amount deferred into account at an early inclusion date before 1994 
using a method permitted under this section. Thus, with respect to such 
an amount deferred, the employer is not required to take any additional 
amount into account when the amount deferred becomes reasonably 
ascertainable, and no additional FICA tax will be due when the benefit 
payments attributable to the amount deferred are actually or 
constructively paid.
    (E) Special rule for amounts required to be taken into account in 
1994 or 1995. In the case of an amount deferred that would have been 
required to be taken into account in 1994 or 1995 if paragraphs (a) 
through (f) of this section had been in effect, an employer will be 
treated as taking the amount deferred into account under paragraph 
(d)(1) of this section to the extent the employer takes the amount into 
account by

[[Page 133]]

treating it as wages paid by the employer and received by the employee 
as of any date prior to April 1, 2000.
    (iii) Plans that are subject to section 3121(v)(2) for which more 
than the amount deferred has been taken into account. If a plan is a 
nonqualified deferred compensation plan (within the meaning of paragraph 
(b)(1) of this section) and an amount was taken into account under the 
plan for an employee before January 1, 2000, in accordance with a 
reasonable, good faith interpretation of section 3121(v)(2), but that 
amount could not have been taken into account before January 1, 2000, if 
paragraphs (a) through (f) of this section had been in effect then, the 
following rules apply--
    (A) The determination of the amount deferred for any period 
beginning on or after January 1, 2000, must be made in accordance with 
paragraph (c) of this section, and the time when amounts deferred under 
the plan are required to be taken into account must be determined in 
accordance with paragraph (e) of this section, without regard to any 
such amount that was taken into account for any period ending before 
January 1, 2000; and
    (B) To the extent permitted by sections 6402, 6413, and 6511, the 
employer may claim a refund or credit for an overpayment of tax caused 
by the overinclusion of wages that occurred before January 1, 2000.
    (5) Examples. This paragraph (g) is illustrated by the following 
examples:

    Example 1: (i) In 1996, Employer M establishes a nonqualified 
deferred compensation plan that is a nonaccount balance plan for 
Employee A. All benefits under the plan are 100 percent vested. In order 
to determine the amount deferred on behalf of Employee A under the plan 
for 1996 and 1997, Employer M must make assumptions as to the date on 
which Employee A will retire and the form of benefit Employee A will 
elect, in addition to interest, mortality, and cost-of-living 
assumptions. Based on assumptions made with respect to all of these 
contingencies, Employer M determines that the amount deferred for 1996 
is $50,000 and the amount deferred for 1997 is $55,000. In 1996 and 
1997, Employee A's total wages (without regard to the amounts deferred) 
exceed the OASDI wage bases. Employer M withholds and deposits HI tax on 
the $50,000 and $55,000 amounts. Employee A does not retire before 
January 1, 2000. Employer M chooses under paragraph (g)(3) of this 
section to apply this section to 1996 and 1997 before the January 1, 
2000, general effective date.
    (ii) Under this section, the amounts deferred in 1996 and 1997 are 
not reasonably ascertainable (within the meaning of paragraph (e)(4)(i) 
of this section) before January 1, 2000. Thus, as long as the applicable 
period of limitations has not expired for the periods in 1996 and 1997, 
Employer M may, to the extent permitted under paragraph (g)(3) of this 
section, apply for a refund or credit for the HI tax paid on the amounts 
deferred for 1996 and 1997 and, in accordance with paragraph (e)(4) of 
this section, take into account the amounts deferred when they become 
reasonably ascertainable.
    Example 2: (i) Employer N adopts a plan on January 1, 1994, that 
covers Employee B, who has 10 years of service as of that date. The plan 
provides that, in consideration of Employee B's outstanding services 
over the past 10 years, Employee B will be paid a $500,000 lump sum 
distribution upon termination of employment at any time. On January 15, 
1996, Employee B terminates employment with Employer N. Employer N 
determines, based on a reasonable, good faith interpretation of section 
3121(v)(2), that the plan is a nonqualified deferred compensation plan 
under that section. Employer N treats the $500,000 as having been taken 
into account as an amount deferred in 1993 and earlier years.
    (ii) Under paragraph (g)(2)(ii) of this section, if all amounts are 
deferred and all benefits are paid under a plan before January 1, 2000, 
then in no event will an employer's treatment of amounts deferred under 
the plan be considered to be in accordance with a reasonable, good faith 
interpretation of section 3121(v)(2) if the employer treats these 
amounts as taken into account as wages for FICA tax purposes prior to 
the adoption of the plan. Accordingly, Employer N's treatment is not in 
accordance with a reasonable, good faith interpretation of section 
3121(v)(2) because Employer N treated amounts as taken into account in 
years before the adoption of the plan. As a result, the payment made to 
Employee B in 1996 was subject to both the OASDI and HI portions of FICA 
tax when paid.
    Example 3: (i) Employer O adopts a bonus plan on December 1, 1993, 
that becomes effective and legally binding on January 1, 1994. Under the 
plan, which is not set forth in writing, a specified bonus amount (which 
is 100 percent vested) is credited to Employee C's account each December 
31. A reasonable rate of interest on Employee C's account balance is 
credited quarterly. Employee C's account balance will begin to be paid 
in equal annual installments over 10 years beginning on January 1, 2000. 
Employer O determines, based on a reasonable, good faith interpretation 
of section 3121(v)(2), that the bonus plan is a nonqualified deferred 
compensation plan

[[Page 134]]

under that section and, therefore, treats the amounts credited from 
January 1, 1994, through December 31, 1999, as amounts deferred and, in 
accordance with a reasonable, good faith interpretation of section 
3121(v)(2), takes those amounts deferred into account as wages for FICA 
tax purposes as of those dates. The bonus plan is set forth in writing 
on May 1, 1999, and, thus, is treated as established as of January 1, 
1994.
    (ii) Under paragraph (g)(2)(ii) of this section, if an amount is 
deferred before January 1, 2000, and the attributable benefit is paid on 
or after January 1, 2000, then in no event will an employer's treatment 
of the amount deferred under a plan be considered to be in accordance 
with a reasonable, good faith interpretation of section 3121(v)(2) if 
the employer treats the amount deferred as taken into account as wages 
for FICA tax purposes prior to the establishment of the plan (within the 
meaning of paragraph (b)(2) of this section). Because the bonus plan is 
treated as established on January 1, 1994 (pursuant to the transition 
rule for unwritten plans in paragraph (b)(2)(iii) of this section), and 
because Employer O, in accordance with a reasonable, good faith 
interpretation of section 3121(v)(2), took amounts deferred into account 
in 1994 through 1999, the amounts paid to Employee C attributable to 
those amounts deferred will not be subject to FICA tax when paid.
    Example 4: (i) In 1985, Employer P establishes a compensation 
arrangement for Employee D that provides for a lump sum payment to be 
made after termination of employment but the arrangement is not a 
nonqualified deferred compensation plan (within the meaning of paragraph 
(b)(1) of this section). However, prior to January 1, 2000, and in 
accordance with a reasonable, good faith interpretation of section 
3121(v)(2), Employer P treats the arrangement as a nonqualified deferred 
compensation plan under section 3121(v)(2). Employer P determines that 
Employee D's total wages (without regard to the amount deferred) for 
each year from 1985 through 1993 exceed the applicable OASDI and HI wage 
bases for each of those years and, consequently, there is no FICA tax 
liability with respect to the amounts deferred for those years. In 1994, 
Employee D's total wages (without regard to the amount deferred) exceed 
the OASDI wage base. However, because there is no limit on the HI wage 
base, the amount deferred for 1994 results in additional HI tax 
liability of $290, which is timely paid by Employer P.
    (ii) Employee D terminates employment with Employer P in 1995 and 
receives a plan payment of $50,000. In that year, Employee D also 
receives wages of $60,000 from Employer P. In accordance with its 
treatment of the plan as a nonqualified deferred compensation plan under 
section 3121(v)(2), Employer P does not treat the $50,000 payment in 
1995 as wages for FICA tax purposes in that year.
    (iii) Because amounts under a plan were taken into account (within 
the meaning of paragraph (d)(1) of this section) as amounts deferred 
under a nonqualified deferred compensation plan pursuant to a 
reasonable, good faith interpretation of section 3121(v)(2)(A), but that 
plan is not a nonqualified deferred compensation plan within the meaning 
of paragraph (b)(1) of this section, the transition rules provided in 
paragraph (g)(4)(i) of this section apply. Thus, no additional FICA tax 
will be due on the benefits paid in 1995.
    (iv) Because $290 of HI tax was paid on the amount deferred in 1994, 
Employer P is entitled to a refund or credit for that amount to the 
extent permitted under sections 6402, 6413, and 6511--but only to the 
extent that $290 exceeds the FICA tax that would have been due on the 
$50,000 payment in 1995 if that payment had been subject to FICA tax 
when paid (i.e., if paragraphs (a) through (f) of this section had been 
effective for those years). In 1995, Employee D had other wages of 
$60,000. Thus, only $1,200 (the $61,200 OASDI wage base, less the 
$60,000 of other wages) of the $50,000 payment would have been subject 
to OASDI; the full $50,000 would have been subject to HI. This would 
have resulted in $148.80 of OASDI tax ($1,200 x 12.4 percent) and $1,450 
of HI tax ($50,000 x 2.9 percent). Employer P is not entitled to a 
refund or credit under the consistency rule of paragraph (g)(3)(ii) 
because the $290 of HI tax paid in 1994 is less than the total $1,598.80 
of FICA tax liability that would have resulted if this section had 
applied for 1995.
    (v) However, if the benefit payment is instead actually or 
constructively paid on or after January 1, 2000, the benefit payment 
must be taken into account as wages when actually or constructively paid 
in accordance with the general timing rule of paragraph (a)(1) of this 
section (and paragraph (g)(4)(i)(B) of this section).
    Example 5: (i) In 1985, Employer Q establishes a compensation 
arrangement for Employee E that is a nonqualified deferred compensation 
plan within the meaning of paragraph (b)(1) of this section. However, 
prior to January 1, 2000, Employer Q determines, based on a reasonable, 
good faith interpretation of section 3121(v)(2), that the arrangement is 
not a nonqualified deferred compensation plan within the meaning of that 
section. Thus, when Employee E retires at the end of 1996 and benefit 
payments under the arrangement begin in 1997, Employer Q withholds and 
deposits FICA tax on the amounts paid to Employee E. Payments under the 
arrangement continue on or after January 1, 2000. Employer Q does not 
choose

[[Page 135]]

(under paragraph (g)(3) of this section) to adjust its FICA tax 
determination for a pre-effective-date open period by treating this 
section as in effect for all amounts deferred and benefits actually or 
constructively paid for any such period. The periods in 1994 and 1995 
are not pre-effective-date open periods for Employer Q.
    (ii) Under paragraph (g)(4)(ii) of this section, for purposes of 
determining whether benefits actually or constructively paid on or after 
January 1, 2000, were previously taken into account for purposes of 
applying the nonduplication rule of section 3121(v)(2)(B), any amount 
that would have been required to have been taken into account before 
1994 will be treated as if it had been taken into account within the 
meaning of paragraph (d)(1) of this section. Under the nonduplication 
rule, benefit payments attributable to an amount that has been so 
treated as taken into account is not treated as wages for FICA tax 
purposes at any later time (such as upon payment).
    (iii) Because Employer Q does not adjust its FICA tax determination 
by treating this section as in effect for all amounts deferred for 
periods ending after December 31, 1993, any benefit payments 
attributable to amounts deferred in periods ending after December 31, 
1993, will be included in wages when actually or constructively paid in 
accordance with the general timing rule of paragraph (a)(1) of this 
section.
    Example 6: (i) The facts are the same as in Example 5, except that 
Employer Q chooses (in accordance with paragraph (g)(3) of this section) 
to adjust its FICA tax determination for all pre-effective-date open 
periods by treating this section as in effect for all amounts deferred 
for those periods. In addition, Employer Q chooses (in accordance with 
paragraph (g)(4)(ii)(E) of this section) to take the amounts deferred 
for 1994 and 1995 into account by treating these amounts as FICA wages 
paid and received by Employee E on January 15, 2000.
    (ii) In accordance with the nonduplication rule of paragraph 
(a)(2)(iii) of this section, because all amounts deferred for Employee E 
under the plan were taken into account (or treated as taken into 
account), any benefit payments made to Employee E under the plan will 
not be included as FICA wages when actually or constructively paid.
    Example 7: (i) The facts are the same as in Example 5, except that 
Employer Q does not withhold and deposit the FICA tax due on benefits 
actually or constructively paid before January 1, 2000.
    (ii) Because Employer Q did not withhold and deposit the FICA tax 
due on benefits actually or constructively paid before January 1, 2000, 
Employer Q did not determine FICA tax liability and satisfy FICA tax 
withholding requirements in accordance with a reasonable, good faith 
interpretation of section 3121(v)(2). Thus, the transition rules 
provided in paragraphs (g)(3) and (4) of this section do not apply. As a 
result, any amount that would have been required to have been taken into 
account under this section before 1994 is not treated as if it had been 
so taken into account under paragraph (g)(4)(ii)(D) of this section, and 
benefit payments attributable to amounts deferred before January 1, 
2000, are treated as FICA wages when actually or constructively paid in 
accordance with the general timing rule of paragraph (a)(1) of this 
section.
    Example 8: (i) In 1993, Employer R establishes a nonqualified 
deferred compensation plan for Employee F under which Employee F will 
have a fully vested right to receive a lump sum payment in 2000 equal to 
50 percent of Employee F's highest rate of salary. On December 31, 1993, 
Employee F's highest salary is $1 million. In accordance with a 
reasonable, good faith interpretation of section 3121(v)(2), Employer R 
determines that, for 1993, there is an amount deferred that must be 
taken into account as wages for FICA tax purposes. Based on Employer R's 
estimate that Employee F's highest salary will be $3 million in 2000, 
Employer R determines that the amount deferred is equal to the present 
value in 1993 of $1.5 million payable in 2000. However, because Employee 
F has other wages in 1993 that exceed the applicable OASDI and HI wage 
bases for that year, no additional FICA tax is paid as a result of that 
amount deferred being taken into account for 1993. In addition, Employer 
R takes no amounts into account under the plan after 1993 for Employee 
F. Under paragraphs (e)(1) and (4)(ii)(D)(2) of this section, the 
largest amount that could have been taken into account in 1993 is the 
present value of a lump sum payment of $500,000, payable in 2000, 
because that is the maximum amount to which Employee F has a legally 
binding right as of December 31, 1993. Employee F's highest salary is, 
in fact, $3 million in 2000 and Employee F receives $1.5 million under 
the plan on December 31, 2000.
    (ii) In accordance with paragraphs (g)(1) and (4)(iii)(A) of this 
section, the determination of the amount deferred under the plan for any 
period beginning on or after January 1, 2000, and the time when that 
amount deferred is required to be taken into account must be determined 
in accordance with this section. In addition, these determinations must 
be made without regard to any amount deferred that was taken into 
account for any period ending before January 1, 2000, that could not be 
taken into account before January 1, 2000, if paragraphs (a) through (f) 
of this section had been in effect. Because no FICA tax was actually 
paid on that $1 million in 1993, no overpayment of tax was caused by the 
overinclusion of wages in 1993 and, thus, Employer R is not entitled to 
a refund or credit (even assuming that the period

[[Page 136]]

of limitations has been kept open for periods in 1993). In addition, 
because the difference between the present value of the $1.5 million 
payment and the present value of a $500,000 payment was not taken into 
account for periods beginning on or after January 1, 1994, $1 million 
must be included in FICA wages under the general timing rule when paid.

[64 FR 4547, Jan. 29, 1999; 64 FR 15687, Apr. 1, 1999]



Sec. 31.3121(v)(2)-2  Effective dates and transition rules.

    (a) General statutory effective date. Except as otherwise provided 
in paragraphs (b) through (e) of this section, section 3121(v)(2) and 
the amendments made to section 3121(a)(2), (a)(3), and (a)(13) by the 
Social Security Amendments of 1983 (Pub. L. 98-21, 97 Stat. 65), as 
amended by section 2662(f)(2) of the Deficit Reduction Act of 1984 (Pub. 
L. 98-369, 98 Stat. 494), apply to amounts deferred and benefits paid 
after December 31, 1983.
    (b) Definitions. For purposes of Sec. 31.3121(v)(2)-1 and this 
section, the following definitions apply:
    (1) FICA. FICA means the Federal Insurance Contributions Act (26 
U.S.C. 3101 et seq.).
    (2) 457(a) plan. A 457(a) plan means an eligible deferred 
compensation plan of a State or local government or of a tax-exempt 
organization to which section 457(a) applies.
    (3) Gap agreement. Gap agreement means an agreement adopted after 
March 24, 1983, and on or before December 31, 1983, between an 
individual and a nonqualified deferred compensation plan within the 
meaning of Sec. 31.3121(v)(2)-1(b). Such an agreement does not fail to 
be a gap agreement merely because the terms of the plan are changed 
after December 31,1983.
    (4) Individual party to a gap agreement. Individual party to a gap 
agreement means an individual who was eligible to participate in a gap 
agreement on December 31, 1983, under the terms of the agreement on that 
date. An individual will be treated as an individual party to a gap 
agreement even if the individual has not accrued any benefits under the 
plan by December 31, 1983, and regardless of whether the individual has 
taken any specific action to become a party to the agreement. However, 
an individual who becomes eligible to participate in a gap agreement 
after December 31, 1983, is not an individual party to a gap agreement.
    (5) Individual party to a March 24, 1983 agreement. Individual party 
to a March 24, 1983 agreement means an individual who was eligible to 
participate in a March 24, 1983 agreement under the terms of the 
agreement on March 24, 1983. An individual will be treated as an 
individual party to a March 24, 1983 agreement even if the individual 
has not accrued any benefits under the plan by March 24, 1983, and 
regardless of whether the individual has taken any specific action to 
become a party to the agreement. However, an individual who becomes 
eligible to participate in a March 24, 1983 agreement after March 24, 
1983, is not an individual party to a March 24, 1983 agreement.
    (6) March 24, 1983 agreement. March 24, 1983 agreement means an 
agreement in existence on March 24, 1983, between an individual and a 
nonqualified deferred compensation plan within the meaning of 
Sec. 31.3121(v)(2)-1(b). Such an agreement does not fail to be a March 
24, 1983 agreement merely because the terms of the plan are changed 
after March 24, 1983. In addition, for purposes of this paragraph (b)(6) 
only, any plan (or agreement) that provides for payments that qualify 
for one of the retirement payment exclusions is treated as a 
nonqualified deferred compensation plan. For example, 
Sec. 31.3121(v)(2)-1(b)(4)(v) provides that certain benefits established 
in connection with impending termination do not result from the deferral 
of compensation and thus are not considered deferred under a 
nonqualified deferred compensation plan. However, a plan that provides 
such benefits and that was in existence on March 24, 1983, is treated as 
a nonqualified deferred compensation plan for purposes of this paragraph 
(b) to the extent it provides benefits that would have satisfied one of 
the retirement payment exclusions.
    (7) Retirement payment exclusions. Retirement payment exclusions are 
the exclusions from wages (for FICA tax purposes) for retirement 
payments under section 3121(a)(2)(A), (a)(3), and (a)(13)(A)(iii), as in 
effect on April 19,

[[Page 137]]

1983 (the day before enactment of the Social Security Amendments of 
1983).
    (8) Transition benefits. Transition benefits are payments made after 
December 31, 1983, attributable to services rendered before January 1, 
1984. For this purpose, transition benefits are determined without 
regard to any changes made in the terms of the plan after March 24, 
1983, in the case of a March 24, 1983 agreement or after December 31, 
1983, in the case of a gap agreement.
    (c) Transition rules--(1) In general. Except as provided in 
paragraph (c)(2) or (3) of this section, the general statutory effective 
date described in paragraph (a) of this section applies to benefit 
payments after December 31, 1983. Thus, except as provided in paragraph 
(c)(2) or (3) of this section, section 3121(v)(2) applies, and the 
retirement payment exclusions do not apply, to benefit payments made 
after December 31, 1983, even if the benefit payments are made under a 
March 24, 1983 agreement or a gap agreement.
    (2) Transition benefits under a March 24, 1983 agreement. With 
respect to an individual party to a March 24, 1983 agreement, transition 
benefits paid under that March 24, 1983 agreement (except for those paid 
under a 457(a) plan) are not subject to the special timing rule of 
section 3121(v)(2) and are subject to section 3121(a) as in effect on 
April 19, 1983. Thus, transition benefits under a March 24, 1983 
agreement (except for those under a 457(a) plan) to an individual party 
to a March 24, 1983 agreement are excluded from wages (for FICA tax 
purposes) only if they qualify for any of the retirement payment 
exclusions (or any other exclusion provided under section 3121(a) as in 
effect on April 19, 1983).
    (3) Transition benefits under a gap agreement. With respect to an 
individual party to a gap agreement, the payor of transition benefits 
under the gap agreement must choose to either--
    (i) Take the transition benefits into account as wages when paid; or
    (ii) Take the amount deferred (within the meaning of 
Sec. 31.3121(v)(2)-1(c)) with respect to the transition benefits into 
account as wages under section 3121(v)(2) (as if section 3121(v)(2) had 
applied before its general statutory effective date).
    (d) Determining transition benefit portion. For purposes of 
determining the portion of total benefits under a nonqualified deferred 
compensation plan that represents transition benefits, if, under the 
terms of the plan, benefit payments are not attributed to specific years 
of service, the employer may use any reasonable method. For example, if 
a plan provides that the employee will receive benefits equal to 2 
percent of high 3-year average compensation multiplied by years of 
service, and the employee retires after 25 years of service, 9 of which 
are before 1984, the employer may determine that 9/25 of the total 
benefit payments to be received beginning in 2000 are transition 
benefits attributable to services performed before 1984.
    (e) Order of payment. If an employer determines, in accordance with 
paragraph (d) of this section, that a portion of the total benefits 
under a nonqualified deferred compensation plan constitutes transition 
benefits, then, for purposes of determining the portion of each benefit 
payment that constitutes transition benefits, the employer must treat 
each benefit payment as consisting of transition benefits in the same 
proportion as the transition benefits that have not been paid (as of 
January 1, 2000) bear to total benefits that have not been paid (as of 
January 1, 2000), unless such allocation is inconsistent with the terms 
of the plan. However, for a benefit payment made before January 1, 2000, 
the employer may use any reasonable allocation method to determine the 
portion of a payment that consists of transition benefits, provided that 
the allocation method is consistent with the terms of the plan.

[64 FR 4567, Jan. 29, 1999]



Sec. 31.3123-1  Deductions by an employer from remuneration of an employee.

    Any amount deducted by an employer from the remuneration of an 
employee is considered to be part of the employee's remuneration and is 
considered to be paid to the employee as remuneration at the time that 
the deduction is made. It is immaterial that any act of Congress or the 
law of any State requires or permits such deductions and the payment of 
the

[[Page 138]]

amount thereof to the United States, a State, or any political 
subdivision thereof.



  Subpart C--Railroad Retirement Tax Act (Chapter 22, Internal Revenue 
                              Code of 1954)

                            Tax on Employees



Sec. 31.3201-1  Measure of employee tax.

    The employee tax is measured by the amount of compensation received 
for services rendered as an employee. For provisions relating to 
compensation, see Sec. 31.3231(e)-1. For provisions relating to the 
circumstances under which certain compensation is to be disregarded for 
the purpose of determining the employee tax, see paragraphs (b)(1) and 
(2) of Sec. 31.3231(e)-1.

[T.D. 8582, 59 FR 66189, Dec. 23, 1994]



Sec. 31.3201-2  Rates and computation of employee tax.

    (a) Rates--(1)(i) Tier 1 tax. The Tier 1 employee tax rate equals 
the sum of the tax rates in effect under section 3101(a), relating to 
old-age, survivors, and disability insurance, and section 3101(b), 
relating to hospital insurance. The Tier 1 employee tax rate is applied 
to compensation up to the contribution base described in section 
3231(e)(2)(B)(i). The contribution base is determined under section 230 
of the Social Security Act and is identical to the old-age, survivors, 
and disability insurance wage base and the hospital insurance wage base, 
respectively, under the Federal Insurance Contributions Act.
    (ii) Example. The rule in paragraph (a)(1)(i) of this section is 
illustrated by the following example.

    Example. A received compensation of $60,000 in 1992. The section 
3101(a) rate of 6.2 percent would be applied to A's compensation up to 
$55,500, the applicable contribution base for 1992. The section 3101(b) 
rate of 1.45 percent would be applied to the entire $60,000 of A's 
compensation because the applicable contribution base for 1992 is 
$130,200.

    (2)(i) Tier 2 tax. The Tier 2 employee tax rate equals the 
percentage set forth in section 3201(b) of the Code. This rate is 
applied to compensation up to the contribution base described in section 
3231(e)(2)(B)(ii).
    (ii) Example. The rule in paragraph (a)(2)(i) of this section is 
illustrated by the following example.

    Example. A received compensation of $60,000 in 1992. The section 
3201(b) rate of 4.90 percent would be applied to A's compensation up to 
$41,400, the applicable contribution base for 1992.

    (b)(1) Computation. The employee tax is computed by multiplying the 
amount of the employee's compensation with respect to which the employee 
tax is imposed by the rate applicable to such compensation, as 
determined under paragraph (a) of this section. The applicable rate is 
the rate in effect when the compensation is received by the employee. 
For rules relating to the time of receipt, see Sec. 31.3121(a)-2 (a) and 
(b).
    (2) Example. The rule in paragraph (b)(1) of this section is 
illustrated by the following example.

    Example. In 1990, employee A received compensation of $1,000 as 
remuneration for services performed for employer R in 1989. The employee 
tax is payable at the rate of 12.55 percent (7.65 percent plus 4.90 
percent) in effect for 1990 (the year the compensation was received), 
and not the 12.41 percent rate (7.51 percent plus 4.90 percent) in 
effect for 1989 (the year the services were performed).

[T.D. 8582, 59 FR 66189, Dec. 23, 1994]



Sec. 31.3202-1  Collection of, and liability for, employee tax.

    (a) Collection; general rule. The employer shall collect from each 
of his employees the employee tax imposed with respect to the 
compensation of the employee by deducting or causing to be deducted the 
amount of such tax from the compensation subject to the tax as and when 
such compensation is paid. As to the measure of the employee tax, see 
Sec. 31.3201-1.
    (b) Collection; payments by two or more employers in excess of 
annual compensation limitation. For rules relating to payments by two or 
more employers in excess of the annual compensation limitation see 
Sec. 31.3121(a)(1)-1.
    (c) Undercollections or overcollections. Any undercollection or 
overcollection of employee tax resulting from the employer's inability 
to determine, at the time compensation is paid, the correct

[[Page 139]]

amount of compensation with respect to which the deduction should be 
made shall be corrected in accordance with the provisions of Subpart G 
of the regulations in this part relating to adjustments, credits, 
refunds, and abatements.
    (d) When fractional part of cent may be disregarded. In collecting 
the employee tax, the employer shall disregard any fractional part of a 
cent of such tax unless it amounts to one-half cent or more, in which 
case it shall be increased to one cent.
    (e) Employer's liability. The employer is liable for the employee 
tax with respect to compensation paid by him, whether or not collected 
from the employee. If the employer deducts less than the correct amount 
of employee tax or fails to deduct any part of the tax, he is 
nevertheless liable for the correct amount of the tax. Until collected 
from him, the employee is also liable for the employee tax. Any employee 
tax collected by or on behalf of an employer is a special fund in trust 
for the United States. See section 7501. An employer is not liable to 
any person for the amount of the employee tax deducted by him and paid 
to the district director.
    (f) Concurrent employment. If two or more related corporations who 
are rail employers concurrently employ the same individual and 
compensate that individual through a common paymaster, which is one of 
the related corporations employing the individual, see Sec. 31.3121(s)-
1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6541, 26 FR 
553, Jan 20, 1961; T.D. 6727, 29 FR 5866, May 5, 1964; T.D. 8582, 59 FR 
66189, Dec. 23, 1994]

                     Tax on Employee Representatives



Sec. 31.3211-1  Measure of employee representative tax.

    The employee representative tax is measured by the amount of 
compensation received for services rendered as an employee 
representative. For provisions relating to compensation, see 
Sec. 31.3231(e)-1.

[T.D. 8582, 59 FR 66190, Dec. 23, 1994]



Sec. 31.3211-2  Rates and computation of employee representative tax.

    (a) Rates--(1)(i) Tier 1 tax. The Tier 1 employee representative tax 
rate equals the sum of the tax rates in effect under sections 3101(a) 
and 3111(a), relating to the employee and the employer tax for old-age, 
survivors, and disability insurance, and sections 3101(b) and 3111(b), 
relating to the employee and the employer tax for hospital insurance. 
The Tier 1 employee representative tax rate is applied to compensation 
up to the contribution base described in section 3231(e)(2)(B)(i). The 
contribution base is determined under section 230 of the Social Security 
Act, and is identical to the old-age, survivors, and disability 
insurance wage base and the hospital insurance wage base, respectively, 
under the Federal Insurance Contributions Act.
    (ii) Example. The rule in paragraph (a)(1)(i) of this section is 
illustrated by the following example.

    Example. B, an employee representative, received compensation of 
$60,000 in 1992. The sections 3101(a) and 3111(a) rates of 12.4 percent 
(6.2 percent plus 6.2 percent) would be applied to B's compensation up 
to $55,500, the applicable contribution base for 1992. The sections 
3101(b) and 3111(b) rates of 2.9 percent (1.45 percent plus 1.45 
percent) would be applied to the entire $60,000 of B's compensation 
because the applicable contribution base for 1992 is $130,200.

    (2) (i) Tier 2 tax. The Tier 2 employee representative tax rate 
equals the percentage set forth in section 3211(a)(2) of the Code. This 
rate is applied up to the contribution base described in section 
3231(e)(2)(B)(ii).
    (ii) Example. The rule in paragraph (a)(2)(i) of this section is 
illustrated by the following example.

    Example. B received compensation of $60,000 in 1992. The section 
3211(a)(2) rate of 14.75 percent would be applied to B's compensation up 
to $41,400, the applicable contribution base for 1992.

    (3) Supplemental Annuity Tax. The supplemental annuity tax for each 
work-hour for which compensation is paid to an employee representative 
for services rendered as an employee representative is imposed at the 
same rate

[[Page 140]]

as the excise tax imposed on every employer under section 3221(c). See 
also Sec. 31.3211-3.
    (b) (1) Computation. The employee representative tax is computed by 
multiplying the amount of the employee representative's compensation 
with respect to which the employee representative tax is imposed by the 
rate applicable to such compensation, as determined under paragraph (a) 
of this section. The applicable rate is the rate in effect when the 
compensation is received by the employee representative. For rules 
relating to the time of receipt, see Sec. 31.3121(a)-2 (a) and (b).
    (2) Example. The rule in paragraph (b)(1) of this section is 
illustrated by the following example.

    Example. In 1990, employee representative B received $1,000 as 
remuneration for services performed for employer R in 1989. The employee 
representative tax is payable at the rate of 30.05 percent (15.30 
percent plus 14.75 percent) in effect for 1990 (the year the 
compensation was received), and not the 29.77 percent rate (15.02 
percent plus 14.75 percent) in effect for 1989 (the year the services 
were performed).

    (c) (1) Rule where compensation is received both as an employee 
representative and employee. The following rule applies to an individual 
who renders service both as an employee representative and as an 
employee. The employee representative tax is imposed on compensation 
received as an employee representative under the rules described in 
Sec. 31.3211-2. The employee tax is imposed on compensation received as 
an employee under the rules described in Sec. 31.3201-2. However, if the 
total compensation received is greater than the applicable contribution 
base, the employee representative tax is imposed on the amount equal to 
the contribution base less the amount received for services rendered as 
an employee.
    (2) Example. The rule in paragraph (c)(1) of this section is 
illustrated by the following example.

    Example. C performed services both as an employee and an employee 
representative in 1992. C received compensation of $40,000 as an 
employee and $20,000 as an employee representative. C's entire 
compensation of $40,000 is subject to tax under the rules described in 
Sec. 31.3201-2. The amount of employee representative compensation 
subject to the section 3101(a) and the section 3111(a) rate is $15,500 
($55,500-$40,000). The entire $20,000 is subject to the sections 3101(b) 
and 3111(b) rates since the combined compensation is less than $130,200, 
the applicable contribution base for 1992. The amount of the employee 
representative compensation subject to the section 3211(a)(2) rate is 
$1,400 ($41,400-$40,000).

[T.D. 8582, 59 FR 66190, Dec. 23, 1994]



Sec. 31.3211-3  Employee representative supplemental tax.

    See paragraphs (a), (b), and (c) of Sec. 31.3221-3 for rules 
applicable to the supplemental tax for each work-hour for which 
compensation is paid to an employee representative for services rendered 
as an employee representative.

[T.D. 8525, 59 FR 9666, Mar. 1, 1994]



Sec. 31.3212-1  Determination of compensation.

    See Sec. 31.3231(e)-1 for regulations applicable to compensation.

                            Tax on Employers



Sec. 31.3221-1  Measure of employer tax.

    (a) General Rule--The employer tax is measured by the amount of 
compensation paid by an employer to its employees. For provisions 
relating to compensation, see Sec. 31.3231(e)-1. For provisions relating 
to the circumstances under which certain compensation is to be 
disregarded for purposes of determining the employer tax, see paragraphs 
(b) (1) and (2) of Sec. 31.3231(e)-1.
    (b) Payments by two or more employers in excess of annual 
compensation limitation. For rules relating to payments by two or more 
employers in excess of the annual compensation limitation, see 
Sec. 31.3121(a)(1)-1.
    (c) Underpayments or overpayments. Any underpayment or overpayment 
of employer tax resulting from the employer's inability to determine, at 
the time such tax is paid, the correct amount of compensation with 
respect to which the tax should be paid shall be corrected in accordance 
with the provisions of Subpart G of the regulations in this part 
relating to adjustments, credits, refunds, and abatements.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6541, 26 FR 
555, Jan. 20, 1961; T.D. 8582, 59 FR 66190, Dec. 23, 1994]

[[Page 141]]



Sec. 31.3221-2  Rates and computation of employer tax.

    (a) Rates--(1)(i) Tier 1 tax. The Tier 1 employer tax rate equals 
the sum of the tax rates in effect under section 3111(a), relating to 
old-age, survivors, and disability insurance, and section 3111(b), 
relating to hospital insurance. The Tier 1 employer tax rate is applied 
to compensation up to the contribution base described in section 
3231(e)(2)(B)(i). The contribution base is determined under section 230 
of the Social Security Act and is identical to the old-age, survivors, 
and disability insurance wage base and the hospital insurance wage base, 
respectively, under the Federal Insurance Contributions Act.
    (ii) Example. The rule in paragraph (a)(1)(i) of this section is 
illustrated by the following example.

    Example. R's employee, A, received compensation of $60,000 in 1992. 
The section 3111(a) rate of 6.2 percent would be applied to A's 
compensation up to $55,500, the applicable contribution base for 1992. 
The section 3111(b) rate of 1.45 percent would be applied to the entire 
$60,000 of A's compensation because the applicable contribution base for 
1992 is $130,200.

    (2)(i) Tier 2 tax. The Tier 2 employer tax rate equals the 
percentage set forth in section 3221(b) of the Internal Revenue Code. 
This rate is applied up to the contribution base described in section 
3231(e)(2)(B)(ii).
    (ii) Example. The rule in paragraph (a)(2)(i) of this section is 
illustrated by the following example.

    Example. R's employee, A, received compensation of $60,000 in 1992. 
The section 3221(b) rate of 16.10 percent would be applied to A's 
compensation up to $41,400, the applicable contribution base for 1992.

    (3) Supplemental Annuity Tax. The supplemental annuity tax for each 
work-hour for which compensation is paid by an employer for services 
rendered during any calendar quarter by employees is imposed at the tax 
rate determined each calendar quarter by the Railroad Retirement Board. 
See also Sec. 31.3221-3.
    (b)(1) Computation. The employer tax is computed by multiplying the 
amount of the compensation with respect to which the employer tax is 
imposed by the rate applicable to such compensation, as determined under 
paragraph (a) of this section. The applicable rate is the rate in effect 
at the time the compensation is paid. For rules relating to the time of 
payment, see Sec. 31.3121(a)-2(a) and (b).
    (2) Example. The rule in paragraph (b)(1) of this section is 
illustrated by the following example.

    Example. In 1990, R's employee A received $1,000 as remuneration for 
services performed for R in 1989. The employer tax is payable at the 
rate of 23.75 percent (7.65 percent plus 16.10 percent) in effect for 
1990 (the year the compensation was received) and not the 23.61 percent 
rate (7.51 percent plus 16.10 percent) in effect for 1989 (the year the 
services were performed).

[T.D. 8582, 59 FR 66190, Dec. 23, 1994]



Sec. 31.3221-3  Supplemental tax.

    (a) Introduction--(1) In general. Section 3221(c) imposes an excise 
tax on every employer, as defined in section 3231(a) and 
Sec. 31.3231(a)-1, with respect to individuals employed by the employer. 
The tax is imposed for each work-hour for which the employer pays 
compensation, as defined in section 3231(e) and Sec. 31.3231(e)-1, for 
services rendered to the employer during a calendar quarter. This 
Sec. 31.3221-3 provides rules for determining the number of taxable 
work-hours.
    (2) Overview. Paragraph (b) of this section defines work-hours. 
Paragraph (c) of this section demonstrates the calculation of work-
hours. Paragraph (d) of this section offers a safe harbor calculation of 
work-hours for use by any employer in lieu of calculating the number of 
work-hours for each employee.
    (b) Definition of work-hours--(1) In general. For purposes of 
section 3221(c) and this section, work-hours are hours for which the 
employee is compensated, whether or not the employee performs services.
    (i) Payments included in work-hours. Work-hours include regular time 
worked; overtime; time paid for vacations and holidays; time allowed for 
meals; away-from-home terminal time; called and not used, runaround, and 
deadheading time; time for attending court, participating in 
investigations,

[[Page 142]]

and attending claim and safety meetings; and guaranteed time not worked. 
Work-hours also include conversion hours, that is, compensation 
converted into work-hours. Conversion hours may be derived from payment 
by the mile or by the piece. Work-hours also include time for which the 
employee is paid for periods of absence not due to sickness or accident 
disability, such as for routine medical and dental examinations or for 
time lost.
    (ii) Payments excluded from work-hours. Certain kinds of payments 
are not subject to conversion into work-hours. These include those 
payments that are specifically excluded from compensation within the 
meaning of section 3231(e), such as certain sick pay payments (section 
3231(e)(1)(i)); tips (section 3231(e)(1)(ii)); and amounts paid 
specifically (either as an advance, as reimbursement, or allowance) for 
traveling expenses (section 3231(e)(1)(iii)). Traveling expenses paid 
under a nonaccountable plan are excluded from work-hours even though 
they are includible in compensation. See Sec. 31.3231(e)-1(a)(5). Also 
excluded from work-hours are amounts representing bonuses, amounts 
received pursuant to the exercise of an employee stock option, and all 
separation payments or severance allowances.
    (2) Hourly compensation. Because the tax under section 3221(c) is 
calculated on the basis of work-hours, the number of hours for which an 
employee receives compensation is the figure used to determine work-
hours. In the case of an hourly-rated employee, each hour for which the 
employee receives compensation is one work-hour.
    (3) Daily, weekly, monthly compensation. (i) If an employee is paid 
by the day, week, month, or other period of time, the tax is imposed on 
the number of hours comprehended in the rate and, if any, the number of 
overtime hours for which additional compensation is paid. Thus, in the 
case of an office worker who receives an annual salary based on an 8-
hour, 5-day-a-week work schedule that includes paid holidays, vacations, 
and sick time, the number of work-hours for one month is 174 (2088 
hours/year 12 months).
    (ii) The rule in paragraph (b)(3)(i) of this section is illustrated 
by the following examples.

    Example 1. A, an office worker, receives an annual salary that is 
paid monthly. The salary is based on an 8-hour, Monday through Friday 
work schedule. A is not paid for overtime hours. A is not expected to 
work on holidays, during A's annual vacation, or during periods that A 
is ill. The number of work-hours for one month is 174 (2088 hours/year 
12 months). This figure remains constant, even though some 
months have more workdays than others.
    Example 2. B is paid a stated amount for each day B works, 
regardless of the number of hours worked. However, if B works more than 
8 hours during any day, B is paid overtime for each additional hour 
worked that day. B is not paid for holidays, vacations, or sick time. 
During May, B worked 6 hours on 4 days, 7 hours on 6 days, 8 hours on 6 
days, and 9 hours on 5 days. Because B is paid a daily rate for up to 8 
hours, 8 hours are comprehended in the daily rate. Therefore, the number 
of work-hours for May is 173 (21 days x 8 hours/day+5 overtime hours), 
even though B actually worked 159 hours.

    (4) Conversion hours--(i) Compensation not based on time (hour, day, 
month, etc.), such as compensation paid by the mile or by the piece, 
must be converted into the number of hours represented by the 
compensation paid. Thus, if an employee is paid by the mile, 1 work-hour 
equals the number of miles constituting a workday, divided by 8 hours. 
However, in the case of a collective bargaining agreement that specifies 
a number of hours as constituting a workday, the number of hours 
specified under the agreement may be used instead of 8.
    (ii) The rule in paragraph (b)(4)(i) of this section is illustrated 
by the following example.

    Example. C's normal workday consists of 2 150-mile round trips that 
together take 6 hours. C is paid by the mile. The collective bargaining 
agreement does not specify the number of hours in a workday. Thus, the 
number of work-hours for each day C works is 8, or 1 work-hour for each 
37.5 miles (300 miles/day  8 hours/day). If the applicable 
collective bargaining agreement specifies that 6 hours constitute a 
workday, the number of work-hours for each day C works would be 6.

    (c) Calculation of work-hours--(1) An employer may calculate the 
work-hours separately for each employee, as

[[Page 143]]

described in the examples in this paragraph. If the employer chooses to 
calculate work-hours separately for each employee, the employer must 
calculate the number of regular hours, overtime hours, and conversion 
hours for each employee for each month. In lieu of separate 
calculations, the employer may calculate the work-hours for all the 
employer's employees using the safe harbor formula described in 
paragraph (d) of this section.
    (2) The rules in paragraph (c) of this section are illustrated by 
the following examples.

    Example 1. D worked 8 hours a day, Monday through Friday, during the 
months of February and March 1992. D did not work on President's Day, 
but was paid for the holiday. D's work-hours for February were 160 (19 
days  x  8 hours a day + 8 holiday hours). D's work-hours for March were 
176 (22 days  x  8 hours a day).
    Example 2. E worked 7-hour shifts every Tuesday through Saturday 
during the months of February and March 1992. E also worked 7 overtime 
hours during February and 21 overtime hours during March. Also, E was 
paid for 7 hours on President's Day, even though E did not work on that 
day. The number of work-hours for February was 161 (21 days  x  7 hours 
a day + 7 overtime hours + 7 holiday hours). The number of work-hours 
for March was 168 (21 days  x  7 hours a day + 21 overtime hours). 
Because E receives an hourly wage and was paid for the President's Day 
holiday, the number of hours (7) for which E was paid are added to the 
hours E actually worked. If E had worked on President's Day and had 
received extra pay for working on a holiday and holiday pay for 7 hours, 
the employer would include 14 hours in E's work-hours for that day, the 
7 hours E actually worked and the 7 holiday hours for which E was paid.
    Example 3. Employment beginning during month. F began employment on 
March 16, a Monday, and worked 8 hours a day, Monday through Friday. The 
employer calculates that F's hours for the month were 96, because F 
worked 12 8-hour days during the month. If March 16 were on a Friday, 
the employer would calculate 11 days, or 88 hours.
    Example 4. Employment ending during month. G's last day of 
employment was Friday, March 13. G worked 8 hours a day, Monday through 
Friday, except for March 3, when G was ill. G was paid for 8 hours for 
March 3. The employer calculates that G's work-hours for March were 80, 
because G worked 9 8-hour days and was paid for an additional 8 hours.

    (d) Safe harbor--(1) In general. In lieu of calculating work-hours 
separately for each employee, an employer may use the safe harbor for 
all employees. If the employer elects to use the safe harbor for a 
calendar year, the employer must use the safe harbor for all employees 
for the entire calendar year. If an employer uses the safe harbor for a 
calendar year, the employer need not elect the safe harbor for the 
following calendar year. An employer that elects the safe harbor for a 
calendar year may not subsequently elect to separately calculate 
employee work-hours for that calendar year.
    (2) Method of calculation. The safe harbor treats each employee of 
the employer as receiving monthly compensation for a number of hours 
equal to the safe harbor number. To determine the number of work-hours 
for a month, the employer multiplies the safe harbor number by the 
number that equals the total number of employees to whom the employer 
paid compensation during the month.
    (i) Safe harbor number defined. The safe harbor number is the number 
established in guidance of general applicability promulgated by the 
Commissioner.
    (ii) Employee defined. Solely for purposes of this paragraph, an 
employee is any individual who is paid compensation, within the meaning 
of Sec. 31.3231(e)-1, regardless of the amount, during the month. Thus, 
for example, a part-time, temporary, or seasonal employee is counted as 
an employee. A terminated employee is counted in the month of 
termination (provided the terminated employee received compensation in 
the month of termination), but not in any subsequent month in which the 
employee does not perform service for the employer as an employee, even 
if the terminated employee is paid compensation in a subsequent month. 
Thus, for example, an employee who terminates employment during the 
month, receives compensation during the month of termination, and 
receives a final paycheck the following month is counted as an employee 
of the employer for the month of termination but not for the following 
month.
    (3) Method of election. An employer makes the safe harbor election 
for a

[[Page 144]]

calendar year on the employment tax return filed for the previous 
calendar year.
    (4) Additional rules. The Commissioner may, in revenue procedures, 
revenue rulings, notices, or other guidance of general applicability, 
revise the safe harbor number or provide additional safe harbors that 
satisfy section 3221(c).
    (e) Effective dates. This Sec. 31.3221-3 is effective for calendar 
years beginning after December 31, 1992, except that paragraph (d) is 
effective for calendar years beginning after December 31, 1993. 
Taxpayers may apply the rules in paragraphs (a), (b), and (c) of this 
section before January 1, 1993.

[T.D. 8525, 59 FR 9666, Mar. 1, 1994]



Sec. 31.3221-4  Exception from supplemental tax.

    (a) General rule. Section 3221(d) provides an exception from the 
excise tax imposed by section 3221(c). Under this exception, the excise 
tax imposed by section 3221(c) does not apply to an employer with 
respect to employees who are covered by a supplemental pension plan, as 
defined in paragraph (b) of this section, that is established pursuant 
to an agreement reached through collective bargaining between the 
employer and employees, within the meaning of paragraph (c) of this 
section.
    (b) Definition of supplemental pension plan--(1) In general. A plan 
is a supplemental pension plan covered by the section 3221(d) exception 
described in paragraph (a) of this section only if it meets the 
requirements of paragraphs (b)(2) through (b)(4) of this section.
    (2) Pension benefit requirement. A plan is a supplemental pension 
plan within the meaning of this section only if the plan is a pension 
plan within the meaning of Sec. 1.401-1(b)(1)(i) of this chapter. Thus, 
a plan is a supplemental pension plan only if the plan provides for the 
payment of definitely determinable benefits to employees over a period 
of years, usually for life, after retirement. A plan need not be funded 
through a qualified trust that meets the requirements of section 401(a) 
or an annuity contract that meets the requirements of section 403(a) in 
order to meet the requirements of this paragraph (b)(2). A plan that is 
a profit-sharing plan within the meaning of Sec. 1.401-1(b)(1)(ii) of 
this chapter or a stock bonus plan within the meaning of Sec. 1.401-
1(b)(1)(iii) of this chapter is not a supplemental pension plan within 
the meaning of this paragraph (b).
    (3) Railroad Retirement Board determination with respect to the 
plan. A plan is a supplemental pension plan within the meaning of this 
paragraph (b) with respect to an employee only during any period for 
which the Railroad Retirement Board has made a determination under 20 
CFR 216.42(d) that the plan is a private pension, the payments from 
which will result in a reduction in the employee's supplemental annuity 
payable under 45 U.S.C. 231a(b). A plan is not a supplemental pension 
plan for any time period before the Railroad Retirement Board has made 
such a determination, or after that determination is no longer in force.
    (4) Other requirements. [Reserved]
    (c) Collective bargaining agreement. A plan is established pursuant 
to a collective bargaining agreement with respect to an employee only 
if, in accordance with the rules of Sec. 1.410(b)-6(d)(2) of this 
chapter, the employee is included in a unit of employees covered by an 
agreement that the Secretary of Labor finds to be a collective 
bargaining agreement between employee representatives and one or more 
employers, provided that there is evidence that retirement benefits were 
the subject of good faith bargaining between employee representatives 
and the employer or employers.
    (d) Substitute section 3221(d) excise tax. Section 3221(d) imposes 
an excise tax on any employer who has been excepted from the excise tax 
imposed under section 3221(c) by the application of section 3221(d) and 
paragraph (a) of this section with respect to an employee. The excise 
tax is equal to the amount of the supplemental annuity paid to that 
employee under 45 U.S.C. 231a(b), plus a percentage thereof determined 
by the Railroad Retirement Board to be sufficient to cover the 
administrative costs attributable to such payments under 45 U.S.C. 
231a(b).
    (e) Effective date--(1) In general. Except as provided in paragraph 
(e)(2) of this section, this section applies beginning on October 1, 
1998.

[[Page 145]]

    (2) Delayed effective date for collective bargaining agreement 
provisions. Paragraph (c) of this section applies beginning on January 
1, 2000.

[T.D. 8832, 64 FR 42833, Aug. 6, 1999]

                           General Provisions



Sec. 31.3231(a)-1  Who are employers.

    (a) Each of the following persons is an employer within the meaning 
of the act:
    (1) Any carrier, that is, any express carrier, sleeping car carrier, 
or rail carrier providing transportation subject to subchapter I of 
chapter 105 of title 49;
    (2) Any company--
    (i) Which is directly or indirectly owned or controlled by one or 
more employers as defined in paragraph (a)(1) of this section, or under 
common control therewith, and
    (ii) Which operates any equipment or facility or performs any 
service (except trucking service, casual service, and the casual 
operation of equipment or facilities) in connection with--
    (a) The transportation of passengers or property by railroad, or
    (b) The receipt, delivery, elevation, transfer in transit, 
refrigeration or icing, storage, or handling of property transported by 
railroad;
    (3) Any receiver, trustee, or other individual or body, judicial or 
otherwise, when in the possession of the property or operating all or 
any part of the business of any employer as defined in paragraph (a)(1) 
or (2) of this section;
    (4) Any railroad association, traffic association, tariff bureau, 
demurrage bureau, weighing and inspection bureau, collection agency, and 
any other association, bureau, agency, or organization controlled and 
maintained wholly or principally by two or more employers as defined in 
paragraph (a)(1), (2) or (3) of this section and engaged in the 
performance of services in connection with or incidental to railroad 
transportation;
    (5) Any railway labor organization, national in scope, which has 
been or may be organized in accordance with the provisions of the 
Railway Labor Act; and
    (6) Any subordinate unit of a national railway-labor-organization 
employer, that is, any State or National legislative committee, general 
committee, insurance department, or local lodge or division, of an 
employer as defined in paragraph (a)(5) of this section, established 
pursuant to the constitution and bylaws of such employer.
    (b) As used in paragraph (a)(2) of this section, the term 
``controlled'' includes direct or indirect control, whether legally 
enforceable and however exercisable or exercised. The control may be by 
means of stock ownership, or by agreements, licenses, or any other 
devices which insure that the operation of the company is in the 
interest of one or more carriers. It is the reality of the control, 
however, which is decisive, not its form nor the mode of its exercise.
    (c) As used in paragraph (a)(2) of this section, the term casual 
applies when the service rendered or the operation of equipment or 
facilities by a controlled company or person in connection with the 
transportation of passengers or property by railroad is so irregular or 
infrequent as to afford no substantial basis for an inference that such 
service or operation will be repeated, or whenever such service or 
operation is insubstantial.
    (d) The term ``employer'' does not include any street, interurban, 
or suburban electric railway, unless such railway is operating as a part 
of a general steam-railroad system of transportation, but shall not 
exclude any part of the general steam-railroad system of transportation 
which is operated by any other motive power.
    (e) The term ``employer'' does not include any company by reason of 
its being engaged in the mining of coal, the supplying of coal to an 
employer where delivery is not beyond the mine tipple and the operation 
of equipment or facilities for such mining or supplying of coal, or in 
any of such activities.
    (f) Any company that is described in paragraph (a)(2) of this 
section is an employer under section 3231. In certain cases, based on 
all the facts and circumstances, it may be appropriate to segregate 
those businesses engaged in rail services and therefore subject to the 
Railroad Retirement Tax Act from those businesses engaged exclusively in

[[Page 146]]

nonrail services and therefore not subject to the Railroad Retirement 
Tax Act. The factors considered are set forth in guidance published by 
the Internal Revenue Service.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960; T.D. 
8582, 59 FR 66191, Dec. 23, 1994]



Sec. 31.3231(b)-1  Who are employees.

    (a) In general. (1) An individual who is in the service of one or 
more employers for compensation is an employee within the meaning of the 
act. (For definitions of the terms ``employer'', ``service'', and 
``compensation'', see subsections (a), (d), and (e), respectively, of 
section 3231.) An individual is in the service of an employer, with 
respect to services rendered for compensation, if--
    (i) He is subject to the continuing authority of the employer to 
supervise and direct the manner in which he renders such services; or
    (ii) He is rendering professional or technical services and is 
integrated into the staff of the employer; or
    (iii) He is rendering, on the property used in the employer's 
operations, other personal services the rendition of which is integrated 
into the employer's operations.
    (2) In order that an individual may be in the service of an employer 
within the meaning of paragraph (a)(1)(i) of this section, it is not 
necessary that the employer actually direct or control the manner in 
which the services are rendered; it is sufficient if the employer has 
the right to do so. The right of an employer to discharge an individual 
is also an important factor indicating that the individual is subject to 
the continuing authority of the employer to supervise and direct the 
manner of rendition of the services. Other factors indicating that an 
individual is subject to the continuing authority of the employer to 
supervise and direct the manner of rendition of the services are the 
furnishing of tools and the furnishing of a place to work by the 
employer to the individual who renders the services.
    (3) In general, if an individual is subject to the control or 
direction of an employer merely as to the result to be accomplished by 
the work and not as to the means and methods for accomplishing the 
result, he is an independent contractor. On individual performing 
services as an independent contractor is not, as to such services, in 
the service of an employer within the meaning of paragraph (a)(1)(i) of 
this section. However, an individual performing services as an 
independent contractor may be, as to such services, in the service of an 
employer within the meaning of paragraph (a)(1) (ii) or (iii) of this 
section.
    (4) Whether or not an individual is an employee will be determined 
upon an examination of the particular facts of the case.
    (5) If an individual is an employee, it is of no consequence that he 
is designated as a partner, coadventurer, agent, independent contractor, 
or otherwise, or that he performs services on a part-time basis.
    (6) No distinction is made between classes or grades of employees. 
Thus, superintendents, managers, and other supervisory personnel are 
employees within the meaning of the act. An officer of an employer is an 
employee, but a director as such is not.
    (7) In determining whether an individual is an employee with respect 
to services rendered within the United States, the citizenship or 
residence of the individual, or the place where the contract of service 
was entered into is immaterial.
    (8) If an individual performs services for an employer (other than a 
local lodge or division or a general committee of a railway-labor-
organization employer) which does not conduct the principal part of its 
business within the United States, such individual shall be deemed to be 
in the service of such employer only to the extent that he performs 
services for it in the United States. Thus, with respect to services 
rendered for such employer outside the United States, such individual is 
not in the service of an employer.
    (9) If an individual performs services for an employer (other than a 
local lodge or division or a general committee of a railway-labor-
organization employer) which conducts the principal part of its business 
within the United

[[Page 147]]

States, he is in the service of such employer whether his services are 
rendered within or without the United States. In the case of an 
individual, not a citizen or resident of the United States, rendering 
services in a place outside the United States to an employer which is 
required under the laws applicable in such place to employ, in whole or 
in part, citizens or residents thereof, such individual shall not be 
deemed to be in the service of an employer with respect to services so 
rendered.
    (10) The term ``employee'' does not include any individual while he 
is engaged in the physical operations consisting of the mining of coal, 
the preparation of coal, the handling (other than movement by rail with 
standard railroad locomotives) of coal not beyond the mine tipple, or 
the loading of coal at the tipple.
    (b) Employees of local lodges or divisions of railway-labor-
organization employers. (1) An individual is in the service of a local 
lodge or division of a railway-labor-organization employer (see 
paragraph (a)(6) of Sec. 31.3231(a)-1) only if--
    (i) All, or substantially all, the individuals constituting the 
membership of such local lodge or division are employees of an employer 
conducting the principal part of its business in the United States; or
    (ii) The headquarters of such local lodge or division is located in 
the United States.
    (2) (i) An individual in the service of a local lodge or division is 
not an employee within the meaning of the act unless he was, on or after 
August 29, 1935, in the service of a carrier (see Sec. 31.3231(g) for 
definition of carrier) or he was, on August 29, 1935, in the 
``employment relation'' to a carrier.
    (ii) An individual shall be deemed to have been in the employment 
relation to a carrier on August 29, 1935, if (a) he was on that date on 
leave of absence from his employment expressly granted to him by the 
carrier by whom he was employed, or by a duly authorized representative 
or such carrier, and the grant of such leave of absence was established 
to the satisfaction of the Railroad Retirement Board before July 1947; 
or (b) he was in the service of a carrier after August 29, 1935, and 
before January 1946 in each of six calendar months whether or not 
consecutive; or (c) before August 29, 1935, he did not retire and was 
not retired or discharged from the service of the last carrier by whom 
he was employed or its corporate or operating successor, but (1) solely 
by reason of his physical or mental disability he ceased before August 
29, 1935, to be in the service of such carrier and thereafter remained 
continuously disabled until he attained age sixty-five or until August 
1945, or (2) solely for such last stated reason a carrier by whom he was 
employed before August 29, 1935, or a carrier who is its successor did 
not on or after August 29, 1935, and before August 1945 call him to 
return to service, or (3) if he was so called he was solely for such 
reason unable to render service in six calendar months as provided in 
(b) of this subdivision; or (d) he was on August 29, 1935, absent from 
the service of a carrier by reason of a discharge which, within one year 
after the effective date thereof, was protested, to an appropriate labor 
representative or to the carrier, as wrongful, and which was followed 
within 10 years of the effective date thereof by his reinstatement in 
good faith to his former service with all his seniority rights. However, 
an individual shall not be deemed to have been in the employment 
relation to a carrier on August 29, 1935, if before that date he was 
granted a pension or gratuity on the basis of which a pension was 
awarded to him pursuant to section 6 of the Railroad Retirement Act of 
1937 (45 U.S.C. 228f), or if during the last payroll period before 
August 29, 1935, in which he rendered service to a carrier he was not, 
with respect to any service in such payroll period, in the service of an 
employer (see paragraph (a) of this section).
    (c) Employees of general committees of railway-labor-organization 
employers. An individual is in the service of a general committee of a 
railway-labor-organization employer (see paragraph (a)(6) of 
Sec. 31.3231(a)-1) only if--
    (1) He is representing a local lodge or division described in 
paragraph (b)(1) of this section; or
    (2) All, or substantially all, the individuals represented by such 
general

[[Page 148]]

committee are employees of an employer conducting the principal part of 
its business in the United States; or
    (3) He acts in the capacity of a general chairman or an assistant 
general chairman of a general committee which represents individuals 
rendering service in the United States to an employer. In such case, if 
his office or headquarters is not located in the United States and the 
individuals represented by such general committee are employees of an 
employer not conducting the principal part of its business in the United 
States, only a part of his remuneration for such service shall be 
regarded as compensation. The part of his remuneration regarded as 
compensation shall be in the same proportion to his total remuneration 
as the mileage in the United States under the jurisdiction of such 
general committee bears to the total mileage under its jurisdiction, 
unless such mileage formula is inapplicable, in which case such other 
formula as the Railroad Retirement Board may have prescribed pursuant to 
section 1(c) of the Railroad Retirement Act of 1937 (45 U.S.C. 228a) 
shall be applicable. However, no part of his remuneration for such 
service shall be regarded as compensation if the application of such 
mileage formula, or such other formula as the Railroad Retirement Board 
may have prescribed, would result in his compensation for the service 
being less than 10 percent of his remuneration for such service.



Sec. 31.3231(c)-1  Who are employee representatives.

    (a) An employee representative within the meaning of the act is--
    (1) Any officer or official representative of a railway labor 
organization which is not included as an employer under section 3231(a) 
who--
    (i) Was in the service of an employer either before or after June 
29, 1937, and
    (ii) Is duly authorized and designated to represent employees in 
accordance with the Railway Labor Act.

For railway labor organizations which are employers under section 
3231(a), see paragraph (a) (5) and (6) of Sec. 31.3231(a)-1.
    (2) Any individual who is regularly assigned to or regularly 
employed by an employee representative, as defined in paragraph (a)(1) 
of this section, in connection with the duties of such employee 
representative's office.
    (b) In determining whether an individual is an employee 
representative, his citizenship or residence is material only insofar as 
those factors may affect the determination of whether he was ``in the 
service of an employer'' (see paragraph (a) of Sec. 31.3231(b)-1).



Sec. 31.3231(d)-1  Service.

    See Sec. 31.3231(b)-1 for regulations relating to the term ``in the 
service of an employer.''



Sec. 31.3231(e)-1  Compensation.

    (a) Definition--(1) The term compensation has the same meaning as 
the term wages in section 3121(a), determined without regard to section 
3121(b)(9), except as specifically limited by the Railroad Retirement 
Tax Act (chapter 22 of the Internal Revenue Code) or regulation. The 
Commissioner may provide any additional guidance that may be necessary 
or appropriate in applying the definitions of sections 3121(a) and 
3231(e).
    (2) A payment made by an employer to an individual through the 
employer's payroll is presumed, in the absence of evidence to the 
contrary, to be compensation for services rendered as an employee of the 
employer. Likewise, a payment made by an employee organization to an 
employee representative through the organization's payroll is presumed, 
in the absence of evidence to the contrary, to be compensation for 
services rendered by the employee representative as such. For rules 
regarding the treatment of deductions by an employer from remuneration 
of an employee, see Sec. 31.3123-1.
    (3) The term compensation is not confined to amounts paid for active 
service, but includes amounts paid for an identifiable period during 
which the employee is absent from the active service of the employer 
and, in the case of an employee representative, amounts paid for an 
identifiable period during which the employee representative is absent 
from the active service of the employee organization.
    (4) Compensation includes amounts paid to an employee for loss of 
earnings

[[Page 149]]

during an identifiable period as the result of the displacement of the 
employee to a less remunerative position or occupation as well as pay 
for time lost.
    (5) For rules regarding the treatment of reimbursement and other 
expense allowance amounts, see Sec. 31.3121(a)-3. For rules regarding 
the inclusion of fringe benefits in compensation, see Sec. 31.3121(a)-
1T.
    (b) Special Rules. (1) If the amount of compensation earned in any 
calendar month by an individual as an employee in the service of a local 
lodge or division of a railway-labor-organization employer is less than 
$25, the amount is disregarded for purposes of determining the employee 
tax under section 3201 and the employer tax under section 3221.
    (2) Compensation for service as a delegate to a national or 
international convention of a railway-labor-organization employer is 
disregarded for purposes of determining the employee tax under section 
3201 and the employer tax under section 3221 if the individual rendering 
the service has not previously rendered service, other than as a 
delegate, which may be included in the individual's years of service for 
purposes of the Railroad Retirement Act.
    (3) For special provisions relating to the compensation of certain 
general chairs or assistant general chairs of a general committee of a 
railway-labor-organization employer, see paragraph (c)(3) of 
Sec. 31.3231(b)-1.

[T.D. 8582, 59 FR 66191, Dec. 23, 1994]



Sec. 31.3231(e)-2  Contribution base.

    The term compensation does not include any remuneration paid during 
any calendar year by an employer to an employee for services rendered in 
excess of the applicable contribution base. For rules applying this 
provision, see Sec. 31.3121(a)(1)-1.

[T.D. 8582, 59 FR 66191, Dec. 23, 1994]



 Subpart D--Federal Unemployment Tax Act (Chapter 23, Internal Revenue 
                              Code of 1954)



Sec. 31.3301-1  Persons liable for tax.

    Every person who is an employer as defined in section 3306(a) (see 
Sec. 31.3306(a)-1) is liable for the tax. Even if an employer is not 
subject to any State unemployment compensation law, he is nevertheless 
liable for the tax. However, if he is subject to such a State law, he 
may be entitled to certain credits against the tax (see 
Secs. 31.3302(a)1 to 31.3302(c)-1, inclusive). For provisions relating 
to payment of the tax, see Subpart G of the regulations in this part.



Sec. 31.3301-2  Measure of tax.

    The tax for any calendar year is measured by the amount of wages 
paid by the employer during such year with respect to employment after 
December 31, 1938. (See Sec. 31.3306(b)-1, relating to wages, and 
Secs. 31.3306(c)-1 to 31.3306(c)-3, inclusive, relating to employment.)

[T.D. 6658, 28 FR 6632, June 27, 1963]



Sec. 31.3301-3  Rate and computation of tax.

    (a) The rates of tax with respect to wages paid in calendar years 
after 1954 are as follows:

 
                                                                Percent
 
In the calendar years 1955 to 1960, both inclusive...........          3
In the calendar year 1961....................................        3.1
In the calendar year 1962....................................        3.5
In the calendar year 1963....................................       3.35
In the calendar year 1964 and subsequent calendar years......        3.1
 

    (b) The tax is computed by applying to the wages paid in a calendar 
year, with respect to employment after December 31, 1938, the rate in 
effect at the time the wages are paid.

[T.D. 6658, 28 FR 6632, June 27, 1963]



Sec. 31.3301-4  When wages are paid.

    Wages are paid when actually or constructively paid. Wages are 
constructively paid when they are credited to

[[Page 150]]

the account of or set apart for an employee so that they may be drawn 
upon by him at any time although not then actually reduced to 
possession. To constitute payment in such a case the wages must be 
credited to or set apart for the employee without any substantial 
limitation or restriction as to the time or manner of payment or 
condition upon which payment is to be made, and must be made available 
to him so that they may be drawn upon at any time, and their payment 
brought within his own control and disposition. See Sec. 31.6011(a)-3, 
relating to the return on which wages are to be reported.



Sec. 31.3302(a)-1  Credit against tax for contributions paid.

    (a) In general. Subject to the provision of paragraphs (b) and (c) 
of this section and to the provisions of Sec. 31.3302(c)-1, the taxpayer 
may credit against the tax for any taxable year the total amount of 
contributions paid by him into an unemployment fund maintained during 
such year under a State law which has been found by the Secretary of 
Labor to contain the provisions specified in section 3304(a); Provided, 
however, That no credit may be taken for contributions under a State law 
if such State has not been duly certified for the calendar year to the 
Secretary of the Treasury by the Secretary of Labor. The contributions 
may be credited against the tax whether or not they are paid with 
respect to employment as defined in section 3306(c). For provisions 
relating to additional credit against the tax, see Sec. 31.3302(b)-1.
    (b) Limitation on the taxable year with respect to which 
contributions are allowable. In order to be allowable as credit against 
the tax for any taxable year, the contributions must have been paid with 
respect to such year.

    Example 1. Under the unemployment compensation law of State X, 
employer M is required to report in his contribution return for the 
quarter ending December 31, 1955, all remuneration payable for services 
rendered in such quarter. A portion of such remuneration is not paid to 
his employees until February 1, 1956. On January 20, 1956, M pays to the 
State the total amount of contributions due with respect to all 
remuneration so required to be reported. Such contributions, including 
those with respect to the remuneration paid on February 1, 1956, may be 
included in computing the credit against the tax for the calendar year 
1955. This is true even though the remuneration paid on February 1, 1956 
(if it constitutes ``wages'') is required to be reported in the Federal 
return for 1956 and not in the Federal return for 1955.
    Example 2. Under the unemployment compensation law of State Y, 
employer N is required to include in his contribution return for the 
quarter ending December 31, 1955, certain remuneration paid on December 
30, to 1955, to an employee for services to be rendered after December 
31. On January 20, 1956, N pays to the State the total amount of 
contributions due with respect to all remuneration required to be 
reported on the contribution return. Such contributions, including those 
with respect to the remuneration paid on December 30, 1955, may be 
included in computing the credit against the tax for the calendar year 
1955.

    (c) Limitation on amount of credit allowable based on time when 
contributions are paid--(1) In general. The amount of credit allowable 
for contributions paid into a State unemployment fund depends in part on 
the time of payment of such contributions. Although contributions paid 
at any time may be credited against the tax (subject to the limitations 
referred to in paragraphs (c)(2) and (3) of this section), no refund or 
credit of the tax based on credit for contributions paid will be allowed 
unless the contributions are paid prior to the expiration of the period 
of limitations applicable to refund or credit of the tax. For general 
provisions relating to the limitation period and to refunds, credits and 
abatements of the tax, see respectively Secs. 301.6511(a)-1, 301.6402-2 
and 301.6404-1 of this chapter (Regulations on Procedure and 
Administration).
    (2) Amount of credit allowable when contributions are paid on or 
before last day for filing return. Contributions paid into a State 
unemployment fund on or before the last day upon which the Federal 
return for the taxable year is required to be filed may be credited 
against the tax in an amount equal to such contributions, but not, 
however, to exceed the total credits, determined pursuant to 
Sec. 31.3302(c)-1. For provisions relating to the time for filing the 
return, see Sec. 31.6071(a)-1 in Subpart G of this part.
    (3) Amount of credit allowable when contributions are paid after 
last day for

[[Page 151]]

filing return. Contributions paid into a State unemployment fund after 
the last day upon which the Federal return for the taxable year is 
required to be filed may be credited against the tax in an amount not to 
exceed 90 percent of the amount which would have been allowable as 
credit on account of such contributions had they been paid into a State 
unemployment fund on or before such last day. However, see paragraph 
(c)(4) of this section relating to the payment of contributions to the 
wrong State. For general provisions relating to refunds, credits, and 
abatements of the tax, see Secs. 301.6402-2 and 301.6404-1 of this 
chapter (Regulations on Procedure and Administration).

    Example 1. The Federal return of the M Company for the calendar year 
1961 discloses total wages of $400,000. The Federal tax, imposed at the 
rate of 3.1 percent, is $12,400. The company is liable for total State 
contributions of $8,000 for 1961. The due date of the Federal return is 
January 31, 1962, no extension of time for filing the return having been 
granted. The contributions are not paid until February 1, 1962. If the 
contributions had been paid on or before January 31, 1962, the entire 
amount of $8,000 could have been credited against the tax. (Credits 
could not exceed 2.7 percent of the wages, or $10,800. See 
Sec. 31.3302(c)-1.) Since the contributions were paid after January 31, 
1962, the M Company is entitled to a credit of 90 percent of the amount 
which would have been allowable as credit had the contributions been 
paid on time (90 percent of $8,000, or $7,200), the net liability for 
Federal tax being $5,200 ($12,400 minus $7,200).
    Example 2. The facts are the same as in example 1, except that the M 
Company is liable for and pays total State contributions of $12,000, 
instead of $8,000. If the contributions had been paid on or before 
January 31, 1962, the amount allowable as credit would have been $10,800 
(2.7 percent of wages of $400,000). Since the contributions were paid 
after January 31, 1962, the M Company is entitled to a credit of 90 
percent of $10,800, or $9,720, the net liability for Federal tax being 
$2,680 ($12,400 minus $9,720).
    Example 3. The Federal return of the R Company for the calendar year 
1961 discloses a total tax of $3,100. The company is liable for total 
State contributions of $2,700 for such year. The due date of the Federal 
return is January 31, 1962, no extension of time for filing the return 
having been granted. The R Company pays $1,700 of the total State 
contributions on or before such date, and the remaining $1,000 on 
February 1, 1962. If the $1,000 had been paid on or before January 31, 
1962, that amount could have been credited against the tax (such amount 
plus the $1,700 paid on or before January 31, 1962, not exceeding the 
aggregate credit allowable). Since the $1,000 was paid after January 31, 
1962, the R Company is entitled to a credit of 90 percent of this amount 
or $900, plus the credit of $1,700 allowable for the contributions paid 
on or before January 31, 1962. The net liability for Federal tax is thus 
$500 ($3,100 minus $2,600).

    (4) Amount of credit allowable when contributions are paid to wrong 
State. Contributions for the taxable year paid into a State unemployment 
fund which are required under the unemployment compensation law of that 
State, but which are paid with respect to remuneration on the basis of 
which the taxpayer had, prior to such payment, erroneously paid an 
amount as contributions under another unemployment compensation law, 
shall be deemed for purposes of the credit to have been paid at the time 
of the erroneous payment. If, by reason of such other law, the taxpayer 
was entitled to cease paying contributions for such taxable year with 
respect to services subject to such other law, the payment into the 
proper fund shall be deemed for purposes of credit to have been made on 
the date the Federal return for such year was actually filed by the 
taxpayer under Sec. 31.6011(a)-3.

    Example. Employee N, whose Federal return for the calendar year 1961 
discloses a total tax of $3,100, employs individuals in State X and 
State Y during the calendar year 1961. N assumes in good faith that the 
services of his employees are covered by the unemployment compensation 
law of State Y, and pays as contributions to State Y the amount of 
$2,700 based upon the remuneration of the employees. All of the services 
were in fact covered by the unemployment compensation law of State X, 
and none by the law of State Y. The payment to State Y was made on 
January 31, 1962. When the error was discovered thereafter, N paid to 
State X contributions in the amount of $2,700 based upon such 
remuneration. Since the contributions were paid to State Y on January 
31, 1962, the contributions to State X are, for purposes of the credit, 
deemed to have been paid on such date. N is entitled to a credit of 
$2,700 against the Federal tax of $3,100, the net liability for Federal 
tax being $400 ($3,100 minus $2,700).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6632, June 27, 1963]

[[Page 152]]



Sec. 31.3302(a)-2  Refund of State contributions.

    If, subsequent to the filing of the return, a refund is made by a 
State to the taxpayer of any part of his contribution credited against 
the tax, the taxpayer is required to advise the district director of the 
date and amount of such refund and the reason therefor, and to pay the 
tax, if any, due as a result of such refund, together with interest from 
the date when the tax was due.



Sec. 31.3302(a)-3  Proof of credit under section 3302(a).

    Credit against the tax for any calendar year for contributions paid 
into State unemployment funds shall not be allowed unless there is 
submitted to the district director:
    (a) A certificate of the proper officer of each State (the laws of 
which required the contributions to be paid) showing, for the taxpayer:
    (1) The total amount of contributions required to be paid under the 
State law with respect to such calendar year (exclusive of penalties and 
interest) which was actually paid on or before the date the Federal 
return is required to be filed; and
    (2) The amounts and dates of such required payments (exclusive of 
penalties and interest) actually paid after the date the Federal return 
is required to be filed.
    (b) A statement by the taxpayer that no part of any payment made by 
him into a State unemployment fund for such calendar year, which is 
claimed as a credit against the tax, was deducted or is to be deducted 
from the remuneration of individuals in his employ. Such statement shall 
contain or be verified by a written declaration that it is made under 
the penalties of perjury.
    (c) Such other or additional proof as the Commissioner or the 
district director may deem necessary to establish the right to the 
credit provided for under section 3302(a).



Sec. 31.3302(b)-1  Additional credit against tax.

    (a) In general. In addition to the credit against the tax allowable 
for contributions actually paid to State unemployment funds (see 
Sec. 31.3302(a)-1), the taxpayer may be entitled to a credit under 
section 3302(b). This additional credit is allowable to the taxpayer 
with respect to the amount of contributions which he is relieved from 
paying to an unemployment fund under the provisions of a State law which 
have been certified for the taxable year as provided in section 3303. 
Generally, an additional credit is available to an employer, if under 
the provisions of a State law which have been so certified he is 
permitted to pay contributions to such State for the taxable year, or 
portion thereof, at a rate which is both lower than the highest rate 
applied under such law in such year and lower than 2.7 percent. No 
additional credit is allowable except with respect to a State law 
certified by the Secretary of Labor for the taxable year as provided in 
section 3303 (or with respect to any provisions thereof so certified).
    (b) Method of computing amount of additional credit allowable with 
respect to a State law--(1) Certification of a State law as a whole. In 
ascertaining the additional credit for any taxable year with respect to 
a particular State law which the Secretary of Labor certifies as a whole 
to the Secretary of the Treasury in accordance with the provisions of 
section 3303, the taxpayer must first compute the following amounts:
    (i) The amount of contributions (whether or not with respect to 
employment as defined in section 3306(c)) which the taxpayer would have 
been required to pay under the State law for such year if throughout the 
year he had been subject to the highest rate applied under such law in 
such year, or to a rate of 2.7 percent, whichever rate is lower.
    (ii) The amount of contributions (whether or not with respect to 
employment as defined in section 3306 (c)) he was required to pay under 
the State law with respect to such year, whether or not paid.

The amount computed under paragraph (b)(1)(ii) of this section should 
then be subtracted from the amount computed under paragraph (b)(1)(i) of 
this section and the result will be the additional credit for the 
taxable year with respect to the law of that State.

    Example. A employs individuals only in State X during the calendar 
year 1955. The

[[Page 153]]

unemployment compensation law of State X has been certified in its 
entirety to the Secretary of the Treasury by the Secretary of Labor for 
such year. The highest rate applied in such year under such State law to 
any taxpayer is 3 percent. However, A has obtained a rate of 1 percent 
under the law of such State and is required to pay his entire year's 
contribution at that rate. The amount of remuneration of A's employees 
subject to contributions under such State law is $25,000. A's additional 
credit under section 3302(b) is $425, computed as follows:

Remuneration subject to contributions.........................   $25,000
                                                               =========
Contributions at 2.7 percent rate.............................       675
Less:
  Contributions required to be paid at 1 percent rate.........       250
                                                               ---------
Additional credit to A........................................       425
 


Since the 2.7 percent rate is less than the highest rate applied (3 
percent), the 2.7 percent rate is used in computing the amount ($675) 
from which the amount of contributions required to be paid at the 1 
percent rate ($250) is deducted in order to ascertain the additional 
credit ($425).

    (2) Certification with respect to particular provisions of a State 
law. If the Secretary of Labor makes a certification to the Secretary of 
the Treasury with respect to particular provisions of a State law for 
any taxable year pursuant to section 3303, the additional credit of the 
taxpayer for such year with respect to such law shall be computed in 
such manner as the Commissioner shall determine.
    (c) Amount of additional credit allowable to taxpayer with respect 
to more than one State law. If the taxpayer is entitled to additional 
credit with respect to more than one State law in any taxable year, the 
additional credit allowable with respect to each State law shall be 
computed separately (in accordance with paragraph (b) of this section) 
and the total additional credit allowable against the tax for such year 
shall be the aggregate of the additional credits allowable with respect 
to such State laws. For limitation on total credits, see 
Sec. 31.3302(c)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6632, June 27, 1963]



Sec. 31.3302(b)-2  Proof of additional credit under section 3302(b).

    Additional credit under section 3302(b) shall not be allowed against 
the tax for any calendar year unless there is submitted--
    (a) To the Commissioner a certificate of the proper officer of each 
State (with respect to the law of which the additional credit is 
claimed) showing the highest rate of contributions applied under the 
State law in such calendar year to any person having individuals in his 
employ; and
    (b) To the district director a certificate of the proper officer of 
each State (with respect to the law of which the additional credit is 
claimed) showing for the taxpayer--
    (1) The total remuneration with respect to which contributions were 
required to be paid by the taxpayer under the State law with respect to 
such calendar year; and
    (2) The rate of contributions applied to the taxpayer under the 
State law with respect to such calendar year.

If under the law of such State different rates of contributions were 
applied to the taxpayer during particular periods of such calendar year, 
the certificate shall set forth the information called for in paragraphs 
(b)(1) and (2) of this section with respect to each such period.
    (c) Such other or additional proof as the Commissioner or the 
district director may deem necessary to establish the right to the 
additional credit provided for under section 3302(b).



Sec. 31.3302(c)-1  Limit on total credits.

    (a) In general. Paragraph (b) of this section relates to the 
limitation on the aggregate of the credits allowable under section 3302 
(a) and (b). Paragraph (c) of this section relates to reductions, under 
certain circumstances, of the total credits allowable after applying 
section 3302 (a), (b), and (c)(1). In paragraphs (c)(1), (2), and (3) of 
this section, relate, respectively, to reductions of credits in respect 
of advances under title XII of the Social Security Act before September 
13, 1960, advances under title XII of the Social Security Act after 
September 12, 1960, and payments under the Temporary Unemployment 
Compensation Act of 1958. A reduction of credit under paragraph (c)(1), 
(2), or (3) of this section applies separately from, and in addition to, 
a

[[Page 154]]

reduction under any other such subparagraph. See section 3302(d) and 
Sec. 31.3302(d)-1 for definitions and special rules relating to section 
3302(c), and for a provision that, in applying section 3302(c), the 
Federal tax shall be computed at the rate of 3 percent.
    (b) Limitation on aggregate credit. The aggregate of the credit 
under section 3302(a) and the additional credit under section 3302(b) 
shall not exceed 90 percent of the tax against which credit is taken, 
computed as if the tax were imposed at the rate of 3 percent. Thus, the 
aggregate of the credit which is allowable to an employer for any 
taxable year shall not exceed 2.7 percent of the wages paid by the 
employer during the year.
    (c) Reductions of amount of credit otherwise allowable--(1) Advances 
before September 13, 1960, under title XII of Social Security Act--(i) 
Credit reductions for 1961 and 1962. Pursuant to section 3302(c)(2), as 
applicable to credit allowable for any year ended before 1963, the total 
credits otherwise allowable under section 3302 to a taxpayer subject to 
the unemployment compensation law of the State of--
    (a) Alaska shall be reduced for the taxable year 1961 by an amount 
equal to 0.15 percent of the wages paid by the taxpayer during 1961 
which are attributable to Alaska, and shall be reduced for the taxable 
year 1962 by an amount equal to 0.3 percent of the wages paid by the 
taxpayer during 1962 which are attributable to Alaska; or
    (b) Michigan shall be reduced for the taxable year 1962 by an amount 
equal to 0.15 percent of the wages paid by the taxpayer during 1962 
which are attributable to Michigan.
    (ii) Credit reductions for 1963 and subsequent years. If any balance 
of an advance or advances under title XII of the Social Security Act, 
made before September 13, 1960, to the unemployment account of a State, 
remains unpaid on January 1, 1963, or on January 1 of any succeeding 
taxable year, the total credits otherwise allowable under section 3302 
to a taxpayer subject to the unemployment compensation law of the State 
shall be reduced for the taxable year unless--
    (a) No balance of such advance or advances exists as of the 
beginning of November 10 of the taxable year, or
    (b) The State pays into the Federal unemployment account, before 
November 10 of the taxable year, the amount certified by the Secretary 
of Labor pursuant to section 3302(c)(2), and designates such payment as 
being made for purposes of the last sentence of section 3302(c)(2).

The credit reduction for a taxable year shall be a percentage of the 
wages paid by the taxpayer during that taxable year which are 
attributable to the State. The percentage for the taxable year 1963, or 
for any succeeding taxable year beginning before January 1, 1968, is 
0.15 percent (that is, 5 percent of the Federal tax, computed as if 
imposed at the rate of 3 percent of the wages). The percentage for any 
taxable year beginning on or after January 1, 1968, is the percentage 
reduction for the immediately preceding taxable year plus 0.15 percent. 
Thus, for 1968 the percentage is 0.3 percent, for 1969 the percentage is 
0.45 percent, and for 1970 the percentage is 0.6 percent.
    (2) Advances after September 12, 1960, under title XII of Social 
Security Act--(i) In general. If any balance of an advance or advances 
under title XII of the Social Security Act, made after September 12, 
1960, to the unemployment account of a State, remains unpaid on January 
1 of two consecutive taxable years, the total credits otherwise 
allowable under section 3302 to a taxpayer subject to the unemployment 
compensation law of the State shall be reduced for the taxable year 
beginning with the second consecutive January 1, unless prior to 
November 10 of that taxable year the total amount of any such advance or 
advances made to the account of the State has been fully repaid. The 
reduction made pursuant to this subdivision in the total credits 
otherwise allowable for the taxable year beginning with the second 
consecutive January 1 shall be 0.3 percent of the wages paid by the 
taxpayer during the taxable year which are attributable to the State 
(that is, 10 percent of the Federal tax, computed as if imposed at the 
rate of 3 percent of the wages). In the case of any succeeding

[[Page 155]]

taxable year beginning with a consecutive January 1 on which there 
exists such a balance of an unreturned advance or advances made after 
September 12, 1960, the total credits otherwise allowable shall be 
further reduced unless prior to November 10 of that succeeding taxable 
year the total amount of any such advance or advances made to the 
account of the State has been fully repaid. The reduction for each such 
succeeding taxable year beginning with a consecutive January 1 on which 
such a balance exists shall be a percentage of the wages paid by the 
taxpayer during that succeeding taxable year which are attributable to 
the State. The percentage reduction for any such succeeding taxable year 
shall be the aggregate of (a) the percentage reduction (without regard 
to paragraph (c)(2)(ii) or (iii) of this section) for the immediately 
preceding taxable year, (b) 0.3 percent of the wages paid by the 
taxpayer during the taxable year which are attributable to the State, 
and (c) the percentage, if any, described in paragraph (c)(2)(ii) or 
(iii) of this section.
    (ii) Additional reduction if a balance of advances exists after 
third or fourth consecutive January 1. If the credit reduction described 
in subdivision (i) of this subparagraph is made for the third or fourth 
consecutive taxable year, the total credits otherwise allowable under 
section 3302 to a taxpayer subject to the unemployment compensation law 
of the State shall be further reduced for the taxable year unless the 
average employer contribution rate (see section 3302(d)(4)) for such 
State for the calendar year preceding such taxable year is at least 2.7 
percent. The percentage of reduction, if any, under this subdivision 
shall be the percentage referred to in section 3302(c)(3)(B) which is 
certified by the Secretary of Labor pursuant to section 3302(d)(7).
    (iii) Additional reduction if a balance of advances exists after 
fifth or any succeeding consecutive January 1. If the credit reduction 
described in subdivision (i) of this subparagraph is made for the fifth 
or any succeeding taxable year, the total credits otherwise allowable 
under section 3302 to a taxpayer subject to the unemployment 
compensation law of the State shall be further reduced for the taxable 
year unless the average employer contribution rate (see section 
3302(d)(4)) for the State for the calendar year preceding such taxable 
year equals or exceeds the 5-year benefit cost rate (see section 
3302(d)(5)) applicable to the State for the taxable year or 2.7 percent, 
whichever is higher. The percentage of reduction, if any, under this 
subdivision for a taxable year shall be the percentage referred to in 
section 3302(c)(3)(C) which is certified by the Secretary of Labor 
pursuant to section 3302(d)(7).
    (3) Payments under the Temporary Unemployment Compensation Act of 
1958. If any amount of temporary unemployment compensation was paid in a 
State under the Temporary Unemployment Compensation Act of 1958, the 
total credits otherwise allowable under section 3302 to a taxpayer with 
respect to wages attributable to the State for the taxable year 
beginning January 1, 1963, and for each taxable year thereafter, shall 
be reduced unless prior to November 10 of the taxable year--
    (i) There have been restored to the Treasury the amounts of 
temporary unemployment compensation paid in the State (except amounts 
paid to individuals who exhausted their unemployment compensation under 
title XV of the Social Security Act and title IV of the Veterans' 
Readjustment Assistance Act of 1952 prior to their making their first 
claims under the Temporary Unemployment Compensation Act of 1958), the 
amount of costs incurred in the administration of the Temporary 
Unemployment Compensation Act of 1958); with respect to the State, and 
the amount estimated by the Secretary of Labor as the State's 
proportionate share of other costs incurred in the administration of 
such Act, or
    (ii) The State restores to the general fund of the Treasury the 
amount certified by the Secretary of Labor pursuant to section 104 of 
the Temporary Unemployment Compensation Act of 1958, and designates such 
restoration as being made for purposes of the last sentence of such 
section.

The credit reduction for a taxable year shall be a percentage of the 
wages paid by the taxpayer during that year which are attributable to 
the State. The percentage for the taxable year 1963 is 0.15

[[Page 156]]

percent (that is, 5 percent of the Federal tax, computed as if imposed 
at the rate of 3 percent). The percentage for any succeeding year is 0.3 
percent (that is, 10 percent of the Federal tax, computed as if imposed 
at the rate of 3 percent).
    (4) Example. The cumulative effect of the credit reductions 
described in this paragraph may be illustrated by the following example:

    Example. Advances to the unemployment account of State X were made 
in 1957 and in 1961 under title XII of the Social Security Act. Payments 
under the Temporary Unemployment Compensation Act of 1958 were made in 
State X in 1958. No portion of the advances or payments is returned 
before November 10, 1964. As a consequence:
    (a) The credit reduction applicable under subparagraph (1) of this 
paragraph is made for 1964 at the rate of 0.15 percent;
    (b) The credit reduction described in subparagraph (2) of this 
paragraph has been made for 1963 (the second successive year after 1961) 
at the rate of 0.3 percent. The rate of credit reduction under 
subparagraph (2) for 1964 is 1 percent (the aggregate of 0.6 percent 
under section 3302(c)(3)(A) and 0.4 percent (assumed for purposes of 
this example to be the percentage referred to in section 3302(c)(3)(B) 
which is certified by the Secretary of Labor), and
    (c) The credit reduction described in subparagraph (3) of this 
paragraph has been made for 1963 at the rate of 0.15 percent. The rate 
of credit reduction for 1964 is 0.3 percent.

The cumulative rate of credit reduction applicable for 1964 to wages 
attributable to State X is 1.45 percent, representing the aggregate of 
the percentage reductions applicable under subparagraphs (1), (2), and 
(3) of this paragraph (0.15 percent, 1 percent, and 0.3 percent, 
respectively). In 1964 Employer A paid wages of $100,000, all of which 
are subject to the unemployment compensation law of State X. The credit 
which would be allowable (under section 3302 (a), (b), and (c)(1)) if 
there were no credit reduction is $2,700. Employer A's tax is computed 
as follows for 1964:

Total taxable wages (attributable to State X)...    $100,000
                                                 =============
Gross Federal tax (3.1 percent of wages)........       3,100
Less credit:
  Gross credit..................................      $2,700
  Credit reduction (1.45 percent of wages)......       1,450
  Net credit....................................       1,250
                                                 -------------
Amount of Federal tax due.......................       1,850
 


[T.D. 6658, 28 FR 6633, June 27, 1963, as amended by T.D. 6708, 29 FR 
3198, Mar. 10, 1964]



Sec. 31.3302(d)-1  Definitions and special rules relating to limit on total credits.

    (a) Rate of tax deemed to be 3 percent. In applying the provisions 
of section 3302(c) relating to the limitation on total credits, and to 
reductions of credits otherwise allowable, the tax imposed by section 
3301 shall be computed at the rate of 3 percent in lieu of any other 
rate prescribed in section 3301 (see Sec. 31.3301-3).
    (b) Wages attributable to a particular State. For purposes of 
section 3302(c) (2) or (3), wages are attributable to a particular State 
if they are subject to the unemployment compensation law of the State. 
If wages are not subject to the unemployment compensation law of any 
State, the determination as to whether such wages, or any portion 
thereof, are attributable to the particular State with respect to which 
the reduction in total credits is imposed shall be made in accordance 
with rules prescribed by the Commissioner.
    (c) Employment Security Act of 1960. The Employment Security Act of 
1960, referred to in section 3302(c)(2), means title V of the Social 
Security Amendments of 1960.

[T.D. 6658, 28 FR 6635, June 27, 1963]



Sec. 31.3302(e)-1  Successor employer.

    (a) In general. In addition to the credits against the tax allowable 
under section 3302(a) and (b) for any taxable year after 1960, the 
taxpayer may be entitled to an amount of credit under section 3302(e). 
Credit under section 3302(e) is provided in the case of a taxpayer who 
(1) acquires substantially all of the property used in a trade or 
business, or in a separate unit of a trade or business, of another 
person (referred to in this section as a predecessor) who is not an 
employer (see Sec. 31.3306(a)-1) for the calendar year in which the 
acquisition takes place, and (2) immediately after the acquisition 
employs in his trade or business one or more individuals who immediately 
prior to the acquisition were employed in the trade or business of the 
predecessor.

[[Page 157]]

    (b) Method of computing credit under section 3302(e). (1) Except as 
provided in paragraph (b)(2) of this section, the amount of credit to 
which the taxpayer may be entitled under section 3302(e) is the amount 
of credit to which the predecessor would be entitled under section 3302 
(a), (b), and (e), without regard to the limits in section 3302(c), if 
the predecessor were an employer.
    (2) If, during the calendar year in which the acquisition takes 
place, the predecessor pays remuneration, subject to contributions under 
the unemployment compensation law of a State, to any employee other than 
the individuals referred to in paragraph (a) of this section, the 
taxpayer will be entitled only to a portion of the amount of credit 
described in paragraph (b)(1) of this section. The portion is determined 
by multiplying such amount by a fraction. The numerator of the fraction 
is the total amount of remuneration, subject to such contributions, paid 
by the predecessor during such year to the individuals referred to in 
paragraph (a) of this section. The denominator of the fraction is the 
total amount of remuneration, subject to such contributions, paid by the 
predecessor during such year to all employees for services performed by 
them in the trade or business, or unit thereof, acquired by the 
taxpayer.

    Example. In April 1961 the X Partnership terminated after selling 
all of its property to the Y Corporation. During 1961, the X Partnership 
paid its employees and former employees a total of $1,000,000 as 
remuneration subject to contributions under the employment compensation 
law of a State. (Note that the X Partnership did not qualify as an 
employer for 1961 for purposes of the Federal unemployment tax, because 
it had employees during less than 20 weeks in 1961.) When the Y 
Corporation acquired the property it concurrently employed all 
individuals who were then in the employ of the X Partnership. Assume 
that the X Partnership, if it had qualified as an employer for 1961, 
would have been entitled to a total credit against the Federal tax of 
$30,000 under section 3302 (a) and (b), without regard to the limits in 
section 3302(c). Of the $1,000,000 remuneration paid by the X 
Partnership in 1961, one-fifth (or $200,000) was paid to individuals who 
were employed by the Y Corporation at the time it acquired the property 
of the X Partnership. Under section 3302(e), therefore, the Y 
Corporation is entitled to credit of $6,000, which is one-fifth of the 
credit ($30,000) which would have been available to the X Partnership.

    (3) The aggregate amount of credit allowable to the taxpayer under 
section 3302 (a), (b), and (e) is subject to the limits in section 
3302(c).
    (c) Proof of credit under section 3302(e). Credit under section 
3302(e) shall not be allowed against the tax for any taxable year unless 
there is submitted to the district director (1) such information or 
proof as may be called for in the return on which the credit is 
reported, or in the instructions relating to the return, and (2) such 
other or additional proof as the Commissioner or the district director 
may deem necessary to establish the right to the credit provided for 
under section 3302(e).
    (d) Cross-references. See paragraph (b) of Sec. 31.3306(b)(1)-1 for 
examples of the acquisition of property used in a trade or business, or 
in a separate unit thereof.

[T.D. 6658, 28 FR 6635, June 27, 1963]



Sec. 31.3306(a)-1  Who are employers.

    (a) Definition--(1) For calendar years 1956 through 1969, inclusive. 
Every person who employs 4 or more employees in employment (within the 
meaning of section 3306 (c) and (d)) on a total of 20 or more calendar 
days during any calendar year after 1955 and before 1970, each such day 
being in a different calendar week, is with respect to such year an 
employer subject to the tax.
    (1a) For 1970 and subsequent calendar years. Every person who 
employs 4 or more employees in employment (within the meaning of section 
3306 (c) and (d)) on a total of 20 or more calendar days during a 
calendar year after 1969, or during the calendar year immediately 
preceding such a calendar year, each such day being in a different 
calendar week, is with respect to such year an employer subject to the 
tax.
    (2) For calendar year 1955. Every person who employs 8 or more 
employees in employment (within the meaning of section 3306 (c) and (d)) 
on a total of 20 or more calendar days during the calendar year 1955, 
each such day being in a different calendar week, is with respect to 
such year an employer subject to the tax.

[[Page 158]]

    (3) General agents of the Secretary of Commerce. For provisions 
relating to the circumstances under which an employee who performs 
services as an officer or member of the crew of an American vessel (i) 
which is owned by or bareboat chartered to the United States and (ii) 
whose business is conducted by a general agent of the Secretary of 
Commerce shall be deemed to be performing services for such general 
agent rather than for the United States, see Sec. 31.3306 (N)-1.
    (b) The several weeks in each of which occurs a day on which the 
prescribed number of employees are employed need not be consecutive 
weeks. It is not necessary that the employees so employed be the same 
individuals; they may be different individuals on each day. Neither is 
it necessary that the prescribed number of employees be employed at the 
same moment of time or for any particular length of time or on any 
particular basis of compensation. It is sufficient if the total number 
of employees employed during the 24 hours of a calendar day is 4 or more 
(8 or more for the calendar year 1955).
    (c) In determining whether a person employs a sufficient number of 
employees to be an employer subject to the tax, each employee is counted 
with respect to services which constitute employment as defined in 
section 3306(c) (see Sec. 31.3306(c)-2). No employee is counted with 
respect to services which do not constitute employment as so defined. 
See, however, paragraph (d) of this section.
    (d) The provisions of paragraph (c) of this section are subject to 
the provisions of section 3306(d), relating to services which do not 
constitute employment but which are deemed to be employment, and 
relating to services which constitute employment but which are deemed 
not to be employment (see Sec. 31.3306(d)-1). For example, if the 
services of an employee during a pay period are deemed to be employment 
under section 3306(d), even though a portion thereof does not constitute 
employment under section 3306(c), the employee is counted with respect 
to all services during the pay period. On the other hand, if the 
services of an employee during a pay period are deemed not to be 
employment, even though a portion thereof constitutes employment, the 
employee is not counted with respect to any services during the pay 
period.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7037, 35 FR 
6709, Apr. 28, 1970]



Sec. 31.3306(b)-1  Wages.

    (a) Applicable law and regulations--(1) Remuneration paid after 
1954. Whether remuneration paid after 1954 for employment performed 
after 1938 constitutes wages is determined under section 3306(b). 
Accordingly, only remuneration paid after 1954 for employment performed 
after 1938 is covered by this section of the regulations and by the 
sections relating to the statutory exclusions from wages 
(Secs. 31.3306(b)(1)-1 to 31.3306(b)(10)-1).
    (2) Remuneration paid after 1939 and before 1955. Whether 
remuneration paid after 1939 and before 1955 for employment performed 
after 1938 constitutes wages shall be determined in accordance with the 
applicable provisions of law and of 26 CFR (1939) Part 403 (Regulations 
107).
    (3) Remuneration paid in 1939. Whether remuneration paid in 1939 for 
employment performed after 1938 constitutes wages shall be determined in 
accordance with the applicable provisions of law and of 26 CFR (1939) 
Part 400 (Regulations 90).
    (b) The term ``wages'' means all remuneration for employment unless 
specifically excepted under section 3306(b) (see Secs. 31.3306(b)(1)-1 
to 31.3306(b)(10)-1, inclusive) or paragraph (j) of this section.
    (c) The name by which the remuneration for employment is designated 
is immaterial. Thus, salaries, fees, bonuses, and commissions are wages 
if paid as compensation for employment.
    (d) The basis upon which the remuneration is paid is immaterial in 
determining whether the remuneration constitutes wages. Thus, it may be 
paid on the basis of piecework or a percentage of profits; and it may be 
paid hourly, daily, weekly, monthly, or annually.
    (e) Except in the case of remuneration paid for services not in the 
course of the employer's trade or business (see Sec. 31.3306(b)(7)-1), 
the medium in which

[[Page 159]]

the remuneration is paid is also immaterial. It may be paid in cash or 
in something other than cash, as for example, goods, lodging, food, or 
clothing. Remuneration paid in items other than cash shall be computed 
on the basis of the fair value of such items at the time of payments.
    (f) Ordinarily, facilities or privileges (such as entertainment, 
medical services, or so-called ``courtesy'' discounts on purchases), 
furnished or offered by an employer to his employees generally, are not 
considered as remuneration for employment if such facilities or 
privileges are of relatively small value and are offered or furnished by 
the employer merely as a means of promoting the health, good will, 
contentment, or efficiency of his employees. The term ``facilities or 
privileges'', however, does not ordinarily include the value of meals or 
lodging furnished, for example, to restaurant or hotel employees, or to 
seamen or other employees aboard vessels, since generally these items 
constitute an appreciable part of the total remuneration of such 
employees.
    (g) Amounts of so-called ``vacation allowances'' paid to an employee 
constitute wages. Thus, the salary of an employee on vacation, paid 
notwithstanding his absence from work, constitutes wages.
    (h) Amounts paid specifically--either as advances or 
reimbursements--for traveling or other bona fide ordinary and necessary 
expenses incurred or reasonably expected to be incurred in the business 
of the employer are not wages. Traveling and other reimbursed expenses 
must be identified either by making a separate payment or by 
specifically indicating the separate amounts where both wages and 
expense allowances are combined in a single payment. For amounts that 
are received by an employee on or after July 1, 1990, with respect to 
expenses paid or incurred on or after July 1, 1990, see Sec. 31.3306(b)-
2.
    (i) Remuneration paid by an employer to an individual for 
employment, unless such remuneration is specifically excepted under 
section 3306(b), constitutes wages even though at the time paid the 
individual is no longer an employee.

    Example. A is employed by B, an employer, during the month of June 
1955 in employment and is entitled to receive remuneration of $100 for 
the services performed for B during the month. A leaves the employ of B 
at the close of business on June 30, 1955. On July 15, 1955 (when A is 
no longer an employee of B), B pays A the remuneration of $100 which was 
earned for the services performed in June. The $100 is wages, and the 
tax is payable with respect thereto.

    (j) In addition to the exclusions specified in Secs. 31.3306(b)(1)-1 
to 31.3306(b)(10)-1, inclusive, the following types of payments are 
excluded from wages:
    (1) Remuneration for services which do not constitute employment 
under section 3306(c).
    (2) Remuneration for services which are deemed not to be employment 
under section 3306(d) (Sec. 31.3306(d)-1).
    (3) Tips or gratuities paid directly to an employee by a customer of 
an employer, and not accounted for by the employee to the employer.
    (k) For provisions relating to the treatment of deductions from 
remuneration as payments of remuneration, see Sec. 31.3307-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6636, June 27, 1963; T.D. 7375, 40 FR 42350, Sept. 12, 1975; T.D. 8276, 
54 FR 51028, Dec. 12, 1989; T.D. 8324, 55 FR 51697, Dec. 17, 1990]



Sec. 31.3306(b)-1T  Question and answer relating to the definition of wages in section 3306(b) (Temporary).

    The following question and answer relates to the definition of wages 
in section 3306(b) of the Internal Revenue Code of 1954, as amended by 
section 531(d)(3) of the Tax Reform Act of 1984 (98 Stat. 885):
    Q-1: Are fringe benefits included in the definition of wages under 
section 3306(b)?
    A-1: Yes, unless specifically excluded from the definition of 
``wages'' pursuant to section 3306(b) (1) through (16). For example, a 
fringe benefit provided to or on behalf of an employee is excluded from 
the definition of ``wages'' 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 117 or 132.

[T.D. 8004, 50 FR 755, Jan. 7, 1985]

[[Page 160]]



Sec. 31.3306(b)-2  Reimbursement and other expense allowance amounts.

    (a) When excluded from wages. If a reimbursement or other expense 
allowance arrangement meets the requirements of section 62(c) of the 
Code and Sec. 1.62-2 and the expenses are substantiated within a 
reasonable period of time, payments made under the arrangement that do 
not exceed the substantiated expenses are treated as paid under an 
accountable plan and are not wages. In addition, if both wages and the 
reimbursement or other expense allowance are combined in a single 
payment, the reimbursement or other expense allowance must be identified 
either by making a separate payment or by specifically identifying the 
amount of the reimbursement or other expense allowance.
    (b) When included in wages--(1) Accountable plans--(i) General rule. 
Except as provided in paragraph (b)(1)(ii) of this section, if a 
reimbursement or other expense allowance arrangement satisfied the 
requirements of section 62(c) and Sec. 1.62-2, but the expenses are not 
substantiated within a reasonable period of time or amounts in excess of 
the substantiated expenses are not returned within a reasonable period 
of time, the amount paid under the arrangement in excess of the 
substantiated expenses is treated as paid under a nonaccountable plan, 
is included in wages, and is subject to withholding and payment of 
employment taxes no later than the first payroll period following the 
end of the reasonable period.
    (ii) Per diem or mileage allowances. If a reimbursement or other 
expense allowance arrangement providing a per diem or mileage allowance 
satisfies the requirements of section 62(c) and Sec. 1.62-2, but the 
allowance is paid at a rate for each day or mile of travel that exceeds 
the amount of the employee's expenses deemed substantiated for a day or 
mile of travel, the excess portion is treated as paid under a 
nonaccountable plan and is included in wages. In the case of a per diem 
or mileage allowance paid as a reimbursement, the excess portion is 
subject to withholding and payment of employment taxes when paid. In the 
case of a per diem or mileage allowance paid as an advance, the excess 
portion is subject to withholding and payment of employment taxes no 
later than the first payroll period following the payroll period in 
which the expenses with respect to which the advance was paid (i.e., the 
days or miles of travel) are substantiated. The Commissioner may, in his 
discretion, prescribe special rules in pronouncements of general 
applicability regarding the timing of withholding and payment of 
employment taxes on per diem and mileage allowances.
    (2) Nonaccountable plans. If a reimbursement or other expense 
allowance arrangement does not satisfy the requirements of section 62(c) 
and Sec. 1.62-2 (e.g., the arrangement does not require expenses to be 
substantiated or require amounts in excess of the substantiated expenses 
to be returned), all amounts paid under the arrangement are treated as 
paid under a nonaccountable plan, are included in wages, and are subject 
to withholding and payment of employment taxes when paid.
    (c) Effective dates. This section generally applies to payments made 
under reimbursement or other expense allowance arrangements received by 
an employee on or after July 1, 1990, with respect to expenses paid or 
incurred on or after July 1, 1990. Paragraph (b)(1)(ii) of this section 
applies to payments made under reimbursement or other expense allowance 
arrangements received by an employee on or after January 1, 1991, with 
respect to expenses paid or incurred on or after January 1, 1991.

[T.D. 8324, 55 FR 51697, Dec. 17, 1990]



Sec. 31.3306(b)(1)-1  $3,000 limitation.

    (a) In general. (1) the term ``wages'' does not include that part of 
the remuneration paid within any calendar year by an employer to an 
employee which exceeds the first $3,000 of remuneration (exclusive of 
remuneration excepted from wages in accordance with paragraph (j) of 
Sec. 31.3306(b)-1 or Secs. 31.3306(b)(2)-1 to 31.3306(b)(8)-1, 
inclusive), paid within such calendar year by such employer to such 
employee for employment performed for him at any time after 1938.
    (2) The $3,000 limitation applies only if the remuneration paid 
during any one calendar year by an employer to the same employee for 
employment

[[Page 161]]

performed after 1938 exceeds $3,000. The limitation in such case relates 
to the amount of remuneration paid during any one calendar year for 
employment after 1938 and not to the amount of remuneration for 
employment performed in any one calendar year.

    Example. Employer B, in 1955, pays employee A $2,500 on account of 
$3,000 due him for employment performed in 1955. In 1956 employer B pays 
employee A the balance of $500 due him for employment performed in the 
prior year (1955), and thereafter in 1956 also pays A $3,000 for 
employment performed in 1956. The $2,500 paid in 1955 is subject to tax 
in 1955. The balance of $500 paid in 1956 for employment during 1955 is 
subject to tax in 1956, as is also the first $2,500 paid of the $3,000 
for employment during 1956 (this $500 for 1955 employment added to the 
first $2,500 paid for 1956 employment constitutes the maximum wages 
subject to the tax which could be paid in 1956 by B to A). The final 
$500 paid by B to A in 1956 is not included as wages and is not subject 
to the tax.

    (3) If during a calendar year an employee is paid remuneration by 
more than one employer, the limitation of wages to the first $3,000 of 
remuneration paid applies, not to the aggregate remuneration paid by all 
employers with respect to employment performed after 1938, but instead 
to the remuneration paid during such calendar year by each employer with 
respect to employment performed after 1938. In such case the first 
$3,000 paid during the calendar year by each employer constitutes wages 
and is subject to the tax. In connection with the application of the 
$3,000 limitation, see also paragraph (b) of this section relating to 
the circumstances under which wages paid by a predecessor employer are 
deemed to be paid by his successor. In connection with the annual wage 
limitation in the case of remuneration after December 31, 1978 from two 
or more related corporations that compensate an employee through a 
common paymaster, see Sec. 31.3306(p)-1.

    Example 1. During 1955 employer D pays to employee C a salary of 
$600 a month for employment performed for D during the first seven 
months of 1955, or total remuneration of $4,200. At the end of the fifth 
month C has been paid $3,000 by employer D, and only that part of his 
total remuneration from D constitutes wages subject to the tax. The $600 
paid to employee C by employer D in the sixth month, and the like amount 
paid in the seventh month, are not included as wages and are not subject 
to the tax. At the end of the seventh month C leaves the employ of D and 
enters the employ of E. Employer E pays to C remuneration of $600 a 
month in each of the remaining five months of 1955, or total 
remuneration of $3,000. The entire $3,000 paid by E to employee C 
constitutes wages and is subject to the tax. Thus, the first $3,000 paid 
by employer D and the entire $3,000 paid by employer E constitute wages.
    Example 2. During the calendar year 1955 F is simultaneously an 
officer (an employee) of the X Corporation, the Y Corporation, and the Z 
Corporation, each such corporation being an employer for such year. 
During such year F is paid a salary of $3,000 by each Corporation. Each 
$3,000 paid to F by each of the corporations, X, Y, and Z (whether or 
not such corporations are related), constitutes wages and is subject to 
the tax.

    (b) Wages paid by predecessor attributed to successor. (1) If an 
employer (hereinafter referred to as a successor) 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 if 
immediately after the acquisition the successor 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 
purposes of the application of the $3,000 limitation set forth in 
paragraph (a) of this section, any remuneration (exclusive of 
remuneration excepted from wages in accordance with paragraph (j) of 
Sec. 31.3306(b)-1 or Secs. 31.3306(b)(2)-1 to 31.3306(b)(8)-1, 
inclusive), with respect to employment paid (or considered under this 
provision 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. Wages paid by a 
predecessor shall not be considered as having been paid by the successor 
unless both the predecessor and the successor are employers as defined 
in section 3306(a) for the calendar year in which the acquisition occurs 
(see Sec. 31.3306(a)-1, relating to who are employers).
    (2) The wages paid, or considered as having been paid, by a 
predecessor to an employee shall, for purposes of the $3,000 limitation, 
be treated as having

[[Page 162]]

been paid to such employee by a successor, if:
    (i) The successor during a calendar year acquired substantially all 
the property used in a trade or business, or used in a separate unit of 
a trade or business, of the predecessor;
    (ii) Such employee was employed in the trade or business of the 
predecessor immediately prior to the acquisition and is employed by the 
successor in his trade or business immediately after the acquisition; 
and
    (iii) Such wages were paid during the calendar year in which the 
acquisition occurred and prior to such acquisition.
    (3) The method of acquisition by an employer of the property of 
another employer is immaterial. The acquisition may occur as a 
consequence of the incorporation of a business by a sole proprietor of a 
partnership, the continuance without interruption of the business of a 
previously existing partnership by a new partnership or by a sole 
proprietor, or a purchase or any other transaction whereby substantially 
all the property used in a trade or business, or used in a separate unit 
of a trade or business, of one employer is acquired by another employer.
    (4) Substantially all the property used in a separate unit of a 
trade or business may consist of substantially all the property used in 
the performance of an essential operation of the trade or business, or 
it may consist of substantially all the property used in a relatively 
self-sustaining entity which forms a part of the trade or business.

    Example 1. The M Corporation which is engaged in the manufacture of 
automobiles, including the manufacture of automobile engines, 
discontinues the manufacture of the engines and transfers all the 
property used in such manufacturing operations to the N Company. The N 
Company is considered to have acquired a separate unit of the trade or 
business of the M Corporation, namely, its engine manufacturing unit.
    Example 2. The R Corporation which is engaged in the operation of a 
chain of grocery stores transfers one of such stores to the S Company. 
The S Company is considered to have acquired a separate unit of the 
trade or business of the R Corporation.

    (5) A successor may receive credit for wages paid to an employee by 
a predecessor only if immediately prior to the acquisition the employee 
was employed by the predecessor in his trade or business which was 
acquired by the successor and if immediately after the acquisition such 
employee is employed by the successor in his trade or business (whether 
or not in the same trade or business in which the acquired property is 
used). If the acquisition involves only a separate unit of a trade or 
business of the predecessor, the employee need not have been employed by 
the predecessor in that unit provided he was employed in the trade or 
business of which the acquired unit was a part.

    Example. The Y Corporation in 1955 acquires all the property of the 
X Manufacturing Company and immediately after the acquisition employs in 
its trade or business employee A, who, immediately prior to the 
acquisition, was employed by the X Company. Both the Y Corporation and 
the X Company are employers, as defined in the Act, for the calendar 
year 1955. The X Company has in 1955 (the calendar year in which the 
acquisition occurs) and prior to the acquisition paid $2,000 of wages to 
A. The Y Corporation in 1955 pays to A remuneration with respect to 
employment of $2,000. Only $1,000 of such remuneration is considered to 
be wages. For purposes of the $3,000 limitation, the Y Corporation is 
credited with the $2,000 paid to A by the X Company. If, in the same 
calendar year, the property is acquired from the Y Corporation by the Z 
Company, an employer for such year, and A immediately after the 
acquisition is employed by the Z Company in its trade or business, no 
part of the remuneration paid to A by the Z Company in the year of the 
acquisition will be considered to be wages. The Z Company will be 
credited with the remuneration paid to A by the Y Corporation and also 
with the wages paid to A by the X Company (considered for purposes of 
the application of the $3,000 limitation as having also been paid by the 
Y Corporation).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6636, June 27, 1963; T.D. 7660, 44 FR 75142, Dec. 19, 1979]



Sec. 31.3306(b)(2)-1  Payments under employers' plans on account of retirement, sickness or accident disability, medical or hospitalization expenses, or death.

    (a) The term ``wages'' does not include 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

[[Page 163]]

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:
    (1) An employee's retirement,
    (2) Sickness or accident disability of an employee or any of his 
dependents,
    (3) Medical or hospitalization expenses in connection with sickness 
or accident disability of an employee or any of his dependents, or
    (4) Death of an employee or any of his dependents.
    (b) The plan or system established by an employer need not provide 
for payments on account of all of the specified items, but such plan or 
system may provide for any one or more of such items. Payments for any 
one or more of such items under a plan or system established by an 
employer solely for the dependents of his employees are not within this 
exclusion from wages.
    (c) Dependents of an employee include the employee's husband or 
wife, children, and any other members of the employee's immediate 
family.
    (d) It is immaterial for purposes of this exclusion whether the 
amount or possibility of such benefit payments is taken into 
consideration in fixing the amount of an employee's remuneration or 
whether such payments are required, expressly or impliedly, by the 
contract of service.



Sec. 31.3306(b)(3)-1  Retirement payments.

    The term ``wages'' does not include any payment made by an employer 
to an employee (including any amount paid by an employer for insurance 
or annuities, or into a fund, to provide for any such payment) on 
account of the employee's retirement. Thus payments made to an employee 
on account of his retirement are excluded from wages under this 
exception even though not made under a plan or system.



Sec. 31.3306(b)(4)-1  Payments on account of sickness or accident disability, or medical or hospitalization expenses.

    The term ``wages'' does not include any payment made by an employer 
to, or on behalf of, an employee on account of the employee's sickness 
or accident disability or the medical or hospitalization expenses in 
connection with the employee's sickness or accident disability, if such 
payment is made after the expiration of 6 calendar months following the 
last calendar month in which such employee worked for such employer. 
Such payments are excluded from wages under this exception even though 
not made under a plan or system. If the employee does not actually 
perform services for the employer during the requisite period, the 
existence of the employer-employee relationship during that period is 
immaterial.



Sec. 31.3306(b)(5)-1  Payments from or to certain tax-exempt trusts, or under or to certain annuity plans or bond purchase plans.

    (a) Payments from or to certain tax-exempt trusts. The term 
``wages'' does not include any payment made--
    (1) By an employer, on behalf of an employee or his beneficiary, 
into a trust, or
    (2) To, or on behalf of an employee or his beneficiary from a trust,

if at the time of such payment the trust is exempt from tax under 
section 501(a) as an organization described in section 401(a). A payment 
made to an employee of such a trust for services rendered as an employee 
of the trust and not as a beneficiary thereof is not within this 
exclusion from wages.
    (b) Payments under or to certain annuity plans. (1) The term 
``wages'' does not include any payment made after December 31, 1962--
    (i) By an employer, on behalf of an employee or his beneficiary, 
into an annuity plan, or
    (ii) To, or on behalf of, an employee or his beneficiary under an 
annuity plan, if at the time of such payment

[[Page 164]]

the annuity plan is a plan described in section 403(a).
    (2) The term ``wages'' does not include any payment made before 
January 1, 1963--
    (i) By an employer, on behalf of an employee or his beneficiary, 
into an annuity plan, or
    (ii) To, or on behalf of, an employee or his beneficiary under an 
annuity plan, if at the time of such payment the annuity plan meets the 
requirements of section 401(a) (3), (4), (5), and (6).
    (c) Payments under or to certain bond purchase plans. The term 
``wages'' does not include any payment made after December 31, 1962--
    (1) By an employer, on behalf of an employee or his beneficiary, 
into a bond purchase plan, or
    (2) To, or on behalf of, an employee or his beneficiary under a bond 
purchase plan,

if at the time of such payment the plan is a qualified bond purchase 
plan described in section 405(a).

[T.D. 6658, 28 FR 6636, June 27, 1963]



Sec. 31.3306(b)(6)-1  Payment by an employer of employee tax under section 3101 or employee contributions under a State law.

    The term ``wages'' does not include any payment by an employer 
(without deduction from the remuneration of, or other reimbursement 
from, the employee) of either (a) the employee tax imposed by section 
3101 or the corresponding section of prior law, or (b) any payment 
required from an employee under a State unemployment compensation law.



Sec. 31.3306(b)(7)-1  Payments other than in cash for service not in the course of employer's trade or business.

    The term ``wages'' does not include remuneration paid in any medium 
other than cash for service not in the course of the employer's trade or 
business. Cash remuneration includes checks and other monetary media of 
exchange. Remuneration paid in any medium other than cash, such as 
lodging, food, or other goods or commodities, for service not in the 
course of the employer's trade or business does not constitute wages. 
Remuneration paid in any medium other than cash for other types of 
services does not come within this exclusion from wages. For provisions 
relating to the circumstances under which service not in the course of 
the employer's trade or business does not constitute employment, see 
Sec. 31.3306(c)(3)-1.



Sec. 31.3306(b)(8)-1  Payments to employees for non-work periods.

    The term ``wages'' does not include any payment (other than vacation 
or sick pay) made by an employer to an employee after the calendar month 
in which the employee attains age 65, if--
    (a) Such employee does no work (other than being subject to call for 
the performance of work) for such employer in the period for which such 
payment is made; and
    (b) The employer-employee relationship exists between the employer 
and employee throughout the period for which such payment is made.

Vacation or sick pay is not within this exclusion from wages. If the 
employee does any work for the employer in the period for which the 
payment is made, no remuneration paid by such employer to such employee 
with respect to such period is within this exclusion from wages. For 
example, if employee A, who attained the age of 65 in January 1955, is 
employed by the X Company on a stand-by basis and is paid $200 by the X 
Company for being subject to call during the month of February 1955 and 
an additional $25 for work performed for the X Company on one day in 
February 1955, then none of the $225 is excluded from wages under this 
exception.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6708, 29 FR 
3199, Mar. 10, 1964]



Sec. 31.3306(b)(9)-1  Moving expenses.

    (a) The term ``wages'' does not include remuneration paid on or 
after November 1, 1964, to or on behalf of an employee, either as an 
advance or a reimbursement, specifically for moving expenses incurred or 
expected to be incurred, if (and to the extent that) at the time of 
payment it is reasonable to believe that a corresponding deduction is or 
will be allowable to the employee under section 217. The reasonable 
belief

[[Page 165]]

contemplated by the statute may be based upon any evidence reasonably 
sufficient to induce such belief, even though such evidence may be 
insufficient upon closer examination by the district director or the 
courts finally to establish that a deduction is allowable under section 
217. The reasonable belief shall be based upon the application of 
section 217 and the regulations thereunder in Part 1 of this chapter 
(Income Tax Regulations). When used in this section, the term ``moving 
expenses'' has the same meaning as when used in section 217 and the 
regulations thereunder.
    (b) Except as otherwise provided in paragraph (a) of this section, 
or in a numbered paragraph of section 3306(b), amounts paid to or on 
behalf of an employee for moving expenses are wages for purposes of 
section 3306(b).

[T.D. 7375, 40 FR 42351, Sept. 12, 1975]



Sec. 31.3306(b)(10)-1  Payments under certain employers' plans after retirement, disability, or death.

    (a) In general. The term ``wages'' does not include the amount of 
any payment or series of payments made after January 2, 1968, by an 
employer to, or on behalf of, an employee or any of his dependents under 
a plan established by the employer which makes provisions 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), which is paid or 
commences to be paid upon or within a reasonable time after the 
termination of an employee's employment relationship because of the 
employee's--
    (1) Death,
    (2) Retirement for disability, or
    (3) Retirement after attaining an age specified in the plan 
established by the employer or in a pension plan of the employer as the 
age at which a person in the employee's circumstances is eligible for 
retirement.

A payment or series of payments made under the circumstances described 
in the preceding sentence is excluded from ``wages'' even if made 
pursuant to an incentive compensation plan which also provides for the 
making of other types of payments. However, any payment or series of 
payments which would have been paid if the employee's relationship had 
not been terminated is not excluded from ``wages'' under this section 
and section 3306(b)(10). For example, lump-sum payments for unused 
vacation time or a final paycheck received after retirement are payments 
which the employee would have received whether or not he retired and 
therefore are not excluded from ``wages.'' Further, if any payment is 
made upon or after termination of employment for any reason other than 
those set out in paragraphs (a)(1), (2), and (3) of this section such 
payment is not excludable from ``wages'' by this section. For example, 
if a pension plan provides for retirement upon disability, completion of 
30 years of service, or attainment of age 65, and if an employee who is 
not disabled retires at age 61 after 30 years of service, none of the 
retirement payments made to the employee under the pension plan 
(including any made after he is 65) is excludable from ``wages'' under 
this section. However, if the pension plan had conditioned retirement 
after 30 years of service upon attainment of age 60, all of the 
retirement payments would have been excludable.
    (b) Plan. The plan or system established by an employer need not 
provide for payments because of termination of employment for all the 
reasons set out in paragraphs (a)(1), (2), and (3) of this section, but 
such plan or system may provide for payments because of termination for 
any one or more of such reasons. Payments because of termination of 
employment for any one or more of such reasons under a plan or system 
established by an employer solely for the dependents of his employees 
are not within this exclusion from wages.
    (c) Dependents. Dependents of an employee include the employee's 
husband or wife, children, and any other members of the employee's 
immediate family.
    (d) Benefit payments. It is immaterial for purposes of this 
exclusion whether the amount or possibility of such benefit payments is 
paid on account of services rendered or taken into consideration in 
fixing the amount of an employee's remuneration or whether such

[[Page 166]]

payments are required expressly or impliedly, by the contract of 
service.
    (e) Example. The application of this section may be illustrated by 
the following example:

    Example. A, an employee, receives a salary of $1,500 a month, 
payable on the 5th day of the month following the month for which the 
salary is earned. A's employer has established an incentive compensation 
plan for a class of his employees, including A, providing for the 
payment of deferred compensation on termination of employment, including 
termination upon an employee's death, retirement at age 65 (the 
retirement age specified in the plan), or retirement for disability. On 
March 1, 1973, A attains the age of 65 and retires. On March 5, 1973, A 
receives $5,500 from his employer of which $1,500 represents A's salary 
for services he performed in February 1973, and $4,000 represents 
incentive compensation paid under the employer's plan. The amount of 
$4,000 is excluded from ``wages'' under this section. The amount of 
$1,500 is not excluded from ``wages'' under this section.

[T.D. 7374, 40 FR 30951, July 24, 1975]



Sec. 31.3306(b)(13)-1  Payments or benefits under a qualified educational assistance program.

    The term ``wages'' does not include any payment made, or benefit 
furnished, to or for the benefit of an employee in a taxable year 
beginning after December 31, 1978, if at the time of such payment or 
furnishing it is reasonable to believe that the employee will be able to 
exclude such payment or benefit from income under section 127.

[T.D. 7898, 48 FR 31019, July 6, 1983]



Sec. 31.3306(c)-1  Employment; services performed before 1955.

    (a) Services performed after 1938 and before 1955 constitute 
employment under section 3306(c) if such services were employment under 
the law applicable to the period in which they were performed.
    (b) The tax applies with respect to remuneration paid by an employer 
after 1954 for services performed after 1938 and before 1955, as well as 
for services performed after 1954, to the extent that the remuneration 
and services constitute wages and employment. See Secs. 31.3306(b)-1 to 
31.3306(b)(8)-1, inclusive, relating to wages.
    (c) Determination of whether services performed after 1938 and 
before 1955 constitute employment shall be made in accordance with the 
provisions of law applicable to the period in which they were performed 
and of the regulations thereunder. The regulations applicable in 
determining whether services performed after 1938 and before 1955 
constitute employment are as follows:
    (1) Services performed in 1939--26 CFR (1939) Part 400 (Regulations 
90).
    (2) Services performed after 1939 and before 1955--26 CFR (1939) 
Part 403 (Regulations 107).



Sec. 31.3306(c)-2  Employment; services performed after 1954.

    (a) In general. Whether services performed after 1954 constitute 
employment is determined under subsections (c) and (n) of section 3306.
    (b) Services performed within the United States. Services performed 
after 1954 within the United States (see Sec. 31.3306(j)-1) by an 
employee for the person employing him, unless specifically excepted 
under section 3306(c), constitute employment. With respect to services 
performed within the United States, the place where the contract of 
service is entered into is immaterial. The citizenship or residence of 
the employee or of the person employing him also is immaterial except to 
the extent provided in any specific exception from employment. Thus, the 
employee and the person employing him may be citizens and residents of a 
foreign country and the contract of service may be entered into in a 
foreign country, and yet, if the employee under such contract performs 
services within the United States, there may be to that extent 
employment.
    (c) Services performed outside the United States--(1) In general. 
Except as provided in subparagraph (2) of this paragraph, services 
performed outside the United States (see Sec. 31.3306(j)-1) do not 
constitute employment.
    (2) On or in connection with an American vessel or American 
aircraft. (i) This subparagraph relates to services performed after 1954 
``on or in connection with'' an American vessel, and to services 
performed after 1961 ``on or in connection with'' an American aircraft 
to

[[Page 167]]

the extent that the remuneration for the latter services is paid after 
1961. Such services performed outside the United States by an employee 
for the person employing him constitute employment if:
    (a) The employee is also employed ``on and in connection with'' such 
vessel or aircraft when outside the United States; and
    (b) The services are performed under a contract of service, between 
the employee and the person employing him, which is entered into within 
the United States, or during the performance of the contract under which 
the services are performed and while the employee is employed on the 
vessel or aircraft it touches at a port within the United States; and
    (c) The services are not excepted under section 3306(c). (See 
particularly Sec. 31.3306(c)(17)-1, relating to fishing.)
    (ii) An employee performs services on and in connection with the 
vessel or aircraft if he performs services on the vessel or aircraft 
which are also in connection with the vessel or aircraft. Services 
performed on the vessel by employees as officers or members of the crew, 
or as employees of concessionaires, of the vessel, for example, are 
performed under such circumstances, since the services are also 
connected with the vessel. Similarly, services performed on the aircraft 
by employees as officers or members of the crew of the aircraft are 
performed on and in connection with such aircraft. Services may be 
performed on the vessel or aircraft, however, which have no connection 
with it, as in the case of services performed by an employee while on 
the vessel or aircraft merely as a passenger in the general sense. For 
example, the services of a buyer in the employ of a department store 
while he is a passenger on a vessel are not in connection with the 
vessel.
    (iii) If services are performed by an employee ``on and in 
connection with'' an American vessel or American aircraft when outside 
the United States and the conditions in (b) and (c) of paragraph 
(c)(2)(i) of this section are met, then the services of that employee 
performed on or in connection with the vessel or aircraft constitute 
employment. The expression ``on or in connection with'' refers not only 
to services performed on the vessel or aircraft but also to services 
connected with the vessel or aircraft which are not actually performed 
on it (for example, shore services performed as officers or members of 
the crew, or as employees of concessionaires, of the vessel).
    (iv) Services performed by a member of the crew or other employee 
whose contract of service is not entered into within the United States, 
and during the performance of which and while the employee is employed 
on the vessel or aircraft it does not touch at a port within the United 
States, do not constitute employment, notwithstanding that service 
performed by other members of the crew or other employees on or in 
connection with the vessel or aircraft may constitute employment.
    (v) A vessel includes every description of watercraft, or other 
contrivance, used as a means of transportation on water. An aircraft 
includes every description of craft, or other contrivance, used as a 
means of transportation through the air. In the case of an aircraft, the 
term ``port'' means an airport. An airport means an area on land or 
water used regularly by aircraft for receiving or discharging passengers 
or cargo. For definitions of ``American vessel'' and ``American 
aircraft'', see Sec. 31.3306(m)-1.
    (vi) With respect to services performed outside the United States on 
or in connection with an American vessel or American aircraft, the 
citizenship or residence of the employee is immaterial, and the 
citizenship or residence of the employer is material only in case it has 
a bearing in determining whether a vessel is an American vessel.

[T.D. 6658, 28 FR 6636, June 27, 1963]



Sec. 31.3306(c)-3  Employment; excepted services in general.

    (a) Services performed by an employee for the person employing him 
do not constitute employment for purposes of the tax if they are 
specifically excepted from employment under any of the numbered 
paragraphs of section 3306(c). Services so excepted do not constitute 
employment for purposes of the tax even though they are performed within 
the United States, or are

[[Page 168]]

performed outside the United States on or in connection with an American 
vessel or American aircraft. If not otherwise provided in the 
regulations relating to the numbered paragraphs of section 3306(c), such 
regulations apply with respect to services performed after 1954.
    (b) The exception attaches to the services performed by the employee 
and not to the employee as an individual; that is, the exception applies 
only to the services rendered by the employee in an excepted class.

    Example. A is an individual who is employed part time by B to 
perform services which constitutes ``agricultural labor'' (see 
Sec. 31.3306 (k)-1). A is also employed by C part time to perform 
services as a grocery clerk in a store owned by him. While A's services 
which constitute ``agricultural labor'' are expected, the exception does 
not embrace the services performed by A as a grocery clerk in the employ 
of C and the latter services are not excepted from employment.

    (c) For provisions relating to the circumstances under which 
services which are excepted are nevertheless deemed to be employment, 
and relating to the circumstances under which services which are not 
excepted are nevertheless deemed not to be employment, see 
Sec. 31.3306(d)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6637, June 27, 1963]



Sec. 31.3306(c)(1)-1  Agricultural labor.

    Services performed by an employee for the person employing him which 
constitute ``agricultural labor'' as defined in section 3306(k) are 
excepted from employment. For provisions relating to the definition of 
the term ``agricultural labor'', see Sec. 31.3306(k)-1.



Sec. 31.3306(c)(2)-1  Domestic service.

    (a) In a private home. (1) Services of a household nature performed 
by an employee in or about a private home of the person by whom he is 
employed are excepted from employment. A private home is a fixed place 
of abode of an individual or family. A separate and distinct dwelling 
unit maintained by an individual in an apartment house, hotel, or other 
similar establishment may constitute a private home. If a dwelling house 
is used primarily as a boarding or lodging house for the purpose of 
supplying board or lodging to the public as a business enterprise, it is 
not a private home and the services performed therein are not excepted.
    (2) In general, services of a household nature in or about a private 
home include services performed by cooks, waiters, butlers, 
housekeepers, governesses, maids, valets, baby sitters, janitors, 
laundresses, furnacemen, caretakers, handymen, gardeners, footmen, 
grooms, and chauffeurs of automobile for family use.
    (b) In a local college club or local chapter of a college fraternity 
or sorority. (1) Services of a household nature performed by an employee 
in or about the club rooms or house of a local college club or of a 
local chapter of a college fraternity or sorority by which he is 
employed are excepted from employment. A local college club or local 
chapter of a college fraternity or sorority does not include an alumni 
club or chapter. If the club rooms or house of a local college club or 
local chapter of a college fraternity or sorority is used primarily for 
the purpose of supplying board or lodging to students or the public as a 
business enterprise, the services performed therein are not within the 
exception.
    (2) In general, services of a household nature in or about the club 
rooms or house of a local college club or local chapter of a college 
fraternity or sorority include services rendered by cooks, waiters, 
butlers, maids, janitors, laundresses, furnacemen, handymen, gardeners, 
housekeepers, and housemothers.
    (c) Services not excepted. Services not of a household nature, such 
as services performed as a private secretary, tutor, or librarian, even 
though performed in the employer's private home or in a local college 
club or local chapter of a college fraternity or sorority, are not 
within the exception. Services of a household nature are not within the 
exception if performed in or about rooming or lodging houses, boarding 
houses, clubs (except local college clubs), hotels, hospitals, 
eleemosynary institutions, or commercial offices or establishments.

[[Page 169]]



Sec. 31.3306(c)(3)-1  Services not in the course of employer's trade or business.

    (a) Services not in the course of the employer's trade or business 
performed by an employe for an employer in a calendar quarter are 
excepted from employment unless--
    (1) The cash remuneration paid for such services performed by the 
employee for the employer in the calendar quarter is $50 or more; and
    (2) Such employee is regularly employed in the calendar quarter by 
such employer to perform such services.

Unless the tests set forth in both paragraphs (a)(1) and (2) of this 
section are met, the services are excepted from employment.
    (b) The term ``services not in the course of the employer's trade or 
business'' includes services that do not promote or advance the trade or 
business of the employer. Services performed for a corporation do not 
come within the exception.
    (c) The test relating to cash remuneration of $50 or more is based 
on the remuneration earned during a calendar quarter rather than on the 
remuneration paid in a calendar quarter. However, for purposes of 
determining whether the test is met, it is also required that the 
remuneration be paid, although it is immaterial when the remuneration is 
paid. Furthermore, in determining whether $50 or more has been paid for 
services not in the course of the employer's trade or business, only 
cash remuneration for such services shall be taken into account. The 
term ``cash remuneration'' includes checks and other monetary media of 
exchange. Remuneration paid in any other medium, such as lodging, food, 
or other goods or commodities, is disregarded in determining whether the 
cash-remuneration test is met.
    (d) For purposes of this exception, an individual is deemed to be 
regularly employed by an employer during a calendar quarter only if--
    (1) Such individual performs services not in the course of the 
employer's trade or business for such employer for some portion of the 
day on at least 24 days (whether or not consecutive) during such 
calendar quarter; or
    (2) Such individual was regularly employed (as determined under 
paragraph (d)(1) of this section) by such employer in the performance of 
services not in the course of the employer's trade or business during 
the preceding calender quarter (including the last calendar quarter of 
1954).
    (e) In determining whether an employee has performed services not in 
the course of the employer's trade or business on at least 24 days 
during a calendar quarter, there shall be counted as one day--
    (1) Any day or portion thereof on which the employee actually 
performs such services; and
    (2) Any day or portion thereof on which the employee does not 
perform services of the prescribed character but with respect to which 
cash remuneration is paid or payable to the employee for such services, 
such as a day on which the employee is sick or on vacation.

An employee who on a particular day reports for work and, at the 
direction of his employer, holds himself in readiness to perform 
services not in the course of the employer's trade or business shall be 
considered to be engaged in the actual performance of such services on 
that day. For purposes of this exception, a day is a period of 24 hours 
commencing at midnight and ending at midnight.
    (f) For provisions relating to the exclusion from wages of 
remuneration paid in any medium other than cash for services not in the 
course of the employer's trade or business, see Sec. 31.3306(b) (7)-1.



Sec. 31.3306(c)(4)-1  Services on or in connection with a non-American vessel or aircraft.

    (a) Services performed within the United States by an employee for 
an employer ``on or in connection with'' a vessel not an American 
vessel, or ``on or in connection with'' an aircraft not an American 
aircraft, are excepted from employment if the employee is employed by 
the employer ``on and in connection with'' the vessel or aircraft when 
outside the United States.
    (b) An employee performs services on and in connection with the 
vessel or aircraft if he performs services on the

[[Page 170]]

vessel or aircraft when outside the United States which are also in 
connection with the vessel or aircraft. Services performed on the vessel 
outside the United States by employees as officers or members of the 
crew, or by employees of concessionaires, of the vessel, for example, 
are performed under such circumstances, since such services are also 
connected with the vessel. Similarly, services performed on the aircraft 
outside the United States by employees as officers or members of the 
crew of the aircraft are performed on and in connection with such 
aircraft. Services may be performed on the vessel or aircraft, however, 
which have no connection with it, as in the case of services performed 
by an employee while on the vessel or aircraft merely as a passenger in 
the general sense. For example, the services of a buyer in the employ of 
a department store while he is a passenger on a vessel are not in 
connection with the vessel.
    (c) The expression ``on or in connection with'' refers not only to 
services performed on the vessel or aircraft but also to services 
connected with the vessel or aircraft which are not actually performed 
on it (for example, shore services performed as officers or members of 
the crew, or as employees of concessionaires, of the vessel).
    (d) The citizenship or residence of the employee and the place where 
the contract of service is entered into are immaterial for purposes of 
this exception, and the citizenship or residence of the person employing 
him is material only in case it has a bearing in determining whether the 
vessel is an American vessel. For definitions of the terms ``vessel'' 
and ``aircraft'', see paragraph (c)(2)(v) of Sec. 31.3306(c)-2. For 
definitions of the terms ``American vessel'' and ``American aircraft'', 
see Sec. 31.3306(m)-1.
    (e) Since the only services performed outside the United States 
which constitute employment are those described in section 3306(c) and 
paragraph (c) of Sec. 31.3306(c)-2 (relating to services performed 
outside the United States on or in connection with an American vessel or 
American aircraft), services performed outside the United States on or 
in connection with a vessel not an American vessel, or an aircraft not 
an American aircraft, do not constitute employment in any event.
    (f) The provisions of section 3306(c) (4) and of this section, 
insofar as they relate to services performed on or in connection with an 
aircraft not an American aircraft, apply only to services performed 
after 1961 for which remuneration is paid after 1961.

[T.D. 6658, 28 FR 6637, June 27, 1963]



Sec. 31.3306(c)(5)-1  Family employment.

    (a) Certain services are excepted from employment because of the 
existence of a family relationship between the employee and the 
individual employing him. The exceptions are as follows:
    (1) Services performed by an individual in the employ of his or her 
spouse;
    (2) Services performed by a father or mother in the employ of his or 
her son or daughter; and
    (3) Services performed by a son or daughter under the age of 21 in 
the employ of his or her father or mother.
    (b) Under paragraph (a) (1) and (2) of this section, the exception 
is conditioned solely upon the family relationship between the employee 
and the individual employing him. Under paragraph (a)(3) of this 
section, in addition to the family relationship, there is a further 
requirement that the son or daughter shall be under the age of 21, and 
the exception continues only during the time that such son or daughter 
is under the age of 21.
    (c) Services performed in the employ of a corporation are not within 
the exception. Services performed in the employ of a partnership are not 
within the exception unless the requisite family relationship exists 
between the employee and each of the partners comprising the 
partnership.



Sec. 31.3306(c)(6)-1  Services in employ of United States or instrumentality thereof.

    (a) Services in employ of United States or wholly-owned 
instrumentality thereof. Services performed in the employ of the United 
States Government, except as provided in section 3306(n) (see 
Sec. 31.3306(n)-1), are excepted from employment. Services performed in 
the employ of an instrumentality of the

[[Page 171]]

United States which is wholly owned by the United States also are 
excepted from employment.
    (b) Services in employ of instrumentality not wholly owned by United 
States--(1) Services performed after 1961. Services performed after 1961 
in the employ of an instrumentality of the United States which is 
partially owned by the United States are excepted from employment, if 
the remuneration for such service is paid after 1961. Services performed 
after 1961 in the employ of an instrumentality of the United States 
which is neither wholly owned nor partially owned by the United States 
are excepted from employment if (i) the instrumentality is exempt from 
the tax imposed by section 3301 by virtue of any provision of law which 
specifically refers to section 3301 or the corresponding section of 
prior law in granting exemption from such tax, and (ii) the remuneration 
for such service is paid after 1961. For provisions which make general 
exemptions from Federal taxation ineffectual as to the tax imposed by 
section 3301, see Sec. 31.3308-1.
    (2) Services performed before 1962. Services performed in the employ 
of an instrumentality of the United States which is not wholly owned by 
the United States are excepted from employment if the instrumentality is 
exempt from the tax imposed by section 3301 by virtue of any other 
provision of law, and (i) the services are performed before 1962 or (ii) 
remuneration for the services is paid before 1962.

[T.D. 6658, 28 FR 6638, June 27, 1963]



Sec. 31.3306(c)(7)-1  Services in employ of States or their political subdivisions or instrumentalities.

    (a) Services performed in the employ of any State, or of any 
political subdivision thereof, are excepted from employment. Services 
performed in the employ of an instrumentality of one or more States or 
political subdivisions thereof are excepted if the instrumentality is 
wholly owned by one or more of the foregoing. Services performed in the 
employ of an instrumentality of one or more of the several States or 
political subdivisions thereof which is not wholly owned by one or more 
of the foregoing are excepted only to the extent that the 
instrumentality is with respect to such services immune under the 
Constitution of the United States from the tax imposed by section 3301.
    (b) For provisions relating to the term ``State'' see 
Sec. 31.3306(j)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6638, June 27, 1963]



Sec. 31.3306(c)(8)-1  Services in employ of religious, charitable, educational, or certain other organizations exempt from income tax.

    (a) Services performed after 1961. Services performed by an employee 
after 1961 in the employ of a religious, charitable, educational, or 
other organization described in section 501(c)(3) which is exempt from 
income tax under section 501(a) are excepted from employment, if the 
remuneration for such service is paid after 1961. For provisions 
relating to exemption from income tax of an organization described in 
section 501(c) (3), see Part 1 of this chapter (Income Tax Regulations).
    (b) Services performed before 1962. (1) Services performed by an 
employee in the employ of an organization described in section 
3306(c)(8) as in effect before 1962, that is, a corporation, community 
chest, fund, or foundation, organized and operated exclusively for 
religious, charitable, scientific, testing for public safety, literary, 
or educational purposes, or for the prevention of cruelty to children or 
animals, no part of the net earnings of which inures to the benefit of 
any private shareholder or individual, and no substantial part of the 
activities of which is carrying on propaganda, or otherwise attempting, 
to influence legislation, are excepted from employment if (i) the 
services are performed before 1962, or (ii) remuneration for the 
services is paid before 1962.
    (2) Any organization which is an organization of a type described in 
section 501(c)(3) and which--
    (i) Is exempt from income tax under section 501(a), or
    (ii) Has been denied exemption from income tax under section 501(a) 
by reason of the provisions of section 503 or 504, relating to 
prohibited transactions and to accumulations out of income, 
respectively,

[[Page 172]]


is an organization of a type described in section 3306(c)(8) as in 
effect before 1962. An organization which would be an organization of a 
type described in section 501(c)(3) except for those provisions of 
section 501(c)(3) which are not contained in section 3306(c)(8) as in 
effect before 1962 (provisions relating to participation or intervention 
in a political campaign on behalf of a candidate for public office) is 
also an organization of a type described in section 3306(c)(8) as in 
effect before 1962.

[T.D. 6658, 28 FR 6638, June 27, 1963]



Sec. 31.3306(c)(9)-1  Railroad industry; services performed by an employee or an employee representative under the Railroad Unemployment Insurance Act.

    (a) Services performed by an individual as an ``employee'' or as an 
``employee representative'', as those terms are defined in section 1 of 
the Railroad Unemployment Insurance Act, as amended, are excepted from 
employment.
    (b) Section 1 of the Railroad Unemployment Insurance Act (45 U.S.C. 
351), as amended, provides, in part, as follows:

    For the purposes of this Act, except when used in amending the 
provisions of other Acts--
    (a) The term ``employer'' means any carrier (as defined in 
subsection (b) of this section), and any company which is directly or 
indirectly owned or controlled by one or more such carriers or under 
common control therewith, and which operates any equipment or facility 
or performs any service (except trucking service, casual service, and 
the casual operation of equipment or facilities) in connection with the 
transportation of passengers or property by railroad, or the receipt, 
delivery elevation, transfer in transit, refrigeration or icing, 
storage, or handling of property transported by railroad, and any 
receiver, trustee, or other individual or body, judicial or otherwise, 
when in the possession of the property or operating all or any part of 
the business of any such employer: Provided, however, That the term 
``employer'' shall not include any street, interurban, or suburban 
electric railway, unless such railway is operating as a part of a 
general steam-railroad system of transportation, but shall not exclude 
any part of the general steam-railroad system of transportation now or 
hereafter operated by any other motive power. The Interstate Commerce 
Commission is hereby authorized and directed upon request of the Board, 
or upon complaint of any party interested, to determine after hearing 
whether any line operated by electric power falls within the terms of 
this proviso. The term ``employer'' shall also include railroad 
associations, traffic associations, tariff bureaus, demurrage bureaus, 
weighing and inspection bureaus, collection agencies, and other 
associations, bureaus, agencies, or organizations controlled and 
maintained wholly or principally by two or more employers as 
hereinbefore defined and engaged in the performance of services in 
connection with or incidental to railroad transportation and railway 
labor organizations, national in scope, which have been or may be 
organized in accordance with the provisions of the Railway Labor Act, 
and their State and National legislative committees and their general 
committees and their insurance departments and their local lodges and 
divisions, established pursuant to the constitution and bylaws of such 
organizations. The term ``employer'' shall not include any company by 
reason of its being engaged in the mining of coal, the supplying of coal 
to an employer where delivery is not beyond the mine tipple, and the 
operation of equipment or facilities therefor, or in any of such 
activities.
    (b) The term ``carrier'' means an express company, sleeping-car 
company, or carrier by railroad, subject to part I of the Interstate 
Commerce Act.
    (c) The term ``company'' includes corporations, associations, and 
joint-stock companies.
    (d) The term ``employee'' (except when used in phrases establishing 
a different meaning) means any individual who is or has been (i) in the 
service of one or more employers for compensation, or (ii) an employee 
representative. The term ``employee'' shall include an employee of a 
local lodge or division defined as an employer in section 1 (a) only if 
he was in the service of a carrier on or after August 29, 1935. The term 
``employee'' includes an officer of an employer.
    The term ``employee'' shall not include any individual while such 
individual is engaged in the physical operations consisting of the 
mining of coal, the preparation of coal, the handling (other than 
movement by rail with standard railroad locomotives) of coal not beyond 
the mine tipple, or the loading of coal at the tipple.
    (e) An individual is in the service of an employer whether his 
service is rendered within or without the United States if (i) he is 
subject to the continuing authority of the employer to supervise and 
direct the manner of rendition of his service, or he is rendering 
professional or technical services and is integrated into the staff of 
the employer, or he is rendering, on the property used in the employer's 
operations, other personal services the rendition of which is integrated 
into the employer's operations, and (ii) he renders

[[Page 173]]

such service for compensation: Provided, however, That an individual 
shall be deemed to be in the service of an employer, other than a local 
lodge or division or a general committee of a railway-labor-organization 
employer, not conducting the principal part of its business in the 
United States only when he is rendering service to it in the United 
States; and an individual shall be deemed to be in the service of such a 
local lodge or division only if (1) all, or substantially all, the 
individuals constituting its membership are employees of an employer 
conducting the principal part of its business in the United States; or 
(2) the headquarters of such local lodge or division is located in the 
United States; and an individual shall be deemed to be in the service of 
such a general committee only if (1) he is representing a local lodge or 
division described in clauses (1) or (2) immediately above; or (2) all, 
or substantially all, the individuals represented by it are employees of 
an employer conducting the principal part of its business in the United 
States; or (3) he acts in the capacity of a general chairman or an 
assistant general chairman of a general committee which represents 
individuals rendering service in the United States to an employer, but 
in such case if his office or headquarters is not located in the United 
States and the individuals represented by such general committee are 
employees of an employer not conducting the principal part of its 
business in the United States, only such proportion of the remuneration 
for such service shall be regarded as compensation as the proportion 
which the mileage in the United States under the jurisdiction of such 
general committee bears to the total mileage under its jurisdiction, 
unless such mileage formula is inapplicable, in which case the Board may 
prescribe such other formula as it finds to be equitable, and if the 
application of such mileage formula, or such other formula as the Board 
may prescribe, would result in the compensation of the individual being 
less than 10 per centum of his remuneration for such service no part of 
such remuneration shall be regarded as compensation: Provided further, 
That an individual not a citizen or resident of the United States shall 
not be deemed to be in the service of an employer when rendering service 
outside the United States to an employer who is required under the laws 
applicable in the place where the service is rendered to employ therein, 
in whole or in part, citizens or residents thereof.
    (f) The term ``employee representative'' means any officer or 
official representative of a railway labor organization other than a 
labor organization included in the term employer as defined in section 
1(a) who before or after August 29, 1935, was in the service of an 
employer as defined in section 1(a) and who is duly authorized and 
designated to represent employees in accordance with the Railway Labor 
Act, and any individual who is regularly assigned to or regularly 
employed by such officer or official representative in connection with 
the duties of his office.

                                * * * * *

    (i) The term ``compensation'' means any form of money remuneration, 
including pay for time lost but excluding tips, paid for services 
rendered as an employee to one or more employers, or as an employee 
representative: Provided, however, That in computing the compensation 
paid to any employee, no part of any month's compensation in excess of 
$300 for any month before July 1, 1954, or in excess of $350 for any 
month after June 30, 1954, and before the calendar month next following 
the month [May] in which this Act was amended in 1959, or in excess of 
$400 for any month after the month [May] in which this Act was so 
amended, shall be recognized. A payment made by an employer to an 
individual through the employer's pay roll shall be presumed, in the 
absence of evidence to the contrary, to be compensation for service 
rendered by such individual as an employee of the employer in the period 
with respect to which the payment is made. An employee shall be deemed 
to be paid, ``for time lost'' the amount he is paid by an employer with 
respect to an identifiable period of absence from the active service of 
the employer, including absence on account of personal injury, and the 
amount he is paid by the employer for loss of earnings resulting from 
his displacement to a less remunerative position or occupation. If a 
payment is made by an employer with respect to a personal injury and 
includes pay for time lost, the total payment shall be deemed to be paid 
for time lost unless, at the time of payment, a part of such payment is 
specifically apportioned to factors other than time lost, in which event 
only such part of the payment as is not so apportioned shall be deemed 
to be paid for time lost. Compensation earned in any calendar month 
before 1947 shall be deemed paid in such month regardless of whether or 
when payment will have been in fact made, and compensation earned in any 
calendar year after 1946 but paid after the end of such calendar year 
shall be deemed to be compensation paid in the calendar year in which it 
will have been earned if it is so reported by the employer before 
February 1 of the next succeeding calendar year or, if the employee 
establishes, subject to the provisions of section 8, the period during 
which such compensation will have been earned.

                                * * * * *


[[Page 174]]



    (r) The term ``Board'' means the Railroad Retirement Board.
    (s) The term ``United States'', when used in a geographical sense, 
means the States, Alaska, Hawaii, and the District of Columbia.

                                * * * * *

[Sec. 1, Railroad Unemployment Insurance Act, as amended by secs. 1 and 
2, Act of June 20, 1939, 53 Stat. 845; secs. 1 and 3, Act of Aug. 13, 
1940, 54 Stat. 785, 786; sec. 15, Act of Apr. 8, 1942, 56 Stat. 210; 
secs. 1 and 2, Act of July 31, 1946, 60 Stat. 722; sec. 302, Act of Aug. 
31, 1954, 68 Stat. 1040; sec. 301, Act of May 19, 1959, Pub. L. 86-28, 
73 Stat. 30]


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6638, June 27, 1963]



Sec. 31.3306(c)(10)-1  Services in the employ of certain organizations exempt from income tax.

    (a) In general. (1) This section deals with the exception from 
employment of certain services performed in the employ of any 
organization exempt from income tax under section 501(a) (other than an 
organization described in section 401(a)) or under section 521. (See the 
provisions of Secs. 1.401-1, 1.501(a)-1, and 1.521-1 of this chapter 
(Income Tax Regulations).) If the services meet the tests set forth in 
paragraphs (b), (c), (d), or (e) of this section, the services are 
excepted.
    (2) See also Sec. 31.3306(c)(8)-1 for provisions relating to the 
exception of services performed in the employ of religious, charitable, 
educational, or certain other organizations exempt from income tax; 
Sec. 31.3306(c)(10)-2 for provisions relating to the exception of 
services performed by certain students in the employ of a school, 
college, or university; and Sec. 31.3306(c)(10)-3 for provisions 
relating to the exception of services performed before 1962 in the 
employ of certain employees' beneficiary associations.
    (b) Remuneration less than $50 for calendar quarter. Services 
performed by an employee in a calendar quarter in the employ of an 
organization exempt from income tax under section 501(a) (other than an 
organization described in section 401(a)) or under section 521 are 
excepted from employment, if the remuneration for the service is less 
than $50. The test relating to remuneration of $50 is based on the 
remuneration earned during a calendar quarter rather than on the 
remuneration paid in a calendar quarter. The exception applies 
separately with respect to each organization for which the employee 
renders services in a calendar quarter. The type of services performed 
by the employee and the place where the services are performed are 
immaterial; the statutory tests are the character of the organization in 
the employ of which the services are performed and the amount of the 
remuneration for services performed by the employee in the calendar 
quarter.

    Example 1. X is a local lodge of a fraternal organization and is 
exempt from income tax under section 501(a) as an organization of the 
character described in section 501 (c)(8). X has a number of paid 
employees, among them being A who serves exclusively as recording 
secretary for the lodge, and B who performs services for the lodge as 
janitor of its clubhouse. For services performed during the first 
calendar quarter of 1955 (that is, January 1, 1955, through March 31, 
1955, both dates inclusive) A earns a total of $30. For services 
performed during the same calendar quarter B earns $180. Since the 
remuneration for the services performed by A during such quarter is less 
than $50, all of such services are excepted. Thus, A is not counted as 
an employee in employment on any of the days during such quarter for 
purposes of determining whether the X organization is an employer (see 
Sec. 31.3306(a)-1). Even though it is subsequently determined that X is 
an employer, A's remuneration of $30 for services performed during the 
first calendar quarter of such year is not subject to tax. B's services, 
however, are not excepted during such quarter since the remuneration 
therefor is not less than $50. Thus, B is counted as an employee in 
employment during all of such quarter for purposes of determining 
whether the X organization is an employer. If it is determined that the 
X organization is an employer, B's remuneration of $180 for services 
performed during the first calendar quarter is included in computing the 
tax.
    Example 2. The facts are the same as in example 1, above, except 
that on April 1, 1955, A's salary is increased and, for services 
performed during the calendar quarter beginning on that date (that is, 
April 1, 1955, through June 30, 1955, both dates inclusive), A earns 
$60. Although all of the services performed by A during the first 
quarter were excepted, none of A's services performed during the second 
quarter are excepted since the remuneration for such services is not 
less than $50. A, therefore, is counted as an employee

[[Page 175]]

in employment during all of the second quarter for the purpose of 
determining whether the X organization is an employer. If it is 
determined that the X organization is an employer, A's remuneration of 
$60 for services performed during the second calendar quarter is 
included in computing the tax.
    Example 3. The facts are the same as in example 1, above, except 
that A earns $120 for services performed during the year 1955, and such 
amount is paid to him in a lump sum at the end of the year. The services 
performed by A in any calendar quarter during the year are excepted if 
the portion of the $120 attributable to services performed in that 
quarter is less than $50. In such case, A is not counted as an employee 
in employment on any of the days during such quarter for purposes of 
determining whether the X organization is an employer. If, however, the 
portion of the $120 attributable to services performed in any calendar 
quarter during the year is not less than $50, the services during that 
quarter are not excepted. In the latter case, A is counted as an 
employee in employment during all of such quarter and, if it is 
determined that the X organization is an employer, that portion of the 
$120 attributable to services performed in such quarter is included in 
computing the tax.

    (c) Collection of dues or premiums for fraternal beneficiary 
societies, and ritualistic services in connection with such societies, 
before 1962. The following services performed by an employee in the 
employ of a fraternal beneficiary society, order, or association exempt 
from income tax under section 501(a) are excepted from employment if the 
services are performed before 1962 or if remuneration for the services 
is paid before 1962:
    (1) Services performed away from the home office of such a society, 
order, or association in connection with the collection of dues or 
premiums for such society, order, or association; and
    (2) Ritualistic services (wherever performed) in connection with 
such a society, order, or association.

For purposes of the paragraph the amount of the remuneration for 
services performed by the employee in the calendar quarter is 
immaterial; the tests are the character of the organization in whose 
employ the services are performed, the type of services, and, in the 
case of collection of dues or premiums, the place where the services are 
performed.
    (d) Students employed before 1962. (1) Services performed in the 
employ of an organization exempt from income tax under section 501(a) 
(other than an organization described in section 401(a)) or under 
section 521 by a student who is enrolled and is regularly attending 
classes at a school, college, or university, are excepted from 
employment if the services are performed before 1962 or if remuneration 
for the services is paid before 1962. For purposes of this paragraph, 
the amount of remuneration for services performed by the employee in the 
calendar quarter, the type of services, and the place where the services 
are performed are immaterial; the tests are the character of the 
organization in whose employ the services are performed and the status 
of the employee as a student enrolled and regularly attending classes at 
a school, college, or university.
    (2) The term ``school, college, or university'' as used in this 
paragraph is to be taken in its commonly or generally accepted sense. 
For provisions relating to services performed before 1962 by a student 
enrolled and regularly attending classes at a school, college, or 
university not exempt from income tax in the employ of such school, 
college, or university, see paragraph (b) of Sec. 31.3306(c)(10)-2. For 
provisions relating to services performed after 1961 by a student 
enrolled and regularly attending classes at a school, college, or 
university in the employ of such school, college, or university, see 
paragraph (a) or Sec. 31.3306(c)(10)-2.
    (e) Services performed before 1962 in employ of agricultural or 
horticultural organization exempt from income tax. (1) Services 
performed by an employee in the employ of an agricultural or 
horticultural organization which is described in section 501(c)(5) and 
the regulations thereunder and which is exempt from income tax under 
section 501(a) are excepted from employment if the services are 
performed before 1962 or if remuneration for the services is paid before 
1962.
    (2) For purposes of this paragraph, the type of services performed 
by the employee, the amount of remuneration for the services, and the 
place where

[[Page 176]]

the services are performed are immaterial; the test is the character of 
the organization in whose employ the services are performed.

[T.D. 6658, 28 FR 6639, June 27, 1963]



Sec. 31.3306(c)(10)-2  Services of student in employ of school, college, or university.

    (a) Services performed after 1961. Services performed after 1961 in 
the employ of a school, college, or university, by a student who is 
enrolled and is regularly attending classes at the school, college, or 
university, are excepted from employment (whether or not the school, 
college, or university is exempt from income tax), if remuneration for 
the services is paid after 1961.
    (b) Services performed before 1962. Services performed in the employ 
of a school, college, or university not exempt from income tax under 
section 501(a), by a student who is enrolled and is regularly attending 
classes at the school, college, or university, are excepted from 
employment if the services are performed before 1962 or if remuneration 
for the services is paid before 1962.
    (c) Application of section. (1) For purposes of this section, the 
type of services performed by the employee, the place where the services 
are performed, and the amount of remuneration for services performed by 
the employee are immaterial; the tests are the character of the 
organization in the employ of which the services are performed and the 
status of the employee as a student enrolled and regularly attending 
classes at the school, college, or university, in the employ of which he 
performs the services.
    (2) The status of the employee as a student performing the services 
shall be determined on the basis of the relationship of such employee 
with the organization for which the services are performed. An employee 
who performs services in the employ of a school, college, or university 
as an incident to and for the purpose of pursuing a course of study at 
such school, college, or university has the status of a student in the 
performance of such services.
    (3) The term ``school, college, or university'' as used in this 
section is to be taken in its commonly or generally accepted sense.
    (4) For provisions relating to services performed before 1962 by a 
student in the employ of an organization exempt from income tax, see 
paragraph (d) of Sec. 31.3306(c)(10)-1.

[T.D. 6658, 28 FR 6640, June 27, 1963]



Sec. 31.3306(c)(10)-3  Services before 1962 in employ of certain employees' beneficiary associations.

    (a) Voluntary employees' beneficiary associations. Services 
performed by an employee in the employ of a voluntary employees' 
beneficiary association providing for the payment of life, sick, 
accident, or other benefits to the members of such association or their 
dependents are excepted from employment if--
    (1) No part of its net earnings inures (other than through such 
payments) to the benefit of any private shareholder or individual,
    (2) 85 percent or more of the income consists of amounts collected 
from members for the sole purpose of making such payments and meeting 
expenses, and
    (3) The services are performed before 1962, or remuneration for the 
services is paid before 1962.
    (b) Federal employees' beneficiary associations. Services performed 
by an employee in the employ of a voluntary employees' beneficiary 
association providing for the payment of life, sick, accident, or other 
benefits to the members of such association or their dependents or their 
designated beneficiaries are excepted from employment if--
    (1) Admission to membership in the association is limited to 
individuals who are officers or employees of the United States 
Government,
    (2) No part of the net earnings of the association inures (other 
than through such payments) to the benefit of any private shareholder or 
individual, and
    (3) The services are performed before 1962, or remuneration for the 
services is paid before 1962.
    (c) Application of tests. For purposes of this section, the type of 
services performed by the employee, the amount of remuneration for the 
services, and the place where the services are performed

[[Page 177]]

are immaterial; the test is the character of the organization in whose 
employ the services are performed.

[T.D. 6658, 28 FR 6640, June 27, 1963]



Sec. 31.3306(c)(11)-1  Services in employ of foreign government.

    (a) Services performed by an employee in the employ of a foreign 
government are excepted from employment. The exception includes not only 
services performed by ambassadors, ministers, and other diplomatic 
officers and employees but also services performed as a consular or 
other officer or employee of a foreign government, or as a nondiplomatic 
representative thereof.
    (b) For purposes of this exception, the citizenship or residence of 
the employee is immaterial. It is also immaterial whether the foreign 
government grants an equivalent exemption with respect to similar 
services performed in the foreign country by citizens of the United 
States.



Sec. 31.3306(c)(12)-1  Services in employ of wholly owned instrumentality of foreign government.

    (a) Services performed by an employee in the employ of certain 
instrumentalities of a foreign government are excepted from employment. 
The exception includes all services performed in the employ of an 
instrumentality of the government of a foreign country, if--
    (1) The instrumentality is wholly owned by the foreign government;
    (2) The services are of a character similar to those performed in 
foreign countries by employees of the United States Government or of an 
instrumentality thereof; and
    (3) The Secretary of State certifies to the Secretary of the 
Treasury that the foreign government, with respect to whose 
instrumentality exemption is claimed, grants an equivalent exemption 
with respect to services performed in the foreign country by employees 
of the United States Government and of instrumentalities thereof.
    (b) For purposes of this exception, the citizenship or residence of 
the employee is immaterial.



Sec. 31.3306(c)(13)-1  Services of student nurse or hospital intern.

    (a) Services performed as a student nurse in the employ of a 
hospital or a nurses' training school are excepted from employment, if 
the student nurse is enrolled and regularly attending classes in a 
nurses' training school and such nurses' training school is chartered or 
approved pursuant to State law.
    (b) Services performed as an intern (as distinguished from a 
resident doctor) in the employ of a hospital are excepted from 
employment, if the intern has completed a 4 years' course in a medical 
school chartered or approved pursuant to State law.



Sec. 31.3306(c)(14)-1  Services of insurance agent or solicitor.

    (a) Services performed for a person by an employee as an insurance 
agent or insurance solicitor are excepted from employment, if all such 
services performed for such person by such individual are performed for 
remuneration solely by way of commission.
    (b) If all or any part of the remuneration of an employee for 
services performed as an insurance agent or insurance solicitor for a 
person is a salary, none of his services performed as an insurance agent 
or insurance solicitor for such person are excepted from employment, and 
his total remuneration (for example, salary, or salary and commissions) 
for such services is included for purposes of computing the tax.



Sec. 31.3306(c)(15)-1  Services in delivery or distribution of newspapers, shopping news, or magazines.

    (a) Services of individuals under age 18. Services performed by an 
employee under the age of 18 in the delivery or distribution of 
newspapers or shopping news, not including delivery or distribution (as, 
for example, by a regional distributor) to any point for subsequent 
delivery or distribution, are excepted from employment. Thus, the 
services performed by an employee under the age of 18 in making house-
to-house delivery or sale of newspapers or shopping news, including 
handbills and other similar types of advertising material, are excepted. 
The services are excepted irrespective of the form or

[[Page 178]]

method of compensation. Incidental services by the employee who makes 
the house-to-house delivery, such as services in assembling newspapers, 
are considered to be within the exception. The exception continues only 
during the time that the employee is under the age of 18.
    (b) Services of individuals of any age. Services performed by an 
employee 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, are excepted from 
employment. The services are excepted whether or not the employee is 
guaranteed a minimum amount of compensation for such services, or is 
entitled to be credited with the unsold newspapers or magazines turned 
back. Moreover, the services are excepted without regard to the age of 
the employee. Services performed other than at the time of sale to the 
ultimate consumer are not within the exception. Thus, the services of a 
regional distributor which are antecedent to but not immediately part of 
the sale to the ultimate consumer are not within the exception. However, 
incidental services by the employee who makes the sale to the ultimate 
consumer, such as services in assembling newspapers or in taking 
newspapers or magazines to the place of sale, are considered to be 
within the exception.



Sec. 31.3306(c)(16)-1  Services in employ of international organization.

    (a) Subject to the provisions of section 1 of the International 
Organizations Immunities Act (22 U.S.C. 228), services performed in the 
employ of an international organization as defined in section 
7701(a)(18) are excepted from employment.
    (b) (1) Section 701(a)(18) provides as follows:

    Sec. 7701. Definitions. (a) When used in this title, where not 
otherwise distinctly expressed or manifestly incompatible with the 
intent thereof--

                                * * * * *

    (18) International organization. The term ``international 
organization'' means a public international organization entitled to 
enjoy privileges, exemptions, and immunities as an international 
organization under the International Organizations Immunities Act (22 
U.S.C. 288-288f).

    (2) Section 1 of the International Organizations Immunities Act 
provides as follows:

    Sec. 1. [International Organizations Immunities Act.] For the 
purposes of this title [International Organizations Immunities Act], the 
term ``international organization'' means a public international 
organization in which the United States participates pursuant to any 
treaty or under the authority of any Act of Congress authorizing such 
participation or making an appropriation for such participation, and 
which shall have been designated by the President through appropriate 
Executive order as being entitled to enjoy the privileges, exemptions, 
and immunities herein provided. The President shall be authorized, in 
the light of the functions performed by any such international 
organization, by appropriate Executive order to withhold or withdraw 
from any such organization or its officers or employees any of the 
privileges, exemptions, and immunities provided for in this title 
(including the amendments made by this title) or to condition or limit 
the enjoyment by any such organization or its officers or employees of 
any such privilege, exemption, or immunity. The President shall be 
authorized, if in his judgment such action should be justified by reason 
of the abuse by an international organization or its officers and 
employees of the privileges, exemptions, and immunities herein provided 
or for any other reason, at any time to revoke the designation of any 
international organization under this section, whereupon the 
international organization in question shall cease to be classed as an 
international organization for the purposes of this title.



Sec. 31.3306(c)(17)-1  Fishing services.

    (a) In general. Subject to the limitations prescribed in paragraphs 
(b) and (c) of this section, services described in this paragraph are 
excepted from employment. Services performed by an individual in the 
catching, taking, harvesting, cultivating, or farming of any kind of 
fish, shell-fish (for example, oysters, clams, and mussels), crustacea 
(for example, lobsters, crabs, and shrimps), sponges, seaweeds, or other 
aquatic forms of animal and vegetable

[[Page 179]]

life are excepted. The exception extends to services performed as an 
officer or member of the crew of a vessel while the vessel is engaged in 
any such activity whether or not the officer or member of the crew is 
himself so engaged. In the case of an individual who is engaged in any 
such activity in the employ of any person, the services performed, by 
such individual in the employ of such person, as an ordinary incident to 
any such activity are also excepted. Similarly, for example, the shore 
services of an officer or member of the crew of a vessel engaged in any 
such activity are excepted if such services are an ordinary incident to 
any such activity. Services performed as an ordinary incident to any 
such activity may include, for example, services performed in such 
cleaning, icing, and packing of fish as are necessary for the immediate 
preservation of the catch.
    (b) Salmon and halibut fishing. Services performed in connection 
with the catching or taking of salmon or halibut, for commercial 
purposes, are not within the exception. Thus, neither the services of an 
officer or member of the crew of a vessel (irrespective of its tonnage) 
which is engaged in the catching or taking of salmon or halibut, for 
commercial purposes, nor the services of any other individual in 
connection with such activity, are within the exception.
    (c) Vessels of more than 10 net tons. Services described in 
paragraph (a) of this section performed on or in connection with a 
vessel of more than 10 net tons are not within the exception. For 
purposes of the exception, the tonnage of the vessel shall be determined 
in the manner provided for determining the register tonnage of merchant 
vessels under the laws of the United States.



Sec. 31.3306(c)(18)-1  Services of certain nonresident aliens.

    (a) (1) Services performed after 1961 by a nonresident alien 
individual who is temporarily present in the United States as a 
nonimmigrant under subparagraph (F) or (J) of section 101(a) (15) of the 
Immigration and Nationality Act (8 U.S.C. 1101), as amended, are 
excepted from employment if the services are performed to carry out a 
purpose for which the individual was admitted. For purposes of this 
section an alien individual who is temporarily present in the United 
States as a nonimmigrant under such subparagraph (F) or (J) is deemed to 
be a nonresident alien individual. The preceding sentence does not apply 
to the extent it is inconsistent with section 7701(b) and the 
regulations under that section. A nonresident alien individual who is 
temporarily present in the United States as a nonimmigrant under such 
subparagraph (J) includes an alien individual admitted to the United 
States as an ``exchange visitor'' under section 201 of the United States 
Information and Educational Exchange Act of 1948 (22 U.S.C. 1446).
    (2) If services are performed by a nonresident alien individual's 
alien spouse or minor child, who is temporarily present in the United 
States as a nonimmigrant under subparagraph (F) or (J) of section 
101(a)(15) of the Immigration and Nationality Act, as amended, the 
services are not deemed for purposes of this section to be performed to 
carry out a purpose for which such individual was admitted. The services 
of such spouse or child are excepted from employment under this section 
only if the spouse or child was admitted for a purpose specified in such 
subparagraph (F) or (J) and if the services are performed to carry out 
such purpose.
    (b) Section 101 of the Immigration and Nationality Act (8 U.S.C. 
1101), as amended, provides, in part, as follows:

    Sec. 101. Definitions. [Immigration and Nationality Act (66 Stat. 
166)]
    (a) As used in this chapter--* * *
    (15) The term immigrant means every alien except an alien who is 
within one of the following classes of nonimmigrant aliens--

                                * * * * *

    (F) (i) An alien having a residence in a foreign country which he 
has no intention of abandoning, who is a bona fide student qualified to 
pursue a full course of study and who seeks to enter the United States 
temporarily and solely for the purpose of pursuing such a course of 
study at an established institution of learning or other recognized 
place of study in the United States, particularly designated by him and 
approved by the Attorney General after consultation with the Office of 
Education of the United States, which institution or place of study 
shall have agreed to

[[Page 180]]

report to the Attorney General the termination of attendance of each 
nonimmigrant student, and if any such institution of learning or place 
of study fails to make reports promptly the approval shall be withdrawn, 
and (ii) the alien spouse and minor children of any such alien if 
accompanying him or following to join him;

                                * * * * *

    (J) An alien having a residence in a foreign country which he has no 
intention of abandoning who is a bona fide student, scholar, trainee, 
teacher, professor, research assistant, specialist, or leader in a field 
of specialized knowledge or skill, or other person of similar 
description, who is coming temporarily to the United States as a 
participant in a program designated by the Secretary of State, for the 
purpose of teaching, instructing or lecturing, studying, observing, 
conducting research, consulting, demonstrating special skills, or 
receiving training, and the alien spouse and minor children of any such 
alien if accompanying him or following to join him.

                                * * * * *

[Sec. 101, Immigration and Nationality Act, as amended by sec. 101, Act 
of June 27, 1952, 66 Stat. 166; sec. 109, Act of Sept. 21, 1961, 75 
Stat. 534]


[T.D. 6658, 28 FR 6640, June 27, 1963, as amended by T.D. 8411, 57 FR 
15241, Apr. 27, 1992]



Sec. 31.3306(d)-1  Included and excluded service.

    (a) If a portion of the services performed by an employee for the 
person employing him during a pay period constitutes employment, and the 
remainder does not constitute employment, all the services of the 
employee during the period shall for purposes of the tax be treated 
alike, that is, either all as included or all as excluded. The time 
during which the employee performs services which under section 3306(c) 
constitute employment, and the time during which he performs services 
which under such section do not constitute employment, within the pay 
period, determine whether all the services during the pay period shall 
be deemed to be included or excluded.
    (b) If one-half or more of the employee's time in the employ of a 
particular person in a pay period is spent in performing services which 
constitute employment, then all the services of that employee for that 
person in that pay period shall be deemed to be employment.
    (c) If less than one-half of the employee's time in the employ of a 
particular person in a pay period is spent in performing services which 
constitute employment, then none of the services of that employee for 
that person in that pay period shall be deemed to be employment.
    (d) The application of the provisions of paragraphs (a), (b), and 
(c) of this section may be illustrated by the following examples:

    Example 1. Employer B, who operates a farm and a store, employs A to 
perform services in connection with both operations. A's services on the 
farm are such that they are excepted as agricultural labor and do not 
constitute employment, and his services in the store constitute 
employment. He is paid at the end of each month. During a particular 
month A works 120 hours on the farm and 80 hours in the store. None of 
A's services during the month are deemed to be employment, since less 
than one-half of his services during the month constitutes employment. 
During another month A works 75 hours on the farm and 120 hours in the 
store. All of A's services during the month are deemed to be employment, 
since one-half or more of his services during the month constitutes 
employment.
    Example 2. Employee C is employed as a maid by D, a medical doctor, 
whose home and office are located in the same building. C's services in 
the home are excepted as domestic service and do not constitute 
employment, and her services in the office constitute employment. She is 
paid each week. During a particular week C works 20 hours in the home 
and 20 hours in the office. All of C's services during that week are 
deemed to be employment, since one-half or more of her services during 
the week constitutes employment. During another week C works 22 hours in 
the home and 15 hours in the office. None of C's services during that 
week are deemed to be employment, since less than one-half of her 
services during the week constitutes employment.

    (e) For purposes of this section, a ``pay period'' is the period (of 
not more than 31 consecutive calendar days) for which a payment of 
remuneration is ordinarily made to the employee by the person employing 
him. Thus, if the periods for which payments of remuneration are made to 
the employee by such person are of uniform duration, each

[[Page 181]]

such period constitutes a ``pay period''. If, however, the periods 
occasionally vary in duration, the ``pay period'' is the period for 
which a payment of remuneration is ordinarily made to the employee by 
such person, even though that period does not coincide with the actual 
period for which a particular payment of remuneration is made. For 
example, if a person ordinarily pays a particular employee for each 
calendar week at the end of the week, but the employee receives a 
payment in the middle of the week for the portion of the week already 
elapsed and receives the remainder at the end of the week, the ``pay 
period'' is still the calendar week; or if, instead, that employee is 
sent on a trip by such person and receives at the end of the third week 
a single remuneration payment for 3 weeks' services, the ``pay period'' 
is still the calendar week.
    (f) If there is only one period (and such period does not exceed 31 
consecutive calendar days) for which a payment of remuneration is made 
to the employee by the person employing him, such period is deemed to be 
a ``pay period'' for purposes of this section.
    (g) The rules set forth in this section do not apply (1) with 
respect to any services performed by the employee for the person 
employing him if the periods for which such person makes payments of 
remuneration to the employee vary to the extent that there is no period 
``for which a payment of remuneration is ordinarily made to the 
employee,'' or (2) with respect to any services performed by the 
employee for the person employing him if the period for which a payment 
of remuneration is ordinarily made to the employee by such person 
exceeds 31 consecutive calendar days, or (3) with respect to any service 
performed by the employee for the person employing him during a pay 
period if any of such service is excepted by section 3306(c) (9) (see 
Sec. 31.3306(c) (9)-1).
    (h) If during any period for which a person makes a payment of 
remuneration to an employee only a portion of the employee's services 
constitutes employment, but the rules prescribed in this section are not 
applicable, the tax attaches with respect to such services as constitute 
employment as defined in section 3306(c) (provided such person is an 
employer as defined in section 3306(a) and Sec. 31.3306(a)-1).



Sec. 31.3306(i)-1  Who are employees.

    (a) Every individual is an employee if the relationship between him 
and the person for whom he performs services is the legal relationship 
of employer and employee. (The word ``employer'' as used in this section 
only, notwithstanding the provisions of Sec. 31.3306(a)-1, includes a 
person who employs one or more employees.)
    (b) Generally such relationship exists when the person for whom 
services are performed has the right to control and direct the 
individual who performs the services, not only as to the result to be 
accomplished by the work but also as to the details and means by which 
that result is accomplished. That is, an employee is subject to the will 
and control of the employer not only as to what shall be done but how it 
shall be done. In this connection, it is not necessary that the employer 
actually direct or control the manner in which the services are 
performed; it is sufficient if he has the right to do so. The right to 
discharge is also an important factor indicating that the person 
possessing that right is an employer. Other factors characteristic of an 
employer, but not necessarily present in every case, are the furnishing 
of tools and the furnishing of a place to work, to the individual who 
performs the services. In general, if an individual is subject to the 
control or direction of another merely as to the result to be 
accomplished by the work and not as to the means and methods for 
accomplishing the result, he is an independent contractor. An individual 
performing services as an independent contractor is not as to such 
services an employee. Individuals such as physicians, lawyers, dentists, 
veterinarians, construction contractors, public stenographers, and 
auctioneers, engaged in the pursuit of an independent trade, business, 
or profession, in which they offer their services to the public, are 
independent contractors and not employees.
    (c) Whether the relationship of employer and employee exists will in

[[Page 182]]

doubtful cases be determined upon an examination of the particular facts 
of each case.
    (d) If the relationship of employer and employee exists, the 
designation or description of the relationship by the parties as 
anything other than that of employer and employee is immaterial. Thus, 
if such relationship exists, it is of no consequence that the employee 
is designated as a partner, coadventurer, agent, independent contractor, 
or the like.
    (e) All classes or grades of employees are included within the 
relationship of employer and employee. Thus, superintendents, managers, 
and other supervisory personnel are employees. Generally, an officer of 
a corporation is an employee of the corporation. However, an officer of 
a corporation who as such does not perform any services or performs only 
minor services and who neither receives nor is entitled to receive, 
directly or indirectly, any remuneration is considered not to be an 
employee of the corporation. A director of a corporation in his capacity 
as such is not an employee of the corporation.
    (f) Although an individual may be an employee under this section, 
his services may be of such a nature, or performed under such 
circumstances, as not to constitute employment (see Sec. 31.3306(c)-2).



Sec. 31.3306(j)-1  State, United States, and citizen.

    (a) When used in the regulations in this subpart, the term ``State'' 
includes the District of Columbia, the Territories of Alaska and Hawaii 
before their admission as States, and (when used with respect to 
remuneration paid after 1960 for services performed after 1960) the 
Commonwealth of Puerto Rico.
    (b) When used in the regulations in this subpart, the term ``United 
States'', when used in a geographical sense, means the several States 
(including the Territories of Alaska and Hawaii before their admission 
as States), and the District of Columbia. When used in the regulations 
in this subpart with respect to remuneration paid after 1960 for 
services performed after 1960, the term ``United States'' also includes 
the Commonwealth of Puerto Rico when the term is used in a geographical 
sense, and the term ``citizen of the United States'' includes a citizen 
of the Commonwealth of Puerto Rico.

[T.D. 6658, 28 FR 6641, June 27, 1963]



Sec. 31.3306(k)-1  Agricultural labor.

    (a) In general. (1) Services performed by an employee for the person 
employing him which constitute ``agricultural labor'' as defined in 
section 3306(k) are excepted from employment by reason of section 
3306(c)(1). See Sec. 31.3306(c)(1)-1. The term ``agricultural labor'' as 
defined in section 3306(k) includes services of the character described 
in paragraphs (b), (c), (d), and (e) of this section. In general, 
however, the term does not include services performed in connection with 
forestry, lumbering, or landscaping.
    (2) The term ``farm'' as used in this subpart includes stock, dairy, 
poultry, fruit, fur-bearing animal, and truck farms, plantations, 
ranches, nurseries, ranges, orchards, and such greenhouses and other 
similar structures as are used primarily for the raising of agricultural 
or horticultural commodities. Greenhouses and other similar structures 
used primarily for other purposes (for example, display, storage, and 
fabrication of wreaths, corsages, and bouquets) do not constitute 
``farms''.
    (b) Services described in section 3306(k)(1). Services performed on 
a farm by an employee of any person in connection with any of the 
following activities constitute agricultural labor:
    (1) The cultivation of the soil;
    (2) The raising, shearing, feeding, caring for, training, or 
management of livestock, bees, poultry, fur-bearing animals, or 
wildlife; or
    (3) The raising or harvesting of any other agricultural or 
horticultural commodity.
    (c) Services described in section 3306(k)(2). (1) The following 
services performed by an employee in the employ of the owner or tenant 
or other operator of one or more farms constitute agricultural labor, if 
the major part of such services is performed on a farm:

[[Page 183]]

    (i) Services performed in connection with the operation, management, 
conservation, improvement, or maintenance of any such farms or its tools 
or equipment; or
    (ii) Services performed in salvaging timber, or clearing land of 
brush and other debris, left by a hurricane.
    (2) The services described in paragraph (c)(1)(i) of this section 
may include, for example, services performed by carpenters, painters, 
mechanics, farm supervisors, irrigation engineers, bookkeepers, and 
other skilled or semiskilled workers, which contribute in any way to the 
conduct of the farm or farms, as such, operated by the person employing 
them, as distinguished from any other enterprise in which such person 
may be engaged.
    (3) Since the services described in this paragraph must be performed 
in the employ of the owner or tenant or other operator of the farm, 
services performed by employees of a commercial painting concern, for 
example, which contracts with a farmer to renovate his farm properties, 
do not constitute agricultural labor.
    (d) Services described in section 3306(k)(3). Services performed by 
an employee in the employ of any person in connection with any of the 
following operations constitute agricultural labor without regard to the 
place where such services are performed:
    (1) The ginning of cotton;
    (2) The hatching of poultry;
    (3) The raising or harvesting of mushrooms;
    (4) The operation or maintenance of ditches, canals, reservoirs, or 
waterways used exclusively for supplying or storing water for farming 
purposes;
    (5) The production or harvesting of maple sap or the processing of 
maple sap into maple sirup or maple sugar (but not the subsequent 
blending or other processing of such sirup or sugar with other 
products); or
    (6) The production or harvesting of crude gum (oleoresin) from a 
living tree or the processing of such crude gum into gum spirits of 
turpentine and gum rosin provided such processing is carried on by the 
original producer of such crude gum.
    (e) Services described in section 3306(k)(4). (1)(i) Services 
performed by an employee in the employ of a farmer or a farmers' 
cooperative organization or group in the handling, planting, drying, 
packing, packaging, processing, freezing, grading, storing, or 
delivering to storage or to market or to a carrier for transportation to 
market, of any agricultural or horticultural commodity, other than 
fruits and vegetables (see paragraph (e)(2) of this section), produced 
by such farmer or farmer-members of such organization or group of 
farmers constitute agricultural labor, if such services are performed as 
an incident to ordinary farming operations.
    (ii) Generally services are performed ``as an incident to ordinary 
farming operations'' within the meaning of this paragraph if they are 
services of the character ordinarily performed by the employees of a 
farmer or of a farmers' cooperative organization or group as a 
prerequisite to the marketing, in its unmanufactured state, of any 
agricultural or horticultural commodity produced by such farmer or by 
the members of such farmers' organization or group. Services performed 
by employees of such farmer or farmers' organization or group in the 
handling, planting, drying, packing, packaging, processing, freezing, 
grading, storing, or delivering to storage or to market or to a carrier 
for transportation to market, of commodities produced by persons other 
than such farmer or members of such farmers' organization or group are 
not performed ``as an incident to ordinary farming operations''.
    (2) Services performed by an employee in the employ of any person in 
the handling, planting, drying, packing, packaging, processing, 
freezing, grading, storing, or delivering to storage or to market or to 
a carrier for transportation to market, of fruits and vegetables, 
whether or not of a perishable nature, constitute agricultural labor, if 
such services are performed as an incident to the preparation of such 
fruits and vegetables for market. For example, if services in the 
sorting, grading, or storing of fruits, or in the cleaning of beans, are 
performed as an incident to their preparation for market, such services 
may constitute agricultural labor, whether performed in

[[Page 184]]

the employ of a farmer, a farmers' cooperative, or a commercial handler 
of such commodities.
    (3) The services described in paragraphs (e)(1) and (2) of this 
section do not include services performed in connection with commercial 
canning or commercial freezing or in connection with any commodity after 
its delivery to a terminal market for distribution for consumption. 
Moreover, since the services described in such subparagraphs must be 
rendered in the actual handling, planting, drying, packing, packaging, 
processing, freezing, grading, storing, or delivering to storage or to 
market or to a carrier for transportation to market, of the commodity, 
such services do not, for example, include services performed as 
stenographers, bookkeepers, clerks, and other office employees, even 
though such services may be in connection with such activities. However, 
to the extent that the services of such individuals are performed in the 
employ of the owner or tenant or other operator of a farm and are 
rendered in major part on a farm, they may be within the provisions of 
paragraph (c) of this section.



Sec. 31.3306(m)-1  American vessel and aircraft.

    (a) The term ``American vessel'' means any vessel which is 
documented (that is, registered, enrolled, or licensed) or numbered in 
conformity with the laws of the United States. It also includes any 
vessel which is neither documented nor numbered under the laws of the 
United States, nor documented under the laws of any foreign country, if 
the crew of such vessel 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. (For provisions relating to the 
terms ``State'' and ``citizen'', see Sec. 31.3306(j)-1.)
    (b) The term ``American aircraft'' means any aircraft registered 
under the laws of the United States.
    (c) For provisions relating to services performed outside the United 
States on or in connection with an American vessel or American aircraft, 
see paragraph (c) of Sec. 31.3306(c)-2.

[T.D. 6658, 28 FR 6641, June 27, 1963]



Sec. 31.3306(n)-1  Services on American vessel whose business is conducted by general agent of Secretary of Commerce.

    (a) Section 3306(n) and this section of the regulations apply with 
respect only to services performed by an officer or member of the crew 
of an American vessel (1) which is owned by or bareboat chartered to the 
United States, and (2) whose business is conducted by a general agent of 
the Secretary of Commerce. Whether services performed by such an officer 
or member of a crew under the above conditions constitute employment is 
determined under section 3306(c) and (n), but without regard to section 
3306(c)(6). See Sec. 31.3306(c)(6)-1, relating to services performed in 
the employ of the United States and instrumentalities thereof. If, 
without regard to section 3306(c)(6), such services constitute 
employment, they are not excepted from employment by reason of the fact 
that they are performed on or in connection with an American vessel 
which is owned by or bareboat chartered to the United States and whose 
business is conducted by a general agent of the Secretary of Commerce, 
that is, such services are not excepted from employment by section 
3306(c)(6). For provisions relating to services performed within the 
United States and services performed outside the United States which 
constitute employment, see Sec. 31.3306(c)-2.
    (b) The expression ``officer or member of the crew'' includes the 
master or officer in charge of the vessel, however designated, and every 
individual, subject to his authority, serving on board and contributing 
in any way to the operation and welfare of the vessel. Thus, the 
expression includes, for example, the master, mates, pilots, pursers, 
surgeons, stewards, engineers, firemen, cooks, clerks, carpenters, and 
deck hands.
    (c) An employee of the United States who performs services as an 
officer or member of the crew of an American vessel which is owned by or 
bareboat chartered to the United States and whose business is conducted 
by a general agent of the Secretary of Commerce shall be deemed, under 
section 3306(n), to be performing services for such general agent rather 
than for the

[[Page 185]]

United States. Any such general agent of the Secretary of Commerce is 
considered a legal entity in his capacity as such general agent, 
separate and distinct from his identity as a person employing 
individuals on his own account. Each such general agent who in his 
capacity as such qualifies as an employer under section 3306(a) is with 
respect to each calendar year for which he so qualifies subject to the 
tax imposed by section 3301, and to all the requirements imposed upon an 
employer as defined in section 3306(a) by the regulations in this part, 
with respect to services which constitute employment by reason of 
section 3306(n) and this section of the regulations.



Sec. 31.3306(p)-1  Employees of related corporations.

    (a) In general. For purposes of sections 3301, 3302, and 3306(b)(1), 
when two or more related corporations concurrently employ the same 
individual and compensate that individual through a common paymaster 
which is one of the related corporations for which the individual 
performs services, each of the corporations is considered to have paid 
only the remuneration it actually disburses to that individual (unless 
the disbursing corporation fails to remit the taxes due). Paragraphs (b) 
and (c) of Sec. 31.3121(s)-1 contain rules defining related 
corporations, common paymasters, and concurrent employment, and rules 
for determining the liability of the other related corporations for 
employment taxes if the common paymaster fails to remit the taxes 
pursuant to sections 3102 and 3111, and for allocating these taxes among 
the related corporations. Those rules also apply to the tax under 
section 3301. For purposes of applying those rules to this section, 
references in those rules to section 3111 are considered references to 
sections 3301 and 3302, and references to section 3121 are considered 
references to section 3306.
    (b) Allocation of credit for contributions to State unemployment 
funds. A special rule for applying the rules of Sec. 31.3121(s)-1 to 
this section applies if it is necessary to determine the ultimate 
liability of each related corporation for which services are performed 
in the event the common paymaster fails to remit the tax to the Internal 
Revenue Service. In determining the ultimate liability of a corporation, 
the credit for contributions to State unemployment funds that the 
corporation may claim under section 3302 is calculated as if each 
corporation were a separate employer.
    (c) Effective date. This section is effective with respect to wages 
paid after December 31, 1978.

[T.D. 7660, 44 FR 75142, Dec. 19, 1979]



Sec. 31.3306(r)(2)-1  Treatment of amounts deferred under certain nonqualified deferred compensation plans.

    (a) In general. Section 3306(r)(2) provides a special timing rule 
for the tax imposed by section 3301 with respect to any amount deferred 
under a nonqualified deferred compensation plan. Section 31.3121(v)(2)-1 
contains rules relating to when amounts deferred under certain 
nonqualified deferred compensation plans are wages for purposes of 
sections 3121(v)(2), 3101, and 3111. The rules in Sec. 31.3121(v)(2)-1 
also apply to the special timing rule of section 3306(r)(2). For 
purposes of applying the rules in Sec. 31.3121(v)(2)-1 to section 
3306(r)(2) and this paragraph (a), references to the Federal Insurance 
Contributions Act are considered references to the Federal Unemployment 
Tax Act (26 U.S.C. 3301 et seq.), references to FICA are considered 
references to FUTA, references to section 3101 or 3111 are considered 
references to section 3301, references to section 3121(v)(2) are 
considered references to section 3306(r)(2), references to section 
3121(a), (a)(5), and (a)(13) are considered references to section 
3306(b), (b)(5), and (b)(10), respectively, and references to 
Sec. 31.3121(a)-2(a) are considered references to Sec. 31.3301-4.
    (b) Effective dates and transition rules. Except as otherwise 
provided, section 3306(r)(2) applies to remuneration paid after December 
31, 1984. Section 31.3121(v)(2)-2 contains effective date rules for 
certain remuneration paid after December 31, 1983, for purposes of 
section 3121(v)(2). The rules in Sec. 31.3121(v)(2)-2 also apply to 
section 3306(r)(2). For purposes of applying the rules in 
Sec. 31.3121(v)(2)-2 to section

[[Page 186]]

3306(r)(2) and this paragraph (b), references to section 3121(v)(2) are 
considered references to section 3306(r)(2), and references to section 
3121(a)(2), (a)(3), or (a)(13) are considered references to section 
3306(b)(2), (b)(3), or (b)(10), respectively. In addition, references to 
Sec. 31.3121(v)(2)-1 are considered references to paragraph (a) of this 
section. For purposes of applying the rules of Sec. 31.3121(v)(2)-2 to 
this paragraph (b)--
    (1) References to ``December 31, 1983'' are considered references to 
``December 31, 1984'';
    (2) References to ``before 1984'' are considered references to 
``before 1985'';
    (3) References to ``Federal Insurance Contributions Act'' are 
considered references to ``Federal Unemployment Tax Act''; and
    (4) References to ``FICA'' are considered references to ``FUTA''.

[64 FR 4541, Jan. 29, 1999]



Sec. 31.3307-1  Deductions by an employer from remuneration of an employee.

    Any amount deducted by an employer from the remuneration of an 
employee is considered to be a part of the employee's remuneration and 
is considered to be paid to the employee as remuneration at the time 
that the deduction is made. It is immaterial that any act of Congress or 
the law of any State requires or permits such deductions and the payment 
of the amount thereof to the United States, a State, or any political 
subdivision thereof.



Sec. 31.3308-1  Instrumentalities of the United States specifically exempted from tax imposed by section 3301.

    Section 3308 makes ineffectual as to the tax imposed by section 3301 
(with respect to remuneration paid after 1961 for services performed 
after 1961) those provisions of law which grant to an instrumentality of 
the United States an exemption from taxation, unless such provisions 
grant a specific exemption from the tax imposed by section 3301 by an 
express reference to such section or the corresponding section of prior 
law. Thus, the general exceptions from Federal taxation granted by 
various statutes to certain instrumentalities of the United States 
without specific reference to the tax imposed by section 3301 or the 
corresponding section of prior law are rendered inoperative insofar as 
such exemptions relate to the tax imposed by section 3301. For 
provisions relating to the exception from employment of services 
performed in the employ of an instrumentality of the United States 
specifically exempted from the tax imposed by section 3301, see 
Sec. 31.3306(c)(6)-1.

[T.D. 6658, 28 FR 6641, June 27, 1963]



              Subpart E--Collection of Income Tax at Source



Sec. 31.3401(a)-1  Wages.

    (a) In general. (1) The term ``wages'' means all remuneration for 
services performed by an employee for his employer unless specifically 
excepted under section 3401(a) or excepted under section 3402(e).
    (2) The name by which the remuneration for services is designated is 
immaterial. Thus, salaries, fees, bonuses, commissions on sales or on 
insurance premiums, pensions, and retired pay are wages within the 
meaning of the statute if paid as compensation for services performed by 
the employee for his employer.
    (3) The basis upon which the remuneration is paid is immaterial in 
determining whether the remuneration constitutes wages. Thus, it may be 
paid on the basis of piecework, or a percentage of profits; and may be 
paid hourly, daily, weekly, monthly, or annually.
    (4) Generally the medium in which remuneration is paid is also 
immaterial. It may be paid in cash or in something other than cash, as 
for example, stocks, bonds, or other forms of property. (See, however, 
Sec. 31.3401(a)(11)-1, relating to the exclusion from wages of 
remuneration paid in any medium other than cash for services not in the 
course of the employer's trade or business, and Sec. 31.3401(a)(16)-1, 
relating to the exclusion from wages of tips paid in any medium other 
than cash.) If services are paid for in a medium other than cash, the 
fair market value of the thing taken in payment is the amount to be 
included as wages. If the services were rendered at a stipulated price, 
in the absence of evidence to the contrary, such price will be presumed 
to be

[[Page 187]]

the fair value of the remuneration received. If a corporation transfers 
to its employees its own stock as remuneration for services rendered by 
the employee, the amount of such remuneration is the fair market value 
of the stock at the time of the transfer.
    (5) Remuneration for services, unless such remuneration is 
specifically excepted by the statute, constitutes wages even though at 
the time paid the relationship of employer and employee no longer exists 
between the person in whose employ the services were performed and the 
individual who performed them.

    Example. A is employed by R during the month of January 1955 and is 
entitled to receive remuneration of $100 for the services performed for 
R, the employer, during the month. A leaves the employ of R at the close 
of business on January 31, 1955. On February 15, 1955 (when A is no 
longer an employee of R), R pays A the remuneration of $100 which was 
earned for the services performed in January. The $100 is wages within 
the meaning of the statute.

    (b) Certain specific items--(1) Pensions and retirement pay. (i) In 
general, pensions and retired pay are wages subject to withholding. 
However, no withholding is required with respect to amounts paid to an 
employee upon retirement which are taxable as annuities under the 
provisions of section 72 or 403. So-called pensions awarded by one to 
whom no services have been rendered are mere gifts or gratuities and do 
not constitute wages. Those payments of pensions or other benefits by 
the Federal Government under Title 38 of the United States Code which 
are excluded from gross income are not wages subject to withholding.
    (ii) Amounts received as retirement pay for service in the Armed 
Forces of the United States, the Coast and Geodetic Survey, or the 
Public Health Service or as a disability annuity paid under the 
provisions of section 831 of the Foreign Service Act of 1946, as amended 
(22) U.S.C. 1081; 60 Stat. 1021), are subject to withholding unless such 
pay or disability annuity is excluded from gross income under section 
104(a)(4), or is taxable as an annuity under the provisions of section 
72. Where such retirement pay or disability annuity (not excluded from 
gross income under section 104(a)(4) and not taxable as an annuity under 
the provisions of section 72) is paid to a nonresident alien individual, 
withholding is required only in the case of such amounts paid to a 
nonresident alien individual who is a resident of Puerto Rico.
    (2) Traveling and other expenses. Amounts paid specifically--either 
as advances or reimbursements--for traveling or other bona fide ordinary 
and necessary expenses incurred or reasonably expected to be incurred in 
the business of the employer are not wages and are not subject to 
withholding. Traveling and other reimbursed expenses must be identified 
either by making a separate payment or by specifically indicating the 
separate amounts where both wages and expense allowances are combined in 
a single payment. For amounts that are received by an employee on or 
after July 1, 1990, with respect to expenses paid or incurred on or 
after July 1, 1990, see Sec. 31.3401 (a)-4.
    (3) Vacation allowances. Amounts of so-called ``vacation 
allowances'' paid to an employee constitute wages. Thus, the salary of 
an employee on vacation, paid notwithstanding his absence from work, 
constitutes wages.
    (4) Dismissal payments. Any payments made by an employer to an 
employee on account of dismissal, that is, involuntary separation from 
the service of the employer, constitute wages regardless of whether the 
employer is legally bound by contract, statute, or otherwise to make 
such payments.
    (5) Deductions by employer from remuneration of an employee. Any 
amount deducted by an employer from the remuneration of an employee is 
considered to be a part of the employee's remuneration and is considered 
to be paid to the employee as remuneration at the time that the 
deduction is made. It is immaterial that any act of Congress, or the law 
of any State or of Puerto Rico, requires or permits such deductions and 
the payment of the amounts thereof to the United States, a State, a 
Territory, Puerto Rico, or the District of Columbia, or any political 
subdivision of any one or more of the foregoing.

[[Page 188]]

    (6) Payment by an employer of employee's tax, or employee's 
contributions under a State law. The term ``wages'' includes the amount 
paid by an employer on behalf of an employee (without deduction from the 
remuneration of, or other reimbursement from, the employee) on account 
of any payment required from an employee under a State unemployment 
compensation law, or on account of any tax imposed upon the employee by 
any taxing authority, including the taxes imposed by sections 3101 and 
3201.
    (7) Remuneration for services as employee of nonresident alien 
individual or foreign entity. The term ``wages'' includes remuneration 
for services performed by a citizen or resident (including, in regard to 
wages paid after February 28, 1979, an individual treated as a resident 
under section 6013 (g) or (h)) of the United States as an employee of a 
nonresident alien individual, foreign partnership, or foreign 
corporation whether or not such alien individual or foreign entity is 
engaged in trade or business within the United States. Any person paying 
wages on behalf of a nonresident alien individual, foreign partnership, 
or foreign corporation, not engaged in trade or business within the 
United States (including Puerto Rico as if a part of the United States), 
is subject to all the provisions of law and regulations applicable with 
respect to an employer. See Sec. 31.3401(d)-1, relating to the term 
``employer'', and Sec. 31.3401(a)(8)(C)-1, relating to remuneration paid 
for services performed by a citizen of the United States in Puerto Rico.
    (8) Amounts paid under accident or health plans--(i) Amounts paid in 
taxable years beginning on or after January 1, 1977--(a) In general. 
Withholding is required on all payments of amounts includible in gross 
income under section 105(a) and Sec. 1.105-1 (relating to amounts 
attributable to employer contributions), made in taxable years beginning 
on or after January 1, 1977, to an employee under an accident or health 
plan for a period of absence from work on account of personal injuries 
or sickness. Payments on which withholding is required by this 
subdivision are wages as defined in section 3401(a), and the employer 
shall deduct and withhold in accordance with the requirements of chapter 
24 of subtitle C of the Code. Third party payments of sick pay, as 
defined in section 3402(o) and the regulations thereunder, are not wages 
for purposes of this section.
    (b) Payments made by an agent of the employer. (1) Payments are 
considered made by the employer if a third party makes the payments as 
an agent of the employer. The determining factor as to whether a third 
party is an agent of the employer is whether the third party bears any 
insurance risk. If the third party bears no insurance risk and is 
reimbursed on a cost plus fee basis, the third party is an agent of the 
employer even if the third party is responsible for making 
determinations of the eligibility of individual employees of the 
employer for sick pay payments. If the third party is paid an insurance 
premium and not reimbursed on a cost plus fee basis, the third party is 
not an agent of the employer, but the third party is a payor of third 
party sick pay for purposes of voluntary withholding from sick pay under 
sections 3402(o) and 6051(f) and the regulations thereunder. If a third 
party and an employer enter into an agency agreement as provided in 
paragraph (c) of Sec. 31.6051-3 (relating to statements required in case 
of sick pay paid by third parties), that agency agreement does not make 
the third party an agent of the employer for purposes of this paragraph.
    (2) Payments made by agents subject to this paragraph are 
supplemental wages as defined in Sec. 31.3402(g)-1. Unless the agent is 
also an agent for purposes of withholding tax from the employee's 
regular wages, the agent may deem tax to have been withheld from the 
employee's regular wages. Consequently, the agent may determine the tax 
to be withheld from supplemental wages by using a flat percentage rate 
of 20 percent as provided in Sec. 31.3402 (g)-1.
    (3) This paragraph is only applicable to amounts paid on or after 
May 25, 1983 unless the agent actually withheld taxes before that date.
    (c) Exceptions to withholding. (1) Withholding is not required on 
payments that are specifically excepted under the numbered paragraphs of 
section 3401(a) (relating to the definition of wages), under section 
3402(e) (relating

[[Page 189]]

to included and excluded wages), or under section 3402(n) (relating to 
employees incurring no income tax liability).
    (2) Withholding is not required on disability payments to the extent 
that the payments are excludable from gross income under section 105(d). 
In determining the excludable portion of the disability payments, the 
employer may assume that payments that the employer makes to the 
employee are the employee's sole source of income. This exception 
applies only if the employee furnishes the employer with adequate 
verification of disability. A certificate from a qualified physician 
attesting that the employee is permanently and totally disabled (within 
the meaning of section 105(d)) shall be deemed to constitute adequate 
verification. This exception does not affect the requirement that a 
statement (which includes any amount paid under section 105(d)) be 
furnished under either section 6041 (relating to information at source) 
or section 6051 (relating to receipts for employees) and the regulations 
thereunder.
    (ii) Amounts paid after December 31, 1955 and before January 1, 
1977--(a) In general. The term ``wage continuation payment'', as used in 
this subdivision, means any payment to an employee which is made after 
December 31, 1955, and before January 1, 1977 under a wage continuation 
plan (as defined in paragraph (a)(2)(i) of Sec. 1.105-4 and Sec. 1.105-5 
of Part 1 of this chapter (Income Tax Regulations)) for a period of 
absence from work on account of personal injuries or sickness, to the 
extent such payment is attributable to contributions made by the 
employer which were not includable in the employee's gross income or is 
paid by the employer. Any such payment, whether or not excluded from the 
gross income of the employee under section 105(d), constitutes ``wages'' 
(unless specifically excepted under any of the numbered paragraphs of 
section 3401(a) or under section 3402(e) and withholding thereon is 
required except as provided in paragraphs (b)(8)(ii) (b), (c), and (d) 
of this section.
    (b) Amounts paid before January 1, 1977, by employer for whom 
services are performed for period of absence beginning after December 
31, 1963. (1) Withholding is not required upon the amount of any wage 
continuation payment for a period of absence beginning after December 
31, 1963, paid before January 1, 1977, to an employee directly by the 
employer for whom he performs services to the extent that such payment 
is excludable from the gross income of the employee under the provisions 
of section 105(d) in effect with respect to such payments, provided the 
records maintained by the employer--
    (i) Separately show the amount of each such payment and the 
excludable portion thereof, and
    (ii) Contain data substantiating the employee's entitlement to the 
exclusion provided in section 105(d) with respect to such amount, either 
by a written statement from the employee specifying whether his absence 
from work during the period for which the payment was made was due to a 
personal injury or to sickness and whether he was hospitalized for at 
least one day during this period; or by any other information which the 
employer reasonably believes establishes the employee's entitlement to 
the exclusion under section 105(d). Employers shall not be required to 
ascertain the accuracy of any written statement submitted by an employee 
in accordance with this subdivision (b)(1)(ii).

For purposes of this subdivision (b)(1), wage continuation payments 
reasonably expected by the employer to be made on behalf of the employer 
by another person shall be taken into account in determining whether the 
75 percent test contained in section 105(d) is met and in computing the 
amount of any wage continuation payment made directly by the employer 
for whom services are performed by the employee which is within the $75 
or $100 weekly rate of exclusion from the gross income of the employee 
provided in section 105(d). In making this latter computation, the 
amount excludable under section 105(d) shall be applied first against 
payments reasonably expected to be made on behalf of the employer by the 
other person and then, to the extent any part of the exclusion remains, 
against the payments made directly by the employer. In a case in which 
wage continuation payments are not paid at a constant rate for the first 
30 calendar

[[Page 190]]

days of the period of absence, the determination of whether the 75 
percent test contained in section 105(d) is met shall be based upon the 
length of the employee's absence as of the end of the period for which 
the payment by the employer is made, without regard to the effect which 
any further extension of such absence may have upon the excludability of 
the payment.
    (2) The computation of the amount of any wage continuation payment 
with repect to which the employer may refrain from withholding may be 
illustrated by the following examples:

    Example 1. A, an employee of B, normally works Monday through Friday 
and has a regular weekly rate of wages of $100. On Monday, November 5, 
1974, A becomes ill, and as a result is absent from work for two weeks, 
returing to work on Monday, November 19, 1974. A is not hospitalized. 
Under B's noncontributory wage continuation plan, A receives no benefits 
for the first three working days of absence and is paid benefits 
directly by B at the rate of $85 a week thereafter ($34 for the last two 
days of the first week of absence and $85 for the second week of 
absence). No wage continuation payment is made by any other person. 
Since the benefits are entirely attributable to contributions to the 
plan by B, such benefits are wage continuation payments in their 
entirety. The wage continuation payments for the first seven calender 
days of absence are not excludable from A's gross income because A was 
not hospitalized for at least one day during his period of absence, and 
therefore B must withhold with respect to such payments. Under section 
105(a), the wage continuation payments attributable to absence after the 
first seven calendar days of absence are excludable to the extent that 
they do not exceed a rate of $75 a week. Under the principles stated in 
paragraph (e)(6)(iv) of Sec. 1.105-4 of this chapter (Income Tax 
Regulations), the wage continuation payments in this case are at a rate 
not in excess of 75 percent (\119/200\ or 59.5 percent) of A's regular 
weekly rate of wages. Accordingly, B may refrain from withholding with 
respect to $75 of the wage continuation payment attributable to the 
second week of absence.
    Example 2. Assume the facts in example 1 except that A is unable to 
return to work until Monday, February 11, 1975, and that, of the $85 a 
week of wage continuation payments $35 is paid directly by B and $50 is 
reasonably expected by B to be paid by C, an insurance company, on 
behalf of B. In such a case, both the $50 and the $35 payments 
constitute wage continuation payments and the amount of such payments 
which is attributable to the first 30 calendar days of absence is at a 
rate not in excess of 75 percent (\323/440\ or 73.4 percent) of A's 
regular weekly rate of wages. Therefore, under section 105(d), the 
portion of such payments which is attributable to absence after the 
first seven calendar days of absence is excludable to the extent that it 
does not exceed a rate of $75 a week for the eighth through the 
thirtieth calendar day of absence and does not exceed a rate of $100 a 
week thereafter. B may refrain from withholding with repect to $25 a 
week (the amount by which the $75 maximum excludable amount exceeds the 
$50 reasonably expected by B to be paid by C) of his direct payments for 
the eighth through the thirtieth calendar day of absence. Thereafter, B 
may refrain from withholding with respect to the entire $35 paid 
directly by him since the maximum excludable amount ($100 a week) 
exceeds the total of payments made by B and payments which B reasonably 
expects will be made by C.

    (c) Amounts paid by employer for whom services are performed for 
period of absence beginning before January 1, 1964. Withholding is not 
required upon the amount of any wage continuation payment for a period 
of absence beginning before January 1, 1964, made to an employee 
directly by the employer for whom he performs services to the extent 
that such payment is excludable from the gross income of the employee 
under the provisions of section 105(d) in effect with respect to such 
payments, provided the records maintained by the employer--
    (1) Separately show the amount of each such payment and the 
excludable portion thereof, and
    (2) Contain data substantiating the employee's entitlement to the 
exclusion provided in section 105(d) with respect to such amount, either 
by a written statement from the employee specifying whether his absence 
from work during the period for which the payment was made was due to a 
personal injury or whether such absence was due to sickness, and, if the 
latter, whether he was hospitalized for at least one day during this 
period; or by any other information which the employer reasonably 
believes establishes the employee's entitlement to the exclusion under 
section 105(d). Employers shall not be required to ascertain the 
accuracy of the information contained in any written statement submitted 
by an employee in accordance with this paragraph (b)(8)(ii) (c)(2). For 
purposes

[[Page 191]]

of this paragraph (b)(8) (ii)(c), the computation of the amount 
excludable form the gross income of the employee under section 105(d) 
may be made either on the basis of the wage continuation payments which 
are made directly by the employer for whom the employee performs 
services, or on the basis of such payments in conjunction with any wage 
continuation payments made on behalf of the employer by a person who is 
regarded as an employer under section 3401(d)(1).
    (d) Amounts paid before January 1, 1977 by person other than the 
employer for whom services are performed. No tax shall be withheld upon 
any wage continuation payment made to an employee by or on behalf of a 
person who is not the employer for whom the employee performs services 
but who is regarded as an employer under section 3401(d)(1). For 
example, no tax shall be withheld with respect to wage continuation 
payments made on behalf of an employer by an insurance company under an 
accident or health policy, by a separate trust under an accident or 
health plan, or by a State agency from a sickness and disability fund 
maintained under State law.
    (e) Cross references. See sections 6001 and 6051 and the regulations 
thereunder for rules with respect to the records which must be 
maintained in connection with wage continuation payments and for rules 
with respect to the statements which must be furnished an employee in 
connection with wage continuation payments, respectively. See also 
section 105 and Sec. 1.105-4 of this chapter (Income Tax Regulations).
    (9) Value of meals and lodging. The value of any meals or lodging 
furnished to an employee by his employer is not subject to withholding 
if the value of the meals or lodging is excludable from the gross income 
of the employee. See Sec. 1.119-1 of this chapter (Income Tax 
Regulations).
    (10) Facilities or privileges. Ordinarily, facilities or privileges 
(such as entertainment, medical services, or so-called ``courtesy'' 
discounts on purchases), furnished or offered by an employer to his 
employees generally, are not considered as wages subject to withholding 
if such facilities or privileges are of relatively small value and are 
offered or furnished by the employer merely as a means of promoting the 
health, good will, contentment, or efficiency of his employees.
    (11) Tips or gratuities. Tips or gratuities paid, prior to January 
1, 1966, directly to an employee by a customer of an employer, and not 
accounted for by the employee to the employer are not subject to 
withholding. For provisions relating to the treatment of tips received 
by an employee after December 31, 1965, as wages, see Secs. 31.3401(f)-1 
and 31.3402(k)-1.
    (12) Remuneration for services performed by permanent resident of 
Virgin Islands--(i) Exemption from withholding. No tax shall be withheld 
for the United States under chapter 24 from a payment of wages by an 
employer, including the United States or any agency thereof, to an 
employee if at the time of payment it is reasonable to believe that the 
employee will be required to satisfy his income tax obligations with 
respect to such wages under section 28(a) of the Revised Organic Act of 
the Virgin Islands (68 Stat. 508). That section provides that all 
persons whose permanent residence is in the Virgin Islands ``shall 
satisfy their income tax obligations under applicable taxing statutes of 
the United States by paying their tax on income derived from all sources 
both within and outside the Virgin Islands into the treasury of the 
Virgin Islands''.
    (ii) Claiming exemption. If the employee furnishes to the employer a 
statement in duplicate that he expects to satisfy his income tax 
obligations under section 28(a) of the Revised Organic Act of the Virgin 
Islands with respect to all wages subsequently to be paid to him by the 
employer during the taxable year to which the statement relates, the 
employer may, in the absence of information to the contrary, rely on 
such statement as establishing reasonable belief that the employee will 
so satisfy his income tax obligations. The employee's statement shall 
identify the taxable year to which it relates, and both the original and 
the duplicate copy thereof shall be signed and dated by the employee.

[[Page 192]]

    (iii) Disposition of statement. The original of the statement shall 
be retained by the employer. The duplicate copy of the statement shall 
be sent by the employer to the Director of International Operations, 
Washington, D.C. 20225, on or before the last day of the calendar year 
in which the employer receives the statement from the employee.
    (iv) Applicability of subparagraph. This subparagraph has no 
application with respect to any payment of remuneration which is not 
subject to withholding by reason of any other provision of the 
regulations in this subpart.
    (13) Federal employees resident in Puerto Rico. Except as provided 
in paragraph (d) of Sec. 31.3401(a)(6)-1, the term ``wages'' includes 
remuneration for services performed by a nonresident alien individual 
who is a resident of Puerto Rico if such services are performed as an 
employee of the United States or any agency thereof. The place where the 
services are performed is immaterial for purposes of this subparagraph.
    (14) Supplemental unemployment compensation benefits. (i) 
Supplemental unemployment compensation benefits paid to an individual 
after December 31, 1970, shall be treated (for purposes of the 
provisions of Subparts E, F, and G of this part which relate to 
withholding of income tax) as if they were wages, to the extent such 
benefits are includible in the gross income of such individual.
    (ii) For purposes of this subparagraph, the term ``supplemental 
unemployment compensation benefits'' means amounts which are paid to an 
employee, pursuant to a plan to which the employer is a party, because 
of the employee's involuntary separation from the employment of the 
employer, whether or not such separation is temporary, but only when 
such separation is one resulting directly from a reduction in force, the 
discontinuance of a plant or operation, or other similar conditions.
    (iii) For the meanings of the terms ``involuntary separation from 
the employment of the employer'' and ``other similar conditions'', see 
subparagraphs (3) and (4) of Sec. 1.501(c)(17)-1(b) of this chapter 
(Income Tax Regulations).
    (iv) As used in this subparagraph, the term ``employee'' means an 
employee within the meaning of paragraph (a) of Sec. 31.3401(c)-1, the 
term ``employer'' means an employer within the meaning of paragraph (a) 
of Sec. 31.3401(d)-1, and the term ``employment'' means employment as 
defined under the usual common law rules.
    (v) References in this chapter to wages as defined in section 
3401(a) shall be deemed to refer also to supplemental unemployment 
compensation benefits which are treated under this subparagraph as if 
they were wages.
    (c) Geographical definitions. For definition of the term ``United 
States'' and for other geographical definitions relating to the 
Continental Shelf see section 638 and Sec. 1.638-1 of this chapter.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6654, 28 FR 
5251, May 28, 1963; T.D. 6908, 31 FR 16775, Dec. 31, 1966; T.D. 7001, 34 
FR 1000, Jan. 23, 1969; T.D. 7068, 35 FR 17328, Nov. 11, 1970; T.D. 
7277, 38 FR 12742, May 15, 1973; T.D. 7493, 42 FR 33728, July 1, 1977; 
T.D. 7670, 45 FR 6932, Jan. 31, 1980; T.D. 7888, 48 FR 17587, Apr. 25, 
1983; T.D. 8276, 54 FR 51028, Dec. 12, 1989; T.D. 8324, 55 FR 51697, 
Dec. 17, 1990]



Sec. 31.3401(a)-1T  Question and answer relating to the definition of wages in section 3401(a) (Temporary).

    The following question and answer relates to the definition of wages 
in section 3401(a) of the Internal Revenue Code of 1954, as amended by 
section 531(d)(4) of the Tax Reform Act of 1984 (98 Stat. 886):
    Q-1: Are fringe benefits included in the definition of ``wages'' 
under section 3401(a)?
    A-1: Yes, unless specifically excluded from the definition of 
``wages'' pursuant to section 3401(a) (1) through (20). For example, a 
fringe benefit provided to or on behalf of an employee is excluded from 
the definition of ``wages'' 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 117 or 132.

[T.D. 8004, 50 FR 756, Jan. 7, 1985]



Sec. 31.3401(a)-2  Exclusions from wages.

    (a) In general. (1) The term ``wages'' does not include any 
remuneration for

[[Page 193]]

services performed by an employee for his employer which is specifically 
excepted from wages under section 3401(a).
    (2) The exception attaches to the remuneration for services 
performed by an employee and not to the employee as an individual; that 
is, the exception applies only to the remuneration in an excepted 
category.

    Example. A is an individual who is employed part time by B to 
perform domestic service in his home (see Sec. 31.3401(a)(3)-1). A is 
also employed by C part time to perform services as a clerk in a 
department store owned by him. While no withholding is required with 
respect to A's remuneration for services performed in the employ of B 
(the remuneration being excluded from wages), the exception does not 
embrace the remuneration for services performed by A in the employ of C 
and withholding is required with respect to the wages for such services.

    (3) For provisions relating to the circumstances under which 
remuneration which is excepted is nevertheless deemed to be wages, and 
relating to the circumstances under which remuneration which is not 
excepted is nevertheless deemed not to be wages, see Sec. 31.3402(e)-1.
    (4) For provisions relating to payments with respect to which a 
voluntary withholding agreement is in effect, which are not defined as 
wages in section 3401(a) but which are nevertheless deemed to be wages, 
see Secs. 31.3401(a)-3 and 31.3402(p)-1.
    (b) Fees paid a public official. (1) Authorized fees paid to public 
officials such as notaries public, clerks of courts, sheriffs, etc., for 
services rendered in the performance of their official duties are 
excepted from wages and hence are not subject to withholding. However, 
salaries paid such officials by the Government, or by a Government 
agency or instrumentality, are subject to withholding.
    (2) Amounts paid to precinct workers for services performed at 
election booths in State, county, and municipal elections and fees paid 
to jurors and witnesses are in the nature of fees paid to public 
officials and therefore are not subject to withholding.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6654, 28 FR 
5251, May 28, 1963; T.D. 7096, 36 FR 5216, Mar. 18, 1971]



Sec. 31.3401(a)-3  Amounts deemed wages under voluntary withholding agreements.

    (a) In general. Notwithstanding the exceptions to the definition of 
wages specified in section 3401(a) and the regulations thereunder, the 
term ``wages'' includes the amounts described in paragraph (b)(1) of 
this section with respect to which there is a voluntary withholding 
agreement in effect under section 3402(p). References in this chapter to 
the definition of wages contained in section 3401(a) shall be deemed to 
refer also to this section (Sec. 31.3401(a)-3).
    (b) Remuneration for services. (1) Except as provided in 
subparagraph (2) of this paragraph, the amounts referred to in paragraph 
(a) of this section include any remuneration for services performed by 
an employee for an employer which, without regard to this section, does 
not constitute wages under section 3401(a). For example, remuneration 
for services performed by an agricultural worker or a domestic worker in 
a private home (amounts which are specifically excluded from the 
definition of wages by section 3401(a) (2) and (3), respectively) are 
amounts with respect to which a voluntary withholding agreement may be 
entered into under section 3402(p). See Secs. 31.3401(c)-1 and 
31.3401(d)-1 for the definitions of ``employee'' and ``employer''.
    (2) For purposes of this paragraph, remuneration for services shall 
not include amounts not subject to withholding under Sec. 31.3401(a)-
1(b)(12) (relating to remuneration for services performed by a permanent 
resident of the Virgin Islands), Sec. 31.3401(a)-2(b) (relating to fees 
paid to a public official), section 3401(a)(5) (relating to remuneration 
for services for foreign government or international organization), 
section 3401(a)(8)(B) (relating to remuneration for services performed 
in a possession of the United States (other than Puerto Rico) by 
citizens of the United States), section 3401(a)(8)(C) (relating to 
remuneration for services performed in Puerto Rico by citizens of the 
United States), section 3401(a)(11) (relating to remuneration other than 
in cash for service not in the course of employer's trade or business), 
section 3401(a)(12) (relating to payments from

[[Page 194]]

or to certain tax-exempt trusts, or under or to certain annuity plans or 
bond purchase plans), section 3401(a)(14) (relating to group-term life 
insurance), section 3401(a)(15) (relating to moving expenses), or 
section 3401(a)(16)(A) (relating to tips paid in any medium other than 
cash).

[T.D. 7096, 36 FR 5216, Mar. 18, 1971]



Sec. 31.3401(a)-4  Reimbursements and other expense allowance amounts.

    (a) When excluded from wages. If a reimbursement or other expense 
allowance arrangement meets the requirements of section 62(c) of the 
Code and Sec. 1.62-2 and the expenses are substantiated within a 
reasonable period of time, payments made under the arrangement that do 
not exceed the substantiated expenses are treated as paid under an 
accountable plan and are not wages. In addition, if both wages and the 
reimbursement or other expense allowance are combined in a single 
payment, the reimbursement or other expense allowance must be identified 
either by making a separate payment or by specifically identifying the 
amount of the reimbursement or other expense allowance.
    (b) When included in wages--(1) Accountable plans--(i) General rule. 
Except as provided in paragraph (b)(1)(ii) of this section, if a 
reimbursement or other expense allowance arrangement satisfies the 
requirements of section 62(c) and Sec. 1.62-2, but the expenses are not 
substantiated within a reasonable period of time or amounts in excess of 
the substantiated expenses are not returned within a reasonable period 
of time, the amount paid under the arrangement in excess of the 
substantiated expenses is treated as paid under a nonaccountable plan, 
is included in wages, and is subject to withholding and payment of 
employment taxes no later than the first payroll period following the 
end of the reasonable period.
    (ii) Per diem or mileage allowances. If a reimbursement or other 
expense allowance arrangement providing a per diem or mileage allowance 
satisfies the requirements of section 62(c) and Sec. 1.62-2, but the 
allowance is paid at a rate for each day or mile of travel that exceeds 
the amount of the employee's expenses deemed substantiated for a day or 
mile of travel, the excess portion is treated as paid under a 
nonaccountable plan and is included in wages. In the case of a per diem 
or mileage allowance paid as a reimbursement, the excess portion is 
subject to withholding and payment of employment taxes when paid. In the 
case of a per diem or mileage allowance paid as an advance, the excess 
portion is subject to withholding and payment of employment taxes no 
later than the first payroll period following the payroll period in 
which the expenses with respect to which the advance was paid (i.e., the 
days or miles of travel) are substantiated. The Commissioner may, in his 
discretion, prescribe special rules in pronouncements of general 
applicability regarding the timing of withholding and payment of 
employment taxes on per diem and mileage allowances.
    (2) Nonaccountable plans. If a reimbursement or other expense 
allowance arrangement does not satisfy the requirements of section 62(c) 
and Sec. 1.62-2 (e.g., the arrangement does not require expenses to be 
substantiated or require amounts in excess of the substantiated expenses 
to be returned), all amounts paid under the arrangement are treated as 
paid under a nonaccountable plan, are included in wages, and are subject 
to withholding and payment of employment taxes when paid.
    (c) Withholding rate. Employers may add any payments made under 
reimbursement or other expense allowance arrangements that are subject 
to income tax withholding to the employee's regular wages for a payroll 
period and compute withholding taxes on the total. Alternatively, the 
employer may withhold income tax from the reimbursement or other expense 
allowance at the flat 20-percent rate applicable to supplemental wages, 
provided the employer withholds income tax from the employee's regular 
wages and provided the reimbursement or allowance is paid separately (or 
separately identified if wages and reimbursement amounts are combined in 
a single payment). See Sec. 31.3401 (g)-1 regarding supplemental wage 
payments.
    (d) Effective dates. This section generally applies to payments made 
under

[[Page 195]]

reimbursement or other expense allowance arrangements received by an 
employee on or after July 1, 1990, with respect to expenses paid or 
incurred on or after July 1, 1990. Paragraph (b)(1)(ii) of this section 
applies to payments made under reimbursement or other expense allowance 
arrangements received by an employee on or after January 1, 1991, with 
respect to expenses paid or incurred on or after January 1, 1991.

[T.D. 8324, 55 FR 51698, Dec. 17, 1990]



Sec. 31.3401(a)(1)-1  Remuneration of members of the Armed Forces of the United States for active service in combat zone or while hospitalized as a result of 
          such service.

    Remuneration paid for active service as a member of the Armed Forces 
of the United States performed in a month during any part of which such 
member served in a combat zone (as determined under section 112) or is 
hospitalized at any place as a result of wounds, disease, or injury 
incurred while serving in such a combat zone is excepted from wages and 
is, therefore, not subject to withholding. The exception with respect to 
hospitalization is applicable, however, only if during all of such month 
there are combatant activities in some combat zone (as determined under 
section 112). See Sec. 1.112-1 of this chapter (Income Tax Regulations).



Sec. 31.3401(a)(2)-1  Agricultural labor.

    The term ``wages'' does not include remuneration for services which 
constitute agricultural labor as defined in section 3121(g). For 
regulations relating to the definition of the term ``agricultural 
labor'', see Sec. 31.3121(g)-1.



Sec. 31.3401(a)(3)-1  Remuneration for domestic service.

    (a) In a private home. (1) Remuneration paid for services of a 
household nature performed by an employee in or about a private home of 
the person by whom he is employed is excepted from wages and hence is 
not subject to withholding. A private home is a fixed place of abode of 
an individual or family. A separate and distinct dwelling unit 
maintained by an individual in an apartment house, hotel, or other 
similar establishment may constitute a private home. If a dwelling house 
is used primarily as a boarding or lodging house for the purpose of 
supplying board or lodging to the public as a business enterprise, it is 
not a private home, and the remuneration paid for services performed 
therein is not within the exception.
    (2) In general, services of a household nature in or about a private 
home include services performed by cooks, waiters, butlers, 
housekeepers, governesses, maids, valets, baby sitters, janitors, 
laundresses, furnacemen, caretakers, handymen, gardeners, footmen, 
grooms, and chauffeurs of automobiles for family use.
    (b) In a local college club or local chapter of a college fraternity 
or sorority. (1) Remuneration paid for services of a household nature 
performed by an employee in or about the club rooms or house of a local 
college club or of a local chapter of a college fraternity or sorority 
by which he is employed is excepted from wages and hence is not subject 
to withholding. A local college club or local chapter of a college 
fraternity or sorority does not include an alumni club or chapter. If 
the club rooms or house of a local college club or local chapter of a 
college fraternity or sorority is used primarily for the purpose of 
supplying board or lodging to students or the public as a business 
enterprise, the remuneration paid for services performed therein is not 
within the exception.
    (2) In general, services of a household nature in or about the club 
rooms or house of a local college club or local chapter of a college 
fraternity or sorority include services rendered by cooks, waiters, 
butlers, maids, janitors, laundresses, furnacemen, handymen, gardeners, 
housekeepers, and housemothers.
    (c) Remuneration not excepted. Remuneration paid for services not of 
a household nature, such as services performed as a private secretary, 
tutor, or librarian, even though performed in the employer's private 
home or in a local college club or local chapter of a college fraternity 
or sorority, is not within the exception. Remuneration paid for services 
of a household nature is not within the exception if performed in or 
about rooming, or lodging houses,

[[Page 196]]

boarding houses, clubs (except local college clubs), hotels, hospitals, 
eleemosynary institutions, or commercial offices or establishments.



Sec. 31.3401(a)(4)-1  Cash remuneration for service not in the course of employer's trade or business.

    (a) Cash remuneration paid for services not in the course of the 
employer's trade or business performed by an employee for an employer in 
a calendar quarter is excepted from wages and hence is not subject to 
withholding unless--
    (1) The cash remuneration paid for such services performed by the 
employee for the employer in the calendar quarter is $50 or more; and
    (2) Such employee is regularly employed in the calendar quarter by 
such employer to perform such services.

Unless the tests set forth in both paragraphs (a)(1) and (2) of this 
section are met, cash remuneration for service not in the course of the 
employer's trade or business is excluded from wages. (For provisions 
relating to the exclusion from wages of remuneration paid in any medium 
other than cash for services not in the course of the employer's trade 
or business, see Sec. 31.3401(a)(11)-1.)
    (b) The term ``services not in the course of the employer's trade or 
business'' includes services that do not promote or advance the trade or 
business of the employer. As used in this section, the term does not 
include service not in the course of the employer's trade or business 
performed on a farm operated for profit or domestic service in a private 
home, local college club, or local chapter of a college fraternity or 
sorority. Accordingly, this exception does not apply with respect to 
remuneration which is excepted from wages under section 3401(a)(2) or 
section 3401(a)(3) (see Secs. 31.3401(a)(2)-1 and 31.3401(a)(3)-1, 
respectively). Remuneration paid for service performed for a corporation 
does not come within the exception.
    (c) The test relating to cash remuneration of $50 or more is based 
on the remuneration earned during a calendar quarter rather than on the 
remuneration paid in a calendar quarter. However, for purposes of 
determining whether the test is met, it is also required that the 
remuneration be paid, although it is immaterial when the remuneration is 
paid. Furthemore, in determining whether $50 or more has been paid for 
service not in the course of the employer's trade or business, only cash 
remuneration for such service shall be taken into account. The term 
``cash remuneration'' includes checks and other monetary media of 
exchange. Remuneration paid in any other medium, such as lodging, food, 
or other goods or commodities, is disregarded in determining whether the 
cash-remuneration test is met.
    (d) For purposes of this exception, an individual is deemed to be 
regularly employed by an employer during a calendar quarter only if--
    (1) Such individual performs service not in the course of the 
employer's trade or business for such employer for some portion of the 
day on at least 24 days (whether or not consecutive) during such 
calendar quarter; or
    (2) Such individual was regularly employed (as determined under 
paragraph (d)(1) of this section) by such employer in the performance of 
service not in the course of the employer's trade or business during the 
preceding calendar quarter.
    (e) In determining whether an employee has performed service not in 
the course of the employer's trade or business on at least 24 days 
during a calendar quarter, there shall be counted as one day--
    (1) Any day or portion thereof on which the employee actually 
performs such service; and
    (2) Any day or portion thereof on which the employee does not 
perform service of the prescribed character but with respect to which 
cash remuneration is paid or payable to the employee for such service, 
such as a day on which the employee is sick or on vacation.

An employee who on a particular day reports for work and, at the 
direction of his employer, holds himself in readiness to perform service 
not in the course of the employer's trade or business shall be 
considered to be engaged in the actual performance of such service on 
that day. For purposes of this exception, a day is a continuous period

[[Page 197]]

of 24 hours commencing at midnight and ending at midnight.



Sec. 31.3401(a)(5)-1  Remuneration for services for foreign government or international organization.

    (a) Services for foreign government. (1) Remuneration paid for 
services performed as an employee of a foreign government is excepted 
from wages and hence is not subject to withholding. The exception 
includes not only remuneration paid for services performed by 
ambassadors, ministers, and other diplomatic officers and employees but 
also remuneration paid for services performed as a consular or other 
officer or employee of a foreign government or as a nondiplomatic 
representative of such a government. However, the exception does not 
include remuneration for services performed for a corporation created or 
organized in the United States or under the laws of the United States or 
any State (including the District of Columbia or the Territory of Alaska 
or Hawaii) or of Puerto Rico even though such corporation is wholly 
owned by such a government.
    (2) The citizenship or residence of the employee and the place where 
the services are performed are immaterial for purposes of the exception.
    (b) Services for international organization. (1) Subject to the 
provisions of section 1 of the International Organizations Immunities 
Act (22 U.S.C. 288), remuneration paid for services performed within or 
without the United States by an employee for an international 
organization as defined in section 7701(a)(18) is excepted from wages 
and hence is not subject to withholding. The term ``employee'' as used 
in the preceding sentence includes not only an employee who is a citizen 
or resident of the United States but also an employee who is a 
nonresident alien individual. The term ``employee'' also includes an 
officer. An organization designated by the President through appropriate 
Executive order as entitled to enjoy the privileges, exemptions, and 
immunities provided in the International Organizations Immunities Act 
may enjoy the benefits of the exclusion from wages with respect to 
remuneration paid for services performed for such organization prior to 
the date of the issuance of such Executive order, if (i) the Executive 
order does not provide otherwise and (ii) the organization is a public 
international organization in which the United States participates, 
pursuant to a treaty or under the authority of an act of Congress 
authorizing such participation or making an appropriation for such 
participation, at the time such services are performed.
    (2) Section 7701(a)(18) provides as follows:

    Sec. 7701. Definitions. (a) When used in this title, where not 
otherwise distinctly expressed or manifestly incompatible with the 
intent thereof--

                                * * * * *

    (18) International organization. The term ``international 
organization'' means a public international organization entitled to 
enjoy privileges, exemptions, and immunities as an international 
organization under the International Organizations Immunities Act (22 
U.S.C. 288-288f).

    (3) Section 1 of the International Organizations Immunities Act 
provides as follows:

    Section 1. [International Organizations Immunities Act.] For the 
purposes of this title [International Organizations Immunities Act], the 
term ``international organization'' means a public international 
organization in which the United States participates pursuant to any 
treaty or under the authority of any Act of Congress authorizing such 
participation or making an appropriation for such participation, and 
which shall have been designated by the President through appropriate 
Executive order as being entitled to enjoy the privileges, exemptions, 
and immunities herein provided. The President shall be authorized, in 
the light of the functions performed by any such international 
organization, by appropriate Executive order to withhold or withdraw 
from any such organization or its officers or employees any of the 
privileges, exemption, and immunities provided for in this title 
(including the amendments made by this title) or to condition or limit 
the enjoyment by any such organization or its officers or employees of 
any such privilege, exemption, or immunity. The President shall be 
authorized, if in his judgment such action should be justified by reason 
of the abuse by an international organization or its officers and 
employees of the privileges, exemptions, and immunities herein provided 
or for any other reason, at any time to revoke the designation of any 
international organization under this section, whereupon the 
international organization in

[[Page 198]]

question shall cease to be classed as an international organization for 
the purposes of this title.



Sec. 31.3401(a)(6)-1  Remuneration for services of nonresident alien individuals.

    (a) In general. All remuneration paid after December 31, 1966, for 
services performed by a nonresident alien individual, if such 
remuneration otherwise constitutes wages within the meaning of 
Sec. 31.3401(a)-1 and if such remuneration is effectively connected with 
the conduct of a trade or business within the United States, is subject 
to withholding under section 3402 unless excepted from wages under this 
section. In regard to wages paid under this section after February 28, 
1979, the term ``nonresident alien individual'' does not include a 
nonresident alien individual treated as a resident under section 6013 
(g) or (h).
    (b) Remuneration for services performed outside the United States. 
Remuneration paid to a nonresident alien individual (other than a 
resident of Puerto Rico) for services performed outside the United 
States is excepted from wages and hence is not subject to withholding.
    (c) Remuneration for services of residents of Canada or Mexico who 
enter and leave the United States at frequent intervals--(1) 
Transportation service. Remuneration paid to a nonresident alien 
individual who is a resident of Canada or Mexico and who, in the 
performance of his duties in transportation service between points in 
the United States and points in such foreign country, enters and leaves 
the United States at frequent intervals, is excepted from wages and 
hence is not subject to withholding. This exception applies to personnel 
engaged in railroad, bus, truck, ferry, steamboat, aircraft, or other 
transportation services and applies whether the employer is a domestic 
or foreign entity. Thus, the remuneration of a nonresident alien 
individual who is a resident of Canada and an employee of a domestic 
railroad, for services as a member of the crew of a train operating 
between points in Canada and points in the United States, is not subject 
to withholding under section 3402.
    (2) Service on international projects. Remuneration paid to a 
nonresident alien individual who is a resident of Canada or Mexico and 
who, in the performance of his duties in connection with the 
construction, maintenance, or operation of a waterway, viaduct, dam, or 
bridge traversed by, or traversing, the boundary between the United 
States and Canada or the boundary between the United States and Mexico, 
as the case may be, enters and leaves the United States at frequent 
intervals, is excepted from wages and hence is not subject to 
withholding. Thus, the remuneration of a nonresident alien individual 
who is a resident of Canada, for services as an employee in connection 
with the construction, maintenance, or operation of the Saint Lawrence 
Seaway and who, in the performance of such services, enters and leaves 
the United States at frequent intervals, is not subject to withholding 
under section 3402.
    (3) Limitation. The exceptions provided by this paragraph do not 
apply to the remuneration of a resident of Canada or of Mexico who is 
employed wholly within the United States as, for example, where such a 
resident is employed to perform service at a fixed point or points in 
the United States, such as a factory, store, office, or designated area 
or areas within the United States, and who commutes from his home in 
Canada or Mexico, in the pursuit of his employment within the United 
States.
    (4) Certificate required. In order for an exception provided by this 
paragraph to apply for any taxable year, the nonresident alien employee 
must furnish his employer a statement in duplicate for the taxable year 
setting forth the employee's name, address, and taxpayer identifying 
number, and certifying (i) that he is not a citizen or resident of the 
United States, (ii) that he is a resident of Canada or Mexico, as the 
case may be, and (iii) that he expects to meet the requirements of 
paragraph (c)(1) or (2) of this section with respect to remuneration to 
be paid during the taxable year in respect of which the statement is 
filed. The statement shall be dated, shall identify the taxable year to 
which it relates, shall be

[[Page 199]]

signed by the employee, and shall contain, or be verified by, a written 
declaration that it is made under the penalties of perjury. No 
particular form is prescribed for this statement. The duplicate copy of 
each statement filed during any calendar year pursuant to this paragraph 
shall be forwarded by the employer with, and attached to, the Form 1042S 
required by paragraph (c) of Sec. 1.1461-2 with respect to such 
remuneration for such calendar year.
    (d) Remuneration for services performed by residents of Puerto Rico. 
(1) Remuneration paid for services performed in Puerto Rico by a 
nonresident alien individual who is a resident of Puerto Rico for an 
employer (other than the United States or any agency thereof) is 
excepted from wages and hence is not subject to withholding.
    (2) Remuneration paid for services performed outside the United 
States but not in Puerto Rico by a nonresident alien individual who is a 
resident of Puerto Rico for an employer (other than the United States or 
any agency thereof) is excepted from wages and hence is not subject to 
withholding if such individual does not expect to be a resident of 
Puerto Rico during the entire taxable year. In order for the exception 
provided by this subparagraph to apply for any taxable year, the 
nonresident alien employee must furnish his employer a statement for the 
taxable year setting forth the employee's name and address and 
certifying (i) that he is not a citizen or resident of the United States 
and (ii) that he is a resident of Puerto Rico but does not expect to be 
a resident of Puerto Rico during the entire taxable year. The statement 
shall be dated, shall identify the taxable year to which it relates, 
shall be signed by the employee, and shall contain, or be verified by, a 
written declaration that it is made under the penalties of perjury. No 
particular form is prescribed for this statement.
    (3) Remuneration paid for services performed outside the United 
States by a nonresident alien individual who is a resident of Puerto 
Rico as an employee of the United States or any agency thereof is 
excepted from wages and hence is not subject to withholding if such 
individual does not expect to be a resident of Puerto Rico during the 
entire taxable year. In order for the exception provided by this 
subparagraph to apply for any taxable year, the nonresident alien 
employee must furnish his employer a statement for the taxable year 
setting forth the employee's name and address and certifying (i) that he 
is not a citizen or resident of the United States and (ii) that he is a 
resident of Puerto Rico but does not expect to be a resident of Puerto 
Rico during the entire taxable year. This statement shall be dated, 
shall identify the taxable year to which it relates, shall be signed by 
the employee, and shall contain, or be verified by, a written 
declaration that it is made under the penalties of perjury. No 
particular form is prescribed for this statement.
    (e) Exemption from income tax for remuneration paid for services 
performed before January 1, 2001. Remuneration paid for services 
performed within the United States by a nonresident alien individual 
before January 1, 2001, is excepted from wages and hence is not subject 
to withholding if such remuneration is, or will be, exempt from income 
tax imposed by chapter 1 of the Internal Revenue Code by reason of a 
provision of the Internal Revenue Code or an income tax convention to 
which the United States is a party. In order for the exception provided 
by this paragraph to apply for any taxable year, the nonresident alien 
employee must furnish his employer a statement in duplicate for the 
taxable year setting forth the employee's name, address, and taxpayer 
identifying number, and certifying (1) that he is not a citizen or 
resident of the United States, (2) that the remuneration to be paid to 
him during the taxable year is, or will be, exempt from the tax imposed 
by chapter 1 of the Code, and (3) the reason why such remuneration is so 
exempt from tax. If the remuneration is claimed to be exempt from tax by 
reason of a provision of an income tax convention to which the United 
States is a party, the statement shall also indicate the provision and 
tax convention under which the exemption is claimed, the country of 
which the employee is a resident, and sufficient facts to justify the 
claim to exemption. The statement shall be dated, shall identify the 
taxable year for which it is

[[Page 200]]

to apply and the remuneration to which it relates, shall be signed by 
the employee, and shall contain, or be verified by, a written 
declaration that it is made under the penalties of perjury. No 
particular form is prescribed for this statement. The duplicate copy of 
each statement filed during any calendar year pursuant to this paragraph 
shall be forwarded by the employer with, and attached to, the Form 1042S 
required by paragraph (c) of Sec. 1.1461-2 with respect to such 
remuneration for such calendar year.
    (f) Exemption from income tax for remuneration paid for services 
performed after December 31, 2000. Remuneration paid for services 
performed within the United States by a nonresident alien individual 
after December 31, 2000, is excepted from wages and hence is not subject 
to withholding if such remuneration is, or will be, exempt from the 
income tax imposed by chapter 1 of the Internal Revenue Code by reason 
of a provision of the Internal Revenue Code or an income tax convention 
to which the United States is a party. An employer may rely on a claim 
that the employee is entitled to an exemption from tax if it complies 
with the requirements of Sec. 1.1441-1(e)(1)(ii) of this chapter (for a 
claim based on a provision of the Internal Revenue Code) or Sec. 1.1441-
4(b)(2) of this chapter (for a claim based on an income tax convention).

[T.D. 6908, 31 FR 16775, Dec. 31, 1966, as amended by T.D. 7670, 45 FR 
6932, Jan. 31, 1980; T.D. 7977, 49 FR 36836, Sept. 20, 1984; T.D. 8734, 
62 FR 53493, Oct. 14, 1997; T.D. 8804, 63 FR 72189, Dec. 31, 1998; T.D. 
8856, 64 FR 73412, Dec. 30, 1999]

    Effective Date Note: By T.D. 8734, 62 FR 53493, Oct. 14, 1997, 
Sec. 31.3401(a)(6)-1 was amended by revising the section heading; 
revising the paragraph heading and first sentence of paragraph (e); 
adding paragraph (f); and removing the authority citation at the end of 
the section, effective Jan. 1, 1999. By T.D. 8804, 63 FR 72183, Dec. 31, 
1998, the effective date was delayed until Jan. 1, 2000, and paragraph 
(e) heading and first sentence were amended by removing ``January 1, 
1999'' and adding ``January 1, 2000'', and in paragraph (f) heading and 
first sentence, by removing ``December 31, 1998'' and adding ``December 
31, 1999'', effective Jan. 1, 2000. By T.D. 8856, 64 FR 73408, Dec. 30, 
1999, the effective date was delayed until Jan. 1, 2001, and paragraph 
(e) heading and first sentence were amended by removing ``January 1, 
2000'' and adding ``January 1, 2001'', and in paragraph (f) heading and 
first sentence, by removing ``December 31, 1999'' and adding ``December 
31, 2000'', effective Jan. 1, 2001. For the convenience of the user, the 
superseded text is set forth as follows:

Sec. 31.3401(a)(6)-1  Remuneration for services of nonresident alien 
          individuals paid after December 31, 1966.

                                * * * * *

    (e) Income exempt from income tax. Remuneration paid for services 
performed within the United States by a nonresident alien individual is 
excepted from wages and hence is not subject to withholding if such 
remuneration is, or will be, exempt from the income tax imposed by 
chapter 1 of the Code by reason of a provision of the Internal Revenue 
Code or an income tax convention to which the United States is a party. 
* * *

                                * * * * *


(Secs. 1441(c)(4) (80 Stat. 1553; 26 U.S.C. 1441(c)(4)), 3401(a)(6) (80 
Stat. 1554; 26 U.S.C. 3401(a)(6)), and 7805 (68A Stat. 917; 26 U.S.C. 
7805) of the Internal Revenue Code of 1954)



Sec. 31.3401(a)(6)-1A  Remuneration for services of certain nonresident alien individuals paid before January 1, 1967.

    (a) Except in the case of certain nonresident alien individuals who 
are residents of Canada, Mexico, or Puerto Rico or individuals who are 
temporarily present in the United States as nonimmigrants under 
subparagraph (F) or (J) of section 101(a)(15) of the Immigration and 
Nationality Act (8 U.S.C. 1101), as amended, remuneration for services 
performed by nonresident alien individuals does not constitute wages 
subject to withholding under section 3402. For withholding of income tax 
on remuneration paid for services performed within the United States in 
the case of nonresident alien individuals generally, see Sec. 1.1441-1 
and following of this chapter (Income Tax Regulations).
    (b) Remuneration paid to nonresident aliens who are residents of a 
contiguous country (Canada or Mexico) and who enter and leave the United 
States at frequent intervals is not excepted from wages under section 
3401(a)(6). See, however, Sec. 31.3401(a)(7)-1, relating

[[Page 201]]

to remuneration paid to such nonresident alien individuals when engaged 
in transportation service.
    (c) Remuneration paid to a nonresident alien individual for services 
performed in Puerto Rico for an employer (other than the United States 
or any agency thereof) is excepted from wages and hence is not subject 
to withholding, even though such alien individual is a resident of 
Puerto Rico at the time when such services are performed. Wages paid for 
services performed by a nonresident alien individual who is a resident 
of Puerto Rico are subject to withholding if such services are performed 
as an employee of the United States or any agency thereof. The place of 
performance of such services is immaterial, provided such alien 
individual is a resident of Puerto Rico at the time of performance of 
the services. Wages representing retirement pay for services in the 
Armed Forces of the United States, the Coast and Geodetic Survey, or the 
Public Health Service, or a disability annuity paid under the provisions 
of section 831 of the Foreign Service Act of 1946, as amended (22 U.S.C. 
1081; 60 Stat. 1021), are subject to withholding, under the limitations 
specified in paragraph (b)(1)(ii) of Sec. 31.3401(a)-1, in the case of 
an alien resident of Puerto Rico.
    (d) (1) Remuneration paid after 1961 to a nonresident alien 
individual who is temporarily present in the United States as a 
nonimmigrant under subparagraph (F) or (J) of section 101(a)(15) of the 
Immigration and Nationality Act (8 U.S.C. 1101), as amended, is not 
excepted from wages under section 3401(a)(6) if the remuneration is 
exempt from withholding under section 1441(a) by reason of section 
1441(c)(4)(B) and is not exempt from taxation under section 872(b)(3). 
See Secs. 1.872-2 and 1.1441-4 of this chapter (Income Tax Regulations). 
A nonresident alien individual who is temporarily present in the United 
States as a nonimmigrant under subparagraph (J) includes an alien 
individual admitted to the United States as an ``exchange visitor'' 
under section 201 of the United States Information and Educational 
Exchange Act of 1948 (22 U.S.C. 1446).
    (2) Section 101 of the Immigration and Nationality Act (8 U.S.C. 
1101), as amended, provides in part, as follows:

    Sec. 101. Definitions. [Immigration and Nationality Act (66 Stat. 
166)]
    (a) As used in this chapter--* * *
    (15) The term ``immigrant'' means every alien except an alien who is 
within one of the following classes of nonimmigrant aliens--

                                * * * * *

    (F) (i) An alien having a residence in a foreign country which he 
has no intention of abandoning, who is a bona fide student qualified to 
pursue a full course of study and who seeks to enter the United States 
temporarily and solely for the purpose of pursuing such a course of 
study at an established institution of learning or other recognized 
place of study in the United States, particularly designated by him and 
approved by the Attorney General after consultation with the Office of 
Education of the United States, which institution or place of study 
shall have agreed to report to the Attorney General the termination of 
attendance of each nonimmigrant student, and if any such institution of 
learning or place of study fails to make reports promptly the approval 
shall be withdrawn, and (ii) the alien spouse and minor children of any 
such alien if accompanying him or following to join him;

                                * * * * *

    (J) An alien having a residence in a foreign country which he has no 
intention of abandoning who is a bona fide student, scholar, trainee, 
teacher, professor, research assistant, specialist, or leader in a field 
of specialized knowledge or skill, or other person of similar 
description, who is coming temporarily to the United States as a 
participant in a program designated by the Secretary of State, for the 
purpose of teaching, instructing or lecturing, studying, observing, 
conducting research, consulting, demonstrating special skills, or 
receiving training, and the alien spouse and minor children of any such 
alien if accompanying him or following to join him.

    (e) This section shall not apply with respect to remuneration paid 
after December 31, 1966. For rules with respect to such remuneration see 
Sec. 31.3401(a)(6)-1.

[Sec. 101. Immigration and Nationality Act, as amended by sec. 101, Act 
of June 27, 1952,

[[Page 202]]

66 Stat. 166; sec. 109, Act of Sept. 21, 1961, 75 Stat. 534]


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6654, 28 FR 
5251, May 28, 1963; T.D. 6727, 29 FR 5869, May 5, 1964; T.D. 6908, 31 FR 
16775, Dec. 31, 1966]



Sec. 31.3401(a)(7)-1  Remuneration paid before January 1, 1967, for services performed by nonresident alien individuals who are residents of a contiguous 
          country and who enter and leave the United States at frequent 
          intervals.

    (a) Transportation service. Remuneration paid to nonresident aliens 
who are residents of a contiguous country (Canada or Mexico) and who, in 
the performance of their duties in transportation service between points 
in the United States and points in a contiguous country, enter and leave 
the United States at frequent intervals, is excepted from wages and 
hence is not subject to withholding. This exception applies to personnel 
engaged in railroad, bus, ferry, steamboat, and aircraft services and 
applies whether the employer is a domestic or foreign entity. Thus, the 
remuneration of a nonresident alien individual who is a resident of 
Canada and an employee of a domestic railroad, for services as a member 
of the crew of a train operating between points in Canada and points in 
the United States, is not subject to withholding under section 3402.
    (b) Service on international projects. Remuneration paid to 
nonresident aliens who are residents of a contiguous country (Canada or 
Mexico) and who, in the performance of their duties in connection with 
the construction, maintenance or operation of a waterway, viaduct, dam, 
or bridge traversed by or traversing the boundary between the United 
States and Canada or the boundary between the United States and Mexico, 
as the case may be, enter and leave the United States at frequent 
intervals, is excepted from wages and hence is not subject to 
withholding. Thus, the remuneration of a nonresident alien individual 
who is a resident of Canada, for services as an employee in connection 
with the construction, maintenance, or operation of the Saint Lawrence 
Seaway and who, in the performance of such services, enters and leaves 
the United States at frequent intervals, is not subject to withholding 
under section 3402.
    (c) Limitation on application of section. The exception provided by 
this section has no application to the remuneration of a resident of 
Canada or of Mexico who is employed wholly within the United States as, 
for example, where such a resident is employed to perform service at a 
fixed point or points in the United States, such as a factory, store, 
office, or designated area or areas within the United States, and who 
commutes from his home in Canada or Mexico in the pursuit of his 
employment within the United States.
    (d) Certificate required. In order for the exception to apply, the 
nonresident alien employee must furnish his employer a statement setting 
forth the employee's name and address and certifying (1) that he is not 
a citizen of the United States, (2) that he is a resident of Canada or 
Mexico, as the case may be, and (3) the approximate period of time 
during which he has had such status. Such statement shall be dated, 
shall be signed by the employee, and shall contain, or be verified by, a 
written declaration that it is made under the penalties of perjury. No 
particular form is prescribed for this statement.
    (e) Effective date. This section shall not apply with respect to 
remuneration paid after December 31, 1966. For rules with respect to 
such remuneration see Sec. 31.3401(a)(6)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6908, 31 FR 
16776, Dec. 31, 1966]



Sec. 31.3401(a)(8)(A)-1  Remuneration for services performed outside the United States by citizens of the United States.

    (a) Remuneration excluded from gross income under section 911. (1) 
(i) Remuneration paid for services performed outside the United States 
for an employer (other than the United States or any agency thereof) by 
a citizen of the United States does not constitute wages and hence is 
not subject to withholding, if at the time of payment it is reasonable 
to believe that such remuneration will be excluded from gross income 
under the provisions of section 911. The reasonable belief contemplated 
by the statute may be based upon any

[[Page 203]]

evidence reasonably sufficient to induce such belief, even though such 
evidence may be insufficient upon closer examination by the district 
director or the courts finally to establish that the remuneration is 
excludable from gross income under the provisions of section 911. The 
reasonable belief shall be based upon the application of section 911 and 
the regulations thereunder in Part 1 of this chapter (Income Tax 
Regulations).
    (ii) Remuneration paid by an employer to an employee constitutes 
wages, and hence is subject to withholding only to the extent that the 
remuneration is expected to exceed the aggregate amount which is 
excludable from the employee's gross income under section 911(a). For 
amounts paid after December 31, 1984, the determination of the amount 
subject to withholding shall be made by applying the excludable amount, 
on a pro rata basis, to each payment of remuneration to the employee. 
For this purpose, an employer is not required to ascertain information 
with respect to amounts received by his employee from any other source; 
but, if the employer has such information, he shall take it into account 
in determining whether the earned income of the employee is in excess of 
the applicable limitation. For purposes of section 911(d)(5) and 
Sec. 1.911-2(c), relating to an employee who states to the authorities 
of a foreign country that he is not a resident of that country, the 
employer is not required to ascertain whether such a statement has been 
made; but if an employer knows that such a statement has been made, he 
shall presume that the employee is not a bona fide resident of that 
country, unless the employer also knows that the authorities of the 
foreign country have determined, notwithstanding the statement that the 
employee is a resident of that country. For purposes of section 
911(d)(1) or Sec. 1.911-2(a) relating to the definition of a qualified 
individual, the reasonable belief contemplated by the statute may be 
based on a presumption as set forth in subparagraph (2) or (3) of this 
paragraph. For purposes of sections 911(a)(2) and 911(c)(2) and 
Sec. 1.911-4(b) and (d)(1), relating to the housing cost amount 
exclusion and the definition of housing expenses, the reasonable belief 
contemplated by the statute may be based on the presumption set forth in 
subparagraph (4) of this paragraph.
    (2)(i) The employer may, in the absence of cause for a reasonable 
belief to the contrary, presume that an employee will maintain a tax 
home in a foreign country or countries and be a bona fide resident of a 
foreign country or countries, within the meaning of section 911(d)(1), 
for an uninterrupted period which includes each taxable year of the 
employee, or applicable portion thereof, in respect of which the 
employee properly executes and delivers to the employer a statement that 
the employee meets or will meet the requirement of Sec. 1.911-2(a) 
relating to maintaining a tax home and a bona fide residence in a 
foreign country for the taxable year. This statement must set forth the 
facts alleged as the basis for this determination and contain a 
declaration by the employee that the statement is made under the 
penalties of perjury. Sample forms of acceptable statements may be 
obtained by writing to the Foreign Operations District, Internal Revenue 
Service, Washington, D.C. 20225 (Form IO-673).
    (ii) If the employer was entitled to presume for the two consecutive 
taxable years immediately preceding an employee's current taxable year 
that such employee was a bona fide resident of a foreign country or 
countries for an uninterrupted period which includes such preceding 
taxable years, he may, if such employee is residing in a foreign country 
on the first day of such current taxable year, presume, in the absence 
of cause for a reasonable belief to the contrary, and without obtaining 
from the employee the statement prescribed in subdivision (i) of this 
subparagraph, that the employee will be a bona fide resident of a 
foreign country or countries in such current taxable year.
    (3) The employer may, in the absence of cause for a reasonable 
belief to the contrary, presume that an employee will maintain a tax 
home in a foreign country or countries and be present in a foreign 
country or countries during at least 330 full days during any period of 
twelve consecutive months, within

[[Page 204]]

the meaning of section 911(d)(1), and that such period includes each 
taxable year of the employee, or applicable portion thereof, in respect 
of which the employee properly executes and delivers to the employer a 
statement that the employee meets or will meet the requirements of 
Sec. 1.911-2(a) relating to maintaining a tax home and being physically 
present in a foreign country for the taxable year. This statement must 
set forth the facts alleged as the basis for this determination and 
contain a declaration by the employee that the statement is made under 
the penalties of perjury. Sample forms of acceptable statements may be 
obtained by writing to the Foreign Operations District, Internal Revenue 
Service, Washington, D.C. 20225 (Form IO-673).
    (4) The employer may, in the absence of cause for a reasonable 
belief to the contrary, presume that an employee's housing cost amount 
will be the amount shown on a statement properly executed and delivered 
to the employer. This statement must set forth the employee's estimation 
of the following items: housing expenses (as defined in Sec. 1.911-
4(b)), the housing cost amount exclusion (as defined in Sec. 1.911-
4(d)(1)), and the qualifying period (as defined in Sec. 1.911-2(a)). The 
statement must contain a declaration by the employee that it is made 
under the penalties of perjury. Sample forms of acceptable statements 
may be obtained by writing to the Foreign Operations District, Internal 
Revenue Service, Washington, D.C. 20225 (IO-673). The employer may not 
rely on a statement from an employee if the employer, based on his or 
her knowledge of housing costs in the vicinity of the employee's tax 
home (as defined in Sec. 1.911-2(b)), believes the employee's housing 
expenses are lavish or extravagant under the circumstances.
    (b) Remuneration subject to withholding of income tax under law of a 
foreign country or a possession of the United States. (1) Remuneration 
paid for services performed in a foreign country or in a possession of 
the United States for an employer (other than the United States or any 
agency thereof) by a citizen of the United States does not constitute 
wages and hence is not subject to withholding, if at the time of the 
payment of such remuneration the employer is required by the law of any 
foreign country or of any possession of the United States to withhold 
income tax upon such remuneration. This paragraph, insofar as it relates 
to remuneration paid for services performed in a possession of the 
United States, applies only with respect to remuneration paid on or 
after August 9, 1955.
    (2) Remuneration is not exempt from withholding under this paragraph 
if the employer is not required by the law of a foreign country or of a 
possession of the United States to withhold income tax upon such 
remuneration. Mere agreements between the employer and the employee 
whereby the estimated income tax of a foreign country or of a possession 
of the United States is withheld from the remuneration in anticipation 
of actual liability under the law of such country or possession will not 
suffice.
    (3) The exemption from withholding provided by this paragraph does 
not apply by reason of withholding of income tax pursuant to the law of 
a territory of the United States, of a political subdivision of a 
possession of the United States, or of a political subdivision of a 
foreign state.
    (4) For provisions relating to remuneration for services performed 
by a permanent resident of the Virgin Islands, see paragraph (b)(12) of 
Sec. 31.3401(a)-1.
    (c) Limitation on application of section. This section has no 
application to the remuneration paid to a citizen of the United States 
for services performed outside the United States as an employee of the 
United States or any agency thereof.

(Approved by the Office of Management and Budget under control number 
1545--0067)

(Sec. 911, 95 Stat. 194; 26 U.S.C. 911), sec. 7805 (68A Stat. 917; 26 
U.S.C. 7805) of the Internal Revenue Code of 1954)


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6697, 28 FR 
13745, Dec. 17, 1963; T.D. 8006, 50 FR 2977, Jan. 23, 1985]

[[Page 205]]



Sec. 31.3401(a)(8)(B)-1  Remuneration for services performed in possession of the United States (other than Puerto Rico) by citizen of the United States.

    (a) Remuneration paid for services for an employer (other than the 
United States or any agency thereof) performed by a citizen of the 
United States within a possession of the United States (other than 
Puerto Rico) does not constitute wages and hence is not subject to 
withholding, if it is reasonable to believe that at least 80 percent of 
the remuneration to be paid to the employee by such employer during the 
calendar year will be for such services. The reasonable belief 
contemplated by section 3401(a)(8)(B) may be based upon any evidence 
reasonably sufficient to induce such belief, even though such evidence 
may be insufficient upon closer examination by the district director or 
the courts finally to establish that at least 80 percent of the 
remuneration paid by the employer to the employee during the calendar 
year was for services performed within such a possession of the United 
States.
    (b) This section has no application to remuneration paid to a 
citizen of the United States for services performed in any possession of 
the United States as an employee of the United States or any agency 
thereof.
    (c) For provisions relating to remuneration for services performed 
by a permanent resident of the Virgin Islands, see paragraph (b)(12) of 
Sec. 31.3401(a)-1.



Sec. 31.3401(a)(8)(C)-1  Remuneration for services performed in Puerto Rico by citizen of the United States.

    (a) Remuneration paid for services performed within Puerto Rico for 
an employer (other than the United States or any agency thereof) by a 
citizen of the United States does not constitute wages and hence is not 
subject to withholding, if it is reasonable to believe that during the 
entire calendar year the employee will be a bona fide resident of Puerto 
Rico. The reasonable belief contemplated by section 3401(a)(8)(C) may be 
based upon any evidence reasonably sufficient to induce such belief, 
even though such evidence may be insufficient upon closer examination by 
the district director or the courts finally to establish that the 
employee was a bona fide resident of Puerto Rico for the entire calendar 
year.
    (b) The employer may, in the absence of cause for a reasonable 
belief to the contrary, presume that an employee will be a bona fide 
resident of Puerto Rico during the entire calendar year.
    (1) Unless the employee is known by the employer to have maintained 
his abode at a place outside Puerto Rico at some time during the current 
or the preceding calendar year; or
    (2) In any case where the employee files with the employer a 
statement (containing a declaration under the penalties of perjury that 
such statement is true to the best of the employee's knowledge and 
belief) that such employee has at all times during the current calendar 
year been a bona fide resident of Puerto Rico and that he intends to 
remain a bona fide resident of Puerto Rico during the entire remaining 
portion of such current calendar year.
    (c) This section has no application to remuneration paid to a 
citizen of the United States for services performed in Puerto Rico as an 
employee of the United States or any agency thereof.



Sec. 31.3401(a)(9)-1  Remuneration for services performed by a minister of a church or a member of a religious order.

    (a) In general. Remuneration paid for services 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, is excepted from wages and hence is not 
subject to withholding.
    (b) Service by a minister in the exercise of his ministry. Except as 
provided in paragraph (c)(3) of this section, service performed by a 
minister in the exercise of his ministry includes the ministration of 
sacerdotal functions and the conduct of religious worship, and the 
control, conduct, and maintenance of religious organizations (including 
the religious boards, societies, and other integral agencies of such 
organizations), under the authority of a religious body constituting a 
church or

[[Page 206]]

church denomination. The following rules are applicable in determining 
whether services performed by a minister are performed in the exercise 
of his ministry:
    (1) Whether service performed by a minister constitutes the conduct 
of religious worship or the ministration of sacerdotal functions depends 
on the tenents and practices of the particular religious body 
constituting his church or church denomination.
    (2) Service performed by a minister in the control, conduct, and 
maintenance of a religious organization relates to directing, managing, 
or promoting the activities of such organization. Any religious 
organization is deemed to be under the authority of a religious body 
constituting a church or church denomination if it is organized and 
dedicated to carrying out the tenents and principles of a faith in 
accordance with either the requirements or sanctions governing the 
creation of institutions of the faith. The term ``religious 
organization'' has the same meaning and application as is given to the 
term for income tax purposes.
    (3) (i) If a minister is performing service in the conduct of 
religious worship or the ministration of sacerdotal functions, such 
service is in the exercise of his ministry whether or not it is 
performed for a religious organization.
    (ii) The rule in paragraph (b)(3)(i) of this section may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is engaged to perform service 
as chaplain at N University. M devotes his entire time to performing his 
duties as chaplain which include the conduct of religious worship, 
offering spiritual counsel to the university students, and teaching a 
class in religion. M is performing service in the exercise of his 
ministry.

    (4) (i) If a minister is performing service for an organization 
which is operated as an integral agency of a religious organization 
under the authority of a religious body constituting a church or church 
denomination, all service performed by the minister in the conduct of 
religious worship, in the ministration of sacerdotal functions, or in 
the control, conduct, and maintenance of such organization (see 
paragraph (b)(2) of this section) is in the exercise of his ministry.
    (ii) The rule in paragraph (b)(4)(i) of this section may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is engaged by the N Religious 
Board to serve as director of one of its departments. He performs no 
other service. The N Religious Board is an integral agency of O, a 
religious organization operating under the authority of a religious body 
constituting a church denomination. M is performing service in the 
exercise of his ministry.

    (5) (i) If a minister, pursuant to an assignment or designation by a 
religious body constituting his church, performs service for an 
organization which is neither a religious organization nor operated as 
an integral agency of a religious organization, all service performed by 
him, even though such service may not involve the conduct of religious 
worship or the ministration of sacerdotal functions, is in the exercise 
of his ministry.
    (ii) The rule in subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is assigned by X, the 
religious body constituting his church, to perform advisory service to Y 
Company in connection with the publication of a book dealing with the 
history of M's church denomination. Y is neither a religious 
organization nor operated as an integral agency of a religious 
organization. M performs no other service for X or Y. M is performing 
service in the exercise of his ministry.

    (c) Service by a minister not in the exercise of his ministry. (1) 
Section 3401(a)(9) does not except from wages remuneration for service 
performed by a duly ordained, commissioned, or licensed minister of a 
church which is not in the exercise of his ministry.
    (2) (i) If a minister is performing service for an organization 
which is neither a religious organization nor operated as an integral 
agency of a religious organization and the service is not performed 
pursuant to an assignment or designation by his ecclesiastical 
superiors, then only the service performed by him in the conduct of 
religious worship or the ministration of sacerdotal functions is in the 
exercise

[[Page 207]]

of his ministry. See, however, paragraph (b)(3) of this section.
    (ii) The rule in subdivision (i) of this subparagraph may be 
illustrated by the following example:

    Example. M, a duly ordained minister, is engaged by N University to 
teach history and mathematics. He performs no other service for N 
although from time to time he performs marriages and conducts funerals 
for relatives and friends. N University is neither a religious 
organization nor operated as an integral agency of a religious 
organization. M is not performing the service for N pursuant to an 
assignment or designation by his ecclesiastical superiors. The service 
performed by M for N University is not in the exercise of his ministry. 
However, service performed by M in performing marriages and conducting 
funerals is in the exercise of his ministry.

    (3) Service performed by a duly ordained, commissioned, or licensed 
minister of a church as an employee of the United States, or a State, 
Territory, or possession of the United States, or the District of 
Columbia, or a foreign government, or a political subdivision of any of 
the foregoing, is not considered to be in the exercise of his ministry 
for purposes of the collection of income tax at source on wages, even 
though such service may involve the ministration of sacerdotal functions 
or the conduct of religious worship. Thus, for example, service 
performed by an individual as a chaplain in the Armed Forces of the 
United States is considered to be performed by a commissioned officer in 
his capacity as such, and not by a minister in the exercise of his 
ministry. Similarly, service performed by an employee of a State as a 
chaplain in a State prison is considered to be performed by a civil 
servant of the State and not by a minister in the exercise of his 
ministry.
    (d) Service in the exercise of duties required by a religious order. 
Service performed by a member of a religious order in the exercise of 
duties required by such order includes all duties required of the member 
by the order. The nature or extent of such service is immaterial so long 
as it is a service which he is directed or required to perform by his 
ecclesiastical superiors.



Sec. 31.3401(a)(10)-1  Remuneration for services in delivery or distribution of newspapers, shopping news, or magazines.

    (a) Services of individuals under age 18. Remuneration for services 
performed by an employee under the age of 18 in the delivery or 
distribution of newspapers, or shopping news, not including delivery or 
distribution (as, for example, by a regional distributor) to any point 
for subsequent delivery or distribution, is excepted from wages and 
hence is not subject to withholding. Thus, remuneration for services 
performed by an employee under the age of 18 in making house-to-house 
delivery or sale of newspapers or shopping news, including handbills and 
other similar types of advertising material, is excepted from wages. The 
remuneration is excepted irrespective of the form or method thereof. 
Remuneration for incidental services by the employee who makes the 
house-to-house delivery, such as services in assembling newspapers, is 
considered to be within the exception. The exception continues only 
during the time that the employee is under the age of 18.
    (b) Services of individuals of any age. Remuneration for services 
performed by an employee 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 
remuneration being based on the retention of the excess of such price 
over the amount at which the newspapers or magazines are charged to him, 
is excepted from wages and hence is not subject to withholding. The 
remuneration is excepted whether or not the employee is guaranteed a 
minimum amount or remuneration, or is entitled to be credited with the 
unsold newspapers or magazines turned back. Moreover, the remuneration 
is excepted without regard to the age of the employee. Remuneration for 
services performed other than at the time of sale to the ultimate 
consumer is not within the exception. Thus, remuneration for services of 
a regional distributor which are antecedent to but not immediately part 
of the sale to the ultimate consumer is not within the exception. 
However, remuneration for

[[Page 208]]

incidental services by the employee who makes the sale to the ultimate 
consumer, such as services in assembling newspapers or in taking 
newspapers or magazines to the place of sale, is considered to be within 
the exception.



Sec. 31.3401(a)(11)-1  Remuneration other than in cash for service not in the course of employer's trade or business.

    (a) Remuneration paid in any medium other than cash for services not 
in the course of the employer's trade or business is excepted from wages 
and hence is not subject to withholding. Cash remuneration includes 
checks and other monetary media of exchange. Remuneration paid in any 
medium other than cash, such as lodging, food, or other goods or 
commodities, for services not in the course of the employer's trade or 
business does not constitute wages. Remuneration paid in any medium 
other than cash for other types of services does not come within this 
exception from wages. For provisions relating to cash remuneration for 
service not in the course of employer's trade or business, see 
Sec. 31.3401(a)(4)-1.
    (b) As used in this section, the term ``services not in the course 
of the employer's trade or business'' has the same meaning as when used 
in Sec. 31.3401(a)(4)-1.



Sec. 31.3401(a)(12)-1  Payments from or to certain tax-exempt trusts, or under or to certain annuity plans or bond purchase plans, or to individual retirement 
          plans.

    (a) Payments from or to certain taxexempt trusts. The term ``wages'' 
does not include any payment made--
    (1) By an employer, on behalf of an employee or his beneficiary, 
into a trust, or
    (2) To, or on behalf of, an employee or his beneficiary from a 
trust,

if at the time of such payment the trust is exempt from tax under 
section 501(a) as an organization described in section 401(a). A payment 
made to an employee of such a trust for services rendered as an employee 
of the trust and not as a beneficiary thereof is not within this 
exclusion from wages. Also, since supplemental unemployment compensation 
benefits are treated under paragraph (b) (14) of Sec. 31.3401 (a)-1 as 
if they were wages for purposes of this chapter, this section does not 
apply to such benefits.
    (b) Payments under or to certain annuity plans. (1) The term 
``wages'' does not include any payment made after December 31, 1962--
    (i) By an employer, on behalf of an employee or his beneficiary, 
into an annuity plan, or
    (ii) To, or on behalf of, an employee or his beneficiary under an 
annuity plan, if at the time of such payment the annuity plan is a plan 
described in section 403(a).
    (2) The term ``wages'' does not include any payment made before 
January 1, 1963--
    (i) By an employer, on behalf of an employee or his beneficiary, 
into an annuity plan, or
    (ii) To, or on behalf of, an employee or his beneficiary under an 
annuity plan, if at the time of such payment the annuity plan meets the 
requirements of section 401 (a) (3), (4), (5), and (6).
    (c) Payments under or to certain bond purchase plans. The term 
``wages'' does not include any payment made after December 31, 1962--
    (1) By an employer, on behalf of an employee or his beneficiary, 
into a bond purchase plan, or
    (2) To, or on behalf of, an employee or his beneficiary under a bond 
purchase plan,

if at the time of such payment the plan is a qualified bond purchase 
plan described in section 405(a).
    (d) Payment to individual retirement plans. (1) The term ``wages'' 
does not include any payment to an individual retirement plan described 
in section 7701(a)(37) by an employer after December 31, 1974, on behalf 
of an employee, if, at the time of such payment, it is reasonable for 
the employer to believe that the employee will be entitled to a 
deduction for such payment under section 219(a).
    (2) The term ``wages'' does not include any payment to an individual 
retirement plan described in section 7701(a)(37) by an employer after 
December 31, 1976, on behalf of an employee, if, at the time of such 
payment, it is reasonable for the employer to believe

[[Page 209]]

that the employee on whose behalf the payment is made will be entitled 
to a deduction for such payment under section 220(a).
    (3) The term ``wages'' does not include any payment to a simplified 
employee pension arrangement described in section 408(k) by an employer 
after December 31, 1978, on behalf of an employee, if, at the time of 
such payment, it is reasonable for the employer to believe that the 
employee on whose behalf the payment is made will be entitled to a 
deduction for such payment under section 219(a).

[T.D. 6654, 28 FR 5252, May 28, 1963, as amended by T.D. 7068, 35 FR 
17329, Nov. 11, 1970; T.D. 7730, 45 FR 72652, Nov. 3, 1980]



Sec. 31.3401(a)(13)-1  Remuneration for services performed by Peace Corps volunteers.

    (a) Remuneration paid after September 22, 1961, for services 
performed as a volunteer or volunteer leader within the meaning of the 
Peace Corps Act (22 U.S.C. 2501) is excepted from wages, and hence is 
not subject to withholding, unless the remuneration is paid pursuant to 
section 5(c) or section 6(1) of the Peace Corps Act.
    (b) Sections 5 and 6 of the Peace Corps Act (22 U.S.C. 2504, 2505) 
provide, in part, as follows:

    Sec. 5 Peace Corps Volunteers [Peace Corps Act (75 Stat. 613); as 
amended by sec. 2(b), Act of December 13, 1963 (P.L. 88-200, 77 Stat. 
359); sec. 2(a), Act of August 24, 1965, (P.L. 89-134, 79 Stat. 549); 
sec. 3(a), Act of July 24, 1970 (P.L. 91-352, 84 Stat. 464)]

                                * * * * *

    (c) Readjustment allowances. Volunteers shall be entitled to receive 
a readjustment allowance at a rate not to exceed $75 for each month of 
satisfactory service as determined by the President; except that, in the 
cases of volunteers who have one or more minor children at the time of 
their entering a period of pre-enrollment training, one parent shall be 
entitled to receive a readjustment allowance at a rate not to exceed 
$125 for each month of satisfactory service as determined by the 
President. The readjustment allowance of each volunteer shall be payable 
on his return to the United States: Provided, however, That, under such 
circumstances as the President may determine, the accrued readjustment 
allowance, or any part thereof, may be paid to the volunteer, members of 
his family or others, during the period of his service, or prior to his 
return to the United States. In the event of the volunteer's death 
during the period of his service, the amount of any unpaid readjustment 
allowance shall be paid in accordance with the provisions of section 
5582(b) of Title 5. For purposes of the Internal Revenue Code of 1954, a 
volunteer shall be deemed to be paid and to receive each amount of a 
readjustment allowance to which he is entitled after December 31, 1964, 
when such amount is transferred from funds made available under this 
chapter to the fund from which such readjustment allowance is payable.

                                * * * * *

    Sec. 6 Peace Corps Volunteer Leaders; number; applicability of 
chapter; benefits [Peace Corps Act (75 Stat. 615), as amended by sec. 3, 
Act of December 13, 1963 (P.L. 88-200, 77 Stat. 360)] The President may 
enroll in the Peace Corps qualified citizens or nationals of the United 
States whose services are required for supervisory or other special 
duties or responsibilities in connection with programs under this 
chapter (referred to in this Act as ``volunteer leaders''). The ratio of 
the total number of volunteer leaders to the total number of volunteers 
in service at any one time shall not exceed one to twenty-five. Except 
as otherwise provided in this Act, all of the provisions of this Act 
applicable to volunteers shall be applicable to volunteer leaders, and 
the term ``volunteers'' shall include ``volunteer leaders'': Provided, 
however, That--
    (1) Volunteer leaders shall be entitled to receive a readjustment 
allowance at a rate not to exceed $125 for each month of satisfactory 
service as determined by the President;


[T.D. 6654, 28 FR 5252, May 28, 1963, as amended by T.D. 7493, 42 FR 
33729, July 1, 1977]



Sec. 31.3401(a)(14)-1  Group-term life insurance.

    (a) The cost of group-term life insurance on the life of an employee 
is excepted from wages, and hence is not subject to withholding. For 
provisions relating generally to such remuneration, and for reporting 
requirements with respect to such remuneration, see sections 79 and 
6052, respectively, and the regulations thereunder in Part 1 of this 
chapter (Income Tax Regulations).
    (b) The cost of group-term life insurance on the life of an 
employee's spouse or children is not subject to withholding if it is 
excludable from the employee's gross income because it is merely 
incidental. See paragraph

[[Page 210]]

(d)(2)(ii)(b) of Sec. 1.61-2 in Part 1 of this chapter (Income Tax 
Regulations).

[T.D. 7493, 42 FR 33730, July 1, 1977]



Sec. 31.3401(a)(15)-1  Moving expenses.

    (a) An amount paid to or on behalf of an employee after March 4, 
1964, either as an advance or a reimbusement, specifically for moving 
expenses incurred or expected to be incurred is excepted from wages, and 
hence is not subject to withholding, if (and to the extent that) at the 
time of payment it is reasonable to believe that a corresponding 
deduction is or will be allowable to the employee under section 217. The 
reasonable belief contemplated by the statute may be based upon any 
evidence reasonably sufficient to induce such belief, even though such 
evidence may be insufficient upon closer examination by the district 
director or the courts finally to establish that a deduction is 
allowable under section 217. The reasonable belief shall be based upon 
the application of section 217 and the regulations thereunder in Part 1 
of this chapter (Income Tax Regulations). When used in this section, the 
term ``moving expenses'' has the same meaning as when used in section 
217. See Sec. 1.6041-2(a) in Part 1 of this chapter (Income Tax 
Regulations), relating to return of information as to payments to 
employees, and Sec. 31.6051-1(e), relating to the reporting of 
reimbursements of or payments of certain moving expenses.
    (b) Except as otherwise provided in paragraph (a) of this section, 
or in a numbered paragraph of section 3401(a), amounts paid to or on 
behalf of an employee for moving expenses constitute wages subject to 
withholding.

[T.D. 7493, 42 FR 33730, July 1, 1977]



Sec. 31.3401(a)(16)-1  Tips.

    Tips paid to an employee are excepted from wages and hence not 
subject to withholding if--
    (a) The tips are paid in any medium other than cash, or
    (b) The cash tips received by an employee in any calendar month in 
the course of his employment by an employer are less than $20.

However, if the cash tips received by an employee in a calendar month in 
the course of his employment by an employer amount to $20 or more, none 
of the cash tips received by the employee in such calendar month are 
excepted from wages under this section. The cash tips to which this 
section applies include checks and other monetary media of exchange. 
Tips received by an employee in any medium other than cash, such as 
passes, tickets, or other goods or commodities do not constitute wages. 
If an employee in any calendar month performs services for two or more 
employers and receives tips in the course of his employment by each 
employer, the $20 test is to be applied separately with respect to the 
cash tips received by the employee in respect of his services for each 
employer and not to the total cash tips received by the employee during 
the month. As to the time tips are deemed paid, see Sec. 31.3401(f)-1. 
For provisions relating to the treatment of tips received by an employee 
prior to 1966, see paragraph (b)(11) of Sec. 31.3401(a)-1.

[T.D. 7001, 34 FR 1001, Jan. 23, 1969]



Sec. 31.3401(a)(17)-1  Remuneration for services performed on a boat engaged in catching fish.

    (a) Remuneration for services performed on or after December 31, 
1954, by an individual on a boat engaged in catching fish or other forms 
of aquatic animal life (hereinafter ``fish'') is excepted from wages and 
hence is not subject to withholding if--
    (1) The individual receives a share of the boat's (or boats' for a 
fishing operation involved more than one boat) catch of fish or a share 
of the proceeds from the sale of the catch,
    (2) The amount of the individual's share depends solely on the 
amount of the boat's (or boats' for a fishing operation involving more 
than one boat) catch of fish,
    (3) The individual does not receive, and is not entitled to receive, 
any cash remuneration, other than remuneration that is described in 
subparagraph (1) of this paragraph, and
    (4) The crew of the boat (or of each boat from which the individual 
receives a share of the catch) normally is made up of fewer than 10 
individuals.
    (b) The requirement of paragraph (a)(2) of this section is not 
satisfied if

[[Page 211]]

there exists an agreement with the boat's (or boats') owner or operator 
by which the individual's remuneration is determined partially or fully 
by a factor not dependent on the size of the catch. For example, if a 
boat is operated under a remuneration arrangement, e.g., a union 
contract, which specifies that crew members, in addition to receiving a 
share of the catch, are entitled to an hourly wage for repairing nets, 
regardless of whether this wage is actually paid, then all the crew 
members covered by the arrangement are entitled to receive cash 
remuneration other than as a share of the catch and are not excepted 
from employment by section 3121(b)(20).
    (c) The operating crew of a boat includes all persons on the boat 
(including the captain) who receive any form of remuneration in exchange 
for services rendered while on a boat engaged in catching fish. See 
Sec. 1.6050A-1 for reporting requirements for the operator of a boat 
engaged in catching fish with respect to individuals performing services 
described in this section.
    (d) During the same return period, service performed by a crew 
member may be excepted from employment by section 3121(b)(20) and this 
section for one voyage and not so excepted on a subsequent voyage on the 
same or on a different boat.

[T.D. 7716, 45 FR 57124, Aug. 27, 1980]



Sec. 31.3401(a)(18)-1  Payments or benefits under a qualified educational assistance program.

    A payment made, or benefit furnished, to or for the benefit of an 
employee in a taxable year beginning after December 31, 1978, does not 
constitute wages and hence is not subject to withholding if, at the time 
of such payment or furnishing, it is reasonable to believe that the 
employee will be able to exclude such payment or benefit from income 
under section 127.

[T.D. 7898, 48 FR 31019, July 6, 1983]



Sec. 31.3401(a)(19)-1  Reimbursements under a self-insured medical reimbursement plan.

    Amounts reimbursed to or on behalf of an employee after December 31, 
1979, as a medical care reimbursement under a self-insured medical 
reimbursement plan (within the meaning of section 105(h)(6)) do not 
constitute wages and hence are not subject to withholding even though 
such reimbursement is includible in the gross income of an employee. For 
rules with respect to self-insured medical reimbursement plans, see 
section 105(h) and Sec. 1.105-11 of this Chapter (Income Tax 
Regulations).

(Secs. 105(h) and 7805 Internal Revenue Code of 1954; 94 Stat. 2855, 68A 
Stat. 917 (26 U.S.C. 105(h) and 7805))


[T.D. 7754, 46 FR 3509, Jan. 15, 1981. Redesignated by T.D. 7898, 48 FR 
31019, July 6, 1983]



Sec. 31.3401(b)-1  Payroll period.

    (a) The term payroll period means the period of service for which a 
payment of wages is ordinarily made to an employee by his employer. It 
is immaterial that the wages are not always paid at regular intervals. 
For example, if an employer ordinarily pays a particular employee for 
each calendar week at the end of the week, but if for some reason the 
employee in a given week receives a payment in the middle of the week 
for the portion of the week already elapsed and receives the remainder 
at the end of the week, the payroll period is still the calendar week; 
or if, instead, that employee is sent on a 3-week trip by his employer 
and receives at the end of the trip a single wage payment for three 
weeks' services, the payroll period is still the calendar week, and the 
wage payment shall be treated as though it were three separate weekly 
wage payments.
    (b) For the purpose of section 3402, an employee can have but one 
payroll period with respect to wages paid by any one employer. Thus, if 
an employee is paid a regular wage for a weekly payroll period and in 
addition thereto is paid supplemental wages (for example, bonuses) 
determined with respect to a different period, the payroll period is the 
weekly payroll period. For computation of tax on supplemental wage 
payments, see Sec. 31.3402(g)-1.
    (c) The term payroll period also means the period of accrual of 
supplemental unemployment compensation benefits for which a payment of 
such benefits is ordinarily made. Thus if benefits are ordinarily 
accrued and paid on a

[[Page 212]]

monthly basis, the payroll period is deemed to be monthly.
    (d) The term miscellaneous payroll period means a payroll period 
other than a daily, weekly, biweekly, semi-monthly, monthly, quarterly, 
semiannual, or annual payroll period.

[T.D. 6516, 25 FR 13096, Dec. 20, 1960, as amended by T.D. 7068, 35 FR 
17329, Nov. 11, 1970]



Sec. 31.3401(c)-1  Employee.

    (a) The term employee includes every individual performing services 
if the relationship between him and the person for whom he performs such 
services is the legal relationship of employer and employee. The term 
includes officers and employees, whether elected or appointed, of the 
United States, a State, Territory, Puerto Rico, or any political 
subdivision thereof, or the District of Columbia, or any agency or 
instrumentality of any one or more of the foregoing.
    (b) Generally the relationship of employer and employee exists when 
the person for whom services are performed has the right to control and 
direct the individual who performs the services, not only as to the 
result to be accomplished by the work but also as to the details and 
means by which that result is accomplished. That is, an employee is 
subject to the will and control of the employer not only as to what 
shall be done but how it shall be done. In this connection, it is not 
necessary that the employer actually direct or control the manner in 
which the services are performed; it is sufficient if he has the right 
to do so. The right to discharge is also an important factor indicating 
that the person possessing that right is an employer. Other factors 
characteristic of an employer, but not necessarily present in every 
case, are the furnishing of tools and the furnishing of a place to work 
to the individual who performs the services. In general, if an 
individual is subject to the control or direction of another merely as 
to the result to be accomplished by the work and not as to the means and 
methods for accomplishing the result, he is not an employee.
    (c) Generally, physicians, lawyers, dentists, veterinarians, 
contractors, subcontractors, public stenographers, auctioneers, and 
others who follow an independent trade, business, or profession, in 
which they offer their services to the public, are not employees.
    (d) Whether the relationship of employer and employee exists will in 
doubtful cases be determined upon an examination of the particular facts 
of each case.
    (e) If the relationship of employer and employee exists, the 
designation or description of the relationship by the parties as 
anything other than that of employer and employee is immaterial. Thus, 
if such relationship exists, it is of no consequence that the employee 
is designated as a partner, coadventurer, agent, independent contractor, 
or the like.
    (f) All classes or grades of employees are included within the 
relationship of employer and employee. Thus, superintendents, managers 
and other supervisory personnel are employees. Generally, an officer of 
a corporation is an employee of the corporation. However, an officer of 
a corporation who as such does not perform any services or performs only 
minor services and who neither receives nor is entitled to receive, 
directly or indirectly, any remuneration is not considered to be an 
employee of the corporation. A director of a corporation in his capacity 
as such is not an employee of the corporation.
    (g) The term employee includes every individual who receives a 
supplemental unemployment compensation benefit which is treated under 
paragraph (b)(14) of Sec. 31.3401(a)-1 as if it were wages.
    (h) Although an individual may be an employee under this section, 
his services may be of such a nature, or performed under such 
circumstances, that the remuneration paid for such services does not 
constitute wages within the meaning of section 3401(a).

[T.D. 6516, 25 FR 13096, Dec. 20, 1960, as amended by T.D. 7068, 35 FR 
17329, Nov. 11, 1970]



Sec. 31.3401(d)-1  Employer.

    (a) The term employer means any person for whom an individual 
performs or performed any service, of whatever nature, as the employee 
of such person.
    (b) It is not necessary that the services be continuing at the time 
the

[[Page 213]]

wages are paid in order that the status of employer exist. Thus, for 
purposes of withholding, a person for whom an individual has performed 
past services for which he is still receiving wages from such person is 
an employer.
    (c) An employer may be an individual, a corporation, a partnership, 
a trust, an estate, a joint-stock company, an association, or a 
syndicate, group, pool, joint venture, or other unincorporated 
organization, group or entity. A trust or estate, rather than the 
fiduciary acting for or on behalf of the trust or estate, is generally 
the employer.
    (d) The term employer embraces not only individuals and 
organizations engaged in trade or business, but organizations exempt 
from income tax, such as religious and charitable organizations, 
educational institutions, clubs, social organizations and societies, as 
well as the governments of the United States, the States, Territories, 
Puerto Rico, and the District of Columbia, including their agencies, 
instrumentalities, and political subdivisions.
    (e) The term employer also means (except for the purpose of the 
definition of wages) any person paying wages on behalf of a nonresident 
alien individual, foreign partnership, or foreign corporation, not 
engaged in trade or business within the United States (including Puerto 
Rico as if a part of the United States).
    (f) If the person for whom the services are or were performed does 
not have legal control of the payment of the wages for such services, 
the term employer means (except for the purpose of the definition of 
wages) the person having such control. For example, where wages, such as 
certain types of pensions or retired pay, are paid by a trust and the 
person for whom the services were performed has no legal control over 
the payment of such wages, the trust is the employer.
    (g) The term employer also means a person making a payment of a 
supplemental unemployment compensation benefit which is treated under 
paragraph (b)(14) of Sec. 31.3401(a)-1 as if it were wages. For example, 
if supplemental unemployment compensation benefits are paid from a trust 
which was created under the terms of a collective bargaining agreement, 
the trust shall generally be deemed to be the employer. However, if the 
person making such payment is acting solely as an agent for another 
person, the term employer shall mean such other person and not the 
person actually making the payment.
    (h) It is a basic purpose to centralize in the employer the 
responsibility for withholding, returning, and paying the tax, and for 
furnishing the statements required under section 6051 and Sec. 31.6051-
1. The special definitions of the term employer in paragraphs (e), (f), 
and (g) of this section are designed solely to meet special or unusual 
situations. They are not intended as a departure from the basic purpose.

[T.D. 6516, 25 FR 13096, Dec. 20, 1960, as amended by T.D. 7068, 35 FR 
17329, Nov. 11, 1970]



Sec. 31.3401(e)-1  Number of withholding exemptions claimed.

    (a) The term number of withholding exemptions claimed means the 
number of withholding exemptions claimed in a withholding exemption 
certificate in effect under section 3402(f) of the Internal Revenue Code 
of 1954 or in effect under section 1622(h) of the Internal Revenue Code 
of 1939. If no such certificate is in effect, the number of withholding 
exemptions claimed shall be considered to be zero. The number of 
withholding exemptions claimed must be taken into account in determining 
the amount of tax to be deducted and withheld under section 3402, 
whether the employer computes the tax in accordance with the provisions 
of subsection (a) or subsection (c) of section 3402.
    (b) The employer is not required to ascertain whether or not the 
number of withholding exemptions claimed is greater than the number of 
withholding exemptions to which the employee is entitled. For rules 
relating to invalid withholding exemption certificates, see 
Sec. 31.3402(f)(2)-1(e), and for rules relating to required submission 
of copies of certain withholding exemption certificates to the Internal 
Revenue Service, see Sec. 31.3402(f)(2)-1(g).

[[Page 214]]

    (c) As to the number of withholding exemptions to which an employee 
is entitled, see Sec. 31.3402(f)(1)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7423, 41 FR 
26217, June 23, 1976; T.D. 7682, 45 FR 15526, Mar. 11, 1980; T.D. 7803, 
47 FR 3547, Jan. 26, 1982]



Sec. 31.3401(f)-1  Tips.

    (a) Tips considered wages. Tips received after 1965 by an employee 
in the course of his employment are considered to be wages, and thus 
subject to withholding of income tax at source. For an exception to the 
rule that tips constitute wages, see Secs. 31.3401(a)(16) and 
31.3401(a)(16)-1, relating to tips paid in a medium other than cash and 
cash tips of less than $20. For definition of the term ``employee,'' see 
Secs. 31.3401(c) and 31.3401(c)-1.
    (b) When tips deemed paid. Tips reported by an employee to his 
employer in a written statement furnished to the employer pursuant to 
section 6053(a) (see Sec. 31.6053-1) shall be deemed to be paid to the 
employee at the time the written statement is furnished to the employer. 
Tips received by an employee which are not reported to his employer in a 
written statement furnished pursuant to section 6053(a) shall be deemed 
to be paid to the employee at the time the tips are actually received by 
the employee.

[T.D. 7001, 34 FR 1001, Jan. 23, 1969]



Sec. 31.3402(a)-1  Requirement of withholding.

    (a) Section 3402 provides alternative methods, at the election of 
the employer, for use in computing the amount of income tax to be 
collected at source on wages. Under the percentage method of withholding 
(see Sec. 31.3402(b)-1), the employer is required to deduct and withhold 
a tax computed in accordance with the provisions of section 3402(a). 
Under the wage bracket method of withholding (see Sec. 31.3402(c)-1), 
the employer is required to deduct and withhold a tax determined in 
accordance with the provisions of section 3402(c). The employer may 
elect to use the percentage method, the wage bracket method, or certain 
other methods (see Sec. 31.3402(h) (4)-1). Different methods may be used 
by the employer with respect to different groups of employees.
    (b) The employer is required to collect the tax by deducting and 
withholding the amount thereof from the employee's wages as and when 
paid, either actually or constructively. Wages are constructively paid 
when they are credited to the account of or set apart for an employee so 
that they may be drawn upon by him at any time although not then 
actually reduced to possession. To constitute payment in such a case, 
the wages must be credited to or set apart for the employee without any 
substantial limitation or restriction as to the time or manner of 
payment or condition upon which payment is to be made, and must be made 
available to him so that they may be drawn upon at any time, and their 
payment brought within his own control and disposition.
    (c) Except as provided in sections 3402 (j) and (k) (see 
Secs. 31.3402(j)-1 and 31.3402(k)-1, relating to noncash remuneration 
paid to retail commission salesman and to tips received by an employee 
in the course of his employment, respectively), an employer is required 
to deduct and withhold the tax notwithstanding the wages are paid in 
something other than money (for example, wages paid in stocks or bonds; 
see Sec. 31.3401 (a)-1) and to pay over the tax in money. If wages are 
paid in property other than money, the employer should make necessary 
arrangements to insure that the amount of the tax required to be 
withheld is available for payment in money.
    (d) For provisions relating to the circumstances under which tax is 
required to be deducted and withheld from certain amounts received under 
accident and health plans, see paragraph (b)(8) of Sec. 31.3401(a)-1.
    (e) As a matter of business administration, certain of the 
mechanical details of the withholding process may be handled by 
representatives of the employer. Thus, in the case of an employer having 
branch offices, the branch manager or other representative may actually, 
as a matter of internal administration, withhold the tax or prepare the 
statements required under section 6051. Nevertheless, the legal 
responsibility for withholding, paying,

[[Page 215]]

and returning the tax and furnishing such statements rests with the 
employer. For provisions relating to statements under section 6051, see 
Sec. 31.6051-1.
    (f) The amount of any tax withheld and collected by the employer is 
a special fund in trust for the United States. See section 7501.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7001, 34 FR 
1001, Jan. 23, 1969; T.D. 7115, 36 FR 9209, May 21, 1971; T.D. 7888, 48 
FR 17588, Apr. 25, 1983]



Sec. 31.3402(b)-1  Percentage method of withholding.

    With respect to wages paid after April 30, 1975, the amount of tax 
to be deducted and withheld under the percentage method of withholding 
shall be determined under the applicable percentage method withholding 
table contained in Circular E (Employer's Tax Guide) according to the 
instructions contained therein.


(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 7915, 48 FR 44073, Sept. 27, 1983]



Sec. 31.3402(c)-1  Wage bracket withholding.

    (a) In general. (1) The employer may elect to use the wage bracket 
method provided in section 3402(c) instead of the percentage method with 
respect to any employee. The tax computed under the wage bracket method 
shall be in lieu of the tax required to be deducted and withheld under 
section 3402(a). With respect to wages paid after July 13, 1968, the 
correct amount of withholding shall be determined under the applicable 
wage bracket withholding table contained in the Circular E (Employer's 
Tax Guide) issued for use with respect to the period in which such wages 
are paid.
    (2) For provisions relating to the treatment of wages paid under 
accident and health plans and wages paid other than in cash to retail 
commission salesmen, see paragraph (b)(8) of Sec. 31.3401(a)-1 and 
Sec. 31.3402(j)-1, respectively.
    (b) Established payroll periods, other than daily or miscellaneous, 
covered by wage bracket withholding tables. The wage bracket withholding 
tables contained in Circular E for established periods other than daily 
or miscellaneous should be used in determining the tax to be withheld 
for any such period without reference to the time the employee is 
actually engaged in the performance of services during such payroll 
period.

    Example 1. On June 30, 1971, employee A is paid wages for a 
semimonthly payroll period. A has in effect a withholding exemption 
certificate indicating that he claims two withholding exemptions and 
that he is married. A's wages are determined at the rate of $2 per hour. 
During a certain payroll period he works only 24 hours and earns $48. 
Although A worked only 24 hours during the semimonthly payroll period, 
the applicable wage bracket withholding table contained in Circular E 
for a semimonthly payroll period for an employee who is married should 
be used in determining the tax to be withheld. Under this table it will 
be found that no tax is required to be withheld from a wage payment of 
$48 when two withholding exemptions are claimed.

    Example 2. On May 14, 1971, employee B is paid wages for a weekly 
payroll period. B has in effect a withholding exemption certification 
indicating that he claims one withholding exemption and that he is 
single. B's wages are determined at the rate of $2 per hour. During a 
certain payroll period B works 18 hours and earns $36. Although B worked 
only 18 hours during the weekly payroll period the applicable wage 
bracket withholding table for a weekly payroll period for an employee 
who is single should be used in determining the tax to be withheld. 
Under this table it will be found that $0.50 is the amount of tax to be 
withheld from a wage payment of $36 when one withholding exemption is 
claimed.

    (c) Periods to which the tables for a daily or miscellaneous payroll 
period are applicable--(1) In general. The tables applicable to a daily 
or miscellaneous payroll period show the tax for employees who are to be 
withheld from as single persons and for employees who are to be withheld 
from as married persons on the amount of wages for one day. Where the 
withholding is computed under the rules applicable to a miscellaneous 
payroll period, the wages and the amounts shown in the applicable table 
must be placed on a comparable basis. This may be accomplished by 
reducing the wages paid for the period to a daily basis by dividing

[[Page 216]]

the total wages by the number of days (including Sundays and holidays) 
in the period. The amount of the tax shown in the applicable table as 
the tax required to be withheld from the wages, as so reduced to a daily 
basis, should then be multiplied by the number of days (including 
Sundays and holidays) in the period.
    (2) Period not a payroll period. If wages are paid for a period 
which is not a payroll period, the amount to be deducted and withheld 
under the wage bracket method shall be the amount applicable in the case 
of a miscellaneous payroll period containing a number of days (including 
Sundays and holidays) equal to the number of days (including Sundays and 
holidays) in the period with respect to which such wages are paid.

    Example. An individual performs services for a contractor in 
connection with a construction project. He has in effect a withholding 
exemption certificate indicating that he claims two withholding 
exemptions and that he is married. Wages have been fixed at the rate of 
$36 per day, to be paid upon completion of the project. The project is 
completed before July 1, 1971, in 12 consecutive days, at the end of 
which period the individual is paid wages of $360 for 10 days' services 
performed during the period. Under the wage bracket method the amount to 
be deducted and withheld from such wages is determined by dividing the 
amount of the wages ($360) by the number of days in the period (12), the 
result being $30. The amount of tax required to be withheld is 
determined under the appropriate table applicable to a miscellaneous 
payroll period for an employee who is married. Under this table the tax 
required to be withheld is $47.40 (12  x  $3.95).

    (3) Wages paid without regard to any period. If wages are paid to an 
employee without regard to any particular period, as, for example, 
commissions paid to a salesman upon consummation of a sale, the amount 
of tax to be deducted and withheld shall be determined in the same 
manner as in the case of a miscellaneous payroll period containing a 
number of days (including Sundays and holidays) equal to the number of 
days (including Sundays and holidays) which have elapsed, beginning with 
the latest of the following days:
    (i) The first day after the last payment of wages to such employee 
by such employer in the calendar year, or
    (ii) The date on which such individual's employment with such 
employer began in the calendar year, or
    (iii) January 1 of such calendar year, and ending with (and 
including) the date on which such wages are paid.

    Example. On April 2, 1971, C is employed by the X Real Estate 
Company to sell real estate on a commission basis, commissions to be 
paid only upon consummation of sales. C has in effect a withholding 
exemption certificate indicating that he claims one withholding 
exemption and that he is not married. On May 22, 1971, C receives a 
commission of $300, his first commission since April 2, 1971. Again on 
June 19, 1971, C receives a commission of $420. Under the wage bracket 
method, the amount of tax to be deducted and withheld in respect of the 
commission paid on May 22, is $10, which amount is obtained by 
multiplying $0.20 (tax per day under the appropriate wage bracket table 
applicable to a daily or miscellaneous payroll period for an employee 
who is not married where wages are at least $6 but less than $6.25 a 
day) by 50 (number of days elapsed); and the amount of tax to be 
withheld with respect to the commission paid on June 19 is $54.60, which 
amount is obtained by multiplying $1.95 (tax under the appropriate wage 
bracket table for a daily or miscellaneous payroll period where wages 
are at least $15 but less than $15.50 a day) by 28 (number of days 
elapsed).

    (d) Period or elapsed time less than 1 week. (1) It is the general 
rule that if wages are paid for a payroll period or other period of less 
than 1 week, the tax to be deducted and withheld under the wage bracket 
method shall be the amount computed for a daily payroll period, or for a 
miscellaneous payroll period containing the same number of days 
(including Sundays and holidays) as the payroll period, or other period, 
for which such wages are paid. In the case of wages paid without regard 
to any period, if the elapsed time computed as provided in paragraph (c) 
of this section is less than 1 week, the same rule is applicable.

    Example 1. On May 14, 1971, an employee who has a daily payroll 
period is paid wages of $15 per day. The employee has in effect a 
withholding exemption certificate indicating that he claims one 
withholding exemption and that he is not married. Under the applicable 
table for a daily payroll period for an employee who is not married, the 
amount

[[Page 217]]

of tax to be deducted and withheld from each such payment of wages is 
$1.95.

    Example 2. An employee works for a certain employer on 4 consecutive 
days for which he is paid wages totalling $60 on July 25, 1971. The 
employee has in effect a withholding exemption certificate claiming two 
withholding exemptions and indicating that he is married. The amount of 
tax to be deducted and withheld under the wage bracket method is $5.60 
(4 x $1.40).

    (2) If the payroll period, other period or elapsed time where wages 
are paid without regard to any period, is less than one week, the 
employer may, under certain conditions, elect to deduct and withhold the 
tax determined by the application of the wage table for a weekly payroll 
period to the aggregate of the wages paid to the employee during the 
calendar week. The election to use the weekly wage table in such cases 
is subject to the limitations and conditions prescribed in Circular E 
with respect to employers using the percentage method in similar cases.
    (3) As used in this paragraph the term ``calendar week'' means a 
period of seven consecutive days beginning with Sunday and ending with 
Saturday.
    (e) Rounding off of wage payment. In determining the amount to be 
deducted and withheld under the wage bracket method the wages may, at 
the election of the employer, be computed to the nearest dollar, 
provided such wages are in excess of the highest wage bracket of the 
applicable table. 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 $1.00. Thus, if the payroll period of an 
employee is weekly and the wage payment of such employee is $255.49, the 
employer may compute the tax on the excess over $200 as if the excess 
were $55 instead of $55.49. If the weekly wage payment is $255.50, the 
employer may, in computing the tax, consider the excess over $200 to be 
$56 instead of $55.50.


(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6860, 30 FR 
13942, Nov. 4, 1965; T.D. 7115, 36 FR 9215, May 21, 1971; T.D. 7888, 48 
FR 17588, Apr. 25, 1983; T.D. 7915, 48 FR 44073, Sept. 27, 1983]



Sec. 31.3402(d)-1  Failure to withhold.

    If the employer in violation of the provisions of section 3402 fails 
to deduct and withhold the tax, and thereafter the income tax against 
which the tax under section 3402 may be credited is paid, the tax under 
section 3402 shall not be collected from the employer. Such payment does 
not, however, operate to relieve the employer from liability for 
penalties or additions to the tax applicable in respect of such failure 
to deduct and withhold. The employer will not be relieved of his 
liability for payment of the tax required to be withheld unless he can 
show that the tax against which the tax under section 3402 may be 
credited has been paid. See Sec. 31.3403-1, relating to liability for 
tax.



Sec. 31.3402(e)-1  Included and excluded wages.

    (a) If a portion of the remuneration paid by an employer to his 
employee for services performed during a payroll period of not more than 
31 consecutive days constitutes wages, and the remainder does not 
constitute wages, all the remuneration paid the employee for services 
performed during such period shall for purposes of withholding be 
treated alike, that is, either all included as wages or all excluded. 
The time during which the employee performs services, the remuneration 
for which under section 3401(a) constitutes wages, and the time during 
which he performs services, the remuneration for which under such 
section does not constitute wages, determine whether all the 
remuneration for services performed during the payroll period shall be 
deemed to be included or excluded.
    (b) If one-half or more of the employee's time in the employ of a 
particular employer in a payroll period is spent in performing services 
the remuneration for which consititutes wages, then all

[[Page 218]]

the remuneration paid the employee for services performed in that 
payroll period shall be deemed to be wages.
    (c) If less than one-half of the employee's time in the employ of a 
particular employer in a payroll period is spent in performing services 
the remuneration for which constitutes wages, then none of the 
remuneration paid the employee for services performed in that payroll 
period shall be deemed to be wages.
    (d) The application of the provisions of paragraphs (a), (b), and 
(c) of this section may be illustrated by the following examples:

    Example 1. Employer B, who operates a store and a farm, employs A to 
perform services in connection with both operations. The remuneration 
paid A for services on the farm is excepted as remuneration for 
agricultural labor, and the remuneration for services performed in the 
store constitutes wages. Employee A is paid on a monthly basis. During a 
particular month, A works 120 hours on the farm and 80 hours in the 
store. None of the remuneration paid by B to A for services performed 
during the month is deemed to be wages, since the remuneration paid for 
less than one-half of the services performed during the month 
constitutes wages. During another month A works 75 hours on the farm and 
120 hours in the store. All of the remuneration paid by B to A for 
services performed during the month is deemed to be wages since the 
remuneration paid for one-half or more of the services performed during 
the month constitutes wages.

    Example 2. Employee C is employed as a maid by D, a physician, whose 
home and office are located in the same building. The remuneration paid 
C for services in the home is excepted as remuneration for domestic 
service, and the remuneration paid for her services in the office 
constitutes wages. C is paid on a weekly basis. During a particular week 
C works 20 hours in the home and 20 hours in the office. All of the 
remuneration paid by D to C for services performed during that week is 
deemed to be wages, since the remuneration paid for one-half or more of 
the services performed during the week constitutes wages. During another 
week C works 22 hours in the home and 15 hours in the office. None of 
the remuneration paid by D to C for services performed during that week 
is deemed to be wages, since the remuneration paid for less than one-
half of the services performed during the week constitutes wages.

    (e) The rules set forth in this section do not apply (1) with 
respect to any remuneration paid for services performed by an employee 
for his employer if the periods for which remuneration is paid by the 
employer vary to the extent that there is no period which constitutes a 
payroll period within the meaning of section 3401(b) (see 
Sec. 31.3401(b)-1), or (2) with respect to any remuneration paid for 
services performed by an employee for his employer if the payroll period 
for which remuneration is paid exceeds 31 consecutive days. In any such 
case withholding is required with respect to that portion of such 
remuneration which constitutes wages.



Sec. 31.3402(f)(1)-1  Withholding exemptions.

    (a) In general. (1) Except as otherwise provided in section 
3402(f)(6) (see Sec. 31.3402(f)(6)-1), an employee receiving wages shall 
on any day be entitled to withholding exemptions as provided in section 
3402(f)(1). In order to receive the benefit of such exemptions, the 
employee must file with his employer a withholding exemption certificate 
as provided in section 3402(f)(2). See Sec. 31.3402(f)(2)-1.
    (2) The number of exemptions to which an employee is entitled on any 
day depends upon his status as single or married, upon his status as to 
old age and blindness, upon the number of his dependents, upon the 
number of exemptions claimed by his spouse (if he is married), and upon 
the number of withholding allowances to which he is entitled under 
section 3402(m).
    (b) Withholding exemptions to which an employee is entitled in 
respect of himself. An employee is entitled to one withholding exemption 
for himself. An employee shall on any day be entitled to an additional 
withholding exemption for himself if he will have attained the age of 65 
before the close of his taxable year which begins in, or with, the 
calendar year in which such day falls. If the employee is blind, he may 
claim an additional withholding exemption for blindness. For purposes of 
claiming a withholding exemption for blindness, an individual shall be 
considered blind only if his central visual acuity does not exceed 20/
200 in the better eye with correcting lenses or if his visual acuity is 
greater than 20/200 but is accompanied by a limitation in the fields of

[[Page 219]]

vision such that the widest diameter of the visual field subtends an 
angle no greater than 20 degrees. For definition of the term 
``blindness'', see section 151(d)(3). An employee may also be entitled 
under section 3402(m) to withholding exemptions with respect to 
withholding allowances (see Sec. 31.3402(m)-1).
    (c) Withholding exemptions to which an employee is entitled in 
respect to his spouse. (1) A married employee, whose spouse is an 
employee receiving wages, is entitled to claim any withholding exemption 
to which his spouse is entitled under paragraph (b) of this section, 
unless the spouse has in effect a withholding exemption certificate 
claiming such withholding exemption. A married employee, whose spouse is 
not an employee receiving wages, is entitled to claim any withholding 
exemption to which his spouse would be entitled under paragraph (b) of 
this section if the spouse were an employee receiving wages.

    Example 1. Assume that both the husband and wife have attained the 
age of 65 and are employees receiving wages. Each spouse is entitled 
under paragraph (b) of this section to claim 2 withholding exemptions in 
respect of himself or herself. Either spouse may claim, in addition to 
the withholding exemptions to which he or she is entitled in respect of 
himself or herself, any withholding exemption to which the other spouse 
is entitled under such paragraph (b) of this section but does not claim 
on a withholding exemption certificate.

    Example 2. Assume the same facts as in Example 1 except that only 
the husband is an employee receiving wages. The husband is entitled to 
claim 4 withholding exemptions, that is, the 2 withholding exemptions to 
which he is entitled in respect of himself and the 2 withholding 
exemptions to which his spouse would be entitled under paragraph (b) of 
this section if she were an employee receiving wages.

    (2) In determining the number of withholding exemptions to which an 
employee is entitled for himself and his spouse on any day, the 
employee's status as a single person or a married person and, if 
married, whether a withholding exemption is claimed by his spouse, shall 
be determined as of such day. However, in the case of an employee whose 
spouse dies in the taxable year of the employee which begins in, or 
with, the calendar year in which the spouse dies, any withholding 
exemption which would be allowable to the employee in respect of such 
spouse, if living and not an employee receiving wages, may be claimed by 
the employee for that portion of the calendar year which occurs after 
his spouse's death. For provisions applicable in the case of an employee 
whose taxable year is not a calendar year, and whose spouse dies in that 
portion of the calendar year which precedes the first day of the taxable 
year of the employee which begins in the calendar year, see paragraph 
(b) of Sec. 31.3402(f)(2)-1. An employee legally separated from his 
spouse under a decree of divorce or of separate maintenance or an 
employee who is a surviving spouse (as defined in section 2 and the 
regulations thereunder) shall not be entitled to any withholding 
exemptions in respect of his spouse.
    (d) Withholding exemptions to which an employee is entitled in 
respect of dependents. Subject to the limitations stated in this 
paragraph, an employee shall be entitled on any day to a withholding 
exemption for each individual who may reasonably be expected to be his 
dependent for his taxable year beginning in, or with, the calendar year 
in which such day falls. For purposes of the withholding exemption for 
an individual who may reasonably be expected to be a dependent, the 
following rules shall apply:
    (1) The determination that an individual may or may not reasonably 
be expected to be a dependent shall be made on the basis of facts 
existing at the beginning of the day for which a withholding exemption 
for such individual is to be claimed. The individual in respect of whom 
an exemption is claimed by an employee must, on the day in question, be 
in existence and be within one of the categories listed in section 
152(a), which defines the term ``dependent''. However, a withholding 
exemption for a dependent who dies continues for the portion of the 
calendar year which occurs after the dependent's death, except that, in 
the case of an employee whose taxable year is not a calendar year, the 
withholding exemption does not continue for a dependent, within the 
meaning of section

[[Page 220]]

152(a) (9) or (10), whose death occurs before the first day of the 
employee's taxable year beginning in the calendar year of death.
    (2) The determination that an individual may or may not reasonably 
be expected to be a dependent shall be made for the taxable year of the 
employee in respect of which amounts deducted and withheld in the 
calendar year in which the day in question falls are allowed as a 
credit. In general, amounts deducted and withheld during any calendar 
year are allowed as a credit against the tax imposed by chapter 1 of the 
Code for the taxable year which begins in, or with, such calendar year. 
Thus, in order for an employee to be able to claim for a calendar year a 
withholding exemption with respect to a particular individual as a 
dependent there must be a reasonable expectation that the employee will 
be allowed an exemption with respect to such individual under section 
151(e) for his taxable year which begins in, or with, such calendar 
year.
    (3) For the employee to be entitled on any day of the calendar year 
to a withholding exemption for an individual as a dependent, such 
individual must on such day--
    (i) Be an individual referred to in one of the numbered paragraphs 
in section 152(a),
    (ii) Reasonably be expected to receive over one-half of his support, 
within the meaning of section 152, from the employee in the calendar 
year, and
    (iii) Either (a) reasonably be expected to have gross income of less 
than the amount determined pursuant to Sec. 1.151-2 of this chapter 
(Income Tax Regulations) applicable to the calendar year in which the 
taxable year of the taxpayer begins, or (b) be a child (son, stepson, 
daughter, stepdaughter, adopted son, or adopted daughter) of the 
employee who (1) will not have attained the age of 19 at the close of 
the calendar year or (2) is a student as defined in section 151.
    (4) An employee is not entitled to claim a withholding exemption for 
an individual otherwise reasonably expected to be a dependent of the 
employee if such individual is not a citizen of the United States, 
unless such individual (i) is at any time during the calendar year a 
resident of the United States (including, in regard to wages paid after 
February 28, 1979, and individual treated as a resident under section 
6013 (g) or (h)) Canada, Mexico, the Canal Zone, or the Republic of 
Panama, or (ii) is a child of the employee born to him, or legally 
adopted by him, in the Philippine Islands before January 1, 1956, and 
the child is a resident of the Republic of the Philippines, and the 
employee was a member of the Armed Forces of the United States at the 
time the child was born to him or legally adopted by him.
    (e) Additional withholding exemption to which an employee is 
entitled in respect of the standard deduction. After November 30, 1986, 
an employee is entitled to one additional withholding exemption unless:
    (1) The employee is married (as determined under section 143) and 
the employee's spouse is an employee receiving wages subject to 
withholding, or
    (2) The employee has withholding exemption certificates in effect 
with respect to more than one employer.

These restrictions do not apply if the combined wages of the employee 
and the spouse (if any) from other than one employer is less than the 
amount specified in the instructions to Form W-4 or W-4A (Employee's 
Withholding Allowance Certificate).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6654, 28 FR 
5252, May 28, 1963; T.D. 7065, 35 FR 16539, Oct. 23, 1970; T.D. 7114, 36 
FR 9020, May 18, 1971; T.D. 7115, 36 FR 9234, May 21, 1971; T.D. 7670, 
45 FR 6932, Jan. 31, 1980; T.D. 7915, 48 FR 44073, Sept. 27, 1983; T.D. 
8164, 52 FR 45633, Dec. 1, 1987]



Sec. 31.3402(f)(2)-1  Withholding exemption certificates.

    (a) On commencement of employment. On or before the date on which an 
individual commences employment with an employer, the individual shall 
furnish the employer with a signed withholding exemption certificate 
relating to his marital status and the number of withholding exemptions 
which he claims, which number shall in no event exceed the number to 
which he is entitled, or, if the statements described in 
Sec. 31.3402(n)-1 are true with respect to an

[[Page 221]]

individual, he may furnish his employer with a signed withholding 
exemption certificate which contains such statements. For form and 
contents of such certificates, see Sec. 31.3402(f)(5)-1. The employer is 
required to request a withholding exemption certificate from each 
employee, but if the employee fails to furnish such certificate, such 
employee shall be considered as a single person claiming no withholding 
exemptions.
    (b) Change in status which affects calendar year. (1) If, on any day 
during the calendar year, the number of withholding exemptions to which 
the employee is entitled is less than the number of withholding 
exemptions claimed by him on the withholding exemption certificate then 
in effect, the employee must within 10 days after the change occurs 
furnish the employer with a new withholding exemption certificate 
relating to the number of withholding exemptions which the employee then 
claims, which must in no event exceed the number to which he is entitled 
on such day. The number of withholding exemptions to which an employee 
is entitled decreases, for example, for any one of the following 
reasons:
    (i) The employee's wife (or husband) for whom the employee has been 
claiming a withholding exemption (a) is divorced or legally separated 
from the employee, or (b) claims her (or his) own withholding exemption 
on a separate certificate.
    (ii) In the case of an employee whose taxable year is not a calendar 
year, the employee's wife (or husband) for whom the employee has been 
claiming a withholding exemption dies in that portion of the calendar 
year which precedes the first day of the taxable year of the employee 
which begins in the calendar year in which the spouse dies.
    (iii) The employee finds that no exemption for his taxable year 
which begins in, or with, the current calendar year will be allowable to 
him under section 151(e) in respect of an individual claimed as a 
dependent on the employee's withholding exemption certificate.
    (iv) It becomes unreasonable for the employee to believe that his 
wages for an estimation year will not be more, or that the determinable 
additional amounts for each item under Sec. 31.3402(m)-1 for an 
estimation year will not be less, than the corresponding figure used in 
connection with a claim by him under section 3402 (m) of a withholding 
allowance to such an extent that the employee would no longer be 
entitled to such withholding allowance.
    (v) It becomes unreasonable for an employee who has in effect a 
withholding exemption certificate on which he claims a withholding 
allowance under section 3402(m), computed on the basis of the preceding 
taxable year, to believe that his wages and the determinable additional 
amounts for each item under Sec. 31.3402(m)-1 in such preceding taxable 
year or in his present taxable year will entitle him to such withholding 
allowance in the present taxable year.
    (2) If, on any day during the calendar year, the number of 
withholding exemptions to which the employee is entitled is more than 
the number of withholding exemptions claimed by him on the withholding 
exemption certificate then in effect, the employee may furnish the 
employer with a new withholding exemption certificate on which the 
employee must in no event claim more than the number of withholding 
exemptions to which he is entitled on such day.
    (3) If, on any day during the calendar year, the statements 
described in Sec. 31.3402(n)-1 are true with respect to an employee, 
such employee may furnish his employer with a withholding exemption 
certificate which contains such statements.
    (4) If, on any day during the calendar year, it is not reasonable 
for an employee, who has furnished his employer with a withholding 
exemption certificate which contains the statements described in 
Sec. 31.3402(n)-1, to anticipate that he will incur no liability for 
income tax imposed under subtitle A (as defined in Sec. 31.3402(n)-1) 
for his current taxable year, the employee must within 10 days after 
such day furnish the employer with a new withholding exemption 
certificate which does not contain such statements. If, on any day 
during the calendar year, it is not reasonable for such an employee 
whose liability for income tax imposed under

[[Page 222]]

subtitle A is determined on a basis other than the calendar year to so 
anticipate with respect to his taxable year following his current 
taxable year, the employee must furnish the employer with a new 
withholding exemption certificate which does not contain such statements 
within 10 days after such day or on or before the first day of the last 
month of his current taxable year, whichever is later.
    (c) Change in status which affects next calendar year. (1) If, on 
any day during the calendar year, the number of exemptions to which the 
employee will be, or may reasonably be expected to be, entitled under 
sections 151 and 3402(m) for his taxable year which begins in, or with, 
the next calendar year is different from the number to which the 
employee is entitled on such day, the following rules shall be 
applicable:
    (i) If such number is less than the number of withholding exemptions 
claimed by the employee on a withholding exemption certificate in effect 
in such day, the employee must, on or before December 1 of the year in 
which the change occurs, unless such change occurs in December, furnish 
his employer with a new withholding exemption certificate reflecting the 
decrease in the number of withholding exemptions. If the change occurs 
in December, the new certificate must be furnished within 10 days after 
the change occurs. The number of exemptions to which an employee is 
entitled for his taxable year which begins in, or with, the next 
calendar year decreases, for example, for any of the following reasons:
    (a) The spouse or a dependent of the employee dies.
    (b) The employee finds that is not reasonable to expect that an 
individual claimed as a dependent on the employee's withholding 
exemption certificate will qualify as a dependent of the employee for 
such taxable year.
    (c) It becomes unreasonable for an employee who has in effect a 
withholding exemption certificate on which he claims a withholding 
allowance under section 3402(m) to believe that his wages and the 
determinable additional amounts for each item under Sec. 31.3402(m)-1 
for his taxable year which begins in, or with, the next calendar year 
will entitle him to such withholding allowance for such taxable year.
    (ii) If such number is greater than the number of withholding 
exemptions claimed by the employee on a withholding exemption 
certificate in effect on such day, the employee may, on or before 
December 1 of the year in which such change occurs, unless such change 
occurs in December, furnish his employer with a new withholding 
exemption certificate reflecting the increase in the number of 
withholding exemptions. If the change occurs in December, the 
certificate may be furnished on or after the date on which the change 
occurs.
    (2) If, on any day during the calendar year, it is not reasonable 
for an employee, who has furnished his employer with a withholding 
exemption certificate which contains the statements described in 
Sec. 31.3402(n)-1 and whose liability for such tax is determined on a 
calendar-year basis, to anticipate that he will incur no liability for 
income tax imposed under subtitle A (as defined in Sec. 3l.3402(n)-1) 
for his taxable year which begins with the next calendar year, the 
employee must furnish his employer with a new withholding exemption 
certificate which does not contain such statements, on or before 
December 1 of the first-mentioned calendar year. If it first becomes 
unreasonable for the employee to so anticipate in December, the new 
certificate must be furnished within 10 days after the day on which it 
first becomes unreasonable for the employee to so anticipate.
    (3) Before December 1 of each year, every employer should request 
each of his employees to file a new withholding exemption certificate 
for the ensuing calendar year, in the event of change in the employee's 
exemption status since the filing of his latest certificate.
    (d) Inclusion of account number on withholding exemption 
certificate. Every individual to whom an account number has been 
assigned shall include such number of any withholding exemption 
certificate filed with an employer. For provisions relating to the 
obtaining of an account number, see Sec. 31.6011 (b)-2.

[[Page 223]]

    (e) Invalid withholding exemption certificates. Any alteration of or 
unauthorized addition to a withholding exemption certificate shall cause 
such certificate to be invalid; see paragraph (b) of Sec. 31.3402(f)(5)-
1 for the definitions of alteration and unauthorized addition. Any 
withholding exemption certificate which the employee clearly indicates 
to be false by an oral statement or by a written statement (other than 
one made on the withholding exemption certificate itself) made by him to 
the employer on or before the date on which the employee furnishes such 
certificate is also invalid. For purposes of the preceding sentence, the 
term ``employer'' includes any individual authorized by the employer 
either to receive withholding exemption certificates, to make 
withholding computations, or to make payroll distributions. If an 
employer receives an invalid withholding exemption certificate, he shall 
consider it a nullity for purposes of computing withholding; he shall 
inform the employee who submitted the certificate that it is invalid, 
and shall request another withholding exemption certificate from the 
employee. If the employee who submitted the invalid certificate fails to 
comply with the employer's request, the employer shall withhold from the 
employee as from a single person claiming no exemptions (see 
Sec. 31.3402 (f)(2)-1(a)); if, however, a prior certificate is in effect 
with respect to the employee, the employer shall continue to withhold in 
accordance with the prior certificate.
    (f) Applicability of withholding exemption certificate to qualified 
State individual income taxes. The withholding exemption certificate 
shall be use for purposes of withholding with respect to qualified State 
individual income taxes as well as Federal tax. For provisions relating 
to the withholding exemption certificate with respect to such State 
taxes, see paragraph (d)(3)(i) of Sec. 301.6361-1 of this chapter 
(Regulation on Procedure and Administration).
    (g) Submission of certain withholding certificates--(1) General 
rule. With respect to withholding exemption certificates received after 
November 30, 1986, an employer shall submit, in accordance with 
paragraph (g)(3) of this section, a copy of any withholding exemption 
certificate, together with a copy of any written statement received from 
the employee in support of the claims made on the certificate, which is 
received from the employee during the reporting period (even if the 
certificate is not in effect at the end of the quarter) if the employee 
is employed by that employer on the last day of the reporting period and 
if--
    (i) The total number of withholding exemptions (within the meaning 
of section 3402(f)(1) and the regulations thereunder) claimed on the 
certificate exceeds 10, or
    (ii) The certificate indicates that the employee claims a status 
exempting the employee from withholding, and the exception provided by 
paragraph (g)(2) of this section does not apply.
    (2) Exception. A copy of the certificate shall not be submitted 
under paragraph (g)(1)(ii) of this section if the employer reasonably 
expects, at the time the certificate is received, that the employee's 
wages (under chapter 24 of the Code) from that employer shall not then 
usually exceed $200 per week.
    (3) Rules for submission--(i) In general. The reporting period is a 
calendar quarter. Copies required to be submitted under paragraph (g)(1) 
of this section shall be submitted at the time and place of filing Form 
941 or 941E for the reporting period, or Form 941-M for the last month 
of the reporting period. Form 941, 941E or 941-M shall be used, in 
accordance with the instructions for the form, to transmit the copies.
    (ii) Option. At the choice of the employer, copies required to be 
submitted under paragraph (g)(1) of this section may be submitted 
earlier and for shorter reporting periods than a calendar quarter. In 
such case, the employer shall submit the copies to the service center 
where the employer would file a Form 941 or 941E and shall include with 
the submission a statement showing the employer's name, address, 
employer identification number, and the number of copies of withholding 
exemption certificates submitted. However, in no event shall a copy be 
submitted later than the time for filing the report required to be 
submitted for the calendar quarter reporting period under subdivision 
(i) of this paragraph (g)(3).

[[Page 224]]

    (iii) First report. The first submission of copies shall include a 
copy of any certificate required to be submitted under paragraph (g)(1) 
of this section which is received by the employer on or after April 1, 
1980.
    (4) Other withholding exemption certificates. An employer shall also 
submit a copy of any currently effective withholding exemption 
certificate (or make the original certificate available for inspection), 
together with a copy of any written statement received from the employee 
in support of the claims made on the certificate, upon written request 
of the Internal Revenue Service. This request of the Service may relate 
either to one or more named employees or to one or more reasonably 
segregable units of the employer. In this regard, the Service may, by 
written notice, advise the employer that a copy of each new withholding 
exemption certificate received from one or more named employees, or from 
one or more reasonably segregable units of the employer, which is 
required, under this paragraph (g) to be submitted to the Service is to 
be submitted to the District Director. The employer shall then submit to 
the District Director a copy of each such new certificate of each such 
employee immediately after the employer receives the new certificate 
from the named employee.
    (5) Computation of withholding. (i) Until receipt of written notice 
from the Internal Revenue Service that a certificate, a copy of which 
was submitted under this section, is defective, that certificate is 
effective and the employer shall withhold on the basis of the statements 
made in that certificate, unless that certificate must be disregarded 
under the provisions of paragraph (g)(5)(vi) of this section.
    (ii) The Internal Revenue Service may find that a copy of a 
withholding exemption certificate submitted contains a materially 
incorrect statement or it may determine, after written request to the 
employee for verification of the statements on the certificate, that it 
lacks sufficient information to determine if the certificate is correct. 
If the Internal Revenue Service so finds or determines and notifies the 
employer in writing that the certificate is defective, the employer 
shall then consider the certificate to be defective for purposes of 
computing amounts of withholding.
    (iii) If the Internal Revenue Service notifies the employer that the 
certificate is defective, the Internal Revenue Service will, based upon 
its findings, advise the employer that the employee either is not 
entitled to claim a status exempting the employee from withholding or is 
not entitled to claim a total number of withholding exemptions in excess 
of a number specified by the Internal Revenue Service in the notice, or 
both. The Internal Revenue Service will also specify the Internal 
Revenue Service office to be contacted for further information.
    (iv) The Internal Revenue Service will provide the employer with a 
copy for the employee of each notice it furnishes to the employer under 
this paragraph (g)(5) in addition to the notice furnished to the 
employer for his own use. The Internal Revenue Service will also mail a 
similar notice to the employee at the address of the employee as shown 
on the certificate under review.
    (v) The employer shall promptly furnish the employee who filed the 
defective certificate, if still in his employ, with a copy of the 
written notice of the Internal Revenue Service with respect to the 
certificate and may request another withholding exemption certificate 
from the employee. The employer shall withhold amounts from the employee 
on the basis of the maximum number specified in the written notice 
received from the Service.
    (vi) If and when the employee does file any new certificate (after 
an earlier certificate of the employee was considered to be defective), 
the employer shall withhold on the basis of that new certificate 
(whenever filed) as currently effective only if the new certificate does 
not make a claim of exempt status or of a number of withholding 
exemptions which claim is inconsistent with the advice earlier furnished 
by the Internal Revenue Service in its written notice to the employer. 
If any new certificate does make a claim which is inconsistent with the 
advice

[[Page 225]]

contained in the Service's written notice to the employer, then the 
employer shall disregard the new certificate, shall not submit that new 
certificate to the Service, and shall continue to withhold amounts from 
the employee on the basis of the maximum number specified in the written 
notice received from the Service.
    (vii) If the employee makes a claim on any new certificate that is 
inconsistent with the advice in the Service's written notice to the 
employer, the employee may specify on such new certificate, or by a 
written statement attached to that certificate, any circumstances of the 
employee which have changed since the date of the Service's earlier 
written notice, or any other circumstances or reasons, as justification 
or support for the claims made by the employee on the new certificate. 
The employee may then submit that new certificate and written statement 
either to (A) the Internal Revenue Service office specified in the 
notice earlier furnished to the employer under this paragraph (g)(5), or 
to (B) the employer, who must then submit a copy of that new certificate 
and the employee's written statement (if any) to the Internal Revenue 
Service office specified in the notice earlier furnished to the 
employer. The employer shall continue to disregard that new certificate 
and shall continue to withhold amounts from the employee on the basis of 
the maximum number specified in the written notice received from the 
Service unless and until the Internal Revenue Service by written notice 
(under paragraph (g)(5)(iii) of this section) advises the employer to 
withhold on the basis of that new certificate and revokes its earlier 
written notice.
    (6) Definition of employer. For purposes of this paragraph (g), the 
term ``employer'' includes any individual authorized by the employer to 
receive withholding exemption certificates, to make withholding 
computations, or to make payroll distributions.

(68A Stat. 731 (26 U.S.C. 6001); 68A Stat. 732 (26 U.S.C. 6011); 68A 
Stat. 917 (26 U.S.C. 7805))


[T.D. 6516, 25 FR 13105, Dec. 20, 1960, as amended by T.D. 6654, 28 FR 
5252, May 28, 1963; T.D. 7048, 35 FR 10291, June 24, 1970; T.D. 7065, 35 
FR 16539, Oct. 23, 1970; T.D. 7577, 43 FR 59359, Dec. 20, 1978; T.D. 
7598, 44 FR 14552, Mar. 13, 1979; T.D. 7682, 45 FR 15526, Mar. 11, 1980; 
T.D. 7772, 46 FR 17548, Mar. 19, 1981; T.D. 7803, 47 FR 3547, Jan. 26, 
1982; T.D. 7915, 48 FR 44073, Sept. 27, 1983; T.D. 8164, 52 FR 45633, 
Dec. 1, 1987]



Sec. 31.3402(f)(3)-1  When withholding exemption certificate takes effect.

    (a) A withholding exemption certificate furnished the employer in 
any case in which no previous withholding exemption certificate is in 
effect with such employer, shall take effect as of the beginning of the 
first payroll period ending, or the first payment of wages made without 
regard to a payroll period, on or after the date on which such 
certificate is so furnished.
    (b) A withholding exemption certificate furnished the employer in 
any case in which a previous withholding exemption certificate is in 
effect with such employer shall, except as hereinafter provided, take 
effect with respect to the first payment of wages made on or after the 
first status determination date which occurs at least 30 days after the 
date on which such certificate is so furnished. However, at the election 
of the employer, except as hereinafter provided, such certificate may be 
made effective with respect to any payment of wages made on or after the 
date on which such certificate is so furnished and before such status 
determination date.
    (c) A withholding exemption certificate furnished the employer 
pursuant to section 3402(f)(2)(C) (see paragraph (c) of 
Sec. 31.3402(f)(2)-1 or paragraph (b)(2)(ii) of Sec. 31.3402(1)-1) which 
effects a change for the next calendar year, shall not take effect, and 
may not be made effective, with respect to the calendar year in which 
the certificate is furnished. A withholding exemption certificate 
furnished the employer by an employee who determines his income tax 
liability on a basis other than

[[Page 226]]

a calendar- year basis, as required by paragraph (b)(4) of 
Sec. 31.3402(f)(2)-1, which effects a change for the employee's next 
taxable year, shall not take effect, and may not be made effective, with 
respect to the taxable year of the employee in which the certificate is 
furnished.
    (d) For purposes of this section, the term ``status determination 
date'' means January 1, May 1, July 1, and October 1 of each year.

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 6516, 25 FR 13106, Dec. 20, 1960, as amended by T.D. 7048, 35 FR 
10291, June 24, 1970; T.D. 7065, 35 FR 16539, Oct. 23, 1970; T.D. 7115, 
36 FR 9234, May 21, 1971; T.D. 7915, 48 FR 44073, Sept. 27, 1983]



Sec. 31.3402(f)(4)-1  Period during which withholding exemption certificate remains in effect.

    (a) In general. Except as provided in paragraphs (b) and (c) of this 
section, a withholding exemption certificate which takes effect under 
section 3402(f) of the Internal Revenue Code of 1954, or which on 
December 31, 1954, was in effect under section 1622(h) of the Internal 
Revenue Code of 1939, shall continue in effect with respect to the 
employee until another withholding exemption certificate takes effect 
under section 3402(f). Paragraphs (b) and (c) of this section are 
applicable only for withholding exemption certificates furnished by the 
employee to the employer before January 1, 1982. See Sec. 31.3402(f)(4)-
2 for the rules applicable to withholding exemption certificates 
furnished by the employee to the employer after December 31, 1981.
    (b) Withholding allowances under section 3402(m) for itemized 
deductions. In no case shall the portion of a withholding exemption 
certificate relating to withholding allowances under section 3402(m) for 
itemized deductions be effective with respect to any payment of wages 
made to an employee--
    (1) In the case of an employee whose liability for tax under 
subtitle A of the Code is determined on a calendar-year basis, after 
April 30 of the calendar year immediately following the calendar year 
which was his estimation year for purposes of determining the 
withholding allowance or allowances claimed on such exemption 
certificate, or
    (2) In the case of an employee to whom paragraph (c)(1) of this 
section does not apply, after the last day of the fourth month 
immediately following his taxable year which was his estimation year for 
purposes of determining the withholding allowance or allowances claimed 
on such exemption certificate.
    (c) Statements under section 3402(n) eliminating requirement of 
withholding. The statements described in Sec. 31.3402(n)-1 made by an 
employee with respect to his preceding taxable year and current taxable 
year shall be deemed to have been made also with respect to his current 
taxable year and his taxable year immediately thereafter, respectively, 
until either a new withholding exemption certificate furnished by the 
employee takes effect or the existing certificate which contains such 
statements expires. In no case shall a withholding exemption certificate 
which contains such statements be effective with respect to any payment 
of wages made to an employee--
    (1) In the case of an employee whose liability for tax under 
subtitle A is determined on a calendar-year basis, after April 30 of the 
calendar year immediately following the calendar year which was his 
original current taxable year for purposes of such statements, or
    (2) In the case of an employee to whom paragraph (c)(1) of this 
section does not apply, after the last day of the fourth month 
immediately following his original current taxable year for purposes of 
such statements.

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 7048, 35 FR 10291, June 24, 1970, as amended by T.D. 7065, 35 FR 
16539, Oct. 23, 1970; T.D. 7915, 48 FR 44073, Sept. 27, 1983]



Sec. 31.3402(f)(4)-2  Effective period of withholding exemption certificate.

    (a) In general. Except as provided in paragraphs (b) and (c) of this 
section, a withholding exemption certificate that takes effect under 
section 3402(f) of the

[[Page 227]]

Internal Revenue Code of 1954, or that on December 31, 1954, was in 
effect under section 1622(h) of the Internal Revenue Code of 1939, shall 
continue in effect with respect to the employee until another 
withholding exemption certificate takes effect under section 3402(f). 
Paragraphs (b) and (c) of this section are applicable only for 
withholding exemption certificates furnished by the employee to the 
employer after December 31, 1981. See Sec. 31.3402(f)(4)-1 for the rules 
applicable to withholding exemption certificates furnished by the 
employee to the employer before January 1, 1982.
    (b) Withholding allowances under section 3402(m). See paragraphs (b) 
and (c) of Sec. 31.3402(f)(2)-1 (relating to withholding exemption 
certificates) for information as to when an employee claiming 
withholding allowances under section 3402(m) and the regulations 
thereunder must file a new withholding exemption certificate with his 
employer.
    (c) Statements under section 3402(n) eliminating requirement of 
withholding. The statements described in Sec. 31.3402(n)-1 made by an 
employee with respect to his preceding taxable year and current taxable 
year shall be effective until either a new withholding exemption 
certificate furnished by the employee takes effect or the existing 
certificate that contains such statements expires. In no case shall a 
withholding exemption certificate that contains such statements be 
effective with respect to any payment of wages made to an employee:
    (1) In the case of an employee whose liability for tax under 
subtitle A is determined on a calendar year basis, after February 15 of 
the calendar year following the estimation year, or
    (2) In the case of an employee to whom paragraph (c)(1) of this 
section does not apply, after the 15th day of the 2nd calendar month 
following the last day of the estimation year.
    (d) Estimation year. The estimation year is the taxable year 
including the day on which the employee files the withholding exemption 
certificate with his employer, except that if the employee files the 
withholding exemption certificate with his employer and specifies on the 
certificate that the certificate is not to take effect until a specified 
future date, the estimation year shall be the taxable year including 
that specified future date.

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 7915, 48 FR 44073, Sept. 27, 1983]



Sec. 31.3402(f)(5)-1  Form and contents of withholding exemption certificates.

    (a) Form W-4. Form W-4 is the form prescribed for the withholding 
exemption certificate required to be filed under section 3402(f)(2). A 
withholding exemption certificate shall be prepared in accordance with 
the instructions and regulations applicable thereto, and shall set forth 
fully and clearly the data therein called for. A withholding exemption 
certificate that does not set forth fully and clearly the data therein 
called for is an invalid withholding exemption certificate under 
Sec. 31.3402(f)(2)-1(e) (relating to withhholding exemption 
certificates). Blank copies of paper Forms W-4 will be supplied to 
employers upon request to the Internal Revenue Service. In lieu of the 
prescribed form, employers may prepare and use a form the provisions of 
which are identical with those of the prescribed form, but only if 
employers also provide employees with all the tables and instructions 
contained in the Form W-4 in effect at that time and only if employers 
comply with all revenue procedures relating to substitute forms in 
effect at that time.
    (b) Invalid Form W-4. A Form W-4 does not meet the requirements of 
section 3402(f)(5) or this section and is invalid if it contains an 
alteration or unauthorized addition. For purposes of Sec. 31.3402(f)(2)-
1(e) and this paragraph--
    (1) An alteration of a withholding exemption certificate is any 
deletion of the language of the jurat or other similar provision of such 
certificate by which the employee certifies or affirms the correctness 
of the completed certificate, or any material defacing of such 
certificate;
    (2) An unauthorized addition to a withholding exemption certificate 
is any writing on such certificate other than the entries requested 
(e.g., name,

[[Page 228]]

address, and number of exemptions claimed).
    (c) Electronic Form W-4--(1) In general. An employer may establish a 
system for its employees to file withholding exemption certificates 
electronically.
    (2) Requirements--(i) In general. The electronic system must ensure 
that the information received is the information sent, and must document 
all occasions of employee access that result in the filing of a Form W-
4. In addition, the design and operation of the electronic system, 
including access procedures, must make it reasonably certain that the 
person accessing the system and filing the Form W-4 is the employee 
identified in the form.
    (ii) Same information as paper Form W-4. The electronic filing must 
provide the employer with exactly the same information as the paper Form 
W-4.
    (iii) Jurat and signature requirements. The electronic filing must 
be signed by the employee under penalties of perjury.
    (A) Jurat. The jurat (perjury statement) must contain the language 
that appears on the paper Form W-4. The electronic program must inform 
the employee that he or she must make the declaration contained in the 
jurat and that the declaration is made by signing the Form W-4. The 
instructions and the language of the jurat must immediately follow the 
employee's income tax withholding selections and immediately precede the 
employee's electronic signature.
    (B) Electronic signature. The electronic signature must identify the 
employee filing the electronic Form W-4 and authenticate and verify the 
filing. For this purpose, the terms ``authenticate'' and ``verify'' have 
the same meanings as they do when applied to a written signature on a 
paper Form W-4. An electronic signature can be in any form that 
satisfies the foregoing requirements. The electronic signature must be 
the final entry in the employee's Form W-4 submission.
    (iv) Copies of electronic Forms W-4. Upon request by the Internal 
Revenue Service, the employer must supply a hardcopy of the electronic 
Form W-4 and a statement that, to the best of the employer's knowledge, 
the electronic Form W-4 was filed by the named employee. The hardcopy of 
the electronic Form W-4 must provide exactly the same information as, 
but need not be a facsimile of, the paper Form W-4.
    (3) Effective date--(i) In general. This paragraph applies to all 
withholding exemption certificates filed electronically by employees on 
or after January 2, 1997.
    (ii) Special rule for certain Forms W-4. In the case of an 
electronic system that precludes the filing of Forms W-4 required on 
commencement of employment and Forms W-4 claiming more than 10 
withholding exemptions or exemption from withholding, the requirements 
of paragraph (c)(2)(iii) of this section will be treated as satisfied if 
the Form W-4 is filed electronically before January 1, 1999.

[T.D. 7423, 41 FR 26217, June 25, 1976, as amended by T.D. 7915, 48 FR 
44074, Sept. 27, 1983; T.D. 8706, 62 FR 24, Jan. 2, 1997]



Sec. 31.3402(f)(6)-1  Withholding exemptions for nonresident alien individuals.

    A nonresident alien individual (other than, in regard to wages paid 
after February 28, 1979, a nonresident alien individual treated as a 
resident under section 6013(g) or (h)) subject to withholding under 
section 3402 is on any 1 day entitled under section 3402(f)(1) and 
Sec. 31.3402(f)(1)-1 to the number of withholding exemptions 
corresponding to the number of personal exemptions to which he is 
entitled on such day by reason of the application of section 873(b)(3) 
or section 876, whichever applies. Thus, a nonresident alien individual 
who is not a resident of Canada or Mexico and who is not a resident of 
Puerto Rico during the entire taxable year, is allowed under section 
3402(f)(1) only one withholding exemption.

[T.D. 6908, 31 FR 16776, Dec. 31, 1966, as amended by T.D. 7670, 45 FR 
6932, Jan. 31, 1980]



Sec. 31.3402(g)-1  Supplemental wage payments.

    (a) In general. (1) An employee's remuneration may consist of wages 
paid for a payroll period and supplemental wages, such as bonuses, 
commissions, and overtime pay, paid for the same or a different period, 
or without regard to

[[Page 229]]

a particular period. When such supplemental wages are paid (whether or 
not at the same time as the regular wages) the amount of the tax 
required to be withheld under section 3402(a) (the percentage method) or 
under section 3402(c) (the wage bracket method) shall be determined in 
accordance with this paragraph or paragraph (b) of this section.
    (2) The supplemental wages, if paid concurrently with wages for a 
payroll period, shall be aggregated with the wages paid for such payroll 
period. If not paid concurrently, the supplemental wages shall be 
aggregated with the wages paid or to be paid within the same calendar 
year for the last preceding payroll period or for the current payroll 
period. The amount of tax to be withheld shall be determined as if the 
aggregate of the supplemental wages and the regular wages constituted a 
single wage payment for the regular payroll period.

    Example 1. A, a single person, is employed as a salesman at a 
monthly salary of $130 plus commissions on sales made during the month. 
The number of withholding exemptions claimed is one. During May 1966 A 
earns $300 in commissions, which together with the salary of $130 is 
paid on June 10, 1966. Under the wage bracket method the amount of the 
tax required to be withheld is shown in the table applicable to a 
monthly payroll period with respect to an employee who is not married. 
Under this table it will be found that the amount of tax required to be 
withheld is $58.40.

    Example 2. B, a married person, is employed at a salary of $3,600 
per annum paid semimonthly on the 15th day and the last day of each 
month, plus a bonus and commission determined at the end of each 3-month 
period. The bonus and commission for the 3-month period ending on 
September 30, 1966, amount to $250, which is paid on October 10, 1966. B 
has in effect a withholding exemption certificate on which he claimed 
four withholding exemptions and disclosed that he is married. Under the 
wage bracket method, the amount of tax required to be withheld on the 
aggregate of the bonus of $250 and the last preceding semimonthly wage 
payment of $150, or $400, is shown in the table applicable to a married 
person with a semimonthly payroll period to be $44.50. However, since 
tax in the amount of $3.50 was withheld on the semimonthly wage payment 
of $150, the amount to be withheld on October 10, 1966, is $41.00.

If, however, supplemental wages are paid and tax has been withheld from 
the employee's regular wages, the employer may determine the tax to be 
withheld--
    (i) From supplemental wages paid prior to May 1, 1966, by using the 
rate in effect under section 3402(a) at the time the wages are paid, and
    (ii) From supplemental wages paid after April 30, 1966, by using a 
flat percentage rate of 20 percent,

without allowance for exemption and without reference to any regular 
payment of wages.
    (3) For provisions relating to the treatment of wages paid other 
than in cash to retail commission salesmen, see Sec. 31.3402(j)-1.
    (b) Special rule where aggregate withholding exemption exceeds wages 
paid. (1) If supplemental wages are paid to an employee during a 
calendar year for a period which involves two or more consecutive 
payroll periods, for which other wages also are paid during such 
calendar year, and the aggregate of such other wages is less than the 
aggregate of the amounts determined under the table provided in section 
3402(b) (1) as the withholding exemptions applicable for such payroll 
periods, the amount of the tax required to be withheld on the 
supplemental wages shall be computed as follows:

    Step 1. Determine an average wage for each of such payroll periods 
by dividing the sum of the supplemental wages and the wages paid for 
such payroll periods by the number of such payroll periods.
    Step 2. Determine a tax for each payroll period as if the amount of 
the average wage constituted the wages paid for such payroll period.
    Step 3. From the sum of the amounts of tax determined in Step 2 
subtract the total amount of tax withheld, or to be withheld, from the 
wages, other than the supplemental wages, for such payroll periods. The 
remainder, if any shall constitute the amount of the tax to be withheld 
upon the supplemental wages.
    Example. An employee has a weekly payroll period ending on Saturday 
of each week, the wages for which are paid on Friday of the succeeding 
week. On the 10th day of each month he is paid a bonus based upon 
production during the payroll periods for which wages were paid in the 
preceding month. The employee is paid a weekly wage of $64 on each of 
the five Fridays occurring in July 1966. On August 10, 1966, the 
employee is paid

[[Page 230]]

a bonus of $125 based upon production during the five payroll periods 
covered by the wages paid in July. On the date of payment of the bonus, 
the employee, who is married and has three children, has a withholding 
exemption certificate in effect indicating that he is married and 
claiming five withholding exemptions. The amount of the tax to be 
withheld from the bonus paid on August 10, 1966, is computed as follows:

Wages paid in July 1966 for 5 payroll periods (5 x $64).....     $320.00
Bonus paid August 10, 1966..................................      125.00
                                                             -----------
      Aggregate of wages and bonus..........................      445.00
                                                             ===========
Average wage per payroll period ($4455).............       89.00
Computation of tax under percentage method: Withholding            67.50
 exemptions (5 x $13.50)....................................
                                                             -----------
      Remainder subject to tax..............................       21.50
                                                             ===========
Tax on average wage for 1 week under percentage method of           2.45
 withholding (married person with weekly payroll period) 14
 percent of $17.50 (excess over $4))........................
                                                             ===========
Tax on average wage for 5 weeks.............................       12.25
Less: Tax previously withheld on weekly wage payments of $64        None
  Tax to be withheld on supplemental wages..................       12.25
                                                             ===========
Computation of tax under wage bracket method: Tax on $89           12.50
 wage under weekly wage table for married person ($2.50 per
 week for 5 weeks)..........................................
Less: Tax previously withheld on weekly wage payments of $64        None
Tax to be withheld on supplemental wages....................       12.50
 


    (2) The rules prescribed in this paragraph shall, at the election of 
the employer, be applied in lieu of the rules prescribed in paragraph 
(a) of this section except that this paragraph shall not be applicable 
in any case in which the payroll period of the employee is less than one 
week.
    (c) Vacation allowances. Amounts of so-called ``vacation 
allowances'' shall be subject to withholding as though they were regular 
wage payments made for the period covered by the vacation. If the 
vacation allowance is paid in addition to the regular wage payment for 
such period, the rules applicable with respect to supplemental wage 
payments shall apply to such vacation allowance.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6860, 30 FR 
13947, Nov. 4, 1965; T.D. 6882, 31 FR 5661, Apr. 12, 1966]



Sec. 31.3402(g)-2  Wages paid for payroll period of more than one year.

    If wages are paid to an employee for a payroll period of more than 
one year, for the purpose of determining the amount of tax required to 
be deducted and withheld in respect of such wages--
    (a) Under the percentage method, the amount of the tax shall be 
determined as if such payroll period constituted an annual payroll 
period, and
    (b) Under the wage bracket method, the amount of the tax shall be 
determined as if such payroll period constituted a miscellaneous payroll 
period of 365 days.



Sec. 31.3402(g)-3  Wages paid through an agent, fiduciary, or other person on behalf of two or more employers.

    (a) If a payment of wages is made to an employee by an employer 
through an agent, fiduciary, or other person who also has the control, 
receipt, custody, or disposal of, or pays the wages payable by another 
employer to such employee, the amount of the tax required to be withheld 
on each wage payment made through such agent, fiduciary, or person 
shall, whether the wages are paid separately on behalf of each employer 
or paid in a lump sum on behalf of all such employers, be determined 
upon the aggregate amount of such wage payment or payments in the same 
manner as if such aggregate amount had been paid by one employer. Hence, 
under either the percentage method or the wage bracket method the tax 
shall be determined upon the aggregate amount of the wage payment.
    (b) In any such case, each employer shall be liable for the return 
and payment of a pro rata portion of the tax so determined, such portion 
to be determined in the ratio which the amount contributed by the 
particular employer bears to the aggregate of such wages.
    (c) For example, three companies maintain a central management 
agency which carries on the administrative work of the several 
companies. The central agency organization consists of a staff of 
clerks, bookkeepers, stenographers, etc., who are the common employees 
of the three companies. The expenses of the central agency, including 
wages paid to the foregoing employees, are borne by the several 
companies in certain agreed proportions. Company X pays 45 percent, 
Company Y pays 35 percent and Company Z pays 20 percent

[[Page 231]]

of such expenses. The amount of tax required to be withheld on the wages 
paid to persons employed in the central agency should be determined in 
accordance with the provisions of this section. In such event, Company X 
is liable as an employer for the return and payment of 45 percent of the 
tax required to be withheld, Company Y is liable for the return and 
payment of 35 percent of the tax and Company Z is liable for the return 
and payment of 20 percent of the tax. (See Sec. 31.3504-1, relating to 
acts to be performed by agents.)



Sec. 31.3402(h)(1)-1  Withholding on basis of average wages.

    (a) In general. An employer may determine the amount of tax to be 
deducted and withheld upon a payment of wages to an employee on the 
basis of the employee's average estimated wages, with necessary 
adjustments, for any quarter. This paragraph applies only where the 
method desired to be used includes wages other than tips (whether or not 
tips are also included).
    (b) Withholding on the basis of average estimated tips--(1) In 
general. Subject to certain limitations and conditions, an employer may, 
at his discretion, withhold the tax under section 3402 in respect of 
tips reported by an employee to the employer on an estimated basis. An 
employer who elects to make withholding of the tax on an estimated basis 
shall:
    (i) In respect of each employee, make an estimate of the amount of 
tips that will be reported, pursuant to section 6053, by the employee to 
the employer in a calendar quarter.
    (ii) Determine the amount which must be deducted and withheld upon 
each payment of wages (exclusive of tips) which are under the control of 
the employer to be made during the quarter by the employer to the 
employee. The total amount which must be deducted and withheld shall be 
determined by assuming that the estimated tips for the quarter represent 
the amount of wages to be paid to the employee in the form of tips in 
the quarter and that such tips will be ratably (in terms of pay periods) 
paid during the quarter.
    (iii) Deduct and withhold from any payment of wages (exclusive of 
tips) which are under the control of the employer, or from funds 
referred to in section 3402(k) (see Secs. 31.3402(k) and 31.3402(k)-1), 
such amount as may be necessary to adjust the amount of tax withheld on 
the estimated basis to conform to the amount required to be withheld in 
respect of tips reported by the employee to the employer during the 
calendar quarter in written statements furnished to the employer 
pursuant to section 6053(a). If an adjustment is required, the 
additional tax required to be withheld may be deducted upon any payment 
of wages (exclusive of tips) which are under the control of the employer 
during the quarter and within the first 30 days following the quarter or 
from funds turned over by the employee to the employer for such purpose 
within such period. For provisions relating to the repayment to an 
employee, or other disposition, of amounts deducted from an employee's 
remuneration in excess of the correct amount of tax, see 
Sec. 31.6413(a)-1.
    (2) Estimating tips employee will report--(i) Initial estimate. The 
initial estimate of the amount of tips that will be reported by a 
particular employee in a calendar quarter shall be made on the basis of 
the facts and circumstances surrounding the employment of that employee. 
However, if a number of employees are employed under substantially the 
same circumstances and working conditions, the initial estimate 
established for one such employee may be used as the initial estimate 
for other employees in that group.
    (ii) Adjusting estimate. If the quarterly estimate of tips in 
respect of a particular employee continues to differ substantially from 
the amount of tips reported by the employee and there are no unusual 
factors involved (for example, an extended absence from work due to 
illness) the employer shall make an appropriate adjustment of his 
estimate of the amount of tips that will be reported by the employee.
    (iii) Reasonableness of estimate. The employer must be prepared, 
upon request of the district director, to disclose the factors upon 
which he relied

[[Page 232]]

in making the estimate, and his reasons for believing that the estimate 
is reasonable.

[T.D. 7053, 35 FR 11626, July 21, 1970]



Sec. 31.3402(h)(2)-1  Withholding on basis of annualized wages.

    An employer may determine the amount of tax to be deducted and 
withheld upon a payment of wages to an employee by taking the following 
steps:

    Step 1. Multiply the amount of the employee's wages for the payroll 
period by the number of such periods in the calendar year.
    Step 2. Determine the amount of tax which would be required to be 
deducted and withheld upon the amount determined in Step 1 if that 
amount constituted the actual wages for the calendar year and the 
payroll period of the employee were an annual payroll period.
    Step 3. Divide the amount of tax determined in Step 2 by the number 
of periods by which the employee's wages were multiplied in Step 1.
    Example. On July 1, 1970, A, a single person who is on a weekly 
payroll period and claims one exemption, receives wages of $100 from X 
Co., his employer. X Co. multiplies the weekly wage of $100 by 52 weeks 
to determine an annual wage of $5,200. It then subtracts $650 for A's 
withholding exemption and arrives at a balance of $4,550. The applicable 
table in section 3402(a) for annual payroll periods indicates that the 
amount of tax to be withheld thereon is $376 plus $314.50 (17 percent of 
excess over $2,700), or a total of $690.50. The annual tax of $690.50, 
when divided by 52 to arrive at the portion thereof attributable to the 
weekly payroll period, equals $13.28. X Co. may, if it chooses, withhold 
$13.28 rather than the amount specified in section 3402 (a) or (c) for a 
weekly payroll period.


[T.D. 7053, 35 FR 11627, July 21, 1970]



Sec. 31.3402(h)(3)-1  Withholding on basis of cumulative wages.

    (a) In general. In the case of an employee who has in effect a 
request that the amount of tax to be withheld from his wages be computed 
on the basis of his cumulative wages, and whose wages since the 
beginning of the current calendar year have been paid with respect to 
the same category of payroll period (e.g., weekly or semimonthly), the 
employer may determine the amount of tax to be deducted and withheld 
upon a payment of wages made to the employee after December 31, 1969, by 
taking the following steps:

    Step 1. Add the amount of the wages to be paid the employee for the 
payroll period to the total amount of wages paid by the employer to the 
employee during the calendar year.
    Step 2. Divide the aggregate amount of wages computed in Step 1 by 
the number of payroll periods to which that amount relates.
    Step 3. Compute the total amount of tax that would have been 
required to be deducted and withheld under section 3402(a) if the 
average amount of wages (as computed in Step 2) had been paid to the 
employee for the number of payroll periods to which the aggregate amount 
of wages (computed in Step 1) relates.
    Step 4. Determine the excess, if any, of the amount of tax computed 
in Step 3 over the total amount of tax already deducted and withheld by 
the employer from wages paid to the employee during the calendar year.
    Example. On July 1, 1970, Y Co. employs B, a single person claiming 
one exemption. Y Co. pays B the following amounts of wages on the basis 
of a biweekly payroll period on the following pay days:

July 20.......................................................    $1,000
August 3......................................................       300
August 17.....................................................       300
August 31.....................................................       300
September 14..................................................       300
September 28..................................................       300
 


On October 5, B requests that Y Co. withhold on the basis of his 
cumulative wages with respect to his wages to be paid on October 12 and 
thereafter. Y Co. adds the $300 in wages to be paid to B on October 12 
to the payments of wages already made to B during the calendar year, and 
determines that the aggregate amount of wages is $2,800. The average 
amount of wages for the 7 biweekly payroll periods is $400. The total 
amount of tax required to be deducted and withheld for payments of $400 
for each of 7 biweekly payroll periods is $485.87 under section 3402(a). 
Since the total amount of tax which has been deducted and withheld by Y 
Co. through September 28 is $484.86, Y Co. may, if it chooses, deduct 
and withhold $1.01 (the amount by which $485.87 exceeds the total amount 
already withheld by Y Co.) from the payment of wages to B on October 12 
rather than the amount specified in section 3402 (a) or (c).

    (b) Employee's request and revocation of request. An employee's 
request that his employer withhold on the basis of his cumulative wages 
and a notice of revocation of such request shall be in writing and in 
such form as the employer may prescribe. An employee's

[[Page 233]]

request furnished to his employer pursuant to this section shall be 
effective, and may be acted upon by his employer, after the furnishing 
of such request and before a revocation thereof is effective. A 
revocation of such request may be made at any time by the employee 
furnishing his employer with a notice of revocation. The employer may 
give immediate effect to a revocation, but, in any event, a revocation 
shall be effective with respect to payments of wages made on or after 
the first ``status determination date'' (see section 3402(f)(3)(B)) 
which occurs at least 30 days after the date on which such notice is 
furnished.
    (c) Requests due to increases or decreases in allowances. An 
employee may request pursuant to this section that his employer withhold 
on the basis of the employee's cumulative wages when the employee is 
entitled to claim an increased or decreased number of withholding 
allowances under Sec. 31.3402(m)-1 during the estimation year (as 
defined in Sec. 31.3402(m)-1(c)(1)).

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 7053, 35 FR 11627, July 21, 1970, as amended by T.D. 7915, 48 FR 
44074, Sept. 27, 1983]



Sec. 31.3402(h)(4)-1  Other methods.

    (a) Maximum permissible deviations. An employer may use any other 
method of withholding under which the employer will deduct and withhold 
upon wages paid to an employee after December 31, 1969, for a payroll 
period substantially the same amount as would be required to be deducted 
and withheld by applying section 3402(a) with respect to the payroll 
period. For purposes of section 3402(h)(4) and this section, an amount 
is substantially the same as the amount required to be deducted and 
withheld under section 3402(a) if its deviation from the latter amount 
is not greater than the maximum permissible deviation prescribed in this 
paragraph. The maximum permissible deviation under this paragraph is 
determined by annualizing wages as provided in Step 1 of 
Sec. 31.3402(h)(2)-1 and applying the following table to the amount of 
tax required to be deducted and withheld under section 3402(a) with 
respect to such annualized wages, as determined under Step 2 of 
Sec. 31.3402(h)(2)-1:

 
 If the tax required to be withheld under      The maximum permissible
 the annual percentage rate schedule is--       annual deviation is--
 
$10 to $100...............................  $10, plus 10 percent of
                                             excess over $10.
$100 to $1,000............................  $19, plus 3 percent of
                                             excess over $100.
$1,000 or over............................  $46, plus 1 percent of
                                             excess over $1,000.
 


In any case, an amount which is less than $10 more or less per year than 
the amount required to be deducted and withheld under section 3402(a) is 
substantially the same as the latter amount. If any method produces 
results which are not greater than the prescribed maximum deviations 
only with respect to some of his employees, the employer may use such 
method only with respect to such employees. An employer should 
thoroughly test any method which he contemplates using to ascertain 
whether it meets the tolerances prescribed by this paragraph. An 
employer may not use any method, one of the principal purposes of which 
is to consistently produce amounts to be deducted and withheld which are 
less (though substantially the same) than the amount required to be 
deducted and withheld by applying section 3402(a).
    (b) Combined FICA and income tax withholding. In addition to the 
methods authorized by paragraph (a) of this section, an employer may 
determine the amount of tax to be deducted and withheld under section 
3402 upon a payment of wages to an employee by using tables prescribed 
by the Commissioner which combine the amounts of tax to be deducted 
under sections 3102 and 3402. Such tables shall provide for the 
deduction of the sum of such amounts, computed on the basis of the 
midpoints of the wage brackets in the tables prescribed under section 
3402(c). The portion of such sum which is to be treated as the tax 
deducted and withheld under section 3402 shall be the amount obtained by 
subtracting from such sum the amount of tax required to be deducted by 
section 3102. Such tables

[[Page 234]]

may be used only with respect to payments which are wages under both 
sections 3121(a) and 3401(a).
    (c) Part-year employment method of withholding--(1) In general. In 
addition to the methods authorized by other paragraphs of this section, 
in the case of part-year employment (as defined in subparagraph (4) of 
this paragraph) of an employee who determines his liability for tax 
under subtitle A of the Code on a calendar-year basis and who has in 
effect a request that the amount of tax to be withheld from his wages be 
computed according to the part-year employment method described in this 
paragraph, the employer may determine the amount of tax to be deducted 
and withheld upon a payment of wages made to the employee on or after 
January 5, 1973, by taking the following steps:

    Step 1. Add the amount of wages to be paid to the employee for the 
current payroll period to the total amount of wages paid by the employer 
to the employee for all preceding payroll periods included in the 
current term of continuous employment (as defined in subparagraph (3) of 
this paragraph) of the employee by the employer;
    Step 2. Divide the aggregate amount of wages computed in Step 1 by 
the total of the number of payroll periods to which that amount relates 
plus the equivalent number of payroll periods (as defined in 
subparagraph (2) of this paragraph) in the employee's term of continuous 
unemployment immediately preceding the current term of continuous 
employment, such term of continuous unemployment to be exclusive of any 
days prior to the beginning of the current calendar year;
    Step 3. Determine the total amount of tax that would have been 
required to be deducted and withheld under section 3402 if the average 
amount of wages (as computed in Step 2) had been paid to the employee 
for the number of payroll periods determined in Step 2 (including the 
equivalent number of payroll periods); and
    Step 4. Determine the excess, if any, of the amount of tax computed 
in Step 3 over the total amount of tax already deducted and withheld by 
the employer from wages paid to the employee for all payroll periods 
during the current term of continuous employment.


The use of the method described in this paragraph does not preclude the 
employee from claiming additional withholding allowances pursuant to 
section 3402(m) or the standard deduction allowance pursuant to section 
3402(f)(1)(G).
    (2) Equivalent number of payroll periods. For purposes of this 
paragraph, the equivalent number of payroll periods shall be determined 
by dividing the number of calendar days contained in the current payroll 
period into the number of calendar days between the later of (i) the day 
certified by the employee as his last day of employment prior to his 
current term of continuous employment during the calendar year in which 
such term commenced, or (ii) the last day of the calendar year 
immediately preceding the current calendar year, and the first day of 
the current term of continuous employment. For purposes of the preceding 
sentence, the term ``calendar days'' includes holidays, Saturdays, and 
Sundays. In determining the equivalent number of payroll periods, any 
fraction obtained in the division described in the first sentence of 
this subparagraph shall be disregarded. An employee paid for a 
miscellaneous payroll period shall be considered to have a daily payroll 
period for purposes of this subparagraph. In a case in which an employee 
is paid for a daily or miscellaneous payroll period and the employer 
elects under Circular E to compute the tax to be withheld as if the 
aggregate of the wages paid to the employee during the calendar week 
were paid for a weekly period, the employer shall determine the 
equivalent number of payroll periods for purposes of the computation of 
the tax to be withheld for the calendar week on the basis of a weekly 
payroll period (notwithstanding the fact that a determination of the 
equivalent number of payroll periods for purposes of the computation of 
the tax to be withheld upon wages paid for daily or miscellaneous 
payroll periods within such calendar week has been made on the basis of 
a daily or miscellaneous payroll period).
    (3) Term of continuous employment. For purposes of this paragraph, a 
term of employment is continuous if it is either a single term of 
employment or two or more consecutive terms of employment with the same 
employer. A term of continuous employment begins on the first day on 
which any services are performed by the employee for the

[[Page 235]]

employer for which compensation is paid or payable. Such term ends on 
the earlier of (i) the last day during the current term of continuous 
employment on which any services are performed by the employee for the 
employer, or (ii) if the employee performs no services for the employer 
for a period of more than 30 calendar days, the last day preceding such 
period on which any services are performed by the employee for the 
employer. For example, a professional athlete who signs a contract on 
December 31, 1973, to perform services from July 1 through December 31 
for the calendar years 1974, 1975, and 1976 has a new term of employment 
beginning each July 1 and accordingly may qualify for use of the part-
year withholding method in each of such years. Likewise, a term of 
continuous employment is not broken by a temporary layoff of no more 
than 30 days. On the other hand, when an employment relationship is 
actually terminated the term of continuous employment is ended even 
though a new employment relationship is established with the same 
employer within 30 days. A ``term of continuous employment'' includes 
all days on which an employee performs any services for an employer and 
includes days on which services are not performed because of illness or 
vacation, or because such days are holidays or are regular days off 
(such as Saturdays and Sundays, or days off in lieu of Saturdays and 
Sundays), or other days for which the employee is not scheduled to work. 
For example, an employee who is employed 2 days a week for the same 
employer from March 1 through December 31 has a term of continuous 
employment of 306 days.
    (4) Part-year employment. For purposes of this paragraph, ``part-
year employment'' means one or more terms of continuous employment with 
all employers which term or terms will not aggregate more than 245 days 
within a calendar year. For example, A graduates from college in May and 
was not employed from January through May. A accepts a permanent 
position with X Co., beginning June 1. Since the total duration of A's 
term of continuous employment will, during the current calendar year, 
not exceed 245 days it does qualify as part-year employment for purposes 
of this section.

If, however, A had also worked for Y Co. from December 15 of the 
previous year through February 5 of the current calendar year, the total 
duration of A's terms of continuous employment will, during the current 
calendar year, exceed 245 days (36 days (January 1 through February 5) 
plus 214 days (June 1 through December 31) equals 250 days). This year's 
employment does not therefore qualify as part-year employment for 
purposes of this section.
    (5) Employee's request. (i) An employee's request that his employer 
withhold according to the part-year employment method shall be in 
writing and in such form as the employer may prescribe. Such request 
shall be made under the penalties of perjury and shall contain the 
following information--
    (a) The last day of employment (if any) by any employer prior to the 
current term of continuous employment during the calendar year in which 
such term commenced.
    (b) A statement that the employee reasonably anticipates that he 
will be employed for an aggregate of no more than 245 days in all terms 
of continuous employment during the current calendar year, and
    (c) The employee uses a calendar-year accounting period.

An employee's request furnished to his employer pursuant to this section 
shall be effective, and may be acted upon by his employer, with respect 
to wages paid after the furnishing of such request, and shall cease to 
be effective with respect to any wages paid on or after the beginning of 
the payroll period during which the current calendar year will end.
    (ii) If, on any day during the calendar year, any of the 
anticipations stated by the employee in his statement provided pursuant 
to subdivision (i)(b) of this subparagraph becomes unreasonable, the 
employee shall revoke the request described in this subparagraph before 
the end of the payroll period during which it becomes unreasonable. The 
revocation shall be effective as of the beginning of the payroll period 
during which it is made.

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and

[[Page 236]]

(m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 917))


[T.D. 7053, 35 FR 11627, July 21, 1970, as amended by T.D. 7251, 38 FR 
867, Jan 5, 1973; T.D. 7915, 48 FR 44074, Sept. 27, 1983]



Sec. 31.3402(i)-1  Additional withholding.

    (a) In addition to the tax required to be deducted and withheld in 
accordance with the provisions of section 3402, the employer and 
employee may agree that an additional amount shall be withheld from the 
employee's wages. The agreement shall be in writing and shall be in such 
form as the employer may prescribe. The agreement shall be effective for 
such period as the employer and employee mutually agree upon. However, 
unless the agreement provides for an earlier termination, either the 
employer or the employee, by furnishing a written notice to the other, 
may terminate the agreement effective with respect to the first payment 
of wages made on or after the first ``status determination date'' (see 
paragraph (d) of Sec. 31.3402(f)(3)-1) which occurs at least 30 days 
after the date on which such notice if furnished.
    (b) The amount deducted and withheld pursuant to an agreement 
between the employer and employee shall be considered as tax required to 
be deducted and withheld under section 3402. All provisions of law and 
regulations applicable with respect to the tax required to be deducted 
and withheld under section 3402 shall be applicable with respect to any 
amount deducted and withheld pursuant to the agreement.
    (c) This section is applicable only to agreements made before 
October 1, 1981. Any such agreement shall remain in effect in accordance 
with paragraph (a). See Sec. 31.3402 (i)-2 for rules relating to 
increases in withholding after September 30, 1981.

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 65l6, 25 FR 13108, Dec. 20, 1960, as amended by T.D. 7065, 35 FR 
16540, Oct. 23, 1970; T.D. 7915, 48 FR 44074, Sept. 27, 1983]



Sec. 31.3402(i)-2  Increases or decreases in withholding.

    (a) Increases in withholding--(1) In general. In addition to the tax 
required to be deducted and withheld in accordance with the provisions 
of section 3402, the employee may request, after September 30, 1981, 
that the employer deduct and withhold an additional amount from the 
employee's wages. The employer must comply with the employee's request, 
except that the employer shall comply with the employee's request only 
to the extent that the amount that the employee requests to be deducted 
and withheld under this section does not exceed the amount that remains 
after the employer has deducted and withheld all amounts otherwise 
required to be deducted and withheld by Federal law (other than by 
section 3402(i) and this section), State law, and local law (other than 
by State or local law that provides for voluntary withholding). The 
employer must comply with the employee's request in accordance with the 
time limitations of Sec. 31.3402(f)(3)-1 (relating to when withholding 
exemption certificate takes effect). The employee must make his request 
on Form W-4 as provided in Sec. 31.3402(f)(5)-1 (relating to form and 
contents of withholding exemption certificates), and this Form W-4 shall 
take effect and remain effective in accordance with section 3402(f) and 
the regulations thereunder.
    (2) Amount deducted considered to be tax. The amount deducted and 
withheld pursuant to paragraph (a)(1) of this section shall be 
considered to be tax required to be deducted and withheld under section 
3402. All provisions of law and regulations applicable with respect to 
the tax required to be deducted and withheld under section 3402 shall be 
applicable with respect to any amount deducted and withheld under 
paragraph (a)(1) of this section.
    (b) Decreases in withholding. [Reserved]

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 7915, 48 FR 44074, Sept. 27, 1983]


[[Page 237]]





Sec. 31.3402(j)-1  Remuneration other than in cash for service performed by retail commission salesman.

    (a) In general. (1) An employer, in computing the amount to be 
deducted and withheld as tax in accordance with section 3402, may, at 
his election, disregard any wages paid, after August 9, 1955, in a 
medium other than cash for services performed for him by an employee if 
(i) the noncash remuneration is paid for services performed by the 
employee as a retail commission salesman and (ii) the employer 
ordinarily pays the employee remuneration solely by way of cash 
commissions for services performed by him as a retail commission 
salesman.
    (2) Section 3402(j) and this section are not applicable with respect 
to noncash wages paid to a retail commission salesman for services 
performed by him in a capacity other than as such a salesman. Such 
sections are not applicable with respect to noncash wages paid by an 
employer to an employee for services performed as a retail commission 
salesman if the employer ordinarily pays the employee remuneration other 
than by way of cash commissions for such services. Thus, noncash 
remuneration may not be disregarded in computing the amount to be 
deducted and withheld in a case where the employee, for services 
performed as a retail commission salesman, is paid both a salary and 
cash commissions on sales, or is ordinarily paid in something other than 
cash (stocks, bonds, or other forms of property) notwithstanding that 
the amount of remuneration paid to the employee is measured by sales.
    (b) Retail commission salesman. For purposes of section 3402(j) and 
this section, the term ``retail commission salesman'' includes an 
employee who is engaged in the solicitation of orders at retail, that 
is, from the ultimate consumer, for merchandise or other products 
offered for sale by his employer. The term does not include an employee 
salesman engaged in the solicitation on behalf of his employer of orders 
from wholesalers, retailers, or others, for merchandise for resale. 
However, if the salesman solicits orders for more than one principal, he 
is not excluded from the term solely because he solicits orders from 
wholesalers or retailers on behalf of one or more principals. In such 
case the salesman may be a retail commission salesman with respect to 
services performed for one or more principals and not with respect to 
services performed for his other principals.
    (c) Noncash remuneration. The term ``noncash remuneration'' includes 
remuneration paid in any medium other than cash, such as goods or 
commodities, stocks, bonds, or other forms of property. The term does 
not include checks or other monetary media of exchange.
    (d) Cross reference. For provisions relating to records required to 
be kept and statements which must be furnished an employee with respect 
to wage payments, see sections 6001 and 6051 and the regulations 
thereunder in Subpart G of this part.



Sec. 31.3402(k)-1  Special rule for tips.

    (a) Withholding of income tax in respect of tips--(1) In general. 
Subject to the limitations set forth in paragraph (a)(2) of this 
section, an employer is required to deduct and withhold from each of his 
employees tax in respect of those tips received by the employee which 
constitute wages. (For provisions relating to the treatment of tips as 
wages, see Secs. 3401(a)(16) and 3401(f).) The employer shall make the 
withholding by deducting or causing to be deducted the amount of the tax 
from wages (exclusive of tips) which are under the control of the 
employer or other funds turned over by the employee to the employer (see 
paragraph (a)(3) of this section). For purposes of this section the 
terms ``wages (exclusive of tips) which are under the control of the 
employer'' means, with respect to a payment of wages, an amount equal to 
wages as defined in section 3401(a) except that tips and noncash 
remuneration which are wages are not included, less the sum of--
    (i) The tax under section 3101 required to be collected by the 
employer in respect of wages as defined in section 3121(a) (exclusive of 
tips);
    (ii) The tax under section 3402 required to be collected by the 
employer in respect of wages as defined in section 3401(a) (exclusive of 
tips); and

[[Page 238]]

    (iii) The amount of taxes imposed on the remuneration of an employee 
withheld by the employer pursuant to State and local law (including 
amounts withheld under an agreement between the employer and the 
employee pursuant to such law) except that the amount of taxes taken 
into account in this subdivision shall not include any amount 
attributable to tips.
    (2) Limitations. An employer is required to deduct and withhold the 
tax on tips which constitute wages only in respect of those tips which 
are reported by the employee to the employer in a written statement 
furnished to the employer pursuant to section 6053(a). The employer is 
responsible for the collection of the tax on tips reported to him only 
to the extent that the emloyer can, during the period beginning at the 
time the written statement is submitted to him and ending at the close 
of the calendar year in which the statement was submitted, collect the 
tax by deducting it or causing it to be deducted as provided in 
subparagraph (1) of this paragraph.
    (3) Furnishing of funds to employer. If the amount of the tax in 
respect of tips reported by the employee to the employer in a written 
statement furnished pursuant to section 6053(a) exceeds the wages 
(exclusive of tips) which are under the control of the employer from 
which the employer is required to withhold the tax in respect of such 
tips, the employee may furnish to the employer, within the period 
specified in subparagraph (2) of this paragraph, an amount of money 
equal to the amount of such excess.
    (b) Less than $20 of tips. Notwithstanding the provisions of 
paragraph (a) of this section, if an employee furnishes to his employer 
a written statement--
    (1) Covering a period of less than 1 month, and
    (2) The statement is furnished to the employer prior to the close of 
the 10th day of the month following the month in which the tips were 
actually received by the employee, and
    (3) The aggregate amount of tips reported in the statement and in 
all other statements previously furnished by the employee covering 
periods within the same month is less than $20, and such statements, 
collectively, do not cover the entire month,

the employer may deduct amounts equivalent to the tax on such tips from 
wages (exclusive of tips) which are under the control of the employer or 
other funds turned over by the employee to the employer. For provisions 
relating to the repayment to an employee, or other disposition, of 
amounts deducted from an employee's remuneration in excess of the 
correct amount of tax, see Sec. 31.6413(a)-1. (As to the exclusion from 
wages of tips of less than $20, see Sec. 31.3401(a)(16)-1.)
    (c) Priority of tax collection--(1) In general. In the case of a 
payment of wages (exclusive of tips), the employer shall deduct or cause 
to be deducted in the following order:
    (i) The tax under section 3101 and the tax under section 3402 with 
respect to such payment of wages.
    (ii) Any tax under section 3101 which, at the time of payment of the 
wages, the employer is required to collect--
    (a) In respect of tips reported by the employee to the employer in a 
written statement furnished to the employer pursuant to section 6053(a), 
or
    (b) By reason of the employer's election to make collection of the 
tax under section 3101 in respect of tips on an estimated basis,

but which has not been collected by the employer and which cannot be 
deducted from funds turned over by the employee to the employer for such 
purpose. (See Sec. 31.3102-3, relating to collection of, and liability 
for, employee tax on tips.)
    (iii) Any tax under section 3402 which, at the time of the payment 
of the wages, the employer is required to collect--
    (a) In respect of tips reported by the employee to the employer in a 
written statement furnished to the employer pursuant to section 6053(a), 
or
    (b) By reason of the employer's election to make collection of the 
tax under section 3402 in respect of tips on an estimated basis,

but which has not been collected by the employer and which cannot be 
deducted from funds turned over by the employee to the employer for such 
purpose. For provisions relating to the

[[Page 239]]

witholding of tax on the basis of average estimated tips, see paragraph 
(b) of Sec. 31.3402(h)(1)-1.
    (2) Examples. The application of paragraph (b)(1) of this section 
may be illustrated by the following examples (The amounts used in the 
following examples are intended for illustrative purposes and do not 
necessarily reflect currently effective rates or amounts.):

    Example 1. W is a waiter employed by R restaurant. W's principal 
remuneration for his services is in the form of tips received from 
patrons of R; however, he also receives a salary from R of $40 per week, 
which is paid to him every Friday. W is a member of a labor union which 
has a contract with R pursuant to which R is to collect dues for the 
union by withholding from the wages of its employees at the rate of $1 
per week. In addition to the taxes required to be withheld under the 
Internal Revenue Code, W's wages are subject to withholding of a state 
income tax imposed upon both his regular wage and his tips received and 
reported to R.
    On Monday of a given week W furnishes a written statement to R 
pursuant to section 6053(a) in which he reports the receipt of $160 in 
tips. The $40 wage to be paid to W on Friday of the same week is subject 
to the following items of withholding:

------------------------------------------------------------------------
                                           Taxes
                                            with      Taxes
                                          respect      with
                                             to      respect     Total
                                          regular    to tips
                                            wage
------------------------------------------------------------------------
Section 3101 (F.I.C.A.)................      $1.76      $7.04      $8.80
Section 3402 (income tax at source)....       5.65      28.30      33.95
State income tax.......................       1.20       4.80       6.00
Union dues.............................  .........  .........       1.00
                                                              ----------
  Total................................  .........  .........      49.75
------------------------------------------------------------------------


W does not turn over any funds to R. R should satisfy the taxes imposed 
by sections 3101 and 3402 out of W's $40 wage as follows: The taxes 
imposed with respect to the regular wage (a total of $74l) should be 
satisfied first. The taxes imposed with respect to tips are to be 
withheld only out of ``wages (exclusive of tips) which are under the 
control of the employer'' as that phrase is defined in Secs. 31.3102-
3(a)(1) and 31.3402(k)-1(a)(1). The amount of such wages under the 
control of employer in this example is $31.39, or $40, less the amounts 
applied in satisfaction of the Federal and State withholding taxes 
imposed with respect to the regular $40 wage ($8.61). This $31.39 is 
applied first in satisfaction of the tax under section 3101 with respect 
to tips ($7.04) in the balance of $24.35 is applied in partial 
satisfaction of the withholding of income tax at source under section 
3402 with respect to tips. The amount of the tax with respect to tips 
under section 3402 which remains unsatisfied ($3.95) should be withheld 
from wages under the control of the employer the following week.

    Example 2. During the week following the week dealt with in example 
1, W furnishes a written statement to R pursuant to withholding:

------------------------------------------------------------------------
                                           Taxes
                                            with      Taxes
                                          respect      with
                                             to      respect     Total
                                          regular    to tips
                                            wage
------------------------------------------------------------------------
Section 3101 (F.I.C.A.)................      $1.76      $5.72      $7.48
Section 3402 (Income tax at source):
  Current week.........................       5.65      22.30      27.95
  Carryover from prior week............  .........       3.95       3.95
State income tax.......................       1.20       3.90       5.10
Union dues.............................  .........  .........       1.00
Garnishment............................  .........  .........      10.00
                                                              ----------
  Total................................  .........  .........      55.48
------------------------------------------------------------------------


As in example 1, the amount of ``wages (exclusive of tips) which are 
under the control of the employer'' is $31.39. This amount is applied 
first in satisfaction of the tax under section 3101 with respect to tips 
($5.72) and the balance is applied in partial satisfaction of the 
withholding of income tax at source under section 3402 with respect to 
tips (a total of $26.25), including that portion of the amount required 
to be withheld from the prior week's wages which remained unsatisfied. 
The amount of the tax with respect to tips under section 3402 which 
remains unsatisfied ($0.58) should be withheld from wages under the 
control of the employer the following week.

[T.D. 7001, 34 FR 1002, Jan. 23, 1969, as amended by T.D. 7053, 35 FR 
11628, July 21, 1970]



Sec. 31.3402(l)-1  Determination and disclosure of marital status.

    (a) Determination of status by employer. An employer in computing 
the tax to be deducted and withheld from an employee's wages paid after 
April 30, 1966, shall apply the applicable percentage method or wage 
bracket method withholding table (see section 3402 (a), (b), and (c) and 
the regulations thereunder) for the pertinent payroll period which 
relates to employees who are single persons, unless there is in effect 
with respect to such payment of wages a withholding exemption 
certificate furnished to the employer by the employee after March 15, 
1966, indicating that the employee is married in which

[[Page 240]]

case the employer shall apply the applicable table relating to employees 
who are married persons.
    (b) Disclosure of status by employee. (1) An employee shall be 
entitled to furnish the employer with a withholding exemption 
certificate indicating he is married only if, on the day of such 
furnishing, he is married (determined by application of the rules in 
paragraph (c) of this section). Thus, an employee who is contemplating 
marriage may not, prior to the actual marriage, furnish the employer 
with a withholding exemption certificate indicating that he is a married 
person.
    (2) (i) If, on any day during the calendar year, the marital status 
(as determined by application of the rules in paragraph (c) of this 
section) of an employee who has in effect a withholding exemption 
certificate indicating that he is a married person, changes from married 
to single, the employee must within 10 days after the change occurs 
furnish the employer with a new withholding exemption certificate 
indicating that the employee is a single person.
    (ii) If an employee who has in effect a withholding exemption 
certificate indicating that he is a married person, is considered 
married solely because of the application of subparagraph (2)(ii) of 
paragraph (c) of this section, and his spouse died during the taxable 
year which precedes by 2 years the current taxable year, the employee 
must, on or before December 1 of the current taxable year, furnish the 
employer with a new withholding exemption certificate indicating that he 
is a single person. Such certificate shall not, however become effective 
until the next calendar year (see paragraph (c) of Sec. 31.3402(f)(3)-
1).
    (3) If, on any day during the calendar year, the marital status (as 
determined by application of the rules in paragraph (c) of this section) 
of an employee who has in effect a withholding exemption certificate 
indicating that he is a single person changes from single to married, 
the employee may furnish the employer with a new withholding exemption 
certificate indicating that the employee is a married person.
    (c) Determination of marital status. For the purposes of section 
3402(l)(2) and paragraph (b) of this section, the following rules shall 
be applied in determining whether an employee is a married person or a 
single person--
    (1) An employee shall on any day be considered as a single person 
if--
    (i) He is legally separated from his spouse under a decree of 
divorce or separate maintenance, or
    (ii) Either he or his spouse is, or on any preceding day within the 
same calendar year was, a nonresident alien.
    (2) An employee shall on any day be considered as a married person 
if--
    (i) His spouse (other than a spouse referred to in paragraph (c)(1) 
of this section) died within the portion of his taxable year which 
precedes such day, or
    (ii) His spouse died during one of the two taxable years immediately 
preceding the current taxable year and, on the basis of facts existing 
at the beginning of such day, he reasonably expects, at the close of his 
taxable year, to be a surviving spouse as defined in section 2 and the 
regulations thereunder.

[T.D. 7115, 36 FR 9234, May 21, 1971]



Sec. 31.3402(m)-1  Withholding allowances.

    (a) General rule. An employee may claim, with respect to wages paid 
after December 31, 1981, a number of withholding allowances determined 
in accordance with this section. In order to receive the benefit of such 
allowances, the employee must have in effect with his employer a 
withholding exemption certificate claiming such allowances.
    (b) Items that may be taken into account. The following items may be 
taken into account in determining the number of withholding allowances 
an employee may claim:
    (1) Estimated itemized deductions allowable under chapter 1,
    (2) The estimated tax credits allowable under Subpart A of Part IV 
of Subchapter A of Chapter 1, except:
    (i) For the credit for tax withheld on wages under section 31(a) 
(relating to wage withholding),
    (ii) For the credit for tax withheld at source on nonresident aliens 
and foreign corporations and on tax-free covenant bonds under section 
32,

[[Page 241]]

    (iii) That the employee may claim the credit for certain uses of 
gasoline and special fuels under section 39 only to the extent the 
employee has not filed for a quarterly tax refund of the credit on Form 
843,
    (iv) That the employee may claim the credit for earned income under 
section 43 only to the extent the employee has not filed for advance 
payments of the credit on Form W-5, and
    (v) For the credit for overpayment of tax under section 45,
    (3) The estimated trade and business deductions of employees 
described in section 62 (2) and allowed by Part VI of Subchapter B of 
Chapter 1,
    (4) The estimated deduction for payments to pension, profit-sharing, 
annuity, and bond purchase plans of self-employed individuals described 
in section 62(7) and allowed by section 404 and section 405(c),
    (5) The estimated deduction for penalties forfeited because of 
premature withdrawal of funds from time savings accounts or deposits 
described in section 62(12) and allowed by section 165,
    (6) The estimated direct charitable deduction under section 170(i),
    (7) The estimated deduction for net operating loss carryovers under 
section 172,
    (8) The estimated deduction for alimony, etc., payments under 
section 215,
    (9) The estimated deduction for moving expenses under section 217 
but only to the extent that the amount of such deduction is not excluded 
from the definition of wages by section 3401(a)(15),
    (10) The estimated deduction for certain retirement savings under 
section 219 but only to the extent that the amount of such deduction is 
not excluded from the definition of wages by section 3401(a)(12)(D),
    (11) The estimated deduction for two-earner married couples under 
section 221,
    (12) The estimated net losses from schedules C (Profit or (Loss) 
From Business or Profession), D (Capital Gains and Losses), E 
(Supplemental Income Schedule), and F (Farm Income and Expenses) of Form 
1040 and from the last line of Part II of Form 4797 (Supplemental 
Schedule of Gains and Losses),
    (13) The estimated amount of decrease of tax due attributable to 
income averaging under sections 1301 through 1305.

The employee must first use these items ((1) through (13) of this 
paragraph (b)) to eliminate any payment of estimated tax (as defined in 
section 6015(d)). Only amounts of these items remaining after the 
employee has done this may be taken into account in determining the 
number of withholding allowances the employee may claim.
    (c) Definitions--(1) Estimated. The term ``estimated'' as used in 
this section to modify the terms ``deduction'', ``deductions'', 
``credits'', ``losses'', and ``amount of decrease'' means with respect 
to an employee the aggregate dollar amount of a particular item that the 
employee reasonably expects will be allowable to him for the estimation 
year under the section of the Code specified for each item. In no event 
shall that amount exceed the sum of:
    (i) The amount shown for that particular item on the income tax 
return that the employee has filed for the taxable year preceding the 
estimation year (or, if such return has not yet been filed, then the 
income tax return that the employee filed for the taxable year preceding 
such year), which amount the employee also reasonably expects to show on 
the income tax return for the estimation year, plus
    (ii) The determinable additional amounts for each item for the 
estimation year.

The determinable additional amounts are amounts that are not included in 
paragraph (c)(1)(i) of this section and that are demonstrably 
attributable to indentifiable events during the estimation year or the 
preceding year. Amounts are demonstrably attributable to identifiable 
events if they relate to payments already made during the estimation 
year, to binding obligations to make payments (including the payment of 
taxes) during the year, and to other transactions or occurrences, the 
implementation of which has begun and is verifiable at the time the 
employee files a withholding exemption certificate claiming withholding 
allowances relating thereto. The estimation year is the taxable year 
including the day on which the employee files the

[[Page 242]]

withholding exemption certificate with his employer, except that if the 
employee files the withholding exemption certificate with his employer 
and specifies on the certificate that the certificate is not to take 
effect until a specified future date, the estimation year shall be the 
taxable year including that specified future date. It is not reasonable 
for an employee to include in his or her withholding computation for the 
estimation year any amount that is shown for a particular item on the 
income tax return that the employee has filed for the taxable year 
preceding the estimation year (or, if such return has not yet been 
filed, then the income tax return that the employee filed for the 
taxable year preceding such year) and that has been disallowed by the 
Service as part of a proposed adjustment described in Sec. 601.103(b) 
(relating to examination and determination of tax liability) and 
Sec. 601.105(b) (relating to examination of returns).
    (2) Amount of decrease of tax due. The term ``amount of decrease of 
tax due'' as used in paragraph (b)(13) of this section means:
    (i) The amount of tax that the taxpayer would owe on his taxable 
income without using Schedule G (Form 1040), minus
    (ii) The amount of tax that the taxpayer would owe on his taxable 
income using Schedule G (Form 1040).
    (3) Itemized deductions. The term ``itemized deductions'' as used in 
paragraph (b)(1) of this section has the same meaning as ascribed 
thereto by section 63(f) and the regulations thereunder.
    (d) Computing allowances. (1) The employee shall compute the number 
of allowances he may claim for the items specified in paragraph (b) of 
this section in accordance with the tables and instructions on Form W-4.
    (2) If the employee:
    (i) Pays or accrues amounts demonstrably attributable to 
identifiable events (as defined in paragraph (c)(1) of this section) 
that are:
    (A) Interest attributable to ownership of real property and 
deductible under section 163(a), or
    (B) Taxes deductible under section 164(a)(1), or
    (C) Interest or taxes deductible under section 216(a), and
    (ii) Is obligated to pay or accrue such amounts for at least 2 years 
subsequent to the estimation year,

then the employee may compute the portion of estimated itemized 
deductions attributable to such amounts for purposes of paragraph (b)(1) 
of this section by multiplying the total of such amounts to be paid or 
accrued in the estimation year by 12 and by then dividing that result by 
the number of months from the 1st month in the estimation year in which 
the employee pays or accrues such amounts through the last month of the 
estimation year. If such amounts decrease during the term of obligation, 
the employee must, at the beginning of each subsequent calendar year, 
recompute the number of allowances being claimed as required by 
paragraph (c)(1) of this section. If the employee uses the computation 
described in this subparagraph (2), the employee may not request that 
his employer withhold on the basis of the employee's cumulative wages as 
provided in Sec. 31.3402 (h)(3)-1.
    (e) Examples. The application of this section may be illustrated by 
the following examples:

    Example 1. Employee A has an estimated net loss from a partnership 
of $2,000 which would be reported on Schedule E. Employee A is not 
required to make any payments of estimated tax. Employee A may take her 
$2,000 partnership loss into consideration in determining the number of 
withholding allowances to which she is entitled in accordance with the 
tables and instructions on Form W-4.

    Example 2. Employee B has an estimated net loss from a business of 
$3,000 which would be reported on Schedule C. Employee B would also 
otherwise be required to make payments of estimated tax on income of 
$3,000. Employee B may not take his business loss into consideration in 
determining the number of withholding allowances to which he is entitled 
in accordance with the tables and instructions on Form W-4.

    Example 3. Employee C has an estimated net loss from a farm of 
$5,000 which would be reported on Schedule F. Employee C would also 
otherwise be required to make payments of estimated tax on income of 
$4,000. Employee C may only take her farm loss into consideration to the 
extent of $1,000 ($5,000-4,000) in determining the number of withholding 
allowances to which she is entitled

[[Page 243]]

in accordance with the tables and instructions on Form W-4.

    (f) Special rules--(1) Married individuals. (i) Except as provided 
in subdivision (ii) of this subparagraph, a husband and wife shall 
determine the number of withholding allowances to which they are 
entitled under section 3402(m) on the basis of their combined wages and 
allowable items. The withholding allowances to which a husband and wife 
are entitled may be claimed by the husband, by the wife, or they may be 
allocated between them. However, they may not both have withholding 
exemption certificates in effect claiming the same withholding 
allowance.
    (ii) If a husband and wife filed separate income tax returns for the 
taxable year preceding the estimation year and reasonably expect to file 
separate returns for the estimation year, the husband and wife shall 
determine the number of withholding exemptions to which they are 
entitled under section 3402(m) on the basis of their individual wages 
and allowable items, and they shall be considered to be single for 
purposes of the tables on Form W-4.
    (2) Only one certificate to be in effect. An employee who is 
entitled to one or more withholding allowances under section 3402(m) and 
who has, at the same time, two or more employers, may claim such 
withholding allowance or allowances with only one of his employers.

(Secs. 3402(i) and (m) and 7805 of the Internal Revenue Code of 1954 (26 
U.S.C. 3402 (i) and (m), 95 Stat. 172, 184; 26 U.S.C. 7805, 68A Stat. 
917))


[T.D. 7915, 48 FR 44075, Sept. 27, 1983]



Sec. 31.3402(n)-1  Employees incurring no income tax liability.

    Notwithstanding any other provision of this subpart, an employer 
shall not deduct and withhold any tax under chapter 24 upon a payment of 
wages made to an employee after April 30, 1970, if there is in effect 
with respect to the payment a withholding exemption certificate 
furnished to the employer by the employee which contains statements 
that--
    (a) The employee incurred no liability for income tax imposed under 
subtitle A of the Code for his preceding taxable year; and
    (b) The employee anticipates that he will incur no liability for 
income tax imposed by subtitle A for his current taxable year.

For purposes of section 3402(n) and this section, an employee is not 
considered to incur liability for income tax imposed under subtitle A if 
the amount of such tax is equal to or less than the total amount of 
credits against such tax which are allowable to him under part iv of 
subchapter A of chapter 1 of the Code, other than those allowable under 
section 31 or 39. For purposes of section 3402(n) and this section, 
``liability for income tax imposed under subtitle A'' shall include 
liability for a qualified State individual income tax which is treated 
pursuant to section 6361(a) as if it were imposed by chapter 1 of the 
Code. An employee is not considered to incur liability for such a State 
income tax if the amount of such tax does not exceed the total amount of 
the credit against such tax which is allowable to him under section 
6362(b)(2) (B) or (C) or section 6362(c)(4). For purposes of this 
section, an employee who files a joint return under section 6013 is 
considered to incur liability for any tax shown on such return. An 
employee who is entitled to file a joint return under such section shall 
not certify that he anticipates that he will incur no liability for 
income tax imposed by subtitle A for his current taxable year if such 
statement would not be true in the event that he files a joint return 
for such year, unless he filed a separate return for his preceding 
taxable year and anticipates that he will file a separate return for his 
current taxable year.

For rules relating to invalid withholding exemption certificates, see 
Sec. 31.3402(f)(2)-1(e), and for rules relating to submission to the 
Internal Revenue Service of withholding exemption certificates claiming 
a complete exemption from withholding, see Sec. 31.3402(f)(2)-1(g).

    Example 1. Employee A, an unmarried, calendar-year basis taxpayer, 
files his income tax return for 1970 on April 15, 1971. A has adjusted 
gross income of $1,200 and is not liable for any tax. He had $180 of 
income tax withheld during 1970. A anticipates that his gross income for 
1971 will be approximately the

[[Page 244]]

same amount, and that he will not incur income tax liability for that 
year. On April 20, 1971, A commences employment and furnishes his 
employer an exemption certificate stating that he incurred no liability 
for income tax imposed under subtitle A for 1970, and that he 
anticipates that he will incur no liability for income tax imposed under 
subtitle A for 1971. A's employer shall not deduct and withhold on 
payments of wages made to A on or after April 20, 1971. Under paragraph 
(c) of Sec. 31.3402(f)(4)-1, unless A files a new exemption certificate 
with his employer, his employer is required to deduct and withhold upon 
payments of wages to A made on or after May 1, 1972. (Under 
Sec. 31.3402(f)(3)-1(b), if A had been employed by his employer prior to 
April 20, 1971, and had furnished his employer a withholding exemption 
certificate not containing the statements described in Sec. 31.3402(n)-1 
prior to furnishing the withholding exemption certificate containing 
such statements on April 20, 1971, his employer would not be required to 
give effect to the new certificate with respect to payments of wages 
made by him prior to July 1, 1971 (the first status determination date 
which occurs at least 30 days after April 20, 1971). However his 
employer could, if he chose, make the new certificate effective with 
respect to any payment of wages made on or after April 20 and before 
July 1, 1971.)

    Example 2. Assume the facts are the same as in example 1 except that 
for 1970 A has taxable income of $8,000, income tax liability of $1,630, 
and income tax withheld of $1,700. Although A received a refund of $70 
due to income tax withholding of $1,700, he may not state on his 
exemption certificate that he incurred no liability for income tax 
imposed by subtitle A for 1970.


(86 Stat. 944, 26 U.S.C. 6364; and 68A Stat. 917, 26 U.S.C. 7805, 68A 
Stat. 731, 26 U.S.C. 6001; 68A Stat. 732, 26 U.S.C. 6011)


[T.D. 7048, 35 FR 10292, June 24, 1970, as amended by T.D. 7577, 43 FR 
59359, Dec. 20, 1978; T.D. 7598, 44 FR 14553, Mar. 13, 1979; T.D. 7682, 
45 FR 15527, Mar. 11, 1980; T.D. 7803, 47 FR 3547, Jan. 26, 1982]



Sec. 31.3402(o)-1  Extension of withholding to supplemental unemployment compensation benefits.

    (a) In general. Withholding of income tax is required under section 
3402(o) with respect to payments of supplemental unemployment 
compensation benefits made after December 31, 1970, which are treated 
under paragraph (b)(14) of Sec. 31.3401(a)-1 as if they were wages.
    (b) Withholding exemption certificates. For purposes of section 
3402(f) (2) and (3) and the regulations thereunder (relating to 
withholding exemption certificates), in the case of supplemental 
unemployment compensation benefits an employment relationship shall be 
considered to commence with either the date on which such benefits begin 
to accrue or January 1, 1971, whichever is later, and the withholding 
exemption certificate furnished the employer with respect to such 
commencement of employment shall be considered the first certificate 
furnished the employer. The withholding exemption certificate furnished 
by the employee to his former employer (with whom his employment has 
been involuntarily terminated, within the meaning of paragraph 
(b)(14)(ii) of Sec. 31.3401(a)-1) shall be treated as meeting the 
requirements of section 3402(f)(2)(A) and the regulations thereunder if 
such former employer furnishes such certificate to the employee's 
current employer, as defined in paragraph (g) of Sec. 31.340(d)-1, or if 
such former employer is the agent of such current employer with respect 
to the employee's withholding exemption certificate. However, the 
preceding sentence shall not be applicable if such employee furnishes a 
new withholding exemption certificate to such current employer (or his 
agent), provided that such withholding exemption certificate meets the 
requirements of section 3402(f)(2)(A) and the regulations thereunder. 
See the definitions of payroll period in paragraph (c) of 
Sec. 31.3401(b)-1 and of employee in paragraph (g) of Sec. 31.3401(c)-1.

[T.D. 7068, 35 FR 17329, Nov. 11, 1970, as amended by T.D. 7803, 47 FR 
3546, Jan. 26, 1982]



Sec. 31.3402(o)-2  Extension of withholding to annuity payments if requested by payee.

    (a) In general. Under section 3402(o) of the Internal Revenue Code 
of 1954 and this section, the payee (as defined in paragraph (g)(2) of 
this section) of an annuity (as defined in paragraph (g)(1) of this 
section) may request the payor (as defined in paragraph (g)(3) of this 
section) of the annuity to withhold income tax with respect to payments 
of the annuity made after December 31, 1970. If such a request is made, 
the

[[Page 245]]

payor shall deduct and withhold as requested.
    (b) Manner of making request. A payee who wishes a payor to deduct 
and withhold income tax from annuity payments shall file a request with 
the payor to deduct and withhold a specific whole dollar amount from 
each annuity payment. Such specific dollar amount requested shall be at 
least $5 per month and shall not reduce the net amount of any annuity 
payment received by the payee below $10. The request shall be made on 
Form W-4P (annuitant's withholding exemption certificate and request) in 
accordance with the instructions applicable thereto, and shall set forth 
fully and clearly the data therein called for. In lieu of Form W-4P, 
payors may prepare and use a form the provisions of which are identical 
with those of Form W-4P.

For the requirements relating to Form W-4P with respect to qualified 
State individual income taxes, see paragraph (d)(3)(i) of Sec. 301.6361-
1 of this chapter (Regulations on Procedure and Administration).
    (c) When request takes effect. Upon receipt of a request under this 
section the payor of the annuity with respect to which such request was 
made shall deduct and withhold the amount specified in such request from 
each annuity payment commencing with the first annuity payment made on 
or after the date which occurs--
    (1) In a case in which no previous request is in effect, 3 calendar 
months after the date on which such request is furnished to such payor, 
and
    (2) In a case in which a previous request is in effect, the first 
status determination date (see section 3402(f)(3)(B) and paragraph (d) 
of Sec. 31.3402(f)(3)-1 of this chapter) which occurs at least 30 days 
after the date on which such request is so furnished.

However, the payor may, at his election, commence to deduct and withhold 
such specified amount with respect to an annuity payment which is made 
prior to the annuity payment described in the preceding sentence with 
respect to which the payor must commence to deduct and withhold.
    (d) Duration and termination of request. A request under this 
section shall continue in effect until terminated. The payee may 
terminate the request by furnishing the payor a signed written notice of 
termination. Such notice of termination shall, except as hereinafter 
provided, take effect with respect to the first payment of an amount in 
respect of which the request is in effect which is made on or after the 
first status determination date (see section 3402(f)(3)(B) and paragraph 
(d) of Sec. 31.3402(f)(3)-1 of this chapter) which occurs at least 30 
days after the date on which such notice is so furnished. However, at 
the election of such payor, such notice may be made effective with 
respect to any payment of an amount in respect of which the request is 
in effect which is made on or after the date on which such notice is so 
furnished and before such status determination date.
    (e) Special rules. For purposes of chapter 24 of subtitle C of the 
Internal Revenue Code of 1954 (relating to collection of income tax at 
source on wages) and of subtitle F of such Code (relating to procedure 
and administration), and the regulations thereunder--
    (1) An amount which is requested to be withheld pursuant to this 
section shall be deemed a tax required to be deducted and withheld under 
section 3402.
    (2) An amount deducted and withheld pursuant to this section shall 
be deemed an amount deducted and withheld under section 3402.
    (3) The term ``wages'' includes the gross amount of an annuity 
payment with respect to which there is in effect a request for 
withholding under this section. However, references to the definition of 
wages in section 3401(a) which are made in section 6014 (relating to 
election by the taxpayor not to compute the tax on his annual return) 
and section 6015(a) (relating to declaration of estimated tax by 
individuals) shall not be deemed to include any portion of such an 
annuity payment.
    (4) The term ``employer'' includes a payor with respect to whom a 
request for withholding is in effect under this section.
    (5) The term ``employee'' includes a payee with respect to whom a 
request for withholding is in effect under this section.

[[Page 246]]

    (6) The term ``payroll period'' includes the period of accrual with 
respect to which payments of an annuity which is subject to withholding 
under this section are ordinarily made.
    (f) Returns of income tax withheld and statements for payees. (1) 
Form W-2P is to be used in lieu of Form W-2, which is required to be 
furnished by an employer to an employee under Sec. 31.6051-1 of this 
chapter and to the Social Security Administration under paragraph (a) of 
Sec. 31.6051-2 of this chapter, with respect to an annuity subject to 
withholding under this section. If an amount is required to be deducted 
and withheld under this section from any or all of the payments made to 
a payee under an annuity contract during a calendar year, all payments 
with respect to that annuity contract are required to be reported on 
Form W-2P, in lieu of Form 1099, as prescribed in Secs. 1.6041-1, 
1.6041-2, and 1.6047-1 of this chapter; any other annuity payments made 
by the same payor to the same payee may, at the option of the payor, be 
reported on Form W-2P.
    (2) Each statement on Form W-2P shall show the following:
    (i) The gross amount of annuity payments made during the calendar 
year, whether or not income tax withholding under this section was in 
effect with respect to all such payments,
    (ii) The total amount deducted and withheld as tax under section 
3402 of this section, and
    (iii) The information required to be shown by Form W-2P and the 
instructions applicable thereto.

For the requirements relating to Form W-2P with respect to qualified 
State individual income taxes, see paragraph (d)(3)(ii) of 
Sec. 301.6361-1 of this chapter (Regulations on Procedure and 
Administration).
    (3) The provisions of Sec. 1.9101-1 of this chapter (relating to 
permission to submit information required by certain returns and 
statements on magnetic tape) shall be applicable to the information 
required to be furnished on Form W-2P.
    (4) The provisions of Sec. 31.6109-1 of this chapter (relating to 
supplying of identifying numbers) shall be applicable to Form W-2P and 
to any payee of an annuity to whom a statement on Form W-2P is required 
to be furnished.
    (g) Definitions. For purposes of this section--
    (1) The term ``annuity'' means periodic payments which are payable 
over a period greater than 1 year and which are treated under section 72 
as amounts received as an annuity, whether or not such periodic payments 
are variable in amount. Also, periodic payments to an individual who is 
retired before the normal retirement age for reasons of disability, to 
which the provisions of section 105(d) apply, shall be deemed to be an 
annuity for purposes of this section. A lump-sum payment (including a 
total distribution under section 72(n)) is not an annuity.
    (2) The term ``payee'' means an individual who is a citizen or 
resident of the United States and who receives an annuity payment.
    (3) The term ``payor'' means a person making an annuity payment 
except that, if the person making the payment is acting soley as an 
agent for another person, the term ``payor'' shall mean such other 
person and not the person actually making the payment. For example, if a 
bank makes an annuity payment only as agent for an employees' trust, the 
trust shall be deemed to be the ``payor.'' Notwithstanding the preceding 
two sentences, any person who, under section 3401(a) (5) or (8), would 
not be required to deduct and withhold the tax under section 3402 if the 
annuity payment were remuneration for services shall not be considered a 
``payor.''

(Sec. 7805, 68A Stat. 917; 26 U.S.C. 7805; 86 Stat. 944, 26 U.S.C. 6364; 
68A Stat. 747, 26 U.S.C. 6051)


[T.D. 7056, 35 FR 13436, Aug. 22, 1970, as amended by T.D. 7577, 43 FR 
59360, Dec. 20, 1978: T.D. 7580, 43 FR 60160, Dec. 26, 1978. 
Redesignated by T.D. 7803, 47 FR 3546, Jan. 26, 1982]



Sec. 31.3402(o)-3  Extension of withholding to sick pay.

    (a) In general. Under section 3402(o) of the Internal Revenue Code 
of 1954 and this section, the payee (as defined in paragraph (h)(2) of 
this section) of sick pay (as defined in paragraph (h)(1) of this 
section) may request the payor (as

[[Page 247]]

defined in paragraph (h)(3) of this section) of the sick pay to withhold 
income tax with respect to payments of sick pay made on or after May 1, 
1981. If such a request is made, the payor must deduct and withhold as 
requested.
    (b) Manner of making request. A payee who wishes a payor to deduct 
and withhold income tax from sick pay shall file a written request with 
the payor to deduct and withhold a specific whole dollar amount (subject 
to the limitations of paragraph (c) of this section) from each sick pay 
payment. The request shall be made on Form W-4S in accordance with the 
instructions applicable thereto, and shall set forth fully and clearly 
the data therein called for. In lieu of Form W-4S, payors may prepare 
and use a form the provisions of which are identical to those of Form W-
4S. The payee must include his social security account number in the 
request.
    (c) Amount requested to be withheld. The payee shall request that 
the payor withhold a specific whole dollar amount. The specific whole 
dollar amount shall be at least $20 per weekly payment of sick pay. If 
the payee is paid sick pay computed on a daily basis, the specific whole 
dollar amount shall be at least $4 per daily payment of sick pay. If the 
payee is paid sick pay on a biweekly basis, the specific whole dollar 
amount shall be at least $40 per 2 week payment of sick pay. If the 
payee is paid sick pay on a semat least $4 per day, assuming a 5 day 
work week of 8 hours per day (40 hours total) in each 7 day calendar 
week. In the case of a payment which is greater or less than a full 
payment, the amount withheld is to bear the same relation to the 
specific whole dollar amount requested to be withheld as such payment 
bears to a full payment. For example, assume an individual receives sick 
pay of $100 per week and requests that $25 per week be withheld for 
taxes. After 4 full weeks of absence, the individual returns to work on 
a Wednesday (having been absent on sick leave Monday and Tuesday). For 
the week the individual returns to work, the individual would be 
entitled to $40 of sick pay, $10 of which would be withheld for taxes. 
The payor may, at his option, permit the payee to request that the payor 
withhold a specific percentage from each payment. The specific 
percentage shall be at least 10 percent. If the payor so opts, the payor 
must also accept requests under the whole dollar method. If the amount 
requested to be withheld under either the whole dollar method or the 
optional percentage method reduces the net amount of a sick pay payment 
received by the payee to below $10, no income tax shall be withheld from 
that payment by the payor.
    (d) When request takes effect. The payor must deduct and withhold 
the amount specified in the request with respect to payments made more 
than 7 days after the date on which the request is received by the 
payor. At the election of the payor, the request may take effect before 
this deadline.
    (e) Duration and termination of request. A request under this 
section shall continue in effect until changed or terminated. The payee 
may change the request by filing a new written request that meets all of 
the requirements of paragraphs (b) and (c) of this section. The new 
request shall take effect as specified in paragraph (d) of this section 
and the old request shall be deemed terminated when the new request 
takes effect. The payee may terminate the request by furnishing the 
payor a signed written notice of termination containing both a request 
to terminate withholding and all the information contained in the 
request to withhold. This written notice of termination shall take 
effect with respect to payments made more than 7 days after the date on 
which the notice of termination is received by the payor. At the 
election of the payor, the request may take effect before this deadline.
    (f) Special rules. For purposes of chapter 24 on subtitle C of the 
Internal Revenue Code of 1954 (relating to collection of income tax at 
source on wages) and of subtitle F of the Code (relating to procedure 
and administration), and the regulations thereunder--
    (1) An amount which is requested to be withheld pursuant to this 
section shall be deemed a tax required to be deducted and withheld under 
section 3402.
    (2) An amount deducted and withheld pursuant to this section shall 
be

[[Page 248]]

deemed an amount deducted and withheld under section 3402.
    (3) The term ``wages'' includes the gross amount of a sick pay 
payment with respect to which there is in effect a request for 
withholding under this section. However, references to the definition of 
wages in section 3401(a) which are made in section 6014 (relating to 
election by the taxpayer not to compute the tax on his annual return) 
and section 6015(a) (relating to declaration of estimated tax by 
individuals) shall not be deemed to include any portion of such a sick 
pay payment.
    (4) The term ``employer'' includes a payor with respect to whom a 
request for withholding is in effect under this section.
    (5) The term ``employee'' includes a payee with respect to whom a 
request for withholding is in effect under this section.
    (6) The term ``payroll period'' includes the period of accrual with 
respect to which payments of sick pay which are subject to withholding 
under this section are ordinarily made.
    (g) Statements required to be furnished to payees. See section 
6051(f) and the regulations thereunder for requirements relating to 
statements required to be furnished to payees.
    (h) Definitions. (1) (i) The term ``sick pay'' means any payment 
made to an individual which does not constitute wages (determined 
without regard to section 3402(o) and this section), which is paid to an 
employee pursuant to a plan to which the employer is a party, and which 
constitutes remuneration or a payment in lieu of remuneration for any 
period during which the employee is temporarily absent from work on 
account of personal injuries or sickness. The term ``personal injuries 
or sickness'' shall have the same meaning as ascribed thereto by section 
105(a) and the regulations thereunder. The term ``sick pay'' does not 
include any amounts either excludable from gross income under section 
104(a) (1), (2), (4) or (5) or section 105(b) or (c) or paid under 
section 3402(o)(1)(B). The term ``sick pay'' does not include amounts 
paid under a plan if all amounts paid under the plan are paid to 
individuals who are described in the first sentence of section 105(d)(4) 
(relating to the definition of permanent and total disability) and the 
regulations thereunder. Amounts paid under any other plan shall be 
deemed to be paid for a period during which the employee is temporarily 
absent from work. For sick pay paid in 1981 only, however, the payor may 
opt not to follow the rules of the two preceding sentences but to follow 
instead the rule that an employee is temporarily absent if his absence 
is not described in section 105(d)(4) (relating to the definition of 
permanent and total disability) and the regulations thereunder. An 
employer is not a party to the plan if the plan is a contract between 
only employees and a third party payor or the employer makes no 
contributions to provide sick pay benefits under the plan, even if the 
employer withholds amounts from the employees' salaries and pays the 
amounts over to the third party payor.
    (ii) This paragraph (h)(1) may be illustrated by the following 
examples:

    Example 1. Employee A works for P Company and Employee B works for Q 
Company. P Company has contracted with R Insurance Company for R to pay 
P's employees the equivalent of their normal wages when they are 
temporarily absent from work because of sickness or personal injury. Q 
Company has neither entered into such a contract, nor will it make such 
payments directly from it own funds. B consequently goes to S Insurance 
Company and purchases directly an insurance policy which will pay him 
the equivalent of his normal wages when he is unable to work because of 
sickness or personal injury. Both A and B are subsequently temporarily 
absent from work on account of sickness or personal injuries. A receives 
payments from R and B receives payments from S. Neither the payments 
made by R to A nor the payments made by S to B constitute wages 
(determined without regard to section 3402(o) and this section). A may 
request that R withhold income taxes under section 3402(o) and this 
section from the payments he receives because the payments are sick pay 
as defined in section 3402(o) and this section. B may not request that S 
withhold income taxes under section 3402(o) and this section from the 
payments he receives because the payments are not paid pursuant to a 
plan to which Q Company is a party and thus are not sick pay as defined 
in section 3402(o) and this section.

    Example 2. Employees C and D both work for T Company , which has 
contracted with U

[[Page 249]]

Insurance Company for U to pay T's employees for all sickness or injury 
claims Employee C is sick and out from work for a month. U pays C the 
equivalent of C's regular pay. Employee D loses his arm in an accident 
and U pays D $10,000. C may request that U withhold income taxes under 
section 3402(o) and this section from the payments he receives because 
the payments constitute remuneration or a payment in lieu of 
remuneration for any period during which the employee is temporarily 
absent from work on account of sickness or personal injuries. D may not 
request that U withhold income taxes from the payments he receives 
because the payments do not constitute remuneration or a payment in lieu 
of remuneration for any period during which the employee is temporarily 
absent from work on account of sickness or personal injuries.

    (2) The term ``payee'' means an individual who is a citizen or 
resident of the United States and who receives a sick pay payment.
    (3) (i) The term ``payor'' means any person making a sick pay 
payment who is not the employer (as defined in section 3401 and in 
Sec. 31.3401(d)-1 (except paragraph (f) thereof)) of the payee. If 
however the person making the payment is acting solely as an agent for 
another person, the term ``payor'' shall mean the other person and not 
the person actually making the payment.
    (ii) This paragraph (h)(3) may be illustrated by the following 
examples:

    Example 1. X Company contracts with Y Insurance Company for Y to pay 
X's employees the equivalent of their normal wages when they are 
temporarily absent from work because of sickness or personal injury. Y 
computes the amount to be paid and determines the date payment is to be 
made for each of X's employees. Y then instructs Z Bank to issue a check 
for that amount on that date. Y reimburses Z for the amount of the check 
plus Z's administrative costs. Under these circumstances, Z is the agent 
of Y and Y is the payor under section 3402(o) and this section.

    Example 2. V Company contracts with W Company for W to pay V's 
employees the equivalent of their normal wages when they are temporarily 
absent from work on account of sickness or personal injury. Under the 
contractual arrangement, V advises W of the wages normally paid to each 
of V's employees. V tells W when an employee of V is temporarily absent 
from work on account of sickness or personal injury, and W computes the 
amount to be paid the employee and makes payments of sick pay to the 
employee during the period of the employee's absence. V subsequently 
reimburses W for the amount of those payments and pays W a fee for W's 
services. Under these circumstances, W is acting solely as the agent of 
V, and a payee may not request under section 3402(o) and these 
regulations that W withhold income taxes from his payments. However, see 
section 3401 and the regulations thereunder for the obligation of V to 
withhold income taxes from the payments that W makes as the agent of V, 
which are not excluded from income under section 105 and the regulations 
thereunder and which are wages under section 3401 and the regulations 
thereunder. See also Sec. 31.3402(g)-1 (relating to supplemental wage 
payments) for the conditions under which a flat percentage rate of 
withholding may be used.

    Example 3. Assume the same facts as in Example 2, except that the 
consideration for W's services is a set insurance premium rather than 
reimbursement for costs plus a fee. Under these circumstances W is the 
payor and is not acting solely as the agent of V. An employee of V to 
whom W makes payments under the agreement may request under section 
3402(o) and the regulations thereunder that W withhold income taxes from 
those payments.

    (i) Special rules for sick pay paid pursuant to certain collective-
bargaining agreements. (1) Special rules (enumerated in subparagraph 
(2)) apply to sick pay where all of the following tests are met.
    (i) The sick pay must be paid pursuant to a collective-bargaining 
agreement between employee representatives and one or more employers.
    (ii) The agreement must contain a provision that section 3402(o)(5) 
is to apply to sick pay paid pursuant to the agreement.
    (iii) The agreement must contain a provision for determining the 
amount to be deducted and withheld from each payment of sick pay.
    (iv) The social security number of the payee must be furnished to 
the payor. The agreement may provide that the employer will furnish this 
or the payee may furnish his social security number directly to the 
payor.
    (v) The payor must be furnished with information that is necessary 
for the payor to determine whether the payment is pursuant to the 
agreement and to determine the amount to be deducted and withheld. The 
agreement may provide that the employer will furnish this information 
directly to the payor.

[[Page 250]]

    (2) The following special rules apply to sick pay where all of the 
tests of subparagraph (1) are met.
    (i) The requirement of section 3402(o)(1)(c) and this section that a 
request for withholding be in effect does not apply.
    (ii) The amount to be deducted and withheld from the sick pay shall 
be determined according to the provisions of the agreement and not 
according to this section. This rule shall not however apply--
    (A) To payments enumerated in section 3402(n) (relating to employees 
incurring no income tax liability) and the regulations thereunder, or
    (B) To payments made to a payee more than 7 days after the date that 
the payor receives a statement from the payee that the payee expects to 
claim an exclusion from gross income under section 105(d). Such 
statement must include adequate verification of disability. A 
certificate from a qualified physician attesting that the employee is 
permanently and totally disabled (within the meaning of section 105(d)) 
shall be deemed to constitute adequate verification. If the payor 
receives such a statement, the payor shall not withhold any income tax 
from the payments made to the payee, regardless of the provisions of the 
collective bargaining agreement. This exception from withholding does 
not affect the requirements of Sec. 31.6051-3.

(Secs. 3402(o), 7805, Internal Revenue Code of 1954 (94 Stat. 3495, (26 
U.S.C. 3402(o)); 68A Stat. 917 (26 U.S.C. 7805)))


[T.D. 7813, 47 FR 11277, Mar. 16, 1982, as amended by T.D. 7915, 48 FR 
44076, Sept. 27, 1983]



Sec. 31.3402(p)-1  Voluntary withholding agreements.

    (a) In general. An employee and his employer may enter into an 
agreement under section 3402(b) to provide for the withholding of income 
tax upon payments of amounts described in paragraph (b)(1) of 
Sec. 31.3401(a)-3, made after December 31, 1970. An agreement may be 
entered into under this section only with respect to amounts which are 
includible in the gross income of the employee under section 61, and 
must be applicable to all such amounts paid by the employer to the 
employee. The amount to be withheld pursuant to an agreement under 
section 3402(p) shall be determined under the rules contained in section 
3402 and the regulations thereunder. See Sec. 31.3405(c)-1, Q&A-3 
concerning agreements to have more than 20-percent Federal income tax 
withheld from eligible rollover distributions within the meaning of 
section 402.
    (b) Form and duration of agreement. (1)(i) Except as provided in 
subdivision (ii) of this subparagraph, an employee who desires to enter 
into an agreement under section 3402(p) shall furnish his employer with 
Form W-4 (withholding exemption certificate) executed in accordance with 
the provisions of section 3402(f) and the regulations thereunder. The 
furnishing of such Form W-4 shall constitute a request for withholding.
    (ii) In the case of an employee who desires to enter into an 
agreement under section 3402(p) with his employer, if the employee 
performs services (in addition to those to be the subject of the 
agreement) the remuneration for which is subject to mandatory income tax 
withholding by such employer, or if the employee wishes to specify that 
the agreement terminate on a specific date, the employee shall furnish 
the employer with a request for withholding which shall be signed by the 
employee, and shall contain--
    (a) The name, address, and social security number of the employee 
making the request,
    (b) The name and address of the employer,
    (c) A statement that the employee desires withholding of Federal 
income tax, and applicable, of qualified State individual income tax 
(see paragraph (d)(3)(i) of Sec. 301.6361-1 of this chapter (Regulations 
on Procedures and Administration)), and
    (d) If the employee desires that the agreement terminate on a 
specific date, the date of termination of the agreement.

If accepted by the employer as provided in subdivision (iii) of this 
subparagraph, the request shall be attached to, and constitute part of, 
the employee's Form W-4. An employee who furnishes his employer a 
request for withholding under this subdivision shall also furnish such 
employer with

[[Page 251]]

Form W-4 if such employee does not already have a Form W-4 in effect 
with such employer.
    (iii) No request for withholding under section 3402(p) shall be 
effective as an agreement between an employer and an employee until the 
employer accepts the request by commencing to withhold from the amounts 
with respect to which the request was made.
    (2) An agreement under section 3402 (p) shall be effective for such 
period as the employer and employee mutually agree upon. However, either 
the employer or the employee may terminate the agreement prior to the 
end of such period by furnishing a signed written notice to the other. 
Unless the employer and employee agree to an earlier termination date, 
the notice shall be effective with respect to the first payment of an 
amount in respect of which the agreement is in effect which is made on 
or after the first ``status determination date'' (January 1, May 1, July 
1, and October 1 of each year) that occurs at least 30 days after the 
date on which the notice is furnished. If the employee executes a new 
Form W-4, the request upon which an agreement under section 3402 (p) is 
based shall be attached to, and constitute a part of, such new Form W-4.

(86 Stat. 944, 26 U.S.C. 6364; 68A Stat. 917, 26 U.S.C. 7805)


[T.D. 7096, 36 FR 5216, Mar. 18, 1971, as amended by T.D. 7577, 43 FR 
59359, Dec. 20, 1978; T.D. 8619, 60 FR 49215, Sept. 22, 1995]



Sec. 31.3402(q)-1  Extension of withholding to certain gambling winnings.

    (a)(1) General rule. Every person, including the Government of the 
United States, a State, or a political subdivision thereof, or any 
instrumentality of any of the foregoing making any payment of ``winnings 
subject to withholding'' (defined in paragraph (b) of the section) shall 
deduct and withhold a tax in an amount equal to 20 percent of the 
payment. The tax shall be deducted and withheld upon payment of the 
winnings by the person making such payment (``payer''). See paragraph 
(c)(5)(ii) of this section for a special rule relating to the time for 
making deposits of withheld amounts and filing the return with respect 
to those amounts. Any person receiving a payment of winnings subject to 
withholding must furnish the payer a statement as required in paragraph 
(e) of this section. Payers of winnings subject to withholding must file 
a return as required in paragraph (f) of this section. With respect to 
reporting requirements for certain payments of gambling winnings not 
subject to withholding, see section 6041 and the regulations thereunder.
    (2) Exceptions. The tax imposed under section 3402(q)(1) and this 
section shall not apply (i) with respect to a payment of winnings which 
is made to a nonresident alien individual or foreign corporation under 
the circumstances described in paragraph (c)(4) of this section or (ii) 
with respect to a payment of winnings from a slot machine play, or a 
keno or bingo game.
    (b) Winnings subject to withholding. Winnings subject to withholding 
means any payment from--
    (1) A wager placed in a State-conducted lottery (defined in 
paragraph (c)(2) of this section) but only if the proceeds from the 
wager exceed $5,000;
    (2) A wager placed in a sweepstakes, wagering pool, or lottery other 
than a State-conducted lottery but only if the proceeds from the wager 
exceed $1,000; or
    (3) Any other wagering transaction (as defined in paragraph (c)(3) 
of this section) but only if the proceeds from the wager (i) exceed 
$1,000 and (ii) are at least 300 times as large as the amount of the 
wager.

If proceeds from the wager qualify as winnings subject to withholding, 
then the total proceeds from the wager, and not merely amounts in excess 
of $1,000 (or $5,000 in the case of winnings from a State-conducted 
lottery), are subject to withholding.
    (c) Definitions; special rules--(1) Rules for determining amount of 
proceeds from a wager. (i) The amount of ``proceeds from a wager'' is 
the amount paid after January 2, 1977, with respect to the wager, less 
the amount of the wager. However, for any wagering transaction in a 
parimutuel pool with respect to horse races, dog races, or jai alai, 
only amounts paid after April 30, 1977, are taken into account.

[[Page 252]]

    (ii) Amounts paid after December 31, 1983, with respect to identical 
wagers are treated as paid with respect to a single wager for purposes 
of calculating the amount of proceeds from a wager. For example, amounts 
paid on two bets placed in a parimutuel pool on a particular horse to 
win a particular race are treated as paid with respect to the same 
wager. However, those two bets would not be identical were one ``to 
win'' and the other ``to place'', or if the bets were placed in 
different parimutuel pools, e.g., a pool conducted by the racetrack and 
a separate pool conducted by an off-track betting establishment in which 
the wagers are not pooled with those placed at the track. Tickets 
purchased in a lottery generally are not identical wagers, because the 
designation of each ticket as a winner generally would not be based on 
the occurrence of the same event, e.g., the drawing of a particular 
number. If the recipient makes the statement which may be required 
pursuant to Sec. 1.6011-3, indicating whether or not the recipient (and 
any other persons entitled to a portion of the winnings) is entitled to 
winnings from identical wagers and indicating the amount of such 
winnings, if any, then the payer may rely upon such statement in 
determining the total amount of proceeds from the wager under paragraph 
(c)(1) of this section attributable to identical wagers.
    (iii) In determining the amount paid with respect to a wager, 
proceeds which are not money shall be taken into account at the fair 
market value.
    (iv) Periodic payments, including installment payments or payments 
which are to be made periodically for the life of a person, are 
aggregated for purposes of determining the proceeds from a wager. The 
aggregate amount of periodic payments to be made for a person's life 
shall be based on that person's life expectancy. See Secs. 1.72-5 and 
1.72-9 for rules used in computing the expected return on annuities. For 
purposes of determining the amount subject to withholding, the first 
periodic payment shall be reduced by the amount of the wager.
    (2) Wager placed in a State-conducted lottery. The term ``wager 
placed in a State-conducted lottery'' means a wager placed in a lottery 
conducted by an agency of a State acting under authority of State law 
provided that the wager is placed with the State agency conducting such 
lottery or with its authorized employees or agents. This term includes 
wagers placed in State-conducted lotteries in which the amount of 
winnings is determined by a parimutuel system.
    (3) Other wagering transaction. The term ``other wagering 
transaction'' means any wagering transaction other than one in a 
lottery, sweepstakes, or wagering pool. This term includes a wagering 
transaction in a parimutuel pool with respect to horse races, dog races, 
or jai alai.
    (4) Certain payments to nonresident aliens or foreign corporations. 
A payment of winnings subject to withholding made to a nonresident alien 
individual or a foreign corporation is not subject to the tax imposed by 
section 3402(q) and this section if such payment is subject to 
withholding of tax under section 1441(a) (relating to withholding on 
nonresident aliens) or 1442(a) (relating to withholding on foreign 
corporations) and the payer complies with the requirements of those 
sections. For purposes of this section, a payment is treated as being 
subject to tax under section 1441(a) or 1442(a) notwithstanding that the 
rate of such tax is reduced (even to zero) as may be provided by an 
applicable treaty with another country. However, a reduced or zero rate 
of withholding of tax shall not be applied by the payer in lieu of the 
rate imposed by sections 1441 and 1442 unless the person receiving the 
winnings has completed, signed, and furnished the payer Form 1001 as 
required by Sec. 1.1441-6. See sections 1441 and 1442 and the 
regulations thereunder for rules regarding the withholding of tax on 
nonresident aliens and foreign corporations.
    (5) Gambling winnings treated as payments by employer to employee. 
(i) Except as provided in subdivision (ii), for purposes of sections 
3403 and 3404 and the regulations thereunder and for purposes of so much 
of subtitle F (except section 7205) and the regulations thereunder as 
relate to chapter 24, payments to any person of winnings subject to 
withholding under this section shall be

[[Page 253]]

treated as if they are wages paid by an employer to an employee.
    (ii) Solely for purposes of applying the deposit rules under 6302(c) 
and the return requirement of section 6011, the withholding from 
winnings shall be deemed to have been made no earlier than at the time 
the winner's identity is known to the payer. Thus, for example, winnings 
from a State-conducted lottery are subject to withholding when actually 
or constructively paid, whichever is earlier; however, the time for 
depositing the withheld taxes and filing a return with respect thereto 
shall be determined by reference to the date on which the winner's 
identity is known to the State, if such date is later than the date on 
which the winnings are actively or constructively paid. If a payer's 
obligation to pay winnings terminates other than by payment, all 
liabilities and requirements resulting from the requirement that the 
payer deduct and withhold with respect to such winnings shall also 
terminate.
    (d) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. A purchases a lottery ticket for $1 in the State W 
lottery from an authorized agent of State W. On February 1, 1977, the 
drawing is held and A wins $5,001. Since the proceeds of the wager 
($5,001--$1) are not greater than $5,000, State W is not required to 
withhold or deduct any amount from A's winnings.

    Example 2. Assume the same facts as in example 1 except that A 
purchases two $1 tickets and that A wins $5,002 when one of the tickets 
is drawn. State W must deduct and withhold tax at a rate of 20% from 
$5,001 ($5,002 less the $1 wager), or $1,000.20.

    Example 3. On January 1, 1984, B makes two $2 bets in a parimutuel 
pool for a horse race. Each bet is on the same horse to win a particular 
race. B wins a total of $1,300 on those bets. B cashes the tickets at 
different cashier windows indicating on the statement demanded by each 
cashier the amount of winnings from identical wagers. Although the 
payment by each cashier ($650) is less than the $1,000 floor for the 
withholding requirement on payments of winnings from horse race 
parimutuel pools, each cashier is required to deduct and withhold tax 
from B's winnings equal to $129.60 (($650-$2)  x  20 percent = $129.60) 
based on the information B submitted indicating that the aggregated 
proceeds from the identical wagers ($1,300-$4=$1,296) exceed $1,000 and 
the amount is at least 300 times as great as the amount wagered 
($4 x 300=$1,200). Had B refused to make the statements, the payer would 
have no basis provided by the payee upon which to rely in determining 
whether the payment is subject to withholding. Under these 
circumstances, the payer would be required to deduct and withhold tax 
from the payment.

    Example 4. C purchases a lottery ticket for $1. On June 1, 1979, the 
lottery drawing is held and C wins the grand prize of $50,000, payable 
$500 monthly. The payer must deduct and withhold tax at a rate of 20% 
from each payment of winnings. Therefore, $99.80 must be withheld from 
the first monthly payment to B ($500-$1) x 20%=$99.80) and $100 
($500 x 20%) must be withheld from each monthly payment thereafter.

    Example 5. Assume the same facts as in example 4, except that C wins 
an automobille rather than the grand prize. The fair market value of the 
automobile on the date on which it is made available to C is $10,000. 
the payer must deduct and withhold a tax of $2,000 (($10,001-$1) x 20%). 
This may be accomplished, for example, if C pays $2,000 to the payer. 
Alternatively, if the payer, as part of the prize, pays all taxes 
required to be duducted and withheld, the payer must deduct and withhold 
tax not only on the fair market value of the automobile less the wager, 
but also on the taxes it pays that are required to be deducted and 
withheld. This results in a pyramiding of taxes requiring the use of an 
algebraic formula. Under this formula, the payer must deduct and 
withhold a tax of 25 percent of the fair market value of the automobile 
less the wager ($2,500) and, in addition, the payer must indicate on 
Form W-2G the amount of such winnings as $12,501 
($10,001+25%($10,001-$1)).

    Example 6. D purchases a ticket for $1 in the State Y lottery from 
an authorized agent of State Y On January 1, 1976, a drawing is held and 
D wins $100 a month for the rest of D's life. It is actuarially 
determined that, on January 3, 1977, D's life expectancy is 5 years. 
Based on that determination, the proceeds from the wager paid to D on or 
after January 3, 1977, will exceed $5,000. Therefore, State Y must 
deduct and withhold $20 from each monthly payment made on or after 
January 3, 1977. (None of such payments is reduced by the amount of the 
wager because the amount of the wager was offset by the first payment of 
winnings which was made before January 3, 1977)).

    Example 7. Assume the same facts as in example 6 except that State Y 
purchases in its own name, as owner, an annuity of $100 a month for D's 
life from E Corporation, in order to fund its own obligation to make the 
payments. Although State Y remains liable

[[Page 254]]

for the withholding of tax, E Corporation as paying agent for State Y, 
making payments directly to D, should deduct and withhold from each 
monthly payment in the manner described in example 6.

    Example 8. E purchases a sweepstakes ticket for $1 in a sweepstakes 
conducted by W. E purchases the ticket on behalf of himself and on 
behalf of F and G, who have contributed equal amounts toward the 
purchase of the ticket and who have agreed to share equally in any 
prizes won. The ticket which E purchases wins $1,002. Since the proceeds 
of the wager ($1,002--$1) are greater than $1,000 W is required to 
withhold and deduct 20 percent of such proceeds.

    Example 9. On February 1, 1977, a drawing is held in the State X 
lottery in which a winning ticket is selected. The person holding the 
winning ticket is entitled to proceeds of $100,000 payable either as a 
lump sum upon demand or $10,000 a year for 10 years. Under State law, 
the winning ticket must be presented to an authorized agent of State X 
before February 1, 1978. Until the ticket is presented, State X does not 
know the identity of the winner. On December 1, 1977, H, the winner, 
presents the winning ticket to an authorized agent of the State X 
lottery. The winnings are constructively paid to H on February 1, 1977. 
Since H, has the option of receiving the entire proceeds upon demand, 
State X is required to deduct and withhold $20,000 ($100,000 x 20%) from 
the proceeds of H's winnings on February 1, 1977; but for purposes of 
determining the time at which the deposit and inclusion on Form 941 of 
these taxes is to be made, the withholding shall be deemed to have beem 
made on December 1, 1977.

    Example 10. J purchases a subscription to N magazine, at the regular 
subscription price. All new subscribers are automatically eligible for a 
special drawing. The drawing is held and J wins $50,000. Since J has not 
paid any more than the regular subscription price, J has not placed a 
wager or entered a wagering transaction. Therefore, N is not required to 
deduct and withhold J's winnings.

    Example 11. C makes two $2 bets in the same parimutuel pool for a 
horse race. One bet is an ``exacta'' in which C bets on horse M to win 
and horse N to ``place''. The other bet is a ``trifecta''. C bets on 
horse M to win, horse N to ``place'' and horse O to ``show''. C wins 
both bets and is paid $600 with respect to the ``exacta'' and $900 with 
respect to the ``trifecta''. The bets are not identical wagers, however, 
and on these facts neither payment is subject to withholding.

    (e) Statement by recipient. Each person who is to receive a payment 
of winnings subject to withholding shall furnish the payer a statement 
on Form W-2G or 5754 (whichever is applicable) made under the penalties 
of perjury containing--
    (1) The name, address, and taxpayer identification number of the 
winner accompanied by a declaration that no other person is entitled to 
any portion of such payment, or
    (2) The name, address, and taxpayer identification number of the 
recipient and of every person entitled to any portion of such payment.

If more than one payment of winnings subject to withholding is to be 
made with respect to a single wager, for example in the case of an 
annuity, the recipient is required by paragraph (e) of this section to 
furnish the payer a statement with respect to the first such payment 
only, provided that such other payments are taken into account in a 
return required by paragraph (f) of this section.
    (f) Return of payer--(1) In general. Every person making payment of 
winnings for which a statement is required under paragraph (e) of this 
section shall file a return on Form W-2G with the Internal Revenue 
Service Center serving the district in which is located the principal 
place of business of the person making the return on or before February 
28 of the calendar year following the calendar year in which the payment 
of winnings is made. The return required by this paragraph (f) of the 
section, need not include the statement by the recipient required by 
paragraph (e) of this section and, therefore, need not be signed by the 
recipient, provided such statement is retained as long as the contents 
thereof may become material in the administration of any internal 
revenue law. For payments to more than one winner, a separate Form W-2G, 
which in no event need be signed by the winner, shall be filed with 
respect to each such winner. Each Form W-2G shall contain the following:
    (i) The name, address, and employer identification number of the 
payer;
    (ii) The name, address, and social security account number of the 
winner;
    (iii) The date, amount of the payment, and amount withheld;
    (iv) The type of wagering transaction;

[[Page 255]]

    (v) Except with respect to winnings from a wager placed in a State-
conducted lottery, a specific description of two types of 
identification, e.g., driver's license number and issuing State, social 
security account number of voter registration number and jurisdiction, 
furnished the payer for verification of the recipient's name, address, 
and social security account number; and
    (vi) With respect to amounts paid after December 31, 1983, the 
amount of winnings from identical wagers.

The return of the payer need not contain the information required by 
subdivision (v) of this paragraph (f)(1) provided such information is 
obtained with respect to the recipient of such winnings and retained as 
long as the contents thereof may become material in the administration 
of any internal revenue law.
    (2) Transmittal form. Persons making payments of winnings subject to 
withholding shall use Form W-3G to transmit Forms W-2G to the Internal 
Revenue Service Centers.

(Secs. 6011 and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
732, 917; 26 U.S.C. 6011, 7805)


[T.D. 7787, 46 FR 46908, Sept. 23, 1981, as amended by T.D. 7919, 48 FR 
46298, Oct. 12, 1983; 48 FR 55728, Dec. 15, 1983; T.D. 7943, 49 FR 5345, 
Feb. 13, 1984; 49 FR 8437, Mar. 7, 1984]



Sec. 31.3402(r)-1  Withholding on distributions of Indian gaming profits to tribal members.

    (a) (1) General rule. Section 3402(r)(1) requires every person, 
including an Indian tribe, making a payment to a member of an Indian 
tribe from the net revenues of any class II or class III gaming 
activity, as defined in 25 U.S.C. 2703, conducted or licensed by such 
tribe to deduct and withhold from such payment a tax in an amount equal 
to such payment's proportionate share of the annualized tax, as that 
term is defined in section 3402(r)(3).
    (2) Withholding tables. Except as provided in paragraph (a)(4) of 
this section, the amount of a payment's proportionate share of the 
annualized tax shall be determined under the applicable table provided 
by the Commissioner.
    (3) Annualized amount of payment. Section 3402(r)(5) provides that 
payments shall be placed on an annualized basis under regulations 
prescribed by the Secretary. A payment may be placed on an annualized 
basis by multiplying the amount of the payment by the total number of 
payments to be made in a calendar year. For example, a monthly payment 
may be annualized by multiplying the amount of the payment by 12. 
Similarly, a quarterly payment may be annualized by multiplying the 
amount of the payment by 4.
    (4) Alternate withholding procedures--(i) In general. Any procedure 
for determining the amount to be deducted and withheld under section 
3402(r) may be used, provided that the amount of tax deducted and 
withheld is substantially the same as it would be using the tables 
provided by the Commissioner under paragraph (a)(2) of this section. At 
the election of an Indian tribe, the amount to be deducted and withheld 
under section 3402(r) shall be determined in accordance with this 
alternate procedure.
    (ii) Method of election. It is sufficient for purposes of making an 
election under this paragraph (a)(4) that an Indian tribe evidence the 
election in any reasonable way, including use of a particular method. 
Thus, no written election is required.
    (5) Additional withholding permitted. Consistent with the provisions 
of section 3402(p), a tribal member and a tribe may enter into an 
agreement to provide for the deduction and withholding of additional 
amounts from payments in order to satisfy the anticipated tax liability 
of the tribal member. The agreement may be made in a manner similar to 
that described in Sec. 31.3402(p)-1 (with respect to voluntary 
withholding agreements between employees and employers).
    (b) Effective date. This section applies to payments made after 
December 31, 1994.

[T.D. 8634, 60 FR 65238, Dec. 19, 1995]



Sec. 31.3403-1  Liability for tax.

    Every employer required to deduct and withhold the tax under section 
3402 from the wages of an employee is liable for the payment of such tax 
whether or not it is collected from the employee

[[Page 256]]

by the employer. If, for example, the employer deducts less than the 
correct amount of tax, or if he fails to deduct any part of the tax, he 
is nevertheless liable for the correct amount of the tax. See, however, 
Sec. 31.3402(d)-1. The employer is relieved of liability to any other 
person for the amount of any such tax withheld and paid to the district 
director or deposited with a duly designated depositary of the United 
States.



Sec. 31.3404-1  Return and payment by governmental employer.

    If the United States, or a State, Territory, Puerto Rico, or a 
political subdivision thereof, or the District of Columbia, or any 
agency or instrumentality of any one or more of the foregoing, is an 
employer required to deduct and withhold tax under Chapter 24, the 
return of the amount deducted and withheld as such tax may be made by 
the officer or employee having control of the payment of the wages or 
other officer or employee appropriately designated for that purpose. 
(For provisions relating to the execution and filing of returns, see 
Subpart G of the regulations in this part.)



Sec. 31.3405(c)-1  Withholding on eligible rollover distributions; questions and answers.

    The following questions and answers relate to withholding on 
eligible rollover distributions under section 3405(c) of the Internal 
Revenue Code of 1986, as added by section 522(b) of the Unemployment 
Compensation Amendments of 1992 (Public Law 102- 318, 106 Stat. 290) 
(UCA). For additional UCA guidance under sections 401(a)(31), 402(c), 
402(f), and 403(b)(8) and (10), see Secs. 1.401(a)(31)-1, 1.402(c)-2, 
1.402(f)-1, and 1.403(b)-2 of this chapter, respectively.

                            List of Questions

    Q-1: What are the withholding requirements under section 3405 for 
distributions from qualified plans and section 403(b) annuities?
    Q-2: May a distributee elect under section 3405(c) not to have 
Federal income tax withheld from an eligible rollover distribution?
    Q-3: May a distributee be permitted to elect to have more than 20-
percent Federal income tax withheld from an eligible rollover 
distribution?
    Q-4: Who has responsibility for complying with section 3405(c) 
relating to the 20-percent income tax withholding on eligible rollover 
distributions?
    Q-5: May the plan administrator shift the withholding responsibility 
to the payor and, if so, how?
    Q-6: How does the 20-percent withholding requirement under section 
3405(c) apply if a distributee elects to have a portion of an eligible 
rollover distribution paid to an eligible retirement plan in a direct 
rollover and to have the remainder of that distribution paid to the 
distributee?
    Q-7: Will the plan administrator be subject to liability for tax, 
interest, or penalties for failure to withhold 20 percent from an 
eligible rollover distribution that, because of erroneous information 
provided by a distributee, is not paid to an eligible retirement plan 
even though the distributee elected a direct rollover?
    Q-8: Is an eligible rollover distribution that is paid to a 
qualified defined benefit plan subject to 20-percent withholding?
    Q-9: If property other than cash, employer securities, or plan loans 
is distributed, how is the 20-percent income tax withholding required 
under section 3405(c) accomplished?
    Q-10: What assumptions may a plan administrator make regarding 
whether a benefit is an eligible rollover distribution for purposes of 
determining the amount of a distribution that is subject to 20-percent 
mandatory withholding?
    Q-11: Are there special rules for applying the 20-percent 
withholding requirement to employer securities and a plan loan offset 
amount distributed in an eligible rollover distribution?
    Q-12: How does the mandatory withholding rule apply to net 
unrealized appreciation from employer securities?
    Q-13: Does the 20-percent withholding requirement apply to eligible 
rollover distributions from a qualified plan distributed annuity 
contract?
    Q-14: Must a payor or plan administrator withhold tax from an 
eligible rollover distribution for which a direct rollover election was 
not made if the amount of the distribution is less than $200?
    Q-15: If eligible rollover distributions are made from a qualified 
plan, who has responsibility for making the returns and reports required 
under these regulations?
    Q-16: What eligible rollover distributions must be reported on Form 
1099-R?
    Q-17: Must the plan administrator, trustee or custodian of the 
eligible retirement plan report amounts received in a direct rollover?

                          Questions and Answers

    Q-1: What are the withholding requirements under section 3405 for 
distributions

[[Page 257]]

from qualified plans and section 403(b) annuities?
    A-1: (a) General rule. Section 3405(c), added by UCA, provides that 
any designated distribution that is an eligible rollover distribution 
(as defined in section 402(f)(2)(A)) from a qualified plan or a section 
403(b) annuity is subject to income tax withholding at the rate of 20 
percent unless the distributee of the eligible rollover distribution 
elects to have the distribution paid directly to an eligible retirement 
plan in a direct rollover. See Sec. 1.402(c)-2, Q&A-2 of this chapter 
for the definition of a qualified plan and Sec. 1.403(b)-2, Q&A-1 of 
this chapter for the definition of a section 403(b) annuity. For 
purposes of section 3405 and this section, with respect to a 
distribution from a qualified plan, an eligible retirement plan is a 
trust qualified under section 401(a), an annuity plan described in 
section 403(a), or an individual retirement plan (as described in 
Sec. 1.402(c)-2, Q&A-2 of this chapter). For purposes of section 3405 
and this section, with respect to a distribution from a section 403(b) 
annuity, an eligible retirement plan is an annuity contract, a custodial 
account, a retirement income account described in section 403(b), or an 
individual retirement plan. If a designated distribution is not an 
eligible rollover distribution, it is subject to the elective 
withholding provisions of section 3405(a) and (b) and Sec. 35.3405-1 of 
this chapter and is not subject to the mandatory withholding provisions 
of section 3405(c) and this section.
    (b) Application of other statutory provisions. See 
Sec. 1.401(a)(31)-1 of this chapter concerning the requirements and the 
procedures for electing a direct rollover under section 401(a)(31). See 
section 402(c)(2) and (4), and Sec. 1.402(c)-2, Q&A-3 through Q&A-10 and 
Q&A-14 of this chapter for rules to determine what constitutes an 
eligible rollover distribution. See Sec. 1.402(f)-1, Q&A-1 through Q&A-3 
and Sec. 1.403(b)-2, Q&A-3 of this chapter concerning the notice that 
must be provided to a distributee, within a reasonable period of time 
before making an eligible rollover distribution. See Sec. 1.403(b)-2, 
Q&A-1 and Q&A-2 of this chapter for guidance concerning the rollover 
provisions and direct rollover requirements for distributions from 
annuities described in section 403(b).
    (c) Effective date--(1) Statutory effective date--(i) General rule. 
Section 3405(c), as added by UCA, applies to eligible rollover 
distributions made on or after January 1, 1993, even if the employee's 
employment with the employer maintaining the plan terminated before 
January 1, 1993 and even if the eligible rollover distribution is part 
of a series of payments that began before January 1, 1993.
    (ii) Special rule for governmental section 403(b) annuities. Section 
522 of UCA provides a special effective date for governmental section 
403(b) annuities. This special effective date appears in Sec. 1.403(b)-
2T of this chapter (as it appeared in the April 1, 1995 edition of 26 
CFR part 1).
    (2) Regulatory effective date. This section applies to eligible 
rollover distributions made on or after October 19, 1995. For eligible 
rollover distributions made on or after January 1, 1993 and before 
October 19, 1995, Sec. 31.3405(c)-1T (as it appeared in the April 1, 
1995 edition of 26 CFR part 1), applies. However, for any distribution 
made on or after January 1, 1993 but before October 19, 1995, a plan 
administrator or payor may comply with the withholding requirements of 
section 3405(c) by substituting any or all provisions of this section 
for the corresponding provisions of Sec. 31.3405(c)-1T, if any.
    Q-2: May a distributee elect under section 3405(c) not to have 
Federal income tax withheld from an eligible rollover distribution?
    A-2: No. The 20-percent income tax withholding imposed under section 
3405(c)(1) applies to an eligible rollover distribution unless the 
distributee elects under section 401(a)(31) to have the eligible 
rollover distribution paid directly to an eligible retirement plan in a 
direct rollover. See Sec. 1.401(a)(31)-1 and Sec. 1.403(b)-2, Q&A-2 of 
this chapter for provisions concerning the requirement that a 
distributee of an eligible rollover distribution be permitted to elect a 
distribution in the form of a direct rollover.
    Q-3: May a distributee be permitted to elect to have more than 20-
percent Federal income tax withheld from an eligible rollover 
distribution?
    A-3: Yes. Under section 3402(p), a distributee of an eligible 
rollover distribution and the plan administrator or payor are permitted 
to enter into an agreement to provide for withholding in excess of 20 
percent from an eligible rollover distribution. Any agreement must be 
made in accordance with applicable forms and instructions. However, no 
request for withholding will be effective between the plan administrator 
or payor and the distributee until the plan administrator or payor 
accepts the request by commencing to withhold from the amounts with 
respect to which the request was made. An agreement under section 
3402(p) shall be effective for such period as the plan administrator or 
payor and the distributee mutually agree upon. However, either party to 
the agreement may terminate the agreement prior to the end of such 
period by furnishing a signed written notice to the other.
    Q-4: Who has responsibility for complying with section 3405(c) 
relating to the 20-percent income tax withholding on eligible rollover 
distributions?
    A-4: Section 3405(d) generally requires the plan administrator of a 
qualified plan and the payor of a section 403(b) annuity to withhold 
under section 3405(c)(1) an amount equal to 20 percent of the portion of 
an eligible

[[Page 258]]

rollover distribution that the distributee does not elect to have paid 
in a direct rollover. When an amount is paid under a qualified plan 
distributed annuity contract as defined in Sec. 1.402(c)-2, Q&A-10 of 
this chapter, the payor is treated as the plan administrator. See Q&A-13 
of this section concerning eligible rollover distributions from a 
qualified plan distributed annuity contract.
    Q-5: May the plan administrator shift the withholding responsibility 
to the payor and, if so, how?
    A-5: Yes. The plan administrator may shift the withholding 
responsibility to the payor by following the procedures set forth in 
Sec. 35.3405-1, Q&A E-2 through E-5 of this chapter (relating to 
elective withholding on pensions, annuities and certain other deferred 
income) with appropriate adjustments, including the plan administrator's 
identification of amounts that constitute required minimum 
distributions.
    Q-6: How does the 20-percent withholding requirement under section 
3405(c) apply if a distributee elects to have a portion of an eligible 
rollover distribution paid to an eligible retirement plan in a direct 
rollover and to have the remainder of that distribution paid to the 
distributee?
    A-6: If a distributee elects to have a portion of an eligible 
rollover distribution paid to an eligible retirement plan in a direct 
rollover and to receive the remainder of the distribution, the 20-
percent withholding requirement under section 3405(c) applies only to 
the portion of the eligible rollover distribution that the distributee 
receives and not to the portion that is paid in a direct rollover.
    Q-7: Will the plan administrator be subject to liability for tax, 
interest, or penalties for failure to withhold 20 percent from an 
eligible rollover distribution that, because of erroneous information 
provided by a distributee, is not paid to an eligible retirement plan 
even though the distributee elected a direct rollover?
    A-7: (a) General rule. If the plan administrator reasonably relied 
on adequate information provided by the distributee (as described in 
paragraph (b) of this Q&A), the plan administrator will not be subject 
to liability for taxes, interest, or penalties for failure to withhold 
income tax from an eligible rollover distribution solely because the 
distribution is paid to an account or plan that is not an eligible 
retirement plan (as defined, with respect to distributions from 
qualified plans, in section 402(c)(8)(B) and Sec. 1.402(c)-2, Q&A-2 of 
this chapter and, with respect to a distributions from section 403(b) 
annuities, in Sec. 1.403(b)-2), Q&A-1 of this chapter. Although the plan 
administrator is not required to verify independently the accuracy of 
information provided by the distributee, the plan administrator's 
reliance on the information furnished must be reasonable. For example, 
it is not reasonable for the plan administrator to rely on information 
that is clearly erroneous on its face.
    (b) Adequate information. The plan administrator has obtained from 
the distributee adequate information on which to rely in making a direct 
rollover if the distributee furnishes to the plan administrator: the 
name of the eligible retirement plan; a representation that the 
recipient plan is an individual retirement plan, a qualified plan, or a 
section 403(b) annuity, as appropriate; and any other information that 
is necessary in order to permit the plan administrator to accomplish the 
direct rollover by the means it has selected. This information must 
include any information needed to comply with the specific requirements 
of Sec. 1.401(a)(31)-1, Q&A-3 and Q&A-4 of this chapter. For example, if 
the direct rollover is to be made by mailing a check to the trustee of 
an individual retirement account, the plan administrator must obtain, in 
addition to the name of the individual retirement account and the 
representation described above, the name and address of the trustee of 
the individual retirement account.
    Q-8: Is an eligible rollover distribution that is paid to a 
qualified defined benefit plan subject to 20-percent withholding?
    A-8: No. If an eligible rollover distribution is paid in a direct 
rollover to an eligible retirement plan within the meaning of section 
402(c)(8), including a qualified defined benefit plan, it is reasonable 
to believe that the distribution is not includible in gross income 
pursuant to section 402(c)(1). Accordingly, pursuant to section 
3405(e)(1)(B), the distribution is not a designated distribution and is 
not subject to 20-percent withholding.
    Q-9: If property other than cash, employer securities, or plan loans 
is distributed, how is the 20-percent income tax withholding required 
under section 3405(c) accomplished?
    A-9: When all or a portion of an eligible rollover distribution 
subject to 20-percent income tax withholding under section 3405(c) 
consists of property other than cash, employer securities, or plan loan 
offset amounts, the plan administrator or payor must apply Sec. 35.3405-
1, Q&A F-2 of this chapter and may apply Sec. 35.3405-1, Q&A F-3 of this 
chapter in determining how to satisfy the withholding requirements.
    Q-10: What assumptions may a plan administrator make regarding 
whether a benefit is an eligible rollover distribution for purposes of 
determining the amount of a distribution that is subject to 20-percent 
mandatory withholding?
    A-10: (a) In general. For purposes of determining the amount of a 
distribution that is subject to 20-percent mandatory withholding, a plan 
administrator may make the assumptions described in paragraphs (b), (c), 
and (d) of this Q&A in determining the amount of a distribution that is 
an eligible

[[Page 259]]

rollover distribution and a designated distribution. Q&A-17 of 
Sec. 1.401(a)(31)-1 of this chapter provides assumptions for purposes of 
complying with section 401(a)(31). See Sec. 1.402(c)-2, Q&A-15 of this 
chapter concerning the effect of these assumptions for purposes of 
section 402(c).
    (b) $5,000 death benefit. A plan administrator may assume that a 
distribution that qualifies for the $5,000 death benefit exclusion under 
section 101(b) is the only death benefit being paid with respect to a 
deceased employee that qualifies for that exclusion. Thus, in such a 
case, the plan administrator may assume that the distribution is not an 
eligible rollover distribution to the extent that it would be excludible 
from gross income based on this assumption.
    (c) Required minimum distributions. The plan administrator is 
permitted to determine the amount of the minimum distribution required 
to satisfy section 401(a)(9)(A) for any calendar year by assuming that 
there is no designated beneficiary.
    (d) Valuation of property. In the case of a distribution that 
includes property, in calculating the amount of the distribution for 
purposes of applying section 3405(c), the value of the property may be 
determined in accordance with Sec. 35.3405-1, Q&A F-1 of this chapter.
    Q-11: Are there special rules for applying the 20-percent 
withholding requirement to employer securities and a plan loan offset 
amount distributed in an eligible rollover distribution?
    A-11: Yes. The maximum amount to be withheld on any designated 
distribution (including any eligible rollover distribution) under 
section 3405(c) must not exceed the sum of the cash and the fair market 
value of property (excluding employer securities) received in the 
distribution. The amount of the sum is determined without regard to 
whether any portion of the cash or property is a designated distribution 
or an eligible rollover distribution. For purposes of this rule, any 
plan loan offset amount, as defined in Sec. 1.402(c)-2, Q&A-9 of this 
chapter, is treated in the same manner as employer securities. Thus, 
although employer securities and plan loan offset amounts must be 
included in the amount that is multiplied by 20-percent, the total 
amount required to be withheld for an eligible rollover distribution is 
limited to the sum of the cash and the fair market value of property 
received by the distributee, excluding any amount of the distribution 
that is a plan loan offset amount or that is distributed in the form of 
employer securities. For example, if the only portion of an eligible 
rollover distribution that is not paid in a direct rollover consists of 
employer securities or a plan loan offset amount, withholding is not 
required. In addition, if a distribution consists solely of employer 
securities and cash (not in excess of $200) in lieu of fractional 
shares, no amount is required to be withheld as income tax from the 
distribution under section 3405 (including section 3405(c) and this 
section). For purposes of section 3405 and this section, employer 
securities means securities of the employer corporation within the 
meaning of section 402(e)(4)(E)(ii).
    Q-12: How does the mandatory withholding rule apply to net 
unrealized appreciation from employer securities?
    A-12: An eligible rollover distribution can include net unrealized 
appreciation from employer securities, within the meaning of section 
402(e)(4), even if the net unrealized appreciation is excluded from 
gross income under section 402(e)(4). However, to the extent that it is 
excludable from gross income pursuant to section 402(e)(4), net 
unrealized appreciation is not a designated distribution pursuant to 
section 3405(e)(1)(B) because it is reasonable to believe that it is not 
includable in gross income. Thus, to the extent that net unrealized 
appreciation is excludable from gross income pursuant to section 
402(e)(4), net unrealized appreciation is not included in the amount of 
an eligible rollover distribution that is subject to 20-percent 
withholding.
    Q-13: Does the 20-percent withholding requirement apply to eligible 
rollover distributions from a qualified plan distributed annuity 
contract?
    A-13: The 20-percent withholding requirement applies to eligible 
rollover distributions from a qualified plan distributed annuity 
contract as defined in Q&A-10 of Sec. 1.402(c)-2 of this chapter. In the 
case of an eligible rollover distribution from such an annuity contract, 
the payor is treated as the plan administrator for purposes of section 
3405. See Sec. 1.401(a)(31)-1, Q&A-16 of this chapter concerning the 
direct rollover requirements that apply to distributions from such an 
annuity contract and see Sec. 1.402(c)-2, Q&A-10 of this chapter 
concerning the treatment of distributions from such annuity contracts as 
eligible rollover distributions.
    Q-14: Must a payor or plan administrator withhold tax from an 
eligible rollover distribution for which a direct rollover election was 
not made if the amount of the distribution is less than $200?
    A-14: No. However, all eligible rollover distributions received 
within one taxable year of the distributee under the same plan must be 
aggregated for purposes of determining whether the $200 floor is 
reached. If the plan administrator or payor does not know at the time of 
the first distribution (that is less than $200) whether there will be 
additional eligible rollover distributions during the year for which 
aggregation is required, the plan administrator need not withhold from 
the first distribution. If distributions are made within one taxable 
year under more

[[Page 260]]

than one plan of an employer, the plan administrator or payor may, but 
need not, aggregate distributions for purposes of determining whether 
the $200 floor is reached. However, once the $200 threshold has been 
reached, the sum of all payments during the year must be used to 
determine the applicable amount to be withheld from subsequent payments 
during the year.
    Q-15: If eligible rollover distributions are made from a qualified 
plan, who has responsibility for making the returns and reports required 
under these regulations?
    A-15: Generally, the plan administrator, as defined in section 
414(g), is responsible for maintaining the records and making the 
required reports with respect to eligible rollover distributions from 
qualified plans. However, if the plan administrator fails to keep the 
required records and make the required reports, the employer maintaining 
the plan is responsible for the reports and returns.
    Q-16: What eligible rollover distributions must be reported on Form 
1099-R?
    A-16: Each eligible rollover distribution, including each eligible 
rollover distribution that is paid directly to an eligible retirement 
plan in a direct rollover, must be reported on Form 1099-R in accordance 
with the instructions for Form 1099-R. For purposes of the reporting 
required under section 6047(e), a direct rollover is treated as a 
distribution that is immediately rolled over to an eligible retirement 
plan. Distributions that are not eligible rollover distributions are 
subject to the reporting requirements set forth in Sec. 35.3405-1 of 
this chapter and applicable forms and instructions.
    Q-17: Must the plan administrator, trustee or custodian of the 
eligible retirement plan report amounts received in a direct rollover?
    A-17: (a) Individual retirement plan. If a distributee elects to 
have an eligible rollover distribution paid to an individual retirement 
plan in a direct rollover, the eligible rollover distribution is 
reported on Form 5498 as a rollover contribution to the individual 
retirement plan, in accordance with the instructions for Form 5498.
    (b) Qualified plan or section 403(b) annuity. If a distributee 
elects to have an eligible rollover distribution paid to a qualified 
plan or section 403(b) annuity, the recipient plan or annuity is not 
required to report the receipt of the rollover contribution.

[T.D. 8619, 60 FR 49215, Sept. 22, 1995]



Sec. 31.3406-0  Outline of the backup withholding regulations.

    This section lists paragraphs contained in Secs. 31.3406(a)-1 
through 31.3406(i)-1.

    Sec. 31.3406(a)-1  Backup withholding requirement on reportable 
                                payments.

    (a) Overview.
    (b) Conditions that invoke the backup withholding requirement.
    (1) Conditions applicable to all reportable payments.
    (2) Conditions applicable only to reportable interest or dividend 
payments.
    (c) Exceptions.
    (d) Cross references.

  Sec. 31.3406(a)-2  Definition of payors obligated to backup withhold.

    (a) In general.
    (b) Middlemen treated as payors.
    (c) Persons not treated as payors.

   Sec. 31.3406(a)-3  Scope and extent of accounts subject to backup 
                              withholding.

  Sec. 31.3406(a)-4  Time when payments are considered to be paid and 
                     subject to backup withholding.

    (a) Timing.
    (1) In general.
    (2) Special rules for dividends.
    (b) Amounts reportable under section 6045.
    (1) In general.
    (2) Special rule for interest accrued on bonds.
    (c) Middlemen.
    (1) In general.
    (2) Special rule for common trust funds.
    (3) Special rule for certain grantor trusts.

           Sec. 31.3406(b)(2)-1  Reportable interest payment.

    (a) Interest subject to backup withholding.
    (1) In general.
    (2) Special rule for tax-exempt interest.
    (b) Amount subject to backup withholding.
    (1) In general.
    (2) Special rule to adjust for premature withdrawal penalty.

             Sec. 31.3406(b)(2)-2  Original issue discount.

    (a) Original issue discount subject to backup withholding.
    (b) Amount subject to backup withholding and time when backup 
withholding is imposed with respect to short-term obligations.
    (c) Transferred short-term obligations.
    (1) Subsequent holder may establish purchase price.
    (2) Subsequent holder unable (or not permitted) to establish 
purchase price.
    (3) Transferred obligation.
    (d) Amount subject to backup withholding and time when backup 
withholding is imposed with respect to long-term obligations.
    (1) No cash payments prior to maturity.
    (2) Registered long-term obligations with cash payments prior to 
maturity.
    (3) Transferred registered long-term obligations with payments prior 
to maturity.

[[Page 261]]

    (e) Bearer long-term obligations.
    (1) Payments prior to maturity.
    (2) Payments at maturity.

               Sec. 31.3406(b)(2)-3  Window transactions.

    (a) Requirement to backup withhold.
    (b) Window transaction defined.
    (c) Manner of furnishing taxpayer identification number in the case 
of a window transaction.

           Sec. 31.3406(b)(2)-4  Reportable dividend payment.

    (a) Dividends subject to backup withholding.
    (b) Dividends not subject to backup withholding.
    (c) Amount subject to backup withholding.
    (1) In general.
    (2) Reasonable estimate of amount of dividend subject to backup 
withholding.
    (3) Reinvested dividends.

      Sec. 31.3406(b)(2)-5  Reportable patronage dividend payment.

    (a) Patronage dividends subject to backup withholding.
    (b) Amount subject to backup withholding.
    (1) Failure to provide taxpayer identification number or 
notification of incorrect taxpayer identification number.
    (2) Notified payee underreporting or payee certification failure.

    Sec. 31.3406(b)(3)-1  Reportable payments of rents, commissions, 
                     nonemployee compensation, etc.

    (a) Section 6041 and 6041A(a) payments subject to backup 
withholding.
    (b) Amount subject to backup withholding.
    (1) In general.
    (2) Net commissions.
    (3) Payments aggregating $600 or more for the calendar year.

Sec. 31.3406(b)(3)-2  Reportable barter exchanges and gross proceeds of 
             sales of securities or commodities by brokers.

    (a) Transactions subject to backup withholding.
    (b) Amount subject to backup withholding.
    (1) In general.
    (2) Forward contracts, including foreign currency contracts, and 
regulated futures contracts.
    (3) Security sales made through a margin account.
    (4) Security short sales.
    (5) Fractional shares.

   Sec. 31.3406(b)(3)-3  Reportable payments by certain fishing boat 
                               operators.

    (a) Payments subject to backup withholding.
    (b) Amount subject to backup withholding.

         Sec. 31.3406(b)(3)-4  Reportable payments of royalties.

    (a) Royalty payments subject to backup withholding.
    (b) Amount subject to backup withholding.

      Sec. 31.3406(b)(4)-1  Exemption for certain minimal payments.

    (a) In general.
    (b) Manner of making the election.
    (c) How to annualize.
    (1) In general.
    (2) Special aggregation rule for reportable interest and dividends.
    (d) Exception for window transactions and original issue discount.

Sec. 31.3406(c)-1  Notified payee underreporting of reportable interest 
                          or dividend payments.

    (a) Overview.
    (b) Definitions.
    (1) Notified payee underreporting.
    (2) Payee underreporting.
    (c) Notice to payors regarding backup withholding due to notified 
payee underreporting.
    (1) In general.
    (2) Additional requirements for payors that are also brokers.
    (3) Payor identification of accounts of the payee subject to backup 
withholding due to notified payee underreporting.
    (d) Notice from payors of backup withholding due to notified payee 
underreporting.
    (1) In general.
    (2) Procedures.
    (e) Period during which backup withholding is required.
    (1) In general.
    (2) Stop withholding.
    (3) Dormant accounts.
    (f) Notice to payees from the Internal Revenue Service.
    (1) Notice period.
    (2) Payee subject to backup withholding.
    (3) Disclosure of names of payors and brokers.
    (4) Backup withholding certification.
    (g) Determination by the Internal Revenue Service that backup 
withholding should not start or should be stopped.
    (1) In general.
    (2) Date notice to stop backup withholding will be provided.
    (3) Grounds for determination.
    (4) No underreporting.
    (5) Correcting any payee underreporting.
    (6) Undue hardship.
    (7) Bona fide dispute.
    (h) Payees filing a joint return.
    (1) In general.
    (2) Exceptions.
    (i) [Reserved.]
    (j) Penalties.

[[Page 262]]

      Sec. 31.3406(d)-1  Manner required for furnishing a taxpayer 
                         identification number.

    (a) Requirement to backup withhold.
    (b) Reportable interest or dividend account.
    (1) Manner required for furnishing a taxpayer identification number 
with respect to a pre-1984 account or instrument.
    (2) Determination of pre-1984 account or instrument.
    (3) Manner required for furnishing a taxpayer identification number 
with respect to an account or instrument that is not a pre-1984 account.
    (4) Special rule with respect to the acquisition of a readily 
tradable instrument in a transaction between certain parties acting 
without the assistance of a broker.
    (c) Brokerage account.
    (1) Manner required for furnishing a taxpayer identification number 
with respect to a brokerage relationship that is not a post-1983 
brokerage account.
    (2) Manner required for furnishing a taxpayer identification number 
with respect to a post-1983 brokerage account.
    (d) Rents, commissions, nonemployee compensation, and certain 
fishing boat operators, etc.--Manner required for furnishing a taxpayer 
identification number.

             Sec. 31.3406(d)-2  Payee certification failure.

    (a) Requirement to backup withhold.
    (b) Exceptions.

Sec. 31.3406(d)-3  Special 30-day rules for certain reportable payments.

    (a) Accounts or readily tradable instruments acquired directly from 
the payor (including a broker who holds an instrument in street name) by 
electronic transmission or by mail.
    (b) Sale of an instrument for a customer by electronic transmission 
or by mail.
    (c) Application to foreign payees.

   Sec. 31.3406(d)-4  Special rules for readily tradable instruments 
                       acquired through a broker.

    (a) Readily tradable instruments acquired through post-1983 
brokerage accounts with a broker who is not a payor.
    (1) In general.
    (2) Additional requirements.
    (3) Transactions entered into through a brokerage account that is 
not a post-1983 brokerage account.
    (4) Payor must notify payee.
    (b) Notices.
    (1) Form of notice by broker to payor.
    (2) Form of notice by payor to payee.
    (c) Payor's reliance on information from broker.
    (1) In general.
    (2) Amount subject to backup withholding.

   Sec. 31.3406(d)-5  Backup withholding when the Service or a broker 
      notifies the payor to withhold because the payee's taxpayer 
                   identification number is incorrect.

    (a) Overview.
    (b) Definitions and special rules.
    (1) Definition of an incorrect name/TIN combination.
    (2) Definition of account.
    (3) Definition of business day.
    (4) Certain exceptions.
    (c) Notice regarding an incorrect name/TIN combination.
    (1) In general.
    (2) Additional requirements for payors that are also brokers.
    (3) Payor identification of the account or accounts of the payee 
that have the incorrect taxpayer identification number.
    (4) Special rule for joint accounts.
    (5) Date of receipt.
    (d) Notice from payors of backup withholding due to an incorrect 
name/TIN combination.
    (1) In general.
    (2) Procedures.
    (e) Period during which backup withholding is required due to 
notification of an incorrect name/TIN combination.
    (1) In general.
    (2) Grace periods.
    (3) Dormant accounts.
    (f) Manner required for payee to furnish certified taxpayer 
identification number.
    (g) Receipt of two notices within a 3-year period.
    (1) In general.
    (2) Notice to payee who has provided two incorrect name/TIN 
combinations within 3 calendar years.
    (3) Period during which backup withholding is required due to a 
second notice of an incorrect name/TIN combination within 3 calendar 
years.
    (4) Receipt of two notices in one calendar year.
    (5) Notification from the Social Security Administration (or the 
Internal Revenue Service) validating a name/TIN combination.
    (h) Payors must use newly provided certified number.
    (i) Effective date.
    (j) Examples.

 Sec. 31.3406(e)-1  Period during which backup withholding is required.

    (a) In general.
    (b) Failure to furnish a taxpayer identification number in the 
manner required.
    (1) Start withholding.
    (2) Stop withholding.
    (c) Notification of an incorrect taxpayer identification number.
    (d) Notified payee underreporting.
    (e) Payee certification failure.
    (1) Start withholding.

[[Page 263]]

    (2) Stop withholding.
    (f) Rule for determining when the payor receives a taxpayer 
identification number or certificate from a payee.

           Sec. 31.3406(f)-1  Confidentiality of information.

    (a) Confidentiality and liability for violation.
    (b) Permissible use of information.
    (1) In general.
    (2) Window transactions.
    (c) Specific restrictions on the use of information.

Sec. 31.3406(g)-1  Exception for payments to certain payees and certain 
                             other payments.

    (a) Exempt recipients.
    (1) In general.
    (2) Nonexclusive list.
    (b) Determination of whether a person is described in paragraph 
(a)(1) of this section.
    (c) Prepaid or advance premium life-insurance contracts.

 Sec. 31.3406(g)-2  Exception for reportable payments for which backup 
                   withholding is otherwise required.

    (a) In general.
    (b) Payment of wages.
    (c) Distribution from a pension, annuity, or other plan of deferred 
compensation.
    (d) Gambling winnings.
    (1) In general.
    (2) Definition of a reportable gambling winning and determination of 
amount subject to backup withholding.
    (3) Special rules.
    (e) Certain real estate transactions.
    (f) Certain payments after an acquisition of accounts or 
instruments.
    (g) Certain gross proceeds.

   Sec. 31.3406(g)-3  Exemption while payee is waiting for a taxpayer 
                         identification number.

    (a) In general.
    (1) Backup withholding not required for 60 days.
    (2) Reserve method.
    (3) Alternative rule; 7-day grace period.
    (b) Special rule for readily tradable instruments.
    (c) Exceptions.
    (1) In general.
    (2) Special rule for amounts subject to reporting under section 6045 
other than proceeds of redemptions of bearer obligations.
    (d) Awaiting-TIN certificate.
    (e) Form for awaiting-TIN certificate.

                     Sec. 31.3406(h)-1  Definitions.

    (a) In general.
    (b) Taxpayer identification number.
    (1) In general.
    (2) Obviously incorrect number.
    (c) Broker.
    (d) Readily tradable instrument.
    (e) Day.
    (f) Business day.

                    Sec. 31.3406(h)-2  Special rules.

    (a) Joint accounts.
    (1) Relevant name and taxpayer identification number combination.
    (2) Optional rule for accounts subject to backup withholding under 
section 3406(a)(1)(B) or (C) where the names are switched.
    (3) Joint foreign payees.
    (b) Backup withholding from an alternative source.
    (1) In general.
    (2) Exceptions for payments made in property.
    (c) Trusts.
    (d) Adjustment of prior withholding by middleman.
    (e) Conversion of amounts paid in foreign currency into United 
States dollars.
    (1) Convertible foreign currency.
    (2) Nonconvertible foreign currency. [Reserved]
    (f) Coordination with other sections.
    (g) Tax liabilities and penalties.
    (h) To whom payor is liable for amount withheld.

                    Sec. 31.3406(h)-3  Certificates.

    (a) Prescribed form to furnish information under penalties of 
perjury.
    (1) In general.
    (2) Use of a single or multiple Forms W-9 for accounts of the same 
payee.
    (b) Prescribed form to furnish a noncertified taxpayer 
identification number.
    (c) Forms prepared by payors or brokers.
    (1) Substitute forms; in general.
    (2) Form for exempt recipient.
    (d) Special rule for brokers.
    (e) Reasonable reliance on certificate.
    (1) In general.
    (2) Circumstances establishing reasonable reliance.
    (f) Who may sign certificate.
    (1) In general.
    (2) Notified payee underreporting.
    (g) Retention of certificates.
    (1) Accounts or instruments that are not pre-1984 accounts and 
brokerage relationships that are post-1983 brokerage accounts.
    (2) Accounts or instruments that are pre-1984 accounts and brokerage 
relationships that are not post-1983 brokerage accounts.
    (h) Cross references.

                   Sec. 31.3406(i)-1  Effective date.


[T.D. 8637, 60 FR 66112, Dec. 21, 1995, as amended by T.D. 8734, 62 FR 
53493, Oct. 14, 1997]

    Effective Date Note: By T.D. 8734, 62 FR 53493, Oct. 14, 1997, 
Sec. 31.3406-0 was amended by removing the entries in the table for

[[Page 264]]

Sec. 31.3406(h)-2, paragraphs (e)(1) and (e)(2), effective Jan. 1, 1999. 
At 63 FR 72183, Dec. 31, 1998, the effective date was delayed until Jan. 
1, 2000. By T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date 
was delayed until Jan. 1, 2001.



Sec. 31.3406(a)-1  Backup withholding requirement on reportable payments.

    (a) Overview. Under section 3406, a payor must deduct and withhold 
31 percent of a reportable payment if a condition for withholding 
exists. Reportable payments mean interest and dividend payments (as 
defined in section 3406(b)(2)) and other reportable payments (as defined 
in section 3406(b)(3)). The conditions described in paragraph (b)(1) of 
this section apply to all reportable payments, including reportable 
interest and dividend payments. The conditions described in paragraph 
(b)(2) of this section apply only to reportable interest and dividend 
payments.
    (b) Conditions that invoke the backup withholding requirement--(1) 
Conditions applicable to all reportable payments. A payor of a 
reportable payment must deduct and withhold under section 3406 if--
    (i) The payee of the reportable payment does not furnish the payee's 
taxpayer identification number to the payor, as required in section 
3406(a)(1)(A) and Sec. 31.3406(d)-1; or
    (ii) The Internal Revenue Service or a broker notifies the payor 
that the taxpayer identification number furnished by its payee for a 
reportable payment is incorrect, as described in section 3406(a)(1)(B) 
and Sec. 31.3406(d)-5.
    (2) Conditions applicable only to reportable interest or dividend 
payments. A payor of a reportable interest or dividend payment must 
deduct and withhold under section 3406 if--
    (i) The Internal Revenue Service or a broker notifies the payor that 
its payee has underreported interest or dividend income, as described in 
section 3406(a)(1)(C) and Sec. 31.3406(c)-1; or
    (ii) The payee fails to certify to the payor or broker that the 
payee is not subject to withholding due to notified payee 
underreporting, as described in section 3406(a)(1)(D) and 
Sec. 31.3406(d)-2.
    (c) Exceptions. The requirement to withhold does not apply to 
certain minimal payments as described in Sec. 31.3406(b)(4)-1 or to 
payments exempt from withholding under Secs. 31.3406(g)-1 through 
31.3406(g)-3.
    (d) Cross references. For the definition of payor, see 
Sec. 31.3406(a)-2. For the definition of taxpayer identification number, 
see Sec. 31.3406(h)-1(b).

[T.D. 8637, 60 FR 66114, Dec. 21, 1995]



Sec. 31.3406(a)-2  Definition of payors obligated to backup withhold.

    (a) In general. Payor means any person who is required to make an 
information return with respect to any reportable payment (as described 
in section 3406(b)) under section 6041, 6041A(a), 6042, 6044, 6045, 
6049, 6050A, or 6050N, including any middleman as described in paragraph 
(b) of this section.
    (b) Middlemen treated as payors. A person who receives or collects a 
reportable payment on behalf of or for the account of a payee is a 
middleman and is treated as the payor of the payment. These persons 
include, but are not limited to--
    (1) A custodian of a payee's account, such as a bank, financial 
institution, or brokerage firm acting as custodian of an account;
    (2) A nominee, including the joint owner of an account or 
instrument, except if the joint owners are husband and wife or if the 
payment is actually owned by another person whose name is also shown on 
the information return filed with respect to the payment;
    (3) A broker holding a security (including stock) for a customer in 
street name;
    (4) A grantor trust established after December 31, 1995, all of 
which is owned by two or more grantors, and for this purpose spouses 
filing a joint return are considered to be one grantor;
    (5) A common trust fund; and
    (6) A partnership or an S corporation that makes a reportable 
payment.
    (c) Persons not treated as payors. The following persons are not 
treated as payors for purposes of section 3406 if the person does not 
have a reporting obligation under the section on information reporting 
to which the payment relates:
    (1) An agent of the payor who is acting on behalf of the payor in 
making the payment and who has not entered into an agreement with the 
payor (for further guidance see Rev. Proc. 84-33

[[Page 265]]

(1984-1 C.B. 502), and Sec. 601.601(d)(2) of this chapter), such as a 
bank that acts as a paying agent in making a payment of dividends on 
behalf of a corporation (although payments made by the agent are 
considered to be payments made by the payor, and thus are subject to 
withholding, reporting, and the depositing requirements pertaining to 
section 3406 as if they were made by the payor itself, and failure by 
the agent so to withhold, report, or deposit is considered to be failure 
by the payor);
    (2) A trust (other than a grantor trust as described in paragraph 
(b)(4) of this section) that files a Form 1041 and furnishes each 
beneficiary a Form K-1 containing information required to be shown on an 
information return, including amounts withheld under section 3406; or
    (3) A partnership making a payment of a distributive share or an S 
corporation making a similar distribution.

[T.D. 8637, 60 FR 66114, Dec. 21, 1995]



Sec. 31.3406(a)-3  Scope and extent of accounts subject to backup withholding.

    A payor who is required to withhold under Sec. 31.3406(a)-1 must 
withhold--
    (a) On the accounts subject to withholding under Sec. 31.3406(a)-1 
(b)(1)(i) or (b)(2)(ii); and
    (b) On the accounts subject to withholding under Sec. 31.3406(a)-
1(b)(1)(ii) or (b)(2)(i), as described under Sec. 31.3406(d)-5 (relating 
to notification of incorrect TIN) or Sec. 31.3406(c)-1 (relating to 
notified payee underreporting), respectively.

[T.D. 8637, 60 FR 66114, Dec. 21, 1995]



Sec. 31.3406(a)-4  Time when payments are considered to be paid and subject to backup withholding.

    (a) Timing--(1) In general. If backup withholding is required under 
section 3406 on a reportable payment (as defined in section 3406(b)), 
the payor must withhold at the time it makes the payment to the payee or 
to the payee's account that is subject to withholding. Amounts are 
considered paid when they are credited to the account of, or made 
available to, the payee. Amounts are not considered paid solely because 
they are posted (e.g., an informational notation on the payee's 
passbook) if they are not actually credited to the payee's account or 
made available to the payee. See paragraph (c) of this section for the 
timing of withholding by a middleman.
    (2) Special rules for dividends. For purposes of section 3406 and 
this section--
    (i) Record date earlier than payment date. In the case of stock for 
which the record date is earlier than the payment date, the dividends 
are considered paid on the payment date.
    (ii) Dividends paid in corporate reorganizations. In the case of a 
corporate reorganization, if a payee is required to exchange stock held 
in the former corporation for stock in the new corporation before the 
dividends that have been paid with respect to the stock in the new 
corporation will be provided to the payee, the dividend is considered 
paid on the date the payee actually exchanges the stock and receives the 
dividend.
    (b) Amounts reportable under section 6045--(1) In general. 
Notwithstanding paragraph (a) of this section, in the case of a 
transaction reportable under section 6045 (except in the case of forward 
contracts (including foreign currency contracts), regulated futures 
contracts, and security short sales), the obligation to withhold under 
section 3406 arises on the date the sale is entered on the books of the 
broker or the date the exchange occurs as provided in Sec. 1.6045-
1(f)(3) of this chapter. A broker (in its capacity as payor) is not 
required, however, to satisfy its withholding liability until payment is 
made. See Sec. 31.3406(b)(3)-2(b)(2) for special rules applicable to 
forward contracts (including foreign currency contracts), regulated 
futures contracts, and security short sales.
    (2) Special rule for interest accrued on bonds. For purposes of 
determining the time that interest is considered paid and subject to 
withholding under section 3406 when bonds are sold between interest 
payment dates, the portion of the sales price representing interest 
accrued to the date of sale is considered a portion of a reportable 
payment of gross proceeds under section 6045 (provided that the accrued 
interest is not tax-exempt as described in section

[[Page 266]]

103(a), relating to certain governmental obligations), and is not 
considered to be a payment of interest for purposes of section 6049.
    (c) Middlemen--(1) In general. Any middleman (as defined in 
Sec. 31.3406(a)-2(b)) must withhold under section 3406 at the time the 
reportable payment is received by or credited to the middleman. If the 
middleman makes or credits the reportable payment to the payee prior to 
the middleman's receipt of the corresponding payment, the middleman may 
withhold at the time the reportable payment is made or credited to the 
payee.
    (2) Special rule for common trust funds. A common trust fund (as 
defined in section 584) must withhold either--
    (i) At the time the reportable payment is received by or credited to 
the common trust fund as provided in paragraph (c)(1) of this section;
    (ii) On the date on which the assets of the common trust fund are 
valued; or
    (iii) At the time the common trust fund pays or credits the 
reportable payment to a participant of the common trust fund.
    (3) Special rule for certain grantor trusts. For grantor trusts 
described in Sec. 31.3406(a)-2(b)(4), reportable payments made to the 
trust are treated as paid by the trust to each grantor, in an amount 
equal to the distribution made by the trust to each grantor, on the date 
that the reportable payment is paid to the trust (except for gross 
proceeds reportable under section 6045). Paragraph (b)(2) of this 
section applies to a grantor trust making a payment of gross proceeds 
under section 6045 subject to withholding under section 3406. For 
purposes of this paragraph (c)(3) a husband and wife filing a joint 
return are considered to be one grantor.

[T.D. 8637, 60 FR 66115, Dec. 21, 1995]



Sec. 31.3406(b)(2)-1  Reportable interest payment.

    (a) Interest subject to backup withholding--(1) In general. A 
payment of a kind, and to a payee, that is required to be reported under 
section 6049 (relating to returns regarding interest and original issue 
discount) is a reportable payment for purposes of section 3406, subject 
to the special rules of Sec. 31.3406(b)(2)-2 (relating to original issue 
discount) and Sec. 31.3406(b)(2)-3 (relating to window transactions). 
See Sec. 31.6051-4 for the requirement to furnish a statement to the 
payee if tax is withheld under section 3406.
    (2) Special rule for tax-exempt interest. When an issuer is required 
to make an information return under Sec. 1.6049-4(d)(8) of this chapter 
because a payee provided a signed written statement on the envelope or 
shell incorrectly claiming that the interest was exempt from taxation 
under section 103(a) (as described in Sec. 1.6049-5(b)(1)(ii) of this 
chapter), the issuer is not required to impose withholding under section 
3406.
    (b) Amount subject to backup withholding--(1) In general. The amount 
of interest subject to withholding under section 3406 is the amount 
subject to reporting under section 6049.
    (2) Special rule to adjust for premature withdrawal penalty. Solely 
for purposes of computing the amount subject to withholding under 
section 3406, the payor may elect not to withhold from the portion of 
any interest payment that is not received by the payee because a penalty 
is in fact imposed for premature withdrawal of funds deposited in a time 
savings account, certificate of deposit, or similar class of deposit.

[T.D. 8637, 60 FR 66115, Dec. 21, 1995]



Sec. 31.3406(b)(2)-2  Original issue discount.

    (a) Original issue discount subject to backup withholding. The 
amount of original issue discount, treated as interest, subject to 
withholding under section 3406 is the amount subject to reporting under 
section 6049, but is limited to the amount of cash paid. In addition, if 
an original issue discount obligation, subject to reporting under 
section 6045, is sold prior to maturity and with respect to the seller a 
condition exists for imposing withholding under section 3406 on the 
gross proceeds, then withholding under Sec. 31.3406(b)(3)-2 applies to 
the gross proceeds of the sale reportable under section 6045, and not to 
the amount of any original issue discount includible in the gross income 
of the seller for the

[[Page 267]]

calendar year of the sale. See Sec. 31.6051-4 for the requirement to 
furnish a statement to the payee if tax is withheld under section 3406.
    (b) Amount subject to backup withholding and time when backup 
withholding is imposed with respect to short-term obligations. In the 
case of an obligation with a fixed maturity date not exceeding one year 
from the date of issue (a short-term obligation), withholding under 
section 3406 applies to any payment of original issue discount on the 
obligation includible in the gross income of the holder to the extent of 
the cash amount of the payment. See Sec. 1.1273-1 of this chapter to 
determine the amount of original issue discount on a short-term 
obligation. See Sec. 1.446-2(e)(1) of this chapter to determine the 
amount of a payment treated as original issue discount.
    (c) Transferred short-term obligations--(1) Subsequent holder may 
establish purchase price--(i) In general. At maturity of a short-term 
obligation, a subsequent holder (i.e., any person who purchased or 
otherwise obtained the obligation after the obligation was issued to the 
original holder) may establish the price of the obligation. The price 
established by the subsequent holder must then be treated as the 
original issue price for purposes of computing the amount of the 
original issue discount subject to withholding under section 3406. The 
price of a short-term obligation may be established by confirmation 
receipt or other record of a similar type or, if the obligation is 
redeemed by or through the person from whom the obligation was purchased 
or otherwise obtained, by the records of the person from whom or through 
whom the obligation was purchased or otherwise obtained. The subsequent 
holder is not required to certify under penalties of perjury that the 
price determined under this paragraph (c)(1)(i) is correct.
    (ii) Exception. A payor may elect to disregard the price at which 
the subsequent holder purchased or otherwise obtained the obligation if 
the payor's computer or recordkeeping system on which the details of the 
obligation are stored is not able to accept that price without 
significant manual intervention.
    (2) Subsequent holder unable (or not permitted) to establish 
purchase price. If a subsequent holder fails (or is unable, pursuant to 
paragraph (c)(1)(ii) of this section) to establish the purchase price of 
the obligation, then the person redeeming the obligation must determine 
the amount subject to withholding under section 3406 as though the 
obligation had been purchased by the holder on the date of issue. If the 
person redeeming the obligation is the issuer of the obligation, then 
the issuer must determine the amount subject to withholding from its 
records. If a person other than the issuer of the obligation redeems the 
obligation and the obligation is listed in Internal Revenue Service 
Publication 1212, List of Original Issue Discount Obligations, that 
person must determine the amount subject to withholding by using the 
issue price indicated in Publication 1212.
    (3) Transferred obligation. If a short-term obligation is 
transferred, no part of the purchase price is considered a reportable 
interest payment under section 6049. Withholding under section 3406 
applies, however, to the gross proceeds of the sale of the obligation if 
the transfer is subject to reporting under section 6045 and a condition 
exists for imposing withholding. For the rules regarding withholding for 
amounts subject to reporting under section 6045, see Sec. 31.3406(b)(3)-
2.
    (d) Amount subject to backup withholding and time when backup 
withholding is imposed with respect to long-term obligations--(1) No 
cash payments prior to maturity. In the case of an obligation with a 
fixed maturity date that is more than one year from the date of issue (a 
long-term obligation) and with no cash payments prior to maturity, 
withholding under section 3406 applies at the maturity of the obligation 
to the amount of original issue discount includible in the gross income 
of the holder for the calendar year in which the obligation matures. The 
amount required to be withheld must not exceed the amount of the cash 
payment.
    (2) Registered long-term obligations with cash payments prior to 
maturity. In the case of a long-term obligation in registered form that 
provides for cash payments prior to maturity, withholding under section 
3406 applies at the time

[[Page 268]]

cash payments are made to the sum of the amounts of qualified stated 
interest and original issue discount includible in the gross income of 
the holder for the calendar year in which the cash payments are made. 
The amount required to be withheld at the time of any cash payment, 
however, must not exceed the amount of the cash payment. If more than 
one cash payment is made during a calendar year, the tax that is 
required to be withheld with respect to original issue discount must be 
allocated among all the expected cash payments in the ratio that each 
cash payment bears to the total of the expected cash payments.
    (3) Transferred registered long-term obligations with payments prior 
to maturity. In the case of a long-term obligation that is transferred 
after its issuance from the original holder, the amount subject to 
withholding under section 3406 with respect to a subsequent holder is 
the amount of original issue discount includible in the gross income of 
all holders during the calendar year (without regard to any amount paid 
by a subsequent holder at the time of transfer). If the person redeeming 
the obligation at maturity is the issuer of the obligation, the issuer 
must determine the amount subject to withholding through its records by 
treating the holder as if he were the original holder. If a person 
redeeming the obligation at maturity is a person other than the issuer 
of the obligation, and the obligation is listed in Internal Revenue 
Service Publication 1212, List of Original Issue Discount Obligations, 
the person must determine the amount subject to withholding by using the 
issue price indicated in Publication 1212.
    (e) Bearer long-term obligations. In the case of a bearer long-term 
obligation with cash payments prior to maturity--
    (1) Payments prior to maturity. Withholding under section 3406 
applies prior to maturity only to the payment of qualified stated 
interest (and not to any amount of original issue discount) includible 
in the gross income of the holder for the calendar year.
    (2) Payments at maturity. At maturity of the obligation, withholding 
applies to the sum of any qualified stated interest payment made at 
maturity and the total amount of original issue discount includible in 
the gross income of the holder during the calendar year of maturity. The 
amount required to be withheld at the time of the cash payment, however, 
must not exceed the amount of the cash payment.

[T.D. 8637, 60 FR 66115, Dec. 21, 1995; 61 FR 12135, Mar. 25, 1996]



Sec. 31.3406(b)(2)-3  Window transactions.

    (a) Requirement to backup withhold. Withholding under section 3406 
applies to a window transaction (as defined in paragraph (b) of this 
section) only if the payee does not furnish a taxpayer identification 
number to the payor in the manner required in paragraph (c) of this 
section or furnishes an obviously incorrect number as described in 
Sec. 31.3406(h)-1(b)(2). Withholding does not apply to a window 
transaction even though the Internal Revenue Service notifies the payor 
of the payee's incorrect taxpayer identification number under section 
3406(a)(1)(B) or of notified payee underreporting under section 
3406(a)(1)(C). The payee in a window transaction is not required to 
certify under penalties of perjury that the payee is not subject to 
withholding due to notified payee underreporting (as described in 
Sec. 31.3406(d)-2(b)(2)).
    (b) Window transaction defined. Window transaction means a payment 
of interest with respect to any of the following obligations:
    (1) An interest coupon in bearer form that is subject to taxation 
(i.e., other than exempt interest described in Sec. 1.6049-5(b)(1)(ii) 
of this chapter);
    (2) A United States savings bond; or
    (3) A discount obligation having a maturity at issue of one year or 
less, including commercial paper and bankers' acceptances that are in 
definitive form (i.e., evidenced by a paper document other than a 
confirmation receipt) but not including short-term government 
obligations (as defined in section 1271(a)(3)(B)).
    (c) Manner of furnishing taxpayer identification number in the case 
of a window transaction. A payee must furnish the payee's taxpayer 
identification number to the payor with respect to a window transaction 
either orally or in writing

[[Page 269]]

at the time that the window transaction occurs. See Sec. 31.3406(g)-
3(c)(1)(i), which provides that a payee may not claim the payee is 
awaiting receipt of a taxpayer identification number with respect to a 
window transaction. The payee is not required to certify, under 
penalties of perjury, that the taxpayer identification number provided 
is correct.

[T.D. 8637, 60 FR 66116, Dec. 21, 1995]



Sec. 31.3406(b)(2)-4  Reportable dividend payment.

    (a) Dividends subject to backup withholding. A payment of a kind, 
and to a payee, that is required to be reported under section 6042 
(relating to returns regarding payments of dividends and corporate 
earnings and profits) is a reportable payment for purposes of section 
3406. See paragraph (b) of this section for certain dividends not 
subject to withholding under section 3406. See Sec. 31.6051-4 for the 
requirement to furnish a statement to the payee if tax is withheld under 
section 3406.
    (b) Dividends not subject to backup withholding. Except as provided 
in Sec. 31.3406(b)(3)-2 (relating to transactions reportable under 
section 6045), withholding under section 3406 does not apply to--
    (1) Any amount treated as a taxable dividend by reason of section 
302 (relating to redemptions of stock), section 304 (relating to 
redemptions through the use of related corporations), section 306 
(relating to disposition of certain stock), section 356 (relating to 
receipt of additional consideration in connection with certain 
reorganizations), or section 1081(e)(2) (relating to certain 
distributions pursuant to an order of the Securities and Exchange 
Commission);
    (2) Any exempt-interest dividend, as defined in section 
852(b)(5)(A), paid by a regulated investment company; or
    (3) Any amount paid or treated as paid during a year by a regulated 
investment company, provided that the payor reasonably estimates, as 
provided in paragraph (c)(2) of this section, that 95 percent or more of 
all dividends paid or treated as paid during the year are exempt-
interest dividends.
    (c) Amount subject to backup withholding--(1) In general. The amount 
of a dividend subject to withholding under section 3406 is the amount 
subject to reporting under section 6042, including any dividend that is 
reinvested pursuant to a plan under which a shareholder may elect to 
receive stock as a dividend instead of property. Except as otherwise 
provided in this paragraph (c), withholding applies to the entire amount 
of the distribution.
    (2) Reasonable estimate of amount of dividend subject to backup 
withholding. Pursuant to section 6042(b)(3) and Sec. 1.6042-3(c) of this 
chapter, if the payor is unable to determine the portion of a 
distribution that is a dividend, the entire amount of the distribution 
must be treated as a dividend for information reporting under section 
6042. Hence, withholding applies to the entire amount of the 
distribution. If a payor is able reasonably to estimate under section 
6042 and Sec. 1.6042-3(c) of this chapter the portion of a distribution 
that is not a dividend, however, the payor must not withhold on that 
portion (which is not considered a dividend). A payor making a payment, 
all or a portion of which may not be a dividend, may use previous 
experience to estimate the portion of a distribution that is not a 
dividend. The payor's estimate is considered reasonable if--
    (i) The estimate does not exceed the proportion of the distributions 
made by the payor during the most recent calendar year for which a Form 
1099 was required to be filed that was not reported by the payor as a 
dividend; and
    (ii) The payor has no reasonable basis to expect that the proportion 
of the distribution that is not a dividend will be substantially 
different for the current year.
    (3) Reinvested dividends. In the case of a dividend paid pursuant to 
a dividend reinvestment plan, withholding under section 3406 applies, 
pursuant to Sec. 31.3406(a)-4(a), at the time and to the amount made 
available to the shareholder or credited to the shareholder's account. 
At the discretion of the payor, withholding under section 3406 need not 
be applied to any excess of the fair market value of the shares of stock 
received by the shareholder or credited to the shareholder's account 
over the purchase price of the shares (including shares acquired by the 
shareholder at a

[[Page 270]]

discount in connection with the dividend distribution) or to any fee 
that is paid by the payor in the nature of a broker's fee for purchase 
of the stock or service charge for maintenance of the shareholder's 
account. The payor must, however, treat any excess amounts and fees on a 
consistent basis for each calendar year.

[T.D. 8637, 60 FR 66117, Dec. 21, 1995]



Sec. 31.3406(b)(2)-5  Reportable patronage dividend payment.

    (a) Patronage dividends subject to backup withholding. A payment of 
a kind, and to a payee, that is required to be reported under section 
6044 (relating to returns regarding patronage dividends) is a reportable 
payment for purposes of section 3406. See Sec. 31.6051-4 for the 
requirement to furnish a statement to the payee if tax is withheld under 
section 3406.
    (b) Amount subject to backup withholding--(1) Failure to provide 
taxpayer identification number or notification of incorrect taxpayer 
identification number. For purposes of sections 3406(a)(1) (A) and (B), 
the amount of a payment described in paragraph (a) of this section that 
is subject to withholding under section 3406 is the amount subject to 
reporting under section 6044, but only to the extent the payment is made 
in money. For purposes of this paragraph (b), money includes cash or a 
qualified check (as defined in section 1388(c)(4)).
    (2) Notified payee underreporting or payee certification failure. 
For purposes of sections 3406(a)(1) (C) and (D), the amount of a payment 
described in paragraph (a) of this section that is subject to 
withholding under section 3406 is the amount subject to withholding 
under paragraph (b)(1) of this section, but only if 50 percent or more 
of that reportable amount is paid in money. Thus, a payor is required to 
withhold according to this paragraph (b)(2) on a payment if--
    (i) There has been a notified payee underreporting described in 
section 3406(a)(1)(C) and Sec. 31.3406(c)-1 or there has been a payee 
certification failure described in section 3406(a)(1)(D) and 
Sec. 31.3406(d)-2;
    (ii) The payor makes a reportable payment subject to reporting under 
section 6044 to the payee; and
    (iii) Fifty percent or more of the payment is in cash or by 
qualified check.

[T.D. 8637, 60 FR 66117, Dec. 21, 1995]



Sec. 31.3406(b)(3)-1  Reportable payments of rents, commissions, nonemployee compensation, etc.

    (a) Section 6041 and 6041A(a) payments subject to backup 
withholding. A payment of a kind, and to a payee, that is required to be 
reported under section 6041 (relating to information reporting of rents, 
commissions, nonemployee compensation, etc.) or a payment that is 
required to be reported under section 6041A(a) (relating to information 
reporting of payments to nonemployees for services) is a reportable 
payment for purposes of section 3406. See paragraph (b) of this section 
for an exception concerning payments aggregating less than $600. See 
Sec. 31.6051-4 for the requirement to furnish a statement to the payee 
if tax is withheld under section 3406.
    (b) Amount subject to backup withholding--(1) In general. The amount 
of a payment described in paragraph (a) of this section subject to 
withholding under section 3406 is the amount subject to reporting under 
section 6041 or section 6041A(a).
    (2) Net commissions. Withholding under section 3406 does not apply 
to net commissions paid to unincorporated special agents with respect to 
insurance policies that are subject to reporting under section 6041, 
provided that no cash is actually paid by the payor to the special 
agent.
    (3) Payments aggregating $600 or more for the calendar year--(i) In 
general. A payment is a reportable payment under paragraph (a) of this 
section only if the aggregate amount of the current payment and all 
previous payments to the payee during the calendar year aggregate $600 
or more. The amount subject to withholding is the entire amount of the 
payment that causes the total amount paid to the payee to equal $600 or 
more and the amount of any subsequent payments made to the payee during 
the calendar year. This paragraph (b)(3)(i) does not apply to gambling 
winnings (as provided in Sec. 31.3406(g)-2(e)(1)).
    (ii) Exceptions--(A) The $600 aggregation rule. The $600 aggregation 
rule of

[[Page 271]]

paragraph (b)(3)(i) of this section does not apply if the payor was 
required to make an information return under section 6041 or 6041A(a) 
for the preceding calendar year with respect to payments to the payee, 
or the payor was required to withhold under section 3406 during the 
preceding calendar year with respect to payments to the payee that were 
reportable under section 6041 or 6041A(a).
    (B) Determination of whether payments aggregate $600 or more. In 
determining whether payments to a payee aggregate $600 or more during a 
calendar year for purposes of withholding under section 3406, the payor 
must aggregate only payments of the same kind made to the same payee. 
For this purpose, payments are of the same kind if they are of the same 
type, regardless of whether they are reportable under the same section. 
However, a payor with different paying departments making reportable 
payments of the same kind is not required to aggregate payments made by 
all those departments unless it is the payor's customary method to 
aggregate those payments. A payor may, in its discretion, aggregate--
    (1) Payments not of the same kind to the same payee, reportable 
under either section 6041 or 6041A(a); and
    (2) Payments reportable under section 6041 with payments reportable 
under section 6041A(a).

[T.D. 8637, 60 FR 66117, Dec. 21, 1995]



Sec. 31.3406(b)(3)-2  Reportable barter exchanges and gross proceeds of sales of securities or commodities by brokers.

    (a) Transactions subject to backup withholding. A payment of a kind, 
and to a payee, that any broker (as defined in section 6045(c) and 
Sec. 1.6045-1(a)(1) of this chapter) or any barter exchange (as defined 
in section 6045(c) and Sec. 1.6045-1(a)(4) of this chapter) is required 
to report under section 6045 is a reportable payment for purposes of 
section 3406. See Sec. 31.6051-4 for the requirement to furnish a 
statement to the payee if tax is withheld under section 3406.
    (b) Amount subject to backup withholding--(1) In general. The amount 
subject to withholding under section 3406 is the amount subject to 
reporting under section 6045. The amount subject to withholding with 
respect to broker reporting is the amount of gross proceeds (as 
determined under Sec. 1.6045-1(d)(5) of this chapter). The amount 
subject to withholding with respect to barter exchanges is the amount 
received by any member or client (as determined under Sec. 1.6045-
1(f)(4) of this chapter).
    (2) Forward contracts, including foreign currency contracts, and 
regulated futures contracts--(i) In general. If a customer is subject to 
withholding under section 3406 with respect to a forward contract 
(subject to information reporting under Sec. 1.6045-1(c)(5) of this 
chapter), including a foreign currency contract (as defined in section 
1256(g)(2)), or a regulated futures contract (as defined in section 
1256(g)(1)), or with respect to an account through which those contracts 
are disposed of or acquired, the broker must withhold on both of the 
following amounts:
    (A) All cash or property withdrawn from the account by the customer 
during the relevant year; and
    (B) The amount of cash in the account available for withdrawal by 
the customer at the relevant year-end (including both gross proceeds and 
variation margin).
    (ii) Rules concerning withdrawals. A withdrawal includes the use of 
money (including both gross proceeds and variation margin) or property 
in the account to purchase any property other than property acquired in 
connection with the closing of a contract. For this purpose, the 
acceptance of a warehouse receipt or other taking of delivery to close a 
contract is in connection with the closing of a contract only if the 
property acquired is disposed of by the close of the seventh trading day 
following the trading day that the customer takes delivery under the 
contract. In addition, making delivery to close a contract is in 
connection with the closing of a contract only if the broker is able to 
determine that the property used to close the contract was acquired no 
earlier than the seventh trading day prior to the trading day on which 
delivery is made. Withdrawals do not include repayments of debt incurred 
in connection with making or

[[Page 272]]

taking delivery that meets the requirements of this paragraph (b)(2). 
Withdrawals also do not include payments of commissions, fees, transfers 
of cash from the account to another futures account that is subject to 
this paragraph (b)(2) or cash withdrawals traceable to dispositions of 
property other than futures (not including profit on the contract 
separately reportable under Sec. 1.6045-1(c)(5)(i)(b) of this chapter).
    (iii) Special rule for forward contracts, including foreign currency 
contracts, and regulated futures contracts. The determination of whether 
the customer is subject to withholding under section 3406 with respect 
to an account containing forward contracts, including foreign currency 
contracts, or regulated futures contracts must be made at the time of 
the cash or property withdrawals or the relevant year-end, whichever is 
applicable.
    (3) Security sales made through a margin account. The amount 
described in paragraph (a) of this section that is subject to 
withholding under section 3406 in the case of a security sale made 
through a margin account (as defined in 12 CFR part 220 (Regulation T)) 
is the gross proceeds (as defined in Sec. 1.6045-1(d)(5) of this 
chapter) of the sale. The amount required to be withheld with respect to 
the sale, however, is limited to the amount of cash available for 
withdrawal by the customer immediately after the settlement of the sale. 
For this purpose, the amount available for withdrawal by the customer 
does not include amounts required to satisfy margin maintenance under 
Regulation T, rules and regulations of the National Association of 
Securities Dealers and national securities exchanges, and generally 
applicable self-imposed rules of the margin account carrier.
    (4) Security short sales--(i) Amount subject to backup withholding. 
The amount subject to withholding under section 3406 with respect to a 
short sale of securities is the gross proceeds (as defined in 
Sec. 1.6045-1(d)(5) of this chapter) of the short sale. At the option of 
the broker, however, the amount subject to withholding may be the gain 
upon the closing of the short sale (if any); consequently, the 
obligation to withhold under section 3406 would be deferred until the 
closing transaction. A broker may use this alternative method of 
determining the amount subject to withholding under section 3406 with 
respect to a short sale only if at the time the short sale is initiated, 
the broker expects that the amount of gain realized upon the closing of 
the short sale will be determinable from the broker's records. If, due 
to events unforeseen at the time the short sale was initiated, the 
broker is unable to determine the basis of the property used to close 
the short sale, the property must be assumed for this purpose to have a 
basis of zero.
    (ii) Time of backup withholding. The determination of whether a 
short seller is subject to withholding under section 3406 must be made 
on the date of the initiation or closing, as the case may be, or on the 
date that the initiation or closing, as the case may be, is entered on 
the broker's books and records.
    (5) Fractional shares. A broker is not required to withhold under 
section 3406 with respect to a sale of a fractional share of stock 
resulting in less than $20 of gross proceeds (as described in 
Sec. 5f.6045-1(c)(3)(ix) of this chapter).

[T.D. 8637, 60 FR 66118, Dec. 21, 1995]



Sec. 31.3406(b)(3)-3  Reportable payments by certain fishing boat operators.

    (a) Payments subject to backup withholding. A payment of a kind, and 
to a payee, that is required to be reported under section 6050A 
(relating to information reporting by certain fishing boat operators) is 
a reportable payment for purposes of section 3406. See Sec. 31.6051-4 
for the requirement to furnish a statement to the payee if tax is 
withheld under section 3406.
    (b) Amount subject to backup withholding. The amount described in 
paragraph (a) of this section subject to withholding under section 3406 
is the amount subject to reporting under section 6050A, but only to the 
extent the amount is paid in money and represents a share of the 
proceeds of the catch.

[T.D. 8637, 60 FR 66119, Dec. 21, 1995]

[[Page 273]]



Sec. 31.3406(b)(3)-4  Reportable payments of royalties.

    (a) Royalty payments subject to backup withholding. A payment of a 
kind, and to a payee, that is required to be reported under section 
6050N (relating to information reporting of payments of royalties) is a 
reportable payment for purposes of section 3406. See Sec. 31.6051-4 for 
the requirement to furnish a statement to the payee if tax is withheld 
under section 3406.
    (b) Amount subject to backup withholding. In general, the amount 
described in paragraph (a) of this section that is subject to 
withholding under section 3406 is the amount subject to reporting under 
section 6050N. However, if the reportable payment is for an oil or gas 
interest, the amount subject to withholding is the net amount the payee 
receives (i.e., the gross proceeds less production-related taxes such as 
state severance taxes).

[T.D. 8637, 60 FR 66119, Dec. 21, 1995]



Sec. 31.3406(b)(4)-1  Exemption for certain minimal payments.

    (a) In general. A payor of reportable interest or dividends (as 
described in section 3406(b)(2)) or of royalties (as described in 
section 3406(b)(3)(E)) may elect not to withhold from a payment that 
does not exceed $10 and that on an annualized basis does not exceed $10 
(see paragraph (c) of this section). A broker or barter exchange may 
elect not to withhold on gross proceeds of $10 or less without regard to 
the annualization requirement. See Sec. 31.6051-4 for the requirement to 
furnish a statement to the payee if tax is withheld under section 3406.
    (b) Manner of making the election. The election not to withhold from 
payments that do not exceed $10 can be made only for payments described 
in paragraph (a) of this section. The election may be made on a payment-
by-payment basis.
    (c) How to annualize--(1) In general. To annualize a reportable 
interest payment, dividend payment, or royalty payment, a payor must 
calculate what the amount of the payment would be if it were paid for a 
1-year period (instead of the period for which it actually is paid). The 
annualized amount is determined by dividing the amount of the payment by 
the number of days in the period for which it is being paid and then 
multiplying that result by the number of days in the year. If the 
annualized amount is $10 or less, the payor may elect not to withhold on 
that payment regardless of whether more than $10 may be or has been paid 
to the payee in other reportable payments during the calendar year. 
Conversely, if the annualized amount is more than $10, withholding 
applies even if $10 or less is actually paid to the payee during the 
calendar year. For purposes of computing the annualized amount, the 
payor may assume that February always consists of 28 days and that the 
year always consists of 360 days. For amounts that are deposited with a 
payor in a new account or certificate between the dates on which the 
payor customarily pays or credits interest, the payor may assume that 
the period for which the interest is paid is the payor's customary 
period for paying or crediting interest.
    (2) Special aggregation rule for reportable interest and dividends. 
If a payor maintains records that reflect multiple holdings of one payee 
and the payor makes an aggregate payment of reportable interest or 
dividends (as defined in section 3406(b)(2)) with respect to those 
multiple holdings (such as a dividend check that reflects payment on all 
stock owned by the payee), the payor must annualize the aggregate 
payment.
    (d) Exception for window transactions and original issue discount. A 
payor is not required to annualize payments made in window transactions 
(as defined in Sec. 31.3406(b)(2)-3(b)) or payments of original issue 
discount. With respect to a window transaction, however, the payor is 
required to aggregate all payments made in the same transaction (e.g., 
payments made with respect to coupons or obligations presented for 
payment at the same time as described in Sec. 1.6049-4(e)(4) of this 
chapter).

[T.D. 8637, 60 FR 66119, Dec. 21, 1995]



Sec. 31.3406(c)-1  Notified payee underreporting of reportable interest or dividend payments.

    (a) Overview. Withholding under section 3406(a)(1)(C) applies to any 
reportable interest or dividend payment (as

[[Page 274]]

defined in section 3406(b)(2)) made with respect to an account of a 
payee if the Internal Revenue Service or a broker notifies a payor under 
paragraph (c) (1) or (2) of this section that the payee is subject to 
withholding due to notified payee underreporting (as defined in 
paragraph (b)(1) of this section), and the payor is required under 
paragraph (c)(3) of this section to identify that account. After 
receiving the notice and identifying accounts, the payor must notify the 
payee, in accordance with paragraph (d) of this section, that 
withholding due to notified payee underreporting has started. Paragraph 
(e) of this section describes the period for which withholding due to 
notified payee underreporting is required. Paragraph (f) of this section 
provides rules concerning notices that the Internal Revenue Service will 
send to a payee before notifying a payor that the payee is subject to 
withholding due to notified payee underreporting. Paragraph (g) of this 
section provides rules that a payee can use to prevent withholding due 
to notified payee underreporting from starting or to stop it once it has 
started. Paragraph (h) of this section provides special rules for joint 
accounts of payees who have filed a joint return. See section 6682 for 
the penalties that may apply to a payee subject to withholding under 
section 3406(a)(1)(C).
    (b) Definitions--(1) Notified payee underreporting. Notified payee 
underreporting means that the Internal Revenue Service has--
    (i) Determined that there was a payee underreporting (as defined in 
paragraph (b)(2) of this section);
    (ii) Mailed at least four notices under paragraph (f)(1) of this 
section to the payee (over a period of at least 120 days) with respect 
to the underreporting; and
    (iii) Assessed any deficiency attributable to the underreporting in 
the case of any payee who has filed a return.
    (2) Payee underreporting--(i) In general. Payee underreporting means 
that the Internal Revenue Service has determined, for a taxable year, 
that--
    (A) A payee failed to include in the payee's return of tax under 
chapter 1 of the Internal Revenue Code for that year any portion of a 
reportable interest or dividend payment required to be shown on that tax 
return; or
    (B) A payee may be required to file a return for that year and to 
include a reportable interest or dividend payment in the return, but 
failed to file the return.
    (ii) Payments included in making payee underreporting determination. 
The determination of whether there is payee underreporting is made by 
treating as reportable interest or dividend payments, all payments of 
dividends reported under section 6042, all patronage dividends reported 
under section 6044, and all interest and original issue discount 
reported under section 6049, regardless of whether withholding due to 
notified payee underreporting applies to those payments.
    (c) Notice to payors regarding backup withholding due to notified 
payee underreporting--(1) In general. If the Internal Revenue Service or 
a broker notifies a payor that a payee is subject to withholding due to 
notified payee underreporting, the payor must--
    (i) Identify any accounts of the payee under the rules of paragraph 
(c)(3) of this section; and
    (ii) Notify the payee and withhold under section 3406 on reportable 
interest or dividend payments made with respect to any identified 
account under the rules of paragraphs (d) and (e) of this section.
    (2) Additional requirements for payors that are also brokers--(i) In 
general. A broker must notify the payor of a readily tradable instrument 
that the payee of the instrument is subject to withholding due to 
notified payee underreporting if--
    (A) The broker (in its capacity as a payor) receives a notice from 
the Internal Revenue Service under paragraph (c)(1) of this section that 
a payee is subject to withholding due to notified payee underreporting 
and the broker is required to identify an account of the payee under 
paragraph (c)(3) of this section;
    (B) The payee subsequently acquires the instrument from the broker 
through the same account; and
    (C) The acquisition of the instrument occurs after the close of the 
30th business day after the date that the broker

[[Page 275]]

receives the notice (or on any earlier date that the broker may begin 
applying this paragraph (c)(2) after receipt of the notice described in 
paragraph (c)(1) of this section).
    (ii) Transfer out of street name. For purposes of this paragraph 
(c)(2), an acquisition includes a transfer of an instrument out of 
street name into the name of the registered owner (i.e., the payee).
    (iii) Method of providing notice. A broker must provide the notice 
required under this paragraph (c)(2) to the payor of the instrument with 
the transfer instructions for the acquisition. See Sec. 31.3406(d)-
4(a)(2).
    (iv) Termination of obligation to provide information. The 
obligation of a broker to provide notice to payors under this paragraph 
(c)(2) terminates simultaneously with the termination of the broker's 
obligation to withhold (in its capacity as payor) due to notified payee 
underreporting on reportable interest or dividends made with respect to 
the account.
    (3) Payor identification of accounts of the payee subject to backup 
withholding due to notified payee underreporting--(i) In general--(A) 
Notice from the Internal Revenue Service. If a payor receives a notice 
from the Internal Revenue Service under paragraph (c)(1) of this 
section, the payor must identify, exercising reasonable care, all 
accounts using the same taxpayer identification number for information 
reporting purposes as the one provided in the notice. The notice may 
provide, however, that the payor need only identify the account or 
accounts corresponding to any account number or designation and related 
taxpayer identification number used for information reporting purposes 
as that listed on the notice.
    (B) Notice from a broker. If a payor receives a notice from a broker 
under paragraphs (c) (1) and (2) of this section, the payor is not 
required to identify any account other than the account identified in 
the notice.
    (ii) Exercise of reasonable care. If an account identified pursuant 
to paragraph (c)(3)(i)(A) of this section contains a customer identifier 
that can be used to retrieve systemically any other accounts that use 
the same taxpayer identification number for information reporting 
purposes, the payor must identify all accounts that can be so retrieved. 
Otherwise, a payor is considered to exercise reasonable care in 
identifying accounts subject to withholding under section 3406(a)(1)(C) 
if the payor searches any computer or other recordkeeping system for the 
region, division, or branch that serves the geographic area in which the 
payee's mailing address is located and that was established (or is 
maintained) to reflect reportable interest or dividend payments.
    (iii) Newly opened accounts. (A) In general, a new account is not 
subject to withholding under section 3406(a)(1)(C) if the payee provides 
to the payor a Form W-9 (or other acceptable substitute) on which the 
payor may reasonably rely (within the meaning of Sec. 31.3406(h)-3(e)(2) 
without regard to Sec. 31.3406(h)-3(e)(2)(v)), unless the payor has 
actual knowledge (within the meaning of paragraph (c)(3)(iii)(B) of this 
section) that the statements made on the form are not true.
    (B) For purposes of paragraph (c)(3)(iii)(A) of this section, a 
payor is considered to have actual knowledge that a payee's statement 
that the payee is not subject to withholding under section 3406(a)(1)(C) 
is not true if--
    (1) The employee or individual agent of the payor who receives the 
payee's certification knows that the statement is not true;
    (2) In conducting the investigation, if any, required by paragraph 
(c)(3)(iii)(C) of this section, the payor identifies any other accounts 
of the payee that are already subject to withholding under section 
3406(a)(1)(C); or
    (3) In the course of processing the certification or in 
administering an account to which a certification relates, the payor 
discovers that the payor was previously notified by the Internal Revenue 
Service that the payee is subject to withholding under section 
3406(a)(1)(C) and no notice was received to stop withholding pursuant to 
section 3406(c)(3) prior to the time of the discovery.
    (C) Except as provided in this paragraph (c)(3)(iii)(C), a payor is 
not required to investigate whether the

[[Page 276]]

statements made on the Form W-9 described in paragraph (c)(3)(iii)(A) of 
this section are true. If, however, in opening a new account, the payor 
relies on the same Form W-9 (or appropriate substitute) that it relied 
on previously in opening another account, the payor must investigate 
whether any such existing account is subject to withholding under 
section 3406(a)(1)(C). Similarly, if the payor utilizes a universal 
account system described in the first sentence of paragraph (c)(3)(ii) 
of this section, and in opening a new account the payor searches its 
records to determine whether the new account should be identified under 
an existing identifier (because the payee has existing accounts with the 
payor), the payor must investigate whether any existing accounts 
identified with the same identifier are subject to withholding under 
section 3406(a)(1)(C).
    (d) Notice from payors of backup withholding due to notified payee 
underreporting--(1) In general. If a payor receives notice from the 
Internal Revenue Service or a broker under paragraph (c)(1) of this 
section and is required to identify an account under paragraph (c)(3) of 
this section as an account of the payee, the payor must notify the payee 
in accordance with paragraph (d)(2) of this section that withholding due 
to notified payee underreporting has started.
    (2) Procedures. The payor must send the notice required by paragraph 
(d)(1) of this section to the payee no later than 15 days after the date 
that the payor makes the first payment subject to withholding due to 
notified payee underreporting. The payor must send the notice by first-
class mail to the payee at the payee's last known address. The notice to 
the payee required by paragraph (d)(1) of this section must state--
    (i) That the Internal Revenue Service has given notice that the 
payee has underreported reportable interest or dividends;
    (ii) That, as a result of the underreporting, the payor is required 
under section 3406(a)(1)(C) of the Internal Revenue Code to withhold 31 
percent of reportable interest or dividend payments made to the payee;
    (iii) The date that the payor started (or plans to start) 
withholding due to notified payee underreporting under section 
3406(a)(1)(C);
    (iv) The account number or numbers that are subject to withholding 
due to notified payee underreporting;
    (v) That the payee must obtain a determination from the Internal 
Revenue Service in order to stop the withholding due to notified payee 
underreporting; and
    (vi) That while the payee is subject to withholding due to notified 
payee underreporting, the payee may not certify to a payor making 
reportable interest or dividend payments (or to a broker acquiring a 
readily tradable instrument for the payee) that the payee is not subject 
to withholding due to notified underreporting.
    (e) Period during which backup withholding is required--(1) In 
general. If a payor receives notice from the Internal Revenue Service or 
a broker under paragraph (c)(1) of this section, the payor must impose 
withholding under section 3406(a)(1)(C) on all reportable interest or 
dividend payments with respect to any account of the payee required to 
be identified under paragraph (c)(3) of this section made after the 
close of the 30th business day after the day on which the payor receives 
that notice and before the stop date (as described in paragraph (e)(2) 
of this section). A payor may choose to start withholding under this 
paragraph (e)(1) at any time during the 30-business-day period described 
in the preceding sentence.
    (2) Stop withholding--(i) When no underreporting exists or undue 
hardship exists--(A) Stop date. In the case of a determination under 
paragraph (g)(3) (i) or (iii) of this section that no underreporting 
exists or that an undue hardship exists, the stop date is the day that 
is 30 days after the earlier of--
    (1) The date on which the payor receives written notification from 
the Internal Revenue Service under paragraph (g) of this section that 
withholding is to stop; or

[[Page 277]]

    (2) The date on which the payor receives a copy of the written 
certification provided to the payee by the Internal Revenue Service 
under paragraph (g) of this section that withholding is to stop.
    (B) Acceleration of stop date. A payor may choose to stop 
withholding at any time during the 30-day period described in paragraph 
(e)(2)(i)(A) of this section.
    (ii) When underreporting is corrected or bona fide dispute exists. 
In the case of a determination under paragraph (g)(3) (ii) or (iv) of 
this section that the underreporting has been corrected or that a bona 
fide dispute exists, the stop date occurs on the first day of January 
(immediately following a period of at least twelve months ending on 
October 15 of any calendar year in which the determination has been 
made) or if later, the stop date determined under paragraph (e)(2)(i) of 
this section.
    (3) Dormant accounts. The requirement that a payor withhold under 
this paragraph (e) on reportable interest or dividend payments made with 
respect to an account terminates no later than the close of the third 
calendar year ending after the later of--
    (i) The date that the most recent reportable interest or dividend 
payment was made with respect to that account; or
    (ii) The date that the payor received notice under paragraph (c)(1) 
of this section.
    (f) Notice to payees from the Internal Revenue Service--(1) Notice 
period. After the Internal Revenue Service determines under paragraph 
(b)(2) of this section that payee underreporting exists, the Internal 
Revenue Service will mail to the payee at least four notices over a 
period of at least 120 days (the notice period) before payors will be 
notified under paragraph (c)(1) of this section that the payee is 
subject to withholding due to notified payee underreporting. The notices 
may be accompanied by, or incorporated in, other notices provided to the 
payee by the Internal Revenue Service.
    (2) Payee subject to backup withholding. After the Internal Revenue 
Service provides the notices described in paragraph (f)(1) of this 
section, the Internal Revenue Service will send notices to payors under 
paragraph (c)(1) of this section unless--
    (i) A payee obtains a determination under paragraph (g) of this 
section; or
    (ii) In the case of a payee who has filed a tax return, the Internal 
Revenue Service has not assessed the deficiency attributable to the 
underreporting.
    (3) Disclosure of names of payors and brokers. Pursuant to section 
3406(c)(5) the Internal Revenue Service may require a payee subject to 
withholding due to notified payee underreporting to disclose the names 
of all the payee's payors of reportable interest or dividend payments 
and the names of all of the brokers with whom the payee has accounts 
which may involve reportable interest or dividend payments. To the 
extent required in the request from the Internal Revenue Service, the 
payee must also provide the payee's account numbers and other 
information necessary to identify the payee's accounts.
    (4) Backup withholding certification. After a payee receives a final 
notice from the Internal Revenue Service under paragraph (f)(1) of this 
section, the payee is not permitted to certify to any payor or broker, 
under penalties of perjury, that the payee is not subject to withholding 
under section 3406(a)(1)(C), until the payee receives the certification 
from the Internal Revenue Service under paragraph (g) of this section 
advising the payee that the payee is no longer subject to withholding 
under section 3406(a)(1)(C). A final notice will contain the information 
described in this paragraph (f)(4). See sections 6682 and 7205(b) for 
civil and criminal penalties for making a false certification.
    (g) Determination by the Internal Revenue Service that backup 
withholding should not start or should be stopped--(1) In general. A 
payee may prevent withholding due to notified payee underreporting from 
starting, or stop the withholding once it has started, by requesting and 
receiving a determination from the Internal Revenue Service under one or 
more of the provisions of paragraph (g)(3) of this section. Following 
its review of a request for a determination under paragraph (g)(3) of 
this section, the Internal Revenue Service will either make the 
determination or provide the payee with a

[[Page 278]]

written report informing the payee that the request for determination is 
being denied and the reasons for the denial. If a determination is made 
during the notice period (as defined in paragraph (f)(1) of this 
section), the payee is not subject to withholding due to notified payee 
underreporting with respect to any taxable year for which a 
determination was made. If a determination is made after the notice 
period, the Internal Revenue Service will, at the time prescribed in 
paragraph (g)(2) of this section, provide written certification to a 
payee that withholding is to stop, and will notify payors who were 
contacted pursuant to paragraph (c)(1) of this section to stop 
withholding. A broker who (in its capacity as payor) under this 
paragraph (g)(1) receives a notice from the Internal Revenue Service or 
a copy of the certification provided to a payee by the Internal Revenue 
Service is not required to provide a corresponding notice to any payors 
whom the broker has previously notified under paragraph (c)(2) of this 
section.
    (2) Date notice to stop backup withholding will be provided--(i) 
Underreporting corrected or bona fide dispute. If the Internal Revenue 
Service makes a determination under paragraph (g)(3) (ii) or (iv) of 
this section during the 12-month period ending on October 15 of any 
calendar year (as described in paragraph (e)(2)(ii) of this section), 
the Internal Revenue Service will provide the certification and the 
notices described in paragraph (g)(1) of this section no later than 
December 1 of that calendar year.
    (ii) No underreporting or undue hardship. If the Internal Revenue 
Service makes a determination under paragraph (g)(3)(i) or (iii) of this 
section, the Internal Revenue Service will provide the notices described 
in paragraph (g)(1) of this section no later than the 45th day after the 
day on which the Internal Revenue Service makes its determination.
    (3) Grounds for determination. The Internal Revenue Service will 
make a determination that withholding due to notified payee 
underreporting should not start or should stop once it has started if 
the payee--
    (i) Shows that there was no payee underreporting (as provided in 
paragraph (g)(4) of this section) for each taxable year with respect to 
which the Internal Revenue Service determined under paragraph (b)(2) of 
this section that there was payee underreporting;
    (ii) Corrects any payee underreporting (as provided in paragraph 
(g)(5) of this section) for each taxable year with respect to which the 
Internal Revenue Service determined under paragraph (b)(2) of this 
section that there was payee underreporting;
    (iii) Shows that withholding will cause or is causing an undue 
hardship (as defined in paragraph (g)(6) of this section) and that it is 
unlikely that the payee will underreport interest or dividend payments 
again; or
    (iv) Shows that a bona fide dispute exists regarding whether any 
underreporting has occurred (as provided in paragraph (g)(7) of this 
section) for each taxable year with respect to which the Internal 
Revenue Service determined under paragraph (b)(2) of this section that 
there was payee underreporting.
    (4) No underreporting. A payee may show that no underreporting of 
reportable interest or dividends payments exists by presenting--
    (i) Receipts or other satisfactory documentation to the Internal 
Revenue Service showing that all taxes relating to the payments were 
reported; or
    (ii) Evidence showing that the payee did not have to file a return 
for the taxable year in question (e.g., because the payee did not make 
enough income) or that the underreporting determination was based upon a 
factual, clerical, or other error.
    (5) Correcting any payee underreporting--(i) Before issuance of a 
statutory notice of deficiency. Before a statutory notice of deficiency 
is issued to a payee pursuant to section 6212, the payee may correct 
underreporting--
    (A) By filing a return if one was not previously filed and including 
the unreported interest and dividends thereon;
    (B) By filing an amended return in the event a return was filed and 
including the unreported interest and dividends thereon; or

[[Page 279]]

    (C) By consenting to the additional assessment according to 
applicable notices and forms sent to the payee by the Internal Revenue 
Service with respect to the underreporting, and paying taxes, penalties, 
and interest due with respect to any underreported interest or dividend 
payments.
    (ii) After issuance of a statutory notice of deficiency. After a 
statutory notice of deficiency is issued to a payee--
    (A) The payee may correct underreporting at any time, by filing a 
return if one was not previously filed and paying the entire deficiency 
and any other taxes including penalties and interest attributable to any 
payee underreporting of interest or dividend payments; or
    (B) The payee may correct underreporting after the mailing of the 
statutory notice of deficiency but before the expiration of the 90-day 
or 150-day period described in section 6213(a) or, if a petition is 
filed with the United States Tax Court, before the decision of the Tax 
Court is final, by making a remittance to the Internal Revenue Service 
of the amounts described in paragraph (g)(5)(ii)(A) of this section. The 
payee must specifically designate in writing that the remittance is a 
deposit in the nature of a cash bond.
    (iii) Special rules. For purposes of paragraph (g)(5)(ii) of this 
section, the payee will not be deemed to have corrected the payee 
underreporting under paragraph (g)(5)(ii)(B) of this section after the 
remittance is returned to the payee in the manner described in any 
applicable administrative procedure. For further guidance on a deposit 
in the nature of a cash bond, see subparagraph 2 of section 4.01 of Rev. 
Proc. 84-58 (1984-2 C.B. 501). (See Sec. 601.601(d)(2) of this chapter.) 
Once the remittance is returned to the payee, the rules of this section 
will apply. If the Internal Revenue Service previously contacted payors 
of the payee to start withholding with respect to the notified payee 
underreporting, however, the Internal Revenue Service will recontact 
those payors to start withholding under paragraph (c)(1) of this section 
with respect to the payee underreporting without regard to paragraph (f) 
of this section.
    (6) Undue hardship--(i) In general. A determination of undue 
hardship will be based on the overall impact to the payee of having 
reportable interest or dividend payments withheld at a 31 percent rate 
under section 3406. In addition, a determination of undue hardship will 
be made only if the Internal Revenue Service concludes that it is 
unlikely that any payee underreporting will occur again.
    (ii) Factors. Factors that will be considered in determining whether 
withholding causes undue hardship include, but are not limited to, the 
following--
    (A) Whether estimated tax payments, and other credits for current 
tax liabilities, or amounts withheld on employee wages or pensions, in 
addition to withholding under section 3406, would cause significant 
overwithholding;
    (B) The payee's health, including the payee's ability to pay 
foreseeable medical expenses;
    (C) The extent of the payee's reliance on interest and dividend 
payments to meet necessary living expenses and the existence, if any, of 
other sources of income;
    (D) Whether other income of the payee is limited or fixed
    (e.g., social security, pension, and unearned income);
    (E) The payee's ability to sell or liquidate stocks, bonds, bank 
accounts, trust accounts, or other assets, and the consequences of doing 
so;
    (F) Whether the payee reported and timely paid the most recent 
year's tax liability, including interest and dividend income; and
    (G) Whether the payee has filed a bankruptcy petition with the 
United States Bankruptcy Court.
    (7) Bona fide dispute. The Internal Revenue Service may make a 
determination under this paragraph (g)(7) if there is a dispute between 
the payee and the Internal Revenue Service on a question of fact or law 
that is material to a determination under paragraph (g)(3)(i) of this 
section and, based upon all the facts and circumstances, the Internal 
Revenue Service finds that the dispute is asserted in good faith by the 
payee and there is a reasonable basis for the payee's position.
    (h) Payees filing a joint return--(1) In general. For purposes of 
this section, if

[[Page 280]]

payee underreporting is found to exist with respect to a joint return, 
then the provisions of this section apply to both payees (i.e., the 
husband and wife). As a result, both payees are subject to withholding 
on accounts in their individual names as well as accounts in their joint 
names. Either or both payees may satisfy the criteria for a 
determination that no payee underreporting exists, that the 
underreporting has been corrected, or that a bona fide dispute exists 
(as provided in paragraph (g)(3) (i), (ii), or (iv) of this section). 
Both payees, however, must satisfy the criteria for a determination that 
withholding will cause or is causing undue hardship (as provided in 
paragraph (g)(3)(iii) of this section).
    (2) Exceptions--(i) Innocent spouse. A spouse who files a joint 
return may obtain a determination that withholding should stop or not 
start with respect to payments made to his or her individual accounts, 
if the spouse shows that--
    (A) He or she did not underreport income because he or she is a 
spouse described in section 6013(e), i.e., innocent spouse; or
    (B) There is a bona fide dispute regarding whether he or she is an 
innocent spouse and hence did not underreport income.
    (ii) Divorced or legally separated payee. A payee who, at the time 
of the request for a determination under paragraph (g) of this section, 
is divorced or separated under State law may obtain a determination that 
undue hardship exists (or would exist) under paragraph (g)(3)(iii) of 
this section with respect to reportable interest or dividend payments 
made to his or her individual accounts if the divorced or legally 
separated payee satisfies the criteria for a determination under 
paragraph (g)(6) of this section.
    (i) Reserved.
    (j) Penalties. For the application of penalties related to this 
section, see sections 6682 and 7205(b).

[T.D. 8637, 60 FR 66119, Dec. 21, 1995]



Sec. 31.3406(d)-1  Manner required for furnishing a taxpayer identification number.

    (a) Requirement to backup withhold. Withholding under section 
3406(a)(1)(A) applies to a reportable payment (as defined in section 
3406(b)) if the payee does not furnish the payee's taxpayer 
identification number to the payor in the manner required by this 
section. The period for which withholding is required is described in 
Sec. 31.3406(e)-1(b). See Sec. 31.3406(d)-3(a) and (b) for special rules 
when an account is established directly with, or an instrument is 
acquired directly from, the payor by electronic transmission or by mail, 
or an instrument is sold through a broker by electronic transmission or 
by mail. See Sec. 31.3406(d)-4 for special rules applicable to readily 
tradable instruments acquired through a broker. See Sec. 31.3406(h)-3(e) 
for the rules on when a payor may rely on a Form W-9. See also 
Sec. 31.3406(g)-3 for rules regarding a payee awaiting receipt of a 
taxpayer identification number. See the applicable information reporting 
sections and section 6109 and the regulations thereunder to determine 
whose taxpayer identification number should be provided.
    (b) Reportable interest or dividend account--(1) Manner required for 
furnishing a taxpayer identification number with respect to a pre-1984 
account or instrument. A payee must furnish the payee's taxpayer 
identification number to the payor with respect to any obligation, 
deposit, certificate, share, membership, contract, investment, account, 
or other relationship or instrument established or acquired on or before 
December 31, 1983 (a pre-1984 account) and with respect to which the 
payor makes a reportable interest or dividend payment (as defined in 
section 3406(b)(2)). The manner of determining whether an account or an 
instrument is a pre-1984 account is described in paragraph (b)(2) of 
this section. The payee of a pre-1984 account may furnish the payee's 
taxpayer identification number to the payor orally or in writing. The 
payee is not required to certify under penalties of perjury that the 
taxpayer identification number is correct.
    (2) Determination of pre-1984 account or instrument--(i) In general. 
An account that is in existence before January 1, 1984, will be 
considered a pre-1984 account, regardless of whether additional deposits 
are made to the account on or

[[Page 281]]

after January 1, 1984. An account established as an expansion of a 
credit union prime account in existence prior to January 1, 1984, 
constitutes a pre-1984 account. If funds taken from one account in 
existence prior to January 1, 1984, are used to create a new account on 
or after that date, however, the new account does not constitute a pre-
1984 account except as provided in the preceding sentence. An instrument 
acquired prior to January 1, 1984, is a pre-1984 account. Regardless of 
when an instrument was acquired, if it is negotiated in a window 
transaction as defined in Sec. 31.3406(b)(2)-3(b), it is treated as an 
instrument acquired after December 31, 1983. An obligation in bearer 
form and subject to reporting under section 6045, whenever acquired, is 
not a pre-1984 account. Any instrument, whenever acquired, that is held 
in a brokerage account is considered a pre-1984 account if the brokerage 
account is not a post-1983 brokerage account (as described in paragraph 
(c)(1)(ii) of this section). If shares of a corporation are held before 
January 1, 1984 (or considered held before that date by operation of 
this paragraph (b)(2)), and additional shares are acquired by the 
holder, irrespective of whether the shares are received by reason of a 
stock dividend, investing new cash, or otherwise, the new shares, in the 
discretion of the payor, may be considered a pre-1984 account. In the 
case of a qualified employee trust that distributes instruments in kind, 
any instrument distributed from the trust is considered a pre-1984 
account with respect to employees who were participants in the trust 
before 1984. Similarly, when a payor offers participants in a plan the 
opportunity to purchase stock of the payor after a specified time, using 
the money that the payee invested during that period of time, the stock 
so purchased after December 31, 1983, is considered a pre-1984 account 
with respect to participants in the plan who either owned shares or 
invested money in the plan before January 1, 1984.
    (ii) Account or instrument automatically acquired on the maturity or 
termination of an account. When an account is opened, or an instrument 
is acquired, automatically on the maturity or termination of an account 
that was in existence or an instrument that was held before January 1, 
1984 (or considered to have been in existence or held before that date 
by operation of this paragraph (b)(2)(ii)), without the participation of 
the payee, the new account or instrument, in the discretion of the 
payor, may be considered a pre-1984 account. For purposes of the 
preceding sentence, a payee is not considered to have participated in 
the acquisition of the new account or instrument solely because the 
payee failed to exercise a right to withdraw funds at the maturity or 
termination of the old account or instrument.
    (iii) Insurance policies. In the case of insurance policies in 
effect on December 31, 1983, the election of a dividend accumulation 
option pursuant to which interest is paid (as defined in Sec. 1.6049-
5(a)(4) of this chapter), or the creation of an account in which 
proceeds of a policy are held for the policy beneficiary, may, in the 
payor's discretion, be treated as a pre-1984 account.
    (iv) Acquisitions of accounts and instruments--(A) Pre-1984 or post-
1983 status known. If a payor acquires accounts or instruments of 
another payor (including through a tax-free reorganization under section 
368), the acquiring payor must treat the persons specified in this 
paragraph (b)(2)(iv)(A) as having the same requirement to furnish a 
taxpayer identification number in the manner required under this 
paragraph (b) to the acquiring payor for information reporting, 
withholding, and related tax provisions as existed with respect to the 
payor whose accounts or instruments were acquired. Persons specified in 
this paragraph (b)(2)(iv)(A) are persons who held accounts or 
instruments in the other payor immediately before the acquisition and 
who receive an account or instrument in the acquiring payor immediately 
after the acquisition.
    (B) Pre-1984 or post-1983 status unknown. If the acquiring payor, as 
described in paragraph (b)(2)(iv)(A) of this section, is unable to 
identify from the business records of the other payor whether any or all 
of the accounts or instruments of the persons specified in paragraph 
(b)(2)(iv)(A) of this section are pre-1984 (or post-1983) accounts or 
instruments, then the acquiring payor

[[Page 282]]

may treat these unidentified accounts or instruments as pre-1984 
accounts or instruments.
    (C) Cross reference. See Sec. 31.3406(g)-2(g) for the limited 
exception from withholding under section 3406(a)(1)(A) on accounts or 
instruments described in paragraphs (b)(2)(iv) (A) and (B) of this 
section for which the payor does not have a taxpayer identification 
number.
    (3) Manner required for furnishing a taxpayer identification number 
with respect to an account or instrument that is not a pre-1984 account. 
A payee who receives reportable interest or dividend payments (as 
defined in section 3406(b)(2)) from a payor must certify under penalties 
of perjury that the taxpayer identification number the payee furnishes 
to the payor is the payee's correct taxpayer identification number. The 
payee must make the certification only with respect to an account or 
instrument that is not a pre-1984 account (as described in paragraph 
(b)(2) of this section). See Sec. 31.3406(h)-3 for a description of the 
certificate on which the certification must be made. See 
Sec. 31.3406(d)-2 for the requirement that the payee must certify under 
penalties of perjury that the payee is not subject to withholding due to 
notified payee underreporting. See Sec. 31.3406(d)-3(a) with respect to 
an account established directly with, or an instrument acquired directly 
from, the payor by electronic transmission or by mail. See 
Sec. 31.3406(d)-4 for the rules applicable to readily tradable 
instruments acquired through a broker.
    (4) Special rule with respect to the acquisition of a readily 
tradable instrument in a transaction between certain parties acting 
without the assistance of a broker. If a payee, at any time, acquires a 
readily tradable instrument without the assistance of a broker, and no 
party to the acquisition is a broker or an agent of the payor, the payee 
must furnish the payee's taxpayer identification number to the payor 
prior to the time reportable payments are made on the instrument. The 
payee is not required to certify under penalties of perjury that the 
number is correct. See Sec. 31.3406(d)-2 for the rule that a payee is 
not subject to withholding due to notified payee underreporting with 
respect to a readily tradable instrument acquired in the manner 
described in this paragraph (b)(4). A broker is considered to provide 
assistance in the acquisition of an instrument if the person effecting 
the acquisition would be required to make an information return under 
section 6045 if such person were to sell the instrument. See 
Sec. 31.3406(d)-4 for rules relating to an acquisition of a readily 
tradable instrument when a broker is involved.
    (c) Brokerage account--(1) Manner required for furnishing a taxpayer 
identification number with respect to a brokerage relationship that is 
not a post-1983 brokerage account--(i) In general. With respect to any 
instrument, investment, or deposit made through a brokerage account that 
is not a post-1983 brokerage account, a payee must furnish the payee's 
taxpayer identification number to the broker either orally or in 
writing. The payee is not required to certify under penalties of perjury 
that the taxpayer identification number is correct. See paragraph 
(b)(2)(i) of this section for the rule that any instrument, whenever 
acquired, that is held in a brokerage account that is not a post-1983 
brokerage account, is considered held in an account that is not a post-
1983 brokerage account. For example, in 1983 a payee established and 
acquired a readily tradable instrument from a brokerage account; no 
activity took place through that account until the payee purchased a 
readily tradable instrument in 1995. That readily tradable instrument is 
not held in a post-1983 brokerage account; therefore, the payee need not 
certify under penalties of perjury that the payee's taxpayer 
identification number is correct.
    (ii) Definition of a brokerage account that is not a post-1983 
brokerage account. A brokerage account that was established by a payee 
before January 1, 1984, through which during 1983 the broker either 
bought or sold securities for the payee or held securities on behalf of 
the payee as a nominee (i.e., in street name), is an account that is not 
a post-1983 brokerage account.
    (2) Manner required for furnishing a taxpayer identification number 
with respect to a post-1983 brokerage account--(i) In general. With 
respect to a post-1983 brokerage account, the payee must

[[Page 283]]

furnish the payee's taxpayer identification number to the broker and 
certify under penalties of perjury that the taxpayer identification 
number furnished is correct, except as provided in Sec. 31.3406(d)-3(b).
    (ii) Definition of a post-1983 brokerage account. A brokerage 
account established after December 31, 1983 (or before January 1, 1984, 
through which during 1983 the broker neither bought nor sold securities 
nor held securities on behalf of the payee as a nominee (i.e., in street 
name)), is a post-1983 brokerage account.
    (d) Rents, commissions, nonemployee compensation, and certain 
fishing boat operators, etc.--Manner required for furnishing a taxpayer 
identification number. For accounts, contracts, or relationships subject 
to information reporting under section 6041 (relating to information 
reporting at source on rents, royalties, salaries, etc.), section 
6041A(a) (relating to information reporting of payments for nonemployee 
services), section 6050A (relating to information reporting by certain 
fishing boat operators), or section 6050N (relating to information 
reporting of payments of royalties), the payee must furnish the payee's 
taxpayer identification number to the payor either orally or in writing. 
Except as provided in Sec. 31.3406(d)-5, the payee is not required to 
certify under penalties of perjury that the taxpayer identification 
number is correct regardless of when the account, contract, or 
relationship is established.

[T.D. 8637, 60 FR 66123, Dec. 21, 1995]



Sec. 31.3406(d)-2  Payee certification failure.

    (a) Requirement to backup withhold. Withholding under section 
3406(a)(1)(D) applies to a reportable interest or dividend payment (as 
defined in section 3406(b)(2)) if, and only if, the payee fails to 
certify to the payor, under penalties of perjury, that the payee is not 
subject to withholding due to notified payee underreporting under 
section 3406(a)(1)(C). The period for which withholding applies is 
described in Sec. 31.3406(e)-1(e). See Sec. 31.3406(d)-3(a) for special 
rules when an account is established directly with, or an instrument is 
acquired directly from, the payor by electronic transmission or by mail. 
See Sec. 31.3406(c)-1(c)(3)(iv) for rules with respect to a payor's 
reliance on a payee certification for a new account following notified 
payee underreporting. See Sec. 31.3406(d)-4 for special rules relating 
to the acquisition of a readily tradable instrument through a broker. 
The certificate on which the certification should be made is described 
in Sec. 31.3406(h)-3.
    (b) Exceptions. Withholding under section 3406(a)(1)(D) and 
paragraph (a) of this section does not apply to reportable interest or 
dividend payments (as defined in section 3406(b)(2)) made--
    (1) With respect to a pre-1984 account (as defined in 
Sec. 31.3406(d)-1(b)(1));
    (2) In a window transaction (as defined in Sec. 31.3406(b)(2)-3(b));
    (3) With respect to a readily tradable instrument described in 
Sec. 31.3406(d)-1(b)(2)(iv) or Sec. 31.3406(d)-4(a)(3); or
    (4) During the period and with respect to an account or readily 
tradable instrument described in Sec. 31.3406(d)-3.

[T.D. 8637, 60 FR 66125, Dec. 21, 1995]



Sec. 31.3406(d)-3  Special 30-day rules for certain reportable payments.

    (a) Accounts or readily tradable instruments acquired directly from 
the payor (including a broker who holds an instrument in street name) by 
electronic transmission or by mail. In the case of an account 
established directly with, or a readily tradable instrument acquired 
directly from, the payor by means of electronic transmission (i.e., 
telephone or wire instruction) or by mail, the payor may permit the 
payee to furnish the certifications required in Sec. 31.3406(d)-1(b)(3) 
(relating to certification that the payee's taxpayer identification 
number is correct) and Sec. 31.3406(d)-2 (relating to certification of 
notified payee underreporting) within 30 days after the establishment or 
acquisition without subjecting the account to withholding during the 30 
days. The preceding sentence applies only if the payee furnishes a 
taxpayer identification number to the payor at the time of the 
establishment or acquisition, and the payee does not withdraw more than 
69 percent of a reportable interest or dividend payment before the 
certifications are received within the 30 days. If the payee does not 
provide the required certifications

[[Page 284]]

within 30 days of the establishment or acquisition, the payor must 
withhold 31 percent of any reportable interest or dividend payments made 
to the account after its acquisition. For purposes of this section, an 
account or instrument is considered acquired directly from the payor if 
the instrument was acquired by the payee without the assistance of a 
broker or the instrument was acquired directly from a broker who holds 
the instrument as nominee for the payee (i.e., in street name) and who 
is considered a payor under Sec. 31.3406(a)-2. For payments made after 
December 31, 1998, see Sec. 1.6049-5(d)(2)(ii) of this chapter for the 
application of a 90-day grace period in lieu of the 30-day grace period 
described in this paragraph (a) if, at the beginning of the 90-day grace 
period, certain conditions are satisfied. If the grace period provisions 
of Sec. 1.6049-5(d)(2)(ii) or Sec. 1.1441-1(b)(3)(iv) of this chapter 
are applied with respect to a new account, the grace period provisions 
of this paragraph (a) shall not apply to that account.
    (b) Sale of an instrument for a customer by electronic transmission 
or by mail. The special rules set forth in paragraph (a) of this section 
apply comparably with respect to certification of the taxpayer 
identification number for the sale of an instrument under section 6045 
(as described in Sec. 31.3406(b)(3)-2) through a post-1983 brokerage 
account (as described in Sec. 31.3406(d)-1(c)(2)) for a customer by 
electronic transmission or by mail. However, the 30-day rules may apply 
only if the payee furnishes the payee's taxpayer identification number 
before the sale occurs. For purposes of applying the 30-day rules under 
this paragraph (b), a payee's reinvestment of the gross proceeds of the 
sale into other instruments constitutes a withdrawal.
    (c) Application to foreign payees. The rules of paragraphs (a) and 
(b) of this section also apply to a payee from whom the payor is 
required to obtain a Form W-8 (or an acceptable substitute) or other 
evidence of foreign status (pursuant to relevant regulations under an 
applicable Internal Revenue Code section without regard to the 
requirement to furnish a taxpayer identifying number, and the 
certifications described in Secs. 31.3406(d)-1(b)(3) and 31.3406(d)-2), 
provided the payee represents orally or otherwise, before or at the time 
of the acquisition or sale of the instrument or the establishment of the 
account, that the payee is not a United States citizen or resident. The 
30-day rules described in paragraph (a) or (b) of this section may apply 
only if the payee does not qualify for, or the payor does not apply, the 
90-day grace period described in Sec. 1.6049-5(d)(2)(ii) or Sec. 1.1441-
1(b)(3)(iv) of this chapter.

[T.D. 8637, 60 FR 66125, Dec. 21, 1995, as amended by T.D. 8734, 62 FR 
53493, Oct. 14, 1997]

    Effective Date Note: By T.D. 8734, 62 FR 53493, Oct. 14, 1997, 
Sec. 31.3406(d)-3 was amended by adding two sentences at the end of 
paragraph (a); removing the words ``30-day'' in the first sentence, 
revising the word ``these'' to ``the 30-day'', and adding the word 
``may'' immediately before the words ``apply only if'' in the second 
sentence; revising the word ``those'' to ``the'' in the third sentence 
in paragraph (b); and by revising paragraph (c), effective Jan. 1, 1999. 
At 63 FR 72183, Dec. 31, 1998, the effective date was delayed until Jan. 
1, 2000. By T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date 
was delayed until Jan. 1, 2001. For the convenience of the user, the 
superseded text is set forth as follows:

Sec. 31.3406(d)-3  Special 30-day rules for certain reportable payments.

    (a) * * *
    (b) * * * The special 30-day rules set forth in paragraph (a) of 
this section apply comparably with respect to certification of the 
taxpayer identification number for the sale of an instrument under 
section 6045 (as described in Sec. 31.3406(b)(3)-2) through a post-1983 
brokerage account (as described in Sec. 31.3406(d)-1(c)(2)) for a 
customer by electronic transmission or by mail. However, these rules 
apply only if the payee furnishes the payee's taxpayer identification 
number before the sale occurs. For purposes of applying those 30-day 
rules under this paragraph (b), a payee's reinvestment of the gross 
proceeds of the sale into other instruments constitutes a withdrawal.
    (c) Application to foreign payees. The rules of paragraphs (a) and 
(b) of this section also apply to a payee from whom the payor is 
required to obtain a Form W-8 or a substitute of the form or is to 
obtain other evidence of foreign status (pursuant to the relevant 
regulations issued under sections 6049 and 6045), provided the payee 
represents orally or otherwise, before or at the time of the acquisition 
or sale of the instrument or the establishment of the account, that the 
payee is not a United States citizen or resident.

[[Page 285]]



Sec. 31.3406(d)-4  Special rules for readily tradable instruments acquired through a broker.

    (a) Readily tradable instruments acquired through post-1983 
brokerage accounts with a broker who is not a payor--(1) In general. If 
a readily tradable instrument is acquired through a post-1983 brokerage 
account (as defined in Sec. 31.3406(d)-1(c)(2)) and the broker is not 
the payor of the instrument (as defined in Sec. 31.3406(a)-2(b)(3)), the 
broker must--
    (i) Obtain once with respect to each account the certifications 
described in Sec. 31.3406(d)-2(a) and Sec. 31.3406(d)-1(b)(3) and (c)(2) 
from the payee (relating to certification regarding payee underreporting 
and taxpayer identification number, respectively);
    (ii) Furnish the payee's taxpayer identification number to the 
payor; and
    (iii) Notify the payor to impose withholding if the payee fails to 
make either of the required certifications to the broker or if the 
broker has been notified by the Internal Revenue Service before the 
acquisition of the instrument that the payee is subject to withholding 
due to notified payee underreporting under section 3406(a)(1)(C) or that 
the payee is subject to withholding because the payee's taxpayer 
identification number is incorrect under section 3406(a)(1)(B) (as 
described in Sec. 31.3406(d)-5).
    (2) Additional requirements. The broker must give the information 
required by paragraphs (a)(1) (ii) and (iii) of this section to the 
payor with the transfer instructions for the acquisition (including 
account registration instructions transmitted by a broker in the case of 
acquisitions of shares in a mutual fund). A notice including the 
information described in paragraph (b)(1) of this section fulfills the 
broker's requirement to give notice to the payor. Once the broker 
transmits the transfer instructions containing the information required 
by this section, the broker has no further responsibility to obtain a 
missing taxpayer identification number or missing certification or to 
provide additional notices to the payee or payor with respect to the 
acquisition of the instrument. Upon receiving the notice from a broker, 
the payor must impose withholding on the account pursuant to 
Sec. 31.3406(a)-1.
    (3) Transactions entered into through a brokerage account that is 
not a post-1983 brokerage account. If a broker acquires readily tradable 
instruments for a payee through an account (with the broker) that is not 
a post-1983 brokerage account (as defined in Sec. 31.3406(d)-1(c)(1)), 
and the broker is not the payor of the instruments, the broker must 
furnish the payee's taxpayer identification number to the payor. In 
addition, if the broker has been notified by the Internal Revenue 
Service that the payee is subject to withholding under section 3406 
either because of an incorrect taxpayer identification number or due to 
notified payee underreporting as described in section 3406(a)(1) (B) or 
(C), respectively, the broker must notify the payor of the instrument to 
impose withholding with respect to that payee and transmit the 
information in the manner described in this paragraph (a). After a payor 
receives a notice from a broker pursuant to section 3406(d)(2)(B) and 
this paragraph (a), the payor must impose withholding on any accounts of 
the payee paying reportable interest or dividends as defined in section 
3406(b)(2) in accordance with Sec. 31.3406(a)-1.
    (4) Payor must notify payee--(i) Failure to provide certifications. 
If a payor is notified by a broker, as required in paragraph (a)(1) of 
this section, that a payee is subject to withholding because the payee 
failed to provide the certifications, as described in Sec. 31.3406(d)-
2(a) and Sec. 31.3406(d)-1(b)(3) and (c)(2), and the payor has not 
received the certifications from the payee, then the payor must notify 
the payee that withholding has started (or will start) no later than 15 
days after the payor makes the first payment to the payee that is 
subject to withholding under section 3406. A notice that contains the 
information described in paragraph (b)(2) of this section satisfies the 
payor's requirement to give notice to the payee. If the broker notifies 
the payor that the payee failed to make a required certification and the 
payor has received the certification from the payee, the payor may 
disregard the notice from the broker.

[[Page 286]]

    (ii) Notified payee underreporting and incorrect taxpayer 
identification number. The payor must notify the payee under this 
section if the Internal Revenue Service or a broker notifies the payor 
to withhold either because of an incorrect taxpayer identification 
number under section 3406(a)(1)(B) (as described in Sec. 31.3406(d)-5) 
or due to notified payee underreporting under section 3406(a)(1)(C) (as 
described in Sec. 31.3406(c)-1). If a payor is notified by the Internal 
Revenue Service or a broker with respect to a readily tradable 
instrument, the payor may not ignore the notice even if the payee 
previously provided the payee's taxpayer identification number under 
penalties of perjury to the payor and even if the payee certified to the 
payor that the payee is not subject to backup withholding due to a 
notified payee underreporting. See Sec. 31.3406(d)-5(c) (1) and (2) and 
(f)(2) for notice requirements under section 3406(a)(1)(B) due to an 
incorrect taxpayer identification number. See Sec. 31.3406(c)-1(c)(2) 
for notice requirements under section 3406(a)(1)(C) due to notified 
payee underreporting.
    (b) Notices--(1) Form of notice by broker to payor. A broker who is 
required under paragraphs (a)(1)(iii) and (2) of this section to notify 
the payor with respect to a readily tradable instrument may notify the 
payor in connection with the transfer instructions by means of magnetic 
media, machine readable document, or any other medium, provided that the 
notice includes the following information--
    (i) The payee's name, address, and taxpayer identification number 
(if provided to the broker); and
    (ii) A statement that the payee is subject to withholding under 
section 3406(a)(1) (A), (B), (C), or (D) of the Internal Revenue Code, 
whichever section applies; and
    (iii) When applicable, a statement that the broker was notified by 
the Internal Revenue Service that the payee is subject to withholding 
under section 3406(a)(1)(B) or (C).
    (2) Form of notice by payor to payee. A payor who is required to 
notify a payee that the payee is subject to withholding must provide 
notice that is substantially similar to the following--
    (i) For a notification concerning a failure to provide a taxpayer 
identification number in the required manner under section 3406(a)(1)(A) 
or a failure to make the following certification described in section 
3406(a)(1)(D):

    Recently, you purchased (identify security acquired). Because of the 
existence of one or more of the following conditions, payments of 
interest, dividends, and other reportable amounts that are made to you 
will be subject to withholding of tax at a 31 percent rate: (specify the 
condition or conditions, described below, that are applicable)
    (1) You failed to provide a taxpayer identification number, or 
failed to provide this number under penalties of perjury, in connection 
with the purchase of the acquired security. (An individual's taxpayer 
identification number is his or her social security number.)
    (2) You failed to certify, under penalties of perjury, that you are 
not subject to withholding due to notified payee underreporting as 
required under section 3406(a)(1)(D) of the Internal Revenue Code.
    If condition (1) applies, you may stop withholding by providing your 
taxpayer identification number on the enclosed Form W-9, signing the 
form, and returning it to us. If you do not have a taxpayer 
identification number, but have applied (or will soon apply) for one, 
you may so indicate on the Form W-9. Withholding may apply during the 
60-day period you are waiting for your taxpayer identification number. 
You must provide us with your taxpayer identification number promptly 
after you receive it in order to avoid withholding after the end of the 
60-day period or to stop withholding if it has already begun. Certain 
persons, described on the enclosed Form W-9, are exempt from 
withholding. Follow the instructions on that form if applicable to you.
    If condition (2) applies, you may stop withholding by certifying on 
the enclosed Form W-9 that you are not subject to withholding due to 
notified payee underreporting, signing the form, and returning it to us.
    If more than one condition applies, you must remove all applicable 
conditions to stop withholding.
    Please address any questions concerning this notice to: [Insert 
payor identifying information].
    (Do not address questions to the broker who purchased the securities 
for you.)

    (ii) For the form of the notice concerning imposition of withholding 
due to an incorrect taxpayer identification number, see Sec. 31.3406(d)-
5 (d)(2) and (g)(2).
    (iii) For the form of the notice concerning the imposition of 
withholding

[[Page 287]]

due to notified payee underreporting, see Sec. 31.3406(c)-1(d)(2).
    (c) Payor's reliance on information from broker--(1) In general. A 
payor of an instrument acquired by a payee through a broker may rely on 
the information that the payor receives from the broker pursuant to 
paragraphs (a) and (b) of this section.
    (2) Amount subject to backup withholding. The payor is required to 
withhold under section 3406 depending on the payor's customary method of 
making payment on an instrument or instruments owned by a payee. If it 
is the practice of a payor to combine in one account all readily 
tradable instruments of the same issue owned by a payee and if only 
certain of those instruments are subject to withholding, the payor must 
withhold on the aggregate payment made with respect to all the 
instruments in the account. Otherwise, the payor must withhold on the 
payment made on the instrument or instruments with respect to which the 
payee is subject to withholding.

[T.D. 8637, 60 FR 66125, Dec. 21, 1995; 61 FR 11307, Mar. 20, 1996; 61 
FR 12135, Mar. 25, 1996]



Sec. 31.3406(d)-5  Backup withholding when the Service or a broker notifies the payor to withhold because the payee's taxpayer identification number is 
          incorrect.

    (a) Overview. Backup withholding under section 3406(a)(1)(B) applies 
to any reportable payment made with respect to an account of a payee if 
the Internal Revenue Service or a broker notifies a payor under 
paragraph (c)(1) or (2) of this section that the payee's name and 
taxpayer identification number combination (name/TIN combination) is 
incorrect and the payor is required under paragraph (c)(3) of this 
section to identify that account as having the same name/TIN 
combination. After receiving a notice from the Internal Revenue Service 
or a broker under paragraph (c)(1) or (2) of this section and 
identifying an account as having the incorrect name/TIN combination 
under paragraph (c)(3) of this section, the payor must notify the payee 
in accordance with paragraph (d) of this section. In addition, under 
paragraph (e) of this section, the payor must backup withhold on all 
reportable payments made to such account after the close of the 30th 
business day after the date that the payor receives the notice and on or 
before the close of the 30th calendar day after the date that the payor 
receives from the payee the certification required under paragraph (f) 
of this section. Under paragraph (g) of this section, if a payor 
receives 2 notices from the Internal Revenue Service or broker within 3 
calendar years with respect to a payee's account, the payor must notify 
the payee in accordance with paragraph (g)(2) (rather than paragraph 
(d)) of this section. In addition, the payor must backup withhold on all 
reportable payments made with respect to the account after the close of 
the 30th business day after the date that the payor receives the second 
notice and on or before the 30th calendar day after the date that the 
payor receives notification from the Social Security Administration (or 
the Internal Revenue Service) validating a name/TIN combination for the 
account. Paragraph (h) of this section requires a payor to use a 
corrected name/TIN combination on subsequent information returns.
    (b) Definitions and special rules.--(1) Definition of incorrect 
name/TIN combination. An incorrect name/TIN combination is a combination 
of a name and taxpayer identification number provided on an information 
return with respect to which the Internal Revenue Service determines 
that the taxpayer identification number provided is not assigned under 
section 6109 to the name provided.
    (2) Definition of account. The term ``account'' means any account, 
instrument, or other relationship with the payor.
    (3) Definition of business day. The term ``business day'' means any 
day other than a Saturday, Sunday, or legal holiday (within the meaning 
of section 7503).
    (4) Certain exceptions--(i) In general. This section does not apply 
with respect to any notice received under paragraph (c)(1) or (2) of 
this section with respect to payments that--
    (A) Were made to a fiduciary or nominee account; or

[[Page 288]]

    (B) Were not reportable payments (for example, because the payments 
were made to an exempt recipient).

See Sec. 301.6724-1(f)(3) of this chapter for certain solicitation rules 
applicable after receipt of a notice under paragraph (c)(1) or (2) of 
this section with respect to a fiduciary or nominee account.
    (ii) Definition of fiduciary or nominee account. A fiduciary or 
nominee account is an account with respect to which at least one person 
named in the registration is identified as acting in the capacity as 
nominee or as administrator, conservator, custodian, receiver, tutor, 
curator, committee, executor, guardian, trustee, or other fiduciary 
capacity recognized under governing law.
    (c) Notice regarding an incorrect name/TIN combination--(1) In 
general. If the Internal Revenue Service notifies a payor that a payee's 
name/TIN combination is incorrect and that the payor must commence 
backup withholding as required on reportable payments made with respect 
to accounts of the payee with the same name/TIN combination, the payor 
must--

(i) Identify under paragraph (c)(3) of this section any account or 
accounts of the payee having the same name/TIN combination;

(ii) Except as provided in paragraph (g) of this section, notify the 
payee and backup withhold on reportable payments made to the account or 
accounts under the rules of paragraphs (d), (e), and (f) of this 
section.

This paragraph (c)(1) also applies if the payor receives notice from a 
broker under paragraph (c)(2) of this section.
    (2) Additional requirements for payors that are also brokers--(i) In 
general. A broker must notify the payor of an instrument of the 
information required under paragraph (c)(2)(ii) of this section, if--
    (A) The broker (in its capacity as a payor) receives a notice from 
the Internal Revenue Service under paragraph (c)(1) of this section that 
a payee's name/TIN combination is incorrect and is required to identify 
an account of the payee pursuant to paragraph (c)(3) of this section as 
having the name/TIN combination;
    (B) The payee acquires through the same account with the broker a 
readily tradable instrument with respect to which the broker is not the 
payor; and
    (C) The acquisition of such instrument occurs after the close of the 
30th business day after the date that the broker receives that notice 
(or on any earlier date that the broker chooses to begin applying this 
paragraph (c)(2)).

For purposes of this paragraph (c)(2)(i), with respect to notices under 
paragraph (c)(1) of this section received on or after September 1, 1992, 
an acquisition includes a transfer of an instrument out of street name 
into the name of the registered owner, i.e., the payee.
    (ii) Required information. The information required to be provided 
under this paragraph (c)(2)(ii) is:
    (A) The fact that the broker was notified by the Internal Revenue 
Service that the payee furnished an incorrect name/TIN combination;
    (B) The incorrect name/TIN combination; and
    (C) The fact that the named payee is subject to backup withholding 
under section 3406(a)(1)(B).

The broker is required to provide this information to the payor of the 
instrument in connection with the transfer instructions for the 
acquisition.
    (iii) Termination of obligation to provide information. The 
obligation of a broker to provide information to payors under this 
paragraph (c)(2) terminates simultaneously with the termination of the 
broker's obligation to backup withhold (in its capacity as payor) on 
reportable payments to the account.
    (3) Payor identification of the account or accounts of the payee 
that have the incorrect taxpayer identification number--(i) In general. 
If an account number or designation is provided in the notice received 
under paragraph (c)(1) of this section, the payor need only identify any 
account or accounts corresponding to that number or designation that has 
the same name/TIN combination provided in the notice. If no account 
number or designation is provided in the notice received under paragraph 
(c)(1) of this section, the payor must identify, using reasonable care, 
all accounts of the payee having the same name/TIN combination provided 
in the

[[Page 289]]

notice. If a payor receives notice from a broker under paragraph (c)(2) 
of this section with respect to the acquisition of a readily tradable 
instrument, the payor is not required to identify any other account of 
the payee.
    (ii) Reasonable care where no account number or designation is 
provided. A payor who satisfies the following two-part facts-and-
circumstances test will be considered to have exercised reasonable care 
for purposes of this paragraph (c)(3).
    (A) Part one of the test is satisfied if a payor searches for 
accounts of the payee on the computer or other recordkeeping system that 
the payor can reasonably associate with the information return that 
generated the notice under paragraph (c)(1) of this section. For 
example, a payor who maintains separate computer or recordkeeping 
systems for different product lines will have identified and used the 
appropriate system if the payor searches for accounts of the payee on 
the computer or recordkeeping system that contains the product line for 
the type of payments reported on the information return. A payor with 
the same product line on several nonintegrated computer or record 
systems will have identified and used the appropriate system if the 
payor searches for accounts of the payee on any computer or record 
system that the payor otherwise can reasonably associate with the 
information return.
    (B) Part two of the test is satisfied if the payor inputs the name/
TIN combination provided on the notice from the Internal Revenue Service 
under paragraph (c)(1) of this section into the system that is described 
in paragraph (c)(3)(ii)(A) of this section. If the system of a payor 
cannot utilize the name/TIN combination, the payor must input 
appropriate data or criteria, as determined by the capability of the 
payor's computer or recordkeeping system.
    (iii) No identification if error is caused by payor. A payor may 
treat an account as not having the incorrect name/TIN combination if the 
error resulted because the name or taxpayer identification number on 
such account is not the name or taxpayer identification number that was 
provided to the payor. This may occur, for example, where a payor 
transposes numbers in the taxpayer identification number when 
incorporating it into the payor's business records.
    (4) Special rules for joint accounts--(i) In general. In the case of 
a joint account, the relevant name/TIN combination for purposes of this 
section is the name/TIN combination used for information reporting 
purposes.
    (ii) Transitional rule. With respect to notices received under 
paragraph (c) (1) or (2) of this section prior to September 1, 1993, a 
payor may treat the name/TIN combination of the first person on a joint 
account as the relevant name/TIN combination, unless that person is an 
exempt foreign person and the account registration includes names of 
persons who are not foreign persons.
    (iii) Optional rule where names are switched. A payor may backup 
withhold under this section on reportable payments made to a joint 
account if the order of the names (or taxpayer identification numbers) 
on the account is merely changed subsequent to receipt of a notice under 
paragraph (c) (1) or (2) of this section, provided that the name of the 
person to which the incorrect name/TIN combination originally applies 
remains on the account.
    (5) Date of receipt. For purposes of this section, the date set 
forth on the notice from the Internal Revenue Service or broker under 
paragraph (c) (1) or (2) of this section is considered to be the date of 
receipt of the notice by the payor. However, if the payor demonstrates 
to the satisfaction of the Internal Revenue Service that the date of 
actual receipt of the notice is later than the date on the notice, the 
actual date of receipt is controlling.
    (d) Notice from payors of backup withholding due to an incorrect 
name/TIN combination--(1) In general. Except as provided in paragraph 
(g) of this section, if a payor receives notice under paragraph (c)(1) 
or (2) of this section and is required to identify an account as having 
the incorrect name/TIN combination under paragraph (c)(3) of this 
section, the payor must send a copy of the notice (or an acceptable 
substitute notice) to the payee of the account in accordance with the 
procedures of paragraph (d)(2) of this section.

[[Page 290]]

    (2) Procedures--(i) In general. The notice that a payor must send to 
a payee under paragraph (d)(1) of this section must comply with such 
procedural requirements as the Internal Revenue Service provides in the 
Internal Revenue Bulletin such as to form and manner of delivery. A 
payor must send the notice to the payee within 15 business days after 
the date that the payor receives the notice from the Internal Revenue 
Service or a broker under paragraph (c)(1) or (2) of this section.
    (ii) Two or more notices for an account in the same calendar year. A 
payor who receives, under the same payor taxpayer identification number, 
two or more notices under paragraph (c)(1) or (2) of this section in a 
calendar year with respect to the same account of a payee need only send 
one notice to the payee under this section.
    (e) Period during which backup withholding is required due to 
notification of an incorrect name/TIN combination--(1) In general. 
Except as provided in paragraph (g) of this section, if a payor receives 
a notice under paragraph (c)(1) or (2) of this section and is required 
to identify an account as having the same name/TIN combination under 
paragraph (c)(3) of this section, the payor must impose backup 
withholding on all reportable payments made with respect to the account 
after the close of the 30th business day after the date the payor 
receives that notice and on or before the close of the 30th calendar day 
after the day the payor receives from the payee the certification 
required under paragraph (f) of this section.
    (2) Grace periods--(i) Starting backup withholding. A payor may, on 
an account-by-account basis or in general, choose to begin backup 
withholding under this paragraph (e) at any time during the 30-business-
day period described in paragraph (e)(1) of this section.
    (ii) Stopping backup withholding. A payor may, on an account-by-
account basis or in general, choose to stop backup withholding under 
this paragraph (e) at any time within 30 calendar days after the payor 
receives from the payee the certification required under paragraph (f) 
of this section.
    (3) Dormant accounts. The requirement that a payor backup withhold 
under this paragraph (e) on reportable payments made with respect to an 
account terminates no later than the close of the third calendar year 
ending after the later of--
    (i) The date that the last reportable payment was made to that 
account; or
    (ii) The date that the payor received the notice under paragraph 
(c)(1) or (2) of this section.
    (f) Manner required for payee to furnish certified taxpayer 
identification number. (1) Except as provided in paragraph (g) of this 
section, in order to prevent backup withholding under paragraph (e) of 
this section from starting, or to stop it once it has begun, a payee 
with respect to whom the payor has been notified under paragraph (c)(1) 
or (2) that the payee's name/TIN combination is incorrect is required on 
Form W-9 (or an acceptable substitute form) to--
    (i) Provide the payee's name and taxpayer identification number; and
    (ii) Certify, under penalties of perjury, that the taxpayer 
identification number being provided is correct.
    (2) The certification must be made even if the account is a pre-1984 
account and even if the payment to the account is a reportable payment 
other than interest, dividends, patronage dividends, original issue 
discount, or proceeds of a sale of a security or commodity. In order to 
prevent backup withholding under paragraph (e) of this section from 
starting or to stop it once it has begun, a payee is not required to 
certify, under penalties of perjury, that the payee is not subject to 
backup withholding due to notified payee underreporting under section 
3406(a)(1)(C). With respect to notices received under paragraph (c)(1) 
or (2) of this section on or after September 1, 1993, the requirements 
of this paragraph (f) are not satisfied if a payee provides only an 
awaiting TIN certification. As a result, a payor must not fail to begin 
backup withholding under paragraph (e) of this section solely because 
the payee provided an awaiting TIN certification, or stop it once it has 
begun solely because the payee provided an awaiting TIN certification.

[[Page 291]]

    (g) Receipt of two notices within a 3-year period--(1) In general. 
If a payor receives notification under paragraph (c)(1) or (2) of this 
section twice within 3 calendar years, and in each case the payor is 
required to identify the same account as having the incorrect name/TIN 
combination, the payor must--
    (i) Disregard any future certifications (described in paragraph (f) 
of this section) furnished by the payee with respect to the account 
until the payor receives notice from the Social Security Administration 
(or the Internal Revenue Service) validating a name/TIN combination 
under paragraph (g)(5) of this section;
    (ii) Send the notice described in paragraph (g)(2) of this section 
to the payee (and not the notice required under paragraph (d) of this 
section) within 15 business days after the date that the payor receives 
the second notice; and
    (iii) Impose backup withholding on the account for the period 
described in paragraph (g)(3) of this section.

The payor must maintain sufficient records to determine whether the 
payor has received notices under paragraph (c) (1) or (2) of this 
section twice within 3 calendar years with respect to the same account.
    (2) Notice to payee who has provided two incorrect name/TIN 
combinations within 3 calendar years. The notice to the payee required 
by paragraph (g)(1) of this section must comply with such procedural 
requirements as the Internal Revenue Service provides in the Internal 
Revenue Bulletin such as to form and manner of delivery.
    (3) Period during which backup withholding is required due to a 
second notice of an incorrect name/taxpayer identification combination 
within 3 calendar years--(i) In general. If paragraph (g)(1) of this 
section applies, the payor must backup withhold on all reportable 
payments made with respect to the account of the payee after the close 
of the 30th business day after the date that the payor receives the 
second notice under paragraph (c) (1) or (2) of this section and on or 
before the close of the 30th calendar day after the date that the payor 
receives notice from the Social Security Administration (or the Internal 
Revenue Service) validating a name/TIN combination under paragraph 
(g)(5) of this section for the account. However, a payor may choose not 
to commence backup withholding under this paragraph (g) until January 1, 
1992.
    (ii) Grace periods--(A) Starting backup withholding. A payor may, on 
an account-by-account basis or in general, choose to begin backup 
withholding under this paragraph (g) at any time during the 30-business-
day period described in paragraph (g)(3)(i) of this section.
    (B) Stopping backup withholding. A payor may, on an account-by-
account basis or in general, choose to stop backup withholding under 
this paragraph (g) at any time within 30 calendar days after the date 
the payor receives notice from the Social Security Administration (or 
the Internal Revenue Service) validating a name/TIN combination under 
paragraph (g)(5) of this section for the account.
    (iii) Dormant accounts. The requirement that a payor backup withhold 
under this paragraph (g) on reportable payments made with respect to an 
account terminates no later than the close of the third calendar year 
ending after the later of--
    (A) The date that the last reportable payment was made to that 
account; or
    (B) The date that the payor received the second notice under 
paragraph (c) (1) or (2) of this section.
    (4) Receipt of two notices in one calendar year. A payor must treat 
the receipt of two or more notices under paragraph (c) (1) or (2) of 
this section in a calendar year with respect to an account as the 
receipt of one notice for purposes of this paragraph (g). The preceding 
sentence applies only if the two or more notices are received under the 
same payor taxpayer identification number.
    (5) Notification from the Social Security Administration (or the 
Internal Revenue Service) validating a name/TIN combination. The Social 
Security Administration (or the Internal Revenue Service) will notify a 
payor after it validates a name/TIN combination that the payee provides 
for an account to which paragraph (g)(1) of this section applies. 
Notification from the Social Security Administration (or the Internal 
Revenue

[[Page 292]]

Service) validating a name/TIN combination satisfies the requirements of 
this paragraph (g)(5) only if it complies with such procedural 
requirements as the Internal Revenue Service provides in the Internal 
Revenue Bulletin such as to form and manner of delivery. In order to 
obtain notification from the Social Security Administration (or the 
Internal Revenue Service) validating a name/TIN combination for an 
account, a payee who receives notice from a payor under paragraph (g)(2) 
of this section should follow such procedures as the Internal Revenue 
Service provides in the Internal Revenue Bulletin.
    (h) Payor must use newly provided certified number. If a payor 
receives a certification under paragraph (f) of this section or a 
notification under paragraph (g)(5) of this section for an account, the 
payor must use the name/TIN combination provided on such certification 
or notification on information returns for the account for which the due 
date (without regard to extensions) is more than 30 calendar days after 
the date that the payor receives the certification or notification. A 
payor who uses that name/TIN combination on the first such information 
return satisfies the requirement of section 3406(h)(9) to provide this 
information to the Internal Revenue Service. If the payor is not 
required to file any information returns with respect to the account 
after the date that the payor receives the certification or 
notification, a payor is deemed to satisfy the requirements of section 
3406(h)(9).
    (i) Effective date. Except as otherwise provided in this section, 
the provisions of this section are effective with respect to notices 
received on or after September 1, 1990, under paragraph (c) (1) or (2) 
of this section.
    (j) Examples. The application of the provisions of this section may 
be illustrated by the following examples:

    Example 1. D opened an account with Bank O prior to 1984 and 
furnished a taxpayer identification number to O at the time he opened 
the account. O pays interest on the account at the end of each calendar 
month, and the account is a pre-1984 account. On October 1, 1990, the 
Internal Revenue Service notifies Bank O that the name/TIN combination 
provided by D is incorrect. O timely notifies D as required in paragraph 
(d)(1) of this section. O does not receive the certification required 
under paragraph (f) of this section from D. O is required to backup 
withhold 20 percent of all reportable payments made after November 14, 
1990 (which is 30 business days after the date the Internal Revenue 
Service notified O). Therefore, O is not required to backup withhold on 
the reportable payment made on October 31, 1990, but is required to 
backup withhold on the reportable payment made on November 30, 1990. O 
is required to continue to backup withhold under section 3406(a)(1)(B) 
until O receives the certification required under paragraph (f) of this 
section from D (or, if earlier, until backup withholding terminates 
under paragraph (e)(3) of this section).
    Example 2. Assume the same facts as in Example 1 except that D 
furnishes a new taxpayer identification number to O on November 1, 1990, 
but does not certify, under penalties of perjury, that it is his correct 
taxpayer identification number as required under paragraph (f) of this 
section. Even though the account is a pre-1984 account, O is required to 
withhold 20 percent of all reportable payments made after November 14, 
1990 (which is 30 business days after the date the Internal Revenue 
Service notified O), and before the date O receives the certification 
required under paragraph (f) of this section from D.
    Example 3. Assume the same facts as in Example 2 except that D 
provides O with the certification required under paragraph (f) of this 
section on November 10, 1990. D elects pursuant to paragraph (e)(2)(ii) 
of this section to treat the certification as received on November 20, 
1990. Even though D did not provide the certification to O within 30 
business days after the Internal Revenue Service notified O that D 
provided an incorrect taxpayer identification number, O is not required 
to backup withhold under section 3406(a)(1)(B) because O did not make 
any reportable payment to D after 30 business days after notification of 
an incorrect name/TIN combination and before O received D's 
certification under paragraph (f) of this section (or, if earlier, until 
backup withholding terminates under paragraph (e)(3) of this section).
    Example 4. Individual F has two post-1983 accounts with Bank R that 
pay reportable interest: a savings account and a money market account. 
The money market account was opened in 1986, and the savings account was 
opened on February 1, 1991. R treats each of these accounts as a 
separate account on its books and records for business purposes. On 
October 1, 1990, the Internal Revenue Service notified R pursuant to 
paragraph (c)(1) of this section that F furnished an incorrect name/TIN 
combination with respect to the money market account. R timely sends F 
the notice required under paragraph (d) of this section and receives the 
certification required under paragraph (f) of this

[[Page 293]]

section from F on November 1, 1990. On October 1, 1991, the Internal 
Revenue Service again notifies R that F furnished an incorrect name/TIN 
combination with respect to the money market account. Further, R 
determines from its business records that two notifications of an 
incorrect name/TIN combination have been received with respect to the 
money market account within 3 calendar years. R must send F the notice 
required under paragraph (g)(2) of this section and must commence backup 
withholding on reportable interest paid on the money market account 
pursuant to paragraph (g)(3) of this section after November 14, 1991, 
which is 30 business days after R received the second notice. R must 
continue to backup withhold under paragraph (g) of this section on the 
money market account until R receives notification from the Social 
Security Administration as described in paragraph (g)(5) of this section 
(or, if earlier, until backup withholding terminates under paragraph 
(g)(3)(iii) of this section). R is not required to backup withhold on 
the savings account unless and until it receives notice under paragraph 
(c) (1) or (2) of this section with respect to the savings account.

[T.D. 8409, 57 FR 13031, Apr. 15, 1992]



Sec. 31.3406(e)-1  Period during which backup withholding is required.

    (a) In general. A payor must withhold under section 3406 at a rate 
of 31 percent on any reportable payment (as defined in section 3406(b)) 
made to a payee during the period described in this section 
(irrespective of the number of conditions for imposing withholding under 
section 3406 that exist with respect to the payee). A payor must 
continue to withhold under section 3406 until no condition for imposing 
backup withholding exists with respect to the payee.
    (b) Failure to furnish a taxpayer identification number in the 
manner required--(1) Start withholding. A payor is required to withhold 
under section 3406(a)(1)(A) at a rate of 31 percent on any reportable 
payment (as defined in section 3406(b)) at the time the payor pays the 
reportable payment (as described in Sec. 31.3406(a)-4) to a payee if--
    (i) The payor has not received the payee's taxpayer identification 
number in the manner required in Sec. 31.3406(d)-1; or
    (ii) The payor has received notice from a broker (as required in 
Sec. 31.3406(d)-4(a)(1)(iii)) with respect to a readily tradable 
instrument that the payee did not furnish a taxpayer identification 
number to the broker in the manner required in Sec. 31.3406(d)-1 and the 
payor has not received the taxpayer identification number from the payee 
in this manner.
    (2) Stop withholding. The payor must stop withholding under section 
3406(a)(1)(A) within 30 days after the payor receives--
    (i) The payee's taxpayer identification number in the manner 
required under Sec. 31.3406(d)-1; or
    (ii) A statement, in such form and containing such information as is 
required under applicable regulations, that the payee is not a United 
States person.
    (c) Notification of an incorrect taxpayer identification number. See 
Sec. 31.3406(d)-5(e) and (g)(3) for the period for which withholding is 
required in the case of notification of an incorrect taxpayer 
identification number.
    (d) Notified payee underreporting. See Sec. 31.3406(c)-1(e) for the 
period for which withholding is required in the case of notified payee 
underreporting.
    (e) Payee certification failure--(1) Start withholding. A payor is 
required to withhold under section 3406(a)(1)(D) at a rate of 31 percent 
on any reportable interest or dividend payment (as defined in section 
3406(b)(2)) at the time the payor pays such reportable interest or 
dividend payment (as described in Sec. 31.3406(a)-4) to a payee if--
    (i) The payor has not received from the payee the certification 
required in Sec. 31.3406(d)-2; or
    (ii) The payor has received notice from a broker (as required in 
Sec. 31.3406(d)-4(a)(1)(iii)) with respect to a readily tradable 
instrument that the payee did not make the required certification and 
the payor has not received the required certification from the payee.
    (2) Stop withholding. The payor must stop withholding under section 
3406(a)(1)(D) on any reportable interest or dividend payment within 30 
days after the payor receives the certification from the payee in the 
manner required by Sec. 31.3406(d)-2.
    (f) Rule for determining when the payor receives a taxpayer 
identification number or certificate from a payee. In determining 
whether a payee has failed to

[[Page 294]]

provide a taxpayer identification number or any certification to a payor 
(including a Form W-8 or substitute form), a payor is required to 
process the taxpayer identification number or certification within 30 
days after the payor receives the taxpayer identification number or 
certification from the payee or in certain cases, from a broker. Thus, 
the payor may take up to 30 days to treat the taxpayer identification 
number or a certificate as having been received.

[T.D. 8637, 60 FR 66127, Dec. 21, 1995]



Sec. 31.3406(f)-1  Confidentiality of information.

    (a) Confidentiality and liability for violation. Pursuant to section 
3406(f) no person may use any information obtained under section 3406 
for any purpose except for the purpose of complying with the 
requirements of section 3406 or for purposes permitted under section 
6103 (subject to the safeguards of section 6103). See section 7431 for 
civil damages for violating the confidential use of the information 
(subject to an exception for good faith).
    (b) Permissible use of information--(1) In general. A payor or 
broker may transmit information on a Form W-9, Form W-8, or other 
acceptable form relating to withholding to the department, institution, 
or firm (or to any employee therein) responsible for withholding or 
processing of taxpayer identification numbers, certifications described 
in Sec. 31.3406(h)-3, or other substitute forms. In addition, a broker 
may notify the payor with respect to a readily tradable instrument of 
the requirement to withhold and the condition or conditions for imposing 
withholding (as described in Sec. 31.3406(d)-4) that exist with respect 
to the payee. A payor or broker may, without violating the Internal 
Revenue Code, close an account of, refuse to open an account for, issue 
an instrument to, or redeem an instrument for, a person solely because 
the person fails to furnish the person's taxpayer identification number 
or documentation of foreign status in the manner required in 
Sec. 31.3406(d)-1 and Sec. 31.3406(g)-1, respectively. A payor who 
closes an account of a payee in the calendar year in which the account 
was opened and during which no taxpayer identification number or 
evidence of foreign status was provided for that account will be 
presumed in the absence of evidence to the contrary to have closed the 
account without violating section 3406(f) even though the payee is 
subject to backup withholding under section 3406(a)(1)(A). A payor, 
except as provided in Secs. 31.3406(d)-3 and 31.3406(g)-3, may not 
prohibit a payee who fails to furnish the payee's taxpayer 
identification number in the manner required in Sec. 31.3406(d)-1 from 
withdrawing any funds in the account.
    (2) Window transactions. In the case of a window transaction (as 
defined in Sec. 31.3406(b)(2)-3(b)), a payor may, without violating the 
Internal Revenue Code, refuse to redeem or may refuse to make payment if 
the payee fails to provide a taxpayer identification number regardless 
of when the obligation was issued or acquired.
    (c) Specific restrictions on the use of information. Except as 
provided in paragraph (b) of this section, a payor or broker is not 
permitted to--
    (1) Close an account (or instrument) of a payee solely because that 
payee (or the account of a payee) is subject to withholding under 
section 3406(a)(1) (A), (B), (C), or (D);
    (2) Refuse to open an account or to issue an instrument if the 
person fails to certify, under penalties of perjury, that the person is 
not subject to withholding under section 3406(a)(1)(C) (relating to 
notified payee underreporting);
    (3) Use information obtained under section 3406 (including a payee's 
failure or inability to certify that the payee is not subject to 
withholding due to notified payee underreporting or the fact that the 
account is subject to withholding), surcharge an account (i.e., charge 
an account more than the fee charged a similar account that was not 
subject to withholding under section 3406), or use that information to 
determine whether to open or close an account, whether to issue or 
redeem an instrument, or whether to extend credit to the payee.

[T.D. 8637, 60 FR 66127, Dec. 21, 1995]

[[Page 295]]



Sec. 31.3406(g)-1  Exception for payments to certain payees and certain other payments.

    (a) Exempt recipients--(1) In general. A payor of any reportable 
payment (as defined in section 3406(b)) must not withhold under section 
3406 if the payee is--
    (i) An organization exempt from taxation under section 501(a) or an 
individual retirement account;
    (ii) The United States or any wholly owned agency or instrumentality 
thereof;
    (iii) A state, the District of Columbia, a possession of the United 
States, any political subdivision of any of the foregoing, or any wholly 
owned agency or instrumentality of any one or more of the foregoing;
    (iv) A foreign government, a political subdivision of a foreign 
government, or any wholly owned agency or instrumentality of any one or 
more of the foregoing (as defined in regulations under section 892); or
    (v) An international organization or any wholly owned agency or 
instrumentality thereof (as defined in section 7701(a)(18)).
    (2) Nonexclusive list. Paragraph (a)(1) of this section does not 
prescribe an exclusive list of payees that are exempt from information 
reporting and also are exempt from withholding under section 3406.
    (b) Determination of whether a person is described in paragraph 
(a)(1) of this section. The determination of whether a person is a payee 
described in paragraph (a)(1) of this section must be made as provided 
in the applicable provisions of section 6049 and the regulations issued 
thereunder. A payor, even if permitted to treat a person as an exempt 
recipient without requiring a certificate under the provisions of 
section 6049, may require a payee, otherwise not required to file a 
certificate regarding its exempt status, to file a certificate and may 
treat a payee who fails to file the certificate as a person who is not 
an exempt recipient. See Sec. 31.3406(h)-3 for a description of the Form 
W-9 or a substitute form prescribed under section 3406 for claiming 
exempt status.
    (c) Prepaid or advance premium life-insurance contracts. A payor of 
a reportable payment (as defined in section 3406(b)(1)) may, but is not 
required to, withhold under section 3406 on reportable payments made 
from January 1, 1984, to December 31, 1996, on prepaid or advance 
premium life-insurance contracts to a payee who is the owner for tax 
purposes of the prepaid or advance premium life-insurance contract. For 
purposes of this exception from backup withholding, a prepaid or advance 
premium life-insurance contract is one entered into on or before June 
30, 1984, by the payee and under which the increment in value of the 
prepaid or advance premium is used for the payment of premiums during 
the period in which the exception from backup withholding applies.
    (d) Reportable payments made to Canadian nonresident alien 
individuals. A payment of interest made to a Canadian nonresident alien 
individual under Sec. 1.6049-8(a) of this chapter is not subject to 
withholding under section 3406.
    (e) Certain reportable payments made outside the United States by 
foreign persons, foreign offices of United States banks and brokers, and 
others. For reportable payments made after December 31, 2000, a payor is 
not required to backup withhold under section 3406 on a reportable 
payment that qualifies for the documentary evidence rule described in 
Sec. 1.6049-5(c)(1) or (4) of this chapter, whether or not documentary 
evidence is actually provided to the payor, unless the payor has actual 
knowledge that the payee is a United States person. Further, no backup 
withholding is required for payments upon which a 30-percent amount was 
withheld by another payor in accordance with the withholding provisions 
under chapter 3 of the Internal Revenue Code and the regulations under 
that chapter. For rules applicable to notional principal contracts, see 
Sec. 1.6041-1(d)(5) of this chapter.

[T.D. 8637, 60 FR 66128, Dec. 21, 1995, as amended by T.D. 8664, 61 FR 
17574, Apr. 22, 1996; T.D. 8734, 62 FR 53493, Oct. 14, 1997; T.D. 8804, 
63 FR 72189, Dec. 31, 1998; T.D. 8856, 64 FR 73412, Dec. 30, 1999]

    Effective Date Note: By T.D. 8734, 62 FR 53493, Oct. 14, 1997, 
Sec. 31.3406(g)-1 was amended by adding paragraph (e), effective Jan. 1, 
1999. At 63 FR 72183, 72189, Dec. 31, 1998, the effective date was 
delayed until Jan. 1, 2000,

[[Page 296]]

and paragraph (e), first sentence, was amended by removing ``December 
31, 1998'' and adding ``December 31, 1999'', effective, Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001, and paragraph (e), first sentence, was amended by 
removing ``December 31, 1999'' and adding ``December 31, 2000'', 
effective, Jan. 1, 2001.



Sec. 31.3406(g)-2  Exception for reportable payment for which withholding is otherwise required.

    (a) In general. A payor of a reportable payment (as defined in 
section 3406(b)) must not withhold under section 3406 if the payment is 
subject to withholding under any other provision of the Internal Revenue 
Code.
    (b) Payment of wages. A payor who is required to make an information 
return under section 6041 with respect to a payment of wages (as defined 
in section 3401) because, e.g., the employee makes a certification under 
section 3402(n) (relating to employees incurring no income tax 
liability), must not withhold under section 3406 on those wages.
    (c) Distribution from a pension, annuity, or other plan of deferred 
compensation. An amount reportable under section 6047, such as a 
designated distribution under section 3405, is not a reportable payment 
subject to withholding under section 3406. See section 3406(b). 
Designated distributions not subject to withholding under section 3406 
include--
    (1) Distributions from a pension, annuity, profit-sharing, stock 
bonus plan, or other plan deferring the receipt of compensation;
    (2) Distributions from an individual retirement account or annuity;
    (3) Distributions from an owner-employee plan; and
    (4) Certain surrenders of life insurance contracts.
    (d) Gambling winnings--(1) In general. A payor of a reportable 
gambling winning must not withhold under section 3406 if tax is required 
to be withheld from the gambling winning under section 3402(q) (relating 
to the extension of withholding to certain gambling winnings). If the 
reportable gambling winning is not required to be withheld upon under 
section 3402(q), withholding under section 3406 applies to the gambling 
winning if, and only if, the payee does not furnish a taxpayer 
identification number to the payor. Section 31.3406(b)(3)-1(b)(3) does 
not apply to a reportable gambling winning. The payor of a reportable 
gambling winning is not required to aggregate all such winnings made to 
a payee during a calendar year, nor is the payor required to determine 
whether an information return was required to be made with respect to 
the payee for the preceding year.
    (2) Definition of a reportable gambling winning and determination of 
amount subject to backup withholding. For purposes of withholding under 
section 3406, a reportable gambling winning is any gambling winning 
subject to information reporting under section 6041. The amount of a 
reportable gambling winning is--
    (i) The amount paid with respect to the amount of the wager reduced, 
at the option of the payor; by
    (ii) The amount of the wager.
    (3) Special rules. Amounts paid with respect to identical wagers are 
treated as paid with respect to a single wager. The determination of 
whether wagers are identical is made under Sec. 31.3402(q)-1(c)(1)(ii). 
In addition, a gambling winning (other than a winning from bingo, keno, 
or slot machines) is a reportable gambling winning only if the amount 
paid with respect to the wager is $600 or more and if the proceeds are 
at least 300 times as large as the amount wagered. See Sec. 7.6041-1 of 
this chapter to determine whether a winning from bingo, keno, or slot 
machines is a reportable gambling winning and thus subject to 
withholding under section 3406.
    (e) Certain real estate transactions. A real estate reporting person 
(the so-called broker) as defined in section 6045(e)(2) must not 
withhold under section 3406 on a payment made with respect to a real 
estate transaction that is subject to reporting under sections 6045 (a) 
and (e) and Sec. 1.6045-4 of this chapter.
    (f) Certain payments after an acquisition of accounts or 
instruments. A payor who acquires pre-1984 accounts or instruments 
described in Sec. 31.3406(d)-1(b)(2)(iv) for which the payor does not 
have a taxpayer identification number

[[Page 297]]

or has an obviously incorrect taxpayer identification number as defined 
in Sec. 31.3406(h)-1(b)(2) must start withholding under section 
3406(a)(1)(A) and Sec. 31.3406(d)-1 on those accounts or instruments no 
later than sixty days following the date of the payor's acquisition of 
those accounts or instruments.
    (g) Certain gross proceeds. No withholding under section 3406 is 
required with respect to any portion of the original issue discount on 
an instrument or security that is subject to withholding under section 
3406 as reportable gross proceeds of such instrument or security under 
section 6045.

[T.D. 8637, 60 FR 66128, Dec. 21, 1995]



Sec. 31.3406(g)-3  Exemption while payee is waiting for a taxpayer identification number.

    (a) In general--(1) Backup withholding not required for 60 days. If 
a payor has received an awaiting-TIN certificate from a payee with 
respect to an account or instrument receiving reportable interest or 
dividends as described in section 3406(b)(2), the payor must exempt the 
payee from withholding under section 3406(a)(1)(A) during the 60-day 
exemption period to the extent and in the manner described in either 
paragraph (a) (2) or (3) of this section. The 60-day exemption period 
means the 60-consecutive-day period beginning with the day the payor 
receives the awaiting-TIN certificate. The payor must withhold under 
section 3406 beginning after the 60-day exemption period if the payor 
has not received a taxpayer identification number from the payee in the 
manner required in Sec. 31.3406(d)-1. Regardless of whether the payee 
provides an awaiting-TIN certificate to a payor, the payor is required 
to withhold under section 3406(a)(1)(D) and Sec. 31.3406(d)-2 on 
reportable interest or dividend payments as described in 
Sec. 31.3406(d)-2 if the payee fails to certify, under penalties of 
perjury, that the payee is not subject to withholding due to notified 
payee underreporting as required in section 3406(a)(1)(D) and 
Sec. 31.3406(d)-2.
    (2) Reserve method. A payor must not withhold under section 3406 
during the 60-day exemption period unless the payee (or a joint payee in 
the case of a joint account) desires to make a withdrawal of more than 
$500 of either principal or interest from the account in any single 
transaction during the period. If a payee (or a joint payee) desires to 
make a withdrawal of more than $500 during the 60-day exemption period, 
the payor is required under section 3406 to withhold 31 percent of all 
reportable payments made during the period and at the time of withdrawal 
unless the payee reserves 31 percent of all reportable payments made to 
the account during the period.
    (3) Alternative rule; 7-day grace period--(i) In general. A payor 
who receives an awaiting-TIN certificate may elect, on a payee-by-payee 
basis or in general, to exempt reportable interest or dividend payments 
to a payee from withholding under section 3406 applying the rules in 
paragraph (a)(3) (ii) or (iii) of this section.
    (ii) Withholding on withdrawals. Under this paragraph (a)(3)(ii), a 
payor must obtain a certified taxpayer identification number from the 
payee within 60 days after the date that the payor receives the 
awaiting-TIN certification. In addition, the payor must withhold under 
section 3406 on any withdrawals made after the close of 7 business days 
after the date the awaiting-TIN certification is received and before the 
earlier of the date that the payor receives a certified taxpayer 
identification number from the payee, the date the account is closed (in 
which case the payor must withhold on any reportable payment made at the 
time the account or relationship is closed), or the date withholding 
under section 3406 starts on all reportable payments made to the 
account, instrument, or relationship. All cash withdrawals in an amount 
up to the reportable payments made from the day after the date of 
receipt of the awaiting-TIN certification to the date of withdrawal are 
treated as reportable payments.
    (iii) Withholding regardless of withdrawals. Under this paragraph 
(a)(3)(iii), a payor must start withholding under section 3406 on the 
account not later than 7 business days after the date the payor receives 
the awaiting-TIN certification on reportable payments thereafter made to 
the account (whether or not the payee makes a cash withdrawal). The 
payor

[[Page 298]]

must withhold under section 3406 until the earlier of the date the payor 
receives a certified taxpayer identification number from the payee, the 
date the account is closed, or the date withholding under section 3406 
starts on all reportable payments made to the account, instrument, or 
relationship. The payor must obtain a certified taxpayer identification 
number from the payee within 60 days after the date that the payor 
receives the awaiting-TIN certificate or undertake a mailing each year 
soliciting the certified taxpayer identification number from the payee 
until the earlier of the calendar year that the certified taxpayer 
identification number is received, or the calendar year in which the 
account is closed. However, if the account is closed in December of a 
calendar year, the mailing must be made after the account is closed and 
before January 31 of the subsequent calendar year.
    (b) Special rule for readily tradable instruments. The 60-day 
awaiting-TIN exemption described in paragraph (a)(1) of this section 
applies to payments made with respect to readily tradable instruments 
only if the payee provides an awaiting-TIN certificate directly to the 
payor. If a broker acquires a readily tradable instrument through a 
post-1983 brokerage account (as described in Sec. 31.3406(d)-1(c)(2)) 
for a payee who has no taxpayer identification number, the broker must 
advise the payor as required in Sec. 31.3406(d)-4(a)(1) that the payee 
failed to provide a taxpayer identification number under penalties of 
perjury, regardless of whether the payee provides an awaiting-TIN 
certificate to the broker. Once a payor is notified by a broker that a 
payee failed to provide a taxpayer identification number in the required 
manner, or that the payee is subject to withholding under section 
3406(a)(1) (B) or (C), the payor must impose withholding under section 
3406 for the appropriate period described in Sec. 31.3406(e)-1.
    (c) Exceptions--(1) In general. The 60-day awaiting-TIN exemption 
described in paragraph (a) of this section does not apply to--
    (i) Window transactions (as defined in Sec. 31.3406(b)(2)-3(b));
    (ii) Redemptions of bearer obligations that are subject to reporting 
under section 6045; or
    (iii) Other amounts that are subject to reporting under section 6045 
(except as described in paragraph (c)(2) of this section).
    (2) Special rule for amounts subject to reporting under section 6045 
other than proceeds of redemptions of bearer obligations. If a broker's 
customer does not provide a taxpayer identification number to the 
broker, and the broker effects a sale that is subject to reporting under 
section 6045 (other than a redemption of a bearer obligation), 
Sec. 31.3406(d)-3(b) applies, whether or not the sale is pursuant to an 
instruction by electronic transmission, provided the customer furnishes 
an awaiting-TIN certificate to the broker before the sale. For purposes 
of this paragraph (c)(2), the 30-day period provided in Sec. 31.3406(d)-
3(b) is a 60-day period.
    (d) Awaiting-TIN certificate. A payee qualifies for the 60-day 
awaiting-TIN exemption provided in paragraph (a) of this section if the 
payee furnishes a written statement to the payor, signed under penalties 
of perjury, that the payee has not been issued a taxpayer identification 
number, that the payee has applied for a taxpayer identification number 
or intends to apply for a number in the near future, and that the payee 
understands that if the payee does not provide a number to the payor 
within 60 days, the payor is required under section 3406 to withhold 31 
percent of any reportable payment thereafter made to the payee until the 
payor receives a number, and 31 percent of a withdrawal to the extent of 
reportable payments made to the payee during the 60-day period, as 
described in paragraph (a) of this section. Language that is 
substantially similar to the awaiting-TIN certification on Form W-9 will 
satisfy the requirements of this paragraph (d).
    (e) Form for awaiting-TIN certificate. A payor may use Form W-9 for 
the awaiting-TIN certificate, or a payor may include language that is 
substantially similar to the awaiting-TIN certification on Form W-9 in 
any other document of the payor. See Sec. 31.3406(h)-3, which provides 
that Form W-9 is the

[[Page 299]]

prescribed form but permits use of substitute forms, and specifies the 
length of time the payor is required to retain the form. If Form W-9 is 
used, the payee should write ``Applied For'' in the space reserved for 
the taxpayer identification number.

[T.D. 8637, 60 FR 66129, Dec. 21, 1995]



Sec. 31.3406(h)-1  Definitions.

    (a) In general. For purposes of section 3406 and the regulations 
thereunder, the definitions of this section apply.
    (b) Taxpayer identification number--(1) In general. Taxpayer 
identification number means the identifying number assigned to a person 
under section 6109 (relating to identifying numbers, generally a nine-
digit social security number for an individual and a nine-digit employer 
identification number for a nonindividual, e.g., a corporation, 
partnership, trust, or estate). An obviously incorrect number is not 
considered a taxpayer identification number. See Sec. 31.6011(b)-2 and 
Sec. 301.6109-1 of this chapter for provisions relating to obtaining a 
taxpayer identification number.
    (2) Obviously incorrect number. Obviously incorrect number means a 
number that does not contain nine digits or a number that includes an 
alpha character as one of the nine digits.
    (c) Broker. Broker is defined in section 6045(c)(1) and Sec. 1.6045-
1(a)(1) of this chapter. If there could be more than one broker with 
respect to any acquisition, only the broker having the closest contact 
(as determined under Sec. 5f.6045-1(c)(3) (ii) and (iii) of this 
chapter) with the payee is treated as a broker. In the case of any 
instrument, the term broker does not include any person who is the payor 
with respect to the instrument as described in Sec. 31.3406(a)-2.
    (d) Readily tradable instrument. Readily tradable instrument means--
    (1) Any instrument that is part of an issue any portion of which is 
traded on an established securities market (within the meaning of 
section 453(f)(5)); or
    (2) Any instrument that is regularly quoted by brokers or dealers 
making a market.
    (e) Day. Day means a calendar day unless specified otherwise under 
any section of the regulations under section 3406. For example, see 
Secs. 31.3406(d)-5(a) and 31.3406(g)-3(a)(2).
    (f) Business day. Business day means any day other than a Saturday, 
Sunday, or legal holiday (within the meaning of section 7503).

[T.D. 8637, 60 FR 66130, Dec. 21, 1995; 61 FR 12135, Mar. 25, 1996]



Sec. 31.3406(h)-2  Special rules.

    (a) Joint accounts--(1) Relevant name and taxpayer identification 
number combination. For purposes of identifying the account subject to 
withholding under sections 3406(a)(1) (B) and (C), the relevant name and 
taxpayer identification number combination is that which is used for 
information reporting purposes.
    (2) Optional rule for accounts subject to backup withholding under 
section 3406(a)(1) (B) or (C) where the names are switched. See 
Sec. 31.3406(d)-5(c)(4)(iii) under which a payor may withhold under 
section 3406(a)(1)(B) as required even though the names or taxpayer 
identification numbers on the account have been switched. The rules 
under Sec. 31.3406(d)-5(c)(4)(iii) may be applied comparably by a payor 
who is required to withhold under section 3406(a)(1)(C).
    (3) Joint foreign payees--(i) In general. If the relevant payee 
listed on a jointly owned account or instrument provides a Form W-8 or 
documentary evidence described in Sec. 1.1441-1(e)(1)(ii) regarding its 
foreign status, withholding under section 3406 applies unless every 
joint payee provides the statement regarding foreign status (under the 
provisions of chapters 3 or 61 of the Internal Revenue Code and the 
regulations under those provisions) or any one of the joint owners who 
has not established foreign status provides a taxpayer identification 
number to the payor in the manner required in Secs. 31.3406(d)-1 through 
31.3406(d)-5. See Sec. 1.6049-5(d)(2)(iii) of this chapter for 
corresponding joint payees provisions.
    (ii) Information reporting on an account including foreign payees. 
If any one of the joint payees who has not established foreign status 
provides a taxpayer identification number under paragraph (a)(3)(i)(B) 
of this section,

[[Page 300]]

that number is the taxpayer identification number that is required to be 
furnished for purposes of information reporting and withholding under 
section 3406.
    (b) Backup withholding from an alternative source--(1) In general. A 
payor may not withhold under section 3406 from a source maintained by 
the payor other than the source with respect to which there exists a 
liability to withhold under section 3406 with respect to the payee. See 
section 3403 and Sec. 31.3403-1, which provide that the payor is liable 
for the amount required to be withheld regardless of whether the payor 
withholds.
    (2) Exceptions for payments made in property--(i) Backup withholding 
from alternative source. In the case of a payment that is made in 
property (other than money), the payor must withhold under section 3406, 
31 percent of the fair market value of the property determined 
immediately before or on the date of payment. The payor may withhold 
under section 3406 from the principal amount being deposited with the 
payor or from another source maintained by the payee with the payor. The 
source from which the tax is withheld under section 3406 must be payable 
to at least one of the persons listed on the account subject to 
withholding. If the account or source is not payable exclusively to the 
same person or persons listed on the account subject to withholding 
under section 3406, then the payor must obtain a written statement from 
all other persons to whom the account or source is payable authorizing 
the payor to withhold under section 3406 from the alternative account or 
source. A payor that elects to withhold under section 3406 from an 
alternative source may determine the account or source from which the 
tax is to be withheld, or may allow the payee to designate the 
alternative source. A payee may not, however, require a payor to 
withhold under section 3406 from a specific alternative source. See 
Sec. 31.3402(q)-1(d), Example 5, for methods of withholding on prizes, 
awards, and gambling winnings paid in property other than cash.
    (ii) Deferral of withholding. If the payor cannot locate, using 
reasonable care (following procedures substantially similar to those set 
forth in Sec. 31.3406(d)-5(c)(3)(ii) (A) and (B)), an alternative source 
of cash from which the payor may satisfy its withholding obligation 
pursuant to paragraph (b)(2)(i) of this section, the payor may defer its 
obligation to withhold under section 3406, except for reportable 
payments of property made in connection with prizes, awards, or gambling 
winnings, until the earlier of--
    (A) The date the payor makes a cash payment to the account subject 
to withholding under section 3406 or cash is otherwise deposited in the 
account in a sufficient amount to satisfy the obligation in full; or
    (B) The close of the fourth calendar year after the obligation 
arose.
    (iii) Barter exchanges. In the case of a barter exchange that issues 
scrip to, or credits the account of, a member or client of the exchange 
in payment for property or services, the barter exchange may withhold 
under section 3406 from--
    (A) The scrip or credit, if converted to cash in order to satisfy 
the deposit requirements of section 6302 and Sec. 31.6302-4; or
    (B) Any other source maintained by the exchange for the member or 
client in the manner described in paragraph (b)(2) of this section.
    (c) Trusts. Withholding under section 3406 applies to reportable 
payments made to a trust if any of the conditions for imposing 
withholding under section 3406 apply to the trust. Generally, a trust is 
not a payor and will not be required to withhold under section 3406 on 
reportable payments that it makes to its beneficiary who is subject to 
withholding under section 3406. The preceding sentence does not apply, 
however, to a grantor trust with two or more grantors described in 
Sec. 31.3406(a)-2(b)(4), which is treated as a middleman payor. The 
trustee of a trust described in this paragraph (c) may certify that the 
trust's taxpayer identification number is correct and that the trust is 
not subject to withholding due to notified payee underreporting, without 
regard to the status of the beneficiaries of the trust.
    (d) Adjustment of prior withholding by middlemen. A middleman payor 
(as defined in Sec. 31.3406(a)-2(b)) who receives a

[[Page 301]]

payment from which tax has been erroneously withheld under section 3406 
may seek a refund of the tax withheld by the payor from whom the 
middleman payor received the payment (referred to as the ``upstream 
payor''). Alternatively, the middleman payor may obtain a refund of the 
tax by claiming a credit for the amount of tax withheld by the upstream 
payor against the deposit of any tax imposed by this chapter which the 
middleman payor is required to withhold and deposit (as described in 
section 6413 and Sec. 31.6413(a)-2). In either case, the middleman payor 
must pay or credit the gross amount of the payment (including the tax 
withheld) to its payee as though it had received the gross amount of the 
payment from the upstream payor and must withhold under section 3406 
only if one of the conditions for imposing backup withholding exists 
with respect to its payee. If its payee is not subject to withholding 
under section 3406, the payor must pay or credit the full amount of the 
payment to the payee, unless, with respect to payments made after 
December 31, 2000, the payor chooses to apply prior withholding under 
section 3406 to an amount required to be withheld under another section 
of the Internal Revenue Code (such as under section 1441) to the extent 
permitted under procedures prescribed by the Internal Revenue Service 
(see Sec. 601.601(d)(2) of this chapter). See Sec. 31.6413(a)-3 
regarding repayment by a payor of tax erroneously collected from a 
payee.
    (e) Conversion of amounts paid in foreign currency into United 
States dollars--. (1) Convertible foreign currency. If a payment is made 
in a currency other than the United States dollar, the amount subject to 
withholding under section 3406 is determined by applying the statutory 
rate of backup withholding to the foreign currency payment and 
converting the amount withheld into United States dollars on the date of 
payment at the spot rate (as defined in Sec. 1.988-1(d)(1) of this 
chapter) or pursuant to a reasonable spot rate convention. For example, 
a withholding agent may use a month-end spot rate or a monthly average 
spot rate. A spot rate convention must be used consistently with respect 
to all non-dollar amounts withheld and from year to year. Such 
convention cannot be changed without the consent of the Commissioner.
    (2) Nonconvertible foreign currency. [Reserved]
    (f) Coordination with other sections. For purposes of section 31, 
chapter 24 (other than section 3402(n)) of subtitle C of the Internal 
Revenue Code (relating to employment taxes and collection of income tax 
at source) and so much of subtitle F (other than section 7205) of the 
Internal Revenue Code (relating to procedure and administration) as 
relates to this chapter, and the regulations thereunder--
    (1) An amount required to be withheld under section 3406 must be 
treated as a tax required to be withheld under section 3402;
    (2) An amount withheld under section 3406 must be treated as an 
amount withheld under section 3402;
    (3) An amount withheld under section 3406 must be deposited as 
required under Sec. 31.6302-4;
    (4) Wages includes the gross amount of any reportable payment (as 
defined in section 3406(b)) except for purposes of section 6014 
(relating to an election by the taxpayer not to compute the tax on his 
annual return);
    (5) Employee includes a payee of any reportable payment; and
    (6) Employer includes a payor who is required to withhold the tax 
under section 3406 (as defined in Sec. 31.3406(a)-2(a)) with respect to 
any reportable payment (as defined in section 3406(b)).
    (g) Tax liabilities and penalties. A payor is subject to the same 
civil and criminal penalties for failing to impose withholding under 
section 3406 as an employer who fails to withhold on a payment of wages. 
In addition, a broker may be subject to the penalty under section 6705 
(failure of a broker to provide notice to a payor).
    (h) To whom payor is liable for amount withheld. A payor is not 
liable to any person for any amount withheld under section 3406. A payor 
is liable only to the United States for an amount that

[[Page 302]]

is required to be withheld as provided in Sec. 31.3403-1.

[T.D. 8637, 60 FR 66130, Dec. 21, 1995; 61 FR 11307, Mar. 20, 1996, as 
amended by T.D. 8734, 62 FR 53493, Oct. 14, 1997; T.D. 8804, 63 FR 
72189, Dec. 31, 1998; T.D. 8856, 64 FR 73412, Dec. 30, 1999]

    Effective Date Note: By T.D. 8734, 62 FR 53493, Oct. 14, 1997, 
Sec. 31.3406(h)-2 was amended by revising paragraph (a)(3)(i); revising 
the penultimate sentence in paragraph (d); removing the heading of 
paragraph (e)(1); removing the paragraph designation (e)(1); and 
removing paragraph (e)(2), effective Jan. 1, 1999. At 63 FR 72183, 
72189, Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000, 
and paragraph (d) penultimate sentence, was amended by removing 
``December 31, 1998'' and adding ``December 31, 1999'', effective Jan. 
1, 2000. By T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date 
was delayed until Jan. 1, 2001, and paragraph (d) penultimate sentence, 
was amended by removing ``December 31, 1999'' and adding ``December 31, 
2000'', effective Jan. 1, 2001. For the convenience of the user, the 
superseded text is set forth as follows:

Sec. 31.3406(h)-2  Special rules.

    (a) * * *
    (3) Joint foreign payees--(i) In general. If the first payee listed 
on an account or instrument provides the penalties of perjury statement 
regarding its foreign status, withholding under section 3406 applies 
unless--
    (A) Every joint payee provides the statement regarding foreign 
status (pursuant to the relevant regulations issued under sections 6045 
and 6049); or
    (B) Any one of the joint payees who has not established foreign 
status provides a taxpayer identification number to the payor in the 
manner required in Sec. 31.3406(d)-1.

                                * * * * *

    (d) * * * If its payee is not subject to withholding under section 
3406, the middleman payor must pay or credit the full amount of the 
payment to the payee. * * *

                                * * * * *



Sec. 31.3406(h)-3  Certificates.

    (a) Prescribed form to furnish information under penalties of 
perjury--(1) In general. Except as provided in paragraph (c) of this 
section, the Form W-9 is the form prescribed under section 3406 on which 
the payee certifies, under penalties of perjury, that--
    (i) The taxpayer identification number furnished to the payor is 
correct (as required in Sec. 31.3406(d)-1 and Sec. 31.3406(d)-5);
    (ii) The payee is not subject to withholding due to notified payee 
underreporting (as required in Sec. 31.3406(d)-2);
    (iii) The payee is an exempt recipient (as described in 
Sec. 31.3406(g)-1); or
    (iv) The payee is awaiting receipt of a taxpayer identification 
number (as described in Sec. 31.3406(g)-3).
    (2) Use of a single or multiple Forms W-9 for accounts of the same 
payee. A valid Form W-9 must include the name and taxpayer 
identification number of the payee. Except as provided in paragraph (b) 
of this section, the payee must sign under penalties of perjury and date 
the Form W-9 in order to satisfy the requirements of this section. A 
payor or broker may require a payee to furnish a separate Form W-9 for 
each obligation, deposit, certificate, share, membership, contract, or 
other instrument, or one Form W-9 for all the payee's obligations or 
relationships with the payor or broker. In addition, a payee of a mutual 
fund that has a common investment advisor or common principal 
underwriter with other mutual funds (within the same family of funds) 
may be permitted, in the discretion of the mutual fund, to provide one 
Form W-9 with respect to shares acquired or owned in any of the funds.
    (b) Prescribed form to furnish a noncertified taxpayer 
identification number. With respect to accounts or other relationships 
where the payee is not required to certify, under penalties of perjury, 
that the taxpayer identification number being furnished is correct, the 
payor or broker may obtain the taxpayer identification number orally or 
may use Form W-9, a substitute form, or any other document, but the 
payee is not required to sign the form.
    (c) Forms prepared by payors or brokers--(1) Substitute forms; in 
general. A payor or broker may prepare and use a form that contains 
provisions that are substantially similar to those of the official Form 
W-9. A payor or broker may use any document relating to the transaction, 
such as the signature card for an account, so long as the certifications 
are clearly set forth. A payor or broker who uses a substitute form may 
furnish orally or in writing the instructions for the Form W-9 that 
relate

[[Page 303]]

to the account. A payor or broker may refuse to accept certifications 
(including the official Form W-9) that are not made on the form or forms 
provided by the payor or broker. A payor or broker may refuse to accept 
a certification provided by a payee only if the payor or broker 
furnishes the payee with an acceptable form immediately upon receipt of 
an unacceptable form or within 5 business days of receipt of an 
unacceptable form. An acceptable form for this purpose must contain a 
notice that the payor or broker has refused to accept the form submitted 
by the payee and that the payee must submit the acceptable form provided 
by the payor in order for the payee not to be subject to withholding 
under section 3406. If the payor or broker requires the payee to furnish 
a form for each account of the payee, the payor or broker is not 
required to furnish an acceptable form until the payee furnishes the 
payor or broker with the payee's account numbers. A payor or broker may 
use separate substitute forms to have a payee certify under penalties of 
perjury that--
    (i) The payee's taxpayer identification number is correct; and
    (ii) The payee is not subject to withholding under section 3406 due 
to notified payee underreporting.
    (2) Form for exempt recipient. A payor or broker may use a 
substitute form for the payee to certify, under penalties of perjury, 
that the payee is an exempt recipient (described in Sec. 31.3406(g)-1 or 
described in the respective reporting section), provided the form 
contains provisions that are substantially similar to those of the 
official Form W-9 relating to exempt recipients. A certificate must be 
prepared in accordance with the instructions applicable to exempt 
recipients on Form W-9, and must set forth fully and clearly the data 
called for therein. If a payor will treat the payee as an exempt 
recipient only if the payee files a certificate as to its exempt status, 
the certificate is valid only if it contains the payee's taxpayer 
identification number. Thus, a payee must include the payee's taxpayer 
identification number on a certificate that a payor requires to be made 
in order to treat the payee as an exempt recipient.
    (d) Special rule for brokers. A broker may act as the payee's agent 
for purposes of furnishing a taxpayer identification number or 
certification to a payor with respect to any readily tradable instrument 
(as defined in Sec. 31.3406(h)-1(d)) provided the payee provides a 
taxpayer identification number on Form W-9 or other acceptable 
substitute form to the broker. The payor may rely on a taxpayer 
identification number provided by the broker unless certification is 
required (as described in Sec. 31.3406(d)-4) and the broker notifies the 
payor that the number was not certified.
    (e) Reasonable reliance on certificate--(1) In general. A payor is 
not liable for the tax imposed under section 3406 if the payor's failure 
to deduct and withhold the tax is due to reasonable reliance, as defined 
in paragraph (e)(2) of this section, on a Form W-9 (or other acceptable 
substitute) required by this section.
    (2) Circumstances establishing reasonable reliance. For purposes of 
paragraph (e)(1) of this section, a payor can reasonably rely on a Form 
W-9 (or other acceptable substitute) unless--
    (i) The form does not contain the name and taxpayer identification 
number of the payee (or does not state, in lieu of a taxpayer 
identification number, that the payee is awaiting receipt of a taxpayer 
identification number (i.e., an awaiting-TIN certificate));
    (ii) The form is not signed and dated by the payee;
    (iii) The form does not contain the statement, when required, that 
the payee is not subject to withholding due to notified payee 
underreporting;
    (iv) The payee has deleted the jurat or other similar provisions by 
which the payee certifies or affirms the correctness of the statements 
contained on the form; or
    (v) For purposes of section 3406(a)(1)(C), the payor is required to 
subject the account to which the form relates to withholding under 
section 3406(a)(1)(C) under the circumstances described in 
Sec. 31.3406(c)-1(c)(3)(iii).
    (f) Who may sign certificate--(1) In general. A Form W-9 or other 
acceptable substitute form may be signed by any person who is authorized 
to sign a declaration under penalties of perjury on

[[Page 304]]

behalf of the payee as provided in section 6061 and the regulations 
thereunder (relating to who may sign generally for an individual, which 
includes certain agents who may sign returns and other documents), 
section 6062 and the regulations thereunder (relating to who may sign 
corporate returns), and section 6063 and the regulations thereunder 
(relating to who may sign partnership returns).
    (2) Notified payee underreporting. A payee who has not been notified 
that he is subject to withholding under section 3406(a)(1)(C) as a 
result of notified payee underreporting may make the certification 
related to notified payee underreporting. In addition, a payee who was 
subject to withholding under section 3406(a)(1)(C) due to notified payee 
underreporting may certify that he is not subject to withholding under 
section 3406(a)(1)(C) due to notified payee underreporting if the 
Internal Revenue Service has provided the payee with written 
certification that withholding under section 3406(a)(1)(C) due to 
notified payee underreporting has terminated.
    (g) Retention of certificates--(1) Accounts or instruments that are 
not pre-1984 accounts and brokerage relationships that are post-1983 
brokerage accounts. With respect to an account or instrument that is not 
a pre-1984 account (as described in Sec. 31.3406(d)-1(b)(3)), or with 
respect to a brokerage relationship that is a post-1983 brokerage 
account (as described in Sec. 31.3406(d)-1(c)(2)), a payor or broker who 
receives a Form W-9 or other acceptable substitute form related to 
withholding under section 3406 must retain the form in its records for 3 
years from the date the account is opened or the instrument is 
purchased. The form may be retained on microfilm or microfiche.
    (2) Accounts or instruments that are pre-1984 accounts and brokerage 
relationships that are not post-1983 brokerage accounts. With respect to 
a pre-1984 account (as described in Sec. 31.3406(d)-1(b)(1)) or with 
respect to a brokerage relationship that is not a post-1983 brokerage 
account (as described in Sec. 31.3406(d)-1(c)(1)), a payor or broker is 
not required to retain any Form W-9 or other acceptable substitute form. 
If, however, the payor or broker requires the payee to file only one 
Form W-9 or substitute form for all accounts or instruments of the 
payee, the payor or broker must retain the single form in the manner and 
for the period of time described in paragraph (g)(1) of this section if 
that form relates to any account or instrument that is not a pre-1984 
account or relates to a post-1983 brokerage account. If a payee has 
certified that the payee is an exempt recipient described in 
Sec. 31.3406(g)-1, the payor or broker must retain the form unless the 
payor or broker can establish the existence of procedures that are 
reasonably calculated to ensure that a payee who has so certified is 
accurately identified in the payor's or broker's records.
    (h) Cross references. For the requirement to file an information 
return (and furnish the related statement) with respect to a reportable 
payment, particularly if that payment has been subject to withholding 
under section 3406, see subtitle F, chapter 61, subparts B and C of the 
Internal Revenue Code. See Sec. 31.6302-4 for the requirement to deposit 
amounts withheld under section 3406 on either a monthly or semi-weekly 
basis. See Sec. 31.6011(a)-4(b) for the requirement to file Form 945, 
Annual Return of Withheld Federal Income Tax, to reflect amounts 
withheld under section 3406. See Sec. 31.6071(a)-1 for the time for 
filing the Form 945.

[T.D. 8637, 60 FR 66131, Dec. 21, 1995]



Sec. 31.3406(i)-1  Effective date.

    Sections 31.3406-0 through 31.3406(i)-1 (except Secs. 31.3406(d)-5 
and 31.3406(g)-1(c) and except for international transactions) are 
effective after December 31, 1996, and, optionally, for reportable 
payments made and transactions occurring on or after December 21, 1995. 
For the effective date of Sec. 31.3406(d)-5, see Sec. 31.3406(d)-5(i). 
Section 31.3406(g)-1(c) is effective before January 1, 1997. See 
Secs. 35a.9999-0T through 35a.9999-5 of this chapter for rules that 
apply to international transactions after December 31, 1996.

[T.D. 8637, 60 FR 66133, Dec. 21, 1995]


[[Page 305]]





Sec. 31.3406(j)-1  Taxpayer Identification Number (TIN) matching program.

    (a) The matching program. Under section 3406(i), the Commissioner 
has the authority to establish Taxpayer Identification Number (TIN) 
matching programs. The Commissioner may prescribe in a revenue procedure 
(see Sec. 601.601(d)(2) of this chapter) or other appropriate guidance 
the scope of and the terms and conditions of participating in any TIN 
matching program. In general, under a matching program, prior to filing 
information returns with respect to reportable payments as defined under 
section 3406(b)(1), a payor of those reportable payments who is entitled 
to participate in the matching program may contact the Internal Revenue 
Service (IRS) with respect to the TIN furnished by a payee who has 
received or is likely to receive a reportable payment. The IRS will 
inform the payor whether or not a name/TIN combination furnished by the 
payee matches a name/TIN combination maintained in the data base 
utilized for the particular matching program.
    (b) Notice of incorrect TIN. No matching details received by a payor 
through a matching program will constitute a notice regarding an 
incorrect name/TIN combination under Sec. 31.3406(d)-5(c) for purposes 
of imposing backup withholding under section 3406(a)(1)(B).
    (c) Application of section 3406(f). The provisions of section 
3406(f), relating to confidentiality of information, apply to any 
matching details received by a payor through the matching program. A 
payor may not take into account any such matching details in determining 
whether to open or close an account with a payee.
    (d) Reasonable cause. The IRS will not use either a payor's decision 
not to participate in an available TIN matching program or the results 
received by a payor from participation in a TIN matching program 
implemented under the authority of this section as a basis to assert 
that the payor lacks reasonable cause under section 6724(a) for the 
failure to file an information return under section 6721 or to furnish a 
correct payee statement under section 6722. If the establishment of 
reasonable cause may be relevant to a substantial number of the 
participants in a TIN matching program implemented under the authority 
of this section, the extent to which, if any, a payor may establish 
reasonable cause by participating in the TIN matching program will be 
set forth in the guidance establishing the program.
    (e) Definition of account. Account means any account, instrument, or 
other relationship with a payor and with respect to which a payor has 
made or is likely to make a reportable payment as defined in section 
3406(b)(1).
    (f) Effective date. The provisions of this section are effective on 
and after June 18, 1997.

[T.D. 8721, 62 FR 33009, June 18, 1997]



Subpart F--General Provisions Relating to Employment Taxes (Chapter 25, 
                     Internal Revenue Code of 1954)



Sec. 31.3501(a)-1T  Question and answer relating to the time employers must collect and pay the taxes on noncash fringe benefits (Temporary).

    The following questions and answers relate to the time employers 
must collect and pay the taxes imposed by subtitle C on noncash fringe 
benefits:
    Q-1: If a noncash fringe benefit constitutes ``wages'' under section 
3121(a), 3306(b), or 3401(a), or constitutes ``compensation'' under 
section 3231(e), when must an employer collect and pay the taxes imposed 
by Subtitle C?
    A-1: For purposes of an employer's liability to collect and pay the 
taxes imposed by Subtitle C, an employer may deem such fringe benefit to 
be paid at any time on or after the date on which it is provided, as 
long as such date is on or before the last day of the calendar quarter 
in which such benefit is provided. An employer may consider the benefit 
to be provided in two or more parts for purposes of the preceding 
sentence. For example, if a fringe benefit with a fair market value of 
$1,000 is provided on January 1, 1985, the employer could deem $500 paid 
on February 28, 1985 and $500 paid on March 31, 1985.
    With respect to noncash fringe benefits provided during the first 
calendar quarter of 1985, a special rule applies. Such benefits may be 
deemed paid at

[[Page 306]]

any time on or after the date on which they are provided as long as the 
date they are deemed paid is on or before the last day of the second 
calendar quarter of 1985.
    In addition, for purposes of Sec. 31.6302(c)-1(a)(1)(i), the term 
``tax'' does not include the employer tax under section 3111 with 
respect to noncash fringe benefits which are deemed by the employer to 
be paid on the last day of any calendar quarter. For purposes of the 
first sentence of Sec. 31.6302(c)-2(a)(1), the phrase ``employer tax 
imposed after December 31, 1983, under section 3221 (a) and (b)'' will 
not include any such employer tax with respect to noncash fringe 
benefits which are deemed by the employer to be paid on the last day of 
the quarter; provided that for purposes of deposits required under 
Sec. 31.6302(c)-1(a)(1)(v), such first sentence applies to such noncash 
fringe benefits.
    Notwithstanding anything in this section to the contrary, if an 
employer in fact withholds, the amount withheld is subject to the 
general deposit rules.
    The manner in which and the time at which the employer withholds 
amounts from the wages of an employee to pay the taxes imposed under 
section 3101, 3201, and/or 3402 will generally be left to be determined 
by the employer and the employee. Any delay in withholding, however, 
does not affect the employer's obligation upon the filing of an 
employment tax return, to pay amounts which would be due under this 
subtitle if the employer had withheld, with respect to noncash fringe 
benefits, the amount which would have been required to be withheld if 
such noncash fringe benefits had been paid in cash on the date the 
benefits were deemed paid. However, if such amounts are not withheld 
from the wages of an employee within a reasonable period after payment 
of the taxes by the employer, payment by the employer may be deemed 
additional compensation of the employee.
    Q-2: Are any fringe benefits excepted from the rules contained in Q/
A-1 of this section?
    A-2: Yes. The rules contained in Q/A-1 of this section do not apply 
to the transfer of personal property (both tangible and intangible) of a 
kind held for investment or to the transfer of real property. 
Accordingly, an employer is liable for the collection and payment of 
taxes imposed by this subtitle when such property is transferred. For 
example, stock transferred in connection with the performance of 
services is paid, for purposes of this subtitle C, on the date the stock 
is transferred, i.e., on the date the stock vests pursuant to section 83 
(absent a section 83(b) election).
    Q-3: What is an example of the application of the rules contained in 
Q/A-1 of this section with respect to obligations under Chapters 21 and 
24 of subtitle C?
    A-3: All of employer A's employees received $100 in cash as wages 
each week from A. In addition, during a calendar quarter, each such 
employee receives noncash fringe benefits, the fair market value of 
which is $500. A deems all such noncash fringe beneftis to be paid on 
the last day of the quarter. As of the end of the quarter, no amount has 
been withheld from the employee's wages with respect to such noncash 
fringe benefits, and A has ``undeposited taxes'' (within the meaning of 
Sec. 31.6302(c)-1(a)(1)(i)) of more than $3,000 attributable to amounts 
actually withheld under section 3102 or section 3402 or due under 
section 3111 with respect to cash wages of A's employees. The amount 
which A must deposit within 3 banking days after the end of the quarter 
will be determined without regard to the noncash fringe benefits deemed 
paid on the last day of the quarter.
    During the month following the quarter, A withholds from its 
employees with respect to the noncash fringe benefits deemed paid on the 
last day of the quarter. As A withholds amounts, such amounts become 
``taxes'' subject to Sec. 31.6302(c)-1(a)(1)(i). If, as of the date of 
filing of the return for the period which includes the last day of the 
quarter, A has not deposited all amounts with respect to the quarter 
which are due under section 3111 or which would have been due had A 
withheld, under sections 3102 and 3402, with respect to noncash fringe 
benefits, the amount which would have been required to be withheld had 
such benefits been paid in cash, A shall pay the balance with its

[[Page 307]]

return. A must make such payment regardless of whether, at the time the 
return is filed, he has actually withheld all amounts which he would 
have been required to withhold had such benefits been paid in cash.
    Q-4: If an employee is provided with a noncash fringe benefit and 
separates from service before the benefit is deemed paid by the 
employer, is the employer liable for the taxes imposed by subtitle C?
    A-4: Yes. The employer's liability is unaffected by his ability to 
collect the tax from the former employer.
    Q-5: If an entity other than the employer provides a noncash fringe 
benefit to an employee, is that entity considered the employer of such 
employee with respect to such noncash fringe benefit for any purposes of 
subtitle C?
    A-5: The provision of noncash fringe benefits by an entity to an 
employee of another employer does not make such entity the employer of 
such employee with respect to such noncash fringe benefit for any 
purpose of subtitle C, so long as such noncash fringe benefits are 
incidental to the provision of wages by the employer to such employee. 
For example, if two unrelated airlines, A and B, enter into a reciprocal 
agreement where by the parents of employees of both airlines are 
entitled to free flights on both airlines, the fact that A is providing 
a noncash fringe benefit to the employees of B generally will not make A 
the employer of such employees for purposes of subtitle C.
    Q-6: Do special rules apply to the provision of taxable noncash 
fringe benefits by a nonemployer under a reciprocal agreement with the 
employee's employer?
    A-6: If the provision of taxable noncash fringe benefits meets the 
requirements of Q/A-5 of this section, the nonemployer provider of the 
benefits is not required to withhold. The employer must take the steps 
necessary to obtain the relevant information from the provider of the 
benefits in order to enable the employer to satisfy, in a timely manner, 
its obligations under subtitle C to collect and pay taxes with respect 
to the noncash fringe benefits provided by the nonemployer.
    Q-7: For purposes of subtitle C, how is the fair market value of an 
employer-provided automobile or other road vehicle during any time 
period to be determined?
    A-7: The value of the availability of an employer-provided 
automobile or other road vehicle must be determined under the rules 
provided in Sec. 1.61-2T and Sec. 1.132-1T. (For purposes of this 
section, the terms ``automobile'' and ``road vehicle'' have the meaning 
given those terms in Q/A-11 of Sec. 1.61-2T). For example, assume that 
an employee adopts the special rule provided in Sec. 1.61-2T and that 
the Annual Lease Value, as defined in Sec. 1.61-2T, of an automobile or 
other road vehicle is $2,100. The automobile or other road vehicle is 
provided to employee A on January 1, 1985. As of March 31, A had driven 
the automobile or other road vehicle 1,000 personal miles and 3,000 
miles in the course of his employer's business. For the quarter, A would 
have had wages of $131.25 attributable to his personal use of the 
automobile or other road vehicle computed by subtracting a $393.75 
working condition fringe from $525 ($2,100 divided by 4). See section 
132(d) and Sec. 1.132-1T. During the second quarter of 1985, A drives 
the automobile or other road vehicle only 1,000 miles, all of which are 
personal. In order to calculate the value of the wages provided to A in 
the second quarter in the form of the availability of the employer-
provided automobile or other road vehicle, first A's employer calculates 
the Annual Lease Value attributable to the first six months of 1985 
which is $1,050 ($2,100 divided by 2). Second, A's employer calculates 
the working condition fringe exclusion which is $630 ($1,050 multiplied 
by a fraction the numerator of which is A's business mileage (3,000 
miles) and the denominator of which is A's total mileage (5,000 miles)). 
The calculations result in a total inclusion of $420 ($1,050--$630). 
From the total inclusion of $420, the wages provided in the first 
quarter, $131.25, are subtracted, leaving $288.75 as the wages 
includible in the second quarter attributable to the availability to A 
of the employer-provided automobile or other road vehicle.
    Q-8: May an employer treat any part of the Annual Lease Value or 
Daily Lease Value (as defined in Sec. 1.61-2T), or

[[Page 308]]

the fair market value if the special rule of Sec. 1.61-2T is not or 
cannot be used, of an automobile or other road vehicle made available to 
an employee as includible in the employee's gross income without regard 
to whether the employee has used the automobile or other road vehicle in 
the employer's business?
    A-8: No, except as otherwise provided in this Q/A-8, an employer may 
not include any amount in an employee's income with respect to an 
employer-provided automobile or other road vehicle unless such inclusion 
is based on:
    (a) Records or a statement submitted by an employee that contain the 
business and total mileage for the period beginning on January 1, 1985, 
and ending on the last day of the employer's taxable year that began in 
1984, or
    (b) Records that satisfy the employer's ``adequate contemporaneous 
record'' requirement under section 274(d)(4) and the regulations 
thereunder for the employer's taxable years beginning after December 31, 
1984.

For example, an employer who is subject to (b) of this Q/A-8 may rely on 
a statement submitted by the employee indicating for the period the 
number of miles driven by the employee in the employer's business and 
the total number of miles driven by the employee unless the employer 
knows or has reason to know the statement submitted is not based on 
``adequate contemporaneous records''. (For purposes of this section, if 
a road vehicle is available to any person and such availability would be 
taxable to an employee, miles driven by that person will be considered 
miles driven by the employee).
    Notwithstanding the preceding paragraph of this Q/A-8, an employer 
may include in an employee's income the value of the availability of an 
employer-provided road vehicle, calculated without regard to a working 
condition fringe exclusion based on business mileage if one of the 
conditions listed in Sec. 1.274-6T(f)(1) is satisfied with respect to 
the relevant period.
    In addition, the employer must, before including any amount in an 
employee's income with respect to an employer-provided road vehicle, 
take into account other working condition fringe exclusions, such as the 
security exclusion discussed in Sec. 1.132-1T. If proper calculation of 
an exclusion requires information from the employee and the employee 
does not respond within a reasonable period of time to a request for 
that information or produces information which the employer knows or has 
reason to know is not accurate, the employer may disregard such 
exclusion in reporting the employee's gross income.
    Q-8a: May an employer withhold amounts attributable to noncash 
fringe benefits on the basis of average wages as permitted under section 
3402(h)(1)?
    A-8a: In general, yes. In estimating wages under section 
3402(h)(1)(A), however, the employer must take into account estimated 
business use of the benefit (such as an employer-provided road vehicle). 
In no event, however, may the amount reported by the employer as 
``wages'' for any employee for any quarter be based on an estimation. 
However, the rules in Q/A-1 of this section regarding permissible delays 
in actual withholding apply.
    Q-9: If an employee purchases any property or service from an 
employer at a discount and the discount is not excludable under section 
132 and any applicable regulations thereunder, when is the noncash 
fringe benefit provided?
    A-9: Such property or service is provided at the time that ownership 
is transferred, in the case of property, or the time service is 
rendered, in the case of services. This will be true regardless of when 
the employee pays for such property or service or the date payment is 
due or the rate of interest charged prior to payment. The time at which 
ownership of the property is transferred must be determined under 
general tax principles.
    Q-10: What rules apply with respect to the treatment of the payment 
of any noncash fringe benefit as the payment of supplemental wages under 
section 3402?
    A-10: An employer may treat the payment of any noncash fringe 
benefit as the payment of supplemental wages. Thus, if noncash fringe 
benefits are provided and tax has been withheld from the employee's 
regular wages, the employer may determine the tax to be withheld with 
respect to such noncash

[[Page 309]]

fringe benefits by using a flat percentage rate of 20 percent, without 
allowance for exemptions and without reference to any regular payment of 
wages. For example, assume that during a calendar quarter A receives 
from his employer a taxable noncash fringe benefit with a fair market 
value of $1,000. If the requirements specified above are satisfied, A's 
employer may determine the tax to be withheld with respect to such 
benefit by using a flat percentage rate of 20 percent. The employer may 
also determine the tax to be withheld with respect to such benefit by 
use of the method described in Sec. 31.3402 (g)-1(a)(2).

(Approved by the Office of Management and Budget under control numbers 
1545-0074 and 1545-0907)

[T.D. 8004, 50 FR 756, Jan. 7, 1985, as amended by T.D. 8009, 50 FR 
7046, Feb. 20, 1985]



Sec. 31.3502-1  Nondeductibility of taxes in computing taxable income.

    For provisions relating to the nondeductibility, in computing 
taxable income under subtitle A, of the taxes imposed by sections 3101, 
3201, and 3211, and of the tax deducted and withheld under chapter 24, 
see Secs. 1.164-2 and 1.275-1 of this chapter (Income Tax Regulations). 
For provisions relating to the credit allowable to the recipient of the 
income in respect of the tax deducted and withheld under chapter 24, see 
Sec. 1.31-1 of this chapter (Income Tax Regulations).

[T.D. 6780, 29 FR 18148, Dec. 22, 1964]



Sec. 31.3503-1  Tax under chapter 21 or 22 paid under wrong chapter.

    If, for any period, an amount is paid as tax--
    (a) Under chapter 21 or corresponding provisions of prior law by a 
person who is not liable for tax for such period under such chapter or 
prior law, but who is liable for tax for such period under chapter 22 or 
corresponding provisions of prior law, or
    (b) Under chapter 22 or corresponding provisions of prior law by a 
person who is not liable for tax for such period under such chapter or 
prior law, but who is liable for tax for such period under chapter 21 or 
corresponding provisions of prior law,

the amount so paid shall be credited against the tax for which such 
person is liable and the balance, if any, shall be refunded. Each claim 
for refund or credit under this section shall be made on Form 843 and in 
accordance with Sec. 31.6402(a)-2 and the applicable provisions of 
section 6402(a) and the regulations thereunder in Part 301 of this 
chapter (Regulations on Procedure and Administration).



Sec. 31.3504-1  Acts to be performed by agents.

    (a) In general. In the event wages as defined in chapter 21 or 24 of 
the Internal Revenue Code of 1954, or compensation as defined in chapter 
22 of such Code, of an employee or group of employees, employed by one 
or more employers, is paid by a fiduciary, agent, or other person, or if 
such fiduciary, agent, or other person has the control, receipt, 
custody, or disposal of such wages, or compensation, the district 
director, or director of a service center, may, subject to such terms 
and conditions as he deems proper, authorize such fiduciary, agent, or 
other person to perform such acts as are required of such employer or 
employers under those provisions of the Internal Revenue Code of 1954 
and the regulations thereunder which have application, for purposes of 
the taxes imposed by such chapter or chapters, in respect of such wages 
or compensation. If the fiduciary, agent, or other person is authorized 
by the district director, or director of a service center, to perform 
such acts, all provisions of law (including penalties) and of the 
regulations prescribed in pursuance of law applicable to employers in 
respect of such acts shall be applicable to such fiduciary, agent, or 
other person. However, each employer for whom such fiduciary, agent, or 
other person performs such acts shall remain subject to all provisions 
of law (including penalties) and of the regulations prescribed in 
pursuance of law applicable to an employer in respect of such acts. Any 
application for authorization to perform such acts, signed by such 
fiduciary, agent, or other person, shall be filed with the district 
director, or director of a service center, with whom the fiduciary,

[[Page 310]]

agent, or other person will, upon approval of such application, file 
returns in accordance with such authorization.
    (b) Prior authorizations continued. An authorization in effect under 
section 1632 of the Internal Revenue Code of 1939 on December 31, 1954, 
continues in effect under section 3504 and is subject to the provisions 
of paragraph (a) of this section.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D 7012, 34 FR 
7693, May 15, 1969]



Sec. 31.3505-1  Liability of third parties paying or providing for wages.

    (a) Personal liability in case of direct payment of wages--(1) In 
general. A lender, surety, or other person--
    (i) Who is not an employer for purposes of section 3102 (relating to 
deduction of tax from wages under the Federal Insurance Contributions 
Act), section 3202 (relating to deduction of tax from compensation under 
the Railroad Retirement Tax Act), or section 3402 (relating to deduction 
of income tax from wages) with respect to an employee or group of 
employees, and
    (ii) Who pays wages on or after January 1, 1967, directly to such 
employee or group of employees, employed by one or more employers, or to 
an agent on behalf of such employee or employees,

shall be liable in his own person and estate for payment to the United 
States of an amount equal to the sum of the taxes required to be 
deducted and withheld from those wages by the employer under subtitle C 
of the Code and interest from the due date of the employer's return 
relating to such taxes for the period in which the wages are paid.
    (2) Example. The provisions of this paragraph may be illustrated by 
the following example:

    Example. Pursuant to a wage claim of $200, A, a surety company, paid 
a net amount of $158 to B, an employee of the X Construction Company. 
This was done in accordance with A's payment bond covering a private 
construction job on which B was an employee. If X Construction Company 
fails to make timely payment or deposit of $42.00, the amount of tax 
required by subtitle C of the Code to be deducted and withheld from, a 
$200 wage payment to B, A becomes personally liable for $42.00 (i.e., an 
amount equal to the unpaid taxes), plus interest upon this amount from 
the due date of X's return.

    (b) Personal liability where funds are supplied--(1) In general. A 
lender, surety, or other person who--
    (i) Advances funds to or for the account of an employer for the 
specific purpose of paying wages of the employees of that employer, and
    (ii) At the time the funds are advanced, has actual notice or 
knowledge (within the meaning of section 6323(i)(1)) that the employer 
does not intend to, or will not be able to, make timely payment or 
deposit of the amounts of tax required by subtitle C of the Code to be 
deducted and withheld by the employer from those wages,

shall be liable in his own person and estate for payment to the United 
States of an amount equal to the sum of the taxes which are required by 
subtitle C of the Code to be deducted and withheld from wages paid on or 
after January 1, 1967, and which are not paid over to the United States 
by the employer, and interest from the due date of the employer's return 
relating to such taxes. However, the liability of the lender, surety, or 
other person shall not exceed 25 percent of the amount supplied by him 
for the payment of wages. The preceding sentence and the second sentence 
of section 3505(b) limit the liability of a lender, surety, or other 
person arising solely by reason of section 3505, and they do not limit 
the liability which the lender, surety or other person may incur to the 
United States as a third-party beneficiary of an agreement between the 
lender, surety, or other person and the employer. The liability of a 
lender, surety, or other person does not include penalties imposed on 
the taxpayer.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. D, a savings and loan association, advances $10,000 to Y 
for the specific purpose of paying the net wages of Y's employees. D 
advances those funds with knowledge that Y will not be able to make 
timely payment of the taxes required to be deducted and withheld from 
these wages by subtitle C of the Code, Y uses the $10,000 to pay the net 
wages of his employees but fails to remit withholding taxes under 
subtitle C in the amount of $2,600. D's liability, under this section, 
is limited to $2,500, 25 percent of the

[[Page 311]]

amount supplied for the payment of wages to Y's employees.

    Example 2. E, a loan company, advances $15,000 to F, a contractor, 
for the specific purpose of paying $20,000 of net wages due to F's 
employees. E advances those funds with knowledge that F will not be able 
to make timely payment of the taxes required to be deducted and withheld 
from these wages by subtitle C of the Code. F applies $5,000 of its own 
funds toward payment of these wages. The amount of tax required to be 
deducted and withheld from the gross wages is $4,500. The limitation 
applicable to E's liability is $3,750 (25 percent of $15,000). However, 
because E furnished only a portion of the total net wages, E is liable 
for $3,375 of the taxes required to be deducted and withheld 
($4,500 x $15,000/$20,000).

    (3) Ordinary working capital loan. The provisions of section 3505(b) 
do not apply in the case of an ordinary working capital loan made to an 
employer, even though the person supplying the funds knows that part of 
the funds advanced may be used to make wage payments in the ordinary 
course of business. Generally, an ordinary working capital loan is a 
loan which is made to enable the borrower to meet current obligations as 
they arise. The person supplying the funds is not obligated to determine 
the specific use of an ordinary working capital loan or the ability of 
the employer to pay the amounts of tax required by subtitle C of the 
Code to be deducted and withheld. However, section 3505(b) is applicable 
where the person supplying the funds has actual notice or knowledge 
(within the meaning of section 6323(i)(1)) at the time of the advance 
that the funds, or a portion thereof, are to be used specifically to pay 
net wages, whether or not the written agreement under which the funds 
are advanced states a different purpose. Whether or not a lender has 
actual notice or knowledge that the funds are to be used to pay net 
wages, or merely that the funds may be so used, depends upon the facts 
and circumstances of each case. For example, a lender, who has actual 
notice or knowledge that the withheld taxes will not be paid, will be 
deemed to have actual notice or knowledge that the funds are to be used 
specifically to pay net wages where substantially all of the employer's 
ordinary operating expenses consist of salaries and wages even though 
fund for other incidental operating expenses may be supplied pursuant to 
an agreement described as a working capital loan agreement.
    (c) Definition of other person--(1) In general. As used in this 
section, the term ``other person'' means any person who directly pays 
the wages or supplies funds for the specific purpose of paying the wages 
of an employee or group of employees of another employer. It does not 
include a person acting only as agent of the employer or as agent of the 
employees.
    (2) Examples. The provisions of this paragraph may be illustrated by 
the following examples:

    Example 1. Pursuant to an agreement between L, a labor union, and M, 
an employer, M makes monthly vacation payments (of a sum equal to a 
certain percentage of the remuneration paid to each union member 
employed by M during the previous month) to a union administered pool 
plan under which each employee's rights are fully vested and 
nonforfeitable from the time the money is paid by M. Vacation allowances 
are accumulated by the plan and distributed to eligible employees during 
their vacations. L, acting merely as a conduit with respect to these 
payments, would incur no liability under section 3505.

    Example 2. N, a construction company, maintains a payroll account 
with the O Bank in which N deposits its own funds. Pursuant to an 
automated payroll service agreement between N and O, O prepares payroll 
checks and earnings statements for each of N's employees reflecting the 
net pay due each such employee. These checks are delivered to N for 
signature. After the checks are signed, O distributes them directly to 
N's employees on the regularly scheduled pay day. O, acting only in the 
capacity of a disbursing agent of N's funds, would incur no liability 
under section 3505 with respect to these payroll distributions. However, 
O may incur liability under section 3505 in the capacity of a lender if 
it supplies the funds for the payment of wages.

    (d) Payment of taxes and interest--(1) Procedure for payment. A 
lender, surety, or other person may satisfy the personal liability 
imposed upon him by section 3505 by executing Form 4219 and filing it, 
accompanied by payment of the amount of tax and interest due the United 
States, in accordance with the instructions for the form. In the event 
that the lender, surety, or other

[[Page 312]]

person does not satisfy the liability imposed by section 3505, the 
United States may collect the liability by appropriate civil proceedings 
commenced within 10 years after assessment of the tax against the 
employer.
    (2) Effect of payment--(i) In general. A person paying the amounts 
of tax required to be deducted and withheld by subtitle C of the Code as 
a result of section 3505 and this section is not required to pay the 
employer's portion of the payroll taxes upon those wages, or file an 
employer's tax return with respect to those wages, or furnish annual 
wage and tax statements to the employees.
    (ii) Amounts paid by a lender, surety, or other person. Any amounts 
paid by the lender, surety, or other person to the United States 
pursuant to this section shall be credited against the liability of the 
employer on whose behalf those payments are made and shall also reduce 
the total liability imposed upon the lender, surety, or other person 
under section 3505 and this section.
    (iii) Amounts paid by the employer. Any amounts paid to the United 
States by an employer and applied to his liability under subtitle C of 
the Code shall reduce the total liability imposed upon that employer by 
subtitle C. Such payments will also reduce the liability imposed upon a 
lender, surety, or other person under section 3505 except that such 
liability shall not be reduced by any portion of an employer's payment 
applied against the employer's liability under subtitle C which is in 
excess of the total liability imposed upon the lender, surety, or other 
person under section 3505. For example, if a lender supplies $1,000 to 
an employer for the payment of net wages, upon which $300 withholding 
tax liability is imposed, a part-payment of $25 by the employer which is 
applied to this liability would reduce the employer's total liability 
under subtitle C of the Code by that amount, but the liability imposed 
upon the lender by section 3505(b) in an amount equal to the withholding 
tax liability of the employer, which is limited to 25 percent of the 
amount supplied by him, would remain $250. However, if the employer 
makes another payment of $200 which is applied to his liability for the 
withholding taxes, the lender's liability under section 3505 
attributable to the withholding taxes is reduced by $175 ($225 less $50 
(the amount by which the employer's liability exceeds the lender's 
liability after application of the limitation)). Thus, after the second 
payment by the employer, the lender's liability under section 3505(b) is 
$75 ($250 less $175), plus interest due on the underpayment for the 
period of underpayment, to a maximum of $250, 25 percent of the funds 
supplied.
    (3) Extensions of the period for collection. Prior to the expiration 
of the 10-year period for collection after assessment against the 
employer, the lender, surety, or other third party may agree in writing 
with the district director, service center director, or compliance 
center director to extend the 10-year period for collection. The period 
so agreed upon may be extended by subsequent agreements in writing made 
before the expiration of the period previously agreed upon. If any 
timely proceeding in court for the collection of the tax and any 
applicable interest is commenced, the period during which such tax and 
interest may be collected shall be extended and shall not expire until 
the liability for the tax (or a judgment against the lender, surety, or 
other third party arising from such liability) is satisfied or becomes 
unenforceable.
    (e) Returns required by employers and statements for employees. This 
section does not relieve the employer of the responsibilities imposed 
upon him to file the returns and supply the receipts and statements 
required under subchapter A, Chapter 61 of the Code (relating to returns 
and records).
    (f) Time when liability arises. The liability under section 3505 and 
this section of a lender, surety, or other person paying or supplying 
funds for the payment of wages is incurred on the last day prescribed 
for the filing of the employer's Federal employment tax return 
(determined without regard to any extension of time) in respect of such 
wages.
    (g) Effective date. These regulations are effective on August 1, 
1995.

[T.D. 7430, 41 FR 35175, Aug. 20, 1976, as amended by T.D. 8604, 60 FR 
39110, Aug. 1, 1995]

[[Page 313]]



Sec. 31.3506-1  Companion sitting placement services.

    (a) Definitions--(1) Companion sitting placement service. For 
purposes of this section, the term ``companion sitting placement 
service'' means a person (whether or not an individual) engaged in the 
trade or business of placing sitters with individuals who wish to avail 
themselves of the sitters' services.
    (2) Sitters. For purposes of this section, the term ``sitters'' 
means individuals who furnish personal attendance, companionship, or 
household care services to children or to individuals who are elderly or 
disabled.
    (b) General rule. For purposes of subtitle C of the Internal Revenue 
Code of 1954 (relating to employment taxes), a companion sitting 
placement service shall not be treated as the employer of its sitters, 
and the sitters shall not be treated as the employees of the placement 
service. However, the rule of the preceding sentence shall apply only if 
the companion sitting placement service neither pays nor receives 
(directly or through an agent) the salary or wages of the sitters, but 
is compensated, if at all, on a fee basis by the sitters or the 
individuals for whom the sitting is performed.
    (c) Individuals deemed self-employed. Any individual who, by reason 
of this section, is deemed not to be the employee of a companion sitting 
placement service shall be deemed to be self-employed for purposes of 
the tax on self-employment income (see sections 1401-1403 and the 
regulations thereunder in Part 1 of this chapter (Income Tax 
Regulations)).
    (d) Scope of rules. The rules of this section operate only to remove 
sitters and companion sitting placement services from the employee-
employer relationship when, under Secs. 31.3121(d)-1 and 31.3121(d)-2, 
that relationship would otherwise exist. Thus, if, under 
Secs. 31.3121(d)-1 and 31.3121(d)-2, a sitter is considered to be the 
employee of the individual for whom the sitting is performed rather than 
the employee of the companion sitting placement service, this section 
has no effect upon that employee-employer relationship.
    (e) Examples. The provisions of this section may be illustrated by 
the following examples:

    Example 1. X is an agency that places babysitters with individuals 
who desire babysitting services. X furnishes all the sitters with an 
instruction manual regarding their conduct and appearance, requires them 
to file semimonthly reports, and determines the total fee to be charged 
the individual for whom the sitting is performed. Individuals who need a 
babysitter contact the agency, are informed of the charges, and, if 
agreement is reached, a sitter is sent to perform the services. The 
sitter collects the entire amount of the charges and remits a percentage 
to X as a fee for the placement. X is a companion sitting placement 
service within the meaning of paragraph (a)(1) of this section. 
Therefore, since the agency does not actually pay or receive the wages 
of the sitters, X is not treated as the employer of the sitters for 
purposes of this subtitle. The sitters are deemed to be self-employed 
for the purpose of the tax imposed by section 1401.

    Example 2. Assume the same facts as in example 1, except that the 
individual for whom the sitting is performed pays to X the entire amount 
of the charges. X retains a percentage and pays the difference to the 
sitter. Since X actually receives and pays the wages of the sitters, X 
is the employer of the sitters.

    Example 3. As a service to the community a neighborhood association 
maintains a list of individuals who are available to babysit. Parents in 
need of a sitter contact the association and are provided with a list of 
names and telephone numbers. The association charges no fee for the 
service and takes no action other than compiling the list of sitters and 
making it available to members of the community. Issues such as hours of 
work, amount of payment, and the method by which the services are 
performed are all resolved between the sitter and parent. A, a parent, 
used the list to hire B to sit for A's child. B performs the services 
four days a week in A's home and follows specific instructions given by 
A. Under Sec. 31.3121(d)-1, B is the employee of A rather than the 
employee of the neighborhood association. Consequently, this section 
does not apply and B remains the employee of A.

    (f) Effective date. This section shall apply to remuneration 
received after December 31, 1974.

(Secs. 3506 and 7805 of the Internal Revenue Code of 1954; 91 Stat. 1356 
(26 U.S.C. 3506); 68A Stat. 917 (26 U.S.C. 7805))


[T.D. 7691, 45 FR 24129, Apr. 9, 1980]



Sec. 31.3507-1  Advance payments of earned income credit.

    (a) General rule--(1) In general. Every employer paying wages after 
June 30,

[[Page 314]]

1979, to an employee with respect to whom an earned income credit 
advance payment certificate is in effect must, at the time of paying the 
wages, also pay the employee the advance earned income credit amount of 
that employee. For the purposes of applying this section and 
Sec. 31.3507-2--
    (i) In the case of an individual who receives wages which are 
subject to income tax withholding, the term ``employee'' has the same 
meaning as set forth in section 3401(c) and the regulations thereunder, 
and the term ``wages'' has the same meaning as set forth in sections 
3401(a) and 3402(e) and the regulations under those sections; and
    (ii) In the case of an individual who does not receive wages which 
are subject to income tax withholding, but who receives wages which are 
subject to employee FICA taxes, the term ``employee'' has the same 
meaning as set forth in section 3121(d) and the regulations thereunder 
and the term ``wages'' has the same meaning as set forth in section 
3121(a) and the regulations thereunder.

An individual not having wages subject to either income tax withholding 
or employee FICA taxes is not entitled to advance payments of the earned 
income credit. Moreover, notwithstanding paragraph (a)(1)(i) and (ii) of 
this section, employers are not required to pay advance earned income 
credit amounts to agricultural workers paid on a daily basis. For this 
purpose an ``agricultural worker'' is an employee who performs 
``agricultural labor'', as that term is defined in section 3121(g) and 
the regulations thereunder.
    (2) Cross references. For determination of the advance earned income 
credit amount of an employee, see paragraph (b) of this section. For 
rules relating to the treatment of the payment of an employee's advance 
earned income credit amount as equivalent to payment by the employer of 
withholding and FICA taxes, see paragraph (c) of this section. For rules 
describing the earned income credit advance payment certificate, see 
Sec. 31.3507-2 (a) and (b). For rules relating to the employee's 
furnishing of the earned income credit advance payment certificate and 
the payroll periods for which the certificate is effective, see 
Sec. 31.3507-2 (c) and (d).
    (b) Advance earned income credit amount. The advance earned income 
credit amount of an employee is determined, with respect to any payroll 
period, on the basis of the employee's wages from the employer for the 
period and in accordance with the advance amount tables prescribed by 
the Commissioner of Internal Revenue and then in effect for the payroll 
period. See, however, paragraph (c)(2) of this section. The advance 
amount paid is reflected on the employee's W-2 form as a separate item 
(and neither as a reduction of withholding nor an increase in 
compensation). For purposes of applying this section and Sec. 31.3507-2, 
the term ``payroll period'' has the meaning set forth in section 3401(b) 
and the regulations thereunder. As required by section 3507(c)(2)(A), 
these advance amount tables must be similar in form to, and coordinated 
with, the tables prescribed under section 3402 (relating to income tax 
collected at the source). Sections 3507(c)(2)(B) and 3507(c)(2)(C) 
provide, respectively, separate rules for the treatment in the advance 
amount tables of the advance earned income credit of the following two 
separate classes of employees:
    (1) Employees who are not married (within the meaning of section 
143), or employees whose spouses do not have an earned income credit 
advance payment certificate in effect; and
    (2) Employees whose spouses have an earned income credit advance 
payment certificate in effect.

If during the calendar year an employer has paid an employee amounts of 
earned income, within the meaning of section 43(c)(2)(A)(i), which in 
the aggregate equal or exceed $10,000, the employer need not make 
further payments of advance earned income credit to the employee during 
that calendar year.
    (c) Payment of advance earned income credit amount as payment of 
withholding and FICA taxes--(1) In general. (i) The provisions of this 
paragraph (c) apply for all purposes of the Internal Revenue Code of 
1954. Payments of advance earned income credit amounts pursuant to 
paragraph (a)(1) of this section

[[Page 315]]

do not constitute the payment of compensation. These payments by the 
employer are treated as made--
    (A) First, from the aggregate amount, with respect to all employees, 
required to be deducted and withheld for the payroll period under 
section 3401 (relating to income tax withholding);
    (B) Second, from the aggregate amount, with respect to all 
employees, required to be deducted for the payroll period under section 
3102 (relating to employee FICA taxes); and
    (C) Third, from the aggregate amount of the taxes imposed for the 
payroll period under section 3111 (relating to employer FICA taxes).

For purposes of the requirements of sections 3401, 3102, and 3111, as 
the case may be, and 6302, amounts equal to the advance earned income 
credit amounts paid to employees are treated as if paid to the Treasury 
Department on the day on which the wages (and advance amounts) are paid 
to the employees. The employer must report the payment and treatment of 
the advance amounts on the employer's Form 941, 941E, 942, or 943, as 
the case may be, in accordance with the applicable instructions.
    (ii) The provisions of paragraph (c)(1)(i) of this section may be 
illustrated by the following example:

    Example. Employer X has ten employees, each of whom is entitled to 
advance earned income credit payment of $10. The total of advance 
amounts paid by the employer to the ten employees for the payroll period 
is $100. The total of income tax withholding for the payroll period is 
$90. The total of employee FICA taxes for the payroll period is $61.30, 
and the total of employer FICA taxes for the payroll period is also 
$61.30. Under the rules of paragraph (c)(1)(i) of this section, the 
total of advance amounts paid to employees is treated as if X had paid 
the Treasury Department on the day X paid the employees' wages: first, 
the $90 aggregate amount of income tax withholding; and second, $10 of 
the aggregate amount of employee FICA tax. X remains liable only for 
$112.60 of the aggregate FICA tax [$51.30+$61.30=$112.60].

    (2) Advance payments exceeding taxes due. (i) if, for any payroll 
period, the aggregate amount of advance earned income credit amounts 
required to be paid by an employer under paragraph (a)(1) of this 
section exceeds the sum of the amounts for the payroll period referred 
to in paragraphs (c)(1)(i) (A) through (C) of this section, the employer 
reduces each advance amount paid for the payroll period by an amount 
which bears the same ratio to the excess of the advance amounts as the 
subject advance amount bears to the aggregate of advance amounts for the 
payroll period. However, this paragraph (c)(2) does not apply if the 
employer makes the election provided by paragraph (c)(3) of this 
section.
    (ii) The provisions of paragraph (c)(2) of this section may be 
illustrated by the following example.

    Example. Assume the same facts as the example in paragraph 
(c)(1)(ii) of this section, except that the employer is a state 
government which does not pay FICA taxes. Under these facts, the advance 
amounts would be $10 greater than the $90 total of income tax 
withholding for the payroll period. Assume 10 employees each receiving 
$10 in advance payments. Under the rule of this paragraph (c)(2), the 
employer X reduces the amount of the advance amount paid to each 
employer by \1/10\, computed as follows: $10/$100=\1/10\. This is the 
same result as would be obtained by reducing the advance payment of $10 
for each of the ten employees by one-tenth 10/100 of the $10 excess or 
$1.00.

    (3) Election to treat excess amounts as advance tax payment. In lieu 
of reducing advance payments under paragraph (c)(2) of this section, an 
employer may elect under this paragraph (c)(3) to pay in full all 
advance earned income credit amounts. However, if no election is made, 
the employer is required to reduce advance amounts paid in accordance 
with paragraph (c)(2) of this section. The election, if made, applies to 
all advance earned income credit amounts required to be paid for the 
payroll period. The employer reflects the election on the employer's 
Form 941, 941E, 942, or 943 as the case may be, and must specify (with 
supporting computations) the amount of the excess of advance amounts 
paid and the payroll period to which the excess relates. Separate 
elections may be made for separate payroll periods. The excess of 
advance amounts paid is treated as an advance payment by the employer of 
employment taxes described in paragraph (c)(3)(i) through (iii) of this 
section and due for the period reported on the

[[Page 316]]

Form 941, 941E, 942, or 943 which includes the payroll period during 
which the excess amounts were paid. The amount of the excess advance 
payment is applied to the amounts of the employer's liability--
    (i) First, for income tax withholding due under section 3401 for the 
reporting period in which the payment is made;
    (ii) Second, for employee FICA taxes due under section 3102 for the 
reporting period in which the payment is made; and
    (iii) Third, for employer FICA taxes due under section 3111 for the 
reporting period in which the payment is made.

If the amount of the employment taxes (as described) for which the 
employer remains liable for the reporting period in which the excess 
payment is made is less than the excess payment, the employer may claim 
a refund of that portion of the excess amount paid which exceeds the 
employer's remaining liability for these taxes for the reporting period. 
This refund may be claimed, in the same manner as a refund of wage 
withholding taxes paid by the employer under section 3401, on the 
employer's Form 941, 941E, 942, or 943, as the case may be, for the 
reporting period. In the absence of a claim for refund, that portion of 
the excess amount will be applied by the Internal Revenue Service 
against the employer's liability for employment taxes reported on the 
employer's Form 941, 941E, 942, or 943, as the case may be, filed for 
the next reporting period.
    (4) Failure to make advance payments. The failure to pay an 
employee, at the time required by paragraph (a)(1) of this section, all 
or any part of an advance earned income credit amount as required by 
this section is treated, for all purposes including penalties, as a 
failure by the employer as of that time to deduct and withhold under 
chapter 24 of the Internal Revenue Code of 1954 an amount equal to the 
advance amount (or part thereof) not paid. This treatment applies to the 
failure to pay an advance amount to an eligible employee without regard 
to whether the employee is ultimately not entitled to claim the earned 
income credit (in full or in part) on a return for the year, so long as 
the employee has a valid earned income credit advance payment 
certificate in effect with the employer at the time when the wages were 
paid. If an employer fails to pay an advance earned income credit amount 
as required under this section, the advance amount will not be collected 
by the Internal Revenue Service from the employer if the employer has 
properly withheld and deposited all income taxes and FICA taxes 
applicable with respect to the employee. However, such amount may be 
collected if the employer has not properly withheld and deposited these 
taxes.

[T.D. 7766, 46 FR 10151, Feb. 2, 1981]



Sec. 31.3507-2  Earned income credit advance payment certificates.

    (a) Definition. For the purposes of this section and Sec. 31.3507-1, 
an earned income credit advance payment certificate is a statement 
furnished by an employee to the employer which--
    (1) Certifies that the employee reasonably expects to be eligible to 
receive the earned income credit provided by section 43 for the 
employee's last taxable year under subtitle A of the Internal Revenue 
Code of 1954 which begins in the calendar year in which the wages are 
paid:
    (2) Certifies that the employee does not have an earned income 
credit advance payment certificate in effect for the calendar year (in 
which the wages are paid) with respect to the payment of wages by 
another employer, and
    (3) States if the employee's spouse has an earned income credit 
advance payment certificate in effect with any employer. For the rule 
for determining if an employee's spouse has a certificate in effect, see 
paragraph (c)(3) of this section.
    (b) Form and content of earned income credit advance payment 
certificate--(1) In general. Form W-5 (Earned Income Credit Advance 
Payment Certificate) is the prescribed form for the earned income credit 
advance payment certificate. The Form W-5 must be prepared in accordance 
with the instructions applicable thereto and must set forth fully and 
clearly the data therein called for. In lieu of the prescribed form, a 
form the provisions of which are identical with those of the prescribed 
form may be used.

[[Page 317]]

    (2) Invalid certificates. A Form W-5 does not meet the requirements 
of section 3507 or this section and is invalid if it is not completed or 
signed or contains an alteration or unauthorized addition (as defined in 
Sec. 31.3402(f)(5)-1(b) (1) and (2)). Any earned income credit advance 
payment certificate which the employee clearly indicates to be false by 
oral statement or written statement to the employer must be treated by 
the employer as a certificate which is invalid as of the date of the 
employee's statement. For purposes of the preceding sentence, the term 
``employer'' includes any individual authorized by the employer to 
receive earned income credit advance payment certificates or to make 
payroll distributions. If an employer receives from an employee an 
invalid certificate, the employer must consider it a nullity with 
respect to all payments of wages thereafter to the employee and must 
inform the employee of the certificate's invalidity. The employer is not 
required to ascertain whether any completed and signed earned income 
credit advance payment certificate is correct. However, the employer 
should inform the district director if the employer has reason to 
believe that the certificate contains any incorrect statement.
    (c) When earned income credit advance payment certificate takes 
effect--(1) No previous certificate. An earned income credit advance 
payment certificate furnished the employer where no previous certificate 
is or has been in effect with the employer for that employee for the 
calendar year takes effect with--
    (i) The date of the beginning of the first payroll period ending on 
or after the date on which the certificate is received by the employer;
    (ii) The date of the first payment of wages made without regard to a 
payroll period on or after the date on which the certificate is received 
by the employer; or
    (iii) The first day of the calendar year for which the certificate 
is furnished, if that day is later than the otherwise applicable 
effective date specified in paragraph (c)(1)(i) or (ii) of this section.
    (2) Previous certificate. Except as otherwise provided in this 
paragraph (c)(2), an earned income credit advance payment certificate 
furnished the employer where a previous certificate is or has been in 
effect with the employer for that employee for the calendar year takes 
effect on the date of the first payment of wages made on or after the 
first status determination date (as defined in paragraph (c)(4) of this 
section) occurring at least thirty days after the date on which the 
certificate is received by the employer. However, if the employer so 
chooses, the employer may treat the certificate as effective on the date 
of any payment of wages made on or after the date on which the 
certificate is received by the employer (without regard to any status 
determination date).
    (3) Certificate of spouse. For the sole purpose of applying 
paragraph (a)(3) of this section, in determining if a certificate is in 
effect with respect to an employee's spouse, the spouse's certificate is 
treated as then in effect if the spouse's certificate will be or is 
reasonably expected to be in effect on the first status determination 
date following the date on which the employer receives the employee's 
certificate.
    (4) Status determination date. For the purposes of this section, the 
term ``status determination date'' means January 1, May 1, July 1, and 
October 1 of each year.
    (d) Period during which certificate remains in effect; change of 
status--(1) Period certificate remains in effect. An earned income 
credit advance payment certificate which takes effect during a calendar 
year continues in effect with respect to the employee only during that 
calendar year and until revoked by the employee or until another 
certificate takes effect. See paragraphs (d)(2) and (c)(2) of this 
section.
    (2) Change of status--(i) Revocation of certificate. If, after an 
employee has furnished an earned income credit advance payment 
certificate--
    (A) The employee no longer wishes to receive advance earned income 
credit payments; or
    (B) There has been a change of circumstances which has the effect of 
either making the employee ineligible for the earned income credit for 
the taxable year or causing a certificate to be in effect for the 
employee's spouse, then the employee must revoke the

[[Page 318]]

certificate previously furnished by furnishing the employer a new 
certificate (Form W-5 or identical form) in revocation of the earlier 
certificate. Depending upon the nature of the change of circumstances, 
the employer may be required, pursuant to the new certificate, to pay 
further advance earned income credit amounts to the employee (but in 
different amounts than previously paid to the employee). The Form W-5 
(or identical form) must be prepared in accordance with the instructions 
applicable thereto and must set forth fully and clearly the data therein 
called for. In the case of revocation due to change of circumstances, 
the new certificate in revocation must be delivered to the employer 
within ten days after the employee first learns of the change of 
circumstances. The new certificate is effective under the rules provided 
in paragraph (c)(2) of this section for later certificates. A new 
certificate furnished by an employee which is invalid within the meaning 
of paragraph (b)(2) of this section is considered a nullity with respect 
to all payments of wages thereafter to the employee. The prior 
certificate of the employee remains in effect, unless the employee 
clearly indicates by an oral or written statement to the employer that 
the prior certificate is invalid. See paragraph (b)(2) of this section.

The employer is not required to ascertain whether any employee has 
experienced a change of circumstances described in subdivision (i)(B) of 
this paragraph which necessitates the employee's furnishing a new 
certificate. However, the employer should inform the district director 
if the employer has reason to believe than an employee has experienced a 
change of circumstances as described if the employee does not deliver a 
new certificate to the employer within the ten day period.
    (ii) Change in spouse's certificate. If, after an employee has 
furnished an earned income credit advance payment certificate stating 
that a certificate is in effect for the spouse of the employee, the 
certificate of the spouse is no longer in effect, the employee may 
furnish the employer with a new certificate which reflects this change 
of circumstances.

[T.D. 7766, 46 FR 10152, Feb. 2, 1981]



     Subpart G--Administrative Provisions of Special Application to 
 Employment Taxes (Selected Provisions of Subtitle F, Internal Revenue 
                              Code of 1954)



Sec. 31.6001-1  Records in general.

    (a) Form of records. The records required by the regulations in this 
part shall be kept accurately, but no particular form is required for 
keeping the records. Such forms and systems of accounting shall be used 
as will enable the district director to ascertain whether liability for 
tax is incurred and, if so, the amount thereof.
    (b) Copies of returns, schedules, and statements. Every person who 
is required, by the regulations in this part or by instructions 
applicable to any form prescribed thereunder, to keep any copy of any 
return, schedule, statement, or other document, shall keep such copy as 
a part of his records.
    (c) Records of claimants. Any person (including an employee) who, 
pursuant to the regulations in this part, claims a refund, credit or 
abatement, shall keep a complete and detailed record with respect to the 
tax, interest, addition to the tax, additional amount, or assessable 
penalty to which the claim relates. Such record shall include any 
records required of the claimant by paragraph (b) of this section and by 
Secs. 31.6001-2 to 31.6001-5, inclusive, which relate to the claim.
    (d) Records of employees. While not mandatory (except in the case of 
claims), it is advisable for each employee to keep permanent, accurate 
records showing the name and address of each employer for whom he 
performs services as an employee, the dates of beginning and termination 
of such services, the information with respect to himself which is 
required by the regulations in this subpart to be kept by employers, and 
the statements furnished in accordance with the provisions of 
Sec. 31.6051-1.
    (e) Place and period for keeping records. (1) All records required 
by the regulations in this part shall be kept,

[[Page 319]]

by the person required to keep them, at one or more convenient and safe 
locations accessible to internal revenue officers, and shall at all 
times be available for inspection by such officers.
    (2) Except as otherwise provided in the following sentence, every 
person required by the regulations in this part to keep records in 
respect of a tax (whether or not such person incurs liability for such 
tax) shall maintain such records for at least four years after the due 
date of such tax for the return period to which the records relate, or 
the date such tax is paid, whichever is the later. The records of 
claimants required by paragraph (c) of this section shall be maintained 
for a period of at least four years after the date the claim is filed.
    (f) Cross reference. See Secs. 31.6001-2 to 31.6001-5, inclusive, 
for additional records required with respect to the Federal Insurance 
Contributions Act, the Railroad Retirement Tax Act, the Federal 
Unemployment Tax act, and the collection of income tax at source on 
wages, respectively.



Sec. 31.6001-2  Additional records under Federal Insurance Contributions Act.

    (a) In general. (1) Every employer liable for tax under the Federal 
Insurance Contributions Act shall keep records of all remuneration, 
whether in cash or in a medium other than cash, paid to his employees 
after 1954 for services (other than agricultural labor which constitutes 
or is deemed to constitute employment, domestic service in a private 
home of the employer, or service not in the course of the employer's 
trade or business) performed for him after 1936. Such records shall show 
with respect to each employee receiving such remuneration--
    (i) The name, address, and account number of the employee and such 
additional information with respect to the employee as is required by 
paragraph (c) of Sec. 31.6011(b)-2 when the employee does not advise the 
employer what his account number and name are as shown on an account 
number card issued to the employee by the Social Security 
Administration.
    (ii) The total amount and date of each payment of remuneration 
(including any sum withheld therefrom as tax or for any other reason) 
and the period of services covered by such payment.
    (iii) The amount of each such remuneration payment which constitutes 
wages subject to tax. See Secs. 31.3121(a)-1 to 31.3121(a)(12)-1, 
inclusive.
    (iv) The amount of employee tax, or any amount equivalent to 
employee tax, collected with respect to such payment, and, if collected 
at a time other than the time such payment was made, the date collected. 
See paragraph (b) of Sec. 31.3102-1 for provisions relating to 
collection of amounts equivalent to employee tax.
    (v) If the total remuneration payment (paragraph (a)(1)(ii) of this 
section) and the amount thereof which is taxable (paragraph (a)(1)(iii) 
of this section) are not equal, the reason therefor.
    (2) Every employer shall keep records of the details of each 
adjustment or settlement of taxes under the Federal Insurance 
Contributions Act made pursuant to the regulations in this part. The 
employer shall keep as a part of his records a copy of each statement 
furnished pursuant to paragraph (c) of Sec. 31.6011(a)-1.
    (3) Every employer shall keep records of all remuneration in the 
form of tips received by his employees after 1965 in the course of their 
employment and reported to him pursuant to section 6053(a). The employer 
shall keep as part of his records employee statements of tips furnished 
him pursuant to section 6053(a) (unless the information disclosed by 
such statements is recorded on another document retained by the employer 
pursuant to paragraph (a)(1) of this section) and copies of employer 
statements furnished employees pursuant to section 6053(b).
    (b) Agricultural labor, domestic service, and service not in the 
course of employer's trade or business. (1) Every employer who pays cash 
remuneration after 1954 for the performance for him after 1950 of 
agricultural labor which constitutes or is deemed to constitute 
employment, of domestic service in a private home of the employer not on 
a farm operated for profit, or of service not in the course of his trade 
or business shall keep records of all such cash remuneration with 
respect to which he incurs, or

[[Page 320]]

expects to incur, liability for the taxes imposed by the Federal 
Insurance Contributions Act, or with respect to which amounts equivalent 
to employee tax are deducted pursuant to section 3102(a). See 
Secs. 31.3101-3, 31.3111-3, and 31.3121(a)-2 for provisions relating, 
respectively, to the liability for employee tax which is incurred when 
wages are received, the liability for employer tax which is incurred 
when wages are paid, and the time when wages are paid and received. Such 
records shall show with respect to each employee receiving such cash 
remuneration--
    (i) The name of the employee.
    (ii) The account number of each employee to whom wages for such 
services are paid within the meaning of Sec. 31.3121(a)-2, and such 
additional information as is required by paragraph (c) of 
Sec. 31.6011(b)-2 when the employee does not advise the employer what 
his account number and name are as shown on an account number card 
issued to the employee by the Social Security Administration.
    (iii) The amount of such cash remuneration paid to the employee 
(including any sum withheld therefrom as tax or for any other reason) 
for agricultural labor which constitutes or is deemed to constitute 
employment, for domestic service in a private home of the employer not 
on a farm operated for profit, or for service not in the course of the 
employer's trade or business; the calendar month in which such cash 
remuneration was paid; and the character of the services for which such 
cash remuneration was paid. When the employer incurs liability for the 
taxes imposed by the Federal Insurance Contributions Act with respect to 
any such cash remuneration which he did not previously expect would be 
subject to the taxes, the amount of any such cash remuneration not 
previously made a matter of record shall be determined by the employer 
to the best of his knowledge and belief.
    (iv) The amount of employee tax, or any amount equivalent to 
employee tax, collected with respect to such cash remuneration and the 
calendar month in which collected. See paragraph (b) of Sec. 31.3102-1 
for provisions relating to collection of amounts equivalent to employee 
tax.
    (v) To the extent material to a determination of tax liability, the 
number of days during each calendar year after 1956 on which 
agricultural labor which constitutes or is deemed to constitute 
employment is performed by the employee for cash remuneration computed 
on a time basis.
    (2) Every person to whom a ``crew leader'', as that term is defined 
in section 3121(i), furnishes individuals for the performance of 
agricultural labor after December 31, 1958, shall keep records of the 
name; permanent mailing address, or if none, present address; and 
identification number, if any, of such ``crew leader''.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7001, 34 FR 
1003, Jan. 23, 1969]



Sec. 31.6001-3  Additional records under Railroad Retirement Tax Act.

    (a) Records of employers. (1) Every employer liable for tax under 
the Railroad Retirement Tax Act shall keep records of all remuneration 
(whether in money or in something which may be used in lieu of money), 
other than tips, paid to his employees after 1954 for services rendered 
to him (including ``time lost'') after 1954. Such records shall show 
with respect to each employee--
    (i) The name and address of the employee.
    (ii) The total amount and date of each payment of remuneration to 
the employee (including any sum withheld therefrom as tax or for any 
other reason) and the period of service (including any period of absence 
from active service) covered by such payment.
    (iii) The amount of such remuneration payment with respect to which 
the tax is imposed.
    (iv) The amount of employee tax collected with respect to such 
payment, and, if collected at a time other than the time such payment 
was made, the date collected.
    (v) If the total payment of remuneration (paragraph (a)(1)(ii) of 
this section) and the amount thereof with respect to which the tax is 
imposed (paragraph (a)(1)(iii) of this section) are not equal, the 
reason therefor.

[[Page 321]]

    (2) The employer shall keep records of the details of each 
adjustment or settlement of taxes under the Railroad Retirement Tax Act 
made pursuant to the regulations in this part.
    (b) Records of employee representatives. Every individual liable for 
employee representative tax under the Railroad Retirement Tax Act shall 
keep records of all remuneration (whether in money or in something which 
may be used in lieu of money) paid to him after 1954 for services 
rendered (including ``time lost'') by him as an employee representative 
after 1954. Such records shall show--
    (1) The name and address of each employee organization employing 
him.
    (2) The total amount and date of each payment of remuneration for 
services rendered as an employee representative (including any sum 
withheld therefrom as tax or for any other reason) and the period of 
service (including any period of absence from active service) covered by 
such payment.
    (3) The amount of such remuneration payment with respect to which 
the employee representative tax is imposed.
    (4) If the total payment of remuneration (paragraph (a)(2) of this 
section) and the amount thereof with respect to which the employee 
representative tax is imposed (paragraph (a)(3) of this section) are not 
equal, the reason therefor.



Sec. 31.6001-4  Additional records under Federal Unemployment Tax Act.

    (a) Records of employers. Every employer liable for tax under the 
Federal Unemployment Tax Act for any calendar year shall, with respect 
to each such year, keep such records as are necessary to establish--
    (1) The total amount of remuneration (including any sum withheld 
therefrom as tax or for any other reason) paid to his employees during 
the calendar year for services performed after 1938.
    (2) The amount of such remuneration which constitutes wages subject 
to the tax. See Sec. 31.3306(b)-1 through Sec. 31.3306(b)(8)-1.
    (3) The amount of contributions paid by him into each State 
unemployment fund, with respect to services subject to the law of such 
State, showing separately (i) payments made and neither deducted nor to 
be deducted from the remuneration of his employees, and (ii) payments 
made and deducted or to be deducted from the remuneration of his 
employees.
    (4) The information required to be shown on the prescribed return 
and the extent to which the employer is liable for the tax.
    (5) If the total remuneration paid (paragraph (a)(1) of this 
section) and the amount thereof which is subject to the tax (paragraph 
(a)(2) of this section) are not equal, the reason therefor.
    (6) To the extent material to a determination of tax liability, the 
dates, in each calendar quarter, on which each employee performed 
services not in the course of the employer's trade or business, and the 
amount of cash remuneration paid at any time for such services performed 
within such quarter See Sec. 31.3306(c)(3)-1.

The term ``remuneration,'' as used in this paragraph, includes all 
payments whether in cash or in a medium other than cash, except that the 
term does not include payments in a medium other than cash for services 
not in the course of the employer's trade or business. See 
Sec. 31.3306(b)(7)-1.
    (b) Records of persons who are not employers. Any person who employs 
individuals in employment (see Secs. 31.3306(c)-1 to 31.3306(c)-3, 
inclusive) during any calendar year but who considers that he is not an 
employer subject to the tax (see Sec. 31.3306(a)-1) shall, with respect 
to each such year, be prepared to establish by proper records 
(including, where necessary, records of the number of employees employed 
each day) that he is not an employer subject to the tax.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6658, 28 FR 
6642, June 27, 1963]



Sec. 31.6001-5  Additional records in connection with collection of income tax at source on wages.

    (a) Every employer required under section 3402 to deduct and 
withhold income tax upon the wages of employees shall keep records of 
all remuneration paid to (including tips reported by) such employees. 
Such records shall show with respect to each employee--

[[Page 322]]

    (1) The name and address of the employee, and after December 31, 
1962, the account number of the employee.
    (2) The total amount and date of each payment of remuneration 
(including any sum withheld therefrom as tax or for any other reason) 
and the period of services covered by such payment.
    (3) The amount of such remuneration payment which constitutes wages 
subject to withholding.
    (4) The amount of tax collected with respect to such remuneration 
payment, and, if collected at a time other than the time such payment 
was made, the date collected.
    (5) If the total remuneration payment (paragraph (a)(2) of this 
section) and the amount thereof which is taxable (paragraph (a)(3) of 
this section) are not equal, the reason therefor.
    (6) Copies of any statements furnished by the employee pursuant to 
paragraph (b)(12) of Sec. 31.3401(a)-1 (relating to permanent residents 
of the Virgin Islands).
    (7) Copies of any statements furnished by the employee pursuant to 
Secs. 31.3401(a)(6)-1 and 31.3401(a)(7)-1, relating to nonresident alien 
individuals.
    (8) Copies of any statements furnished by the employee pursuant to 
Sec. 31.3401(a)(8)(A)-1 (relating to residence or physical presence in a 
foreign country).
    (9) Copies of any statements furnished by the employee pursuant to 
Sec. 31.3401(a)(8)(C)-1 (relating to citizens resident in Puerto Rico).
    (10) The fair market value and date of each payment of noncash 
remuneration, made to an employee after August 9, 1955, for services 
performed as a retail commission salesman, with respect to which no 
income tax is withheld by reason of Sec. 31.3402(j)-1.
    (11)  [Reserved]
    (12) In the case of the employer for whom services are performed, 
with respect to payments made directly by him after December 31, 1955, 
under an accident or health plan (as defined in section 105 and the 
regulations thereunder)--
    (i) The beginning and ending dates of each period of absence from 
work for which any such payment was made; and
    (ii) Sufficient information to establish the amount and weekly rate 
of each such payment.
    (13) The withholding exemption certificates (Forms W-4 and W-4E) 
filed with the employer by the employee.
    (14) The agreement, if any, between the employer and the employee 
for the withholding of additional amounts of tax pursuant to 
Sec. 31.3402(i)-1.
    (15) To the extent material to a determination of tax liability, the 
dates, in each calendar quarter, on which the employee performed 
services not in the course of the employer's trade or business, and the 
amount of cash remuneration paid at any time for such services performed 
within such quarter. (See Sec. 31.3401(a)(4)-1.)
    (16) In the case of tips received by an employee after 1965 in the 
course of his employment, copies of any statements furnished by the 
employee pursuant to section 6053(a) unless the information disclosed by 
such statements is recorded on another document retained by the employer 
pursuant to the provisions of this paragraph.
    (17) Any request of an employee under section 3402(h)(3) and 
Sec. 31.3402 (h)(3)-1 to have the amount of tax to be withheld from his 
wages computed on the basis of his cumulative wages, and any notice of 
revocation thereof.

The term ``remuneration,'' as used in this paragraph, includes all 
payments whether in cash or in a medium other than cash, except that the 
term does not include payments in a medium other than cash for services 
not in the course of the employer's trade or business, and does not 
include tips received by an employee in any medium other than cash or in 
cash if such tips amount to less than $20 for any calendar month. See 
Secs. 31.3401(a)(11)-1 and 31.3401(a)(16)-1, respectively.
    (b) The employer shall keep records of the details of each 
adjustment or settlement of income tax withheld under section 3402 made 
pursuant to the regulations in this part.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 
8516, Aug. 25, 1962; T.D. 6908, 31 FR 16776, Dec. 31, 1966; T.D. 7001, 
34 FR 1003, Jan. 23, 1969; T.D. 7048, 35 FR 10292, June 24, 1970; T.D. 
7053, 35 FR 11628, July 21, 1970; T.D. 7888, 48 FR 17588, Apr. 25, 1983]


[[Page 323]]





Sec. 31.6001-6  Notice by district director requiring returns, statements, or the keeping of records.

    The district director may require any person, by notice served upon 
him, to make such returns, render such statements, or keep such specific 
records as will enable the district director to determine whether or not 
such person is liable for any of the taxes to which the regulations in 
this part have application.



Sec. 31.6011(a)-1  Returns under Federal Insurance Contributions Act.

    (a) Requirement--(1) In general. Except as otherwise provided in 
Sec. 31.6011 (a)-5, every employer required to make a return under the 
Federal Insurance Contributions Act, as in effect prior to 1955, for the 
calendar quarter ended December 31, 1954, in respect of wages other than 
wages for agricultural labor, shall make a return for each subsequent 
calendar quarter (whether or not wages are paid in such quarter) until 
he has filed a final return in accordance with Sec. 31.6011(a)-6. Except 
as otherwise provided in Sec. 31.6011(a)-5, every employer not required 
to make a return for the calendar quarter ended December 31, 1954, shall 
make a return for the first calendar quarter thereafter in which he pays 
wages, other than wages for agricultural labor, subject to the tax 
imposed by the Federal Insurance Contributions Act as in effect after 
1954, and shall make a return for each subsequent calendar quarter 
(whether or not wages are paid therein) until he has filed a final 
return in accordance with Sec. 31.6011(a)-6. Except as otherwise 
provided in Sec. 31.6011 (a)-8 and in subparagraphs (3) and (4) of this 
paragraph, Form 941 is the form prescribed for making the return 
required by this subparagraph. Such return shall not include wages for 
agricultural labor required to be reported on any return prescribed by 
subparagraph (2) of this paragraph. The return shall include wages 
received by an employee in the form of tips only to the extent of the 
tips reported by the employee to the employer in a written statement 
furnished to the employer pursuant to section 6053(a).
    (2) Employers of agricultural workers--(i) Quarterly returns for 
1955. Every employer who, at any time before October 1 of the calendar 
year 1955, incurs liability of $100 or more for the taxes imposed by the 
Federal Insurance Contributions Act with respect to wages paid in such 
year for agricultural labor shall make a return--
    (a) For the first calendar quarter of such year if the liability for 
such taxes incurred in such quarter is $100 or more,
    (b) For the period consisting of the first and second calendar 
quarters of such year if the liability for such taxes incurred in those 
quarters totals $100 or more, except that such return shall be made only 
for the second calendar quarter if a return was required under (a) of 
this subdivision and if the liability for such taxes incurred in the 
second calendar quarter is $100 or more, and
    (c) For the period consisting of the first, second, and third 
calendar quarters of such year if the liability for such taxes incurred 
in those quarters totals $100 or more, except that such return shall be 
made (1) only for the period consisting of the second and third calendar 
quarters if a return was required under (a) of this subdivision but not 
under (b) of this subdivision, and if the total liability for such taxes 
incurred in the second and third calendar quarters totals $100 or more; 
or (2) only for the third calendar quarter if a return was required 
under (b) of this subdivision, and if the liability for such taxes 
incurred in the third calendar quarter is $100 or more.

Form 943A is the form prescribed for making the return required by this 
subdivision, except that, if the return is required to be filed with the 
office of the United States Internal Revenue Service in Puerto Rico, the 
return shall be made on Form 943A-PR if the Internal Revenue Service 
furnishes Form 943A-PR to the employer for use in lieu of Form 943A (see 
Sec. 31.6091-1).
    (ii) Annual returns for 1955 and subsequent years. Every employer 
who pays wages after 1954 for agricultural labor with respect to which 
taxes are imposed by the Federal Insurance Contributions Act shall make 
a return for the first calendar year in which he pays such wages and for 
each calendar year thereafter (whether or not wages

[[Page 324]]

are paid therein) until he has filed a final return in accordance with 
Sec. 31.6011(a)-6. Form 943 is the form prescribed for making the annual 
return required by this subdivision, except that, if the return is 
required to be filed with the office of the United States Internal 
Revenue Service in Puerto Rico, the return shall be made on Form 943PR 
if the Internal Revenue Service furnishes Form 943PR to the employer for 
use in lieu of Form 943 (see Sec. 31.6091-1).
    (3) Employers of domestic workers. Form 942 is the form prescribed 
for use by every employer in making a return as required under paragraph 
(a)(1) of this section in respect of wages, as defined in the Federal 
Insurance Contributions Act, paid by him in any calendar quarter for 
domestic service in a private home of the employer not on a farm 
operated for profit. If, however, the employer is required under 
paragraph (a)(1) of this section to make a return on Form 941 for such 
calendar quarter, such employer, at his election may--
    (i) Report all wages on Form 941, or
    (ii) Report on Form 942 the wages for domestic service in a private 
home of the employer not on a farm operated for profit and omit such 
wages from the return on Form 941.

An employer entitled to make the election referred to in the preceding 
sentence who has chosen one method shall not change to the other method 
without first notifying the internal revenue office with which he is 
required to file his returns that he will thereafter use such other 
method. See, however, Sec. 31.6011(a)-6 relating to final returns on 
Form 941. An employer who makes a return of tax on form 942 pursuant to 
this section shall submit as part of such return for a period ending 
December 31, or for any period for which such return is made as a final 
return, the Internal Revenue Service copy of a Form W-2 for each 
employee with respect to whose wages tax is reported thereon. The 
provisions of this subparagraph shall not apply to any employer filing a 
return on Forms 941PR or 942PR (see Sec. 31.6091-1).
    (4) Employers in Puerto Rico or the Virgin Islands. Form 941PR is 
the form prescribed for use in making the return required under 
paragraph (a)(1) of this section in the case of every employer who is 
required to file such return with the office of the United States 
Internal Revenue Service in Puerto Rico, except that the return shall be 
made on Form 941VI if the Internal Revenue Service furnishes Form 941VI 
to the employer for use in lieu of Form 941PR. However, Form 941 is the 
form prescribed for making such return in the case of every such 
employer who is required pursuant to Sec. 31.6011(a)-4 to make a return 
of income tax withheld from wages.
    (b) When to report wages. Wages with respect to which taxes are 
imposed by the Federal Insurance contributions Act shall be reported in 
the return of such taxes required under this section or Sec. 31.6011(a)-
5 for the return period in which they are actually paid unless they were 
constructively paid in a prior return period, in which case such wages 
shall be reported only in the return for such prior period. However, if 
such wages are deemed to be paid in a later return period, they shall be 
reported only in the return for such later period. See Sec. 31.3121(a)-2 
relating to the time when wages are paid or deemed to be paid.
    (c) Correction of returns or schedules. If in a return required 
under this section or Sec. 31.6011(a)-5, or in any other manner, the 
employer fails to report, or incorrectly reports, the name, account 
number, or wages of an employee, the employer shall furnish to the 
internal revenue office with which he is required to file his returns a 
written statement fully explaining the omission or error; except that 
such statement is not required by this paragraph if correction of the 
omission or error is made in connection with a supplemental return, 
adjustment, credit, refund, or abatement. The employer shall include in 
such statement his identification number (except that an identification 
number need not be included if the omission or error is with respect to 
information required to be reported on a return on Form 942), each 
return period for which the data were omitted or for which the incorrect 
data were furnished, the data incorrectly reported for each period, and 
the data which should have been reported. A copy of

[[Page 325]]

such statement shall be retained by the employer as a part of his 
records under Sec. 31.6001-2. No particular form is prescribed for 
making such statement, but if printed forms are desired, any internal 
revenue office will supply copies of Form 941c or Form 941cPR, whichever 
is appropriate, upon request.
    (d) Returns by employees in respect of tips. If--
    (1) An employee, during a calendar year, is paid wages in the form 
of tips which are subject to the tax under section 3101, and
    (2) Any portion of the tax under section 3101 in respect of such 
wages cannot be collected by the employer from wages (exclusive of tips) 
of such employee or from funds turned over by the employee to the 
employer,

the employee shall make a return for the calendar year in respect of the 
employee tax not collected by the employer. Except as otherwise provided 
in this subparagraph, the return shall be made on Form 1040. The form to 
be used by residents of the Virgin Islands, Guam, or American Samoa is 
Form 1040SS. In the case of a resident of Puerto Rico who is not 
required to make a return of income under section 6012(a), the form to 
be used is Form 1040SS, except that Form 1040PR shall be used if it is 
furnished by the Internal Revenue Service to such resident for use in 
lieu of Form 1040SS.
    (e) Time and place for filing returns. For provisions relating to 
the time and place for filing returns, see Secs. 31.6071 (a)-1 and 
31.6091-1, respectively.
    (f) Wages paid in nonconvertible foreign currency. For provisions 
relating to returns filed by certain employers who pay wages in 
nonconvertible foreign currency, see Sec. 301.6316-7 of this chapter 
(Regulations on Procedure and Administration).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7001, 34 FR 
1004, Jan. 23, 1969; T.D. 7001, 34 FR 1826, Feb. 7, 1969; T.D. 7200, 37 
FR 16544, Aug. 16, 1972; T.D. 7351, 40 FR 17144, Apr. 17, 1975; T.D. 
7396, 41 FR 1903, Jan. 13, 1976]



Sec. 31.6011(a)-2  Returns under Railroad Retirement Tax Act.

    (a) Requirement--(1) Employers. Every employer shall make a return 
for the first return period after 1954 within which compensation taxable 
under the Railroad Retirement Tax Act is paid to his employee or 
employees for services rendered after 1954, and for each subsequent 
return period (whether or not taxable compensation is paid therein) 
until he has filed a final return in accordance with Sec. 31.6011(a)-6. 
For calendar years after 1975, the return period shall be the calendar 
year; for calendar years prior to 1976, the return period shall be the 
calendar quarter. Form CT-1 is the form prescribed for making the return 
required under this paragraph. One original and a duplicate of each 
return on Form CT-1 shall be filed with the director of the service 
center.
    (2) Employee representatives. Every employee representative shall 
make a return for the first calendar quarter after 1954 within which he 
is paid taxable compensation for services rendered after 1954 as an 
employee representative, and for each subsequent calendar quarter 
(whether or not he is paid taxable compensation therein) until he has 
filed a final return in accordance with Sec. 31.6011(a)-6. Form CT-2 is 
the form prescribed for making the return required under this 
subparagraph. One original and a duplicate of each return on Form CT-2 
shall be filed with the director of the service center.
    (b) When to report compensation--(1) In general. Except as otherwise 
provided in subparagraph (2) of this paragraph, compensation taxable 
under the Railroad Retirement Tax Act shall be reported in the return 
required under this section for the period in which it is deemed, under 
paragraph (d) of Sec. 31.3231(e)-1 to be paid, unless under such section 
the compensation may be deemed to be paid in more than one return 
period, in which case it shall be reported only in the return for the 
first return period in which it is deemed to be paid.
    (2) Pre-1976 returns of employers required by State law to pay 
compensation on weekly basis--(i) In general. If any employer is 
required by the laws of any State to pay compensation weekly in any 
calendar year prior to 1976, the return of tax with respect to such 
compensation may, at the election of such employer, cover all payroll 
weeks which, or the major part of which, fall

[[Page 326]]

within the period for which a return of tax is required by paragraph 
(a)(1) of this section. This provision shall not apply, however, to any 
payroll week which falls in two calendar years. Any employer who elects 
to file a return as provided in this subparagraph shall notify the 
district director in writing of such election and shall include therein 
a statement setting forth the facts which entitle him to make the 
election. Such notice shall be in duplicate and shall be attached to the 
original and duplicate of the return for the first period to which such 
election applies. Any election so made shall be binding upon the 
employer with respect to all returns subsequently made by him until the 
director of the service center authorizes or directs the employer to 
make a return on a different basis. For the purpose of determining the 
time when compensation is deemed to be paid in accordance with paragraph 
(d) of Sec. 31.3231(e)-1 and of determining the due date of a return in 
accordance with paragraph (b) of Sec. 31.6071(a)-1, the calendar month 
following the period covered by the return of an employer making such 
election is the same calendar month which would be determinative for 
such purposes if the employer had not made the election.
    (ii) Prior elections. An election made by an employer, pursuant to 
the provisions of 26 CFR (1939) 410.501(b) (Regulations 100) or of 26 
CFR (1939) 411.601 (b) (Regulations 114), which is in force and effect 
at the time the employer makes his first return under this section shall 
satisfy the requirements of paragraph (b)(2)(i) of this section with 
respect to the making of an election and shall be binding upon the 
employer with respect to all returns made by him under this section 
until the director of the service center authorizes or directs the 
employer to make a return on a different basis.
    (iii) Example. Employer X is required by State law to pay his 
employees within 6 days after the compensation is earned. In compliance 
with the State law, employer X, for services rendered to him for the 
payroll week of June 27 to July 2, 1955, pays his employees on the last-
named date. June 1955 is the last month of a period for which a return 
of tax is required by paragraph (a)(1) of this section. Employer X may 
elect to include in the return required by paragraph (a)(1) of this 
section for the period April 1 to June 30, 1955, the compensation paid 
to his employees for the payroll week of June 27 to July 2, 1955, 
inclusive, although the compensation for July 1 and 2 falls within 
another period for which a return is required by paragraph (a)(1) of 
this section. If, in this example, the payroll week ended on July 5, 
1955, the compensation paid for the payroll week of June 29 to July 5 
would be included in the return period in which July falls although the 
compensation earned for June 29 and 30 fell in a prior return period 
under the general rule.
    (c) Time and place for filing returns. For provisions relating to 
the time and place for filing returns, see Secs. 31.6071 (a)-1 and 
31.6091-1, respectively.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7396, 41 FR 1903, Jan. 13, 1976]



Sec. 31.6011(a)-3  Returns under Federal Unemployment Tax Act.

    (a) Requirement. Every person shall make a return of tax under the 
Federal Unemployment Tax Act for each calendar year with respect to 
which he is an employer as defined in Sec. 31.3306(a)-1. Except as 
otherwise provided in Sec. 31.6011 (a)-8, Form 940 is the form 
prescribed for use in making the return.
    (b) When to report wages. Wages taxable under the Federal 
Unemployment Tax Act shall be reported in the return required under this 
section for the return period in which they are actually paid unless 
they were constructively paid in a prior return period, in which case 
such wages shall be reported only in the return for such prior period.
    (c) Time and place for filing returns. For provisons relating to the 
time and place for filing returns, see Secs. 31.6071 (a)-1 and 31.6091-
1, respectively.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7200, 37 FR 
16544, Aug. 16, 1972]



Sec. 31.6011(a)-3A  Returns of the railroad unemployment repayment tax.

    (a) Requirement--(1) Employers. Every rail employer (as defined in 
section 3323(a) and section 1 of the Railroad Unemployment Insurance 
Act) shall

[[Page 327]]

make a return of the tax imposed by section 3321(a) (relating to the 
railroad unemployment repayment tax) for each taxable period (as defined 
in section 3322(a)) with respect to the total rail wages (as defined in 
section 3323(b)) paid by the rail employer during the taxable period. 
Form CT-1 is the form prescribed for use in making the return. One 
original and a duplicate of each return on Form CT-1 shall be filed with 
the director of the service center as designated in the instructions to 
Form CT-1. Rail wages taxable under section 3321(a) shall be reported in 
the return required under this section for the return period in which 
they are actually paid unless they were constructively paid in a prior 
return period, in which case such wages shall be reported only in the 
return for such prior period.
    (2) Employee representatives. Each employee representative (as 
defined in section 3323(d)(2) and section 1 of the Railroad Unemployment 
Insurance Act) shall make a return of the tax imposed by section 3321(b) 
on the rail wages paid to him (as determined under section 3321(b)(2)) 
during each calendar quarter within a taxable period. Form CT-2 is the 
form prescribed for use in making the return. One original and a 
duplicate of each return on Form CT-2 shall be filed with the director 
of the service center as designated in the instructions to Form CT-2. 
Rail wages taxable under section 3321(b) shall be reported in the return 
required under this section for the return period in which they are 
actually paid unless they were constructively paid in a prior return 
period, in which case such wages shall be reported only in the return 
for such prior period.
    (b) Time and place for filing returns. For provisions relating to 
the time and place for filing returns, see Sec. 31.6071(a)-1A and 
Sec. 31.6091-1, respectively.

[T.D. 8105, 51 FR 40168, Nov. 5, 1986. Redesignated and amended at T.D. 
8227, 53 FR 34736, Sept. 8, 1988]



Sec. 31.6011(a)-4  Returns of income tax withheld.

    (a) Withheld from wages--(1) In general. Except as otherwise 
provided in paragraphs (a)(3) and (b) of this section, and in 
Sec. 31.6011(a)-5, every person required to make a return of income tax 
withheld from wages pursuant to section 3402 shall make a return for the 
first calendar quarter in which the person is required to deduct and 
withhold such tax and for each subsequent calendar quarter, whether or 
not wages are paid therein, until the person has filed a final return in 
accordance with Sec. 31.6011(a)-6. Except as otherwise provided in 
paragraphs (a) (2) and (3) and (b) of this section, and in 
Sec. 31.6011(a)-8, Form 941 is the form prescribed for making the return 
required under this paragraph.
    (2) Wages paid for domestic service. Form 942 is the form prescribed 
for making the return required under subparagraph (1) of this paragraph 
with respect to income tax withheld, pursuant to an agreement under 
section 3402(p), from wages paid for domestic service in a private home 
of the employer not on a farm operated for profit. The preceding 
sentence shall not apply in the case of an employer who has elected 
under paragraph (a)(3) of Sec. 31.6011(a)-1 to use Form 941 as his 
return with respect to such payments for purposes of the Federal 
Insurance Contributions Act. For the requirements relating to Form 942 
with respect to qualified State individual income taxes, see paragraph 
(d)(3)(iv) of Sec. 301.6361-1.
    (3) Wages paid for agricultural labor. Every person shall make a 
return of income tax withheld, pursuant to an agreement under section 
3402(p), from wages paid for agricultural labor for the first calendar 
year in which he is required (by reason of such agreement) to deduct and 
withhold such tax and for each subsequent calendar year (whether or not 
wages for agricultural labor are paid therein) until he has filed a 
final return in accordance with Sec. 31.6011 (a)-6. Form 943 is the form 
prescribed for making the return required under this subparagraph. For 
the requirements relating to Form 943 with respect to qualified State 
individual income taxes, see paragraph (d)(3)(iv) of Sec. 301.6361-1.
    (b) Withheld from nonpayroll payments. Every person required to 
withhold tax from nonpayroll payments for calendar year 1994 must make a 
return for calendar year 1994 and for any subsequent

[[Page 328]]

calendar year in which the person is required to withhold such tax until 
the person makes a final return in accordance with Sec. 31.6011(a)-6. 
Every person not required to withhold tax from nonpayroll payments for 
calendar year 1994 must make a return for the first calendar year after 
1994 in which the person is required to withhold such tax and for any 
subsequent calendar year in which the person is required to withhold 
such tax until the person makes a final return in accordance with 
Sec. 31.6011(a)-6. Form 945, Annual Return of Withheld Federal Income 
Tax, is the form prescribed for making the return required under this 
paragraph (b). Nonpayroll payments are--
    (1) Certain gambling winnings subject to withholding under section 
3402(q);
    (2) Retirement pay for services in the Armed Forces of the United 
States subject to withholding under section 3402;
    (3) Certain annuities as described in section 3402(o)(1)(B);
    (4) Pensions, annuities, IRAs, and certain other deferred income 
subject to withholding under section 3405; and
    (5) Reportable payments subject to backup withholding under section 
3406.
    (c) Time and place for filing returns. For provisions relating to 
the time and place for filing returns, see Secs. 31.6071 (a)-1 and 
31.6091-1, respectively.

(86 Stat. 944, 26 U.S.C. 6364; and 68A Stat. 917, 26 U.S.C. 7805; 68A 
Stat. 747, 26 U.S.C. 6051)


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 7096, 36 FR 
5217, Mar. 18, 1971; T.D. 7200, 37 FR 16544, Aug. 16, 1972; T.D. 7577, 
43 FR 59359, Dec. 20, 1978; T.D. 7580, 43 FR 60159, Dec 26, 1978; T.D. 
8504, 58 FR 68035, Dec. 23, 1993; T.D. 8624, 60 FR 53510, Oct. 16, 1995; 
T.D. 8672, 61 FR 27008, May 30, 1996]



Sec. 31.6011(a)-5  Monthly returns.

    (a) In general--(1) Requirement. The provisions of this section are 
applicable in respect of the taxes reportable on Form 941, Form 941PR, 
Form 941VI, or Form 945 pursuant to Sec. 31.6011(a)-1 or Sec. 31.6011 
(a)-4. An employer (or other person) who is required by Sec. 31.6011(a)-
1 or Sec. 31.6011(a)-4 to make quarterly returns on any such form shall, 
in lieu of making such quarterly returns, make returns of such taxes in 
accordance with the provisions of this section if he is so notified in 
writing by the district director. The district director may so notify 
any employer (or other person) (i) who, by reason of notification as 
provided in Sec. 301.7512-1 of this chapter (Regulations on Procedure 
and Administration), is required to comply with the provisions of such 
Sec. 301.7512-1, or (ii) who has failed to (a) make any such return on 
Form 941, Form 941PR, Form 941VI, or Form 945 (b) pay tax reportable on 
any such form, or (c) deposit any such tax as required under the 
provisions of Sec. 31.6302(c)-1. Every employer (or other person) 
notified by the district director shall make a return for the calendar 
month in which the notice is received and for each calendar month 
thereafter (whether or not wages are paid in any such month) until he 
has filed a final return or is required to make quarterly returns 
pursuant to notification as provided in subparagraph (2) of this 
paragraph. However, if the notice provided for in this subparagraph is 
received after the close of the first calendar month of a calendar 
quarter, the first return under this section shall be made for the 
period beginning with the first day of such quarter and ending with the 
last day of the month in which the notice is received. Each return 
required under this section shall be made on the form prescribed for 
making the return which would otherwise be required of the employer (or 
other person) under the provisions of Sec. 31.6011 (a)-1 or 
Sec. 31.6011(a)-4, except that, if some other form is furnished by the 
district director for use in lieu of such prescribed form, the return 
shall be made on such other form.
    (2) Termination of requirement. The district director, in his 
discretion, may notify the employer in writing that he shall discontinue 
the filing of monthly returns under this section. If the employer is so 
notified, the last month for which a return shall be made under this 
section is the last month of the calendar quarter in which such notice 
of discontinuance is received. Thereafter, the employer shall make 
quarterly returns in accordance with the provisions of Sec. 31.6011(a)-1 
or Sec. 31.6011(a)-4.
    (b) Information returns--(1) Federal Insurance Contributions Act. 
Every employer who is required under paragraph (a) of this section to 
make a return of

[[Page 329]]

tax under the Federal Insurance Contributions Act for any period within 
a calendar quarter shall make an information return for such calendar 
quarter. Such return shall be made on Schedule A of Form 941, or the 
equivalent schedule of Form 941PR or Form 941VI, except that, if some 
other form or schedule is furnished by the district director for the 
purpose of making such return, the return shall be made on such other 
form or schedule. The informaiton reported on such return shall include, 
with respect to each employee to whom the employer pays wages as defined 
in the Federal Insurance Contributions act, the account number of the 
employee, the employee's name, the total amount of wages paid by the 
employer to the employee during the calendar quarter, and such other 
information as may be called for on the form provided for making such 
return.
    (2) Information returns on Form W-3 and Social Security 
Administration copies of Form W-2. See Sec. 31.6051-2 for requirements 
with respect to information returns on Form W-3 and Social Security 
Administration copies of Form W-2.
    (c) Time and place for filing returns. For provisions relating to 
the time and place for filing returns, see Secs. 31.6071 (a)-1 and 
31.6091-1, respectively.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7351, 40 FR 17145, Apr. 17, 1975; T.D. 7580, 43 FR 
60154, Dec. 26, 1978; T.D. 8637, 60 FR 66133, Dec. 21, 1995]



Sec. 31.6011(a)-6  Final returns.

    (a) In general--(1) Federal Insurance Contributions Act; income tax 
withheld from wages and nonpayroll payments. An employer (or other 
person) who is required to make a return on a particular form pursuant 
to Sec. 31.6011(a)-1, Sec. 31.6011(a)-4, or Sec. 31.6011(a)-5, and who 
in any return period ceases to pay wages or nonpayroll payments in 
respect of which he is required to make a return on that form, must make 
the return for the period as a final return. Each return made as a final 
return shall be marked ``Final return'' by the person filing the return. 
Every such person filing a final return (other than a final return on 
Form 942 or Form 943) must furnish information showing the date of the 
last payment of wages (as defined in section 3121(a) or section 
3401(a)), and, if appropriate, the date of the last payment of 
nonpayroll payments defined in Sec. 31.6011(a)-4(b). An employer (other 
than an employer making returns on Form 942) who has only temporarily 
ceased to pay wages, because of seasonal activities or for other 
reasons, shall not make a final return but shall continue to file 
returns. If (i) for any return period an employer makes a final return 
on a particular form, and (ii) after the close of such period the 
employer pays wages, as defined in section 3121(a) or section 3401(a), 
in respect of which the same or a different return form is prescribed, 
such employer shall make returns on the appropriate return form. For 
example, if an employer who has filed a final return on Form 941 pays 
wages only for domestic service in his private home not on a farm 
operated for profit, the employer is required to make returns on Form 
942 in respect of such wages.
    (2) Railroad Retirement Tax Act-- (i) Form CT-1. An employer 
required to make returns on Form CT-1 who in any return period ceases to 
pay taxable compensation shall make the return on Form CT-1 for such 
period as a final return. Such return shall be marked ``Final return'' 
by the person filing the return, and such person shall furnish 
information showing the date of the last payment of taxable 
compensation. An employer who has only temporarily ceased to pay taxable 
compensation shall continue to file returns on Form CT-1.
    (ii) Form CT-2. An employee representative required to make returns 
on Form CT-2 who in any calendar quarter ceases to be paid taxable 
compensation for services as an employee representative shall make the 
return on Form CT-2 for such quarter as a final return. Such return 
shall be marked ``Final return'' by the person filing the return, and 
such person shall furnish information showing the date of the last 
payment of taxable compensation. An employee representative who only 
temporarily ceases to be paid taxable compensation for services as an 
employee representative shall continue to file returns on Form CT-2.

[[Page 330]]

    (3) Federal Unemployment Tax Act. An employer required to make a 
return on Form 940 for a calendar year in which he ceases to be an 
employer, as defined in Sec. 31.3306(a)-1, because of the 
discontinuance, sale, or other transfer of his business, shall make such 
return as a final return. Such return shall be marked ``Final return'' 
by the person filing the return.
    (b) Statement to accompany final return. There shall be executed as 
a part of each final return, except in the case of a final return on 
Form 942, a statement showing the address at which the records required 
by the regulations in this part will be kept, the name of the person 
keeping such records, and, if the business of an employer has been sold 
or otherwise transferred to another person, the name and address of such 
person and the date on which such sale or other transfer took place. If 
no such sale or transfer occurred or the employer does not know the name 
of the person to whom the business was sold or transferred, that fact 
should be included in the statement. Such statement shall include any 
information required by this section as to the date of the last payment 
of wages or compensation. If the statement is executed as a part of a 
final return on Form CT-1 or Form CT-2, such statement shall be 
furnished in duplicate.
    (c) Time and place for filing returns. For provisions relating to 
the time and place for filing returns, see Secs. 31.6071 (a)-1 and 
31.6091-1, respectively.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7396, 41 FR 1904, Jan. 14, 1976; T.D. 8637, 60 FR 66133, 
Dec. 21, 1995]



Sec. 31.6011(a)-7  Execution of returns.

    (a) In general. Each return required under the regulations in this 
part, together with any prescribed copies or supporting data, shall be 
filled in and disposed of in accordance with the forms, instructions, 
and regulations applicable thereto. The return shall be carefully 
prepared so as fully and accurately to set forth the data required to be 
furnished therein. Returns which have not been so prepared will not be 
accepted as meeting the requirements of the regulations in this part. 
The return may be made by an agent in the name of the person required to 
make the return if an acceptable power of attorney is filed with the 
internal revenue office with which such person is required to file his 
returns and if such return includes all taxes required to be reported by 
such person on such return for the period covered by the return. Only 
one return on any one prescribed form for a return period shall be filed 
by or for a taxpayer. Any supplemental return made on such form in 
accordance with Sec. 31.6205-1 shall constitute a part of the return 
which it supplements. Except as may be provided under procedures 
authorized by the Commissioner with respect ot taxes imposed by the 
Railroad Retirement Tax Act, consolidated returns of two or more 
employers are not permitted, as for example, returns of a parent and a 
subsidiary corporation. For provisions relating to the filing of returns 
of the taxes imposed by the Federal Insurance Contributions Act and of 
income tax withheld under section 3402 in the case of governmental 
employers see Secs. 31.3122 and 31.3404-1.
    (b) Use of prescribed forms--(1) In general. Copies of the 
prescribed return forms will so far as possible be regularly furnished 
taxpayers by the Internal Revenue Service. A taxpayer will not be 
excused from making a return, however, by the fact that no return form 
has been furnished to him. Taxpayers not supplied with the proper forms 
should make application therefor to an internal revenue office in ample 
time to have their returns prepared, verified, and filed on or before 
the due date with the internal revenue office with which they are 
required to file their returns. See Secs. 31.6071 (a)-1 and 31.6091-1, 
relating, respectively, to the time and place for filing returns. In the 
absence of a prescribed return form, a statement made by a taxpayer 
disclosing the aggregate amount of wages or compensation reportable on 
such form for the period in respect of which a return is required and 
the amount of taxes due may be accepted as a tentative return. If filed 
within the prescribed time, the statement so made will relieve the 
taxpayer from liability for the addition to tax imposed for the 
delinquent filing of the return, provided that without unnecessary

[[Page 331]]

delay such tentative return is supplemented by a return made on the 
proper form. For additions to the tax in case of failure to file a 
return within the prescribed time, see the provisions of Sec. 301.6651-1 
of this chapter (Regulations on Procedure and Administration).

In any case where the use of Form W-2 is required from the purpose of 
making a return or reporting information, such requirement may be 
satisfied by submitting the information required by such form on 
magnetic tape or by other media, provided that the prior consent of the 
Commissioner of Social Security (or other authorized officer or employee 
thereof has been obtained.
    (c) Signing and verification. For provisions relating to the signing 
of returns, see Sec. 31.6061-1. For provisions relating to the verifying 
of returns, see Sec. 31.6065(a)-1.
    (d) Reporting of identifying numbers. For provisions relating to the 
reporting of identifying number on returns required under the 
regulations in this part, see Sec. 31.6109-1.

(68A Stat. 747, 26 U.S.C. 6051; and 68A Stat. 917, 26 U.S.C. 7805)


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 
8516, Aug. 25, 1962; T.D. 6883, 31 FR 6590, May 3, 1966; T.D. 7276, 38 
FR 11345, May 7, 1973; T.D. 7396, 41 FR 1904, Jan. 13, 1976; T.D. 7580, 
43 FR 60159, Dec. 26, 1978]



Sec. 31.6011(a)-8  Composite return in lieu of specified form.

    The Commissioner may authorize the use, at the option of the 
employer, of a composite return in lieu of any form specified in this 
part for use by an employer, subject to such conditions, limitations, 
and special rules governing the preparation, execution, filing, and 
correction thereof as the Commissioner may deem appropriate. Such 
composite return shall consist of a form prescribed ty the Commissioner 
and an attachment or attachments of magnetic tape or other approved 
media. Notwithstanding any provisions in this part to the contrary, a 
single form and attachment may comprise the returns of more than one 
employer. To the extent that the use of a compsoite return has been 
authorized by the Commissioner, references in this part to a specific 
form for use by the employer shall be deemed to refer also to a 
composite return under this section.

[T.D. 7200, 37 FR 16544, Aug. 16, 1972]



Sec. 31.6011(a)-9  Instructions to forms control as to which form is to be used.

    Notwithstanding provisions in this part which specify the use of a 
particular form for a return or other document required by this part, 
the use of a different form may be required by the latter form's 
instructions. In such case, the latter form shall be completed in 
accordance with its instructions.

[T.D. 7351, 40 FR 17145, Apr. 17, 1975]



Sec. 31.6011 (a)-10  Instructions to forms may waive filing requirement in case of no liability tax returns.

    Notwithstanding provisions in this part which require that a tax 
return be filed, the instructions to the form on which a return of tax 
is otherwise required by this part to be made may waive such requirement 
with respect to a particular class or classes of no liability tax 
returns. Returns in a class for which such requirement has been so 
waived need not be made.
    This Treasury decision is not adverse to any taxpayer. For this 
reason, it is found unnecessary to issue this Treasury decision with 
notice and public procedure under subsection (b) of section 553 of title 
5 of the United States Code or subject to the effective date limitation 
of subsection (d) of that section.

[T.D. 8229, 53 FR 35811, Sept. 15, 1988]



Sec. 31.6011(b)-1  Employers' identification numbers.

    (a) Requirement of application--(1) In general--(i) Before October 
1, 1962. Except as provided in paragraph (b) of this section, every 
employer who on any day after December 31, 1954, and before October 1, 
1962, has in his employ one or more individuals in employment for wages 
subject to the taxes imposed by the Federal Insurance Contributions Act, 
but who prior to such day neither has been assigned an identification 
number nor has applied therefor, shall make an application on Form SS-4 
for an identification number.

[[Page 332]]

    (ii) On or after October 1, 1962. Except as provided in paragraph 
(b) of this section, every employer who on any day after September 30, 
1962, has in his employ one or more individuals in employment for wages 
which are subject to the taxes imposed by the Federal Insurance 
Contributions act or which are subject to the withholding of income tax 
from wages under section 3402, but who prior to such day neither has 
been assigned an identification number nor has applied therefor, shall 
make an application on Form SS-4 for an identification number.
    (iii) Method of application. The application, together with any 
supplementary statement, shall be prepared in accordance with the form, 
instructions, and regulations applicable thereto, and shall set forth 
fully and clearly the data therein called for. Form SS-4 may be obtained 
from any district director or director of a service center or any 
district office of the Social Security Administration. The application 
shall be filed with the internal revenue officer designated in the 
instructions applicable to Form SS-4, or with the nearest district 
office of the Social Security Administration. The application shall be 
signed by (a) the individual, if the employer is an individual; (b) the 
president, vice president, or other principal officer, if the employer 
is a corporation; (c) a responsible and duly authorized member or 
officer having knowledge of its affairs, if the employer is a 
partnership or other unincorporated organization; or (d) the fiduciary, 
if the employer is a trust or estate. An identification number will be 
assigned to the employer in due course upon the basis of the information 
reported on the application required under this section.
    (2) Time for filing Form SS-4. The application for an identification 
number shall be filed on or before the seventh day after the first 
payment of wages to which reference is made in paragraph (a)(1) of this 
section. For provisions relating to the time when wages are paid, see 
Sec. 31.3121(a)-2 and paragraph (b) of Sec. 31.3402(a)-1.
    (b) Employers who are assigned identification numbers without 
application. An identification number may be assigned, without 
application by the employer, in the case of an employer who has in his 
employ only employees who are engaged exclusively in the performance of 
domestic service in his private home not on a farm operated for profit 
(see Sec. 31.3121(a)(7)-1. If an identification number is so assigned, 
the employer is not required to make an application on Form SS-4 for the 
number.
    (c) Crew leaders. Any person who, as a crew leader within the 
meaning of section 3121(o), furnishes individuals to perform 
agricultural labor for another person shall, on or before the first date 
on which he furnishes such individuals to perform such labor for such 
other person, advise such other person of his name; permanent mailing 
address, or if none, present address; and identification number, if any.
    (d) Use of identification number. The identification number assigned 
to an employer (other than a household employer referred to in paragraph 
(b) of this section) shall be shown in the employer's records, and shall 
be shown in his claims to the extent required by the applicable forms, 
regulations, and instructions. For provisions relating to the inclusion 
of identification numbers in returns, statements on Form W-2, and 
depositary receipts, see Sec. 31.6109-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 
8517, Aug. 25, 1962; T.D. 7012, 34 FR 7693, May 15, 1969]



Sec. 31.6011(b)-2  Employees' account numbers.

    (a) Requirement of application--(1) In general--(i) Before November 
1, 1962. Every employee who on any day after December 31, 1954, and 
before November 1, 1962, is in employment for wages subject to the taxes 
imposed by the Federal Insurance Contributions Act, but who prior to 
such day has neither secured an account number nor made application 
therefor, shall make an application on Form SS-5 for an account number.
    (ii) On or after November 1, 1962. Every employee who on any day 
after October 31, 1962, is in employment for wages which are subject to 
the taxes imposed by the Federal Insurance Contributions Act or which 
are subject to the withholding of income tax from wages under section 
3402 but who prior to

[[Page 333]]

such day has neither secured an account number nor made application 
therefore, shall make an application on Form SS-5 for an account number.
    (iii) Method of application. The application shall be prepared in 
accordance with the form, instructions, and regulations applicable 
thereto, and shall set forth fully and clearly the data therein called 
for. The employee shall file the applicaiton with any district office of 
the Social Security Administration or, if the employee is not working 
within the United States, with the district office of the Social 
Security Administration at Baltimore, Maryland. Form SS-5 may be 
obtained from any district office of the Social Security Administration 
or from any district director. An account number will be assigned to the 
employee by the Social Security Administration in due course upon the 
basis of information reported on the application required under this 
section. A card showing the name and account number of the employee to 
whom an account number has been assigned will be furnished to the 
employee by the Social Security administration.
    (2) Time for filing Form SS-5. The application shall be filed on or 
before the seventh day after the occurrence of the first day of 
employment to which reference is made in paragraph (a)(1) of this 
section, unless the employee leaves the employ of his employer before 
such seventh day, in which case the application shall be filed on or 
before the date on which the employee leaves the employ of his employer.
    (3) Changes and corrections. Any employee may have his account 
number changed at any time by applying to a district office of the 
Social Security Administration and showing good reasons for a change. 
With that exception, only one account number will be assigned to an 
employee. Any employee whose name is changed by marriage or otherwise, 
or who has stated incorrect information on Form SS-5, should report such 
change or correction to a district office of the Social Security 
Administration Copies of the form for making such reports may be 
obtained from any district office of the administration.
    (b) Duties of employee with respect to his account number--(1) 
Information to be furnished to employer. An employee shall, on the day 
on which he enters the employ of any employer for wages, comply with the 
provisions of paragraph (b)(1)(i), (ii), (iii), or (iv) of this section, 
except that, if the employee's services for the employer consist solely 
of agricultural labor, domestic service in a private home of the 
employer not on a farm operated for profit, or service not in the course 
of the employer's trade or business, the employee shall comply with such 
provisions on the first day on which wages are paid to him by such 
employer, within the meaning of Sec. 31.3121(a)-2.
    (i) Employee who has account number card. If the employee has been 
issued an account number card by the Social Security Administration and 
has the card available, the employee shall show it to the employer.
    (ii) Employee who has number but card not available. If the employee 
does not have available the account number card issued to him by the 
Social Security Administration but knows what his account number is, and 
what his name is, exactly as shown on such card, the employee shall 
advise the employer of such number and name. Care must be exercised that 
the employer is correctly advised of such number and name.
    (iii) Employee who has receipt acknowledging application. If the 
employee does not have an account number card but has available a 
receipt issued to him by an office of the Social Security Administration 
acknowledging that an application for an account number has been 
received, the employee shall show such receipt to the employer.
    (iv) Employee who is unable to furnish number or receipt. If an 
employee is unable to comply with the requirement of paragraph 
(b)(1)(i), (ii), or (iii) of this section, the employee shall furnish to 
the employer a statement in writing, signed by the employee, setting 
forth the date of the statement, the employee's full name, present 
address, date and place of birth, father's full name, mother's full name 
before marriage, and the employee's sex, including a statement as to 
whether the employee has previously filed an application on Form SS-5 
and, if so, the date and place of such filing. The information

[[Page 334]]

required by this subdivision shall be furnished on Form SS-5, if a copy 
of Form SS-5 is available. The furnishing of such a Form SS-5 or other 
statement by the employee to the employer does not relieve the employee 
of his obligation to make an application on Form SS-5 and file it with a 
district office of the Social Security Administration as required by 
paragraph (a) of this section. The foregoing provisions of this 
subdivision are not applicable to an employee engaged exclusively in the 
performance of domestic service in a private home of his employer not on 
a farm operated for profit, or in the performance of agricultural labor, 
if the services are performed for an employer other than an employer 
required to file returns of the taxes imposed by the Federal Insurance 
Contributions Act with the office of the United States Internal Revenue 
Service in Puerto Rico. However, such employee shall advise the employer 
of his full name and present address.

For provisions relating to the duties of an employer when furnished the 
information required by paragraph (b)(1) (i), (ii), (iii), or (iv) of 
this section, see paragraph (c) of this section.
    (2) Additional information to be furnished by employee to employer. 
Every employee who, on the day on which he is required to comply with 
paragraph (b)(1)(i), (ii), (iii), or (iv) of this section, has an 
account number card but for any reason does not show such card to the 
employer on such day shall promptly thereafter show the card to the 
employer. An employee who does not have an account number card on such 
day shall, upon receipt of an account number card from the Social 
Security Administration, promptly show such card to the employer, if he 
is still in the employ of that employer. If the employee has left the 
employ of the employer when the employee receives an account number card 
from the Social Security Administration, he shall promptly advise the 
employer of his account number and name exactly as shown on such card. 
The account number originally assigned to an employee (or the number as 
changed in accordance with paragraph (a)(3) of this section) shall be 
used by the employee as required by this paragraph even though he enters 
the employ of other employers.
    (3) Furnishing of account number by employee to employer. See 
Sec. 31.6109-1 for additional provisions relating to the furnishing of 
an account number by the employee to his employer.
    (c) Duties of employer with respect to employees' account numbers--
(1) Employee who shows account number. Upon being shown the account 
number card issued to an employee by the Social Security administration, 
the employer shall enter the account number and name, exactly as shown 
on the card, in the employer's records, returns, statements for 
employees, and claims to the extent required by the applicable forms, 
regulations, and instructions.
    (2) Employee who does not show account number card. With respect to 
an employee who, on the day on which he is required to comply with 
paragraph (b)(1)(i), (ii), (iii), or (iv) of this section, does not show 
the employer an account number card issued to the employee by the Social 
Security Administration, the employer shall request such employee to 
show him such card. If the card is not shown, the employer shall comply 
with the applicable provisions of paragraph (c)(1)(i), (ii), (iii), 
(iv), or (v) of this section:
    (i) Employee who has not applied for account number. If the employee 
has not been assigned an account number and has not made application 
therefor with a district office of the Social Security Administration, 
the employer shall inform the employee of his duties under this section.
    (ii) Employee who has account number. If the employee advises the 
employer of his number and name as shown on his account number card, as 
provided in paragraph (b)(1)(ii) of this section, the employer shall 
enter such number and name in his records.
    (iii) Employee who has receipt for application. If the employee 
shows the employer, as provided in paragraph (b)(1)(iii) of this 
section, a receipt issued to him by an office of the Social Security 
Administration acknowledging that an application for an account number 
has been received from the employee, the employer shall enter

[[Page 335]]

in his records with respect to such employee the name and address of the 
employee exactly as shown on the receipt, the expiration date of the 
receipt, and the address of the issuing office. The receipt shall be 
retained by the employee.
    (iv) Employee who furnishes Form SS-5 or statement. If the employee 
furnishes information to the employer as provided in paragraph 
(b)(1)(iv) of this section, the employer shall retain such information 
for use as provided in paragraph (c)(3)(ii) of this section.
    (v) Household or agricultural employees. If the employee advises the 
employer of his full name and present address in accordance with those 
provisions of paragraph (b)(1)(iv) of this section which are applicable 
in the case of employees engaged exclusively in the performance of 
domestic service in a private home of the employer not on a farm 
operated for profit, or agricultural labor, the employer shall enter 
such name and address in his records.
    (3) Account number unknown when return is filed. In any case in 
which the employee's account number is for any reason unknown to the 
employer at the time the employer's return is filed for any return 
period with respect to which the employer is required to report the 
wages paid to such employee--
    (i) If employee has shown receipt for application. If the employee 
has shown to the employer, as provided in paragraph (b)(1)(iii) of this 
section, a receipt issued to him by an office of the Social Security 
Administration acknowledging that an application for an account number 
has been received from the employee, the employer shall enter on the 
return, with the entry with respect to the employee, the name and 
address of the employee exactly as shown on the receipt, the expiration 
date of the receipt, and the address of the issuing office.
    (ii) If employee furnished Form SS-5 or statement. If the employee 
has furnished information to the employer as provided in paragraph 
(b)(1)(iv) of this section, the employer shall prepare a copy of the 
Form SS-5 or statement furnished by the employee and attach the copy to 
the return.
    (iii) If employee did not furnish receipt, Form SS-5, or statement. 
If neither paragraph (c)(3)(i) nor (ii) of this section is applicable, 
the employer shall, except as provided in paragraph (c)(4) of this 
section, attach to the return a Form SS-5 or statement, signed by the 
employer, setting forth as fully and clearly as practicable the 
employee's full name, his present or last known address, date and place 
of birth, father's full name, mother's full name before marriage, the 
employee's sex, and a statement as to whether an application for an 
account number has previously been filed by the employee and, if so, the 
date and place of such filing. The employer shall also insert in such 
Form SS-5 or statement an explanation of why he has not secured from the 
employee the information referred to in paragraph (b)(1)(iv) of this 
section and shall insert the word ``Employer'' as part of his signature.
    (4) Household or agricultural employees. The provisions of paragraph 
(c)(3)(iii) of this section are not applicable with respect to an 
employee engaged exclusively in the performance of domestic service in a 
private home of his employer not on a farm operated for profit, or in 
the performance of agricultural labor, if the services are performed for 
an employer other than an employer required to file returns of the taxes 
imposed by the Federal Insurance Contributions Act with the office of 
the United States Internal Revenue Service in Puerto Rico. If any such 
employee has not furnished to the employer the information required by 
paragraph (b) (1) (i), (ii), or (iii) of this section prior to the time 
the employer's return is filed for any return period with respect to 
which the employer is required to report wages paid to such employee, 
the employer shall enter the word ``Unknown'' in the account number 
column of the return and (i) file with the return a statement showing 
the employee's full name and present or last known address, or (ii) 
enter such address on the return form immediately below the name of the 
employee.
    (5) Where to obtain Form SS-5. Employers may obtain copies of Form 
SS-5 from any district office of the Social Security Administration or 
from any district director.

[[Page 336]]

    (6) Prospective employees. While not mandatory, it is suggested that 
the employer advise any prospective employee who does not have an 
account number of the requirements of paragraphs (a) and (b) of this 
section.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 
8517, Aug. 25, 1962]



Sec. 31.6051-1  Statements for employees.

    (a) Requirement if wages are subject to withholding of income tax--
(1) General rule. (i) Every employer, as defined in section 3401(d), 
required to deduct and withhold from an employee a tax under section 
3402, or who would have been required to deduct and withhold a tax under 
section 3402 (determined without regard to section 3402(n)) if the 
employee had claimed no more than one withholding exemption, shall 
furnish to each such employee, in respect of the remuneration paid by 
such employer to such employee during the calendar year, the tax return 
copy and the employee's copy of a statement on Form W-2. For example, if 
the wage bracket method of withholding provided in section 3402(c)(1) is 
used, a statement on Form W-2 must be furnished to each employee whose 
wages during any payroll period are equal to or in excess of the 
smallest wage from which tax must be withheld in the case of an employee 
claiming one exemption. If the percentage method is used, a statement on 
Form W-2 must be furnished to each employee whose wages during any 
payroll period, reduced by the amount of one withholding exemption, are 
equal to or in excess of the smallest amount of wages from which tax 
must be withheld. See section 3402 (a) and (b) and the regulations 
thereunder. Each statement on Form W-2 shall show the following:
    (a) The name, address, and identification number of the employer.
    (b) The name and address of the employee, and his social security 
account number if wages as defined in section 3121(a) have been paid or 
if the Form W-2 is required to be furnished to the employee for a period 
commencing after December 31, 1962.
    (c) The total amount of wages as defined in section 3401(a),
    (d) The total amount deducted and withheld as tax under section 
3402,
    (e) The total amount of wages as defined in section 3121(a),
    (f) The total amount of employee tax under section 3101 deducted and 
withheld (increased by any adjustment in the calendar year for 
overcollection, or decreased by any adjustment in such year for 
undercollection, of such tax during any prior year) and the proportion 
thereof (expressed either as a dollar amount, as a percentage of the 
total amount of wages as defined in section 3121(a), or as a percentage 
of the total amount of employee tax under section 3101) withheld as tax 
under section 3101(b) for financing the cost of hospital insurance 
benefits,

See paragraph (d) of this section for provisions relating to the time 
for furnishing the statement required by this subparagraph. See 
paragraph (f) of this section for an exception for employers filing 
composite returns from the requirement that statements for employees be 
on Form W-2. For the requirements relating to Form W-2 with respect to 
qualified State individual income taxes, see paragraphs (d)(3)(ii) of 
Sec. 301.6361-1 of this chapter (regulations on Procedure and 
Administration).
    (g) Such information relating to coverage the employee has earned 
under the Federal Insurance Contributions act, as may be required by 
Form W-2 or its instructions, and
    (h) The total amount paid to the employee under section 3507 
(relating to advance payment of earned income credit).
    (ii) Payments made in 1955 under a wage continuation plan shall be 
reported on Form W-2 to the extent, and in the manner, provided in 
paragraph (b)(8)(i) of Sec. 31.3401(a)-1.
    (iii) In the case of statements furnished by the employer for whom 
services are performed, with respect to wages paid after December 31, 
1955, ``the total amount of wages as defined in section 3401(a)'', as 
used in section 6051(a)(3), shall include all payments made directly by 
such employer under a wage continuation plan which constitute wages in 
accordance with paragraph (b)(8)(ii)(a) of Sec. 31.3401(a)-1, without 
regard to whether tax has been withheld on such amounts.

[[Page 337]]

    (iv) Form W-2 is not required in respect of any wage continuation 
payment made to an employee by or on behalf of a person who is not the 
employer for whom the employee performs services but who is regarded as 
an employer under section 340(d)(1). See paragraph (b)(8) of 
Sec. 31.3401(a)-1.
    (v) In the case of remuneration paid for service described in 
section 3121(m), relating to service in the uniformed services, 
performed after 1956, ``wages as defined in section 3121(a)'', as used 
in section 6051(a) (2) and (5), shall be determined in accordance with 
section 3121(i)(2) and section 3122.
    (vi) In the case of remuneration in the form of tips received by an 
employee in the course of his employment, the amounts required to be 
shown by paragraphs (3) and (5) of section 6051(a) (see paragraph 
(a)(1)(i) (c) and (e) of this section) shall include only such tips as 
are reported by the employee to the employer in a written statement 
furnished to the employer pursuant to section 6053(a).
    (2) Statements for members of the Armed Forces of the United States. 
Section 6051(b) contains certain special provisions which are applicable 
in the case of members of the Armed Forces of the United States in 
active service. In such case, Form W-2 shall be furnished to each such 
member of the Armed Forces if any tax has been withheld under section 
3402 during the calendar year from the remuneration of such member or if 
any of the remuneration paid during the calendar year for such active 
service is includible under chapter 1 of the Code in the gross income of 
such member. Form W-2, in the case of such member, shall show, as ``the 
total amount of wages as defined in section 3401(a)'' as used in section 
6051(a)(3), the amount of the remuneration paid during the calendar year 
which is not excluded under chapter 1 from the gross income of such 
member, whether or not such remuneration constitutes wages as defined in 
section 3401(a) and whether or not paid for such active service.
    (3) Undelivered statements for employees. The Internal Revenue 
Service copy and the employee's copy of each withholding statement for 
the calendar year which the employer is required to furnish to the 
employee and which after reasonable effort he is unable to deliver to 
the employee shall be retained by the employer for the 4-year period 
prescribed in paragraph (e)(2) of Sec. 31.6001-1.
    (b) Requirement if wages are not subject to withholding of income 
tax-- (1) General rule. If during the calendar year an employer pays to 
an employee wages subject to the employee tax imposed by section 3101, 
but not subject to income tax withholding under section 3402, the 
employer shall furnish to such employee the tax return copy and the 
employee's copy of a statement on Form W-2 for such calendar year. Such 
statement shall show the following:
    (i) The name and address of the employer,
    (ii) The name, address, and social security account number of the 
employee,
    (iii) The total amount of wages as defined in section 3121(a),
    (iv) The total amount of employee tax deducted and withheld from 
such wages (increased by any adjustment in such year for overcollection, 
or decreased by any adjustment in such year for undercollection, of 
employee tax during any prior year) and the proportion thereof 
(expressed either as a dollar amount, as a percentage of the total 
amount of wages as defined in section 3121(a), or as a percentage of the 
total amount of employee tax under section 3101) withheld as tax under 
section 3101(b) for financing the cost of hospital insurance benefits, 
and
    (v) Such information relating to coverage the employee has earned 
under the Federal Insurance Contributions Act, as may be required by 
Form W-2 or its instructions, and
    (vi) The total amount paid to the employee under section 3507 
(relating to advance payment of earned income credit).

See paragraph (d) of this section for provisions relating to the time 
for furnishing the statement required by this paragraph.
    (2) Uniformed services. In the case of remuneration paid for service 
described in section 3121(m), relating to service in the uniformed 
services, performed after 1956, ``wages as defined in section 3121(a)'', 
as used in section 6051(a)(5),

[[Page 338]]

shall be determined in accordance with section 3121(i)(2) and section 
3122.
    (c) Correction of statements--(1) Federal Insurance Contributions 
Act. If (i) the amount of employee tax under section 3101 deducted and 
withheld in the calendar year from the wages, as defined in section 
3121(a), paid during such year was less or greater than the tax imposed 
by section 3101 on such wages by reason of the adjustment in such year 
of an overcollection or undercollection of the tax in any prior year, or 
(ii) regardless of the reason for the error or the method of its 
correction, the amount of wages as defined in section 3121(a), or tax 
under section 3101, entered on a statement furnished pursuant to this 
section to an employee for a prior year was incorrect, a corrected 
statement for such prior year reflecting the adjustment or the correct 
data shall be furnished to the employee. Such statement shall be marked 
``Corrected by Employer''.
    (2) Income tax withholding. A corrected statement shall be furnished 
to the employee with respect to a prior calendar year (i) to show the 
correct amount of wages, as defined in section 3401(a), paid during the 
prior calendar year if the amount of such wages entered on a statement 
furnished to the employee for such prior year is incorrect, or (ii) to 
show the amount actually deducted and withheld as tax under section 3402 
if such amount is less or greater than the amount entered as tax 
withheld on the statement furnished the employee for such prior year. 
Such statement shall be indicated as corrected.
    (3) Cross reference. For provisions relating to the disposition of 
the Internal Revenue Service copy of a corrected statement, see 
paragraph (b)(2) of Sec. 31.6011(a)-4 and paragraph (b) of Sec. 31.6051-
2.
    (d) Time for furnishing statements--(1)(i) In general. Each 
statement required by this section for a calendar year and each 
corrected statement required for the year shall be furnished to the 
employee on or before January 31 of the year succeeding such calendar 
year. If an employee's employment is terminated before the close of such 
calendar year, the employer, at his option, shall furnish the statement 
to the employee at any time after the termination but no later than 
January 31 of the year succeeding such calendar year. However, if an 
employee whose employment is terminated before the close of such 
calendar year requests the employer to furnish him the statement at an 
earlier time, and if there is no reasonable expectation on the part of 
both employer and employee of further employment during the calendar 
year, then the employer shall furnish the statement to the employee on 
or before the later of the 30th day after the day of the request or the 
30th day after the day on which the last payment of wages is made. For 
provisions relating to the filing of the Internal Revenue Service copies 
of the statement, see Sec. 31.6051-2.
    (ii) Expedited furnishing--(A) General rule. If an employer is 
required to make a final return under Sec. 31.6011(a)-6(a)(1) (relating 
to the final return for Federal Insurance Contributions Act taxes and 
income tax withholding from wages) on Form 941, or a variation thereof, 
the employer must furnish the statement required by this section on or 
before the date required for filing the final return. See 
Sec. 31.6071(a)-1(a)(1). However, if the final return under 
Sec. 31.6011(a)-6(a)(1) is a monthly return, as described in 
Sec. 31.6011(a)-5, the employer must furnish the statement required by 
this section on or before the last day of the month in which the final 
return is required to be filed. See Sec. 31.6071(a)-1(a)(2). Except as 
provided in paragraph (d)(2)(i) of this section, in no event may an 
employer furnish the statement required by this section later than 
January 31 of the year succeeding the calendar year to which it relates. 
The requirements set forth in this paragraph (d)(1)(ii) do not apply to 
employers with respect to employees whose wages are for domestic service 
in the private home of the employer. See Sec. 31.6011(a)-1(a)(3).
    (B) Requests by employees. An employer is not permitted to furnish a 
statement pursuant to the provisions of the third sentence of paragraph 
(d)(1)(i) of this section (relating to written requests by terminated 
employees for Form W-2) at a time later than that required by the 
provisions of paragraph (d)(1)(ii)(A) of this section.

[[Page 339]]

    (C) Effective date. This paragraph (d)(1)(ii) is effective January 
1, 1997.
    (2) Extensions of time--(i) In general (a) The Director, Martinsburg 
Computing Center, may grant an extension of time in which to furnish to 
employees the statements required by this section. A request may be made 
by a letter to the Director, Martinsburg Computing Center. The request 
must contain:
    (1) The employer's name and address;
    (2) The employer's taxpayer identification number;
    (3) The type of return (i.e., Form W-2); and
    (4) A concise statement of the reasons for requesting the extension.
    (b) The application must be mailed or delivered on or before the 
applicable due date prescribed in paragraph (d)(1) of this section for 
furnishing the statements required by this section.
    (c) In any case in which an employer is unable, by reason of 
illness, absence, or other good cause, to sign a request for an 
extension, any person standing in close personal or business 
relationship to the employer may sign the request on his behalf, and 
shall be considered as a duly authorized agent for this purpose, 
provided the request sets forth a reason for a signature other than the 
employer's and the relationship existing between the employer and the 
signer. For provisions relating to extensions of time for filing the 
Social Security Administration copies of the statement, see 
Sec. 31.6081(a)-1(a)(3).
    (ii) Automatic Extension of Time. The Commissioner may, in 
appropriate cases, publish procedures for automatic extensions of time 
to furnish Forms W-2 where the employer is required to furnish the Form 
W-2 on an expedited basis.
    (e) Reporting of reimbursements of or payments of expenses of moving 
from one residence to another residence after July 23, 1971. Every 
employer who after July 23, 1971, makes reimbursement to, or payment to 
(other than direct cash reimbursement), an employee for his expenses of 
moving from one residence to another residence which is includable in 
gross income under section 82 shall furnish to the best of his ability 
to such employee information sufficient to assist the employee in the 
computation of any deduction allowable under section 217 with respect to 
such reimbursement or payment. The information required under this 
paragraph may be furnished on Form 4782 provided by the Internal Revenue 
Service or may be furnished on forms provided by the employer so long as 
the employee receives the same information he would have received had he 
been furnished with a completed Form 4782. The information shall include 
the amount of the reimbursement or payment and whether the reimbursement 
or payment was made directly to a third party for the benefit of an 
employee or furnished in kind to the employee. In addition, information 
shall be furnished as to whether the reimbursement or payment represents 
and expense described in subparagraphs (A) through (E) of section 
217(b)(1), and if so, the amount and nature of the expenses described in 
each such subparagraph. The information described in this paragraph 
shall be furnished at the same time or before the written statement 
required by section 6051(a) is furnished in respect of the calendar year 
for which the information provided under this paragraph is required. The 
information required under this paragraph shall be provided for the 
taxable year in which the payment or reimbursement is received by the 
employee. For determining the taxable year in which a payment or 
reimbursement is received, see section 82 and Sec. 1.82-1.
    (f) Statements with respect to compensation, as defined in the 
Railroad Retirement Tax Act, paid after December 31, 1967--(1) Required 
information relating to excess medicare tax on compensation paid after 
December 31, 1971--(i) Notification of possible credit or refund. With 
respect to compensation (as defined in section 3231(e)) paid after 
December 31, 1971, every employer (as defined in section 3231(a)) who is 
required to deduct and withhold from an employee (as defined in section 
3231(b)) a tax under section 3201, shall include on or with the 
statement required to be furnished such employee under section 6051(a), 
a notice concerning the provisions of this title with respect to the 
allowance of a credit or refund of the tax on wages imposed by section 
3101(b) and the tax on compensation imposed by section 3201 or 3211 
which is treated as a tax on

[[Page 340]]

wages imposed by section 3101(b). Such notice shall inform such employee 
of the eligibility of persons having a second employment, in addition to 
railroad employment, for a credit or refund of any excess hospital 
insurance tax which such persons have paid because of employment under 
both social security (including employee and self-employment coverage) 
and railroad retirement. See section 6413(c)(3) and paragraph (c) of 
Sec. 31.6413(c)-1, relating to special refunds with respect to 
compensation as defined in the Railroad Retirement Tax Act.
    (ii) Information to be supplied to employees upon request. With 
respect to compensation (as defined in section 3231(e)) paid after 
December 31, 1971, every employer (as defined in section 3231(a)) who is 
required to deduct and withhold tax under section 3201 from an employee 
(as defined in section 3231(b)) who has also received wages during such 
year subject to the tax imposed by section 3101(b), shall upon request 
of such employee furnish to him a written statement showing--
    (a) The total amount of compensation with respect to which the tax 
imposed by section 3101(b) was deducted.
    (b) The total amount of employee tax under section 3201 deducted and 
withheld (increased by any adjustment in the calendar year for 
overcollection, or decreased by any adjustment in such year for 
undercollection, of such tax during any prior year), and
    (c) The proportion thereof (expressed either as a dollar amount, or 
a percentage of the total amount of compensation as defined in section 
3231(e), or as a percentage of the total amount of employee tax under 
section 3201) withheld as tax under section 3201 for financing the cost 
of hospital insurance benefits.
    (2) Statements on Form W-2 (RR). (i) Compensation paid during 1970 
or 1971. With respect to compensation (as defined in section 3231(e)) 
paid during 1970 or 1971, every employer (as defined in section 3231(a)) 
who is required to deduct and withhold from an employee (as defined in 
section 3231(b)) a tax under section 3402 with respect to compensation, 
or who would have been required to deduct and withhold a tax under 
section 3402 (determined without regard to section 3402(n)) if the 
employee had claimed no more than one withholding exemption, shall 
furnish to each such employee in respect of such compensation the tax 
return copy and the employee's copy of a statement on Form W-2 (RR) 
instead of Form W-2, unless such employers are permitted by the Internal 
Revenue Service to continue to use Form W-2 in lieu of Form W-2 (RR). If 
the wage bracket method of withholding provided in section 3402(c)(1) is 
used in respect of such compensation, a statement on Form W-2 (RR) must 
be furnished to each employee whose wages during any payroll period are 
equal to or in excess of the smallest wage from which tax must be 
withheld in the case of an employee claiming one exemption. If the 
percentage method is used, a statement on Form W-2 (RR) must be 
furnished to each employee whose wages during any payroll period are in 
excess of one withholding exemption for such payroll period as shown in 
the percentage method withholding table contained in section 3402(b)(1). 
Each statement on Form W-2 (RR) shall show the following:
    (a) The name, address, and identification number of the employer,
    (b) The name and address of the employee and his social security 
account number,
    (c) The total amount of wages as defined in section 3401(a),
    (d) The total amount deducted and withheld as tax under section 
3402,
    (e) The total amount of compensation as defined in section 3231(e), 
and
    (f) The total amount of employee tax under section 3201 deducted and 
withheld (increased by any adjustment in the calendar year for 
overcollection, or decreased by any adjustment in such year for 
undercollection, of such tax during any prior year) and the proportion 
thereof (expressed either as a dollar amount, as a percentage of the 
total amount of compensation as defined in section 3231(e), or as a 
percentage of the total amount of employee tax under section 3201) 
withheld as tax under section 3201 for financing the cost of hospital 
insurance benefits.

The provisions of this chapter applicable to Form W-2, other than those 
relating solely to the Federal Insurance

[[Page 341]]

Contributions Act, are hereby made applicable to Form W-2 (RR). See 
paragraph (d) of this section for provisions relating to the time and 
place for furnishing the statement required by this subparagraph.
    (ii) Compensation paid during 1968 or 1969. At the option of the 
employer, the provisions of paragraph (f)(1)(i) of this section may 
apply with respect to compensation paid during 1968 or 1969.
    (iii) Every employer who, pursuant to paragraph (i) or (ii) of this 
section, does not provide Form W-2 (RR) with respect to compensation 
must furnish the additional information required by Form W-2 (RR) upon 
request by the employee.
    (g) Employers filing composite returns. Every employer who files a 
composite return pursuant to Sec. 31.6011(a)-8 shall furnish to his 
employees the statements required under this section, except that in 
lieu of Form W-2 the statements may be in any form which is suitable for 
retention by the employee and which contains all information required to 
be shown on Form W-2.
    (h) Statements with respect to the refundable earned income credit--
(1) In general. In respect of remuneration paid in any calendar year 
beginning after December 31, 1986, for services performed after December 
31, 1986, every employer shall furnish Notice 797 (You May be Eligible 
for a Refund on Your Federal Income Tax Return Because of the Earned 
Income Credit (EIC)), or a written statement that contains an exact 
reproduction of the wording contained in Notice 797, to each employee 
with respect to whom the employer paid wages (within the meaning of 
section 3401(a)) during the calendar year and who did not have any 
income tax withheld by the employer during the calendar year. 
Notwithstanding the preceding sentence, no such statement need be 
furnished to an employee who claimed exemption from withholding pursuant 
to section 3402(n) for the calendar year.
    (2) Time for furnishing statement--(i) General rule. Except as 
otherwise provided in paragraph (h)(2)(ii) of this section, the 
statement required by this paragraph (h) for a calendar year shall be 
furnished--
    (A) In the case of an employee who is required to be furnished a 
Form W-2, Wage and Tax Statement, for the calendar year, within one week 
of (before or after) the date that the employee is furnished a timely 
Form W-2 for the calendar year (or, if a Form W-2 is not so furnished, 
on or before the date by which it is required to be furnished), and
    (B) In the case of an employee who is not required to be furnished a 
Form W-2 for the calendar year, on or before February 7 of the year 
succeeding the calendar year.
    (ii) Special rule with respect to certain Forms W-2 for 1987 and 
1988. With respect to an employee who is not furnished a Form W-2 for 
calendar year 1987 before October 24, 1988, or who was furnished such 
form on or before June 11, 1987, the statement required by this 
paragraph (h) shall be furnished on or before October 24, 1988. With 
respect to an employee who is furnished a Form W-2 after June 11, 1987, 
and before October 24, 1988, the statement required by this paragraph 
(h) shall be furnished within one week of (before or after) the date the 
employee is furnished the Form W-2. With respect to an employee who is 
required to be furnished a Form W-2 for calendar year 1988 before 
October 24, 1988, but is not so furnished, the statement required by 
this paragraph (h) shall be furnished on or before that date.
    (3) Manner of furnishing statement. If an employee is furnished a 
Form W-2 in a timely manner, the statement required by this paragraph 
(h) may be furnished with the employee's Form W-2. Any statement not so 
furnished shall be furnished by direct, personal delivery to the 
employee or by first class mail addressed to the employee at his or her 
current or last known address. For purposes of the preceding sentence, 
direct, personal delivery means hand delivery to the employee. Thus, for 
example, an employer does not meet the requirements of this paragraph 
(h) if the statement is sent through inter-office mail or is posted on a 
bulletin board.
    (i) Cross references. For provisions relating to the penalties 
provided for the

[[Page 342]]

willful furnishing of a false or fraudulent statement, or for the 
willful failure to furnish a statement, see Sec. 31.6674-1 and section 
7204. For additional provisions relating to the inclusion of 
identification numbers and account numbers in statements on Form W-2, 
see Sec. 31.6109-1. For provisions relating to the penalty for failure 
to report an identification number or an account number, as required by 
Sec. 31.6109-1, see Sec. 301.6676-1 of this chapter (Regulations on 
Procedure and Administration). For the penalties applicable to 
information returns and payee statements the due date for which 
(determined without regard to extensions) is after December 31, 1989, 
see sections 6721-6724 as amended by section 7711 of the Omnibus Budget 
Reconciliation Act of 1989. See section 6723 (prior to its amendment by 
section 7711 of the Omnibus Budget Reconciliation Act of 1989 (Pub. L. 
101-239, 103 Stat. 2106 (1989)) and Sec. 31.6723-1A of this chapter (as 
issued thereunder) for provisions relating to the penalty for failure to 
include correct information on an information return or a payee 
statement and for the exceptions to the penalty, particularly the 
exception for timely correction, with respect to information returns and 
payee statements the due date for which, determined without regard to 
extensions, is after December 31, 1986, and before January 1, 1990.

(86 Stat. 944, 26 U.S.C. 6364; 68A Stat. 917, 26 U.S.C. 7805; 68A Stat. 
747, 26 U.S.C. 6051(c))


[T.D. 6516, 25 FR 13032, Dec. 20, 1960]

    Editorial Note: For Federal Register citations to Sec. 31.6051-1, 
see the List of CFR Sections Affected in the Finding Aids section of 
this volume.



Sec. 31.6051-2  Information returns on Form W-3 and Internal Revenue Service copies of Forms W-2.

    (a) In general. Every employer who is required to make a return of 
tax under Sec. 31.6011(a)-1 (relating to returns under the Federal 
Insurance Contributions Act), Sec. 31.6011(a)-4 (relating to returns of 
income tax withheld from wages), or Sec. 31.6011(a)-5 (relating to 
monthly returns) for a calendar year or any period therein shall file 
the Social Security Administration copy of each Form W-2 required under 
Sec. 31.6051-1 to be furnished by the employer with respect to wages 
paid during the calendar year. Each Form W-2 and the transmittal Form W-
3 shall together constitute an information return to be filed with the 
Social Security Administration office indicated on the instructions to 
such forms. However, in the case of an employer who elects to file a 
composite return pursuant to Sec. 31.6011(a)-8, the information return 
required by this section shall consist of magnetic tape (or other 
approved media) containing all information required to be on the 
employee statement, together with transmittal Form 4804.
    (b) Corrected returns. The Social Security Administration copies of 
corrected Forms W-2 (or magnetic tape or other approved media) for 
employees for the calendar year shall be submitted with Form W-3 (or 
Form 4804), on or before the date on which information returns for the 
period in which the correction is made would be due under paragraph 
(a)(3)(ii) of Sec. 31.6071(a)-1, to the Social Security Administration 
office with which Forms W-2 are required to be filed.
    (c) Cross references. For provisions relating to the time for filing 
the information returns required by this section and to extensions of 
the time for filing, see Secs. 31.6071(a)-1(a)(3) and 31.6081(a)-
1(a)(3), respectively. For the penalty provided in case of each failure 
to file, see paragraph (a) of Sec. 301.6652-1 of this chapter 
(Regulations on Procedure and Administration). For the penalties 
applicable to information returns and payee statements the due date for 
which (determined without regard to extensions) is after December 31, 
1989, see sections 6721-6724 as amended by section 7711 of the Omnibus 
Budget Reconciliation Act of 1989 (Publ. L. 101-239, 103 Stat. 2106 
(1989). See section 6723 (prior to its amendment by section 7211 of the 
Omnibus Reconciliation Act of 1989) and Sec. 301.6723-1A of this chapter 
for provisions relating to the penalty for failure to include correct 
information on an information return or a payee statement and for the 
exceptions to the penalty, particularly the exception for timely 
correction, with respect to information returns and payee statements the 
due date for which, determined without regard to extensions,

[[Page 343]]

is after December 31, 1986, and before January 1, 1990.

(68A Stat. 747, 26 U.S.C. 6051; 68A Stat. 917, 26 U.S.C. 7805)


[T.D. 7351, 40 FR 17145, Apr. 17, 1975, as amended by T.D. 7580, 43 FR 
60160, Dec. 26, 1978; T.D. 8155, 52 FR 34357, Sept. 10, 1987; T.D. 8344, 
56 FR 15042, Apr. 15, 1991; T.D. 8636, 60 FR 66141, Dec. 21, 1995]



Sec. 31.6051-3  Statements required in case of sick pay paid by third parties.

    (a) Statements required from payor. (1) Every payor of sick pay 
shall furnish to the employer of the payee of the sick pay a written 
statement. The written statement must contain the following information:
    (i) The name and, if there is withholding from sick pay under 
section 3402(o) and the regulations thereunder, the social security 
account number of the payee,
    (ii) The total amount of sick pay paid to the payee during the 
calendar year, and
    (iii) The total amount (if any) deducted and withheld from sick pay 
under section 3402(o) and the regulations thereunder.

The statement must be furnished to the employer on or before January 15 
of the year following the calendar year in which any sick pay was paid.

    (2) These reporting requirements are in lieu of the requirements of 
sections 6051(a) (relating to written statements for employees) and 6041 
(relating to information returns). Statements required to be furnished 
by this paragraph shall be treated as statements required under section 
6051 to be furnished to employees for purposes of sections 6674 
(relating to fraudulent statement or failure to furnish statement to 
employee) and 7204 (relating to fraudulent statement or failure to make 
statement to employees).
    (3) A multiemployer plan paying sick pay pursuant to a collectively 
bargained agreement may furnish the statement required to be furnished 
by this paragraph, which shall include the total amount of sick pay paid 
to the employee under the plan regardless of the identity or number of 
employers for whom the employee worked during the calendar year under 
the plan, to one of the following:
    (i) The employer for whom the employee worked the most hours during 
the calendar year for which the statement is to be furnished,
    (ii) The employer for whom the employee first worked during such 
year,
    (iii) The employer for whom the employee last worked during such 
year,
    (iv) The employer for whom the employee worked immediately preceding 
his absence for which sick pay was paid,
    (v) The employer for whom the employee worked immediately following 
his absence for which sick pay was paid,
    (vi) The employer designated through the operation of a specific 
clause of the collective bargaining agreement, or
    (vii) The employer designated through the operation of a specific 
system of designation chosen by the payor.
    (b) Information required to be furnished by employer. Every employer 
of a payee of sick pay who receives a statement under paragraph (a) from 
a payor of sick pay shall furnish to each payee of sick pay a written 
statement, which must be furnished on Form W-2. The written statement 
must contain the following information:
    (1) All of the information required to be furnished under paragraph 
(a),
    (2) The name, the address, and the Employer Identification Number 
(EIN) of the employer,
    (3) The words ``sick pay'', which shall be written in the box 
labelled ``Employer's use'', and
    (4) If any portion of the sick pay is excludable from gross income 
under section 104(a)(3), the amount of the portion which is not so 
excludable and of the portion which is so excludable. Only sick pay 
payments includable in gross income shall be reported in the box 
labelled ``Wages, tips, other compensation'' on Form W-2. Any amount 
excludable from gross income under section 104(a)(3) shall be reported 
in the box labelled ``Employer's use'' on Form W-2 and any amount so 
reported shall be described as ``Nontaxable''. The information required 
to be furnished by this paragraph may be furnished either on the same 
Form W-2 that is required

[[Page 344]]

to be furnished under section 6051(a) or on a separate Form W-2. To the 
extent practicable, this statement should be furnished to the payee 
along with the statement (if any) required under section 6051(a) 
(relating to written statements for employees). The statement must be 
furnished to the payee on or before January 31 of the year following the 
calendar year in which any sick pay was paid. The employer shall file 
copy A of Form W-2 and Form W-3 with the Social Security Administration 
in accordance with section 6051(d) (relating to statements to constitute 
information returns) and the regulations thereunder.
    (c) Optional rule. The payor and the employer may at their option 
enter into an agency agreement valid under local law whereby the 
employer designates the payor to be the employer's agent for purposes of 
fulfilling the requirements of this section. This agreement must specify 
what portion, if any, of the sick pay is excludable from gross income 
under section 104(a)(3). If they enter into such an agreement, the payor 
shall not provide the statement required by paragraph (a) but shall 
instead furnish statements that meet all of the requirements of 
paragraph (b), except that the agreement must provide that the payor 
will furnish the statements with the payor's, rather than the employer's 
name, address, and Employer Identification Number (EIN) if ``Sick Pay 
Statement Furnished under an Agency Agreement with Your Employer'' 
appears in the box labelled ``Employer's Use'' on Form W-2. Paragraph 
(a)(2) remains applicable to statements furnished under this paragraph. 
In the case of sick pay paid under a multiemployer plan pursuant to a 
collectively bargained agreement, an amendment to either the 
multiemployer plan or the collectively bargained agreement designating 
the payor to be the employers' agent for purposes of fulfilling the 
requirements of this section shall be deemed an agency agreement that 
fulfills the requirements of the first sentence of this paragraph.
    (d) Definitions. For purposes of this section, the terms ``payor'', 
``payee'', and ``sick pay'' shall have the same meaning as ascribed 
thereto in section 3402(o) and the regulations thereunder. For purposes 
of this section, the term ``employer'' shall have the same meaning as 
ascribed thereto in section 3401(d) and the regulations thereunder, 
except that the term ``employer'' shall not include the payor for 
purposes of this section.
    (e) Additional requirements. (1) Statements furnished to payees 
under this section must also comply with all requirements of section 
6051 (c) and (d) and the regulations thereunder.
    (2) The provisions of Sec. 1.9101-1 (relating to permission to 
submit information required by certain returns and statements on 
magnetic tape) shall be applicable to the information required by this 
section to be furnished on Form W-2 if the employer properly complies 
with those provisions.
    (3) The provisions of section 6109 (relating to identifying numbers) 
and the regulations thereunder shall be applicable to Form W-2 and to 
any payee of sick pay to whom a statement on Form W-2 is required by 
this section to be furnished. Thus the employer must include the social 
security account number of the payee on all Forms W-2.
    (f) Effective date. The provisions of this section shall apply to 
payments of sick pay made on or after May 1, 1981.
    (g) Transitional rule. Payors may report all sick pay paid to a 
payee after December 31, 1980, and before May 1, 1981, on the same 
statement required to be furnished under paragraph (a) as is used to 
report sick pay paid to a payee on or after May 1, 1981. If the payor 
reports on the statement required to be furnished under paragraph (a), 
he shall not report sick pay paid after December 31, 1980, and before 
May 1, 1981, on Form 1099, if otherwise required to do so. If no sick 
pay is paid on or after May 1, 1981, the payor may report all sick pay 
paid to a payee after December 31, 1980, and before May 1, 1981, on the 
statement required to be furnished under paragraph (a). If he reports on 
the statement required to be furnished under paragraph (a), he shall not 
report sick pay paid on Form 1099, if otherwise required to do so.


[[Page 345]]


(Secs. 3402(o), 7805, Internal Revenue Code of 1954 (94 Stat. 3495, (26 
U.S.C. 3402(o)); 68A Stat. 917 (26 U.S.C. 7805))


[T.D. 7814, 47 FR 11277, Mar. 16, 1982]



Sec. 31.6051-4  Statement required in case of backup withholding.

    (a) Statements required from payor. Every payor of any reportable 
payment (as defined in section 3406(b)(1)) who is required to deduct and 
withhold tax under section 3406 must furnish to the payee a written 
statement containing the information required by paragraph (c) of this 
section.
    (b) Prescribed form. The prescribed form for the statement required 
by this section is Form 1099. In the case of any reportable interest or 
dividend payment as defined in section 3406(b)(2), the prescribed form 
is the Form 1099 required in Sec. 1.6042-4 of this chapter (relating to 
payments of dividends), Sec. 1.6044-5 of this chapter (relating to 
payments of patronage dividends), or Sec. 1.6049-6(e) of this chapter 
(relating to payments of interest or original issue discount). 
Statements required to be furnished by this section will be treated as 
statements required by the respective sections with respect to any 
reportable payment, except that the statement required under this 
section must include the amount of tax withheld under section 3406. In 
no event will a statement be required under this section if a statement 
with the same information is required to be furnished to the recipient 
under another section.
    (c) Information required. Each statement on Form 1099 must show the 
following:
    (1) The name, address, and taxpayer identification number of the 
person receiving any reportable payment;
    (2) The amount subject to reporting under section 6041, 6041A(a), 
6042, 6044, 6045, 6049, 6050A, or 6050N whether or not the amount of the 
reportable payment is less than the amount for which an information 
return is required. If tax is withheld under section 3406, the statement 
must show the amount of the payment withheld upon;
    (3) The amount of tax deducted and withheld under section 3406;
    (4) The name and address of the person filing the form;
    (5) A legend stating that such amount is being reported to the 
Internal Revenue Service; and
    (6) Such other information as is required by the form.
    (d) Time for furnishing statements. The statement must be furnished 
to the payee no later than January 31 of the year following the calendar 
year in which the payment was made.
    (e) Aggregation. The payor or broker may combine the information 
required to be shown under this section with information required to be 
shown under another section even if they do not relate to the same type 
of reportable payment.

[T.D. 8637, 60 FR 66133, Dec. 21, 1995]



Sec. 31.6053-1  Report of tips by employee to employer.

    (a) Requirement that tips be reported. An employee who receives 
after 1965, in the course of his employment by an employer, tips which 
constitute wages as defined in section 3121(a) or section 3401 shall 
furnish to his employer a written statement, or statements, disclosing 
the total amount of such tips received by the employee in the course of 
his employment by such employer. For provisions relating to the 
treatment of tips as wages for purposes of the tax under section 3101, 
see 3121(a)(12) and 3121(q). For provisions relating to the treatment of 
tips as wages for purposes of the tax under section 3402, see 
Secs. 31.3401(a)(16) and 31.3401(f). Tips received by an employee in a 
calendar month in the course of his employment by an employer which are 
required to be reported to the employer must be so reported on or before 
the 10th day of the following month. Thus, tips received by an employee 
in January 1966, are required to be reported by the employee to his 
employer on or before February 10, 1966.
    (b) Statement for use in reporting tips--(1) In general. The written 
statement furnished by the employee to the employer in respect of tips 
received by the employee shall be signed by the employee and should 
disclose:
    (i) The name, address, and social security number of the employee.
    (ii) The name and address of the employer.

[[Page 346]]

    (iii) The period for which, and the date on which, the statement is 
furnished. If the statement is for a calendar month, the month and year 
should be specified. If the statement is for a period of less than 1 
calendar month, the beginning and ending dates of the period should be 
shown (for example, January 1 through January 8, 1966).
    (iv) The total amount of tips received by the employee during the 
period covered by the statement which are required to be reported to the 
employer (see paragraph (a) of this section).
    (2) Form of statement--(i) In general. No particular form is 
prescribed which must be used in all cases in furnishing the statement 
required by this section. Unless some other form is provided by the 
employer for use by the employee in reporting tips received by him, Form 
4070 may be used by the employee. Copies of Form 4070 will be furnished 
by district directors upon request.
    (ii) Forms provided by employers. Subject to certain conditions and 
limitations, an employer may provide a form or forms for use by his 
employees in reporting tips received by them. Any such form provided for 
use by an employee, which is to be used solely for the purpose of 
reporting tips, shall meet all the requirements of paragraph (b)(1) of 
this section, and a blank copy of the form shall be made available to 
the employee for completion and retention by him. In lieu of a special 
form for tip reporting, and employer may provide regularly used forms 
(such as time cards) for use by employees in reporting tips. Any such 
regularly used form must meet the requirements of paragraph (b)(1) (iii) 
and (iv) of this section, and shall contain identifying information 
which will assure accurate identification of the employee by the 
employer. However, a regularly used form may be used for the purpose of 
reporting tips only if, at the time of the first payment of wages (or 
within a short period thereafter) following the reporting of tips by the 
employee, the employee is furnished a statement suitable for retention 
by him showing the amount of tips reported by the employee for the 
period. This requirement may be met, for example, through the use of a 
payroll check stub or other payroll document regularly furnished by the 
employer to the employee showing gross pay, deductions, etc.
    (c) Period covered by, and due date of, tip statement--(1) In 
general. In no event shall the written statement furnished by the 
employee to the employer in respect of tips received by him cover a 
period in excess of 1 calendar month. An employer may, in his 
discretion, require the submission of a written statement in respect of 
a specified period of time, for example, on a weekly or biweekly basis, 
regular payroll period, etc. An employer may specify, subject to the 
limitation in paragraph (a) of this section, the time within which, or 
the date on which, the statement for a specified period of time should 
be submitted by the employee. For example, a statement covering a 
payroll period may be required to be submitted on the first (or second) 
day following the close of such payroll period. However, a written 
statement submitted by an employee after the date specified by the 
employer for its submission shall be considered as a statement furnished 
pursuant to section 6053(a) and this section if it is submitted to the 
employer on or before the 10th day following the month in which the tips 
were received.
    (2) Termination of employment. If an employee's employment is being 
terminated, a written statement in respect of tips shall be furnished by 
the employee to the employer at the time the employee ceases to perform 
services for the employer. However, a written statement submitted by an 
employee after the date on which he ceases to perform services for the 
employer shall be considered as a statement furnished pursuant to 
section 6053(a) and this section if the statement is submitted to the 
employer prior to the day on which the final payment of wages is made by 
the employer to the employee and on or before the 10th day following the 
month in which the tips were received.

[T.D. 7001, 34 FR 1004, Jan. 23, 1969]



Sec. 31.6053-2  Employer statement of uncollected employee tax.

    (a) Requirement that statement be furnished. If--

[[Page 347]]

    (1) The amount of the employee tax imposed by section 3101 in 
respect of tips reported by an employee to his employer pursuant to 
section 6053(a) (see Sec. 31.6053-1) exceeds
    (2) The amount of employee tax imposed by section 3101 in respect of 
such tips which can be collected by the employer from wages (exclusive 
of tips) of such employee or from funds furnished to the employer by the 
employee,

the employer shall furnish to the employee a statement showing the 
amount of the excess. For provisions relating to the collection of, and 
liability for, employee tax on tips, see Sec. 31.3102-3.
    (b) Form of statement. Form W-2 is the form prescribed for use in 
furnishing the statement required by paragraph (a) of this section, 
except that if an employer files a composite return pursuant to 
Sec. 31.6011(a)-8 he may furnish to the employee, in lieu of Form W-2, a 
statement containing the required information in a form suitable for 
retention by the employee. A statement is required under this section in 
respect of an excess referred to in paragraph (a) of this section, even 
though the employer may not be required to furnish a statement to the 
employee under Sec. 31.6051. Provisions applicable to the furnishing of 
a statement under Sec. 31.6051 shall be applicable to statements under 
this section.
    (c) Excess to be shown on statement. If there is an excess in 
respect of the tips reported by an employee in two or more statements 
furnished pursuant to section 6053(a), only the total excess for the 
period covered by the employer statement shall be shown on such 
statement.

[T.D. 7001, 34 FR 1005, Jan. 23, 1969, as amended by T.D. 7351, 40 FR 
17145, Apr. 17, 1975]



Sec. 31.6053-3  Reporting by certain large food or beverage establishments with respect to tips.

    (a) Information return by an employer with respect to tips--(1) In 
general. An employer shall file a separate information return for each 
calendar year (as defined in paragraph (j)(14) of this section) with 
respect to each large food or beverage establishment (as defined in 
paragraph (j)(7) of this section) in which such employer has employees. 
The information return shall contain the following:
    (i) The employer's name, address, and employer identification 
number;
    (ii) The establishment's name, address, and identification number 
(see paragraph (a)(5) of this section);
    (iii) The aggregate gross receipts (other than nonallocable 
receipts) of the establishment from the provision of food or beverages;
    (iv) The aggregate amount of charge receipts (other than 
nonallocable receipts) on which there were charged tips;
    (v) The aggregate amount of charged tips shown on such charge 
receipts;
    (vi) The aggregate amount of tips actually received by food or 
beverage employees of the establishment during the calendar year and 
reported to the employer under section 6053(a) (see paragraph (j)(15) of 
this section);
    (vii) The aggregate amount the employer is required to report under 
section 6051 and the regulations thereunder with respect to service 
charges of less than 10 percent.
    (viii) The name and social security number of each employee of the 
establishment during the calendar year to whom an allocation was made 
under section 6053(c)(3) and paragraph (d) of this section and the 
amount of such allocation.
    (2) Calendar year 1983 information return. In the case of the 1983 
calendar year information return, the information required by paragraphs 
(a)(1)(iii) through (viii) of this section shall be reported for the 
period beginning with the first payroll period ending on or after April 
1, 1983, and ending with the end of the 1983 calendar year. See 
paragraph (c) of this section relating to information required for the 
first quarter of 1983.
    (3) Prescribed form. The return required by this paragraph shall be 
made on Form 8027 with the transmittal form being Form 8027T. The 
information required by paragraph (a)(1)(viii) of this section may be 
provided by attaching to Form 8027 photocopies of each employee's W-2 
for whom an allocation was made. A copy of any written good faith 
agreements applicable to a given calendar year (see paragraph (e)

[[Page 348]]

of this section) shall be attached to Form 8027 for such calendar year.
    (4) Time and place for filing. The information return required by 
this paragraph shall be filed on or before the last day of February of 
the year following the calendar year for which the return is made with 
the Internal Revenue Service Center specified by the Form 8027 or its 
instructions. See section 6652(a) relating to the penalty for failure to 
file this information return.
    (5) Large food or beverage establishment identification number. Each 
large food or beverage establishment shall have a unique identification 
number to be included on Form 8027 and any employer's application 
pursuant to paragraph (h) of this section. If an identification number 
is changed for any reason, for example if the establishment becomes a 
different ``type'' of establishment as described in paragraph (a)(5)(ii) 
of this section, or if the employer identification number changes, the 
employer shall notify the Service by including both the old and new 
identification numbers on the Form 8027 filed for the year in which the 
identification number was changed. An establishment identification 
number shall be determined as follows:
    (i) The first nine digits shall be the employer's identification 
number (EIN).
    (ii) The next digit shall identify the type of large food or 
beverage establishment, with the categories as follows:
    (A) The number ``1'' signifies an establishment that serves evening 
meals only (with or without alcoholic beverages).
    (B) The number ``2'' signifies an establishment that serves evening 
meals and other meals (with or without alcoholic beverages).
    (C) The number ``3'' signifies an establishment that serves only 
meals other than evening meals (with or without alcoholic beverages).
    (D) The number ``4'' signifies an establishment that serves food, if 
at all, as only an incidental part of the business of serving alcoholic 
beverages.
    (iii) The last five digits are to differentiate between multiple 
establishments reporting under the same EIN number. For this purpose, 
the employer shall assign each establishment reporting under such 
employer's EIN number a unique five digit number. For example, each 
establishment could be assigned a unique number by beginning with 
``00001'' and progressing in numerical sequence (i.e., ``00002'', 
``00003'', ``00004'', ``00005'') until each establishment has been 
assigned a number.
    (6) Definitions. See paragraph (j) of this section for definitions 
of various terms used in this section.
    (b) Employer statement to employees--(1) In general. The employer 
shall furnish to each employee to whom an amount is allocated under 
section 6053(c)(3) and paragraph (d) of this section a written statement 
for each calendar year containing the following information:
    (i) The employer's name and address;
    (ii) The name of the employee;
    (iii) The aggregate amount allocated to the employee for the 
calendar year.
    (2) Prescribed form. The written statement required by this 
paragraph shall be made on Form W-2.
    (3) Time and manner for furnishing the statement. The written 
statement required by this paragraph shall be due at the same time and 
shall be furnished in the same manner as the statement required to be 
furnished under section 6051. See section 6678 relating to the penalty 
for failure to file this statement.
    (4) Employee's request for an early W-2. If an employee's employment 
is terminated prior to the end of a calendar year and the employee 
requests an early W-2 under section 6051 and Sec. 31.6051-1(d), a tip 
allocation under section 6053(c) is not required to be shown on such 
early W-2. However, the employer may include on such early W-2 the 
employee's actual tip allocation under section 6053(c), if known, or a 
good faith estimate of such allocation. A good faith estimate of an 
allocation shall be signified by placing the word ``estimate'' next to 
the allocation on the employee's copy of the early W-2. An amended W-2 
must be furnished to each employee to whom an amount is allocated under 
section 6053(c), during January of the calendar year following

[[Page 349]]

the calendar year for which the statement is made, if there is no tip 
allocation on the early W-2 or if the estimated allocation is found to 
vary from the actual allocation by more than 5 percent of the amount of 
the actual allocation.
    (5) Employee reporting of tip income. Regardless of whether an 
employee receives an allocation under section 6053(c) and Sec. 31.6053-
3, the employee is required to report as income on his or her Federal 
income tax return all tips received. For tips received before October 1, 
1985, an employee must be able to substantiate the amount of reported 
tip income as provided in section 6001 and the regulations thereunder, 
For tips received on or after October 1, 1985, an employee must be able 
to substantiate the amount of reported tip income as provided in 
Sec. 31.6053-4. The Internal Revenue Service may determine that a tipped 
employee received a larger amount of tip income than is reflected by the 
employee's allocation.
    (c) First quarter report of 1983--(1) In general. For the period 
beginning with the first day of calendar year 1983, and ending on the 
last day of the last payroll period ending before April 1, 1983, an 
employer must file an information return for each large food or beverage 
establishment that was a large food or beverage establishment on January 
1, 1983, that contains the information required by paragraph (a)(1)(i)-
(vii) of this section for such period.
    (2) Prescribed form. The information return required by this 
paragraph shall be made on Form 8027. The returns for the first calendar 
quarter of 1983 and for calendar year 1983 may be incorporated onto a 
single Form 8027 but must separately set forth the required information 
for each of the two return periods.
    (3) Time and place for filing. The time and place for filing the 
information return required by this paragraph shall be the same as for 
the calendar year 1983 information return. See paragraph (a)(4) of this 
section.
    (d) Allocation of excess of 8 percent of gross receipts over the 
aggregate amount of reported tips--(1) In general. An employer that 
operates a large food or beverage establishment shall allocate (as tips 
for purposes of the requirements of section 6053(c) among tipped 
employees at such establishment performing services during any payroll 
period an amount equal to the excess of:
    (i) Eight percent of the gross receipts (other than nonallocable 
receipts) of such establishment for the payroll period, over
    (ii) The aggregate amount of tips reported by employees at such 
establishment to the employer under section 6053(a) for such period. For 
this purpose, if an employee reports under section 6053(a) on the basis 
of a period other than a payroll period such employee may specify what 
portion of his or her reported tips are attributable to a given payroll 
period when reporting tips to the employer under section 6053(a). In the 
absence of any specification by the employee, the employer shall 
allocate the amount of tips reported by an employee to a given payroll 
period either:
    (A) By multiplying the aggregate amount of those reported tips by a 
fraction, the numerator of which is the gross receipts attributable to 
the tipped employee for the payroll period and the denominator of which 
is the gross receipts attributable to the employee for the entire tip 
reporting period; or
    (B) By multiplying the aggregate amount of those reported tips by a 
fraction, the numerator of which is the hours worked by the employee 
during the payroll period and the denominator of which is the total 
hours worked by the employee during the entire tip reporting period.

With respect to each establishment, the employer shall choose the method 
described in either paragraph (d)(1)(ii)(A) or paragraph (d)(1)(ii)(B) 
of this section for a calendar year and apply such method consistently 
in making all allocations required by the preceding sentence. If an 
employee is employed in more than one of an employer's food or beverage 
operations, such employee may specify what portion of his or her 
reported tips are attributable to a given operation when reporting tips 
to the employer under section 6053(a). In the absence of any 
specification by the employee, the employer shall allocate the amount of 
tips reported by the employee to a given

[[Page 350]]

food or beverage operation in a manner similar to that provided above 
for allocation of tips among payroll periods. The employer shall choose 
the method described in either paragraph (d)(1)(ii)(A) or paragraph 
(d)(1)(ii)(B) of this section for a calendar year and apply such method 
consistently in making all allocations required by the preceding 
sentence.
    (2) Employer not liable to employees for allocations. An employer 
who makes allocations (as tips for purposes of the requirements of 
section 6053(c) and this section) among such employer's employees in 
accordance with paragraph (d) and either paragraph (e) or (f) of this 
section shall not be liable to any employee if any amount is improperly 
allocated. However, if an employee's total tip allocations for a 
calendar year as reported on Form W-2 varies from the correct allocation 
amount by more than 5 percent of the correct allocation amount, the 
employer shall adjust such employee's allocation. If such an adjustment 
of an employee's allocation is required, the employer shall also review 
all tips allocations made to other employees in the same establishment 
to assure that the error did not distort other allocated amounts by more 
than 5 percent. Any adjustments made for variances of more than 5 
percent shall be reflected in amended W-2's issued to the affected 
employees. Tip allocations made under this section shall have no effect 
on the withholding responsibilities of the employer under subtitle C of 
the Code. Withholding on tips is authorized only with respect to amounts 
of tips reported to employers by employees under section 6053(a).
    (e) Allocation pursuant to a good faith agreement. The amount 
determined under paragraph (d)(2) of this section for each payroll 
period must be allocated among tipped employees providing services 
during such payroll period either on the basis of a good faith agreement 
described in this paragraph, or, if there is no good faith agreement 
applicable with respect to the payroll period on the basis of the 
allocation method provided in paragraph (f) of this section. A good 
faith agreement is a written agreement consented to by the employer and 
at least two-thirds of the members of each occupational category of 
tipped employees (e.g., waiters, busboys, maitre d's) employed in the 
large food or beverage establishment at the time the agreement is 
adopted which:
    (1) Provides for the allocation of the amount described in paragraph 
(d)(1) among tipped employees in a manner that, in combination with the 
tips reported by such employees under section 6053(a), will reflect a 
good faith approximation of the actual distribution of tip income among 
such tipped employees;
    (2) Is effective prospectively beginning with the first day of a 
payroll period that begins after the date of adoption, but in no event 
later than the first day of the succeeding calendar year. However, a 
good faith agreement may be effective for calendar year 1983 if adopted 
on or before December 31, 1983.
    (3) Is adopted at a time when there are tipped employees employed by 
the employer in each occupational category of tipped employees (e.g., 
waiters, busboys, maitre d's) which would be affected by the agreement; 
and
    (4) May be revoked prospectively by a written instrumnent adopted by 
a least two-thirds of the tipped employees who are employed in the 
establishment in occupational categories affected by the agreement at 
the time of the revocation. A revocation of an agreement shall be 
effective only at the beginning of a payroll period.
    (f) Allocation method to be used in the absence of a good faith 
agreement. (1) In a case in which there is no good faith agreement in 
effect and the aggregate amount of tips reported pursuant to section 
6053(a) with respect to a payroll period is less than 8 percent of the 
establishment's gross receipts for the payroll period, the employer 
shall allocate the difference as tips for purposes of section 6053(c) as 
provided in this paragraph. No allocations shall be made to indirectly 
tipped employees. An allocation shall be made to each directly tipped 
employee performing services for the establishment who has a reporting 
shortfall (as determined under paragraph (f)(1)(v) of this section) for 
the payroll period. The amount of each allocation shall be determined in 
the following manner:

[[Page 351]]

    (i) Multiply the amount of the establishment's gross receipts for 
the payroll period by 8 percent (0.08).
    (ii) Determine the aggregate amount of tips reported for the payroll 
period by indirectly tipped employees.
    (iii) Subtract from the amount determined under paragraph (f)(1)(i) 
the aggregate amount of tips reported by indirectly tipped employees as 
determined under paragraph (f)(1)(ii) of this section. The excess is the 
directly tipped employees' aggregate share of 8 percent of the gross 
receipts of the establishment for the payroll period.
    (iv) For each directly tipped employee, multiply the amount 
determined under paragraph (f)(1)(iii) of this section by a fraction, 
the numerator of which is the amount of gross receipts of the 
establishment for the payroll period that is attributable to the 
employee and the denominator of which is the aggregate amount of gross 
receipts for the payroll period that is attributable to all directly 
tipped employees. The product is each directly tipped employee's share 
of 8 percent of the gross receipts of the establishment for the payroll 
period. The employer may determine the fraction described in the first 
sentence of this subparagraph by substituting for the numerator the 
number of hours worked by the directly tipped employee during the 
payroll period and by substituting for the denominator the number of 
hours worked by all directly tipped employees during the payroll period. 
For payroll periods beginning after December 31, 1986, the method of 
allocation described in the preceding sentence may be used only by an 
employer that employs less than the equivalent of 25 full-time employees 
(as defined in paragraph (j)(19) of this section) at the establishment 
during the payroll period.
    (v) For each directly tipped employee, determine the excess, if any, 
of the amount determined under paragraph (f)(1)(iv) of this section over 
the amount reported as tips by the employee for the payroll period 
pursuant to section 6053(a). Such excess, if any, is the employee's 
shortfall for the payroll period.
    (vi) Subtract from the amount determined under paragraph (f)(1)(i) 
of this section the aggregate amount of tips reported pursuant to 
section 6053(a) by all directly and indirectly tipped employees for the 
payroll period. The excess is the amount to be allocated as tips among 
directly tipped employees who had a shortfall for the payroll period as 
determined under paragraph (f)(1)(v) of this section.
    (vii) For each directly tipped employee who had a shortfall for the 
payroll period, multiply the amount determined under paragraph 
(f)(1)(vi) of this section by a fraction, the numerator of which is the 
amount of such employee's shortfall (determined under paragraph 
(f)(1)(v) of this section and the denominator of which is the aggregate 
of all shortfalls for the payroll period for all directly tipped 
employees. The product is the employee's allocation for the payroll 
period.
    (2) The provisions of this paragraph may be illustrated by the 
following examples:

    Example 1. X is a large food or beverage establishment that has 
chosen to make tip allocations using its actual payroll period and gross 
receipts attributable to employees. X had gross receipts for a payroll 
period of $100,000 and tips reported for the payroll period of $6,200. 
Directly tipped employees reported $5,700 while indirectly tipped 
employees reported $500.

------------------------------------------------------------------------
                                                        Gross
                                                      receipts
              Directly tipped employees                  for      Tips
                                                       payroll  reported
                                                       period
------------------------------------------------------------------------
A...................................................    18,000     1,080
B...................................................    16,000       880
C...................................................    23,000     1,810
D...................................................    17,000       800
E...................................................    12,000       450
F...................................................    14,000       680
                                                     -------------------
  Total.............................................   100,000     5,700
------------------------------------------------------------------------

    The allocation computations would be as follows:
    (1) $100,000 (gross receipts) x 0.08=$8,000.
    (2) Tips reported by indirectly tipped employees=$500.
    (3) $8,000-$500 (indirect employees tips)=$7,500.
    (4)

----------------------------------------------------------------------------------------------------------------
                                                                    Directly
                                                                     tipped                             Employee
                     Directly tipped employees                      share of   x    Gross receipts   =  share of
                                                                      8 pct             ratio             8 pct
                                                                      gross                               gross
----------------------------------------------------------------------------------------------------------------
A.................................................................    $7,500        18,000/100,000         1,350
B.................................................................     7,500        16,000/100,000         1,200
C.................................................................     7,500        23,000/100,000         1,725

[[Page 352]]

 
D.................................................................     7,500        17,000/100,000         1,275
E.................................................................     7,500        12,000/100,000           900
F.................................................................     7,500        14,000/100,000         1,050
                                                                   ---------------------------------------------
      Total.......................................................  ........  ...  ...............  ..     7,500
----------------------------------------------------------------------------------------------------------------

    (5)

------------------------------------------------------------------------
                                   Employee
                                   share of        Tips         Employee
    Directly tipped employees        8 pct    -  reported   =  shortfall
                                     gross
------------------------------------------------------------------------
A................................    $1,350        $1,080          $270
B................................     1,200           880           320
C................................     1,725         1,810      .........
D................................     1,275           800           475
E................................       900           450           450
F................................     1,050           680           370
                                  --------------------------------------
      Total shortfall............  ........  ..  ........  ..     1,885
------------------------------------------------------------------------

    Since employee C has no reporting shortfall there is no allocation 
to C.
    (6) $8,000-6,200 (total tips reported)=$1,800 (amount allocable 
among shortfall employees).
    (7)

------------------------------------------------------------------------
                              Allocable        Shortfall       Amount of
     Shortfall employees        amount    x      ratio     =  allocation
------------------------------------------------------------------------
A...........................    $1,800          270/1885           $258
B...........................     1,800          320/1885            306
D...........................     1,800          475/1885            454
E...........................     1,800          450/1885            430
F...........................     1,800          370/1885            353
------------------------------------------------------------------------


    Example 2. Assume the same facts as in example 1 except that the 
employer uses employee hours worked to calculate tip allocations.

------------------------------------------------------------------------
                                                        Hours
                                                       worked
              Directly tipped employees                  in       Tips
                                                       payroll  reported
                                                       period
------------------------------------------------------------------------
A...................................................        40    $1,080
B...................................................        35       880
C...................................................        45     1,810
D...................................................        40       800
E...................................................        15       450
F...................................................        25       680
                                                     -------------------
    Total...........................................       200    $5,700
------------------------------------------------------------------------

    The allocation computations would be as follows:
    (1) $100,000 (gross receipts) x 0.08=$8,000
    (2) Tips reported by indirectly tipped employees=$500
    (3) $8,000-$500 (indirect employees tips)=$7,500
    (4)

------------------------------------------------------------------------
                                    Directly
                                     tipped         Hours       Employee
     Directly tipped employees      share of   x    worked   =  share of
                                      8 pct         ratio         8 pct
                                      gross                       gross
------------------------------------------------------------------------
A.................................    $7,500        40/200        $1,500
B.................................     7,500        35/200         1,313
C.................................     7,500        45/200         1,688
D.................................     7,500        40/200         1,500
E.................................     7,500        15/200           563
F.................................     7,500        25/200           938
------------------------------------------------------------------------

    (5)

------------------------------------------------------------------------
                                   Employee
                                   share of        Tips         Employee
    Directly tipped employees        8 pct    -  reported   =  shortfall
                                     gross
------------------------------------------------------------------------
A................................    $1,500        $1,080          $420
B................................     1,313           880           433
C................................     1,688         1,810      .........
D................................     1,500           800           700
E................................       563           450           113
F................................       938           680           258
                                  --------------------------------------
      Total shortfall............  ........  ..  ........  ..    $1,924
------------------------------------------------------------------------

    Since employee C has no reporting shortfall there is no allocation 
to C.
    (6) $8,000-6,200 (total tips reported)=$1,800 (amount allocable 
among shortfall employees).
    (7)

------------------------------------------------------------------------
                               Allocable       Shortfall       Amount of
     Shortfall employees         amount    x     ratio     =  allocation
------------------------------------------------------------------------
A............................    $1,800        420/1,924          $393
B............................     1,800        433/1,924           405
D............................     1,800        700/1,924           655
E............................     1,800        113/1,924           106
F............................     1,800        258/1,924           241
------------------------------------------------------------------------


    Example 3. X is a large food or beverage establishment that has 
chosen to make tip allocations using a calendar year period. X had gross 
receipts for a calendar year of $2,000,000 and tips reported for the 
calendar year of $176,000. The amount to be allocated as tips is equal 
to the excess of 8 percent of the gross receipts of the establishment 
for the calendar year over the aggregate amount of tips reported by the 
employees of the establishment to the employer under section 6053(a) for 
the calendar year. Because the reported tips for the year ($176,000) are 
in excess of 8 percent of the gross receipts ($2,000,000 x  
.08=$160,000), no tip allocations are made to the employees of this 
establishment for the calendar year.

    Example 4. X is a large food or beverage establishment that has 
chosen to make tip allocations using a calendar year period and gross 
receipts attributable to employees. X had gross receipts for a calendar 
year of $1,500,000 and tips reported for the calendar year of $110,000. 
Directly tipped employees

[[Page 353]]

reported $94,000 while indirectly tipped employees reported $16,000.

------------------------------------------------------------------------
                                                       Gross
                                                     receipts
             Directly tipped employees                  for       Tips
                                                     calendar   reported
                                                       year
------------------------------------------------------------------------
A.................................................     260,000   $18,600
B.................................................     240,000    14,600
C.................................................     380,000    31,200
D.................................................     260,000    13,000
E.................................................     160,000     6,000
F.................................................     200,000    10,600
                                                   ---------------------
      Total.......................................  $1,500,000   $94,000
------------------------------------------------------------------------

    The allocation computations are as follows:
    (1) $1,500,000 (gross receipts)  x 0.08=$120,000.
    (2) Tips reported by indirectly tipped employees=$16,000.
    (3) $120,000-16,000 (indirect employees tips)=$104,000.
    (4)

----------------------------------------------------------------------------------------------------------------
                                                                   Directly
                                                                    tipped                              Employee
                    Directly tipped employees                      share of   X    Gross receipts    =  share of
                                                                    8 pct.             ratio             8 pct.
                                                                    gross                                 gross
----------------------------------------------------------------------------------------------------------------
A...............................................................   $104,000      260,000/1,500,000       $18,027
B...............................................................    104,000      240,000/1,500,000        16,640
C...............................................................    104,000      380,000/1,500,000        26,347
D...............................................................    104,000      260,000/1,500,000        18,027
E...............................................................    104,000      160,000/1,500,000        11,093
F...............................................................    104,000      200,000/1,500,000        13,867
----------------------------------------------------------------------------------------------------------------

    (5)

------------------------------------------------------------------------
                                   Employee
                                   share of        Tips         Employee
    Directly tipped employees       8 pct.    -  reported   =  shortfall
                                     gross
------------------------------------------------------------------------
A................................    18,027        18,600      .........
B................................    16,640        14,600         2,040
C................................    26,347        31,200      .........
D................................    18,027        13,000         5,027
E................................    11,093         6,000         5,093
F................................    13,867        10,600         3,267
                                  --------------------------------------
      Total shortfall............  ........  ..  ........  ..    15,427
------------------------------------------------------------------------

    Since employees A and C do not have a reporting shortfall there are 
no allocations to them.
    (6) $120,000-110,000 (total tips reported)=$10,000 (amount allocable 
among shortfall employees).
    (7)

----------------------------------------------------------------------------------------------------------------
                                                                    Allocable         Shortfall        Amount of
                        Shortfall employees                           amount    x       ratio      =  allocation
----------------------------------------------------------------------------------------------------------------
B.................................................................    10,000        2,040/15,427         $1,322
D.................................................................    10,000        5,027/15,427          3,259
E.................................................................    10,000        5,093/15,427          3,301
F.................................................................    10,000        3,267/15,427          2,118
                                                                   ---------------------------------------------
      Total.......................................................  .........  ...  ............  ..    $10,000
----------------------------------------------------------------------------------------------------------------


    Example 5. Assume the same facts as in example 4 except that the 
employer has chosen the employee hours worked method of computing tip 
allocations, the calendar year gross receipts were $1,000,000, and the 
tips reported for the calendar year were $74,000. Directly tipped 
employees reported $70,000 while indirectly tipped employees reported 
$4,000.

------------------------------------------------------------------------
                                                        Hours
                                                       worked
              Directly tipped employees                in the     Tips
                                                      calendar  reported
                                                        year
------------------------------------------------------------------------
A...................................................    2,000    $11,800
B...................................................    1,750      9,800
C...................................................    2,250     15,100
D...................................................    2,000      9,000
E...................................................      750      4,500
F...................................................    1,250      7,800
G...................................................      490      3,200
H...................................................      510      2,800
I...................................................      200        800
J...................................................    1,000      5,200
                                                     -------------------
  Total.............................................   12,200    $70,000
------------------------------------------------------------------------

    The allocation computations would be as follows:
    (1) $1,000,000 (gross receipts) x 0.08=$80,000.
    (2) Tips reported by indirectly tipped employees=$4,000.
    (3) $80,000-$4,000 (indirect employee tips)=$76,000.
    (4)

------------------------------------------------------------------------
                               Directly
                                tipped                          Employee
  Directly tipped employees    share of   x   Hours worked   =  share of
                                8 pct.            ratio          8 pct.
                                 gross                            gross
------------------------------------------------------------------------
A............................   $76,000       2,000/12,200       $12,459
B............................    76,000       1,750/12,200        10,902
C............................    76,000       2,250/12,200        14,016
D............................    76,000       2,000/12,200        12,459
E............................    76,000         750/12,200         4,672
F............................    76,000       1,250/12,200         7,787
G............................    76,000         490/12,200         3,052
H............................    76,000         510/12,200         3,177
I............................    76,000         200/12,200         1,246
J............................    76,000       1,000/12,200         6,230
                              ------------------------------------------
      Total..................  ........  ...  ............  ..   $76,000
------------------------------------------------------------------------

    (5)

------------------------------------------------------------------------
                                  Employee
                                  share of         Tips         Employee
   Directly tipped employees       8 pct.    -   reported   =  shortfall
                                   gross
------------------------------------------------------------------------
A..............................     12,459         11,800           $659
B..............................     10,902          9,800          1,102
C..............................     14,016         15,100      .........
D..............................     12,459          9,000          3,459
E..............................      4,672          4,500            172
F..............................      7,787          7,800      .........
G..............................      3,052          3,200      .........
H..............................      3,177          2,800            377
I..............................      1,246            800            446
J..............................      6,230          5,200          1,030
                                ----------------------------------------

[[Page 354]]

 
      Total shortfall..........  .........  ..  .........  ..     $7,245
------------------------------------------------------------------------

    Since employees C, F, and G have no reporting shortfalls, there are 
no allocations made to them.
    (6) $80,000-74,000 (total tips reported)=$6,000.
    (7)

------------------------------------------------------------------------
                              Allocable        Shortfall       Amount of
     Shortfall employees        amount    x      ratio     =  allocation
------------------------------------------------------------------------
A...........................    $6,000         659/7,245           $546
B...........................     6,000            1,102/            913
                                                   7,245
D...........................     6,000            3,459/          2,865
                                                   7,245
E...........................     6,000         172/7,245            142
H...........................     6,000         377/7,245            312
I...........................     6,000         446/7,245            369
J...........................     6,000            1,030/            853
                                                   7,245
                             -------------------------------------------
      Total.................  .........  ...  ..........  ..     $6,000
------------------------------------------------------------------------

    (g) Period of allocation. In applying paragraphs (d), (e), (f), and 
(h)(3) of this section an employer may substitute the calendar year or 
any period that results from a reasonable division of a calendar year 
for the term ``payroll period'' each place it appears in such 
paragraphs. If an employer makes such a substitution with respect to a 
large food or beverage establishment the substituted period shall be 
stated on Form 8027 for such large food or beverage establishment and 
shall be effective for such employer's large food or beverage 
establishment for the entire calendar year.
    (h) Lowering the percentage to be used--(1) In general. On and after 
July 18, 1984, an employer or a majority of the employees (as defined in 
paragraph (h)(2)(iii) of this section) of an employer may petition the 
district director for the internal revenue district in which the 
employer's establishment is located to have the percentage of gross 
receipts that is used to determine the amount to be allocated under 
section 6053(c)(3)(A) and paragraph (d) of Sec. 31.6053-3 reduced from 8 
percent to the percentage that the petitioning employer or employees 
believe to be the actual percentage of the amount of the establishment's 
gross receipts that reflects the amount of tips. The district director 
may thereafter reduce the percentage of gross receipts used to determine 
the amount to be so allocated to the percentage that the district 
director determines to be the proper estimate of the actual percentage 
of gross receipts constituting tips. The district director, however, may 
not reduce the percentage below 2 percent. For the rules in effect prior 
to July 18, 1984, see 26 CFR 31.6053-3(h) (Rev. as of April 1, 1984).
    (2) Time and manner for petition to have percentage reduced--(i) In 
general. The petition shall be in writing and shall include sufficient 
information to allow the district director to estimate with reasonable 
accuracy the actual tip rate of the establishment. For example, such 
information might include the charged tip rate, the type of 
establishment, menu prices, the location of the establishment, the 
amount of ``self-service'' required, the days and hours open for 
business, and whether the customer receives the check from or pays the 
server for the meal.
    (ii) Employer petitions. In the case of employer-originated 
petitions, the employer has the burden of supplying sufficient 
information to allow the district director to estimate with reasonable 
accuracy the actual tip rate of the establishment. The employer also 
shall attach to the petition copies of Form 8027 (if any) filed for the 
establishment for the 3 years preceding calendar years.
    (iii) Employee petitions. (A) In the case of employee-originated 
petitions, a majority of the employees of an establishment must consent 
to the petition. A majority for purposes of this paragraph is more than 
one-half of all the directly tipped employees (within the meaning of 
paragraph (j)(12) of this section) employed by the establishment at the 
time the petition is filed. In the case of a single petition for certain 
multi-establishment employers (see paragraph (h)(4) of this section), 
more than one-half of the aggregate directly tipped employees (at the 
time the petition is filed) of the establishments covered by the 
petition must consent. The petition filed with the district director 
must state the total number of directly

[[Page 355]]

tipped employees employed by the establishment (or establishments) and 
the number of the directly tipped employees consenting to the petition.
    (B) The petitioning employees have the burden of supplying 
sufficient information to allow the district director to estimate with 
reasonable accuracy the actual tip rate of the establishment to the 
extent they possess such information. If the employer possesses relevant 
information, the employer must provide such information to the district 
director upon the request of the petitioning employees or district 
director. Employees who file a petition under this paragraph must 
promptly notify their employer of the petition. Promptly upon receipt of 
such notification, their employer must submit to the district director 
copies of the Form 8027 (if any) filed for the establishment for the 3 
immediately preceding calendar years. Any information supplied by the 
employer during the petitioning process constitutes return information 
(as defined in section 6103(b)(2)) which shall not be disclosed by the 
Internal Revenue Service (except as provided in section 6103) to any 
employees of the employer or to representatives of such employees.
    (3) Effective date for reduced percentage. The district director 
shall determine the term for which the reduced percentage is to be 
effective. At the end of such term, the reduced percentage shall cease 
to apply unless previously extended by the district director for the 
district in which the large food or beverage establishment is located. 
In no event shall the reduced percentage be applied to payroll periods 
before the date the petition described in paragraph (h)(2) of this 
section is filed unless the establishment is a new business (as 
described in paragraph (i) of Sec. 31.6053-3). In the case of a new 
business or a petition for reduction filed prior to September 30, 1983, 
the district director may allow the approved reduced percentage to be 
applied retroactively to the first day of the calendar year of the 
petition. Until such time as the employer is notified in writing by the 
district director of approval of a reduction, the employer must continue 
to use 8 percent of gross receipts for purposes of complying with 
section 6053(c) and this section.
    (4) Single petition for certain multi-establishment employers. An 
employer (including a single employer as defined in section 52 (a) or 
(b)) or a majority of the employees of such employer may use a single 
petition for two or more of the employer's establishments if such 
establishments are essentially the same type of business, the 
petitioning employer or employees have made a good faith determination 
that the tip rates at such establishments are essentially the same, and 
the establishments are located in the same internal revenue region. 
Single petitions shall include the names and locations of the 
establishments for which a reduction is requested and the information 
required by paragraph (h)(2) of this section for a typical 
establishment. A single petition for multi-establishments located within 
an internal revenue region shall be filed with the district director for 
the internal revenue district in which the greatest number of the 
establishments included in the petition are located. If there is an 
equal number of establishments located in two or more internal revenue 
districts the employer or employees petitioning may choose the district 
to which the petition is sent.
    (i) Application of reporting requirements to new businesses--(1) In 
general. A food or beverage operation is a new business if the employer 
of the operation did not operate any food or beverage operations during 
the preceding calendar year. An employer will not be considered to have 
operated a food or beverage operation during a calendar year if each 
food or beverage operation of the employer was operated for less than 
one calendar month during such year. In a calendar year in which a food 
or beverage operation is a new business, the determination of whether 
the operation is a large food or beverage establishment shall be made as 
provided in paragraph (i)(2) of this section and the employer shall 
comply with section 6053(c) and this section as provided in paragraph 
(i)(3) of this section.
    (2) Determination of status as a large food or beverage 
establishment. A food or beverage operation shall be considered a large 
food or beverage establishment

[[Page 356]]

during the calendar year in which it is a new business if the average 
number of hours worked per business day by all employees of the employer 
at the new business during each of any two consecutive calendar months 
of the calendar year, computed in the manner provided in the second 
sentence of paragraph (j)(9) of this section, is greater than 80 hours.
    (3) New business compliance under section 6053(c). A new business 
that is determined to be a large food or beverage establishment under 
paragraph (i)(2) of this section shall comply with section 6053(c) and 
this section beginning with the first payroll period that begins after 
the first period of two consecutive calendar months described in 
paragraph (i)(2) of this section.
    (j) Definitions. For purposes of section 6053(c) and this section:
    (1) Gross receipts. Gross receipts shall include all receipts (other 
than nonallocable receipts), from the provision of food or beverages by 
a large food or beverage establishment from cash sales, charge receipts 
(including charged tips only to the extent the cash sales amount has 
been reduced due to the employer paying cash to tipped employees for 
charged tips due them), charges to a hotel room (excluding tips charged 
to a hotel room only to the extent that the employer's accounting 
procedures allow such tips to be segregated out and excluding charges 
that are otherwise included in charge receipts), and the retail value of 
complimentary food or beverages (as defined in paragraph (j)(16) of this 
section) served to customers. Gross receipts shall not include state or 
local taxes. In the case of a trade or business that does not charge 
separately for the provision of food or beverages (i.e., a trade or 
business that provides other goods or services along with food or 
beverages for a combined price, such as a ``package deal'' for food and 
lodging), the employer shall make a good faith estimate of the gross 
receipts attributable to the provision of the food or beverages that 
reflects the cost to the employer of providing the food or beverages 
plus a reasonable profit factor.
    (2) Gross receipts attributable to a directly tipped employee. Gross 
receipts attributable to a directly tipped employee are those gross 
receipts (as defined in paragraph (j)(1) of this section) from the 
provision of food or beverages to customers with respect to which the 
employee provided services. For example, if a directly tipped employee's 
name is on every check given to customers for whom the employee has 
provided services, the gross receipts attributable to such employee 
could be determined by aggregating the amounts of all checks bearing 
that employee's name (other than amounts from nonallocable receipts).
    (3) Nonallocable receipts. Nonallocable receipts are receipts which 
are attributable to carryout sales or to services with respect to which 
a service charge of 10 percent or more is added. Carryout sales are 
sales of food or beverages for consumption off the premises of the 
establishment. Room service is not a carryout sale. If an 
establishment's accounting system does not segregate receipts from 
carryout sales from the establishment's other receipts, receipts from 
carryout sales may be determined as an estimated percentage of total 
receipts. The applicable percentage shall be determined in good faith by 
the employer on the basis of generally accepted accounting practices, 
including but not limited to, surveys of carryout sales as a percentage 
of gross sales. An employer may rely upon estimates as to carryout sales 
which are established in good faith between the employer and state or 
local governments for purposes of state or local taxation.
    (4) Charge receipts. Charge receipts shall include credit card 
charges and charges under any other credit arrangement (e.g., house 
charges, city ledger, and charge arrangements to country club members). 
Charges to a hotel room may be excluded from charge receipts if such 
exclusion is consistent with the employer's normal accounting practices 
and the employer applies such exclusion consistently for a given large 
food or beverage establishment. Otherwise, charges to a hotel room shall 
be included in charge receipts.
    (5) Charged tips. A tip included on a charge receipt is a charged 
tip.
    (6) Food or beverage operation. A ``food or beverage operation'' is 
any business

[[Page 357]]

activity which provides food or beverages for consumption on the 
premises (other than ``fast food'' operations). If an employer conducts 
activities that provide food or beverages at more than one location, the 
activity at each separate location shall be considered to be a separate 
food or beverage operation, Each activity conducted within a single 
building shall be considered to be conducted at a separate location if 
the customers of the activity, while being provided with food or 
beverages, occupy an area separate from that occupied by customers of 
other activities and the gross receipts of the activity are recorded 
separately from the gross receipts of other activities. For example, a 
gourmet restaurant, a coffee shop, and a cocktail lounge in a hotel 
would each be treated as a separate food or beverage operation if gross 
receipts from each activity are recorded separately. In addition, an 
employer may treat different activities conducted in the identical place 
at different times as separate food or beverage operations if the gross 
receipts of the activities at each time are recorded separately. For 
example, a restaurant may record the gross receipts from its cafeteria 
style lunch operation separately from the gross receipts of its full 
service food or beverage operations.
    (7) Large food or beverage establishment. A food or beverage 
operation is a ``large food or beverage establishment'' if:
    (i) The employer at the food or beverage operation normally employed 
more than 10 employees on a typical business day during the preceding 
calendar year, and
    (ii) The tipping of food or beverage employees of the food or 
beverage operation is customary. Generally, tipping would not be 
considered customary for a cafeteria style operation (as defined in 
paragraph (j)(18) of this section) or for a food or beverage operation 
where at least 95 percent of its total sales are nonallocable receipts, 
within the meaning of paragraph (j)(3) of this section, by reason of the 
addition of a service charge of 10 percent or more. Total sales shall 
include only gross receipts (as defined in paragraph (j)(1) of this 
section) and nonallocable receipts (other than carryout receipts) from 
the provision of food or beverages. In the case of an operation such as 
a restaurant that is a cafeteria style operation at lunch and that has 
full service with tipping customary at dinner, the entire operation is 
generally a large food or beverage establishment if the employer meets 
the 10-employee test. However, if the gross receipts of the cafeteria 
style operation at lunch are recorded separately from the dinner 
operation gross receipts the employer may treat the dinner operation as 
a large food or beverage establishment and the lunch operation as a 
separate food or beverage operation that is not a large food or beverage 
establishment due to the fact that tipping is not considered customary 
for cafeteria style operations.
    (8) Employee. The term ``employee'' has the same meaning as in 
section 3401(c) and Sec. 31.3401(c)-1.
    (9) More than 10 employees on a typical business day. An employer 
shall be considered to have normally employed more than 10 employees on 
a typical business day during a calendar year if one-half of the sum of 
the average number of employee hours worked per business day during the 
calendar month in which the aggregate gross receipts from food or 
beverage operations were the greatest plus the average number of 
employee hours worked per business day during the calendar month in 
which the aggregate gross receipts from food or beverage operations were 
the least, is greater than 80 hours. The average number of employee 
hours worked per business day during a month shall be computed by 
dividing the total number of hours worked during the month by all 
employees of the employer who are employed in a food or beverage 
operation by the average of the number of days during the month that 
each food or beverage operation at which such employees worked was open 
for business. If an employer operates both a food or beverage operation 
and a nonfood or beverage operation, and one or more of his or her 
employees work for both operations, the employer may make a good faith 
estimate of the number of hours such employees worked for each operation 
in a given month. Similarly, in cases where one or more of an employer's 
employees work for more

[[Page 358]]

than one of such employer's food or beverage operations, a good faith 
estimate may be made of the number of hours such employees worked for 
each operation in a given month. For purposes of this subparagraph, 
employees who are employed in a food or beverage operation include all 
employees of the operation, not just food or beverage employees. The 
employees of an employer shall include all employees at all food or 
beverage operations who, along with the employees of such employer, 
would be treated as employees of a single employer under section 52 (a) 
or (b) (as in effect on September 3, 1982) and the regulations 
thereunder. For example, if an employer at a food or beverage operation 
is a member of a controlled group of corporations, then all employees of 
all corporations which are members of such controlled group of 
corporations shall be treated as employed by each such employer for 
purposes of this paragraph. However, an individual who owns 50 percent 
or more in value of the stock of a corporation operating an 
establishment shall not be treated as an employee of any establishment 
owned by the corporation.
    (10) Food or beverage employee. A ``food or beverage employee'' is 
an employee who provides services in connection with the provision of 
food or beverages. Such employees include, but are not limited to, 
waiters, waitresses, busboys, bartenders, persons in charge of seating 
(such as a hostess, maitre d' or dining room captain), wine stewards, 
cooks, and kitchen help. Examples of employees who are not food or 
beverage employees include, but are not limited to, coat check persons, 
bellhops, and doormen.
    (11) Tipped employee. A ``tipped employee'' of a food or beverage 
operation is an employee who is a food or beverage employee that 
customarily receives tip income from employment at that operation. An 
employee who occasionally receives small amounts of tip income is not a 
tipped employee. Generally, an employee who receives less than $20 per 
month in tip income would not be considered as customarily receiving tip 
income.
    (12) Directly tipped employee. A ``directly tipped employee'' is any 
tipped employee who receives tips directly from customers, including an 
employee who after receiving tips directly from customers turns all the 
tips over to a tip pool. Examples of directly tipped employees are 
waiters, waitresses, and bartenders.
    (13) Indirectly tipped employee. An ``indirectly tipped employee'' 
is a tipped employee who does not normally receive tips directly from 
customers. Examples of indirectly tipped employees are busboys, service 
bartenders and cooks. An employee, such as a maitre d', who receives 
tips both directly from customers and indirectly through tip splitting 
or tip pooling shall be treated as a directly tipped employee.
    (14) Calendar year. The term ``calendar year'' shall mean either the 
period from January 1 through December 31 or the period that begins with 
the first day of the first payroll period ending on or after January 1 
and ends with the last day of the last payroll period ending in December 
of the same year. With respect to any establishment, the employer shall 
choose one of these two descriptions and apply it consistently.
    (15) Tips reported for a specified period. Tips reported to an 
employer for a specified period under section 6053(a) are those tips 
actually received by an employee during such period without regard to 
the time when the tips are reported to the employer. Thus, if an 
employee reports to the employer in calendar year 1984 tips the employee 
actually received in calendar year 1983, the amount of tips actually 
received in calendar year 1983 must be included by the employer when 
making such information returns, statements and allocations required 
under section 6053(c) and this section for calendar year 1983.
    (16) Complimentary food or beverages. Food or beverages served to 
customers without charge are complimentary if:
    (i) Tipping for the provision of such food or beverages is customary 
at the establishment, and
    (ii) Such food or beverages are provided in connection with an 
activity that is engaged in for profit and whose receipts would not be 
included in gross receipts as defined in paragraph (j)(1) of this 
section but for this subparagraph and are not nonallocable receipts 
which are attributable to services with

[[Page 359]]

respect to which a service charge of 10 percent or more is added.

For example, the retail values of complimentary hors d'oeuvres served at 
a bar or a complimentary dessert served to a regular patron of a 
restaurant would not be included in gross receipts because the receipts 
of the bar or restaurant would be included in gross receipts as defined 
in paragraph (j)(1) of this section. The retail value of a complimentary 
fruit basket placed in a hotel room generally would not be included in 
gross receipts because tipping for the provision of such items is not 
customary. The retail value of complimentary drinks served to customers 
in a gambling casino would be included in gross receipts because tipping 
for the provision of such items is customary, the gambling casino is an 
activity engaged in for profit, and the gambling receipts of the casino 
would not be included in gross receipts as defined in paragraph (j)(1) 
of this section except for this subparagraph.
    (17) Fast food operation. An operation is a ``fast food'' operation 
only if its customers order, pick up, and pay for food or beverages at a 
counter, window, etc., and then carry the food or beverages to another 
location (either on or off the premises of such activities).
    (18) Cafeteria style operation. The term ``cafeteria style'' 
operation means a food or beverage operation which is primarily self-
service and in which the total cost of food or beverages selected by a 
customer is paid prior to the customer's being seated or is stated on a 
check provided to the customer prior to the customer's being seated and 
is paid by the customer to a cashier. Generally, operations are 
primarily self-service if food or beverages are ordered or selected by a 
customer at one location and carried by the customer from such location 
to the customer's seat. For example, cafeteria lines, buffets, and 
smorgasbords are primarily self-service. If, after a customer is seated, 
a food or beverage employee delivers items such as an item that required 
additional preparation after being selected by the customer, condiments, 
beverages, or refills at no additional cost to the customer, a food or 
beverage operation's status as primarily self-service would not be 
affected.
    (19) Less than the equivalent of 25 full-time employees. For 
purposes of paragraph (f)(1)(iv) of this section, an employer shall be 
considered to employ less than the equivalent of 25 full-time employees 
at an establishment during a payroll period (as defined in section 
3401(b) and the regulations thereunder) if the average number of 
employee hours worked per business day during a payroll period is less 
than 200 hours. The average number of employee hours worked per business 
day during a payroll period shall be computed by dividing the total 
number of hours worked during the period by all employees of the 
employer who are employed in a food or beverage operation by the average 
of the number of days during the period that each food or beverage 
operation at which such employees worked was open for business. If an 
employer operates both a food or beverage operation and a nonfood or 
beverage operation, and one or more of his employees work for both 
operations, the employer may make a good faith estimate of the number of 
hours such employees worked for each operation in a given payroll 
period. Similarly, in cases where one or more of an employer's employees 
work for more than one of such employer's food or beverage operations, a 
good faith estimate may be made of the number of hours such employees 
worked for each operation in a given payroll period. If there is more 
than one payroll period for the establishment, the payroll period which 
is used for the greatest number of employees shall be the payroll period 
for purposes of this paragraph (j)(19). For purposes of this paragraph 
(j)(19), employees who are employed in a food or beverage operation 
include all employees of the operation, not just food or beverage 
employees. The employees of an employer shall include all employees at 
all food or beverage operations who, along with the employees of such 
employer, would be treated as employees of a single employer under 
section 52 (a) or (b) (as in effect on September 3, 1982) and the 
regulations thereunder. For example, if an employer at a food or 
beverage operation is a member of a controlled group of corporations, 
then all employees of all corporations which are members of such 
controlled group

[[Page 360]]

of corporations shall be treated as employed by each such employer for 
purposes of this paragraph.
    (k) Permission to submit information on magnetic tape. For rules 
relating to permission to submit the information required by section 
6053(c) and this section on magnetic tape of other media, see 
Sec. 31.6011 (a)-8.
    (l) Recordkeeping requirements. An employer shall keep records 
sufficient to substantiate any information returns, employer statements 
to employees, applications, or tip allocations made pursuant to section 
6053(c) and this section. The records required by this paragraph shall 
be retained for 3 years after the due date of the return or statement to 
which they pertain.
    (m) Food or beverage operations outside the United States. Employers 
at food or beverage operations outside the United States (as defined in 
section 7701(a)(9)) are not subject to the reporting requirements under 
section 6053(c) and this section.
    (n) Effective date. This section is effective for calendar year 1983 
and thereafter.

(96 Stat. 603, 26 U.S.C. 6053(c); 68A Stat. 917, 26 U.S.C. 7805)


[T.D. 7906, 48 FR 36809, Aug. 15, 1983; 48 FR 40518, Sept. 8, 1983, as 
amended by T.D. 8039, 50 FR 29965, July 23, 1985; T.D. 8141, 52 FR 
21511, June 8, 1987]



Sec. 31.6053-4  Substantiation requirements for tipped employees.

    (a) Substantiation of tip income--(1) In general. An employee shall 
maintain sufficient evidence to establish the amount of tip income 
received by the employee during a taxable year. A daily record 
maintained by the employee (as described in paragraph (a)(2) of this 
section) shall constitute sufficient evidence. If the employee does not 
maintain a daily record, other evidence of the amount of tip income 
received during the year, such as documentary evidence (as described in 
paragraph (a)(3) of this section), shall constitute sufficient evidence, 
but only if such other evidence is as credible and as reliable as a 
daily record. However, notwithstanding any other provision of this 
paragraph (a) (1), a daily record or other evidence that is as credible 
and as reliable as a daily record may not be sufficient evidence if 
there are facts or circumstances which indicate that the employee 
received a larger amount of tip income. Moreover, oral statements of the 
employee, without corroboration, cannot constitute sufficient evidence.
    (2) Daily record. The daily record shall state the employee's name 
and address, the employer's name, and the establishment's name. The 
daily record shall show for each work day the amount of cash tips and 
charge tips received directly from customers or from other employees, 
and the amount of tips, if any, paid out to other employees through tip 
sharing, tip pooling or other arrangements and the names of such 
employees. The record shall also show the date that each entry is made. 
Form 4070A, Employee's Daily Record of Tips, may be used to maintain 
such daily record. The daily record of tips received by an employee 
shall be prepared and maintained in such manner that each entry is made 
on or near the date the tip income is received. A daily record made on 
or near the date the tip income is received has a high degree of 
credibility not present with respect to a record prepared subsequent 
thereto when generally there is a lack of accurate recall. An entry is 
made ``near the date the tip income is received'' if the required 
information with respect to tips received and paid out by the employee 
for the day is recorded at a time when the employee has full present 
knowledge of those receipts and payments.
    (3) Documentary evidence. Documentary evidence consists of copies of 
any documents that contain (i) amounts that were added to a check by 
customers as a tip and paid over to the employee or (ii) amounts that 
were paid by a customer for food or beverages with respect to which tips 
generally would be received by the employee. Examples of documentary 
evidence are copies of restaurant bills, credit card charges, or charges 
under any other arrangement (see Sec. 31.6053-3(j)(4)) containing 
amounts added by the customer as a tip.
    (b) Retention of records. Records maintained under this section 
shall be kept at all times available for inspection by authorized 
internal revenue officers or

[[Page 361]]

employees, and shall be retained so long as the contents thereof may 
become material in the administration of any internal revenue law.
    (c) Effective date. The substantiation requirements of this 
Sec. 31.6053-4 shall be effective for tips received on or after October 
1, 1985. For the rules in effect prior to October 1, 1985, see section 
6001 and the regulations thereunder. Substantiation considered 
sufficient as provided in this Sec. 31.6053-4 will also be considered 
sufficient for tips received before October 1, 1985.

[T.D. 8141, 52 FR 21513, June 8, 1987]



Sec. 31.6061-1  Signing of returns.

    Each return required under the regulations in this subpart shall, if 
signature is called for by the form or instructions relating to the 
return, be signed by (a) the individual, if the person required to make 
the return is an individual; (b) the president, vice president, or other 
principal officer, if the person required to make the return is a 
corporation; (c) a responsible and duly authorized member or officer 
having knowledge of its affairs, if the person required to make the 
return is a partnership or other unincorporated organization; or (d) the 
fiduciary, if the person required to make the return is a trust or 
estate. The return may be signed for the taxpayer by an agent who is 
duly authorized in accordance with Sec. 31.6011(a)-7 to make such 
return.



Sec. 31.6065(a)-1  Verification of returns or other documents.

    If a return, statement, or other document made under the regulations 
in this part is required by the regulations contained in this part, or 
the form and instructions issued with respect to such return, statement, 
or other document, to contain or be verified by a written declaration 
that it is made under the penalties of perjury, such return, statement, 
or other document shall be so verified by the person signing it.



Sec. 31.6071(a)-1  Time for filing returns and other documents.

    (a) Federal Insurance Contributions Act and income tax withheld from 
wages and from nonpayroll payments--(1) Quarterly or annual returns. 
Except as provided in subparagraph (4) of this paragraph each return 
required to be made under Sec. 31.6011(a)-1, in respect of the taxes 
imposed by the Federal Insurance Contributions Act, or required to be 
made under Sec. 31.6011(a)-4, in respect of income tax withheld, shall 
be filed on or before the last day of the first calendar month following 
the period for which it is made. However, a return may be filed on or 
before the 10th day of the second calendar month following such period 
if timely deposits under section 6302(c) of the Code and the regulations 
thereunder have been made in full payment of such taxes due for the 
period. For the purpose of the preceding sentence, a deposit which is 
not required by such regulations in respect of the return period may be 
made on or before the last day of the first calendar month following the 
close of such period, and the timeliness of any deposit will be 
determined by the earliest date stamped on the applicable deposit form 
by an authorized financial institution or by a Federal Reserve bank.
    (2) Monthly tax returns. Each return in respect of the taxes imposed 
by the Federal Insurance Contributions Act or of income tax withheld 
which is required to be made under paragraph (a) of Sec. 31.6011(a)-5 
shall be filed on or before the fifteenth day of the first calendar 
month following the period for which it is made.
    (3) Information returns--(i) General rule. Each information return 
in respect of wages as defined in the Federal Insurance Contributions 
Act or of income tax withheld from wages which is required to be made 
under Sec. 31.6051-2 shall be filed on or before the last day of 
February following the calendar year for which it is made, except that, 
if a tax return under paragraph (a) of Sec. 31.6011(a)-5 is filed as a 
final return for a period ending prior to December 31, the information 
statement shall be filed on or before the last day of the second 
calendar month following the period for which the tax return is filed.
    (ii) Expedited filing--(A) General rule. If an employer who is 
required to make a return pursuant to Sec. 31.6011(a)-1 or 
Sec. 31.6011(a)-4 is required to make a final return on Form 941, or a 
variation

[[Page 362]]

thereof, under Sec. 31.6011(a)-6(a)(1) (relating to the final return for 
Federal Insurance Contributions Act taxes and income tax withholding 
from wages), the return which is required to be made under Sec. 31.6051-
2 must be filed on or before the last day of the second calendar month 
following the period for which the final return is filed. The 
requirements set forth in this paragraph (a)(3)(ii) do not apply to 
employers with respect to employees whose wages are for domestic service 
in the private home of the employer. See Sec. 31.6011(a)-1(a)(3).
    (B) Effective date. This paragraph (a)(3)(ii) is effective January 
1, 1997.
    (4) Employee returns under Federal Insurance Contributions Act. A 
return of employee tax under section 3101 required under paragraph (d) 
of Sec. 31.6011(a)-1 to be made by an individual for a calendar year on 
Form 1040 shall be filed on or before the due date of such individual's 
return of income (see Sec. 1.6012-1 of this chapter (Income Tax 
Regulations)) for the calendar year, or, if the individual makes his 
return of income on a fiscal year basis, on or before the due date of 
his return of income for the fiscal year beginning in the calendar year 
for which a return of employee tax is required. A return of employee tax 
under section 3101 required under paragraph (d) of Sec. 31.601(a)-1 to 
be made for a calendar year--
    (i) On Form 1040SS or Form 1040PR, or
    (ii) On Form 1040 by an individual who is not required to make a 
return of income for the calendar year or for a fiscal year beginning in 
such calendar year,

shall be filed on or before the 15th day of the fourth month following 
the close of the calendar year.
    (b) Railroad Retirement Tax Act. Each return of the taxes imposed by 
the Railroad Retirement Tax Act required to be made under 
Sec. 31.6011(a)-2 shall be filed on or before the last day of the second 
calendar month following the period for which it is made.
    (c) Federal Unemployment Tax Act. Each return of the tax imposed by 
the Federal Unemployment Tax Act required to be made under 
Sec. 31.6011(a)-3 shall be filed on or before the last day of the first 
calendar month following the period for which it is made. However, a 
return for a period which ends after December 31, 1970, may be filed on 
or before the 10th day of the second calendar month following such 
period if timely deposits under section 6302(c) of the Code and the 
regulations thereunder have been made in full payment of such tax due 
for the period. For the purpose of the preceding sentence, a deposit 
which is not required by such regulations in respect of the return 
period may be made on or before the last day of the first calendar month 
following the close of such period, and the timeliness of any deposit 
will be determined by the date the deposit is received (or is deemed 
received under section 7502(e)) by a Federal Reserve bank or by an 
authorized financial institution whichever is earlier.
    (d) Last day for filing. For provisions relating to the time for 
filing a return when the prescribed due date falls on Saturday, Sunday, 
or a legal holiday, see the provisions of Sec. 301.7503-1 of this 
chapter (Regulations on Procedure and Administration).
    (e) Late filing. For additions to the tax in case of failure to file 
a return within the prescribed time, see the provisions of 
Sec. 301.6651-1 of this chapter (Regulations on Procedure and 
Administration).
    (f) Cross reference. For extensions of time for filing returns and 
other documents, see Sec. 31.6081(a)-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6941, 32 FR 
18041, Dec. 16, 1967; T.D. 7001, 34 FR 1005, Jan. 23, 1969; T.D. 7078, 
35 FR 18525, Dec. 5, 1970; T.D. 7351, 40 FR 17146, Apr. 17, 1975; T.D. 
7953, 49 FR 19644, May 9, 1984; T.D. 8504, 58 FR 68035, Dec. 23, 1993]



Sec. 31.6071(a)-1A  Time for filing returns with respect to the railroad unemployment repayment tax.

    (a) In general. Each return of the taxes imposed under section 3321 
(a) and (b) required to be made under Sec. 31.6011(a)-3A shall be filed 
on or before the last day of the second calendar month following the 
period for which it is made.
    (b) Last day for filing. For provisions relating to the time for 
filing a return when the prescribed due date falls on Saturday, Sunday, 
or a legal holiday,

[[Page 363]]

see the provisions of Sec. 301.7503-1 of this chapter (Regulations on 
Procedure and Administration).
    (c) Late filing. For additions to the tax in the case of failure to 
file a return within the prescribed time, see the provisions of 
Sec. 301.6651-1 of this chapter (Regulations on Procedure and 
Administration).

[T.D. 8105, 51 FR 40169, Nov. 5, 1986. Redesignated and amended at T.D. 
8227, 53 FR 34736, Sept. 8, 1988]



Sec. 31.6081(a)-1  Extensions of time for filing returns and other documents.

    (a) Federal Insurance Contributions Act; income tax withheld from 
wages; and Railroad Retirement Tax Act--(1) In general. Except as 
otherwise provided in subparagraphs (2) and (3) of this paragraph, no 
extension of time for filing any return or other document required in 
respect of the Federal Insurance Contributions Act, income tax withheld 
from wages, or the Railroad Retirment Tax Act will be granted.
    (2) Information returns of employers required to file monthly 
returns of tax under the Federal Insurance Contributions Act. The 
district director or director of a service center may, upon application 
of the employer, grant an extension of time in which to file any 
information return required under paragraph (b)(1) of Sec. 31.6011(a)-5. 
Such extension of time shall not extend beyond the last day of the 
calendar month in which occurs the due date prescribed in paragraph 
(a)(3)(i) of Sec. 31.6071(a)-1 for filing the information return. Each 
application for an extension of time for filing an information return 
shall be made in writing, properly signed by the employer or his duly 
authorized agent. Except as provided in paragraph (b) of Sec. 301.6091-1 
(relating to hand-carried documents), each application shall be 
addressed to the internal revenue officer with whom the employer will 
file the return. Each application shall contain a full recital of the 
reasons for requesting the extension, to aid the officer in determining 
the period of the extension, if any, which will be granted. Such a 
request in the form of a letter to such internal revenue officer will 
suffice as an application. The application shall be filed on or before 
the due date prescribed in paragraph (a)(3)(i) of Sec. 31-6071(a)-1 for 
filing the information return.
    (3) Information returns of employers on Forms W-2 and W-3--(i) In 
general. The Director, Martinsburg Computing Center, may grant an 
extension of time in which to file the Social Security Administration 
copy of Forms W-2 and the accompanying transmittal form which 
constitutes an information return under paragraph Sec. 31.6051-2(a). The 
request must contain a concise statement of the reasons for requesting 
the extension. The request must be mailed or delivered on or before the 
date on which the employer is required to file the Form W-2 with the 
Social Security Administration.
    (ii) Automatic Extension of Time. The Commissioner may, in 
appropriate cases, publish procedures for automatic extensions of time 
to file Forms W-2 where the employer is required to file the Form W-2 on 
an expedited basis.
    (b) Federal Unemployment Tax Act. The district director or director 
of a service center may, upon application of the employer, grant a 
reasonable extension of time (not to exceed 90 days) in which to file 
any return required in respect of the Federal Unemployment Tax Act. Any 
application for an extension of time for filing the return shall be in 
writing, properly signed by the employer or his duly authorized agent. 
Except as provided in paragraph (b) of Sec. 301.6091-1 (relating to 
hand-carried documents), each application shall be addressed to the 
internal revenue officer with whom the employer will file the return. 
Each application shall contain a full recital of the reasons for 
requesting the extension, to aid such officer in determining the period 
of the extension, if any, which will be granted. Such a request in the 
form of a letter to such internal revenue officer will suffice as an 
application. The application shall be filed on or before the due date 
prescribed in paragraph (c) of Sec. 31.6071(a)-1 for filing the return, 
or on or before the date prescribed for filing the return in any prior 
extension granted. An extension of time for filing a return does not 
operate to extend the time for payment of the tax or any part thereof.

[[Page 364]]

    (c) Duly authorized agent. In any case in which an employer is 
unable, by reason of illness, absence, or other good cause, to sign a 
request for an extension, any person standing in close personal or 
business relationship to the employer may sign the request on his 
behalf, and shall be considered as a duly authorized agent for this 
purpose, provided the requests sets forth the reasons for a signature 
other than the employer's and the relationship existing between the 
employer and the signer.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6950, 33 FR 
5358, Apr. 4, 1968; T.D. 7351, 40 FR 17146, Apr. 17, 1975]



Sec. 31.6091-1  Place for filing returns.

    (a) Persons other than corporations. The return of a person other 
than a corporation shall be filed with the district director for the 
internal revenue district in which is located the principal place of 
business or legal residence of such person. If such person has no 
principal place of business or legal residence in any internal revenue 
district, the return shall be filed with the District Director at 
Baltimore, Maryland, except as provided in paragraph (c) of this 
section.
    (b) Corporations. The return of a corporation shall be filed with 
the district director for the district in which is located the principal 
place of business or principal office or agency of the corporation, 
except as provided in paragraph (c) of this section.
    (c) Returns of taxpayers outside the United States. The return of a 
person (other than a corporation) outside the United States having no 
legal residence or principal place of business in any internal revenue 
district, or the return of a corporation having no principal place of 
business or principal office or agency in any internal revenue district, 
shall be filed with the Director of International Operations, Internal 
Revenue Service, Washington, D.C. 20225, unless the principal place of 
business or legal residence of such person, or the principal place of 
business or principal office or agency of such corporation, is located 
in the Virgin Islands or Puerto Rico, in which case the return shall be 
filed with the Director of International Operations, U.S. Internal 
Revenue Service, Hato Rey, Puerto Rico 00917.
    (d) Returns filed with internal revenue service centers or Social 
Security Administration office. Notwithstanding paragraphs (a), (b), and 
(c) of this section, whenever instructions applicable to such returns 
provide that the returns shall be filed with an internal revenue service 
center or an office of the Social Security Administration, such returns 
shall be so filed in accordance with such instructions.
    (e) Hand-carried returns. Except as provided in subparagraph (3) of 
this paragraph, and notwithstanding paragraphs (1) and (2) of section 
6091(b) and paragraph (d) of this section--
    (1) Persons other than corporations. Returns of persons other than 
corporations which are filed by hand carrying shall be filed with the 
district director (or with any person assigned the administrative 
supervision of an area, zone or local office constituting a permanent 
post of duty within the internal revenue district of such director) as 
provided in paragraph (a) of this section.
    (2) Corporations. Returns of corporations which are filed by hand 
carrying shall be filed with the district director (or with any person 
assigned the adminstrative supervision of an area, zone or local office 
constituting a permanent post of duty within the internal revenue 
district of such director) as provided in paragraph (b) of this section.
    (3) Exceptions. This paragraph shall not apply to returns of--
    (i) Persons who have no legal residence, no principal place of 
business, nor principal office or agency in any internal revenue 
district,
    (ii) Citizens of the United States whose principal place of abode 
for the period with respect to which the return is filed is outside the 
United States,
    (iii) Persons who claim the benefits of section 911 (relating to 
earned income from sources without the United States), section 922 
(relating to special deduction for Western Hemisphere trade 
corporations), section 931 (relating to income from sources within 
possessions of the United States), section 933 (relating to income from 
sources

[[Page 365]]

within Puerto Rico), or section 941 (relating to the special deduction 
for China Trade Act corporations), and
    (iv) Nonresident alien persons and foreign corporations.
    (f) Permission to file in district other than required district. The 
Commissioner may permit the filing of any return required to be made 
under the regulations in this subpart in any internal revenue district, 
notwithstanding the provisions of paragraphs (1), (2), and (4) of 
section 6091(b) and paragraphs (a), (b), (c), (d), and (e) of this 
section.
    (g) Returns of officers and employees of the Internal Revenue 
Service. The Commissioner may require any officer or employee of the 
Internal Revenue Service to file any return required of him under the 
regulations in this subpart in any internal revenue district selected by 
the Commissioner, notwithstanding the provisions of paragraphs (1), (2), 
and (4) of section 6091(b) and paragraphs (a), (b), (c), (d), and (e) of 
this section.

(68A Stat. 747, 26 U.S.C. 6051; 68A Stat. 917, 26 U.S.C. 7805)


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6915, 32 FR 
5261, Mar. 29, 1967; T.D. 7495, 42 FR 33727, July 1, 1977; T.D. 7580, 43 
FR 60160, Dec. 26, 1978]



Sec. 31.6101-1  Period covered by returns.

    The period covered by any return required under the regulations in 
this subpart shall be as provided in those provisions of the regulations 
under which the return is required to be made. See Sec. 31.6011(a)-1, 
relating to returns of taxes under the Federal Insurance Contributions 
Act; Sec. 31.6011(a)-2, relating to returns of taxes under the Railroad 
Retirement Tax Act; Sec. 31.6011(a)-3, relating to returns of tax under 
the Federal Unemployment Tax Act; Sec. 31.6011(a)-4, relating to returns 
of income tax withheld under section 3402; and Sec. 31.6011 (a)-5, 
relating to monthly returns of taxes under the Federal Insurance 
Contributions Act and of income tax withheld under section 3402.



Sec. 31.6109-1  Supplying of identifying numbers.

    (a) In general. The returns, statements, and other documents 
required to be filed under this subchapter shall reflect such 
identifying numbers as are required by each return, statement, or 
document and its related instructions. See Sec. 301.6109-1 of this 
chapter (Regulations on Procedure and Administration).
    (b) Effective date. The provisions of this section are effective for 
information which must be furnished after April 15, 1974. See 26 CFR 
Sec. 31.6109-1 (revised as of April 1, 1973) for provisions with respect 
to information which must be furnished before April 16, 1974.

[39 FR 9946, Mar. 15, 1974]



Sec. 31.6151-1  Time for paying tax.

    (a) In general. The tax required to be reported on each tax return 
required under this subpart is due and payable to the internal revenue 
officer with whom the return is filed at the time prescribed in 
Sec. 31.6071(a)-1 for filing such return. See the applicable sections in 
Part 301 of this chapter (Regulations on Procedure and Administration), 
for provisions relating to interest on underpayments, additions to tax, 
and penalties.
    (b) Cross references. For provisions relating to the use of Federal 
Reserve banks and authorized financial institutions in depositing the 
taxes, see Secs. 31.6302(c)-1, 31.6302(c)-2, and 31.6302(c)-3. For rules 
relating to the payment of taxes in nonconvertible foreign currency, see 
Sec. 301.6316-7 of this chapter (Regulations on Procedure and 
Administration).

[T.D. 6872, 31 FR 149, Jan. 6, 1966; T.D. 6915, 32 FR 5261, Mar. 29, 
1967; T.D. 7037, 35 FR 6709, Apr. 28, 1970; T.D. 7953, 49 FR 19644, May 
9, 1984]



Sec. 31.6157-1  Cross reference.

    For provisions relating to the time and manner of depositing the tax 
imposed by section 3301, see the provisions of Sec. 31.6302(c)-3. For 
provisions relating to the time and manner of depositing the railroad 
unemployment repayment tax imposed by section 3321(a), see 
Sec. 31.6302(c)-2A.

[T.D. 7037, 35 FR 6709, Apr. 28, 1970, as amended at T.D. 8227, 53 FR 
34736, Sept. 8, 1988]



Sec. 31.6161(a)(1)-1  Extensions of time for paying tax.

    No extension of time will be granted for payment of any of the taxes 
to

[[Page 366]]

which the regulations in this part have application.



Sec. 31.6205-1  Adjustments of underpayments.

    (a) In general. (1) An employer who makes, or has made, an 
undercollection or underpayment of--
    (i) Employee tax under section 3101, employer tax under section 
3111, or the employee or employer tax under corresponding provisions of 
prior law,
    (ii) Employee tax under section 3201, employer tax under section 
3221, or the employee or employer tax under corresponding provisions of 
prior law, or
    (iii) Income tax required under section 3402 to be withheld,

with respect to any payment of wages or compensation, shall correct such 
error as provided in this section. Such correction shall constitute an 
adjustment without interest to the extent provided in paragraph (b) or 
(c) of this section.
    (2) Every correction under this section of an underpayment of tax 
with respect to a payment of wages or compensation shall be made on the 
return form which is prescribed for use, at the time the correction is 
made, in reporting tax which corresponds to the tax underpaid.
    (3) Every return or supplemental return on which an underpayment is 
corrected pursuant to this section must have securely attached as a part 
thereof a statement explaining the correction, designating the return 
period in which the error was ascertained and the return period to which 
the error relates, and setting forth such other information as may be 
required by the regulations in this subpart and by the instructions 
relating to the return.
    (4) For purposes of this section, an error is ascertained when the 
employer has sufficient knowledge of the error to be able to correct it.
    (5) If a correction is made under this section with respect to the 
erroneous reporting on a return, or omission from a return, under the 
Federal Insurance Contributions Act, as in effect prior to or on and 
after January 1, 1955, of an amount of wages required to be shown on the 
return as a separate item in respect of a particular employee, the 
statement referred to in paragraph (a)(3) of this section shall include 
the following information:
    (i) The name and account number of each employee whose wages were 
erroneously reported or omitted from such return,
    (ii) The period for which such wages were required to be reported on 
such return,
    (iii) The amount, if any, of wages actually reported on such return 
for each such employee, and
    (iv) The amount of wages which should have been reported on such 
return for each such employee.

No particular form is prescribed for furnishing the information required 
by this subparagraph, but if printed forms are desired, the district 
director will supply Form 941c or Form 941c PR, whichever is 
appropriate, upon request.
    (6) No underpayment shall be reported pursuant to this section after 
receipt from the district director of notice and demand for payment 
thereof based upon an assessment, but the amount shall be paid in 
accordance with such notice and demand.
    (7) For provisions relating to correction of erroneous statements 
furnished to employees in respect of wages subject to withholding of 
income tax under section 3402, and of wages under the Federal Insurance 
Contributions Act, see paragraph (c) of Sec. 31.6051-1.
    (b) Federal Insurance Contributions Act and Railroad Retirement Tax 
Act--(1) Undercollection ascertained before return is filed. If no 
employee tax or less than the correct amount of employee tax is deducted 
from any payment to an employee of wages, as defined in the Federal 
Insurance Contributions Act, or compensation as defined in the Railroad 
Retirement Tax Act, and the error is ascertained before the filing of 
the return on which the employee tax with respect to such wages or 
compensation is required to be reported, the employer shall nevertheless 
report on such return and pay to the district director the correct 
amount of such employee tax. However, the reporting and payment by the 
employer of the correct amount of such tax in accordance with this 
subparagraph do not constitute an adjustment.
    (2) Underpayment ascertained after return is filed. (i) If a return 
is filed, and

[[Page 367]]

if no employee tax, no employer tax, or less than the correct amount of 
either such tax with respect to any payment to an employee of wages as 
defined in the Federal Insurance Contributions Act or corresponding 
provisions of prior law, or compensation as defined in the Railroad 
Retirement Tax Act or corresponding provisions of prior law, is reported 
on such return and paid to the district director, the employer shall 
adjust the underpayment (a) by reporting the additional amount due by 
reason of the underpayment as an adjustment on a return filed on or 
before the last day on which the return is required to be filed for the 
return period in which the error is ascertained, or (b) by reporting 
such additional amount on a supplemental return for the return period in 
which such payment of wages or compensation is made. The reporting of 
such underpayment on a supplemental return constitutes an adjustment 
within the meaning of this section only when the supplemental return is 
filed on or before the last day on which the return is required to be 
filed for the return period in which the error is ascertained. The 
amount of each underpayment adjusted in accordance with this subdivision 
shall be paid to the district director, without interest, at the time 
fixed for reporting the adjustment. If an adjustment is reported 
pursuant to this subdivision, but the amount thereof is not paid when 
due, interest thereafter accrues (see section 6601).
    (ii) If a return is filed, and if no employee tax, no employer tax, 
or less than the correct amount of either such tax with respect to a 
payment to an employee of wages or compensation is reported on such 
return and paid to the district director, and such underpayment is not 
reported as an adjustment within the time prescribed by subdivision (i) 
of this subparagraph, the amount of such underpayment shall be (a) 
reported on the employer's next return, or (b) reported immediately on a 
supplemental return. For interest accruing on amounts so reported, see 
section 6601 and corresponding provisions of prior law.
    (iii) If a return relating to tax under the Federal Insurance 
Contributions Act is filed although a return relating to tax under the 
Railroad Retirement Tax Act was required to be filed, or vice versa, and 
if the amount reported on the return filed and paid to the district 
director was less than the correct amount which should have been 
reported on the return required to be filed, the employer shall adjust 
the underpayment by reporting the additional amount due on an original 
return for the correct tax for the return period in which the payment of 
wages or compensation was made, accompanied by an explanation of the 
adjustment being reported. The reporting of such additional amount on an 
original return constitutes an adjustment within the meaning of this 
section only when the original return is filed on or before the last day 
on which the return for the correct tax is required to be filed for the 
return period in which the error is ascertained. The amount of each 
underpayment adjusted in accordance with this subdivision shall be paid 
to the district director, without interest, at the time fixed for 
reporting the adjustment. If an adjustment is reported pursuant to this 
subdivision, but the amount thereof is not paid when due, interest 
thereafter accrues (see section 6601).
    (3) Deductions from employees. If an employer collects no employee 
tax or less than the correct amount of employee tax from an employee 
with respect to a payment of wages as defined in the Federal Insurance 
Contributions Act or corresponding provisions of prior law, or 
compensation as defined in the Railroad Retirement Tax Act or 
corresponding provisions of prior law, the employer shall collect the 
amount of the undercollection by deducting such amount from remuneration 
of the employee, if any, under his control after he ascertains the 
error. Such deductions may be made even though the remuneration, for any 
reason, does not constitute wages or compensation. The amount of an 
undercollection of employee tax from an employee shall be reported and 
paid, as provided in paragraph (b)(1) or (2) of this section, whether or 
not the undercollection is corrected by a deduction made as prescribed 
in the foregoing provisions of this subparagraph. If such a deduction

[[Page 368]]

is not made, the obligation of the employee to the employer with respect 
to the undercollection is a matter for settlement between the employee 
and the employer. If any employer makes an erroneous collection of 
employee tax from two or more of his employees, a separate settlement 
must be made with respect to each employee. Thus, an overcollection of 
employee tax from one employee may not be used to offset an 
undercollection of such tax from another employee.
    (c) Income tax required to be withheld from wages--(1) 
Undercollection ascertained before return is filed. If no income tax, or 
less than the correct amount of income tax, required under section 3402 
to be withheld from wages is deducted from wages paid to an employee in 
any return period, and if the error is ascertained before the return is 
filed for the period in which such wages are paid, the employer shall 
nevertheless report on such return the correct amount of the tax 
required to be withheld. However, the reporting and payment by an 
employer of tax in accordance with this subparagraph do not constitute 
an adjustment.
    (2) Underpayment ascertained after return is filed. (i) If a return 
is filed for a return period, and if no income tax, or less than the 
correct amount of income tax, required under section 3402 to be withheld 
from wages paid to an employee in such period, is reported on a return 
and paid to the district director, the employer shall (a) report the 
additional amount due by reason of the underpayment on a return for any 
return period in the calendar year in which the wages were paid, or (b) 
report such additional amount on a supplemental return for the return 
period in which such wages were paid. Such reporting constitutes an 
adjustment within the meaning of this section only if the return or 
supplemental return on which the underpayment is reported is filed on or 
before the last day on which the return is required to be filed for the 
return period in which the error was ascertained.
    (ii) If a return is filed for a return period, and if no income tax, 
or less than the correct amount of income tax, required under section 
3402 to be withheld from wages paid to an employee in such period is 
reported on such return and paid to the district director, and such 
underpayment is not reported as an adjustment within the time prescribed 
by paragraph (c)(2)(i) of this section, the amount of such underpayment 
shall be (a) reported on the employer's next return, if such next return 
is for any return period in the calendar year in which the wages were 
paid, or (b) reported immediately on a supplemental return.
    (3) Payment of amounts reported as undercollections or 
underpayments. (i) For provisions relating to the employer's liability 
for an underpayment of tax unless he can show that the income tax 
against which the tax under section 3402 may be credited has been paid, 
see Sec. 31.3402(d)-1.
    (ii) Except as provided in Sec. 31.3402 (d)-1, any amount reported 
as an adjustment within the meaning of this paragraph shall be paid to 
the district director, without interest, at the time fixed for reporting 
the adjustment.
    (iii) For interest accruing on amounts which are not paid when due, 
see section 6601.
    (4) Deductions from employee. If no income tax, or less than the 
correct amount of income tax, required under section 3402 to be withheld 
from wages is deducted from wages paid to an employee in a calendar 
year, the employer shall collect the amount of the undercollection on or 
before the last day of such year by deducting such amount from 
remuneration of the employee, if any, under his control. Such deductions 
may be made even though the remuneration, for any reason, does not 
constitute wages. Any undercollection in a calendar year not corrected 
by a deduction made pursuant to the foregoing provisions of this 
subparagraph is a matter for settlement between the employee and the 
employer within such calendar year. For provisions relating to the 
employer's liability for the tax, whether or not he collects it from the 
employee, see Sec. 31.3403-1.

[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7783, 46 FR 37890, July 23, 1981]

[[Page 369]]



Sec. 31.6205-2  Adjustments of underpayments of hospital insurance taxes that accrue after March 31, 1986, and before January 1, 1987, with respect to wages of 
          State and local government employees.

    (a) Adjustments without interest. A State or local government 
employer who makes, or has made, an undercollection or underpayment of 
the hospital insurance taxes imposed by sections 3101(b) and 3111(b) 
that--
    (1) Are required to be paid by reason of section 3121(u)(2), and
    (2) Are required to be reported on returns due July 31, 1986, 
October 31, 1986, or February 2, 1987.

may make an adjustment without interest with respect to such taxes 
provided that all such taxes for the time period specified in paragraph 
(a)(2) (except for amounts that are subsequently paid pursuant to an 
interest-free adjustment under Sec. 31.6205-1) are paid on or before 
February 2, 1987.
    (b) Example. The application of the provisions of this section are 
illustrated by the following example:

    Example. A State or local government employer should have withheld 
and paid $100 dollars in hospital insurance taxes for the quarter 
beginning April 1, 1986, and ending June 30, 1986. The due date for the 
return and payment for that period is July 31, 1986. If the employer 
made the payment by February 2, 1987, then, under section 6601, interest 
is not assessable with respect to the underpayment of the hospital 
insurance taxes. If the employer did not make the payment by February 2, 
1987, the interest is assessable for the period from July 31, 1986, 
until the time of payment.


[T.D. 8156, 52 FR 33582, Sept. 4, 1987]



Sec. 31.6302-0  Table of Contents.

    This section lists the captions that appear in Secs. 31.6302-1 
through 31.6302-3.

 Section 31.6302-1 Federal tax deposit rules for withheld income taxes 
     and taxes under the Federal Insurance Contributions Act (FICA) 
         attributable to payments made after December 31, 1992.

(a) Introduction.
(b) Determination of status.
    (1) In general.
    (2) Monthly depositor.
    (i) In General.
    (ii) Special rule.
    (3) Semi-weekly depositor.
    (4) Lookback period.
    (5) Adjustments.
(c) Deposit rules.
    (1) Monthly rule.
    (2) Semi-Weekly rule.
    (i) In general.
    (ii) Semi-weekly period spanning two return periods.
    (iii) Special rule for non-banking days.
    (3) Exception--One Day rule.
    (4) Deposits required only on banking days.
(d) Examples.
(e) Employment taxes defined.
(f) Safe harbor/De Minimis rules.
    (1) Single deposit safe harbor.
    (2) Shortfall defined.
    (3) Shortfall make-up date.
    (i) Monthly rule.
    (ii) Semi-Weekly and One-Day rule.
    (4) De Minimis rule.
    (5) Examples.
(g) Agricultural employers--Special rules.
    (1) In general.
    (2) Monthly depositor.
    (3) Semi-weekly depositor.
    (4) Lookback period.
    (5) Example.
(h) Time and manner of deposit.
    (1) General rules.
    (2) Payment of balance due.
    (3) Federal Tax Deposit (FTD) coupon.
    (4) Procurement of FTD coupons.
    (5) Time deemed deposited.
    (6) Time deemed paid.
(i) [Reserved].
(j) Special rules.
    (1) District Director notice exception.
    (2) Wages paid in nonconvertible foreign currency.
(k) Cross references.
    (1) Failure to deposit penalty.
    (2) Saturday, Sunday, or legal holiday.
(l) [Reserved].
(m) Effective date.

 Section 31.6302-2 Federal tax deposit rules for amounts withheld under 
the Railroad Retirement Tax Act (R.R.T.A.) attributable to payments made 
                        after December 31, 1992.

(a) General rule.
(b) Separate application of deposit rules.
(c) Modification of Monthly rule determination.
    (1) General rule.
    (2) Exception.
(d) Wire-transfer exception.

 Section 31.6302-3 Federal tax deposit rules for amounts withheld under 
 the backup withholding requirements of Section 3406 for payments made 
                        after December 31, 1992.

(a) General Rule.
(b) Treatment of backup withholding amounts separately.
(c) Example.

[T.D. 8436, 57 FR 44102, Sept. 24, 1992]

[[Page 370]]



Sec. 31.6302-1  Federal tax deposit rules for withheld income taxes and taxes under the Federal Insurance Contributions Act (FICA) attributable to payments made 
          after December 31, 1992.

    (a) Introduction. With respect to employment taxes attributable to 
payments made after December 31, 1992, an employer is either a monthly 
depositor or a semi-weekly depositor based on an annual determination. 
An employer must generally deposit employment taxes under one of two 
rules: the Monthly rule in paragraph (c)(1) of this section, or the 
Semi-Weekly rule in paragraph (c)(2) of this section. Various exceptions 
and safe harbors are provided. Paragraph (f) of this section provides 
certain safe harbors for employers who inadvertently fail to deposit the 
full amount of taxes. Paragraph (c)(3) of this section provides an 
overriding exception to the Monthly and Semi-Weekly rules where an 
employer has accumulated $100,000 or more of employment taxes. Paragraph 
(e) of this section provides the definition of employment taxes.
    (b) Determination of status--(1) In general. The determination of 
whether an employer is a monthly or semi-weekly depositor for a calendar 
year is based on an annual determination and generally depends upon the 
aggregate amount of employment taxes reported by the employer for the 
lookback period as defined in paragraph (b)(4) of this section.
    (2) Monthly depositor--(i) In general. An employer is a monthly 
depositor for the entire calendar year if the aggregate amount of 
employment taxes reported for the lookback period is $50,000 or less.
    (ii) Special rule. An employer ceases to be a monthly depositor on 
the first day after the employer is subject to the One-Day ($100,000) 
rule in paragraph (c)(3) of this section. At that time, the employer 
immediately becomes a semi-weekly depositor for the remainder of the 
calendar year and for the following calendar year.
    (3) Semi-weekly depositor. An employer is a semi-weekly depositor 
for the entire calendar year if the aggregate amount of employment taxes 
reported for the lookback period exceeds $50,000.
    (4) Lookback period. The lookback period for each calendar year is 
the twelve month period ended the preceding June 30. For example, the 
lookback period for calendar year 1993 is the period July 1, 1991 to 
June 30, 1992. In determining status as either a monthly or semi-weekly 
depositor, an employer should determine the aggregate amount of 
employment tax liabilities reported on its quarterly returns (Form 941) 
for the four quarters constituting this period. New employers shall be 
treated as having employment tax liabilities of zero for any calendar 
quarter during which the employer did not exist.
    (5) Adjustments. The tax liability shown on an original return for 
the return period shall be the amount taken into account in determining 
whether more than $50,000 has been reported during the lookback period. 
In determining the aggregate employment taxes for each quarter in a 
lookback period, an employer does not take into account any adjustments 
for the quarter made on a supplemental return filed after the due date 
of the return. However, adjustments made on a Form 941c, Statement to 
Correct Information, attached to a Form 941 filed for a subsequent 
quarter are taken into account in determining the employment tax 
liability for the subsequent quarter.
    (c) Deposit rules--(1) Monthly rule. An employer that is a monthly 
depositor must deposit employment taxes accumulated with respect to 
payments made during a calendar month in a Federal Reserve bank or 
authorized financial institution on or before the 15th day of the 
following month. If the 15th day of the following month is not a banking 
day, taxes will be treated as timely deposited if deposited on the first 
banking day thereafter in accordance with paragraph (c)(4) of this 
section.
    (2) Semi-Weekly rule--(i) In general. An employer that is a semi-
weekly depositor for a calendar year must deposit its employment taxes 
in a Federal Reserve bank or authorized financial institution on or 
before the dates set forth below:

[[Page 371]]



------------------------------------------------------------------------
     Payment dates/semi-weekly periods              Deposit date
------------------------------------------------------------------------
Wednesday, Thursday and/or Friday.........  On or before the following
                                             Wednesday.
Saturday, Sunday, Monday and/or Tuesday...  On or before the following
                                             Friday.
------------------------------------------------------------------------

    (ii) Semi-weekly period spanning two return periods. A special rule 
is provided in the case of a return period (quarterly or annual) that 
ends during a semi-weekly period. In this case, an employer must 
complete the Federal Tax Deposit (FTD) coupon in a manner which 
designates the proper return period for which the deposit relates (the 
return period in which the payment is made). In addition, if the return 
period ends during a semi-weekly period in which an employer has two or 
more payment dates, two deposit obligations may exist. For example, if 
one quarterly return period ends on Thursday and a new quarterly return 
period begins on Friday, employment taxes from payments on Wednesday and 
Thursday are subject to one deposit obligation, and taxes from payments 
on Friday are subject to a separate obligation. Two separate Federal Tax 
Deposit coupons are required.
    (iii) Special rule for non-banking days. Semi-weekly depositors 
shall have at least three banking days following the close of the semi-
weekly period by which to deposit employment taxes accumulated during 
the semi-weekly period. Thus, if any of the three weekdays following the 
close of a semi-weekly period is a holiday on which banks are closed, 
the employer shall have an additional banking day by which to make the 
required deposit. For example, if the Monday following the close of a 
Wednesday to Friday semi-weekly period is a holiday on which banks are 
closed, the required deposit for the semi-weekly period may be made by 
the following Thursday rather than the following Wednesday.
    (3) Exception--One-Day rule. Notwithstanding paragraphs (c)(1) and 
(c)(2) of this section, if on any day within a deposit period (monthly 
or semi-weekly) an employer has accumulated $100,000 or more of 
employment taxes, those taxes must be deposited in a Federal Reserve 
bank or authorized financial institution by the close of the next 
banking day. For purposes of determining whether the $100,000 threshold 
is met--
    (i) A monthly depositor takes into account only those employment 
taxes accumulated in the calendar month in which the day occurs; and
    (ii) A semi-weekly depositor takes into account only those 
employment taxes accumulated in the Wednesday-Friday or Saturday-Tuesday 
semi-weekly period in which the day occurs.
    (4) Deposits required only on banking days. If taxes are required to 
be deposited under this section on any day that is not a banking day, 
the taxes will be treated as timely deposited if deposited on the first 
banking day thereafter.
    (d) Examples. The provisions of paragraphs (a), (b) and (c) of this 
section are illustrated by the following examples:

    Example 1. Monthly depositor. (i) Determination of status. For the 
calendar year 1993, Employer A determines its depositor status using the 
lookback period July 1, 1991 to June 30, 1992. For the four calendar 
quarters within this period, A reported aggregate employment tax 
liabilities of $42,000 on its quarterly Forms 941. Because the aggregate 
amount did not exceed $50,000, A is a monthly depositor for the entire 
calendar year 1993.
    (ii) Monthly rule. During January 1993, A (a monthly depositor) 
accumulates $3,500 in employment taxes. A has a $3,500 deposit 
obligation that must be satisfied by the 15th day of the following 
month. Since February 15, 1993, President's Day, is a holiday which is 
not a banking day, A's deposit obligation will be satisfied if the 
deposit is made by the next banking day after February 15.
    Example 2. Semi-weekly depositor. (i) Determination of status. For 
the four calendar quarters spanning July 1991 to June 1992, Employer B 
reported $88,000 in aggregate employment tax liabilities on its Forms 
941. Because that amount exceeds $50,000, B is a semi-weekly depositor 
for the entire calendar year 1993.
    (ii) Semi-weekly rule. On Friday, January 1, 1993, B ( semi-weekly 
depositor) has a pay day on which it accumulates $4,000 in employment 
taxes. B has a $4,000 deposit obligation that must be satisfied on or 
before the following Wednesday, January 6, 1993.
    (iii) Deposit made within three banking days after payroll. The 
example is the same as Example 2 (ii), except that B deposits its 
accumulated employment taxes within three banking days after payroll. B 
deposits its $4,000 in employment taxes on Wednesday, January 6, three 
banking days after its Friday payroll. Because B deposited its 
employment taxes on or before the following Wednesday, B has satisfied 
its semi-weekly

[[Page 372]]

deposit obligation. An employer who deposits within three banking days 
after payroll will always meet the Semi-Weekly rule.
    Example 3. One-Day rule. On Monday, January 4, 1993, Employer C 
accumulates $110,000 in employment taxes with respect to wages paid on 
that date. C has a deposit obligation of $110,000 that must be satisfied 
by the next banking day. If C was not subject to the semi-weekly rule on 
January 4, 1993, C becomes subject to that rule as of January 5, 1993. 
See paragraph (b)(2)(ii) of this section.
    Example 4. One-Day Rule in combination with subsequent deposit 
obligation. Employer D is subject to the semi-weekly rule for calendar 
year 1993. On Monday, January 4, 1993, D accumulates $110,000 in 
employment taxes. D has a $110,000 deposit obligation that must be 
satisfied by the next banking day. On Tuesday, January 5, D accumulates 
an additional $30,000 in employment taxes. Although D has a previous 
$110,000 deposit obligation incurred earlier in the semi-weekly period, 
D has an additional and separate deposit obligation of $30,000 on 
Tuesday that must be satisfied by the following Friday.
    Example 5. Special non-banking day rule for semi-weekly depositors. 
Employer E, a semi-weekly depositor, accumulates $8,000 in employment 
taxes on Friday, February 12, 1993, a payment date. Under the general 
rule, E would be required to deposit the employment taxes on or before 
the following Wednesday, February 17. However, because Monday, February 
15, is President's Day (a holiday on which banks are closed), E will 
have an additional day by which to satisfy its $8,000 deposit 
obligation. E's deposit obligation is due on or before Thursday, 
February 18, 1993.

    (e) Employment taxes defined. (1) For purposes of this section, the 
term ``employment taxes'' means--
    (i) The employee portion of the tax withheld under section 3102;
    (ii) The employer tax under section 3111;
    (iii) The income tax withheld under sections 3402 and 3405, except 
income tax withheld with respect to payments made after December 31, 
1993, on the following--
    (A) Certain gambling winnings under section 3402(q);
    (B) Retirement pay for service in the Armed Forces of the United 
States under section 3402;
    (C) Certain annuities described in section 3402(o)(1)(B); and
    (D) Pensions, annuities, IRAs, and certain other deferred income 
under section 3405; and
    (iv) The income tax withheld under section 3406, relating to backup 
withholding with respect to reportable payments made before January 1, 
1994.
    (2) The term ``employment taxes'' does not include taxes with 
respect to wages for domestic service in a private home of the employer, 
unless the employer is otherwise required to file a Form 941 under 
Sec. 31.6011(a)(4) or (5). In the case of employers paying advance 
earned income credit amounts, the amount of taxes required to be 
deposited shall be reduced by advance amounts paid to employees. Also, 
see Sec. 31.6302-3 concerning a taxpayer's option with respect to 
payments made before January 1, 1994, to treat backup withholding 
amounts under section 3406 separately.
    (f) Safe harbor/De minimis rules--(1) Single deposit safe harbor. An 
employer will be considered to have satisfied its deposit obligation 
imposed by this section if--
    (i) The amount of any shortfall does not exceed the greater of $100 
or 2 percent of the amount of employment taxes required to be deposited; 
and
    (ii) The employer deposits the shortfall on or before the shortfall 
make-up date.
    (2) Shortfall defined. For purposes of this paragraph (f), the term 
``shortfall'' means the excess of the amount of employment taxes 
required to be deposited for the period over the amount deposited for 
the period. For this purpose, a period is either a monthly, semi-weekly 
or daily period.
    (3) Shortfall make-up date--(i) Monthly rule. A shortfall with 
respect to a deposit required under the Monthly rule must be deposited 
or remitted no later than the due date for the quarterly return, in 
accordance with the applicable form and instructions.
    (ii) Semi-Weekly rule and One-Day rule. A shortfall with respect to 
a deposit required under the Semi-Weekly rule or the One-Day rule must 
be deposited on or before the first Wednesday or Friday (whichever is 
earlier), falling on or after the 15th day of the month following the 
month in which the deposit was required to be made or, if earlier, the 
return due date for the return period.
    (4) De Minimis rule. For quarterly return periods beginning on or 
after July

[[Page 373]]

1, 1998, and annual return periods beginning on or after January 1, 
1999, if the total amount of accumulated employment taxes for the return 
period is less than $1,000 and the amount is fully deposited or remitted 
with a timely filed return for the return period, the amount deposited 
or remitted will be deemed to have been timely deposited.
    (5) Examples. The provisions of this paragraph (f) may be 
illustrated by the following examples:

    Example 1. Safe-harbor rule satisfied. On Monday, January 4, 1993, J 
(a semi-weekly depositor), pays wages and accumulates employment taxes. 
As required under this section, J makes a deposit on or before the 
following Friday, January 8, 1993, in the amount of $4,000. 
Subsequently, J determines that it was actually required to deposit 
$4,090 by Friday. J has a shortfall of $90. The $90 shortfall does not 
exceed the greater of $100 or 2% of the amount required to be deposited 
(2% of $4,090=$81.80). Therefore, J satisfies the safe harbor of 
paragraph (f)(1) of this section as long as the $90 shortfall is 
deposited by the first deposit date (Wednesday or Friday) on or after 
the 15th day of the next month (in this case Wednesday, February 17, 
1993).
    Example 2. Safe-harbor rule not satisfied. The facts are the same as 
in Example 1 except that on Friday, January 8, 1993, J makes a deposit 
of $25,000, and later determines that it was actually required to 
deposit $26,000. Since the $1,000 shortfall ($26,000 less $25,000) 
exceeds $520 (the greater of $100 or 2% of the amount required to be 
deposited (2% of $26,000=$520)), the safe harbor of paragraph (f)(1) of 
this section is not satisfied, and absent reasonable cause, J will be 
subject to a failure-to-deposit penalty under section 6656.

    (g) Agricultural employers--special rules--(1) In general. An 
agricultural employer reports wages paid to farm workers annually on 
Form 943 (Employer's Annual Tax Return for Agricultural Employees) and 
reports wages paid to nonfarm workers quarterly on Form 941 (Employer's 
Quarterly Federal Tax Return). Accordingly, an agricultural employer 
must treat employment taxes reportable on Form 943 (``Form 943 taxes'') 
separately from employment taxes reportable on Form 941 (``Form 941 
taxes''). Form 943 taxes and Form 941 taxes are not combined for 
purposes of determining whether a deposit of either is due, whether the 
One-Day rule of paragraph (c)(3) of this section applies, or whether any 
safe harbor is applicable. In addition, separate Federal tax deposit 
coupons must be used to deposit Form 943 taxes and Form 941 taxes. (See 
paragraph (b) of this section for rules for determining an agricultural 
employer's deposit status for Form 941 taxes.) The determination of 
whether an agricultural employer is a monthly or semi-weekly depositor 
of Form 943 taxes is made according to the rules of this paragraph (g).
    (2) Monthly depositor. An agricultural employer is a monthly 
depositor of Form 943 taxes for a calendar year if the amount of Form 
943 taxes accumulated in the lookback period (as defined in paragraph 
(g)(4) of this section) is $50,000 or less. An agricultural employer 
ceases to be a monthly depositor of Form 943 taxes on the first day 
after the employer is subject to the One-Day rule in paragraph (c)(3) of 
this section. At that time, the agricultural employer immediately 
becomes a semi-weekly depositor of Form 943 taxes for the remainder of 
the calendar year and the succeeding calendar year.
    (3) Semi-weekly depositor. An agricultural employer is a semi-weekly 
depositor of Form 943 taxes for a calendar year if the amount of Form 
943 taxes accumulated in the lookback period (as defined in paragraph 
(g)(4) of this section) exceeds $50,000.
    (4) Lookback period. For purposes of this paragraph (g), the 
lookback period for Form 943 taxes is the second calendar year preceding 
the current calendar year. For example, the lookback period for calendar 
year 1993 is calendar year 1991.
    (5) The following example illustrates the provisions of this 
section.

    Example. A, an agricultural employer, employs both farm workers and 
nonfarm workers (employees in its administrative offices). A's depositor 
status for calendar year 1993 for Form 941 taxes will be based upon its 
employment tax liabilities reported on Forms 941 for the third and 
fourth quarters of 1991 and the first and second quarters of 1992 (the 
period July 1 to June 30). A's depositor status for Form 943 taxes will 
be based upon its employment tax liability reported on its annual Form 
943 for calendar year 1991.

    (h) Time and manner of deposit--deposits required to be made by 
electronic funds transfer--(1) In general. Section 6302(h) requires the 
Secretary to prescribe such regulations as may be necessary

[[Page 374]]

for the development and implementation of an electronic funds transfer 
system to be used for the collection of the depository taxes as 
described in paragraph (h)(3) of this section. Section 6302(h)(2) 
provides a phase-in schedule that sets forth escalating minimum 
percentages of those depository taxes to be deposited by electronic 
funds transfer. This paragraph (h) prescribes the rules necessary for 
implementing an electronic funds transfer system for collection of 
depository taxes and for effecting an orderly and expeditious phase-in 
of that system.
    (2) Applicability of requirement--(i) Deposits for return periods 
beginning before January 1, 2000. (A) Taxpayers whose aggregate deposits 
of the taxes imposed by Chapters 21 (Federal Insurance Contributions 
Act), 22 (Railroad Retirement Tax Act), and 24 (Collection of Income Tax 
at Source on Wages) of the Internal Revenue Code during a 12-month 
determination period exceed the applicable threshold amount are required 
to deposit all depository taxes described in paragraph (h)(3) of this 
section by electronic funds transfer (as defined in paragraph (h)(4) of 
this section) unless exempted under paragraph (h)(5) of this section. If 
the applicable effective date is January 1, 1995, or January 1, 1996, 
the requirement to deposit by electronic funds transfer applies to all 
deposits required to be made on or after the applicable effective date. 
If the applicable effective date is July 1, 1997, the requirement to 
deposit by electronic funds transfer applies to all deposits required to 
be made on or after July 1, 1997 with respect to deposit obligations 
incurred for return periods beginning on or after January 1, 1997. If 
the applicable effective date is January 1, 1998, or thereafter, the 
requirement to deposit by electronic funds transfer applies to all 
deposits required to be made with respect to deposit obligations 
incurred for return periods beginning on or after the applicable 
effective date. In general, each applicable effective date has one 12-
month determination period. However, for the applicable effective date 
January 1, 1996, there are two determination periods. If the applicable 
threshold amount is exceeded in either of those determination periods, 
the taxpayer becomes subject to the requirement to deposit by electronic 
funds transfer, effective January 1, 1996. The threshold amounts, 
determination periods and applicable effective dates for purposes of 
this paragraph (h)(2)(i)(A) are as follows:

----------------------------------------------------------------------------------------------------------------
                                                                                           Applicable effective
        Threshold amount                           Determination period                            date
----------------------------------------------------------------------------------------------------------------
$78 million.....................  1-1-93 to 12-31-93...................................  Jan. 1, 1995.
$47 million.....................  1-1-93 to 12-31-93...................................  Jan. 1, 1996.
$47 million.....................  1-1-94 to 12-31-94...................................  Jan. 1, 1996.
$50 thousand....................  1-1-95 to 12-31-95...................................  July 1, 1997.
$50 thousand....................  1-1-96 to 12-31-96...................................  Jan. 1, 1998.
$50 thousand....................  1-1-97 to 12-31-97...................................  Jan. 1, 1999.
----------------------------------------------------------------------------------------------------------------

    (B) Unless exempted under paragraph (h)(5) of this section, a 
taxpayer that does not deposit any of the taxes imposed by chapters 21, 
22, and 24 during the applicable determination periods set forth in 
paragraph (h)(2)(i)(A) of this section, but that does make deposits of 
other depository taxes (as described in paragraph (h)(3) of this 
section), is nevertheless subject to the requirement to deposit by 
electronic funds transfer if the taxpayer's aggregate deposits of all 
depository taxes exceed the threshold amount set forth in this paragraph 
(h)(2)(i)(B) during an applicable 12-month determination period. This 
requirement to deposit by electronic funds transfer applies to all 
depository taxes due with respect to deposit obligations incurred for 
return periods beginning on or after the applicable effective date. The 
threshold amount, determination periods, and applicable effective dates 
for purposes of this paragraph (h)(2)(i)(B) are as follows:

[[Page 375]]



----------------------------------------------------------------------------------------------------------------
                                                                                           Applicable effective
        Threshold amount                           Determination period                            date
----------------------------------------------------------------------------------------------------------------
$50 thousand....................  1-1-95 to 12-31-95...................................  Jan. 1, 1998.
$50 thousand....................  1-1-96 to 12-31-96...................................  Jan. 1, 1998.
$50 thousand....................  1-1-97 to 12-31-97...................................  Jan. 1, 1999.
----------------------------------------------------------------------------------------------------------------

    (C) This paragraph (h)(2)(i) applies only to deposits required to be 
made for return periods beginning before January 1, 2000. Thus, a 
taxpayer, including a taxpayer that is required under this paragraph 
(h)(2)(i) to make deposits by electronic funds transfer beginning in 
1999 or an earlier year, is not required to use electronic funds 
transfer to make deposits for return periods beginning after December 
31, 1999, unless deposits by electronic funds transfer are required 
under paragraph (h)(2)(ii) of this section.
    (ii) Deposits for return periods beginning after December 31, 1999. 
Unless exempted under paragraph (h)(5) of this section, a taxpayer that 
deposits more than $200,000 of taxes described in paragraph (h)(3) of 
this section during a calendar year beginning after December 31, 1997, 
must use electronic funds transfer (as defined in paragraph (h)(4) of 
this section) to make all deposits of those taxes that are required to 
be made for return periods beginning after December 31 of the following 
year and must continue to deposit by electronic funds transfer in all 
succeeding years. Thus, a taxpayer that exceeds the $200,000 deposit 
threshold during calendar year 1998 is required to make deposits for 
return periods beginning in or after calendar year 2000 by electronic 
funds transfer.
    (iii) Voluntary deposits. A taxpayer that is not required by this 
section to use electronic funds transfer to make a deposit of taxes 
described in paragraph (h)(3) of this section may voluntarily make the 
deposit by electronic funds transfer, but remains subject to the rules 
of paragraph (i) of this section, pertaining to deposits by Federal tax 
deposit (FTD) coupon, in making deposits other than by electronic funds 
transfer.
    (3) Taxes required to be deposited by electronic funds transfer. The 
requirement to deposit by electronic funds transfer under paragraph 
(h)(2) of this section applies to all the taxes required to be deposited 
under Secs. 1.6302-1, 1.6302-2, and 1.6302-3 of this chapter; 
Secs. 31.6302-1, 31.6302-2, 31.6302-3, 31.6302-4, and 31.6302(c)-3; and 
Sec. 40.6302(c)-1 of this chapter.
    (4) Definitions--(i) Electronic funds transfer. An electronic funds 
transfer is any transfer of depository taxes made in accordance with 
Revenue Procedure 97-33, (1997-30 I.R.B.), (see Sec. 601.601(d)(2) of 
this chapter), or in accordance with procedures subsequently prescribed 
by the Commissioner.
    (ii) Taxpayer. For purposes of this section, a taxpayer is any 
person required to deposit federal taxes, including not only 
individuals, but also any trust, estate, partnership, association, 
company or corporation.
    (5) Exemptions. If any categories of taxpayers are to be exempted 
from the requirement to deposit by electronic funds transfer, the 
Commissioner will identify those taxpayers by guidance published in the 
Internal Revenue Bulletin. (See Sec. 601.601(d)(2)(ii)(b) of this 
chapter.)
    (6) Separation of deposits. A deposit for one return period must be 
made separately from a deposit for another return period.
    (7) Payment of balance due. If the aggregate amount of taxes 
reportable on the applicable tax return for the return period exceeds 
the total amount deposited by the taxpayer with regard to the return 
period, then the balance due must be remitted in accordance with the 
applicable form and instructions.
    (8) Time deemed deposited. A deposit of taxes by electronic funds 
transfer will be deemed made when the amount is withdrawn from the 
taxpayer's account, provided the U.S. Government is the payee and the 
amount is not returned or reversed.
    (9) Time deemed paid. In general, an amount deposited under this 
paragraph (h) will be considered to be a payment of tax on the last day 
prescribed for filing the applicable return for the return period 
(determined without regard to

[[Page 376]]

any extension of time for filing the return) or, if later, at the time 
deemed deposited under paragraph (h)(8) of this section. In the case of 
the taxes imposed by chapters 21 and 24 of the Internal Revenue Code, 
solely for purposes of section 6511 and the regulations thereunder 
(relating to the period of limitation on credit or refund), if an amount 
is deposited prior to April 15th of the calendar year immediately 
succeeding the calendar year that includes the period for which the 
amount was deposited, the amount will be considered paid on April 15th.
    (i) Time and manner of deposit--(1) General rules. A deposit 
required to be made by this Sec. 31.6302-1 must be made separately from 
a deposit required by any other section. See Sec. 31.6302-3 for an 
exception in the case of backup withholding amounts. Further, a deposit 
for a deposit period in one return period must be made separately from a 
deposit for a deposit period in another return period.
    (2) Payment of balance due. If the aggregate amount of taxes 
reportable on the return for the return period exceeds the total amount 
deposited by the employer with regard to the return period pursuant to 
this section, the balance due must be remitted in accordance with the 
applicable form and instructions.
    (3) Federal Tax Deposit (FTD) coupon. Each deposit required to be 
made under this section must be accompanied by an FTD coupon (Form 
8109). The FTD coupon shall be prepared in accordance with the 
instructions applicable thereto. The deposit, together with the FTD 
coupon, shall be forwarded to a financial institution authorized as a 
depository for Federal taxes in accordance with 31 CFR part 214 or, at 
the election of the employer, to a Federal Reserve bank. For procedures 
governing the deposit of Federal taxes at a Federal Reserve bank, see 31 
CFR part 214.7.
    (4) Procurement of FTD coupons. A new employer should receive its 
initial supply of FTD coupon books after receiving its employer 
identification number. In the event that a deposit is required to be 
made before receipt of the FTD coupon books, the employer should contact 
the local IRS office and furnish the following information: the business 
name as it appears on IRS records, the employer identification number, 
address where the coupon books are to be sent, and the number of coupon 
books being requested. Filers of Form 1120, Form 990-C, Form 990PF (with 
net investment income), Form 990-T or Form 2438 must also provide the 
month the employer's tax year ends. If an employer has applied for an 
employer identification number but has not received it, and a deposit is 
required to be made, the employer should send a check or money order for 
the deposit amount to its Internal Revenue Service center. There should 
be included on the payment, the name and address of the entity as shown 
on Form SS-4, Application for Employer Identification Number, the kind 
of tax, the period covered, and the date on which the employer applied 
for the employer identification number.
    (5) Time deemed deposited. The timeliness of a deposit will be 
determined by the date stamped on the FTD coupon by the Federal Reserve 
bank or the authorized financial institution or, if section 7502(e) 
applies, by the date the deposit is treated as received under section 
7502(e).
    (6) Time deemed paid. In general, amounts deposited under this 
section will be considered as paid at the time deemed deposited under 
paragraph (h)(5) of this section, or on the last day prescribed for 
filing the return (determined without regard to any extension of time 
for filing the return), whichever is later. For purposes of section 6511 
and the regulations hereunder (relating to the period of limitation on 
credit or refund), if an amount is deposited prior to April 15th of the 
calendar year immediately succeeding the calendar year that contains the 
period for which the amount was deposited, the amount will be considered 
paid on April 15th.
    (j) Voluntary payments by electronic funds transfer. Any person may 
voluntarily remit by electronic funds transfer any payment of tax 
imposed by subtitle C of the Internal Revenue Code. Such payment must be 
made in accordance with procedures prescribed by the Commissioner.
    (k) Special rules--(1) District Director notice exception. The 
provisions of this

[[Page 377]]

section are not applicable with respect to employment taxes for any 
month in which the employer receives notice from the district director 
that a return is required under Sec. 31.6011(a)-5 (or for any subsequent 
month for which such a return is required), if those taxes are also 
required to be deposited under the separate accounting procedures 
provided in Sec. 301.7512-1 of the Regulations on Procedure and 
Administration (which procedures are applicable if notification is given 
by the district director of failure to comply with certain employment 
tax requirements). In cases in which a monthly return is required under 
Sec. 31.6011(a)-5 but the taxes are not required to be deposited under 
the separate accounting procedures provided in Sec. 301.7512-1, the 
provisions of this section shall apply except those provisions shall not 
authorize the deferral of any deposit to a date after the date on which 
the return is required to be filed.
    (2) Wages paid in nonconvertible foreign currency. The provisions of 
this section are not applicable with respect to wages paid in 
nonconvertible foreign currency pursuant to Sec. 301.6316-7.
    (m) Cross references--(1) Failure to deposit penalty. For provisions 
relating to the penalty for failure to make a deposit within the 
prescribed time, see section 6656 and the provisions of Sec. 301.6656-1.
    (2) Saturday, Sunday, or legal holiday. For provisions relating to 
the time for performance of acts where the last day falls on Saturday, 
Sunday, or a legal holiday, see the provisions of Sec. 301.7503-1.
    (l) [Reserved]
    (n) Effective date. Sections 31.6302-1 through 31.6302-3 apply with 
respect to the deposit of employment taxes attributable to payments made 
after December 31, 1992. To the extent that the provisions of 
Secs. 31.6302-1 through 31.6302-3 are inconsistent with the provisions 
of Secs. 31.6302(c)-1 and 31.6302(c)-2, a taxpayer will be considered to 
be in compliance with Secs. 31.6301-1 through 31.6302-3 if the taxpayer 
makes timely deposits during 1993 in accordance with Secs. 31.6302(c)-1 
and 31.6302(c)-2.

[T.D. 8436, 57 FR 44102, Sept. 24, 1992; 57 FR 48724, Oct. 28, 1992; 
T.D. 8504, 58 FR 68035, Dec. 23, 1993; T.D. 8436, 59 FR 6218, Feb. 10, 
1994; T.D. 8723, 62 FR 37493, July 14, 1997; T.D. 8771, 63 FR 32736, 
June 16, 1998; T.D. 8822, 64 FR 32409, June 17, 1999; T.D. 8828, 64 FR 
37676, July 13, 1999]



Sec. 31.6302-2  Federal Tax Deposit Rules for amounts withheld under the Railroad Retirement Tax Act (R.R.T.A.) attributable to payments made after December 31, 
          1992.

    (a) General rule. Except as otherwise provided in this section, the 
rules of Sec. 31.6302-1 determine the time and manner of making deposits 
of employee tax withheld under section 3202 and employer tax imposed 
under sections 3221 (a) and (b) attributable to payments made after 
December 31, 1992. Railroad retirement taxes described in section 
3221(c) arising during the month must be deposited on or before the 
first date after the 15th day of the following month on which taxes are 
otherwise required to be deposited under Sec. 31.6302-1.
    (b) Separate application of deposit rules. A person who accumulates 
tax under sections 3202 or 3221 shall not take that tax into account for 
purposes of determining when taxes described in paragraph (e) of 
Sec. 31.6302-1 must otherwise be deposited.
    (c) Modification of Monthly rule determination--(1) General rule. 
Except as otherwise provided in this section, any person is allowed to 
use the Monthly rule of Sec. 31.6302-1(c)(1) for an entire calendar year 
unless the amount of R.R.T.A. taxes required to be deposited under this 
section during the lookback period was more than $50,000. The lookback 
period is defined as the calendar year preceding the calendar year just 
ended. Thus, for purposes of determining if an R.R.T.A. employer 
qualifies to use the Monthly rule for calendar year 1993, a lookback 
must be made to calendar year 1991. New employers shall be treated as 
having employment tax liabilities of zero for any calendar year during 
which the employer did not exist.

[[Page 378]]

    (2) Exception. An employer shall immediately cease to be allowed to 
use the Monthly rule after any day on which that employer is subject to 
the One-Day rule set forth in Sec. 31.6302-1(c)(3). Such employer 
immediately becomes subject to the Semi-Weekly rule of Sec. 31.6302-
1(c)(2) for the remainder of the calendar year and the following 
calendar year.
    (d) Wire-transfer exception. If, for the calendar year prior to the 
calendar year preceding the current calendar year, the aggregate amount 
of taxes imposed under sections 3202 and 3221 with respect to an 
employer equalled or exceeded $1 million, the employer must deposit the 
aggregate amount of railroad retirement taxes required to be deposited 
for the current calendar year in accordance with Sec. 31.6302(c)-
2(a)(1).

[T.D. 8436, 57 FR 44105, Sept. 24, 1992]



Sec. 31.6302-3  Federal tax deposit rules for amounts withheld under the backup withholding requirements of section 3406 for payments made after December 31, 
          1992.

    (a) General rule. The rules of Sec. 31.6302-1 shall apply to 
determine the time and manner of making deposits of amounts withheld 
under the backup withholding requirements of section 3406.
    (b) Treatment of backup withholding amounts separately. A taxpayer 
that withholds income tax under section 3406 with respect to reportable 
payments made after December 31, 1992, and before January 1, 1994, may, 
in accordance with the instructions provided with Form 941, deposit such 
tax under the rules of Sec. 31.6302-1 without taking into account the 
other taxes described in paragraph (e) of Sec. 31.6302-1 for purposes of 
determining when tax withheld under section 3406 must be deposited. A 
taxpayer that treats backup withholding amounts separately with respect 
to reportable payments made after December 31, 1992, and before January 
1, 1994, shall not take tax withheld under section 3406 into account for 
purposes of determining when the other taxes described in paragraph (e) 
of Sec. 31.6302-1 must otherwise be deposited under that section. See 
Sec. 31.6302-4 for rules regarding the deposit of income tax withheld 
under section 3406 with respect to reportable payments made after 
December 31, 1993.
    (c) Example. The following example illustrates the provisions of 
this section.

    Example. For the last two calendar quarters of 1991 and the first 
two calendar quarters of 1992, Bank A reports employment taxes with 
respect to wages paid totalling in excess of $50,000. For the same four 
quarters, pursuant to section 3406, A withholds income tax with respect 
to dividend payments in an amount aggregating less than $50,000. For 
deposit and reporting purposes, A treated the backup withholding amounts 
separately from the employment taxes with respect to wages paid. 
Accordingly, for calendar year 1993, if A chooses to treat the items 
separately, A must use the Semi-Weekly rule of Sec. 31.6302-1(c)(2) to 
deposit taxes with respect to wages paid but may use the Monthly rule of 
Sec. 31.6302-1(c)(1) for the deposit of backup withholding amounts. If A 
chooses not to treat the items separately, the Semi-Weekly rule would 
apply to the combined amount of both the taxes with respect to wages 
paid and the backup withholding amounts.


[T.D. 8436, 57 FR 44106, Sept. 24, 1992, as amended by T.D. 8504, 58 FR 
68035, Dec. 23, 1993]



Sec. 31.6302-4  Federal tax deposit rules for withheld income taxes attributable to nonpayroll payments made after December 31, 1993.

    (a) General rule. With respect to nonpayroll withheld taxes 
attributable to nonpayroll payments made after December 31, 1993, a 
taxpayer is either a monthly or a semi-weekly depositor based on an 
annual determination. Except as provided in this section, the rules of 
Sec. 31.6302-1 shall apply to determine the time and manner of making 
deposits of nonpayroll withheld taxes as though they were employment 
taxes. Paragraph (b) of this section defines nonpayroll withheld taxes. 
Paragraph (c) of this section provides rules for determining whether a 
taxpayer is a monthly or a semi-weekly depositor.
    (b) Nonpayroll withheld taxes defined. For purposes of this section, 
effective with respect to payments made after December 31, 1993, 
nonpayroll withheld taxes means--
    (1) Amounts withheld under section 3402(q), relating to withholding 
on certain gambling winnings;
    (2) Amounts withheld under section 3402 with respect to amounts paid 
as

[[Page 379]]

retirement pay for service in the Armed Forces of the United States;
    (3) Amounts withheld under section 3402(o)(1)(B), relating to 
certain annuities;
    (4) Amounts withheld under section 3405, relating to withholding on 
pensions, annuities, IRAs, and certain other deferred income; and
    (5) Amounts withheld under section 3406, relating to backup 
withholding with respect to reportable payments.
    (c) Determination of deposit status--(1) Rules for calendar years 
1994 and 1995. On January 1, 1994, a taxpayer's depositor status for 
nonpayroll withheld taxes is the same as the taxpayer's status on 
January 1, 1994, for taxes reported on Form 941 under Sec. 31.6302-1. A 
taxpayer generally retains that depositor status for nonpayroll withheld 
taxes for all of calendar years 1994 and 1995. However, a taxpayer that 
under this paragraph (c) is a monthly depositor for 1994 and 1995 will 
immediately lose that status and become a semi-weekly depositor of 
nonpayroll withheld taxes if the One-Day rule of Sec. 31.6302-1(c)(3) is 
triggered with respect to nonpayroll withheld taxes. See paragraph (d) 
of this section for a special rule regarding the application of the One-
Day rule of Sec. 31.6302-1(c)(3) to nonpayroll withheld taxes.
    (2) Rules for calendar years after 1995--(i) In general. For 
calendar years after 1995, the determination of whether a taxpayer is a 
monthly or a semi-weekly depositor for a calendar year is based on an 
annual determination and generally depends on the aggregate amount of 
nonpayroll withheld taxes reported by the taxpayer for the lookback 
period as defined in paragraph (c)(2)(iv) of this section.
    (ii) Monthly depositor. A taxpayer is a monthly depositor of 
nonpayroll withheld taxes for a calendar year if the amount of 
nonpayroll withheld taxes accumulated in the lookback period (as defined 
in paragraph (c)(2)(iv) of this section) is $50,000 or less. A taxpayer 
ceases to be a monthly depositor of nonpayroll withheld taxes on the 
first day after the taxpayer is subject to the One-Day rule in 
Sec. 31.6302-1(c)(3) with respect to nonpayroll withheld taxes. At that 
time, the taxpayer immediately becomes a semi-weekly depositor of 
nonpayroll withheld taxes for the remainder of the calendar year and the 
succeeding calendar year. See paragraph (d) of this section for a 
special rule regarding the application of the One-Day rule of 
Sec. 31.6302-1(c)(3) to nonpayroll withheld taxes.
    (iii) Semi-weekly depositor. A taxpayer is a semi-weekly depositor 
of nonpayroll withheld taxes for a calendar year if the amount of 
nonpayroll withheld taxes accumulated in the lookback period (as defined 
in paragraph (c)(2)(iv) of this section) exceeds $50,000.
    (iv) Lookback period. For purposes of this section, the lookback 
period for nonpayroll withheld taxes is the second calendar year 
preceding the current calendar year. For example, the lookback period 
for calendar year 1996 is calendar year 1994. A new taxpayer is treated 
as having nonpayroll withheld taxes of zero for any calendar year in 
which the taxpayer did not exist.
    (d) Special rules. A taxpayer must treat nonpayroll withheld taxes, 
which are reported on Form 945, Annual Return of Withheld Federal Income 
Tax, separately from taxes reportable on Form 941, Employer's Quarterly 
Federal Tax Return. Taxes reported on Form 945 and taxes reported on 
Form 941 are not combined for purposes of determining whether a deposit 
of either is due, whether the One-Day rule of Sec. 31.6302-1(c)(3) 
applies, or whether any safe harbor is applicable. In addition, separate 
Federal tax deposit coupons must be used to deposit taxes reported on 
Form 945 and taxes reported on Form 941. (See paragraph (b) of 
Sec. 31.6302-1 for rules for determining an employer's deposit status 
for taxes reported on Form 941.) A deposit of taxes reported on Form 945 
for one calendar year must be made separately from a deposit of taxes 
reported on Form 945 for another calendar year.

[T.D. 8504, 58 FR 68036, Dec. 23, 1993]



Sec. 31.6302(b)-1  Method of collection.

    For provisions relating to collection by means of returns of the 
taxes imposed by chapter 21 (Federal Insurance Contributions Act), see 
Secs. 31.6011(a)-1 and 31.6011(a)-5.

[[Page 380]]



Sec. 31.6302(c)-1  Use of Government depositories in connection with taxes under Federal Insurance Contributions Act and income tax withheld for amounts 
          attributable to payments made before January 1, 1993.

    (a) Requirement for calendar months beginning after December 31, 
1980, but before January 1, 1993--(1) In general. (i) In the case of a 
calendar month which begins after December 31, 1980, but before April 1, 
1991--
    (a) Except as provided in paragraph (b) of this section and 
hereinafter in this subdivision (i), if at the close of any calendar 
month the aggregate amount of undeposited taxes (as defined in paragraph 
(a)(1)(iii) of this section) is $500 or more, the employer shall deposit 
the undeposited taxes in a Federal Reserve bank or authorized financial 
institution (see paragraph (a)(3)(iii) of this section) within 15 
calendar days after the close of such calendar month.

However, this (a) of subdivision (i) shall not apply if the employer was 
required to make a deposit of taxes pursuant to (b) of this subdivision 
(i) with respect to an eighth-monthly period which occurred during the 
calendar month.
    (b) Except as provided in paragraph (b) of this section and except 
in the case of first-time 3-banking-day depositors, if at the close of 
any eighth-monthly period the aggregate amount of undeposited taxes is 
$3,000 or more, the employer shall deposit the undeposited taxes in a 
Federal Reserve bank or authorized financial institution within 3 
banking days after the close of such eighth-monthly period. For purposes 
of determining the amount of undeposited taxes at the close of an 
eighth-monthly period, undeposited taxes with respect to wages paid 
during a prior eighth-monthly period shall not be taken into account if 
the employer has made a deposit with respect to such prior eighth-
monthly period. An employer will be considered to have complied with the 
requirements of this paragraph (a)(1)(i)(b) for a deposit with respect 
to the close of an eighth-monthly period if--
    (1) His deposit is not less than 95 percent (90 percent before 
January 1, 1982) of the aggregate amount of the taxes with respect to 
wages paid during the period for which the deposit is made, and
    (2) If such eighth-monthly period occurs in a month other than the 
last month of a period for which a return is required to be filed 
(hereinafter in this subparagraph referred to as a return period), he 
deposits any underpayment with his first deposit which is otherwise 
required by this paragraph (a)(1)(i)(b) to be made after the 15th day of 
the following month.

For purposes of this paragraph (a)(1)(i)(b), a ``first-time 3-banking-
day depositor'' is an employer who establishes to the satisfaction of 
the Commissioner that he was not required (but for this exception) to 
make a deposit pursuant to this paragraph (a)(1)(i)(b) (or pursuant to 
paragraph (a)(1)(ii)(b) of this section) with respect to each period in 
any preceding month of the current calendar quarter and with respect to 
each period in the 4 calendar quarters preceding the current calendar 
quarter. An employer may in no event qualify as a ``first-time 3-
banking-day depositor'' with respect to any eighth-monthly period if the 
undeposited taxes at the close of that period are $10,000 or more.

The excess (if any) of a deposit over the actual taxes for a deposit 
period shall be applied in order of time to each of the employer's 
succeeding deposits with respect to the same return period, until 
exhausted, to the extent that the amount by which the taxes for a 
subsequent deposit period exceed the deposit for such subsequent deposit 
period. For purposes of this paragraph (a)(1)(i), ``eighth-monthly 
period'' means the first 3 days of a calendar month, the 4th day through 
the 7th day of a calendar month, the 8th day through the 11th day of a 
calendar month, the 12th day through the 15th day of a calendar month, 
the 16th day through the 19th day of a calendar month, the 20th day 
through the 22nd day of a calendar month, the 23rd day through the 25th 
day of a calendar month, or the portion of a calendar month following 
the 25th day of such month.
    (c) The periods within which taxes must be desposited under this 
section

[[Page 381]]

are determined, in the case of employers paying advance earned income 
credit amounts, by reference to the amount of taxes required to be 
deposited after reduction for advance amounts paid to employees.
    (ii) In the case of a calendar month which begins after March 31, 
1991, but before January 1, 1993--
    (a) Except as provided in Sec. 31.6302(c)-1(a)(1)(ii) (b) or (c), or 
Sec. 31.6302(c)-1(b), if with respect to any calendar month the 
aggregate amount of taxes (as defined in Sec. 31.6302(c)-1(a)(1)(iii)) 
accumulated with respect to wages paid is $500 or more, but less than 
$3,000, then the employer shall deposit that aggregate amount in a 
Federal Reserve bank or authorized financial institution within 15 
calendar days after the close of that calendar month. Taxes accumulated 
with respect to wages paid in a prior calendar month within the same 
return period shall not be taken into account in determining the 
aggregate amount of taxes accumulated if a deposit was required to be 
made under this section with respect to such tax amounts. Deposits made 
during the calendar month of taxes with respect to wages paid during 
that month do not reduce the aggregate amount of taxes accumulated for 
purposes of determining the deposit requirement (if any) for that month. 
However, this paragraph (a)(1)(ii)(a) shall not apply if the employer 
was required to make a deposit of taxes pursuant to paragraph 
(a)(1)(ii)(b) of this section with respect to an eighth-month period 
which occurred during the calendar month.

    Example 1. Employer A's aggregate amount of taxes accumulated with 
respect to wages paid in April 1991 is $800. Since that amount is in 
excess of $500, but less than $3,000, A must deposit the $800 in a 
Federal Reserve bank or authorized financial institution by May 15, 
1991.
    Example 2. Employer B's aggregate amount of taxes accumulated with 
respect to wages paid in April 1991 is $400. Since that amount is less 
than $500, B has no deposit obligation for the month of April. In May 
1991 B's aggregate amount of taxes accumulated with respect to wages 
paid during the month is $450. Since the $400 in taxes in April was not 
required to be deposited, that amount is taken into account in 
determining if a deposit is required for May. The aggregate amount of 
taxes accumulated with respect to wages paid for the two months is in 
excess of $500, thus requiring a deposit. Since June 15, 1991, is a 
Saturday, B must deposit the $850 in a Federal Reserve bank or 
authorized financial institution by Monday, June 17, 1991, pursuant to 
section 7503 of the Code.
    Example 3. The facts are the same as in Example 2 except that B 
deposits the $400 in taxes from April on May 15, 1991. Because the $400 
was not required to be deposited, that amount is taken into account in 
determining if a deposit obligation exists for May. Since the aggregate 
amount of taxes accumulated with respect to wages paid for the two 
months, $850, is in excess of $500, a deposit in the aggregate amount of 
$850 is required by Monday, June 17, 1991. Since $400 was previously 
deposited, B must deposit an additional $450 by June 17, 1991.
    Example 4. On Friday, April 5, 1991, a payroll date, Employer C 
accumulates $450 in taxes with respect to wages paid on that date. 
Although not required to do so, C deposits the $450 in an authorized 
depository. On Friday, April 19, 1991, C accumulates an additional $450 
in taxes with respect to wages paid. The aggregate amount of taxes 
accumulated with respect to wages paid during the calendar month is 
$900. C has a deposit obligation of $900 for the calendar month and must 
deposit an additional $450 in an authorized depository by May 15, 1991.

    (b) Except as provided in Sec. 31.6302(c)-1(a)(1)(ii)(c) or 
Sec. 31.6302(c)-1(b), and except in the case of first-time 3-banking-day 
depositors (as defined in Sec. 31.6302(c)-1(a)(1)(i)(b)(2)), if with 
respect to any eighth-monthly period (as defined in Sec. 31.6302(c)-
1(a)(1)(i)(b)) the aggregate amount of taxes accumulated with respect to 
wages paid is $3,000 or more, but less than $100,000, the employer shall 
deposit that aggregate amount in a Federal Reserve bank or authorized 
financial institution within 3 banking days after the close of that 
eighth-monthly period. Taxes accumulated with respect to wages paid 
during a prior eighth-monthly period shall not be taken into account if 
a deposit was required to be made under this section with respect to 
such tax amounts. Deposits made during the eighth-monthly period of 
taxes with respect to wages paid during that eighth-monthly period do 
not reduce the aggregate amount of taxes accumulated for purposes of 
determining the deposit requirement (if any) for that eighth-monthly 
period. Solely for purposes of the examples in this paragraph 
(a)(1)(ii)(b) and paragraphs (a)(1)(ii)(c), (d), and (f) of this 
section, ``banking

[[Page 382]]

days'' are assumed to include all calendar days except Saturdays, 
Sundays, and Federal holidays.

    Example 1. For the eighth-monthly period April 1-3, 1991, Employer 
D's aggregate amount of taxes accumulated with respect to wages paid is 
$3,500. Since that amount is in excess of $3,000, but less than 
$100,000, D has a deposit obligation of $3,500 that must be satisfied by 
April 8, 1991, the third banking day after the close of the eighth-
monthly period.
    Example 2. For the eighth-monthly period April 1-3, 1991, Employer 
E's aggregate amount of taxes accumulated with respect to wages paid is 
$3,500. E has a deposit obligation of $3,500 that must be satisfied by 
April 8, 1991, three banking days after the close of the April 1-3 
eighth-monthly period. For the eighth-monthly period April 4-7, 1991, 
E's aggregate amount of taxes accumulated with respect to wages paid is 
$2,800. Since E was required to make a deposit for the April 1-3 eighth-
monthly period, that $3,500 amount is not taken into account in 
determining any obligations that arise in subsequent eighth-monthly 
periods. E does not have an eighth-monthly deposit obligation with 
respect to the April 4-7 period.
    Example 3. For the eighth-monthly period April 1-3, 1991, Employer 
F's aggregate amount of taxes accumulated with respect to wages paid is 
$2,800. Since that amount is less than $3,000, no deposit is required 
with respect to that eighth-monthly period. For the eighth-monthly 
period April 4-7, 1991, F's aggregate amount of taxes accumulated with 
respect to wages paid is $2,500. Since F was not required to deposit the 
$2,800 in taxes from the April 1-3 eighth-monthly period, that amount is 
taken into account in determining F's deposit obligation for the April 
4-7 eighth-monthly period. The aggregate amount of taxes accumulated for 
the two eighth-monthly periods is $5,300. F has a deposit obligation of 
$5,300 that must be satisfied by April 10, 1991, three banking days 
after the close of the April 4-7 eighth-monthly period.
    Example 4. The facts are the same as in Example 3 except that F 
deposits the $2,800 from the April 1-3 eighth-monthly period on April 4, 
1991. Because the $2,800 was not required to be deposited, that amount 
is taken into account in determining F's deposit obligation for the 
April 4-7 eighth-monthly period. The aggregate amount of taxes 
accumulated for the two eighth-monthly periods is $5,300. Since that 
amount is in excess of $3,000, a deposit obligation exists after the 
close of the April 4-7 eighth-monthly period. As $2,800 of that amount 
was previously deposited, F has a deposit obligation of $2,500 that must 
be satisfied by April 10, 1991, three banking days after the close of 
the April 4-7 eighth-monthly period.
    Example 5. On Friday, April 12, 1991, the beginning of an eighth-
monthly period (April 12-15), G accumulates $3,500 in taxes with respect 
to wages paid and deposits the $3,500 in an authorized depository on 
that date although a deposit of the $3,500 was not required to be made 
on that date. On Monday, April 15, 1991, the end of the April 12-15 
eighth-monthly period, G accumulates an additional $2,000 in taxes with 
respect to wages paid. The aggregate amount of taxes accumulated with 
respect to wages paid during the April 12-15 eighth-monthly period of 
$5,500. G has a deposit obligation for the eighth-monthly period of 
$5,500. Since $3,500 of that amount was previously deposited, G has a 
remaining deposit obligation of $2,000 that must be satisfied by 
Thursday, April 18, 1991, three banking days after the close of the 
eighth-monthly period.

    (c) If on any day within an eighth-monthly period the aggregate 
amount of taxes accumulated with respect to wages paid is $100,000 or 
more, the employer shall deposit that aggregate amount in a Federal 
Reserve bank or authorized financial institution on the first banking 
day after that day. Taxes accumulated with respect to wages paid prior 
to that day shall not be taken into account if a deposit was required 
under this section with respect to such tax amounts. Taxes deposited on 
any given day with respect to wages paid on that day do not reduce the 
aggregate amount of taxes accumulated on that day for purposes of 
determining the deposit requirement (if any) for that day.

    Example 1. On Thursday, April 4, 1991, the beginning of the April 4-
7 eighth-monthly period, Employer H accumulates $55,000 in taxes with 
respect to wages paid on that date. On Saturday, April 6, 1991, H 
accumulates an additional $50,000 in taxes with respect to wages paid. H 
has a deposit obligation of $105,000 that must be satisfied by Monday, 
April 8, the next banking day after Saturday, April 6.
    Example 2. On Friday, April 12, 1991, the beginning of the April 12-
15 eighth-monthly period, J accumulates $60,000 in taxes with respect to 
wages paid and deposits the $60,000 in an authorized depository on that 
date although a deposit of the $60,000 was not required to be made on 
that date. On Monday, April 15, 1991, the last day in the April 12-15 
eighth-monthly period, J accumulates an additional $50,000 in taxes with 
respect to wages paid. On Monday, April 15, the aggregate amount of 
taxes accumulated with respect to wages paid during the eighth-monthly 
period to date totals $110,000. J has

[[Page 383]]

a $110,000 deposit obligation that must be satisfied by the next banking 
day after the $100,000 threshold is reached. Since $60,000 of the 
$110,000 was already deposited, J has a remaining deposit obligation of 
$50,000 that must be satisfied by Tuesday, April 16, 1991, the next 
banking day following April 15th.
    Example 3. On Monday, April 1, 1991, Employer K accumulates $105,000 
in taxes with respect to wages paid on that date. On that same day, K 
deposits in an authorized depository $10,000 of the $105,000 
accumulated. K has a $105,000 deposit obligation that must be satisfied 
by the next banking day, April 2, 1991. The $10,000 deposited on April 1 
cannot be used to reduce the aggregate amount of accumulated taxes with 
respect to that date. K has a remaining deposit obligation of $95,000 
that must be satisfied by April 2, 1991.

    (d) If, with respect to any eighth-monthly period, an employer 
incurs an obligation to deposit in accordance with Sec. 31.6302(c)-
1(a)(1)(ii)(c), and later, within the same eighth-monthly period, 
accumulates with respect to wages paid taxes of $3,000 or more, but less 
than $100,000, an additional deposit is required in accordance with 
Sec. 31.6302(c)-1(a)(1)(ii)(b). However, if the amount of taxes is 
$100,000 or more, an additional deposit is required in accordance with 
Sec. 31.6302(c)-1(a)(1)(ii)(c).

    Example. On Tuesday, April 2, 1991, Employer L accumulates $110,000 
in aggregate taxes with respect to wages paid. In accordance with 
paragraph (a)(1)(ii)(c) of this section, L has a $110,000 deposit 
obligation that must be satisfied by Wednesday, April 3, 1991, the next 
banking day following April 2. On Wednesday, April 3, 1991, L 
accumulates an additional $10,000 in taxes with respect to wages paid 
that date. In accordance with paragraph (a)(1)(ii)(b) of this section, L 
now has an additional deposit obligation of $10,000 that must be 
satisfied by Monday, April 8, 1991, the 3rd banking day following the 
close of the April 1-3 eighth-monthly period. The obligation to deposit 
the $10,000 is separate and distinct from the obligation to deposit the 
$110,000.

    (e) An employer will be considered to have satisfied the deposit 
obligation imposed by paragraphs (a)(1)(ii) (b), (c) and (d) of this 
section if--
    (1) The deposit that is made is not less than 95 percent of the 
aggregate amount of taxes accumulated with respect to wages paid during 
the period for which the deposit is made, and
    (2) If the eighth-monthly period (or, in the case of a deposit 
required under paragraph (a)(1)(ii)(c) of this section, the day on which 
the obligation arose) is in a month other than the last month of the 
return period, the employer deposits any remaining amount due with the 
first deposit otherwise required to be made after the fifteenth day of 
the following month. In the case of the last month of the return period, 
see Sec. 31.6302(c)-1(a)(1)(iv).
    (f) Any excess of a deposit over the actual taxes required to be 
deposited to date (overdeposit) during the return period shall be 
applied in order of time to each of the employer's succeeding deposit 
obligations within the same return period. In the determination of the 
aggregate amount of taxes accumulated with respect to wages paid in 
succeeding deposit periods, the overdeposit does not reduce the 
aggregate amount accumulated although the overdeposit is credited to the 
depositor's account.

    Example. Employer M's deposit obligation for the eighth-monthly 
period April 1-3, 1991, is $3,200. On April 8, 1991, three banking days 
after the close of the eighth-monthly period, M deposits $4,000 in an 
authorized depository, $800 in excess of the amount required to be 
deposited. During the eighth-monthly period April 4-7, 1991, M 
accumulates $3,750 in taxes with respect to wages paid during such 
period. Although the $800 overdeposit for the April 1-3 eighth-monthly 
period is credited to M's account, it may not be used to determine 
whether a deposit obligation exists for the April 4-7 eighth-monthly 
period. The two deposit obligations are separate and distinct. Since the 
amount of taxes accumulated with respect to the April 4-7 eighth-monthly 
period is an amount greater than $3,000, a deposit is required under 
paragraph (a)(1)(ii)(b) of this section within three banking days after 
the close of the period. M has a remaining deposit obligation of $2,950 
($3,750 accumulated less $800 overdeposit) that must be satisfied by 
April 10, 1991, three banking days after the close of the period.

    (g) The periods within which taxes must be deposited under this 
section are determined, in the case of employers paying advance earned 
income credit amounts, by reference to the amount of taxes required to 
be deposited after reduction for advance amounts paid to employees.
    (h) For purposes of this paragraph (a)(1)(ii), the term ``wages 
paid'' includes all amounts included in wages, e.g., under section 
3121(v) of the Code,

[[Page 384]]

regardless of whether they have actually been paid.
    (iii) As used in subdivisions (i) and (ii) of this subparagraph, the 
term ``taxes'' means--
    (a) The employee tax withheld under section 3102,
    (b) The employer tax under section 3111, and
    (c) The income tax withheld under section 3402, including amounts 
withheld with respect to qualified State individual income taxes,

Exclusive of taxes with respect to wages for domestic service in a 
private home of the employer or, if paid before April 1, 1971, wages for 
agricultural labor. In addition, with respect to wages paid after 
December 31, 1970, and before April 1, 1971, for agricultural labor, any 
taxes described in paragraph (a)(2)(ii) of this section which are not 
required under such subparagraph to be deposited, and any income tax 
(including qualified State individual income tax) withheld under section 
3402 with respect to such wages, shall be deemed to be ``taxes'' on and 
after April 1, 1971. For the requirements relating to the deposit and 
payment of withheld tax and with respect to qualified State individual 
income taxes, see paragraph (d)(3)(iii) of Sec. 301.6361-1 of this 
chapter (Regulations on Procedure and Administration).
    (iv) If the aggregate amount of taxes reportable on a return (other 
than a return on Form 942) for a return period exceeds the total amount 
deposited by the employer pursuant to paragraph (a)(1) (i) or (ii) of 
this section for such return period (a) by $500 or more in the case of a 
return period which ends after December 31, 1980, or (b) by more than 
$200 in the case of a return period which ends after December 31, 1970, 
and before January 1, 1981, the employer shall, on or before the last 
day of the first calendar month following the return period, deposit 
with a Federal Reserve bank or authorized financial institution an 
amount equal to the amount by which the taxes reportable on the return 
exceed the total deposits (if any) made pursuant to subdivision (i) or 
(ii) of this subparagraph for such period. As used in this subdivision, 
the term ``taxes'' shall have the meaning assigned to such term in 
subdivision (iii) of this subparagraph, except that the term shall 
include the taxes referred to in (a), (b), and (c) of such subdivision 
(iii) of this subparagraph with respect to any wages for domestic 
service in a private home of the employer which the employer elects to 
report on a quarterly return other than a quarterly return made on Form 
942.
    (v) If the aggregate amount of taxes reportable on Form CT-1, the 
return relating to an employer's railroad retirement tax payments, for a 
return period exceeds the total amount deposited by the employer 
pursuant to paragraph (a)(1)(i) of this section for such return period 
by $100 or more, the employer shall, on or before the last day of the 
second calendar month following the return period, deposit with a 
Federal Reserve bank or authorized financial institution an amount equal 
to the amount by which the taxes reportable on Form CT-1 exceed the 
total deposits (if any) of such taxes made pursuant to subdivision (i) 
of this subparagraph for such period.
    (2) Depositary forms--(i) In general. A deposit required to be made 
by this section shall be made separately from a deposit required by any 
other section. An employer may make one, or more than one, remittance of 
the amount required to be deposited. However, a deposit for a period in 
one calendar quarter shall be made separately from any deposit for a 
period in another calendar quarter. An amount of tax which is not 
required to be deposited may nevertheless be deposited if the employer 
so desires.
    (ii) Deposits. Each remittance of amounts required to be deposited 
under paragraph (a)(1) of this section shall be accompanied by a Federal 
Tax Deposit form. Such form shall be prepared in accordance with the 
instructions applicable thereto. The remittance, together with the 
Federal Tax Deposit form, shall be forwarded to a financial institution 
authorized as a depositary for Federal taxes in accordance with 31 CFR 
Part 214 or, at the election of the employer, to a Federal Reserve bank. 
For procedures governing the deposit of Federal taxes at a Federal 
Reserve bank, see 31 CFR Part 214.7. The timeliness of the deposit will 
be determined by the date stamped on the Federal

[[Page 385]]

Tax Deposit form by the Federal Reserve bank or the authorized financial 
institution or, if section 7502(e) applies, by the date the deposit is 
treated as received under section 7502(e). Each employer making deposits 
under this section shall report on the return, for the period with 
respect to which such deposits are made, information regarding such 
deposits according to the instructions that apply to such return and pay 
at that time (or deposit by the due date of such return) the balance, if 
any, of the taxes due for such period.
    (iii) Time deemed paid. In general, amounts deposited under 
subdivision (ii) of this subparagraph shall be considered as paid on the 
last day prescribed for filing the return in respect of such tax 
(determined without regard to any extension of time for filing such 
return), or at the time deposited, whichever is later. For purposes of 
section 6511 and the regulations thereunder, relating to period of 
limitation on credit or refund, if an amount is so deposited prior to 
April 15th of a calendar year immediately succeeding the calendar year 
which contains the period for which such amount was so deposited, such 
amount shall be considered as paid on such April 15th.
    (3) Procurement of prescribed form. Copies of the Federal Tax 
Deposit form will so far as possible be furnished employers. An employer 
will not be excused from making a deposit, however, by the fact that no 
form has been furnished to it. An employer not supplied with the Federal 
Tax Deposit form should make application therefor in ample time to make 
the required deposits within the time prescribed. The employer may 
secure the form or additional forms by application therefor to the 
district director or director of a service center; such application 
shall supply the employer's name, identification number, address, and 
the taxable period to which the deposits will relate.
    (b) Exceptions--(1) Monthly returns. The provisions of this section 
are not applicable with respect to taxes for the month in which the 
employer receives notice from the district director that returns are 
required under Sec. 31.6011 (a)-5 (or for any subsequent month for which 
such a return is required), if those taxes are also required to be 
deposited under the separate accounting procedures provided in 
Sec. 301.7512-1 of this chapter (Regulations on Procedure and 
Administration) (which procedures are applicable if notification is 
given by the district director of failure to comply with certain 
employment tax requirements). In cases in which a monthly return is 
required under Sec. 31.6011 (a)-5 but the taxes are not required to be 
deposited under the separate accounting procedures provided in 
Sec. 301.7512-1, the provisions of this section shall apply except that 
paragraph (a)(1)(iv) shall not authorize the deferral of any deposit to 
a date after the date on which the return is required to be filed.
    (2) Wages paid in nonconvertible foreign currency. The provisions of 
this section are not applicable with respect to taxes paid in 
nonconvertible foreign currency pursuant to Sec. 301.6316-7 of this 
chapter (Regulations on Procedure and Administration).


(68A Stat. 775, 917; 26 U.S.C. 6302, 7805; secs. 6302 (c) and 7805 of 
the Internal Revenue Code of 1954; 68A Stat. 775, 26 U.S.C. 6302 (c); 
68A Stat. 917; 26 U.S.C. 7805)


[T.D. 6516, 25 FR 13032, Dec. 20, 1960]

    Editorial Note: For Federal Fegister citations affecting 
Sec. 31.6302(c)-1, see the List of CFR Sections Affected in the Finding 
Aids section of this volume.



Sec. 31.6302(c)-2  Use of Government depositories in connection with employee and employer taxes under Railroad Retirement Tax Act for amounts attributable to 
          payments made before January 1, 1993.

    (a) Requirement--(1) In general: after 1983 and before April 1, 
1991. In the case of a calendar month which begins after December 31, 
1983, and before April 1, 1991, if, at a time prescribed under 
Sec. 31.6302(c)-1(a)(1) (i) or (v) for the deposit of undeposited taxes, 
the aggregate amount of undeposited employee tax withheld after December 
31, 1983, and before April 1, 1991, under section 3202 and employer tax 
imposed after December 31, 1983, and before April 1, 1991, under section 
3221(a) and (b) equals an amount required to be deposited under 
Sec. 31.6302(c)-1(a)(1) (i) or (v) the employer shall deposit the

[[Page 386]]

undeposited railroad retirement taxes described in sections 3202 and 
3221 at such time in the manner prescribed in Sec. 31.6302(c)-1(a)(1) 
(i) or (v) (except that undeposited railroad retirement taxes described 
in section 3221 (c) shall in no case be required to be deposited earlier 
than the first day on which a deposit is otherwise required by 
Sec. 31.6302(c)-1(a)(1)(i) to be made after the 15th day of the month 
following the month in which the section 3221 (c) tax arises).

Notwithstanding the preceding sentence, and notwithstanding subdivision 
(v) of Sec. 31.6302 (c)-1 (a) (1), if, for the calendar year prior to 
the calendar year preceding the current calendar year, the aggregate 
amount of taxes imposed under sections 3202 and 3221 with respect to an 
employer equalled or exceeded $1 million, such employer shall deposit 
his undeposited railroad retirement taxes required to be deposited for 
the current calendar year in accordance with Revenue Procedure 83-90, 
1983-52 I.R.B. 18, (relating to transfers by wire to the Treasury).
    (2) In general: After March 31, 1991 and before January 1, 1993. In 
the case of a calendar month which begins after March 31, 1991, if, at a 
time prescribed under Sec. 31.6302(c)-1(a)(1)(ii) or (v) for the deposit 
of accumulated taxes, the aggregate amount of accumulated employee tax 
withheld after March 31, 1991, under section 3202 and employer tax 
imposed after March 31, 1991, under section 3221(a) and (b) equals an 
amount required to be deposited under Sec. 31.6302(c)-1(a)(1)(ii) or 
(v), the employer shall deposit the accumulated railroad retirement 
taxes described in sections 3202 and 3221 at the time and in the manner 
prescribed in Sec. 31.6302(c)-1(a)(1)(ii) or (v) (except that 
accumulated railroad retirement taxes described in section 3221(c) shall 
in no case be required to be deposited earlier than the first day on 
which a deposit is otherwise required by Sec. 31.6302(c)-1(a)(1)(ii) to 
be made after the 15th day of the month following the month in which the 
section 3221(c) tax arises). Notwithstanding the preceding sentence, and 
notwithstanding Sec. 31.6302(c)-1(a)(1)(v), if, for the calendar year 
prior to the calendar year preceding the current calendar year, the 
aggregate amount of taxes imposed under sections 3202 and 3221 with 
respect to an employer equalled or exceeded $1 million, such employer 
shall deposit the aggregate amount of railroad retirement taxes required 
to be deposited for the current calendar year in accordance with Revenue 
Procedure 83-90, 1983-2 C.B. 615 (relating to transfers by wire to the 
Treasury).
    (3) Special requirement. If an employer files a return on Form CT-1 
for a return period beginning before January 1, 1984, and the taxes 
shown thereon exceed by more than $100 the total amount deposited by him 
pursuant to paragraph (a)(1) of this section for such return period the 
employer shall, on or before the last day of the second calendar month 
following the period for which the return is filed, deposit with a 
Federal Reserve bank or authorized financial institution an amount equal 
to the amount by which the taxes shown on the return exceed the total 
deposits (if any) made pursuant to paragraph (a)(1) of this section for 
such return period.
    (b) Depositary forms--(1) In general. A deposit required to be made 
by this section shall be made separately from a deposit required by any 
other section. An employer may make one, or more than one remittance of 
the amount required to be deposited. An amount of tax which is not 
required to be deposited may nevertheless be deposited if the employer 
so desires. If the aggregate amount of the taxes deposited is in excess 
of the taxes shown on the return, a credit or refund may be obtained; 
and in the event the excess is applied as a credit against such taxes 
for a subsequent return period, the employer shall reduce the amount of 
one or more of the deposits otherwise required for such subsequent 
return period by the amount of such credit.
    (2) Deposits. Each remittance of amounts required to be deposited 
shall be accompanied by a Federal Tax Deposit form which shall be 
prepared in accordance with the instructions applicable thereto. Except 
as provided in paragraph (a)(1) or (a)(2) of this section, the 
remittance, together with the form, shall be forwarded to a financial 
institution authorized as a depositary for Federal taxes in accordance 
with 31 CFR part 214 or, at the election of the

[[Page 387]]

employer, to a Federal Reserve bank. For procedures governing the 
deposit of Federal taxes at a Federal Reserve bank, see 31 CFR part 
214.7. The timeliness of the deposit will be determined by the date 
stamped on the Federal Tax Deposit form by the Federal Reserve bank or 
the authorized financial institution or, if section 7502(e) applies, by 
the date the deposit is treated as received under section 7502(e). Each 
employer making deposits under this section shall report on the return, 
for the period with respect to which such deposits are made, information 
regarding such deposits according to the instructions that apply to such 
return and pay at that time (or deposit by the due date of such return) 
the balance, if any, of the taxes due for such period.
    (3) Time deemed paid. In general, amounts deposited under 
subparagraph (2) of this paragraph shall be considered as paid on the 
last day prescribed for filing the return in respect of such tax 
(determined without regard to any extension of time for filing such 
return), or at the time deposited, whichever is later. For purposes of 
section 6511 and the regulations thereunder, relating to period of 
limitation on credit or refund, if an amount is so deposited prior to 
April 15th of a calendar year immediately succeeding the calendar year 
in which occurs the period for which such amount was so deposited, such 
amount shall be considered as paid on such April 15th.
    (c) Procurement of prescribed form. Copies of the Federal Tax 
Deposit form will so far as possible be furnished employers. An employer 
will not be excused from making a deposit, however, by the fact that no 
form has been furnished to it. An employer not supplied with the form 
should make application therefor in ample time to make the required 
deposits within the time prescribed. The employer may secure the form or 
additional forms by applying therefor and supplying its name, 
identification number, address, and the taxable period to which the 
deposits will relate. Copies of the Federal Tax Deposit form may be 
secured by application therefor to the district director or director of 
a service center.


(Secs. 6302 (c) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 
775, 26 U.S.C. 6302 (c); 68A Stat. 917; 26 U.S.C. 7805)


[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6941, 32 FR 
18041, Dec. 16, 1967; T.D. 6957, 33 FR 8272, June 4, 1968; T.D. 7419, 41 
FR 19632, May 13, 1976; T.D. 7931, 48 FR 57274, Dec. 29, 1983; T.D. 
7953, 49 FR 19645, May 9, 1984; T.D. 8341, 56 FR 13403, Apr. 2, 1991; 
T.D. 8436, 57 FR 44106, Sept. 24, 1992]



Sec. 31.6302(c)-2A  Use of Government depositaries in connection with the railroad unemployment repayment tax.

    (a) Effective date. The provisions of this section apply with 
respect to the tax imposed by section 3321(a) on rail employers (as 
defined in section 3323(a)) on wages paid on or after July 1, 1986, 
during a taxable period.
    (b) Requirement--(1) Rail employers--(i) In general. Except as 
provided in this section, every rail employer who is required by section 
6157(d) to compute the tax imposed by section 3321(a) on a quarterly 
basis shall deposit the amount of the tax so computed with respect to a 
calendar quarter (other than the fourth quarter of a calendar year) with 
a Federal Reserve bank or with an authorized financial institution on or 
before the last day of the first calendar month following the close of 
the calendar quarter.
    (ii) Special rule for certain rail employers. If, for the calendar 
year prior to the calendar year immediately preceding the current 
calendar year, the aggregate amount of taxes imposed under sections 3202 
and 3221 of the Code (relating to the railroad retirement tax) with 
respect to an employer equaled or exceeded $1,000,000, such employer 
shall (except as provided below) deposit his undeposited railroad 
unemployment repayment tax imposed by section 3321(a) with respect to 
the current calendar year at the time such tax would otherwise be 
required to be deposited under this section in the manner set forth in 
Revenue Procedure 83-90, 1983-2 C.B. 615 (relating to transfers by wire 
to the Treasury). The funds transfer message described in Revenue 
Procedure 83-90 (with respect to the railroad retirement tax) shall be 
completed in the same manner as is prescribed in that Revenue Procedure, 
except that the amount required by item

[[Page 388]]

12(f) shall be the amount of the railroad unemployment repayment tax (to 
be labeled as such by the rail employer). Item 12(g) is to be 
disregarded with respect to the use of the Revenue Procedure for 
deposits of the railroad unemployment repayment tax. A wire transfer 
required to be made by a rail employer with respect to the railroad 
unemployment repayment tax shall be made separately from any wire 
transfer required to be made with respect to any other tax.
    (2) Special rule where accumulated amount does not exceed $100. The 
provisions of paragraph (b)(1) of this section shall not apply with 
respect to any calendar quarter if the amount of tax imposed by section 
3321(a) for such calendar quarter as computed under section 6157, plus 
unpaid amounts for prior calendar quarters within the taxable period, 
does not exceed $100.
    (3) Requirement for deposit in lieu of payment with return. If the 
amount of the tax reportable on a return of tax on Form CT-1 for a 
taxable period (as defined in section 3322(a)) exceeds by more than $100 
the sum of the amounts deposited pursuant to paragraph (b)(1) of this 
section for such taxable period, the rail employer shall, on or before 
the last day of the first calendar month following the period, deposit 
the balance of the tax due with a Federal Reserve bank or with an 
authorized financial institution.
    (4) Special rule for third calendar quarter of 1986. Notwithstanding 
paragraph (b)(1)(i) of this section, every rail employer required by 
section 6157(d) to compute the tax imposed by section 3321(a) for the 
third calendar quarter of 1986 shall deposit the tax so computed on or 
before December 15, 1986, in the manner provided by this section.
    (c) Depositary forms. The provisions of paragraphs (b) and (c) of 
Sec. 31.6302(c)-2, relating to depositary forms, are incorporated in 
this Sec. 31.6302(c)-2A by reference.

[T.D. 8105, 51 FR 40169, Nov. 5, 1986. Redesignated and amended at T.D. 
8227, 53 FR 34736, Sept. 8, 1988]



Sec. 31.6302(c)-3  Use of Government depositaries in connection with tax under the Federal Unemployment Tax Act.

    (a) Requirement--(1) In general. Except as provided in paragraph 
(a)(2) of this section, every person who, by reason of the provisions of 
section 6157, computes the tax imposed by section 3301 on a quarterly or 
other time period basis shall--
    (i) If he is a person described in subsection (a)(1) of section 
6157, deposit the amount of such tax with a Federal Reserve bank or with 
an authorized financial institution on or before the last day of the 
first calendar month following the close of each of the first three 
calendar quarters in the calendar year, or
    (ii) If he is a person other than a person described in subsection 
(a) (1) of section 6157, deposit the amount of such tax with a Federal 
Reserve bank or with an authorized financial institution on or before 
the last day of the first calendar month following the close of--
    (a) The period beginning with the first day of the calendar year and 
ending with the last day of the calendar quarter (excluding the last 
calendar quarter) in which such person becomes an employer (as defined 
in section 3306(a)), and
    (b) The third calendar quarter of such year, if the period specified 
in (a) of this subdivision includes only the first two calendar quarters 
of the calendar year.
    (2) Special rule where accumulated amount does not exceed $100. The 
provisions of paragraph (a)(1) of this section shall not apply with 
respect to any period described therein if the amount of the tax imposed 
by section 3301 for such period as computed under the provisions of 
section 6157, plus amounts not deposited for prior periods does not 
exceed $100. Thus, an employer shall not be required to make a deposit 
for a period unless his tax for such period plus tax not deposited for 
prior periods exceeds $100.
    (3) Requirement for deposit in lieu of payment with return. If the 
amount of tax reportable on a return on Form 940

[[Page 389]]

for a calendar year beginning after December 31, 1969, exceeds by more 
than $100 the sum of the amount deposited by the employer pursuant to 
paragraph (a)(1) of this section for such calendar year, the employer 
shall, on or before the last day of the first calendar month following 
the calendar year for which the return is required to be filed, deposit 
the balance of the tax due with a Federal Reserve bank or with an 
authorized financial institution.
    (b) Manner of deposit--deposits required to be made by Federal tax 
deposit (FTD) coupon. (1) In general. A deposit required to be made by 
an employer under this section shall be made separately from a deposit 
required by any other section. An employer may make one, or more than 
one, remittance of the amount required to be deposited. An amount of tax 
which is not required to be deposited may nevertheless be deposited if 
the employer so desires.
    (2) Use of Federal Tax Deposit form. Each remittance of amounts 
required to be deposited under this section shall be accompanied by a 
prepunched and preinscribed Federal Tax Deposit form which shall be 
prepared in accordance with the instructions applicable thereto. The 
employer shall forward such remittance, together with the Federal Tax 
Deposit form, to a financial institution authorized as a depositary for 
Federal taxes in accordance with 31 CFR part 214 or, at the election of 
the employer, to a Federal Reserve bank. For procedures governing the 
deposit of Federal taxes at a Federal Reserve bank, see 31 CFR 214.7. 
The timeliness of deposits is determined by the date stamped on the 
Federal Tax Deposit form by the Federal Reserve bank or the authorized 
financial institution or, if section 7502(e) applies, by the date the 
deposit is treated as received under section 7502(e).
    (3) Time deemed paid. In general, amounts deposited under this 
section shall be considered as paid on the last day prescribed for 
filing the return in respect of such tax (determined without regard to 
any extension of time for filing such return), or at the time deposited, 
whichever is later. For purposes of section 6511 and the regulations 
thereunder, relating to period of limitation on credit or refund, if an 
amount is so deposited prior to the last day prescribed for filing the 
return in respect of such tax (determined without regard to any 
extension of time for filing such return), such amount shall be 
considered as paid on such last day.
    (4) Procurement of prescribed form. Copies of the Federal Tax 
Deposit form will so far as possible be furnished employers. An employer 
will not be excused from making a deposit, however, by the fact that no 
form has been furnished to him. An employer not supplied with the proper 
form should make application therefor in ample time to make the required 
deposits within the time prescribed. The employer may secure the form or 
additional forms by applying therefor and supplying his name, 
identification number, address and the taxable year to which the 
deposits will relate. Copies of the Federal Tax Deposit form may be 
secured by application to the district director or director of a service 
center.
    (c) Manner of deposit--deposits required to be made by electronic 
funds transfer. For the requirement to deposit tax under the Federal 
Unemployment Tax Act by electronic funds transfer, see Sec. 31.6302-
1(h). A taxpayer not required to deposit by electronic funds transfer 
pursuant to Sec. 31.6302-1(h) remains subject to the rules of paragraph 
(b) of this section.
    (d) Effective date. The provisions of paragraphs (a) and (b) of this 
section apply with respect to calendar quarters beginning after December 
31, 1969. The provisions of paragraph (c) of this section apply with 
respect to calendar quarters beginning on or after January 1, 1995.

[T.D. 7037, 35 FR 6709, Apr. 28, 1970; 35 FR 7070, May 5, 1970, as 
amended by T.D. 7062, 35 FR 14840, Sept. 24, 1970; T.D. 7953, 49 FR 
19645, May 9, 1984; 49 FR 25239, June 20, 1984; T.D. 8723, 62 FR 37494, 
July 14, 1997]



Sec. 31.6302(c)-4  Cross references.

    (a) Failure to deposit. For provisions relating to the penalty for 
failure to make a deposit within the prescribed time, see the provisions 
of Sec. 301.6656-1 of this chapter (Regulations on Procedure and 
Administration).
    (b) Saturday, Sunday, or legal holiday. For provisions relating to 
the time for performance of acts where the last day

[[Page 390]]

falls on Saturday, Sunday, or a legal holiday, see the provisions of 
Sec. 301.7503-1 of this chapter (Regulations on Procedure and 
Administration).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960. Redesignated by T.D. 7037, 35 FR 
6709, Apr. 28, 1970]



Sec. 31.6361-1  Collection and administration of qualified State individual income taxes.

    Except as otherwise provided in Secs. 301.6361-1 to 301.6385-2, 
inclusive, of this chapter (Regulations on Procedure and 
Administration), the provisions of this part under subtitle F or chapter 
24 of the Internal Revenue Code of 1954 relating to the collection and 
administration of the taxes imposed by chapter 1 of such Code on the 
incomes of individuals (or relating to civil or criminal sanctions with 
respect to such collection and administration) shall apply to the 
collection and administration of qualified State individual income taxes 
(as defined in section 6362 of such Code and the regulations thereunder) 
as if such taxes were imposed by chapter 1 of chapter 24.


(86 Stat. 944, 26 U.S.C. 6364; and 68A Stat. 917, 26 U.S.C. 7805)


[T.D. 7577, 43 FR 59360, Dec. 20, 1978]



Sec. 31.6402(a)-1  Credits or refunds.

    (a) In general. For regulations under section 6402 of special 
application to credits or refunds of employment taxes, see 
Secs. 31.6402(a)-2, 31.6402(a)-3, and 31.6414-1, for regulations under 
section 6402 of general application to credits or refunds, see 
Secs. 301.6402-1 and 301.6402-2 of this chapter (Regulations on 
Procedure and Administration). For provisions relating to credits of 
employment taxes which constitute adjustments without interest, see 
Secs. 31.6413(a)-1 and 31.6413(a)-2.
    (b) Period of limitation. For the period of limitation upon credit 
or refund of taxes imposed by the Internal Revenue Code of 1954, see 
Sec. 301.6511(a)-1 of this chapter (Regulations on Procedure and 
Administration). For the period of limitation upon credit or refund of 
any tax imposed by the Internal Revenue Code of 1939, see the 
regulations applicable with respect to such tax.



Sec. 31.6402(a)-2  Credit or refund of tax under Federal Insurance Contributions Act or Railroad Retirement Tax Act.

    (a) Claim by person who paid tax to district director--(1) In 
general. Any person who pays to the district director more than the 
correct amount of--
    (i) Employee tax under section 3101, or employer tax under section 
3111, of the Federal Insurance Contributions Act,
    (ii) Employee tax under section 3201, employee representative tax 
under section 3211, or employer tax under section 3221, of the Railroad 
Retirement Tax Act,
    (iii) Any such tax under a corresponding provision of prior law, or
    (iv) Interest, addition to the tax, additional amount, or penalty 
with respect to any such tax,

may file a claim for refund of the overpayment (except to the extent 
that the overpayment must be credited pursuant to Sec. 31.3503-1, or may 
claim credit for such overpayment, in the manner and subject to the 
conditions stated in this section and Sec. 301.6402-2 of this chapter 
(Regulations on Procedure and Administration). If credit is claimed 
pursuant to this section, the amount thereof shall be claimed by 
entering such amount as a deduction on a return filed by the person 
making the claim. The return on which the credit is claimed must be on a 
form which is prescribed for use, at the time of the claim, in reporting 
tax which corresponds to the tax overpaid. If credit is taken pursuant 
to this section, a claim on Form 843 is not required, but the return on 
which the credit is claimed shall have attached as a part thereof a 
statement which shall constitute the claim for credit, setting forth in 
detail the grounds and facts relied upon in support of the credit, 
designating the return period in which the error was ascertained, and 
setting forth such other information as may be required by the 
regulations in this subpart and by the instructions relating to the 
return. No refund or credit of employee tax under the Federal Insurance 
Contributions Act shall be allowed if for any reason (for example, an 
overcollection of employee tax having been

[[Page 391]]

inadvertently included by the employee in computing a special refund--
see Sec. 31.6413(c)-1 the employee has taken the amount of such tax into 
account in claiming a credit against, or refund of, his income tax, or 
if so, such claim has been rejected.
    (2) Statements supporting employers' claims for employee tax. (i) 
Every claim filed by an employer for refund or credit of employee tax 
under section 3101 or section 3201, or a corresponding provision of 
prior law, collected from an employee shall include a statement that the 
employer has repaid the tax to such employee or has secured the written 
consent of such employee to allowance of the refund or credit. The 
employer shall retain as part of his records the written receipt of the 
employee showing the date and amount of the repayment, or the written 
consent of the employee, whichever is used in support of the claim.
    (ii) Every claim filed by an employer for refund or credit of 
employee tax under section 3101, or a corresponding provision of prior 
law, collected from an employee in a calendar year prior to the year in 
which the credit or refund is claimed, also shall include a statement 
that the employer has obtained from the employee a written statement (a) 
that the employee has not claimed refund or credit of the amount of the 
overcollection, or if so, such claim has been rejected, and (b) that the 
employee will not claim refund or credit of such amount. The employer 
shall retain the employee's written statement as part of the employer's 
records.
    (b) Claim by employee--(1) In general. If more than the correct 
amount of employee tax under section 3101 or section 3201, or a 
corresponding provision of prior law, is collected by an employer from 
an employee and paid to the district director, the employee may file a 
claim for refund of the overpayment if (i) the employee does not receive 
reimbursement in any manner from the employer and does not authorize the 
employer to file a claim and receive refund or credit, (ii) the 
overcollection cannot be corrected under Sec. 31.3503-1, and (iii) in 
the case of employee tax under section 3101 or a corresponding provision 
of prior law, the employee has not taken the overcollection into account 
in claiming a credit against, or refund of, his income tax, or if so, 
such claim has been rejected. See Sec. 31.6413(c)-1.
    (2) Statements supporting employee's claim. (i) Each employee who 
makes a claim under subparagraph (1) of this paragraph shall submit with 
such claim a statement setting forth (a) the extent, if any, to which 
the employer has reimbursed the employee in any manner for the 
overcollection, and (b) the amount, if any, of credit or refund of such 
overpayment claimed by the employer or authorized by the employee to be 
claimed by the employer. The employee shall obtain such statement, if 
possible, from the employer, who should include in such statement the 
fact that it is made in support of a claim against the United States to 
be filed by the employee for refund of employee tax paid by such 
employer to the district director. If the employer's statement is not 
submitted with the claim, the employee shall make the statement to the 
best of his knowledge and belief, and shall include therein an 
explanation of his inability to obtain the statement from the employer.
    (ii) Each individual who makes a claim under subparagraph (1) of 
this paragraph for refund of employee tax under section 3101, or a 
corresponding provision of prior law, also shall submit with such claim 
a statement setting forth whether the individual has taken the amount of 
the overcollection into account in claiming a credit against, or refund 
of, his income tax, and the amount, if any, so claimed (see 
Sec. 31.6413(c)-1).
    (c) Statements to accompany employers' and employees' claims under 
the Federal Insurance Contributions Act. Whenever a claim for credit or 
refund of employee tax under section 3101, employer tax under section 
3111, or either such tax under a corresponding provision of prior law, 
is made with respect to remuneration which was erroneously reported on a 
return or schedule as wages paid to an employee, such claim shall 
include a statement showing (1) the identification number of the 
employer, if he was required to make application therefor, (2) the name 
and account

[[Page 392]]

number of such employee, (3) the period covered by such return or 
schedule, (4) the amount of remuneration actually reported as wages for 
such employee, and (5) the amount of wages which should have been 
reported for such employee. No particular form is prescribed for making 
such statement, but if printed forms are desired, the district director 
will supply copies of Form 941c or Form 941c PR, whichever is 
appropriate, upon request.



Sec. 31.6402(a)-3  Refund of Federal unemployment tax.

    Any person who pays to the district director more than the correct 
amount of--
    (a) Tax under section 3301 of the Federal Unemployment Tax Act or a 
corresponding provision of prior law, or
    (b) Interest, addition to the tax, additional amount, or penalty 
with respect to such tax,

may file a claim for refund of the overpayment, in the manner and 
subject to the conditions stated in Sec. 301.6402-2 of this chapter 
(Regulations on Procedure and Administration). See Sec. 31.6413(d) and 
the corresponding section of prior law for provisions which bar the 
allowance or payment of interest on the amount of any refund based on 
credit allowable for contributions paid under the unemployment 
compensation law of a State.



Sec. 31.6404(a)-1  Abatements.

    For regulations under section 6404 of general application to the 
abatement of taxes, see Sec. 301.6404-1 of this chapter (Regulations on 
Procedure and Administration). Every claim filed by an employer for 
abatement of employee tax under section 3101 or section 3201, or a 
corresponding provision of prior law, shall be made in the manner and 
subject to the conditions stated in paragraphs (a) (2) and (c) of 
Sec. 31.6402(a)-2, as if the claim for abatement were a claim for 
refund.



Sec. 31.6413(a)-1  Repayment by employer of tax erroneously collected from employee.

    (a) Before employer files return--(1) Employee tax under the Federal 
Insurance Contributions Act or the Railroad Retirement Tax Act. (i) If 
an employer--
    (a) During any return period collects from an employee more than the 
correct amount of tax under section 3101 or section 3201, or a 
corresponding provision of prior law,
    (b) Repays the amount of the over-collection to the employee before 
the return for such period is filed with the district director, and
    (c) Obtains and keeps as part of his records the written receipt of 
the employee showing the date and amount of the repayment,

the employer shall not report on any return or pay to the district 
director the amount of the overcollection.
    (ii) Any overcollection not repaid to and receipted for by the 
employee as provided in paragraph (a)(1)(i) of this section shall be 
reported and paid to the district director with the return for the 
return period in which the overcollection was made. Such return shall be 
accompanied by a statement explaining the overcollection, setting forth 
the account number (if known) and name of the individual from whom the 
overcollection was made, and showing the total amount overcollected from 
and not repaid to the individual. If the employer is not required to 
make a return for such period, the employer nevertheless shall furnish 
to the district director a statement as described in the preceding 
sentence, on or before the date fixed for filing a return for such 
period, and shall pay the amount of the overcollection with such 
statement.
    (2) Income tax withheld from wages. (i) If an employer--
    (a) During any return period collects from an employee more than the 
correct amount of tax under section 3402,
    (b) Repays the amount of the overcollection to the employee before 
the return for such period is filed with the district director and 
before the end of the calendar year in which the overcollection was 
made, and
    (c) Obtains and keeps as part of his records the written receipt of 
the employee showing the date and amount of the repayment,

the employer shall not report on any return or pay to the district 
director the amount of the overcollection.
    (ii) Any overcollection not repaid to and receipted for by the 
employee as

[[Page 393]]

provided in subdivision (i) of this subparagraph shall be reported and 
paid to the district director with the return for the return period in 
which the overcollection was made.
    (b) After employer files return--(1) Employee tax under the Federal 
Insurance Contributions Act or the Railroad Retirement Tax Act. (i) If 
an employer collects from any employee and pays to the district director 
more than the correct amount of employee tax under section 3101 or 
section 3201, or a corresponding provision of prior law, and if the 
error is ascertained within the applicable period of limitation on 
credit or refund, the employer shall repay or reimburse the employee in 
the amount thereof prior to the expiration of the return period 
following the return period in which the error is ascertained and prior 
to the expiration of such limitation period. This subparagraph has no 
application in any case in which an overcollection is made the subject 
of a claim by the employer for refund or credit, and the employer elects 
to secure the written consent of the employee to the allowance of the 
refund or credit under the procedure provided in paragraph (a)(2)(i) of 
Sec. 31.6402(a)-2.
    (ii) If the amount of an overcollection is repaid to an employee, 
the employer shall obtain and keep as part of his records the written 
receipt of the employee, showing the date and amount of the repayment. 
If, in any calendar year, an employer repays or reimburses an employee 
in the amount of an overcollection of employee tax under section 3101, 
or a corresponding provision of prior law, which was collected from the 
employee in a prior calendar year, the employer shall obtain from the 
employee and keep as part of his records a written statement (a) that 
the employee has not claimed refund or credit of the amount of the 
overcollection, or if so, such claim has been rejected, and (b) that the 
employee will not claim refund or credit of such amount. See 
Sec. 31.6413(c)-1.
    (iii) If the employer does not repay the employee the amount 
overcollected, the employer shall reimburse the employee by applying the 
amount of the overcollection against the employee tax which attaches to 
wages or compensation paid to the employee prior to the expiration of 
the return period following the return period in which the error is 
ascertained and prior to the expiration of the applicable period of 
limitation on credit or refund. If the amount of the overcollection 
exceeds the amount so applied against such employee tax, the excess 
amount shall be repaid to the employee as required by this subparagraph.
    (iv) For purposes of this subparagraph, an error is ascertained when 
the employer has sufficient knowledge of the error to be able to correct 
it.
    (v) For the period of limitation upon credit or refund of taxes 
imposed by the Internal Revenue Code of 1954, see Sec. 301.6511(a)-1 of 
this chapter (Regulations on Procedure and Administration). For the 
period of limitation upon credit or refund of any tax imposed by the 
Internal Revenue Code of 1939, see the regulations applicable with 
respect to such tax.
    (2) Income tax withheld from wages. (i) If, in any return period in 
a calendar year, an employer collects from any employee more than the 
correct amount of tax under section 3402, and the employer pays the 
amount of such overcollection to the district director, the employer may 
repay or reimburse the employee in the amount thereof in any subsequent 
return period in such calendar year.
    (ii) If the amount of the overcollection is repaid to the employee, 
the employer shall obtain and keep as part of his records the written 
receipt of the employee, showing the date and amount of the repayment. 
If the employer does not repay the amount of the overcollection, the 
employer may reimburse the employee by applying the amount of the 
overcollection against the tax under section 3402 which otherwise would 
be required to be withheld from wages paid by the employer to the 
employee in the calendar year in which the overcollection is made.



Sec. 31.6413(a)-2  Adjustment of overpayments.

    (a) Taxes under the Federal Insurance Contributions Act or the 
Railroad Retirement Tax Act--(1) Employee tax. After an

[[Page 394]]

employer repays or reimburses an employee in the amount of an 
overcollection, as provided in paragraph (b)(1) of Sec. 31.6413(a)-1, 
the employer may claim credit for such amount in the manner, and subject 
to the conditions, stated in Sec. 31.6402(a)-2. Such credit shall 
constitute an adjustment, without interest, if the amount thereof is 
entered on a return for a period ending on or before the last day of the 
return period following the return period in which the error was 
ascertained. No credit or adjustment in respect of an overpayment shall 
be entered on a return after the filing of a claim for refund of such 
overpayment.
    (2) Employer tax. If an employer pays more than the correct amount 
of employer tax under section 3111 or section 3221, or a corresponding 
provision of prior law, the employer may claim credit for the amount of 
the overpayment in the manner, and subject to the conditions, stated in 
Sec. 31.6402(a)-2. Such credit shall constitute an adjustment, without 
interest, if the amount thereof is entered on the same return on which 
the employer adjusts, pursuant to paragraph (a)(1) of this section, a 
corresponding overpayment of employee tax.
    (b) Income tax withheld from wages. If, pursuant to paragraph (b)(2) 
of Sec. 31.6413(a)-1, an employer repays or reimburses an employee in 
the amount of an overcollection of tax under section 3402, the employer 
may adjust the overcollection, without interest, by entering the amount 
thereof as a deduction on a return of tax under section 3402, filed by 
the employer for any return period in the calendar year in which the 
employer repays or reimburses the employee. The return on which the 
adjustment is entered as a deduction shall have attached thereto a 
statement explaining the adjustment, designating the return period in 
which the error occurred, and setting forth such other information as is 
required by the regulations in this subpart and by the instructions 
relating to the return.



Sec. 31.6413(a)-3  Repayment by payor of tax erroneously collected from payee.

    (a) In general--(1) Erroneous withholding under section 3406 of the 
Internal Revenue Code. If a payor or broker withholds under section 3406 
from a payee in error or withholds more than the proper amount of the 
tax under section 3406, the payor or broker may refund the amount 
erroneously withheld as provided in section 6413 and this section. A 
payor or broker will be considered to have withheld erroneously under 
section 3406 only if the amount is withheld because of an error by the 
payor or broker (e.g., an error in flagging or identifying an account 
that is subject to withholding under section 3406). The payor or broker 
may, in its discretion, treat the amount withheld as an amount 
erroneously withheld and refund it to the payee if--
    (i) The payor or broker requires a payee described in 
Sec. 31.3406(g)-1(a) or described in a provision of the Internal Revenue 
Code requiring the reporting of a payment subject to withholding under 
section 3406 to certify that it is an exempt recipient, the payee fails 
to make the required certification, and the payor or broker subsequently 
withholds under section 3406 from a payment to the payee;
    (ii) The payor or broker does not require the payee to certify 
concerning its exempt status and the payor or broker withholds under 
section 3406;
    (iii) The payor or broker withholds under section 3406 from a payee 
after the payee provides a taxpayer identification number or required 
certification (including the documentation described in Sec. 1.1441-
1(e)(1)(ii), 1.6045-1(g)(3), or 1.6049-5(c) of this chapter) to the 
payor, but before the payor or broker treats the number or required 
certification as having been received under Sec. 31.3406(e)-1(b); or
    (iv) The amount is withheld because a payor imposed backup 
withholding on a payment made to a person because the payee failed to 
furnish the documentation described in Sec. 1.1441-1(e)(1)(ii) of this 
chapter and the payee subsequently furnishes, completes, or corrects the 
documentation. The documentation must be furnished, completed, or 
corrected prior to the end of the calendar year in which the payment is 
made and prior to the time the payor furnishes a Form 1099 to the payee 
with respect to the payment for

[[Page 395]]

which the withholding erroneously occurred.
    (2) For purposes of paragraph (a)(1) of this section (other than 
erroneous withholding occurring under the circumstances described in 
paragraph (a)(1)(iv) of this section), if a payor or broker withholds 
because the payor or broker has not received a taxpayer identifying 
number or required certification and the payee subsequently provides a 
taxpayer identifying number or a required certification to the payor, 
the payor or broker may not refund the amount to the payee.
    (b) Refunding amounts erroneously withheld--(1) Time and manner. If 
a payor or broker withholds under section 3406 from a payee in error 
(including withholding more than the correct amount, as described in 
paragraph (a) of this section), the payor or broker may refund the 
amount erroneously withheld to the payee if the refund is made prior to 
the end of the calendar year and prior to the time the payor or broker 
furnishes a Form 1099 to the payee with respect to the payment for which 
the erroneous withholding occurred. If the amount of the erroneous 
withholding is refunded to the payee, the payor or broker must--
    (i) Keep as part of its records a receipt showing the date and 
amount of refund and must provide a copy of the receipt to the payee (a 
canceled check or an entry in a statement is sufficient, provided that 
the check or statement contains a specific notation that it is a refund 
of tax erroneously withheld);
    (ii) Not report on a Form 1099 as tax withheld any amount which the 
payor or broker has refunded to a payee; and
    (iii) Not deposit the amount erroneously withheld if the payor or 
broker has not deposited the amount of the tax prior to the time that 
the refund is made to the payee.
    (2) Adjustment after the deposit of the tax--(i) In general. Except 
as provided in paragraph (b)(2)(ii) of this section, if the amount 
erroneously withheld has been deposited prior to the time that the 
refund is made to the payee, the payor or broker may adjust any 
subsequent deposit of the tax collected under chapter 24 of the Internal 
Revenue Code that the payor or broker is required to make in the amount 
of the tax that has been refunded to the payee.
    (ii) Erroneous withholding from a payee that is a foreign person. 
Where a payor withholds in error from a payee that is a nonresident 
alien or foreign person, as described in paragraph (a)(1)(iv) of this 
section, the payor may refund some or all of the amount subject to 
backup withholding under section 3406. A refund may be paid in 
accordance with the requirements of this paragraph (b)(2)(ii) where the 
documentation is furnished, completed, or corrected prior to the end of 
the calendar year in which the payment is made and prior to the time the 
payor furnishes a Form 1099 to the payee with respect to the payment for 
which the withholding erroneously occurred. The amount of the refund 
will be the amount erroneously withheld less the amount of tax required 
to be withheld, if any, under chapter 3 of the Internal Revenue Code and 
the regulations under that chapter. With respect to the amount of the 
payment to the foreign person and the amount of tax required to be 
withheld under chapter 3 of the Internal Revenue Code (and the 
regulations thereunder), returns must be made in accordance with the 
requirements of Sec. 1.1461-1 (b) and (c) of this chapter.

[T.D. 8637, 60 FR 66133, Dec. 21, 1995, as amended by T.D. 8734, 62 FR 
53494, Oct. 14, 1997]

    Effective Date Note: By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 31.6413(a)-3 was amended in paragraph (a)(1)(ii) by removing the 
language ``or'' at the end of the paragraph; in paragraph (a)(1)(iii), 
by removing the parenthetical ``(including the certification relating to 
foreign status described in Sec. 1.6049-5(b)(2)(iv) of this chapter or 
Sec. 1.6045-1(g)(1) of this chapter)'' and adding in its place 
``(including the documentation described in Sec. 1.1441-1(e)(1)(ii), 
1.6045-1(g)(3), or 1.6049-5(c) of this chapter)''; in paragraph 
(a)(1)(iii) by removing the period at the end of the paragraph and 
adding ``; or'' in its place; by adding paragraph (a)(1)(iv); and by 
revising paragraphs (a)(2) and (b)(2), effective Jan. 1, 1999. At 63 FR 
72183, Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. 
By T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001. For the convenience of the user, the superseded text 
is set forth as follows:

[[Page 396]]

Sec. 31.6413(a)-3  Repayment by payor of tax erroneously collected from 
          payee.

    (a) * * * (1) * * *
    (2) Limitations. For purposes of paragraph (a)(1) of this section, 
if a payor or broker withholds because the payor or broker has not 
received a taxpayer identification number or required certification and 
the payee subsequently provides a taxpayer identification number or a 
required certification to the payor, the payor or broker may not refund 
the amount to the payee.
    (b) * * *
    (2) Adjustment after the deposit of the tax. For purposes of 
paragraph (b)(1) of this section, if the amount erroneously withheld has 
been deposited prior to the time that the refund is made to the payee, 
the payor or broker may adjust any subsequent deposit of the tax 
collected under chapter 24 of the Internal Revenue Code that the payor 
or broker is required to make in the amount of the tax that has been 
refunded to the payee.

                                * * * * *



Sec. 31.6413(b)-1  Overpayments of certain employment taxes.

    For provisions relating to the adjustment of overpayments of tax 
imposed by section 3101, 3111, 3201, 3221, or 3402, see Sec. 31.6413(a)-
2. For provisions relating to refunds of tax imposed by section 3101, 
3111, 3201, or 3221, see Secs. 31.6402(a)-1 and 31.6402(a)-2. For 
provisions relating to refunds of tax imposed by section 3402, see 
Secs. 31.6402(a)-1 and 31.6414-1.



Sec. 31.6413(c)-1  Special refunds.

    (a) Who may make claims--(1) In general. (i) If an employee receives 
wages, as defined in section 3121(a), from two or more employers in any 
calendar year:
    (a) After 1954 and before 1959 in excess of $4,200,
    (b) After 1958 and before 1966 in excess of $4,800,
    (c) After 1965 and before 1968 in excess of $6,600,
    (d) After 1967 and before 1972 in excess of $7,800,
    (e) After 1971 and before 1973 in excess of $9,000,
    (f) After 1972 and before 1974 in excess of $10,800,
    (g) After 1973 and before 1975 in excess of $13,200, or
    (h) After 1974 in excess of the contribution and benefit base (as 
determined under section 230 of the Social Security Act) which is 
effective with respect to such year,

the employee shall be entitled to a special refund of the amount, if 
any, by which the employee tax imposed by section 3101 with respect to 
such wages and deducted therefrom (whether or not paid) exceeds the 
employee tax with respect to the amount specified in (a) through (h) of 
this subdivision for the calendar year in question. Employee tax imposed 
by section 3101 with respect to tips reported by an employee to his 
employer and collected by the employer from funds turned over by the 
employee to the employer (see section 3102(c)) shall be treated, for 
purposes of this paragraph, as employee tax deducted from wages received 
by the employee. If the employee is required to file an income tax 
return for such calendar year (or for his last taxable year beginning in 
such calendar year) he may obtain the benefit of the special refund only 
by claiming credit as provided in Sec. 1.21-2 of this chapter (Income 
Tax Regulations).
    (ii) The application of this subparagraph may be illustrated by the 
following examples:

    Example 1. Employee A in the calendar year 1968 receives taxable 
wages in the amount of $5,000 from each of his employers, B, C, and D, 
for services performed during such year (or at any time after 1936), or 
a total of $15,000. Employee tax (computed at 4.4 percent, the aggregate 
employee tax rate in effect in 1968) is deducted from A's wages in the 
amount of $220 by B and $220 by C, or a total of $440. Employer D pays 
employee tax in the amount of $220 without deducting such tax from A's 
wages. The employee tax with respect to the first $7,800 of such wages 
is $343.20. A is entitled to a special refund of $96.80 ($440 minus 
$343.20). The $5,000 of wages received from employer D and the $220 of 
employee tax paid with respect thereto have no bearing in computing A's 
special refund since such tax was not deducted from his wages.

    Example 2. Employee E in the calendar year 1968 performs services 
for employers F and G, for which E is entitled to wages of $7,800 from 
each employer, or a total of $15,600. On account of such services, E in 
1967 received an advance payment of $1,800 of wages from F; and in 1968, 
receives wages in the amount of $6,000 from F and $7,800 from G. 
Employee tax was deducted as follows: In 1967, $79.20 ($1,800  x  4.4 
percent, the aggregate employee

[[Page 397]]

tax rate in effect in 1967) by employer F; and in 1968, $264.00 ($6,000 
x  4.4 percent, the aggregate employee tax rate in effect in 1968) by 
employer F, and $343.20 ($7,800  x  4.4 percent) by employer G. Thus, E 
in the calendar year 1968 received $13,800 in wages from which $607.20 
of employee tax was deducted. The amount of employee tax with respect to 
the first $7,800 of such wages received in 1968 is $343.20. E is 
entitled to a special refund of $264.00 ($607.20 minus $343.20). The 
$1,800 advance of wages received in 1967 from F, and the $79.20 of 
employee tax with respect thereto, have no bearing in computing E's 
special refund for 1968, because the wages were not received in 1968. 
Such amounts could not form the basis for a special refund unless E 
during 1967 received from F and at least one more employer wages 
totaling more than $6,600.

    (2) Federal employees. For purposes of special refunds of employee 
tax, each head of a Federal agency or of a wholly owned instrumentality 
of the United States who makes a return pursuant to section 3122 (and 
each agent designated by a head of a Federal agency or instrumentality 
who makes a return pursuant to such section) is considered a separate 
employer. For such purposes, the term ``wages'' includes the amount 
which each such head (or agent) determines to constitute wages paid an 
employee, but not in excess of the amount specified in paragraph 
(a)(1)(i) (a) through (h) of this section for the calendar year in 
question. For example, if wages received by an employee during calendar 
year 1974 are reportable by two or more agents of one or more Federal 
agencies and the amount of such wages is in excess of $13,200 the 
employee shall be entitled to a special refund of the amount, if any, by 
which the employee tax imposed with respect to such wages and deducted 
therefrom exceeds the employee tax with respect to the first $13,200 of 
such wages. Moreover, if an employee receives wages during any calendar 
year from an agency or wholly owned instrumentality of the United States 
and from one or more other employers, either private or governmental, 
the total amount of such wages shall be taken into account for purposes 
of the special refund provisions.
    (3) State employees. For purposes of special refunds of employee 
tax, the term ``wages'' includes such remuneration for services covered 
by an agreement made pursuant to section 218 of the Social Security Act, 
relating to voluntary agreements for coverage of employees of State and 
local governments, as would be wages if such services constituted 
employment (see Sec. 31.3121(a)-1, relating to wages); the term 
``employer'' includes a State or any political subdivision thereof, or 
any instrumentality of any one or more of the foregoing; and the term 
``tax'' or ``tax imposed by section 3101'' includes an amount equivalent 
to the employee tax which would be imposed by section 3101 if such 
services constituted employment. The provisions of paragraph (a)(1) of 
this section are applicable whether or not any amount deducted from an 
employee's remuneration as a result of an agreement made pursuant to 
section 218 of the Social Security Act has been paid pursuant to such 
agreement. Thus, the special refund provisions are applicable to amounts 
equivalent to employee tax deducted from employees' remuneration by 
States, political subdivisions, or instrumentalities by reason of 
agreements made under section 218 of the Social Security Act. Moreover, 
if during any calendar year an employee receives remuneration for 
services covered by such an agreement and during the same calendar year 
receives wages from one or more other employers, either private or 
governmental, the total amount of such remuneration and wages shall be 
taken into account for purposes of the special refund provisions.
    (4) Employees of certain foreign corporations. For purposes of 
special refunds of employee tax, the term ``wages'' includes such 
remuneration for services covered by an agreement made pursuant to 
section 3121(l), relating to agreements for coverage of employees of 
certain foreign corporations, as would be wages if such services 
constituted employment (see Sec. 31.3121(a)-1, relating to wages); the 
term ``employer'' includes any domestic corporation which has entered 
into an agreement pursuant to section 3121(l); and the term ``tax'' or 
``tax imposed by section 3101'' includes, in the case of services 
covered by an agreement entered into pursuant to section 3121(l), an 
amount equivalent to the employee tax

[[Page 398]]

which would be imposed by section 3101 if such services constituted 
employment. The provisions of paragraph (a)(1) of this section are 
applicable whether or not any amount deducted from the employee's 
remuneration by reason of such agreement has been paid to the district 
director. Thus, the special refund provisions are applicable to amounts 
equivalent to employee tax deducted from employees' remuneration by 
reason of agreements made under section 3121(l). A domestic corporation 
which enters into an agreement pursuant to section 3121(l) shall, for 
purposes of this paragraph, be considered an employer in its capacity as 
a party to such agreement separate and distinct from its identity as an 
employer employing individuals on its own account (see section 
3121(l)(9)). If during any calendar year an employee receives 
remuneration for services covered by such an agreement and during the 
same calendar year receives wages for services in employment, the total 
amount of such remuneration and wages shall be taken into account for 
purposes of the special refund provisions. For provisions relating to 
agreements entered into under section 3121(l), see the regulations in 
part 36 of this chapter (Regulations on Contract Coverage of Employees 
of Foreign Subsidiaries).
    (5) Governmental employees in American Samoa. For purposes of 
special refunds of employee tax, the Governor of American Samoa and each 
agent designated by him who makes a return pursuant to section 3125(b) 
(see Sec. 31.3125) is considered a separate employer. For such purposes, 
the term ``wages'' includes the amount which the Governor (or any agent) 
determines to constitute wages paid an employee, but not in excess of 
the amount specified in paragraph (a)(1)(i) (a) through (h) of this 
section for the calendar year in question. For example, if wages 
received by an employee during calendar year 1974 are reportable by two 
or more agents pursuant to section 3125(b) and the total amount of such 
wages is in excess of $13,200, the employee shall be entitled to a 
special refund of the amount, if any, by which the employee tax imposed 
with respect to such wages and deducted therefrom exceeds the employee 
tax with respect to the first $13,200 of such wages. Moreover, if an 
employee receives wages during any calendar year from the Government of 
American Samoa, from a political subdivision thereof, or from any 
wholly-owned instrumentality of such government or political subdivision 
and from one or more other employers, either private or governmental, 
the total amount of such wages shall be taken into account for purposes 
of the special refund provisions.
    (6) Governmental employees in the District of Columbia. For purposes 
of special refunds of employee tax, the Commissioner of the District of 
Columbia (or, prior to the transfer of functions pursuant to 
Reorganization Plan No. 3 of 1967 (81 Stat. 948), the Commissioners of 
the District of Columbia) and each agent designated by him who makes a 
return pursuant to section 3125(c) (see Sec. 31.3125) is considered a 
separate employer. For such purposes, the term ``wages'' includes the 
amount which the Commissioner (or any agent) determines to constitute 
wages paid an employee, but not in excess of the amount specified in 
paragraph (a)(1)(i) (a) through (h) of this section for the calendar 
year in question. For example, if wages received by an employee during 
calendar year 1974 are reportable by two or more agents pursuant to 
section 3125(c) and the total amount of such wages is in excess of 
$13,200 the employee shall be entitled to a special refund of the 
amount, if any, by which the employee tax imposed with respect to such 
wages and deducted therefrom exceeds the employee tax imposed with 
respect to such wages and deducted therefrom exceeds the employee tax 
with respect to the first $13,200 of such wages. Moreover, if an 
employee receives wages during any calendar year from the Government of 
the District of Columbia or from a wholly-owned instrumentality thereof 
and from one or more other employers, either private or governmental, 
the total amount of such wages shall be taken into account for purposes 
of the special refund provisions.
    (b) Claims for special refund--(1) In general. An employee who is 
entitled to a special refund under section 6413(c)

[[Page 399]]

may claim such refund under the provisions of this section only if the 
employee is not entitled to claim the amount thereof as a credit against 
income tax as provided in Sec. 1.31-2 of this chapter (Income Tax 
Regulations). Each claim under this section shall be made with respect 
to wages received within one calendar year (regardless of the year or 
years after 1936 during which the services were performed for which such 
wages are received), and shall be filed after the close of such year.
    (2) Form of claim. Each claim for special refund under this section 
shall be made on Form 843, in accordance with the regulations in this 
subpart and the instructions relating to such form. In the case of a 
claim filed prior to April 15, 1968, the claim shall be filed with the 
district director for the internal revenue district in which the 
employee resides or, if the employee does not reside in any internal 
revenue district, with the District Director, Baltimore, Md. 21202. 
Except as provided in paragraph (b) of Sec. 301.6091-1 (relating to 
hand-carried documents), in the case of a claim filed after April 14, 
1968, the claim shall be filed with the service center serving such 
internal revenue district. However, in the case of an employee who does 
not reside in any internal revenue district and who is outside the 
United States, the claim shall be filed with the Director of 
International Operations, U.S. Internal Revenue Service, Washington, 
D.C. 20225, unless the employee resides in Puerto Rico or the Virgin 
Islands, in which case the claim shall be filed with the Director of 
International Operations, U.S. Internal Revenue Service, Hato Rey, P.R. 
00917. The claim shall include the employee's account number and the 
following information with respect to each employer from whom he 
received wages during the calendar year: (i) The name and address of 
such employer, (ii) the amount of wages received during the calendar 
year to which the claim relates, and (iii) the amount of employee tax 
collected by the employer from the employee with respect to such wages. 
Other information may be required but should be submitted only upon 
request.
    (3) Period of limitation. For the period of limitation upon special 
refund of employee tax imposed by section 3101, see Sec. 301.6511(a)-1 
of this chapter (Regulations on Procedure and Administration).
    (c) Special refunds with respect to compensation as defined in the 
Railroad Retirement Tax Act--(1) In general. In the case of any 
individual who, during any calendar year after 1967, receives wages (as 
defined by section 3121(a)) from one or more employers and also receives 
compensation (as defined by section 3231(e)) which is subject to the tax 
imposed on employees by section 3201 or the tax imposed on employee 
representatives by section 3211 such compensation shall, solely for 
purposes of applying section 6413(c)(1) and this section with respect to 
the hospital insurance tax imposed by section 3101(b), be treated as 
wages (as defined by section 3121(a)) received from an employer with 
respect to which the hospital insurance tax imposed by section 3101(b) 
was deducted. For purposes of this section, compensation received shall 
be determined under the principles provided in chapter 22 of the Code 
and the regulations thereunder (see section 3231(e) and Sec. 31.3231(e)-
1). Therefore, compensation paid for time lost shall be deemed earned 
and received for purposes of this section in the month in which such 
time is lost, and compensation which is earned during the period for 
which a return of taxes under chapter 22 is required to be made and 
which is payable during the calendar month following such period shall 
be deemed to have been received for purposes of this section during such 
period only. Further, compensation is deemed to have been earned and 
received when an employee or employee representative performs services 
for which he is paid, or for which there is a present or future 
obligation to pay, regardless of the time at which payment is made or 
deemed to be made.
    (2) Example. The application of this paragraph may be illustrated by 
the following example.

    Example. Employee A rendered services to X during 1973 for which he 
was paid compensation at the monthly rate of $650 which was taxable 
under the Railroad Retirement Tax Act. A was paid $550 by X in January

[[Page 400]]

1973 which was earned and deemed received in December 1972 and $650 in 
January of 1974 which was earned and deemed received in December of 
1973. A also earned and received wages in 1973 from employer Y, which 
were subject to the employee tax under the Federal Insurance 
Contributions Act, in the amount of $6,000. A paid hospital insurance 
tax on $13,800 ($7,800 compensation from X including $650 earned and 
deemed received in December 1973 but paid in January 1974 and not 
including $550 paid in January 1973 but earned and deemed received in 
December 1972, $6,000 compensation from Y) received or deemed received 
or earned in 1973. For purposes of the hospital insurance tax imposed by 
section 3101(b), these amounts are all wages received from an employer 
in 1973. Therefore, A is entitled to a special refund for 1973 under 
section 6413(c) and this section of $30 (1.0% x $13,800--
1.0% x $10,800).

[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6950, 33 FR 
5359, Apr. 4, 1968; T.D. 6983, 33 FR 18020, Dec. 4, 1968; T.D. 7374, 40 
FR 30954, July 24, 1975]



Sec. 31.6414-1  Credit or refund of income tax withheld from wages.

    (a) In general. Any employer who pays to the district director more 
than the correct amount of--
    (1) Tax under section 3402 or a corresponding provision of prior 
law, or
    (2) Interest, addition to the tax, additional amount, or penalty 
with respect to such tax,

may file a claim for refund of the overpayment or may claim credit for 
such overpayment, in the manner and subject to the conditions stated in 
this section and Sec. 301.6402-2 of this chapter (Regulations on 
Procedure and Administration). If credit is claimed pursuant to this 
section, the amount thereof shall be claimed by entering such amount as 
a deduction on a return of tax under section 3402 filed by the employer. 
If credit is taken pursuant to this section, a claim on Form 843 is not 
required, but the return on which the credit is claimed shall have 
attached as a part thereof a statement, which shall constitute the claim 
for credit, setting forth in detail the grounds and facts relied upon in 
support of the credit, and showing such other information as is required 
by the regulations in this subpart and by the instructions relating to 
the return. No refund or credit to the employer shall be allowed under 
this section for the amount of any overpayment of tax which the employer 
deducted or withheld from an employee.
    (b) Period of limitation. For the period of limitation upon credit 
or refund of taxes imposed by the Internal Revenue Code of 1954, see 
Sec. 301.6511(a)-1 of this chapter (Regulations on Procedure and 
Administration). For the period of limitation upon credit or refund of 
any tax imposed by the Internal Revenue Code of 1939, see the 
regulations applicable with respect to such tax.



Sec. 31.6652(c)-1  Failure of employee to report tips for purposes of the Federal Insurance Contributions Act.

    (a) In general. In the case of failure by an employee to furnish, 
pursuant to the provisions of section 6053(a), to his employer a report 
of tips received by him in the course of his employment, which 
constitute wages (as defined in section 3121(a)), there shall be paid by 
the employee, in addition to the tax imposed by section 3101 with 
respect to the amount of tips which he so failed to report, an amount 
equal to 50 percent of such tax. The additional amount imposed for such 
failure shall be paid in the same manner as tax upon notice and demand 
by the district director.
    (b) Reasonable cause. Payment of an amount equal to 50 percent of 
the tax imposed by section 3101 with respect to the tips which the 
employee failed to report will not be required if it is established to 
the satisfaction of the district director or the director of the 
regional service center that such failure was due to reasonable cause 
and not due to willful neglect. An affirmative showing of reasonable 
cause must be made in the form of a written statement, containing a 
declaration that it is made under the penalties of perjury, setting 
forth all the facts alleged as a reasonable cause. An employee's 
reluctance to disclose to his employer the amount of tips received by 
him will not establish that the employee's failure to report tips to his 
employer was due to reasonable cause and not due to willful neglect.

[T.D. 7001, 34 FR 1005, Jan. 23, 1969]

[[Page 401]]



Sec. 31.6674-1  Penalties for fraudulent statement or failure to furnish statement.

    Any person required to furnish a statement to an employee under the 
provisions of section 6051 or 6053(b) is subject to a civil penalty for 
willful failure to furnish such statement in the manner, at the time, 
and showing the information required under such section (or 
Sec. 31.6051-1 or Sec. 31.6053-2), or for willfully furnishing a false 
or fraudulent statement to an employee. The penalty for each such 
violation is $50, which shall be assessed and collected in the same 
manner as the tax imposed on employers under the Federal Insurance 
Contributions Act. See section 7204 for criminal penalty.

[T.D. 7001, 34 FR 1006, Jan. 23, 1969]



Sec. 31.6682-1  False information with respect to withholding.

    (a) Civil penalty. If any individual makes a statement under section 
3402 (relating to income tax collected at source) which results in a 
lesser amount of income tax actually deducted and withheld than is 
properly allowable under section 3402 and, at the time the statement was 
made, there was no reasonable basis for the statement, the individual 
shall pay a penalty of $500 for the statement. There was a reasonable 
basis for a statement of the number of exemptions an individual claimed 
on a Form W-4, if the individual properly completed the Form W-4 by 
taking into account only allowable amounts for items which are allowable 
and by computing the number of exemptions in accordance with the 
instructions on the Form W-4. This penalty is in addition to any 
criminal penalty provided by law. This penalty may be assessed at any 
time after the statement is made, until the expiration of the applicable 
statute of limitations.
    (b) Deficiency procedures not to apply. The civil penalty imposed by 
section 6682 may be assessed and collected without regard to the 
deficiency procedures provided by Subchapter B of Chapter 63 of the 
Code.

[T.D. 7963, 49 FR 28706, July 16, 1984]



Sec. 31.7805-1  Promulgation of regulations.

    In pursuance of section 7805 of the Internal Revenue Code of 1954, 
the foregoing regulations are hereby prescribed. (See Sec. 31.0-3 of 
subpart A of the regulations in this part relating to the scope of the 
regulations.)



Sec. 31.9999-0  Effective dates.

    In general, the provisions of Secs. 35a.9999-1, 35a.9999-2, 
35a.9999-3, 35a.9999-3A, 35a.9999-4, and 35a.9999-5 of this chapter 
apply before January 1, 1997. The provisions of those sections remain 
applicable after December 31, 1996, and before January 1, 2001, however, 
for purposes of Sec. 301.6724-1 of this chapter, relating to due 
diligence safe harbor, and for international transactions, including 
transactions involving a foreign payee, a foreign payor, a foreign 
office of a U.S. bank or broker, or a payment from sources without the 
United States. See Secs. 31.3406-0 through 31.3406(i)-1 of this chapter 
for rules that apply to other transactions after December 31, 1996.

[T.D. 8734, 62 FR 53494, Oct. 14, 1997, as amended by T.D. 8804, 63 FR 
72189, Dec. 31, 1998; T.D. 8856, 64 FR 73412, Dec. 30, 1999]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 31.9999-0 was added, effective Oct. 14, 1997, through Jan. 1, 1999. 
At 63 FR 72183, 72189, Dec. 31, 1998, the effective date was extended 
until Jan. 1, 2000, and ``January 1, 1999'' was removed and ``January 1, 
2000'' was added, effective Jan. 1, 2000. By T.D. 8856, 64 FR 73408, 
Dec. 30, 1999, the effective date was extended until Jan. 1, 2001, and 
``January 1, 2000'' was removed and ``January 1, 2001'' was added, 
effective Jan. 1, 2001.



PART 32--TEMPORARY EMPLOYMENT TAX REGULATIONS UNDER THE ACT OF DECEMBER 29, 1981 (PUB. L. 97-123)--Table of Contents




Sec.
32.1  Social security taxes with respect to payments on account of 
          sickness or accident disability.
32.2  Railroad retirement taxes with respect to payments on account of 
          sickness or accident disability.

    Authority: 95 Stat. 1662 and 1663, 26 U.S.C. 3121(a) and 3231(e)(4); 
68A Stat. 917, 26 U.S.C. 7805.

[[Page 402]]



Sec. 32.1  Social security taxes with respect to payments on account of sickness or accident disability.

    (a) General rule. Notwithstanding the provisions of 
Sec. 31.3121(a)(2)-1(a)(2), the amount of any payment on or after 
January 1, 1982, made to, or on behalf of, an employee or any of his 
dependents on account of sickness or accident disability is not excluded 
from the term ``wages'' as defined in section 3121(a)(2)(B) unless such 
payment is--
    (1) Received under a workmen's compensation law, or
    (2) Made by a third party pursuant to a contractual agreement 
between the employer and third party entered into prior to December 14, 
1981, but then only if--
    (i) The third party's coverage for that employee's group ceases 
prior to March 1, 1982,
    (ii) No third party payment is made to such employee under that 
contract after February 28, 1982, and
    (iii) The cessation of the third party's coverage for that 
employee's group indefinitely terminates the contractual relationship 
between the third party and the employer as to sickness and accident 
disability benefits for that employee's group.

See section 3121(a)(4) and Sec. 31.3121(a)(4)-1 for the exclusion from 
the term ``wages'' of any payment on account of sickness or accident 
disability made after the expiration of 6 calendar months following the 
last calendar month in which the employee worked.
    (b) Examples. The application of the provisions of subparagraph (2) 
of paragraph (a) may be illustrated by the following examples:

    Example 1. Company Q enters into a contract on August 31, 1981, with 
Insurance Company R to provide sickness and accident disability payments 
to Q's employees. The contract expires on February 28, 1982. On March 1, 
1982, Q enters into a new contract with R to provide sickness and 
accident disability payments to Q's employees. Payments made by R 
pursuant to the contract expiring February 28, 1982, are included in 
``wages'' as defined in section 3121(a)(2)(B).

    Example 2. Company S enters into a contract on November 15, 1981, 
with Insurance Company T to provide sickness and accident disability 
payments to S's employees. The contract expires on February 15, 1982, 
and is not renewed. A, one of S's employees, has been receiving sickness 
payments from T since December 1, 1981. T makes its final payment to A 
on February 22, 1982. The payments made by T to A pursuant to its 
contract with S are not included in ``wages'' as defined in section 
3121(a)(2)(B).

    (c) Workmen's compensation laws. (1) For purposes of paragraph 
(a)(1) of this section, a payment made under a workmen's compensation 
law does not include a payment made pursuant to a State temporary 
disability insurance law.
    (2) If an employee receives a payment on account of sickness or 
accident disability which is not made under a workmen's compensation law 
and which must be repaid if the employee receives a workmen's 
compensation award with respect to the same period of absence from work, 
such payment is not excluded from the term ``wages'' as defined in 
section 3121(a)(2)(B).
    (d) Sickness or accident disability. For purposes of paragraph (a) 
of this section, a payment made on account of sickness or accident 
disability includes any payment for personal injuries or sickness 
includible in gross income under section 105(a) and the regulations 
thereunder and thus does not include--
    (1) Any amount which is expended for medical care as described in 
section 105(b) and Sec. 1.105-2,
    (2) Any payment which is unrelated to absence from work as described 
in section 105(c) and Sec. 1.105-3, or
    (3) Any payment or a portion thereof which is attributable to a 
contribution by the employee as determined in paragraphs (d) and (e) of 
Sec. 1.105-1.

A payment made on account of sickness or accident disability does not 
include any payment which is excludable from gross income under section 
104(a) (2), (4), or (5).

An employee who elects to reduce his compensation or to forgo an 
increase in his compensation under a salary reduction agreement with an 
employer will not be deemed to have made employee contributions to the 
sickness or accident disability plan or system if the employee is not 
subject to income or social security taxes on the reduction in 
compensation.


[[Page 403]]



A tax which is paid by an employee to fund a State temporary disability 
insurance program is considered a contribution by the employee for 
purposes of paragraph (d)(3) of this section.
    (e) Payments by third parties. (1) Any third party making a payment 
on account of sickness or accident disability which payment is not 
excluded from the term ``wages'' under paragraph (a) of this section 
shall be treated as the employer with respect to such wages, except as 
provided in subparagraphs (2) and (3) of this paragraph. Accordingly, 
such third party must withhold from such payment the tax imposed on the 
employee by section 3101, pay the tax imposed on employers by section 
3111, deposit such taxes pursuant to section 6302 and Sec. 31.6302(c)-
1(a), and provide the receipts required by section 6051 and 
Secs. 31.6051-1 and 31.6051-2.
    (2) If any third party who is treated as the employer solely by 
reason of the applicability of subparagraph (1) of this paragraph 
promptly--
    (i) Withholds the tax imposed on the employee by section 3101,
    (ii) Deposits such tax pursuant to section 6302 and Sec. 31.6302(c)-
1(a), and
    (iii) Notifies the employer for whom services are normally rendered 
of the amount of the wages paid on which tax was withheld and deposited,

then the employer (and not the third party) shall be required to pay the 
tax imposed by section 3111 and to comply with the requirements of 
section 6051 and Secs. 31.6051-1 and 31.6051-2 with respect to the 
wages. For purposes of subdivision (ii) of this subparagraph, the taxes 
described in subdivision (i) shall be treated by the third party as if 
included in the term ``taxes'' as defined in Sec. 31.6302(c)-
1(a)(1)(iii). For purposes of subdivision (iii) of this subparagraph, 
the notice must be provided by the third party within the time required 
for the deposit of the tax under subdivision (ii) of this subparagraph. 
For the purpose of providing the notice, the rules of section 7502(a), 
relating to timely mailing being treated as timely filing, shall apply. 
The employer, if notified pursuant to subdivision (iii) of this 
subparagraph by a third party who has complied with the requirements of 
subdivisions (i) and (ii) of this subparagraph, must deposit the tax 
imposed by section 3111 in accordance with Sec. 31.6302(c)-1(a). For 
purposes of Sec. 31.6302(c)-1(a)(1)(iii)(b), with respect to the 
employer for whom services are normally rendered the term ``taxes'' 
shall not include any tax imposed on employers by section 3111 that is 
required to be paid by a third party under subparagraph (1) of this 
paragraph until the employer receives notification from the third party 
under subdivision (iii) of this subparagraph (2).
    (3) A third party making a payment on account of sickness or 
accident disability to an employee as agent for the employer or making 
such a payment directly to the employer shall not be treated as the 
employer under subparagraph (1) with respect to such payment unless the 
agency agreement so provides. The determining factor as to whether a 
third party is an agent of the employer is whether the third party bears 
any insurance risk. If the third party bears no insurance risk and is 
reimbursed on a cost plus fee basis, the third party is an agent of the 
employer even if the third party is responsible for making 
determinations of the eligibility of individual employees of the 
employer for payments on account of sickness or accident disability. If 
the third party is paid an insurance premium and not reimbursed on a 
cost plus fee basis, the third party is not an agent of the employer, 
but the third party is treated as the employer as provided in 
subparagraph (1) of this paragraph (e).
    (4) In order to avoid overpayment of taxes which would result from 
paying taxes--
    (i) On remuneration which exceeds the annual contribution and 
benefit base (as described in section 3121(a)(1)),
    (ii) With respect to a period of time which exceeds the 6-calendar-
month period described in section 3121(a)(4), or
    (iii) On a payment or a portion thereof which is attributable to a 
contribution by the employee,

the third party may request information from the employer as to the 
total wages earned by the employee for the calendar year in which the 
third party is making payments, as to the last date on which the 
employee worked for the employer during such year, and as to

[[Page 404]]

the amount of any contribution by the employee. Except if the third 
party has reason not to believe any information supplied by the employer 
as the result of a request made pursuant to the preceding sentence, the 
third party may rely on such information in complying with the 
requirements of subparagraphs (1) and (2) of this paragraph (e). The 
third party may not rely on representations of the employee as to the 
information which may be requested of the employer in complying with the 
requirements of subparagraphs (1) and (2) of this paragraph (e).
    (5) The application of the provisions of this paragraph may be 
illustrated by the following examples:

    Example 1. Pursuant to an agreement with Company U, Insurance 
Company V makes payments on account of sickness or accident disability 
to U's employees. Such payments are not made under a workmen's 
compensation law. U reimburses V for all such payments and pays V a fee 
for its expenses of administering the payments. V is not treated as the 
employer with respect to such payments.

    Example 2. Pursuant to an agreement with Company W, Insurance 
Company X indemnifies W for the amount of any payments which W must make 
to an employee on account of sickness or accident disability. Such 
payments are not made under a workmen's compensation law. X makes its 
indemnity payments directly to W. W makes the payments to its employees. 
X is not treated as the employer with respect to such payments.

    Example 3. Pursuant to an agreement with Company Y (which is not an 
agency agreement described in subparagraph (3) of this Sec. 32.1(e)), 
Insurance Company Z makes payments on account of sickness or accident 
disability to Y's employees. Such payments are not made under a 
workmen's compensation law. Z does not notify Y of the amount of such 
payments. Z is treated as the employer with respect to such payments.

    (f) Penalties and interest on payments made from January 1, 1982, to 
June 30 1982. No penalty under section 6656(a) or interest under section 
6601 will be assessed for the failure to make timely payments to the tax 
imposed by section 3101 or section 3111 on payments made on account of 
sickness or accident disability, which payments of tax are made after 
December 31, 1981, and before July 1, 1982, to the extent that the 
failure is due to reasonable cause and not willful neglect.
    (g) Special rules. (1) For purposes of subdivision (iii) of 
paragraph (e)(2), the last employer for whom the employee worked prior 
to becoming sick or disabled or for whom the employee was working at the 
time he became sick or disabled shall be deemed to be the employer for 
whom services are normally rendered, provided that such employer made 
contributions on behalf of such employee to the plan or system under 
which the employee is being paid.
    (2) The application of the provisions of subparagraph (1) of this 
paragraph (g) may be illustrated by the following examples:

    Example 1. B is employed by Company M. B becomes sick and is absent 
from work for 3 months. While B is absent from work, he receives sick 
pay from Insurance Company N pursuant to a plan established by M and to 
which M has made contributions on behalf of B. M is the employer for 
whom services are normally rendered by B.

    Example 2. C is employed by Company O and is also employed on a 
part-time basis by Company Q. C becomes sick while at work at Q's place 
of business. C is absent from work for 3 months. While C is absent from 
work he receives sick pay from Insurance Company P pursuant to a plan 
established by O and to which O has made contributions on behalf of C. O 
is the employer for whom services are normally rendered by C.

    Example 3. D is a member of a labor union whose members receive 
health and welfare benefit payments from a trust fund which is supported 
by the contributions of the various employers who employ the labor 
union's members. D has been employed by Company R for 4 days when he 
becomes sick and is absent from work for 3 months. While D is absent 
form work he receives sick pay from his union's trust fund to which R 
has made contributions on D's behalf. R is the employer for whom 
services are normally rendered by D.

    (3) For purposes of paragraph (e) of this section, in the case of 
payments on account of sickness or accident disability made to employees 
by a third party insurer pursuant to a contract of insurance with a 
multiemployer plan which is obligated to make payments on account of 
sickness or accident disability to such employees pursuant to a 
collectively bargained agreement, if the third party insurer making the

[[Page 405]]

payments complies with the requirements of subdivisions (i) and (ii) of 
subparagraph (2) of paragraph (e) and notifies the plan of the amount of 
wages paid on which tax was withheld and deposited within the time 
required for notification of the employer under subparagraph (2) of 
paragraph (e), then the plan (and not the third party insurer) shall be 
required to pay the tax imposed by section 3111 and to comply with the 
requirements of section 6051 and Secs. 31.6051-1 and 31.6051-2 with 
respect to such payments unless, within 6 business days of the receipt 
of such notification, the plan notifies the employer for whom services 
are normally rendered of the amount of the wages on which tax was 
withheld and deposited. If the plan provides such notice to the 
employer, the employer (and not the plan) shall be required to pay the 
tax imposed by section 3111 and to comply with the requirements of 
section 6051 and Secs. 31.6051-1 and 31.6051-2 with respect to the 
wages.

[T.D. 7823, 47 FR 29225, July 6, 1982, as amended by T. D. 7867, 48 FR 
793, Jan. 7, 1983]



Sec. 32.2  Railroad retirement taxes with respect to payments on account of sickness or accident disability.

    (a) General rule. Notwithstanding the provisions of Sec. 31.3231(e)-
1(a)(3)(i), the amount of any payment on or after January 1, 1982, made 
to, or on behalf of, an employee or any of his dependents on account of 
sickness or accident disability is not excluded from the term 
``compensation'' as defined in section 3231(e)(1) (for purposes of 
applying sections 3201(b) and 3221(b) (and so much of section 3211(a) as 
relates to the rates of the taxes imposed by sections 3101 and 3111)) 
unless such payment is--
    (1) Received under a workmen's compensation law,
    (2) Received as a benefit under the Railroad Retirement Act of 1974,
    (3) Made after the expiration of 6 calendar months following the 
last calendar month in which such employee worked,
    (4) Made by a third party pursuant to a contractual agreement 
between the employer and third party entered into prior to December 14, 
1981, but then only if--
    (i) The third party's coverage for that employee's group ceases 
prior to March 1, 1982,
    (ii) No third party payment is made to such employee under that 
contract after February 28, 1982, and
    (iii) The cessation of the third party's coverage for that 
employee's group terminates indefinitely the contractual relationship 
between the third party and the employer as to sickness and accident 
disability benefits for that employee's group; or
    (5) Made under section 2(a) of the Railroad Unemployment Insurance 
Act for days of sickness, to the extent that such sickness (as 
determined in accordance with standards prescribed by the Railroad 
Retirement Board) is the result of on-the-job injury.

The 6-calendar-month provision described in subparagraph (3) of this 
paragraph shall be applied in a manner comparable to the 6-calendar-
month provision described in Sec. 31.3121(a)(4)-1.
    (b) Examples. The application of the provisions of subparagraph (4) 
of paragraph (a) may be illustrated by the following examples:

    Example 1. Company Q enters into a contract on August 31, 1981, with 
Insurance Company R to provide sickness and accident disability payments 
to Q's employees. The contract expires on February 28, 1982. On March 1, 
1982, Q enters into a new contract with R to provide sickness and 
accident disability payments to Q's employees. Payments made by R 
pursuant to the contract expiring February 28, 1982, are included in 
``compensation'' as defined in section 3231(e)(1).

    Example 2. Company S enters into a contract on November 15, 1981 
with Insurance Company T to provide sickness and accident disability 
payments to S's employees. The contract expires on February 15, 1982, 
and is not renewed. A, one of S's employees, has been receiving sickness 
payments from T since December 1, 1981. T makes its final payment to A 
on February 22, 1982. The payments made by T to A pursuant to its 
contract with S are not included in ``compensation'' as defined in 
section 3231(e)(1).

    (c) Workmen's compensation laws. (1) For purposes of paragraph 
(a)(1) of this section, a payment made under a workmen's compensation 
law does not include a payment made pursuant to a State temporary 
disability insurance law.

[[Page 406]]

    (2) If an employee receives a payment on account of sickness or 
accident disability which is not excluded from the term ``compensation'' 
under paragraph (a) (1) or (2) of this section and which must be repaid 
if the employee receives a workmen's compensation award with respect to 
the same period of absence from work, such payment is not excluded from 
the term ``compensation'' as defined in section 3231(e)(1).
    (d) Sickness or accident disability. For purposes of paragraph (a) 
of this section, a payment made on account of sickness or accident 
disability includes any payment for personal injuries or sickness 
includible in gross income under section 105(a) and the regulations 
thereunder and thus does not include--
    (1) Any amount which is expended for medical care as described in 
section 105(b) and Sec. 1.105-2,
    (2) Any payment which is unrelated to absence from work as described 
in section 105(c) and Sec. 1.105-3, or
    (3) Any payment or a portion thereof which is attributable to a 
contribution by the employee as determined in paragraphs (d) and (e) of 
Sec. 1.105-1.

A payment made on account of sickness or accident disability does not 
include any payment which is excludable from gross income under section 
104(a) (4) or (5).
    An employee who elects to reduce his compensation or to forgo an 
increase in his compensation under a salary reduction agreement with an 
employer will not be deemed to have made employee contributions to the 
sickness or accident disability plan or system if the employee is not 
subject to income or railroad retirement taxes on the reduction in 
compensation.
    A tax which is paid by an employee to fund a State temporary 
disability insurance program is considered a contribution by the 
employee for purposes of paragraph (d)(3) of this section.
    (e) Payments by third parties. (1) Any third party making a payment 
on account of sickness or accident disability which payment is not 
excluded from the term ``compensation'' under paragraph (a) of this 
section shall be treated as the employer with respect to such 
compensation, except as provided in subparagraphs (2) and (3) of this 
paragraph. Accordingly, such third party must withhold from such payment 
the tax imposed on the employee by section 3201 and the tax imposed on 
the employee representative by section 3211, if applicable, pay the tax 
imposed on employers by section 3221, deposit such taxes pursuant to 
section 6302 and Sec. 31.6302(c)-2(a), and provide the receipts required 
by section 6051 and Secs. 31.6051-1 and 31.6051-2.
    (2) If any third party who is treated as the employer solely by 
reason of the applicability of subparagraph (1) of this paragraph 
promptly--
    (i) Withholds the tax imposed on the employee by section 3201 and 
the tax imposed on the employee representative by section 3211, if 
applicable,
    (ii) Deposits such tax pursuant to section 6302 and Sec. 31.6302(c)-
2(a), and
    (iii) Notifies the employer for whom services are normally rendered 
of the amount of the compensation paid on which tax was withheld and 
deposited,

then the employer (and not the third party) shall be required to pay the 
tax imposed by section 3221 and to comply with the requirements of 
section 6051 and Secs. 31.6051-1 and 31.6051-2 with respect to the 
compensation. For purposes of subdivision (ii) of this subparagraph, the 
tax described in subdivision (i) shall be treated by the third party as 
if included in the employee tax described in Sec. 31.6302(c)-2(a)(1)(i). 
For purposes of subdivision (iii) of this subparagraph, the notice must 
be provided by the third party within the time required for the deposit 
of the tax under subdivision (ii) of this subparagraph. For the purpose 
of providing the notice, the rules of section 7502(a), relating to 
timely mailing being treated as timely filing, shall apply. The 
employer, if notified pursuant to subdivision (iii) of this subparagraph 
by a third party who has complied with the requirements of subdivisions 
(i) and (ii) of this subparagraph, must deposit the tax imposed by 
section 3221 in accordance with Sec. 31.6302(c)-(2)(a). For purposes of 
Sec. 31.6302(c)-2(a)(1)(ii), with respect to the employer for whom 
services are normally rendered the term ``taxes'' shall not include any 
tax imposed on employers by section 3111 that is required to be paid by 
a third party

[[Page 407]]

under subparagraph (1) of this paragraph until the employer receives 
notification from the third party under subdivision (iii) of this 
subparagraph (2).
    (3) A third party making a payment on account of sickness or 
accident disability to an employee as agent for the employer or making 
such a payment directly to the employer shall not be treated as the 
employer under subparagraph (1) with respect to such payment unless the 
agency agreement so provides. The determining factor as to whether a 
third party is an agent of the employer is whether the third party bears 
any insurance risk. If the third party bears no insurance risk and is 
reimbursed on a cost plus fee basis, the third party is an agent of the 
employer even if the third party is responsible for making 
determinations of the eligibility of individual employees of the 
employer for payments on account of sickness or accident disability. If 
the third party is paid an insurance premium and not reimbursed on a 
cost plus fee basis, the third party is not a agent of the employer, but 
the third party is treated as the employer as provided in paragraph (1) 
of this paragraph (e).
    (4) In order to avoid overpayment of taxes which would result from 
paying taxes--
    (i) On remuneration which exceeds one-twelfth of the annual 
contribution and benefit base (as described in section 3121(a)(1)) each 
month,
    (ii) With respect to a period of time which exceeds the 6-calendar-
month period described in subparagraph (3) of paragraph (a) of this 
section, or
    (iii) On a payment or a portion thereof which is attributable to a 
contribution by the employee,

the third party may request information from the employer as to the 
total wages earned by the employee for the calendar month in which the 
third party is making payments, as to the last date on which the 
employee worked for the employer, and as to the amount of any 
contribution by the employee. Except if the third party has reason not 
to believe any information supplied by the employer as the result of a 
request made pursuant to the preceding sentence, the third party may 
rely on such information in complying with the requirements of 
subparagraphs (1) and (2) of this paragraph (e). The third party may not 
rely on representations of the employee as to the information which may 
be requested of the employer in complying with the requirements of 
subparagraphs (1) and (2) of this paragraph (e).
    (5) The application of the provisions of this paragraph (e) may be 
illustrated by the following examples:

    Example 1. Pursuant to an agreement with Company U, Insurance 
Company V makes payments on account of sickness or accident disability 
to U's employees. Such payments are not made under a workmen's 
compensation law, the Railroad Retirement Act of 1974, or the Railroad 
Unemployment Insurance Act for days of sickness. U reimburses V for all 
such payments and pays V a fee for its expenses of administering the 
payments. V is not treated as the employer with respect to such 
payments.

    Example 2. Pursuant to an agreement with Company W, Insurance 
Company X indemnifies W for the amount of any payments which X must make 
to an employee on account of sickness or accident disability. Such 
payments are not made under a workmen's compensation law, the Railroad 
Retirement Act of 1974, or the Railroad Unemployment Insurance Act for 
days of sickness. X makes its indemnity payments directly to W. W makes 
the payments to its employees. X is not treated as the employer with 
respect to such payments.

    Example 3. Pursuant to an agreement with Company Y (which is not an 
agency agreement described in subparagraph (3) of this Sec. 32.2(e)), 
Insurance Company Z makes payments on account of sickness or accident 
disability to Y's employees. Such payments are not made under a 
workmen's compensation law, the Railroad Retirement Act of 1974, or the 
Railroad Unemployment Insurance Act for days of sickness. Z does not 
notify Y of the amount of such payments. Z is treated as the employer 
with respect to such payments.

    (f) Penalties and interest on payments made from January 1, 1982 to 
June 30, 1982. No penalty under section 6656(a) or interest under 
section 6601 will be assessed for the failure to make timely payments of 
the tax imposed by section 3201, 3211, or 3221 on payments made on 
account of sickness or accident disability, which payments of tax are 
made after December 31, 1981, and before July 1, 1982, to the extent 
that the

[[Page 408]]

failure is due to reasonable cause and not willful neglect.
    (g) Special rules. (1) For purposes of subdivision (iii) of 
paragraph (e)(2), the last employer for whom the employee worked prior 
to becoming sick or disabled or for whom the employee was working at the 
time he became sick or disabled shall be deemed to be the employer for 
whom services are normally rendered, provided that such employer made 
contributions on behalf of such employee to the plan or system under 
which the employee is being paid.
    (2) The application of the provisions of subparagraph (1) of this 
paragraph (g) may be illustrated by the following examples:

    Example 1. B is employed by Company M. B becomes sick and is absent 
from work for 3 months. While B is absent from work, he receives sick 
pay from Insurance Company N pursuant to a plan established by M and to 
which M has made contributions on behalf of B. M is the employer for 
whom services are normally rendered by B.

    Example 2. C is employed by Company O and is also employed on a 
part-time basis by Company Q. C becomes sick while at work at Qs place 
of business. C is absent from work for 3 months. While C is absent from 
work, he receives sick pay from Insurance Company P pursuant to a a plan 
established by O and to which O has made contributions on behalf of C. O 
is the employer for whom services are normally rendered by C.

    Example 3. D is a member of a labor union whose members receive 
health and welfare benefit payments from a trust fund which is supported 
by the contributions of the various employers who employ the labor 
union's members. D has been employed by Company R for 4 days when he 
becomes sick and is absent from work for 3 months. While D is absent 
from work he receives sick pay from his union's trust fund to which R 
has made contributions on D's behalf. R is the employer for whom 
services are normally rendered by D.

    (3) For purposes of paragraph (e) of this section, in the case of 
payments on account of sickness or accident disability made to employees 
by a third party insurer pursuant to a contract of insurance with a 
multiemployer plan which is obligated to make payments on account of 
sickness or accident disability to such employees pursuant to a 
collectively bargained agreement, if the third party insurer making the 
payments complies with the requirements of subdivisions (i) and (ii) of 
subparagraph (2) of paragraph (e) and notifies the plan of the amount of 
compensation paid on which tax was withheld and deposited within the 
time required for notification of the employer under subparagraph (2) of 
paragraph (e), then the plan (and not the third party insurer) shall be 
required to pay the tax imposed by section 3221 and to comply with the 
requirements of section 6051 and Secs. 31.6051-1 and 31.6051-2 with 
respect to such payments unless, within 6 business days of the receipt 
of such notification, the plan notifies the employer for whom services 
are normally rendered of the amount of the compenation on which tax was 
withheld and deposited. If the plan provides such notice to the 
employer, the employer (and not the plan) shall be required to pay the 
tax imposed by section 3221 and to comply with the requirements of 
section 6051 and Secs. 31.6051-1 and 31.6051-2 with respect to the 
compensation.

[T.D. 7823, 47 FR 29225, July 6, 1982, as amended by T. D. 7867, 48 FR 
793, Jan. 7, 1983]

                           PART 34--[RESERVED]



PART 35--EMPLOYMENT TAX AND COLLECTION OF INCOME TAX AT SOURCE REGULATIONS UNDER THE TAX EQUITY AND FISCAL RESPONSIBILITY ACT OF 1982--Table of Contents




Sec.
35.3405-1  Questions and answers relating to withholding on pensions, 
          annuities, and certain other deferred income.
35.3405-1T  Questions and answers relating to withholding on pensions, 
          annuities, and certain other deferred income (temporary 
          regulations).

    Authority: 26 U.S.C. 6047(e), 7805; 68A Stat. 917; 96 Stat. 625; 
Public Law 97-248 (96 Stat. 623).
    Section 35.3405-1 also issued under 26 U.S.C. 3405(e)(10)(B)(iii).
    Section 35.3405-1T also issued under 26 U.S.C. 3405(e)(10)(B)(iii).

[[Page 409]]



Sec. 35.3405-1  Questions and answers relating to withholding on pensions, annuities, and certain other deferred income.

    The following questions and answers relate to withholding on 
pensions, annuities, and other deferred income under section 3405 of the 
Internal Revenue Code of 1986, as added by section 334 of the Tax Equity 
and Fiscal Responsibility Tax Act of 1982 (Public Law 97-248) (TEFRA).
    a-1 through d-34 [Reserved] For further guidance, see Sec. 35.3405-
1T.
    d-35. Q. Through what medium may a payor provide the notice required 
under section 3405 to a payee?
    A. A payor may provide the notice required under section 3405 
(including the abbreviated notice described in d-27 of Sec. 35.3405-1T 
and the annual notice described in d-31 of Sec. 35.3405-1T) to a payee 
either on a written paper document or through an electronic medium 
reasonably accessible to the payee. A notice provided through an 
electronic medium must be provided under a system that satisfies the 
following requirements:
    (a) The system must be reasonably designed to provide the notice in 
a manner no less understandable to the payee than a written paper 
document.
    (b) At the time the notice is provided, the payee must be advised 
that the payee may request and receive the notice on a written paper 
document at no charge, and, upon request, that document must be provided 
to the payee at no charge.
    d-36. Q. Are there examples that illustrate the provisions of d-35 
of this section?
    A. The provisions of d-35 of this section are illustrated by the 
following examples:

    Example 1. (i) An employer deferred compensation plan (Plan A) 
permits participants to request distributions by e-mail. Under Plan A's 
system for such transactions, a participant must enter his or her 
account number and personal identification number (PIN); this 
information must match that in Plan A's records in order for the 
transaction to proceed. The plan administrator is the payor. If a 
participant requests a distribution from Plan A by e-mail, the plan 
administrator provides the participant with the notice required under 
section 3405 by e-mail. The plan administrator also advises the 
participant by e-mail that he or she may request the notice on a written 
paper document and that, if the participant requests the notice on a 
written paper document, it will be provided at no charge. To proceed 
with the distribution by e-mail, the participant must acknowledge 
receipt, review, and comprehension of the notice.
    (ii) In this Example 1, the plan administrator does not fail to 
satisfy the notice requirement of section 3405 merely because the notice 
is provided to the participant other than through a written paper 
document.
    Example 2. (i) An employer deferred compensation plan (Plan B) 
permits participants to request distributions through the Plan B web 
site (Internet or intranet). Under Plan B's system for such 
transactions, a participant must enter his or her account number and 
personal identification number (PIN); this information must match that 
in Plan B's records in order for the transaction to proceed. The plan 
administrator is the payor. A participant may request a distribution 
from Plan B by following the applicable instructions on the Plan B web 
site. After the participant has requested a distribution, the 
participant is automatically shown a page on the web site containing the 
notice required by section 3405. Although this page of the web site may 
be printed, the page also advises the participant that he or she may 
request the notice on a written paper document and that, if the 
participant requests the notice on a written paper document, it will be 
provided at no charge. To proceed with the distribution through the web 
site, the participant must acknowledge receipt, review, and 
comprehension of the notice.
    (ii) In this Example 2, the plan administrator does not fail to 
satisfy the notice requirement of section 3405 merely because the notice 
is provided to the participant other than through a written paper 
document.
    Example 3. (i) An employer deferred compensation plan (Plan C) 
permits participants to request distributions through Plan C's automated 
telephone system. Under Plan C's system for such transactions, a 
participant must enter his or her account number and personal 
identification number (PIN); this information must match that in Plan 
C's records in order for the transaction to proceed. The plan 
administrator is the payor. A participant may request a distribution 
from Plan C by following the applicable instructions on the automated 
telephone system. After the participant has requested a distribution, 
the automated telephone system reads the notice required by section 3405 
to the participant. The automated telephone system also advises the 
participant that he or she may request the notice on a written paper 
document and that, if the participant requests the notice on a written 
paper document, it will be provided at no charge. Before proceeding with 
the distribution transaction,

[[Page 410]]

the participant must acknowledge receipt, review, and comprehension of 
the notice.
    (ii) In this Example 3, the plan administrator does not fail to 
satisfy the notice requirement of section 3405 merely because the notice 
is provided to the participant other than through a written paper 
document.
    Example 4. (i) Same facts as Example 3, except that, pursuant to the 
system for processing such transactions, a participant who so requests 
is transferred to a customer service representative whose conversation 
with the participant is recorded. The customer service representative 
provides the notice required by section 3405 by reading from a prepared 
text.
    (ii) Conclusion. In this Example 4, the plan administrator does not 
fail to satisfy the notice requirement of section 3405 merely because 
the notice is provided to the participant other than through a written 
paper document.
    Example 5. (i) Same facts as Example 1, except that Participant D 
requested a distribution by e-mail and then terminated employment. 
Participant D no longer has access to e-mail.
    (ii) In this Example 5, the plan administrator does not satisfy the 
notice requirement of section 3405 because the electronic medium through 
which the notice is provided is not reasonably accessible to Participant 
D. Plan A must provide the notice required by section 3405 to 
Participant D in a written paper document or by an electronic medium 
that is reasonably accessible to Participant D.

[T.D. 8873, 65 FR 6007, Feb. 8, 2000; 65 FR 17149, Mar. 31, 2000]

    Effective Date Note: By T.D. 8873, 65 FR 6007, Feb. 8, 2000, 
Sec. 35.3405-1 was redesignated as Sec. 35.3405-1T and new Sec. 35.3405-
1 was added, effective Jan. 1, 2001.



Sec. 35.3405-1T  Questions and answers relating to withholding on pensions, annuities, and certain other deferred income (temporary regulations).

    The following questions and answers relate to withholding on 
pensions, annuities, and other deferred income under section 3405 of the 
Internal Revenue Code of 1954, as added by section 334 of the Tax Equity 
and Fiscal Responsibility Tax Act of 1982 (Pub. L. 97-248) (TEFRA):

    a. In general.
    b. Periodic payments.
    c. Nonperiodic distributions.
    d. Notice and election procedures.
    e. Reporting and recordkeeping.

                              a. In general

    a-1. Q. How did TEFRA change the law on withholding requirements for 
pensions, annuities, and other deferred income?
    A. TEFRA amended the Internal Revenue Code to impose withholding 
requirements on designated distributions paid after December 31, 1982. 
Further, although under prior law individuals could elect to have 
Federal income tax withheld from certain pension and annuity payments, 
TEFRA requires withholding on all designated distributions unless the 
payee elects not to have withholding apply.
    a-2. Q. What type of payment is a designated distribution that is 
subject to the new withholding rules?
    A. A designated distribution is any distribution or payment from or 
under an employer deferred compensation plan, an individual retirement 
plan (as defined in section 7701(a)(37)), or a commercial annuity. 
However, a designated distribution does not include any portion of a 
distribution which it is reasonable to believe is not includible in the 
gross income of the payee. For rules concerning when it is reasonable to 
believe that all or part of a distribution is not includible in the 
gross income of the recipient, see questions a-24 through a-33. In 
addition, a payment or distribution that is treated as wages under 
section 3401(a) is not a designated distribution subject to the new 
withholding rules. For examples of these payments, see questions a-18 
through a-23.
    a-3 Q. What is an employer deferred compensation plan for purposes 
of the new withholding rules?
    A. An employer deferred compensation plan is any pension, annuity, 
profit-sharing, stock bonus, or other plan that defers the receipt of 
compensation.
    a-4. Q. What is a commercial annuity for purposes of the new 
withholding rules?
    A. A commercial annuity is an annuity, endowment, or life insurance 
contract issued by an insurance company licensed to do business under 
the laws of any State. See, also, question f-21.
    a-5. Q. When does the new law take effect?
    A. In general, withholding is required on any designated 
distribution made

[[Page 411]]

after December 31, 1982. In the case of periodic payments beginning 
before January 1, 1983, the first payment after December 31, 1982 is 
treated as the first periodic payment for purposes of the withholding 
requirements. The Secretary has authority to delay (but not beyond June 
30, 1983) the application of these withholding provisions to any payor 
if the payor can establish that it is impossible to comply with these 
provisions without undue hardship. Additionally, no penalty will be 
imposed for failure to withhold on periodic payments if the failure 
occurs before July 1, 1983, and if a good faith attempt is made to 
comply.
    Procedures for requesting a delay in implementation of the 
withholding provisions are under consideration.
    a-6. Q. What effect does the new law have on the old law provisions 
relating to withholding of tax from annuity payments by request?
    A. If payment is part of a designated distribution, the rules of 
section 3402(o) (relating to voluntary withholding on certain payments) 
do not apply. Therefore, a payee receiving amounts that are subject to 
withholding under the new provisions described in this regulation may 
not choose to use the voluntary withholding system of section 3402(o) 
with respect to those amounts. Also, if a payee had a fixed amount 
withheld by request, a different amount will probably be withheld when 
the new provisions take effect unless the rule provided in question a-7 
applies. However, section 3402(o) will continue to apply to annuity 
payments that are not designated distributions, to sick pay, and to 
supplemental unemployment benefits.
    a-7. Q. If a recipient of a pension or annuity has previously 
elected voluntary withholding under section 3402(o), is the Form W-4P 
effective for withholding on payments after December 31, 1982?
    A. Yes, if the plan administrator or payor wishes to honor it; the 
Form W-4P can be treated by the plan administrator or payor as an 
election to withhold the flat dollar amount specified on the form if the 
payee, is notified of his right to elect out of withholding and if he is 
notified that his previously filed W-4P will remain effective unless he 
elects out of withholding or files a new withholding certificate. If 
these requirements are met the plan administrator or payor may treat the 
Form W-4P as a voluntary withholding agreement under section 3402(p). 
See, also, section 3402(i). These amounts withheld should be reported in 
the same manner as amounts withheld under section 3405.
    a-8. Q. What amount of Federal income tax will be withheld from 
designated distributions?
    A. The amount to be withheld by any payor (or, in certain cases, a 
plan administrator) depends upon whether the payment is a periodic 
payment, a nonperiodic distribution other than a qualified total 
distribution, or a qualified total distribution. However, the maximum 
amount to be withheld cannot exceed the sum of the amount of money and 
the fair market value of property (other than employer securities as 
defined in section 402(a)(3)) received in the distribution.
    a-9. Q. What is a periodic payment?
    A. A periodic payment is an annuity or similar periodic payment 
whether paid by a licensed life insurance company, a financial 
institution, or a plan. The term ``annuity'' means a series of payments 
payable over a period greater than one year and taxable under section 72 
as amounts received as an annuity, whether or not the payments are 
variable in amount.
    a-10. Q. How will federal income tax be withheld from a periodic 
payment?
    A. In the case of a periodic payment, amounts are withheld as if the 
payment were a payment of wages by an employer to the employee for the 
appropriate payroll period. If the payee has not filed a withholding 
certificate, the amount to be withheld is calculated by treating the 
payee as a married individual claiming three withholding allowances.
    For additional questions and answers concerning periodic payments, 
see part b.
    a-11. Q. How will Federal income tax be withheld from a ``qualified 
total distribution?''
    A. A ``qualified total distribution'' means any designated 
distribution which it is reasonable to believe is made within one 
taxable year of the

[[Page 412]]

payee, is made from or under a qualified plan described in section 
401(a) or section 403(a), and consists of the balance to the credit of 
the employee under the plans. For additional questions and answers 
concerning qualified total distributions, see part c. The amount to be 
withheld on qualified total distributions will be determined under 
tables prescribed by the Secretary that approximate the tax that would 
be imposed under section 402(e) if the payee elected to treat the 
distribution as a lump sum distribution within the meaning of section 
402(e)(4)(A). See, in this respect, question c-8.
    a-12. Q. What amount of Federal income tax will be withheld from a 
designated distribution that is not a periodic payment or a qualified 
total distribution?
    A. If a designated distribution is not a periodic payment or a 
qualified total distribution, the amount to be withheld is computed by 
multiplying the amount of the designated distribution by 10 percent.
    a-13. Q. Who must withhold?
    A. Generally, the payor of a designated distribution must withhold, 
and is liable for payment of, the tax required to be withheld. However, 
in the case of a distribution from a plan described in section 401(a) 
(relating to pension, profit-sharing, and stock bonus plans), section 
403(a) (relating to certain annuity plans), or section 301(d) of the Tax 
Reduction Act of 1975 (relating to certain employee stock ownership 
plans, sometimes called ``TRASOP's''), the plan administrator must 
withhold, and is liable for payment of, the withheld tax unless he 
directs the payor to withhold the tax and furnishes the payor with any 
information that may be required by the Secretary in forms or 
regulations. This provision applies to qualified plans as well as once 
qualified plans that are no longer qualified. For a description of the 
material that the plan administrator must furnish to the payor, see 
question e-3.
    a-14. Q. Who is a plan administrator?
    A. Under section 414(g), the plan administrator is the person 
specifically designated as the plan administrator by the terms of the 
plan or trust. If the plan or trust does not specifically designate the 
plan administrator (as provided in Sec. 1.414(g)-1(a) of the Income Tax 
Regulations), then the plan administrator is generally determined as 
follows:
    (1) In the case of a plan maintained by a single employer, the 
employer is the plan administrator.
    (2) In the case of a plan maintained by two or more employers or 
jointly by one or more employers and one or more employee organizations, 
the association, committee, joint board of trustees, or other similar 
group of representatives who maintain the plan is the plan 
administrator.
    (3) In the case in which (1) or (2) does not apply, the person 
actually responsible for the control, disposition, or management of the 
assets is the plan administrator.
    a-15. Q. If a bank trustee, regulated investment company, or 
insurance company makes a periodic payment to a payee solely at the 
direction of an employer sponsored individual retirement account (IRA), 
is the bank trustee, regulated investment company or insurance company a 
payor subject to the pension withholding provisions?
    A. Yes. the term ``payor'' generally means the person actually 
paying the annuity or other payment (even if the person is acting as an 
agent). Because this is not a payment from a plan described in section 
401(a) or 403(a), responsibility for withholding is on the bank trustee, 
regulated investment company, or insurance company and not on the 
employer who sponsors the account.
    a-16. Q. If a bank trustee transfers plan funds to the employer who 
sponsors a plan described in section 401(a) and the employer makes the 
designated distributions, is the employer a payor?
    A. Yes. The employer is a payor because it acts as an agent for the 
bank trustee. Even though the plan administrator has transferred 
liability to the bank trustee under section 3405(c)(2), the transfer of 
funds to the employer does not relieve the bank trustee of its liability 
for withholding because the rule on transfer of liability only applies 
to plan administrators. Therefore, if the employer fails to withhold on 
designated distributions, either the employer or the bank trustee may be

[[Page 413]]

liable for failure to withhold. Note, however, that the plan 
administrator could transfer liability for withholding to the employer 
as payor under section 3405(c)(2). See, in this respect, questions e-2 
and e-3.
    a-17. Q. Do the withholding provisions apply to annuities paid from 
an employer deferred compensation plan, an individual retirement plan, 
or a commercial annuity to the surviving spouse or other beneficiary of 
a deceased payee?
    A. Yes.
    a-18. Q. Do these withholding provisions apply to designated 
distributions under all nonqualified employer deferred compensation 
plans?
    A. No. The withholding provisions relating to pensions and annuities 
do not apply to any amounts that are wages without regard to these 
provisions. Wages to which the general wage withholding rules apply mean 
any remuneration paid by an employer for services performed by an 
employee unless the amount paid falls within one of the exceptions of 
section 3401(a). For example, wages do not include remuneration paid to, 
or on behalf of, an employee or beneficiary from or to a trust qualified 
under section 401(a) and tax-exempt under section 501(a). There is no 
exception for contributions to, or benefits paid from, some nonqualified 
plans. In general, any contributions to, or benefits from, a 
nonqualified plan that are taxable under section 83 are subject to wage 
withholding at the time that they are includible in the recipient's 
gross income.
    a-19. Q. Do these withholding provisions apply to designated 
distributions from a bond purchase plan described in section 405(a)?
    A. Yes. Although a bond purchase plan is not a qualified plan, 
section 3402(a) does not apply to contributions to, or distributions 
from, such a plan. Therefore, designated distributions from a bond 
purchase plan are subject to the new withholding rules of section 3405. 
Similarly, the new withholding rules apply to designated distributions 
of an individual retirement bond described in section 409 or from an 
annuity plan described in section 403(a). For purposes of the 
withholding provisions of section 3405, a designated distribution from a 
bond purchase plan described in section 405(a) or an individual 
retirement bond described in section 409 occurs when an individual 
redeems a bond.
    a-20. Q. Do these withholding provisions apply to designated 
distributions from a tax-sheltered annuity described in section 403(b)?
    A. Yes. Section 31.3401(a)-1(b)(1)(i) of the Employment Tax 
Regulations provides that there is no withholding required under the 
wage withholding provisions to the extent that any amounts are taxable 
under the rules of section 72 or 403. Because designated distributions 
are not subject to the general wage withholding provisions, the new 
provisions of section 3405 apply to these designated distributions.
    a-21. Q. An employer maintains a nonqualified deferred compensation 
plan such as a supplemental executive retirement (``top hat'') plan. 
Payments under the plan are made in the form of a single sum payment at 
retirement. Amounts paid at retirement are includible in income as 
compensation in the year received. Must the payor withhold on these 
amounts according to the rules in section 3405?
    A. No. Section 3405(d)(1)(B)(i) provides that a designated 
distribution on which withholding is required does not include amounts 
that are wages without regard to the rules of section 3405. Therefore, 
withholding on payments that are includible in income as compensation 
are based on the rules for withholding on wages contained in section 
3402.
    a-22. Q. Do the withholding provisions of section 3405 apply to a 
retirement plan maintained by a State or local government on behalf of 
its employees?
    A. Yes. A retirement plan maintained by a State or local government 
on behalf of its employees is a plan that defers the receipt of 
compensation. The fact that a plan deferring the receipt of compensation 
is maintained by a governmental unit does not make the withholding 
provisions inapplicable. Thus, annuity payments and other distributions 
under the Federal Civil Service Retirement System or under the plan of 
any State or municipality are subject to withholding.

[[Page 414]]

    a-23. Q. Are payments from a state or local plan of deferred 
compensation described in section 457 subject to the withholding 
requirements of section 3405?
    A. No. Amounts paid from a plan described in section 457 are paid 
from a plan that defers the receipt of compensation. However, amounts 
paid from a deferred compensation plan described in section 457 are 
wages under section 3401(a). Therefore, the general wage withholding 
rules, not the special rules of section 3405, apply to these payments.
    a-24. Q. An individual retires and begins receiving periodic 
payments under a commercial annuity contract that was distributed to him 
from a contributory qualified plan. The insurance company is the payor 
and is liable for withholding because the plan administrator has 
transferred liability under the rules of section 3405(c)(2). Must the 
payor determine whether the employee's investment in the contract is 
recoverable within three years?
    A. Yes. Under section 72(d), if the annuity payments during the 
first three years equal or exceed the amount contributed by the employee 
to the plan, no amounts are includible in income until the employee's 
contributions are recovered. Because the application of section 72(d) 
may affect the extent to which it is reasonable to believe that amounts 
are not includible in income and, therefore, not subject to withholding, 
the payor must determine whether section 72(d) applies to the annuity 
payments. As a general rule, the information necessary to determine the 
employee's investment in the contract must be provided to the payor by 
the plan administrator. See, however, questions a-27 and a-33.
    a-25. Q. If the payor in question a-24 determines that the 
employee's investment in the contract is not recoverable within 3 years, 
must the payor compute the exclusion ratio under section 72(b) to 
calculate the amount of each payment that is not includible in gross 
income?
    A. Yes. The operation of section 72(b) affects the extent to which 
it is reasonable to believe that amounts are not includible in gross 
income. Therefore, the payor must compute the exclusion ratio to 
determine what portion of each payment is subject to withholding under 
section 3405. As a general rule, the information necessary to determine 
the employee's exclusion ratio must be provided to the payor by the plan 
administrator. See, however, questions a-27 and a-33.
    a-26. Q. In questions a-24 and a-25, may the payor (i.e., the 
insurance company) rely on the information furnished by the plan 
administrator to determine the amounts that are includible in gross 
income?
    A. In the absence of information to the contrary supplied by the 
payee, the payor may rely on the information furnished by the plan 
administrator. See, with respect to the plan administrator's duty to 
report to the payor, questions e-2 and e-3.
    a-27. Q. What is the result in questions a-24 and a-25 if the plan 
administrator fails to provide the payor with any information concerning 
the amount of employee contributions?
    A. Until the earlier of December 31, 1983, or the date on which the 
plan administrator provides the payor with information concerning the 
amount of employee contributions, it is reasonable for the payor to 
assume that the employee's investment in the annuity contract is zero 
unless the payor has independent specific knowledge of the amount of 
employee contributions. Additionally, if the payee notifies the payor of 
the amount of employee contributions, the payor must compute the taxable 
portion of the payment based on the information supplied by the payee. 
If the plan administrator fails to provide the payor with this 
information on or before December 31, 1983, the plan administrator will 
be liable for failure to withhold and pay the tax due. See questions e-2 
through e-5 for rules on the plan administrator's ability to transfer 
liability for withholding to the payor. See also question a-33 with 
respect to the plan administrator's failure to provide the necessary 
information prior to December 31, 1983.
    a-28. Q. If a beneficiary receives the balance to the credit of an 
employee from an annuity described in section 403(b) on account of the 
employee's death, is it reasonable to believe that the $5,000 death 
benefit exclusion of section 101(b) is not includible in gross income?

[[Page 415]]

    A. Yes. Although the amount of the death benefit exclusion allowable 
may be limited by section 101(b)(2)(B)(iii), the payor, for withholding 
purposes, may use the maximum death benefit exclusion ($5,000) in 
computing the amount of the distribution that is subject to withholding. 
See also, in this respect, question c-3.
    a-29. Q. What is the appropriate treatment of a distribution 
(whether periodic or nonperiodic) that includes employer securities?
    A. Employer securities are significant in the calculation of amounts 
subject to withholding in two respects. First, the maximum amount to be 
withheld cannot exceed the sum of the amount of money plus the fair 
market value of property received, except employer securities. In other 
words, a payor will not be forced to dispose of employer securities in 
order to meet withholding tax liability. Thus, for example, if an 
individual receives a distribution from a stock bonus plan that includes 
$1,000 worth of employer stock and $5 in cash for payment of fractional 
shares of stock, all of the cash, but none of the stock, may be retained 
by the payor to satisfy the withholding obligation. Second, under 
certain circumstances, the net unrealized appreciation in employer 
securities is not includible in gross income. See, in this respect, the 
rules of sections 402(a)(1) and 402(e)(4)(J).
    a-30. Q. Is it reasonable to believe that all net unrealized 
appreciation from employer securities is not includible in gross income 
in the case of a qualified total distribution?
    A. Yes. Although a qualified total distribution may include a 
distribution that is not a lump sum distribution, it is reasonable to 
believe that all net unrealized appreciation from employer securities is 
not includible in gross income.
    a-31. Q. Is it reasonable to believe that a distribution is not 
includible in gross income if the distribution consists of employee 
contributions from a plan described in section 401(a) and the amount 
distributed is not specifically designated as accumulated deductible 
employee contributions?
    A. Yes. Employee contributions to a plan described in section 401(a) 
are not deductible from gross income when contributed unless they are 
deductible employee contributions under section 72(o)(5). Unless the 
payor has specific knowledge that employee contributions distributed 
from a plan described in section 401(a) are accumulated deductible 
employee contributions, it is reasonable to assume that the amounts are 
excludible from gross income in the year when received.
    a-32. Q. In the case of disability payments paid under a 
noncontributory plan to a disability retiree who has not attained age 
65, is it reasonable to believe that all amounts paid to the payee are 
includible in gross income?
    A. Yes. Whether or not all or part of the disability payments paid 
under a noncontributory plan to a permanently disabled retiree who has 
not attained age 65 are includible in gross income depends on the 
adjusted gross income of the taxpayer and on whether the taxpayer is 
permanently and totally disabled. In this situation, it is reasonable 
for the payor to assume that all amounts paid to the payee are 
includible in gross income unless the payor has specific independent 
knowledge that all or part of the periodic payments are not includible 
in gross income. Additionally, if the payee notifies the payor of the 
amount excludible from gross income, the payor must compute the taxable 
portion of the payment based on information provided by the payee.
    a-33. Q. In the case of a periodic payment, is it reasonable to 
believe that all amounts paid to the payee are includible in gross 
income?
    A. Yes. As an alternative to the general rule that a designated 
distribution does not include amounts which it is reasonable to believe 
are not includible in gross income, the payor of any periodic payment 
may assume that the entire amount of the payment is includible in gross 
income. The wage withholding tables must be used without adjustment for 
the fact that Federal income tax is being withheld on the gross amount. 
If the payor uses this alternative method of calculating the amount of 
the designated distribution, he must include with the notice of the 
election not to have withholding apply the following additional 
statements:

[[Page 416]]

    (1) Tax will be withheld on the gross amount of the payment even 
though the payee may be receiving amounts that are not subject to 
withholding because they are excludible from gross income;
    (2) This withholding procedure may result in excess withholding on 
the payment; and
    (3) The payee may adjust the allowances claimed on the withholding 
certificate if he wants a lesser amount withheld from each payment or he 
may provide the payor with the information necessary to calculate the 
taxable portion of each payment.
    This alternative will not apply to periodic payments made after the 
earlier of December 31, 1983, or the date on which the plan 
administrator supplies the payor with the information necessary to 
calculate the taxable portion of the distribution.
    See, also, questions e-3, e-4, and e-5.
    a-34. Q. May the payor rely on a plan administrator's computation of 
the amount to be withheld?
    A. Yes. Although the plan administrator is not required to compute 
the amount to be withheld in order to transfer liability for withholding 
to the payor, the plan administrator may provide such information to the 
payor, and the payor may rely on such computations unless the payor 
knows or has reason to know that the computations are incorrect.
    a-35. Q. Under the plans of certain States, individuals may receive 
payments from more than one retirement system, such as payments from the 
state's teacher's retirement plan and from the state's regular 
retirement plan. Must these payments be aggregated for purposes of 
providing a single notice and election to a payee or for purposes of 
determining whether the floor on withholding tax (i.e., $5,400 for a 
married individual claiming three allowances) has been reached?
    A. No. However, if it is feasible to aggregate payments under more 
than one retirement system, the payor is permitted to do so for these 
purposes.
    a-36. Q. If a payment is made by one check to more than one 
beneficiary, such as a surviving spouse and a minor child, how is the 
amount to be withheld computed?
    A. The payor may compute the withholding on a payment made by one 
check to more than one beneficiary as if the payment were made to only 
one beneficiary. In this case, the payor must base withholding for the 
total amount of the designated distribution on the withholding 
certificate of the payee to whom the election was sent.
    Alternatively, if each payee files a withholding certificate and the 
payor knows the amount of the payment of which each payee is entitled, 
the payor may determine the amount to be withheld with respect to each 
payee. If the payor does not know the amount of the payment to which 
each payee is entitled, he may treat the payment as being made pro-rata 
to each payee. If only one withholding certificate is received, the 
payor must base withholding for the total amount of the designated 
distribution on the withholding certificate of one of the payees, such 
as the surviving spouse's certificate. Thus, if notice of the election 
not to have withholding apply is supplied to each payee at the times 
required in section 3405(c) (10) and only one payee makes the election 
or files a certificate, the payor must assume that the election or 
filing was made by the payee on behalf of the other payees.
    a-37. Q. If a payor makes an error in computing the amount of a 
designated distribution that is subject to withholding, must the payor 
make a retroactive correction of the error?
    A. No, provided the error was a reasonable one. Thus, if a payor 
either underwithholds or overwithholds because the amount of the 
designated distribution (i.e., the taxable portion of the payment) was 
incorrectly calculated, no retroactive make-up is required if one of the 
following applies: (1) The payor reasonably relied on information 
furnished by the plan administrator (including the computation of the 
amount to be withheld), (2) the payor relied on a payee's 
representations on the withholding certificate, (3) the payor reasonably 
relied on the rules of this regulation, or (4) the payor made a 
mathematical error in computations. However, if the amount of the 
designated distribution is correctly computed, but the payor makes an 
error in applying the withholding

[[Page 417]]

tables, the normal rules concerning failure to withhold and pay the tax 
will apply.

                   b. Withholding on Periodic Payments

    b-1. Q. Is the payor of periodic payments required to aggregate such 
payments with a payee's compensation to determine the amount of tax to 
be withheld under section 3405(a)(1)?
    A. No. Although the payor must withhold from any periodic payment 
the amount that has to be withheld if the payment were a payment of 
wages by an employer to an employee for a payroll period, the amount to 
be withheld under section 3405(a)(1) is calculated separately of any 
amounts that actually are wages to the payee for the same period.
    b-2. Q. Can either the percentage method (section 3402(b)) or the 
wage bracket method (section 3402(c)) be used to determine the 
withholding liability on a periodic payment?
    A. Yes. Withholding on a periodic payment is accomplished by 
treating the payment as if it were wages. Therefore, unless the employee 
has elected not to have withholding apply, any method of withholding 
that is an appropriate method for withholding on wages is also an 
appropriate method for withholding on periodic payments. Refer to the 
Employer's Tax Guide (Circular E) and Publication 493, Alternative Tax 
Withholding Methods and Tables for the general procedures on 
withholding, deposit, payment, and reporting of Federal income tax 
withheld. Note, however, that any specific procedures contained in this 
regulation take precedence over any contrary rules in Circular E and 
Publication 493.
    b-3. Q. Do rules similar to those for wage withholding applly to the 
filing of a withholding certificate for periodic payments?
    A. Yes. Unless the rules of section 3405 specifically conflict with 
the rules of section 3402, the rules for withholding on periodic 
payments will parallel the rules for wage withholding. Thus, if a 
withholding certificate is filed by a payee, it will generally take 
effect as provided in section 3402(f)(3) for certificates filed to 
replace existing certificates. If a withholding certificate is furnished 
by a payee on or before the date on which payments commence, it takes 
effect with respect to payments made more than 30 days after the 
certificate is furnished, unless the payor elects to make it effective 
at an earlier date. If a withholding certificate is furnished by a payee 
after the date on which payments commence, it takes effect with respect 
to payments made on or after the status determination date (January 1, 
May 1, July 1, or October 1) that is at least 30 days after the date the 
certificate is filed, unless the payor elects to make it effective at an 
earlier date. If no withholding certificate is filed, the amount 
withheld is determined as if the payee were a married person claiming 
three withholding allowances.
    b-4. Q. If no withholding certificate has been filed and the payor 
is aware that the payee is single, is it still appropriate to base 
withholding on a married individual claiming three allowances?
    A. Yes. If no withholding certificate is filed, the payor is not 
required or permitted to base withholding on the amount of allowances 
the payee actually is entitled to claim. Thus, the payor must base 
withholding on the rates for a married person with three withholding 
allowances.
    b-5. Q. May a payor determine whether payments to an individual are 
subject to withholding based on the amount of the first periodic payment 
for the year?
    A. No. Periodic payments can vary during a calendar year because of 
make-up of past due payments, variable rates of payments, or cost-of-
living adjustments, so that withholding based on the first payment 
within a year may be an inaccurate measure of withholding on total 
payments for the year. Therefore, the amount to be withheld is 
determined each payment period in the same manner as applies to 
withholding on wages. See, in this respect, Circular E and the 
regulations under section 3402.
    b-6. Q. If a payment period is specified as by the terms of a 
commercial annuity contract, must this period be used as the appropriate 
period for determining the amount to be withheld?
    A. Yes. Similarly, if the payment period is designated in a plan 
administrator's report or on an individual retirement account payout 
schedule agreed

[[Page 418]]

to by payor and payee, this period must be used as the appropriate 
payment period.
    b-7. Q. If the payor received no report from the plan administrator 
or beneficiary concerning the payment period, but knows the frequency of 
payments, can the known frequency be used as the appropriate payment 
period?
    A. Yes. However, if no report is received and the payor has no 
knowledge of the frequency of payments, then he must treat the 
distribution as a nonperiodic distribution. Therefore, a distribution 
cannot be a periodic payment unless the frequency of payments is known. 
See, in this respect, questions b-8 and c-2. For rules concerning the 
plan administrator's failure to provide this information, see questions 
e-2 and e-3.
    b-8. Q. If a payee receives a one-time payment that is a make-up 
payment resulting from an insurance company's incorrect calculation of a 
monthly annuity amount, is the one-time payment part of a series of 
periodic payments?
    A. Yes. Because the one-time payment is a catch-up of prior amounts 
due as periodic payments, it is treated as part of a series of periodic 
payments. These payments are treated for withholding purposes in a 
manner similar to the treatment of supplemental wage payments in 
Sec. 31.3402(g)-1 of the Employment Tax Regulations.

               c. Withholding on Nonperiodic Distributions

    c-1. Q. Must an individual receive a lump-sum distribution within 
the meaning of section 402(e)(4) to have a qualified total distribution?
    A. No. A ``qualified total distribution'' is any distribution that 
(i) is a designated distribution, (ii) is reasonable to believe is made 
within one taxable year of the recipient, (iii) is made under a plan 
described in section 401(a) or 403(a), and (iv) consists of the balance 
to the credit of the employee under such plan. Thus, a distribution from 
a plan described in section 401(a) that does not meet the requirements 
(such as the minimum 5-year period of participation in section 
402(e)(4)(H)) for a lump sum distribution within the meaning of section 
402(e)(4) may still be a qualified total distribution for purposes of 
withholding.
    c-2. Q. If a class year plan permits annual withdrawal of 
participants' vested amounts, are these withdrawals considered periodic 
payments?
    A. No. A class year plan is a plan under which amounts contributed 
by an employer for a year become vested a number of years (e.g., five 
years) after the year in which the amounts are contributed. Generally, 
class year plans permit withdrawals each year of amounts that have 
vested during the year. However, these distributions are not made with 
respect to an established frequency of payments, so the withdrawals must 
be treated as nonperiodic distributions, subject to withholding at the 
10 percent rate.
    c-3. Q. If a beneficiary receives the balance to the credit of a 
payee from an annuity contract on account of the payee's death, is this 
final payment a nonperiodic distribution?
    A. Yes. The lump sum death benefit in this situation is a one-time 
payment that cannot be characterized as a periodic payment. The payment 
may be a qualified total distribution if the requirements of section 
3405(c)(4) are satisfied, but otherwise it will be treated as a 
nonperiodic distribution other than a qualified total distribution.
    c-4. Q. Is it permissible to assume that an individual is a calendar 
year taxpayer for purposes of determining whether a distribution is a 
``qualified total distribution?''
    A. Yes, unless the payor or plan administrator has reason to believe 
that the payee is not a calendar year taxpayer. The payor or plan 
administrator has reason to believe that the payee is not a calendar 
year taxpayer if the payee tells the payor or plan administrator that he 
is not a calendar year taxpayer.
    c-5. Q. Is a distribution of accumulated deductible employee 
contributions with earnings that is paid on account of an employee's 
separation from service treated as a qualified total distribution?
    A. Yes. As long as the other requirements for a qualified total 
distribution are met, a distribution of accumulated deductible employee 
contributions

[[Page 419]]

with earnings is eligible for withholding at the rate applicable to 
qualified total distributions even though the distribution could never 
be a lump sum distribution. Because accumulated deductible employee 
contributions are treated separately in determining whether a 
distribution is a qualified total distribution, the answer would be the 
same even if the recipient received none (or a portion) of the vested 
employer contributions in his account.
    c-6. Q. What is meant by the ``balance to the credit'' of an 
employee under a plan described in section 401(a) or 403(a)?
    A. In general, the balance to the credit of an employee includes any 
amount credited to the employee under the plan on the date the 
distribution commences. The balance to the credit of an employee 
includes an amount credited after the date the distribution commences if 
it is attributable to services performed before that date or is 
attributable to earnings on an amount credited to the employee before 
that date. Additionally, the balance to the credit of an employee 
includes any amount payable as an annuity with respect to the employee 
under the plan. Amounts that have been placed in a separate account for 
the funding of medical benefits under section 401(h) or amounts that are 
forfeitable under the plan are not included in the balance to the credit 
of an employee. Finally, accumulated deductible employee contributions 
(within the meaning of section 72(o)(5)(B)) are not included in the 
balance to the credit of an employee for the purposes of determining 
whether a distribution is a ``qualified total distribution.''
    c-7. Q. Can a payor rely on a plan administrator's report in 
determining whether a distribution consists of the balance to the credit 
of an employee under a plan?
    A. Yes. If the plan administrator does not inform the payor that the 
distribution consists of the balance to the credit of the employee, the 
payor may not assume that the distribution is a qualified total 
distribution and must treat the distribution as a nonperiodic 
distribution that is not a qualified total distribution. However, the 
payor may rely on the payee's representations that a distribution does 
consist of the balance to the credit of the employee under the plan.
    c-8. Q. What table must be used to calculate the amount to be 
withheld from a ``qualified total distribution?''
    A. The table to be used for withholding on ``qualified total 
distributions'' will be published by the Secretary in the near future.

                    d. Notice and Election Procedures

    d-1. Q. May a payee elect not to have Federal income tax withheld 
from a designated distribution?
    A. Yes. Withholding is not required on any periodic payment or 
nonperiodic distribution if the payee elects not to have withholding 
apply. If the payee makes this election, it is effective until revoked. 
The payor is required to provide each payee with notice of the right to 
elect not to have withholding apply and of the right to revoke the 
election.
    d-2. Q. In the case of a designated distribution made on account of 
the death of an employee, who makes the election not to have withholding 
apply?
    A. The election may be made by the beneficiary of plan benefits 
specified by the decedent in accordance with plan procedures or, if 
there is no designated beneficiary, by the beneficiary specified under 
the terms of the plan. If there is not a designated beneficiary and the 
terms of the plan do not specify a beneficiary, then the election may be 
made by the executor or the personal representative of the decedent.
    d-3. Q. Who is required to provide notice to the payee of the 
payee's right not to have withholding apply?
    A. Section 3405(d)(10)(B) requires the payor to provide notice to 
the payee of the payee's right to elect not to have withholding apply. 
Thus, even if the plan administrator has failed to transfer liability 
for withholding to the payor, the payor must provide notice to the 
payees.
    d-4. Q. When must notice of the right to elect not to have 
withholding apply be given for periodic payments?
    A. In the case of periodic payments, notice of the election must be 
provided not earlier than six months before the first payment and not 
later than when making the first payment. However,

[[Page 420]]

even if notice is provided at a date before the first payment,notice 
must also be given when making the first payment. Thereafter, notice 
must be provided at least once each calendar year of the right to make 
the election and to revoke the election.
    d-5. Q. Must notice of the right to elect not to have withholding 
apply be provided to those payees whose annual payments are less than 
$5,400?
    A. Yes. However, under the statute, notice is only required to be 
provided when making the first payment. Therefore, a payor may provide 
notice to a payee with annual payments less than $5,400 by indicating to 
the payee when making the first payment that no Federal income tax will 
be withheld unless the payee chooses to have withholding apply by filing 
a withholding certificate, if the payor also provides information 
concerning where a withholding certificate may be obtained.
    d-6. Q. Must notice of the right to elect not to have withholding 
apply be provided in the same manner to all payees?
    A. No. If the payor provides notice to all payees when making the 
first payment, the payor may, in addition, provide earlier notice as 
provided in section 3405(d)(10)(B)(i)(I) to selected groups of payees, 
such as those payees whose annual payments are over $5,400.
    d-7. Q. Must notice be attached to the first payment to satisfy the 
requirement that notice be provided ``when making'' the first payment?
    A. No. Because many payees utilize electronic funds transfer to 
deposit their pension or annuity checks, notice does not have to be 
attached physically to the check.
    d-8. Q. If a payee utilizes electronic funds transfer and notice is 
mailed directly to the payee at the same time the check is issued, is 
the notice requirement satisfied even though the payee receives the 
notice fifteen days after the check is deposited?
    A. Yes. Although it is desirable that the notice reach the payee 
immediately prior to or concurrent with receipt of the check, the notice 
requirement is deemed to be satisfied if the payee receives the notice 
within 15 days before or after receipt of the first payment.
    d-9. Q. When is the payor required to notify the payee of his right 
to elect not to have withholding apply to a nonperiodic distribution?
    A. Section 3405(d)(10)(B)(ii) requires that notice must be provided 
to the payee at the time of a nonperiodic distribution. Since notice 
provided at the time of the distribution could result in delay of 
receipt of the benefit check if the payee elects out of withholding, 
notice for nonperiodic distributions should be given not earlier than 
six months prior to the distribution and not later than the time that 
will give the payee reasonable time to elect not to have withholding 
apply and to reply to the payor with the election information. What is 
reasonable time depends upon the facts and circumstances of each case.
    d-10. Q. What is a ``reasonable time'' for notice with respect to a 
nonperiodic distribution from a qualified plan?
    A. The ``reasonable time'' requirement is satisfied with respect to 
a nonperiodic distribution if the notice is included in the basic claim 
for benefits application that is provided to the participant by the plan 
administrator.
    d-11. Q. If the payor of a periodic payment provides notice of the 
election not to have withholding apply within the time specified by 
section 3405(d)(10)(B)(i)(I), may the payor specify a time prior to 
distribution by which the election must be made?
    A. Yes. The election not to have withholding apply is generally 
given effect as provided in section 3402(f)(3) for a certificate filed 
to replace an existing certificate. However, the payor may require that 
the election is made up to 30 days before the first payment to be 
effective for the first payment. See question b-3.
    d-12. Q. If the payor of a nonperiodic distribution provides notice 
of the election not to have withholding apply within a reasonable time 
prior to the distribution, may the payor specify a time prior to 
distribution by which the election must be made?
    A. No. The payee has the right to make or revoke an election at any 
time prior to the distribution. Therefore, the payor may place a 
deadline on the

[[Page 421]]

time to elect without delaying payment of the distribution, but must 
accept any election or revocation made up to the time of distribution.
    d-13. Q. What is a ``reasonable time'' for notice with respect to a 
distribution from an individual retirement account?
    A. A payor may provide notice of the election not to have 
withholding apply at the time the beneficiary requests a withdrawal from 
his individual retirement account. This rule also applies to 
distributions from bank sponsored prototype plans and other plans that 
permit withdrawals on request.
    d-14. Q. If notice is provided to a payee prior to the first payment 
of a periodic payment, why must it also be provided at the time of the 
first payment or distribution?
    A. Section 3405(d)(10)(B)(i)(II) of the Internal Revenue Code 
requires such notice. In addition, because the payee has the right to 
make an election or to revoke a prior election at any time prior to the 
beginning of the payment period, notice must be provided when making the 
first payment in order to offer the payee ample opportunity to make or 
revoke an election not to have withholding apply even if the election 
will not be effective until later payments.
    d-15. Q. If a payee who has been receiving periodic payments is 
rehired by the same employer, has his benefits suspended, and then 
recommences receiving periodic payments, must notice again be provided 
to the payee?
    A. Yes. Upon recommencement of benefits, the first payment 
thereafter is treated as the first payment for purposes of the notice 
requirements.
    d-16. Q. Must a payor provide notice if it is reasonable to believe 
that the entire amount payable is excludible from the payee's gross 
income?
    A. No. Amounts which it is reasonable to believe are not includible 
in gross income are not designated distributions. Therefore, no notice 
is required of the ability to elect not to have withholding apply.
    d-17. Q. If the payor of a periodic payment under a qualified plan 
knows that an employee's investment in an annuity contract will be 
recovered within three years, must he provide notice of the right to 
elect out of withholding at the time the first payment is made?
    A. No. The first payment is not a designated distribution, and, 
therefore, is not a periodic payment subject to the notice requirements 
of section 3405(d)(10)(B)(i). There is no withholding obligation until 
the employee's investment in the contract is recovered because those 
amounts that equal the investment in the contract are not includible in 
gross income and, therefore, are not designated distributions. 
Therefore, the first payment after the employee's investment in the 
contract is recouped is the first payment for purposes of the notice 
requirements.
    d-18. Q. What information concerning the election not to have 
withholding apply must be provided by the payor to the payee?
    A. Notice to a payee must contain the following information:
    (1) Notice of the payee's right to elect not to have withholding 
apply to any payment or distribution and how to make that election,
    (2) Notice of the payee's right to revoke such an election at any 
time and a statement that the election remains effective until revoked,
    (3) A statement to advise payees that penalties may be incurred 
under the estimated tax payment rules if the payments of estimated tax 
are not adequate and sufficient tax is not withheld from the payment or 
distribution.
    In the event that the payor does not know what part of a 
distribution is includible in gross income and treats these payments as 
provided in question a-33, the following additional statements must be 
included with the notice:
    (1) Tax will be withheld on the gross amount of the payment even 
though the payee may be receiving amounts that are not subject to 
withholding because they are excludible from gross income,
    (2) This withholding procedure may result in excess withholding on 
the payment, and
    (3) The payee may adjust his allowances claimed on the withholding 
certificate if he wants a lesser amount withheld from each payment or he 
may provide the payor with the information

[[Page 422]]

necessary to calculate the taxable portion of each payment.
    d-19. Q. Is there any information that, although not required, it is 
desirable to include in the notice to payees?
    A. It is desirable to include a statement in the notice to payees 
that the election not to have withholding apply is prospective only and 
that any election made after a payment or distribution to the payee is 
not an election with respect to that payment or distribution.
    d-20. Q. May the plan administrator provide the notice to payees on 
behalf of the payor?
    A. The plan administrator may provide notice on behalf of the payor. 
However, the payor has sole responsibility for providing this notice 
whether or not the plan administrator has shifted liability for 
withholding to the payor, and if the plan administrator fails to provide 
adequate notice, the payor is responsible.
    d-21. Q. Is there a sample notice that can be used to satisfy the 
notice requirement for periodic payments?
    A. Yes. Any payor who uses the following sample notice is deemed to 
satisfy the notice requirement if notice is timely provided:

               Notice of Withholding on Periodic Payments

    Beginning on January 1, 1983, the [pension] OR [annuity] payments 
you receive from the [insert name of plan or company] will be subject to 
Federal income tax withholding unless you elect not to have withholding 
apply. Withholding will only apply to the portion of your [pension] OR 
[annuity] payment that is already included in your income subject to 
Federal income tax and will be like wage withholding. Thus, there will 
be no withholding on the return of your own nondeductible contributions 
to the [plan] OR [contract].
    You may elect not to have withholding apply to your [pension] OR 
[annuity] payments by returning the signed and dated election [manner 
may be specified] to [insert name and address]. Your election will 
remain in effect until you revoke it. You may revoke your election at 
any time by returning the signed and dated revocation to [insert 
appropriate name or address]. Any election or revocation will be 
effective no later than the January 1, May 1, July 1, or October 1 after 
it is received, so long as it is received at least 30 days before that 
date. You may make and revoke elections not to have withholding apply as 
often as you wish. Additional elections may be obtained from [insert 
name and address].
    If you do not return the election by [insert date], Federal income 
tax will be withheld from the taxable portion of your [pension] OR 
[annuity] payments as if you were a married individual claiming three 
withholding allowances. As a result, no Federal income tax will be 
withheld if the taxable portion of your annual [pension] OR [annuity] 
payments are less than $5,400.
    If you elect not to have withholding apply to your [pension] OR 
[annuity] payments, or if you do not have enough Federal income tax 
withheld from your [pension] OR [annuity] payments, you may be 
responsible for payment of estimated tax. You may incur penalties under 
the estimated tax rules if your withholding and estimated tax payments 
are not sufficient.

    d-22. Q. Is there sample language that may be used to elect not to 
have withholding apply or to revoke a prior election not to have 
withholding apply?
    A. Yes. A payee may elect not to have withholding apply or revoke a 
prior election in any manner that clearly shows the payee's intent. The 
following language would suffice:

              Election for Recipients of Periodic Payments

    Instructions: Check Box A if you do not want any Federal income tax 
withheld from your [pension] OR [annuity]. Check Box B to revoke an 
election not to have withholding apply. Return the signed and dated 
election to [insert name and address].
    Even if you elect not to have Federal income tax withheld, you are 
liable for payment of Federal income tax on the taxable portion of your 
[pension] OR [annuity]. You also may be subject to tax penalties under 
the estimated tax payment rules if your payments of estimated tax and 
withholding, if any, are not adequate.
    A {time}  I do not want to have Federal income tax withheld from my 
[pension] OR [annuity].
    B {time}  I want to have Federal income tax withheld from my 
[pension] OR [annuity].
Signed:_________________________________________________________________
          (Name)
Date:___________________________________________________________________
    Return your completed election to: [insert name and address]

    d-23. Q. May the payee's election be combined with a withholding 
certificate?
    A. Yes. The payor may provide a single statement for the payee to 
fill out and return that would enable the payee to elect not to have 
withholding apply

[[Page 423]]

or to revoke a previous election and, at the same time, would enable the 
payee to claim the number of withholding allowances and, also, the 
dollar amount the payee wants withheld.
    d-24. Q. Will a notice mailed to the last known address of the payee 
fulfill the notice requirement of section 3405(d)(10)(B)?
    A. Yes.
    d-25. Q. Is there a sample notice that can be used to satisfy the 
notice requirement for nonperiodic distribution?
    A. Yes. Any payor who uses the following sample notice is deemed to 
satisfy the notice requirement if notice is timely provided:

 Notice of Withholding on Distributions or Withdrawals From Annuities, 
    IRA's, Pension, Profit Sharing, Stock Bonus, and Other Deferred 
                           Compensation Plans

    The [distributions] OR [withdrawals] you receive from the [insert 
name of plan or company] are subject to Federal income tax withholding 
unless you elect not to have withholding apply. Withholding will only 
apply to the portion of your [distribution] OR [withdrawal] that is 
included in your income subject to Federal income tax. Thus, for 
example, there will be no withholding on the return of your own 
nondeductible contributions to the [plan] OR [contract].
    You may elect not to have withholding apply to your [distribution] 
OR [withdrawal] payments by signing and dating the attached election and 
returning it [manner may be specified] to [insert name and address].
    If you do not return the election by [insert date] receipt of your 
payments may be delayed. If you do not respond by the date your 
[distribution] OR [withdrawal] is scheduled to begin, Federal income tax 
will be withheld from the taxable portion of your [distribution] OR 
[withdrawal]. [Insert information on rates if desired].
    If you elect not to have withholding apply to your [distribution] OR 
[withdrawal] payments, or if you do not have enough Federal income tax 
withheld from your [distribution] OR [withdrawal], you may be 
responsible for payment of estimated tax. You may incur penalties under 
the estimated tax rules if your withholding and estimated tax payments 
are not sufficient.

    d-26. Q. Is there sample language that may be used for payees of 
nonperiodic distributions to elect not to have withholding apply?
    A. Yes. A payee of a nonperiodic distribution may elect not to have 
withholding apply in any manner that clearly shows the payee's intent. 
The following language would suffice:

               Election For Payees of Nonperiodic Payments

    Instructions: If you do not want any Federal income tax withheld 
from your [distribution] OR [withdrawal], sign and date this election 
and return it to [insert name and address].
    Even if you elect not to have Federal income tax withheld, you are 
liable for payment of Federal income tax on the taxable portion of your 
[distribution] OR [withdrawal]. You also may be subject to tax penalties 
under the estimated tax payment rules if your payments of estimated tax 
and withholding, if any, are not adequate.
    I do not want to have Federal income tax withheld from my 
[distribution] OR [withdrawal].
Signed:_________________________________________________________________
          (Name)
Date:___________________________________________________________________
    Return your completed election to: [insert name and address]

    d-27. Q. If the payor provides notice prior to making the first 
payment, can an abbreviated notice be used to satisfy the notice 
requirement of section 3405(d)(10)(B)(i)(II)?
    A. Yes. It is permissible to provide with the payment a statement 
that the payee has the right to elect out of withholding. For example, 
the following sample notice could be used to satisfy the notice 
requirement if the payor has provided notice previously:
    If Federal income taxes have been withheld from the [pension] OR 
[annuity] payments you are receiving and if you do not wish to have 
taxes withheld, you should notify [insert name and address]. However, if 
you elect not to have withholding apply to your [pension] OR [annuity] 
payments, or if you do not have enough Federal income tax withheld from 
your [pension] OR [annuity] payment, you may be responsible for payment 
of estimated tax. You may incur penalties under the estimated tax rules 
if your withholding and estimated tax payments are not sufficient.
    If Federal income taxes are not being withheld from your [pension] 
OR [annuity] payment because you have elected not to have withholding 
apply and if you wish to revoke that election and have Federal income 
taxes withheld from your [pension] OR [annuity]

[[Page 424]]

payments, you should notify [insert name and address].
    d-28. Q. Must an employee who receives a distribution from a plan 
described in section 401(a) that includes amounts attributable to 
employer contributions and to accumulated deductible employee 
contributions make two elections not to have withholding apply?
    A. No. Although accumulated deductible employee contributions are 
treated separately in determining whether a distribution is a qualified 
total distribution, an employee needs to make only one election not to 
have withholding apply to any distributions occurring at the same time 
from or under the same plan. However, the plan administrator could 
require the employee to make separate elections with respect to the 
distributions.
    d-29. Q. If the administrator of a plan described in section 401(a) 
makes a qualified total distribution to an employee out of funds 
contained in two or more trusts, must the employee make a separate 
election not to have withholding apply with respect to the distribution 
from each trust?
    A. No. The fact that a plan may use several trusts does not 
eliminate treatment of the distribution as a single qualified total 
distribution for which only one election is necessary.
    d-30. Q. Is it permissible to provide notice to persons already in 
pay status on January 1, 1983, in a newsletter of the plan 
administrator?
    a. Yes, provided that this notice is received by the payee within 15 
days of the payee's receipt of the first periodic payment after December 
31, 1982, and such notice provides the means to make an election and 
instructions for electing not to have withholding apply. It is desirable 
that payees be afforded the maximum opportunity to make the election 
provided by section 3405(a)(2). Payors are encouraged to give payees 
notice of their election opportunities at least 30 days before the first 
periodic payment after December 31, 1982.
    d-31. Q. Is it permissible to provide the annual notice required by 
section 3405(d)(10)(B)(i)(III) on January 1, 1984, December 31, 1985, 
and January 1, 1986?
    A. No. The annual notice required by section 3405(d)(10)(B)(i)(III) 
should be provided at approximately the same time each calendar year.
    d-32. Q. Under what circumstances may an election made with respect 
to a nonperiodic distribution apply to subsequent distributions?
    A. Generally, any election not to have withholding apply to a 
nonperiodic distribution may apply to any subsequent payment or 
distribution from or under the same plan or arrangement. However, the 
payor must still provide notice of the election and revocation 
procedures upon each subsequent distribution and must include the 
statement concerning liability for payment of estimated tax if the payee 
does not have withholding applied.
    d-33. Q. How may a payee who intends to make a qualifying rollover 
(as defined in section 402(a)(5) or section 408(d)(3)) of a distribution 
elect not to have Federal income tax withheld from the distribution?
    A. The payee may elect not to have withholding apply by making the 
election on the form provided by the payor. Alternatively, if the payee 
directs the payor to pay over the distribution to a qualified plan or an 
individual retirement account, the payor may treat this direction as an 
election not to have withholding apply.
    d-34. Q. If a payee claims more than 14 withholding allowances on a 
withholding certificate, must the payor remit a copy of the withholding 
certificate to the Internal Revenue Service?
    A. No. Because a payee may, at any time, elect out of withholding, 
the rules of Sec. 31.3402(f)(2)-1(g) of the Employment Tax Regulations 
do not apply. Therefore, a payee may claim more than 14 allowances and 
the payor need not remit the withholding certificate to the Internal 
Revenue Service.

                     e. Reporting and Recordkeeping

    e-1. Q. If designated distributions are made from or under a plan 
described in section 401(a), who has responsibility for making the 
returns and reports required by section 6047(e)?
    A. Generally, the plan administrator, as defined in section 414(g), 
is responsible for maintaining the records and making the reports 
required by section 6047(e). However, if the plan administrator fails to 
keep the required records and make the required reports, the employer 
maintaining the plan is responsible for the reports and returns.

[[Page 425]]

    e-2. Q. How may a plan administrator of a plan described in section 
401(a) or 403(a) transfer his duty to withhold to a payor?
    A. A plan administrator of a plan described in section 401(a) or 
403(a) may transfer the liability for withholding by (1) directing the 
payor in writing to withhold the tax and (2) providing the payor with 
any required information. This direction is presumed to remain in effect 
until the plan administrator revokes it in writing.
    e-3. Q. What information must the plan administrator provide to the 
payor in order to transfer his liability for withholding?
    A. The general rule is that the plan administrator must provide the 
payor with all information necessary to compute correctly the 
withholding tax liability. To satisfy this requirement, the plan 
administrator must explicitly inform the payor of the information that 
would be reportable on the Form W-2P or 1099R or that such information 
is not applicable to a particular payee or to any payments under the 
plan. For example, if the plan administrator is silent with respect to 
any employee contributions, he has not satisfied his reporting 
obligation even if there are no employee contributions to the plan. 
Thus, the plan administrator is expected to provide the payor with the 
following minimum information:
    (1) The name, address, and social security number of the payee and 
the payee's spouse or other beneficiary if applicable,
    (2) The existence and amount of any employee contributions,
    (3) The amount of accumulated deductible employee contributions, if 
any,
    (4) The payee's cost basis in any employer securities and the 
current fair market value of the securities,
    (5) The existence and amount of any premiums paid for the current 
cost of life insurance that were previously includible in income,
    (6) A statement of the reason (e.g., death, disability, retirement) 
for the payment or distribution,
    (7) The date on which payments commence and the amount and frequency 
of payments,
    (8) The age of the payee and of the payee's spouse or designated 
beneficiary if applicable, and
    (9) Any other information required by Form W-2P or 1099R.
    If, prior to December 31, 1983, the plan administrator fails to 
provide the payor with the information required in items (2) through (5) 
the payor is liable for withholding. However, the payor may withhold on 
the payment as if all amounts are includible in gross income. See 
question a-33.
    e-4. Q. If, after December 31, 1983, the plan administrator does not 
notify the payor of the amount of employee contributions with respect to 
one payee, has withholding liability shifted to the payor?
    A. Yes. The plan administrator satisfies the requirements of 
question e-3 as to the information that must be supplied to the payor so 
long as the failure to provide the required information occurs on an 
infrequent basis or the plan administrator informs the payor in writing 
that he has made a good faith effort to supply all the required 
information but the amount of employee contributions as to a particular 
payee is unavailable.
    e-5. Q. If, after December 31, 1983, the plan administrator fails to 
supply the payor with any information concerning the existence or amount 
of any employee contributions, has withholding liability shifted to the 
payor?
    A. No. The plan administrator has not satisfied his reporting 
obligation as required in question e-3 as to employee contributions even 
if there are no employee contributions unless he affirmatively states 
that there are no employee contributions or states that the reporting of 
this item is not applicable in determining the payee's tax liability.
    e-6. Q. Is it permissible to satisfy the requirements of section 
6047(e) by maintaining records necessary to provide the information 
contained on Form W-2P and 1099R?
    A. Section 6047(e) will be satisfied if, in addition to the 
information necessary to complete Forms W-2P and 1099R, the following 
information is maintained:
    (1) Payee's date of birth (if known), and date of spouse's or 
designated

[[Page 426]]

beneficiary's birth (if applicable and known);
    (2) Plan administrator's name, address, and employer identification 
number (EIN);
    (3) Plan's name and identification number and sponsor's name, 
address, and EIN; and
    (4) Date on which payments commence and amount and frequency of 
payments.
    e-7. Q. If the interim method of withholding on periodic payments 
(i.e., withholding on the gross amount) is used, must the employer, plan 
administrator, or issuer of any contract still maintain the information 
required by Form W-2P?
    A. Yes. Even if this interim method is used, the recipient must be 
provided with the information that will enable him to determine his tax 
liability and adjust his claimed exemptions or claim a credit or refund.
    e-8. What events trigger the reporting requirements of section 
6047(e)?
    A. Reporting is required any time there is a designated distribution 
to which section 3405 applies. Therefore, the old law rule that 
distributions of less than $600 per year do not require reporting no 
longer applies. Additionally, an exchange of insurance contracts under 
which any designated distribution (including a tax-free exchange under 
section 1035) may be made is a reportable event even though a designated 
distribution does not occur. To insure proper reporting when a 
designated distribution is made under the new contract, it is 
anticipated that the issuer of the contract to be exchanged will provide 
the information necessary to compute the amount to be withheld to the 
policyholder and to the issuer of the new contract.
    e-9. Q. Will the reporting requirement be satisfied if Form W-2P or 
Form 1099R is filed?
    A. Yes. In the absence of other forms or regulations, the reporting 
requirement is satisfied if Form W-2P or Form 1099R is filed with 
respect to each payee.
    e-10. Q. How should the payor or plan administrator remit payments 
of amounts withheld under section 3405?
    A. The payor or plan administrator must deposit the amount withheld 
under section 3405 with a Federal Reserve Bank or an authorized 
financial institution in accordance with the provisions of 
Sec. 31.6302(c)-1(a)(1)(i) of the Procedure and Administration 
Regulations, which provides the procedures for depositing employment 
taxes. For purposes of applying these procedures to amounts withheld 
under section 3405, the term ``taxes'' as defined in Sec. 31.6302(c)-
1(a)(1)(iii) includes the income tax withheld under section 3405 with 
respect to designated distributions. A payor or plan administrator who 
remits these amounts in accordance with those rules must report the 
amounts deposited on the same Form 941 or 941E, whichever is 
appropriate, that he uses to report the employment taxes he had 
deposited under Sec. 31.6302(c)-1(a)(1)(i).

                                f. Other

    f-1. Q. If a plan administrator or other payor distributes property 
other than cash to payees, is it permissible to use the value of the 
property as of the last preceding valuation date to determine the amount 
of Federal income tax that must be withheld from each distribution?
    A. Yes. In many situations, the plan administrator or payor will not 
be able to determine the value of property to be distributed as of the 
date of distribution without delaying payment to the payee. In these 
cases, the plan administrator or payor may determine the value of the 
property to be distributed as of the last preceding valuation date prior 
to the date of distribution, as long as the valuation is made at least 
once each year. If the most recent valuation date occurred within the 90 
days immediately preceding the date of distribution, the next most 
recent valuation date may be used.
    f-2. Q. How is withholding accomplished if a payee receives only 
property other than employer securities?
    A. A payor or plan administrator must satisfy the obligation to 
withhold on distributions of property other than employer securities 
even if this requires selling all or part of the property and 
distributing the cash remaining after Federal income tax is withheld. 
However, the payor or plan administrator may instead permit the payee to 
remit to the payor or plan administrator sufficient cash to satisfy

[[Page 427]]

the withholding obligation. Additionally, if a distribution of property 
other than cash includes property that is not includible in a designated 
distribution, such as the distribution of U.S. Savings Bonds or an 
annuity contract, such property need not be sold or redeemed to meet any 
withholding obligation.
    f-3. Q. If a designated distribution includes cash and property 
other than employer securities, is it permissible to satisfy the 
withholding obligation with respect to the entire distribution by using 
the cash distributed, provided the cash distributed is sufficient to 
satisfy the withholding obligation?
    A. Yes, as long as there is sufficient cash to satisfy the 
withholding obligation for the entire distribution. There is no 
requirement that tax be withheld from each type of property in portion 
to its value.
    f-4. Q. If a loan from a qualified plan is treated as a distribution 
under section 72(p), is the amount of the loan subject to withholding 
under section 3405?
    A. Yes. If, and to the extent that, the loan is treated as a 
distribution when made, withholding is accomplished by withholding tax 
from the amount of the loan that is treated as a distribution. Thus, for 
example, if a loan of $12,000 that must be repaid within 5 years is made 
to a common law employee with a vested account balance of $5,000, $2,000 
is treated as a distribution under section 72(p), and the payor or plan 
administrator must withhold tax from the $2,000.
    f-5. Q. Is a loan that is treated as a distribution under section 
72(p) a nonperiodic distribution other than a qualified total 
distribution?
    A. Yes.
    f-6. Q. Must a payor or plan administrator withhold tax on a 
nonperiodic distribution (including a qualified total distribution) if 
the amount of the distribution is less than $200?
    A. No. However, all amounts received within one taxable year of the 
payee from the payor or plan administrator under the same plan or 
arrangement must be aggregated for purposes of determining whether the 
$200 floor is reached. If the payor or plan administrator does not know 
at the time a first payment of $200 or less is made whether there will 
be additional payments during the year for which aggregation is 
required, the payor or plan administrator need not withhold from the 
first payment. If distributions are made within one taxable year under 
more than one plan of an employer, the plan administrator or payor may, 
but need not, aggregate the distributions for purposes of determining 
whether the $200 floor is reached.
    f-7. Q. If a nonperiodic distribution (including a qualified total 
distribution) to a payee will be less than $200, must the payor provide 
notice to the payee of the right to elect not to have withholding apply?
    A. No.
    f-8. Q. How is withholding accomplished if a qualified total 
distribution is paid in installments during one taxable year of the 
payee?
    A. Withholding can be accomplished on a qualified total distribution 
that is paid in installments within one taxable year by either one of 
the following methods:
    Under Option 1, the tax on the first installment is calculated under 
the qualified total distribution table. The tax on each subsequent 
installment is calculated by finding the tax under the table on the 
cumulative amount of the installments for the year and subtracting the 
amount of tax already withheld from the tax due with respect to the 
cumulative amount of the installments.
    Under Option 2, the payor or plan administrator can withhold the tax 
on all installments except the final installment at a 10 percent rate. 
The tax on the final installment may be calculated by finding the tax 
under the qualified total distribution table on the cumulative amount of 
the installments for the year and subtracting the amount of tax already 
withheld from the installments. Option 2 may be used even if the amount 
of the tax that should be withheld from the final installment under the 
qualified total distribution tables exceeds the amount of the final 
installment. The plan administrator or payor will not be subject to 
penalties under section 6651 with respect to the difference between the 
tax that should have been withheld from

[[Page 428]]

the final installment under the qualified total distribution tables and 
the amount of the final installment.
    The effect of these alternatives is illustrated by the following 
example:

    An individual receives within one taxable year the balance to his 
credit under a plan described in section 401(a) or 403(a). The balance 
to his credit is paid in three installments of $1,000, $10,000, and 
$60,000. The amount of tax to be withheld from the installments may be 
calculated under Option 1 or Option 2.
    Option 1--Withholding on each installment computed by finding tax 
under qualified total distribution tables on the cumulative amount of 
the distribution and subtracting the tax already withheld.

 
 
 
I.:
  1. Amount of installment 1..................................    $1,000
  2. Withholding obligation on installment 1..................        50
II.:
  1. Amount of installments 1 and 2...........................    11,000
  2. Withholding obligation on installments 1 and 2...........       550
  3. Withholding paid on installment 1........................        50
  4. Withholding obligation on installment 2 (2 minus 3)......       500
III.:
  1. Amount of installments 1, 2, and 3.......................    71,000
  2. Withholding obligation on installments 1, 2, and 3.......     9,580
  3. Withholding paid on installments 1 and 2.................       550
  4. Withholding obligation on installment 3 (2 minus 3)......     9,030
                                                               ---------
    Total withholding obligation..............................     9,580
 

    Option 2--Withholding computed by withholding at 10 percent rate for 
all but the final installment. Withholding on the final installment 
computed by finding tax under qualified total distribution table for the 
cumulative amount of the distribution and subtracting the amount of tax 
already withheld:

 
 
 
I.:
  1. Amount of installment 1..................................    $1,000
  2. Withholding obligation on installment 1..................       100
II.:
  1. Amount of installment 2..................................    10,000
  2. Withholding obligation on installment 2..................     1,000
III.:
  1. Amount of installments 1, 2, and 3.......................    71,000
  2. Withholding obligation on installments 1, 2, and 3.......     9,580
  3. Withholding paid on installments 1 and 2.................     1,100
  4. Withholding obligation on installment 3 (2 minus 3)......     8,480
                                                               ---------
    Total withholding obligation..............................     9,580
 


    f-9. Q. A plan described in section 401 (a) invests in life 
insurance contracts for its participants. Each year the current cost of 
the life insurance element (PS 58 cost) is taxable to the participants 
under section 72. Is withholding required on this amount even though 
there is no amount actually distributed to the participant?
    A. No. Because the PS 58 costs are not distributed or deemed to be 
distributed, they are not designated distributions for which withholding 
is required.
    f-10. Q. The plan administrator or payor of a plan described in 
section 401 (a) has been properly reporting distributions on a multiple 
contract basis for purposes of section 72. How should the plan 
administrator or payor determine the amount of each payment that is 
includible in gross income for withholding purposes?
    A. In the absence of revenue rulings or regulations to the contrary, 
the plan administrator or payor of a plan that properly reports 
distributions on a multiple contract basis should use that method to 
determine the taxable portion of a payment for withholding purposes.
    f-11. Q. The plan administrator or payor of a plan described in 
section 401 (a) has been reporting distributions on a multiple contract 
basis for purposes of section 72 and has properly switched to the single 
contract method for reporting distributions. How should the plan 
administrator or payor determine the amount of each payment that is 
includible in gross income for withholding purposes?
    A. If a plan has properly switched from the multiple contract basis 
to the single contract basis for reporting distributions, the plan 
administrator or payor may assume that all amounts prior to the year of 
switch were reported by the payees on a multiple contract basis. 
Therefore, for example, in the case of an individual whose annuity 
payments have not commenced prior to the date of the switch to a single 
contract basis, the payee's investment in the contract can be assumed to 
have been recovered on a multiple contract basis prior to the year of 
the switch and on a single contract basis thereafter for purposes of 
determining the amount of each payment that is includible in gross 
income for withholding purposes. This rule applies even though payees 
may have amended their income tax returns for prior years to report all 
payments on a single contract basis.

[[Page 429]]

    f-12. Q. If a plan that makes payments subject to the withholding 
and notice requirements of section 3405 makes separate payments to the 
same individual as a retired participant and as a surviving spouse of a 
retired participant, must the two payments be aggregated for withholding 
purposes?
    A. No, unless the payor wishes to aggregate them.
    f-13. Q. An insurance company makes payments under certain variable 
annuity contracts. The Investment Company Act of 1940 (section 22(e)) 
applies to these variable annuity contracts and requires that the 
insurance company make a pay-out within 7 days after a payee requests a 
withdrawal from his contract. Under these circumstances, how may notice 
be provided to a payee of his right to elect out of withholding for a 
nonperiodic distribution?
    A. In this situation, the insurance company has only seven days in 
which to notify a payee of his right to elect out of withholding. It is 
not feasible for the insurance company to secure an election in writing 
unless the payee supplies the written election at the time he requests a 
withdrawal. Therefore, the notice and election can be provided in the 
following manner: (1) The insurance company may mail a notice to a payee 
on the day the request for withdrawal is received and (2) the notice may 
specify that unless the payee calls the company at a toll-free telephone 
number supplied on the notice within seven days of the date the request 
was received, the company will withhold from the distribution. Notice 
provided in this manner is deemed to satisfy the ``reasonable time'' 
requirement of question d-9. Insurance companies that encounter this 
problem are encouraged to supply an election form to a payee at the time 
an annuity contract is purchased. If a payee supplies an election with 
the request for withdrawal, notice still must be given but the insurance 
company may honor the election received if no other communication is 
received after notice is provided to the payee.
    f-14. Q. If an individual receives periodic payments from two or 
more plans of one member of a controlled group of corporations, separate 
periodic payments from two members of a controlled group of corporations 
out of one plan, or periodic payments from separate plans of two members 
of a controlled group, must the periodic payments be aggregated for 
withholding purposes?
    A. No, unless the plan administrator or payor wishes to aggregate 
the payments. Section 414(b) does not require that plans of a controlled 
group of corporations be aggregated for withholding purposes. The same 
rule applies to a group of trades or businesses under common control or 
an affiliated service group described in section 414 (c) or (m).
    f-15. Q. How is withholding appplied to a designated distribution 
from an individual retirement account (IRA) described in section 408(a) 
that is payable upon demand even though payments are scheduled to be 
made over a period certain greater than one year?
    A. Distributions from IRAs that are payable upon demand are not 
periodic payments taxable under section 72 because they do not 
constitute annuity contracts within the meaning of section 408(d)(2). 
Therefore, designated distributions from an IRA that are payable upon 
demand are treated as nonperiodic distributions subject to withholding 
at the 10% rate even if the distributions are paid over a period 
certain.
    f-16. Q. Under the rules of section 72, a portion of certain 
payments that may vary because of investment experience, cost of living 
indices, or similar criteria is treated as not received as an annuity. 
For withholding purposes, must these amounts be treated as nonperiodic 
distributions even though part of each payment is a periodic payment?
    A. No. For withholding purposes, amounts will be considered periodic 
payments even though a portion of each payment is treated as an amount 
not received as an annuity under Sec. 1.72-2(b)(3) of the Income Tax 
Regulations.
    f-17. Q. Is the payor of distributions under a funded nonqualified 
deferred compensation plan that are payable as an annuity and taxable 
under section 72 required to withhold under section 3405?
    A. Yes. Section 31.3401(a)-1(b)(1)(i) of the Employment Tax 
Regulations provides that any amounts received as an annuity and taxable 
under section 72

[[Page 430]]

are excepted from the general definition of wages. Therefore, to the 
extent that section 402(b) requires that distributions from nonqualified 
plans which are received as an annuity are taxable under the rules of 
section 72, section 3405 will apply. See, however, question a-18 for the 
rules relating to distributions from a nonqualified deferred 
compensation plan that are taxable under section 83. Therefore, whether 
the payor or plan administrator of a nonqualified plan is required to 
withhold under section 3402 or section 3405 depends upon what section of 
the Code governs the taxation of amounts contributed or distributed.
    f-18. Q. Are amounts paid in connection with a partial or complete 
surrender or upon the maturity or endowment of a commercial annuity 
subject to the new withholding rules?
    A. Yes. Amounts paid in connection with a partial or complete 
surrender or upon the maturity or endowment of a commercial annuity are 
subject to the new withholding rules to the extent that they are 
designated distributions. Thus, withholding is required on the complete 
or partial surrender of an annuity, life insurance or endowment contract 
to the extent they are designated distributions.
    f-19. Q. Are amounts paid in connection with a partial surrender of 
a commercial annuity periodic payments?
    A. Generally, no. Unless the amount paid in connection with the 
partial surrender is one of a series of payments payable over a period 
of greater than one year and taxable under section 72 as an amount 
received as an annuity, the amount paid is not a periodic payment.
    f-20. Q. Are amounts paid in connection with a partial or complete 
surrender of an annuity contract subject to the new withholding rules?
    A. Yes. Amounts paid in connection with a partial or complete 
surrender of an annuity contract are subject to the new withholding 
rules to the extent that they are designated distributions.
    f-21. Q. Is it reasonable to believe that amounts distributed in 
connection with a commercial annuity that was acquired on or before 
August 13, 1982, or are otherwise described in section 72(e)(5), which 
are not treated as amounts received as an annuity under section 72, will 
not be includible in the gross income of the recipient?
    A. Generally, yes. Under the rules of section 72(e) prior to the 
passage of TEFRA, amounts not received as an annuity were not taxable 
until the investment in the contract was recovered. Thus, for 
distributions that are not received as an annuity under a commercial 
annuity contract acquired on or before August 13, 1982, it is reasonable 
to believe that amounts distributed are not includible in the payee's 
gross income to the extent they represent unrecovered investment in the 
contract. The special transitional rule of question a-33, available for 
plan administrators, may be used until December 31, 1983, by payors of 
commercial annuities who lack records with regard to the payee's 
unrecovered investment in the contract.
    f-22. Q. For commercial annuity contracts entered into after August 
13, 1982, which are not described in section 72(e)(5), is it reasonable 
to believe that amounts distributed, which are not amounts received as 
an annuity under section 72, are not includible in gross income?
    A. Generally, no. TEFRA amended section 72(e) to provide that 
amounts not received as an annuity will be includible in gross income 
until all earnings or other amounts that are not part of the investment 
in the contract have been distributed. Thus, it is not reasonable to 
believe that amounts distributed in connection with a commercial annuity 
contract entered into after August 13, 1982, are excludible from gross 
income until all earnings or other amounts that are not part of the 
investment in the contract have been distributed. This new rule does not 
apply to distributions from commercial annuities described in section 
72(e)(5). Question f-21 provides the proper rule with respect to 
distributions from commercial annuities described in section 72(e)(5).
    f-23. Q. Is it reasonable to believe that amounts involved solely in 
connection with an exchange of commercial annuities under section 1035 
of the Code will not be includible in the gross income of the recipient?

[[Page 431]]

    A. Yes. Designated distributions include only amounts that it is 
reasonable to believe are includible in the gross income of the 
recipient. In the case of a commercial annuity exchange under section 
1035 in which no cash or other property is exchanged, it is reasonable 
to believe that no portion is includible in the gross income of a 
recipient. An annuity exchange includes an exchange of annuity, 
endowment, or life insurance contracts issued by a life insurance 
company licensed to do business under the laws of any State. Thus, such 
exchanges are not subject to the withholding rules of section 3405. 
However, see question e-8 concerning recordkeeping requirements with 
respect to the nontaxable exchange of commercial annuity contracts under 
section 1035.
    f-24. Q. Is it reasonable to believe that amounts distributed in 
connection with a surrender of a life insurance or endowment contract, 
or in connection with an exchange of life insurance or endowment 
contracts in which cash or other property is distributed, will not be 
includible in gross income?
    A. Generally, no. Amounts distributed in connection with the 
surrender of a life insurance or endowment contract, or in connection 
with an exchange of life insurance or endowment contracts in which cash 
or other property is distributed are includible in income to the extent 
that the amount received exceeds the policyholder's investment in the 
contract. However, if a life insurance or endowment contract issued 
before August 13, 1982, is surrendered within ten years of the date of 
its issuance, or is exchanged within ten years of the date of its 
issuance, the payor may assume that no amounts are includible in the 
gross income of the policyholder if the cash or other property received 
by the policyholder in connection with the surrender or exchange of the 
life insurance or endowment contract does not exceed $10,000. If a life 
insurance or endowment contract issued before August 13, 1982, is 
surrendered or exchanged ten years or more after the date of its 
issuance, the payor may assume that no amounts are includible in the 
gross income of the policyholder if the cash or other property received 
by the policyholder in connection with the surrender or exchange of the 
life insurance or endowment contract does not exceed $5,000. If the 
payor utilizes the special rule in the two preceding sentences, the 
payor must notify the policyholder, at the time described in question d-
4, that all or part of the amount distributed may be includible in the 
policyholder's gross income. See question f-23 for additional rules 
concerning certain exchanges of annuity contracts.
    f-25. Q. Do the requirements of section 3405(d)(10), relating to the 
time at which notice must be provided, also apply to the time at which 
an election out of withholding may be made?
    A. Generally, yes. For example, an individual may not at 
commencement of employment execute an election out of withholding to be 
honored by a plan administrator or payor when the individual terminates 
employment and receives a distribution from a deferred compensation 
plan. See, however, question f-13 for a special rule applicable to 
certain annuity contracts.
    f-26. Q. If a payor provided notice prior to January 1, 1983, but 
failed to include all of the information required by question d-18, may 
the abbreviated notice of question d-27 be supplied when making the 
first payment?
    A. Yes, as long as the abbreviated notice contains all of the 
information required by question d-18 that was not supplied with the 
earlier notice.
    f-27. Q. When must notice of the right to elect not to have 
withholding apply be given as to designated distributions from an 
individual retirement account (IRA) described in section 408(a) that is 
payable on demand even though payments are scheduled to be made over a 
period greater than one year?
    A. Under question f-15, designated distributions from an IRA that 
are payable upon demand are treated as nonperiodic distributions subject 
to withholding at the 10 percent rate even if the distributions are paid 
over a certain period. Section 3405(d)(10)(B)(i) requires the payor of a 
nonperiodic distribution to transmit to the payee notice, at the time of 
the distribution or at such earlier time as may be provided in 
regulations, of the right to elect not to have withholding apply. If 
distributions from an IRA have begun and are

[[Page 432]]

scheduled to be made at quarterly or more frequent intervals, then, in 
lieu of providing a notice at the time of each distribution, the payor 
may furnish a blanket notice applicable to all such distributions that 
are expected to be made to the payee from the account during a calendar 
year. Such a blanket notice must be furnished at a reasonable time 
before the first payment made in the calendar year to which the notice 
relates, except that a blanket notice relating to distributions from an 
IRA during 1983 may be made by the later of October 1, 1983, or the date 
of the first designated distribution from the IRA.

                           g. Delay Procedures

    g-1. Q. When does the new law take effect?
    A. In general, withholding is required on any designated 
distributions made after December 31, 1982.
    g-2. Q. Is there a penalty for failure to withhold under section 
3405 on designated distributions made after December 31, 1982?
    A. Yes. In general, section 6651 governs the failure to file a 
return and to withhold tax under section 3405.
    g-3. Q. Are there any circumstances under which the withholding and 
notice requirements of section 3405 may be delayed to a date later than 
January 1, 1983?
    A. Yes. The Secretary has authority to delay, but not beyond June 
30, 1983, the application of these withholding provisions to any payor 
or plan administrator if the payor or plan administrator can establish 
that he is unable to comply with these provisions without undue 
hardship.
    g-4. Q. Under what circumstances may a payor or plan administrator 
who is experiencing undue hardship in complying with section 3405 delay 
implementation of the notice and withholding requirements?
    A. For those payors and plan administrators who experience undue 
hardship in complying with the provisions of section 3405, the 
withholding and notice requirements of section 3405 may be delayed so 
long as undue hardship exists up to July 1, 1983.
    g-5. Q. Must approval be obtained from the Internal Revenue Service 
to be entitled to the delay referred to in question g-4 if the delay 
will be no later than April 1, 1983?
    A. No. If a payor or plan administrator can establish that undue 
hardship would result if required to comply with the provisions of this 
section before April 1, 1983, prior approval from the Internal Revenue 
Service is not required and should not be requested. For purposes of 
this delay up to April 1, 1983, undue hardship will be presumed to 
exist, in the absence of bad faith, as long as the payor or plan 
administrator can establish that at least one of the conditions listed 
in question g-6 is present. The payor or plan administrator should 
prepare and retain a statement of undue hardship as described in 
question g-9 and should maintain any documents necessary to support the 
representations made in that statement.
    g-6. Q. What constitutes undue hardship?
    A. For purposes of these delay procedures, the term ``undue 
hardship'' generally means more than an inconvenience or increased costs 
to the payor or plan administrator. In the case of a payor or plan 
administrator who complies with the notice and withholding requirements 
of section 3405 on or before April 1, 1983, undue hardship will be 
presumed to exist if one or more of the following conditions is present:
    (1) The payor or plan administrator encounters significant delay or 
other substantial difficulty in obtaining authorization for funds to 
develop forms, to mail notices, to process responses, to develop new 
computer programs, or to obtain and train personnel to implement 
withholding.
    (2) The payor or plan administrator incurs substantial increases in 
unbudgeted costs to develop forms, to mail notices, to process 
responses, to develop new computer programs, or to obtain and train 
personnel.
    (3) There is difficulty in obtaining trained personnel, including 
professional or semi-professional individuals, whose skills are 
necessary to implement withholding.
    (4) Training new or present employees or hiring new employees to 
implement withholding would cause substantially increased costs or would 
disrupt

[[Page 433]]

the payor's or plan administrator's operations, and such disruption or 
increased costs would not occur if withholding were implemented at a 
later date.
    (5) Plan benefits change due to a collective bargaining agreement 
concluded between October 1, 1982, and April 1, 1983.
    (6) A payor who provided notice prior to January 1, 1983, receives a 
substantial number of inquiries from payees. These inquiries indicate 
the payees' lack of understanding of the new withholding provisions and 
the payor cannot answer all questions and receive responses by January 
1, 1983.
    (7) The payor or plan administrator is unable to implement 
withholding on account of the occurrence of an event, such as fire, 
flood, earthquake, explosion, or strike, beyond the control of the payor 
or plan administrator.
    (8) The payor or plan administrator is scheduled to install a new 
data processing hardware package or system between December 1, 1982, and 
July 1, 1983, that will be used for the process of pension withholding.
    An examble of a circumstance not considered as resulting in undue 
hardship would be changes in the withholding tables effective July 1, 
1983.
    The following examples illustrate situations in which an undue 
hardship that will permit delay in implementation of the notice and 
withholding provisions exists:

    Example 1. A is the payor and plan administrator of a deferred 
compensation plan that is the subject of a collective bargaining 
agreement. The collectively bargained plan has fewer than 100 
participants receiving annuity payments. All of A's available budget is 
scheduled to be used to pay plan benefits and administrative costs, and 
no funds are available to implement the new withholding requirements. A 
must obtain authorization to expend funds to implement withholding. 
Meetings at which A can obtain such authorization are held August 1 and 
February 1 of each year. After obtaining authorization on February 1, 
1983, A will need to develop and mail withholding notices and elections, 
process responses and determine the amount to be withheld from each 
payee's annuity payment. A can implement withholding on April 1, 1983, 
without substantially disrupting its operations, but earlier 
implementation would disrupt its normal operations. Under these facts, A 
experiences undue hardship until at least April 1, 1983, as a result of 
the circumstances described in items (1) and (4) of question g-6.

    Example 2. B, a bank, is a payor of pensions and annuities under 
plans described in section 401(a). The plan administrators of all these 
plans have transferred liability to B for withholding under section 
3405. After T.D. 7839, relating to withholding from pensions, annuities 
and other deferred income, was published in the Federal Register on 
October 14, 1982, B determines that the withholding provisions can be 
implemented before April 1, 1983, on a reasonaable schedule, without 
substantial increases in costs or disruption of daily bank operations, 
according to the following schedule:
    (a) B's counsel analyzes regulations and reports requirements to 
operations personnel; operations personnel develop new Forms, which are 
reviewed and revised by management and legal personnel; new forms are 
printed; personnel begin reprogramming computers, 8 weeks (Dec 9, 1982).
    (b) Forms distributed to branch offices, 1 week (Dec 16, 1982).
    (c) Forms mailed to payees, 1 week (Dec 23, 1982).
    (d) Time allowed for response to mailing of notices, answering 
questions, mailing follow-up notices to payees, 6 weeks (Feb 3, 1983).
    (e) Withholding calculated and entered into payment system, 6 weeks 
(Mar 17, 1983).
    Total: 22 weeks.
    Implementation is scheduled to begin March 17, 1983. Implementation 
prior to March 17, 1983, would substantially increase costs and would 
disrupt B's operations.
    Under these facts, B experiences undue hardship under item (4) of 
question g-6, up to March 17, 1983, the scheduled date of 
implementation.

    g-7. Q. If a payor or plan administrator qualifies for the delay 
described in question g-5, is there a procedure for requesting an 
additional delay up to July 1, 1983?
    A. Yes. However, any request made for this additional delay will be 
considered on a case-by-case basis. It is anticipated these requests 
will be carefully scrutinized and generally will be granted only in 
circumstances where the payor or plan administrator can reasonably 
expect that more than one of the conditions described in question g-6 
will exist on or after April 1, 1983, and up to July 1, 1983.
    g-8. Q. How may a payor or plan administrator request this 
additional delay of up to 3 months for undue hardship?
    A. The payor or plan administrator may request an additional delay 
of up to 3 months by filing in duplicate a

[[Page 434]]

written statement of undue hardship signed under penalties of perjury 
with the director of the service center where the payor or plan 
administrator files Form 941 or Form 941E. This written request must 
state on the envelope and at the top of the letter ``PENSION 
WITHHOLDING: Undue Hardship'' and must include all the information 
required in a statement of undue hardship as described in question g-9.
    g-9. Q. What information must the statement of undue hardship 
include?
    A. The statement of undue hardship must include the following 
information:
    (1) The name, address, and taxpayer indentification number of the 
payor or plan administrator.
    (2) A complete statement of the facts upon which the payor is 
relying to show why a delay beyond April 1, 1983, is warranted. This 
statement must include as many of the conditions of undue hardship 
listed in question g-6 as pertain to the payor or plan administrator.
    (3) A schedule or plan of implementation showing dates on which the 
payor will implement the provisions of this section, with no date later 
than July 1, 1983. This schedule should provide a complete timetable 
that includes such items as development of forms, mailing of notices, 
time for responses, programming computers, and calculation of 
withholding.
    (4) An explanation of the steps taken which demonstrate the payor's 
or plan administrator's good faith attempt to comply with these notice 
and withholding requirements.
    g-10. Q. When must the plan administrator or payor file this request 
for delay and statement of undue hardship?
    A. Payors or plan administrators must file the statement of undue 
hardship on or before March 1, 1983. However, no request for delay may 
be filed with the Internal Revenue Service before January 1, 1983.
    g-11. Q. Who must request the delay?
    A. The delay should be requested by the payor or plan administrator 
who is actually liable for withholding. Therefore, generally the payor 
should request the delay. However, in the case of a distribution from a 
plan described in section 401(a), section 403(a), or section 301(d) of 
the Tax Reduction Act of 1975, the plan administrator is liable for 
withholding and should request the delay unless the plan administrator 
has transferred liability for withholding to the payor under section 
3405(c).
    g-12. Q. If a plan administrator has not yet transferred liability 
for withholding under section 3405(c) or has inadequately transferred 
liability, and the payor requests a delay, will the request for delay be 
treated as if the plan administrator had requested it?
    A. Yes.
    g-13. Q. If a plan administrator and a payor both file requests for 
delay and statements of undue hardship with respect to the same plan, 
will there be two separate three-month extensions?
    A. No. A request for delay will delay the effective date only up to 
three months and in no case will it extend it past July 1, 1983.
    g-14. Q. What are the consequences for failure to file the request 
for delay and statement of undue hardship in a timely manner?
    A. If the request for delay and statement of undue hardship are not 
filed in a timely manner, the payor or plan administrator will not be 
entitled to any delay beyond the delay to which he may be entitled under 
question g-5. This rule will not apply in the case of an event such as 
strike, fire, flood, earthquake, or explosion that occurs after March 1, 
1983, if compliance with the withholding provisions would have been 
possible absent the occurrence of the event.
    g-15. Q. Will a payor or plan administrator receive a response from 
the Internal Revenue Service as to whether a delay after April 1, 1983, 
has been granted?
    A. Yes. Since these requests for delay will be reviewed on a case-
by-case basis, the payor or plan administrator will receive a response 
by April 1, 1983, as to whether or not a requested delay has been 
granted. If the request for delay is denied by the director of the 
service center, the payor or plan administrator is required to begin 
withholding by the later of April 1, 1983, or 10 days from the date on 
the response.

[[Page 435]]

No penalties will be imposed under section 6651 for failure to withhold 
between April 1, 1983, and the day 10 days from the date on the 
response.
    g-16. Q. If the director of the service center grants a delay up to 
July 1, 1983, must the payor or plan administrator retain a copy of the 
response from the Internal Revenue Service?
    A. Yes. In addition, the payor or plan administrator must attach a 
copy of the response to the first Form 941 or 941E filed after the 
response is received.
    g-17. Q. If a plan administrator or payor begins withholding before 
April 1, 1983, or July 1, 1983, can the payee request a refund from the 
plan administrator or payor of the amounts withheld?
    A. No. Because plan administrators and payors are required to comply 
with the withholding and notice requirements as soon as they no longer 
experience undue hardship, they cannot refund any amounts withheld to a 
payee, except as provided in the regulations under section 6413 (in the 
case of a mistake by the payor or plan administrator).
    g-18. Q. If a payor or plan administrator properly files the 
statement of undue hardship and receives a delay as provided in question 
g-7, will withholding from payments made after the delay period be 
required to make up for amounts that would have been withheld if there 
had been no delay granted?
    A. No. No catch-up withholding is required for plan administrators 
or payors who are entitled to a delay up to April 1, 1983, as provided 
in question g-5 or granted a delay up to July 1, 1983, as provided in 
question g-7. However, if a payor or plan administrator who is entitled 
to a delay up to April 1, 1983, as provided in question g-5, is not 
granted a delay up to July 1, 1983, but is unable to implement 
withholding until July 1, 1983, despite a good faith effort to comply, 
no penalties will be imposed under section 6651 if the payor or plan 
administrator withholds between July 1, 1983, and December 31, 1983, 
both the amounts required to be withheld during that period and the 
amounts that should have been withheld between April 1, 1983, and June 
30, 1983.
    g-19. Q. If a payor or plan administrator does not receive and is 
not otherwise entitled to a delay under these regulations, will 
withholding from future payments be required to make up for amounts that 
would have been withheld if there had been no delay?
    A. Yes, to the extent possible. An example of a situation in which a 
payor or plan administrator would not be able to withhold enough from 
subsequent payments to satisfy pre-July 1, 1983, withholding obligations 
is one where the recipient of a single life annuity died on July 1, 
1983, before the payor or plan administrator began to withhold income 
tax from the annuity. In addition, a payor or plan administrator would 
not be able to satisfy the pre-July 1, 1983, withholding requirements if 
the payee elects out of withholding before all of the make-up 
withholding has been accomplished.
    g-20. Q. What are the consequences if the payor or plan 
administrator cannot establish undue hardship and does not comply on 
January 1, 1983?
    A. In general, if the payor or plan administrator cannot establish 
undue hardship and fails to withhold beginning January 1, 1983, the 
payor or plan administrator will be liable for the tax that should have 
been withheld and, in addition, the penalties provided in section 6651 
will apply. However, the payor or plan administrator will not be liable 
for penalties for failure to file a return and for failure to pay the 
tax if a good faith effort is made to comply, and if, to the extent 
possible, withholding from post-implementation payments is sufficient to 
satisfy the pre-implementation withholding obligation. Whether the payor 
or plan administrator has made a good faith effort to comply depends on 
the facts and circumstances of each case. The facts and circumstances 
that will be considered include, but are not limited to, those 
conditions listed in question g-6.
    g-21. Q. If a payor or plan administrator is required to make up 
amounts that should have been withheld, must he withhold from the first 
subsequent payment the entire amount that should have been previously 
withheld?
    A. No. A payor or plan administrator may withhold a proportional 
amount

[[Page 436]]

out of each subsequent payment made before January 1, 1984.
    g-22. Q. Will the notice requirements of section 3405 apply before 
July 1, 1983, with respect to recipients of periodic payments that total 
less than $5400 per year?
    A. No.
    g-23. Q. Will the notice and withholding requirements of section 
3405 apply before July 1, 1983, with respect to payments to nonresident 
alien individuals?
    A. No.
    g-24. Q. Does a payor or plan administrator who requested a delay 
prior to the publication of these procedures in the Federal Register 
need to resubmit the request in light of these procedures?
    A. Yes. In order to be entitled to a delay, payors and plan 
adminstrators must follow the procedures required by these temporary 
regulations.
    g-25. Q. Will the notice and withholding requirements of section 
3405 apply before January 1, 1984, with respect to the exchange or 
complete or partial surrender of a commercial annuity under which the 
recipient had not irrevocably chosen, prior to January 1, 1984, to 
receive payments in the form of an annuity?
    A. In the case of the exchange or complete or partial surrender of a 
commercial annuity under which the recipient had not irrevocably chosen, 
prior to January 1, 1984, to receive payments in the form of an annuity, 
the application of the notice and withholding provisions of this section 
may be delayed, so long as undue hardship exists, up to January 1, 1984. 
Prior approval from the Internal Revenue Service is not required for 
such delay, and should not be requested. For purposes of this delay, 
undue hardship will be presumed to exist, in the absence of bad faith, 
so long as the payor can establish that at least one of the conditions 
in question g-6 is present. The payor should prepare and retain a 
statement of undue hardship as described in question g-9 and should 
maintain any documents necessary to support the representations made in 
that statement.

[T.D. 7839, 47 FR 45868, Oct. 14, 1982; 47 FR 47241, Oct. 25, 1982; as 
amended by T.D. 7858, 47 FR 54066, Dec. 1, 1982; 47 FR 57021, Dec. 22, 
1982; T.D. 7904, 48 FR 35091, Aug. 3, 1983; 48 FR 36449, Aug. 11, 1983. 
Redesignated by T.D. 8873, 65 FR 6007, Feb. 8, 2000]

    Effective Date Note: By T.D. 8873, 65 FR 6007, Feb. 8, 2000, 
Sec. 35.3405-1T was redesignated from Sec. 35.3405-1, effective Jan. 1, 
2001.



PART 35a--TEMPORARY EMPLOYMENT TAX REGULATIONS UNDER THE INTEREST AND DIVIDEND TAX COMPLIANCE ACT OF 1983--Table of Contents




Sec.
35a.3406-2  Imposition of backup withholding for notified payee 
          underreporting of reportable interest or dividend payments.
35a.9999-0  Effective date.
35a.9999-1  Questions and answers concerning the due diligence 
          requirement and the certification requirements in connection 
          with backup withholding and other related issues.
35a.9999-2  Questions and answers concerning due diligence and issues in 
          connection with backup withholding.
35a.9999-3  Questions and answers concerning backup withholding.
35a.9999-3A    Question and answer relating to exemption from backup 
          withholding for certain principal payments made outside the 
          United States by brokers on certain obligations.
35a.9999-4T    Questions and answers relating to the application of 
          information reporting and backup withholding to payments by 
          foreign offices of United States and foreign brokers and by 
          United States offices of banks and brokers, and other related 
          matters (temporary).
35a.9999-5  Questions and answers relating to repeal of 30 percent 
          withholding by section 127 of the Tax Reform Act of 1984 and 
          to the application of information reporting and backup 
          withholding in light of such repeal.

    Authority: 26 U.S.C. 7805; Sec. 35a.3406-2 also issued under 26 
U.S.C. 3406(c)(3)(D) and 3406(i).



Sec. 35a.3406-2  Imposition of backup withholding for notified payee underreporting of reportable interest or dividend payments.

    (a) Requirement that a payor backup withhold due to a notified payee 
underreporting--(1) In general. Except as otherwise provided in 
paragraph (a)(5) of this section, backup withholding under section 
3406(a)(1)(C) applies to any reportable interest or dividend payment (as 
defined in section 3406(b)(2) and paragraph (a)(4) of this section) made 
to a payee, if the Internal Revenue Service or a broker (as defined in 
section 3406(h)(5) and paragraph (a)(7) of this section and pursuant to 
section 3406(d)(2)(B)(ii)(III)) notifies a payor (as defined in section 
3406(h)(4) and in paragraph (a)(6) of this section) that

[[Page 437]]

the payee is subject to backup withholding due to a notified payee 
underreporting (as defined in paragraph (a)(2) of this section). The 
payor is required under section 3406(c)(4) and paragraph (c)(1) of this 
section to inform the payee that backup withholding under section 
3406(a)(1)(C) has begun. The requirements for the notice that a payor 
must send to a payee are set forth in paragraph (c) (2) and (3) of this 
section. The period for which backup withholding is required due to a 
notified payee underreporting is described in section 3406(e)(3)(A) and 
in paragraph (e) of this section. See section 3406(c)(3) and paragraph 
(g) of this section for the rules regarding how a payee may obtain a 
determination from the Internal Revenue Service that withholding under 
section 3406(a)(1)(C) be stopped or not started.
    (2) Definition of notified payee underreporting. The term ``notified 
payee underreporting'' means that the Internal Revenue Service has--
    (i) Determined that there was a payee underreporting as defined in 
paragraph (a)(3) of this section,
    (ii) Mailed at least four notices to the payee (over a period of at 
least 120 days) with respect to the underreporting as prescribed in 
paragraph (f)(1) of this section, and
    (iii) Assessed any deficiency attributable to the underreporting in 
the case of any payee who has filed a return.
    (3) Definition of a payee underreporting. The term ``payee 
underreporting'' means that the Internal Revenue Service has determined, 
for a taxable year, that--
    (i) A payee failed to include in his return of tax under chapter 1 
of the Internal Revenue Code for such year any portion of a reportable 
interest or dividend payment required to be shown on such tax return, or
    (ii) A payee may be required to file a return for such year and to 
include a reportable interest or dividend payment in such return, but 
failed to file such return.


See paragraph (a)(5) of this section for certain payments to be taken 
into account in determining whether there is payee underreporting even 
though those payments may not be defined as reportable interest or 
dividend payments in paragraph (a)(4) of this section or even though 
backup withholding under section 3406(a)(1)(C) may not apply to such 
payments.
    (4) Definition of a reportable interest or dividend payment--(i) In 
general. See section 3406(b)(2), A-2 of Sec. 35a.9999-1, A-5 of 
Sec. 35a.9999-3, and A-15 of Sec. 35a.9999-2 for the definition of 
reportable interest or dividend payment.
    (ii) Exceptions--(A) Patronage dividends. Patronage dividends are 
treated as reportable interest or dividend payments for purposes of 
backup withholding under section 3406(a)(1)(C) only if 50 percent or 
more of the reportable amount is paid in money or by qualified check (as 
defined in section 1388(c)(4)), and then only to the extent that the 
payment is in money or by qualified check. See the second paragraph in 
A-10 of Sec. 35a.9999-3 for an example of how this rule applies.
    (B) Window payments. Pursuant to section 3406(b)(7), window payments 
as defined in A-42 of Sec. 35a.9999-1 and A-9 of Sec. 35a.9999-2 are not 
treated as reportable interest or dividend payments for purposes of 
backup withholding under section 3406(a) (1)(C).
    (5) Reportable interest or dividend payments excluded from backup 
withholding. The following reportable interest or dividend payments are 
not subject to backup withholding:
    (i) Certain dividends. Certain dividend payments as defined in A-9 
of Sec. 35a.9999-3.
    (ii) Minimal payments. Minimal payments as defined in A-19 of 
Sec. 36a.9999-2 if the payor elects not to impose backup withholding on 
such amounts.
    (iii) Original issue discount. Original issue discount as defined in 
section 1273, unless there is a payment in cash. See A-15 of 
Sec. 35a.9999-2.
    (iv) Payments subject to other withholding. Payments already subject 
to withholding under another provision of the Internal Revenue Code.

Reportable minimal payments (to the extent reported on an information 
return), patronage dividends, original issue discount, and window 
payments shall be taken into account in determining whether 
underreporting (as defined in paragraph (a)(3) of this section) has 
occurred, even though those

[[Page 438]]

payments may not be defined as reportable interest or dividend payments 
under paragraph (a)(4) of this section or even though backup withholding 
under section 3406(a)(1)(C) may not apply to such payments.
    (6) Definition of payor. See section 3406(h)(4), A-41 of 
Sec. 35a.9999-1, and A-1 of Sec. 35a.9999-3 for the definition of payor. 
The term payor includes a broker who holds an instrument in street name.
    (7) Definition of broker. See section 3406(h)(5) for the definition 
of broker.
    (b) Notice to payors and brokers regarding backup withholding--(1) 
Notice from the Internal Revenue Service. The Internal Revenue Service 
will notify--
    (i) Payors to begin backup withholding on reportable interest or 
dividend payments due to a notified payee underreporting pursuant to 
section 3406(a)(1)(C); and
    (ii) Brokers pursuant to section 3406(c)(5) that a payee is subject 
to backup withholding under section 3406(a)(1)(C).
    (2) Notice from a broker. A broker who receives a notice from the 
Internal Revenue Service that a payee is subject to backup withholding 
due to a notified payee underreporting and through whom the payee 
subsequently acquires a readily tradable instrument (as defined in 
section 3406(h)(6)) with respect to which the broker is not the payor is 
required to notify the payor of that instrument that the payee is 
subject to backup withholding under section 3406(a)(1)(C) in the time 
and manner provided in A-41 of Sec. 35a.9999-1.
    (3) Accounts subject to backup withholding. (i) In general. After 
receiving notice from the Internal Revenue Service or from a broker, as 
provided in section 3406(d)(2)(B) and paragraphs (b) (1)(i) and (2) of 
this section, that a payee is subject to backup withholding under 
section 3406(a)(1)(C), payors are required to withhold 20 percent of all 
reportable interest or dividend payments subject to backup withholding 
made with respect to all accounts of the payee.
    (ii) Joint accounts. Payors are required to withhold on joint 
accounts if the payee subject to backup withholding under section 
3406(a)(1)(C) is the first person listed on the account at the time the 
payor receives the notice to begin backup withholding. Backup 
withholding shall continue to apply to reportable interest and dividend 
payments made to that account even if the order of the names on the 
account is subsequently changed, provided that the name of the payee 
subject to backup withholding remains on the account.
    (iii) Exception. Payors are not requied to withhold on reportable 
interest or dividend payments made with respect to an account of the 
payee that could not be located with reasonable care. The payor will be 
considered to have exercised reasonable care if the payor uses the name 
and taxpayer identification number (or names and taxpayer identification 
numbers if a joint return was filed by the payees) provided on the 
notice from the Internal Revenue Service or from a broker as prescribed 
in paragraphs (b) (1)(i) and (2) of this section and in certain 
circumstances identified in this paragraph (b)(3)(iii) any account 
numbers provided by the Internal Revenue Service in locating all 
accounts of a payee or payees. If a payee uses a different name on an 
account than the name stated on the notice from the Internal Revenue 
Service or from a broker (for instance, due to marriage or adoption) and 
the payor can associate both names with the payee using records kept in 
the ordinary course of business, the payor will be treated as exercising 
reasonable care if the payor uses both names to locate accounts of the 
payee. If the taxpayer identification number is not provided to the 
payor or broker by the Internal Revenue Service, or if the taxpayer 
identification number provided by the Internal Revenue Service does not 
match the taxpayer identification number of the payee on the records 
that the payor or broker maintains in the ordinary course of business, 
the payor or broker is required to use any account numbers provided by 
the Internal Revenue Service to identify the payee and the payee's 
taxpayer identification number. This information must be used by the 
payor to locate other accounts of the payee and by the broker to locate 
the payors with respect to whom the payee subsequently

[[Page 439]]

acquires a readily tradable instrument through that broker.
    (c) Notice from payors of backup withholding due to a payee 
underreporting--(1) In general. A payor is required under section 
3406(c)(4) to notify the payee in accordance with paragraph (c)(2) of 
this section that backup withholding has begun because of a notified 
payee underreporting. Payors who are notified by a broker that a payee 
is subject to backup withholding under section 3406(a)(1)(C) are also 
required to send the notice in accordance with paragraph (c)(2) of this 
section. As a result, the notice requirements provided in A-39 of 
Sec. 35a.9999-1 and in the appendix to Sec. 35a.9999-2 shall not apply 
to those payors notified by a broker that a payee is subject to backup 
withholding under section 3406(a)(1)(C). The payor must send the notice 
required by paragraph (c)(2) of this section to the payee no later than 
15 days after the date that the payor makes the first payment subject to 
backup withholding under section 3406(a)(1)(C). The payor must send the 
notice of backup withholding by first-class mail to the payee at his 
last known address. Rules similar to the rules in A-17, A-18, A-19, and 
A-20 of Sec. 35a.9999-1 shall apply to the requirement to provide notice 
by first-class mail.
    (2) Form of the notice to the payee with respect to notified payee 
underreporting. The notice to the payee required by paragraph (c)(1) of 
this section must state--
    (i) That the Internal Revenue Service has given notice that the 
payee has underreported reportable interest or dividends;
    (ii) That, as a result of such underreporting, the payor is required 
under section 3406(a)(1)(C) of the Internal Revenue Code to withhold 20 
percent of reportable interest and dividend payments made to the payee 
no later than the close of the day 30 days after the date that the payor 
received the notice;
    (iii) The date that the payor received the notice to begin backup 
withholding under 3406(a)(1)(C);
    (iv) That the payee must obtain a determination from the Internal 
Revenue Service in order to stop the backup withholding under section 
3406(a)(1)(C); and
    (v) That while he is subject to backup withholding due to payee 
underreporting, the payee may not certify to a payor making reportable 
interest or dividend payments (or to a broker acquiring a readily 
tradable instrument for the payee) that he is not subject to backup 
withholding under section 3406(a)(1)(C). See section 3406(a)(1)(D) for 
the backup withholding rules with respect to a payee's failure to make 
the certification under section 3406(a)(1)(D).
    (3) Exceptions. A notice provided to a payee on or before April 23, 
1987, will be deemed to satisfy the provisions of paragraph (c)(2) of 
this section if it informs the payee that the payor has been instructed 
by the Internal Revenue Service to start backup withholding on 
reportable interest or dividend payments to the payee. If a payor who 
has started backup withholding due to notified payee underreporting on 
or before April 23, 1987, has not provided adequate notice to the payee 
on or before April 23, 1987, then the payor must provide notice to the 
payee in the manner prescribed in paragraph (c)(2) of this section by 
the date that is 45 days after April 23, 1987.
    (d) Notice to stop backup withholding--(1) In general. The Internal 
Revenue Service will provide written certification to the payee that 
backup withholding is to stop and will notify the payors who were 
contacted pursuant to paragraph (b) of this section to stop withholding 
after the Internal Revenue Service makes a determination under paragraph 
(g) of this section that backup withholding with respect to a payee 
should stop. The Internal Revenue Service will also notify the brokers 
who were contacted pursuant to paragraph (b) of this section that the 
payee is no longer subject to backup withholding under section 
3406(a)(1)(C) and that the brokers are no longer obligated to provide 
notices to payors under paragraph (b)(2) of this section. A broker who 
receives certification under this section from the Internal Revenue 
Service is not required to provide the certification to any payors to

[[Page 440]]

which the broker has previously provided the notice required under 
paragraph (b)(2).
    (2) Date notice to stop withholding will be provided--(i) 
Underreporting corrected or bona fide dispute. If the Internal Revenue 
Service makes a determination as set forth in paragraph (g)(1) (ii) or 
(iv) of this section during the 12-month period ending on October 15, of 
any calendar year, the Internal Revenue Service will provide the 
certification or notice required by paragraph (d)(1) of this section no 
later than December 1 of such calendar year.
    (ii) No underreporting or undue hardship. If the Internal Revenue 
Service makes a determination as set forth in paragraph (g)(1) (i) or 
(iii), the Internal Revenue Service will provide the notices required by 
paragraph (d)(1) of this paragraph no later than the 45th day after the 
day on which the Internal Revenue Service makes its determination.
    (e) Period during which withholding is required--(1) In general. 
Upon receiving notice from the Internal Revenue Service after April 23, 
1987, to begin backup withholding under section 3406(a)(1)(C) or 
notification from a broker stating that the payee is subject to backup 
withholding under section 3406(a)(1)(C), the payor must impose backup 
withholding on all reportable interest and dividend payments made to the 
payee during the period beginning after the close of the 30th day after 
the day on which the payor receives the notice provided in paragraph (b) 
(1)(i) or (2) of this section and ending as of the close of the day 
before the stop date (as described in paragraph (e)(2) of this section). 
Pursuant to section 3406(e)(5)(C), the payor may elect to begin backup 
withholding at any time during the 30-day period described in this 
paragraph.
    (2) Stop date--(i) Underreporting corrected or bona fide dispute. In 
the case of a determination that the underreporting has been corrected 
or that a bona fide dispute exists (as defined in paragraphs (g)(1)(ii) 
or (iv) of this section), the stop date is--
    (A) January 1 following the 12-month period ending on October 15th 
of any calendar year in which the determination has been made or, if 
later,
    (B) The day that is 30 days after the earlier of--
    (1) The date on which the payor receives written notification from 
the Internal Revenue Service (under paragraph (d)(2) of this section) 
that withholding is to stop; or
    (2) The date on which the payor receives a copy of the written 
certification provided to the payee by the Internal Revenue Service that 
withholding is to stop.
    (ii) No underreporting or undue hardship. In the case of a 
determination that no payee underreporting occurred or that an undue 
hardship exists or could exist (as defined in paragraph (g)(1)(i) or 
(iii) of this section), the stop date is that date specified in 
paragraph (e)(2)(i)(B) of this section.
    (iii) Payor election to shorten or eliminate grace period. The payor 
with respect to any payee may elect to determine the stop date without 
regard to the grace period provided in section 3406(e)(5)(B) (i.e., 
without regard to the words ``the day that is 30 days after'' in 
paragraph (e)(2)(i)(B) of this section) or by substituting a shorter 
grace period.
    (iv) Examples. The provisions of paragraph (e)(2)(i) may be 
illustrated by the following examples:

    Example 1. The Internal Revenue Service makes a determination by 
October 15, 1987, that any underreporting with respect to A has been 
corrected. X, a payor who has been notified to backup withhold on 
payments of interest to A due to notified payee underreporting, receives 
written notice from the Internal Revenue Service on December 1, 1987, 
informing X that A is no longer subject to backup withholding under 
section 3406(a)(1)(C) and that X must stop backup withholding as of the 
close of December 31, 1987, or if later, the earlier of the close of the 
day 30 days after receipt of the notice from the Internal Revenue 
Service or receipt of the copy of the written certification provided to 
the payee by the Internal Revenue Service. The stop date, as provided in 
paragraph (e)(2)(i)(A) of this section, is January 1, 1988, and the 
payor must stop backup withholding as of the close of December 31, 1987.

    Example 2. Assume the same facts as in Example 1 except that X, due 
to a change of address or for other reasons, does not receive the notice 
from the Internal Revenue Service to stop backup withholding until 
December 15, 1987. In addition, A does not provide X with a copy of the 
certification that was provided to A by the Internal Revenue Service 
until December 15, 1987. The stop date, as

[[Page 441]]

provided in paragraph (e)(2)(i)(B) of this section, is January 14, 1988 
(30 days after December 15, 1987), because that date is later than 
January 1, 1988. However, if a payor elects pursuant to section 
3406(e)(5)(C) and paragraph (e)(2)(iii) of this section to determine the 
stop date without regard to that 30-day grace period, the stop date is 
January 1, 1987.

    Example 3. Assume the same facts as in Example 2 except that on 
December 10, 1987 (rather than on December 15, 1987), A provides X with 
a copy of the certification from the Internal Revenue Service. The stop 
date, as provided in paragraph (e)(2)(i)(B) of this section, is January 
9, 1988 (30 days after December 10, 1987), because that date is earlier 
than January 14, 1988 (30 days after the day X received notice from the 
Internal Revenue Service), but later than January 1, 1988.

    (f) Notice to payees from the Internal Revenue Service--(1) Notice 
period. After the Internal Revenue Service determines that a payee 
underreporting exists as defined in paragraph (a)(3) of this section, 
the Internal Revenue Service, pursuant to section 3406(c)(1)(B), will 
mail to the payee at least four notices over a period of at least 120 
days (hereafter referred to as the ``notice period'') before payors and 
brokers will be notified that the payee is subject to backup withholding 
due to a notified payee underreporting as provided in paragraph (b)(1) 
of this section. The notices may be incorporated with other notices 
provided to the payee by the Internal Revenue Service.
    (2) Payee subject to withholding. After the Internal Revenue Service 
provides the notices described in paragraph (f)(1) of this section, the 
Internal Revenue Service will send the notices required by paragraph (b) 
of this section unless--
    (i) A payee obtains a determination under paragraph (g) of this 
section, or
    (ii) In the case of a payee who has filed a tax return, the Internal 
Revenue Service has not assessed the deficiency attributable to the 
underreporting.
    (3) Disclosure of names of payors and brokers. The Internal Revenue 
Service pursuant to section 3406(c)(5) may require a payee subject to 
backup withholding due to a notified payee underreporting to disclose 
the names of all of his payors of reportable interest or dividend 
payments and the names of all of the brokers with whom the payee has 
accounts which may involve reportable interest or dividend payments. To 
the extent required in the request from the Internal Revenue Service, 
the payee shall also provide his account numbers and other information 
necessary to identify the payee's accounts.
    (4) Backup withholding certification. Once a payee receives a final 
notice from the Internal Revenue Service notifying him that his 
reportable interest or dividend payments are subject to backup 
withholding due to notified payee underreporting under section 
3406(a)(1)(C), the payee shall not certify to any payor or broker, under 
penalties of perjury, that he is not subject to backup withholding under 
section 3406(a)(1)(C). See paragraph (k)(2) of this section for the 
penalties that will apply to a payee who makes a false certification. 
The payee may not make the certification until the payee receives the 
certification provided in paragraph (d)(1) of this section from the 
Internal Revenue Service advising the payee that he is no longer subject 
to backup withholding under section 3406(a)(1)(C) (as provided in A-33 
of Sec. 35a.9999-1). See A-37 of Sec. 35a.9999-1 for the rule applicable 
to a payor who makes reportable interest or dividend payments to a payee 
who fails to certify that he is not subject to backup withholding due to 
notified payee underreporting.
    (g) Determination by the Internal Revenue Service that backup 
withholding should not start or should be stopped--(1) In general. A 
payee may prevent backup withholding from starting or stop it once it 
has started if, for the taxable year with respect to which there is a 
notified payee underreporting and any other taxable payee--
    (i) Shows that there was no payee underreporting (as provided in 
paragraph (g)(2) of this section);
    (ii) Corrects any payee underreporting (as provided in paragraph 
(g)(3) of this section);
    (iii) Shows that backup withholding will cause or is causing an 
undue hardship (as defined in paragraph (g)(4) of this section) and that 
it is unlikely that the payee will underreport interest or dividend 
payments again; or

[[Page 442]]

    (iv) Shows that a bona fide dispute exists as to whether any 
underreporting has occurred (as provided in paragraph (g)(5) of this 
section).
    (2) No underreporting. A payee may show that no underreporting of 
interest or dividends exists by presenting receipts or other 
satisfactory documentation to the Internal Revenue Service showing that 
all taxes relating to such payments were reported and paid timely or 
evidence showing that the payee did not have to file a return for the 
taxable year in question or that the underreporting determination is 
based upon a factual, clerical, or other mistake.
    (3) Correcting any payee underreporting--(i) Before issuance of a 
statutory notice of deficiency. Before a statutory notice of deficiency 
is issued to a payee pursuant to section 6212, the payee may correct 
underreporting by filing a return if one was not previously filed and 
paying taxes, penalties, and interest due with respect to any 
underreported interest or dividend payments.
    (ii) After issuance of a statutory notice of deficiency. After a 
statutory notice of deficiency is issued to a payee, the payee may 
correct underreporting at any time by filing a return if one was not 
previously filed and paying the entire deficiency and any other taxes 
including penalties and interest attributable to any payee 
underreporting of interest or dividend payments. Thus, for example, a 
payee may correct underreporting after assessment of a deficiency by 
paying the entire assessment with respect to that deficiency and any 
other taxes including penalties and interest attributable to any payee 
underreporting of interest or dividend payments for other taxable years.
    (4) Undue hardship. A determination of undue hardship will be based 
on the overall impact to the payee of having 20 percent of reportable 
interest and dividend payments withheld. Factors that will be considered 
in determining whether backup withholding causes undue hardship include, 
but are not limited to, the following:
    (i) Whether estimated tax payments, and other credits for current 
tax liabilities, or amounts withheld on employee wages or pensions, in 
addition to backup withholding, would cause significant over-
withholding;
    (ii) The payee's health, including the payee's ability to pay 
foreseeable medical expenses;
    (iii) The extent of the payee's reliance on interest and dividend 
payments to meet necessary living expenses and the existence, if any, of 
other sources of income;
    (iv) Whether other income of the payee is limited or fixed (e.g., 
social security, pension, and unearned income);
    (v) The payee's ability to sell or liquidate stocks, bonds, bank 
accounts, trust accounts, or other assets, and the consequences of doing 
so;
    (vi) Whether the payee reported and timely paid the most recent 
year's tax liability, including interest and dividend income; and
    (vii) Whether the payee has filed a bankruptcy petition with the 
United States Bankruptcy Court.

In addition to the above factors, the Internal Revenue Service must 
conclude that it is unlikely that any payee underreporting will occur 
again.
    (5) Bona fide dispute. The Internal Revenue Service may make a 
determination under this paragraph if there is a dispute between the 
payee and the Internal Revenue Service on a question of fact or law that 
is material to a determination under paragraph (g)(1)(i) and, based upon 
all the facts and circumstances, the Internal Revenue Service finds that 
the dispute is asserted in good faith by the payee and there is a 
reasonable basis for the payee's position. See the example provided in 
paragraph (j)(2)(ii) of this section for an illustration of this 
provision.
    (h) Requests for determinations--(1) In general. A payee may request 
a determination under one or more of the provisions of paragraph (g) of 
this section. Following its review of a request for a determination 
under paragraph (g) of this section, the Internal Revenue Service will 
either provide the payee with a written certification as prescribed in 
paragraph (d) of this section if the evidence presented warrants the 
requested determination or will provide the payee with a written notice 
informing him that a determination was not made.

[[Page 443]]

    (2) Determinations made during the notice period. In general, if a 
determination is made during the notice period as defined in paragraph 
(f)(1) of this section, then the payee will not be subject to backup 
withholding due to a notified payee underreporting with respect to any 
taxable year for which a determination was made.
    (3) Determinations made after the notice period. If a determination 
is made after the notice period, as defined in paragraph (f)(1) of this 
section, the Internal Revenue Service will provide a notice to payors 
and brokers, and a certification to the payee as provided in paragraph 
(d)(1) of this section.
    (i) [Reserved]
    (j) Payees filing a joint return--(1) In general. For purposes of 
section 3406(a)(1)(C), if payee underreporting is found to exist with 
respect to a joint return filed by a husband and wife, then the 
provisions of this section shall apply to the payees collectively. As a 
result, both payees will be subject to backup withholding on accounts in 
their individual names as well as accounts in their joint names. Either 
or both payees may satisfy the criteria for a determination that no 
payee underreporting exists, that the underreporting has been corrected, 
or that a bona fide dispute exists (as provided in paragraphs (g)(1) 
(i), (ii), or (iv) of this section). Both payees, however, must satisfy 
the criteria for a determination that backup withholding will cause or 
is causing undue hardship (as provided in paragraph (g)(1)(iii) of this 
section).
    (2) Exceptions--(i) Innocent spouse. A spouse who files a joint 
return may obtain a determination that withholding should stop or not 
start with respect to payments made to his or her individual accounts, 
if the spouse--
    (A) Shows that he or she did not underreport income because he or 
she is an innocent spouse as described in section 6013(e), or
    (B) Shows that there is a bona fide dispute as to whether he or she 
is an innocent spouse and hence did not underreport income.
    (ii) Example. The provisions of paragraph (j)(2)(i) may be 
illustrated by the following example:

    Example. H and W filed a joint return in 1986 on which H failed to 
include $2,000 of interest income. In 1987, the Internal Revenue Service 
determined that a payee underreporting exists with respect to H and W 
for the 1986 tax year. After properly notifying H and W of the 
underreporting and assessing the tax, the Internal Revenue Service sent 
notices to payors to begin backup withholding on the joint and 
individual accounts of H and W and to brokers informing them that H and 
W are subject to backup withholding under section 3406(a)(1)(C) on their 
joint and individual accounts. W claims that she is an innocent spouse 
and requests a determination that she did not underreport interest or 
dividend income so that her individual accounts will not be subject to 
backup withholding.
    The Internal Revenue Service questions her status as an innocent 
spouse. If the Internal Revenue Service determines, based upon all the 
facts and circumstances, that there is a reasonable basis for W's claim 
to be an innocent spouse and that the claim is made in good faith, W 
will have a bona fide dispute with the Internal Revenue Service. 
Consequently, the individual accounts of W will not be subject to 
further backup withholding due to a notified payee underreporting as 
provided in paragraph (g)(5) of this section.
    The Internal Revenue Service will notify payors to stop backup 
withholding under section 3406(a)(1)(C) and brokers that W is no longer 
subject to backup withholding under section 3406(a)(1)(C) on W's 
individual accounts. Backup withholding will not restart on those 
accounts unless the Internal Revenue Service ultimately determines that 
W is not an innocent spouse. In that event the Internal Revenue Service 
will notify the payors to start backup withholding under section 
3406(a)(1)(C) and the brokers that W is subject to backup withholding 
under section 3406(a)(1)(C) with respect to the individual accounts of 
W.

    (iii) Divorced or legally separated payee. A payee who, at the time 
of the request for a determination under paragraph (g) of this section, 
is divorced or legally separated under state law may obtain a 
determination that undue hardship exists (or would exist) under 
paragraph (g)(1)(iii) of this section with respect to reportable 
interest and dividend payments made to his or her individual accounts if 
the divorced or legally separated payee satisfies the

[[Page 444]]

criteria for a determination under paragraph (g)(4) of this section.
    (k) Penalties--(1) Failure to withhold. See A-2 of Sec. 35a.9999-3 
for rules relating to penalties applicable to a payor who fails to 
withhold on reportable interest and dividend payments made to a payee 
subject to backup withholding.
    (2) False certification--(i) Criminal penalty under section 7205(b). 
If any individual willfully makes a false certification under section 
3406(d) (1) or (2), then that individual shall, in addition to any other 
penalty provided by law, upon conviction thereof, be fined not more than 
$1,000, or imprisoned not more than 1 year, or both.
    (ii) Civil penalty under section 6682-- (A) In general. In addition 
to any criminal penalty provided by law, if any individual makes a 
statement under section 3406 which results in a decrease in the amounts 
deducted and withheld under chapter 24 of the Internal Revenue Code and, 
as of the time the statement was made, there was no reasonable basis for 
the statement, the individual shall pay a penalty of $500 for the 
statement. The penalty is due upon notice and demand and pursuant to 
section 6682 collection is not subject to the deficiency procedures of 
subchapter B of chapter 63 of the Internal Revenue Code. See section 
6682.
    (B) Waiver of penalty. The payee may obtain a waiver (in whole or 
part) of the penalty imposed under section 6682(a) and paragraph 
(k)(2)(ii)(A) of this section if it is established to the satisfaction 
of the Internal Revenue Service that the taxes imposed under subtitle A 
of the Internal Revenue Code with respect to the payee for the taxable 
year in which the false certification was made are equal to or less than 
the sum of--
    (1) The credits against taxes allowed by part IV of subchapter A of 
chapter 1 of the Internal Revenue Code, and
    (2) The payments of estimated tax which are considered payments on 
account of such taxes.
    (C) Procedure for seeking a waiver. To request a waiver under 
section 6682(b) and paragraph (k)(2)(ii)(B) of this section, the payee 
must submit to the Internal Revenue Service a written statement with 
supporting documents to establish all the facts necessary in order to 
obtain the waiver. The statement must be signed by the person that 
otherwise would be subject to the penalty imposed by section 6682(a) and 
paragraph (k)(2)(ii)(A) of this section and must contain a declaration 
that it is made under penalties of perjury.
    (3) Delay of assessment. If a payee institutes or maintains a suit 
with the United States Tax Court primarily to delay assessment and the 
payee's position is frivolous or groundless, or the payee unreasonably 
failed to pursue available administrative remedies, the court may award 
up to $5,000 in damages under section 6673. The damages will be assessed 
against and collected from the payee in the same manner as the 
underlying tax.
    (l) Effective Date. This section is effective until December 31, 
1996.

[T.D. 8137, 52 FR 13432, Apr. 23, 1987, as amended at 60 FR 66134, Dec. 
21, 1995; 61 FR 11308, Mar. 20, 1996]



Sec. 35a.9999-0  Effective date.

    See Sec. 31.9999-0 of this chapter for applicability dates for 
Secs. 35a.9999-1 through 35a.9999-5.

[T.D. 8734, 62 FR 53494, Oct. 14, 1997]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-0 was added, effective Oct. 14, 1997, through Jan. 1, 
1999. At 63 FR 72183, Dec. 31, 1998, the effective date was extended 
until Jan. 1, 2000. By T.D. 8856, 64 FR 73408, Dec. 30, 1999, the 
effective date was extended until Jan. 1, 2001.



Sec. 35a.9999-1  Questions and answers concerning the due diligence requirement and the certification requirements in connection with backup withholding and
 
          other related issues.

    The following questions and answers principally concern the due 
diligence exception to the penalty on payors of reportable interest or 
dividend payments for failure to provide the payee's correct taxpayer 
identification number on certain information returns and the 
certification requirements in connection with backup withholding under 
the Interest and Dividend Tax Compliance Act of 1983 (Pub. L. 98-67, 97 
Stat. 369):

[[Page 445]]

                               In General

    Q-1. What payors are subject to the new due diligence requirement 
with respect to their obligation to provide payees' correct taxpayer 
identification numbers on information returns?
    A-1. Payors of reportable interest or dividend payments are subject 
to the new due diligence requirement.
    Q-2. What is a reportable interest or dividend payment?
    A-2. A reportable interest or dividend payment is a payment of 
interest, dividends, or patronage dividends that is of a kind, and to a 
payee, that is subject to information reporting.

    Imposition of Penalty for Failure to Provide a Correct Taxpayer 
                          Identification Number

    Q-3. Is a payor subject to a penalty for failure to provide a 
correct taxpayer identification number on an information return with 
respect to a reportable interest or dividend payment if the payee has 
certified, under penalties of perjury, that the taxpayer identification 
number furnished to the payor is the payee's correct number, the payor 
provided that number on an information return, and the number is later 
determined not to be the payee's correct number?
    A-3. No. A payor is not subject to a penalty for failure to provide 
the payee's correct taxpayer identification number on an information 
return, if the payee has certified, under penalties of perjury, that the 
taxpayer identification number provided to the payor was his correct 
number, and the payor included such number on the information return.
    Q-4. Is a payor subject to a penalty for failure to provide a 
correct taxpayer identification number on an information return if the 
payee does not certify, under penalties of perjury, that the taypayer 
identification number provided to the payor is correct, and the number 
is later determined not to be the payee's correct number?
    A-4. A payor is subject to a penalty if the taxpayer identification 
number of a payee provided on an information return is determined not to 
be the payee's correct number, unless the payor exercised due diligence 
in soliciting the payee's correct taxpayer identification number and in 
furnishing such number on the information return. See A-51 of 
Sec. 35a.9999-3 for the general rule for the actions that a payor of an 
account or instrument that is not a pre-1984 account (as defined in A-34 
of Sec. 35a.9999-1 and A-20 of Sec. 35a.9999-3) must take to exercise 
due diligence under section 6676(b).

       Due Diligence Defined for Pre-1984 Accounts and Instruments

    Q-5. In order for a payor of a reportable interest or dividend 
payment to be considered to have exercised due diligence in furnishing 
the correct taxpayer identification number of a payee with respect to a 
pre-1984 account or instrument, what actions must the payor take?
    A-5. First, by the applicable date provided in A-6, the payor must 
send a separate mailing by first-class mail to any payee who has not 
previously certified, under penalties of perjury, that the taxpayer 
identification number furnished to the payor is the payee's correct 
number. This mailing must contain a notice that: (1) Informs the payee 
what a taxpayer identification number is, (2) advises the payee that he 
must provide a correct taxpayer identification number to the payor, (3) 
states that if the payee has not furnished a correct taxpayer 
identification number to the payor the payee may be subject to a $50 
penalty and that payments to the payee may be subject to backup 
withholding starting on January 1, 1984, and (4) advises the payee how 
to provide a correct taxpayer identification number to the payor. The 
form of the notice is described in A-7. The payor must also include in 
the mailing a postage-prepaid reply envelope and a certification form on 
which the payee may certify, under penalties of perjury, that he is 
furnishing his correct taxpayer identification number to the payor. The 
specific requirements for the form of this certification are set forth 
in A-9 and A-10.
    Second, in the case of a pre-1984 account or instrument for which 
the payee has provided no taxpayer identification number or for which 
the taxpayer identification number provided is obviously incorrect 
(i.e., contains an incorrect number of digits), the payor

[[Page 446]]

must have commenced backup withholding on payments made after December 
31, 1983.
    Third, the payor must use the same care in processing taxpayer 
identification numbers provided by payees that a reasonably prudent 
payor would use in the course of the payor's business in handling 
account information, such as account numbers and account balances.
    Fourth, the payor must send a mailing in each year subsequent to 
1983 to payees who have not by that time provided a taxpayer 
identification number under penalties of perjury. This mailing need not 
be sent separately from other mail to the payee. This mailing also need 
not contain a postage-prepaid reply envelope. The payor is required to 
process responses to this mailing in the same manner described in the 
preceding paragraph. See A-7A of this section for the rule for 
nonseparate annual mailings. See A-56 of this section for the actions 
that payors who failed to exercise due diligence as described in A-5 and 
A-6 and the related questions and answers on due diligence under this 
section on all or part of their pre-1984 accounts or instruments may 
take to be relieved of the penalty otherwise due under section 6676(b).
    Q-6. In order to be considered to have exercised due diligence in 
soliciting the payee's taxpayer identification number, by what date must 
the payor send the separate mailing described in A-5 to a payee who has 
not previously provided his correct taxpayer identification number to 
the payor under penalties of perjury?
    A-6. The separate mailing must be made on or before December 31, 
1983, unless the payor complies with the alternative procedure set forth 
in the following two paragraphs.
    A payor may defer the separate mailing referred to above, Provided, 
That the payor: (1) Sends a separate mailing by December 31, 1983, to 
all payees who have not furnished a taxpayer identification number to 
the payor or who have furnished an obviously incorrect number; (2) sends 
a mailing, which need not be separate from other mail, on or before 
December 31, 1983, to all other payees who have not previously provided 
their taxpayer identification numbers to the payor under penalties of 
perjury; and (3) sends, on or before March 31, 1984, a separate mailing 
to all payees who have not by that date certified under penalties of 
perjury that their taxpayer identification numbers provided to the payor 
are correct.
    The separate and nonseparate mailing required in 1983 and the 
separate mailing required on or before March 31, 1984, must include the 
notice, certification form, and postage-prepaid reply envelope as 
required in A-5. Any separate mailing made in 1984 pursuant to the prior 
paragraph does not replace a 1984 nonseparate mailing that is otherwise 
required by the fourth paragraph of A-5.
    Q-7. In what form should the payor notify the payee of the 
information set forth in A-5 and solicit the payee's correct taxpayer 
identification number, in order to satisfy the due diligence requirement 
with respect to a pre-1984 account or instrument?
    A-7. The notice will satisfy the requirement of A-5 if it is 
conspicuous and contains language substantially similar to the 
following:

                      Important New Tax Information

    Under the Federal income tax law, you are subject to certain 
penalties as well as withholding of tax at a 20 percent rate if you have 
not provided us with your correct social security number or other 
taxpayer identification number. Please read this notice carefully.
    You (as a payee) are required by law to provide us (as payor) with 
your correct taxpayer identification number. If you are an individual, 
your taxpayer identification number is your social security number. If 
you have not provided us with your correct taxpayer identification 
nunber, you may be subject to a $50 penalty imposed by the Internal 
Revenue Service. In addition, interest, dividends, and other payments 
that we make to you may be subject to backup withholding starting on 
January 1, 1984.
    Backup withholding is different from the 10 percent withholding on 
interest and dividends that was repealed in 1983. If backup withholding 
applies, a payor is required to withhold 20 percent of interest, 
dividends, and other payments made to you. Backup withholding is not an 
additional tax. Rather, the tax liability of persons subject to backup 
withholding will be reduced by the amount of tax withheld. If 
withholding results in an overpayment of taxes, a refund may be 
obtained.
    Enclosed is a postage-prepaid reply envelope in which you may return 
the enclosed form to furnish us your correct name and

[[Page 447]]

taxpayer identification number. Please sign the form and return to us.

                        Subsequent Year's Mailing

    Q-7A. In order for a payor of reportable interest or dividend 
payments to be considered to have exercised due diligence in soliciting 
a taxpayer identification number of a payee with respect to a pre-1984 
account or instrument, what information is the payor required to include 
in the subsequent year's mailing (nonseparate annual mailings) described 
in the fourth paragraph of A-5 of Sec. 35a.9999-1 to a payee who has not 
provided the payor with a certification, under penalties of perjury, 
that his taxpayer identification number is correct?
    A-7A. The payor is required to include (1) an appropriately modified 
copy of the notice described in A-7 of Sec. 35a.9999-1, (2) a Form W-9 
or acceptable substitute form for the payee to provide a correct 
taxpayer identification number, and (3) a reply envelope (self-
addressed) for the payee to return the Form W-9 or acceptable substitute 
form. However, for those subsequent mailings described in A-5 or A-6 
made before the 1988 calendar year, the mailings should, but are not 
required to, contain the reply envelope.
    Q-7B. In order to be considered to have exercised due diligence in 
soliciting the payee's certified taxpayer identification number, by what 
date must the payor of reportable interest or dividends mail the 
subsequent year's mailing described in the fourth paragraph of A-5 and 
in A-7A of this section to a payee of a pre-1984 account who has not 
certified, under penalties of perjury, that his taxpayer identification 
number is correct?
    A-7B. The payor may send the mailing at any time during each year 
that a nonseparate annual mailing is required, but in no event later 
than December 31 of such year. Section 7503 shall apply in determining 
the time for sending the subsequent year's mailing if December 31 falls 
on a Saturday, Sunday, or a legal holiday.
    Q-8. In order to be considered to have exercised due diligence, is a 
payor required to request the payee to return the form certifying that 
the taxpayer identification number provided to the payor is correct?
    A-8. The payor may request the payee to sign and return the form 
irrespective of whether the taxpayer identification number shown for the 
payee is the payee's correct taxpayer identification number. 
Alternatively, the payor may request that the payee return the form only 
in the event that the taxpayer identification number shown for the payee 
is incorrect, or if no taxpayer identification number is shown. If the 
payor uses the alternative instruction described in the preceding 
sentence, the payor may make suitable changes to the last paragraph of 
the notice prescribed in A-7.
    If, however, the payee does not return the form certifying his 
taxpayer identification number under penalties of perjury, the payor is 
required in each subsequent year to request the payee to provide his 
correct taxpayer identification number under penalties of perjury (until 
the payee so certifies his taxpayer identification number).
    Q-9. What form may the payee use to certify that the taxpayer 
identification number provided to the payor is correct?
    A-9. The Internal Revenue Service is currently preparing Form W-9 on 
which a payee may certify his taxpayer identification number under 
penalties of perjury. Form W-9 will be available in mid October upon 
request to any Internal Revenue Service district director.
    Q-10 May a payor use a substitute form instead of Form W-9 for a 
payee to certify, under penalties of perjury, that the taxpayer 
identification number provided to the payor is correct?
    A-10. Yes. A substitute form must include space for the payee to 
provide his name, address, and taxpayer identification number. The form 
also must include space for the payee to certify under, penalties of 
perjury, that he is furnishing his correct taxpayer identification 
number to the payor. The wording of the certification must be 
substantially similar to the following: ``Under penalties of perjury, I 
certify that the number shown on this form is my correct taxpayer 
identification number.'' If a payor uses a substitute form, the payor 
must provide either

[[Page 448]]

the Internal Revenue Service's instructions for Form W-9 or the 
substance of those instructions on or with the substitute form.
    A signed copy of the Form 4029 or Form 8812 which contains the 
payee's name, address, and taxpayer identification number is deemed to 
be a substitute Form W-9 signed under penalties of perjury with respect 
to such number. However, the penalties associated with the penalties of 
perjury statement will not apply with respect to the taxpayer 
identification number on such form.
    Q-11. In order to satisfy the due diligence requirement for pre-1984 
accounts and instruments, is a payor required to send the mailing or 
mailings described in A-5 and A-6 to a payee who has previously 
furnished a taxpayer identification number to the payor, but who has not 
certified under penalties of perjury that the number provided to the 
payor is his correct taxpayer identification number?
    A-11. Yes. A payor must send the mailing or mailings as required in 
A-5 and A-6 to any payee of a reportable interest or dividend payment 
who has not previously certified under penalties of perjury that the 
taxpayer identification number provided to the payor is the payee's 
correct number.
    Q-12. May a payor satisfy the due diligence requirement by sending 
the separate mailings described in A-5 and A-6 with other mail the payor 
sends to the payee?
    A-12. No. The separate mailing soliciting a certificate providing 
the payee's correct taxpayer identification number under penalties of 
perjury must not include any other communication to the payee. No 
material may be included in the separate mailing to the payee other than 
the notice, certification form and instructions, and postage-prepaid 
reply envelope.
    Q-13. What action must a payor take with respect to accounts opened, 
or instruments acquired, subsequent to the date on which the payor 
prepares its list of payees for a mailing required in 1983 but prior to 
January 1, 1984?
    A-13. The payor is required to send the mailing otherwise required 
to be made by December 31, 1983, to the payees of such accounts and 
instruments not later than January 31, 1984, unless the payee has 
previously provided his taxpayer identification number to the payor 
under penalties of perjury.
    Q-14. If a payor makes no reportable interest or dividend payments 
to a payee with respect to an account or instrument during 1983, so that 
the payor is not required to make a 1983 information return with respect 
to the payee, is the payor nevertheless required to send the mailing or 
mailings to the payee as provided in A-5 and A-6?
    A-14. The payor must either: (1) Send the mailing or mailings in the 
manner and within the time periods provided in A-5 and A-6 or (2) send 
the separate mailing described in A-5 to the payee not later than 
October 1 of the year in which a payment to the payee with respect to 
the account or instrument first becomes reportable, or, if later, within 
30 days after such reportable payment occurs. Thus, if payments to the 
payee aggregate less than $10 in 1983, so that no 1983 information 
return is required, the payor need not make the mailing or mailings 
described in A-5 and A-6 within the time period provided in A-6; the 
payor must, however, make the separate mailing described in A-5 to the 
payee in the first year that payments to the payee aggregate $10 or 
more.
    Q-15. If the payor has obtained a certificate, signed under 
penalties of perjury, setting forth the payee's taxpayer identification 
number within the applicable time period in A-6, must the payor 
nevertheless make the mailing or mailings described in A-5 and A-6 to 
the payee in order to be considered to have exercised due diligence in 
obtaining the payee's correct taxpayer identification number?
    A-15. No. The mailing requirement applies only to a payee from whom 
the payor has not previously received a taxpayer identification number 
certified under penalties of perjury.
    Q-16. May a payor obtain the form containing the payee's taxpayer 
identification number, signed under penalties of perjury, through a 
solicitation for such certification, in addition to the mailing or 
mailings required by A-5 and A-6, contained in a regular mailing to the 
payor's customers?
    A-16. Yes. Such a certification may be obtained by a solicitation 
contained

[[Page 449]]

in a regular business mailing, by a request in person to a payee, or 
otherwise.

  Special Rules Relating to the Due Diligence Requirement for Pre-1984 
                        Accounts and Instruments

    Q-17. Is a payor considered to have exercised due diligence in 
soliciting the correct taxpayer identification number with respect to 
pre-1984 accounts and instruments if the payor sends the required 
mailings to the last known address of the payee?
    A-17. Yes.
    Q-18. Is a payor required to send the required mailing or mailings 
to a payee's last known address in a case where other mailings to that 
address have been returned to the payor because the address was 
incorrect and no new address has been provided to the payor?
    A-18. No. In such a situation, the payor is required to handle the 
required mailings in the same manner that he handles other 
correspondence to the payee.
    Q-19. Is a payor required to send the mailing or mailings to the 
payee of an account or instrument with respect to which there is 
currently a ``do not mail'' or a ``stop mail hold'' instruction pursuant 
to which the payor does not send any mail to the payee?
    A-19. No. A payor must, however, handle all required mailings in the 
same manner that the payor handles other correspendence with the payee.
    Q-20. Is a payor required to send mailings to all payees listed on a 
joint account or jointly held instrument?
    A-20. No. A payor is required to send mailings only to the first 
person listed on an account or instrument because the taxpayer 
indentification number of that person is the one required to be provided 
on an information return.
    Q-21. If a payor has a Form W-6 or W-7 exemption certificate, 
relating to the now-repealed 10 percent withholding on interest and 
dividends, signed by a payee, must the payor send the mailings to the 
payee?
    A-21. Generally, yes. The Internal Revenue Service Forms W-6 and W-7 
did not contain a certification, under penalties of perjury, that the 
taxpayer identification number furnished by the payee was correct. If, 
however, the payor utilized a substitute Form W-6 or W-7 on which a 
payee certified under penalties of perjury in the manner provided on 
Form W-9 or in A-10 that the taxpayer identification number furnished to 
the payor was the payee's correct number, the payor is not required to 
send mailings to the payee.
    Q-22. Is a payor of reportable interest or dividends required to 
send mailings to a corporation or other exempt recipient?
    A-22. No. A payment of interest to a corporation or other exempt 
recipient described in Sec. 1.6049-4(c)(1)(ii) of the Income Tax 
Regulations generally is not subject to information reporting. Thus, 
mailings to such recipients are not required. Although a payment of 
dividends or patronage dividends to a corporation and certain other 
exempt recipients generally is subject to information reporting, payors 
are not required to send mailings to persons described in 
Sec. 31.3452(c)-1 (b) through (p) of the Income Tax Regulations in order 
to satisfy the due diligence requirement. A payee shall be considered an 
exempt recipient for the purpose of this rule if (1) the payee could be 
treated as an exempt recipient without the requirement of filing an 
exemption certificate under Sec. 31.3452(c)-1 (b) through (p) of the 
Income Tax Regulations or (2) the payee has provided the payor with a 
certificate, signed under penalties of perjury, stating that the payee 
is an exempt recipient described in one or more paragraphs of 
Sec. 31.3452(c)-1 (b) through (p) of the Income Tax Regulations. Form W-
9 may be used for the purpose of making this certification. 
Alternatively, the payor may provide the payee with a substitute form 
for such certification, provided that the form conforms generally to 
Form W-9 and the instructions related to exempt recipients.
    Q-23. Is a payor required to send mailings to a payee with respect 
to an account established under the Uniform Gift to Minors Act?
    A-23. Yes. The law requires that the social security number of the 
minor be provided to the payor with respect to accounts established 
under the Uniform Gift to Minors Act. If the minor does not have a 
social security number, the minor may obtain one by filing a

[[Page 450]]

Form SS-5 with a Social Security Administration Office. The form 
certifying that the minor's social security number provided is correct 
may be signed by the custodian of the Uniform Gift to Minors Act 
account.
    Q-24. Is a payor required to send mailings to a payee where the 
account is held as a club account, bowling league account, recreation 
account, or other informal account?
    A-24. Yes. The law requires that the taxpayer identification number 
of the organization be provided to the payor. If the club, league, or 
other informal association does not have an employer identification 
number, one may be obtained by filing a Form SS-4 with an Internal 
Revenue Service Center.
    Q-25. Must the payee sign and return to the payor the form 
certifying the payee's correct taxpayer identification number under 
penalties of perjury in order for the payor to satisy the due diligence 
requirement?
    A-25. No. The determination of whether the payor exercised due 
diligence in soliciting the payee's correct taxpayer identification 
number does not depend upon whether the payee signs and returns the form 
certifying his correct taxpayer identification number. If, however, the 
payee does not provide his taxpayer identification number to the payor 
under penalties of perjury, the payor is required to continue to solicit 
a certified taxpayer identification number from the payee in each year 
subsequent to 1983 until the payee has provided a certified taxpayer 
identification number. Such subsequent annual solicitations need not be 
made, however, in a separate mailing.

                    Requirement of Backup Withholding

    Q-26. If a payee does not provide a taxpayer identification number 
to the payor what action is a payor required to take?
    A-26. Starting January 1, 1984, the payor is required to commence 
backup withholding with respect to reportable payments to payees who 
have not provided a taxpayer identification number to the payor. If an 
individual payee does not have a social security number, he may obtain 
one by filing Form SS-5 with a Social Security Administration Office. 
Other payees may obtain an employer identification number by filing Form 
SS-4 with an Internal Revenue Service Center.
    Q-27. Is a payor of reportable interest or dividends required to 
impose backup withholding with respect to payments made after December 
31, 1983, to a payee of an account that existed, or an instrument that 
was held by the payee, on December 31, 1983, if the payee has not 
provided the payor with a written certification under penalties of 
perjury that the taxpayer identification number furnished is correct?
    A-27. No. A payor of reportable interest or dividends that are paid 
with respect to an account or instrument existing on December 31, 1983, 
is not required to impose backup withholding starting on January 1, 
1984, simply because the payee has failed to certify his taxpayer 
identification number under penalties of perjury.
    Q-28. Is a payor required to impose backup withholding with respect 
to a reportable interest or dividend payment made on or after January 1, 
1984, if the taxpayer identification number furnished by the payee does 
not contain the proper number of digits?
    A-28. Yes. A payor shall treat the payee as having failed to furnish 
a taxpayer identification number if the number provided does not contain 
the proper number of digits. The proper number of digits is nine for 
both the social security number and the employer identification number.
    Q-29. Is a payor of reportable interest or dividend payments 
required to impose backup withholding on a payment made to an exempt 
recipient?
    A-29. No. A payor is not required to withhold on a payment made to a 
person described in Sec. 31.3452(c)-1 (b) through (p) of the Income Tax 
Regulations. A payee shall be considered an exempt recipient for 
purposes of this rule if (1) he may be treated as an exempt recipient 
without the requirement of filing an exemption certificate under the 
cited regulation or (2) the payee has provided the payor with a 
certificate, signed under penalties of perjury, stating that a payee is 
an exempt recipient described in one or more paragraphs of the cited 
regulation. Form W-9 may be used for the purpose of making this 
certification. Alternatively, the payor may provide

[[Page 451]]

the payee with a substitute form for such certification, provided that 
the substitute form conforms generally to Form W-9 and the instructions 
related to exempt recipients. A payor may in any case require an exempt 
recipient not otherwise required to file a certificate as to his status 
as an exempt recipient to file such a certificate, and may treat an 
exempt recipient who fails to file such a certificate as a person who is 
not exempt. A payor may require a separate certificate for each account 
or instrument maintained by an exempt recipient. A payor may require 
that any certification that a payee is an exempt recipient be made only 
on the substitute form provided by the payor; in that case, the payor 
must comply with the pertinent portions of Sec. 31.3452(f)-1(b)(2) of 
the Income Tax Regulations relating to the procedures that a payor must 
follow upon receipt of an unacceptable form.
    Q-30. Is a payor required to impose backup withholding on a pension 
or annuity distribution made on or after January 1, 1984, if the payee 
has not provided his taxpayer identification number to the payor?
    A-30. If pension withholding under section 3405 applies to a pension 
or annuity distribution and the payee does not make an election not to 
have pension withholding apply under that section, backup withholding 
does not apply. If, however, the payee makes such election under section 
3405 or pension withholding does not otherwise apply, and the payee does 
not provide his taxpayer identification number to the payor (or the 
taxpayer identification number provided is obviously incorrect), the 
payor is required to withhold 20 percent of any payment to the payee to 
which section 6041 applies, unless the conditions of the following 
paragraph are satisfied.
    If the annual distributions to a payee total $5,400 or less (in 
which case withholding under section 3405 generally is not required), 
and if the payor has no social security number for the payee (or the 
social security number provided is obviously incorrect), the payor shall 
not impose backup withholding until the first payment made after June 
30, 1984. By that date, the payee will have been able to obtain a social 
security number and provide it to the payor, in which case no amounts 
will be withheld.
    Q-31. In determining whether a payee has failed to provide a 
taxpayer identification number with respect to an account that was in 
existence or an instrument held on December 31, 1983, so that backup 
withholding is imposed starting January 1, 1984, within what period of 
time just a taxpayer identification number provided by a payee be 
treated as having been received?
    A-31. A payor must process a taxpayer identification number within 
30 days after the payor receives the taxpayer identification number from 
the payee. Thus, for example, if a payor has no taxpayer identification 
number for a payee, and the payee provides his taxpayer identification 
number to the payor on December 15, 1983, the payor must process the 
number not later than January 14, 1984. As a result, the payor would be 
authorized to commence backup withholding with respect to payments made 
to the payee commencing January 1, 1984, but backup withholding must 
cease by January 14, 1984. The payor also is authorized to treat the 
taxpayer identification number as having been received at any time after 
it is provided, so that backup withholding need not be commenced in the 
circumstance outlined above.

Certification Requirements for Accounts Opened and Instruments Acquired 
                               After 1983

    Q-32. What actions must a payor take with respect to accounts that 
are opened or instruments acquired on or after January 1, 1984, in order 
to avoid imposing backup withholding on reportable interest or dividend 
payments?
    A-32. In order to avoid imposing backup withholding with respect to 
accounts that are opened or instruments acquired on or after January 1, 
1984, a payor of reportable interest or dividend payments must obtain a 
certification from the payee, signed under penalties of perjury, (1) 
that the taxpayer identification number provided to the payor is the 
payee's correct number and (2) that the payee is not subject to backup 
withholding due to notified payee

[[Page 452]]

underreporting. The form for these certifications is prescribed in A-35 
and A-36.
    Q-33. What payees can make the certification that they are not 
subject to backup withholding due to notified payee underreporting?
    A-33. Any payee who has not been notified that he is subject to 
backup withholding as a result of notified payee underreporting can make 
the certification under the law. In addition, a payee who was subject to 
backup withholding due to notified payee underreporting may certify that 
he is not subject to backup withholding due to notified payee 
underreporting if the Service has provided the payee with written 
certification that backup withholding due to notified payee 
underreporting has terminated.
    Q-34. Under what circumstances will an account be considered to have 
been in existence, or an instrument be considered to have been held, 
before January 1, 1984 (a ``pre-1984 account'')?
    A-34. An account that is in existence before January 1, 1984, will 
be considered a pre-1984 account, irrespective of whether additional 
deposits are made to the account on or after January 1, 1984. In 
addition, if shares of a corporation are held before January 1, 1984 (or 
considered held before such date by operation of this rule), and 
additional shares are received by the holder, irrespective of whether 
such shares are received by reason of a stock dividend, as a result of 
an infusion of new cash, or otherwise, the new shares received will be 
considered a pre-1984 account, in the discretion of the payor. Where an 
account is opened, or an instrument is acquired automatically on the 
maturity or termination of an account that was in existence or 
instrument held before January 1, 1984 (or considered to have been in 
existence or held before such date by operation of this rule), without 
the participation of the payee, the new account or instrument will be 
considered a pre-1984 account, in the discretion of the payor. For 
purposes of the preceding sentence, a payee shall not be considered to 
have participated in the acquisition of the new account or instrument 
solely by reason of the failure to exercise a right to withdraw funds on 
maturity or termination of the old account or instrument. Where a 
discount instrument with a maturity not exceeding one year (a ``short-
term instrument'') is acquired upon the maturity of a short-term 
instrument, the participation of the payee in the acquisition of the 
newly-acquired instrument shall not be taken into account, and the new 
instrument shall be considered to have been acquired automatically, with 
respect to instruments acquired prior to January 1, 1985. In the case of 
insurance policies in effect on December 31, 1983, the election of a 
dividend accumulation option pursuant to which interest is paid, or the 
creation of an ``account'' in which proceeds of a policy are held for 
the policy beneficiary, may, in the payor's discretion, be treated as a 
pre-1984 account.
    Q-35. What form may a payee of reportable interest or dividends use 
to certify under penalties of perjury, that the taxpayer identification 
number provided to the payor is correct and that he is not subject to 
backup withhholding due to notified payee underreporting?
    A-35. A payee may use Internal Revenue Service Form W-9 for both 
required certifications.
    Q-36. May a payor of reportable interest or dividends or a broker 
provide a substitute form for a payee to certify under penalties of 
perjury that his taxpayer identification number is correct and that he 
is not subject to backup withholding due to notified payee 
underreporting?
    A-36. Yes. A payor or broker may use a substitute form provided the 
language of the certification is substantially similar to the following: 
``Under penalties of perjury, I certify (1) that the number shown on 
this form is my correct taxpayer identification number and (2) that I am 
not subject to backup withholding either because I have not been 
notified that I am subject to backup withholding as a result of a 
failure to report all interest or dividends, or the Internal Revenue 
Service has notified me that I am no longer subject to backup 
withholding.'' A payor or broker may use separate substitute forms to 
have the payee certify under penalties of perjury that (i) his taxpayer 
identification number is correct, provided the language is substantially 
similar to the certification in A-10 and (ii) he is not subject to 
backup

[[Page 453]]

withholding due to notified payee underreporting provided the language 
is substantially similar to clause (2) of the preceding sentence. A 
payor or broker also may incorporate both required certifications into 
other business forms, customarily used, such as account signature cards, 
provided the required certifications are clearly set forth.
    If a payor or broker uses a single substitute form for both 
certifications, which does not follow the Form W-9 format, the form must 
contain an instruction to the payee that he must strike out the language 
certifying that the payee is not subject to backup withholding due to 
notified payee underreporting if he has been notified that he is subject 
to backup withholding due to notified payee underreporting, and the 
payee has not received a notice from the Internal Revenue Service 
advising him that backup withholding has terminated. If the payor or 
broker requires that the payee make the certification on a substitute 
form provided by the payor, the payor or broker may refuse to accept 
certifications (including certifications provided on Form W-9) that are 
not made on the form or forms provided by the payor or broker. If the 
payor or broker refuses to accept the form provided by the payee, the 
payor or broker then must comply with the pertinent portions of 
Sec. 31.3452(f)-1(b)(2) of the Income Tax Regulations related to the 
procedures that a payor must follow upon receipt of an unacceptable 
form.
    Q-37. With respect to reportable interest or dividends that are paid 
on an account opened or an instrument acquired on or after January 1, 
1984, if a payee fails to certify, under penalties of perjury, (1) that 
the number furnished is his correct taxpayer identification number, and 
(2) that he is not subject to backup withholding due to notified payee 
underreporting, what action is a payor required to take?
    A-37. A payor is required to withhold 20 percent of any reportable 
interest or dividend payment on such an account or instrument if either 
of the certifications specified is not provided. See A-4 of 
Sec. 35a.9999-1 and the answers under Sec. 35a.9999-3 beginning with A-
51 for the actions that a payor of an account or instrument that is not 
a pre-1984 account must take to exercise due diligence and thereby avoid 
a penalty under section 6676(b) for filing an information return with a 
missing or an incorrect taxpayer identification number.
    Q-38. Is a payor ever required to withhold more than 20 percent of a 
payment?
    A-38. No. Irrespective of how many conditions exist which cause 
backup withholding to apply, a payor is required to withhold only 20 
percent of a payment until all of the conditions no longer apply.
    Q-39. Is a payor required to send a notice to the payee when the 
payor commences backup withholding?
    A-39. In general, no. However, a payor of a readily tradable 
instrument that is not acquired directly from the payor must notify the 
payee that backup withholding has commenced, or will commence. The 
notice must be sent to the payee not later than 15 days after the payor 
makes the first payment to the payee that is subject to backup 
withholding. The notice must explain the steps the payee must take to 
stop backup withholding. The text of this notice will be provided in a 
regulation to be issued in the near future.
    Q-40. Do special rules apply to payments made with respect to 
readily tradable instruments?
    A-40. Yes. Special backup withholding rules apply with regard to 
readily tradable instruments when (1) the payee did not acquire the 
instrument directly from the issuer of the instrument and (2) a broker 
does not hold the instrument as nominee for the payee (i.e., in street 
name). Under the special rules, a payor is required to impose backup 
withholding only if (1) the payor does not receive the payee's taxpayer 
identification number, or (2) the payor is notified by a broker that the 
payee failed to make the required certifications (described in A-32) to 
the broker and the payee did not make the certifications to the payor. 
When the payee acquires the instrument directly from the issuer of the 
instrument or when a broker holds the instrument as nominee for the 
payee, the rules applicable to payors apply.
    Q-41. What rules apply to brokers?

[[Page 454]]

    A-41. When a broker is a payor (i.e., the broker holds the 
instrument in street name), the regular rules for payors apply. If a 
broker is not the payor with respect to an instrument, different rules 
apply to the broker depending on whether the payee's account with the 
broker is treated as a ``post-1983 account.''
    A ``post-1983 account'' is any account other than an account 
established prior to January 1, 1984, through which, during 1983, the 
broker either bought or sold an instrument for the payee or acted as 
nominee for the payee. (Both the determinations of (1) whether an 
account or instrument is treated as a post-1983 account of the payor for 
purposes of the payor's due diligence requirements (see A-34) and (2) 
when backup withholding applies to an instrument are made without regard 
to whether the instrument is acquired through a post-1983 account of a 
broker.)
    When a readily tradable instrument is acquired through a ``post-1983 
account'' and the broker is not the payor of the instrument, the broker 
must (1) obtain the certifications (described in A-32) from the payee 
but only once with respect to each account, (2) furnish the payee's 
taxpayer identification number to the payor, and (3) notify the payor to 
impose backup withholding if the payee failed to make either of the 
required certifications to the broker. The broker is required to give 
the information required by clauses (2) and (3) of the prior sentence to 
the payor in connection with the transfer instructions for the 
acquisition. The notice under clause (3) shall state that: ``The [named 
payee] is subject to backup withholding under sections 3406(a)(1)(A), 
3406(a)(1)(B), 3406(a)(1)(C), or 3406(a)(1)(D) of the Internal Revenue 
Code [circle whichever section applies].'' A magnetic media, machine 
readable, or other similar notice substantially to the same effect also 
may be employed. After the transfer instructions are transmitted, the 
broker is not required to seek a missing taxpayer identification number 
or missing certification or to give any further notices with regard to 
the acquisition of the instrument.
    When a readily tradable instrument is acquired through an account 
that is not a ``post-1983 account'' and the broker is not the payor of 
the instrument, the broker's sole responsibility is to furnish the 
payee's taxpayer identification number to the payor (unless the broker 
has been notified that the payee is subject to backup withholding under 
section 3406 (a)(1)(B) or (a)(1)(C) of the Internal Revenue Code).

                Window Transactions Pre-1984 Instruments

    Q-42. Is a payor required to exercise due diligence in soliciting 
the taxpayer identification number of a payee with respect to the 
following payments (``window transactions''): Redemptions of United 
States savings bonds, and payments upon interest coupons, commercial 
paper, and banker's acceptances?
    A-42. No. The due diligence requirements do not apply to such 
payments. Thus, the certification requirements set forth in A-32 do not 
apply to such transactions. A payor is required to withhold 20 percent 
with respect to such payments only if the payee does not provide his 
taxpayer identification number to the payor. Payors remain obligated, 
however, to make an information return with respect to window 
transactions.
    Q-42A. Is a payor on a pre-1984 instrument in a window transaction 
subject to a penalty under section 6676(b) for filing an information 
return with a missing or an incorrect taxpayer identification number 
with respect to that transaction?
    A-42A. No. However, see A-42 in this section which provides, in 
part, that a payor is required to backup withhold if a payee fails to 
provide a taxpayer identification number (i.e., there is a missing 
taxpayer identification number). See A-66 of Sec. 35a.9999-3 for the 
actions that payors of post-1983 window transactions, as defined in A-
42B, must take to avoid a penalty under section 6676(b).

                          Post-1983 Instruments

    Q-42B. Is a payor required to treat an instrument that is negotiated 
in a window transaction (as defined in A-42 of Sec. 35a.9999-1 and A-9 
of Sec. 35a.9999-2) after

[[Page 455]]

December 23, 1987, as an instrument acquired after December 31, 1983?
    A-42B. Yes. A window transaction occurring on or after December 23, 
1987, will be considered made with respect to an instrument acquired 
after December 31, 1983, regardless of when the instrument was issued by 
the payor or acquired by the payee. See A-66 of Sec. 35a.9999-3 for the 
actions that payors must take to avoid a penalty under section 6676(b) 
with respect to a post-1983 window transaction.
    Q-43. Will a payor be allowed to furnish an information return to 
the payee with respect to a window transaction at the time the 
obligation or instrument is presented?
    A-43. Yes. A payor may furnish an information return to the payee at 
the time of the transaction or any time prior to January 31 of the year 
following the calendar year in which the transaction occurs. In general, 
however, the payor must provide information returns with respect to 
window transactions to the Internal Revenue Service on magnetic tape, in 
accordance with section 6011(e)(2) of the Internal Revenue Code, 
effective for transactions after December 31, 1983.

                           Separate Form 1099

    Q-44. Is a payor of interest, dividends, or patronage dividends paid 
in 1983 required to send a separate official Form 1099 to a payee?
    A-44. No. A payor of interest, dividends, or patronage dividends 
paid in 1983 is not required to send a separate official Form 1099 to a 
payee. A payor may satisfy his obligation to furnish the required 
statement to the recipient by sending the statement with other business 
correspondence to the payee, such as a monthly statement.
    Q-45. Is a payor of interest, dividends, or patronage dividends paid 
after January 1, 1984, required to send a separate official Form 1099 to 
a payee?
    A-45. Yes. For payments made in 1984 and subsequent years, a payor 
is required to provide an official Form 1099 to a payee either in a 
separate mailing or in person. Payors also may use a substitute Form 
1099 which contains provisions substantially similar to those of the 
prescribed form if the payor complies with all revenue procedures 
relating to substitute Form 1099 in effect at the time.
    Q-46. Is a payee required to attach Form 1099 to his tax return?
    A-46. No.

                              Miscellaneous

    Q-47. In what manner is a payor required to remit to the Internal 
Revenue Service amounts withheld from any reportable payment?
    A-47. A payor must deposit amounts withheld under the backup 
withholding provisions with a Federal Reserve Bank or an authorized 
financial institution in accordance with the deposit rules of 
Sec. 31.6302(c)-1(a)(1)(i) of the Income Tax Regulations that apply to 
an employer with respect to employment taxes. The payor of a reportable 
payment may elect, however, in accordance with the instructions provided 
with Form 941, to deposit such amounts separately from social security 
taxes and income tax withheld from wages. Thus, a payor may treat 
amounts withheld under section 3406 separately from amounts withheld 
from wages for purposes of determining when to remit the withheld 
amounts from any reportable payment. If, however, the payor elects to 
aggregate the amount withheld from wages with the amounts withheld under 
section 3406, the payor may do so. Regardless of the manner in which the 
payor elects to treat the withheld amounts for purposes of determining 
the time within which such amounts are required to be deposited, a payor 
must report the amounts withheld under section 3406 on the same Form 941 
that the payor uses to report the employment taxes deposited.
    Q-48. May a payor refuse to open an account for, or issue an 
instrument to a person on or after January 1, 1984, if the person fails 
to furnish his taxpayer identification number to the payor under 
penalties of perjury?
    A-48. Yes. If the payor refuses to open an account or issue an 
instrument because the person fails to provide his taxpayer 
identification number under penalties of perjury, the payor will not be 
in violation of the Internal Revenue Code. If, however, the payor allows 
a person who has not provided his taxpayer identification number under 
penalties of perjury to open an account or

[[Page 456]]

acquire an instrument, the payor is required to impose backup 
withholding with respect to any interest or dividend payments thereafter 
made with respect to such account or instrument (unless the payee 
thereafter provides his taxpayer identification number certified under 
penalties of perjury). The payor is not permitted, however, to refuse to 
open an account or to issue an instrument if the payee fails to certify 
under penalties of perjury, that the payee is not subject to backup 
withholding due to notified payee underreporting. See A-4 of 
Sec. 35a.9999-1 and the answers under Sec. 35a.9999-3 beginning with A-
51 for the actions that a payor of an account or instrument that is not 
a pre-1984 account or instrument must take to exercise due diligence and 
thereby avoid a penalty under section 6676(b) or filing an information 
return with a missing or an incorrect taxpayer identification number.
    Q-49. May a payor treat a certificate respecting a taxpayer 
identification number as valid if it is signed by a person other than 
the payee?
    A-49. In certain instances, yes. A certificate may be signed by any 
person who, under the pertinent portions of sections 6061, 6062, 6063, 
and 6065 of the Internal Revenue Code and the regulations thereunder, is 
authorized to sign a declaration under penalties of perjury on behalf of 
the payee.
    Q-50. What procedures must a payor follow in order to demonstrate 
that it has exercised due diligence in furnishing the correct taxpayer 
identification number of a payee, as required in A-5?
    A-50. A payor is not required to retain a copy of the communication 
sent to each individual payee or to prove that the communication was 
sent to a particular payee. Instead, payors must establish the existence 
of procedures that are reasonably calculated to insure that each person 
required to receive a mailing as prescribed in A-5, in fact received 
such mailing, and that the payor exercised reasonable care in processing 
responses to such mailings.

  Special Rules for Accounts, Instruments and Transactions of Foreign 
                                 Persons

    Q-51. Is a payor required to send the mailing or mailings described 
in A-5 and A-6 to foreign persons?
    A-51. Generally no. A payor is required to send the mailing or 
mailings described in A-5 and A-6 to any payee to whom the payor makes a 
payment that is subject to information reporting. Generally, a payment 
of interest to a foreign person is not subject to information reporting. 
See Sec. 1.6049-5 (b) (2) and (3) of the Income tax Regulations for the 
procedures to determine whether a payee of interest is a foreign person. 
See Sec. 1.6042-3(b) (1), 2, and (3) and Sec. 1.6044-3(c) of the Income 
Tax Regulations concerning exceptions from the information reporting 
requirements for payments of dividends and patronage dividends by and to 
certain foreign persons.
    Q-52. Is a payor required to send the mailing or mailings described 
in A-5 and A-6 to foreign persons with respect to pre-1984 accounts and 
instruments if payments on those accounts and instruments would not have 
been reportable payments but for the fact that the foreign person failed 
to provide the penalty of perjury statement described in Sec. 1.6049-
5(b)(2)(iv) of the Income Tax Regulations?
    A-52. A payor need not send the mailing or mailings described in A-5 
and A-6 to a payee who has not previously provided the penalty of 
perjury statement described in Sec. 1.6049-5(b)(2)(iv) of the Income Tax 
Regulations if (1) the payor sends a separate mailing to the payee on or 
before December 31, 1983, requesting the required penalty of perjury 
statement and (2) the payor has evidence in its records that the payee 
is a foreign person (provided that the payor has no actual knowledge 
that such evidence is false). If the payor has sent a nonseparate 
mailing on or before December 31, 1983, requesting the required penalty 
of perjury statement, the payor may send the separate mailing referred 
to in clause (1) on or before March 31, 1984. The separate mailing, 
whether sent in 1983 or 1984, must be by first-class mail, or by airmail 
if sent to

[[Page 457]]

a foreign address, and must contain a notice describing the penalty of 
perjury statement set forth in Sec. 1.6049-5(b)(2)(iv) and advising the 
payee that backup withholding may commence if the statement is not 
provided. The payor also must provide a reply envelope and a form on 
which the payee may make the statement described in Sec. 1.6049-
5(b)(2)(iv) under penalties of perjury. Neither the separate nor 
nonseparate mailing is required if the payor has received the required 
penalty of perjury statement from the payee.
    The rules of A-18 and A-19 relating to a ``do not mail'' or ``stop 
mail hold'' instruction and to payees for whom the payor has no address, 
shall apply. The other evidence referred to in clause (2) above on which 
the payor may rely for treating a payee as a foreign person includes a 
written statement from the payee that he is neither a resident nor a 
citizen of the United States or an affidavit from an employee of the 
payor stating that he knows that, or the payee has represented orally 
that, he is a foreign person. The mere fact that the payee has provided 
an address outside the United States is insufficient evidence to 
establish that the payee is a foreign person for this purpose.
    Q-53. Is a payor required to commence backup withholding on January 
1, 1984, on payments with respect to accounts and instruments described 
in A-52 if the foreign person failed to provide the penalty of perjury 
statement described in Sec. 1.6049-5(b)(2)(iv) of the Income Tax 
Regulations?
    A-53. The payor need not commence backup withholding with respect to 
such payments made before July 1, 1984, provided that the payor (1) made 
the separate mailing described in A-52 before December 31, 1983, or has 
made the nonseparate mailing described in A-52 before December 31, 1983, 
and sends a separate mailing to those payees who have not provided the 
required statement by March 31, 1984, and (2) has in its records the 
evidence described in A-52 that the payee is a foreign person.
    Q-54. Do the backup withholding provisions apply to payments of 
interest within the United States by a payor that is an international 
organization or by a person acting in its capacity as a paying agent for 
such organization?
    A-54. No, provided the international organization is in organization 
of which the United States is a member and which enjoys immunity or 
exemption from any liability or obligation to pay, withhold, or collect 
tax pursuant to an international agreement having full force and effect 
in the United States.
    Q-55. Is a broker required to impose backup withholding with respect 
to transactions effected for pre-1984 accounts if the customer is an 
exempt foreign person who fails to provide the broker with the penalty 
of perjury statement described in Sec. 1.6045-1(g)(1) of the Income Tax 
Regulations?
    A-55. With respect to such transactions effected before July 1, 
1984, a broker is not required to impose backup withholding if (1) the 
broker sends a separate mailing to the customer on or before December 
31, 1983, requesting the penalty of perjury statement described in 
Sec. 1.6045-1(g)(1) of the Income Tax Regulations and (2) the broker has 
evidence in his records that the customer is a foreign person (provided 
that the broker has no actual knowledge that such evidence is false). If 
the payor sent a nonseparate mailing on or before December 31, 1983, 
requesting the required penalty of perjury statement, the payor may send 
the separate mailing on or before March 31, 1984. The separate mailing, 
whether made in 1983 or 1984, must be by first-class mail, or by airmail 
if sent to a foreign address, and must contain a notice describing the 
required penalty of perjury statement and advising the customer that 
backup withholding may commence if the statement is not provided. The 
broker must also include in the mailing a reply envelope and provide a 
form on which the customer may make the required penalty of perjury 
statement. Neither the separate nor nonseparate mailing is required if 
the payor has received the penalty of perjury statement from the 
customer.
    The rules of A-18 and A-19 relating to ``do not mail'' or a ``stop 
mail hold'' instructions, and to payees for whom the payor has no 
address shall apply. The other evidence referred in clause (1) above on 
which the broker may rely for treating a customer as as foreign person 
may include a written statement

[[Page 458]]

from the customer that he is neither a resident nor a citizen of the 
United States or an affidavit from an employee of the broker stating 
that he knows that, or the customer has orally represented that, he is a 
foreign person. The mere fact that the customer has provided an address 
outside the United States is insufficient evidence to establish that the 
customer is a foreign person for this purpose.

        Nonassessment of the Penalty by Administrative Discretion

    Q-56. Is a payor of a pre-1984 account or instument who did not 
undertake the mailings in accordance with A-5 and A-6 and the related 
questions and answers on due diligence under this section liable for the 
penalty under section 6676(b) for filing an information return with a 
missing or an incorrect taxpayer identification number for all years in 
which the payor did not have a certified Form W-9 or acceptable 
substitute form from a payee?
    A-56. Yes. The payor is liable for the penalty under section 6676(b) 
for each year the payor files an information return with a missing or an 
incorrect taxpayer identification number for a pre-1984 account or 
instrument if the payor has not exercised due diligence as described in 
A-5 and A-6 and in the related questions and answers on due diligence 
under this section or obtained a certified taxpayer identification 
number from the payee. However, in its administrative discretion the 
Internal Revenue Service will not impose the penalty on a payor for an 
information return filed for calendar years after 1987 if the payor 
makes or has made a separate mailing of the type described in A-5 (as 
applicable under such Q and A) on or before June 30, 1988, and makes or 
has made the nonseparate mailing described in A-5 (as applicable under 
such Q and A) in each year subsequent to the year of the separate 
mailing claimed as the basis for administrative relief. Such separate 
and nonseparate mailings must be made with respect to all pre-1984 
accounts or instruments of payees to whom the payor will make a 
reportable payment in 1988 or a subsequent calendar year if such payees 
have not previously certified, under penalties of perjury, that the 
taxpayer identification number furnished to the payor is the payee's 
correct taxpayer identification number or established the payee's 
foreign status (under Sec. 1.6049-5(b)(2)(iv)) with respect to interest 
payments or under Q and A 36 of Sec. 35a.9999-3 with respect to dividend 
payments). If a reportable payment will not be made to a pre-1984 
account or instrument in 1988, the mailing with respect to the account 
or instrument may be made, in the discretion of the payor, by (1) June 
30, 1988, or (2) the later of October 1 of the calendar year in which 
the payment to the account or instrument is subsequently reportable or 
within 30 days after such reportable payment occurs.
    A payor will not be ineligible for administrative relief under this 
Q/A-56 with respect to a calendar year (for those accounts for which 
mailings were made as described in this A-56) due to a failure to make a 
mailing with respect to a de minimis number of accounts. A de minimis 
number of accounts is the lesser of 5,000 accounts or one percent (or 
less) of the total number of accounts for which a mailing should have 
been made under this Q/A-56. In addition, a payor will not be ineligible 
for administrative relief with respect to a calendar year (for those 
accounts for which mailings were made as described in this A-56) due to 
an inadvertent failure to make a mailing for a few accounts that could 
not be located using reasonable care.
    In its administrative discretion, the Internal Revenue Service will 
not impose the penalty under section 6676(b) on those de minimis 
accounts or on those accounts that could not be located using reasonable 
care in any calendar year for which a payor undertakes a mailing, as 
described in Q-5 in this section, with respect to all such accounts.
    The rules described in A-5 and the related questions and answers on 
due diligence under this section shall apply, to the extent not 
inconsistent with this Q and A 56, as shall the rules described in A-8, 
A-9, A-10, A-11, A-12, A-14, A-15, and A-16. Further, the special rules 
in A-17, A-18, A-19, A-20, A-21, A-22, A-23, A-24, and A-25 also shall 
apply to the mailing described in A-56 of this section.

[[Page 459]]

    In order to receive administrative relief each year, a payor must 
make a written statement, under penalties of perjury, affirmatively 
showing to the satisfaction of the district director or the director of 
the Internal Revenue Service Center that the person otherwise liable for 
such penalty fulfilled the requirements of this paragraph. A payor 
should make the request from the Internal Revenue Service ninety days 
before the due date of the Form 8210. A payor will remain liable for any 
applicable penalties under section 6676(b) for years prior to 1988.

[T.D. 7916, 48 FR 45362, Oct. 4, 1983, as amended by T.D. 7922, 48 FR 
53111, Nov. 25, 1983; T.D. 8163, 52 FR 44873, Nov. 23, 1987; T.D. 8248, 
54 FR 14350, Apr. 11, 1989]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-1 was removed, effective Jan. 1, 1999. At 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001.



Sec. 35a.9999-2  Questions and answers concerning due diligence and issues in connection with backup withholding.

    The following questions and answers principally concern the backup 
withholding requirement with respect to reportable payments and the due 
diligence exception to the penalty on payors of reportable interest and 
dividend payments for failure to provide a payee's correct taxpayer 
identification number on certain information returns. These requirements 
are issued under the Interest and Dividend Tax Compliance Act of 1983 
(Pub. L. 98-67, 97 Stat. 369):

                              Due Diligence

    Q-1. If a payor of reportable interest or dividends does not send 
the mailing or mailings described in A-5 and A-6 of Sec. 35a.9999-1 of 
the Temporary Employment Tax Regulations, issued under the Interest and 
Dividend Tax Compliance Act of 1983, T.D. 7916 (``Sec. 35a.9999-1''), to 
all payees who have not certified under penalties of perjury that their 
taxpayer identification numbers are correct, will a payor be considered 
to have exercised due diligence with respect to a payee to whom the 
payor sends the required mailing or mailings?
    A-1. Yes. Due diligence applies on a payee-by-payee basis. For 
example, if a payor sends the separate mailing described in A-5 of 
Sec. 35a.9999-1 by December 31, 1983, only to certain payees, the payor 
will be considered to have exercised due diligence with respect to the 
payees to whom the mailing was sent. However, the payor will not be 
considered to have exercised due diligence with respect to those payees 
to whom the payor did not send the required mailing or mailings.
    A penalty for failure to provide a correct taxpayer identification 
number will not be imposed merely because the payor fails to send the 
required mailing or mailings. Rather, a penalty will be imposed only in 
the case of an information return filed by a payor of reportable 
interest or dividends if the required mailing or mailings were not sent 
to the payee and the payor fails to include a taxpayer identification 
number or includes an incorrect number on the return filed with respect 
to the payee.
    Q-2. Does the due diligence standard apply to reportable payments 
other than reportable interest or dividends?
    A-2. No. The due diligence standard does not apply to payments 
reportable under sections 6041, 6041A(a), 6045, or 6050A. Thus, payors 
of these other reportable payments are not required to send the mailings 
described in A-5 and A-6 of Sec. 35a.9999-1.
    Q-3. Do the rules of section 7503 of the Internal Revenue Code, 
regarding the time for performance of an act where the last day to 
perform the act falls on Saturday, Sunday, or a legal holiday, apply to 
the time limits for the mailings described in A-5, A-6, A-52, A-53, and 
A-55 of Sec. 35a.9999-1?
    A-3. Yes. For example, a mailing that must be sent on or before 
Saturday, December 31, 1983, will be considered timely if sent on or 
before Tuesday, January 3, 1984.
    Q-4. Are trustees, custodians, or other fiduciaries subject to the 
due diligence standard?
    A-4. The due diligence standard does not apply to a trustee, 
custodian, or other fiduciary, unless such person is a

[[Page 460]]

payor of reportable interest or dividends. A trustee, custodian, or 
other fiduciary is not a payor of reportable interest of dividends 
simply because the trustee, custodian, or fiduciary receives a payment 
of reportable interest or dividends. If a trust is considered a payor of 
reportable interest or dividends under A-20, below, however, the due 
diligence standard applies.
    Q-5. Is a payor required to send the mailings described in A-5 and 
A-6 of Sec. 35a.9999-1 by first-class mail, if it is the practice of the 
payor not to send correspondence to the payee by first-class mail, but 
rather to deliver personally, or to use intra-office mail to communicate 
with the payee?
    A-5. No. A payor may send the mailing or mailings by first-class 
mail, by personal delivery, or by intra-office mail, provided that the 
mailing or mailings are delivered by the same method used by the payor 
in sending account activity and balance information and other 
correspondence to the payee.
    Q-6. Must a payor affix postage to the return envelope to satisfy 
the requirement of including a postage-prepaid reply envelope in the 
mailings described in A-5 and A-6 of Sec. 35a.9999-1?
    A-6. The requirement that a payor must include a postage-prepaid 
reply envelope will be satisfied by the use of a ``postage-prepaid 
envelope,'' a ``business reply mail envelope,'' or by affixing the 
required postage to a self-addressed reply envelope. (A ``business reply 
mail envelope'' involves an arrangement in which postage is charged only 
when a customer returns the reply envelope.)
    Q-7. Must a payor who sends the mailings described in A-5 and A-6 of 
Sec. 35a.9999-1 to a foreign address affix postage to the reply 
envelope?
    A-7. No. A payor is required to include only a self-addressed reply 
envelope in a mailing to a foreign address. A payor is not required to 
affix postage to a reply envelope included in a mailing to a foreign 
address, regardless of whether the payee is a United States citizen, a 
United States resident, or a non-resident alien.
    Q-8. Will a payor who sends the mailings described in A-5, A-6, A-
52, A-53, and A-55 of Sec. 35a.9999-1 violate the separate mailing 
requirement if the payor sends both a form W-9 (or substitute form) and 
a Form W-8 (or substitute form) in the same mailing?
    A-8. No. The payor may include in any separate mailing both a 
solicitation of the payee's taxpayer identification number (Form W-9) 
and a solicitation of a certification of the payee's foreign status 
(Form W-8).
    Q-9. Do ``window transactions,'' as defined in Q-42 of 
Sec. 35a.9999-1, include payments on Treasury bills and other 
instruments not in definitive form?
    A-9. No. Because Treasury bills are not in definitive form, payments 
upon Treasury bills are not treated as window transactions. Similarly, 
payments upon other instruments not in definitive form are not treated 
as window transactions. The special rules for window transactions set 
forth in A-42 of Sec. 35a.9999-1 thus apply only to redemptions of 
United States savings bonds, and to payments upon interest coupons, 
commercial paper, and banker's acceptances, if such instruments are in 
definitive form. The due diligence requirements set forth in A-5 and A-6 
of Sec. 35a.9999-1 are thus applicable to payors of payments on Treasury 
bills and other instruments not in definitive form, if those instruments 
are considered to have been acquired before 1984, and mature after 
December 31, 1983. In addition, the certification requirements set forth 
in A-32 of Sec. 35a.9999-1 and all other relevant backup withholding 
requirements apply to payments on Treasury bills and other instruments 
not in definitive form.

                    Requirement of Backup Withholding

    Q-10. Does backup withholding apply to reportable payments other 
than reportable interest and dividend payments?
    A-10. Yes. Backup withholding also applies to payments that are 
subject to reporting under sections 6041(a) or (b), 6041A(a), and 6045, 
and to certain payments reportable under section 6050A (``other 
reportable payments''). Backup withholding applies to other reportable 
payments, other than payments reportable under section 6045, only if: 
(1) The payee fails to furnish a taxpayer identification number to the 
payor; or (2) the Internal Revenue Service notifies

[[Page 461]]

the payor that the taxpayer identification number furnished by the payee 
is not correct. Except in the case of payments reportable under section 
6045, a payee of other reportable payments is not required to make any 
certifications under penalties of perjury, unless the payee seeks to 
claim the exemption from withholding while waiting for receipt of a 
taxpayer identification number (as explained in A-18, below). See A-12 
and A-13, below, for rules regarding the application of backup 
withholding to transactions subject to reporting under section 6045.
    Q-11. Under what circumstances is a payor of payments reportable 
under section 6041 or section 6041A(a) required to impose backup 
withholding?
    A-11. A payor is required to withhold on reportable payments under 
sections 6041 and 6041A(a) only if: (1) A payee is subject to backup 
withholding under A-10, above, (i.e., the payee fails to furnish a 
taxpayer identification number to the payor or the Internal Revenue 
Service notifies the payor that the taxpayer identification number 
furnished by the payee is not correct); and (2) any one of the following 
three conditions is satisfied: (a) Reportable payments to the payee 
aggregate $600 or more during the calendar year; (b) the payor was 
required to file an information return under section 6041 or section 
6041A(a), whichever is applicable, with respect to that payee for the 
preceding calendar year (i.e., payments subject to reporting under 
section 6041 or section 6041A(a), whichever is applicable, aggregated 
$600 or more to the payee for the preceding calendar year); or (c) the 
payor was required to impose backup withholding on payments made to the 
payee during the preceding calendar year (and the payments subject to 
backup withholding were of a type reportable under section 6041 or 
section 6041A(a), whichever is applicable).
    If a payor pays amounts aggregating $600 or more to a payee during a 
calendar year (condition (a) above), the amount subject to withholding 
is: (1) The amount of the payment that causes the aggregate payments to 
the payee during the calendar year to total $600 or more (assuming that 
the payor made no payments during the preceding calendar year that were 
subject to either reporting under section 6041 or section 6041A(a), 
whichever is applicable, or backup withholding); and (2) the amount of 
any additional payments of a type subject to reporting under section 
6041 or section 6041A(a), whichever is applicable, made to the payee 
before the payee provides a taxpayer identification number to the payor 
or after the Internal Revenue Service notifies the payor that the 
taxpayer identification number furnished by the payee is not correct. 
For example, if a payor made payments of $200 each on March 31 1984, 
June 30, 1984, and September 30, 1984, to a payee, which were reportable 
under section 6041, the payments on March 31 and June 30 would not be 
subject to backup withholding, because the $600 threshold would not have 
been reached as a result of making either of those payments (assuming 
that payments made to the payee during 1983 did not aggregate $600 or 
more and were thus not subject to reporting). However, the payor would 
be required to withhold 20 percent of the $200 payment made on September 
30, if the payee did not furnish a taxpayer identification number to the 
payor, or the Internal Revenue Service notified the payor that the 
number provided by the payee is incorrect, prior to the payment date 
(September 30). If the payor made a $50 payment of a type reportable 
under section 6041, on December 31, 1984, to the same payee, the payor 
would be required to withhold 20 percent of the $50 payment, if the 
payee had not provided a taxpayer identification number, or the Internal 
Revenue Service notified the payor that the number provided by the payee 
is incorrect, prior to the date of payment (December 31).
    If, in the preceding calendar year, a payor was required to file an 
information return with respect to payments to the payee under section 
6041 or section 6041A(a) (condition (b) above), or a payor is required 
to impose backup withholding with respect to payments of a type that 
were reportable under such sections (condition (c) above), the payor is 
required to withhold 20 percent of any payment of a type reportable 
under section 6041 or section 6041A(a) made to the payee during the 
following year, regardless of the

[[Page 462]]

amount of the payment, if, prior to the date of the payment, the payee 
fails to provide a taxpayer identification number to the payor, or the 
Internal Revenue Service notifies the payor that the number provided by 
the payee was not correct. Assume, for example, that a payor made 
reportable payments under section 6041 to a payee that aggregated $600 
or more during 1983, so that the payor was required to file an 
information return with respect to the payments for 1983. If the payor 
paid $300 to the payee on January 31, 1984, and the payment was of a 
type reportable under section 6041, the payor would be required to 
withhold 20 percent of the $300 payment, if, prior to January 31, 1984, 
the payee did not provide a taxpayer identification number to the payor, 
or the Internal Revenue Service notified the payor that the number 
provided by the payee was not correct. Moreover, because payments during 
1984 to the payee, of a type subject to reporting under section 6041, 
would be subject to backup withholding, the payor would be required to 
withhold 20 percent of any payment of a type reportable under section 
6041 that was made to the payee in 1985, unless the payee provided a 
taxpayer identification number prior to the payment date, or corrected 
the number provided, if the payor was notified by the Service that the 
previous number was not correct.
    In making the determination of whether payments to a payee aggregate 
$600 or more during a calendar year or whether condition (b) or 
condition (c) applies to a payee, the payor must aggregate and take into 
account payments of the same kind made to the same payee. Payments that 
are reportable under section 6041 are not required to be aggregated with 
payments reportable under section 6041A(a). Payors may, in their 
discretion, aggregate: (1) Payments not of the same kind to the same 
payee, reportable under section 6041 and 6041A(a), and (2) payments 
reportable under section 6041 with payments reportable under section 
6041A(a).
    Q-12. Does backup withholding apply to gross proceeds subject to 
reporting under section 6045?
    A-12. Yes. Backup withholding applies to gross proceeds reportable 
by brokers, if the customer does not furnish a taxpayer identification 
number to the broker in the manner required, or the Internal Revenue 
Service notifies the broker that the number furnished by the customer 
was incorrect. With respect to a post-1983 account (as defined in A-41 
of Sec. 35a.9999-1), the taxpayer identification number provided by a 
customer must be certified under penalties of perjury. With respect to 
all other accounts, the customer's taxpayer identification number is not 
required to be certified under penalties of perjury. For example, if a 
customer who had no prior relationship with a broker opens an account, 
arranges for the broker to sell readily tradable securities for $100 
during 1984, and the sale is required to be reported under section 6045, 
the gross proceeds of the sale are subject to backup withholding, if the 
customer does not provide: (1) His taxpayer identification number to the 
broker and certify it under penalties of perjury; or (2) an awaiting TIN 
certification (described in A-18, below).
    Special rules governing backup withholding with respect to commodity 
futures contracts, margin account transactions, and short sale 
transactions will be issued in the near future.
    Q-13. Does backup withholding apply to barter exchanges that are 
subject to reporting under section 6045?
    A-13. Yes. If the barter exchange is required to report an exchange 
under section 6045, it is required to impose backup withholding if a 
member of the barter exchange does not provide a taxpayer identification 
number in the manner required or the Internal Revenue Service notifies 
the barter exchange that the number provided by the member is incorrect. 
With respect to an account or ongoing relationship established between a 
barter exchange and a member after December 31, 1983, the member is 
required to provide a taxpayer identification number to the barter 
exchange under penalties of perjury. With respect to all other accounts, 
the member's number is not required to be certified under penalties of 
perjury.
    Q-14. What action is a payor of reportable interest or dividends 
required to take

[[Page 463]]

with respect to payments made on a readily tradable instrument held by a 
payee, if: (1) Additional readily tradable instruments of the same issue 
are purchased by the same payee, (2) it is the practice of the payor to 
combine in one account all the readily tradable instruments of the same 
issue owned by the same payee (and to make a single aggregate payment 
with respect to all readily tradable instruments of the same issue 
included in the account), and (3) certain of the readily tradable 
instruments of the same issue owned by the payee are subject to backup 
withholding and others are not subject to backup withholding?
    A-14. If it is the practice of a payor to combine in one account all 
readily tradable instruments of the same issue owned by a payee and if 
certain of those instruments are subject to backup withholding and 
others are not subject to backup withholding, the payor is required to 
withhold 20 percent of the aggregate payment made with respect to all 
the instruments in the account. If it is not the practice of the payor 
to combine in one account all readily tradable instruments of the same 
issue owned by a payee, the payor is required only to withhold 20 
percent of the payment made on the instrument or instruments with 
respect to which the payee is subject to backup withholding.
    For example, assume that a payee, prior to 1984, held a readily 
tradable instrument and that a taxpayer identification number had been 
provided to the payor. Assume further, during 1984: (1) The payee 
acquired another readily tradable instrument of the same issue through a 
post-1983 brokerage relationship, (2) the broker notified the payor that 
the payee failed to certify that he was not subject to backup 
withholding due to notified payee underreporting, and (3) the payor, in 
accordance with its customary practice, combined in one account both 
readily tradable instruments of the same issue owned by the payee and 
made an aggregate payment with respect to both instruments in the 
account. In this circumstance, the payor would be required to withhold 
20 percent of the aggregate payment made with respect to both of the 
instruments of the same issue owned by the payee.
    Q-15. Does backup withholding apply to original issue discount?
    A-15. Yes. Original issue discount is treated as a payment of 
interest reportable under section 6049. Thus, original issue discount is 
subject to backup withholding in the same circumstances in which backup 
withholding applies to an actual payment of interest. In determining the 
timing and amount of original issue discount subject to backup 
withholding, rules consistent with Sec. 31.3455(b)-1 of the Employment 
Taxes and Collection of Income Tax at Source Regulations shall apply. 
Thus, the amount to be withheld is limited to the amount of cash paid.
    Q-16. If an exempt recipient files a Form W-9 (or a substitute form) 
in order to be exempt from backup withholding, may the payor rely on the 
form if the payee fails to include its taxpayer identification number on 
the form?
    A-16. No. A Form W-9 (or substitute form) may be relied upon by a 
payor only if it includes the payee's taxpayer identification number. 
Thus, if the Form W-9 (or substitute form) provided by the payee does 
not contain a taxpayer identification number, the payor must withhold 20 
percent of all payments made to the payee. If, however, the payor treats 
the payee as an exempt recipient under A-29 of Sec. 35a.9999-1 and 
Sec. 31.3452(c)-1 (b) through (p) of the Employment Taxes and Collection 
of Income Tax at Source Regulations without requiring the payee to file 
a Form W-9 (or substitute form), the payor is not required to withhold, 
even though the payee has not furnished a taxpayer identification number 
to the payor. This exception, however, is not available to barter 
exchanges subject to reporting under section 6045.
    Q-17. In determining whether a payee failed to provide a taxpayer 
identification number to a payor, within what period of time must a 
payor treat a taxpayer identification number or an ``awaiting TIN 
certification'' (as defined in A-18, below) provided by a payee as 
having been received?
    A-17. As provided in A-31 of Sec. 35a.9999-1, a payor is required to 
process a taxpayer identification number within 30 days after the payor 
receives the taxpayer identification number from the payee. Thus, for 
example, if a payor of

[[Page 464]]

a payment reportable under section 6041 or section 6041A(a) receives a 
taxpayer identification number on January 16, 1984, the payor must 
process the number on or before February 15, 1984. As a result, the 
payor should commence backup withholding with respect to payments made 
to the payee after January 16, 1984, if the payee were subject to backup 
withholding under A-10 and A-11, above, but the payor must cease backup 
withholding by February 15, 1984. The payor may, however, treat the 
taxpayer identification number as having been received at any time 
within 30 days after it is provided, so that backup withholding in the 
example outlined above would not have to be imposed on any payment if 
the payor processed the number prior to making the payment.
    A payor also has 30 days after delivery by a payee of an awaiting 
TIN certification (as defined in A-18, below) to treat the certificate 
as having been received.

                    Exceptions To Backup Withholding

    Q-18. Is a payor required to impose backup withholding during a 
period when a payee is waiting for receipt of a taxpayer identification 
number?
    A-18. In general, if a payee does not provide a taxpayer 
identification number to a payor, the payor must withhold 20 percent of 
all payments made to the payee on or after January 1, 1984. However, the 
payee will not be subject to backup withholding for a period of 60 days, 
if the payee is waiting for receipt of a taxpayer identification number. 
In order to be entitled to the 60 day exemption, the payee must comply 
with the requirements of this A-18.
    A payee shall be treated as if he provided a certified taxpayer 
identification number for a period of 60 days following the day the 
payor receives a certificate signed under penalties of perjury (an 
``awaiting TIN certification''). (See A-17, above, for rules related to 
the day on which an awaiting TIN certification may be treated as having 
been received.) If the payor does not receive a taxpayer identification 
number within 60 days after the payee delivers the awaiting TIN 
certification to the payor, the payor must withhold 20 percent of all 
payments made to the payee, until the payee provides a taxpayer 
identification number to the payor. The awaiting TIN certification must 
contain statements: (1) That the payee has not been issued a taxpayer 
identification number, (2) that the payee has applied for a number or 
intends to apply for a number in the near future, and (3) that the payee 
understands that if the payee does not provide a taxpayer identification 
number to the payor within 60 days, the payor is required to withhold 20 
percent of any payments made thereafter to the payee until a number is 
provided. Language that is substantially similar to the following will 
satisfy this requirement:
    I certify, under penalties of perjury, that a taxpayer 
identification number has not been issued to me, and that I mailed or 
delivered an application to receive a taxpayer identification number to 
the appropriate Internal Revenue Service Center or Social Security 
Administration Office (or I intend to mail or deliver an application in 
the near future). I understand that if I do not provide a taxpayer 
identification number to the payor within 60 days, the payor is required 
to withhold 20 percent of all reportable payments thereafter made to me 
until I provide a number.

    The foregoing certification, at the discretion of the payor, may be 
included on the same form as the certifications required by A-32 of 
Sec. 35a.9999-1.
    The payor may use Form W-9, as currently issued by the Internal 
Revenue Service, to satisfy the requirements of this A-18. If the Form 
W-9 is used, the payee should write ``Applied For'' in the space 
reserved for the taxpayer identification number. The payor also should 
inform the payee, in supplemental instructions or orally, ``that if a 
taxpayer identification number is not received by the payor within 60 
days, the payor is required to withhold 20 percent of all reportable 
payments thereafter made to the payee until the payor receives a number 
from the payee.'' Future editions of the Form W-9 will contain the 
supplemental instruction.
    A payee who seeks to qualify for the 60 day exemption from backup 
withholding also must certify, under penalties of perjury, that the 
payee is not subject to backup withholding due to

[[Page 465]]

notified payee underreporting, when required to do so by A-32 of 
Sec. 35a.9999-1 or A-12 or A-13, above. Thus, a payee who establishes an 
account or acquires an instrument after December 31, 1983, will be 
subject to backup withholding irrespective of whether the payee 
certifies that the payee is waiting for receipt of a taxpayer 
identification number, if the payee fails to make the certification 
described in A-32 of Sec. 35a.9999-1 or A-12 or A-13, above, concerning 
notified payee underreporting.
    When a payee who opens an account or acquires an instrument after 
December 31, 1983, and who qualifies for this 60 day exemption furnishes 
a taxpayer identification number to the payor, the payee is required to 
certify under penalties of perjury, in accordance with A-32 of 
Sec. 35a.9999-1 or A-12 or A-13, above, that the taxpayer identification 
number provided is correct. If no such certification is provided, the 
payor must institute backup withholding.
    A special rule is provided for accounts that are established, or 
instruments that are acquired (in the case of reportable interest or 
dividend payments) or relationships established (in the case of other 
reportable payments) before January 1, 1984. All payees of such 
accounts, instruments, or relationships will be treated as if they are 
waiting for receipt of a taxpayer identification number, without any 
action on their part, until January 16, 1984. The payor must withhold 20 
percent of any payment made after January 16, 1984, unless: (1) The 
payee has certified, as required by this A-18, that the payee is waiting 
for receipt of a taxpayer identification number or (2) the payor 
receives a taxpayer identification number from the payee. If, however, a 
payor has been provided with a Form W-9 (or substitute form) with an 
``Applied For'' designation, by a payee of an account, instrument, or 
relationship established before January 1, 1984, the form will be valid 
for 60 days, notwithstanding the fact that the supplemental instruction 
referred to above was not provided to the payee.
    Assume, for example, that the payee of an account established before 
January 1, 1984, delivered an awaiting TIN certification to the payor on 
December 30, 1983 and the payor processed the certification that day. 
The payor should not impose backup withholding on payments made to the 
payee prior to February 29, 1984, because the payee is treated under 
this A-18 as having provided a taxpayer identification number during 
that period. If the payor did not receive a number from the payee prior 
to February 29, the payor would be required to withhold 20 percent of 
any payment made to the payee on or after February 29, and before the 
payee provided a number. (See A-17, above, however, for the rules 
relating to the date on which the payor may be treated as having 
received the awaiting TIN certification or a taxpayer identification 
number.) As another example, assume that a payee of an account 
established before January 1, 1984, delivered an awaiting TIN 
certification to the payor on January 12, 1984 and processed it that 
day. The payor should not impose backup withholding on payments made 
between January 1 and January 12, because the payee would be treated 
during that period as if he had provided a taxpayer identification 
number under the rule set forth above. Moreover, backup withholding 
would not apply to payments made during the 60 days following January 
12, because the payee on that date delivered an awaiting TIN 
certification. Backup withholding would begin only if the payor had not 
received a taxpayer identification number within that 60 day period. 
(See A-17, above, however, for the rules relating to the dates on which 
the payor may be treated as having received the certificate or the 
taxpayer identification number.)
    The 60 day exemption applicable when a payee provides an awaiting 
TIN certification applies to payments made on readily tradable 
instruments only if the instrument is acquired directly from the payor 
(including a broker that holds the instrument in street name), unless 
the payee provides an awaiting TIN certification directly to the payor. 
Thus, if a broker opens a new account after 1983 and acquires a readily 
tradable instrument for a payee who has no taxpayer identification 
number, and the instrument is not held in street name, the broker must 
advise the payor that the payee failed to provide a taxpayer 
identification number

[[Page 466]]

under penalties of perjury, regardless of whether an awaiting TIN 
certification is provided to the broker. The payor in such a situation, 
however, must include in the notice sent to a payee (as required by A-39 
of Sec. 35a.9999-1) a statement informing the payee that, if the payee 
does not have a taxpayer identification number, the payee will be exempt 
from backup withholding for a period of 60 days following the payor's 
receipt of an awaiting TIN certification, provided that the payee signs 
an awaiting TIN certification and returns it to the payor. (See A-17, 
above, for the rules relating to the date on which the payor may be 
treated as having received the certificate.) An awaiting TIN 
certification, in a form permitted by this A-18, should be included with 
the notice. The form of the notice described in A-39 of Sec. 35a.9999-1 
and this A-18 is set forth in the Appendix to this temporary regulation.
    Neither the 60 day exemption nor the special presumption applicable 
to accounts, instruments, and relationships established before January 
1, 1984 applies to window transactions, as defined a A-9, above, and Q-
42 of Sec. 35a.9999-1. Therefore, a payor is required to withhold 20 
percent of any window transaction payment whenever a payee of such a 
payment does not provide a taxpayer identification number of the payor. 
See A-56, A-57, A-58 and A-59 of Sec. 35a.9999-3 for the actions that a 
payor must take to exercise due diligence after December 31, 1987, for 
an account with respect to which the payor received an awaiting-TIN 
certification to avoid a penalty under section 6676 (b) for filing an 
information return with a missing taxpayer identification number. Payors 
will remain liable for any applicable penalties under section 6676 for 
years prior to 1988.
    Q-19. Are payors required to withhold on payments that are less than 
$10, or that, if determined on an annualized basis, would be less than 
$10 (a ``minimal payment'')?
    A-19. A payor of reportable interest or dividends has the option not 
to withhold on minimal payments, or, alternatively, to withhold on 
payments of any amount. The principles of Sec. 31.3452(d)-1 of the 
Employment Taxes and Collection of Income Tax at Source Regulations 
shall be utilized in determining whether a reportable interest or 
dividend payment may be treated as a minimal payment with respect to 
which backup withholding is not required.
    The annualization requirement of Sec. 31.3452(d)-1 of the Employment 
Taxes and Collection of Income Tax at Source Regulations shall not apply 
to window transaction payments. A payor may choose not to withhold on 
any window transaction payment that is less than $10. However, all 
window transaction payments made at the same time must be aggregated.
    The $10 minimal payment exception does not apply to other reportable 
payments (i.e., payments other than reportable interest or dividends), 
except payments reportable under section 6045. Payments reportable under 
section 6045, like reportable interest and dividends, are subject to 
backup withholding, at the payor's option, only if the reportable amount 
exceeds $10. The annualization rule of Sec. 31.3452(d)-1 of the 
Employment Taxes and Collection of Income Tax at Source Regulations is 
inapplicable to payments reportable under section 6045.
    Q-20. Are beneficiaries of trusts or estates subject to backup 
withholding on distributions from the trust or estate?
    A-20. A beneficiary of a trust or estate is subject to backup 
withholding only if the trust or estate is a payor of a reportable 
payment. If a trust or estate receives a payment of interest, dividends 
or any other reportable amount, and if the trust or estate is not a 
grantor trust (and thus reports receipt of the reportable amount on a 
Form 1041 (see Sec. 1.671-4 of the Income Tax Regulations)), 
distributions by the trust or estate to the beneficiaries will not be 
considered to be a payment of interest, dividends or other reportable 
amounts.
    Special rules are provided, however, with respect to trusts when a 
grantor is considered the owner of all or a portion of the trust (and 
there are included in computing the grantor's tax liability those items 
of income attributable to that portion of the trust) (a ``grantor 
trust''). The special rules applicable to such trusts do not affect

[[Page 467]]

payors of payments made to a grantor trust. Rather, the payments to the 
trust are subject to the general rules of backup withholding. Payments 
between a grantor trust and its grantors, however, are subject to the 
special rules, which differ depending on the number of grantors.
    If a trust has ten or fewer grantors, payments of interest, 
dividends or other reportable amounts (except gross proceeds reportable 
under section 6045) made to the trust are considered payments of the 
same kind made by the trust (as payor) to each grantor (as payee), in 
proportion to each grantor's ownership ot the trust. Each grantor of 
such a trust is treated as having received his or her proportionate 
share of the reportable payment on the day the payment is received by 
the trust. Accordingly, any reportable payments made to the trust are 
treated as reportable payments made by the trust to the grantor or 
grantors and are subject to all applicable backup withholding 
requirements. If, for example, a grantor of a trust having 10 or fewer 
grantors had not provided a taxpayer identification number to the trust 
in the manner required, the trustee would be required to withhold and 
remit 20 percent of the reportable payment. In addition, the trustee of 
a grantor trust having ten or fewer grantors, established on or after 
January 1, 1984, may not certify either that the trust is not subject to 
backup withholding due to notified payee underreporting or that the 
taxpayer identification number provided is correct, unless each grantor 
has furnished the trustee with such a certification signed under 
penalties of perjury. See Q/A-54 of Sec. 35a.9999-3 which revises the 
rule in this paragraph.
    If a grantor trust has more than ten grantors, the trustee is 
required to treat payments of interest, dividends or other reportable 
payments (except gross proceeds reportable under section 6045) made to 
the trust as payments of the same kind made by the trust to each 
grantor, in an amount equal to the distribution made by the trust to 
each grantor, on the date on which the distribution to the grantor is 
paid or credited. The trust is thus treated as a payor of the same types 
of payments received by the trust, for the purpose of the backup 
withholding requirements. The trustee of such a trust is required to 
withhold 20 percent of amounts paid or credited to any grantor who is 
subject to backup withholding if: (1) The grantor fails to provide a 
taxpayer identification number to the trust, (2) the grantor fails to 
provide a certification required by A-32 of Sec. 35a.9999-1, (3) the 
trust is required to impose backup withholding under the special rules 
applicable to readily tradable instruments (A-40 of Sec. 35a.9999-1), or 
(4) the Internal Revenue Service notifies the trustee that the grantor 
provided an incorrect taxpayer identification number. If the reportable 
amount of the distribution is greater than the amount distributed, the 
trustee may, in its discretion subject the entire reportable amount to 
backup withholding.
    For example, if a grantor trust having 100 grantors received a 
reportable interest payment of $1,000,000, which was of a type 
reportable under section 6049, and made a cash distribution of $900 to 
each grantor (after deducting certain expenses), the trustee would be 
required to withhold 20 percent of the $900 payment made to any grantor 
who was subject to backup withholding. Similarly, if a grantor trust 
having 100 grantors received an oil royalty payment of $100,000, which 
was of a type reportable under section 6041, and the trust made a cash 
distribution of $8,000 to each grantor (after deducting certain 
production related taxes and expenses), the trustee would be required to 
withhold 20 percent of the $8,000 payment made to any payee who had not 
provided a taxpayer identification number to the trust. Because the 
certifications required by A-32 of Sec. 35a.9999-1 do not apply to 
payments of a type reportable under section 6041, grantors of the trust 
would not be subject to backup withholding if they failed to make such 
certifications.
    In addition, the trustee of a grantor trust having more than ten 
grantors may certify that the trust's taxpayer identification number is 
correct and that the trust is not subject to backup withholding due to 
notified payee underreporting, without regard to the status of the 
individual grantors of the trust.

[[Page 468]]

    Q-21. Are reportable payments made to exempt recipients subject to 
backup withholding?
    A-21. Answer 29 (A-29) of Sec. 35a.9999-1 provides that a payor of 
reportable interest of dividends is not required to withhold on payments 
made to exempt recipients. Backup withholding also is not required with 
respect to any other reportable payment made to an exempt recipient 
described in Sec. 31.3452(c)-1 (b) through (p) of the Employment Taxes 
and Collection of Income Tax at Source Regulations, except in the case 
of (1) payments with respect to barter exchange transactions reportable 
under section 6045, and (2) payments reportable under sections 6041, 
6041A, and 6050A. A middleman, however, shall include only a nominee or 
custodian known generally in the investment community as a nominee or 
listed in the most recent publication of the American Society of 
Corporate Secretaries, Inc. Nominee List. The exempt recipients 
described in this A-21 shall also be so treated for purposes of 
Sec. 1.6045-1(c)(3)(i) of the Income Tax Regulations.

                             Foreign Persons

    Q-22. Will a form relating to exemptions for foreign persons be 
issued by the Internal Revenue Service?
    A-22. The Service is currently preparing Form W-8, on which a payee 
may sign, under penalties of perjury, the statement described in 
Sec. 1.6049-5(b)(2)(iv) and Sec. 1.6045-1(g)(1) of the Income Tax 
Regulations, whichever is applicable. See A-51, A-52 and A-55 of 
Sec. 35a.9999-1 for other requirements. The Form W-8, however, may not 
be available prior to the time that payors intend to make the mailing or 
mailings required by A-52 or A-55 of Sec. 35a.9999-1. Accordingly, 
payors should use the substitute form described in Sec. 1.6049-
5(b)(2)(iv) or Sec. 1.6045-1(g)(1), whichever is applicable, on which a 
payee may make the certifications concerning the payee's foreign status 
and provide his name, address, and taxpayer identification number (if 
any). If a payor sends a substitute Form W-9 to a payee, the payor may 
incorporate the required foreign status certification on the substitute 
Form W-9.

                            Record Retention

    Q-23. Under what circumstances are payors required to retain the 
documents they receive from payees?
    A-23. With respect to a pre-1984 account or instrument (as defined 
in A-34 of Sec. 35a.9999-1) or any brokerage relationship that is not a 
post-1983 account (as defined in A-41 of Sec. 35a.9999-1), the payor is 
not required to retain either: (1) A form on which a payee certified 
concerning the correctness of a taxpayer identification number, or (2) 
an awaiting TIN certification, if the payor can establish the existence 
of procedures that are reasonably calculated to ensure that a payee who 
so certified is accurately identified in the payor's records. With 
respect to all other accounts or instruments, however, payors are 
required to retain all certification documents in the same manner and 
for the same period of time that the payor retains other account-
creation or instrument-purchase documents.

                                Appendix

    The notice required by A-39 of Sec. 35a.9999-1 and A-18, above, 
shall be substantially in the form provided below:
    Recently, you purchased [identify security acquired]. Because of the 
existence of one or more of the following conditions, payments of 
interest, dividends, and other reportable amounts that are made to you 
will be subject to backup withholding of tax at a 20 percent rate: 
[specify the condition or conditions applicable]
    (1) You failed to provide a taxpayer identification number, or 
failed to provide such number under penalties of perjury, in connection 
with the purchase of the acquired security. (An individual's taxpayer 
identification number is his social security number.)
    (2) The taxpayer identification number that you provided is not your 
correct number.
    (3) You are subject to backup withholding due to notified payee 
underreporting (section 3406(a)(1)(C) of the Internal Revenue Code).
    (4) You failed to certify that you are not subject to backup 
withholding due to notified payee underreporting (section 3406(a)(1)(D) 
of the Internal Revenue Code).
    If condition (1) or (2) applies, you may stop withholding by 
providing your taxpayer identification number on the enclosed Form W-9, 
signing the form, and returning it to us. If you do not have a taxpayer 
identification number, but have (or will soon) apply for one, you may so 
indicate on the Form W-9;

[[Page 469]]

in that case, you will not be subject to withholding for a period of 60 
days, but you must provide us with your taxpayer identification number 
promptly after you receive it in order to avoid withholding after the 
end of the 60-day period. Certain persons, described on the enclosed 
Form W-9, are exempt from withholding. Follow the instructions on that 
form if applicable to you.
    If condition (3) applies, and you do not believe you are subject to 
withholding due to notified payee underreporting, please contact your 
local Internal Revenue Service office.
    If condition (4) applies, you may stop withholding by certifying on 
the enclosed Form W-9 that you are not subject to backup withholding due 
to notified payee underreporting, signing the form, and returning it to 
us.
    If more than one condition applies, you must remove all applicable 
conditions to stop withholding.
    Please address any questions concerning this notice to:

[Insert Payor Identifying Information]

(Do not address questions to the broker who purchased the securities for 
you.)


[T.D. 7922, 48 FR 53106, Nov. 25, 1983, as amended by T.D. 7929, 48 FR 
56342, Dec. 20, 1983; 49 FR 9417, Mar. 13, 1984; T.D. 8163, 52 FR 44874, 
Nov. 23, 1987; T.D. 8248, 54 FR 14350, Apr. 11, 1989]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-2 was removed, effective Jan. 1, 1999. At 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001.



Sec. 35a.9999-3  Questions and answers concerning backup withholding.

    The following questions and answers principally concern the backup 
withholding requirement with respect to reportable payments. These 
requirements are issued under the Interest and Dividend Tax Compliance 
Act of 1983 (Pub. L. 98-67, 97 Stat. 369):

                               In General

    Q-1. Who has the legal obligation to withhold on reportable payments 
made to a payee who is subject to backup withholding?
    A-1. The person required to withhold (the payor) is the person who 
is required by the applicable provision to make an information return 
with respect to a payment under section 6041, 6041A(a), 6042, 6044, 
6045, 6049, or 6050A. For example, in the case of a person who has a 
paying agent making a reportable payment to a payee, the paying agent is 
not the payor but is merely an agent for the principal (payor). In the 
case of a payment which is collected on behalf of, or for the account 
of, a payee, the payor (``middleman'') is the person collecting or 
receiving the payment, irrespective of whether he is acting as the agent 
of the payee, or as agent for the issuer of the instrument. For example, 
a payee may establish a custodial account with a financial institution 
or brokerage firm where instruments are held for the benefit of the 
payee. The interest or dividends may be paid to a nominee of the 
financial institution or brokerage firm. The financial institution or 
brokerage firm will, in turn, credit the payee's custodial account. The 
financial institution or brokerage firm is the payor since it receives 
and credits payment to the payee's account and is required to make an 
information return showing such payment to the payee. See A-20 of 
Sec. 35a.9999-2 for special rules related to grantor trusts.
    Q-2. What consequences result if a payor fails to withhold on 
payments made to a payee who is subject to backup withholding?
    A-2. A payor is subject to the same requirements and penalties for 
failing to impose backup withholding as an employer making a payment of 
wages. Consequently, under section 3403 and Sec. 31.3403-1 of the 
Employment Taxes and Collection of Income Tax at Source Regulations, a 
payor is liable for the tax whether or not the payor withholds the tax 
from a payee who is subject to backup withholding. A payor may be 
relieved of liability for the tax which was required to be withheld if 
the payor can show that the tax has been paid by the payee, as provided 
in section 3402(d) and Sec. 31.3402(d)-1 of the Employment Taxes and 
Collection of Income Tax at Source Regulations. In addition to liability 
for the tax, a payor who fails to withhold when required may be subject 
to civil penalties under section 6651 (addition to the tax for failure 
to pay any tax required to be shown on the payor's return), section 6656 
(penalty for failure to make deposit of taxes) and section 6672 (penalty

[[Page 470]]

for failure to collect and pay over tax) and to criminal penalties under 
section 7201 (penalty for willfully attempting to evade or defeat any 
tax or the payment of any tax), section 7202 (penalty for willful 
failure to collect or pay over any tax), and section 7203 (penalty for 
willful failure to pay tax). The fact that a payor shows that the tax 
has been paid by the payee will not relieve the payor of liability for 
any civil or criminal penalty. The payor is not liable to any person for 
any withheld amount. The payor will only be liable to the United States 
for the tax which was required to be withheld as provided in 
Sec. 31.3403-1 of the Employment Taxes and Collection of Income Tax at 
Source Regulations.

                         Requirement to Withhold

    Q-3. Is a payor required to withhold if the taxpayer identification 
number furnished by a payee is an ``obviously incorrect number''?
    A-3. Yes. As provided in A-28 of Sec. 35a.9999-1, a payee shall be 
treated as having failed to furnish a taxpayer identification number to 
the payor if the number furnished is obviously incorrect. An obviously 
incorrect number is any taxpayer identification number that does not 
contain nine digits or a number that includes one or more alpha 
characters.
    Q-4. When are payments considered to be paid and thus subject to 
backup withholding?
    A-4. With respect to reportable interest or dividends, backup 
withholding applies when the payor pays interest, dividends, or 
patronage dividends to a payee who is subject to backup withholding. 
Amounts are paid when they are credited to the account of or set apart 
for the payee. Amounts are not considered paid solely because they may 
be withdrawn by the payee, so long as they are not credited to the 
payee's account, until either actual withdrawal or a specified crediting 
date.
    Amounts are considered paid, however, upon withdrawal or crediting. 
If a bank credits interest on savings accounts only on the last day of 
each month or when the account is closed, then backup withholding 
applies at the time interest is paid on the last day of each month and 
when the account is closed.
    When bonds are sold between interest payment dates, the portion of 
the sales price representing interest accrued to the date of sale is not 
considered to be a payment of interest for purposes of section 6049, but 
will be considered a reportable payment under section 6045. Therefore, 
if the gross proceeds of the sale are subject to backup withholding 
under A-12 of Sec. 35a.9999-2, 20 percent of the sales price, including 
the portion representing accrued interest, will be subject to backup 
withholding.
    In the case of stock for which the record date is earlier than the 
payment date, the dividend is considered paid on the payment date. For 
example, if a corporation declares a dividend on September 1 to the 
record holders as of September 12, and the dividends are payable on 
October 12, backup withholding applies on October 12 (the payment date). 
In the case of a corporate reorganization, if a payee is required to 
exchange stock held in the former corporation for stock in the new 
corporation before the dividends which have been paid with respect to 
the stock in the new corporation will be provided to the payee, the 
dividend is considered paid on the payment date without regard to when 
the payee actually exchanges the stock and receives the dividend.
    If a payor (such as a money market fund) computes interest or 
dividends daily but credits the interest or dividends on the last day of 
each month, then backup withholding applies on the last day of each 
month. If a payor computes and credits interest or dividends daily, 
backup withholding applies daily.
    With respect to any reportable payment other than reportable 
interest or dividends, backup withholding applies at the time the 
payment is made or in the case of a transaction reportable under section 
6045 when the amount subject to backup withholding is determined. Except 
in the case of forward contracts, regulated futures contracts, and 
security short sales, the amount subject to backup withholding in the 
case of a transaction reportable under section 6045 is determined on the 
date of the sale or exchange. See Sec. 1.6045-1

[[Page 471]]

(d)(4) and (f)(3) of the Income Tax Regulations (and Announcement 88-6, 
1988-3 I.R.B. 52) for the applicable sale or exchange date and A-23 
through A-25 and A-27 for special rules applicable to forward contracts, 
regulated futures contracts, security short sales, and issuer payment of 
debt securities. The date by which the payor is required to make an 
information return is irrelevant for purposes of determining when the 
payment is made and thus subject to backup withholding.
    In the case of a middleman required to withhold tax, rules similar 
to Sec. 31.3453(b)-1 (b) of the Employment Taxes and Collection of 
Income Tax at Source Regulations shall apply. In the case of a United 
States savings bond, see Sec. 1.6049-4(d)(9) of the Income Tax 
Regulations.

           Payments and Amounts Subject to Backup Withholding

    Q-5. Is interest paid on a mortgage escrow account with a financial 
institution or interest earned on certain premiums paid with respect to 
an insurance policy, subject to backup withholding?
    A-5. Yes. Both a payment of interest to a mortgage escrow account 
with a financial institution and a payment that represents an increment 
in value of ``advance premiums,'' ``prepaid premiums,'' or ``premium 
deposit funds'' which is applied to the payment of premiums due on an 
insurance policy, or is made available for withdrawal by the 
policyholder, are subject to reporting under section 6049 and thus are 
subject to backup withholding.
    Q-6. If a payor imposes a penalty for premature withdrawal of funds 
deposited in a time savings account, certificate of deposit, or similar 
class of deposit, is the payor required to calculate the tax to be 
withheld on the amount of the reportable interest payment (not reduced 
by any penalty)?
    A-6. No. A payor may, at its option, take into account any penalty 
it actually imposes on a payee when it calculates the amount to be 
withheld. If the payor chooses to take the penalty into account, the 
amount subject to backup withholding would be the amount of interest the 
payee actually receives. The gross amount of the payment, however, is 
subject to information reporting.
    Q-7. If a payor is able to estimate the portion of a distribution 
which is not a dividend, is the payor nevertheless required to impose 
backup withholding on the gross amount of the distribution?
    A-7. If the payor is unable to determine the portion of a 
distribution which is a dividend, backup withholding applies to the 
entire amount of the distribution. If a payor is able reasonably to 
estimate the portion of the distribution which is not a dividend, 
however, backup withholding does not apply to such portion. A payor 
making a payment all or a portion of which may not be a dividend may use 
previous experience to estimate the portion of such payment which is not 
a dividend. An estimate of the portion of a distribution which is not a 
dividend shall be considered reasonable if the estimate does not exceed 
the proportion of the distributions made by the payor during the most 
recent calendar year for which Forms 1099 and 1087 were required to be 
filed which was not reported by the payor as a dividend.
    Q-8. Are dividends which are reinvested in stock of the company 
subject to backup withholding?
    A-8. Dividends which are reinvested pursuant to a qualified plan in 
stock of a public utility are not subject to backup withholding. For 
this purpose, the amount of the reinvested dividend paid to any person, 
the identity of the recipient, and whether the recipient makes the 
election required by section 305(e)(2)(B) are irrelevant. All other 
reinvested dividends are subject to backup withholding.
    Backup withholding shall apply to the amount of any dividend 
available to the shareholder, or credited to the shareholder's account. 
At the discretion of the payor, backup withholding need not be applied: 
(1) To any excess of the fair market value of the shares of stock 
received by the shareholder or credited to the shareholder's account 
over the purchase price of such shares (including additional shares 
acquired by the shareholder at a discount in connection with the 
dividend distribution) or (2) to any fee which is paid by the payor in 
the nature of a broker's fee for purchase of the stock or service

[[Page 472]]

charge for maintenance of the shareholder's account. The payor must, 
however, treat such excess amounts and fees on a consistent basis for 
each calendar year. Thus, the payor is not required to impose backup 
withholding on any amount in excess of the actual cash value of the 
dividend declared which the payee would have received had the payee not 
been a participant in the dividend reinvestment plan.
    Q-9. Are there any payments of dividends that are not subject to 
backup withholding?
    A-9. Yes. Backup withholding does not apply to--
    (i) Any amount treated as a taxable dividend by reason of section 
302 (relating to redemptions of stock).
    (ii) Any amount treated as a taxable dividend by reason of section 
306 (relating to disposition of certain stock).
    (iii) Any amount treated as a taxable dividend by reason of section 
356 (relating to receipt of additional consideration in connection with 
certain reorganizations).
    (iv) Any amount treated as a taxable dividend by reason of section 
1081(e)(2) (relating to certain distributions pursuant to an order of 
the Securities and Exchange Commission).
    (v) Any amount which is an exempt-interest dividend, as defined in 
section 852(b)(5)(A), of a regulated investment company.
    (vi) Any amount paid or treated as paid during a year by a regulated 
investment company, provided that the payor reasonably estimates, as 
provided in A-7, that 95 percent or more of all dividends paid or 
treated as paid during the year are exempt-interest dividends.
    (vii) Any dividend that is reinvested pursuant to a qualified plan 
in stock of a public utility as provided in A-8.
    The foregoing exceptions do not apply to backup withholding on gross 
proceeds reportable under section 6045.
    Q-10. What amount of a payment reportable under section 6044 is 
subject to backup withholding?
    A-10. If a payee fails to provide his taxpayer identification number 
or, for relationships with or memberships in a cooperative that are 
established after December 31, 1983, fails to provide a taxpayer 
identification number under penalties of perjury, the amount subject to 
backup withholding is any amount subject to reporting under section 
6044, but only to the extent that the payment is made in money or by 
qualified check (as defined in section 1388(c)(4)). Thus, the payor 
shall withhold 20 percent of the amount paid in money or by qualified 
check to a payee who has failed to provide a taxpayer identification 
number in the manner required. For example, if a cooperative pays a 
patronage dividend of $2,000, consisting of $200 in cash, $300 by a 
qualified check and $1,500 in a qualified written notice of allocation, 
the amount subject to backup withholding is $500 (the amount paid in 
money and by qualified check). Thus, if the payee failed to provide a 
taxpayer identification number in the manner required, the cooperative 
would be required to withhold 20 percent of the $500.
    If a payee (whose relationship with or membership in a cooperative 
was established after December 31, 1983) fails to certify that the payee 
is not subject to backup withholding due to notified payee 
underreporting, the amount subject to backup withholding is the amount 
of any payment reportable under section 6044 that is paid in money or by 
qualified check, but only if 50 percent or more of the reportable amount 
is paid in money or by qualified check. Therefore, in the case where 
there has been a payee certification failure, if a payment is made 50 
percent or more in cash and by qualified check, the payor is required to 
withhold 20 percent of the amount of the cash and qualified check. If 
less than 50 percent of the payment is paid in cash or by qualified 
check, no amount is subject to backup withholding. For example, if a 
cooperative pays a patronage dividend consisting of $350 in cash, $250 
by a qualified check, and $400 in a qualified written notice of 
allocation, 20 percent of $600 (the amount paid in money and by 
qualified check) is required to be withheld if there is a payee 
certification failure. If $100 were paid in cash, $250 by a qualified 
check, and $650 in a qualified written notice of allocation, however, 
the payment would not be subject to backup withholding even though there 
is a payee certification failure because

[[Page 473]]

less than 50 percent of the patronage dividend is paid in cash or by 
qualified check.
    Q-11. If a payor makes a reportable payment in property (other than 
money), is the payor required to impose backup withholding?
    A-11. Yes. In the case of a payment that is made in property, backup 
withholding applies to the fair market value of the property determined 
on the date of payment except in the case of certain payments subject to 
reporting under section 6050A.
    Q-12. If the payor is required to withhold on a payment made in 
property, in what manner may the payor withhold?
    A-12. The payor may withhold on the principal amount being deposited 
with the payor, or the payor may withhold from another account or source 
maintained by the payor for the payee. The account or source from which 
such tax is withheld must be payable to at least one of the persons 
listed on the account subject to backup withholding. If the account or 
source is not payable solely to the same person or persons listed on the 
account subject to backup withholding, then the payor must obtain a 
written statement from all other persons to whom the account or source 
is payable authorizing the payor to withhold the tax from such account 
or source. The payor electing to withhold from an alternative source may 
determine the account or source from which the tax is to be withheld. 
The payor is liable for any tax that is required to be withheld if the 
recipient of the payment is subject to backup withholding. A payor may 
not withhold from an alternative source except with respect to payments 
in property.

       Amounts Subject to Reporting Under Section 6041 or 6041A(a)

    Q-13. Under what circumstances will a payment of a type subject to 
information reporting under section 6041 be exempt from backup 
withholding?
    A-13. An information return is not required to be made with respect 
to payments described in Sec. 1.6041-3 of the Income Tax Regulations 
and, therefore, such payments are not subject to backup withholding. In 
addition, payments otherwise reportable under section 6041 that are made 
to the following persons will not be subject to backup withholding:
    (i) An organization exempt from taxation under section 501(a), or an 
individual retirement plan,
    (ii) The United States,
    (iii) A State, the District of Columbia, a possession of the United 
States, or any political subdivision of any of the foregoing,
    (iv) A foreign government or political subdivision of a foreign 
government,
    (v) An international organization,
    (vi) Any wholly owned agency or instrumentality of any person 
described in (ii), (iii), (iv), or (v), or
    (vii) A foreign central bank of issue.
    The provisions of Sec. 31.3452(c)-1 of the Employment Taxes and 
Collection of Income Tax at Source Regulations shall apply for the 
purpose of determining whether a payee to whom a payment is made is 
subject to information reporting and backup withholding. For example, 
during 1984, payor K, in the course of its trade or business makes a 
payment of rent of $700 to R Inc. for the use of premises owned by R 
Inc. Under Sec. 1.6041-3(c) of the Income Tax Regulations payments to a 
corporation are not subject to information reporting (except in the case 
of certain payments not relevant here). Under Sec. 31.3452(c)-1(b)(2) of 
the Employment Taxes and Collection of Income Tax at Source Regulations, 
K may treat R Inc. as a corporation because its name contains the 
unambiguous expression of corporate status, ``Inc.'' Because the payment 
of rent to R Inc. is not subject to information reporting, it is not 
subject to backup withholding. If, however, K made the payment of rent 
to S Company, K would not be authorized to treat S Company as a 
corporation because ``company'' is not an unambiguous expression of 
corporate status. See Sec. 31.3452(c)-1(b)(2) of the Employment Taxes 
and Collection of Income Tax at Source Regulations. Accordingly, K would 
be required to make an information return with respect to the payment 
under sections 6041 and withhold 20 percent of the payment to S Company, 
if S Company did not furnish a taxpayer identification number to K.
    Q-14. Do the exceptions under section 6041 and the regulations 
thereunder apply

[[Page 474]]

to payments subject to reporting under section 6041A(a)?
    A-14. For purposes of both information reporting and backup 
withholding, the exceptions under section 6041 shall apply to payments 
of a type reportable under section 6041A until regulations are issued 
under section 6014A; the rules of A-13 shall apply to such payments. 
Thus, in general, payments of the type reportable under section 6041A(a) 
that are made to corporations or general agents are not subject to 
information reporting or backup withholding. (See A-15 relating to 
payments to certain medical corporations.)
    Q-15. Does backup withholding apply to a payment reportable under 
section 6041 or section 6041A(a) that is paid to a corporation engaged 
in providing medical and health care services or engaged in the billing 
and collection of payments in respect of medical and health care 
services (other than certain tax-exempt or governmental facilities 
described in Sec. 1.6041-3(c) (1) and (2) of the Income Tax 
Regulations)?
    A-15. Yes. Such amounts are subject to information reporting under 
section 6041 and 6041A(a) and thus are subject to backup withholding. 
The exception from backup withholding for payments to exempt recipients 
(described in A-21 of Sec. 35a.9999-2) does not apply in the case of 
payments that are subject to reporting under sections 6041, 6041A(a) or 
6050A.
    Q-16. Does backup withholding apply to oil royalty payments that are 
subject to reporting under section 6041 or effective for royalty 
payments made after December 31, 1986, section 6050N?
    A-16. Backup withholding does not apply to an oil royalty payment if 
windfall profit tax is actually withheld under section 4986. If windfall 
profit tax is not actually withheld from the oil royalty payment 
(because, for example, payment is made with respect to ``exempt royalty 
oil'' (as defined in section 4993(f)), the oil royalty payment is 
subject to backup withholding. The amount subject to backup withholding 
is the amount the payee receives (i.e., the gross proceeds less 
production related taxes such as State severance tax). The payor shall 
not be liable to any person other than the United States for the amount 
of tax withheld.
    Q-17. Does backup withholding apply to net commissions paid to an 
unincorporated special agent with respect to insurance policies that are 
subject to reporting under section 6041?
    A-17. Backup withholding does not apply to commissions reportable 
with respect to such an unincorporated special agent, provided that no 
cash is actually paid by the payor to the special agent.
    Q-18. Does backup withholding apply to ``designated distributions'' 
(as defined in section 3405(d)(1)) if the distribution is not subject to 
reporting under section 6041?
    A-18. No. As specified in A-30 of Sec. 35a.9999-1, backup 
withholding applies only to distributions from pensions, annuities, or 
other plans of deferred compensation that are subject to reporting under 
section 6041. Thus, the following distributions are among those exempt 
from backup withholding because they are not subject to reporting under 
section 6041: (1) Distributions from an individual retirement account 
(subject to reporting under sections 408(i) and 6047(d)); (2) 
distributions from an owner-employee plan (subject to reporting under 
section 6047(b)); (3) certain surrenders of life insurance contracts 
(subject to reporting under section 6047(e)); and (4) distributions from 
a qualified bond purchase plan (subject to reporting under section 
6047(c)).
    Q-19. Does backup withholding apply to payments of gambling winnings 
that are subject to reporting under section 6041?
    A-19. Backup withholding does not apply to any portion of reportable 
gambling winnings with respect to which tax is actually withheld under 
section 3402(q). In any case in which the reportable gambling winnings 
are not withheld upon under section 3420(q), backup withholding applies. 
Thus, gambling winnings reportable under section 6041 are subject to 
backup withholding if the payee does not furnish a taxpayer 
identification number and the payment is not withheld upon under section 
3402(q). Answer 11 of Sec. 35a.9999-2 does not apply to gambling 
winnings. Thus, the payor is not required to determine whether any of 
the three conditions

[[Page 475]]

specified therein applies with respect to the payee.
    For purposes of information reporting and backup withholding, (1) 
the reportable gambling winnings is the amount paid with respect to the 
amount of the wager reduced, at the option of the payor, by the amount 
of the wager, and (2) amounts paid with respect to identical wagers are 
treated as paid with respect to a single wager for purposes of 
calculating the amount of proceeds from a wager. The determination of 
whether amounts paid with respect to a single wager are identical shall 
be made under the rules of Sec. 31.3402(q)-(1,)(c)(1)(ii) of the 
Employment Taxes and Collection of Income Tax at Source Regulations. In 
addition, until further regulations are issued, gambling winnings in 
excess of $600 are reportable only if the payout is based on betting 
odds of 300 to 1, or higher. The applicability of the odds requirement 
to information reporting and backup withholding is being studied by the 
Service and is subject to change in further regulations. Notwithstanding 
the odds requirement, winning from bingo, keno, and slot machines are 
subject to backup withholding if reportable under Sec. 7.6041-1 of the 
temporary Income Tax Regulations.

                    Definition of a Pre-1984 Account

    Q-20. Under what circumstances is an account or instrument treated 
as a pre-1984 account?
    A-20. Answer 34 of Sec. 35a.9999-1 describes generally the accounts 
and instruments that are treated as a pre-1984 account. In addition, the 
purchase of additional shares in a credit union, where a prime account 
existed before 1984, shall be considered a pre-1984 account. If funds 
taken from one account, in existence prior to January 1, 1984, are used 
to create a new account on or after such date, however, the new account 
generally does not constitute a pre-1984 account. For example, with 
respect to a disposition of shares in a mutual fund and the purchase of 
shares of another fund within a group of mutual funds which occurs after 
December 31, 1983, the shares acquired in the second fund are not 
treated as a pre-1984 account unless the payee owned shares in the 
second fund prior to January 1, 1984.
    If a shareholder is enrolled before January 1, 1984, in a dividend 
reinvestment program to purchase additional shares of the corporation 
sponsoring the program, the shares acquired through the program are 
considered a pre-1984 account, in the discretion of the payor. In the 
case of a qualified employee trust that distributes instruments in kind, 
any instrument distributed from the trust will be considered a pre-1984 
account with respect to employees who were participants in the plan 
before January 1, 1984. Similarly, when a payor offers participants in a 
plan the opportunity to purchase stock of the payor after a specified 
time using the money that the payee invested during that period of time, 
the stock so purchased after December 31, 1983, shall be considered a 
pre-1984 account with respect to participants in the plan who either 
owned shares or invested money in the plan before January 1, 1984.
    An instrument with respect to which a broker is the payor is a pre-
1984 account if the brokerage account in which the instrument is held is 
not a ``post-1983 account.'' Answer 41 of Sec. 35a.9999-1 describes 
generally the manner of determining whether a brokerage relationship is 
a post-1983 account. In addition, a brokerage relationship will not be 
treated as a post-1983 account if (i) a broker redeems or repurchases 
securities which were acquired by the seller prior to January 1, 1984, 
and (ii) either (A) the issuer of the securities is the broker obligated 
to make an information return under section 6045 or (B) the broker was 
obligated during 1983 to redeem the securities.

                   Brokerage Accounts and Transactions

    Q-21. Does backup withholding apply to bonds the interest from which 
is exempt from taxation under section 103?
    A-21. Interest on a tax-exempt obligation is not reportable under 
section 6049 if the payee provides a written certification to the payor 
(other than the issuer) that interest on the obligation is exempt from 
tax. See Sec. 1.6049-

[[Page 476]]

5(b)(1)(ii) of the Income Tax Regulations. If the interest is not 
reportable under section 6049, it is not subject to backup withholding. 
A broker, however, is required to report the gross proceeds of a sale of 
a tax-exempt bond (including redemption of the bond at maturity) under 
section 6045. Thus, the gross proceeds from the sale of such a bond are 
subject to backup withholding. Any accrued and unpaid tax-exempt 
interest included in the sales proceeds is not reportable under 
Sec. 1.6045-1(d)(3) of the Income Tax Regulations. Accordingly, backup 
withholding is not required with respect to the portion of the proceeds 
of the sale that represents accrued tax-exempt interest.
    Q-22. Does backup withholding apply to a redemption of a share in a 
mutual fund?
    A-22. Generally, yes. A redemption of shares of a mutual fund (other 
than a redemption at an issue price described in Sec. 1.6045-1(c)(3)(iv) 
of the Income Tax Regulations) is a reportable payment under section 
6045, and thus the gross proceeds are subject to backup withholding if 
the fund is considered a broker or a broker is otherwise involved.
    Q-23. What amounts are subject to backup withholding upon the 
disposition of forward contracts or regulated futures contracts?
    A-23. If a customer is subject to backup withholding with respect to 
an account containing forward contracts or regulated futures contracts, 
the broker must withhold 20 percent of the following amounts:
    (i) All cash or property withdrawn from the account by the customer 
during the year. A withdrawal includes the use of money or property in 
the account to purchase any property other than property acquired in 
connection with the closing of a contract. For this purpose, the 
acceptance of a warehouse receipt or other taking delivery to close a 
contract is in connection with the closing of a contract only if the 
property acquired is disposed of by the close of the seventh trading day 
following the trading day that the customer takes delivery under the 
contract. In addition, the making delivery to close a contract is in 
connection with the closing of a contract only if the broker is able to 
determine that the property used to close the contract was acquired no 
earlier than the seventh trading day prior to the trading day on which 
delivery is made. Cash withdrawals do not include repayments of debt 
incurred in connection with a making or taking delivery that meets the 
requirements of the preceding three sentences. A withdrawal also does 
not include payments of variation margin, commissions, fees, a transfer 
of cash from the account to another futures account that is subject to 
the rules of this A-23, or cash withdrawals traceable to dispositions of 
property other than futures (not including profit on the contract 
separately reportable under Sec. 1.6045-1(c)(5)(i)(b) of the Income Tax 
Regulations).
    (ii) The amount of cash in the account available for withdrawal by 
the customer at the relevant year-end (as described in Sec. 1.6045-
1(c)(5) of the Income Tax Regulations).
    The payor must include the amount withheld and the amounts subject 
to withholding, in addition to the amounts otherwise reportable under 
section 6045, on the Form 1099-B filed with respect to a customer who is 
subject to backup withholding. The determination of whether the customer 
is subject to backup withholding should be made at the time of (1) the 
cash or property withdrawals or (2) the relevant year-end, whichever is 
applicable.
    Q-24. What amount is subject to backup withholding with respect to 
security sales made through a margin account?
    A-24. The amount subject to backup withholding in the case of a 
security sale made through a margin account (as defined in 12 CFR Part 
220 (Regulation T)) is the gross proceeds (as defined in Sec. 1.6045-
1(d)(5) of the Income Tax Regulations) on such sale. The amount required 
to be withheld with respect to such a sale, however, is limited to the 
amount of cash available for withdrawal by the customer immediately 
after the settlement of the sale. For this purpose, the amount available 
for withdrawal by the customer does not include amounts required to 
satisfy margin maintenance under: Regulation

[[Page 477]]

T, rules and regulations of the National Association of Securities 
Dealers and national securities exchanges, and generally applicable 
self-imposed rules of the margin account carrier. Thus, for example, if 
the broker forces a customer sale to meet the requirements of Regulation 
T (a maintenance call), none of the proceeds of such a sale are subject 
to backup withholding (except to the extent of the fractional amount of 
the last share sold which exceeds the amount needed to meet the 
Regulation T margin requirement).
    Q-25. What amount is subject to backup withholding with respect to 
security short sales?
    A-25. The amount subject to backup withholding with respect to a 
short sale of securities is ordinarily the gross proceeds (as defined in 
Sec. 1.6045-1(d)(5) of the Income Tax Regulations) on such short sale. 
At the option of the broker, however, the amount subject to backup 
withholding may be the gain upon the closing of the short sale (if any) 
and the obligation to withhold can be deferred until the closing. A 
broker may use this alternative method of determining the amount subject 
to backup withholding with respect to a short sale only if at the time 
the short sale is initiated the broker expects that the amount of gain 
realized upon the closing of the short sale will be determinable from 
the broker's records. If, due to events unforeseen at the time the short 
sale was initiated, the broker is unable to determine the basis of the 
property used to close the short sale, the property shall be assumed to 
have a basis of zero. The determination of whether a short seller is 
subject to backup withholding shall be made on the date (1) of the 
initiation or closing, as the case may be, or (2) that the initiating or 
closing, as the case may be, is entered on the broker's books and 
records.
    Q-26. How does backup withholding apply to foreign currency 
contracts (as defined in section 1256(g))?
    A-26. In general, brokers shall report with respect to foreign 
currency contracts in accordance with the rules for reporting with 
respect to regulated futures contracts (see Sec. 1.6045-1(c)(5)). For 
purposes of Sec. 1.6045-1(c)(5)(i)(b) of the Income Tax Regulations 
realized profit (or loss) from a foreign currency contract is 
determined--
    (1) In the case of making or taking delivery, by comparing the 
contract price to the spot price for the contract currency at the time 
and place specified in the contract, and
    (2) In the case of a closing by entry into an offsetting contract, 
by comparing the contract price to the price of the offsetting contract.
    For purposes of Sec. 1.6045-1(c)(5)(i) (c) and (d), unrealized 
profit in a foreign currency contract is determined by comparing the 
contract price to the broker's price for similar contracts at the close 
of business of the relevant year. Appropriate additions will be made to 
Sec. 1.6045-1(c) of the Income Tax Regulations in the near future. For 
rules determining the amount subject to backup withholding under 
Sec. 1.6045-1(c)(5), see A-23.
    Q-27. When does backup withholding apply to payments arising as a 
result of the retirement or redemption of a debt security subject to 
reporting under section 6045?
    A-27. With respect to the retirement or redemption of a debt 
security before January l, 1988, backup withholding applies on the sale 
date under Sec. 1.6045-1(d)(4) of the Income Tax Regulations. 
Additionally, a broker that is also the obligor on a debt security may 
elect to apply backup withholding on the payment date.
    With respect to the retirement or redemption of a debt security 
after December 31, 1987, backup withholding applies on the date the 
``sale'' is entered on the books of the broker. Additionally, a broker 
that is also the obligor on a debt security may elect to apply backup 
withholding on the payment date if later than the ``sale'' date.
    A broker must determine whether backup withholding applies on the 
same date (either the date entered on the books of the broker or the 
payment date) for all similarly situated payees receiving payments on 
the same type of debt security.

       Special Rules With Respect to Readily Tradable Instruments

    Q-28. Do special rules apply if an account or instrument is acquired 
directly

[[Page 478]]

from the payor or reportable interest or dividends after December 31, 
1983?
    A-28. Yes. Special rules apply depending on the manner in which the 
instrument is acquired. In the case of a readily tradable instrument 
acquired directly from the payor by means of electronic transmission 
(e.g., telephone or wire transfer), the payee, at the payor's option, 
shall be given 30 days after such acquisition to provide the 
certifications required in A-32 of Sec. 35a.9999-1, before the payor is 
required to impose backup withholding on the reportable interest or 
dividends, Provided That the payee furnishes a taxpayer identification 
number to the payor at the time of the acquisition. If the payee 
withdraws any of the interest or dividends before the certifications are 
received, however, the payor must withhold 20 percent of the reportable 
amounts. For purposes of the preceding sentence, all cash withdrawals in 
an amount up to the reportable amounts are assumed to be interest or 
dividends. In addition, the payor must commence withholding on all 
reportable interest or dividends in connection with the instrument or 
account 30 days after the acquisition, if the payee has not provided the 
required certifications to the payor by such date.
    The special rule described in the preceding paragraph shall also 
supply to acquisitions that are effected before January 1, 1985, by mail 
communication. With respect to accounts or instruments acquired by mail 
or after January 1, 1985, the payor is required to impose backup 
withholding on the reportable interest or dividend payments if the payee 
has not provided the required certifications at the time that the first 
reportable payment is made.
    Q-28A. Do special rules apply if a broker sells securities for a 
customer pursuant to a telephone instruction, in circumstances in which 
the customer failed to provide a certified taxpayer identification 
number as required by A-12 of Sec. 35a.9999-2?
    A-28A. Yes. The customer, at the payor's option, shall be given 30 
days after the date of the sale to furnish a certification as required 
by A-12 of Sec. 35a.9999-2, provided that (1) the payee furnishes his 
taxpayer identification number before the sale and (2) the customer does 
not withdraw the proceeds of the sale prior to the time the required 
certification is provided (or backup withholding is applied). For 
purposes of the preceding sentence, an investment of the cash proceeds 
of the sale in other property shall be considered a withdrawal by the 
customer; however, investment in other property shall be permitted if, 
at all times, at least 20 percent of all gross proceeds reportable under 
section 6045 are held in cash by the broker. If the customer does not 
provide the required certification within 30 days after the date of the 
sale, the broker must withhold 20 percent of all reportable gross 
proceeds on the 31st day after the date of the sale.
    Q-28B. Will transition rules apply to backup withholding on gross 
proceeds reportable by brokers under section 6045?
    A-28B. Yes. The following transition rules will apply until April 1, 
1984. First, for purposes of backup withholding on gross proceeds 
reportable by brokers, the penalties of perjury certification required 
by A-12 of Sec. 35a.9999-2 (for post-1983 accounts) may be waived, at 
the broker's option, until April 1, 1984. A customer who opens an 
account after December 31, 1983, and who consummates a sale prior to 
April 1, 1984, will not be subject to backup withholding, provided that 
the customer furnishes a taxpayer identification number to the broker 
prior to the sale. The gross proceeds from sales made through post-1983 
accounts after March 31, 1984, however, will be subject to backup 
withholding if the customer does not provide a taxpayer identification 
number certified under penalties of perjury. See A-28A for special rules 
applicable when a sale is made pursuant to a telephone instruction.
    Second, until April 1, 1984, the gross proceeds from a sale made 
through a pre-1984 account, by a customer who has not provided a 
taxpayer identification number, will not be subject to backup 
withholding, at the broker's option, Provided that (1) the customer 
furnishes his number to the broker within 30 days after the date of the 
sale, and (2) the customer does not withdraw the proceeds of the sale 
prior to the time his taxpayer identification

[[Page 479]]

number is furnished to the broker (or backup withholding is applied). 
For purposes of the preceding sentence, an investment of the cash 
proceeds shall be considered a withdrawal by the customer; however, 
investment of the proceeds in other property shall be permitted if, at 
all times during the 30-day period, at least 20 percent of all gross 
proceeds reportable under section 6045 are held in cash within the 
customer's account by the broker. If the customer does not furnish his 
taxpayer identification number within 30 days after the date of sale, 
the broker must withhold 20 percent of all reportable gross proceeds on 
the 31st day after the date of the sale.
    If, with respect to forward contracts, regulated futures contracts, 
security short sales, or issuer payment of debt securities, the broker 
applies backup withholding on a date other than the sale date (see A-23 
through A-25 and A-27), the rules of this A-28B shall apply as if any 
date on which the broker determines whether backup withholding applies 
were a sale date.
    Q-29. If a readily tradable instrument is transferred in a 
transaction between parties unrelated to the payor of the instrument 
without the assistance of a broker, is the transferee required to 
certify either the correctness of the taxpayer identification number or 
that the transferee is not subject to backup withholding due to notified 
payee underreporting?
    A-29. No. Certification is not required in the case of a transfer of 
a readily tradable instrument between parties unrelated to the payor if 
the parties act without the assistance of a broker.
    Q-30. If a bond in bearer form is redeemed by the obligor after 
December 31, 1983, is the payee required to certify under penalties of 
perjury the correctness of the payor's taxpayer identification number?
    A-30. Yes. The redemption of such an obligation is subject ot 
reporting under section 6045 if a broker is otherwise involved. However, 
the reedemption of an interest coupon is considered a window transaction 
as provided in A-42 of Sec. 35a.9999-1, so the payee is not required to 
certify the correctness of the taxpayer identification number.

                          Foreign Transactions

    Q-31. What representations must a person make, on a certificate 
signed under penalties of perjury, to establish that the is an exempt 
foreign person under Sec. 1.6045-1(g)(1) of the Income Tax Regulations 
and, consequently, that the gross proceeds of his broker transactions 
are not section 6045 reportable payments which may be subject to backup 
withholding?
    A-31. In order to be treated as an exempt foreign person under 
Sec. 1.6045-1(g)(1) of the Income Tax Regulations with respect to 
transactions effected by a broker during a calendar year, a customer 
will only be required to certify to the broker the following: (1) That 
the foreign person is neither a citizen nor a resident of the United 
States, (2) that the foreign person has not been, and at the time the 
statement is furnished reasonably expects not to be, present, in the 
United States for a period aggregating 183 or more days during the 
calendar year, and (3) that the foreign person is not, and at the time 
the statement is furnished reasonably expects not to be, engaged in a 
United States trade or business with respect to which any gain derived 
from transactions effected by the broker during that calendar year is 
effectively connected. In lieu of making the certifications in (2) or 
(3) of the preceding sentence, the person may instead certify that he is 
a beneficiary of an income tax treaty to which the United States is a 
party and pursuant to which gains from his broker transactions are 
exempt from Federal income taxation. A person may make this latter 
certification only if all conditions to the exemption provided by the 
treaty are actually satisfied.
    In accordance with the foregoing, the Service will amend 
Sec. 1.6045-1(g) of the Income Tax Regulations to indicate that a 
foreign person need make no express representations to a broker 
concerning the application of section 877 or section 6013 (g) or (h) 
(although a person with respect to whom a section 6013 (g) or (h) 
election is in effect may not make the representation in (1) above that 
he is not a resident of the United States). These amendments will apply 
with respect to substitute forms prepared by the broker, as well as to

[[Page 480]]

the Form W-8 (which is being developed by the Service for use under the 
requirements both of Sec. 1.6049-5(b)(2)(iv) and Sec. 1.6045-1(g)(1) of 
the Income Tax Regulations). Subject to A-32, all other provisions of 
Sec. 1.6045-1(g) of the Income Tax Regulations will remain in effect.
    Q-33. With respect to payments of United States source original 
issue discount on obligations having maturities of six months or less 
from the date of original issue, must a payor obtain the statement 
described in Sec. 1.6049-5(b)(2)(iv) of the Income Tax Regulations from 
a payee who is neither a citizen nor a resident of the United States in 
order to avoid section 6049 information reporting and the possible 
application of backup withholding?
    A-33. Generally, when making payments of United States source 
interest or original issue discount to a payee who is a foreign person, 
the payor need not obtain the certificate described in Sec. 1.6049-
5(b)(2)(iv) of the Income Tax Regulations since the payor usually either 
withholds tax on the amounts paid in accordance with subchapter A of 
chapter 3 of the Code or obtains a Form 1001 from the payee with respect 
to such payments. See Sec. 1.6049-5(b)(2)(i) and (ii) of the Income Tax 
Regulations. However, as original issue discount on obligations having 
maturities of six months or less from the date of original issue is not 
subject to United States tax when paid to a foreign person, there is 
neither withholding under subchapter A of chapter 3 of the Code nor the 
receipt of a Form 1001 with respect to such amount. In order to treat 
original issue discount on obligations having maturities of six months 
or less from the date of original issue the same under Sec. 1.6049-
5(b)(2) of the Income Tax Regulations as interest and original issue 
discount on other obligations, the Service will allow a payee who is a 
foreign person to substitute a Form 1001 for the statement described in 
Sec. 1.6049-5(b)(2)(iv) of the Income Tax Regulations with respect to 
original issue discount on obligations having maturities of six months 
or less from the date of original issue. Despite the substitution of the 
Form 1001 for the Form W-8 or substitute form prepared by the payor, all 
other procedures of Sec. 1.6049-5(b)(2)(iv) of the Income Tax 
Regulations will apply.
    Section Sec. 1.6049-5(b)(2) of the Income Tax Regulations will be 
amended to reflect the modifications made by this A-33.
    Q-34. Are payments of foreign source interest made on deposits 
outside the United States by a foreign branch of a United States bank 
reportable payments that may be subject to backup withholding?
    A-34. As provided in Sec. 1.6049-5(b)(1)(ix) of the Income Tax 
Regulations, such payments are not required to be reported under section 
6049. However, except to the extent such payments are less than $600 in 
a taxable year or are made to persons who are neither citizens nor 
residents of the United States, they are subject to information 
reporting under section 6041(a).
    For purposes of section 6041(a), a foreign branch of a United States 
bank may treat a person as being neither a citizen nor a resident of the 
United States if the bank has evidence in its records to such effect 
(provided it does not have actual knowledge that the evidence is false). 
Such evidence may include a written indication from the payee (e.g., 
appearing on an account application form) that the payee is neither a 
citizen nor a resident of the United States. The mere fact, however, 
that the payee has provided in address outside the United States is 
insufficient evidence to establish for this purpose that the payee is 
neither a citizen nor a resident of the United States. For payments made 
on or before November 20, 1984 on deposit accounts opened on or before 
August 22, 1984, an affidavit by an employee of the bank stating that 
the employee knows, or that the payee has represented orally, that the 
payee is not a U.S. person will be sufficient to establish such foreign 
status. For all other payments on deposits, the employee's affidavit 
will be sufficient to establish the payee's foreign status only if the 
affidavit states that the employee has a reasonable basis, founded on 
documentary evidence, for believing that the payee is neither a citizen 
nor a resident of the United States. Foreign source interest payments 
made on deposits outside the United States by foreign branches of United 
States

[[Page 481]]

banks to United States persons, although reportable payments under 
section 6041(a), are not subject to backup withholding at this time. 
However, the issue of whether backup withholding should be applied with 
respect to payments described in this A-34, as well as the issue of the 
standard of evidence required to provide foreign status for information 
reporting purposes, is presently under further consideration. If backup 
withholding is subsequently determined to be appropriate, or the 
circumstances in which information reporting is required are changed, 
such will be provided in future regulations. Such changes, in that case, 
would apply on a prospective basis only.
    The foregoing provisions do not apply, however, with respect to a 
payment by the branch of interest on a deposit evidenced by a bearer 
obligation that it has issued in accordance with the procedures of 
Sec. 1.163-5T(c)(2)(i) (B) or (C) (which include, in the case of 
Sec. 1.163-5T(c)(2)(i)(C), the requirement that the issuer maintain 
documentary evidence that demonstrates that the purchaser is either not 
a United States person, or if it is a United States person, that it is 
not an individual who is either a citizen or resident of the United 
States, and that it will comply with section 165(j)(3) (A), (B), or (C) 
and the regulations thereunder), provided that the branch does not act 
in the capacity of a custodian, nominee, or other agent of the payee 
with respect to the obligation. Where the branch is not acting in that 
capacity with respect to the obligation, it is not subject to the 
information reporting provisions of section 6041(a) unless it has actual 
knowledge that the payee is a United States person. Notwithstanding any 
provision of Q-37 of Sec. 35a.9999-3 to the contrary, a payment of 
interest on deposits evidenced by obligations issued in accordance with 
the procedures of Sec. 1.163-5(c)(2)(i) (B) or (C) shall not be 
considered to be made outside the United States if it is made to a 
United States address, whether by mail or by electronic transfer.
    Q-35. In the case of a payment to joint payees, must a payor obtain 
the statement described in Sec. 1.6049-5(b)(2)(iv) of the Income Tax 
Regulations (or other verification of foreign status described in 
Sec. 1.6049-5(b)(2) (ii) or (iii) of the Income Tax Regulations) with 
respect to each payee in order for such payment to be exempt from 
information reporting under Sec. 1.6049-5(b)(1)(vi) of the Income Tax 
Regulations and from the possible application of backup withholding?
    A-35. Yes. In order for a payment to be exempt from information 
reporting under Sec. 1.6049-5(b)(1)(vi) of the Income Tax Regulations 
(and in order not to constitute a reportable payment to which backup 
withholding may apply), the payor must ascertain in accordance with the 
provisions of Sec. 1.6049-5(b)(2) of the Income Tax Regulations that 
each payee is a foreign person. A broker similarly must verify the 
independent status of each person on a joint account as an exempt 
foreign person in accordance with the provisions of Sec. 1.6045-1(g)(1) 
of the Income Tax Regulations, and of A-31 and A-32, in order to exempt 
transactions effected on behalf of such account from section 6045 
information reporting and from the possible application of backup 
withholding.
    If the first payee named on the account, but not every joint payee, 
provides the verification of foreign status referred to in this A-35, 
backup withholding shall commence unless any one of the joint payees has 
provided a taxpayer identification number to the payor in the manner 
otherwise required in Secs. 35a.9999-1 and 35a.9999-2. This is contrary 
to the general rule of section 3406(h)(3), which would require backup 
withholding to commence unless a taxpayer identification number is 
obtained from the first payee listed in the payment.
    Q-36. In order to avoid information reporting under section 6042 and 
the possible application of backup withholding, must a payor of United 
States source dividends to a person having an address outside the United 
States obtain from such person a statement, signed under penalties of 
perjury, that the person is neither a citizen nor a resident of the 
United States?
    A-36. No. The regulations under section 6042 exempt from information 
reporting any United States source dividends that are subject to 
withholding under section 1441 or section 1442 or

[[Page 482]]

that would be subject to such withholding either but for the provisions 
of a treaty or but for the fact of the application of Sec. 1.1441-4 (a) 
or (f) of the Income Tax Regulations (relating to income effectively 
connected with a United States trade or business). See Sec. 1.6042-
3(b)(2) of the Income Tax Regulations. The regulations under section 
1441 indicate that, absent definite knowledge of the status of a payee, 
a payor of United States source dividends may determine whether 
withholding is required under section 1441 (absent the receipt of a Form 
4224 evidencing effectively connected income) or whether a payee is 
entitled to exemption from such withholding under the applicable 
provisions of a treaty by reference to the address of the payee. See 
Sec. 1.1441-3(b)(3) of the Income Tax Regulations. Therefore, provided a 
payor does not have definite knowledge that a payee is a United States 
person, the payor may treat payments of United States source dividends 
to a payee with a foreign address as exempt from information reporting 
under section 6042 and from the possible application of backup 
withholding. (Note, however, that the use of the address method for 
purposes of section 1441 is under reconsideration in accordance with the 
provisions of section 342 of the Tax Equity and Fiscal Responsibility 
Act of 1982. Future elimination of such a method could impact 
prospectively on the requirement of backup withholding with respect to 
dividends).
    Payments of dividends to United States persons by a foreign 
corporation which are not exempt from information reporting under 
Sec. 1.6042-3(b)(1) (relating to payments by a foreign corporation that 
is not engaged in business in the United States and that does not have 
an office or place of business or a fiscal or paying agent in the United 
States) will nevertheless not be subject to backup withholding beginning 
January 1, 1984. However, the issue of whether backup withholding should 
be applied with respect to such payments is presently under further 
consideration. If backup withholding is determined to be appropriate, 
such will be provided in future regulations. Backup withholding, in that 
case, would apply no earlier than July 1, 1984, and would apply on a 
prospective basis only.
    Q-37. With respect to a payment of interest that would be subject to 
information reporting under section 6049 but for the fact that it is 
made outside the United States, how is the place of payment to be 
determined?
    A-37. For purposes of the reporting requirements of section 6049 and 
backup withholding, the place of payment of interest is considered to be 
the place where the payor or middleman completes the acts necessary to 
effect payment. The fact that payment is made from an account with a 
United States office of a United States or foreign bank by means of a 
draft drawn on the bank or by a wire or other electronic transfer from 
an account with the United States office of the bank is not alone 
determinative of the place of payment. Similarly, the fact that payment 
is made by means of a transfer into an account of the payee witha United 
States office of a United States or foreign bank, whether by means of a 
wire or other electronic transfer, is not determinative of the place of 
payment, unless such office is expressly authorized by the payee to act 
as agent for collection of the interest or unless the records of such 
office otherwise reasonably evidence the nature of the funds transferred 
as interest and the amount of such interest.
    Subject to the foregoing provisions concerning the receipt of wire 
and other electronic transfers, a bank or similar financial institution 
is generally considered to complete the acts necessary to effect payment 
of interest on its deposits at the branch or office at which it credits 
the interest to the account of the payee or at which payment is made in 
cash. However, in no event shall interest be considered to be paid for 
purposes of section 6049 at a branch or office of the financial 
institution unless all the following conditions are met: (1) The branch 
or office is a permanent place of business which is regularly 
maintained, occupied, and used to carry on a banking or similar 
financial business, (2) the business is conducted by at least one 
employee of the branch or office who is regularly in attendance at such 
place of business during normal business hours, and (3)

[[Page 483]]

the branch or office receives deposits of funds from the public and in 
addition also engages in one or more of the other activities listed in 
Sec. 1.864-4(c)(5)(i) of the Income Tax Regulations.
    In the case of a coupon bond (including a certificate of deposit 
with detachable interest coupons), the acts necessary to effect payment 
of interest are considered to be completed within the United States 
either if: (1) A coupon is presented to a payor or middleman within the 
United States (regardless of whether the funds paid are credited to an 
account of the payee maintained outside the United States); or (2) the 
coupon is presented at an office of a payor or middleman outside the 
United States but the interest on the coupon is credited to an account 
of the payee maintained with another office of the payor or middleman 
within the United States. The application of the provisions of this A-37 
will be illustrated by examples to be published in future regulations.

                 Refund of Erroneously Withheld Amounts

    Q-38. What action should a payor take if the payor erroneously 
imposes backup withholding?
    A-38. If a payor erroneously withholds tax or withholds more than 
the proper amount of the tax, the payor may refund the amount withheld 
as provided in section 6413 and A-39. A payor shall be considered to 
have withheld erroneously only if (1) the amount is withheld because of 
an error by the payor (e.g., an error in ``flagging'' or identifying an 
account that is subject to backup withholding), or (2) the Internal 
Revenue Service directs the payor to refund an amount withheld pursuant 
to section 3406(a)(1)(C). If the payor requires a payee described in 
Sec. 31.3452 (c)-(1) (b) through (p) of the Employment Taxes and 
Collection of Income Tax at Source Regulations (e.g., a corporation) 
(See T.D. 7880, 1983-1 C.B. 242, 251, Removed by T.D. 7949, 1984-1 C.B. 
204) to certify as to its status as exempt from backup withholding, the 
payee fails to make the required certification, and the payor 
subsequently withholds the tax from a payment to such payee, the payor 
may, in its discretion, treat the amount withheld as an amount 
erroneously withheld and refund it to the payee. The result is the same 
if the payor does not require such a payee to certify as to its status 
and the payor withholds.
    If a payor withholds from a payee after the payee provides a 
taxpayer identification number or required certification to the payor 
but before the payor has processed the number or required certification 
(i.e., prior to the time that the payor is treated as having received 
the number or certification under A-17 of Sec. 35a.9999-2), the payor 
may, in its discretion, treat the amount withheld as an amount 
erroneously withheld and refund it to the payee. If a payor withholds, 
however, because the payor has not received a taxpayer identification 
number or required certification and the payee subsequently provides a 
taxpayer identification number or the required certification to the 
payor, the payor may not refund the tax to the payee because the payor 
properly imposed backup withholding. The amount withheld is a credit 
against tax that the payee may take into account in computing estimated 
tax payments and may claim on the payee's income tax return.
    Q-39. In what manner should a payor treat erroneously withheld tax?
    A-39. If a payor withholds from a payee in error or withholds more 
than the correct amount of tax, the payor may refund the amount 
improperly withheld to the payee so long as the refund is made prior to 
the end of the calendar year and prior to the time the payor furnishes a 
Form 1099 to the payee with respect to the payment for which the 
improper withholding occurred. If the amount of the improper withholding 
is refunded to the payee, the payor shall keep as part of its records a 
receipt showing the date and amount of refund. For this purpose, a 
cancelled check or an entry in a statement, a copy of which is provided 
to the payee by the payor, will suffice for a receipt showing the refund 
of tax improperly withheld provided that the check or statement contains 
a specific notation that it is a refund of tax improperly withheld.
    If the payor has not deposited the amount of the tax prior to the 
time

[[Page 484]]

that the refund is made to the payee, the payor shall not deposit the 
amount of the tax improperly withheld. If the amount of the improperly 
withheld tax has been deposited prior to the time that the refund is 
made to the payee, the payor may adjust any subsequent deposit of tax 
collected under chapter 24 of the code which the payor is required to 
make in the amount of the tax which has been refunded to the payee. A 
payor shall not report on a Form 1099 as tax withheld any amount of tax 
which the payor has refunded to a payee.
    Q-40. If a ``middleman'' payor of reportable interest or dividends 
(e.g., a broker holding stock in ``street name'') receives a payment a 
portion of which was improperly withheld upon prior to payment to the 
``middleman'' payor, what action may the ``middleman'' take?
    A-40. A middleman who receives a payment (referred to as a 
``receiving payor'') from which tax has been improperly withheld may 
seek a refund of the tax withheld by the payor from whom the receiving 
payor received the payment (referred to as the ``upstream payor'') or, 
alternatively may obtain a refund of the tax by claiming a credit for 
the amount of tax withheld by the upstream payor against the deposit of 
any tax collected under chapter 24 of the Code which the receiving payor 
is required to withhold and deposit. The receiving payor shall make or 
credit the gross amount of the payment (including the tax withheld) to 
its payee as though it had received the gross amount of the payment from 
the upstream payor and shall withhold the tax if any of the conditions 
for imposing backup withholding exist with respect to its payee.

                      When Backup Withholding Stops

    Q-41. When may a payor stop withholding?
    A-41. If a payee is subject to backup withholding because the payee 
failed to furnish a taxpayer identification number in the manner 
required, the payor is required to withhold until a taxpayer 
identification number is received from the payee in the manner required. 
Once the payor receives the payee's taxpayer identification number in 
the manner required, the payor must stop withholding. See A-17 of 
Sec. 35a.9999-2 for determining when a payor is treated as having 
received a taxpayer identification number. The same rule applies with 
respect to a payee certification failure under section 3406(a)(1)(D). If 
more than one condition applies for imposing backup withholding, a payor 
is required to withhold until all of the conditions for imposing backup 
withholding cease to apply.

                             Confidentiality

    Q-42. What use may a payor make of information obtained under the 
backup withholding rules?
    A-42. A payor may use information obtained under the backup 
withholding rules (including any information with respect to any payee 
certification failure other than failure to certify the payee's taxpayer 
identification number) only for the purposes of complying with the 
backup withholding and information reporting requirements, or to the 
extent otherwise permitted by the Code. Any other use of this 
information may subject the payor to civil damages under section 7431 of 
at least $1,000 plus the cost of the action.
    Q-43. May a payor impose a surcharge to cover the cost of backup 
withholding on an account?
    A-43. No. If the payor imposes a surcharge on such an account, the 
payor is liable to the payee under section 7431 for an unauthorized use 
of information obtained by the payor under section 3406.
    Q-44. If a payor imposes backup withholding on a payee, may the 
payor use this information in determining whether to extend credit to 
the payee?
    A-44. No. If the payor uses this information in making its decision, 
the payor is liable to the payee under section 7431 for an unauthorized 
use of information obtained pursuant to section 3406.
    Q-45. If a payor is notified to begin withholding on payments made 
with respect to a payee and the payor provides notice to the payee of 
the withholding, has the payor made an unauthorized disclosure under 
section 7431?
    A-45. No. If, for example, a payor receives a notice from a broker 
of the requirement to withhold with respect to a payee and the payor, 
pursuant to A-

[[Page 485]]

39 of Sec. 35a.9999-1 and A-18 of Sec. 35a.9999-2, provides notice to 
the payee of such withholding, the payor has no liability to the payee 
under section 7431.

                              Miscellaneous

    Q-46. If a payor withholds on any payment and the payment is less 
than the minimum amount for which an information return is required, is 
the payor required to make an information return and furnish a statement 
to the recipient?
    A-46. Yes. Whenever the payor imposes backup withholding, the payor 
is required to make an information return regardless of the amount of 
the payment. The information return shall show the payee's name, 
address, and taxpayer identification number, the amount of the payment 
(or aggregate payments to the payee during the calendar year), and the 
amount of tax withheld. The information return must be provided to the 
Service no later than February 28 of the year following the calendar 
year of payment. In addition, the payor is required to furnish a 
statement to the payee showing the same information, including the 
amount of tax withheld no later than January 31 of the year following 
the calendar year of payment.
    Q-47. Does backup withholding apply to partnerships?
    A-47. Backup withholding generally will apply to a payment to a 
partnership if the partnership does not provide its correct employer 
identification number to the payor in the manner required. In addition, 
the partnership will be required to withhold on all reportable payments 
that a partnership makes to a payee who is subject to backup 
withholding. Distributions by a partnership to its partners of their 
distributive share of partnership income, however, are not reportable 
payments, so that backup withholding does not apply to such 
distributions, except to the extent such distributions are reportable 
under section 6045.
    Q-48. May payors require that a separate Form W-9 be filed for each 
account or instrument held by a payee?
    A-48. Yes. See A-29 of Sec. 35a.9999-1. However, a payor at its 
option, may require a payee to file only one Form W-9 for all accounts 
or instruments of the payee. For example, a bank may permit a payee to 
file one Form W-9 for all savings, interest-bearing checking, or other 
accounts the payee has with the bank. In addition, a payee of a mutual 
fund that has a common investment advisor or common principal 
underwriter with other mutual funds will be permitted, in the discretion 
of the mutual fund, to provide one Form W-9 with respect to shares 
acquired or owned in any of the funds. The payee must provide the actual 
Form W-9 or acceptable substitute form to the fund (or payor) in order 
for this A-48 to apply.
    Q-49. Do the general rules for deposit, payment, penalties, and 
reporting of taxes withheld from wages apply to backup withholding?
    A-49. Yes. Section 3406(h)(1) provides generally that payments 
subject to backup withholding shall be treated as wages. Thus, the 
general procedures for withholding, deposit, payment, and reporting of 
Federal tax withheld shall apply to payments subject to backup 
withholding. For example, section 6205 provides that an employer (payor) 
who makes an undercollection of income tax required to be withheld shall 
correct such error for the return period in which the undercollection is 
ascertained. Accordingly, section 6205 requires the employer (payor) to 
withhold amounts from subsequent payments to the employee (payee) that 
should have been withheld from prior payments, whether or not such 
subsequent payments are subject to withholding. Thus, a payor who does 
not impose backup withholding when required must withhold from 
subsequent payment to the payee even though the conditions for imposing 
backup withholding may not exist at the time the subsequent payment is 
made to the payee.
    Q-50. If a payor uses a single employer identification number to 
report the tax withheld by all its subsidiaries, must all tax withheld 
with respect to reportable payments by its subsidiaries be aggregated 
for purposes of determining when tax withheld by them with respect to 
reportable payments must be deposited under section 6302?
    A-50. Yes. All tax withheld under a single employer identification 
number with respect to reportable payments

[[Page 486]]

must be aggregated for purposes of determining when such tax must be 
deposited.

Due Diligence Defined for Accounts Opened and Instruments Acquired After 
                            December 31, 1983

                 Before Notification of an Incorrect TIN

    Q-51. In order for a payor of a reportable interest or dividend 
payment (other than in a window transaction) to be considered to have 
exercised due diligence in furnishing the correct taxpayer 
identification number of a payee with respect to an account opened or an 
instrument acquired after December 31, 1983, what actions must the payor 
take?
    A-51. In general, the payor of an account or instrument that is not 
a pre-1984 account (see A-34 of Sec. 35a.9999-1 and A-20 of 
Sec. 35a.9999-3) nor a window transaction (as defined in A-42 of 
Sec. 35a.9999-1 and A-9 of Sec. 35a.9999-2) must use a taxpayer 
identification number provided by the payee under penalties of perjury 
on information returns filed with the Internal Revenue Service to 
satisfy the due diligence requirement. Therefore, if, after 1983, a 
payor permits a payee to open an account without obtaining the payee's 
taxpayer identification number under penalties of perjury and files an 
information return with the Internal Revenue Service with a missing or 
an incorrect taxpayer identification number, the payor will be liable 
for the $50 penalty for the year with respect to which such information 
return is filed. However, in its administrative discretion, the Internal 
Revenue Service will not enforce the penalty with respect to a calendar 
year if the certified taxpayer identification number is obtained after 
the account is opened and before December 31 of such year, provided that 
the payor exercises due diligence in processing such number i.e., the 
payor uses the same care in processing the taxpayer identification 
number provided by the payee that a reasonably prudent payor would use 
in the course of the payor's business in handling account information 
such as account numbers and balances. See Q/A-73 of this section.
    Once notified by the Internal Revenue Service (or a broker) that a 
number is incorrect, a payor is liable for the penalty for all prior 
years in which an information return was filed with that particular 
incorrect number if the payor has not exercised due diligence with 
respect to such years. See A-56 through A-70A of this section for the 
exceptions to due diligence. A pre-existing certified taxpayer 
identification number does not constitute an exercise of due diligence 
after the Internal Revenue Service or a broker notifies the payor that 
the number is incorrect if the Internal Revenue Service or a broker 
notifies the payor on or after January 1, 1989, unless the payor 
undertakes the actions specified in A-88 of this section.
    Q-52. Is a payor as described in A-51 liable for the penalty if the 
payor obtained a certified taxpayer identification number from a payee 
but inadvertently processed the name or number incorrectly on the 
information return?
    A-52. Yes. The payor is liable for the penalty unless the payor 
exercised that degree of care in processing the taxpayer identification 
number and name and in furnishing it on the information return that a 
reasonably prudent payor would use in the course of the payor's business 
in handling account information, such as account numbers and account 
balances.

              Payors and Trustees of Certain Grantor Trusts

    Q-53. Is a payor of reportable interest or dividend payments to a 
grantor trust that was established on or after January 1, 1984, and 
which has ten or fewer grantors, liable for the penalty under section 
6676 (b) for filing an information return with a missing taxpayer 
identification number if the trustee could not provide a certified 
taxpayer identification number to the payor at the time the account was 
opened because each grantor had not furnished the trustee with a 
certified taxpayer identification number under penalties of perjury as 
provided under A-20 of Sec. 35a.9999-2?
    A-53. A payor of a post-1983 grantor trust which has ten or fewer 
grantors is liable for the penalty under section 6676 (b) for filing an 
information return with a missing taxpayer identification number unless 
the payor has exercised due diligence or comes within one of the 
exceptions to due diligence in this

[[Page 487]]

section. In general, a payor of a post-1983 grantor trust exercises due 
diligence by obtaining a certified taxpayer identification number from 
the payee (trust) as described in A-4 of Sec. 35a.9999-1 and A-51 of 
this section.
    Q-54. What are the legal obligations with respect to a grantor trust 
with ten or fewer grantors under sections 3406 and 6676(b)?
    A-54. Backup withholding will apply to a reportable payment to a 
grantor trust with ten or fewer grantors that was established on or 
after January 1, 1984, if one of the conditions for imposing backup 
withholding exists with respect to the trust. The trustee of a grantor 
trust with ten or fewer grantors may not certify either that the trust 
is not subject to backup withholding due to notified payee 
underreporting or that the trust's taxpayer identification number 
provided by the trustee is correct unless each grantor has furnished the 
trustee with certifications, signed under penalties of perjury, that the 
grantor is not subject to backup withholding due to notified payee 
underreporting and that the grantor's taxpayer identification number 
provided to the trustee is correct, and the trustee uses such taxpayer 
identification numbers provided by the grantors on any Form 1041 that is 
filed by the trustee pursuant to section 671.
    Effective June 12, 1989, a trustee of a grantor trust with ten or 
fewer grantors is not considered a payor for purposes of backup 
withholding. Therefore, distributions by the trust of amounts to 
beneficiaries will not be considered payments of reportable amounts 
subject to backup withholding. With respect to reportable payments 
(except gross proceeds reportable under section 6045) made prior to the 
above period, see Q/A-20 of Sec. 35a.9999-2 under which a grantor trust 
with ten or fewer grantors is considered a payor for purposes of backup 
withholding.
    However, a grantor trust with ten or fewer grantors may be a payor 
under the respective information reporting sections. As such, the trust 
may be subject to the penalty under section 6676(b) for filing an 
information return with a missing or an incorrect taxpayer 
identification number. No penalty, however, will be imposed on the trust 
with respect to information returns filed for the 1987 or 1988 calendar 
year.

              Special Rules Under Q/A 28 of Sec. 35a.9999-3

    Q-55. Is a payor who obtains a taxpayer identification number 
pursuant to the special rule under A-28 of this section, relating to 
readily tradable instruments, liable for the penalty under section 6676 
(b) for those years in which the payor filed an information return with 
an incorrect taxpayer identification number if the payor did not obtain 
a certified taxpayer identification number from the payee within the 30-
day grace period provided in A-28 of this section?
    A-55. Yes. A payor of a post-1983 account is liable for the penalty 
under section 6676 (b) for filing an information return with an 
incorrect taxpayer identification number unless the payor has exercised 
due diligence. In general, a payor of a post-1983 account exercises due 
diligence by obtaining a certified taxpayer identification number from 
the payee as described in A-4 of Sec. 35a.9999-1 and A-51 of this 
section. Thus, the payor described in Q-55 will be liable for the 
penalty for filing an information return with an incorrect taxpayer 
identification number if the payee did not provide the required 
certification to the payor within the 30-day period whether or not the 
payor backup withholds on the account. The rule described in this answer 
is effective with respect to information returns filed for the 1988 and 
subsequent calendar years.

                       Exceptions to Due Diligence

                     (1) Awaiting-TIN Certification

    Q-56. In general, what actions must a payor who receives an 
awaiting-TIN certification prior to January 1, 1988 (a ``pre-1988 
awaiting-TIN certification''), take to be considered to have exercised 
due diligence?
    A-56. In general, a payor with respect to an account or instrument 
that is not a pre-1984 account, instrument or relationship nor a window 
transaction will be considered to have exercised due diligence if the 
payee has complied with the requirements of A-18 of

[[Page 488]]

Sec. 35a.9999-2 (exception for a payee who is waiting for receipt of a 
taxpayer identification number) prior to January 1, 1988, provided that 
the payor imposes backup withholding if the payee fails to provide a 
taxpayer identification number in the manner and within the period 
required by A-18 of Sec. 35a.9999-2. This provision applies only with 
respect to information returns filed for calendar years before 1988.
    Q-57. Is a payor who receives an awaiting-TIN certification before 
January 1, 1988, liable for the penalty under section 6676 (b) for 
filing an information return with a missing taxpayer identification 
number for the 1988 or a later calendar year?
    A-57. A payor who receives a pre-1988 awaiting-TIN certification for 
an account of a payee and files an information return with a missing 
taxpayer identification number for the 1988 or a later calendar year 
with respect to that account will be subject to the penalty under 
section 6676 (b) unless the payor continues to exercise due diligence by 
undertaking additional actions described in A-58 below to solicit the 
payee's taxpayer identification number.
    Q-58. What actions must a payor with a pre-1988 awaiting-TIN 
certification take in order to exercise due diligence after December 31, 
1987, so that the payor will not be subject to a $50 penalty for filing 
an information return with a missing taxpayer identification number for 
a calendar year after 1987?
    A-58. A payor with a pre-1988 awaiting-TIN certification may 
exercise due diligence after December 31, 1987, by: (1) Continuing to 
backup withhold on the account, instrument, or relationship until a 
certified taxpayer identification number is received, (2) sending a 
mailing before December 31 of each year after 1987, requesting the 
certified taxpayer identification number from a payee who has not by 
that time provided a certified TIN, and (3) including a Form W-9 or 
acceptable substitute form in the mailing for the payee to provide his 
certified taxpayer identification number. The payor must include a reply 
envelope (self-addressed) in the mailing. The envelope sent to the payee 
must contain the following statement in a bold and conspicuous manner: 
``Important Tax Document Enclosed.'' The payor may include other 
information in the mailing. The payor must continue to backup withhold 
and send the mailing each year until the payor receives a certified 
taxpayer identification number from the payee or until the account is 
closed.
    Q-59. What actions must a payor take in order to exercise due 
diligence on an account, instrument or relationship for which the payor 
receives an awaiting-TIN certification after December 31, 1987 (a 
``post-1987 awaiting-TIN certification'') and before July 1, 1988?
    A-59. In order to exercise due diligence a payor who receives a 
post-1987 awaiting-TIN certification from a payee before July 1, 1988, 
must: (1) Obtain a certified taxpayer identification number from the 
payee within 60 days after the date that the payor receives the 
awaiting-TIN certification, and (2) backup withhold on any withdrawals 
made after the close of 7 business days after the date the awaiting-TIN 
certification is received and before the earlier of (i) the date that 
the payor receives a certified taxpayer identification number from the 
payee, (ii) the date the account is closed, or (iii) the date backup 
withholding commences on all reportable payments made to the account, 
instrument, or relationship. For purposes of subsection (ii) in this A-
59, a payor is also required to backup withhold on any reportable 
payment made at the time the account or relationship is closed. For 
purposes of subsection (2) in this A-59, all cash withdrawals in an 
amount up to the reportable payments made from the day after the date of 
receipt of the awaiting-TIN certification to the date of withdrawal are 
treated as reportable payments. For purposes of this Q/A-59, the term 
``cash'' has the same meaning as the term ``cash'' set forth in 
Sec. 35a.3406-1(d)(1) of T.D. 8163, 52 FR 44867. Thus, a payor who 
receives a post-1987 awaiting-TIN certification (as described in this Q/
A-59) from a payee who does not provide the payor with a certified 
taxpayer identification number within the 60 days described in A-18 of 
Sec. 35a.9999-2 is liable for the penalty if reportable payments are 
paid to the account after

[[Page 489]]

the 60 days and the payor files an information return with respect to 
the account with a missing taxpayer identification number. The payor is 
liable for the penalty whether or not the payor backup withholds on the 
reportable payments made after the 60-day period.
    However, in its administrative discretion, the Internal Revenue 
Service will not enforce the penalty for a calendar year against a payor 
who has properly withheld under this Q/A-59 if the payor (A) obtains the 
certified taxpayer identification number after the 60-day period 
(described above) and before December 31 of such calendar year, provided 
that the payor exercises due diligence in processing such number on the 
information return filed for such year, i.e., the payor uses the same 
care in processing the taxpayer identification number provided by the 
payee that a reasonably prudent payor would use in the course of the 
payor's business in handling account information such as account numbers 
and balances (See Q/A-73 of this section), or (B) effective with respect 
to the 1988 and subsequent calendar years, undertakes an annual mailing 
as described in Q/A-59A of this section. The 1988 annual mailing must be 
made between January 1, 1988, and June 12, 1989.
    Q-59A. What actions must a payor take in order to exercise due 
diligence on an account, instrument, or relationship for which the payor 
receives a post-1987 awaiting-TIN certification on or after July 1, 
1988?
    A-59A. In order to exercise due diligence a payor who receives a 
post-1987 awaiting-TIN certification on or after July 1, 1988, may elect 
on a payee-by-payee basis or in general to: (1) Follow the rules for due 
diligence as set forth in Q/A-59 above, (2) follow such due diligence 
rules but apply the definition of the term ``cash'' set forth in 
Sec. 35a.3406-1(d)(1), or (3) commence backup withholding on the account 
no later than 7 business days after the date the payor receives the 
awaiting-TIN certification on reportable payments thereafter made to the 
account (whether or not the payee makes a cash withdrawal). Under (3) 
above the payor must backup withhold until the earlier of (i) the date 
the payor receives a certified taxpayer identification number from the 
payee. (ii) the date the account is closed, or (iii) the date backup 
withholding commences on all reportable payments made to the account, 
instrument, or relationship. In addition with respect to (3), a payor 
must obtain a certified taxpayer identification number from a payee 
within 60 days after the date that the payor receives the awaiting-TIN 
certificate or undertake a mailing each year as described in Q/A-5 and 6 
of Sec. 35a.9999-1 (except that the first required mailing may be, but 
need not be, a separate mailing) soliciting the certified taxpayer 
identification number from the payee. The payor must make a mailing each 
year until the earlier of (i) the calendar year that the certified 
taxpayer identification number is received, or (ii) the calendar year in 
which the account is closed. However, if the account is closed in 
December of a calendar year, the mailing must be made after the account 
is closed and before January 31 of the subsequent calendar year.
    Effective August 16, 1988, a payor who has elected to apply 
subsection (3) above must refund the amounts withheld during the 60-day 
period in accordance with the procedures described in Q/A-39 of this 
section if the payor receives the certified taxpayer identification 
number from the payee on or after August 16, 1988, and within the 60-day 
period, provided that the payee is not subject to backup withholding 
under section 3406(a)(1) (C) or (D) during any part of such period. For 
purposes of the preceding sentence, the amounts withheld are deemed to 
be withheld erroneously as described in Q/A-39 of this section. If a 
certified taxpayer identification number is not received by the payor 
within the 60-day period, the amounts withheld shall not be refunded 
unless the amounts are erroneously withheld without regard to the rules 
described in this Q/A-59A. The payor is also required to backup withhold 
after the 60-day period until the payor receives a certified taxpayer 
identification number from the payee or the account is closed.

                 (2) Instruments Acquired From a Broker

    Q-60. Under what circumstances will a payor whose readily tradable 
instrument

[[Page 490]]

was acquired by a payee through a broker be considered to have exercised 
due diligence?
    A-60. Generally, a payor will be considered to have exercised due 
diligence with respect to a readily tradable instrument that is not a 
pre-1984 account of the payor as described in A-41 of Sec. 35a.9999-1 if 
the payor uses a taxpayer identification number furnished by a broker. 
In addition, to exercise due diligence a payor must use the same care in 
processing the taxpayer identification number and name provided by the 
broker that a reasonably prudent payor would use in the course of the 
payor's business in handling account information, such as account 
numbers and account balances. A taxpayer identification number acquired 
from a broker as described in this A-60 will not constitute an exercise 
of due diligence after the Internal Revenue Service or a broker notifies 
the payor that the number is incorrect unless the payor undertakes the 
actions specified in A-88 of this section.
    Q-61. Is the payor in A-60 liable for the penalty if the payor 
obtained the taxpayer identification number and name from a broker but 
inadvertently processed the number or name incorrectly and thus put an 
incorrect number on the information return?
    A-61. Yes. The payor is liable for the penalty unless the payor 
exercised that degree of care in processing the certified taxpayer 
identification number and name and in furnishing it on the information 
return that a reasonably prudent payor would use in the course of the 
payor's business in handling account information, such as account 
numbers and account balances.
    Q-62. What actions must a payor who was notified by a broker that a 
payee failed to certify or furnish a taxpayer identification number take 
to be considered to have exercised due diligence?
    A-62. A payor who is notified by a broker that a payee failed to 
certify or furnish a taxpayer identification number to the broker will 
be considered to have exercised due diligence if the payor: (1) Imposes 
backup withholding if the payee did not certify his taxpayer 
identification number to the payor, (2) provides notice to the payee as 
provided in A-39 of Sec. 35a.9999-1 and A-18 of Sec. 35a.9999-2, and (3) 
encloses a postage-paid reply envelope (self-addressed) in the mailing 
of the notice. A payor described in this A-62 will be liable for the 
penalty under section 6676(b) for filing an information return with a 
missing taxpayer identification number for the 1988 or subsequent 
calendar years unless the payor complies with the procedures described 
in this A-62 in each such calendar year until the payor receives a 
certified taxpayer identification number from the payee or until the 
account is closed. A subsequent mailing is required to contain a reply 
envelope which may, but is not required to be, postage prepaid. For 
years prior to 1988, no penalty will be imposed on a payor who has 
complied with the requirements in this A-62 in the year the payor was 
notified by a broker.
    A payor as described in this A-62 who receives a noncertified 
taxpayer identification number from a broker may be liable for the 
penalty under section 6676(b) for the 1988 or subsequent calendar years 
with respect to which the number provided by a payor on an information 
return filed with the Internal Revenue Service is determined to be 
incorrect unless the payor complies with the procedures described in 
this A-62 in each such calendar year until the payor receives a 
certified taxpayer identification number from the payee, the account is 
closed, or the payor undertakes the actions described in A-88 of this 
section after being notified of the incorrect taxpayer identification 
number.

     (3) Instruments Transferred Without the Assistance of a Broker

    Q-63. With respect to an instrument transferred without the 
assistance of a broker, is a payor liable for the penalty under section 
6676(b) if the payor records on its books a transfer of a readily 
tradable instrument in a transaction in which the payor was not a party?
    A-63. Generally, a payor as described in Q-63 will be considered to 
have exercised due diligence with respect to a readily tradable 
instrument that is not part of a pre-1984 account with the payor if the 
payor records on its books a transfer in which the payor was not a 
party. This exception applies until the

[[Page 491]]

calendar year in which the payor receives a certified taxpayer 
identification number from the payee.
    Q-64. Is the payor described in A-63 required to solicit the 
taxpayer identification number of a payee of an account with a missing 
TIN in order to be considered as having exercised due diligence in a 
subsequent calendar year?
    A-64. There is no requirement on the payor to solicit the taxpayer 
identification number in order to be considered to have exercised due 
diligence in a subsequent calendar year under the rule set forth in A-
63.
    Q-65. Is a payor as described in Q-63 considered to have exercised 
due diligence if the payee provides a taxpayer identification number to 
the payor (whether or not certified), the payor uses that number on the 
information return filed for the payee, and the number is later 
detemined to be incorrect?
    A-65. A payor as described in Q-63 who records on its books a 
transfer in which it was not a party is considered to have exercised due 
diligence under the rule set forth in A-63 where the transfer is 
accompanied with a taxpayer identification number provided that the 
payor uses the same care in processing the taxpayer identification 
number provided by a payee that a reasonably prudent payor would use in 
the course of the payor's business in handling account information, such 
as account numbers and account balances. Thus, a payor will not be 
liable for the penalty if the payor uses the taxpayer identification 
number provided by the payee on information returns that it files, even 
if the taxpayer identification number provided by the payee is later 
determined to be incorrect. However, a payor will not be considered as 
having exercised due diligence under A-63 after the Internal Revenue 
Service or a broker notifies the payor that the number is incorrect 
unless the payor undertakes the actions described in A-88 of this 
section.

                         (4) Window Transactions

    Q-66. What action must a payor of a post-1983 window transaction (as 
defined in A-42 and A-42B of Sec. 35a.9999-1 and A-9 of Sec. 35a.9999-2) 
take to be considered as having exercised due diligence?
    A-66. A payor of a post-1983 window transaction shall be considered 
to have exercised due diligence only if the payor uses the taxpayer 
identification number provided by the payee on information returns filed 
with the Internal Revenue Service. If no number is provided, the payor 
will not be considered to have exercised due diligence.

                           (5) Undue hardship

    Q-67. Is a payor liable for a penalty under section 6676(b) with 
respect to a post-1983 account or instrument if the payor could have met 
the due diligence requirements but for the fact that the payor incurred 
an undue hardship?
    A-67. A payor of a post-1983 account or instrument is not liable for 
a penalty under section 6676(b) for filing an information return with a 
missing or an incorrect taxpayer identification number if the Internal 
Revenue Service determines that the payor could have satisfied the due 
diligence requirements but for the fact that the payor incurred an undue 
hardship. An undue hardship is an extraordinary or unexpected event such 
as the destruction of records or place of business of the payor by fire 
or other casualty (or the place of business of the payor's agent who 
under a pre-existing written contract had agreed to fulfill the payor's 
due diligence obligations under section 6676(b) with respect to the 
account subject to the penalty and there was no means for the 
obligations to be performed by another agent or the payor). Undue 
hardship will also be found to exist if the payor could have met the due 
diligence requirements only by incurring an extraordinary cost.
    Q-68. How does a payor obtain a determination from the Internal 
Revenue Service that the payor has met the undue hardship exception to 
the penalty under section 6676(b) for the year with respect to which the 
payor is subject to the penalty?
    A-68. A determination of undue hardship may be established only by 
submitting a written statement to the Internal Revenue Service signed 
under penalties of perjury that sets forth all the facts and 
circumstances that make an affirmative showing that the payor could have 
satisfied the due diligence requirements but for the occurrnece of

[[Page 492]]

an undue hardship. Thus, the statement must describe the undue hardship 
and make an affirmative showing that the payor either was in the process 
of exercising or stood ready to exercise due diligence when the undue 
hardship occurred. A payor may request an undue hardship determination 
from the district director or the director of the Internal Revenue 
Service Center where the payor is required to remit the penalty under 
section 6676(b).

                       (6) Error in Agency Records

    Q-69. Is a payor liable for the penalty under section 6676(b) if the 
taxpayer identification numnber is incorrect as a result of an intrinsic 
error in the number records of the Social Security Administration or 
Internal Revenue Service?
    A-69. Generally, a payor will not be liable for a penalty under 
section 6676(b) if a taxpayer identification number is determined to be 
incorrect as a result of an intrinsic error in the records of the Social 
Security Administration or the Internal Revenue Service (for instance, 
because the records of such agencies in the normal course of business 
should be, but are not, up-to-date at the time the Internal Revenue 
service makes a determination that a taxpayer identification number is 
incorrect). The records of the Social Security Administration or the 
Internal Revenue Service will not be treated as in error if the records 
contain the name and taxpayer identification number of a person (or 
business) who subsequently changes his or her name (or business name) 
and does not communicate the change of name to the Social Security 
Administration or the Internal Revenue Service before the Internal 
Revenue Service determines that the taxpayer identification number is 
incorrect. The burden of proof will be on the payor to substantiate that 
the records of the Social Security Administration or the Internal 
Revenue Service are in error. A photocopy of the payee's social security 
card or the document provided by the Internal Revenue Service issuing 
the payee's employer identification number (that contains identical 
information to that on the information return with respect to which the 
penalty may be imposed) will be sufficient proof to come within this 
exception.

                          (7) Exempt Recipients

    Q-70. Is a payor liable for the penalty under section 6676(b) if the 
payor files an information return with a missing or an incorrect 
taxpayer identification number for an exempt recipient whom the payor 
determined was exempt at the time of the payment pursuant to the rules 
under A-29 of Sec. 35a.9999-1?
    A-70. A payor is not liable for the penalty under section 6676(b) 
for filing an information return with a missing or an incorrect taxpayer 
identification number if the payee is exempt from information reporting 
under the applicable information reporting provisions of the Internal 
Revenue Code.

                    (8) Life-Insurance Beneficiaries

    Q-70A. Under what circumstances will a payor of reportable interest 
to a beneficiary of a life-insurance contract be considered to have 
exercised due diligence?
    A-70A. Generally, a payor of reportable interest to a beneficiary of 
a life-insurance contract under which payment to the beneficiary 
commenced on or before December 31, 1983, will be considered to have 
exercised due diligence with respect to a calendar year if: the payor 
(1) uses a taxpayer identification number provided by the payee 
beneficiary under penalties of perjury as described in Q/A-51 of this 
section on the information return filed for such year, or (2) undertakes 
a mailing as described in Q/A 5 or 6 (or Q/A-56) of Sec. 35a.9999-1 
prior to or at the time of payment, and (3) backup withholds on the 
reportable interest paid to the account if no taxpayer identification 
number has been provided (See Q/A-34 of Sec. 35a.9999-1).
    A payor of reportable interest to a beneficiary of a life-insurance 
contract under which payment to the beneficiary commenced on or after 
January 1, 1984, will be considered to have exercised due diligence with 
respect to a calendar year if the payor: (i) uses a taxpayer 
identification number provided by the payee-beneficiary under penalties 
of perjury as described in Q/A-51 of this section on the information

[[Page 493]]

return filed for such year, or (ii) effective with respect to the 1989 
and subsequent calendar years, undertakes a mailing as described in Q/A-
5 and 6 of Sec. 35a.9999-1 prior to or at the time of payment.
    With respect to payments of reportable interest in calendar years 
prior to the 1989 calendar year (on a life-insurance contract under 
which payments to the beneficiary commenced on or after January 1, 
1984), a payor will be considered to have exercised due diligence if the 
payor requested a certified taxpayer identification number from the 
payee beneficiary prior to, or at the time of, the reportable interest 
payment provided that at the time of such request the payor had in 
effect written procedures or policies that required the solicitation of 
the certified taxpayer identification number of the payee beneficiary 
prior to or at the time of payment.

             Circumstances Where Due Diligence is Not Shown

          Both Pre-1984 and Post-1983 Accounts and Instruments

    Q-71. Is a payor liable for the penalty under section 6676(b) if, 
after the due date of an information return (including extensions of 
time for filing), the payor files a corrected information return that 
contains the correct taxpayer identification number?
    A-71. Yes. The payor is still liable for the penalty under section 
6676(b) for filing an information return with an incorrect or a missing 
taxpayer identification number. The payor is not liable for the penalty, 
however, if the payor files a corrected information return with the 
correct taxpayer identification number before the due date of the return 
with regard to extensions.
    Q-72. Is a payor liable for the penalty under section 6676(b) if the 
payor has been assessed (or has self-assessed) a $5 penalty under 
section 6723(a) for the failure to put correct information (which may 
include an incorrect taxpayer identification number) on an information 
return?
    A-72. Yes. The payor is liable for the penalty under section 6676(b) 
if the payor files an information return with a missing or an incorrect 
taxpayer identification number without exercising due diligence, coming 
within one of the exceptions to due diligence, or coming within the rule 
described in A-56 of this section, whether or not the payor is liable 
for or has been assessed the penalty under section 6723(a) with respect 
to the information return. To the extent that a penalty under sections 
6723(a) and 6676(b) is assessed with respect to the same information 
return, the payor should file for a refund of the penalty under section 
6723(a). Thus, with respect to the failure to include the correct 
taxpayer identification number (a missing or an incorrect taxpayer 
identification number) on an information return, the provisions under 
section 6676(b) shall apply and not the provisions under section 
6723(a). If the penalty for the intentional failure to include the 
correct taxpayer identification number on an information return under 
section 6723(b) is assessed, no penalty shall be assessed under section 
6676(b).
    Q-73. Is a payor who is not exercising due diligence liable for the 
penalty under section 6676(b) if the taxpayer identification number is 
determined to be incorrect because the payor (or his agent) improperly 
prepared or formatted the information return?
    A-73. Yes. A payor who is not satisfying all the due diligence 
requirements for the account in question is liable for a penalty under 
section 6676(b) if the taxpayer identification number is determined to 
be missing or incorrect due to a human, clerical, or processing error on 
the part of the payor (or the payor's agent) in preparing or formatting 
the information return. In general, a payor (or his agent) will not be 
considered to have erroneously prepared or formatted an information 
return if the payor (or his agent) has complied with all pertinent 
income tax regulations, revenue rulings, and procedures in effect with 
respect to information returns.

  Revised Due Diligence Standards for Transactions With Foreign Persons

    Q-74. What actions must a payor or broker of a pre-1984 account or 
instrument take to establish due diligence with respect to the penalty 
under section 6676(b) for filing an information return with a missing 
taxpayer identification number

[[Page 494]]

for the 1984 and subsequent calendar years if payment on the account 
would not have been a reportable payment under section 6045 or 6049 but 
for the fact that the foreign person failed to provide the prescribed 
penalty of perjury statement under Sec. 1.6045-1(g)(1) or under 
Sec. 1.6049-5(b)(2) (iv) of the Income Tax Regulations?
    A-74. The payor or broker will be considered to have exercised due 
diligence on the account, if--
    (1) The payor or broker sent the separate and nonseparate annual 
mailings to the payee as described in A-5 and A-6 and in the related 
questions and answers on due diligence in Sec. 35a.9999-1 and imposed 
backup withholding on the account beginning on January 1, 1984 (or, 
alternatively, imposed backup withholding under A-18 of Sec. 35a.9999-2 
on payments made on or after January 16, 1984), until the taxpayer 
identification number is received from the payee, or
    (2) The payor or broker sent a separate mailing as described in A-52 
or A-55 of Sec. 35a.9999-1 to the payee requesting the required penalty 
of perjury statement (provided that the payor or broker has evidence in 
its records that the payee is a foreign person and provided that the 
payor or broker has no actual knowledge that such evidence is false), 
commenced backup withholding on payments made on or after July 1, 1984, 
and sends a nonseparate mailing by December 31 of the 1987 calendar year 
and each calendar year thereafter until the required penalty of perjury 
statement is received from the payee, or
    (3) The payor or broker sent a mailing as described in A-52 or A-55 
of Sec. 35a.9999-1 to the payee requesting the required penalty of 
perjury statement (provided that the payor or broker has evidence in its 
records that the payee is a foreign person and has no actual knowledge 
that such evidence is false), imposed backup withholding on payments 
made on or after January 1, 1985, and sent an additional mailing as 
described in A-3 of Sec. 35a.9999-4 during the 1984 and 1987 calendar 
years and each calendar year thereafter, until the payor or broker 
receives the required penalty of perjury statement.
    Q-75. What actions must a payor or broker of a post-1983 account or 
instrument take to establish due diligence with respect to the penalty 
under section 6676(b) for filing an information return with a missing 
taxpayer identification number for the 1984 and subsequent calendar 
years when payment on the account would not have been a reportable 
payment under Code section 6045 or 6049 but for the fact that the 
foreign person failed to provide any prescribed penalty of perjury 
statement under Sec. 1.6045-1(g)(1) or under Sec. 1.6049-5(b)(2)(iv) of 
the Income Tax Regulations?
    A-75. Generally, payor or broker will be treated as having satisfied 
the due diligence requirements with respect to post-1983 account or 
instrument if at the time the account or instrument was opened or 
acquired the payor or broker obtained a certified taxpayer 
identification number from the payee and used that number on the 
information return that was filed for the particular calendar year that 
is subject to the penalty. See A-51 of this section for the due 
diligence requirements for payors of accounts or instruments that are 
not pre-1984 accounts or instruments.
    Q-76. What actions must a payor or broker take to exercise due 
diligence with respect to an account for which a Form W-8 is no longer 
in effect so that the payor or broker is not liable for the penalty for 
filing an information return with a missing taxpayer identification 
number?
    A-76. A payor or broker of a pre-1984 or a post-1983 account or 
instrument that becomes subject to information reporting because of Form 
W-8 is no longer in effect may exercise due diligence with respect to 
such account by (1) sending a separate mailing to the payee before 
January 1 of the first calendar year that a Form W-8 is no longer in 
effect (and during which a Form W-9 or its acceptable substitute has not 
been received) and before December 31 of each such calendar year 
thereafter requesting the required penalty of perjury statement (Form W-
8), and (2) imposing backup withholding on reportable payments made on 
the account during a year that a Form W-8 is not in effect (and during 
which a Form W-9 or its acceptable substitute has not been received). 
(For Forms W-

[[Page 495]]

8 that expired in the 1986 calendar year, the payor may make one 
separate mailing that will satisfy the mailing requirement for both the 
1986 and 1987 calendar years. This separate mailing must be made on or 
before June 30, 1988.) The mailing must be by first-class mail, or 
airmail if sent to a foreign address, and must contain the Form W-8 and 
a notice describing the Form W-8 and advising the payee that backup 
withholding may commence (or has commenced) because the form is not 
provided. The payor must also include a reply envelope (self-addressed) 
in the mailing. The rules of A-18 and A-19 shall apply to this rule 
provided in this A-76.

 Clarification of the Due Diligence Standard Prior to Being Notified by 
         the Internal Revenue Service That a Number is Incorrect

                    Pre-1984 Accounts and Instruments

    Q-77. What action must a payor of reportable interest or dividends 
on a pre-1984 account or instrument take to exercise due diligence so 
that the payor is not liable for the penalty under section 6676(b) for 
filing an information return with an incorrect taxpayer identification 
number?
    A-77. A payor of reportable interest or dividends on a pre-1984 
account or instrument will be considered to have exercised due diligence 
in furnishing a taxpayer identification number with respect to a 
particular calendar year if in such year the payor (1) has made the 
prescribed yearly mailings as described in A-5 and A-6 and in the 
related questions and answers on due diligence in Sec. 35a.9999-1 with 
respect to such account or instrument, or (2) obtained a certified 
taxpayer identification number from the payee. In addition, to be 
considered to have exercised due diligence the payor must have used the 
same care in processing the taxpayer identification number provided by 
the payee and in furnishing that taxpayer identification number on the 
information return that is filed for the year that a reasonably prudent 
payor would use in the course of the payor's business in handling 
account information, such as account numbers and account balances. 
However, see A-56 of Sec. 35a.9999-1 for the circumstances under which 
the penalty will not be imposed through administrative discretion with 
respect to information returns filed for the 1988 or subsequent calendar 
years.
    Q-78. Will a payor who filed an information return with an incorrect 
taxpayer identification number be considered to have exercised due 
diligence for a particular calendar year with respect to a pre-1984 
account or instrument for which the payor did not have a certified 
taxpayer identification number if, in such calendar year, the payor 
undertook a mailing as described in A-5 and A-6 and in the related 
questions and answers on due diligence in Sec. 35a.9999-1 but failed to 
undertake one or more of the mailings required under A-5 or A-6 of 
Sec. 35a.9999-1 in an earlier year?
    A-78. No. The annual solicitation of the correct taxpayer 
identification number for a pre-1984 account or instrument is a 
cumulative requirement. Thus, if the separate mailing or one of the 
nonseparate annual mailings described under A-5 or A-6 of Sec. 35a.9999-
1, respectively, is not undertaken or is undertaken improperly, the 
payor can never demonstrate due diligence for the particular account or 
instrument in question through solicitation of the taxpayer 
identification number. Therefore, the payee is liable for the penalty 
under section 6676(b) with respect to the year in which the payor failed 
to make a mailing or makes a mailing improperly and all subsequent years 
(regardless of whether a mailing is made in a subsequent year) in which 
a return is filed with an incorrect taxpayer identification number. See 
A-56 of Sec. 35a.9999-1 for the circumstances under which the penalty 
will not be imposed through the administrative discretion of the 
Internal Revenue Service with respect to information returns filed for 
the 1988 or subsequent calendar years.
    Q-79. Can a payor of reportable interest or dividends ever establish 
due diligence for a pre-1984 account or instrument if the payor missed 
one of the prescribed annual mailings or if one of the mailings was not 
undertaken in accordance with A-5 and A-6 and in accordance with the 
related questions and answers on due diligence described in 
Sec. 35a.9999-1?
    A-79. The payor of a pre-1984 account or instrument who failed to 
undertake

[[Page 496]]

one or more of the annual mailings as described in A-5 and A-6 and in 
the related questions and answers on due diligence described in 
Sec. 35a.9999-1 (or undertook those mailings improperly) can establish 
due diligence by obtaining a certified taxpayer identification from the 
payee and using that number on the information return. Due diligence 
will be considered as exercised beginning in the calendar year in which 
the certified number is received and used on the information return 
filed for that year. Also, see A-56 of Sec. 35a.9999-1 for the 
circumstances under which the penalty will not be imposed through the 
administrative discretion of the Internal Revenue Service.
    Q-80. Does a payor who subsequently obtains a certified taxpayer 
identification number or a Form W-8 on a pre-1984 account or instrument 
remain liable for the penalty for filing an information return with an 
incorrect or a missing taxpayer identification number in prior years if 
the payor did not exercise due diligence in such years by the prescribed 
mailings, by obtaining a certified taxpayer identification number, or by 
obtaining a Form W-8 signed under penalties of perjury?
    A-80. Yes. Obtaining a certified taxpayer identification number on a 
pre-1984 account or instrument may be considered an exercise of due 
diligence only for the year in which the certified number is received 
and subsequent calendar years.
    Q-81. Does the answer in A-80 change with respect to a calendar year 
if the payor subsequently obtains a certified number from a payee that 
matches the number used by the payor on a previous information return 
filed for such year?
    A-81. No. The payor remains liable for the penalty for those 
calendar years with respect to which the payor filed an information 
return with an incorrect taxpayer identification number without 
exercising due diligence in such year. The question of whether a payor 
has exercised due diligence is a year-by-year determination. Due 
diligence must be exercised in the particular year for which the payor 
is subject to the penalty.
    Q-82. Is a payor of a pre-1984 account or instrument who obtained a 
noncertified taxpayer identification number from a payee liable for the 
penalty if the payor undertook all the prescribed annual mailings but 
inadvertently processed the name or taxpayer identification number 
incorrectly on the information return?
    A-82. Yes. The payor is liable for the penalty unless the payor can 
show that the payor exercised that degree of care in processing the name 
and taxpayer identification number and in furnishing it on the 
information return that a reasonably prudent payor would use in the 
course of the payor's business in handling account information, such as 
account numbers and account balances.
    Q-83. Is a payor of a pre-1984 account or instrument who has a 
certified taxpayer identification number from a payee liable for the 
penalty if the payor inadvertently processed the name or taxpayer 
identification number incorrectly on the information return?
    A-83. Yes. The payor is liable for the penalty unless the payor can 
show that the payor exercised that degree of care in processing the name 
and taxpayer identification number and in furnishing it on the 
information return that a reasonably prudent payor would use in handling 
account information, such as account numbers and balances.

Due Diligence Defined After Notification by the Internal Revenue Service 
           That a Taxpayer Identification Number is Incorrect

                               In General

    Q-84. Is a payor of a reportable interest or dividend payment liable 
for the penalty under section 6676(b) in 1989 and subsequent calendar 
years if the Internal Revenue Service or a broker notifies the payor on 
or after January 1, 1988, and before the original due date of an 
information return that a payee's taxpayer identification number is 
incorrect, and the payor later provides that number on an information 
return?
    A-84. Yes. A payor will be liable for the penalty under section 
6676(b) for providing an incorrect taxpayer identification number on an 
information return for the 1988 and subsequent calendar years if the 
payor is notified by the Internal Revenue Service on or after January 1, 
1988, and before the

[[Page 497]]

original due date of an information return that such number is 
incorrect, unless the payor is exercising due diligence.

                    Pre-1984 Accounts and Instruments

    Q-85. What actions must a payor of a pre-1984 account or instrument 
take to exercise due diligence to avoid the penalty under section 
6676(b) for filing an information return with an incorrect taxpayer 
indetification number for the 1989 and subsequent calendar years, if the 
Internal Revenue Service or a broker notifies the payor, on or after 
January 1, 1989, and before the original due date of such information 
return, that the payee's taxpayer identification number is incorrect?
    A-85. A payor of a pre-1984 account or instrument will not be liable 
for the penalty if (1) at the time that the payor receives the first 
notice of an incorrect taxpayer identification number on or after 
January 1, 1989, the payor is considered to be exercising due diligence 
as described in A-5 and A-6 and the related questions and answers on due 
diligence under Sec. 35a.9999-1 or is complying or with the rule 
described in A-56 and the related questions and answers on due diligence 
under Sec. 35a.9999-1, (2) the payor sent the notice to the payee in the 
manner prescribed in Sec. 35a.3406-1(c), (3) if the payor received a 
Form W-9 or acceptable substitute Form W-9 (including a recertified 
taxpayer identification number) from the payee before the original due 
date of an information return (see A-31 under Sec. 35a.9999-1 and 
Sec. 35a.3406-1(d)(2) as to when a payor may treat a Form W-9 or 
substitute Form W-9 as being received), the payor used the new name and 
taxpayer number provided on the Form W-9 or acceptable substitute form 
on information returns filed after the calendar year in which the number 
is received, and (4) the payor sends the notice prescribed in 
Sec. 35a.3406-1(c) in each year subsequent to the year in which the 
notice was first sent to the payee (who has not by the end of such year 
provided a certified Form W-9 or acceptable substitute form) until the 
Internal Revenue Service or a broker sends a second notice (of an 
incorrect taxpayer identification number for the payee) to the payor 
within 3 calendar years. If a second notice is sent, due diligence is 
met according to the rules set forth in A-89 of this section.
    Q-86. Is a payor of a pre-1984 account or instrument who is 
considered to be exercising due diligence through the prescribed annual 
mailings in A-5 and A-6 (or who is undertaking the actions described in 
A-56 of Sec. 35a.9999-1) and through the related questions and answers 
on due diligence under Sec. 35a.999-1 in the year that the Internal 
Revenue Service notifies the payor of an incorrect taxpayer 
identification number required to undertake those mailings in addition 
to mailing the notice required in Sec. 35a.3406-1(c) (or in 
Sec. 35a.3406-1(f)(2) in the case of the notification of two incorrect 
taxpayer identification numbers in 3 calendar years)?
    A-86. No. A payor of a pre-1984 account or instrument is not 
required to undertake the mailings prescribed in A-5 and A-6 of 
Sec. 35a.9999-1 (or A-56 of Sec. 35a.9999-1) in any year in which the 
payor is also required to send the notice prescribed in Sec. 35a.3406-
1(c) (or in Sec. 35a.3406-1(f)(2)). Thus, for example, assume that Payor 
X pays reportable interest on a pre-1984 account and has undertaken all 
the prescibed mailings in A-5 and A-6 by December 31, 1989, for the 
account of Payee A. Also assume that Payor X filed the calendar year 
1984 return on February 28, 1985, with respect to Payee A with an 
incorrect taxpayer identification number and the 1985, 1986, 1987, and 
1988 calendar year information returns on February 28, 1986, March 2, 
1987, February 29, 1988, and February 28, 1989, respectively, with the 
same incorrect taxpayer identification number. Payor X has filed neither 
a Form 8210 for any of these years to remit the penalty under section 
6676(b) nor the certification statement set forth in CP2100 (or letter 
2137) for calendar years before 1988. In October of 1989 the Internal 
Revenue Service notifies Payor X that the number set forth on the 1988 
calendar year information return (i.e., filed in 1989 with respect to 
Payee A) was filed with an incorrect taxpayer identification number. 
Under these facts, Payor X is not liable for the penalty for filing the 
1988 information return with an incorrect taxpayer identification number 
because (1) Payor X filed the 1988 information return before being 
notified by

[[Page 498]]

the Internal Revenue Service of the incorrect taxpayer identification 
number, and (2) Payor X exercised due diligence in 1988 through the 
prescribed annual mailing (i.e., Payor X made the separate mailing in 
1983 and the nonseparate mailings in 1984, 1985, 1986, 1987, and 1988 
with respect to Payee A).
    Similarly, Payor X is not liable for the penalty for the 1984, 1985, 
1986, and 1987 calendar year information returns filed on February 28, 
1985, February 28, 1986, March 2, 1987, and February 29, 1988, 
respectively.
    Payor X will be liable for the penalty, however, for filing the 1989 
calendar year information return with the same incorrect taxpayer 
identification number (i.e., the number that the Internal Revenue 
Service notified was incorrect) unless Payor X (1) sends the notice 
information as described in Sec. 35a.3406-1(c), and (2) uses the 
certified taxpayer identification number that is furnished by the payee, 
if one is received before the end of 1989, on the information return 
that is filed for the 1989 calendar year. If Payor X sends the notice 
described in Sec. 35a.3406-1(c) in the 1989 calendar year, Payor X is 
not also required to send the mailing described in A-5 and A-6 (or A-56) 
of Sec. 35a.9999-1 in 19B9. If the payee does not provide a new taxpayer 
identification number to the payor, the payor must continue to use the 
existing taxpayer identification number on information returns filed for 
such payee.
    Q-87. Is Payor X in the example in A-86 required to send the notice 
to Payee A described in Sec. 35a.3406-1 (c) if, earlier in the year, 
Payor X sent the 1989 annual mailing to Payee A as described in A-5 and 
A-6 of (or A-56) Sec. 35a.9999-1?
    A-87. Yes. Once a payor is notified of an incorrect taxpayer 
identification number, the payor must send the mailing prescribed in 
Sec. 35a.3406-1 (c) in order to continue exercising due diligence.

                    Post-1983 Accounts or Instruments

    Q-88. What actions must a payor of a post-1983 account or instrument 
take to exercise due diligence so as to avoid the penalty for filing an 
information return with an incorrect taxpayer identification number 
after being notified by the Internal Revenue Service or a broker on or 
after January 1, 1989, and before the original due date of such return 
that the number is incorrect?
    A-88. A payor as described in Q-88 of an account or instrument that 
is a post-1983 account or instrument will not be liable for the penalty 
for filing an information return with an incorrect taxpayer 
identification number after the Internal Revenue Service notifies the 
payor that the number is incorrect if (1) the payor is considered to be 
exercising due diligence at the time of the notice from the Internal 
Revenue Service because the payor has a certified taxpayer 
identification number from the payee or comes within one of the 
exceptions to due diligence, (2) the payor sent the notice in the manner 
prescribed in Sec. 35a.3406-1(c), and (3) if the payor received a new 
certified Form W-9 or acceptable substitute form (which may contain a 
recertified taxpayer identification number) from the payee in a calendar 
year prior to the calendar year that is the original due date of an 
information return, the payor used the new name and taxpayer 
identification number provided on the Form W-9 or acceptable substitute 
form on information returns filed after the calendar year in which the 
taxpayer identification number is received. (See A-31 under 
Sec. 35a.9999-1 and Sec. 35a.3406-1(d)(2)(ii) as to when a payor may 
treat a taxpayer identification number as being received.)
    In order to continue the exercise of due diligence, the payor must 
send the notice as described in Sec. 35a.3406-1(c) in each calendar year 
until the payor obtains a certified taxpayer identification number from 
the payee or until the Internal Revenue Service sends a second notice 
(of an incorrect number for the payee) to the payor within 3 calendar 
years with respect to the account in question in which case due 
diligence is met according to the rules set forth in A-89 of this 
section.

[[Page 499]]

 Due Diligence Defined After Two Notifications of an Incorrect Taxpayer 
              Identification Number Within 3 Calendar Years

          Both Pre-1984 and Post-1983 Accounts and Instruments

    Q-89. What actions must a payor take, if the payor is notified twice 
within 3 calendar years that a payee has provided an incorrect taxpayer 
identification number, to exercise due diligence so that the payor will 
not be subject to the penalty for the continued use of that incorrect 
taxpayer identification number?
    A-89. The payor (1) must send the notice to the payee as prescribed 
in Sec. 35a.3406-1(f)(2), (2) must code all subsequent information 
returns that are filed in the calendar year after the calendar year in 
which the second notice is received with the words ``2ND NOTICE'', and 
(3) must, if the payor receives from the payee a copy of the notice from 
the Internal Revenue Service that the payee has provided a correct 
taxpayer identification number as described in paragraph (h) of 
Sec. 35a.3406-1, obtain and use such name and taxpayer identification 
number combination on the information returns that are filed after the 
calendar year in which the name and number are received.
    A payor shall not count any notice received from the Internal 
Revenue Service or a broker prior to January 1, 1990, as the second of 
two notices within 3 calendar years. Further, a payor shall treat two or 
more notices received in a calendar year with respect to a payee as one 
notice received in that calendar year for that payee. The preceding 
sentence applies only with respect to a payor who receives such two or 
more notices under the same payor employer identification number (or 
social security number). See Sec. 35a.3406-1(f).

                            Procedural Items

    Q-90. In what year does the liability for the penalty under section 
6676(b) arise?
    A-90. The liability for the penalty arises on the day following the 
date that the payor files an information return with an incorrect (or a 
missing taxpayer identification number) with respect to a calendar year 
in which the payor failed to exercise due diligence.
    Q-91. When must the payor remit the penalty to the Internal Revenue 
Service?
    A-91. The penalty is due by April 1 of the year following the 
calendar year for which the information return is filed.
    Q-92. Will interest accrue on the penalty if it is not timely paid?
    A-92. Yes. The interest rate will be determined pursuant to section 
6621 of the Internal Revenue Code. For example, assume Bank Y is 
notified by the Internal Revenue Service in November 1986 that Y filed 
1500 information returns with respect to the 1984 calendar year with 
incorrect taxpayer identification numbers. Y exercised due diligence in 
1984 on 1,000 of the accounts for which Y filed information returns with 
incorrect taxpayer identification numbers. As a result, Y is liable for 
a $25,000 penalty (500 x $50) with respect to the information returns 
filed for the 1984 calendar year. Further, interest will be charged on 
the $25,000 beginning April 1, 1985. To the extent Y filed information 
returns for the calendar year 1985 (or a later calendar year) with those 
same incorrect taxpayer identification numbers, Y may also be liable for 
a penalty and interest beginning on April 1, 1986 (or April 1 of the 
year following such later calendar year), with respect to such 
information returns.
    Q-93. In what manner should a payor remit the penalty to the 
Internal Revenue Service?
    A-93. Generally, the payor shall remit the penalty with a properly 
executed Form 8210. However, effective for information returns filed for 
the 1984, 1985, 1986, and 1987 calendar years with missing or incorrect 
taxpayer identification numbers, the payor may remit the penalty only 
with the certification statement set forth in CP 2100 and letter 2137 
provided by the Internal Revenue Service for notifying payors of missing 
or incorrect taxpayer identification numbers. The submission to the 
Internal Revenue Service of the signed certification statement shall 
constitute the filing of a return. With respect to information returns 
filed with missing or incorrect taxpayer identification numbers for the 
1988 or a later calendar year, the payor must remit the penalty with the 
Form 8210.

[[Page 500]]

    Q-94. What method should the payor use to contest any part of the 
proposed penalty under section 6676(b)?
    A-94. A payor may contest the penalty judicially and 
administratively. With respect to a judicial contest, each penalty with 
respect to a return or statement is separable; therefore, a payor may 
contest its liability for the penalty by paying one such penalty and 
suing for a refund in a case in which the same issue arises with respect 
to multiple failures. A payor may also request an administrative appeals 
conference with the Internal Revenue Service. A request for an appeals 
conference may be made and granted after the penalty has been imposed by 
the Internal Revenue Service. The manner for requesting an appeals 
conference is set forth in Publication 556.
    Q-95. When does the period for the statute of limitations on 
assessment begin to run on the penalty under section 6676(b)?
    A-95. The period for the statute of limitations on assessment begins 
to run on a penalty that is due under section 6676(b) on the date the 
payor files the respective Form 8210 or, with respect to the penalty due 
for the 1984, 1985, 1986, and 1987 calendar year information returns, 
the earlier of the date the payor files the Form 8210 or files the 
certification statement set forth in CP 2100 and Letter 2137. The period 
for the statute of limitations on assessment runs for a period of 3 
years. See section 6501.
    Q-96. May a payor surcharge or pass the penalty on to the account of 
the payee with respect to which the payor was liable for the penalty 
under section 6676(b)?
    A-96. No. A payor shall not surcharge or otherwise pass the penalty 
on directly or indirectly to the account of a particular payee. Section 
6676 provides for a separate $50 penalty for a payee who fails to 
provide a correct taxpayer identification number to a payor.

                           Miscellaneous Items

    Q-97. Is a payor of a pre-1984 account or instrument who does not 
undertake the prescribed mailings in A-5 and A-6 of (or A-56) 
Sec. 35a.9999-1 but obtained a certified taxpayer indentification number 
from a payee required to retain a copy of the document containing the 
certified number in its files?
    A-97. No. See Q/A-23 of Sec. 35a.9999-2.
    Q-98. If a payor is notified that a payee is subject to backup 
withholding under both section 3406(a)(1) (B) and (C), with which rules 
should the payor comply and subject the payee to backup withholding?
    A-98. A payor should comply with both provisions. Certain reportable 
payments that are subject to backup withholding under section 3406 
(a)(1)(B) are not subject to backup withholding under section 
3406(a)(1)(C). In a case where a reportable payment, such as interest 
reportable under section 6049, is potentially subject to backup 
withholding under both provisions, the payor must comply with the notice 
requirements under both section 3406(A)(1) (B) and (C). The payor should 
stop backup withholding on the account only when all conditions 
subjecting the account to backup withholding have been satisfied by the 
payee. Backup withholding should be stopped according to the provision 
that applies last to the account in question.

                        Acquisitions and Mergers

    Q-99. Under what circumstance is a taxpayer liable for the penalty 
under section 6676(b) with respect to another taxpayer?
    A-99. A taxpayer will be liable for the penalty under section 
6676(b) of another taxpayer if there is a validly enforceable agreement 
under State law by which the taxpayer agreed to pay the Federal tax 
liability of the other taxpayer or has guaranteed the payment of such 
taxpayer's tax liabilities. Alternatively, the penalty may be 
collectible from the taxpayer as a transferee of property of the other 
taxpayer pursuant to section 6901 if the liability arises on the 
liquidation of a partnership or corporation, or on a reorganization 
within the meaning of section 368(a). See section 6901 and the 
regulations thereunder. In the latter situation the taxpayer will be 
liable for any interest on the penalty if the value of the assets 
transferred exceeds the amount of such penalty, other taxes, related 
penalties, and interest as precribed under the Internal Revenue Code. 
However, if the value of such transferred assets is less than the 
penalty, interest will not be collected from the transferee taxpayer.

[[Page 501]]

    Q-100. Is a pre-1984 account or instrument of a payor that is 
exchanged for an account or instrument of another payor as a result of a 
merger of the other payor or acquisition of the acounts or instruments 
of such payor transformed into a post-1983 account or instrument if the 
merger or acquisition occurs after December 31, 1983?
    A-100. No. A pre-1984 account or instrument that is exchanged for 
another account or instrument pursuant to a statutory merger or the 
acquisition of accounts or instruments is not transformed into a post-
1983 account or instrument because the exchange occurs without the 
participation of the payee. See A-34 of Sec. 35a.9999-1.
    Q-101. May the acquiring taxpayer described in A-100 rely upon the 
business records and past procedures of the merged payor or the payor 
whose accounts or instruments were acquired in order to establish that 
due diligence has been exercised on the acquired pre-1984 and post-1983 
accounts or instruments?
    A-101. Yes. The acquiring payor may rely upon the business records 
and past procedures of the merged payor or of the payor whose accounts 
or instruments were acquired in order to establish due diligence to 
avoid the penalty under section 6676(b) with respect to information 
returns that have been or will be filed.
    Q-102. If the business records of a merged payor or of a payor whose 
accounts or instruments were acquired do not disclose whether an account 
is a pre-1984 or post-1983 account or instrument, how should the payor 
classify such account or instrument?
    A-102. The payor described in Q-102 may presume that such account or 
instrument is a pre-1984 account or instrument for purposes of backup 
withholding and due diligence. A payor who so treats such accounts and 
instruments may comply with the provisions of A-56 of Sec. 35a.9999-1 in 
the calendar year of such merger or acquisition to obtain relief from 
the penalty under section 6676(b) with respect to information returns 
filed for the year following the year of the acquisition or merger and 
subsequent calendar years. With respect to the requirement to backup 
withhold on such accounts or instruments with respect to which there is 
a missing or an obviously incorrect taxpayer identification number, the 
payor may commence such backup withholding no later than sixty days 
following the date of the merger or acquisition of such accounts or 
instruments. A payor who withholds as described under the prior sentence 
will meet the backup withholding criterion under A-56 Sec. 35a.9999-1. A 
payor as described in this answer is not required to obtain a 
determination from the Internal Revenue Service as described in A-56 of 
Sec. 35a.9999-1.
    Q-103. Is a payor required to retain the notice of an incorrect 
taxpayer identification number described in Sec. 35a.3406-1(b) (1) or 
(2) that the Internal Revenue Service or a broker sends to the payor?
    A-103. Yes. The payor is required to maintain the notices (whether 
or not such payor imposes backup withholding on the account to which the 
notice relates or incurs any liability for backup withholding) for a 
period of four years after the later of (1) the due date of such tax 
(backup withholding) for the return period to which the notice relates, 
(2) the date an information return is filed reflecting the final 
payments that are subject to backup withholding as a result of the 
notice described in Sec. 35a.3406-1(b) (1) or (2), or (3) the date the 
tax is paid with respect to the notice. See section 6001 and the 
regulations issued thereunder for other rules on record retention.
    Q-104. Is a payor required to retain the ``statement of SSA or IRS 
contact'' (as described in the Appendix to Sec. 35a.3406-1) that a payee 
has returned to the payor?
    A-104. No. A payor is not required to retain the ``statement of SSA 
or IRS contact''.
    Q-105. Does the rule of A-5 of Sec. 35a.9999-2 which allows a payor 
to deliver the mailings described in A-5 and A-6 of Sec. 35a.9999-1 in 
person or by intra-office mail, apply with respect to mailings 
requesting a penalties of perjury statement from foreign payees 
described in A-52 and A-55 of Sec. 35a.9999-1?
    A-105. Yes. A payor or broker may deliver the mailings requesting 
the penalties of perjury statement from foreign payees described in A-52 
and A-55 of Sec. 35a.9999-1 provided the mailings are delivered by the 
same method used by the payor or broker in sending account

[[Page 502]]

activity and balance information and other correspondence to the payee.

[T.D. 7929, 48 FR 56332, Dec. 20, 1983, as amended by T.D. 7933, 49 FR 
63, Jan. 3, 1984; T.D. 7966, 49 FR 33236, Aug. 22, 1984; T.D. 8163, 52 
FR 44874, Nov. 23, 1987; T.D. 8248, 54 FR 14351, Apr. 11, 1989]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-3 was removed, effective Jan. 1, 1999. At 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001.



Sec. 35a.9999-3A  Question and answer relating to exemption from backup withholding for certain principal payments made outside the United States by brokers on 
          certain obligations.

    The following question and answer concerns the exemption from 
information reporting and backup withholding for certain principal 
payments on obligations made outside the United States. The question and 
answer is issued under the Interest and Dividend Tax Compliance Act of 
1983 (Pub. L. 98-67, 97 Stat. 369):
    Q. Are payments of principal on obligations subject to information 
reporting under section 6045 or to backup withholding if made outside 
the United States?
    A. Such payments are not subject to section 6045 information 
reporting or backup withholding if made with respect to obligations the 
interest on which would be from sources outside the United States. The 
determination of whether a payment of principal is made outside the 
United States for this purpose shall be determined under rules similar 
to those contained in A-37 of Sec. 35a.9999-3 of the regulations.

[T.D. 7946, 49 FR 7227, Feb. 28, 1984]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-3A was removed, effective Jan. 1, 1999. At 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001.



Sec. 35a.9999-4T  Questions and answers relating to the application of information reporting and backup withholding to payments by foreign offices of United
 
          States and foreign brokers and by United States offices of 
          banks and brokers, and other related matters (temporary).

    The following questions and answers concern the application of 
information reporting and backup withholding to payments by foreign 
offices of United States and foreign brokers and by United States 
offices of banks and brokers, and other related matters. These questions 
and answers are issued under the Interest and Dividend Tax Compliance 
Act of 1983 (Pub. L. 98-67, 97 Stat. 369):
    Q-1. Was a foreign office of a U.S. broker required to commence 
backup withholding on July 1, 1984, with respect to transactions 
effected by that office for a foreign customer who has not provided the 
broker with the penalty of perjury statement described in Sec. 1.6045-
1(g)(1) of the regulations?
    A-1. Although it has not received a statement described in 
Sec. 1.6045-1(g)(1), a foreign office of a U.S. broker may treat a 
cusotmer as an exempt foreign person with respect to a transaction 
effected by that office for that customer if, in the case of both pre-
1984 and post-1983 brokerage accounts, the broker has evidence in its 
records that the customer is a foreign person (provided the broker does 
not have actual knowledge that the evidence is false, the customer does 
not, except in infrequent and isolated circumstances, transmit 
instructions to the foreign office from within the United States, by 
mail, telephone, electronic transfer or otherwise, and the customer has 
not opened an account with a United States office of the broker). Such 
evidence may include a written indication from the customer (e.g., 
appearing on an account application form) that the customer is neither a 
citizen nor a resident of the United States. The mere fact, however that 
the customer has provided an address outside the United States is 
insufficent evidence to establish for this purpose

[[Page 503]]

that the customer is neither a citizen nor a resident of the United 
States. For payments made on or before November 20, 1984 on brokerage 
accounts opened on or before August 22, 1984, an affidavit by an 
employee of the broker stating that the employee knows, or that the 
customer has represented orally, that the customer is not a U.S. person 
will be sufficient to establish such foreign status. For all other 
payments on brokerage accounts, the employee's affidavit will be 
sufficient to estblish the customer's foreign status only if the 
affidavit states that the employee has a reasonable basis, founded on 
documentary evidence, for believing that the cusomter is neither a 
citizen nor a resident of the United States.
    A foreign office of a U.S. broker may also treat a customer as an 
exempt foreign person with respect to payments made outside the United 
States on a transaction effected by that office on behalf of that 
customer if any one of the following conditions is satisfied: (i) During 
the 12-month period immediately preceding the transaction, the broker 
has withheld tax on any amount, including interest and dividends, paid 
to such person under subchapter A of chapter 3 of the Code in accordance 
with the provisions of chapter 3; (ii) during the 12-month period 
immediately preceding the transaction another payor or middleman has 
withheld tax under subchapter A of chapter 3 of the Code in accordance 
with the provisions of chapter 3 on any amount, including interest and 
dividends, collected by the broker on behalf of the customer; or (iii) 
the broker, in accordance with Sec. 1.1441-6 (b) or (c) of the 
regulations, has received from the customer a Form 1001 (Ownership, 
Exemption or Reduced Rate Certificate) or special variation thereof that 
is in effect with respect to any amount, inlcuding interest, that is or 
may be paid to the customer during the calendar year in which the 
transaction is effected. (Notwithstanding the foregoing, the Internal 
Revenue Service is reconsidering the question of whether a broker should 
be permitted to treat a customer as an exempt foreign person for 
purposes of either information reporting or backup withholding merely by 
virtue of the fact that the broker or another person withheld tax under 
subchapter A of chapter 3 of the Code on any amount collected by the 
broker on behalf of the customer; any change in this rule will be 
announced in future regulations and will apply prospectively only).
    If the broker does not obtain the statement described in 
Sec. 1.6045-1(g)(1) and does not otherwise establish in accordance with 
any of the foregoing procedures that a customer is not a U.S. citizen or 
resident, the information reporting provisions of section 6045 will 
apply. However, the issue of whether backup withholding should apply 
with respect to transactions effected by a foreign office of a U.S. 
broker, as well as the issue of the standard of evidence required to 
prove foreign status for information reporting purposes, is still under 
consideration. Until provided otherwise, backup withholding shall not 
apply with respect to such transactions. If backup withholding is 
subsequently determined to be appropriate, or the circumstances in which 
information reporting is required are changed, such will be provided in 
future regulations, and such changes will apply on a prospective basis 
only.
    Q-2. Are payments made with respect to transactions effected for a 
U.S. customer of a foreign office of a foreign broker reportable 
payments under section 6045 that may be subject to backup withholding?
    A-2. A payment made with respect to a transaction effected for a 
U.S. customer by a foreign office of a foreign broker is subject to 
information reporting under section 6045 only in the following 
circumstances: (i) The foreign broker is a controlled foreign 
corporation within the meaning of section 957(a); or (ii) 50 percent or 
more of the gross income of the foreign broker from all sources for the 
3-year period ending with the close of its taxable year preceding the 
payment (or for such part of the period that the foreign broker has been 
in existence) was effectively connected with the conduct of a trade or 
business within the United States.
    For purposes of determining whether a customer is an exempt foreign 
person, the foreign office of a foreign broker may use the same 
procedures as used by a foreign office of a U.S.

[[Page 504]]

broker. If the foreign broker does not obtain the statement described in 
Sec. 1.6045-1(g)(1) and does not otherwise establish in accordance with 
those procedures that a customer is not a U.S. citizen or resident, the 
information reporting provisions of section 6045 will apply. However, as 
in the case of foreign offices of United States brokers, the issue of 
whether backup withholding should be applied with respect to such 
foreign offices, as well as the issue of the standard of evidence 
required to prove foreign status for information reporting purposes, is 
still under consideration. If backup withholding is subsequently 
determined to be appropriate, or the circumstances in which information 
reporting is required are changed, such will be provided in future 
regulations, and such changes will apply on a prospective basis only.
    Q-3. Was a U.S. office of a bank or a broker required to commence 
backup withholding on July 1, 1984, with respect to the pre-1984 account 
of a foreign payee or customer (other than a payee or customer who may 
be treated as an exempt recipient) if the bank or broker has not 
received a taxpayer identification number or the penalty of perjury 
statement described in Sec. 1.6049-5(b)(2)(iv) or Sec. 1.6045-1(g)(1) 
from that payee or customer?
    A-3. The bank or broker is not required to commence backup 
withholding with respect to the pre-1984 account of a foreign payee or 
customer until January 1, 1985, provided, however, that the following 
conditions are satisfied: (i) The bank or broker has otherwise complied 
with the requirements of A-52 or A-55 of Sec. 35a.9999-1 of the 
regulations and (ii) the bank or broker sends an additional mailing 
(which need not be a separate mailing) during calendar year 1984 
requesting the payee or customer to provide the requisite statement 
signed under penalties of perjury. The additional mailing must be by 
first-class mail, or by airmail if sent to a foreign address, and must 
contain a notice describing the requisite statement and advising the 
payee or customer that backup withholding may commence if the statement 
is not provided. The mailing must include a reply envelope and a form on 
which the payee or customer may provide the requisite statement. 
However, no further mailing is required by this A-3 after the bank or 
broker has received the statement signed by the payee or customer under 
penalties of perjury. The rules of A-18 of Sec. 35a.9999-1 relating to 
persons for whom the payor has no correct address, the rules of A-19 of 
Sec. 35a.9999-1 relating to ``do not mail'' or ``stop mail hold'' 
instructions, and the rules of A-52 of Sec. 35a.9999-3 relating to the 
delivery of mailings shall apply with respect to the mailings required 
by this A-3.
    Backup withholding must commence with respect to payments on pre-
1984 accounts of foreign payees or customers on or after January 1, 
1985, if the bank or broker has received neither a taxpayer 
identification number nor a statement described in Sec. 1.6049-
5(b)(2)(iv) or Sec. 1.6045-1(g)(1) from the foreign payee or customer.
    Q-4. Do the backup withholding provisions apply to a payment in 
redemption or retirement of an obligation issued by an international 
organization if the payment is made within the United States by the 
international organization or by a person acting in its capacity as a 
paying agent for such organization?
    A-4. No, provided the international organization is an organization 
of which the United States is a member and which enjoys immunity or 
exemption from any liability or obligation to pay, withhold, or collect 
tax pursuant to an international agreement having full force and effect 
in the United States.
    Q-5. For purposes of the regulations under Sec. 35a.9999-5, under 
what circumstances is a custodian, nominee or other agent of a payee 
subject to information reporting or backup withholding with respect to 
interest or original issue discount paid or collected outside the United 
States?
    A-5. (i) The provisions of Q&A's 2, 3, 4, 5, 6, and 16 of 
Sec. 35a.9999-5 indicate that the payment or collection outside the 
United States of interest or original issue discount on obligations 
described therein by a person acting as a custodian, nominee or other 
agent of the payee with respect to those obligations may be subject to 
information reporting under section 6049 unless the

[[Page 505]]

payee is an exempt recipient or a foreign person.
    (ii) For purposes of the provisions described in subdivision (i), a 
payment or collection of interest or original issue discount outside the 
United States by a person acting in its capacity as a custodian, nominee 
or other agent of the payee with respect to such payment or collection 
is not subject to information reporting under section 6049 by that agent 
unless the agent is either (A) a United States person, (B) a controlled 
foreign corporation within the meaning of section 957(a), or (C) a 
foreign person 50 percent or more of the gross income of which from all 
sources for the 3-year period ending with the close of its taxable year 
preceding the collection or payment was effectively connected with its 
conduct of a trade or business within the United States.
    (iii) For purposes of section 6049 and the regulations under 
Sec. 35a.9999-5, an agent (described in subdivision (ii)) of the payee 
paying or collecting interest or original issue discount outside the 
United States with respect to an obligation described in Sec. 35a.9999-5 
may treat the payee as a person who is not a United States citizen or 
resident if the agent has evidence in its records to such effect 
(provided it does not have actual knowledge that the evidence is false). 
Such evidence may include a written indication from the payee (e.g., 
appearing on an account application form) that the payee is neither a 
citizen nor a resident of the United States. The mere fact, however, 
that the payee has provided an address outside the United States is 
insufficient evidence to establish for this purpose that the payee is 
neither a citizen nor a resident of the United States. For payments made 
on or before November 20, 1984, on accounts opened on or before August 
22, 1984, an affidavit by an employee of the agent stating that the 
employee knows, or the payee has represented orally, that the payee is 
not a U.S. person will be sufficient to establish such foreign status. 
For all other payments, an affidavit of an employee will be sufficient 
to establish the foreign status of the payee only if the affidavit 
states that the employee has a reasonable basis, founded on documentary 
evidence, for believing that the payee is neither a citizen nor a 
resident of the United States. (Notwithstanding the foregoing, the issue 
of the standard of evidence required to prove foreign status for 
information reporting purposes is still under consideration; any change 
in such standard would be made in future regulations and would apply on 
a prospective basis only.)
    (iv) Payments described in this Q&A-5 are not subject to information 
reporting by a custodian, nominee or other agent of the payee under 
section 6041, if they are exempt from reporting under section 6049. In 
addition, although payments outside the United States of interest or 
original issue discount described in this Q&A-5 may be reportable 
payments as, for example, payments made by foreign offices of U.S. 
persons to U.S. persons, these payments are not subject currently to 
backup withholding by the custodian, nominee or other agent of the 
payee. (However, the issue of whether backup withholding should apply in 
this case is still under consideration; any change with respect to 
backup withholding in this regard would be made in future regulations 
and would apply on a prospective basis only.)
    (v) For purposes of Q&A-7 and Q&A-17 of Sec. 35a.9999-5, the 
question of whether a broker is otherwise subject to information 
reporting under section 6045 shall be determined in accordance with the 
provisions of Q&A-1 and Q&A-2 of this Sec. 35a.9999-4.

[T.D. 7966, 49 FR 33237, Aug. 22, 1984, as amended by T.D. 7972, 49 FR 
34340, Aug. 29, 1984]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-4T was removed, effective Jan. 1, 1999. At 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001.



Sec. 35a.9999-5  Questions and answers relating to repeal of 30 percent withholding by section 127 of the Tax Reform Act of 1984 and to the application of 
          information reporting and backup withholding in light of such 
          repeal.

    The following questions and answers concern the repeal of 30 percent 
withholding by section 127 of the Tax Reform Act of 1984 and the 
application of

[[Page 506]]

information reporting and backup withholding in light of such repeal.
    (a) Rules concerning obligations in bearer form.
    Q-1. When will interest qualify as portfolio interest within the 
meaning of section 871(h)(2)(A) or section 881(c)(2)(A)?
    A-1. Interest is portfolio interest within the meaning of section 
871(h)(2)(A) or section 881(c)(2)(A) only if it paid with respect to an 
obligation issued after July 18, 1984, that is in bearer form and 
described in section 163(f)(2)(B).
    Q-2. Is a payment of portfolio interest described in section 
871(h)(2)(A) or section 881(c)(2)(A) from sources within the United 
States subject to information reporting under section 6041 or 6049 or to 
backup withholding if the payment is made outside the United States?
    A-2. Unless an issuer or its agent has actual knowledge that a payee 
is a United States person, no information reporting under section 6041 
or 6049 is required with respect to a payment of U.S. source portfolio 
interest by the issuer or agent if the payment is made outside the 
United States. As a payment of U.S. source portfolio interest made 
outside the United States by the issuer or agent is not subject to 
information reporting under section 6041 or 6049, it is not a reportable 
payment within the meaning of section 3406(b)(1) and is not subject to 
backup withholding by the issuer or its agent. Whether a payment of this 
interest is considered to be made outside the United States shall be 
determined for this purpose under the rules of A-37 of Sec. 35a.9999-3 
of the regulations. However, notwithstanding the rules of A-37, for 
purposes of this A-2, payment shall not be considered to be made outside 
the United States if the interest is paid to a United States address, 
whether by mail or by electronic transfer. The payment or collection 
outside the United States of U.S. source portfolio interest on a bearer 
obligation by a person acting as a custodian, nominee or other agent of 
the payee with respect to the obligation is subject to information 
reporting under section 6049 if that person is otherwise required to 
report amounts paid to or collected on behalf of the payee. For example, 
a foreign branch of a U.S. bank holding the bearer obligation on behalf 
of a customer is required to report or backup withhold with respect to 
the portfolio interest collected for the customer unless the customer is 
an exempt recipient described in Sec. 1.6049-4(c)(1)(ii) or unless the 
branch has documentary evidence in its files that the customer is not a 
citizen or resident of the United States. See, e.g., revised Q-34 of 
Sec. 35.9999-3.
    Q-3. Is a payment of interest from sources outside the United States 
on an obligation of a issuer that is a United States person or a 
controlled foreign corporation subject to information reporting under 
section 6041 or 6049 or to backup withholding if the obligation was 
issued in accordance with procedures described in Sec. 1.163-5(c)(2)(i) 
(A) or (B)?
    A-3. Unless an issuer or its agent has actual knowledge that a payee 
is a United States person, no information reporting under section 6041 
or 6049 is required with respect to the payment of interest described in 
Q-3 by the issuer or agent if the payment is made outside the United 
States. As a payment of interest described in this A-3 is not subject to 
information reporting under section 6041 or 6049, it is not a reportable 
payment within the meaning of section 3406(b)(1) and is not subject to 
backup withholding by the issuer or its agent. Whether a payment of this 
interest is considered to be made outside the United States shall be 
determined for this purpose under the rules of A-37 of Sec. 35a.9999-3 
of the regulations. However, payment will not be considered to be made 
outside the United States for purposes of this A-3 if the interest is 
paid to a United States address by mail or by electronic transfer. In 
the case of obligations issued prior to September 21, 1984, the 
foregoing sentence shall apply only with respect to interest paid more 
than 90 days after August 22, 1984. Notwithstanding any provision to the 
contrary in Sec. 1.6049-5(b)(1) (vii) or (ix), the payment or collection 
outside the United States of interest described in this A-3 by a person 
acting as a custodian, nominee, or other agent of the payee with respect 
to the obligation is subject to information reporting under section 6049 
if that person is otherwise required to report amounts paid to or 
collected on

[[Page 507]]

behalf of the payee. For example, a foreign branch of a U.S. bank 
holding the bearer obligation on behalf of a customer is required to 
report or backup withhold with respect to interest described in this A-3 
unless the customer is an exempt recipient described in Sec. 1.6049-
4(c)(1)(ii) or unless the branch has documentary evidence that the 
customer is not a citizen or resident of the United States. See, e.g., 
revised Q-34 of Sec. 35a.9999-3. The provisions of this Q-3 do not apply 
with respect to interest on obligations described in A-4 or A-5.
    Q-4. Is information reporting under section 6041 or 6049 required 
with respect to interest described in section 861(c) that is paid 
outside the United States on an obligation that would be a registration-
required obligation within the meaning of section 163(f)(2)(A) but for 
the fact that the obligation is described in section 163(f)(2)(B)?
    A-4. Unless the issuer or its agent has actual knowledge that the 
payee is a United States person, interest described in section 861(c) is 
not subject to information reporting under section 6041 or 6049 when 
paid by the issuer or agent outside the United States if the following 
conditions are met: (i) The obligation with respect to which the 
interest is paid is in bearer form; (ii) the obligation would be a 
registration-required obligation within the meaning of section 
163(f)(2)(A) but for the fact that it is described in section 
163(f)(2)(B); and (iii) the obligation is part of a larger single public 
offering of obligations. As a payment of interest by the issuer or its 
agent that meets these requirements is not subject to information 
reporting under section 6041 or 6049, it is not a reportable payment 
within the meaning of section 3406(b)(1) and is not subject to backup 
withholding by the issuer or agent. Whether a payment of this interest 
is considered to be made outside the United States shall be determined 
for this purpose under the rules of A-37 of Sec. 35a.9999-3 of the 
regulations. However, notwithstanding the rules of A-37, for purposes of 
this A-4, payment shall not be considered to be made outside the United 
States if the interest is paid to a United States address, whether by 
mail or by electronic transfer. The payment or collection outside the 
United States of interest on an obligation described in the foregoing 
paragraph by a person acting as a custodian, nominee or other agent of 
the payee with respect to the obligation is subject to information 
reporting under section 6049 if that person is otherwise required to 
report amounts paid to or collected on behalf of the payee. For example, 
a foreign branch of a U.S. bank holding the obligation on behalf of a 
customer is required to report or backup withhold with respect to this 
interest collected for the customer unless the customer is an exempt 
recipient described in Sec. 1.6049-4(c)(1)(ii) or unless the branch has 
documentary evidence that the customer is not a citizen or resident of 
the United States. See, e.q., revised Q-34 of Sec. 35a.9999-3.
    Q-5. Is information reporting under section 6041 or 6049 required 
with respect to interest described in section 861(c) that is paid 
outside the United States on an obligation that would be a registration-
required obligation but for the fact that it has a maturity (at issue) 
of not more than one year?
    A-5. Unless the issuer or its agent has actual knowledge that a 
payee is a United States person, no information reporting by the issuer 
or agent is required with respect to a payment of interest on such an 
obligation, whether in registered or bearer form, if the following 
conditions are satisfied: (i) the payment is made outside the United 
States; (ii) the face amount of the obligation is not less than $500,000 
(determined by reference to the spot rate on the date of issuance, in 
the case of an obligation not denominated in United States dollars); 
(iii) the obligation satisfies the requirements of section 
163(f)(2)(B)(i) and (ii)(I) and the regulations thereunder (as if the 
obligation would otherwise be a registration-required obligation within 
the meaning of section 163(f)(2)(A)) (However, an original issue 
discount obligation with a maturity of 183 days or less from the date of 
issuance is not required to satisfy the certification requirement of 
Sec. 1.163-5(c)(2)(i)(D)(3).); (iv) the obligation, if in registered 
form, is registered in the name of an exempt recipient described in 
Sec. 1.6049-4(c)(1)(ii); and (v) the obligation contains the following

[[Page 508]]

statement (or a similar statement having the same effect): ``By 
accepting this obligation, the holder represents and warrants that it is 
not a United States person (other than an exempt recipient described in 
section 6049(b)(4) of the Internal Revenue Code and the regulations 
thereunder) and that it is not acting for or on behalf of a United 
States person (other than an exempt recipient described in section 
6049(b)(4) of the Internal Revenue Code and the regulations 
thereunder).'' As a payment by the issuer or its agent of interest 
meeting these requirements is not subject to information reporting under 
section 6041 or section 6049, it is not a reportable payment within the 
meaning of section 3406(b)(1) and is not subject to backup withholding 
by the issuer or agent. Whether a payment of interest is made outside 
the United States shall be determined for this purpose under the rules 
of A-37 of Sec. 35a.9999-3 of the regulations. However, notwithstanding 
the rules of A-37, payment shall not be considered to be made outside 
the United States for purposes of this A-5 if the interest is paid to a 
United States address, whether by mail or electronic transfer. The 
payment or collection outside the United States of interest on an 
obligation described in the foregoing paragraph by a person acting as a 
custodian, nominee or other agent of the payee with respect to the 
obligation is subject to information reporting under section 6049 if 
that person is otherwise required to report amounts paid to or collected 
on behalf of the payee. For example, a foreign branch of a U.S. bank 
holding the obligation on behalf of a customer is required to report or 
backup withhold with respect to the interest collected for the customer 
unless the customer is an exempt recipient described in Sec. 1.6049-
4(c)(1)(ii) or unless the branch has documentary evidence that the 
customer is not a citizen or resident of the United States.
    Q-6. Is a payment of original issue discount from sources within the 
United States on an obligation that is payable six months or less from 
the date of its original issue subject to information reporting under 
section 6041 or 6049 or backup withholding if it is paid outside the 
United States?
    A-6. Whether original issue discount described in Q-6 is subject to 
information reporting or backup withholding shall be determined under 
the same rules as those set forth in A-5 with respect to interest 
described in section 861(c).
    Q-7. Is information reporting under section 6045 required by an 
issuer or its agent with respect to the redemption or retirement of an 
obligation described in A-2, -3, -4 or -5?
    A-7. An issuer or its agent is not subject to the information 
reporting requirements of section 6045 with respect to the redemption or 
retirement of an obligation described in A-2, -3, -4 or -5, provided (i) 
that the issuer or agent does not have actual knowledge that the payee 
is a United States person, (ii) that the obligation is presented for 
retirement or redemption, or payment is otherwise made, at the office of 
the issuer or its agent outside the United States, and (iii) that if the 
obligation is in registered form, it is registered in the name of an 
exempt recipient described in Sec. 1.6049-4(c)(1)(ii). The determination 
of whether a payment is made at the office of the issuer or its agent 
outside the United States shall be made for this purpose under rules 
similar to those contained in A-37 of Sec. 35a.9999-3 of the 
regulations. However, notwithstanding the rules of A-37, the provisions 
of this A-7 shall not apply if payment with respect to the retirement or 
redemption is made to an address within the United States by mail or 
electronic transfer. (In the case of obligations described in A-3 and 
issued prior to September 21, 1984, the foregoing sentence shall apply 
only with respect to amounts paid more than 90 days after August 22, 
1984). As a retirement or redemption by an issuer or its agent that 
meets the requirements of this A-7 is not subject to reporting under 
section 6045, it is not a reportable payment within the meaning of 
section 3406(b)(1) and is not subject to backup withholding by the 
issuer or its agent. Notwithstanding any provision to the contrary in 
Sec. 35a.9999-3A, a person acting as a custodian, nominee or other agent 
for a customer with respect to an obligation described in A-2,

[[Page 509]]

-3, -4 or -5 that presents such obligation to the issuer or its agent 
for redemption or retirement, or that otherwise acts as a broker with 
respect to the obligation, is subject to information reporting under 
section 6045 if that person is otherwise required to report transactions 
effected on behalf of the customer. For example, a foreign office of a 
United States broker presenting an obligation outside the United States 
for retirement or redemption on behalf of a customer who is an 
individual is required to report or backup withhold unless the broker 
has documentary evidence in its files that the customer is a foreign 
person. See, e.g., revised Q-34 of section 35a.9999-3.
    (b) Rules concerning obligations in registered form.
    Q-8. When will interest qualify as portfolio interest within the 
meaning of section 871(h)(2)(B) or 881(c)?
    A-8. To qualify as portfolio interest described in section 
871(h)(2)(B) or 881 (c)(2)(B), the interest must be paid with respect to 
an obligation (i) that is in registered form (within the meaning of 
section 163 (f)), issued after July 18, 1984, and (ii) with respect to 
which the United States person (including a foreign paying agent of an 
issuer who is a United States person) who would otherwise be required to 
deduct and withhold tax from the interest under section 1441 (a) or 1442 
(a) receives the statement described in A-9 (or described in A-14, in 
the circumstances described in A-12) from the beneficial owner or a 
financial institution described in section 871(b)(4)(B).
    Q-9. In order for interest on a registered obligation to qualify as 
portfolio interest within the meaning of section 871(h)(2)(B) or section 
881(c)(2)(B), what form of statement must be provided to a United States 
person (including a foreign paying agent of an issuer who is a United 
States person) who would otherwise be required to withhold tax on that 
interest under section 1441(a) or 1442(a)?
    A-9. Interest on a registered obligation may be treated as portfolio 
interest by a United States person otherwise required to deduct and 
withhold tax under section 1441(a) or 1442(a) if that person receives a 
statement that (i) is signed by the beneficial owner under penalties of 
perjury, (ii) certifies that such owner is not a United States person, 
or in the case of an individual, that he is neither a citizen nor a 
resident of the United States, and (iii) provides the name and address 
of the beneficial owner. The statement may be made, at the option of the 
person otherwise required to withhold, on a Form W-8 or on a substitute 
form that is substantially similar to Form W-8. The statement must be 
prepared, renewed and retained in accordance with the procedures 
prescribed in Sec. 1.6049-5(b)(2)(iv). If the information provided on 
the statement changes, the beneficial owner must so inform the person 
otherwise required to withhold within 30 days of such change. Interest 
paid on a registered obligation also may be treated as portfolio 
interest if an appropriate statement is provided to the United States 
person otherwise required to withhold by a securities clearing 
organization, a bank, or another financial institution that holds 
customers' securities in the ordinary course of its trade or business. 
In such case the statement must be signed under penalties of perjury by 
an authorized representative of the financial institution and must state 
(i) that the institution has received from the beneficial owner a Form 
W-8 or substitute form in accordance with the provisions of Sec. 1.6049-
5(b)(2) (iv) or (ii) that it has received from another financial 
institution a similar statement that it, or another financial 
institution acting on behalf of the beneficial owner, has received the 
Form W-8 or substitute form from the beneficial owner. In the case of 
multiple financial institutions between the beneficial owner and the 
person otherwise required to withhold, this certificate must be given by 
each financial institution to the one above it in the chain. No 
particular form is required for the certificate provided by the 
financial institutions. However, the certificate must provide the name 
and address of the beneficial owner, and a copy of the Form W-8 provided 
by the beneficial owner must be attached. The certificate must be 
prepared, renewed and retained in accordance with procedures similar to 
those prescribed in Sec. 1.6049-5(b)(2)(iv). If the information on the 
Form W-8 changes, the beneficial

[[Page 510]]

owner must so notify the financial institution acting on its behalf 
within 30 days of such changes, and the financial institution must 
promptly so inform the United States person otherwise required to 
withhold. This notice also must be given if the financial institution 
has actual knowledge that the information has changed but has not been 
so informed by the beneficial owner. In the case of multiple financial 
institutions between the beneficial owner and the person otherwise 
required to withhold, this notice must be given by each financial 
institution to the institution above it in the chain. A United States 
person otherwise required to deduct and withhold tax under section 
1441(a) or section 1442(a) who receives the certificate described in A-9 
must make an information return on Form 1042S of the payment with 
respect to which the certificate described in A-9 is required for the 
calendar year in which the payment is made. A payment described in the 
preceding sentence shall be treated as a payment for which there is a 
requirement to file a Form 1042S within the meaning of Sec. 1.1461-
2(c)(1), and thus all the provisions of Sec. 1.1461-2(c) relating to the 
time and manner of filing the Form 1042S relate to the payment. The 
certificate described in A-9 received with respect to the payment shall 
be attached to the Form 1042S required to be filed with respect to the 
payment. Section 1.1461-2(c) will be amended to conform with the 
provisions of this paragraph.
    Q-10. In the absence of the receipt of a certificate described in A-
9 (or a certificate described in A-14 in the circumstances described in 
A-12) or a Form W-9 (or a substitute form that is substantially similar 
and completed under penalties of perjury), what United States persons 
are required to deduct and withhold tax under section 1441(a) or 1442(a) 
from interest otherwise qualifying as portfolio interest within the 
meaning of section 871(h)(2)(B) or 881(c)(2)(B)?
    A-10. In general, any United States person who is otherwise a 
withholding agent for purposes of section 1441(a) or 1442(a) is required 
to deduct and withhold unless the certificate described in A-9 (or a 
certificate described in A-14 in the circumstances described in A-12) or 
a Form W-9 (or a substitute form that is substantially similar and 
completed under penalties of perjury) is received. However, a United 
States person is not required to withhold under section 1441(a) and 
1442(a) regardless of whether the certificate is received under the 
following circumstances:
    (i) The interest is paid to or collected on behalf of an exempt 
recipient at an address within the United States (other than an exempt 
recipient who is not a United States person); or
    (ii) The interest is paid to a person at an address within the 
United States, and backup withholding is required with respect to that 
interest in accordance with the provisions of section 3406 (e.g., 
because neither a Form W-8 nor a Form W-9 has been received). For 
purposes of this A-10, an exempt recipient is a person described in 
Sec. 1.6049-4(c)(1)(ii).
    Q-11. Does information reporting under section 6041 or 6049 or 
backup withholding apply with respect to portfolio interest paid on a 
registered obligation to a payee who has provided the payor with a Form 
W-8 or substitute form?
    A-11. No. Provided the payor does not have actual knowledge that the 
payee is a United States person, neither information reporting under 
section 6041 or 6049 nor backup withholding is required in such case.
    Q-12. Is a United States person (including a foreign paying agent of 
an issuer who is a United States person) who is otherwise required to 
deduct and withhold tax in accordance with A-10 required to obtain the 
certificate described in A-9 with respect to interest on a registered 
obligation that has been targeted to foreign markets?
    A-12. The certificate described in A-9 is not required with respect 
to interest paid on a registered obligation that is targeted to foreign 
markets (in accordance with the provisions of A-13) if the interest is 
paid by a United States person to a registered owner at an address 
outside the United States, provided that the registered owner is a 
financial institution described in section 871(h)(4)(B). In that case, 
the United States person otherwise required to deduct and withhold tax 
may treat the interest as portfolio interest if it does not have actual 
knowledge that the

[[Page 511]]

beneficial owner is a United States person and if it receives the 
certificate described in A-14 from a financial institution or member of 
a clearing organization, which member is the beneficial owner of the 
obligation, or the documentary evidence or statement described in A-14 
from the beneficial owner, in accordance with the procedures described 
in A-15.
    Q-13. When is a registered obligation considered to be targeted to 
foreign markets for purposes of A-12?
    A-13. An obligation is considered to be targeted to foreign markets 
for purposes of A-12 if it is sold (or resold in connection with its 
original issuance) only to foreign persons (or to foreign branches of 
United States financial institutions described in section 871(h)(4)(B) 
in accordance with procedures similar to those prescribed in Sec. 1.163-
5(c)(2)(i)(A), (B), or (D). However, the provisions of that section that 
require an obligation to be offered for sale or resale in connection 
with its original issuance only outside the United States do not apply 
with respect to registered obligations offered for sale through a public 
auction. Similarly, the provisions of that section that require delivery 
to be made outside the United States do not apply to registered 
obligations offered for sale through a public auction if the obligations 
are considered to be in registered form by virtue of the fact that they 
may be transferred only through a book entry system. The obligation, if 
evidenced by a physical document other than a confirmation receipt, must 
contain on its face a legend indicating that it has been sold (or resold 
in connection with its original issuance) in accordance with those 
procedures.
    Q-14. What is the certificate or documentary evidence that may be 
provided in lieu of the Form W-8 (or substitute form) in the 
circumstances described in A-12?
    A-14. No particular form is required for the certificate or 
documentary evidence in lieu thereof described in this A-14, but it must 
be described in either subdivision (i) or subdivision (ii). The 
certificate described in subdivision (i) is required if the United 
States person otherwise required to deduct and withhold tax (the 
``withholding agent'') pays interest to a financial institution 
described in section 871(h)(4)(B) or to a member of a clearing 
organization, which member is the beneficial owner of the obligation. 
The documentary evidence or statement described in subdivision (ii) is 
required if a withholding agent pays interest to a beneficial owner that 
is neither a financial institution described in section 871(h)(4)(B) nor 
a member of a clearing organization.
    (i)(A) If the withholding agent pays interest to a financial 
institution described in section 871(h)(4)(B) or to a member of a 
clearing organization, which member is the beneficial owner of the 
obligation, the withholding agent must receive a certificate which 
states that, beginning at the time the last preceding certificate under 
this subdivision (i) was provided and while the financial institution or 
clearing organization member has held the obligation, with respect to 
each registered obligation that is targeted to foreign markets (in 
accordance with the provisions of A-13) which has been held by the 
person providing the certificate at any time since the provision of such 
last preceding certificate, either--
    (1) The beneficial owner of the obligation has not been a United 
States person on each interest payment date; or
    (2) If the person providing the certificate is a financial 
institution which is holding or has held an obligation on behalf of the 
beneficial owner, the beneficial owner of the obligation has been a 
United States person on one or more interest payment dates (identifying 
such date or dates), and the person making the certification has 
forwarded or will forward the appropriate United States beneficial 
ownership notification to the withholding agent in accordance with the 
provisions of A-15.

The person providing the certificate need not state the foregoing where 
no previous certificate has been required to be provided by the payee to 
the withholding agent under this subdivision (i).
    (B) Whether or not a previous certificate has been required to be 
provided under this subdivision (i), each certificate under this 
subdivision (i) must further state that, with respect to each

[[Page 512]]

registered obligation that is targeted to foreign markets (in accordance 
with the provisions of A-13) held and every other such obligation to be 
acquired and held by the person providing the certificate during the 
period beginning on the date of the certificate and ending on the date 
the next certificate is required to be provided, the beneficial owner of 
the obligation will not be a United States person on each interest 
payment date while the financial institution or clearing organization 
member holds the obligation and that, if the person providing the 
certificate is a financial institution which is holding or will be 
holding the obligation on behalf of a beneficial owner, such person will 
provide a United States beneficial ownership notification to the 
withholding agent (and a clearing organization that is not a withholding 
agent where a member organization is required by this A-14 to furnish 
the clearing organization with a statement) in accordance with A-15 of 
this section in the event such certificate (or statement in the case of 
a statement provided by a member organization to a clearing organization 
that is not a withholding agent) is or becomes untrue with respect to 
any obligation. A clearing organization is an entity which is in the 
business of holding obligations for member organizations and 
transferring obligations among such members by credit or debit to the 
account of a member without the necessity of physical delivery of the 
obligation.
    (C) The certificate described in subdivision (i) (A) and (B) must 
identify the obligation or obligations with respect to which it is 
given, except where the certification is given with respect to an 
obligation that has not been acquired at the time the certification is 
made. An obligation is identified if it or the larger issuance of which 
it is a part is described on a list (e.g., $5 million principal amount 
of 12% debentures of ABC Savings and Loan Association due February 25, 
1995, $3 million principal amount of 10% U.S. Treasury notes due May 28, 
1990) of all registered obligations targeted to foreign markets held by 
or on behalf of the person providing the certificate and the list is 
attached to, and incorporated by reference into, the certificate. The 
certificate must identify and provide the address of the person 
furnishing the certificate.
    (D) If the withholding agent pays interest to a depository of a 
clearing obligation, then the clearing organization must provide the 
certificate to the withholding agent.
    (E) Any certificate that is provided by a clearing organization must 
state that the clearing organization has received a statement from each 
member which complies with this subdivision (i) of A-14 and with A-15 
(as if the clearing organization were the withholding agent and 
regardless of whether the member is a financial institution described in 
section 871(h)(4)(B)).
    (F) Subject to the requirements set out in A-15, a certificate or 
statement in the form described in this subdivision (i) of A-14, in 
conjunction with the next annual certificate or statement, will serve as 
the certificate that may be provided in lieu of a Form W-8 with respect 
to interest on all foreign-targeted registered obligations held by the 
person making the certification or statement and which is paid to such 
person within the period beginning on the date of the certificate and 
ending on the date the next certificate is required to be provided.
    (G) The certificate described in this subdivision may be provided 
electronically under the terms and conditions of Sec. 1.163-
5(c)(2)(i)(D)(3)(ii).
    (ii) If the withholding agent pays interest to the beneficial owner 
of an obligation that is neither a financial institution described in 
section 871(h)(4)(B) nor a member of a clearing organization, then such 
owner must provide the withholding agent a Form W-8 (or substantially 
similar form completed under penalties of perjury) as set forth in A-9 
of this section. However, a withholding agent that is a foreign branch 
of a financial institution described in section 871(h)(4)(B) and a 
United States person need not receive any statement or certificate from 
such beneficial owner, provided that the beneficial owner furnishes the 
withholding agent with documentary evidence as described in subdivision 
(iii) of Q-5 of Sec. 35a.9999-4T that the beneficial owner is not a 
United States person.

[[Page 513]]

    Q-15. What procedures apply with respect to the certificate 
described in A-14?
    A-15. (i)(A) Where no previous certificate with respect to 
registered obligations that are targeted to foreign markets (in 
accordance with the provisions of A-13) has been provided to the 
withholding agent by the person providing the certificate under 
subdivision (i) of A-14, such certificate must be provided within the 
period beginning 90 days prior to the first interest payment date on 
which the person holds a foreign-targeted registered obligation. (The 
withholding agent may, in its descretion, withhold the tax under section 
1441(a) or 1442(a) if the certificate is not received by the date 30 
days prior to the interest payment.) Thereafter the certificate must be 
filed within the period beginning on January 15 and ending January 31 of 
each year. If a certificate provided pursuant to the first sentence of 
this subdivision (i)(A) is provided during the period beginning on 
January 15 and ending on January 31 of any year, then no other 
certificate need be provided during such period in such year.
    (B) If on any interest payment date after the obligation was 
acquired by the person making the certification the beneficial owner of 
the obligation is a United States person, then the person to whom the 
withholding agent pays interest must furnish the withholding agent with 
a United States beneficial ownership notification within 30 days after 
such interest payment date. A United States beneficial ownership 
notification must include a statement that the beneficial owner of the 
obligation has been a United States person on an interest payment date 
(identifying such date), that such owner has provided to the person 
providing the notification a Form W-9 (or a substitute form that is 
substantially similar to Form W-9 and completed under penalties of 
perjury), and that the person providing the notification has been and 
will be complying with the information reporting requirements of section 
6049, if applicable.
    (C) Where the person providing the notification described in 
subdivision (i)(B) of this A-15 is neither (1) a controlled foreign 
corporation within the meaning of section 957(a), nor (2) a foreign 
corporation 50 percent or more of the gross income of which from all 
sources for the three-year period ending with the close of the taxable 
year preceding the date of the statement was effectively connected with 
the conduct of trade or business in the United States, such person must 
attach to the notification a copy of the Form W-9 (or substitute form 
that is substantially similar to Form W-9 and completed under penalties 
of perjury) provided by the beneficial owner. When a person that 
provides the United States beneficial ownership notification does not 
attach to it a copy of such Form W-9 (or substitute form that is 
substantially similar to Form W-9 and completed under penalties of 
perjury), such person must state that it is either a controlled foreign 
corporation within the meaning of section 957(a), or a foreign 
corporation 50 percent or more of the gross income of which from all 
sources for the three-year period ending with the close of its taxable 
year preceding the date of the statement was effectively connected with 
the conduct of a trade or business in the United States. A withholding 
agent that receives a Form W-9 (or a substitute form that is 
substantially similar to Form W-9 and completed under penalties of 
perjury) must send a copy of such form to the Internal Revenue Service 
Center, Cincinnati, OH. 45999, within 30 days after receiving it and 
must attach a statement that the Form W-9 or substitute was provided 
pursuant to this A-15 with respect to a United States person that has 
owned a foreign-targeted registered obligation on one or more interest 
payment dates.
    (D) If either a Form W-9 (or a substitute form that is substantially 
similar to a Form W-9 and completed under penalties of perjury) or the 
statement described in subdivision (C) of this A-15 is not attached to 
the United States beneficial ownership notification provided pursuant to 
subdivision (i)(B) of this A-15, the withholding agent is required to 
withhold tax under section 871 or 881 on a payment of interest made 
after the withholding agent has received the notification unless such 
form or statement (or a statement that the beneficial owner of the 
obligation is no longer a United States person) is

[[Page 514]]

received before the interest payment date from the person who provided 
the notification (or transferee). If, during the period beginning on the 
next January 15 and ending on the next January 31, such person certifies 
as set out in subdivision (i) (A) and (B) of A-14 (except that such 
person does not certify under subdivision (i)(A)(2) that it has 
forwarded all United States beneficial ownership notifications to the 
withholding agent in accordance with the provisions of A-15), then the 
withholding agent is not required to withhold tax during the year 
following such certification (unless such person again provides a United 
States beneficial ownership notification without attaching a Form W-9 or 
substitute form that is substantially similar to Form W-9 and completed 
under penalties of perjury or the statement described in subdivision (C) 
of this A-15).
    (E) Within the period beginning 10 days before the end of the 
calendar quarter and ending on the last day of each calendar quarter, 
any clearing organization (including a clearing organization that is a 
withholding agent) relying on annual certificates or statements from its 
member organizations, as set forth in A-14 of this section, must send 
each member organization having submitted such certificate or statement 
a reminder that the member organization must give the clearing 
organization a United States beneficial ownership notification in the 
circumstances described in subdivision (i)(B) of this A-15.
    (F) The certificate described in subdivision (i) of A-14 must be 
retained in the records of the withholding agent for four years from the 
end of the calendar year in which it was received. The statement 
described in subdivision (i) of A-14 that is received by a clearing 
organization from a member organization must be retained in the records 
of the clearing organization for four years from the end of the calendar 
year in which it was received. The withholding agent who receives the 
certificate described in subdivision (i) of A-14 is not required to file 
Form 1042S to report payments of interest that are made with respect to 
foreign-targeted registered obligations held by the person providing the 
certificate and are made within the period beginning with the 
certificate date and ending on the last date for filing the next 
certificate.
    (ii)(A) The documentary evidence (or Form W-8 or substantially 
similar form completed under penalties of perjury) described in 
subdivision (ii) of A-14 must be provided to the withholding agent 
within the period beginning 90 days prior to and ending on the first 
interest payment date on which the withholding agent pays interest to 
the beneficial owner. The withholding agent may, in its discretion, 
withhold the tax under section 1441(a) or 1442(a) if the documentary 
evidence (or Form W-8 or substantially similar form completed under 
penalties of perjury) is not received by the date 30 days prior to the 
interest payment. The beneficial owner must confirm to the withholding 
agent the continuing validity of the documentary evidence within the 
period beginning 90 days prior to the first day of the third calendar 
year following the provision of such evidence and during the same period 
every three years thereafter while the owner still owns the obligation. 
The withholding agent who receives the documentary evidence described in 
subdivision (ii) of A-14 is not required to file Form 1042S for payments 
of interest that are made with respect to foreign-targeted registered 
obligations held by the person who provides the documentary evidence and 
are made within the period beginning with the date on which the 
documentary evidence is provided and ending on the last date for 
confirming the validity of the documentary evidence. Where a Form W-8 
(or substantially similar form completed under penalties of perjury) has 
been provided, it must be prepared, renewed, and retained in accordance 
with the procedures prescribed in Sec. 1.6049-5(b)(2)(iv) and must be 
attached to the Form 1042S required to be filed with respect to the 
payment.
    (B) If, on any interest payment date after the obligation was 
acquired by the person providing the documentary evidence (or Form W-8 
or substantially similar form completed under penalties of perjury) 
described in subdivision (ii) of A-14, the beneficial owner of the 
obligation is a United States person, then the beneficial owner must so 
inform the withholding agent within 30 days

[[Page 515]]

after such interest payment date and must provide a Form W-9 (or 
substitute form that is substantially similar completed under penalties 
of perjury) to the withholding agent. However, the beneficial owner is 
not required to provide another Form W-9 (or substitute form that is 
substantially similar and completed under penalties of perjury) if such 
person has already provided it to the withholding agent within the same 
calendar year.
    (iii) In accordance with the provisions of section 871(h)(4), the 
Secretary may make a determination in appropriate cases that a 
certificate or statement by any person, or class of persons, does not 
satisfy the requirements of that section. Should that determination be 
made, all payments of interest that otherwise qualify as portfolio 
interest to that person would become subject to the 30 percent 
withholding tax.
    (iv) Notwithstanding the foregoing requirements of A-14 and A-15 of 
this section,
    (A) Any certificate that is required to be filed with the 
withholding agent during the period beginning on January 15 and ending 
on January 31, 1986 is not required to state that the beneficial owner 
of an obligation, prior to the date of the certificate, either was not a 
United States person or was a United States person if the obligation was 
acquired by the person providing the certificate on or before September 
19, 1985; and
    (B) All of the requirements of A-14 and A-15 of Sec. 35a.9999-5, as 
in effect prior to the effective date of these amendments, shall remain 
effective with respect to each interest payment prior to the filing of 
the certificate described in subdivision (A), except that (1) the 
provisions of A-14 relating to which persons are required to receive 
certificates or statements and (2) subdivisions (ii) of A-14 and (ii) of 
A-15 shall become effective with respect to each interest payment after 
September 19, 1985.
    Q-16. Is information reporting under section 6041 or 6049 or backup 
withholding required with respect to portfolio interest paid on a 
foreign-targeted registered obligation in the circumstances described in 
A-12?
    A-16. No. Absent actual knowledge that the beneficial owner is a 
United States person, neither information reporting nor backup 
withholding is required in such circumstances if the certificate 
described in A-14 is provided to the payor in accordance with the 
provisions of A-15. Notwithstanding the foregoing, the collection 
outside the United States of portfolio interest on a registered 
obligation by a person acting as a custodian, nominee or other agent of 
the payee with respect to the obligation is subject to information 
reporting under section 6049 if that person is otherwise required to 
report amounts paid to, or collected on behalf of, the payee. For 
example, a foreign branch of a U.S. bank holding the obligation on 
behalf of a customer is required to report or backup withhold with 
respect to portfolio interest collected for the customer unless the 
customer is an exempt recipient described in Sec. 1.6049-4(c)(1)(ii) or 
unless the branch has documentary evidence in its files that the 
customer is not a citizen or resident of the United States.
    Q-17. Do the information reporting provisions of section 6045 apply 
with respect to the retirement or redemption of a registered obligation 
that has been targeted to foreign markets in accordance with A-13?
    A-17. The general rules of section 6045 apply. For instance, a 
financial institution acting as a custodian, nominee or other agent for 
a customer with respect to a foreign-targeted registered obligation that 
presents such obligation to the issuer or its agent for redemption or 
retirement, or that otherwise acts as a broker with respect to the 
obligation, is subject to information reporting under section 6045 if 
that person is otherwise required to report transactions effected on 
behalf of the customer. For example, a foreign office of a United States 
broker presenting an obligation to an agent of the issuer outside the 
United States for retirement or redemption on behalf of a customer who 
is an individual is required to report or backup withhold unless the 
broker has documentary evidence in its files that the customer is a 
foreign person.
    (c) Convertibility of obligations.

[[Page 516]]

    Q-18. May a bearer obligation be converted into a registered 
obligation that is subject to the certification requirements of A-9 or 
A-14 with respect to any interest payment?
    A-18. A bearer obligation can be converted into a registered 
obligation that is subject to the certification requirements of A-9 or, 
if the requirements of A-12 are met with respect to an interest payment 
and the obligation has been targeted to foreign markets under A-13, to 
the certification requirements of A-14. That a certificate under A-9 was 
required to be provided with respect to a previous interest payment on 
the obligation is irrelevant to whether such a certificate (rather than 
a certificate under A-14) must be provided with respect to the present 
interest payment. Unless the certification requirements of A-14 apply, 
the general information reporting and backup withholding requirements of 
sections 6045, 6049, and 3406 apply to a registered obligation. An 
obligation issued after July 18, 1984, and on or before September 21, 
1984, that would otherwise be in registered form but for the fact that 
it is convertible into bearer form, shall be considered to be in bearer 
form for purposes of A-1 if it satisfies the applicable requirements of 
the relevant temporary or proposed regulations under section 
163(f)(2)(B), as described in Sec. 1.163-5(c)(2)(vi). An obligation 
issued after September 21, 1984, that would otherwise be in registered 
form but for the fact that it is convertible into bearer form shall be 
considered to be in bearer form. See A-1 of Sec. 35a.9999-5 (a) 
concerning the conditions that must be satisfied for interest with 
respect to a bearer obligation to qualify as portfolio interest.
    Q-19. Under what circumstances is a certificate described in A-9 
required with respect to a registered obligation that is considered to 
be targeted to foreign markets under A-12?
    A-19. The certificate described in A-9 is required with respect to 
interest paid on a registered obligation that has been targeted to 
foreign markets under A-13 only if the requirements of A-12 are not 
satisfied. Provided that the requirements of A-12 are met with respect 
to an obligation at the time of an interest payment, that a certificate 
under A-9 was required to be provided with respect to a previous 
interest payment on the obligation is irrelevant to whether such a 
certificate must be provided with respect to the present interest 
payment. Also the general information reporting and backup withholding 
provisions of section 6045, 6049, and 3406 apply unless the 
certification requirements of A-14 apply.
    (d) Form 1042S requirements.
    Q-20. Is the owner of an obligation the interest on which qualifies 
as portfolio interest (within the meaning of section 871(h)(2) or 
section 881(c)(2)) required to file an ownership certificate described 
in Sec. 1.1461-1(b) (Form 1001) with respect to the obligation or is the 
withholding agent required to file an information return on Form 1042S?
    A-20. (i) The owner of an obligation the interest on which qualifies 
as portfolio interest is not required to file the certificate described 
in Sec. 1.1461-1(b) (Form 1001). Pursuant to A-8, the statement 
described in A-9 (or described in A-14, in the circumstances described 
in A-12) is required to be provided to the withholding agent with 
respect to portfolio interest on a registered obligation.
    (ii) If a statement is required pursuant to A-9 with respect to 
portfolio interest on a registered obligation, an information return on 
Form 1042S, accompanied by the statement (which may be a Form W-8) 
described in A-9, is required to be filed with the Internal Revenue 
Service for the calendar year in which the payment is made. See A-9 of 
this section. However, if a statement is required pursuant to A-14 with 
respect to portfolio interest on a registered obligation, an information 
return on Form 1042S is not required unless a Form W-8 (or substantially 
similar form completed under penalties of perjury) is provided. See A-
15(ii)(A) of this section. With respect to a payment of portfolio 
interest on a bearer obligation, an information return on Form 1042S is 
not required to be filed.
    (e) Application of repeal of 30 percent withholding to pass-through 
certificates.
    Q-21. Will interest paid to a holder of a pass-through certificate 
as described in Sec. 1.163-5T(d)(1) qualify as portfolio interest for 
purposes of the exemption

[[Page 517]]

from 30 percent withholding under section 871(h)(2) or section 
881(c)(2)?
    A-21. (i) Interest paid to a holder of a pass-through certificate 
will qualify as portfolio interest under section 871(h)(2) or section 
881(c)(2) for purposes of the exemption from 30 percent withholding if 
the interest satisfies the conditions described in A-1 or A-8 of this 
section. For purposes of A-1 or A-8 of this section and sections 871(h) 
and 881(c), interest is considered to be paid on or with respect to the 
pass-through certificate and not on or with respect to any obligations 
held by the fund or trust to which the pass-through certificate relates. 
The rule of this A-21 applies only to payments made to the holder of the 
pass-through certificate from the trustee of the pass-thorough trust and 
does not apply to payments made to the trustee of the pass-through 
trust. Thus, except as set forth in the last sentence of this answer, 
interest paid to the holder of a pass-through certificate is portfolio 
interest if the pass-through certificate is described in A-1 or A-8 of 
this section, without regard to whether any obligation held by the fund 
or trust to which the pass-through certificate relates is described in 
A-1 or A-8 of this section. For example, a mortgage pass-through 
certificate in bearer form must meet the requirements set forth in A-1 
of this section, but the obligations held by the fund or trust to which 
the mortgage pass-through certificate relates need not meet the 
requirements set forth in A-1 and A-8 of this section. However, for 
purposes of A-1 and A-8 of this section and section 127 of the Tax 
Reform Act of 1984, a pass-through certificate will be considered as 
issued after July 18, 1984 only to the extent that the obligations held 
by the fund or trust to which the pass-through certificate relates are 
issued after July 18, 1984.
    (ii) Interest paid to a holder of a regular or residual interest in 
a REMIC will qualify as portfolio interest under section 871(h)(2) or 
section 881(c)(2) for purposes of the exemption from 30 percent 
withholding if the interest paid to the holder satisfies the conditions 
described in A-1 or A-8 of this section. For purposes of A-1 or A-8 of 
this section and sections 871(h) and 881(c), interest paid to the holder 
of a regular interest in a REMIC is considered to be paid on or with 
respect to the regular interest in the REMIC and not on or with respect 
to any mortgage obligations held by the REMIC. The foregoing rule, 
however, applies only to payments made to the holder of the regular 
interest from the REMIC and does not apply to payments made to the 
REMIC. For purposes of A-1 or A-8 of this section and sections 871(h) 
and 881(c), interest paid to the holder of a residual interest in a 
REMIC is considered to be paid on or with respect to the obligations 
held by the REMIC, and not on or with respect to the residual interest. 
For purposes of A-1 and A-8 of this section and section 127 of the Tax 
Reform Act of 1984, a residual interest in a REMIC will be considered as 
issued after July 18, 1984, only to the extent that the obligations held 
by the REMIC are issued after July 18, 1984, but a regular interest in a 
REMIC will be considered as issued after July 18, 1984, if the regular 
interest was issued after July 18, 1984, without regard to the date on 
which the mortgage obligations held by the REMIC were issued.
    Q-22. In the case of a mortgage pass-through certificate, under what 
circumstances will the mortgage obligations held by the fund or trust to 
which the mortgage pass-through certificate relates be considered to 
have been issued after July 18, 1984?
    A-22. In general, a mortgage pass-through certificate will be 
considered to have been issued after July 18, 1984, if all of the 
mortgages held by the fund or trust were issued after July 18, 1984. If 
some of the mortgages held by the fund or trust were issued before July 
19, 1984, then the portion of any interest payment which represents 
interest on those mortgages shall not be considered to be portfolio 
interest. The preceding sentence shall not apply, however, if all of the 
following conditions are satisfied:
    (i) The mortgage pass-through certificate is issued after December 
31, 1986;
    (ii) Payment of the mortgage pass-through certificate is guaranteed 
by, and a guarantee commitment has been

[[Page 518]]

issued by, an entity that is independent from the issuer of the 
underlying obligation;
    (iii) The guarantee commitment with respect to the mortgage pass-
through certificate cannot have been issued more than 14 months prior to 
the date on which the mortgage pass-through certificate is issued.
    (iv) The fund or trust to which the mortgage pass-through 
certificate relates cannot contain mortgage obligations on which the 
first scheduled monthly payment of principal and interest was made more 
than twelve months before the date on which the guarantee commitment was 
made.

[T.D. 7967, 49 FR 33240, Aug. 22, 1984; 49 FR 36645, Sept. 19, 1984, as 
amended by T.D. 8046, 50 FR 33526, Aug. 20, 1985; 51 FR 11447, Apr. 3, 
1986; T.D. 8111, 51 FR 45464, Dec. 19, 1986; 53 FR 17928, May 19, 1988; 
T.D. 8300, 55 FR 19627, May 10, 1990]

    Effective Date Note:  By T.D. 8734, 62 FR 53494, Oct. 14, 1997, 
Sec. 35a.9999-5 was removed, effective Jan. 1, 1999. At 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed until Jan. 1, 2000. By 
T.D. 8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed 
until Jan. 1, 2001.



PART 36--CONTRACT COVERAGE OF EMPLOYEES OF FOREIGN SUBSIDIARIES--Table of Contents




Sec.
36.3121  (l)-0  Introduction.
36.3121  (l)(1)-1  Agreements entered into by domestic corporations with 
          respect to foreign subsidiaries.
36.3121  (l)(1)-2  Amendment of agreement.
36.3121  (l)(1)-3  Effect of agreement.
36.3121  (l)(2)-1  Effective period of agreement.
36.3121  (l)(3)-1  Termination of agreement by domestic corporation or 
          by reason of change in stock ownership.
36.3121  (l)(4)-1  Termination of agreement by Commissioner.
36.3121  (l)(5)-1  Effect of termination.
36.3121  (l)(7)-1  Overpayments and underpayments.
36.3121  (l)(8)-1  Definition of foreign subsidiary.
36.3121  (l)(9)-1  Domestic corporation as separate entity.
36.3121  (l)(10)-1  Requirements in respect of liability under 
          agreement.
36.3121  (l)(10)-2  Identification.
36.3121  (l)(10)-3  Returns.
36.3121  (l)(10)-4  Payment of amounts equivalent to tax.

    Authority: Secs. 3121, 7805, 68A Stat. 417, as amended, 917; 26 
U.S.C. 3121, 7805.

    Source: T.D. 6145, 20 FR 6577, Sept. 8, 1955; 25 FR 14021, Dec. 31, 
1960, unless otherwise noted.



Sec. 36.3121(l)-0  Introduction.

    (a) The regulations in this part deal with the circumstances under 
which a domestic corporation may enter into an agreement with the 
Internal Revenue Service for the purpose of extending the insurance 
system established by title II of the Social Security Act to certain 
services performed outside the United States by citizens of the United 
States as employees of a foreign subsidiary of the domestic corporation, 
and with the obligations of a domestic corporation which enters into 
such an agreement. The provisions of the Internal Revenue Code of 1954, 
as amended, to which the regulations in this part pertain are contained 
in section 3121(1). The liabilities assumed under an agreement entered 
into pursuant to such section are based on the remuneration for services 
covered by the agreement. Such agreement may not be effective prior to 
January 1, 1955.
    (b) Although the obligations incurred under an agreement entered 
into pursuant to section 3121(1) of the Internal Revenue Code of 1954, 
as amended, must be distinguished from the obligations imposed on 
employers with respect to the taxes under the Federal Insurance 
Contributions Act, the two are similar in many respects. Accordingly, 
the regulations in this part are prescribed as a supplement to the 
regulations (26 CFR (1954), Part 31, Subpart B) relating to the employee 
tax and the employer tax imposed by the Federal Insurance Contributions 
Act. The terms used in the regulations in this part have the same 
meaning, unless otherwise provided, as when used in the regulations 
relating to the taxes imposed by such act.
    (c) The regulations in this part constitute Part 36 of Title 26 of 
the Code of Federal Regulations. As used in the regulations in this 
part, the word ``Code'' means the Internal Revenue Code of 1954, as 
amended, and the term ``Federal Insurance Contributions Act''

[[Page 519]]

means chapter 21 of such Code. All references to sections of law are 
references to the Code unless otherwise indicated. The number of each 
section of the regulations begins with 36 followed by a decimal point 
(36.). Numbers which do not begin with 36 followed by a decimal point 
are numbers of sections of law unless otherwise indicated. In 
identifying sections of regulations, the symbol ``Sec. '' is used.

[T.D. 6145, 25 FR 14021, Dec. 31, 1960, as amended by T.D. 7012, 34 FR 
7693, May 15, 1969; T.D. 7665, 45 FR 6090, Jan. 25, 1980]



Sec. 36.3121(l)(1)-1  Agreements entered into by domestic corporations with respect to foreign subsidiaries.

    (a) In general. (1) Any domestic corporation having one or more 
foreign subsidiaries may request the Internal Revenue Service to enter 
into an agreement for the purpose of extending the Federal old-age, 
survivors, and disability insurance system established by title II of 
the Social Security Act to certain services performed outside the United 
States by all citizens of the United States who are employees of any 
such foreign subsidiary. See Sec. 36.3121(l)(8)-1, relating to the 
definition of foreign subsidiary. Except as provided in 
Sec. 36.3121(l)(5)-1, relating to the effect of the termination of an 
agreement entered into pursuant to the provisions of section 3121(l), 
the Internal Revenue Service shall, at the request of a domestic 
corporation enter into such agreement on Form 2032 in any case where a 
Form 2032 is executed, and submitted by the domestic corporation in the 
manner prescribed in this section. A domestic corporation may not have 
in effect at the same moment of time more than one agreement on Form 
2032.
    (2) An agreement authorized in section 3121(l)(1) may not be made 
applicable to any services performed outside the United States which 
would not constitute employment, for purposes of the taxes imposed under 
the Federal Insurance Contributions Act, if the services were performed 
within the United States. Thus, such an agreement shall have no 
application with respect to any services performed outside the United 
States which, if performed within the United States, would be 
specifically excepted from employment under any of the numbered 
paragraphs of section 3121(b), or which, although not so excepted, would 
be deemed not to be employment by application of section 3121(c), 
relating to included and excluded services. Further, an agreement may 
not be made applicable with respect to any services performed outside 
the United States which constitute employment, as defined in section 
3121(b). Thus, an agreement may not be made applicable to services for 
any employer performed by any employee on or in connection with an 
American vessel or American aircraft when outside the United States, if 
(i) performed under a contract of service which is entered into within 
the United States or (ii) 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, because such services constitute employment as 
defined in section 3121(b). An agreement may not be made applicable to 
remuneration which would not constitute wages, as defined in section 
3121(a), even if the services to which such remuneration is attributable 
had constituted employment.
    (3) The terms ``corporation'', ``domestic'', and ``foreign'', as 
used in the regulations in this part, have the meaning assigned by 
paragraphs (3), (4), and (5), respectively, of section 7701(a). Section 
701(a) (3), (4), and (5) provides as follows:

    Sec. 7701. Definitions. (a) When used in this title [Internal 
Revenue Code of 1954], where not otherwise distinctly expressed or 
manifestly incompatible with the intent thereof--

                                * * * * *

    (3) Corporation. The term ``corporation'' includes associations, 
joint-stock companies, and insurance companies.
    (4) Domestic. The term ``domestic'' when applied to a corporation * 
* * means created or organized in the United States or under the law of 
the United States or of any State or Territory.
    (5) Foreign. The term ``foreign'' when applied to a corporation * * 
* means a corporation * * * which is not domestic.

    (b) Form and contents of agreement. Form 2032 is the form prescribed 
for the agreement authorized in section

[[Page 520]]

3121(l)(1). The agreement shall include provisions substantially as 
follows:
    (1) That the agreement shall apply to all services performed outside 
the United States by all citizens of the United States who are in the 
employ of the foreign subsidiary or subsidiaries to which the agreement 
is made applicable, but only to the extent that the remuneration paid 
each employee for such services would constitute wages if paid by one 
employer for services performed in the United States;
    (2) That the agreement shall not apply to any services which 
constitute employment within the meaning of section 3121;
    (3) That the agreement shall become effective on the first day of 
the calendar quarter in which the Form 2032 is signed by the district 
director or director of the service center or on the first day of the 
next succeeding calendar quarter, whichever is specified in the 
agreement;
    (4) That the domestic corporation will pay, as required by the 
regulations in this part, amounts equivalent to the sum of the taxes 
which would be imposed by sections 3101 and 3111, respectively, if the 
remuneration for the services covered by the agreement constituted 
wages;
    (5) That the domestic corporation will pay, in accordance with 
written notification and demand therefor to the domestic corporation, 
amounts equivalent to the interest, additions to the taxes, additional 
amounts, and penalties which would be applicable if the remuneration for 
services covered by the agreement constituted wages; and
    (6) That the domestic corporation will comply with all provisions of 
the regulations in this part.
    (c) Execution and filing of Form 2032. The request of any domestic 
corporation that the Internal Revenue Service enter into an agreement 
with the corporation on Form 2032 shall be signified by the corporation 
by executing and filing Form 2032 in triplicate. Such form shall be 
executed and filed in accordance with the regulations in this part and 
the instructions relating to the form. Each copy of the form shall be 
signed and dated by the officer of the corporation authorized to enter 
into the agreement, shall show the title of such officer, and shall have 
the corporate seal affixed thereto. A certified copy of the minutes of 
the meeting of the board of directors of the domestic corporation, or 
other evidence, showing the authority of such officer so to act shall 
accompany the form. Form 2032 executed and filed as provided in this 
paragraph shall be signed and dated by the district director or director 
of the service center and, upon such signing, the Form 2032 so executed 
and filed will constitute the agreement authorized in section 
3121(l)(1). The Internal Revenue Service will return one copy of the 
agreement to the domestic corporation, will transmit one copy of the 
Department of Health, Education, and Welfare, and will retain one copy 
(together with all related papers).

[T.D. 6145, 20 FR 6577, Sept. 8, 1955, as amended by T.D. 7012, 34 FR 
7693, May 15, 1969]



Sec. 36.3121(l)(1)-2  Amendment of agreement.

    (a) An agreement entered into by a domestic corporation as provided 
in Sec. 36.3121(l)(1)-1 may be amended so as to be made applicable, in 
the same manner and under the same conditions, with respect to any one 
or more of the foreign subsidiaries of the domestic corporation not 
previously named in the agreement. See Sec. 36.3121(l)(2)-1(b), relating 
to the effective period of an amendment of an agreement.
    (b) Form 2032 Supplement is the form prescribed for use in amending 
an agreement entered into by a domestic corporation as provided in 
Sec. 36.3121(l)(1)-1.
    (c) A domestic corporation shall signify its desire to amend an 
agreement entered into by the corporation as provided in 
Sec. 36.3121(l)(1)-1 by executing and filing Form 2032 Supplement in 
triplicate.
    (d) Form 2032 Supplement shall be executed and filed in the manner 
and in conformity with the requirements prescribed in the instructions 
relating to such form and in Sec. 36.3121(l)(1)-1(c) in respect of an 
agreement on Form 2032. Form 2032 Supplement executed and filed as 
provided in this paragraph shall be signed and dated by the district 
director or director of the service center, and, upon such signing, the

[[Page 521]]

Form 2032 Supplement so executed and filed will constitute an amendment 
of the agreement entered into on Form 2032. The Internal Revenue Service 
will return one copy of the amendment to the domestic corporation, will 
transmit one copy to the Department of Health, Education, and Welfare, 
and will retain one copy (together with all related papers).

[T.D. 6145, 25 FR 14021, Dec. 31, 1960, as amended by T.D. 7012, 34 FR 
7694, May 15, 1969]



Sec. 36.3121(l)(1)-3  Effect of agreement.

    (a) Liability for amounts equivalent to tax--(1) In general. A 
domestic corporation which has entered into an agreement (as provided in 
Sec. 36.3121(l)(1)-1, or any amendment thereof (as provided in 
Sec. 36.3121(l)(1)-2, incurs liability under the agreement in respect of 
certain remuneration paid by each foreign subsidiary named in the 
agreement, or any amendment thereof. Liability is incurred in respect of 
the remuneration paid to all those employees of the foreign subsidiaries 
who are citizens of the United States and who perform services outside 
the United States (other than services which constitute employment) for 
the foreign subsidiaries. However, liability is incurred only with 
respect to that portion of such remuneration paid by the foreign 
subsidiary which is attributable to services performed during the period 
for which the agreement is in effect with respect to such subsidiary, 
and then only to the extent that the remuneration would constitute wages 
if the services to which the remuneration is attributable were performed 
in the United States. Liability with respect to such remuneration is 
incurred in an amount equivalent to the sum of the employee and employer 
taxes which would be imposed by sections 3101 and 3111, respectively, if 
such remuneration constituted wages. If an individual performs services 
for more than one of the foreign subsidiaries named in an agreement, 
including any amendment thereof, such services are regarded as being 
performed in the employ of a single employer for purposes of determining 
the amount of the remuneration for such services which would constitute 
wages if the services were performed in the United States. See 
Sec. 36.3121(l)(9)-1, relating to the treatment of a domestic 
corporation as a separate entity in its capacity as a party to an 
agreement.
    (2) Examples. The application of paragraph (a)(1) of this section 
may be illustrated by the following examples:

    Example 1. P. a domestic corporation, has entered into an agreement 
as provided in Sec. 36.3121(l)(1)-1, effective with respect to services 
performed on and after January 1, 1955. Three foreign subsidiaries, S-1, 
S-2, and S-3 are named in the agreement. A, a citizen of the United 
States, is employed during 1955 by S-1, S-2, and S-3, for the 
performance outside the United States of services covered by the 
agreement. In 1955 A is paid remuneration of $2,500 for such services by 
each of the foreign subsidiaries. The circumstances are such that the 
entire $7,500 would constitute wages if the services has been performed 
in the United States. However, only $4,200 of such remuneration would 
constitute wages if the services had been performed in the United States 
for a single employer, and it is with respect to this amount only that P 
incurs liability under its agreement.

    Example 2. On August 1, 1955, P, the domestic corporation in the 
preceding example, amends its agreement to include therein its foreign 
subsidiary S-4. The amendment is in effect with respect to S-4 for the 
period beginning with October 1, 1955. B, a citizen of the United 
States, is employed by S-4 throughout 1955 for the performance of 
services outside the United States. B is paid remuneration of $500 in 
each month of 1955 for these services. The circumstances are such that 
the first $4,200 of such remuneration would constitute wages if the 
services had been performed in the United States, and, except for the 
$4,200 limitation, the remainder of such remuneration would constitute 
wages if the services had been so performed. P incurs no liability with 
respect to remuneration paid B for services performed for S-4 prior to 
October 1, 1955. However, P incurs liability under its agreement with 
respect to the $1,500 paid B in October, November, and December 1955, 
for services performed in these months. Since the remuneration paid to B 
for services performed during the first nine months of 1955 is not 
covered by the agreement, such remuneration is not taken into account in 
computing the $4,200 limitation or the liability under the agreement.

    Example 3. Assume the same facts as in example 2 except that B's 
services for S-4 during December 1955 are of a character which if 
performed within the United States would be excepted from employment. 
Accordingly, P incurs no liability under the agreement with respect to 
the $500.00 paid in December 1955 for such services.


[[Page 522]]


    (3) Determination of liability. The amount of the liability referred 
to in paragraph (a)(1) of this section incurred by a domestic 
corporation for any period shall be determined in the same manner as 
liability for the employee tax and for the employer tax imposed by the 
Federal Insurance Contributions Act is determined, pursuant to 
regulations relating to the taxes under such act as in effect for the 
same period, with respect to wages paid by an employer to an employee.
    (b) Liability for amounts equivalent to interest or penalties. A 
domestic corporation which has entered into an agreement as provided in 
Sec. 36.3121(l)(1)-1 also incurs liability under the agreement for 
amounts equivalent to the amount of interest, additions to the taxes, 
additional amounts, and penalties which would be applicable if the 
remuneration for services covered by the agreement constituted wages.
    (c) Deductions from employees' remuneration. There is no obligation 
to deduct, or cause to be deducted, from the remuneration of any 
employee of a foreign subsidiary any part of the amount due from a 
domestic corporation under its agreement. Whether such deduction shall 
be made is a matter for settlement between the employee and the domestic 
corporation or such other person as may be concerned.
    (d) Cross reference. For other obligations of a domestic corporation 
under an agreement, see Sec. 36.3121(l)(1)-1.

[T.D. 6145, 20 FR 6577, Sept. 8, 1955, as amended by T.D. 6390, 24 FR 
4831, June 13, 1959]



Sec. 36.3121(l)(2)-1  Effective period of agreement.

    (a) In general. An agreement entered into as provided in 
Sec. 36.3121(l) (1)-1 shall be in effect for the period beginning with 
the first day of the calendar quarter in which the agreement is signed 
by the district director or director of the service center, or the first 
day of the calendar quarter following the calendar quarter in which the 
agreement is signed by the district director or director of the service 
center, whichever is specified in the agreement. In no case, however, 
shall the agreement be effective for any calendar quarter which begins 
prior to January 1, 1955.
    (b) Amendment of agreement. If an amendment on Form 2032 Supplement 
(filed by a domestic corporation to include in its agreement services 
performed for a foreign subsidiary not previously named therein) is 
signed by the district director or director of the service center, 
within the quarter for which the agreement is first effective or within 
the first calendar month following such quarter, the agreement shall be 
effective with respect to the subsidiary named in the amendment as of 
the date such agreement first became effective. However, if the 
amendment is signed by the district director or director of the service 
center after the last day of the fourth month for which the agreement is 
in effect, such agreement shall be in effect with respect to the 
subsidiary named in the amendment for the period beginning with the 
first day of the calendar quarter following the calendar quarter in 
which the amendment is signed by the district director or director of 
the service center.

[T.D. 7012, 34 FR 7694, May 15, 1969]



Sec. 36.3121(l)(3)-1  Termination of agreement by domestic corporation or by reason of change in stock ownership.

    (a) Termination by domestic corporation. (1) A domestic corporation 
which has entered into an agreement under section 3121(l)(1) with 
respect to one or more of its foreign subsidiaries may terminate such 
agreement in part or in its entirety by giving (for calendar quarters 
beginning before 1969, to the district director for the internal revenue 
district in which is located the principal place of business in the 
United States of the domestic corporation; and for calendar quarters 
beginning after 1968, except as provided in paragraph (b) of 
Sec. 301.6091-1 (relating to hand-carried documents) to the director of 
the service center serving such internal revenue district 2 years' 
advance notice in writing of its desire so to terminate the agreement at 
the end of a specified calendar quarter: Provided, That, at the time of 
the receipt of such notice by such internal revenue officer, the 
agreement has been in effect with respect to the subsidiary or 
subsidiaries covered by the notice for

[[Page 523]]

at least 8 years. The notice of termination shall be signed and dated 
and shall show (i) the title of the officer authorized to sign the 
notice, (ii) the name, address, and identification number of the 
domestic corporation, (iii) the internal revenue officer with whom the 
agreement was entered into, (iv) the name and address of each foreign 
subsidiary with respect to which the agreement is to be terminated, (v) 
the date on which the agreement became effective with respect to each 
such foreign subsidiary, and (vi) the date on which the agreement is to 
be terminated with respect to each such foreign subsidiary. The notice 
shall be submitted in duplicate and shall be accompanied by a certified 
copy of the minutes of the meeting of the board of directors of the 
domestic corporation, or other evidence, showing authorization for the 
notice of termination. No particular form is prescribed for the notice 
of termination. The Internal Revenue Service will transmit one copy of 
the notice of termination to the Department of Health, Education, and 
Welfare.
    (2) A notice of termination given by a domestic corporation in 
respect of any one or more of its foreign subsidiaries may be revoked by 
the corporation with respect to any such subsidiary or subsidiaries by 
giving, prior to the close of the calendar quarter specified in the 
notice of termination, written notice of revocation. The notice of 
revocation shall be filed with the internal revenue officer with whom 
the notice of termination was filed. Such notice of revocation shall be 
signed and dated and shall show (i) the title of the officer authorized 
to sign the notice of revocation, (ii) the name, address, and 
identification number of the domestic corporation, (iii) the name and 
address of each foreign subsidiary with respect to which the notice of 
termination is revoked, and (iv) the date of the notice of termination 
to be revoked. The notice shall be submitted in duplicate and shall be 
accompanied by a certified copy of the minutes of the meeting of the 
board of directors of the domestic corporation, or other evidence, 
showing authorization for the notice of revocation. No particular form 
is prescribed for the notice of revocation. The Internal Revenue Service 
will transmit one copy of the notice of revocation to the Department of 
Health, Education, and Welfare.
    (b) Termination by reason of change in stock ownership. (1) The 
period for which an agreement entered into by a domestic corporation as 
provided in Sec. 36.3121(l)(1)-1 is in effect with respect to a foreign 
corporation is automatically terminated at the end of the calendar 
quarter in which the foreign corporation ceases, at any time in such 
quarter, to be a foreign subsidiary of the domestic corporation. See 
Sec. 36.3121(l)(8)-1, relating to definition of foreign subsidiary.
    (2) A domestic corporation which has entered into an agreement as 
provided in Sec. 36.3121(l)(1)-1 shall furnish (for calendar quarters 
beginning before 1969, to the district director for the internal revenue 
district in which is located its principal place of business in the 
United States; and for calendar quarters beginning after 1968, except as 
provided in paragraph (b) of Sec. 301.6091-1 (relating to hand-carried 
documents) to the director of the service center serving such internal 
revenue district) written notification in the event that a foreign 
corporation named in the agreement, including any amendment thereof, as 
a foreign subsidiary of the domestic corporation ceases to be its 
foreign subsidiary. The written notification shall be furnished in 
duplicate on or before the last day of the first month following the 
close of the calendar quarter in which the foreign corporation ceases, 
at any time in such quarter, to be a foreign subsidiary of the domestic 
corporation. Such notification shall be signed and dated by the 
president or other principal officer of the domestic corporation. The 
written notification shall show (i) the title of the officer signing the 
notice, (ii) the name, address, and identification number of the 
domestic corporation, (iii) the internal revenue officer with whom the 
agreement was entered into, (iv) the date on which the agreement was 
entered into, (v) the name and address of the foreign corporation with 
respect to which the notification is furnished, and (vi) the date on 
which the foreign corporation ceased to be a foreign subsidiary of the 
domestic corporation. No

[[Page 524]]

particular form is prescribed for the written notification. The Internal 
Revenue Service will transmit one copy of the written notification to 
the Department of Health, Education, and Welfare.

[T.D. 6145, 25 FR 14021, Dec. 31, 1960, as amended by T.D. 7012, 34 FR 
7694, May 15, 1969]



Sec. 36.3121(l)(4)-1  Termination of agreement by Commissioner.

    (a) Notice of termination. The period for which an agreement entered 
into with a domestic corporation as provided in Sec. 36.3121(l)(1)-1 is 
in effect may be terminated by the Commissioner, with the prior 
concurrence of the Secretary of Health, Education, and Welfare, upon a 
finding by the Commissioner that the domestic corporation has failed to 
comply substantially with the terms of the agreement. The Commissioner 
shall give the corporation not less than 60 days' advance notice in 
writing that the period for which the agreement is in effect will 
terminate at the end of the calendar quarter specified in the notice of 
termination.
    (b) Revocation of notice of termination. A notice of termination 
given to a domestic corporation by the Commissioner may be revoked by 
the Commissioner, with the prior concurrence of the Secretary of Health, 
Education and Welfare by giving written notice of revocation to the 
corporation prior to the close of the calendar quarter specified in the 
notice of termination.



Sec. 36.3121(l)(5)-1  Effect of termination.

    (a) Termination of entire agreement. (1) If the effective period of 
an agreement entered into by a domestic corporation as provided in 
Sec. 36.3121(l)(1)-1 is terminated by the domestic corporation, pursuant 
to Sec. 36.3121(l)(3)-1(a), with respect to all foreign subsidiaries 
named in the agreement, including any amendment thereof, an agreement 
may not again be entered into by the domestic corporation under the 
provisions of section 3121(l)(1).
    (2) If the effective period of an agreement entered into by a 
domestic corporation as provided in Sec. 36.3121(l)(1)-1 is terminated 
by the Commissioner, pursuant to Sec. 36.3121(l)(4)-1 (a), an agreement 
may not again be entered into by the domestic corporation under the 
provisions of section 3121(l)(1).
    (3) If the effective period of an agreement entered into by a 
domestic corporation as provided in Sec. 36.3121(l)(1)-1 is terminated 
automatically by reason of a change in stock ownership (see 
Sec. 36.3121(l)(3)-1(b)) with respect to all foreign corporations named 
in the agreement, including any amendment thereof, a new agreement may 
be entered into by the domestic corporation, as provided in 
Sec. 36.3121(l)(1)-1, with respect to any foreign corporation which is a 
foreign subsidiary of the domestic corporation.
    (b) Partial termination of agreement. (1) If the effective period of 
an agreement entered into by a domestic corporation as provided in 
Sec. 36.3121(l)(1)-1 is terminated by the domestic corporation, pursuant 
to Sec. 36.3121(l)(3)-1(a), with respect to one or more foreign 
subsidiaries named in the agreement, including any amendment thereof, 
the period for which the agreement is in effect will continue with 
respect to any other foreign subsidiary or subsidiaries named in the 
agreement (or amendment). However, the agreement may not thereafter be 
amended to include any foreign subsidiary with respect to which the 
effective period of the agreement has been terminated.
    (2) If the effective period of an agreement entered into by a 
domestic corporation as provided in Sec. 36.3121(l)(1)-1 is terminated 
automatically by reason of a change in stock ownership (see 
Sec. 36.3121(l)(3)-1(b)) with respect to a foreign corporation which has 
ceased to be a foreign subsidiary of the domestic corporation, but the 
period for which the agreement is in effect continues with respect to 
one or more other foreign subsidiaries, the agreement may not thereafter 
be amended to include such foreign corporation even though the foreign 
corporation may again become a foreign subsidiary of the domestic 
corporation.



Sec. 36.3121(l)(7)-1  Overpayments and underpayments.

    (a) Adjustments--(1) In general. Errors in the payment of amounts 
for which liability equivalent to the employee and employer taxes with 
respect to any payment of remuneration is incurred

[[Page 525]]

by a domestic corporation pursuant to its agreement are adjustable by 
the domestic corporation in certain cases without interest. However, not 
all corrections made under this section constitute adjustments within 
the meaning of the regulations in this part. The various situations in 
which such corrections constitute adjustments are set forth in 
paragraphs (a)(2) and (3) of this section. All corrections in respect of 
underpayments and all adjustments or credits in respect of overpayments 
made under this section must be reported on a return filed by the 
domestic corporation under the regulations in this part and not on a 
return filed with respect to the employee and employer taxes imposed by 
sections 3101 and 3111, respectively. Every return on which such a 
correction (by adjustment, credit, or otherwise) is reported pursuant to 
this section must have securely attached as a part thereof a statement 
explaining the error in respect of which the correction is made, 
designating the calendar quarter in which the error was ascertained, and 
setting forth such other information as would be required if the 
correction were in respect of an overpayment or underpayment of taxes 
under the Federal Insurance Contributions Act. An error is ascertained 
when the domestic corporation has sufficient knowledge of the error to 
be able to correct it. An underpayment may not be corrected under this 
section after receipt from the district director or director of the 
service center of written notification of the amount due and demand for 
payment thereof, but the amount shall be paid in accordance with such 
notification.
    (2) Underpayments. If a domestic corporation fails to report, on a 
return filed under the regulations in this part, all or any part of the 
amount for which liability equivalent to the employee and employer taxes 
is incurred under its agreement with respect to any payment of 
remuneration, the domestic corporation shall adjust the underpayment by 
reporting the additional amount due as an adjustment on a return or 
supplemental return filed on or before the last day on which the return 
for the return period in which the error is ascertained is required to 
be filed. The amount of each underpayment adjusted in accordance with 
this subparagraph shall be paid, without interest, at the time fixed for 
reporting the adjustment. If an adjustment is reported pursuant to this 
subparagraph but the amount thereof is not paid when due, interest 
thereafter accrues.
    (3) Overpayments. If a domestic corporation pays more than the 
amount for which liability equivalent to the employee and employer taxes 
is incurred under its agreement with respect to any payment of 
remuneration, the domestic corporation may correct the error, subject to 
the requirements and under the conditions stated in this paragraph, by 
deducting the amount of the overpayment from the amount of liability 
reported on a return filed by the domestic corporation, except that--
    (i) A correction may not be made in respect of any part of an 
overpayment which was collected from an individual by reason of the 
agreement unless the domestic corporation (a) has repaid the amount so 
collected to the individual, has secured the written receipt of the 
individual showing the date and amount of the repayment, and retains 
such receipt as a part of its records, or (b) has reimbursed the 
individual by reducing the amounts which otherwise should have been 
deducted from his remuneration by reason of the agreement; and
    (ii) A correction may not be made in one calendar year in respect of 
any part of an overpayment which was collected from an individual in a 
prior calendar year unless the domestic corporation has secured the 
written statement of the individual showing that he has not claimed and 
will not claim refund or credit of the amount so collected, and retains 
such receipt as a part of its records. See Sec. 31.6413(c)-1 of this 
chapter, relating to claims for special credit or refund.

The correction constitutes an adjustment under this subparagraph only if 
it is reported on the return for the period in which the error is 
ascertained or on the return for the next following period, and then 
only if the correction is reported within the statutory period of 
limitation upon refund or credit of overpayments of amounts due under

[[Page 526]]

the agreement. See paragraph (b)(2)(iii) of this section relating to 
such statutory period. A claim for credit or refund may be filed in 
accordance with the provisions of paragraph (b)(2) of this section for 
any overpayment of an amount due under the agreement which is not 
adjusted under this subparagraph.
    (b) Errors not adjustable--(1) Underpayments. If a domestic 
corporation fails to report all or any part of the amount for which 
liability equivalent to the employee and employer taxes is incurred 
under its agreement with respect to any payment of remuneration, and 
such underpayment is not reported as an adjustment within the time 
prescribed by paragraph (a)(2) of this section, the amount of such 
underpayment shall be reported on the domestic corporation's next 
return, or shall be reported immediately on a supplemental return for 
the return period in which such payment of remuneration was made. The 
reporting of an underpayment under this subparagraph does not constitute 
an adjustment without interest.
    (2) Overpayments. (i) If more than the correct amount due from a 
domestic corporation pursuant to its agreement (including the amount of 
any interest or addition) is paid and the amount of the overpayment is 
not adjusted under paragraph (a) (3) of this section, the domestic 
corporation may file a claim for refund or credit. Except as otherwise 
provided in this subparagraph, such claim shall be made in the same 
manner and subject to the same conditions as to allowance of the claim 
as would be the case if the claim were in respect of an overpayment of 
taxes under the Federal Insurance Contributions Act. Refund or credit of 
an amount erroneously paid by a domestic corporation under its agreement 
may be allowed only to the domestic corporation.
    (ii) Any claim filed under this subparagraph shall be plainly marked 
``Claim under section 3121(1).''
    (iii) No refund or credit of an overpayment of the amount due from a 
domestic corporation under its agreement will be allowed after the 
expiration of 2 years after the date of payment of such overpayment, 
except upon one or more of the grounds set forth in a claim filed prior 
to the expiration of such 2-year period.
    (c) Deductions from employees' remuneration. If a domestic 
corporation deducts, or causes to be deducted, from the remuneration of 
an individual for services covered by the agreement amounts which are 
more or less than the employee tax which would be deductible therefrom 
if such remuneration constituted wages, any repayment to the individual 
(except to the extent otherwise provided in this section), or further 
collection from the individual, in respect of such deduction is a matter 
for settlement between the individual and the domestic corporation or 
such other person as may be concerned.

[T.D. 6145, 25 FR 14021, Dec. 31, 1960, as amended by T.D. 7012, 34 FR 
7694, May 15, 1969]



Sec. 36.3121(l)(8)-1  Definition of foreign subsidiary.

    (a) Prior to August 1, 1956. (1) For the period January 1, 1955 to 
July 31, 1956, inclusive, a foreign corporation is a foreign subsidiary 
of a domestic corporation, within the meaning of the regulations in this 
part, if--
    (i) More than 50 percent of the voting stock of the foreign 
corporation is owned by the domestic corporation; or
    (ii) More than 50 percent of the voting stock of the foreign 
corporation is owned by a second foreign corporation and more than 50 
percent of the voting stock of the second foreign corporation is owned 
by the domestic corporation.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example 1. P, a domestic corporation, owns 51 percent of the voting 
stock of S-1, a foreign corporation. S-1 owns 51 percent of the voting 
stock of S-2, a foreign corporation. S-2 owns 51 percent of the voting 
stock of S-3, a foreign corporation. S-1 and S-2 are foreign 
subsidiaries of P for purposes of the regulations in this part. Since 
neither P nor S-1 owns more than 50 percent of the voting stock of S-3, 
S-3 is not a foreign subsidiary of P within the meaning of the 
regulations in this part.

    Example 2. Assume the same facts as those stated in example 1 except 
that 25 percent of the voting stock of S-2 is transferred by S-1 to P. P 
owns no other voting stock of S-2.

[[Page 527]]

Accordingly, after the transfer, P and S-1 together own more than 50 
percent of the voting stock of S-2, but neither P nor S-1 alone owns 
more than 50 percent of such stock. S-2 ceases to be a foreign 
subsidiary of P when such transfer is effected.

    (b) On or after August 1, 1956. (1) Beginning August 1, 1956, a 
foreign corporation is a foreign subsidiary of a domestic corporation, 
within the meaning of the regulations in this part, if--
    (i) Not less than 20 percent of the voting stock of the foreign 
corporation is owned by the domestic corporation; or
    (ii) More than 50 percent of the voting stock of the foreign 
corporation is owned by a second foreign corporation and not less than 
20 percent of the voting stock of the second foreign corporation is 
owned by the domestic corporation.
    (2) The application of subparagraph (1) of this paragraph may be 
illustrated by the following examples:

    Example 1. P, a domestic corporation owns 20 percent of the voting 
stock of S-1, a foreign corporation. S-1 is, therefore, a foreign 
subsidiary of P. S-1 owns 51 percent and P owns 15 percent of the voting 
stock of S-2, a foreign corporation. S-2 is also a foreign subsidiary of 
P, and this would be so even if P owned none of the voting stock of S-2. 
S-2 owns 51 percent, S-1 owns 39 percent, and P owns 10 percent of the 
voting stock of S-3, a foreign corporation. Since P owns less than 20 
percent of the voting stock of S-2 and less than 20 percent of the 
voting stock of S-3, and since S-1 owns not more than 50 percent of the 
voting stock of S-3, S-3 is not a foreign subsidiary of P within the 
meaning of the regulations in this part.

    Example 2. Assume the same facts as those stated in example 1 except 
that 4 percent of the voting stock of S-2 is transferred by S-1 to P. 
After, as well as before, the transfer of 66 percent of the voting stock 
of S-2 is owned by P and S-1 together. After the transfer, however, P 
owns less than 20 percent and S-1 owns not more than 50 percent of the 
voting stock of S-2. When such transfer is effected S-2 ceases to be a 
foreign subsidiary of P for purposes of the regulations in this part.

    (c) Transfer of stock ownership. The transfer of the voting stock of 
a foreign corporation which is a foreign subsidiary of a domestic 
corporation within the meaning of section 3121(l)(8) will not affect the 
status of the foreign corporation as such a foreign subsidiary if at all 
times either of the percentage tests stated in section 3121(l)(8), 
relating to ownership of the voting stock of such foreign corporation, 
is met.
    (d) Meaning of ``stock''. The term ``stock'', as used in the 
regulations in this part, has the meaning assigned by paragraph (7) of 
section 7701(a). Section 7701(a)(7) provides as follows:
    Sec. 7701. Definitions. (a) When used in this title [Internal 
Revenue Code of 1954], where not otherwise distinctly expressed or 
manifestly incompatible with the intent thereof--

                                * * * * *

    (7) Stock. The term ``stock'' includes shares in an association, 
joint-stock company, or insurance company.


[T.D. 6390, 24 FR 4831, June 13, 1959]



Sec. 36.3121(l)(9)-1  Domestic corporation as separate entity.

    A domestic corporation which enters into an agreement as provided in 
Sec. 36.3121(l)(1)-1 shall, for purposes of the regulations in this part 
and for purposes of section 6413(c)(2)(C), relating to special credits 
or refunds, be considered an employer in its capacity as a party to such 
agreement separate and apart from its identity as an employer incurring 
liability for the employee tax and employer tax on the wages of its own 
employees. Thus, if a citizen of the United States performs services in 
employment for the domestic corporation and at any time within the same 
calendar year performs services covered by the agreement as an employee 
of one or more foreign subsidiaries named therein, the limitation on 
wages provided in section 3121(a) (1) has application separately as to 
the wages for employment performed in the employ of the domestic 
corporation and as to the remuneration for services covered by the 
agreement performed in the employ of such foreign subsidiary or 
subsidiaries. All services covered by the agreement whether performed in 
the employ of one or more than one such foreign subsidiary are regarded 
for purposes of the wage limitation as having been performed in the 
employ of the domestic corporation in its separate capacity as a party 
to the agreement. Similarly, any remuneration for such services which, 
if the services were performed in the United States, would be

[[Page 528]]

excluded from wages unless a certain amount of such remuneration is paid 
by a single employer within a specified period (for example, 
remuneration for agricultural labor) is regarded, for purposes of 
determining whether the domestic corporation incurs liability under its 
agreement with respect to such remuneration, as having been paid by the 
domestic corporation in its separate capacity as a party to the 
agreement. All remuneration received by an employee for services covered 
by the agreement is deemed, for purposes of the special credit or refund 
provisions contained in section 6413(c), to have been received from the 
domestic corporation as an employer in its separate capacity as a party 
to the agreement.



Sec. 36.3121(l)(10)-1  Requirements in respect of liability under agreement.

    To the extent not inconsistent with, or otherwise provided in, the 
regulations in this part, the requirements and duties (relating to 
identification number, account numbers, wage information statements to 
employees, record keeping, etc.) imposed on an employer for any period 
with respect to the taxes imposed by the Federal Insurance Contributions 
Act are hereby made applicable to a domestic corporation with respect to 
its obligations and liabilities, for the same period, under an agreement 
entered into as provided in Sec. 36.3121(l)(1)-1.



Sec. 36.3121(l)(10)-2  Identification.

    (a) Domestic corporation. A domestic corporation which has secured, 
or is required to secure, an identification number as an employer having 
in its employ one or more individuals in employment for wages is not 
required to secure an identification number under the regulations in 
this part.
    (b) Employees. Every employee performing services covered by an 
agreement shall have the same duties in respect of an account number as 
would be the case if the employee were performing services in employment 
for the domestic corporation.



Sec. 36.3121(l)(10)-3  Returns.

    (a) The forms prescribed for use in making returns of the taxes 
imposed by the Federal Insurance Contributions Act (except any forms 
particularly prescribed for use by household employers or by employers 
filing returns in Puerto Rico) shall be used by a domestic corporation 
in making returns of its liability under an agreement entered into as 
provided in Sec. 36.3121(l)(1)-1. Returns of such liability shall be 
made separate and apart from any returns required of the domestic 
corporation in respect of the taxes imposed by the Federal Insurance 
Contributions Act. The domestic corporation shall plainly mark ``3121(l) 
Agreement'' at the top of each return, each detachable schedule thereof, 
and each paper or document constituting a part of the return, filed by 
the domestic corporation pursuant to the regulations in this part. 
Returns required under the regulations in this part shall be made by the 
domestic corporation as if all services covered by the agreement, 
whether performed in the employ of one or more than one foreign 
subsidiary, were performed in the employ of the domestic corporation as 
an employer in its separate capacity as a party to the agreement.
    (b) Each return required under the regulations in this part must be 
filed on or before the last day of the month following the period for 
which the return is made.

[T.D. 6145, 20 FR 6577, Sept. 8, 1955, as amended by T.D. 6390, 24 FR 
4832, June 13, 1959]



Sec. 36.3121(l)(10)-4  Payment of amounts equivalent to tax.

    A domestic corporation which has entered into an agreement as 
provided in Sec. 36.3121(l)(1)-1 is not required to make deposits with a 
Federal Reserve bank or authorized financial institution of any amount 
for which liability is incurred under its agreement.

[T.D. 6145, 20 FR 6577, Sept. 8, 1955; 25 FR 14021, Dec. 31, 1960, as 
amended by T.D. 7953, 49 FR 19646, May 9, 1984]

                         PARTS 37-39 [RESERVED]


[[Page 529]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  Table of OMB control numbers
  List of CFR Sections Affected



[[Page 531]]



                    Table of CFR Titles and Chapters




                      (Revised as of April 1, 2000)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1-49)
        II  Office of the Federal Register (Parts 50-299)
        IV  Miscellaneous Agencies (Parts 400-500)

                          Title 2 [Reserved]

                        Title 3--The President

         I  Executive Office of the President (Parts 100-199)

                           Title 4--Accounts

         I  General Accounting Office (Parts 1-99)
        II  Federal Claims Collection Standards (General 
                Accounting Office--Department of Justice) (Parts 
                100-299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1-1199)
        II  Merit Systems Protection Board (Parts 1200-1299)
       III  Office of Management and Budget (Parts 1300-1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500-1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600-1699)
       VII  Advisory Commission on Intergovernmental Relations 
                (Parts 1700-1799)
      VIII  Office of Special Counsel (Parts 1800-1899)
        IX  Appalachian Regional Commission (Parts 1900-1999)
        XI  Armed Forces Retirement Home (Part 2100)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400-2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500-2599)
       XVI  Office of Government Ethics (Parts 2600-2699)
       XXI  Department of the Treasury (Parts 3100-3199)
      XXII  Federal Deposit Insurance Corporation (Part 3201)

[[Page 532]]

     XXIII  Department of Energy (Part 3301)
      XXIV  Federal Energy Regulatory Commission (Part 3401)
       XXV  Department of the Interior (Part 3501)
      XXVI  Department of Defense (Part 3601)
    XXVIII  Department of Justice (Part 3801)
      XXIX  Federal Communications Commission (Parts 3900-3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000-
                4099)
      XXXI  Farm Credit Administration (Parts 4100-4199)
    XXXIII  Overseas Private Investment Corporation (Part 4301)
      XXXV  Office of Personnel Management (Part 4501)
        XL  Interstate Commerce Commission (Part 5001)
       XLI  Commodity Futures Trading Commission (Part 5101)
      XLII  Department of Labor (Part 5201)
     XLIII  National Science Foundation (Part 5301)
       XLV  Department of Health and Human Services (Part 5501)
      XLVI  Postal Rate Commission (Part 5601)
     XLVII  Federal Trade Commission (Part 5701)
    XLVIII  Nuclear Regulatory Commission (Part 5801)
         L  Department of Transportation (Part 6001)
       LII  Export-Import Bank of the United States (Part 6201)
      LIII  Department of Education (Parts 6300-6399)
       LIV  Environmental Protection Agency (Part 6401)
      LVII  General Services Administration (Part 6701)
     LVIII  Board of Governors of the Federal Reserve System (Part 
                6801)
       LIX  National Aeronautics and Space Administration (Part 
                6901)
        LX  United States Postal Service (Part 7001)
       LXI  National Labor Relations Board (Part 7101)
      LXII  Equal Employment Opportunity Commission (Part 7201)
     LXIII  Inter-American Foundation (Part 7301)
       LXV  Department of Housing and Urban Development (Part 
                7501)
      LXVI  National Archives and Records Administration (Part 
                7601)
      LXIX  Tennessee Valley Authority (Part 7901)
      LXXI  Consumer Product Safety Commission (Part 8101)
    LXXIII  Department of Agriculture (Part 8301)
     LXXIV  Federal Mine Safety and Health Review Commission (Part 
                8401)
     LXXVI  Federal Retirement Thrift Investment Board (Part 8601)
    LXXVII  Office of Management and Budget (Part 8701)

                          Title 6 [Reserved]

              

[[Page 533]]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0-26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27-209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210-299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300-399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400-499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500-599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600-699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700-799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800-899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900-999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000-1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200-1299)
      XIII  Northeast Dairy Compact Commission (Parts 1300-1399)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400-1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500-1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600-1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700-1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800-
                2099)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600-2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700-2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800-2899)
      XXIX  Office of Energy, Department of Agriculture (Parts 
                2900-2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000-3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100-3199)

[[Page 534]]

     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200-3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300-3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400-
                3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500-3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600-3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700-3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800-3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200-
                4299)

                    Title 8--Aliens and Nationality

         I  Immigration and Naturalization Service, Department of 
                Justice (Parts 1-599)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1-199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200-299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300-599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0-199)
        II  Department of Energy (Parts 200-699)
       III  Department of Energy (Parts 700-999)
         X  Department of Energy (General Provisions) (Parts 1000-
                1099)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700-
                1799)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1-9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1-199)

[[Page 535]]

        II  Federal Reserve System (Parts 200-299)
       III  Federal Deposit Insurance Corporation (Parts 300-399)
        IV  Export-Import Bank of the United States (Parts 400-
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500-599)
        VI  Farm Credit Administration (Parts 600-699)
       VII  National Credit Union Administration (Parts 700-799)
      VIII  Federal Financing Bank (Parts 800-899)
        IX  Federal Housing Finance Board (Parts 900-999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100-1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400-
                1499)
        XV  Department of the Treasury (Parts 1500-1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700-1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800-1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1-199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300-399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400-499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500-599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1-199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200-399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400-499)
         V  National Aeronautics and Space Administration (Parts 
                1200-1299)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0-29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30-199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200-299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300-399)

[[Page 536]]

        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400-499)
       VII  Bureau of Export Administration, Department of 
                Commerce (Parts 700-799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800-899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900-999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100-1199)
      XIII  East-West Foreign Trade Board (Parts 1300-1399)
       XIV  Minority Business Development Agency (Parts 1400-1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000-2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300-2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0-999)
        II  Consumer Product Safety Commission (Parts 1000-1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1-199)
        II  Securities and Exchange Commission (Parts 200-399)
        IV  Department of the Treasury (Parts 400-499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1-399)
       III  Delaware River Basin Commission (Parts 400-499)
        VI  Water Resources Council (Parts 700-799)
      VIII  Susquehanna River Basin Commission (Parts 800-899)
      XIII  Tennessee Valley Authority (Parts 1300-1399)

                       Title 19--Customs Duties

         I  United States Customs Service, Department of the 
                Treasury (Parts 1-199)
        II  United States International Trade Commission (Parts 
                200-299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300-399)

[[Page 537]]

                          Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1-199)
        II  Railroad Retirement Board (Parts 200-399)
       III  Social Security Administration (Parts 400-499)
        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500-599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600-699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700-799)
       VII  Benefits Review Board, Department of Labor (Parts 800-
                899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900-999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training, Department of Labor 
                (Parts 1000-1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1-1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300-1399)
       III  Office of National Drug Control Policy (Parts 1400-
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1-199)
        II  Agency for International Development (Parts 200-299)
       III  Peace Corps (Parts 300-399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400-499)
         V  Broadcasting Board of Governors (Parts 500-599)
       VII  Overseas Private Investment Corporation (Parts 700-
                799)
        IX  Foreign Service Grievance Board Regulations (Parts 
                900-999)
         X  Inter-American Foundation (Parts 1000-1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100-1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200-1299)
      XIII  Board for International Broadcasting (Parts 1300-1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400-1499)
        XV  African Development Foundation (Parts 1500-1599)
       XVI  Japan-United States Friendship Commission (Parts 1600-
                1699)
      XVII  United States Institute of Peace (Parts 1700-1799)

[[Page 538]]

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1-999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200-1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300-1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0-99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100-199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200-299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300-399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400-499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500-599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600-699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700-
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800-899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900-999)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700-1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000-2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200-3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100-
                4199)

[[Page 539]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1-299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300-399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500-599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700-799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Part 1001)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Part 1200)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1-799)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Bureau of Alcohol, Tobacco and Firearms, Department of 
                the Treasury (Parts 1-299)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0-199)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300-399)
         V  Bureau of Prisons, Department of Justice (Parts 500-
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600-699)
       VII  Office of Independent Counsel (Parts 700-799)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 0-
                99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100-199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200-299)
       III  National Railroad Adjustment Board (Parts 300-399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400-499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500-899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900-999)
         X  National Mediation Board (Parts 1200-1299)

[[Page 540]]

       XII  Federal Mediation and Conciliation Service (Parts 
                1400-1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600-
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900-1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200-2499)
       XXV  Pension and Welfare Benefits Administration, 
                Department of Labor (Parts 2500-2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700-2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000-4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1-199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200-299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300-399)
        IV  Geological Survey, Department of the Interior (Parts 
                400-499)
        VI  Bureau of Mines, Department of the Interior (Parts 
                600-699)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700-999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0-50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51-199)
        II  Fiscal Service, Department of the Treasury (Parts 200-
                399)
        IV  Secret Service, Department of the Treasury (Parts 400-
                499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500-599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600-699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700-799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800-899)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1-399)
         V  Department of the Army (Parts 400-699)
        VI  Department of the Navy (Parts 700-799)

[[Page 541]]

       VII  Department of the Air Force (Parts 800-1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200-1299)
       XVI  Selective Service System (Parts 1600-1699)
     XVIII  National Counterintelligence Center (Parts 1800-1899)
       XIX  Central Intelligence Agency (Parts 1900-1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000-
                2099)
       XXI  National Security Council (Parts 2100-2199)
      XXIV  Office of Science and Technology Policy (Parts 2400-
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700-2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800-2899)
      XXIX  Presidential Commission on the Assignment of Women in 
                the Armed Forces (Part 2900)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Transportation (Parts 1-
                199)
        II  Corps of Engineers, Department of the Army (Parts 200-
                399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400-499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1-99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100-199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200-299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300-399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400-499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500-599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600-699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700-799)
        XI  National Institute for Literacy (Parts 1100-1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200-1299)

[[Page 542]]

                        Title 35--Panama Canal

         I  Panama Canal Regulations (Parts 1-299)

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1-199)
        II  Forest Service, Department of Agriculture (Parts 200-
                299)
       III  Corps of Engineers, Department of the Army (Parts 300-
                399)
        IV  American Battle Monuments Commission (Parts 400-499)
         V  Smithsonian Institution (Parts 500-599)
       VII  Library of Congress (Parts 700-799)
      VIII  Advisory Council on Historic Preservation (Parts 800-
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900-999)
         X  Presidio Trust (Parts 1000-1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100-1199)
       XII  National Archives and Records Administration (Parts 
                1200-1299)
       XIV  Assassination Records Review Board (Parts 1400-1499)
        XV  Oklahoma City National Memorial Trust (Part 1501)

             Title 37--Patents, Trademarks, and Copyrights

         I  Patent and Trademark Office, Department of Commerce 
                (Parts 1-199)
        II  Copyright Office, Library of Congress (Parts 200-299)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400-499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500-599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0-99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1-999)
       III  Postal Rate Commission (Parts 3000-3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1-799)
         V  Council on Environmental Quality (Parts 1500-1599)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700-1799)

[[Page 543]]

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans 
                Employment and Training, Department of Labor 
                (Parts 61-1--61-999)
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System
       201  Federal Information Resources Management Regulation 
                (Parts 201-1--201-99) [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300.99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-70)
       304  Payment from a Non-Federal Source for Travel Expenses 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1-199)
        IV  Health Care Financing Administration, Department of 
                Health and Human Services (Parts 400-499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000-1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1-199)
            Subtitle B--Regulations Relating to Public Lands

[[Page 544]]

         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200-499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000-9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000-10005)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency (Parts 0-399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400-499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1-199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200-299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300-399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families Department of Health and 
                Human Services (Parts 400-499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500-599)
        VI  National Science Foundation (Parts 600-699)
       VII  Commission on Civil Rights (Parts 700-799)
      VIII  Office of Personnel Management (Parts 800-899)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000-1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100-1199)
       XII  Corporation for National and Community Service (Parts 
                1200-1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300-1399)
       XVI  Legal Services Corporation (Parts 1600-1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700-1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800-
                1899)
       XXI  Commission on Fine Arts (Parts 2100-2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400-2499)

[[Page 545]]

       XXV  Corporation for National and Community Service (Parts 
                2500-2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Transportation (Parts 1-
                199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200-399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Transportation (Parts 400-499)
        IV  Federal Maritime Commission (Parts 500-599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0-199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200-299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 300-
                399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1-99)
         2  Department of Defense (Parts 200-299)
         3  Department of Health and Human Services (Parts 300-
                399)
         4  Department of Agriculture (Parts 400-499)
         5  General Services Administration (Parts 500-599)
         6  Department of State (Parts 600-699)
         7  United States Agency for International Development 
                (Parts 700-799)
         8  Department of Veterans Affairs (Parts 800-899)
         9  Department of Energy (Parts 900-999)
        10  Department of the Treasury (Parts 1000-1099)
        12  Department of Transportation (Parts 1200-1299)
        13  Department of Commerce (Parts 1300-1399)
        14  Department of the Interior (Parts 1400-1499)
        15  Environmental Protection Agency (Parts 1500-1599)
        16  Office of Personnel Management Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600-1699)
        17  Office of Personnel Management (Parts 1700-1799)
        18  National Aeronautics and Space Administration (Parts 
                1800-1899)
        19  Broadcasting Board of Governors (Parts 1900-1999)
        20  Nuclear Regulatory Commission (Parts 2000-2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100-2199)
        23  Social Security Administration (Parts 2300-2399)
        24  Department of Housing and Urban Development (Parts 
                2400-2499)

[[Page 546]]

        25  National Science Foundation (Parts 2500-2599)
        28  Department of Justice (Parts 2800-2899)
        29  Department of Labor (Parts 2900-2999)
        34  Department of Education Acquisition Regulation (Parts 
                3400-3499)
        35  Panama Canal Commission (Parts 3500-3599)
        44  Federal Emergency Management Agency (Parts 4400-4499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100-5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200-5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300-5399)
        54  Defense Logistics Agency, Department of Defense (Part 
                5452)
        57  African Development Foundation (Parts 5700-5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100-6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300-6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900-9999)

                        Title 49-Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1-99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Research and Special Programs Administration, 
                Department of Transportation (Parts 100-199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200-299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300-399)
        IV  Coast Guard, Department of Transportation (Parts 400-
                499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500-599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600-699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700-799)
      VIII  National Transportation Safety Board (Parts 800-999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000-1399)
        XI  Bureau of Transportation Statistics, Department of 
                Transportation (Parts 1400-1499)

[[Page 547]]

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1-199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200-299)
       III  International Fishing and Related Activities (Parts 
                300-399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400-499)
         V  Marine Mammal Commission (Parts 500-599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600-699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR



[[Page 549]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of April 1, 2000)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Commission on Intergovernmental          5, VII
     Relations
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development, United      22, II
     States
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Alcohol, Tobacco and Firearms, Bureau of          27, I
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 550]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Assassination Records Review Board                36, XIV
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Board for International Broadcasting              22, XIII
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Export Administration, Bureau of                15, VII
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office                     37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Corporation for National and Community Service    45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Customs Service, United States                    19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 551]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 2
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   5, LIV; 40, I, VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                25, III, LXXVII; 48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export Administration, Bureau of                  15, VII
Export-Import Bank of the United States           5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV

[[Page 552]]

Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               4, II
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
  Federal Acquisition Regulation                  48, 44
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Property Management Regulations System    41, 101, 102, 105
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Accounting Office                         4, I, II
General Services Administration                   5, LVII
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Property Management Regulations System  41, 101, 102, 105
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
     Expenses
[[Page 553]]

  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          5, XLV; 45, Subtitle A
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Health Care Financing Administration            42, IV
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Health Care Financing Administration              42, IV
Housing and Urban Development, Department of      5, LXV; 24, Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Inspector General, Office of                    24, XII
  Multifamily Housing Assistance Restructuring,   24, IV
       Office of
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Human Development Services, Office of             45, XIII
Immigration and Naturalization Service            8, I
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Intergovernmental Relations, Advisory Commission  5, VII
     on
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II

[[Page 554]]

  Mines, Bureau of                                30, VI
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                5, XXVIII; 28, I
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             4, II
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration and Naturalization Service          8, I
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Pension and Welfare Benefits Administration     29, XXV
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training, Office of    41, 61; 20, IX
       the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
Management and Budget, Office of                  5, III, LXXVII; 48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II
Micronesian Status Negotiations, Office for       32, XXVII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Mines, Bureau of                                  30, VI
Minority Business Development Agency              15, XIV

[[Page 555]]

Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Multifamily Housing Assistance Restructuring,     24, IV
     Office of
National Aeronautics and Space Administration     5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Bureau of Standards                      15, II
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Drug Control Policy, Office of           21, III
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
National Weather Service                          15, IX
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Dairy Compact Commission                7, XIII
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Panama Canal Commission                           48, 35
Panama Canal Regulations                          35, I
Patent and Trademark Office                       37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension and Welfare Benefits Administration       29, XXV
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
     Acquisition Regulation
[[Page 556]]

  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Postal Rate Commission                            5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Commission on the Assignment of      32, XXIX
     Women in the Armed Forces
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Regional Action Planning Commissions              13, V
Relocation Allowances                             41, 302
Research and Special Programs Administration      49, I
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     13, I
Smithsonian Institution                           36, V
Social Security Administration                    20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  22, I
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     5, L
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Research and Special Programs Administration    49, I

[[Page 557]]

  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Statistics Brureau                 49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV
  Alcohol, Tobacco and Firearms, Bureau of        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs Service, United States                  19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training, Office of the  41, 61; 20, IX
     Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 559]]

                                     

                                     



                   Table of OMB Control NumbersSecs. 



     PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

Sec. 602.101  OMB Control numbers.

    (a) Purpose. This part collects and displays the control numbers 
assigned to collections of information in Internal Revenue Service 
regulations by the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1980. The Internal Revenue Service intends 
that this part comply with the requirements of Secs. 1320.7(f), 1320.12, 
1320.13, and 1320.14 of 5 CFR part 1320 (OMB regulations implementing 
the Paperwork Reduction Act), for the display of control numbers 
assigned by OMB to collections of information in Internal Revenue 
Service regulations. This part does not display control numbers assigned 
by the Office of Management and Budget to collections of information of 
the Bureau of Alcohol, Tobacco, and Firearms.
    (b) Display.

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
1.23-5.....................................................    1545-0074
1.25-1T....................................................    1545-0922
                                                               1545-0930
1.25-2T....................................................    1545-0922
                                                               1545-0930
1.25-3T....................................................    1545-0922
                                                               1545-0930
1.25-4T....................................................    1545-0922
1.25-5T....................................................    1545-0922
1.25-6T....................................................    1545-0922
1.25-7T....................................................    1545-0922
1.25-8T....................................................    1545-0922
1.28-1.....................................................    1545-0619
1.31-2.....................................................    1545-0074
1.32-2.....................................................    1545-0074
1.32-3T....................................................    1545-1575
1.37-1.....................................................    1545-0074
1.37-3.....................................................    1545-0074
1.41-2.....................................................    1545-0619
1.41-3.....................................................    1545-0619
1.41-4A....................................................    1545-0074
1.41-4 (b) and (c).........................................    1545-0074
1.41-8(d)..................................................    1545-0732
1.41-9.....................................................    1545-0619
1.42-1T....................................................    1545-0984
                                                               1545-0988
1.42-2.....................................................    1545-1005
1.42-5.....................................................    1545-1357
1.42-6.....................................................    1545-1102
1.42-8.....................................................    1545-1102
1.42-10....................................................    1545-1102
1.42-13....................................................    1545-1357
1.42-14....................................................    1545-1423
1.42-17....................................................    1545-1357
1.43-3(a)(3)...............................................    1545-1292
1.43-3(b)(3)...............................................    1545-1292
1.44A-1....................................................    1545-0068
1.44A-3....................................................    1545-0074
1.44B-1....................................................    1545-0219
1.458-1....................................................    1545-0879
1.458-2....................................................    1545-0152
1.46-1.....................................................    1545-0123
                                                               1545-0155
1.46-3.....................................................    1545-0155
1.46-4.....................................................    1545-0155
1.46-5.....................................................    1545-0155
1.46-6.....................................................    1545-0155
1.46-8.....................................................    1545-0155
1.46-9.....................................................    1545-0155
1.46-10....................................................    1545-0118
1.46-11....................................................    1545-0155
1.47-1.....................................................    1545-0166
                                                               1545-0155
1.47-3.....................................................    1545-0166
                                                               1545-0155
1.47-4.....................................................    1545-0123
1.47-5.....................................................    1545-0092
1.47-6.....................................................    1545-0099
1.48-3.....................................................    1545-0155
1.48-4.....................................................    1545-0808
                                                               1545-0155
1.48-5.....................................................    1545-0155
1.48-6.....................................................    1545-0155
1.48-12....................................................    1545-0155
1.50A-1....................................................    1545-0895
1.50A-2....................................................    1545-0895
1.50A-3....................................................    1545-0895
1.50A-4....................................................    1545-0895
1.50A-5....................................................    1545-0895
1.50A-6....................................................    1545-0895
1.50A-7....................................................    1545-0895
1.50B-1....................................................    1545-0895
1.50B-2....................................................    1545-0895
1.50B-3....................................................    1545-0895
1.50B-4....................................................    1545-0895
1.50B-5....................................................    1545-0895
1.51-1.....................................................    1545-0219
                                                               1545-0241

[[Page 560]]

 
                                                               1545-0244
                                                               1545-0797
1.52-2.....................................................    1545-0219
1.52-3.....................................................    1545-0219
1.56-1.....................................................    1545-0123
1.56(g)-1..................................................    1545-1233
1.56A-1....................................................    1545-0227
1.56A-2....................................................    1545-0227
1.56A-3....................................................    1545-0227
1.56A-4....................................................    1545-0227
1.56A-5....................................................    1545-0227
1.57-5.....................................................    1545-0227
1.58-1.....................................................    1545-0175
1.58-9(c)(5)(iii)(B).......................................    1545-1093
1.58-9(e)(3)...............................................    1545-1093
1.61-2.....................................................    1545-0771
1.61-2T....................................................    1545-0771
1.61-4.....................................................    1545-0187
1.61-15....................................................    1545-0074
1.62-2.....................................................    1545-1148
1.63-1.....................................................    1545-0074
1.67-2T....................................................    1545-0110
1.67-3T....................................................    1545-0118
1.67-3.....................................................    1545-1018
1.71-1T....................................................    1545-0074
1.72-4.....................................................    1545-0074
1.72-6.....................................................    1545-0074
1.72-9.....................................................    1545-0074
1.72-17....................................................    1545-0074
1.72-17A...................................................    1545-0074
1.72-18....................................................    1545-0074
1.74-1.....................................................    1545-1100
1.79-2.....................................................    1545-0074
1.79-3.....................................................    1545-0074
1.83-2.....................................................    1545-0074
1.83-5.....................................................    1545-0074
1.83-6.....................................................    1545-1448
1.103-10...................................................    1545-0123
                                                               1545-0940
1.103-15AT.................................................    1545-0720
1.103-18...................................................    1545-1226
1.103(n)-2T................................................    1545-0874
1.103(n)-4T................................................    1545-0874
1.103A-2...................................................    1545-0720
1.105-4....................................................    1545-0074
1.105-5....................................................    1545-0074
1.105-6....................................................    1545-0074
1.108-4....................................................    1545-1539
1.108-5....................................................    1545-1421
1.117-5....................................................    1545-0869
1.119-1....................................................    1545-0067
1.120-3....................................................    1545-0057
1.121-1....................................................    1545-0072
1.121-2....................................................    1545-0072
1.121-3....................................................    1545-0072
1.121-4....................................................    1545-0072
                                                               1545-0091
1.121-5....................................................    1545-0072
1.127-2....................................................    1545-0768
1.132-1T...................................................    1545-0771
1.132-2....................................................    1545-0771
1.132-2T...................................................    1545-0771
1.132-5....................................................    1545-0771
1.132-5T...................................................    1545-0771
                                                               1545-1098
1.141-1....................................................    1545-1451
1.141-12...................................................    1545-1451
1.142-2....................................................    1545-1451
1.148-0....................................................    1545-1098
1.148-1....................................................    1545-1098
1.148-2....................................................    1545-1098
                                                               1545-1347
1.148-3....................................................    1545-1098
                                                               1545-1347
1.148-4....................................................    1545-1098
                                                               1545-1347
1.148-5....................................................    1545-1098
                                                               1545-1490
1.148-6....................................................    1545-1098
                                                               1545-1451
1.148-7....................................................    1545-1098
1.148-7....................................................    1545-1347
1.148-8....................................................    1545-1098
1.148-11...................................................    1545-1098
1.148-11...................................................    1545-1347
1.149(e)-1.................................................    1545-0720
1.150-1....................................................    1545-1347
1.151-1....................................................    1545-0074
1.152-3....................................................    1545-0071
1.152-4....................................................    1545-0074
1.152-4T...................................................    1545-0074
1.162-1....................................................    1545-0139
1.162-2....................................................    1545-0139
1.162-3....................................................    1545-0139
1.162-4....................................................    1545-0139
1.162-5....................................................    1545-0139
1.162-6....................................................    1545-0139
1.162-7....................................................    1545-0139
1.162-8....................................................    1545-0139
1.162-9....................................................    1545-0139
1.162-10...................................................    1545-0139
1.162-11...................................................    1545-0139
1.162-12...................................................    1545-0139
1.162-13...................................................    1545-0139
1.162-14...................................................    1545-0139
1.162-15...................................................    1545-0139
1.162-16...................................................    1545-0139
1.162-17...................................................    1545-0139
1.162-18...................................................    1545-0139
1.162-19...................................................    1545-0139
1.162-20...................................................    1545-0139
1.162-27...................................................    1545-1466
1.163-5....................................................    1545-0786
                                                               1545-1132
1.163-8T...................................................    1545-0995
1.163-10T..................................................    1545-0074
1.163-13...................................................    1545-1491
1.163(d)-1.................................................    1545-1421
1.165-1....................................................    1545-0177
1.165-2....................................................    1545-0177
1.165-3....................................................    1545-0177
1.165-4....................................................    1545-0177
1.165-5....................................................    1545-0177
1.165-6....................................................    1545-0177
1.165-7....................................................    1545-0177
1.165-8....................................................    1545-0177
1.165-9....................................................    1545-0177
1.165-10...................................................    1545-0177
1.165-11...................................................    1545-0074
                                                               1545-0177
                                                               1545-0786
1.165-12...................................................    1545-0786
1.166-1....................................................    1545-0123
1.166-2....................................................    1545-1254
1.166-4....................................................    1545-0123
1.166-10...................................................    1545-0123
1.167(a)-5T................................................    1545-1021
1.167(a)-7.................................................    1545-0172
1.167(a)-11................................................    1545-0152
                                                               1545-0172
1.167(a)-12................................................    1545-0172
1.167(d)-1.................................................    1545-0172
1.167(e)-1.................................................    1545-0172
1.167(f)-11................................................    1545-0172

[[Page 561]]

 
1.167(l)-1.................................................    1545-0172
1.168(d)-1.................................................    1545-1146
1.168(f)(8)-1T.............................................    1545-0923
1.168(i)-1.................................................    1545-1331
1.168-5....................................................    1545-0172
1.169-4....................................................    1545-0172
1.170-1....................................................    1545-0074
1.170-2....................................................    1545-0074
1.170-3....................................................    1545-0123
1.170A-1...................................................    1545-0074
1.170A-2...................................................    1545-0074
1.170A-4(A)(b).............................................    1545-0123
1.170A-8...................................................    1545-0074
1.170A-9...................................................    1545-0052
                                                               1545-0074
1.170A-11..................................................    1545-0123
                                                               1545-0074
1.170A-12..................................................    1545-0020
                                                               1545-0074
1.170A-13..................................................    1545-0074
                                                               1545-0754
                                                               1545-0908
                                                               1545-1431
1.170A-13(f)...............................................    1545-1464
1.170A-14..................................................    1545-0763
1.171-4....................................................    1545-1491
1.171-5....................................................    1545-1491
1.172-1....................................................    1545-0172
1.172-13...................................................    1545-0863
1.173-1....................................................    1545-0172
1.174-3....................................................    1545-0152
1.174-4....................................................    1545-0152
1.175-3....................................................    1545-0187
1.175-6....................................................    1545-0152
1.177-1....................................................    1545-0172
1.179-2....................................................    1545-1201
1.179-3....................................................    1545-1201
1.179-5....................................................    1545-0172
1.180-2....................................................    1545-0074
1.182-6....................................................    1545-0074
1.183-1....................................................    1545-0195
1.183-2....................................................    1545-0195
1.183-3....................................................    1545-0195
1.183-4....................................................    1545-0195
1.190-3....................................................    1545-0074
1.194-2....................................................    1545-0735
1.194-4....................................................    1545-0735
1.195-1....................................................    1545-1582
1.197-1T...................................................    1545-1425
1.197-2....................................................    1545-1671
1.213-1....................................................    1545-0074
1.215-1T...................................................    1545-0074
1.217-2....................................................    1545-0182
1.243-3....................................................    1545-0123
1.243-4....................................................    1545-0123
1.243-5....................................................    1545-0123
1.248-1....................................................    1545-0172
1.261-1....................................................    1545-1041
1.263(e)-1.................................................    1545-0123
1.263A-1...................................................    1545-0987
1.263A-1T..................................................    1545-0187
1.263A-2...................................................    1545-0987
1.263A-3...................................................    1545-0987
                                                               1545-0987
1.263A-8(b)(2)(iii)........................................    1545-1265
1.263A-9(d)(1).............................................    1545-1265
1.263A-9(f)(1)(ii).........................................    1545-1265
1.263A-9(f)(2)(iv).........................................    1545-1265
1.263A-9(g)(2)(iv)(C)......................................    1545-1265
1.263A-9(g)(3)(iv).........................................    1545-1265
1.265-1....................................................    1545-0074
1.265-2....................................................    1545-0123
1.266-1....................................................    1545-0123
1.267(f)-1.................................................    1545-0885
1.268-1....................................................    1545-0184
1.274-1....................................................    1545-0139
1.274-2....................................................    1545-0139
1.274-3....................................................    1545-0139
1.274-4....................................................    1545-0139
1.274-5....................................................    1545-0771
1.274-5A...................................................    1545-0139
                                                               1545-0771
1.274-5T...................................................    1545-0074
                                                               1545-0172
                                                               1545-0771
1.274-6....................................................    1545-0139
                                                               1545-0771
1.274-6T...................................................    1545-0074
                                                               1545-0771
1.274-7....................................................    1545-0139
1.274-8....................................................    1545-0139
1.279-6....................................................    1545-0123
1.280C-4...................................................    1545-1155
1.280F-3T..................................................    1545-0074
1.281-4....................................................    1545-0123
1.302-4....................................................    1545-0074
1.305-3....................................................    1545-0123
1.305-5....................................................    1545-1438
1.307-2....................................................    1545-0074
1.312-15...................................................    1545-0172
1.316-1....................................................    1545-0123
1.331-1....................................................    1545-0074
1.332-4....................................................    1545-0123
1.332-6....................................................    1545-0123
1.337(d)-1.................................................    1545-1160
1.337(d)-2.................................................    1545-1160
1.337(d)-4.................................................    1545-1633
1.337(d)-5T................................................    1545-1672
1.338-2T...................................................    1545-1658
1.338-5T...................................................    1545-1658
1.338-10T..................................................    1545-1658
1.338(h)(10)-1T............................................    1545-1658
1.341-7....................................................    1545-0123
1.351-3....................................................    1545-0074
1.355-5....................................................    1545-0123
1.362-2....................................................    1545-0123
1.367(a)-1T................................................    1545-0026
1.367(a)-2T................................................    1545-0026
1.367(a)-3.................................................    1545-0026
                                                               1545-1478
1.367(a)-6T................................................    1545-0026
1.367(a)-8.................................................    1545-1271
1.367(b)-1.................................................    1545-1271
1.367(b)-3T................................................    1545-1666
1.367(d)-1T................................................    1545-0026
1.367(e)-1.................................................    1545-1487
1.367(e)-2.................................................    1545-1487
1.368-3....................................................    1545-0123
1.371-1....................................................    1545-0123
1.371-2....................................................    1545-0123
1.374-3....................................................    1545-0123
1.381(b)-1.................................................    1545-0123
1.381(c)(4)-1..............................................    1545-0123
                                                               1545-0152
                                                               1545-0879
1.381(c)(5)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(6)-1..............................................    1545-0123
                                                               1545-0152
1.381(c)(8)-1..............................................    1545-0123
1.381(c)(10)-1.............................................    1545-0123
1.381(c)(11)-1(k)..........................................    1545-0123
1.381(c)(13)-1.............................................    1545-0123
1.381(c)(17)-1.............................................    1545-0045

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1.381(c)(25)-1.............................................    1545-0045
1.382-1T...................................................    1545-0123
1.382-2....................................................    1545-0123
1.382-2T...................................................    1545-0123
1.382-3....................................................    1545-1281
                                                               1545-1345
1.382-4....................................................    1545-1120
1.382-6....................................................    1545-1381
1.382-8....................................................    1545-1434
1.382-9....................................................    1545-1260
                                                               1545-1120
                                                               1545-1275
                                                               1545-1324
1.382-91...................................................    1545-1260
                                                               1545-1324
1.383-1....................................................    1545-0074
                                                               1545-1120
1.401(a)-11................................................    1545-0710
1.401(a)-20................................................    1545-0928
1.401(a)-31................................................    1545-1341
1.401(a)-50................................................    1545-0710
1.401(a)(31)-1.............................................    1545-1341
1.401(b)-1.................................................    1545-0197
1.401(f)-1.................................................    1545-0710
1.401(k)-1.................................................    1545-1039
                                                               1545-1069
1.401-1....................................................    1545-0020
                                                               1545-0197
                                                               1545-0200
                                                               1545-0534
                                                               1545-0710
1.401-12(n)................................................    1545-0806
1.401-14...................................................    1545-0710
1.402(c)-2.................................................    1545-1341
1.402(f)-1.................................................    1545-1341
                                                               1545-1632
1.403(b)-1.................................................    1545-0710
1.403(b)-2.................................................    1545-1341
1.404(a)-4.................................................    1545-0710
1.404(a)-12................................................    1545-0710
1.404A-2...................................................    1545-0123
1.404A-6...................................................    1545-0123
1.408-2....................................................    1545-0390
1.408-5....................................................    1545-0747
1.408-6....................................................    1545-0203
                                                               1545-0390
1.408-7....................................................    1545-0119
1.408A-2...................................................    1545-1616
1.408A-4...................................................    1545-1616
1.408A-5...................................................    1545-1616
1.408A-7...................................................    1545-1616
1.410(a)-2.................................................    1545-0710
1.410(d)-1.................................................    1545-0710
1.411(a)-11................................................    1545-1471
                                                               1545-1632
1.411(d)-4.................................................    1545-1545
1.411(d)-6.................................................    1545-1477
1.412(b)-5.................................................    1545-0710
1.412(c)(1)-2..............................................    1545-0710
1.412(c)(2)-1..............................................    1545-0710
1.412(c)(3)-2..............................................    1545-0710
1.414(c)-5.................................................    1545-0797
1.414(r)-1.................................................    1545-1221
1.415-2....................................................    1545-0710
1.415-6....................................................    1545-0710
1.417(e)-1.................................................    1545-1471
1.417(e)-1T................................................    1545-1471
1.441-3T...................................................    1545-0134
1.442-1....................................................    1545-0074
                                                               1545-0123
                                                               1545-0134
                                                               1545-0152
1.442-2T...................................................    1545-0134
1.442-3T...................................................    1545-0134
1.443-1....................................................    1545-0123
1.444-3T...................................................    1545-1036
1.446-1....................................................    1545-0074
                                                               1545-0152
1.446-4(d).................................................    1545-1412
1.448-1(g).................................................    1545-0152
1.448-1(h).................................................    1545-0152
1.448-1(i).................................................    1545-0152
1.448-2T...................................................    1545-0152
1.451-1....................................................    1545-0091
1.451-3....................................................    1545-0152
                                                               1545-0736
1.451-4....................................................    1545-0123
1.451-5....................................................    1545-0074
1.451-6....................................................    1545-0074
1.451-7....................................................    1545-0074
1.453-1....................................................    1545-0152
1.453-2....................................................    1545-0152
1.453-8....................................................    1545-0152
                                                               1545-0228
1.453-10...................................................    1545-0152
1.453A-1...................................................    1545-0152
                                                               1545-1134
1.453A-2...................................................    1545-0152
                                                               1545-1134
1.453A-3...................................................    1545-0963
1.454-1....................................................    1545-0074
1.455-2....................................................    1545-0152
1.455-6....................................................    1545-0123
1.456-2....................................................    1545-0123
1.456-6....................................................    1545-0123
1.456-7....................................................    1545-0123
1.458-1....................................................    1545-0879
1.458-2....................................................    1545-0152
1.460-6....................................................    1545-1031
                                                               1545-1572
1.461-1....................................................    1545-0074
1.461-2....................................................    1545-0096
1.461-4....................................................    1545-0917
1.461-5....................................................    1545-0917
1.463-1T...................................................    1545-0916
1.465-1T...................................................    1545-0712
1.466-1T...................................................    1545-0152
1.466-4....................................................    1545-0152
1.468A-3...................................................    1545-1269
                                                               1545-1378
                                                               1545-1511
1.468A-4...................................................    1545-0954
1.468A-7...................................................    1545-0954
1.468A-8...................................................    1545-1269
1.468B-1(j)................................................    1545-1299
1.468B-2(k)................................................    1545-1299
1.468B-2(l)................................................    1545-1299
1.468B-3(b)................................................    1545-1299
1.468B-3(e)................................................    1545-1299
1.468B-5(b)................................................    1545-1299
1.469-1....................................................    1545-1008
1.469-2T...................................................    1545-0712
                                                               1545-1091
1.469-4T...................................................    1545-0985
                                                               1545-1037
1.471-2....................................................    1545-0123
1.471-5....................................................    1545-0123
1.471-6....................................................    1545-0123
1.471-8....................................................    1545-0123
1.471-11...................................................    1545-0123
                                                               1545-0152
1.472-1....................................................    1545-0042
                                                               1545-0152
1.472-2....................................................    1545-0152

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1.472-3....................................................    1545-0042
1.472-5....................................................    1545-0152
1.472-8....................................................    1545-0028
                                                               1545-0042
1.475(b)-4.................................................    1545-1496
1.481-4....................................................    1545-0152
1.481-5....................................................    1545-0152
1.482-1....................................................    1545-1364
1.482-4....................................................    1545-1364
1.482-7....................................................    1545-1364
1.501(a)-1.................................................    1545-0056
                                                               1545-0057
1.501(c)(3)-1..............................................    1545-0056
1.501(c)(9)-5..............................................    1545-0047
1.501(c)(17)-3.............................................    1545-0047
1.501(e)-1.................................................    1545-0814
1.503(c)-1.................................................    1545-0047
                                                               1545-0052
1.505(c)-1T................................................    1545-0916
1.507-1....................................................    1545-0052
1.507-2....................................................    1545-0052
1.508-1....................................................    1545-0052
                                                               1545-0056
1.509(a)-3.................................................    1545-0047
1.509(a)-5.................................................    1545-0047
1.509(c)-1.................................................    1545-0052
1.512(a)-1.................................................    1545-0687
1.512(a)-4.................................................    1545-0047
                                                               1545-0687
1.521-1....................................................    1545-0051
                                                               1545-0058
1.527-2....................................................    1545-0129
1.527-5....................................................    1545-0129
1.527-6....................................................    1545-0129
1.527-9....................................................    1545-0129
1.528-8....................................................    1545-0127
1.533-2....................................................    1545-0123
1.534-2....................................................    1545-0123
1.542-3....................................................    1545-0123
1.545-2....................................................    1545-0123
1.545-3....................................................    1545-0123
1.547-2....................................................    1545-0045
                                                               1545-0123
1.547-3....................................................    1545-0123
1.551-4....................................................    1545-0074
1.552-3....................................................    1545-0099
1.552-4....................................................    1545-0099
1.552-5....................................................    1545-0099
1.556-2....................................................    1545-0704
1.561-1....................................................    1545-0044
1.561-2....................................................    1545-0123
1.562-3....................................................    1545-0123
1.563-2....................................................    1545-0123
1.564-1....................................................    1545-0123
1.565-1....................................................    1545-0043
                                                               1545-0123
1.565-2....................................................    1545-0043
1.565-3....................................................    1545-0043
1.565-5....................................................    1545-0043
1.565-6....................................................    1545-0043
1.585-1....................................................    1545-0123
1.585-3....................................................    1545-0123
1.585-8....................................................    1545-1290
1.586-2....................................................    1545-0123
1.593-1....................................................    1545-0123
1.593-6....................................................    1545-0123
1.593-6A...................................................    1545-0123
1.593-7....................................................    1545-0123
1.595-1....................................................    1545-0123
1.597-2....................................................    1545-1300
1.597-4....................................................    1545-1300
1.597-6....................................................    1545-1300
1.597-7....................................................    1545-1300
1.611-2....................................................    1545-0099
1.611-3....................................................    1545-0007
                                                               1545-0099
1.612-4....................................................    1545-0074
1.612-5....................................................    1545-0099
1.613-3....................................................    1545-0099
1.613-4....................................................    1545-0099
1.613-6....................................................    1545-0099
1.613-7....................................................    1545-0099
1.613A-3...................................................    1545-0919
1.613A-3(e)................................................    1545-1251
1.613A-3(l)................................................    1545-0919
1.613A-5...................................................    1545-0099
1.613A-6...................................................    1545-0099
1.614-2....................................................    1545-0099
1.614-3....................................................    1545-0099
1.614-5....................................................    1545-0099
1.614-6....................................................    1545-0099
1.614-8....................................................    1545-0099
1.617-1....................................................    1545-0099
1.617-3....................................................    1545-0099
1.617-4....................................................    1545-0099
1.631-1....................................................    1545-0007
1.631-2....................................................    1545-0007
1.641(b)-2.................................................    1545-0092
1.642(c)-1.................................................    1545-0092
1.642(c)-2.................................................    1545-0092
1.642(c)-5.................................................    1545-0074
1.642(c)-6.................................................    1545-0020
                                                               1545-0074
                                                               1545-0092
1.642(g)-1.................................................    1545-0092
1.642(i)-1.................................................    1545-0092
1.663(b)-2.................................................    1545-0092
1.664-1....................................................    1545-0196
1.664-1(a)(7)..............................................    1545-1536
1.664-2....................................................    1545-0196
1.664-3....................................................    1545-0196
1.664-4....................................................    1545-0020
                                                               1545-0196
1.665(a)-0A through
1.665(g)-2A................................................    1545-0192
1.666(d)-1A................................................    1545-0092
1.671-4....................................................    1545-1442
1.701-1....................................................    1545-0099
1.702-1....................................................    1545-0074
1.703-1....................................................    1545-0099
1.704-2....................................................    1545-1090
1.706-1....................................................    1545-0099
                                                               1545-0074
                                                               1545-0134
1.706-1T...................................................    1545-0099
1.707-3(c)(2)..............................................    1545-1243
1.707-5(a)(7)(ii)..........................................    1545-1243
1.707-6(c).................................................    1545-1243
1.707-8....................................................    1545-1243
1.708-1....................................................    1545-0099
1.732-1....................................................    1545-0099
                                                               1545-1588
1.736-1....................................................    1545-0074
1.743-1....................................................    1545-0074
                                                               1545-1588
1.751-1....................................................    1545-0074
                                                               1545-0099
                                                               1545-0941
1.752-5....................................................    1545-1090
1.754-1....................................................    1545-0099
1.755-1....................................................    1545-0099
1.755-2T...................................................    1545-1021
1.761-2....................................................    1545-1338
1.801-1....................................................    1545-0123

[[Page 564]]

 
                                                               1545-0128
1.801-3....................................................    1545-0123
1.801-5....................................................    1545-0128
1.801-8....................................................    1545-0128
1.804-4....................................................    1545-0128
1.811-2....................................................    1545-0128
1.812-2....................................................    1545-0128
1.815-6....................................................    1545-0128
1.818-4....................................................    1545-0128
1.818-5....................................................    1545-0128
1.818-8....................................................    1545-0128
1.819-2....................................................    1545-0128
1.821-1....................................................    1545-1027
1.821-3....................................................    1545-1027
1.821-4....................................................    1545-1027
1.822-5....................................................    1545-1027
1.822-6....................................................    1545-1027
1.822-8....................................................    1545-1027
1.822-9....................................................    1545-1027
1.823-2....................................................    1545-1027
1.823-5....................................................    1545-1027
1.823-6....................................................    1545-1027
1.825-1....................................................    1545-1027
1.826-1....................................................    1545-1027
1.826-2....................................................    1545-1027
1.826-3....................................................    1545-1027
1.826-4....................................................    1545-1027
1.826-6....................................................    1545-1027
1.831-3....................................................    1545-0123
1.831-4....................................................    1545-0123
1.832-4....................................................    1545-1227
1.832-5....................................................    1545-0123
1.848-2(g)(8)..............................................    1545-1287
1.848-2(h)(3)..............................................    1545-1287
1.848-2(i)(4)..............................................    1545-1287
1.851-2....................................................    1545-1010
1.851-4....................................................    1545-0123
1.852-1....................................................    1545-0123
1.852-4....................................................    1545-0123
                                                               1545-0145
1.852-6....................................................    1545-0123
                                                               1545-0144
1.852-7....................................................    1545-0074
1.852-9....................................................    1545-0074
                                                               1545-0123
                                                               1545-0144
                                                               1545-0145
1.852-11...................................................    1545-1094
1.853-3....................................................    1545-0123
1.853-4....................................................    1545-0123
1.854-2....................................................    1545-0123
1.855-1....................................................    1545-0123
1.856-2....................................................    1545-0123
                                                               1545-1004
1.856-6....................................................    1545-0123
1.856-7....................................................    1545-0123
1.856-8....................................................    1545-0123
1.857-8....................................................    1545-0123
1.857-9....................................................    1545-0074
1.858-1....................................................    1545-0123
1.860-2....................................................    1545-0045
1.860-4....................................................    1545-0045
                                                               1545-1054
                                                               1545-1057
1.860E-2(a)(5).............................................    1545-1276
1.860E-2(a)(7).............................................    1545-1276
1.860E-2(b)(2).............................................    1545-1276
1.861-2....................................................    1545-0089
1.861-3....................................................    1545-0089
1.861-8....................................................    1545-0126
1.861-8(e)(6) and (g)......................................    1545-1224
1.861-9T...................................................    1545-0121
                                                               1545-1072
1.861-18...................................................    1545-1594
1.863-1....................................................    1545-1476
1.863-3....................................................    1545-1476
                                                               1545-1556
1.863-3A...................................................    1545-0126
1.863-4....................................................    1545-0126
1.863-7....................................................    1545-0132
1.864-4....................................................    1545-0126
1.871-1....................................................    1545-0096
1.871-6....................................................    1545-0795
1.871-7....................................................    1545-0089
1.871-10...................................................    1545-0089
                                                               1545-0165
1.874-1....................................................    1545-0089
1.881-4....................................................    1545-1440
1.882-4....................................................    1545-0126
1.884-0....................................................    1545-1070
1.884-1....................................................    1545-1070
1.884-2....................................................    1545-1070
1.884-2T...................................................    1545-0126
                                                               1545-1070
1.884-4....................................................    1545-1070
1.884-5....................................................    1545-1070
1.892-1T...................................................    1545-1053
1.892-2T...................................................    1545-1053
1.892-3T...................................................    1545-1053
1.892-4T...................................................    1545-1053
1.892-5T...................................................    1545-1053
1.892-6T...................................................    1545-1053
1.892-7T...................................................    1545-1053
1.897-2....................................................    1545-0123
                                                               1545-0902
1.897-3....................................................    1545-0123
1.897-5T...................................................    1545-0902
1.897-6T...................................................    1545-0902
1.901-2....................................................    1545-0746
1.901-2A...................................................    1545-0746
1.901-3....................................................    1545-0122
1.902-1....................................................    1545-0122
                                                               1545-1458
1.904-1....................................................    1545-0121
                                                               1545-0122
1.904-2....................................................    1545-0121
                                                               1545-0122
1.904-3....................................................    1545-0121
1.904-4....................................................    1545-0121
1.904-5....................................................    1545-0121
1.904(f)-1.................................................    1545-0121
                                                               1545-0122
1.904(f)-2.................................................    1545-0121
1.904(f)-3.................................................    1545-0121
1.904(f)-4.................................................    1545-0121
1.904(f)-5.................................................    1545-0121
1.904(f)-6.................................................    1545-0121
1.904(f)-7.................................................    1545-1127
1.905-2....................................................    1545-0122
1.905-3T...................................................    1545-1056
1.905-4T...................................................    1545-1056
1.905-5T...................................................    1545-1056
1.911-1....................................................    1545-0067
                                                               1545-0070
1.911-2....................................................    1545-0067
                                                               1545-0070
1.911-3....................................................    1545-0067
                                                               1545-0070
1.911-4....................................................    1545-0067
                                                               1545-0070
1.911-5....................................................    1545-0067
                                                               1545-0070
1.911-6....................................................    1545-0067
                                                               1545-0070

[[Page 565]]

 
1.911-7....................................................    1545-0067
                                                               1545-0070
1.913-13...................................................    1545-0067
1.921-1T...................................................    1545-0190
                                                               1545-0884
                                                               1545-0935
                                                               1545-0939
1.921-2....................................................    1545-0884
1.921-3T...................................................    1545-0935
1.923-1T...................................................    1545-0935
1.924(a)-1T................................................    1545-0935
1.925(a)-1T................................................    1545-0935
1.925(b)-1T................................................    1545-0935
1.926(a)-1T................................................    1545-0935
1.927(a)-1T................................................    1545-0935
1.927(b)-1T................................................    1545-0935
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1.6162-1...................................................    1545-0087
1.6164-1...................................................    1545-0135
1.6164-2...................................................    1545-0135
1.6164-3...................................................    1545-0135
1.6164-5...................................................    1545-0135
1.6164-6...................................................    1545-0135
1.6164-7...................................................    1545-0135
1.6164-8...................................................    1545-0135
1.6164-9...................................................    1545-0135
1.6302-1...................................................    1545-0257
1.6302-2...................................................    1545-0098
                                                               1545-0257
1.6411-1...................................................    1545-0098
                                                               1545-0135
                                                               1545-0582
1.6411-2...................................................    1545-0098
                                                               1545-0582
1.6411-3...................................................    1545-0098
                                                               1545-0582
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1.6414-1...................................................    1545-0096
1.6425-1...................................................    1545-0170
1.6425-2...................................................    1545-0170
1.6425-3...................................................    1545-0170
1.6654-1...................................................    1545-0087
                                                               1545-0140
1.6654-2...................................................    1545-0087
1.6654-3...................................................    1545-0087
1.6654-4...................................................    1545-0087
1.6655-1...................................................    1545-0142
1.6655-2...................................................    1545-0142
1.6655-3...................................................    1545-0142
1.6655-7...................................................    1545-0123
1.6655(e)-1................................................    1545-1421
1.6661-3...................................................    1545-0988
                                                               1545-1031
1.6661-4...................................................    1545-0739
1.6662-3(c)................................................    1545-0889
1.6662-4(e) and (f)........................................    1545-0889
1.6662-6...................................................    1545-1426
1.6694-1...................................................    1545-0074
1.6694-2...................................................    1545-0074
1.6694-2(c)................................................    1545-1231
1.6694-3(e)................................................    1545-1231
1.6695-1...................................................    1545-0074
                                                               1545-1385
1.6695-2T..................................................    1545-1570
1.6696-1...................................................    1545-0074
                                                               1545-0240
1.6851-1...................................................    1545-0086
                                                               1545-0138
1.6851-2...................................................    1545-0086
                                                               1545-0138
1.7476-1...................................................    1545-0197
1.7476-2...................................................    1545-0197
1.7519-2T..................................................    1545-1036
1.7520-1...................................................    1545-1343
1.7520-2...................................................    1545-1343
1.7520-3...................................................    1545-1343
1.7520-4...................................................    1545-1343
1.7701(l)-3................................................    1545-1642
1.9100-1...................................................    1545-0074
1.9101-1...................................................    1545-0008
2.1-4......................................................    1545-0123
2.1-5......................................................    1545-0123
2.1-6......................................................    1545-0123
2.1-10.....................................................    1545-0123
2.1-11.....................................................    1545-0123
2.1-12.....................................................    1545-0123
2.1-13.....................................................    1545-0123
2.1-20.....................................................    1545-0123
2.1-22.....................................................    1545-0123
2.1-26.....................................................    1545-0123
3.2........................................................    1545-0123
4.954-1....................................................    1545-1068
4.954-2....................................................    1545-1068
5.6411-1...................................................    1545-0098
                                                               1545-0582
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
5c.44F-1...................................................    1545-0619
5c.128-1...................................................    1545-0123
5c.168(f)(8)-1.............................................    1545-0123
5c.168(f)(8)-2.............................................    1545-0123
5c.168(f)(8)-6.............................................    1545-0123
5c.168(f)(8)-8.............................................    1545-0123
5c.305-1...................................................    1545-0110
5c.442-1...................................................    1545-0152
5f.103-1...................................................    1545-0720
5f.103-3...................................................    1545-0720
5f.6045-1..................................................    1545-0715
6a.103A-2..................................................    1545-0123
                                                               1545-0720
6a.103A-3..................................................    1545-0720
7.465-1....................................................    1545-0712
7.465-2....................................................    1545-0712
7.465-3....................................................    1545-0712
7.465-4....................................................    1545-0712
7.465-5....................................................    1545-0712
7.936-1....................................................    1545-0217
7.999-1....................................................    1545-0216
7.6039A-1..................................................    1545-0015
7.6041-1...................................................    1545-0115
11.410-1...................................................    1545-0710
11.412(c)-7................................................    1545-0710
11.412(c)-11...............................................    1545-0710
12.7.......................................................    1545-0190
12.8.......................................................    1545-0191
12.9.......................................................    1545-0195
14a.422A-1.................................................    1545-0123
15A.453-1..................................................    1545-0228
16.3-1.....................................................    1545-0159
16A.126-2..................................................    1545-0074
16A.1255-1.................................................    1545-0184
16A.1255-2.................................................    1545-0184
18.1371-1..................................................    1545-0130
18.1378-1..................................................    1545-0130
18.1379-1..................................................    1545-0130
18.1379-2..................................................    1545-0130
20.2011-1..................................................    1545-0015
20.2014-5..................................................    1545-0015
                                                               1545-0260
20.2014-6..................................................    1545-0015
20.2016-1..................................................    1545-0015
20.2031-2..................................................    1545-0015
20.2031-3..................................................    1545-0015
20.2031-4..................................................    1545-0015
20.2031-6..................................................    1545-0015
20.2031-7..................................................    1545-0020
20.2031-10.................................................    1545-0015
20.2032-1..................................................    1545-0015
20.2032A-3.................................................    1545-0015
20.2032A-4.................................................    1545-0015
20.2032A-8.................................................    1545-0015
20.2039-4..................................................    1545-0015
20.2051-1..................................................    1545-0015
20.2053-3..................................................    1545-0015
20.2053-9..................................................    1545-0015
20.2053-10.................................................    1545-0015
20.2055-1..................................................    1545-0015
20.2055-2..................................................    1545-0015
                                                               1545-0092
20.2055-3..................................................    1545-0015
20.2056(b)-4...............................................    1545-0015
20.2056(b)-7...............................................    1545-0015
                                                               1545-1612
20.2056A-2.................................................    1545-1443
20.2056A-3.................................................    1545-1360
20.2056A-4.................................................    1545-1360
20.2056A-10................................................    1545-1360
20.2106-1..................................................    1545-0015
20.2106-2..................................................    1545-0015
20.2204-1..................................................    1545-0015
20.2204-2..................................................    1545-0015
20.6001-1..................................................    1545-0015
20.6011-1..................................................    1545-0015
20.6018-1..................................................    1545-0015
                                                               1545-0531
20.6018-2..................................................    1545-0015
20.6018-3..................................................    1545-0015
20.6018-4..................................................    1545-0015

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                                                               1545-0022
20.6036-2..................................................    1545-0015
20.6061-1..................................................    1545-0015
20.6065-1..................................................    1545-0015
20.6075-1..................................................    1545-0015
20.6081-1..................................................    1545-0015
                                                               1545-0181
20.6091-1..................................................    1545-0015
20.6161-1..................................................    1545-0015
                                                               1545-0181
20.6161-2..................................................    1545-0015
                                                               1545-0181
20.6163-1..................................................    1545-0015
20.6166-1..................................................    1545-0181
20.6166A-1.................................................    1545-0015
20.6166A-3.................................................    1545-0015
20.6324A-1.................................................    1545-0754
20.7520-1..................................................    1545-1343
20.7520-2..................................................    1545-1343
20.7520-3..................................................    1545-1343
20.7520-4..................................................    1545-1343
22.0.......................................................    1545-0015
25.2511-2..................................................    1545-0020
25.2512-2..................................................    1545-0020
25.2512-3..................................................    1545-0020
25.2512-5..................................................    1545-0020
25.2512-9..................................................    1545-0020
25.2513-1..................................................    1545-0020
25.2513-2..................................................    1545-0020
                                                               1545-0021
25.2513-3..................................................    1545-0020
25.2518-2..................................................    1545-0959
25.2522(a)-1...............................................    1545-0196
25.2522(c)-3...............................................    1545-0020
                                                               1545-0196
25.2523(a)-1...............................................    1545-0020
                                                               1545-0196
25.2523(f)-1...............................................    1545-0015
25.2701-2..................................................    1545-1241
25.2701-4..................................................    1545-1241
25.2701-5..................................................    1545-1273
25.2702-5..................................................    1545-1485
25.2702-6..................................................    1545-1273
25.6001-1..................................................    1545-0020
                                                               1545-0022
25.6011-1..................................................    1545-0020
25.6019-1..................................................    1545-0020
25.6019-2..................................................    1545-0020
25.6019-3..................................................    1545-0020
25.6019-4..................................................    1545-0020
25.6061-1..................................................    1545-0020
25.6065-1..................................................    1545-0020
25.6075-1..................................................    1545-0020
25.6081-1..................................................    1545-0020
25.6091-1..................................................    1545-0020
25.6091-2..................................................    1545-0020
25.6151-1..................................................    1545-0020
25.6161-1..................................................    1545-0020
25.7520-1..................................................    1545-1343
25.7520-2..................................................    1545-1343
25.7520-3..................................................    1545-1343
25.7520-4..................................................    1545-1343
26.2601-1..................................................    1545-0985
26.2632-1..................................................    1545-0985
26.2642-1..................................................    1545-0985
26.2642-2..................................................    1545-0985
26.2642-3..................................................    1545-0985
26.2642-4..................................................    1545-0985
26.2652-2..................................................    1545-0985
26.2662-1..................................................    1545-0015
                                                               1545-0985
26.2662-2..................................................    1545-0985
31.3102-3..................................................    1545-0029
                                                               1545-0059
                                                               1545-0065
31.3121(b)(19)-1...........................................    1545-0029
31.3121(d)-1...............................................    1545-0004
31.3121(i)-1...............................................    1545-0034
31.3121(k)-4...............................................    1545-0137
31.3121(r)-1...............................................    1545-0029
31.3121(s)-1...............................................    1545-0029
31.3121(v)(2)-1............................................    1545-1643
31.3302(a)-2...............................................    1545-0028
31.3302(a)-3...............................................    1545-0028
31.3302(b)-2...............................................    1545-0028
31.3302(e)-1...............................................    1545-0028
31.3306(c)(18)-1...........................................    1545-0029
31.3401(a)-1...............................................    1545-0029
31.3401(a)(6)..............................................    1545-1484
31.3401(a)(6)-1............................................    1545-0029
                                                               1545-0096
                                                               1545-0795
31.3401(a)(7)-1............................................    1545-0029
31.3401(a)(8)(A)-1 ........................................    1545-0029
                                                               1545-0666
31.3401(a)(8)(C)-1 ........................................    1545-0029
31.3401(a)(15)-1...........................................    1545-0182
31.3401(c)-1...............................................    1545-0004
31.3402(b)-1...............................................    1545-0010
31.3402(c)-1...............................................    1545-0010
31.3402(f)(1)-1............................................    1545-0010
31.3402(f)(2)-1............................................    1545-0010
                                                               1545-0410
31.3402(f)(3)-1............................................    1545-0010
31.3402(f)(4)-1............................................    1545-0010
31.3402(f)(4)-2............................................    1545-0010
31.3402(f)(5)-1............................................    1545-0010
                                                               1545-1435
31.3402(h)(1)-1............................................    1545-0029
31.3402(h)(3)-1............................................    1545-0010
31.3402(h)(3)-1............................................    1545-0029
31.3402(h)(4)-1............................................    1545-0010
31.3402(i)-(1).............................................    1545-0010
31.3402(i)-(2).............................................    1545-0010
31.3402(k)-1...............................................    1545-0065
31.3402(l)-(1).............................................    1545-0010
31.3402(m)-(1).............................................    1545-0010
31.3402(n)-(1).............................................    1545-0010
31.3402(o)-2...............................................    1545-0415
31.3402(o)-3...............................................    1545-0008
                                                               1545-0010
                                                               1545-0415
                                                               1545-0717
31.3402(p)-1...............................................    1545-0415
                                                               1545-0717
31.3402(q)-1...............................................    1545-0238
                                                               1545-0239
31.3404-1..................................................    1545-0029
31.3405(c)-1...............................................    1545-1341
31.3406(a)-1...............................................    1545-0112
31.3406(a)-2...............................................    1545-0112
31.3406(a)-3...............................................    1545-0112
31.3406(a)-4...............................................    1545-0112
31.3406(b)(2)-1............................................    1545-0112
31.3406(b)(2)-2............................................    1545-0112
31.3406(b)(2)-3............................................    1545-0112
31.3406(b)(2)-4............................................    1545-0112
31.3406(b)(2)-5............................................    1545-0112
31.3406(b)(3)-1............................................    1545-0112
31.3406(b)(3)-2............................................    1545-0112
31.3406(b)(3)-3............................................    1545-0112
31.3406(b)(3)-4............................................    1545-0112
31.3406(b)(4)-1............................................    1545-0112
31.3406(c)-1...............................................    1545-0112

[[Page 571]]

 
31.3406(d)-1...............................................    1545-0112
31.3406(d)-2...............................................    1545-0112
31.3406(d)-3...............................................    1545-0112
31.3406(d)-4...............................................    1545-0112
31.3406(d)-5...............................................    1545-0112
31.3406(e)-1...............................................    1545-0112
31.3406(f)-1...............................................    1545-0112
31.3406(g)-1...............................................    1545-0096
                                                               1545-0112
31.3406(g)-2...............................................    1545-0112
31.3406(g)-3...............................................    1545-0112
31.3406(h)-1...............................................    1545-0112
31.3406(h)-2...............................................    1545-0112
31.3406(h)-3...............................................    1545-0112
31.3406(i)-1...............................................    1545-0112
31.3501(a)-1T..............................................    1545-0771
31.3503-1..................................................    1545-0024
31.3504-1..................................................    1545-0029
31.6001-1..................................................    1545-0798
31.6001-2..................................................    1545-0034
                                                               1545-0798
31.6001-3..................................................    1545-0798
31.6001-4..................................................    1545-0028
31.6001-5..................................................    1545-0798
31.6001-6..................................................    1545-0029
                                                               1459-0798
31.6011(a)-1...............................................    1545-0029
                                                               1545-0034
                                                               1545-0035
                                                               1545-0059
                                                               1545-0074
                                                               1545-0718
                                                               1545-0256
31.6011(a)-2...............................................    1545-0001
                                                               1545-0002
31.6011(a)-3...............................................    1545-0028
31.6011(a)-3A..............................................    1545-0955
31.6011(a)-4...............................................    1545-0034
                                                               1545-0035
                                                               1545-0718
                                                               1545-1413
31.6011(a)-5...............................................    1545-0718
                                                               1545-0028
31.6011(a)-6...............................................    1545-0028
31.6011(a)-7...............................................    1545-0074
31.6011(a)-8...............................................    1545-0028
31.6011(a)-9...............................................    1545-0028
31.6011(a)-10..............................................    1545-0112
31.6011(b)-1...............................................    1545-0003
31.6011(b)-2...............................................    1545-0029
31.6051-1..................................................    1545-0008
                                                               1545-0182
                                                               1545-0458
31.6051-2..................................................    1545-0008
31.6051-3..................................................    1545-0008
31.6053-1..................................................    1545-0029
                                                               1545-0062
                                                               1545-0064
                                                               1545-0065
31.6053-2..................................................    1545-0008
31.6053-3..................................................    1545-0065
                                                               1545-0714
31.6053-4..................................................    1545-0065
31.6065(a)-1...............................................    1545-0029
31.6071(a)-1...............................................    1545-0001
                                                               1545-0028
                                                               1545-0029
31.6071(a)-1A..............................................    1545-0955
31.6081(a)-1...............................................    1545-0008
                                                               1545-0028
31.6091-1..................................................    1545-0028
                                                               1545-0029
31.6157-1..................................................    1545-0955
31.6205-1..................................................    1545-0029
31.6301(c)-1AT.............................................    1545-0035
                                                               1545-0112
                                                               1545-0257
31.6302-1..................................................    1545-1413
31.6302-2..................................................    1545-1413
31.6302-3..................................................    1545-1413
31.6302-4..................................................    1545-1413
31.6302(c)-2...............................................    1545-0001
                                                               1545-0257
31.6302(c)-2A..............................................    1545-0955
31.6302(c)-3...............................................    1545-0257
31.6402(a)-2...............................................    1545-0256
31.6413(a)-1...............................................    1545-0029
31.6413(a)-2...............................................    1545-0029
                                                               1545-0256
31.6413(c)-1...............................................    1545-0029
                                                               1545-0171
31.6414-1..................................................    1545-0029
32.1.......................................................    1545-0029
                                                               1545-0415
32.2.......................................................    1545-0029
35a.3406-2.................................................    1545-0112
35a.9999-3.................................................    1545-0112
35a.9999-5.................................................    1545-0029
36.3121(l)(1)-1............................................    1545-0137
36.3121(l)(1)-2............................................    1545-0137
36.3121(l)(3)-1............................................    1545-0123
36.3121(1)(7)-1............................................    1545-0123
36.3121(1)(10)-1...........................................    1545-0029
36.3121(1)(10)-3...........................................    1545-0029
36.3121(1)(10)-4...........................................    1545-0257
40.6302(c)-3(b)(2)(ii).....................................    1545-1296
40.6302(c)-3(b)(2)(iii)....................................    1545-1296
40.6302(c)-3(e)............................................    1545-1296
40.6302(c)-3(f)(2)(ii).....................................    1545-1296
41.4481-1..................................................    1545-0143
41.4481-2..................................................    1545-0143
41.4483-3..................................................    1545-0143
41.6001-1..................................................    1545-0143
41.6001-2..................................................    1545-0143
41.6001-3..................................................    1545-0143
41.6071(a)-1...............................................    1545-0143
41.6081(a)-1...............................................    1545-0143
41.6091-1..................................................    1545-0143
41.6109-1..................................................    1545-0143
41.6151(a)-1...............................................    1545-0143
41.6156-1..................................................    1545-0143
41.6161(a)(1)-1............................................    1545-0143
44.4401-1..................................................    1545-0235
44.4403-1..................................................    1545-0235
44.4412-1..................................................    1545-0236
44.4901-1..................................................    1545-0236
44.4905-1..................................................    1545-0236
44.4905-2..................................................    1545-0236
44.6001-1..................................................    1545-0235
44.6011(a)-1...............................................    1545-0235
                                                               1545-0236
44.6071-1..................................................    1545-0235
44.6091-1..................................................    1545-0235
44.6151-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-1..................................................    1545-0235
44.6419-2..................................................    1545-0235
46.4371-4..................................................    1545-0023
46.4374-1..................................................    1545-0023
46.4701-1..................................................    1545-0023
                                                               1545-0257
48.4041-4..................................................    1545-0023
48.4041-5..................................................    1545-0023
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48.4041-7..................................................    1545-0023
48.4041-9..................................................    1545-0023
48.4041-10.................................................    1545-0023
48.4041-11.................................................    1545-0023
48.4041-12.................................................    1545-0023
48.4041-13.................................................    1545-0023
48.4041-18.................................................    1545-0023
48.4041-19.................................................    1545-0023
48.4041-20.................................................    1545-0023
48.4041-21.................................................    1545-1270
48.4042-2..................................................    1545-0023
48.4052-1..................................................    1545-1418
48.4061(a)-1...............................................    1545-0023
48.4061(a)-2...............................................    1545-0023
48.4061(b)-3...............................................    1545-0023
48.4064-1..................................................    1545-0014
                                                               1545-0242
48.4071-1..................................................    1545-0023
48.4073-1..................................................    1545-0023
48.4073-3..................................................    1545-0023
                                                               1545-1074
                                                               1545-1087
48.4081-2..................................................    1545-1270
                                                               1545-1418
48.4081-3..................................................    1545-1270
                                                               1545-1418
48.4081-4(b)(2)(ii)........................................    1545-1270
48.4081-4(b)(3)(i).........................................    1545-1270
48.4081-4(c)...............................................    1545-1270
48.4081-6(c)(1)(ii)........................................    1545-1270
48.4081-7..................................................    1545-1270
                                                               1545-1418
48.4082-2..................................................    1545-1418
48.4082-6..................................................    1545-1418
48.4082-7..................................................    1545-1418
48.4091-3..................................................    1545-1418
48.4101-1..................................................    1545-1418
48.4101-2..................................................    1545-1418
48.4161(a)-1...............................................    1545-0723
48.4161(a)-2...............................................    1545-0723
48.4161(a)-3...............................................    1545-0723
48.4161(b)-1...............................................    1545-0723
                                                               1545-0723
48.4216(a)-2...............................................    1545-0023
48.4216(a)-3...............................................    1545-0023
48.4216(c)-1...............................................    1545-0023
48.4221-1..................................................    1545-0023
48.4221-2..................................................    1545-0023
48.4221-3..................................................    1545-0023
48.4221-4..................................................    1545-0023
48.4221-5..................................................    1545-0023
48.4221-6..................................................    1545-0023
48.4221-7..................................................    1545-0023
48.4222(a)-1...............................................    1545-0023
                                                               1545-0014
48.4223-1..................................................    1545-0023
                                                               1545-0723
                                                               1545-0723
                                                               1545-0723
                                                               1545-0257
48.6302(c)-1...............................................    1545-0023
                                                               1545-0257
48.6412-1..................................................    1545-0723
48.6416(a)-1...............................................    1545-0023
                                                               1545-0723
48.6416(a)-2...............................................    1545-0723
48.6416(a)-3...............................................    1545-0723
48.6416(b)(2)-3............................................    1545-1087
48.6416(b)(1)-1............................................    1545-0723
48.6416(b)(1)-2............................................    1545-0723
48.6416(b)(1)-3............................................    1545-0723
48.6416(b)(1)-4............................................    1545-0723
48.6416(b)(2)-1............................................    1545-0723
48.6416(b)(2)-2............................................    1545-0723
48.6416(b)(2)-3............................................    1545-0723
                                                               1545-1087
48.6416(b)(2)-4............................................    1545-0723
48.6416(b)(3)-1............................................    1545-0723
48.6416(b)(3)-2............................................    1545-0723
48.6416(b)(3)-3............................................    1545-0723
48.6416(b)(4)-1............................................    1545-0723
48.6416(b)(5)-1............................................    1545-0723
48.6416(c)-1...............................................    1545-0723
48.6416(e)-1...............................................    1545-0023
                                                               1545-0723
48.6416(f)-1...............................................    1545-0023
                                                               1545-0723
48.6416(g)-1...............................................    1545-0723
48.6416(h)-1...............................................    1545-0723
48.6420(c)-2...............................................    1545-0023
48.6420(f)-1...............................................    1545-0023
48.6420-1..................................................    1545-0162
                                                               1545-0723
48.6420-2..................................................    1545-0162
                                                               1545-0723
48.6420-3..................................................    1545-0162
                                                               1545-0723
48.6420-4..................................................    1545-0162
                                                               1545-0723
48.6420-5..................................................    1545-0162
                                                               1545-0723
48.6420-6..................................................    1545-0162
                                                               1545-0723
48.6421-0..................................................    1545-0162
                                                               1545-0723
48.6421-1..................................................    1545-0162
                                                               1545-0723
48.6421-2..................................................    1545-0162
                                                               1545-0723
48.6421-3..................................................    1545-0162
                                                               1545-0723
48.6421-4..................................................    1545-0162
                                                               1545-0723
48.6421-5..................................................    1545-0162
                                                               1545-0723
48.6421-6..................................................    1545-0162
                                                               1545-0723
48.6421-7..................................................    1545-0162
                                                               1545-0723
48.6424-0..................................................    1545-0723
48.6424-1..................................................    1545-0723
48.6424-2..................................................    1545-0723
48.6424-3..................................................    1545-0723
48.6424-4..................................................    1545-0723
48.6424-5..................................................    1545-0723
48.6424-6..................................................    1545-0723
48.6427-0..................................................    1545-0723
48.6427-1..................................................    1545-0023
                                                               1545-0162
                                                               1545-0723
48.6427-2..................................................    1545-0162
                                                               1545-0723
48.6427-3..................................................    1545-0723
48.6427-4..................................................    1545-0723
48.6427-5..................................................    1545-0723
48.6427-8..................................................    1545-1418
48.6427-9..................................................    1545-1418
48.6427-10.................................................    1545-1418
48.6427-11.................................................    1545-1418
49.4251-1..................................................    1545-1075
49.4251-2..................................................    1545-1075
49.4251-4(d)(2)............................................    1545-1628
49.4253-3..................................................    1545-0023
49.4253-4..................................................    1545-0023

[[Page 573]]

 
49.4264(b)-1...............................................    1545-0023
                                                               1545-0226
                                                               1545-0226
                                                               1545-0912
                                                               1545-0912
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
                                                               1545-0225
                                                               1545-0224
                                                               1545-0230
49.4271-1(d)...............................................    1545-0685
52.4682-1(b)(2)(iii).......................................    1545-1153
52.4682-2(b)...............................................    1545-1153
                                                               1545-1361
52.4682-2(d)...............................................    1545-1153
                                                               1545-1361
52.4682-3(c)(2)............................................    1545-1153
52.4682-3(g)...............................................    1545-1153
52.4682-4(f)...............................................    1545-1153
                                                               1545-0257
52.4682-5(d)...............................................    1545-1361
52.4682-5(f)...............................................    1545-1361
53.4940-1..................................................    1545-0052
                                                               1545-0196
53.4942(a)-1...............................................    1545-0052
53.4942(a)-2...............................................    1545-0052
53.4942(a)-3...............................................    1545-0052
53.4942(b)-3...............................................    1545-0052
53.4945-1..................................................    1545-0052
53.4945-4..................................................    1545-0052
53.4945-5..................................................    1545-0052
53.4945-6..................................................    1545-0052
53.4947-1..................................................    1545-0196
53.4947-2..................................................    1545-0196
53.4948-1..................................................    1545-0052
53.4961-2..................................................    1545-0024
53.4963-1..................................................    1545-0024
53.6001-1..................................................    1545-0052
53.6011-1..................................................    1545-0049
                                                               1545-0052
                                                               1545-0092
                                                               1545-0196
53.6065-1..................................................    1545-0052
53.6071-1..................................................    1545-0049
53.6081-1..................................................    1545-0066
                                                               1545-0148
53.6161-1..................................................    1545-0575
54.4972-1..................................................    1545-0197
54.4975-7..................................................    1545-0575
54.4977-1T.................................................    1545-0771
54.4980B-6.................................................    1545-1581
54.4980B-7.................................................    1545-1581
54.4980B-8.................................................    1545-1581
54.4981A-1T................................................    1545-0203
54.6011-1..................................................    1545-0575
54.6011-1T.................................................    1545-0575
54.9801-3T.................................................    1545-1537
54.9801-4T.................................................    1545-1537
54.9801-5T.................................................    1545-1537
54.9801-6T.................................................    1545-1537
55.6001-1..................................................    1545-0123
55.6011-1..................................................    1545-0999
                                                               1545-0123
                                                               1545-1016
55.6061-1..................................................    1545-0999
55.6071-1..................................................    1545-0999
56.4911-6..................................................    1545-0052
56.4911-7..................................................    1545-0052
56.4911-9..................................................    1545-0052
56.4911-10.................................................    1545-0052
56.6001-1..................................................    1545-1049
56.6011-1..................................................    1545-1049
56.6081-1..................................................    1545-1049
56.6161-1..................................................    1545-1049
                                                               1545-0257
145.4051-1.................................................    1545-0745
145.4052-1.................................................    1545-0120
                                                               1545-0745
                                                               1545-1076
                                                               1545-0745
                                                               1545-1076
145.4061-1.................................................    1545-0745
                                                               1545-0257
                                                               1545-0230
                                                               1545-0224
156.6001-1.................................................    1545-1049
156.6011-1.................................................    1545-1049
156.6081-1.................................................    1545-1049
156.6161-1.................................................    1545-1049
301.6011-2.................................................    1545-0225
                                                               1545-0350
                                                               1545-0387
                                                               1545-0441
                                                               1545-0957
301.6017-1.................................................    1545-0090
301.6034-1.................................................    1545-0092
301.6035-1.................................................    1545-0123
301.6036-1.................................................    1545-0013
                                                               1545-0773
301.6047-1.................................................    1545-0367
                                                               1545-0957
301.6057-1.................................................    1545-0710
301.6057-2.................................................    1545-0710
301.6058-1.................................................    1545-0710
301.6059-1.................................................    1545-0710
301.6103(c)-1..............................................    1545-0280
301.6104(a)-1..............................................    1545-0495
301.6104(a)-5..............................................    1545-0056
301.6104(a)-6..............................................    1545-0056
301.6104(b)-1..............................................    1545-0094
                                                               1545-0742
301.6104(d)-1..............................................    1545-1655
301.6104(d)-2..............................................    1545-1655
301.6104(d)-3..............................................    1545-1655
301.6109-1.................................................    1545-0003
                                                               1545-0295
                                                               1545-0367
                                                               1545-0387
                                                               1545-0957
                                                               1545-1461
301.6109-3.................................................    1545-1564
301.6110-3.................................................    1545-0074
301.6110-5.................................................    1545-0074
301.6111-1T................................................    1545-0865
                                                               1545-0881
301.6111-2T................................................    1545-0865
                                                               1545-1687
301.6112-1T................................................    1545-0865
                                                               1545-1686
301.6114-1.................................................    1545-1126
                                                               1545-1484
301.6222(a)-2T.............................................    1545-0790
301.6222(b)-1T.............................................    1545-0790
301.6222(b)-2T.............................................    1545-0790
301.6222(b)-3T.............................................    1545-0790
301.6227(b)-1T.............................................    1545-0790
                                                               1545-0790
301.6231(a)(7)-1...........................................    1545-0790
301.6241-1T................................................    1545-0130
301.6316-4.................................................    1545-0074
301.6316-5.................................................    1545-0074
301.6316-6.................................................    1545-0074
301.6316-7.................................................    1545-0029

[[Page 574]]

 
301.6324A-1................................................    1545-0015
301.6361-1.................................................    1545-0074
                                                               1545-0024
301.6361-2.................................................    1545-0024
301.6361-3.................................................    1545-0074
301.6402-2.................................................    1545-0024
                                                               1545-0073
                                                               1545-0091
301.6402-3.................................................    1545-0055
                                                               1545-0073
                                                               1545-0091
                                                               1545-0132
301.6402-5.................................................    1545-0928
301.6404-1.................................................    1545-0024
301.6404-2T................................................    1545-0024
301.6404-3.................................................    1545-0024
301.6405-1.................................................    1545-0024
301.6501(c)-1..............................................    1545-1241
                                                               1545-1637
301.6501(d)-1..............................................    1545-0074
                                                               1545-0430
301.6501(o)-2..............................................    1545-0728
301.6511(d)-1..............................................    1545-0582
                                                               1545-0024
301.6511(d)-2..............................................    1545-0582
                                                               1545-0024
301.6511(d)-3..............................................    1545-0024
                                                               1545-0582
301.6652-2.................................................    1545-0092
301.6656-1.................................................    1545-0794
301.6656-2.................................................    1545-0794
301.6685-1.................................................    1545-0092
301.6689-1T................................................    1545-1056
301.6707-1T................................................    1545-0865
                                                               1545-0881
301.6708-1T................................................    1545-0865
301.6712-1.................................................    1545-1126
301.6723-1A(d).............................................    1545-0909
301.6903-1.................................................    1545-0013
301.6905-1.................................................    1545-0074
301.7001-1.................................................    1545-0123
301.7101-1.................................................    1545-1029
301.7207-1.................................................    1545-0092
301.7216-2.................................................    1545-0074
301.7216-2(o)..............................................    1545-1209
301.7425-3.................................................    1545-0854
301.7430-2(c)..............................................    1545-1356
301.7507-8.................................................    1545-0123
301.7507-9.................................................    1545-0123
301.7513-1.................................................    1545-0429
301.7517-1.................................................    1545-0015
301.7605-1.................................................    1545-0795
301.7623-1.................................................    1545-0409
                                                               1545-1534
301.7654-1.................................................    1545-0803
301.7701-3.................................................    1545-1486
301.7701-4.................................................    1545-1465
301.7701-7.................................................    1545-1600
301.7701-16................................................    1545-0795
301.7701(b)-1..............................................    1545-0089
301.7701(b)-2..............................................    1545-0089
301.7701(b)-3..............................................    1545-0089
301.7701(b)-4..............................................    1545-0089
301.7701(b)-5..............................................    1545-0089
301.7701(b)-6..............................................    1545-0089
301.7701(b)-7..............................................    1545-0089
                                                               1545-1126
301.7701(b)-9..............................................    1545-0089
301.7805-1.................................................    1545-0805
301.9001-1.................................................    1545-0220
301.9100-2.................................................    1545-1488
301.9100-3.................................................    1545-1488
301.9100-4T................................................    1545-0016
                                                               1545-0042
                                                               1545-0074
                                                               1545-0129
                                                               1545-0172
                                                               1545-0619
301.9100-6T................................................    1545-0872
301.9100-7T................................................    1545-0982
301.9100-8.................................................    1545-1112
301.9100-11T...............................................    1545-0123
301.9100-12T...............................................    1545-0026
                                                               1545-0074
                                                               1545-0172
                                                               1545-1027
301.9100-14T...............................................    1545-0046
301.9100-15T...............................................    1545-0046
301.9100-16T...............................................    1545-0152
302.1-7....................................................    1545-0024
305.7701-1.................................................    1545-0823
305.7871-1.................................................    1545-0823
404.6048-1.................................................    1545-0160
420.0-1....................................................    1545-0710
Part 502...................................................    1545-0844
Part 503...................................................    1545-0837
Part 509...................................................    1545-0846
Part 513...................................................    1545-0834
Part 514...................................................    1545-0845
Part 516...................................................    1545-0841
Part 517...................................................    1545-0849
Part 520...................................................    1545-0833
Part 521...................................................    1545-0848
601.104....................................................    1545-0233
601.105....................................................    1545-0091
601.201....................................................    1545-0019
                                                               1545-0819
601.204....................................................    1545-0152
601.401....................................................    1545-0257
601.504....................................................    1545-0150
601.601....................................................    1545-0800
601.602....................................................    1545-0295
                                                               1545-0387
                                                               1545-0957
601.702....................................................    1545-0429
------------------------------------------------------------------------


(26 U.S.C. 7805)

[T.D. 8011, 50 FR 10222, Mar. 14, 1985]

    Editorial Note: For Federal Register citations affecting 
Sec. 602.101, see the List of CFR Sections Affected in the Findings Aids 
section of 26 CFR part 600-end.

    Effective Date Notes: 1. By T.D. 8734, 62 FR 53498, Oct. 14, 1997, 
the table in Sec. 602.101 was amended by removing the entries for 
1.1441-8T, 1.1461-3, 1.1461-4, 35a.9999-3, part 502, part 503, part 516, 
part 517, and part 520; adding entries for 1.1441-1, 1.1441-4, 11.1441-
8, 1.1441-9, 31.3401(a)(6), and 301.6114-1; and revising the entries for 
1.1441-5, 1.1441-6, 1.1461-1, and 301.6402-3, effective Jan. 1, 1999. At 
63 FR 2723, Jan. 16, 1998, the entry for ``11.1441-8'' was corrected to 
read ``1.1441-8'', effective Jan. 1, 1999. By T.D. 8804, 63 FR 72183, 
Dec. 31, 1998, the effective date was delayed to Jan. 1, 2000. By T.D. 
8856, 64 FR 73408, Dec. 30, 1999, the effective date was delayed to Jan. 
1, 2001.

[[Page 575]]

For the convenience of the user, the revised text is set forth as 
follows:

Sec. 602.101  OMB Control numbers.

      

                                * * * * *

------------------------------------------------------------------------
                                                             Current OMB
     CFR part or section where identified and described      control No.
------------------------------------------------------------------------
                      *      *      *      *      *
1.1441-5...................................................    1545-0096
                                                               1545-0795
                                                               1545-1484
1.1441-6...................................................    1545-0055
                                                               1545-0795
                                                               1545-1484
1.1461-1...................................................    1545-0054
                                                               1545-0055
                                                               1545-0795
                                                               1545-1484
                      *      *      *      *      *
301.6402-3.................................................    1545-0055
                                                               1545-0073
                                                               1545-0091
                                                               1545-0132
                                                               1545-1484
                      *      *      *      *      *
------------------------------------------------------------------------

    2. By T.D. 8859, 65 FR 2329, Jan. 14, 2000, the table in 
Sec. 602.101, paragraph (b) was amended by revising the entry for 1.42-5 
and by adding an entry for 1.42-17, effective Jan. 1, 2001. For the 
convenience of the user, the superseded text is set forth as follows:

Sec. 602.101  OMB control numbers.

                                * * * * *

    (b) * * *

------------------------------------------------------------------------
                                                            Current OMB
   CFR part or section where identified and described       control No.
------------------------------------------------------------------------
                  *        *        *        *        *
1.42-5..................................................       1545-1291
 
                 *        *        *         *        *
------------------------------------------------------------------------

    3. By T.D. 8873, 65 FR 6008, Feb. 8, 2000, Sec. 602.101 was amended 
by adding contol number 1545-1632 for 1.402(f)-1 and 1.411(a)-11, 
effective Jan. 1, 2001.

[[Page 577]]

        ................................................................


List of CFR Sections Affected




All changes in this volume of the Code of Federal Regulations which were 
made by documents published in the Federal Register since January 1, 
1986, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 1986, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, and 1973  1985,'' published in seven 
separate volumes.

                                  1986

26 CFR
                                                                   51 FR
                                                                    Page
Chapter I
31  Authority citation amended..............................40168, 45107
31.3402(f)(1)-1T  Added (temporary)................................45107
31.3402(f)(2)-1T  Added (temporary)................................45107
31.6011(a)-3AT  Added (temporary)..................................40168
31.6053-3  Technical correction.....................................6736
31.6053-4T  (b) corrected...........................................6736
31.6071(a)-1T  Added (temporary)...................................40169
31.6157-1T  Added (temporary)......................................40169
31.6302(c)-2AT  Added (temporary)..................................40169
35a  Authority citation added; section authority citations removed
                                                                   45464
35a.9999-5  (e) correctly designated...............................11447
    (a) through (f) amended........................................45464

                                  1987

26 CFR
                                                                   52 FR
                                                                    Page
31  Authority citation amended.......................21511, 33582, 45633
31.3402(f)(1)-1  (e) revised.......................................45633
31.3402(f)(1)-1T  Removed..........................................45633
31.3402(f)(2)-1  (g)(1) revised....................................45633
31.3402(f)(2)-1T  Removed..........................................45633
31.6051-1  (h) amended (temporary).................................34357
    Correctly designated...........................................41388
31.6051-2  (c) amended (temporary).................................34357
31.6053-3  (f)(1)(iv) amended; (j)(19) added; (b)(5), (h), and 
        (j)(9) revised.............................................21511
31.6053-3T  Removed................................................21511
31.6053-4  Added...................................................21513
31.6053-4T  Removed................................................21511
31.6205-2  Added...................................................33582
35a  Authority citation amended....................................13432
35a.3406-1  Heading added..........................................13432
    Heading revised; text added....................................44866
35a.3406-2  Added..................................................13432
35a.9999-1  Amended................................................44873
35a.9999-2  Amended................................................44874
35a.9999-3  Amended................................................44874

                                  1988

26 CFR
                                                                   53 FR
                                                                    Page
Chapter I
31  Authority citation amended..............................32219, 34735
31.6011(a)-3A  Redesignated from 31.6011(a)-3AT and heading and 
        (b) amended................................................34736
31.6011(a)-3AT  Redesignated as 31.6011(a)-3A and heading and (b) 
        amended....................................................34736
31.6011(a)-10  Added...............................................35811
31.6051-1  (h) redesignated as (i); new (h) added..................32220
31.6071(a)-1A  Redesignated from 31.6071(a)-1T and heading and (a) 
        amended....................................................34736

[[Page 578]]

31.6071(a)-1T  Redesignated as 31.6071(a)-1A and heading and (a) 
        amended....................................................34736
31.6157-1  Amended.................................................34736
31.6157-1T  Removed................................................34736
31.6302(c)-2A  Redesignated from 31.6302(c)-2AT and heading and 
        (c) amended................................................34736
31.6302(c)-2AT  Redesignated as 31.6302(c)-2A and heading and (c) 
        amended....................................................34736
35a.9999-5  (f) removed (temporary)................................17928

                                  1989

26 CFR
                                                                   54 FR
                                                                    Page
Chapter I
31  Authority citation amended.....................................51027
31.3121(a)-1  (h) amended..........................................51027
31.3121(a)-2T  Added...............................................51027
31.3231(e)-1  (a)(3)(iv) amended...................................51027
31.3231(e)-3T  Added...............................................51027
31.3306(b)-1  (h) amended..........................................51028
31.3306(b)-2T  Added...............................................51028
31.3401(a)-1  (b)(2) amended.......................................51028
31.3401(a)-2T  Added...............................................51028
35a.3406-1  (a)(1), (2)(ii)(A), and (3)(ii), (d)(2)(ii), (e), (j) 
        and Examples (1) and (2), and Appendix amended; (b)(5)(i), 
        (c), (d)(1) and (2)(i), (f), (h), and (j) Examples (6) and 
        (7) revised................................................14345
    (b)(5)(i)(B) corrected.........................................18713
35a.9999-1  Amended................................................14350
35a.9999-2  Amended................................................14350
35a.9999-3  Amended................................................14351

                                  1990

26 CFR
                                                                   55 FR
                                                                    Page
Chapter I
31.3121(a)-1  (h) amended..........................................51696
31.3121(a)-2T  Redesignated as 31.3121(a)-3 and revised............51696
31.3121(a)-3  Redesignated from 31.3121(a)-2T and revised..........51696
31.3231(e)-1  (a)(3)(iv) amended...................................51696
31.3231(e)-3  Redesignated from 31.3231(e)-3T and revised..........51696
31.3231(e)-3T  Redesignated as 31.3231(e)-3 and revised............51696
31.3306(b)-1  (h) amended..........................................51697
31.3306(b)-2  Redesignated from 31.3306(b)-2T and revised..........51697
31.3306(b)-2T  Redesignated as 31.3306(b)-2 and revised............51697
31.3401(a)-1  (b)(2) amended.......................................51697
31.3401(a)-2T  Redesignated as 31.3401(a)-4 and revised............51698
31.3401(a)-4  Redesignated from 31.3401(a)-2T and revised..........51698
35a  Authority citation amended....................................39401
35a.3406-1  (f) correctly removed..................................37874
    (a)(1), (b)(2) flush text, (5)(i)(B), (c)(1)(ii), (2)(i), (3) 
introductory text, (vii), (viii) and (d)(2)(i) amended; (c)(3)(ix) 
removed............................................................39401
    (a)(3)(x) added; (b)(3), (5)(i) introductory text, (ii), 
(c)(3)(vi), (d)(1), (f)(1) introductory text, (i) through (iii), 
(2)(iv), (3) and (j) revised; (f)(2)(ii), (iii), (4)(i), (g) and 
appendix amended...................................................39402
35a.9999-5  (a), (b), (c), and (e) amended (temporary).............19627

                                  1991

26 CFR
                                                                   56 FR
                                                                    Page
Chapter I
31  Authority citation amended.....................................29570
      corrected.....................................................8911
31.3121(b)(7)-2  Added.............................................29570
    (d)(2)(iii)(D) and (3)(i) Example 2 corrected..................40246
31.6051-1  (i) amended.............................................15042
31.6051-2  (c) amended.............................................15042
31.6302(c)-1  (a) introductory text, (1)(i) introductory text and 
        (ii) revised...............................................13401
    (a)(1)(ii)(b) corrected........................................26191
    (a)(1)(ii)(a) corrected........................................35816
31.6302(c)-2  (a)(1) and (b)(2) amended; (a)(2) revised............13403
35a.3406-1  (c)(3)(vi)(A), (B), (C), (d)(1)(i), (ii) and (iii) 
        removed; CFR correction....................................42687

[[Page 579]]

    (a)(1), (e), (j) Example 4 and Appendix amended; (c)(3)(iv) 
through (viii) redesignated as (c)(3)(v) through (ix); 
(c)(3)(iii), new (c)(3)(ix), (f)(2)(iii), (iv), (v), (3), (4)(ii) 
and (h) revised; (c)(3)(iv) and (k) added..........................47905

                                  1992

26 CFR
                                                                   57 FR
                                                                    Page
Chapter I
31  Authority citation amended.......................13031, 15241, 44102
    Technical correction...........................................61612
31.3121(b)(19)-1  (a)(1) amended...................................15241
31.3306(c)(18)-1  (a)(1) amended...................................15241
31.3402(f)(1)-1  OMB number and authority citation removed.........15241
31.3405(c)-1T  Added...............................................48172
31.3406-0  Added...................................................13031
31.3406(d)-5  Added................................................13031
31.6302-0  Added...................................................44102
31.6302-1  Added...................................................44102
    (h)(1) corrected...............................................48724
31.6302-2  Added...................................................44105
31.6302-3  Added...................................................44106
31.6302(c)-1  Heading, (a) heading and (1)(ii) introductory text 
        revised....................................................44106
31.6302(c)-2  Heading and (a)(2) heading revised...................44106
35a  Authority citation amended....................................13035
35a.3406-1  Removed................................................13035

                                  1993

26 CFR
                                                                   58 FR
                                                                    Page
Chapter I
31  Authority citation amended.....................................68035
31.6011(a)-4  Heading, (a) heading and (1) revised; (b) 
        redesignated as (c); (a)(1), (2), (3) headings and new (b) 
        added......................................................68035
31.6071(a)-1  (a) heading revised..................................68035
31.6302-1  (e)(1)(iii) and (iv) revised; (e)(2) amended............68035
31.6302-3  (b) revised.............................................68035
31.6302-4  Added...................................................68036

                                  1994

26 CFR
                                                                   59 FR
                                                                    Page
Chapter I
31  Authority citation amended..............................35416, 65940
31.3121(a)-1  (a) redesignated as (a)(1); (a)(2) added.............66189
31.3201-1  Revised.................................................66189
31.3201-2  Revised.................................................66189
31.3202-1  (b) and (f) revised.....................................66189
31.3211-1  Revised.................................................66190
31.3211-2  Revised.................................................66190
31.3221-1  (a) and (b) revised; (d) removed........................66190
31.3221-2  Revised.................................................66190
31.3211-3  Added....................................................9666
31.3221-3  Added....................................................9666
31.3231(a)-1  (a)(1) revised; (c) and (d) redesignated as (d) and 
        (e); new (c) and (f) added.................................66191
31.3231(e)-1  Revised..............................................66191
31.3231(e)-2  Added................................................66191
31.3231(e)-2T  Removed.............................................66191
31.3231(e)-3  Removed..............................................66191
31.3402(f)(5)-2T  Added............................................65714
31.3402(r)-1T  Added...............................................65940
31.6302-1  (f)(3)(ii)  amended......................................6218
31.6302-1T  Added..................................................35416
31.6302(c)-3T  Added...............................................35417
35a  Authority citation amended....................................13456
35a.3406-3  Added..................................................13456

                                  1995

26 CFR
                                                                   60 FR
                                                                    Page
31  Authority citation amended................53510, 65238, 66112, 66141
31.3402(p)-1  (a) amended..........................................49215
31.3402(r)-1  Added................................................65238
31.3402(r)-1T  Removed.............................................65238
31.3405(c)-1  Added................................................49215
31.3405(c)-1T  Removed.............................................49218
31.3406-0  Revised.................................................66112
31.3406(a)-1  Added................................................66114
31.3406(a)-2  Added................................................66114
31.3406(a)-3  Added................................................66114
31.3406(a)-4  Added................................................66115
31.3406(c)-1  Added................................................66119
31.3406(d)-1  Added................................................66123
31.3406(d)-2  Added................................................66125
31.3406(d)-3  Added................................................66125
31.3406(d)-4  Added................................................66125
31.3406(e)-1  Added................................................66127
31.3406(f)-1  Added................................................66127
31.3406(g)-1  Added................................................66128
31.3406(g)-2  Added................................................66128

[[Page 580]]

31.3406(g)-3  Added................................................66129
31.3406(h)-1  Added................................................66130
31.3406(h)-2  Added................................................66130
31.3406(h)-3  Added................................................66131
31.3406(i)-1  Added................................................66133
31.3406(b)(2)-1  Added.............................................66115
31.3406(b)(2)-2  Added.............................................66115
31.3406(b)(2)-3  Added.............................................66116
31.3406(b)(2)-4  Added.............................................66117
31.3406(b)(2)-5  Added.............................................66117
31.3406(b)(3)-1  Added.............................................66117
31.3406(b)(3)-2  Added.............................................66118
31.3406(b)(3)-3  Added.............................................66119
31.3406(b)(3)-4  Added.............................................66119
31.3406(b)(4)-1  Added.............................................66119
31.3505-1  (b)(1), (2) Examples 1 and 2, (d)(1) and (2)(iii) 
        amended; (d)(3) and (g) added..............................39110
31.6011(a)-4  (b) revised..........................................53510
31.6011(a)-4T  Added...............................................53511
31.6011(a)-5  (a)(1) amended; authority citation removed...........66133
31.6011(a)-6  (a)(1) amended.......................................66133
31.6051-1  (d)(1) redesignated as (d)(1)(i); new (d)(1)(ii) added; 
        (d)(2) revised; eff. 1-1-97................................66141
31.6051-2  (c) amended; eff. 1-1-97................................66141
31.6051-4  Added...................................................66133
31.6071(a)-1  (a)(3)(i) removed; (a)(3)(ii) redesignated as 
        (a)(3)(i); new (a)(3)(ii) added; eff. 1-1-97...............66141
31.6081(a)-1  (a)(3) revised; eff. 1-1-97..........................66142
31.6413(a)-3  Added................................................66133
35a  Authority citation amended....................................66134
35a.3406-2  Removed................................................66134
35a.9999-0T  Added.................................................66134

                                  1996

26 CFR
                                                                   61 FR
                                                                    Page
31  Technical correction...............................7214, 9639, 40993
    Authority citation amended.....................................27008
31.3406(d)-4  (a)(3) and (b)(1)(iii) corrected.....................11307
    (a)(4)(i), (b)(2)-2  (d), (h)-1  (d), (e) and (f), (h)-2  
(b)(2)(i) corrected; (d)(1) correctly designated...................12135
    (g)-1  (d) added...............................................17574
31.6011(a)-4  (b) amended; (a)-4T   removed........................27008
31.6302-1T  (h)(1)(ii)(A) redesignated as (h)(1)(ii)(A)(1); new 
        (h)(1)(ii)(A)(1) amended; (h)(1)(ii)(A)(2) added; (h)(2), 
        (3), (7) and (8) revised...................................11549
33  Removed..........................................................516
35a  Authority citation corrected..................................11308
35a.3406-2  Reinstated; (l) correctly added........................11308
38  Removed..........................................................516

                                  1997

26 CFR
                                                                   62 FR
                                                                    Page
31  Authority citation amended...................24, 33009, 37492, 53493
31.0-1  (a) amended................................................37492
31.0-3  (f) amended................................................37493
31.3401(a)(6)-1  Heading, revised; (e) amended; (f) added; 
        authority citation removed; eff. 1-1-99....................53493
31.3402  (f)(5)-1  (a) heading, (b) heading and (c) added; (a) 
        amended; (f)(5)-2T and authority citation removed.............24
31.3406-0  Table amended; eff. 1-1-99..............................53493
31.3406(d)-3  (a) and (b) amended; (c) revised; eff. 1-1-99........53493
31.3406(g)-1  (e) added; eff. 1-1-99...............................53493
31.3406(h)-2  (a)(3)(i) revised; (d) amended; (e)(1) designation, 
        heading and (2) removed; eff. 1-1-99.......................53493
31.3406(j)-1  Added................................................33009
31.6302-1  (h) redesignated as (i); new (h) added..................37493
31.6302-1T  Removed................................................37494
31.6302(c)-3  (b) heading and (c) revised; (d) added...............37494
31.6302(c)-3T  Removed.............................................37494
31.6413(a)-3  (a)(1)(ii) and (iii) amended; (a)(1)(iv) added; 
        (a)(2) and (b)(2) revised; eff. 1-1-99.....................53494
31.9999-0  Added; eff. 10-14-97 through 1-1-99.....................53494
35a  Authority citation amended.............................33009, 53494
35a.3406-3  Removed................................................33009
35a.9999-0  Added; eff. 10-14-97 through 1-1-99....................53494
35a.9999-0T  Removed...............................................53494
35a.9999-1  Removed; eff. 1-1-99...................................53494

[[Page 581]]

35a.9999-2  Removed; eff. 1-1-99...................................53494
35a.9999-3  Removed; eff. 1-1-99...................................53494
35a.9999-3A  Removed; eff. 1-1-99..................................53494
35a.9999-4T  Removed; eff. 1-1-99..................................53494
35a.9999-5  Removed; eff. 1-1-99...................................53494

                                  1998

26 CFR
                                                                   63 FR
                                                                    Page
31  Authority citation amended.....................................32735
31.3121(b)(7)-2  (d)(2)(i) amended.................................70338
31.3401(a)(6)-1  Regulation at 62 FR 53493 eff. date delayed to 1-
        1-00.......................................................72183
    (e) and (f) amended; eff. 1-1-00...............................72189
31.3406-0  Regulation at 62 FR 53493 eff. date delayed to 1-1-00 
                                                                   72183
31.3406(d)-3  Regulation at 62 FR 53493 eff. date delayed to 1-1-
        00.........................................................72183
31.3406(g)-1  Regulation at 62 FR 53493 eff. date delayed to 1-1-
        00.........................................................72183
    (e) amended; eff. 1-1-00.......................................72189
31.3406(h)-2  Regulation at 62 FR 53493 eff. date delayed to 1-1-
        00.........................................................72183
    (d) amended; eff. 1-1-00.......................................72189
31.6302-1  (f)(4) amended..........................................32736
31.6302-1T  Added..................................................32736
31.6413(a)-3  Regulation at 62 FR 53494 eff. date delayed to 1-1-
        00.........................................................72183
31.9999-0  Removal at 62 FR 53494 eff. date delayed to 1-1-00......72183
    Amended; eff. 1-1-00...........................................72189
35a.9999-0  Removal at 62 FR 53494 eff. date delayed to 1-1-00.....72183
35a.9999-1  Regulation at 62 FR 53494 eff. date delayed to 1-1-00 
                                                                   72183
35a.9999-2  Regulation at 62 FR 53494 eff. date delayed to 1-1-00 
                                                                   72183
35a.9999-3  Regulation at 62 FR 53494 eff. date delayed to 1-1-00 
                                                                   72183
35a.9999-3A  Regulation at 62 FR 53494 eff. date delayed to 1-1-00
                                                                   72183
35a.9999-4T  Regulation at 62 FR 53494 eff. date delayed to 1-1-00
                                                                   72183
35a.9999-5  Regulation at 62 FR 53494 eff. date delayed to 1-1-00 
                                                                   72183

                                  1999

26 CFR
                                                                   64 FR
                                                                    Page
31  Authority citaiton amended.....................................32408
31.3121(v)(2)-1  Added..............................................4547
    (b)(5) Examples 10 and 11 and (g)(5) Example 8 corrected.......15687
31.3121(v)(2)-2  Added..............................................4567
31.3221-4  Added...................................................42833
31.3306(r)(2)-1  Added..............................................4541
31.3401(a)(6)-1  Regulation at 62 FR 53493 eff. date delayed to 1-
        1-01.......................................................73408
    (e) and (f) amended; eff. 1-1-01...............................73412
31.3406-0  Regulation at 62 FR 53493 eff. date delayed to 1-1-01 
                                                                   73408
31.3406(d)-3  Regulation at 62 FR 53493 eff. date delayed to 1-1-
        01.........................................................73408
31.3406(g)-1  Regulation at 62 FR 53493 eff. date delayed to 1-1-
        01.........................................................73408
    (e) amended; eff. 1-1-01.......................................73412
31.3406(h)-2  Regulation at 62 FR 53493 eff. date delayed to 1-1-
        01.........................................................73408
    (d) amended; eff. 1-1-01.......................................73412
31.6302-1  (f)(4) revised..........................................32409
    (h)(2) heading and (ii) revised; (j), (k), (m) redesignated as 
(k), (m) and (n); (h)(2)(i) heading, (C), (iii) and new (j) added 
                                                                   37676
31.6302-1T  Removed................................................32409
31.6413(a)-3  Regulation at 62 FR 53494 eff. date delayed to 1-1-
        01.........................................................73408
31.9999-0  Amended; eff. 1-1-01....................................73412
35a.9999-1  Regulation at 62 FR 53494 eff. date delayed to 1-1-01 
                                                                   73408
35a.9999-2  Regulation at 62 FR 53494 eff. date delayed to 1-1-01 
                                                                   73408
35a.9999-3  Regulation at 62 FR 53494 eff. date delayed to 1-1-01 
                                                                   73408

[[Page 582]]

35a.9999-3A  Regulation at 62 FR 53494 eff. date delayed to 1-1-01
                                                                   73408
35a.9999-4T  Regulation at 62 FR 53494 eff. date delayed to 1-1-01
                                                                   73408
35a.9999-5  Regulation at 62 FR 53494 eff. date delayed to 1-1-01 
                                                                   73408

                                  2000

      (Regulations published January 1, 2000 through April 1, 2000)

26 CFR
                                                                   65 FR
                                                                    Page
35  Heading and authority citation revised; eff. 1-1-01.............6007
35.3405-1  Redesignated as 35.3405-1T; new 35.3405-1 added; eff. 
        1-1-01......................................................6007
    Corrected................................................8234, 17149
35.3405-1T  Redesignated from 35.3405-1; heading revised; eff. 1-
        1-01........................................................6007
    Corrected.......................................................8234