rates of employer tax applicable with respect to compensation are as follows: (1) Compensation paid at any time after 1954 for services rendered (11) Compensation paid after May 31, 1959, for services rendered after May 31, 1959, and before (111) Compensation paid after May 31, (iv) Compensation paid after May 31, (vi) Compensation paid after May 31, 614 634 74 88 858 9% (2) The rates of employer tax with respect to compensation paid after May 81, 1959, for services rendered after 1964 are the sum of 74 percent and an additional percentage. The additional percentage is determined by subtracting 23⁄4 percent from the rate of tax imposed by section 3111 with respect to wages paid at the time such services are rendered. The rates set forth in subdivisions (iv), (v), and (vi) of subparagraph (1) of this paragraph are based upon the rates of tax imposed by section 3111, as amended by section 201(c) of the Social Security Amendments of 1961, and are subject to change in the event of further amendment of section 3111. (b) Computation. The employer tax is computed by multiplying the amount of the compensation with respect to which the employer tax is imposed by the rate applicable to such compensation, as determined under paragraph (a) of this section. [T.D. 6541, 26 F.R. 556, Jan. 20, 1961, as amended by T.D. 6727, 29 F.R. 5869, May 5, 1964] GENERAL PROVISIONS § 31.3231(a) Statutory provisions; definitions; employer. SEC. 3231. Definitions-(a) Employer. For purposes of this chapter, the term "employer" means any carrier (as defined in subsection (g)), and any company which is directly or indirectly owned or controlled by one or more such carriers or under common control therewith, and which operates any equipment or facility or performs any ser ice (except trucking service, casual servic and the casual operation of equipment facilities) in connection with the transpo tation of passengers or property by railroa or the receipt, delivery, elevation, transfe in transit, refrigeration or icing, storage, c handling of property transported by railroad and any receiver, trustee, or other individua or body, judicial or otherwise, when in th possession of the property or operating al or any part of the business of any such em ployer; except that the term "employer" shal not include any street, interurban, or sub urban electric railway, unless such railway is operating as a part of a general steam railroad system of transportation, but shal not exclude any part of the general steam roalroad system of transportation now 01 hereafter operated by any other motive power. The Interstate Commerce Commission is hereby authorized and directed upor request of the Secretary or his delegate, o upon complaint of any party interested, tc determine after hearing whether any line operated by electric power falls within the terms of this exception. The term “employer" shall also include railroad associations, traffic associations, tariff bureaus, demurrage bureaus, weighing and inspection bureaus, collection agencies and other associations, bureaus, agencies, or organizations controlled and maintained wholly or principally by two or more employers as hereinbefore defined and engaged in the performance of services in connection with or incidental to railroad transportation; and railway labor organizations, national scope, which have been or may be organized in accordance with the provisions of the Railway Labor Act, as amended (44 Stat. 577; 45 U.S.C., chapter 8), and their State and National legislative committees and their general committees and their insurance departments and their local lodges and divisions, established pursuant to the constitutions and bylaws of such organizations. The term "employer" shall not include any company by reason of its being engaged in the mining of coal, the supplying of coal to an employer where delivery is not beyond the mine tipple, and the operation of equipment or facilities therefor, or in any of such activities. § 31.3231(a)–1 Who are employers. in (a) Each of the following persons is an employer within the meaning of the act: (1) Any carrier, that is, any express company, sleeping-car company, or carrier by railroad, subject to part I of the Interstate Commerce Act; (2) Any company (i) Which is directly or indirectly owned or controlled by one or more employers as defined in subparagraph (1) this paragraph, or under common conol therewith, and (ii) Which operates any equipment or cility or performs any service (except ucking service, casual service, and the asual operation of equipment or facilies) in connection with (a) The transportation of passengers r property by railroad, or (b) The receipt, delivery, elevation, ransfer in transit, refrigeration or icing, torage, or handling of property transorted by railroad; (3) Any receiver, trustee, or other inlividual or body, judicial or otherwise, when in the possession of the property or operating all or any part of the business of any employer as defined in subparagraph (1) or (2) of this paragraph; (4) Any railroad association, traffic association, tariff bureau, demurrage bureau, weighing and inspection bureau, collection agency, and any other association, bureau, agency, or organization controlled and maintained wholly or principally by two or more employers as defined in subparagraph (1), (2) or (3) of this paragraph and engaged in the performance of services in connection with or incidental to railroad transportation; (5) Any railway labor organization, national in scope, which has been or may be organized in accordance with the provisions of the Railway Labor Act; and (6) Any subordinate unit of a national railway labor - organization employer, that is, any State or National legislative committee, general committee, insurance department, or local lodge or division, of an employer as defined in subparagraph (5) of this paragraph, established pursuant to the constitution and bylaws of such employer. (b) As used in paragraph (a) (2) of this section, the term "controlled" includes direct or indirect control, whether legally enforceable and however exercisable or exercised. The control may be by means of stock ownership, or by agreements, licenses, or any other devices which insure that the operation of the company is in the interest of one or more carriers. It is the reality of the control, however, which is decisive, not its form nor the mode of its exercise. (c) The term "employer" does not include any street, interurban, or suburban electric railway, unless such railway is operating as a part of a general steamrailroad system of transportation. but shall not exclude any part of the general steam-railroad system of transportation which is operated by any other motive power. (d) The term "employer" does not include any company by reason of its being engaged in the mining of coal, the supplying of coal to an employer where delivery is not beyond the mine tipple, and the operation of equipment or facilities for such mining or supplying of coal, or in any of such activities. § 31.3231 (b) Statutory provisions; definitions; employee. SEC. 3231. Definitions. (b) Employee. For purposes of this chapter, the term "employee" means any individual in the service of one or more employers for compensation; except that the term "employee" shall include an employee of a local lodge or division defined as an employer in subsection (a) only if he was in the service of or in the employment relation to a carrier on or after August 29, 1935. An individual shall be deemed to have been in the employment relation to a carrier on August 29, 1935, if (1) He was on that date on leave of absence from his employment, expressly granted to him by the carrier by whom he was employed, or by a duly authorized representative of such carrier, and the grant of such leave of absence was established to the satisfaction of the Railroad Retirement Board before July 1947; or (2) He was in the service of a carrier after August 29, 1935, and before January 1946 in each of 6 calendar months, whether or not consecutive; or (3) Before August 29, 1935, he did not retire and was not retired or discharged from the service of the last carrier by whom he was employed or its corporate or operating successor, but (A) Solely by reason of his physical or mental disability he ceased before August 29, 1935, to be in the service of such carrier and thereafter remained continuously disabled until he attained age 65 or until August 1945, or (B) Solely for such last stated reason a carrier by whom he was employed before August 29, 1935, or a carrier who is its successor did not on or after August 29, 1935, and before August 1945 call him to return to service, or (C) If he was so called he was solely for such reason unable to render service in 6 calendar months as provided in paragraph (2); or (4) He was on August 29, 1935, absent from the service of a carrier by reason of a discharge which, within 1 year after the effective date thereof, was protested, to an appropriate labor representative or to the carrier, as wrongful, and which was followed within 10 years of the effective date thereof by his reinstatement in good faith to his former service with all his seniority rights except that an individual shall not be deemed to have been on August 29, 1935, in the employment relation to a carrier if before that date he was granted a pension or gratuity on the basis of which a pension was awarded to him pursuant to section 6 of the Railroad Retirement Act of 1937 (50 Stat. 312; 45 U. S. C. 228f), or if during the last payroll period before August 29, 1935, in which he rendered service to a carrier he was not in the service of an employer, in accordance with subsection (d), with respect to any service in such payroll period, or if he could have been in the employment relation to an employer only by reason of his having been, either before or after August 29, 1935, in the service of a local lodge or division defined as an employer in subsection (a). The term "employee" includes an officer of an employer. The term "employee" shall not include any individual while such Individual is engaged in the physical operations consisting of the mining of coal, the preparation of coal, the handling (other than movement by rail with standard railroad locomotives) of coal not beyond the mine tipple, or the loading of coal at the tipple. (a) In general. (1) An individual who is in the service of one or more employers for compensation is an employee within the meaning of the act. (For definitions of the terms "employer", "service", and "compensation", see subsections (a), (d), and (e), respectively, of section 3231.) An individual is in the service of an employer, with respect to services rendered for compensation, if— (i) He is subject to the continuing Authority of the employer to supervise and direct the manner in which he renders such services; or supervise and direct the manner of ren dition of the services. Other factors in dicating that an individual is subject t the continuing authority of the employe to supervise and direct the manner of rendition of the services are the furnishing of tools and the furnishing of a place to work by the employer to the individua who renders the services. (ii) He is rendering professional or technical services and is integrated into the staff of the employer; or (iii) He is rendering, on the property used in the employer's operations, other personal services the rendition of which is integrated into the employer's operations. (3) In general, if an individual is subject to the control or direction of an employer merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. On individual performing services as an independent contractor is not as to such services, in the service of an employer within the meaning of subparagraph (1) (i) of this paragraph However, an individual performing services as an independent contractor may be, as to such services, in the service of an employer within the meaning of subparagraph (1) (ii) or (iii) of this paragraph. (2) In order that an individual may be in the service of an employer within the meaning of subparagraph (1) (i) of this paragraph, it is not necessary that the employer actually direct or control the manner in which the services are rendered; it is sufficient if the employer has the right to do so. The right of an employer to discharge an individual is aiso an important factor indicating that the individual is subject to the continuing authority of the employer to (4) Whether or not an individual is an employee will be determined upon an examination of the particular facts of the case. (5) If an individual is an employee, it is of no consequence that he is designated as a partner, coadventurer, agent, independent contractor, or otherwise, or that he performs services on a part-time basis. (6) No distinction is made between classes or grades of employees. Thus, superintendents, managers, and other supervisory personnel are employees st within the meaning of the act. An officer of an employer is an employee, but a director as such is not. such individual is not in the service of in employer. (9) If an individual performs services for an employer (other than a local lodge ›r division or a general committee of a railway-labor-organization employer) which conducts the principal part of its business within the United States, he s in the service of such employer whether his services are rendered within or without the United States. In the case of an individual, not a citizen or resident of the United States, rendering services in a place outside the United States to an employer which is required under the laws applicable in such place to employ, in whole or in part, citizens or residents thereof, such individual shall not be deemed to be in the service of an employer with respect to services so rendered. (10) The term "employee" does not include any individual while he is engaged in the physical operations consisting of the mining of coal, the preparation of coal, the handling (other than movement by rail with standard railroad locomotives) of coal not beyond the mine tipple, or the loading of coal at the tipple. (b) Employees of local lodges or divisions of railway-labor-organization employers. (1) An individual is in the service of a local lodge or division of a railway-labor-organization employer (see paragraph (a) (6) of § 31.3231 (a)-1) only if (i) All, or substantially all, the individuals constituting the membership of such local lodge or division are employees of an employer conducting the principal part of its business in the United States; or (ii) The headquarters of such local lodge or division is located in the United States. (2) (1) An individual in the service of a local lodge or division is not an employee within the meaning of the act unless he was, on or after August 29, 1935, in the service of a carrier (see § 31.3231 (g) for definition of carrier) or he was, on August 29, 1935, in the "employment relation" to a carrier. (ii) An individual shall be deemed to have been in the employment relation to a carrier on August 29, 1935, if (a) he was on that date on leave of absence from his employment expressly granted to him by the carrier by whom he was employed, or by a duly authorized representative or such carrier, and the grant of such leave of absence was established to the satisfaction of the Railroad Retirement Board before July 1947; or (b) he was in the service of a carrier after August 29, 1935, and before January 1946 in each of six calendar months whether or not consecutive; or (c) before August 29, 1935, he did not retire and was not retired or discharged from the service of the last carrier by whom he was employed or its corporate or operating successor, but (1) solely by reason of his physical or mental disability he ceased before August 29, 1935, to be in the service of such carrier and thereafter remained continuously disabled until he attained age sixty-five or until August 1945, or (2) solely for such last stated reason a carrier by whom he was employed before August 29, 1935, or a carrier who is its successor did not on or after August 29, 1935, and before August 1945 call him to return to service, or (3) if he was so called he was solely for such reason unable to render service in six calendar months as provided in (b) of this subdivision; or (d) he was on August 29, 1935, absent from the service of a carrier by reason of a discharge which, within one year after the effective date thereof, was protested, to an appropriate labor representative or to the carrier, as wrongful, and which was followed within 10 years of the effective date thereof by his reinstatement in good faith to his former service with all his seniority rights. However, an individual shall not be deemed to have been in the employment relation to a carrier on August 29, 1935, if before that date he was granted a pension or gratuity on the basis of which a pension was awarded to him pursuant to section 6 of the Railroad Retirement Act of 1937 (45 U.S.C. 228f), or if during the last payroll period before August 29, 1935, in which he rendered service to a carrier he was not, with respect to any service in such payroll period, in the service of an employer (see paragraph (a) of this section). (c) Employees of general committees of railway-labor-organization employers. An individual is in the service of a general committee of a railway-labororganization employer (see paragraph (a) (6) of § 31.3231 (a)-1) only if— (1) He is representing a local lodge or division described in paragraph (b) (1) of this section; or (2) All, or substantially all, the individuals represented by such general committee are employees of an employer conducting the principal part of its business in the United States; or (3) He acts in the capacity of a general chairman or an assistant general chairman of a general committee which represents individuals rendering service in the United States to an employer. In such case, if his office or headquarters is not located in the United States and the individuals represented by such general committee are employees of an employer not conducting the principal part of its business in the United States, only a part of his remuneration for such service shall be regarded as compensation. The part of his remuneration regarded as compensation shall be in the same proportion to his total remuneration as the mileage in the United States under the jurisdiction of such general committee bears to the total mileage under its jurisdiction, unless such mileage formula is inapplicable, in which case such other formula as the Railroad Retirement Board may have prescribed pursuant to section 1(c) of the Railroad Retirement Act of 1937 (45 U.S.C. 228a) shall be applicable. However, no part of his remuneration for such service shall be regarded as compensation if the application of such mileage formula, or such other formula as the Railroad Retirement Board may have prescribed, would result in his compensation for the service being less than 10 percent of his remuneration for such service. § 31.3231(c) Statutory provisions; definitions; employee representative. SEC. 3231. Definitions. * (c) Employee representative. For purposes of this chapter, the term "employee representative" means any officer or official representative of a railway labor organization other than a labor organization included in the term "employer” as defined in subsection (a), who before or after June 29, 1937, was in the service of an employer as defined in subsection (a) and who is duly authorized and designated to represent employees in accordance with the Railway Labor Act (44 Stat. 577; 45 U.S.C., chapter 8), as amended, and any individual who is regularly assigned to or regularly employed by such officer or official representative in connection with the duties of his office. § 31.3231 (c)-1 Who are employee representatives. (a) An employee representative within the meaning of the act is (1) Any officer or official representative of a railway labor organization which is not included as an employer under section 3231 (a) who (i) Was in the service of an employer either before or after June 29, 1937, and (ii) Is duly authorized and designated to represent employees in accordance with the Railway Labor Act. For railway labor organizations which are employers under section 3231 (a), see paragraph (a) (5) and (6) of § 31.3231 (a)-1. (2) Any individual who is regularly assigned to or regularly employed by an employee representative, as defined in subparagraph (1) of this paragraph, in connection with the duties of such employee representative's office. (b) In determining whether an individual is an employee representative, his citizenship or residence is material only insofar as those factors may affect the determination of whether he was "in the service of an employer" (see paragraph (a) of § 31.3231 (b)−1). § 31.3231(d) Statutory provisions; definitions; service. SEC. 3231. Definitions. * * (d) Service. For purposes of this chapter, an individual is in the service of an employer whether his service is rendered within or without the United States, if— (1) He is subject to the continuing authority of the employer to supervise and direct the manner of rendition of his service, or he is rendering professional or technical services and is integrated into the staff of the employer, or he is rendering, on the property used in the employer's operations, other personal services the rendition of which is integrated into the employer's operations, and (2) He renders such service for compensation; except that an individual shall be deemed to be in the service of an employer, other than a local lodge or division or a general committee of a railway-labor-organization employer, not conducting the principal part of its business in the United States, only when he is rendering service to it in the United States; and an individual shall be deemed to be in the service of such a local lodge or division only if— (3) All, or substantially all, the individuals constituting its membership are employees of an employer conducting the principal part of its business in the United States; or (4) The headquarters of such local lodge or division is located in the United States; and an individual shall be deemed to be in the service of such a general committee only if |