The term "child" means a claimant who:

(a) Is the legally adopted child of the individual upon whose wages and selfemployment income his application is based. For purposes of this paragraph, a child shall be deemed to be the legally adopted child of such individual as of the date of such individual's death if such child was living in such individual's household at the time of such death and was legally adopted by such individual's surviving spouse after such death, but—

(1) Only if (i) proceedings for the adoption of the child had been instituted by such individual before his death, or (ii) such child was adopted by such individual's surviving spouse before the end of 2 years after the date of such individual's death or before August 28, 1960, whichever is later, or

(2) For monthly benefits for months prior to February 1968, only if such child was adopted by such individual's surviving spouse before the end of 2 years after the date of such individual's death or before August 28, 1960, whichever is later. However, a child thus adopted after such individual's death shall not be deemed to be the legally adopted child of such individual if at the time of such individual's death the child was receiving regular contributions toward his support from someone other than such individual or his spouse, or from any public or private welfare organization which furnishes services or assistance for children;

or

(b) Is the stepchild of the individual upon whose wages and self-employment income his application is based by reason of a valid marriage of his parent (see § 404.1110 (c)) or adopting parent with such individual and, in the case of such a living individual, has been such stepchild for not less than 1 year (3 years for entitlement to benefits for months before September 1960) immediately preceding the day on which application for child's insurance benefits is filed, or, if such individual is deceased, not less than 9 months immediately preceding the day on which such individual died (1 year for

entitlement for months before February 1968-for waiver of the 9-month requirement, see § 404.1114).

A "child" who is not the stepchild of an individual shall, for benefits for months after August 1960, be deemed to be such stepchild if such individual was not the mother or adopting mother or the father or adopting father of such child and such individual and the mother or adopting mother or father or adopting father, as the case may be, of such child, went through a marriage ceremony resulting in a purported marriage between them which but for a legal impediment (see § 404.1101 (c) (3) (i)) would have been a valid marriage; or

(c) Is neither the stepchild nor legally adopted child of the individual upon whose wages and self-employment income his application is based but has the status of a child of such individual under applicable State law as described in § 404.1101 (a) and (b) (1), or is deemed to have the status of child of such individual pursuant to § 404.1101 (c) or (d). [27 F.R. 10679, Nov. 2, 1962, as amended at 31 F.R. 13128, Oct. 11, 1966; 34 F.R. 386, Jan. 10, 1969]

§ 404.1110 Definition of parent.

The term "parent" means an applicant who:

(a) Is the adopting parent of the individual upon whose wages and selfemployment income his application is based by reason of legal adoption of such individual before such individual attained age sixteen; or

(b) Is the stepparent of such individual by reason of a valid marriage with a parent (as defined in paragraph (c) of this section) or adopting parent of such individual, contracted before such individual attained age sixteen; or

(c) Is neither the adopting parent nor the stepparent of such individual, but has the status, under applicable State law, of parent of such individual.

[16 F.R. 13078, Dec. 28, 1951]

§ 404.1112 "Living in the same household".

(a) Defined. A husband and wife were "living in the same household" if they customarily lived together as husband and wife in the same place of abode. The temporary absence of one spouse from such place of abode does not preclude a finding that they were "living in the same household."

(b) Temporary absence. The absence of one spouse from the place of abode in which both had customarily lived as husband and wife shall, in the absence of evidence to the contrary, be considered temporary:

(1) If such absence was due to service in the armed forces of the United States; or

(2) If the period of absence from their place of abode did not exceed 6 months, and neither spouse was outside the United States, and the absence was due to business or employment reasons, or because of confinement in a penal institution or in a hospital, nursing home, or other curative institution; or

(3) In any other case, if the evidence establishes that despite such absence they nevertheless reasonably expected to resume physically living together at some time in the reasonably near future.

Where the death of one of the parties occurred while away from their place of abode for treatment or care of an illness or injury (e.g., in a hospital), the fact that the death was foreseen as possible or probable does not in and of itself preclude a finding that the parties were living in the same household at the time of death.

(c) Absences other than temporary. In situations other than those described in paragraph (b) of this section, the absence shall not be considered temporary, and the parties may not be found to be living in the same household. A finding of temporary absence would not be justified where one of the parties was committed to a penal institution for life or for a period exceeding the reasonable life expectancy of either, or was under a sentence of death; or where the parties had ceased to live in the same place of abode because of marital difficulties and had not resumed living together before death.

(d) Time when "living in the same household" had to exist. The determination as to whether the parties were "living in the same household" shall be based upon the facts and circumstances as of the time of death of the spouse on whose earnings record a lump-sum death payment is claimed.

[25 F.R. 11055, Nov. 22, 1960]

§ 404.1113 "Living with" and "living in such individual's household."

(a) Defined. "Living with" as used in sections 202 (d) (3), 202(d) (4), 202 (d) (8), 202(d) (9), and 216(h)(3) of the Act, as amended and "living in such individual's

household" as used in section 216(e) of the Act mean the parent and child are sharing the same residence and that the parent is exercising or has the right to exercise parental control and authority over the child. As used in this section, the term "parent" includes a natural parent, legally adopting parent, stepparent, and the foster parent as to whom the childclaimant has the status of "child" under a theory of "equitable adoption."

(b) Periodic or temporary separation. A child and parent will be considered to be sharing the same residence during a periodic or temporary separation if the circumstances indicate that the child and parent have shared and again expect to share a common residence when conditions permit; for example, the parent, prior to his induction into the Armed Forces, shared a common residence with the child or with the child's mother if the child was born during the separation. However, a child is not considered to be "living with" his parent or "living in such individual's household" in situations where the parent does not have the right to exercise parental control and authority over the child; for example, if the child is in the Armed Forces or is committed to a correctional institution. [33 F.R. 17902, Dec. 3, 1968] § 404.1114 Waiver

re

of 9-month quirement for widow, stepchild, or widower.

(a) General. Except as provided in paragraph (c) of this section, the requirement in § 404.1104 (e) or § 404.1107 (e) that the surviving spouse of an individual have been married to such individual for a period of not less than 9 months immediately prior to the day on which such individual died in order to qualify as such individual's widow or widower, and the requirement

in

§ 404.1109 (b) that the stepchild of a deceased individual have been such stepchild for not less than 9 months immediately preceding the day on which such individual died in order to qualify as such individual's child, shall be deemed to be satisfied, where such individual dies within the applicable 9-month period, if his or her death

(1) Is accidental (as defined in paragraph (b) of this section), or

(2) Occurs in line of duty while he or she is a member of a uniformed service serving on active duty (as defined in § 404.1013 (f) (2) and (3)),

and, in the case of the surviving spouse, he or she was married to such individual for a period of not less than 3 months prior to the day on which such individual died, or, in the case of the stepchild, he or she had been such stepchild for not less than 3 months immediately preceding the day on which such individual died.

(b) Accidental death. For purposes of paragraph (a)(1) of this section the death of an individual is accidental if such individual receives bodily injuries solely through violent, external, and accidental means and, as a direct result of the bodily injuries and independently of all other causes, loses his or her life not later than 3 months after the day on which he or she receives such bodily injuries. The term "accident" means an event that was unpremeditated and unforeseen from the standpoint of the deceased individual. To determine whether the death of an individual did, in fact, result from an accident the Administration will consider all the circumstances surrounding the casualty. An intentional and voluntary suicide will not be considered to be death by accident; however, suicide by an individual who is so insane as to be incapable of acting intentionally and voluntarily will be considered to be death by accident. In no event will the death of an individual resulting from violent and external causes be considered a suicide unless there is direct proof that the fatal injury was selfinflicted.

(c) Applicability. The provisions of this section apply with respect to monthly benefits under title II of the Act for months after January 1968, except that such provisions shall not apply if the Secretary determines that at the time of the marriage involved, the individual involved could not have reasonably been expected to live for 9 months. (Secs. 216, 5, 64 Stat. 510, 67 Stat. 18, 631; 42 U.S.C. 416) [34 F.R. 386, Jan. 10, 1969] Subpart M-Coverage of Employees

of State and Local Governments AUTHORITY: The provisions of this Subpart M issued under sec. 218, 64 Stat. 514, as amended; 42 U.S.C. 418.

§ 404.1201 General effect of section 218 of the Act.

(a) States. Under the provisions of section 218 of the act a State may request the Secretary of Health, Education,

and Welfare to enter into an agreement with the State for the purpose of extending to certain employees of the State and its political subdivisions protection accorded other employees by the old-age, survivors, and disability insurance system embodied in the Social Security Act. Each State may signify its intention to extend the benefits of the system to certain groups of its employees and to certain groups of employees of its political subdivisions by requesting the Secretary of Health, Education, and Welfare to enter into an agreement with the State to provide for coverage under the old-age, survivors, and disability insurance system of any one or more groups of such employees.

(b) Instrumentalities of two or more States. The system may be extended also to services performed by individuals as employees of any instrumentality of two or more States if such instrumental. ity requests the Secretary of Health, Education, and Welfare to enter into an agreement with it to provide for the extension of the system to such employees. For the purposes of the regulations in this subpart and to the extent not inconsistent therewith, the provisions in this subpart, when they refer to a State, shall apply, as well, to an instrumentality of two or more States.

[20 F.R. 3329, May 14, 1955, as amended at 24 F.R. 6615, Aug. 14, 1959]

§ 404.1210 Scope of this subpart.

(a) Contribution with respect to wages paid after 1950. The regulations in this subpart relate to contributions on wages paid and received on and after January 1, 1951, with respect to employment covered under agreements made pursuant to section 218 of the act.

and

(b) Adjustments, settlements, claims. The regulations in this subpart also relate to adjustments, settlements, and claims made in connection with the contributions paid on wages paid and received on or after January 1, 1951, with respect to employment covered under agreements made pursuant to section 218 of the act.

(c) Identification of States, political subdivisions, and employees thereof. The regulations in this subpart also relate to the use after December 31, 1950, of account numbers assigned to employees, identification numbers assigned to States and to political subdivisions thereof included in agreements made

214

212

3

Percent

1957 and 1958-

1959

1960 and 1961. 1962

1963 through 1965_.

3% 35%

(c) Method of computation of contributions. The contributions are computed by applying to the wages actually or constructively paid to an employee the rate in effect at the time such wages are actually or constructively paid.

Example: In 1966, A receives wages of $250 from his employer for services which he performed in 1965. The applicable rate is that for the calendar year 1966 (the year in which the wages were received) rather than the rate for the calendar year 1965 (the year in which the services were performed). Thus, the applicable rate is 4.20 percent (3.85 percent for old-age, survivors, and disability insurance, and 0.35 percent for hospital insurance).

[31 F.R. 8367, June 15, 1966]

§ 404.1222 Liability of State for contributions.

(a) In general. The State is liable for contributions with respect to the wages paid to individuals performing services in employment as employees in any coverage group included in the agreement. With respect to service cov

ered under the agreement and performed subsequent to the date of execution of the agreement, the liability of the State attaches at the time that the wages are either actually or constructively paid to individuals performing service in employment as employees in any coverage group included in the agreement, notwithstanding the fact that the wages are paid in media other than money (for example, wages paid in board or lodging; see 404.1026(a)). If the agreement is effective retroactively with respect to service in employment performed by individuals as members of any coverage group, the liability of the State with respect to wages paid during such retroactive period attaches as of the date of execution of the agreement, or the modification of the agreement pursuant to which the coverage group is included thereunder, as the case may be.

The

(b) Measure of State's liability. amount of the State's liability for contributions is equal to the sum of the taxes which would be imposed by sections 1400 and 1410 of the Internal Revenue Code of 1939, if the services of the employees covered by the agreement constituted employment as defined in section 1426 of such code, and the sum of the taxes which would be imposed by sections 3101 and 3111 of the Internal Revenue Code of 1954, if the services of the employees covered by the agreement constituted employment as defined in section 3121 of such code. (See § 404.1222a for the computation of contributions where the provisions of section 218(e) (2) of the Act are applicable.)

[26 F.R. 12685, Dec. 29, 1961]

§ 404.1222a

Limitation on State's liability for contributions for multiple employment.

(a) In general. Notwithstanding paragraph (b) of § 404.1222, where:

(1) An individual in any calendar year performs services in employment as an employee of a State in one or more coverage groups included in an agreement and as an employee of one or more political subdivisions of the State in one or more coverage groups included in an agreement, or as an employee of more than one political subdivision in one or more coverage groups of each such political subdivision included in an agreement; and

(2) Such State provides all of the funds for the payment of that portion of the contributions payable with respect

to the remuneration of such individual for services in employment in the coverage groups included under the agreement which is equivalent to the tax which would be imposed by section 3111 of the Internal Revenue Code of 1954 if the services of such individual constituted employment as defined in section 3121 of such code; and

(3) The State is not reimbursed by any political subdivision involved for the payment of such amounts, the agreement may provide (either in the orignal agreement or by a modification thereof) that the amount of the State's liability for contributions attributable to the remuneration of such individual for such services in employment included under the agreement shall be computed as though the individual had performed services in employment in the employ of one political subdivision, and, in accordance with such agreement, the State shall so compute the contributions attributable to the remuneration of such individual.

(b) Identification of employees in multiple employment. Any agreement or modification of an agreement which provides for the computation of contributions in the manner prescribed in paragraph (a) of this section shall identify therein the class or classes of employees with respect to whose wages such manner of computing contributions shall apply. For example, the State may provide that such computation shall apply with respect to the wages paid to all individuals for services performed in positions covered by a particular retirement system, or it may provide that such computation shall apply with respect to the wages paid to all individuals who are members of any two or more coverage groups designated in such agreement or modification. The State shall promptly notify the Department if the conditions in paragraph (a) of this section are no longer met with respect to any class or classes of the employees previously identified in the agreement or modification thereof. Such notification shall identify each class of employees and the date on which such conditions cease to be met.

(c) Effective date. The agreement or modification thereof shall also provide that such computation of contributions shall apply with respect to wages paid after an effective date specified therein. Such date may be the last day of any calendar year but in no event may the