-CITE-
26 USC CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
-HEAD-
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
-MISC1-
Subchapter Sec.(!1)
A. Tax on employees 3101
B. Tax on employers 3111
C. General provisions 3121
-SECREF-
CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in sections 72, 275, 401, 416, 1402,
3121, 3231, 3503, 3510, 5041, 6011, 6103, 6302, 6501, 6513, 6521,
7507, 7509, 7651, 7655, 7701, 7851 of this title; title 5 sections
5901, 8334, 8349, 8401; title 22 sections 3307, 3310, 4045, 4071b;
title 29 section 1302; title 31 sections 1309, 9502; title 38
section 7406; title 42 sections 401, 405, 408, 418, 1307; title 45
section 231f; title 48 section 1421h; title 50 sections 2021, 2151.
-FOOTNOTE-
(!1) Section numbers editorially supplied.
-End-
-CITE-
26 USC Subchapter A - Tax on Employees 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter A - Tax on Employees
-HEAD-
SUBCHAPTER A - TAX ON EMPLOYEES
-MISC1-
Sec.
3101. Rate of tax.
3102. Deduction of tax from wages.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in section 3509 of this title.
-End-
-CITE-
26 USC Sec. 3101 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter A - Tax on Employees
-HEAD-
Sec. 3101. Rate of tax
-STATUTE-
(a) Old-age, survivors, and disability insurance
In addition to other taxes, there is hereby imposed on the income
of every individual a tax equal to the following percentages of the
wages (as defined in section 3121(a)) received by him with respect
to employment (as defined in section 3121(b)) -
In cases of wages received during: The rate shall be:
--------------------------------------------------------------------
1984, 1985, 1986, or 1987 5.7 percent
1988 or 1989 6.06 percent
1990 or thereafter 6.2 percent.
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(b) Hospital insurance
In addition to the tax imposed by the preceding subsection, there
is hereby imposed on the income of every individual a tax equal to
the following percentages of the wages (as defined in section
3121(a)) received by him with respect to employment (as defined in
section 3121(b)) -
(1) with respect to wages received during the calendar years
1974 through 1977, the rate shall be 0.90 percent;
(2) with respect to wages received during the calendar year
1978, the rate shall be 1.00 percent;
(3) with respect to wages received during the calendar years
1979 and 1980, the rate shall be 1.05 percent;
(4) with respect to wages received during the calendar years
1981 through 1984, the rate shall be 1.30 percent;
(5) with respect to wages received during the calendar year
1985, the rate shall be 1.35 percent; and
(6) with respect to wages received after December 31, 1985, the
rate shall be 1.45 percent.
(c) Relief from taxes in cases covered by certain international
agreements
During any period in which there is in effect an agreement
entered into pursuant to section 233 of the Social Security Act
with any foreign country, wages received by or paid to an
individual shall be exempt from the taxes imposed by this section
to the extent that such wages are subject under such agreement to
taxes or contributions for similar purposes under the social
security system of such foreign country.
-SOURCE-
(Aug. 16, 1954, ch. 736, 68A Stat. 415; Sept. 1, 1954, ch. 1206,
title II, Sec. 208(b), 68 Stat. 1094; Aug. 1, 1956, ch. 836, title
II, Sec. 202(b), 70 Stat. 845; Pub. L. 85-840, title IV, Sec.
401(b), Aug. 28, 1958, 72 Stat. 1041; Pub. L. 87-64, title II, Sec.
201(b), June 30, 1961, 75 Stat. 141; Pub. L. 89-97, title I, Sec.
111(c)(5), title III, Sec. 321(b), July 30, 1965, 79 Stat. 342,
395; Pub. L. 90-248, title I, Sec. 109(a)(2), (b)(2), Jan. 2, 1968,
81 Stat. 836; Pub. L. 92-5, title II, Sec. 204(a)(1), Mar. 17,
1971, 85 Stat. 11; Pub. L. 92-336, Sec. 204(a)(2), (b)(2), July 1,
1972, 86 Stat. 421, 422; Pub. L. 92-603, Sec. 135(a)(2), (b)(2),
Oct. 30, 1972, 86 Stat. 1362, 1363; Pub. L. 93-233, Sec. 6(a)(1),
(b)(2), Dec. 31, 1973, 87 Stat. 954, 955; Pub. L. 94-455, title
XIX, Sec. 1903(a)(1), Oct. 4, 1976, 90 Stat. 1806; Pub. L. 95-216,
title I, Sec. 101(a)(1), (b)(1), title III, Sec. 317(b)(2), Dec.
20, 1977, 91 Stat. 1510, 1511, 1540; Pub. L. 98-21, title I, Sec.
123(a)(1), Apr. 20, 1983, 97 Stat. 87.)
-REFTEXT-
REFERENCES IN TEXT
Section 233 of the Social Security Act, referred to in subsec.
(c), is classified to section 433 of Title 42, The Public Health
and Welfare.
-MISC1-
AMENDMENTS
1983 - Subsec. (a). Pub. L. 98-21 substituted table of rates for
former pars. (1) to (7) which had imposed a tax on the income of
every individual (1) with respect to wages received during the
calendar years 1974 through 1977 at the rate of 4.95 percent; (2)
with respect to wages received during the calendar year 1978 at the
rate of 5.05 percent; (3) with respect to wages received during the
calendar years 1979 and 1980 at the rate of 5.08 percent; (4) with
respect to wages received during the calendar year 1981 at the rate
of 5.35 percent; (5) with respect to wages received during the
calendar years 1982 through 1984 at the rate of 5.40 percent; (6)
with respect to wages received during the calendar years 1985
through 1989 at the rate of 5.70 percent; and (7) with respect to
wages received after Dec. 31, 1989, at the rate of 6.20 percent.
1977 - Subsec. (a). Pub. L. 95-216, Sec. 101(a)(1), substituted
"1974 through 1977" for "1974 through 2010" in par. (1),
substituted "wages received during the calendar year 1978, the rate
shall be 5.05 percent" for "wages received after December 31, 2010,
the rate shall be 5.95 percent" in par. (2), and added pars. (3) to
(7).
Subsec. (b). Pub. L. 95-216, Sec. 101(b)(1), substituted "wages
received during the calendar year 1978, the rate shall be 1.00
percent" for "wages received during the calendar years 1978 through
1980, the rate shall be 1.10 percent" in par. (2), substituted
"wages received during the calendar years 1979 and 1980, the rate
shall be 1.05 percent" for "wages received during the calendar
years 1981 through 1985, the rate shall be 1.35 percent", in par.
(3), substituted "wages received during the calendar years 1981
through 1984, the rate shall be 1.30 percent" for "wages received
after December 31, 1985, the rate shall be 1.50 percent" in par.
(4), and added pars. (5) and (6).
Subsec. (c). Pub. L. 95-216, Sec. 317(b)(2), added subsec. (c).
1976 - Subsec. (a). Pub. L. 94-455, Sec. 1903(a)(1)(A),
redesignated pars. (5) and (6) as (1) and (2), respectively. Former
pars. (1) to (4), which related to a tax rate of 3.8 percent with
respect to wages received during the calendar year 1968, a tax rate
of 4.2 percent with respect to wages received during the calendar
years 1969 and 1970, a tax rate of 4.6 percent with respect to
wages received during the calendar years 1971 and 1972, and a tax
rate of 4.85 percent with respect to wages received during the
calendar year 1973, respectively, were struck out.
Subsec. (b). Pub. L. 94-455, Sec. 1903(a)(1)(B), redesignated
pars. (3) to (6) as (1) to (4), respectively. Former pars. (1) and
(2), which related to a tax rate of .60 percent with respect to
wages received during the calendar years 1968, 1969, 1970, 1971,
and 1972 and a tax rate of 1.0 percent with respect to wages
received during the calendar year 1973, respectively, were struck
out.
1973 - Subsec. (a)(4). Pub. L. 93-233, Sec. 6(a)(1), struck out
provision for application of 4.85 percent rate of tax during
calendar years 1974, 1975, 1976, and 1977.
Subsec. (a)(5). Pub. L. 93-233, Sec. 6(a)(1), increased rate of
tax from 4.80 percent to 4.95 percent and substituted calendar year
"1974" for "1978" as the initial year for application of such rate.
Subsec. (a)(6). Pub. L. 93-233, Sec. 6(a)(1), increased rate of
tax from 5.85 percent to 5.95 percent.
Subsec. (b)(2). Pub. L. 93-233, Sec. 6(b)(2), struck out
provision for application of 1.0 percent rate of tax during
calendar years 1974, 1975, 1976, and 1977.
Subsec. (b)(3). Pub. L. 93-233, Sec. 6(b)(2), incorporated former
provision of par. (2) for taxation of wages received during
calendar years 1974, 1975, 1976, and 1977, decreased the applicable
rate of tax from 1.0 percent to 0.90 percent, and struck out
provision for 1.25 percent rate of tax for calendar years 1978,
1979, 1980.
Subsec. (b)(4). Pub. L. 93-233, Sec. 6(b)(2), incorporated former
provision of par. (3) for taxation of wages received during
calendar years 1978, 1979, and 1980, decreased the applicable rate
of tax from 1.25 percent to 1.10 percent, and struck out provision
for 1.35 percent rate of tax for calendar years 1981, 1982, 1983,
1984, and 1985.
Subsec. (b)(5). Pub. L. 93-233, Sec. 6(b)(2), incorporated former
provision of par. (4) for taxation of wages received during
calendar years 1981 through 1985 at applicable 1.35 percent rate of
tax and struck out provision for 1.45 percent rate of tax for wages
received after Dec. 31, 1985.
Subsec. (b)(6). Pub. L. 93-233, Sec. 6(b)(2), incorporated former
provision of par. (5) for taxation of wages received after Dec. 31,
1985 and increased the applicable rate of tax from 1.45 to 1.50
percent.
1972 - Subsec. (a)(3). Pub. L. 92-603, Sec. 135(a)(2)(A),
substituted "the calendar years 1971 and 1972" for "any of the
calendar years 1971 through 1977".
Subsec. (a)(3) to (5). Pub. L. 92-336, Sec. 204(a)(2),
substituted "any of the calendar years 1971 through 1977" for "the
calendar years 1971 and 1972" in par. (3), "any of the calendar
years 1978 through 2010" for "the calendar years 1973, 1974, and
1975" and "4.5" for "5.0" in par. (4), and "December 31, 2010" for
"December 31, 1975" and "5.35" for "5.15" in par. (5).
Subsec. (a)(4). Pub. L. 92-603, Sec. 135(a)(2)(B), substituted
"wages received during the calendar years 1973, 1974, 1975, 1976,
and 1977, the rate shall be 4.85 percent;" for "wages paid during
any of the calendar years 1978 through 2010, the rate shall be 4.5
per cent; and".
Subsec. (a)(5). Pub. L. 92-603, Sec. 135(a)(2)(B), substituted
"wages received during the calendar years 1978 through 2010, the
rate shall be 4.80 percent; and" for "wages paid after December 31,
2010, the rate shall be 5.35 percent".
Subsec. (a)(6). Pub. L. 92-603, Sec. 135(a)(2)(B), added par.
(6).
Subsec. (b)(2). Pub. L. 92-603, Sec. 135(b)(2), increased rate of
tax from 0.9 percent to 1.0 percent.
Subsec. (b)(2) to (5). Pub. L. 92-336, Sec. 204(b)(2), inserted
references to 1976 and 1977 and substituted "0.9" for "0.65" in
par. (2), substituted references for the calendar years 1978
through 1985 for references to the calendar years 1976 through 1979
and substituted "1.0" for "0.70" in par. (3), substituted
references for the calendar years 1986 through 1992 for references
to the calendar years 1980 through 1986 and substituted "1.1" for
"0.80" in par. (4), and substituted "1992" for "1986" and "1.2" for
"0.90" in par. (5).
Subsec. (b)(3). Pub. L. 92-603, Sec. 135(b)(2), substituted "and
1980, the rate shall be 1.25 percent" for "1980, 1981, 1982, 1983,
1984, and 1985, the rate shall be 1.0 percent".
Subsec. (b)(4). Pub. L. 92-603, Sec. 135(b)(2), substituted
"1981, 1982, 1983, 1984, and 1985, the rate shall be 1.35 percent;
and" for "1986, 1987, 1988, 1990, 1991, and 1992, the rate shall be
1.1 percent; and".
Subsec. (b)(5). Pub. L. 92-603, Sec. 135(b)(2), substituted
"December 31, 1985, the rate shall be 1.45 percent" for "December
31, 1992, the rate shall be 1.2 percent".
1971 - Subsec. (a)(4). Pub. L. 92-5 substituted "with respect to
wages received during the calendar years 1973, 1974, and 1975, the
rate shall be 5.0 percent; and" for "with respect to wages received
after December 31, 1972, the rate shall be 5.0 percent".
Subsec. (a)(5). Pub. L. 92-5 added par. (5).
1968 - Subsec. (a)(1) to (4). Pub. L. 90-248, Sec. 109(a)(2),
substituted "1968" and "3.8" for "1966" and "3.85" in par. (1) and
"1969 and 1970" and "4.2" for "1967 and 1968" and "3.9" in par.
(2), struck out reference to calendar years 1969 and 1970 from par.
(3) and substituted "4.6" and "4.4", and substituted "5.0" for
"4.85" in par. (4).
Subsec. (b)(1) to (5). Pub. L. 90-248, Sec. 109(b)(2), struck out
par. (1) provision for employee rate of 0.35 percent of wages
received with respect to employment during calendar year 1966,
redesignated pars. (2) to (6) as (1) to (5), struck out reference
to "1967" in such par. (1) and increased the rate by 0.10 percent
to 0.60, 0.65, 0.70, 0.80, and 0.90 in pars. (1) to (5),
respectively.
1965 - Pub. L. 89-97, Sec. 321(b), divided the total tax imposed
under the entire section upon income through a tax equal to
percentages of wages into two separate taxes by dividing the
section into subsecs. (a) and (b), with subsec. (a) reflecting the
tax for old-age, survivors, and disability insurance and subsec.
(b) reflecting the tax for hospital insurance, but, in the case of
subsec. (b), without regard to the provisions of section 3121(b)(9)
insofar as it relates to employees; increased from 4 1/8 percent
to 4.20 percent the rate of total tax imposed by the entire section
upon wages received during calendar year 1966 (resulting from a tax
of 3.85 percent under subsec. (a) and 0.35 percent under subsec.
(b)), increased from 4 1/8 percent to 4.40 percent the rate of
total tax imposed by the entire section upon wages received during
calendar year 1967 (resulting from a tax of 3.9 percent under
subsec. (a) and 0.50 percent under subsec. (b)), reduced from 4 5/8
percent to 4.40 percent the rate of total tax imposed by the
entire section upon wages received during calendar year 1968,
(resulting from a tax of 3.9 percent under subsec. (a) and 0.50
percent under subsec. (b)), increased from 4 5/8 percent to 4.90
percent the rate for calendar years 1969, 1970, 1971, and 1972
(resulting from a tax of 4.4 percent under subsec. (a) and 0.50
percent under subsec. (b)), increased from 4 5/8 percent to 5.40
percent the rate for calendar years 1973, 1974, and 1975,
(resulting from a tax of 4.85 percent under subsec. (a) and 0.55
percent under subsec. (b)), increased from 4 5/8 percent to 5.45
percent the rate for calendar years 1976, 1977, 1978, and 1979
(resulting from a tax of 4.85 percent under subsec. (a) and 0.60
percent under subsec. (b)), increased from 4 5/8 percent to 5.55
percent the rate for calendar years 1980 through 1986 (resulting
from a tax of 4.85 percent under subsec. (a) and 0.70 percent under
subsec. (b)), and increased the rate for calendar years after Dec.
31, 1986, to 5.65 percent (resulting from a tax of 4.85 percent
under subsec. (a) and 0.80 percent under subsec. (b)).
Subsec. (b). Pub. L. 89-97, Sec. 111(c)(5), struck out ", but
without regard to the provisions of paragraph (9) thereof insofar
as it relates to employees" after "as defined in section 3121(b)".
1961 - Pub. L. 87-64 increased rate of tax for calendar year 1962
from 3 to 3 1/8 percent, calendar years 1963 to 1965, inclusive,
from 3 1/2 to 3 5/8 percent, calendar years 1966 and 1967 from 4
to 4 1/8 percent, calendar year 1968 from 4 to 4 5/8 percent, and
for calendar years after December 31, 1968, from 4 1/2 to 4 5/8
percent.
1958 - Pub. L. 85-840 increased rate of tax by substituting
provisions imposing a tax of 2 1/2 % for calendar year 1959, 3% for
calendar years 1960 to 1962, 3 1/2 % for calendar years 1963 to
1965, 4% for calendar years 1966 to 1968, and 4 1/2 % for calendar
years beginning after Dec. 31, 1968, for provisions which imposed a
tax of 2 1/4 % for calendar years 1957 to 1959, 2 3/4 % for
calendar years 1960 to 1964, 3 1/4 % for calendar years 1965 to
1969, 3 3/4 % for calendar years 1970 to 1974, and 4 1/4 % for
calendar years beginning after Dec. 31, 1974.
1956 - Act Aug. 1, 1956, increased rate of tax with respect to
wages received during calendar years 1957 to 1959, and for all
calendar years thereafter, by one-quarter percent.
1954 - Act Sept. 1, 1954, increased the 3 1/4 percent rate of
tax for the calendar year 1970 and subsequent years to 3 1/2
percent for calendar years 1970 to 1974 and 4 percent for 1975 and
subsequent years.
EFFECTIVE DATE OF 1983 AMENDMENT
Section 123(a)(3) of Pub. L. 98-21 provided that: "The amendments
made by this subsection [amending this section and section 3111 of
this title] shall apply to remuneration paid after December 31,
1983."
EFFECTIVE DATE OF 1977 AMENDMENT
Amendment by Pub. L. 95-216 applicable with respect to
remuneration paid or received, and taxable years beginning, after
1977, see section 104 of Pub. L. 95-216, set out as a note under
section 1401 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Section 1903(d) of Pub. L. 94-455, as amended by Pub. L. 99-514,
Sec. 2, Oct. 22, 1986, 100 Stat. 2095, provided that: "The
amendments made by this section [see Tables for classification of
section 1903 of Pub. L. 94-455] shall apply with respect to wages
paid after December 31, 1976, except that the amendments made to
chapter 22 of the Internal Revenue Code of 1986 [formerly I.R.C.
1954] [section 3201 et seq. of this title] shall apply with respect
to compensation paid for services rendered after December 31,
1976."
EFFECTIVE DATE OF 1973 AMENDMENT
Amendment by Pub. L. 93-233 applicable only with respect to
remuneration paid after December 31, 1973, see section 6(c) of Pub.
L. 93-233, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1972 AMENDMENTS
Amendment by Pub. L. 92-603 applicable only with respect to
remuneration paid after Dec. 31, 1972, see section 135(c) of Pub.
L. 92-603, set out as a note under section 1401 of this title.
Amendment by Pub. L. 92-336 applicable only with respect to
remuneration paid after December 31, 1972, see section 204(c) of
Pub. L. 92-336, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1971 AMENDMENT
Section 204(b) of Pub. L. 92-5 provided that: "The amendments
made by subsection (a)(1) [amending this section] shall apply only
with respect to taxable years beginning after December 31, 1971.
The remaining amendments made by this section [amending section
3111 of this title] shall apply only with respect to remuneration
paid after December 31, 1971."
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90-248 applicable only with respect to
remuneration paid after Dec. 31, 1967, see section 109(c) of Pub.
L. 90-248, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1965 AMENDMENT
Amendment by section 111(c)(5) of Pub. L. 89-97 applicable to
calendar year 1966 or to any subsequent calendar year but only if
by October 1 immediately preceding such calendar year the Railroad
Retirement Tax Act (section 3201 et seq. of this title) provides
for a maximum amount of monthly compensation taxable under such Act
during all months of such calendar year equal to one-twelfth of
maximum wages which Federal Insurance Contributions Act (section
3101 et seq. of this title) provides may be counted for such
calendar year, see section 111(e) of Pub. L. 89-97, set out as an
Effective Date note under section 1395i-1 of Title 42, The Public
Health and Welfare.
Amendment by section 321(b) of Pub. L. 89-97 applicable with
respect to remuneration paid after December 31, 1965, see section
321(d) of Pub. L. 89-97, set out as a note under section 1401 of
this title.
EFFECTIVE DATE OF 1961 AMENDMENT
Amendment by Pub. L. 87-64 applicable with respect to
remuneration paid after Dec. 31, 1961, see section 201(d) of Pub.
L. 87-64, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-840 applicable with respect to
remuneration paid after Dec. 31, 1958, see section 401(d) of Pub.
L. 85-840, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1956 AMENDMENT
Amendment by act Aug. 1, 1956, applicable with respect to
remuneration paid after Dec. 31, 1956, see section 202(d) of such
act Aug. 1, 1956, set out as a note under section 1401 of this
title.
PENALTIES AND INTEREST NOT ASSESSED FOR FAILURE TO MAKE TIMELY
PAYMENT DURING PERIOD JANUARY 1, 1982, TO JUNE 30, 1982, OF TAXES
ATTRIBUTABLE TO AMENDMENTS BY PUB. L. 97-123
Pub. L. 97-123, Sec. 3(f), Dec. 29, 1981, 95 Stat. 1663; Pub. L.
99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095, provided that:
"Notwithstanding any other provision of law, no penalties or
interest shall be assessed on account of any failure to make timely
payment of taxes, imposed by sections 3101, 3111, 3201(b), 3211, or
3221(b) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]
with respect to payments made for the period beginning January 1,
1982, and ending June 30, 1982, to the extent that such taxes are
attributable to this section (or the amendments made by this
section) [amending sections 3121 and 3231 of this title and section
409 of Title 42, The Public Health and Welfare, and enacting
provisions set out as notes under section 3121 of this title] and
that such failure is due to reasonable cause and not to willful
neglect."
REFERENCES TO SOCIAL SECURITY ACT
Section 402 of act Sept. 1, 1954, as amended by act Oct. 22,
1986, Pub. L. 99-514, Sec. 2, 100 Stat. 2095, provided that:
"References in the Internal Revenue Code of 1939 [former Title 26,
Internal Revenue Code], the Internal Revenue Code of 1986 [formerly
I.R.C. 1954], the Railroad Retirement Act of 1937, as amended
[section 231 et seq. of Title 45, Railroads], or any other law of
the United States to any section or subdivision of a section of the
Social Security Act [section 301 et seq. of Title 42, The Public
Health and Welfare] redesignated by this Act shall be deemed to
refer to such section or subdivision of a section as so
redesignated."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 24, 275, 406, 1402, 3102,
3121, 3125, 3126, 3127, 3201, 3211, 3231, 3306, 3502, 6051, 6053,
6205, 6413, 6521, 6652 of this title; title 2 sections 658a, 1503;
title 5 sections 8334, 8422; title 22 section 4071e; title 42
sections 401, 409, 418, 429, 910, 911, 1395i, 1395i-2; title 45
section 231e; title 50 section 2021; title 50 App. section 570.
-End-
-CITE-
26 USC Sec. 3102 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter A - Tax on Employees
-HEAD-
Sec. 3102. Deduction of tax from wages
-STATUTE-
(a) Requirement
The tax imposed by section 3101 shall be collected by the
employer of the taxpayer, by deducting the amount of the tax from
the wages as and when paid. An employer who in any calendar year
pays to an employee cash remuneration to which paragraph (7)(B) of
section 3121(a) is applicable may deduct an amount equivalent to
such tax from any such payment of remuneration, even though at the
time of payment the total amount of such remuneration paid to the
employee by the employer in the calendar year is less than the
applicable dollar threshold (as defined in section 3121(x)) for
such year; and an employer who in any calendar year pays to an
employee cash remuneration to which paragraph (7)(C) or (10) of
section 3121(a) is applicable may deduct an amount equivalent to
such tax from any such payment of remuneration, even though at the
time of payment the total amount of such remuneration paid to the
employee by the employer in the calendar year is less than $100;
and an employer who in any calendar year pays to an employee cash
remuneration to which paragraph (8)(B) of section 3121(a) is
applicable may deduct an amount equivalent to such tax from any
such payment of remuneration, even though at the time of payment
the total amount of such remuneration paid to the employee by the
employer in the calendar year is less than $150 and the employee
has not performed agricultural labor for the employer on 20 days or
more in the calendar year for cash remuneration computed on a time
basis; and an employer who is furnished by an employee a written
statement of tips (received in a calendar month) pursuant to
section 6053(a) to which paragraph (12)(B) of section 3121(a) is
applicable may deduct an amount equivalent to such tax with respect
to such tips from any wages of the employee (exclusive of tips)
under his control, even though at the time such statement is
furnished the total amount of the tips included in statements
furnished to the employer as having been received by the employee
in such calendar month in the course of his employment by such
employer is less than $20.
(b) Indemnification of employer
Every employer required so to deduct the tax shall be liable for
the payment of such tax, and shall be indemnified against the
claims and demands of any person for the amount of any such payment
made by such employer.
(c) Special rule for tips
(1) In the case of tips which constitute wages, subsection (a)
shall be applicable only to such tips as are included in a written
statement furnished to the employer pursuant to section 6053(a),
and only to the extent that collection can be made by the employer,
at or after the time such statement is so furnished and before the
close of the 10th day following the calendar month (or, if
paragraph (3) applies, the 30th day following the year) in which
the tips were deemed paid, by deducting the amount of the tax from
such wages of the employee (excluding tips, but including funds
turned over by the employee to the employer pursuant to paragraph
(2)) as are under control of the employer.
(2) If the tax imposed by section 3101, with respect to tips
which are included in written statements furnished in any month to
the employer pursuant to section 6053(a), exceeds the wages of the
employee (excluding tips) from which the employer is required to
collect the tax under paragraph (1), the employee may furnish to
the employer on or before the 10th day of the following month (or,
if paragraph (3) applies, on or before the 30th day of the
following year) an amount of money equal to the amount of the
excess.
(3) The Secretary may, under regulations prescribed by him,
authorize employers -
(A) to estimate the amount of tips that will be reported by the
employee pursuant to section 6053(a) in any calendar year,
(B) to determine the amount to be deducted upon each payment of
wages (exclusive of tips) during such year as if the tips so
estimated constituted the actual tips so reported, and
(C) to deduct upon any payment of wages (other than tips, but
including funds turned over by the employee to the employer
pursuant to paragraph (2)) to such employee during such year (and
within 30 days thereafter) such amount as may be necessary to
adjust the amount actually deducted upon such wages of the
employee during the year to the amount required to be deducted in
respect of tips included in written statements furnished to the
employer during the year.
(4) If the tax imposed by section 3101 with respect to tips which
constitute wages exceeds the portion of such tax which can be
collected by the employer from the wages of the employee pursuant
to paragraph (1) or paragraph (3), such excess shall be paid by the
employee.
(d) Special rule for certain taxable group-term life insurance
benefits
(1) In general
In the case of any payment for group-term life insurance to
which this subsection applies -
(A) subsection (a) shall not apply,
(B) the employer shall separately include on the statement
required under section 6051 -
(i) the portion of the wages which consists of payments for
group-term life insurance to which this subsection applies,
and
(ii) the amount of the tax imposed by section 3101 on such
payments, and
(C) the tax imposed by section 3101 on such payments shall be
paid by the employee.
(2) Benefits to which subsection applies
This subsection shall apply to any payment for group-term life
insurance to the extent -
(A) such payment constitutes wages, and
(B) such payment is for coverage for periods during which an
employment relationship no longer exists between the employee
and the employer.
(e) Special rule for certain transferred Federal employees
In the case of any payments of wages for service performed in the
employ of an international organization pursuant to a transfer to
which the provisions of section 3121(y) are applicable -
(1) subsection (a) shall not apply,
(2) the head of the Federal agency from which the transfer was
made shall separately include on the statement required under
section 6051 -
(A) the amount determined to be the amount of the wages for
such service, and
(B) the amount of the tax imposed by section 3101 on such
payments, and
(3) the tax imposed by section 3101 on such payments shall be
paid by the employee.
-SOURCE-
(Aug. 16, 1954, ch. 736, 68A Stat. 415; Sept. 1, 1954, ch. 1206,
title II, Sec. 205A, 68 Stat. 1093; Aug. 1, 1956, ch. 836, title
II, Sec. 201(h)(3), 70 Stat. 841; Pub. L. 89-97, title III, Sec.
313(c)(1), (2), July 30, 1965, 79 Stat. 382, 383; Pub. L. 94-455,
title XIX, Sec. 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub.
L. 95-216, title III, Sec. 355(a), (b), Dec. 20, 1977, 91 Stat.
1555; Pub. L. 101-508, title V, Sec. 5124(a), Nov. 5, 1990, 104
Stat. 1388-284; Pub. L. 103-296, title III, Sec. 319(a)(3), Aug.
15, 1994, 108 Stat. 1534; Pub. L. 103-387, Sec. 2(a)(1)(D), Oct.
22, 1994, 108 Stat. 4072.)
-MISC1-
AMENDMENTS
1994 - Subsec. (a). Pub. L. 103-387 in second sentence
substituted "An employer who in any calendar year" for "An employer
who in any calendar quarter" and "remuneration paid to the employee
by the employer in the calendar year is less than the applicable
dollar threshold (as defined in section 3121(x)) for such year" for
"remuneration paid to the employee by the employer in the calendar
quarter is less than $50".
Subsec. (e). Pub. L. 103-296 added subsec. (e).
1990 - Subsec. (d). Pub. L. 101-508 added subsec. (d).
1977 - Subsec. (a). Pub. L. 95-216, Sec. 355(a), substituted
"cash remuneration to which paragraph (7)(B) of section 3121(a) is
applicable" for "cash remuneration to which paragraph (7)(B) or (C)
or (10) of section 3121(a) is applicable" and inserted "and an
employer who in any calendar year pays to an employee cash
remuneration to which paragraph (7)(C) or (10) of section 3121(a)
is applicable may deduct an amount equivalent to such tax from any
such payment of remuneration, even though at the time of payment
the total amount of such remuneration paid to the employee by the
employer in the calendar year is less than $100;".
Subsec. (c)(1), (2). Pub. L. 95-216, Sec. 355(b)(1), substituted
"year" for "quarter" wherever appearing.
Subsec. (c)(3)(A). Pub. L. 95-216, Sec. 355(b)(2)(A), substituted
"in any calendar year" for "in any quarter of the calendar year".
Subsec. (c)(3)(B), (C). Pub. L. 95-216, Sec. 355(b)(2)(B),
substituted "year" for "quarter" wherever appearing.
1976 - Subsec. (c)(3). Pub. L. 94-455 struck out "or his
delegate" after "Secretary".
1965 - Subsec. (a). Pub. L. 89-97, Sec. 313(c)(2), inserted
provisions at end of second sentence allowing a deduction from any
wages of an employee of an amount equivalent to the tax on tips
when an employer is furnished with a written statement of tips
received by an employee.
Subsec. (c). Pub. L. 89-97, Sec. 313(c)(1), added subsec. (c).
1956 - Subsec. (a). Act Aug. 1, 1956, substituted "$150 and the
employee has not performed agricultural labor for the employer on
20 days or more in the calendar year for cash remuneration computed
on a time basis" for "$100".
1954 - Subsec. (a). Act Sept. 1, 1954, inserted last sentence
permitting in certain instances an employer to deduct employee tax
even though payment to employee is less than $50 for calendar
quarter or $100 for calendar year.
EFFECTIVE DATE OF 1994 AMENDMENTS
Section 2(a)(3) of Pub. L. 103-387 provided that:
"(A) In general. - Except as provided in subparagraph (B), the
amendments made by this subsection [amending this section, section
3121 of this title, and sections 409 and 410 of Title 42, The
Public Health and Welfare] shall apply to remuneration paid after
December 31, 1993.
"(B) Excluded employment. - The amendments made by paragraphs
(1)(C) and (2)(B) [amending section 3121 of this title and section
410 of Title 42] shall apply to services performed after December
31, 1994."
Amendment by Pub. L. 103-296 applicable with respect to service
performed after calendar quarter following calendar quarter in
which Aug. 15, 1994, occurs, see section 319(c) of Pub. L. 103-296,
set out as a note under section 1402 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 5124(c) of Pub. L. 101-508 provided that: "The amendments
made by this section [amending this section and section 3202 of
this title] shall apply to coverage provided after December 31,
1990."
EFFECTIVE DATE OF 1977 AMENDMENT
Section 355(c) of Pub. L. 95-216 provided that: "The amendments
made by this section [amending this section] shall apply with
respect to remuneration paid and to tips received after December
31, 1977."
EFFECTIVE DATE OF 1965 AMENDMENT
Amendment by Pub. L. 89-97 applicable only with respect to tips
received by employees after 1965, see section 313(f) of Pub. L.
89-97, set out as an Effective Date note under section 6053 of this
title.
NO LOSS OF SOCIAL SECURITY COVERAGE FOR 1994; CONTINUATION OF W-2
FILING REQUIREMENT
Section 2(a)(4) of Pub. L. 103-387 provided that:
"Notwithstanding the amendments made by this subsection [amending
this section, section 3121 of this title, and sections 409 and 410
of Title 42, The Public Health and Welfare], if the wages (as
defined in section 3121(a) of the Internal Revenue Code of 1986)
paid during 1994 to an employee for domestic service in a private
home of the employer are less than $1,000 -
"(A) the employer shall file any return or statement required
under section 6051 of such Code with respect to such wages
(determined without regard to such amendments), and
"(B) the employee shall be entitled to credit under section 209
of the Social Security Act [42 U.S.C. 409] with respect to any
such wages required to be included on any such return or
statement."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 3402, 3505, 3507, 6053 of
this title.
-End-
-CITE-
26 USC Subchapter B - Tax on Employers 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter B - Tax on Employers
-HEAD-
SUBCHAPTER B - TAX ON EMPLOYERS
-MISC1-
Sec.
3111. Rate of tax.
3112. Instrumentalities of the United States.
[3113. Repealed.]
AMENDMENTS
1976 - Pub. L. 94-455, title XIX, Sec. 1903(b), Oct. 4, 1976, 90
Stat. 1810, struck out item 3113 "District of Columbia credit
unions".
1956 - Act Aug. 1, 1956, ch. 836, title II, Sec. 201(a)(2), 70
Stat. 839, added item 3113.
-End-
-CITE-
26 USC Sec. 3111 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter B - Tax on Employers
-HEAD-
Sec. 3111. Rate of tax
-STATUTE-
(a) Old-age, survivors, and disability insurance
In addition to other taxes, there is hereby imposed on every
employer an excise tax, with respect to having individuals in his
employ, equal to the following percentages of the wages (as defined
in section 3121(a)) paid by him with respect to employment (as
defined in section 3121(b)) -
In cases of wages paid during: The rate shall be:
--------------------------------------------------------------------
1984, 1985, 1986, or 1987 5.7 percent
1988 or 1989 6.06 percent
1990 or thereafter 6.2 percent.
--------------------------------------------------------------------
(b) Hospital insurance
In addition to the tax imposed by the preceding subsection, there
is hereby imposed on every employer an excise tax, with respect to
having individuals in his employ, equal to the following
percentages of the wages (as defined in section 3121(a)) paid by
him with respect to employment (as defined in section 3121(b)) -
(1) with respect to wages paid during the calendar years 1974
through 1977, the rate shall be 0.90 percent;
(2) with respect to wages paid during the calendar year 1978,
the rate shall be 1.00 percent;
(3) with respect to wages paid during the calendar years 1979
and 1980, the rate shall be 1.05 percent;
(4) with respect to wages paid during the calendar years 1981
through 1984, the rate shall be 1.30 percent;
(5) with respect to wages paid during the calendar year 1985,
the rate shall be 1.35 percent; and
(6) with respect to wages paid after December 31, 1985, the
rate shall be 1.45 percent.
(c) Relief from taxes in cases covered by certain international
agreements
During any period in which there is in effect an agreement
entered into pursuant to section 233 of the Social Security Act
with any foreign country, wages received by or paid to an
individual shall be exempt from the taxes imposed by this section
to the extent that such wages are subject under such agreement to
taxes or contributions for similar purposes under the social
security system of such foreign country.
-SOURCE-
(Aug. 16, 1954, ch. 736, 68A Stat. 416; Sept. 1, 1954, ch. 1206,
title II, Sec. 208(c), 68 Stat. 1094; Aug. 1, 1956. ch. 836, title
II, Sec. 202(c), 70 Stat. 845; Pub. L. 85-840, title IV, Sec.
401(c), Aug. 28, 1958, 72 Stat. 1042; Pub. L. 87-64, title II, Sec.
201(c), June 30, 1961, 75 Stat. 141; Pub. L. 89-97, title I, Sec.
111(c)(6), title III, Sec. 321(c), July 30, 1965, 79 Stat. 343,
396; Pub. L. 90-248, title I, Sec. 109(a)(3), (b)(3), Jan. 2, 1968,
81 Stat. 836, 837; Pub. L. 92-5, title II, Sec. 204(a)(2), Mar. 17,
1971, 85 Stat. 11; Pub. L. 92-336, title II, Sec. 204(a)(3),
(b)(3), July 1, 1972, 86 Stat. 421, 422; Pub. L. 92-603, title I,
Sec. 135(a)(3), (b)(3), Oct. 30, 1972, 86 Stat. 1363, 1364; Pub. L.
93-233, Sec. 6(a)(2), (b)(3), Dec. 31, 1973, 87 Stat. 954, 955;
Pub. L. 94-455, title XIX, Sec. 1903(a)(1), Oct. 4, 1976, 90 Stat.
1806; Pub. L. 95-216, title I, Sec. 101(a)(2), (b)(2), title III,
Secs. 315(b), 317(b)(2), Dec. 20, 1977, 91 Stat. 1511, 1512, 1537,
1540; Pub. L. 98-21, title I, Sec. 123(a)(2), Apr. 20, 1983, 97
Stat. 88; Pub. L. 100-203, title IX, Sec. 9006(b)(1), Dec. 22,
1987, 101 Stat. 1330-289; Pub. L. 100-647, title VIII, Sec.
8016(a)(5), Nov. 10, 1988, 102 Stat. 3793.)
-REFTEXT-
REFERENCES IN TEXT
Section 233 of the Social Security Act, referred to in subsec.
(c), is classified to section 433 of Title 42, The Public Health
and Welfare.
-MISC1-
AMENDMENTS
1988 - Subsecs. (a), (b). Pub. L. 100-647 made technical
correction to directory language of Pub. L. 100-203, Sec.
9006(b)(1), see 1987 Amendment note below.
1987 - Subsecs. (a), (b). Pub. L. 100-203, as amended by Pub. L.
100-647, struck out "and (t)" after "3121(a)" in introductory
provisions.
1983 - Subsec. (a). Pub. L. 98-21 substituted table of rates for
pars. (1) to (7) which had imposed a tax on every employer (1) with
respect to wages paid during the calendar years 1974 through 1977
at the rate of 4.95 percent, (2) with respect to wages paid during
the calendar year 1978 at the rate of 5.05 percent, (3) with
respect to wages paid during the calendar years 1979 and 1980 at
the rate of 5.08 percent, (4) with respect to wages paid during the
calendar year 1981 at the rate of 5.35 percent, (5) with respect to
wages paid during the calendar years 1982 through 1984 at the rate
of 5.40 percent, (6) with respect to wages paid during the calendar
years 1985 through 1989 at the rate of 5.70 percent, and (7) with
respect to wages paid after Dec. 31, 1989, at the rate of 6.20
percent.
1977 - Subsec. (a). Pub. L. 95-216, Secs. 101(a)(2), 315(b),
substituted "(as defined in section 3121(a) and (t))" for "(as
defined in section 3121(a))" in provisions preceding par. (1),
substituted "1974 through 1977" for "1974 through 2010" in par.
(1), substituted "wages paid during the calendar year 1978, the
rate shall be 5.05 percent" for "wages paid after December 31,
2010, the rate shall be 5.95 percent" in par. (2), and added pars.
(3) to (7).
Subsec. (b). Pub. L. 95-216, Secs. 101(b)(2), 315(b), substituted
"(as defined in section 3121(a) and (t))" for "(as defined in
section 3121(a))" in provisions preceding par. (1), substituted
"wages paid during the calendar year 1978, the rate shall be 1.00
percent" for "wages paid during the calendar years 1978 through
1980, the rate shall be 1.10 percent", in par. (2), substituted
"wages paid during the calendar years 1979 and 1980, the rate shall
be 1.05 percent" for wages paid during the calendar years 1981
through 1985, the rate shall be 1.35 percent" in par. (3),
substituted "wages paid during the calendar years 1981 through
1984, the rate shall be 1.30 percent" for "wages paid after
December 31, 1985, the rate shall be 1.50 percent" in par. (4), and
added pars. (5) and (6).
Subsec. (c). Pub. L. 95-216, Sec. 317(b)(2), added subsec. (c).
1976 - Subsec. (a). Pub. L. 94-455, Sec. 1903(a)(1)(A),
redesignated pars. (5) and (6) as (1) and (2). Former pars. (1) to
(4), which related to a tax rate of 3.8 percent with respect to
wages received during the taxable year 1968, a tax rate of 4.2
percent with respect to wages received during the calendar year
1969 and 1970, a tax rate of 4.6 percent with respect to wages
received during the calendar years 1971 and 1972, and a tax rate of
4.85 percent with respect to wages received during the calendar
year 1973, respectively, were struck out.
Subsec. (b). Pub. L. 94-455, Sec. 1903(a)(1)(B), redesignated
pars. (3) to (6) as (1) to (4), respectively. Former pars. (1) and
(2), which related to a tax rate of .60 percent with respect to
wages received during the calendar years 1968, 1969, 1970, 1971,
and 1972 and a tax rate of 1.0 percent with respect to wages
received during the calendar year 1973, respectively, were struck
out.
1973 - Subsec. (a)(4). Pub. L. 93-233, Sec. 6(a)(2), struck out
provision for application of 4.85 percent rate of tax during
calendar years 1974, 1975, 1976, and 1977.
Subsec. (a)(5). Pub. L. 93-233, Sec. 6(a)(2), increased rate of
tax from 4.80 percent to 4.95 percent and substituted calendar year
"1974" to "1978" as initial year for application of such rate.
Subsec. (a)(6). Pub. L. 93-233, Sec. 6(a)(2), increased rate of
tax from 5.85 percent to 5.95 percent.
Subsec. (b)(2). Pub. L. 93-233, Sec. 6(b)(3), struck out
provision for application of 1.0 percent rate of tax during
calendar years 1974, 1975, 1976, and 1977.
Subsec. (b)(3). Pub. L. 93-233, Sec. 6(b)(3), incorporated former
provision of par. (2) for taxation of wages received during
calendar years 1974, 1975, 1976, and 1977, decreased the applicable
rate of tax from 1.0 percent to 0.90 percent, and struck out
provision for 1.25 percent rate of tax for calendar years 1978,
1979, and 1980.
Subsec. (b)(4). Pub. L. 93-233, Sec. 6(b)(3), incorporated former
provision of par. (3) for taxation of wages received during
calendar years 1978, 1979, and 1980, decreased the applicable rate
of tax from 1.25 percent to 1.10 percent, and struck out provision
for 1.35 percent rate of tax for calendar years 1981, 1982, 1983,
1984, and 1985.
Subsec. (b)(5). Pub. L. 93-233, Sec. 6(b)(3), incorporated former
provision of par. (4) for taxation of wages received during
calendar years 1981 through 1985 at applicable 1.35 percent rate of
tax and struck out provision for 1.45 percent rate of tax for wages
received after Dec. 31, 1985.
Subsec. (b)(6). Pub. L. 93-233, Sec. 6(b)(3), incorporated former
provision of par. (5) for taxation of wages received after Dec. 31,
1985 and increased the applicable rate of tax from 1.45 percent to
1.50 percent.
1972 - Subsec. (a)(3). Pub. L. 92-603, Sec. 135(a)(3)(A),
substituted "the calendar years 1971 and 1972" for "any of the
calendar years 1971 through 1977".
Subsec. (a)(3) to (5). Pub. L. 92-336, Sec. 204(a)(3),
substituted "any of the calendar years 1971 through 1977" for "the
calendar years 1971 and 1972" in par. (3), "any of the calendar
years 1978 through 2010" for "the calendar years 1973, 1974, and
1975" and "4.5" for "5.0" in par. (4), and "December 31, 2010" for
"December 31, 1975" and "5.35" for "5.15" in par. (5).
Subsec. (a)(4). Pub. L. 92-603, Sec. 135(a)(3)(B), substituted
"received during the calendar years 1973, 1974, 1975, 1976, and
1977, the rate shall be 4.85 percent;" for "received during any of
the calendar years 1978 through 2010, the rate shall be 4.5
percent; and".
Subsec. (a)(5). Pub. L. 92-603, Sec. 135(a)(3)(B), substituted
"received during the calendar years 1978 through 2010, the rate
shall be 4.80 percent; and" for "received after December 31, 2010,
the rate shall be 5.35 percent".
Subsec. (a)(6). Pub. L. 92-603, Sec. 135(a)(3)(B), added par.
(6).
Subsec. (b)(2). Pub. L. 92-603, Sec. 135(b)(3), increased rate to
1.0 percent from 0.9 percent.
Subsec. (b)(2) to (5). Pub. L. 92-336, Sec. 204(b)(3), inserted
references to 1976 and 1977 and substituted "0.9" for "0.65" in
par. (2), substituted references for the calendar years 1978
through 1985 for references to the calendar years 1976 through 1979
and substituted "1.0" for "0.70" in par. (3), substituted
references for the calendar years 1986 through 1992 for references
to the calendars 1980 through 1986 and substituted "1.1" for "0.80"
in par. (4), and substituted "1992" and "1986" and "1.2" for "0.9"
in par. (5).
Subsec. (b)(3). Pub. L. 92-603, Sec. 135(b)(3), substituted "and
1980, the rate shall be 1.25 percent" for "1980, 1981, 1982, 1983,
1984, and 1985, the rate shall be 1.0 percent".
Subsec. (b)(4). Pub. L. 92-603, Sec. 135(b)(3), substituted
"1981, 1982, 1983, 1984, and 1985, the rate shall be 1.35 percent"
for "1986, 1987, 1988, 1989, 1990, 1991, and 1992, the rate shall
be 1.1 percent".
Subsec. (b)(5). Pub. L. 92-603, Sec. 135(b)(3), substituted
"1985, the rate shall be 1.45 percent" for "1992, the rate shall be
1.2 percent".
1971 - Subsec. (a)(4). Pub. L. 92-5 substituted "with respect to
wages paid during the calendar years 1973, 1974, and 1975, the rate
shall be 5.0 percent; and" for "with respect to wages paid after
December 31, 1972, the rate shall be 5.0 percent".
Subsec. (a)(5). Pub. L. 92-5 added par. (5).
1968 - Subsec. (a)(1) to (4). Pub. L. 90-248, Sec. 109(a)(3),
substituted "1968" and "3.8" for "1966" and "3.85" in par. (1) and
"1969 and 1970" and "4.2" for "1967 and 1968" and "3.9" in par.
(2), struck out reference to calendar years 1969 and 1970 from par.
(3) and substituted therein "4.6" for "4.4", and substituted "5.0"
for "4.85" in par. (4).
Subsecs. (b)(1) to (5). Pub. L. 90-248, Sec. 109(b)(3), struck
out par. (1) provision for employer rate of 0.35 percent of wages
paid with respect to employment during calendar year 1966,
redesignated pars. (2) to (6) as (1) to (5), struck out reference
to "1967" in such par. (1) and increased the rate by 0.10 percent
to 0.60, 0.65, 0.70, 0.80, and 0.90 in pars. (1) to (5),
respectively.
1965 - Pub. L. 89-97, Sec. 321(c), divided the total excise tax
imposed under the entire section upon employers through a tax equal
to percentages of wages paid by him into two separate taxes by
dividing the section into subsecs. (a) and (b), with subsec. (a)
reflecting the tax for old-age, survivors, and disability
insurance, and subsec. (b) reflecting the tax for hospital
insurance, but, in the case of subsec. (b), without regard to the
provisions of section 3121(b)(9) insofar as it relates to
employees; increased from 4 1/8 percent to 4.20 percent the rate
of total tax imposed by the entire section upon wages paid during
calendar year 1966 (resulting from a tax of 3.85 percent under
subsec. (a) and 0.35 percent under subsec. (b)), increased from 4
1/8 percent to 4.40 percent the rate of total tax imposed by the
entire section upon wages paid during calendar year 1967 (resulting
from a tax of 3.9 percent under subsec. (a) and 0.50 percent under
subsec. (b)), reduced from 4 5/8 percent to 4.40 percent the rate
of total tax imposed by the entire section upon wages paid during
calendar year 1968 (resulting from a tax of 3.9 percent under
subsec. (a) and 0.50 percent under subsec. (b)), increased from 4
5/8 percent to 4.90 percent the rate of total tax imposed by the
entire section upon wages paid during the calendar years 1969,
1970, 1971, and 1972 (resulting from a tax of 4.4 percent under
subsec. (a) and 0.50 percent under subsec. (b)), increased from 4
5/8 percent to 5.40 percent the rate for calendar years 1973,
1974, and 1975 (resulting from a tax of 4.85 percent under subsec.
(a) and 0.55 percent under subsec. (b)), increased from 4 5/8
percent to 5.45 percent the rate for calendar years 1976, 1977,
1978, and 1979 (resulting from a tax of 4.85 percent under subsec.
(a) and 0.60 percent under subsec. (b)), increased from 4 5/8
percent to 5.55 percent the rate for calendar years 1980 through
1986 (resulting from a tax of 4.85 percent under subsec. (a) and
0.70 percent under subsec. (b)), and increased the rate from 4 5/8
percent to 5.65 percent for calendar years after December 31, 1986
(resulting from a tax of 4.85 percent under subsec. (a) and 0.80
percent under subsec. (b)).
Subsec. (b). Pub. 89-97, Sec. 111(c)(6), struck out ", but
without regard to the provisions of paragraph (9) thereof insofar
as it relates to employees" after "as defined in section 3121(b)".
1961 - Pub. L. 87-64 increased rate of tax for calendar year 1962
from 3 to 3 1/8 percent, calendar years 1963 to 1965, inclusive,
from 3 1/2 to 3 5/8 percent, calendar years 1966 and 1967 from 4
to 4 1/8 percent, calendar year 1968 from 4 to 4 5/8 percent, and
for calendar years after December 31, 1968, from 4 1/2 to 4 5/8
percent.
1958 - Pub. L. 85-840 increased rate of tax by substituting
provisions imposing a tax of 2 1/2 percent for calendar year 1959,
3 percent for calendar years 1960-62, 3 1/2 percent for calendar
years 1963-65, 4 percent for calendar years 1966-68, and 4 1/2
percent for calendar years beginning after Dec. 31, 1968, for
provisions which imposed a tax of 2 1/4 percent for calendar years
1957-59, 2 3/4 percent for calendar years 1960-64, 3 1/4 percent
for calendar years 1965-69, 3 3/4 percent for calendar years
1970-74, and 4 1/4 percent for calendar years beginning after Dec.
31, 1974.
1956 - Act Aug. 1, 1956, increased rate of tax with respect to
wages paid during calendar years 1957 to 1959, and for all calendar
years thereafter, by one-quarter percent.
1954 - Act Sept. 1, 1954, increased 3 1/4 percent rate of tax
for calendar year 1970 and subsequent years to 3 1/2 percent for
calendar years 1970 to 1974 and 4 percent for 1975 and subsequent
years.
EFFECTIVE DATE OF 1988 AMENDMENT
Section 8016(b) of Pub. L. 100-647 provided that:
"(1) Except as provided in paragraph (2), the amendments made by
this section [amending this section, sections 3121 and 3306 of this
title, and sections 405, 410, and 411 of Title 42, The Public
Health and Welfare] shall be effective on the date of the enactment
of this Act [Nov. 10, 1988].
"(2) Any amendment made by this section to a provision of a
particular Public Law which is referred to by its number, or to a
provision of the Social Security Act [42 U.S.C. 301 et seq.] or the
Internal Revenue Code of 1986 as added or amended by a provision of
a particular Public Law which is so referred to, shall be effective
as though it had been included or reflected in the relevant
provisions of that Public Law at the time of its enactment."
EFFECTIVE DATE OF 1987 AMENDMENT
Section 9006(c) of Pub. L. 100-203 provided that: "The amendments
made by this section [amending this section and section 3121 of
this title] shall apply with respect to tips received (and wages
paid) on and after January 1, 1988."
EFFECTIVE DATE OF 1983 AMENDMENT
Amendment by Pub. L. 98-21 applicable to remuneration paid after
Dec. 31, 1983, see section 123(a)(3) of Pub. L. 98-21, set out as a
note under section 3101 of this title.
EFFECTIVE DATE OF 1977 AMENDMENT
Amendment by section 101(a)(2), (b)(2) of Pub. L. 95-216
applicable with respect to remuneration paid or received, and
taxable years beginning, after 1977, see section 104 of Pub. L.
95-216, set out as a note under section 1401 of this title.
Section 315(c) of Pub. L. 95-216 provided that: "The amendments
made by this section [amending this section and section 3121 of
this title] shall apply with respect to wages paid with respect to
employment performed in months after December 1977."
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-455 applicable with respect to wages paid
after Dec. 31, 1976, see section 1903(d) of Pub. L. 94-455, set out
as a note under section 3101 of this title.
EFFECTIVE DATE OF 1973 AMENDMENT
Amendment by Pub. L. 93-233 applicable only with respect to
remuneration paid after December 31, 1973, see section 6(c) of Pub.
L. 93-233, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1972 AMENDMENTS
Amendment by Pub. L. 92-603 applicable only with respect to
remuneration paid after Dec. 31, 1972, see section 135(c) of Pub.
L. 92-603, set out as a note under section 1401 of this title.
Amendment by Pub. L. 92-336 applicable only with respect to
remuneration paid after December 31, 1972, see section 204(c) of
Pub. L. 92-336, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1971 AMENDMENT
Amendment by Pub. L. 92-5 applicable only with respect to
remuneration paid after Dec. 31, 1971, see section 204(b) of Pub.
L. 92-5, set out as a note under section 3101 of this title.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90-248 applicable only with respect to
remuneration paid after Dec. 31, 1967, see section 109(c) of Pub.
L. 90-248, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1965 AMENDMENT
Amendment by section 111(c)(6) of Pub. L. 89-97 applicable to
calendar year 1966 or to any subsequent calendar year but only if
by October 1 immediately preceding such calendar year the Railroad
Retirement Tax Act (section 3201 et seq. of this title) provides
for a maximum amount of monthly compensation taxable under such Act
during all months of such calendar year equal to one-twelfth of
maximum wages which Federal Insurance Contributions Act (section
3101 et seq. of this title) provides may be counted for such
calendar year, see section 111(e) of Pub. L. 89-97, set out as an
Effective Date note under section 1395i-1 of Title 42, The Public
Health and Welfare.
Amendment by section 321(c) of Pub. L. 89-97 applicable with
respect to remuneration paid after December 31, 1965, see section
321(d) of Pub. L. 89-97, set out as a note under section 1401 of
this title.
EFFECTIVE DATE OF 1961 AMENDMENT
Amendment by Pub. L. 87-64 applicable with respect to
remuneration paid after Dec. 31, 1961, see section 201(d) of Pub.
L. 87-64, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-840 applicable with respect to
remuneration paid after Dec. 31, 1958, see section 401(d) of Pub.
L. 85-840, set out as a note under section 1401 of this title.
EFFECTIVE DATE OF 1956 AMENDMENT
Amendment by act Aug. 1, 1956, applicable with respect to
remuneration paid after Dec. 31, 1956, see section 202(d) of such
act Aug. 1, 1956, set out as a note under section 1401 of this
title.
PENALTIES AND INTEREST NOT ASSESSED FOR FAILURE TO MAKE TIMELY
PAYMENT DURING PERIOD JANUARY 1, 1982, TO JUNE 30, 1982, OF TAXES
ATTRIBUTABLE TO AMENDMENTS BY PUB. L. 97-123
For provision that no penalties or interest shall be assessed on
account of any failure to make timely payment of taxes imposed by
this section with respect to payments made for the period Jan. 1,
1982, and ending June 30, 1982, to the extent that such taxes are
attributable to section 3 of Pub. L. 97-123 or the amendments made
by that section, see section 3(f) of Pub. L. 97-123, set out as a
note under section 3101 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 45B, 401, 3112, 3121,
3122, 3125, 3126, 3127, 3211, 3221, 3507, 6051, 6205, 6413, 6674,
6690 of this title; title 2 sections 162b, 658a, 1503, 2064; title
10 section 2467; title 42 sections 401, 401a, 418, 429, 910, 1395i,
1395i-2, 1395ww, 12594.
-End-
-CITE-
26 USC Sec. 3112 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter B - Tax on Employers
-HEAD-
Sec. 3112. Instrumentalities of the United States
-STATUTE-
Notwithstanding any other provision of law (whether enacted
before or after the enactment of this section) which grants to any
instrumentality of the United States an exemption from taxation,
such instrumentality shall not be exempt from the tax imposed by
section 3111 unless such other provision of law grants a specific
exemption, by reference to section 3111 (or the corresponding
section of prior law), from the tax imposed by such section.
-SOURCE-
(Aug. 16, 1954, ch. 736, 68A Stat. 416.)
-End-
-CITE-
26 USC Sec. 3113 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter B - Tax on Employers
-HEAD-
[Sec. 3113. Repealed. Pub. L. 94-455, title XIX, Sec. 1903(a)(2),
Oct. 4, 1976, 90 Stat. 1806]
-MISC1-
Section, added Aug. 1, 1956, ch. 836, title II, Sec. 201(a)(1),
70 Stat. 839, related to a restriction on exemptions from taxation
for District of Columbia credit unions with respect to the tax
imposed by section 3111 of this title.
EFFECTIVE DATE OF REPEAL
Repeal applicable with respect to wages paid after Dec. 31, 1976,
see section 1903(d) of Pub. L. 94-455, set out as an Effective Date
of 1976 Amendment note under section 3101 of this title.
-End-
-CITE-
26 USC Subchapter C - General Provisions 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter C - General Provisions
-HEAD-
SUBCHAPTER C - GENERAL PROVISIONS
-MISC1-
Sec.
3121. Definitions.
3122. Federal service.
3123. Deductions as constructive payments.
3124. Estimate of revenue reduction.
3125. Returns in the case of governmental employees in
States, Guam, American Samoa, and the District of
Columbia.
3126. Return and payment by governmental employer.
3127. Exemption for employers and their employees where both
are members of religious faiths opposed to
participation in Social Security Act programs.
3128. Short title.
AMENDMENTS
1988 - Pub. L. 100-647, title VIII, Sec. 8007(a)(2), Nov. 10,
1988, 102 Stat. 3782, added item 3127 and redesignated former item
3127 as 3128.
1986 - Pub. L. 99-509, title IX, Sec. 9002(a)(2), Oct. 21, 1986,
100 Stat. 1971, added item 3126 and redesignated former item 3126
as 3127.
Pub. L. 99-272, title XIII, Sec. 13205(a)(2)(A)(iii), Apr. 7,
1986, 100 Stat. 315, inserted "States," in item 3125.
1965 - Pub. L. 89-97, title III, Sec. 317(c)(3), July 30, 1965,
79 Stat. 389, inserted reference to the District of Columbia in
item 3125.
1960 - Pub. L. 86-778, title I, Sec. 103(q)(2), Sept. 13, 1960,
74 Stat. 940, added item 3125 and redesignated former item 3125 as
3126.
-End-
-CITE-
26 USC Sec. 3121 01/19/04
-EXPCITE-
TITLE 26 - INTERNAL REVENUE CODE
Subtitle C - Employment Taxes
CHAPTER 21 - FEDERAL INSURANCE CONTRIBUTIONS ACT
Subchapter C - General Provisions
-HEAD-
Sec. 3121. Definitions
-STATUTE-
(a) Wages
For purposes of this chapter, the term "wages" means all
remuneration for employment, including the cash value of all
remuneration (including benefits) paid in any medium other than
cash; except that such term shall not include -
(1) in the case of the taxes imposed by sections 3101(a) and
3111(a) that part of the remuneration which, after remuneration
(other than remuneration referred to in the succeeding paragraphs
of this subsection) equal to the contribution and benefit base
(as determined under section 230 of the Social Security Act) with
respect to employment has been paid to an individual by an
employer during the calendar year with respect to which such
contribution and benefit base is effective, is paid to such
individual by such employer during such calendar year. If an
employer (hereinafter referred to as successor employer) during
any calendar year acquires substantially all the property used in
a trade or business of another employer (hereinafter referred to
as a predecessor), or used in a separate unit of a trade or
business of a predecessor, and immediately after the acquisition
employs in his trade or business an individual who immediately
prior to the acquisition was employed in the trade or business of
such predecessor, then, for the purpose of determining whether
the successor employer has paid remuneration (other than
remuneration referred to in the succeeding paragraphs of this
subsection) with respect to employment equal to the contribution
and benefit base (as determined under section 230 of the Social
Security Act) to such individual during such calendar year, any
remuneration (other than remuneration referred to in the
succeeding paragraphs of this subsection) with respect to
employment paid (or considered under this paragraph as having
been paid) to such individual by such predecessor during such
calendar year and prior to such acquisition shall be considered
as having been paid by such successor employer;
(2) the amount of any payment (including any amount paid by an
employer for insurance or annuities, or into a fund, to provide
for any such payment) made to, or on behalf of, an employee or
any of his dependents under a plan or system established by an
employer which makes provision for his employees generally (or
for his employees generally and their dependents) or for a class
or classes of his employees (or for a class or classes of his
employees and their dependents), on account of -
(A) sickness or accident disability (but, in the case of
payments made to an employee or any of his dependents, this
subparagraph shall exclude from the term "wages" only payments
which are received under a workman's compensation law), or
(B) medical or hospitalization expenses in connection with
sickness or accident disability, or
(C) death, except that this paragraph does not apply to a
payment for group-term life insurance to the extent that such
payment is includible in the gross income of the employee;
[(3) Repealed. Pub. L. 98-21, title III, Sec. 324(a)(3)(B),
Apr. 20, 1983, 97 Stat. 123]
(4) any payment on account of sickness or accident disability,
or medical or hospitalization expenses in connection with
sickness or accident disability, made by an employer to, or on
behalf of, an employee after the expiration of 6 calendar months
following the last calendar month in which the employee worked
for such employer;
(5) any payment made to, or on behalf of, an employee or his
beneficiary -
(A) from or to a trust described in section 401(a) which is
exempt from tax under section 501(a) at the time of such
payment unless such payment is made to an employee of the trust
as remuneration for services rendered as such employee and not
as a beneficiary of the trust,
(B) under or to an annuity plan which, at the time of such
payment, is a plan described in section 403(a),
(C) under a simplified employee pension (as defined in
section 408(k)(1)), other than any contributions described in
section 408(k)(6),
(D) under or to an annuity contract described in section
403(b), other than a payment for the purchase of such contract
which is made by reason of a salary reduction agreement
(whether evidenced by a written instrument or otherwise),
(E) under or to an exempt governmental deferred compensation
plan (as defined in subsection (v)(3)),
(F) to supplement pension benefits under a plan or trust
described in any of the foregoing provisions of this paragraph
to take into account some portion or all of the increase in the
cost of living (as determined by the Secretary of Labor) since
retirement but only if such supplemental payments are under a
plan which is treated as a welfare plan under section
3(2)(B)(ii) of the Employee Retirement Income Security Act of
1974,
(G) under a cafeteria plan (within the meaning of section
125) if such payment would not be treated as wages without
regard to such plan and it is reasonable to believe that (if
section 125 applied for purposes of this section) section 125
would not treat any wages as constructively received,
(H) under an arrangement to which section 408(p) applies,
other than any elective contributions under paragraph (2)(A)(i)
thereof, or
(I) under a plan described in section 457(e)(11)(A)(ii) and
maintained by an eligible employer (as defined in section
457(e)(1));
(6) the payment by an employer (without deduction from the
remuneration of the employee) -
(A) of the tax imposed upon an employee under section 3101,
or
(B) of any payment required from an employee under a State
unemployment compensation law,
with respect to remuneration paid to an employee for domestic
service in a private home of the employer or for agricultural
labor;
(7)(A) remuneration paid in any medium other than cash to an
employee for service not in the course of the employer's trade or
business or for domestic service in a private home of the
employer;
(B) cash remuneration paid by an employer in any calendar year
to an employee for domestic service in a private home of the
employer (including domestic service described in subsection
(g)(5)), if the cash remuneration paid in such year by the
employer to the employee for such service is less than the
applicable dollar threshold (as defined in subsection (x)) for
such year;
(C) cash remuneration paid by an employer in any calendar year
to an employee for service not in the course of the employer's
trade or business, if the cash remuneration paid in such year by
the employer to the employee for such service is less than $100.
As used in this subparagraph, the term "service not in the course
of the employer's trade or business" does not include domestic
service in a private home of the employer and does not include
service described in subsection (g)(5);
(8)(A) remuneration paid in any medium other than cash for
agricultural labor;
(B) cash remuneration paid by an employer in any calendar year
to an employee for agricultural labor unless -
(i) the cash remuneration paid in such year by the employer
to the employee for such labor is $150 or more, or
(ii) the employer's expenditures for agricultural labor in
such year equal or exceed $2,500,
except that clause (ii) shall not apply in determining whether
remuneration paid to an employee constitutes "wages" under this
section if such employee (I) is employed as a hand harvest
laborer and is paid on a piece rate basis in an operation which
has been, and is customarily and generally recognized as having
been, paid on a piece rate basis in the region of employment,
(II) commutes daily from his permanent residence to the farm on
which he is so employed, and (III) has been employed in
agriculture less than 13 weeks during the preceding calendar
year;
[(9) Repealed. Pub. L. 98-21, title III, Sec. 324(a)(3)(B),
Apr. 20, 1983, 97 Stat. 123]
(10) remuneration paid by an employer in any calendar year to
an employee for service described in subsection (d)(3)(C)
(relating to home workers), if the cash remuneration paid in such
year by the employer to the employee for such service is less
than $100;
(11) remuneration paid to or on behalf of an employee if (and
to the extent that) at the time of the payment of such
remuneration it is reasonable to believe that a corresponding
deduction is allowable under section 217 (determined without
regard to section 274(n));
(12)(A) tips paid in any medium other than cash;
(B) cash tips received by an employee in any calendar month in
the course of his employment by an employer unless the amount of
such cash tips is $20 or more;
(13) any payment or series of payments by an employer to an
employee or any of his dependents which is paid -
(A) upon or after the termination of an employee's employment
relationship because of (i) death, or (ii) retirement for
disability, and
(B) under a plan established by the employer which makes
provision for his employees generally or a class or classes of
his employees (or for such employees or class or classes of
employees and their dependents),
other than any such payment or series of payments which would
have been paid if the employee's employment relationship had not
been so terminated;
(14) any payment made by an employer to a survivor or the
estate of a former employee after the calendar year in which such
employee died;
(15) any payment made by an employer to an employee, if at the
time such payment is made such employee is entitled to disability
insurance benefits under section 223(a) of the Social Security
Act and such entitlement commenced prior to the calendar year in
which such payment is made, and if such employee did not perform
any services for such employer during the period for which such
payment is made;
(16) remuneration paid by an organization exempt from income
tax under section 501(a) (other than an organization described in
section 401(a)) or under section 521 in any calendar year to an
employee for service rendered in the employ of such organization,
if the remuneration paid in such year by the organization to the
employee for such service is less than $100;
(17) any contribution, payment, or service provided by an
employer which may be excluded from the gross income of an
employee, his spouse, or his dependents, under the provisions of
section 120 (relating to amounts received under qualified group
legal services plans);
(18) any payment made, or benefit furnished, to or for the
benefit of an employee if at the time of such payment or such
furnishing it is reasonable to believe that the employee will be
able to exclude such payment or benefit from income under section
127, 129, or 134(b)(4);
(19) the value of any meals or lodging furnished by or on
behalf of the employer if at the time of such furnishing it is
reasonable to believe that the employee will be able to exclude
such items from income under section 119;
(20) any benefit provided to or on behalf of an employee if at
the time such benefit is provided it is reasonable to believe
that the employee will be able to exclude such benefit from
income under section 74(c), 117, or 132; or
(21) in the case of a member of an Indian tribe, any
remuneration on which no tax is imposed by this chapter by reason
of section 7873 (relating to income derived by Indians from
exercise of fishing rights).
Nothing in the regulations prescribed for purposes of chapter 24
(relating to income tax withholding) which provides an exclusion
from "wages" as used in such chapter shall be construed to require
a similar exclusion from "wages" in the regulations prescribed for
purposes of this chapter. Except as otherwise provided in
regulations prescribed by the Secretary, any third party which
makes a payment included in wages solely by reason of the
parenthetical matter contained in subparagraph (A) of paragraph (2)
shall be treated for purposes of this chapter and chapter 22 as the
employer with respect to such wages.
(b) Employment
For purposes of this chapter, the term "employment" means any
service, of whatever nature, performed (A) by an employee for the
person employing him, irrespective of the citizenship or residence
of either, (i) within the United States, or (ii) on or in
connection with an American vessel or American aircraft under a
contract of service which is entered into within the United States
or during the performance of which and while the employee is
employed on the vessel or aircraft it touches at a port in the
United States, if the employee is employed on and in connection
with such vessel or aircraft when outside the United States, or (B)
outside the United States by a citizen or resident of the United
States as an employee for an American employer (as defined in
subsection (h)), or (C) if it is service, regardless of where or by
whom performed, which is designated as employment or recognized as
equivalent to employment under an agreement entered into under
section 233 of the Social Security Act; except that such term shall
not include -
(1) service performed by foreign agricultural workers lawfully
admitted to the United States from the Bahamas, Jamaica, and the
other British West Indies, or from any other foreign country or
possession thereof, on a temporary basis to perform agricultural
labor;
(2) domestic service performed in a local college club, or
local chapter of a college fraternity or sorority, by a student
who is enrolled and is regularly attending classes at a school,
college, or university;
(3)(A) service performed by a child under the age of 18 in the
employ of his father or mother;
(B) service not in the course of the employer's trade or
business, or domestic service in a private home of the employer,
performed by an individual under the age of 21 in the employ of
his father or mother, or performed by an individual in the employ
of his spouse or son or daughter; except that the provisions of
this subparagraph shall not be applicable to such domestic
service performed by an individual in the employ of his son or
daughter if -
(i) the employer is a surviving spouse or a divorced
individual and has not remarried, or has a spouse living in the
home who has a mental or physical condition which results in
such spouse's being incapable of caring for a son, daughter,
stepson, or stepdaughter (referred to in clause (ii)) for at
least 4 continuous weeks in the calendar quarter in which the
service is rendered, and
(ii) a son, daughter, stepson, or stepdaughter of such
employer is living in the home, and
(iii) the son, daughter, stepson, or stepdaughter (referred
to in clause (ii)) has not attained age 18 or has a mental or
physical condition which requires the personal care and
supervision of an adult for at least 4 continuous weeks in the
calendar quarter in which the service is rendered;
(4) service performed by an individual on or in connection with
a vessel not an American vessel, or on or in connection with an
aircraft not an American aircraft, if (A) the individual is
employed on and in connection with such vessel or aircraft, when
outside the United States and (B)(i) such individual is not a
citizen of the United States or (ii) the employer is not an
American employer;
(5) service performed in the employ of the United States or any
instrumentality of the United States, if such service -
(A) would be excluded from the term "employment" for purposes
of this title if the provisions of paragraphs (5) and (6) of
this subsection as in effect in January 1983 had remained in
effect, and
(B) is performed by an individual who -
(i) has been continuously performing service described in
subparagraph (A) since December 31, 1983, and for purposes of
this clause -
(I) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after being separated therefrom for a period of less than
366 consecutive days, regardless of whether the period
began before, on, or after December 31, 1983, then such
service shall be considered continuous,
(II) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after being detailed or transferred to an international
organization as described under section 3343 of subchapter
III of chapter 33 of title 5, United States Code, or under
section 3581 of chapter 35 of such title, then the service
performed for that organization shall be considered service
described in subparagraph (A),
(III) if an individual performing service described in
subparagraph (A) is reemployed or reinstated after being
separated from such service for the purpose of accepting
employment with the American Institute in Taiwan as
provided under section 3310 of chapter 48 of title 22,
United States Code, then the service performed for that
Institute shall be considered service described in
subparagraph (A),
(IV) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after performing service as a member of a uniformed service
(including, for purposes of this clause, service in the
National Guard and temporary service in the Coast Guard
Reserve) and after exercising restoration or reemployment
rights as provided under chapter 43 of title 38, United
States Code, then the service so performed as a member of a
uniformed service shall be considered service described in
subparagraph (A), and
(V) if an individual performing service described in
subparagraph (A) returns to the performance of such service
after employment (by a tribal organization) to which
section 105(e)(2) (!1) of the Indian Self-Determination Act
applies, then the service performed for that tribal
organization shall be considered service described in
subparagraph (A); or
(ii) is receiving an annuity from the Civil Service
Retirement and Disability Fund, or benefits (for service as
an employee) under another retirement system established by a
law of the United States for employees of the Federal
Government (other than for members of the uniformed service);
except that this paragraph shall not apply with respect to any
such service performed on or after any date on which such
individual performs -
(C) service performed as the President or Vice President of
the United States,
(D) service performed -
(i) in a position placed in the Executive Schedule under
sections 5312 through 5317 of title 5, United States Code,
(ii) as a noncareer appointee in the Senior Executive
Service or a noncareer member of the Senior Foreign Service,
or
(iii) in a position to which the individual is appointed by
the President (or his designee) or the Vice President under
section 105(a)(1), 106(a)(1), or 107 (a)(1) or (b)(1) of
title 3, United States Code, if the maximum rate of basic pay
for such position is at or above the rate for level V of the
Executive Schedule,
(E) service performed as the Chief Justice of the United
States, an Associate Justice of the Supreme Court, a judge of a
United States court of appeals, a judge of a United States
district court (including the district court of a territory), a
judge of the United States Court of Federal Claims, a judge of
the United States Court of International Trade, a judge of the
United States Tax Court, a United States magistrate judge, or a
referee in bankruptcy or United States bankruptcy judge,
(F) service performed as a Member, Delegate, or Resident
Commissioner of or to the Congress,
(G) any other service in the legislative branch of the
Federal Government if such service -
(i) is performed by an individual who was not subject to
subchapter III of chapter 83 of title 5, United States Code,
or to another retirement system established by a law of the
United States for employees of the Federal Government (other
than for members of the uniformed services), on December 31,
1983, or
(ii) is performed by an individual who has, at any time
after December 31, 1983, received a lump-sum payment under
section 8342(a) of title 5, United States Code, or under the
corresponding provision of the law establishing the other
retirement system described in clause (i), or
(iii) is performed by an individual after such individual
has otherwise ceased to be subject to subchapter III of
chapter 83 of title 5, United States Code (without having an
application pending for coverage under such subchapter),
while performing service in the legislative branch
(determined without regard to the provisions of subparagraph
(B) relating to continuity of employment), for any period of
time after December 31, 1983,
and for purposes of this subparagraph (G) an individual is
subject to such subchapter III or to any such other retirement
system at any time only if (a) such individual's pay is subject
to deductions, contributions, or similar payments (concurrent
with the service being performed at that time) under section
8334(a) of such title 5 or the corresponding provision of the
law establishing such other system, or (in a case to which
section 8332(k)(1) of such title applies) such individual is
making payments of amounts equivalent to such deductions,
contributions, or similar payments while on leave without pay,
or (b) such individual is receiving an annuity from the Civil
Service Retirement and Disability Fund, or is receiving
benefits (for service as an employee) under another retirement
system established by a law of the United States for employees
of the Federal Government (other than for members of the
uniformed services), or
(H) service performed by an individual -
(i) on or after the effective date of an election by such
individual, under section 301 of the Federal Employees'
Retirement System Act of 1986, section 307 of the Central
Intelligence Agency Retirement Act (50 U.S.C. 2157), or the
Federal Employees' Retirement System Open Enrollment Act of
1997 (!2) to become subject to the Federal Employees'
Retirement System provided in chapter 84 of title 5, United
States Code, or
(ii) on or after the effective date of an election by such
individual, under regulations issued under section 860 of the
Foreign Service Act of 1980, to become subject to the Foreign
Service Pension System provided in subchapter II of chapter 8
of title I of such Act;
(6) service performed in the employ of the United States or any
instrumentality of the United States if such service is performed
-
(A) in a penal institution of the United States by an inmate
thereof;
(B) by any individual as an employee included under section
5351(2) of title 5, United States Code (relating to certain
interns, student nurses, and other student employees of
hospitals of the Federal Government), other than as a medical
or dental intern or a medical or dental resident in training;
or
(C) by any individual as an employee serving on a temporary
basis in case of fire, storm, earthquake, flood, or other
similar emergency;
(7) service performed in the employ of a State, or any
political subdivision thereof, or any instrumentality of any one
or more of the foregoing which is wholly owned thereby, except
that this paragraph shall not apply in the case of -
(A) service which, under subsection (j), constitutes covered
transportation service,
(B) service in the employ of the Government of Guam or the
Government of American Samoa or any political subdivision
thereof, or of any instrumentality of any one or more of the
foregoing which is wholly owned thereby, performed by an
officer or employee thereof (including a member of the
legislature of any such Government or political subdivision),
and, for purposes of this title with respect to the taxes
imposed by this chapter -
(i) any person whose service as such an officer or employee
is not covered by a retirement system established by a law of
the United States shall not, with respect to such service, be
regarded as an employee of the United States or any agency or
instrumentality thereof, and
(ii) the remuneration for service described in clause (i)
(including fees paid to a public official) shall be deemed to
have been paid by the Government of Guam or the Government of
American Samoa or by a political subdivision thereof or an
instrumentality of any one or more of the foregoing which is
wholly owned thereby, whichever is appropriate,
(C) service performed in the employ of the District of
Columbia or any instrumentality which is wholly owned thereby,
if such service is not covered by a retirement system
established by a law of the United States (other than the
Federal Employees Retirement System provided in chapter 84 of
title 5, United States Code); except that the provisions of
this subparagraph shall not be applicable to service performed
-
(i) in a hospital or penal institution by a patient or
inmate thereof;
(ii) by any individual as an employee included under
section 5351(2) of title 5, United States Code (relating to
certain interns, student nurses, and other student employees
of hospitals of the District of Columbia Government), other
than as a medical or dental intern or as a medical or dental
resident in training;
(iii) by any individual as an employee serving on a
temporary basis in case of fire, storm, snow, earthquake,
flood or other similar emergency; or
(iv) by a member of a board, committee, or council of the
District of Columbia, paid on a per diem, meeting, or other
fee basis,
(D) service performed in the employ of the Government of Guam
(or any instrumentality which is wholly owned by such
Government) by an employee properly classified as a temporary
or intermittent employee, if such service is not covered by a
retirement system established by a law of Guam; except that (i)
the provisions of this subparagraph shall not be applicable to
services performed by an elected official or a member of the
legislature or in a hospital or penal institution by a patient
or inmate thereof, and (ii) for purposes of this subparagraph,
clauses (i) and (ii) of subparagraph (B) shall apply,
(E) service included under an agreement entered into pursuant
to section 218 of the Social Security Act, or
(F) service in the employ of a State (other than the District
of Columbia, Guam, or American Samoa), of any political
subdivision thereof, or of any instrumentality of any one or
more of the foregoing which is wholly owned thereby, by an
individual who is not a member of a retirement system of such
State, political subdivision, or instrumentality, except that
the provisions of this subparagraph shall not be applicable to
service performed -
(i) by an individual who is employed to relieve such
individual from unemployment;
(ii) in a hospital, home, or other institution by a patient
or inmate thereof;
(iii) by any individual as an employee serving on a
temporary basis in case of fire, storm, snow, earthquake,
flood, or other similar emergency;
(iv) by an election official or election worker if the
remuneration paid in a calendar year for such service is less
than $1,000 with respect to service performed during any
calendar year commencing on or after January 1, 1995, ending
on or before December 31, 1999, and the adjusted amount
determined under section 218(c)(8)(B) of the Social Security
Act for any calendar year commencing on or after January 1,
2000, with respect to service performed during such calendar
year; or
(v) by an employee in a position compensated solely on a
fee basis which is treated pursuant to section 1402(c)(2)(E)
as a trade or business for purposes of inclusion of such fees
in net earnings from self-employment;
for purposes of this subparagraph, except as provided in
regulations prescribed by the Secretary, the term "retirement
system" has the meaning given such term by section 218(b)(4) of
the Social Security Act;
(8)(A) service performed by a duly ordained, commissioned, or
licensed minister of a church in the exercise of his ministry or
by a member of a religious order in the exercise of duties
required by such order, except that this subparagraph shall not
apply to service performed by a member of such an order in the
exercise of such duties, if an election of coverage under
subsection (r) is in effect with respect to such order, or with
respect to the autonomous subdivision thereof to which such
member belongs;
(B) service performed in the employ of a church or qualified
church-controlled organization if such church or organization has
in effect an election under subsection (w), other than service in
an unrelated trade or business (within the meaning of section
513(a));
(9) service performed by an individual as an employee or
employee representative as defined in section 3231;
(10) service performed in the employ of -
(A) a school, college, or university, or
(B) an organization described in section 509(a)(3) if the
organization is organized, and at all times thereafter is
operated, exclusively for the benefit of, to perform the
functions of, or to carry out the purposes of a school,
college, or university and is operated, supervised, or
controlled by or in connection with such school, college, or
university, unless it is a school, college, or university of a
State or a political subdivision thereof and the services
performed in its employ by a student referred to in section
218(c)(5) of the Social Security Act are covered under the
agreement between the Commissioner of Social Security and such
State entered into pursuant to section 218 of such Act;
if such service is performed by a student who is enrolled and
regularly attending classes at such school, college, or
university;
(11) service performed in the employ of a foreign government
(including service as a consular or other officer or employee or
a nondiplomatic representative);
(12) service performed in the employ of an instrumentality
wholly owned by a foreign government -
(A) if the service is of a character similar to that
performed in foreign countries by employees of the United
States Government or of an instrumentality thereof; and
(B) if the Secretary of State shall certify to the Secretary
of the Treasury that the foreign government, with respect to
whose instrumentality and employees thereof exemption is
claimed, grants an equivalent exemption with respect to similar
service performed in the foreign country by employees of the
United States Government and of instrumentalities thereof;
(13) service performed as a student nurse in the employ of a
hospital or a nurses' training school by an individual who is
enrolled and is regularly attending classes in a nurses' training
school chartered or approved pursuant to State law;
(14)(A) service performed by an individual under the age of 18
in the delivery or distribution of newspapers or shopping news,
not including delivery or distribution to any point for
subsequent delivery or distribution;
(B) service performed by an individual in, and at the time of,
the sale of newspapers or magazines to ultimate consumers, under
an arrangement under which the newspapers or magazines are to be
sold by him at a fixed price, his compensation being based on the
retention of the excess of such price over the amount at which
the newspapers or magazines are charged to him, whether or not he
is guaranteed a minimum amount of compensation for such service,
or is entitled to be credited with the unsold newspapers or
magazines turned back;
(15) service performed in the employ of an international
organization, except service which constitutes "employment" under
subsection (y);
(16) service performed by an individual under an arrangement
with the owner or tenant of land pursuant to which -
(A) such individual undertakes to produce agricultural or
horticultural commodities (including livestock, bees, poultry,
and fur-bearing animals and wildlife) on such land,
(B) the agricultural or horticultural commodities produced by
such individual, or the proceeds therefrom, are to be divided
between such individual and such owner or tenant, and
(C) the amount of such individual's share depends on the
amount of the agricultural or horticultural commodities
produced;
(17) service in the employ of any organization which is
performed (A) in any year during any part of which such
organization is registered, or there is in effect a final order
of the Subversive Activities Control Board requiring such
organization to register, under the Internal Security Act of
1950, as amended, as a Communist-action organization, a
Communist-front organization, or a Communist-infiltrated
organization, and (B) after June 30, 1956;
(18) service performed in Guam by a resident of the Republic of
the Philippines while in Guam on a temporary basis as a
nonimmigrant alien admitted to Guam pursuant to section
101(a)(15)(H)(ii) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(H)(ii));
(19) Service which is performed by a nonresident alien
individual for the period he is temporarily present in the United
States as a nonimmigrant under subparagraph (F), (J), (M), or (Q)
of section 101(a)(15) of the Immigration and Nationality Act, as
amended, and which is performed to carry out the purpose
specified in subparagraph (F), (J), (M), or (Q), as the case may
be;
(20) service (other than service described in paragraph (3)(A))
performed by an individual on a boat engaged in catching fish or
other forms of aquatic animal life under an arrangement with the
owner or operator of such boat pursuant to which -
(A) such individual does not receive any cash remuneration
other than as provided in subparagraph (B) and other than cash
remuneration -
(i) which does not exceed $100 per trip;
(ii) which is contingent on a minimum catch; and
(iii) which is paid solely for additional duties (such as
mate, engineer, or cook) for which additional cash
remuneration is traditional in the industry,
(B) such individual receives a share of the boat's (or the
boats' in the case of a fishing operation involving more than
one boat) catch of fish or other forms of aquatic animal life
or a share of the proceeds from the sale of such catch, and
(C) the amount of such individual's share depends on the
amount of the boat's (or the boats' in the case of a fishing
operation involving more than one boat) catch of fish or other
forms of aquatic animal life,
but only if the operating crew of such boat (or each boat from
which the individual receives a share in the case of a fishing
operation involving more than one boat) is normally made up of
fewer than 10 individuals; or
(21) domestic service in a private home of the employer which -
(A) is performed in any year by an individual under the age
of 18 during any portion of such year; and
(B) is not the principal occupation of such employee.
For purposes of paragraph (20), the operating crew of a boat shall
be treated as normally made up of fewer than 10 individuals if the
average size of the operating crew on trips made during the
preceding 4 calendar quarters consisted of fewer than 10
individuals.
(c) Included and excluded service
For purposes of this chapter, if the services performed during
one-half or more of any pay period by an employee for the person
employing him constitute employment, all the services of such
employee for such period shall be deemed to be employment; but if
the services performed during more than one-half of any such pay
period by an employee for the person employing him do not
constitute employment, then none of the services of such employee
for such period shall be deemed to be employment. As used in this
subsection, the term "pay period" means a period (of not more than
31 consecutive days) for which a payment of remuneration is
ordinarily made to the employee by the person employing him. This
subsection shall not be applicable with respect to services
performed in a pay period by an employee for the person employing
him, where any of such service is excepted by subsection (b)(9).
(d) Employee
For purposes of this chapter, the term "employee" means -
(1) any officer of a corporation; or
(2) any individual who, under the usual common law rules
applicable in determining the employer-employee relationship, has
the status of an employee; or
(3) any individual (other than an individual who is an employee
under paragraph (1) or (2)) who performs services for
remuneration for any person -
(A) as an agent-driver or commission-driver engaged in
distributing meat products, vegetable products, fruit products,
bakery products, beverages (other than milk), or laundry or
dry-cleaning services, for his principal;
(B) as a full-time life insurance salesman;
(C) as a home worker performing work, according to
specifications furnished by the person for whom the services
are performed, on materials or goods furnished by such person
which are required to be returned to such person or a person
designated by him; or
(D) as a traveling or city salesman, other than as an
agent-driver or commission-driver, engaged upon a full-time
basis in the solicitation on behalf of, and the transmission
to, his principal (except for side-line sales activities on
behalf of some other person) of orders from wholesalers,
retailers, contractors, or operators of hotels, restaurants, or
other similar establishments for merchandise for resale or
supplies for use in their business operations;
if the contract of service contemplates that substantially all of
such services are to be performed personally by such individual;
except that an individual shall not be included in the term
"employee" under the provisions of this paragraph if such
individual has a substantial investment in facilities used in
connection with the performance of such services (other than in
facilities for transportation), or if the services are in the
nature of a single transaction not part of a continuing
relationship with the person for whom the services are performed;
or
(4) any individual who performs services that are included
under an agreement entered into pursuant to section 218 of the
Social Security Act.
(e) State, United States, and citizen
For purposes of this chapter -
(1) State
The term "State" includes the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and
American Samoa.
(2) United States
The term "United States" when used in a geographical sense
includes the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, and American Samoa.
An individual who is a citizen of the Commonwealth of Puerto Rico
(but not otherwise a citizen of the United States) shall be
considered, for purposes of this section, as a citizen of the
United States.
(f) American vessel and aircraft
For purposes of this chapter, the term "American vessel" means
any vessel documented or numbered under the laws of the United
States; and includes any vessel which is neither documented or
numbered under the laws of the United States nor documented under
the laws of any foreign country, if its crew is employed solely by
one or more citizens or residents of the United States or
corporations organized under the laws of the United States or of
any State; and the term "American aircraft" means an aircraft
registered under the laws of the United States.
(g) Agricultural labor
For purposes of this chapter, the term "agricultural labor"
includes all service performed -
(1) on a farm, in the employ of any person, in connection with
cultivating the soil, or in connection with raising or harvesting
any agricultural or horticultural commodity, including the
raising, shearing, feeding, caring for, training, and management
of livestock, bees, poultry, and fur-bearing animals and
wildlife;
(2) in the employ of the owner or tenant or other operator of a
farm, in connection with the operation, management, conservation,
improvement, or maintenance of such farm and its tools and
equipment, or in salvaging timber or clearing land of brush and
other debris left by a hurricane, if the major part of such
service is performed on a farm;
(3) in connection with the production or harvesting of any
commodity defined as an agricultural commodity in section 15(g)
of the Agricultural Marketing Act, as amended (12 U.S.C. 1141j),
or in connection with the ginning of cotton, or in connection
with the operation or maintenance of ditches, canals, reservoirs,
or waterways, not owned or operated for profit, used exclusively
for supplying and storing water for farming purposes;
(4)(A) in the employ of the operator of a farm in handling,
planting, drying, packing, packaging, processing, freezing,
grading, storing, or delivering to storage or to market or to a
carrier for transportation to market, in its unmanufactured
state, any agricultural or horticultural commodity; but only if
such operator produced more than one-half of the commodity with
respect to which such service is performed;
(B) in the employ of a group of operators of farms (other than
a cooperative organization) in the performance of service
described in subparagraph (A), but only if such operators
produced all of the commodity with respect to which such service
is performed. For purposes of this subparagraph, any
unincorporated group of operators shall be deemed a cooperative
organization if the number of operators comprising such group is
more than 20 at any time during the calendar year in which such
service is performed;
(C) the provisions of subparagraphs (A) and (B) shall not be
deemed to be applicable with respect to service performed in
connection with commercial canning or commercial freezing or in
connection with any agricultural or horticultural commodity after
its delivery to a terminal market for distribution for
consumption; or
(5) on a farm operated for profit if such service is not in the
course of the employer's trade or business or is domestic service
in a private home of the employer.
As used in this subsection, |
