#31.3121(d)-1 Who are employees.

(0) Common law employees.

O Cenerally such relationship exists when the person for whom services are performed has the right to control and dheet the individual who performs the antipps, not only as to the result to be complished by the work but also as to thus defalls and means by which that remult la nevomplished That is, an emplore la subiect to the will and control of the employer not only as to what shall be done but how it shall be done. In Chile commet 'on, it is not necessary that The employer actually direct or control The man in which the services are performed. It la autotent if he has the Holt to do an The right to discharge la alan an important factor Indicating that the poranit paspasing that right is An employer Other factors characterlatte of an employer, but not necessarily pannt in very onse, are the furnishing it Fonda and the furnishing of a place to work, to the hulldual who performs the acryling. In general, If an Individual ts aublood to the pontrol or direction of another merely as to the result to be Roomplished by the work and not as to the moana and methods for accomplishIs the result, he is an independent conBractor An Individual performing serv long as an Independent contractor is not as to such services an employee under the usual common law rules. Individuals such as physicians, lawyers, dentists, Veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, bustness, or profession, in which they offer their services to the public, are Independent contractors and not employees.

Hubparagraph (2) amended, T.D. 8744, 20 Ba14, July 9, 1984]

@31.3121(e) Statutory provisions; definitions; State, United States, and citizen.

Sme 3121. Definitions.

(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.

[Sec. 3121 (e) as amended by sec. 22(a), Alaska Omnibus Act (73 Stat. 146); sec. 18 (c), Hawaii Omnibus Act (74 Stat. 416); sec. 103 (p), Social Security Amendments 1960] [T.D. 6744, 29 F.R. 8314, July 2, 1964]

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

States,

(a) When used in the regulations in this subpart, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, the Territories of Alaska and Hawaii before their admission as States, and (when used with respect to services performed after 1960) Guam and American Samoa.

(b) When used in the regulations in this subpart, the term "United States", when used in a geographical sense, means the several states (including the Territories of Alaska and Hawaii before their admission as States), the District of Columbia, the Commonwealth of Puerto Rico, and the Virgin Islands. When used in the regulations in this subpart with respect to services performed after 1960, the term "United States" also Includes Guam and American Samoa when the term is used in a geographical sense. The term "citizen of the United States" includes a citizen of the Commonwealth of Puerto Rico or the Virgin Islands, and, effective January 1, 1961, a citizen of Guam or American Samoa. [T.D. 6744, 29 F.R. 8314, July 2, 1964] § 31.3121 (f)-1 American vessel and aircraft.

(a) The term "American vessel" means any vessel which is documented (that is, registered, enrolled, or licensed) or numbered in conformity with the laws of the United States. It also includes any vessel which is neither documented nor numbered under the laws of the United States, nor documented under the laws of any foreign country, if the crew of such vessel is employed solely by one or more citizens or residents of the United States

or corporations organized under the laws of the United States or of any State. (For provisions relating to the terms "State" and "citizen", see § 31.3121 (e)-1.)

[Paragraph (a) amended, T.D. 6744, 29 F.R. 8314, July 2, 1964]

*

§ 31.3121 (g)-1 Agricultural labor.

*

(a) In general. * *

(3) For provisions relating to the exception from employment provided with respect to services performed by certain foreign agricultural workers and to services performed before 1959 in connection with the production or harvesting of certain oleoresinous products, see § 31.3121 (b) (1)-1. For provisions relating to the exclusion from wages of remuneration paid in any medium other than cash for agricultural labor and to the test for determining whether cash remuneration paid for agricultural labor constitutes wages, see § 31.3121 (a) (8)−1.

[Subparagraph (3) amended, T.D. 6744, 29 F.R. 8315, July 2, 1964]

(f) Services described in section 3121 (g) (5). (1) Service not in the course of the employer's trade or business (see paragraph (a) (1) of § 31.3121(a) (7) −1) or domestic service in a private home of the employer (see paragraph (a)(2) of § 31.3121 (a) (7)-1) constitutes agricultural labor if such service is performed on a farm operated for profit. The determination whether remuneration for any such service performed on a farm operated for profit constitutes wages is to be made under § 31.3121(a) (8)-1 rather than under § 31.3121 (a) (7)−1. For provisions relating to the exception from employment provided with respect to any such service performed after 1960 by a father or mother in the employ of his or her son or daughter, see § 31.3121 (b) (3)-1.

[Subparagraph (1) amended, 29 F.R. 8315, July 2, 1964]

*

§ 31.3121 (h)-1 American employer.

(a) The term "American employer" means an employer which is (1) the United States or any instrumentality thereof, (2) an individual who is a resi

dent of the United States, (3) a partnership, if two-thirds or more of the partners are residents of the United States, (4) a trust, if all of the trustees are residents of the United States, or (5) a corporation organized under the laws of the United States or of any State. For provisions relating to the terms "State" and "United States", see § 31.3121(e)-1. [Paragraph (a) amended, 29 F.R. 8315, July 2, 1964]

§ 31.3121 (i)

Statutory provisions; definitions; computation of wages in certain cases.

SEC. 3121. Definitions. *

(i) Computation of wages in certain cases (1) Domestic service. For purposes of this chapter, in the case of domestic service described in subsection (a) (7) (B), any payment of cash remuneration for such service which is more or less than a whole-dollar amount shall, under such conditions and to such extent as may be prescribed by regulations made under this chapter, be computed to the nearest dollar. For the purpose of the computation to the nearest dollar, the payment of a fractional part of a dollar shall be disregarded unless it amounts to one-half dollar or more, in which case it shall be increased to $1. The amount of any payment of cash remuneration so computed to the nearest dollar shall, in lieu of the amount actually paid, be deemed to constitute the amount of cash remuneration for purposes of subsection (a) (7) (B).

(2) Service in the uniformed services. For purposes of this chapter, in the case of an individual performing service, as a member of a uniformed service, to which the provisions of subsection (m) (1) are applicable, the term "wages" shall, subject to the provisions of subsection (a)(1) of this section, include as such individual's remuneration for such service only his basic pay as described in section 102(10) of the Servicemen's and Veterans' Survivor Benefits Act. (3) Peace Corps volunteer service. For purposes of this chapter, in the case of an individual performing service, as a volunteer or volunteer leader within the meaning of the Peace Corps Act, to which the provisions of section 3121-(p) are applicable, the term "wages" shall, subject to the provisions of subsection (a)(1) of this section, include as such individual's remuneration for such service only amounts paid pursuant to section 5(c) or 6(1) of the Peace Corps Act. [Sec. 3121 (1) as amended by sec. 410, Servicemen's and Veterans' Survivor Benefits Act (70 Stat. 878); sec. 202(a)(1), Peace Corps Act (75 Stat. 626)]

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

51-050 O-66-3

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

In the case of an individual performing service after December 31, 1956, as a member of a uniformed service (see § 31.3121 (n)), to which the provisions of section 3121 (m) (1) (see § 31.3121(m)) are applicable, the term "wages" shall, subject to the provisions of section 3121 (a) (1) (see § 31.3121(a)-1), include as the individual's remuneration for such service only his basic pay as described in section 102(10) of the Servicemen's and Veterans' Survivor Benefits Act (38 U.S.C., 401(1), 403; 72 Stat. 1126). [T.D. 6744, 29 F.R. 8315, July 2, 1964] § 31.3121 (i)-3 Computation of remuneration for service performed by an individual as a volunteer or volunteer leader within the meaning of the Peace Corps Act.

In the case of an individual performing service in his capacity as a volunteer or volunteer leader within the meaning of the Peace Corps Act (see § 31.3121 (p)), the term "wages" shall, subject to the provisions of section 3121(a) (1) (see § 31.3121(a)-1), include as such individual's remuneration for such service only amounts paid pursuant to section 5(c) or section 6(1) of the Peace Corps Act (22 U.S.C. 2501; 75 Stat. 612). [T.D. 6744, 29 F.R. 8315, July 2, 1964]

§ 31.3121(k) Statutory provisions; definitions; waiver of exemption by religious, charitable, and certain other organizations.

SEC. 3121. Definitions.

(k) Exemption of religious, charitable, and certain other organizations-(1) Waiver of exemption by organization. (A) An orga

nization described in section 501 (c) (3) which is exempt from income tax under section 501(a) may file a certificate (in such form and manner, and with such official, as may be prescribed by regulations made under this chapter) certifying that it desires to have the insurance system established by title II of the Social Security Act extended to service performed by its employees. Such certificate may be filed only if it is accompanied by a list containing the signature, address, and social security account number (if any) of each employee (if any) who concurs in the filing of the certificate. Such list may be amended at any time prior to the expiration of the twenty-fourth month following

the calendar quarter in which the certificate is filled by filing with the prescribed official a supplemental list or lists containing the signature, address, and social security account number (if any) of each additional employee who concurs in the filing of the certificate. The list and any supplemental list shall be filed in such form and manner as may be prescribed by regulations made under this chapter.

(B) The certificate shall be in effect (for purposes of subsection (b) (8) (B) and for purposes of section 210(a) (8) (B) of the Social Security Act) for the period beginning with whichever of the following may be designated by the organization:

(1) The first day of the calendar quarter in which the certificate is filed,

(ii) The first day of the calendar quarter succeeding such quarter, or

(iii) The first day of any calendar quarter preceding the calendar quarter in which the certificate is filed, except that, in the case of a certificate filed prior to January 1, 1960, such date may not be earlier than January 1, 1956, and in the case of a certificate filed after 1959, such date may not be earlier than the first day of the fourth calendar quarter preceding the quarter in which such certificate is filed.

(C) In the case of service performed by an employee whose name appears on a supplemental list filed after the first month following the calendar quarter in which the certificate is filed, the certificate shall be in effect (for purposes of subsection (b) (8) (B) and for purposes of section 210(a) (8) (B) of the Social Security Act) only with respect to service performed by such individual for the period beginning with the first day of the calendar quarter in which such supplemental list is filed.

The

(D) The period for which a certificate filed pursuant to this subsection or the corresponding subsection of prior law is effective may be terminated by the organization, effective at the end of a calenda ̈ quarter, upon giving 2 years' advance notice in writing, but only if, at the time of the receipt of such notice, the certificate has been in effect for a period of not less than 8 years. notice of termination may be revoked by the organization by giving, prior to the close of the calendar quarter specified in the notice of termination, a written notice of such revocation. Notice of termination or revocation thereof shall be filed in such form and manner, and with such official, as may be prescribed by regulations made under this chapter.

(E) If an organization described in subparagraph (A) employs both individuals who are in positions covered by a pension, annuity, retirement, or similar fund or system established by a State or by a political subdivision thereof and individuals who are not

in such positions, the organization shall divide its employees into two separate groups. One group shall consist of all employees who are in positions covered by such a fund or system and (1) are members of such fund or system, or (ii) are not members of such fund or system but are eligible to become members thereof; and the other group shall consist of all remaining employees. An organization which has so divided its employees into two groups may file a certificate pursuant to subparagraph (A) with respect to the employees in either group, or may file a separate certificate pursuant to such subparagraph with respect to the employees in each group.

(F) An organization which filed a certificate under this subsection after 1955 but prior to the enactment of this subparagraph may file a request at any time before 1960 to have such certificate effective, with respect to the service of individuals who concurred in the filling of such certificate (initially or through the filing of a supplemental list) prior to enactment of this subparagraph and who concur in the filing of such new request, for the period beginning with the fi st day of any calendar quarter preceding the first calendar quarter for which it was effective and following the last calendar quarter of 1955. Such request shall be filed with such official and in such form and manner as may be presc.ibed by regulations made under this chapter. If a request is filed pursuant to this subparagraph

(1) For purposes of computing interest and for purposes of section 6651 (relating to addition to tax for failure to file tax return), the due date for the return and payment of the tax for any calendar quarter resulting from the filing of such request shall be the last day of the calendar month following the calendar quaiter in which the request is filed; and

(ii) The statutory period for the assessment of such tax shall not expire before the expiration of 3 years from such due date.

(G) If a certificate filed pursuant to this paragraph is effective for one or more calendar quarters prior to the quarter in which the certificate is filed, then

(1) For purposes of computing interest and for purposes of section 6651 (relating to addition to tax for failure to file tax return), the due date for the return and payment of the tax for such prior calendar quarters resulting from the filing of such certificate shall be the last day of the calendar month following the calendar quarter in which the certificate is filed; and

(ii) The statutory period for the assessment of such tax shall not expire before the expiration of 3 years from such due date.

(2) Termination of waiver period by Secretary or his delegate. If the Secretary or his delegate finds that any organization which filed a certificate pursuant to this subsection or the corresponding subsection of prior law

has failed to comply substantially with the requirements applicable with respect to the taxes imposed by this chapter or the corresponding provisions of prior law or is no longer able to comply with the requirements applicable with respect to the taxes imposed by this chapter, the Secretary or his delegate shall give such organization not less than 60 days' advance notice in writing that the period covered by such certificate will terminate at the end of the calendar quarter specified in such notice. Such notice of termination may be revoked by the Secretary or his delegate by giving, prior to the close of the calendar quarter specified in the notice of termination, written notice of such revocation to the organization. No notice of termination or of revocation thereof shall be given under this paragraph to an organization without the prior concurrence of the Secretary of Health, Education, and Welfare.

(3) No renewal of waiver. In the event the period covered by a certificate filed pursuant to this subsection or the corresponding subsection of prior law is terminated by the organization, no certificate may again be filled by such organization pursuant to this subsection.

[Sec. 3121(k) as amended by secs. 205(b), 207, and 402, Social Security Amendments 1954; sec. 201 (k) and (1), Social Security Amendments 1956; sec. 405 (a), Social Security Amendments 1958; sec. 105(a), Social Security Amendments 1960]

SEC. 403. [Social Security Amendments of 1954]. (a) In any case in which

(1) An individual has been employed, at any time subsequent to 1950 and prior to the enactment of the Social Security Amendments of 1956, by an organization which is described in section 501(c)(3) of the Internal Revenue Code of 1954 and which is exempt from income tax under section 501(a) of such Code but which did not have in effect, during the entire period in which the individual was so employed, a valid waiver certificate under section 1426(1)(1) of the Internal Revenue Code of 1939 or section 3121 (k) (1) of the Internal Revenue Code of 1954;

(2) The service performed by such individual as an employee of such organization during the period subsequent to 1950 and prior to 1957 would have constituted employment (as defined in section 210 of the Social Security Act and section 1426(b) of the Internal Revenue Code of 1939 or section 3121 (b) of the Internal Revenue Code of 1954, as the case may be, at the time such service was performed) if such organization had filed prior to the performance of such service such a certificate accompanied by a list of the signatures of employees who concurred in the filing of such certificate and such individual's signature had appeared on such list;

(3) The taxes imposed by sections 1400 and 1410 of the Internal Revenue Code of

1939 or sections 3101 and 3111 of the Internal Revenue Code of 1954, as the case may be, have been paid with respect to any part of the remuneration paid to such individual by such organization for such service performed during the period in which such organization did not have a valid waiver certificate in effect;

(4) Part of such taxes have been paid prior to the enactment of the Social Security Amendments of 1956;

(5) So much of such taxes as have been paid prior to the enactment of the Social Security Amendments of 1956 have been paid by such organization in good faith and without knowledge that a waiver certificate was necessary or upon the assumption that a valid waiver certificate had been filed by it under section 1426(1)(1) of the Internal Revenue Code of 1939 or section 3121(k) (1) of the Internal Revenue Code of 1954, as the case may be; and

(6) No refund of such taxes has been obtained,

the amount of such remuneration with respect to which such taxes have been paid shall, upon the request of such individual (filed on or before the date of the enactment of the Social Security Amendments of 1960 [September 13, 1960] and in such form and manner, and with such official, as may be prescribed by regulations under chapter 21 of the Internal Revenue Code of 1954), be deemed to constitute remuneration for employment as defined in section 210 of the Social Security Act and section 1426(b) of the Internal Revenue Code of 1939 or section 3121(b) of the Internal Revenue Code of 1954, as the case may be.

(b) In any case in which

(1) An individual has been employed, at any time subsequent to 1950 and prior to the enactment of the Social Security Amendments of 1956, by an organization which has filed a valid waiver certificate under section 1426(1)(1) of the Internal Revenue Code of 1939 or section 3121(k) (1) of the Internal Revenue Code of 1954;

(2) The service performed by such individual during the time he was so employed would have constituted employment (as defined in section 210 of the Social Security Act and section 1426(b) of the Internal Revenue Code of 1939 or section 3121(b) of the Internal Revenue Code of 1954, as the case may be, at the time such service was performed) if such individual's signature had appeared on the list of signatures of employees who concurred in the filing of such certificate;

(3) The taxes imposed by sections 1400 and 1410 of the Internal Revenue Code of 1939 or sections 3101 and 3111 of the Internal Revenue Code of 1954, as the case may be, have been paid prior to the enactment of the Social Security Amendments of 1956

with respect to any part of the remuneration paid to such individual by such organization for such service; and

(4) No refund of such taxes has been obtained,

the amount of such remuneration with respect to which such taxes have been paid shall, upon the request of such individual (fled on or before January 1, 1959, and in such form and manner, and with such official, as may be prescribed by regulations made under chapter 21 of the Internal Revenue Code of 1954), be deemed to constitute remuneration for employment as defined in section 210 of the Social Security Act and section 1426(b) of the Internal Revenue Code of 1939 or section 3121(b) of the Internal Revenue Code of 1954, as the case may be, and such individual shall be deemed to have concurred in the filing of the waiver certificate filed by such organization under section 1426 (1) (1) of the Internal Revenue Code of 1939 or section 3121(k) (1) of the Internal Revenue Code of 1954.

[Sec. 403, Social Security Amendments 1954 as amended by sec. 401, Social Security Amendments 1956; Act of Aug. 27, 1958 (Pub. Law 85-785, 72 Stat. 938); sec. 105(b)(6), Social Security Amendments 1960] [T.D. 6744, 29 F.R. 8315, July 2, 1964]

(a) Who may file a waiver certificate-(1) In general. If services performed in the employ of an organization are excepted from employment under section 3121(b) (8) (B), the organization may file a waiver certificate on Form SS-15, together with a list on Form SS15a, certifying that it desires to have the Federal old-age, survivors, and disability insurance system established by title II of the Social Security Act extended to services performed by its employees. (For provisions relating to the exception under section 3121(b) (8) (B), see §§ 31.3121(b) (8) and 31.3121(b) (8)-2.) A certificate in effect under section 1426 (1) of the Internal Revenue Code of 1939 on December 31, 1954, remains in effect under, and is subject to the provisions of, section 3121(k). If the period covered by a certificate filed under section 3121 (k), or under section 1426 (1) of the Internal Revenue Code of 1939, is terminated by an organization, a certificate may not thereafter be filed by the organization under section 3121(k). For regulations relating to certificates filed under section 1426 (1) of the Internal