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§ 31.6001–2
Subpart G—Administrative Provisions of Special Application to
Employment Taxes (Selected
Provisions of Subtitle F, Internal Revenue Code of 1954)
§ 31.6001–1
Records in general.
(a) Form of records. The records required by the regulations in this part
shall be kept accurately, but no particular form is required for keeping the
records. Such forms and systems of accounting shall be used as will enable
the district director to ascertain
whether liability for tax is incurred
and, if so, the amount thereof.
(b) Copies of returns, schedules, and
statements. Every person who is required, by the regulations in this part
or by instructions applicable to any
form prescribed thereunder, to keep
any copy of any return, schedule,
statement, or other document, shall
keep such copy as a part of his records.
(c) Records of claimants. Any person
(including an employee) who, pursuant
to the regulations in this part, claims
a refund, credit or abatement, shall
keep a complete and detailed record
with respect to the tax, interest, addition to the tax, additional amount, or
assessable penalty to which the claim
relates. Such record shall include any
records required of the claimant by
paragraph (b) of this section and by
§§ 31.6001–2 to 31.6001–5, inclusive, which
relate to the claim.
(d) Records of employees. While not
mandatory (except in the case of
claims), it is advisable for each employee to keep permanent, accurate
records showing the name and address
of each employer for whom he performs
services as an employee, the dates of
beginning and termination of such
services, the information with respect
to himself which is required by the regulations in this subpart to be kept by
employers, and the statements furnished in accordance with the provisions of § 31.6051–1.
(e) Place and period for keeping
records. (1) All records required by the
regulations in this part shall be kept,
by the person required to keep them, at
one or more convenient and safe locations accessible to internal revenue of-
ficers, and shall at all times be available for inspection by such officers.
(2) Except as otherwise provided in
the following sentence, every person
required by the regulations in this part
to keep records in respect of a tax
(whether or not such person incurs liability for such tax) shall maintain
such records for at least four years
after the due date of such tax for the
return period to which the records relate, or the date such tax is paid,
whichever is the later. The records of
claimants required by paragraph (c) of
this section shall be maintained for a
period of at least four years after the
date the claim is filed.
(f) Cross reference. See §§ 31.6001–2 to
31.6001–5, inclusive, for additional
records required with respect to the
Federal Insurance Contributions Act,
the Railroad Retirement Tax Act, the
Federal Unemployment Tax act, and
the collection of income tax at source
on wages, respectively.
§ 31.6001–2 Additional records under
Federal Insurance Contributions
Act.
(a) In general. (1) Every employer liable for tax under the Federal Insurance
Contributions Act shall keep records of
all remuneration, whether in cash or in
a medium other than cash, paid to his
employees after 1954 for services (other
than agricultural labor which constitutes or is deemed to constitute employment, domestic service in a private
home of the employer, or service not in
the course of the employer’s trade or
business) performed for him after 1936.
Such records shall show with respect to
each employee receiving such remuneration—
(i) The name, address, and account
number of the employee and such additional information with respect to the
employee as is required by paragraph
(c) of § 31.6011(b)–2 when the employee
does not advise the employer what his
account number and name are as
shown on an account number card
issued to the employee by the Social
Security Administration.
(ii) The total amount and date of
each payment of remuneration (including any sum withheld therefrom as tax
or for any other reason) and the period
of services covered by such payment.
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§ 31.6001–2
26 CFR Ch. I (4–1–03 Edition)
(iii) The amount of each such remuneration payment which constitutes
wages subject to tax. See §§ 31.3121(a)–1
to 31.3121(a)(12)–1, inclusive.
(iv) The amount of employee tax, or
any amount equivalent to employee
tax, collected with respect to such payment, and, if collected at a time other
than the time such payment was made,
the date collected. See paragraph (b) of
§ 31.3102–1 for provisions relating to collection of amounts equivalent to employee tax.
(v) If the total remuneration payment (paragraph (a)(1)(ii) of this section) and the amount thereof which is
taxable (paragraph (a)(1)(iii) of this
section) are not equal, the reason
therefor.
(2) Every employer shall keep records
of the details of each adjustment or
settlement of taxes under the Federal
Insurance Contributions Act made pursuant to the regulations in this part.
The employer shall keep as a part of
his records a copy of each statement
furnished pursuant to paragraph (c) of
§ 31.6011(a)–1.
(3) Every employer shall keep records
of all remuneration in the form of tips
received by his employees after 1965 in
the course of their employment and reported to him pursuant to section
6053(a). The employer shall keep as
part of his records employee statements of tips furnished him pursuant
to section 6053(a) (unless the information disclosed by such statements is recorded on another document retained
by the employer pursuant to paragraph
(a)(1) of this section) and copies of employer statements furnished employees
pursuant to section 6053(b).
(b) Agricultural labor, domestic service,
and service not in the course of employer’s
trade or business. (1) Every employer
who pays cash remuneration after 1954
for the performance for him after 1950
of agricultural labor which constitutes
or is deemed to constitute employment, of domestic service in a private
home of the employer not on a farm operated for profit, or of service not in
the course of his trade or business shall
keep records of all such cash remuneration with respect to which he incurs, or
expects to incur, liability for the taxes
imposed by the Federal Insurance Contributions Act, or with respect to
which amounts equivalent to employee
tax are deducted pursuant to section
3102(a). See §§ 31.3101–3, 31.3111–3, and
31.3121(a)–2 for provisions relating, respectively, to the liability for employee tax which is incurred when
wages are received, the liability for
employer tax which is incurred when
wages are paid, and the time when
wages are paid and received. Such
records shall show with respect to each
employee receiving such cash remuneration—
(i) The name of the employee.
(ii) The account number of each employee to whom wages for such services
are paid within the meaning of
§ 31.3121(a)–2, and such additional information as is required by paragraph (c)
of § 31.6011(b)–2 when the employee does
not advise the employer what his account number and name are as shown
on an account number card issued to
the employee by the Social Security
Administration.
(iii) The amount of such cash remuneration paid to the employee (including any sum withheld therefrom as tax
or for any other reason) for agricultural labor which constitutes or is
deemed to constitute employment, for
domestic service in a private home of
the employer not on a farm operated
for profit, or for service not in the
course of the employer’s trade or business; the calendar month in which such
cash remuneration was paid; and the
character of the services for which
such cash remuneration was paid.
When the employer incurs liability for
the taxes imposed by the Federal Insurance Contributions Act with respect
to any such cash remuneration which
he did not previously expect would be
subject to the taxes, the amount of any
such cash remuneration not previously
made a matter of record shall be determined by the employer to the best of
his knowledge and belief.
(iv) The amount of employee tax, or
any amount equivalent to employee
tax, collected with respect to such cash
remuneration and the calendar month
in which collected. See paragraph (b) of
§ 31.3102–1 for provisions relating to collection of amounts equivalent to employee tax.
(v) To the extent material to a determination of tax liability, the number
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Internal Revenue Service, Treasury
§ 31.6001–4
of days during each calendar year after
1956 on which agricultural labor which
constitutes or is deemed to constitute
employment is performed by the employee for cash remuneration computed on a time basis.
(2) Every person to whom a ‘‘crew
leader’’, as that term is defined in section 3121(i), furnishes individuals for
the performance of agricultural labor
after December 31, 1958, shall keep
records of the name; permanent mailing address, or if none, present address;
and identification number, if any, of
such ‘‘crew leader’’.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 7001, 34 FR 1003, Jan. 23,
1969]
§ 31.6001–3 Additional records under
Railroad Retirement Tax Act.
(a) Records of employers. (1) Every employer liable for tax under the Railroad
Retirement Tax Act shall keep records
of all remuneration (whether in money
or in something which may be used in
lieu of money), other than tips, paid to
his employees after 1954 for services
rendered to him (including ‘‘time
lost’’) after 1954. Such records shall
show with respect to each employee—
(i) The name and address of the employee.
(ii) The total amount and date of
each payment of remuneration to the
employee (including any sum withheld
therefrom as tax or for any other reason) and the period of service (including any period of absence from active
service) covered by such payment.
(iii) The amount of such remuneration payment with respect to which the
tax is imposed.
(iv) The amount of employee tax collected with respect to such payment,
and, if collected at a time other than
the time such payment was made, the
date collected.
(v) If the total payment of remuneration (paragraph (a)(1)(ii) of this section) and the amount thereof with respect to which the tax is imposed
(paragraph (a)(1)(iii) of this section)
are not equal, the reason therefor.
(2) The employer shall keep records
of the details of each adjustment or
settlement of taxes under the Railroad
Retirement Tax Act made pursuant to
the regulations in this part.
(b) Records of employee representatives.
Every individual liable for employee
representative tax under the Railroad
Retirement Tax Act shall keep records
of all remuneration (whether in money
or in something which may be used in
lieu of money) paid to him after 1954
for services rendered (including ‘‘time
lost’’) by him as an employee representative after 1954. Such records
shall show—
(1) The name and address of each employee organization employing him.
(2) The total amount and date of each
payment of remuneration for services
rendered as an employee representative
(including any sum withheld therefrom
as tax or for any other reason) and the
period of service (including any period
of absence from active service) covered
by such payment.
(3) The amount of such remuneration
payment with respect to which the employee representative tax is imposed.
(4) If the total payment of remuneration (paragraph (a)(2) of this section)
and the amount thereof with respect to
which the employee representative tax
is imposed (paragraph (a)(3) of this section) are not equal, the reason therefor.
§ 31.6001–4 Additional records under
Federal Unemployment Tax Act.
(a) Records of employers. Every employer liable for tax under the Federal
Unemployment Tax Act for any calendar year shall, with respect to each
such year, keep such records as are
necessary to establish—
(1) The total amount of remuneration
(including any sum withheld therefrom
as tax or for any other reason) paid to
his employees during the calendar year
for services performed after 1938.
(2) The amount of such remuneration
which constitutes wages subject to the
tax.
See
§ 31.3306(b)–1
through
§ 31.3306(b)(8)–1.
(3) The amount of contributions paid
by him into each State unemployment
fund, with respect to services subject
to the law of such State, showing separately (i) payments made and neither
deducted nor to be deducted from the
remuneration of his employees, and (ii)
payments made and deducted or to be
deducted from the remuneration of his
employees.
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§ 31.6001–5
26 CFR Ch. I (4–1–03 Edition)
(4) The information required to be
shown on the prescribed return and the
extent to which the employer is liable
for the tax.
(5) If the total remuneration paid
(paragraph (a)(1) of this section) and
the amount thereof which is subject to
the tax (paragraph (a)(2) of this section) are not equal, the reason therefor.
(6) To the extent material to a determination of tax liability, the dates, in
each calendar quarter, on which each
employee performed services not in the
course of the employer’s trade or business, and the amount of cash remuneration paid at any time for such
services performed within such quarter
See § 31.3306(c)(3)–1.
The term ‘‘remuneration,’’ as used in
this paragraph, includes all payments
whether in cash or in a medium other
than cash, except that the term does
not include payments in a medium
other than cash for services not in the
course of the employer’s trade or business. See § 31.3306(b)(7)–1.
(b) Records of persons who are not employers. Any person who employs individuals
in
employment
(see
§§ 31.3306(c)–1 to 31.3306(c)–3, inclusive)
during any calendar year but who considers that he is not an employer subject to the tax (see § 31.3306(a)–1) shall,
with respect to each such year, be prepared to establish by proper records
(including, where necessary, records of
the number of employees employed
each day) that he is not an employer
subject to the tax.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6658, 28 FR 6642, June 27,
1963]
§ 31.6001–5 Additional records in connection with collection of income
tax at source on wages.
(a) Every employer required under
section 3402 to deduct and withhold income tax upon the wages of employees
shall keep records of all remuneration
paid to (including tips reported by)
such employees. Such records shall
show with respect to each employee—
(1) The name and address of the employee, and after December 31, 1962, the
account number of the employee.
(2) The total amount and date of each
payment of remuneration (including
any sum withheld therefrom as tax or
for any other reason) and the period of
services covered by such payment.
(3) The amount of such remuneration
payment which constitutes wages subject to withholding.
(4) The amount of tax collected with
respect to such remuneration payment,
and, if collected at a time other than
the time such payment was made, the
date collected.
(5) If the total remuneration payment (paragraph (a)(2) of this section)
and the amount thereof which is taxable (paragraph (a)(3) of this section)
are not equal, the reason therefor.
(6) Copies of any statements furnished by the employee pursuant to
paragraph (b)(12) of § 31.3401(a)–1 (relating to permanent residents of the Virgin Islands).
(7) Copies of any statements furnished by the employee pursuant to
§§ 31.3401(a)(6)–1 and 31.3401(a)(7)–1, relating to nonresident alien individuals.
(8) Copies of any statements furnished by the employee pursuant to
§ 31.3401(a)(8)(A)–1 (relating to residence
or physical presence in a foreign country).
(9) Copies of any statements furnished by the employee pursuant to
§ 31.3401(a)(8)(C)–1 (relating to citizens
resident in Puerto Rico).
(10) The fair market value and date of
each payment of noncash remuneration, made to an employee after August 9, 1955, for services performed as a
retail commission salesman, with respect to which no income tax is withheld by reason of § 31.3402(j)–1.
(11) [Reserved]
(12) In the case of the employer for
whom services are performed, with respect to payments made directly by
him after December 31, 1955, under an
accident or health plan (as defined in
section 105 and the regulations thereunder)—
(i) The beginning and ending dates of
each period of absence from work for
which any such payment was made;
and
(ii) Sufficient information to establish the amount and weekly rate of
each such payment.
(13) The withholding exemption certificates (Forms W–4 and W–4E) filed
with the employer by the employee.
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Internal Revenue Service, Treasury
§ 31.6011(a)–1
(14) The agreement, if any, between
the employer and the employee for the
withholding of additional amounts of
tax pursuant to § 31.3402(i)–1.
(15) To the extent material to a determination of tax liability, the dates,
in each calendar quarter, on which the
employee performed services not in the
course of the employer’s trade or business, and the amount of cash remuneration paid at any time for such
services performed within such quarter. (See § 31.3401(a)(4)–1.)
(16) In the case of tips received by an
employee after 1965 in the course of his
employment, copies of any statements
furnished by the employee pursuant to
section 6053(a) unless the information
disclosed by such statements is recorded on another document retained
by the employer pursuant to the provisions of this paragraph.
(17) Any request of an employee
under section 3402(h)(3) and § 31.3402
(h)(3)–1 to have the amount of tax to be
withheld from his wages computed on
the basis of his cumulative wages, and
any notice of revocation thereof.
The term ‘‘remuneration,’’ as used in
this paragraph, includes all payments
whether in cash or in a medium other
than cash, except that the term does
not include payments in a medium
other than cash for services not in the
course of the employer’s trade or business, and does not include tips received
by an employee in any medium other
than cash or in cash if such tips
amount to less than $20 for any calendar month. See §§ 31.3401(a)(11)–1 and
31.3401(a)(16)–1, respectively.
(b) The employer shall keep records
of the details of each adjustment or
settlement of income tax withheld
under section 3402 made pursuant to
the regulations in this part.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6606, 27 FR 8516, Aug. 25,
1962; T.D. 6908, 31 FR 16776, Dec. 31, 1966; T.D.
7001, 34 FR 1003, Jan. 23, 1969; T.D. 7048, 35 FR
10292, June 24, 1970; T.D. 7053, 35 FR 11628,
July 21, 1970; T.D. 7888, 48 FR 17588, Apr. 25,
1983]
§ 31.6001–6 Notice by district director
requiring returns, statements, or
the keeping of records.
The district director may require any
person, by notice served upon him, to
make such returns, render such statements, or keep such specific records as
will enable the district director to determine whether or not such person is
liable for any of the taxes to which the
regulations in this part have application.
§ 31.6011–4 Requirement of statement
disclosing participation in certain
transactions by taxpayers.
(a) In general. If a transaction is identified as a listed transaction as defined
in § 1.6011–4 of this chapter by the Commissioner in published guidance (see
§ 601.601(d)(2) of this chapter), and the
listed transaction involves an employment tax under chapters 21 through 25
of subtitle C of the Internal Revenue
Code, the transaction must be disclosed
in the manner stated in such published
guidance.
(b) Effective date. This section applies
to transactions entered into on or after
January 1, 2003.
[T.D. 9046, 68 FR 10169, Mar. 4, 2003]
§ 31.6011(a)–1 Returns under Federal
Insurance Contributions Act.
(a) Requirement—(1) In general. Except
as otherwise provided in § 31.6011 (a)–5,
every employer required to make a return under the Federal Insurance Contributions Act, as in effect prior to
1955, for the calendar quarter ended December 31, 1954, in respect of wages
other than wages for agricultural
labor, shall make a return for each subsequent calendar quarter (whether or
not wages are paid in such quarter)
until he has filed a final return in accordance with § 31.6011(a)–6. Except as
otherwise provided in § 31.6011(a)–5,
every employer not required to make a
return for the calendar quarter ended
December 31, 1954, shall make a return
for the first calendar quarter thereafter in which he pays wages, other
than wages for agricultural labor, subject to the tax imposed by the Federal
Insurance Contributions Act as in effect after 1954, and shall make a return
for each subsequent calendar quarter
(whether or not wages are paid therein)
until he has filed a final return in accordance with § 31.6011(a)–6. Except as
otherwise provided in § 31.6011 (a)–8 and
in subparagraphs (3) and (4) of this
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§ 31.6011(a)–1
26 CFR Ch. I (4–1–03 Edition)
paragraph, Form 941 is the form prescribed for making the return required
by this subparagraph. Such return
shall not include wages for agricultural
labor required to be reported on any return prescribed by subparagraph (2) of
this paragraph. The return shall include wages received by an employee in
the form of tips only to the extent of
the tips reported by the employee to
the employer in a written statement
furnished to the employer pursuant to
section 6053(a).
(2) Employers of agricultural workers—
(i) Quarterly returns for 1955. Every employer who, at any time before October
1 of the calendar year 1955, incurs liability of $100 or more for the taxes imposed by the Federal Insurance Contributions Act with respect to wages
paid in such year for agricultural labor
shall make a return—
(a) For the first calendar quarter of
such year if the liability for such taxes
incurred in such quarter is $100 or
more,
(b) For the period consisting of the
first and second calendar quarters of
such year if the liability for such taxes
incurred in those quarters totals $100
or more, except that such return shall
be made only for the second calendar
quarter if a return was required under
(a) of this subdivision and if the liability for such taxes incurred in the second calendar quarter is $100 or more,
and
(c) For the period consisting of the
first, second, and third calendar quarters of such year if the liability for
such taxes incurred in those quarters
totals $100 or more, except that such
return shall be made (1) only for the
period consisting of the second and
third calendar quarters if a return was
required under (a) of this subdivision
but not under (b) of this subdivision,
and if the total liability for such taxes
incurred in the second and third calendar quarters totals $100 or more; or
(2) only for the third calendar quarter
if a return was required under (b) of
this subdivision, and if the liability for
such taxes incurred in the third calendar quarter is $100 or more.
Form 943A is the form prescribed for
making the return required by this
subdivision, except that, if the return
is required to be filed with the office of
the United States Internal Revenue
Service in Puerto Rico, the return
shall be made on Form 943A–PR if the
Internal Revenue Service furnishes
Form 943A–PR to the employer for use
in lieu of Form 943A (see § 31.6091–1).
(ii) Annual returns for 1955 and subsequent years. Every employer who pays
wages after 1954 for agricultural labor
with respect to which taxes are imposed by the Federal Insurance Contributions Act shall make a return for
the first calendar year in which he
pays such wages and for each calendar
year thereafter (whether or not wages
are paid therein) until he has filed a
final return in accordance with
§ 31.6011(a)–6. Form 943 is the form prescribed for making the annual return
required by this subdivision, except
that, if the return is required to be
filed with the office of the United
States Internal Revenue Service in
Puerto Rico, the return shall be made
on Form 943PR if the Internal Revenue
Service furnishes Form 943PR to the
employer for use in lieu of Form 943
(see § 31.6091–1).
(3) Employers of domestic workers.
Form 942 is the form prescribed for use
by every employer in making a return
as required under paragraph (a)(1) of
this section in respect of wages, as defined in the Federal Insurance Contributions Act, paid by him in any calendar quarter for domestic service in a
private home of the employer not on a
farm operated for profit. If, however,
the employer is required under paragraph (a)(1) of this section to make a
return on Form 941 for such calendar
quarter, such employer, at his election
may—
(i) Report all wages on Form 941, or
(ii) Report on Form 942 the wages for
domestic service in a private home of
the employer not on a farm operated
for profit and omit such wages from
the return on Form 941.
An employer entitled to make the election referred to in the preceding sentence who has chosen one method shall
not change to the other method without first notifying the internal revenue
office with which he is required to file
his returns that he will thereafter use
such other method. See, however,
§ 31.6011(a)–6 relating to final returns
on Form 941. An employer who makes a
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Internal Revenue Service, Treasury
§ 31.6011(a)–1
return of tax on form 942 pursuant to
this section shall submit as part of
such return for a period ending December 31, or for any period for which such
return is made as a final return, the Internal Revenue Service copy of a Form
W-2 for each employee with respect to
whose wages tax is reported thereon.
The provisions of this subparagraph
shall not apply to any employer filing
a return on Forms 941PR or 942PR (see
§ 31.6091–1).
(4) Employers in Puerto Rico or the Virgin Islands. Form 941PR is the form
prescribed for use in making the return
required under paragraph (a)(1) of this
section in the case of every employer
who is required to file such return with
the office of the United States Internal
Revenue Service in Puerto Rico, except
that the return shall be made on Form
941VI if the Internal Revenue Service
furnishes Form 941VI to the employer
for use in lieu of Form 941PR. However,
Form 941 is the form prescribed for
making such return in the case of
every such employer who is required
pursuant to § 31.6011(a)–4 to make a return of income tax withheld from
wages.
(b) When to report wages. Wages with
respect to which taxes are imposed by
the Federal Insurance contributions
Act shall be reported in the return of
such taxes required under this section
or § 31.6011(a)–5 for the return period in
which they are actually paid unless
they were constructively paid in a
prior return period, in which case such
wages shall be reported only in the return for such prior period. However, if
such wages are deemed to be paid in a
later return period, they shall be reported only in the return for such later
period. See § 31.3121(a)–2 relating to the
time when wages are paid or deemed to
be paid.
(c) Correction of returns or schedules. If
in a return required under this section
or § 31.6011(a)–5, or in any other manner, the employer fails to report, or incorrectly reports, the name, account
number, or wages of an employee, the
employer shall furnish to the internal
revenue office with which he is required to file his returns a written
statement fully explaining the omission or error; except that such statement is not required by this paragraph
if correction of the omission or error is
made in connection with a supplemental return, adjustment, credit, refund, or abatement. The employer shall
include in such statement his identification number (except that an identification number need not be included if
the omission or error is with respect to
information required to be reported on
a return on Form 942), each return period for which the data were omitted or
for which the incorrect data were furnished, the data incorrectly reported
for each period, and the data which
should have been reported. A copy of
such statement shall be retained by the
employer as a part of his records under
§ 31.6001–2. No particular form is prescribed for making such statement, but
if printed forms are desired, any internal revenue office will supply copies of
Form 941c or Form 941cPR, whichever
is appropriate, upon request.
(d) Returns by employees in respect of
tips. If—
(1) An employee, during a calendar
year, is paid wages in the form of tips
which are subject to the tax under section 3101, and
(2) Any portion of the tax under section 3101 in respect of such wages cannot be collected by the employer from
wages (exclusive of tips) of such employee or from funds turned over by
the employee to the employer,
the employee shall make a return for
the calendar year in respect of the employee tax not collected by the employer. Except as otherwise provided in
this subparagraph, the return shall be
made on Form 1040. The form to be
used by residents of the Virgin Islands,
Guam, or American Samoa is Form
1040SS. In the case of a resident of
Puerto Rico who is not required to
make a return of income under section
6012(a), the form to be used is Form
1040SS, except that Form 1040PR shall
be used if it is furnished by the Internal Revenue Service to such resident
for use in lieu of Form 1040SS.
(e) Time and place for filing returns.
For provisions relating to the time and
place for filing returns, see §§ 31.6071
(a)–1 and 31.6091–1, respectively.
(f) Wages paid in nonconvertible foreign
currency. For provisions relating to returns filed by certain employers who
pay wages in nonconvertible foreign
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§ 31.6011(a)–2
26 CFR Ch. I (4–1–03 Edition)
currency, see § 301.6316–7 of this chapter
(Regulations on Procedure and Administration).
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 7001, 34 FR 1004, Jan. 23,
1969; T.D. 7001, 34 FR 1826, Feb. 7, 1969; T.D.
7200, 37 FR 16544, Aug. 16, 1972; T.D. 7351, 40
FR 17144, Apr. 17, 1975; T.D. 7396, 41 FR 1903,
Jan. 13, 1976]
§ 31.6011(a)–2 Returns under Railroad
Retirement Tax Act.
(a) Requirement—(1) Employers. Every
employer shall make a return for the
first return period after 1954 within
which compensation taxable under the
Railroad Retirement Tax Act is paid to
his employee or employees for services
rendered after 1954, and for each subsequent return period (whether or not
taxable compensation is paid therein)
until he has filed a final return in accordance with § 31.6011(a)–6. For calendar years after 1975, the return period shall be the calendar year; for calendar years prior to 1976, the return period shall be the calendar quarter.
Form CT–1 is the form prescribed for
making the return required under this
paragraph. One original and a duplicate
of each return on Form CT–1 shall be
filed with the director of the service
center.
(2) Employee representatives. Every
employee representative shall make a
return for the first calendar quarter
after 1954 within which he is paid taxable compensation for services rendered after 1954 as an employee representative, and for each subsequent
calendar quarter (whether or not he is
paid taxable compensation therein)
until he has filed a final return in accordance with § 31.6011(a)–6. Form CT–2
is the form prescribed for making the
return required under this subparagraph. One original and a duplicate of
each return on Form CT–2 shall be filed
with the director of the service center.
(b) When to report compensation—(1) In
general. Except as otherwise provided
in subparagraph (2) of this paragraph,
compensation taxable under the Railroad Retirement Tax Act shall be reported in the return required under
this section for the period in which it
is deemed, under paragraph (d) of
§ 31.3231(e)–1 to be paid, unless under
such section the compensation may be
deemed to be paid in more than one return period, in which case it shall be
reported only in the return for the first
return period in which it is deemed to
be paid.
(2) Pre-1976 returns of employers required by State law to pay compensation
on weekly basis—(i) In general. If any
employer is required by the laws of any
State to pay compensation weekly in
any calendar year prior to 1976, the return of tax with respect to such compensation may, at the election of such
employer, cover all payroll weeks
which, or the major part of which, fall
within the period for which a return of
tax is required by paragraph (a)(1) of
this section. This provision shall not
apply, however, to any payroll week
which falls in two calendar years. Any
employer who elects to file a return as
provided in this subparagraph shall notify the district director in writing of
such election and shall include therein
a statement setting forth the facts
which entitle him to make the election. Such notice shall be in duplicate
and shall be attached to the original
and duplicate of the return for the first
period to which such election applies.
Any election so made shall be binding
upon the employer with respect to all
returns subsequently made by him
until the director of the service center
authorizes or directs the employer to
make a return on a different basis. For
the purpose of determining the time
when compensation is deemed to be
paid in accordance with paragraph (d)
of § 31.3231(e)–1 and of determining the
due date of a return in accordance with
paragraph (b) of § 31.6071(a)–1, the calendar month following the period covered by the return of an employer making such election is the same calendar
month which would be determinative
for such purposes if the employer had
not made the election.
(ii) Prior elections. An election made
by an employer, pursuant to the provisions of 26 CFR (1939) 410.501(b) (Regulations 100) or of 26 CFR (1939) 411.601
(b) (Regulations 114), which is in force
and effect at the time the employer
makes his first return under this section shall satisfy the requirements of
paragraph (b)(2)(i) of this section with
respect to the making of an election
and shall be binding upon the employer
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Internal Revenue Service, Treasury
§ 31.6011(a)–3A
with respect to all returns made by
him under this section until the director of the service center authorizes or
directs the employer to make a return
on a different basis.
(iii) Example. Employer X is required
by State law to pay his employees
within 6 days after the compensation is
earned. In compliance with the State
law, employer X, for services rendered
to him for the payroll week of June 27
to July 2, 1955, pays his employees on
the last-named date. June 1955 is the
last month of a period for which a return of tax is required by paragraph
(a)(1) of this section. Employer X may
elect to include in the return required
by paragraph (a)(1) of this section for
the period April 1 to June 30, 1955, the
compensation paid to his employees for
the payroll week of June 27 to July 2,
1955, inclusive, although the compensation for July 1 and 2 falls within another period for which a return is required by paragraph (a)(1) of this section. If, in this example, the payroll
week ended on July 5, 1955, the compensation paid for the payroll week of
June 29 to July 5 would be included in
the return period in which July falls
although the compensation earned for
June 29 and 30 fell in a prior return period under the general rule.
(c) Time and place for filing returns.
For provisions relating to the time and
place for filing returns, see §§ 31.6071
(a)–1 and 31.6091–1, respectively.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR
14021, Dec. 31, 1960, as amended by T.D. 7396,
41 FR 1903, Jan. 13, 1976]
§ 31.6011(a)–3 Returns under Federal
Unemployment Tax Act.
(a) Requirement. Every person shall
make a return of tax under the Federal
Unemployment Tax Act for each calendar year with respect to which he is
an employer as defined in § 31.3306(a)–1.
Except as otherwise provided in
§ 31.6011 (a)–8, Form 940 is the form prescribed for use in making the return.
(b) When to report wages. Wages taxable under the Federal Unemployment
Tax Act shall be reported in the return
required under this section for the return period in which they are actually
paid unless they were constructively
paid in a prior return period, in which
case such wages shall be reported only
in the return for such prior period.
(c) Time and place for filing returns.
For provisons relating to the time and
place for filing returns, see §§ 31.6071
(a)–1 and 31.6091–1, respectively.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 7200, 37 FR 16544, Aug. 16,
1972]
§ 31.6011(a)–3A Returns of the railroad
unemployment repayment tax.
(a) Requirement—(1) Employers. Every
rail employer (as defined in section
3323(a) and section 1 of the Railroad
Unemployment Insurance Act) shall
make a return of the tax imposed by
section 3321(a) (relating to the railroad
unemployment repayment tax) for
each taxable period (as defined in section 3322(a)) with respect to the total
rail wages (as defined in section
3323(b)) paid by the rail employer during the taxable period. Form CT–1 is
the form prescribed for use in making
the return. One original and a duplicate of each return on Form CT–1 shall
be filed with the director of the service
center as designated in the instructions to Form CT–1. Rail wages taxable
under section 3321(a) shall be reported
in the return required under this section for the return period in which
they are actually paid unless they were
constructively paid in a prior return
period, in which case such wages shall
be reported only in the return for such
prior period.
(2) Employee representatives. Each employee representative (as defined in
section 3323(d)(2) and section 1 of the
Railroad
Unemployment
Insurance
Act) shall make a return of the tax imposed by section 3321(b) on the rail
wages paid to him (as determined
under section 3321(b)(2)) during each
calendar quarter within a taxable period. Form CT–2 is the form prescribed
for use in making the return. One
original and a duplicate of each return
on Form CT–2 shall be filed with the director of the service center as designated in the instructions to Form
CT–2. Rail wages taxable under section
3321(b) shall be reported in the return
required under this section for the return period in which they are actually
paid unless they were constructively
paid in a prior return period, in which
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§ 31.6011(a)–4
26 CFR Ch. I (4–1–03 Edition)
case such wages shall be reported only
in the return for such prior period.
(b) Time and place for filing returns.
For provisions relating to the time and
place for filing returns, see § 31.6071(a)–
1A and § 31.6091–1, respectively.
[T.D. 8105, 51 FR 40168, Nov. 5, 1986. Redesignated and amended at T.D. 8227, 53 FR 34736,
Sept. 8, 1988]
§ 31.6011(a)–4 Returns of income tax
withheld.
(a) Withheld from wages—(1) In general. Except as otherwise provided in
paragraphs (a)(3) and (b) of this section, and in § 31.6011(a)–5, every person
required to make a return of income
tax withheld from wages pursuant to
section 3402 shall make a return for the
first calendar quarter in which the person is required to deduct and withhold
such tax and for each subsequent calendar quarter, whether or not wages
are paid therein, until the person has
filed a final return in accordance with
§ 31.6011(a)–6. Except as otherwise provided in paragraphs (a) (2) and (3) and
(b) of this section, and in § 31.6011(a)–8,
Form 941 is the form prescribed for
making the return required under this
paragraph.
(2) Wages paid for domestic service.
Form 942 is the form prescribed for
making the return required under subparagraph (1) of this paragraph with respect to income tax withheld, pursuant
to an agreement under section 3402(p),
from wages paid for domestic service in
a private home of the employer not on
a farm operated for profit. The preceding sentence shall not apply in the
case of an employer who has elected
under paragraph (a)(3) of § 31.6011(a)–1
to use Form 941 as his return with respect to such payments for purposes of
the Federal Insurance Contributions
Act. For the requirements relating to
Form 942 with respect to qualified
State individual income taxes, see
paragraph (d)(3)(iv) of § 301.6361–1.
(3) Wages paid for agricultural labor.
Every person shall make a return of income tax withheld, pursuant to an
agreement under section 3402(p), from
wages paid for agricultural labor for
the first calendar year in which he is
required (by reason of such agreement)
to deduct and withhold such tax and
for each subsequent calendar year
(whether or not wages for agricultural
labor are paid therein) until he has
filed a final return in accordance with
§ 31.6011 (a)–6. Form 943 is the form prescribed for making the return required
under this subparagraph. For the requirements relating to Form 943 with
respect to qualified State individual income taxes, see paragraph (d)(3)(iv) of
§ 301.6361–1.
(b) Withheld from nonpayroll payments.
Every person required to withhold tax
from nonpayroll payments for calendar
year 1994 must make a return for calendar year 1994 and for any subsequent
calendar year in which the person is required to withhold such tax until the
person makes a final return in accordance with § 31.6011(a)–6. Every person
not required to withhold tax from nonpayroll payments for calendar year 1994
must make a return for the first calendar year after 1994 in which the person is required to withhold such tax
and for any subsequent calendar year
in which the person is required to withhold such tax until the person makes a
final return in accordance with
§ 31.6011(a)–6. Form 945, Annual Return
of Withheld Federal Income Tax, is the
form prescribed for making the return
required under this paragraph (b). Nonpayroll payments are—
(1) Certain gambling winnings subject to withholding under section
3402(q);
(2) Retirement pay for services in the
Armed Forces of the United States subject to withholding under section 3402;
(3) Certain annuities as described in
section 3402(o)(1)(B);
(4) Pensions, annuities, IRAs, and
certain other deferred income subject
to withholding under section 3405; and
(5) Reportable payments subject to
backup withholding under section 3406.
(c) Time and place for filing returns.
For provisions relating to the time and
place for filing returns, see §§ 31.6071
(a)–1 and 31.6091–1, respectively.
(86 Stat. 944, 26 U.S.C. 6364; and 68A Stat. 917,
26 U.S.C. 7805; 68A Stat. 747, 26 U.S.C. 6051)
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 7096, 36 FR 5217, Mar. 18,
1971; T.D. 7200, 37 FR 16544, Aug. 16, 1972; T.D.
7577, 43 FR 59359, Dec. 20, 1978; T.D. 7580, 43
FR 60159, Dec 26, 1978; T.D. 8504, 58 FR 68035,
Dec. 23, 1993; T.D. 8624, 60 FR 53510, Oct. 16,
1995; T.D. 8672, 61 FR 27008, May 30, 1996]
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Internal Revenue Service, Treasury
§ 31.6011(a)–6
§ 31.6011(a)–5 Monthly returns.
(a) In general—(1) Requirement. The
provisions of this section are applicable in respect of the taxes reportable
on Form 941, Form 941PR, Form 941VI,
or Form 945 pursuant to § 31.6011(a)–1 or
§ 31.6011 (a)–4. An employer (or other
person) who is required by § 31.6011(a)–1
or § 31.6011(a)–4 to make quarterly returns on any such form shall, in lieu of
making such quarterly returns, make
returns of such taxes in accordance
with the provisions of this section if he
is so notified in writing by the district
director. The district director may so
notify any employer (or other person)
(i) who, by reason of notification as
provided in § 301.7512–1 of this chapter
(Regulations on Procedure and Administration), is required to comply with
the provisions of such § 301.7512–1, or
(ii) who has failed to (a) make any such
return on Form 941, Form 941PR, Form
941VI, or Form 945 (b) pay tax reportable on any such form, or (c) deposit
any such tax as required under the provisions of § 31.6302(c)–1. Every employer
(or other person) notified by the district director shall make a return for
the calendar month in which the notice
is received and for each calendar
month thereafter (whether or not
wages are paid in any such month)
until he has filed a final return or is required to make quarterly returns pursuant to notification as provided in
subparagraph (2) of this paragraph.
However, if the notice provided for in
this subparagraph is received after the
close of the first calendar month of a
calendar quarter, the first return under
this section shall be made for the period beginning with the first day of
such quarter and ending with the last
day of the month in which the notice is
received. Each return required under
this section shall be made on the form
prescribed for making the return which
would otherwise be required of the employer (or other person) under the provisions of § 31.6011 (a)–1 or § 31.6011(a)–4,
except that, if some other form is furnished by the district director for use
in lieu of such prescribed form, the return shall be made on such other form.
(2) Termination of requirement. The
district director, in his discretion, may
notify the employer in writing that he
shall discontinue the filing of monthly
returns under this section. If the employer is so notified, the last month for
which a return shall be made under
this section is the last month of the
calendar quarter in which such notice
of discontinuance is received. Thereafter, the employer shall make quarterly returns in accordance with the
provisions
of
§ 31.6011(a)–1
or
§ 31.6011(a)–4.
(b) Information returns—(1) Federal Insurance Contributions Act. Every employer who is required under paragraph
(a) of this section to make a return of
tax under the Federal Insurance Contributions Act for any period within a
calendar quarter shall make an information return for such calendar quarter. Such return shall be made on
Schedule A of Form 941, or the equivalent schedule of Form 941PR or Form
941VI, except that, if some other form
or schedule is furnished by the district
director for the purpose of making such
return, the return shall be made on
such other form or schedule. The
informaiton reported on such return
shall include, with respect to each employee to whom the employer pays
wages as defined in the Federal Insurance Contributions act, the account
number of the employee, the employee’s name, the total amount of wages
paid by the employer to the employee
during the calendar quarter, and such
other information as may be called for
on the form provided for making such
return.
(2) Information returns on Form W–3
and Social Security Administration copies
of Form W–2. See § 31.6051–2 for requirements with respect to information returns on Form W–3 and Social Security
Administration copies of Form W–2.
(c) Time and place for filing returns.
For provisions relating to the time and
place for filing returns, see §§ 31.6071
(a)–1 and 31.6091–1, respectively.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR
14021, Dec. 31, 1960, as amended by T.D. 7351,
40 FR 17145, Apr. 17, 1975; T.D. 7580, 43 FR
60154, Dec. 26, 1978; T.D. 8637, 60 FR 66133,
Dec. 21, 1995]
§ 31.6011(a)–6
Final returns.
(a) In general—(1) Federal Insurance
Contributions Act; income tax withheld
from wages and nonpayroll payments. An
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§ 31.6011(a)–6
26 CFR Ch. I (4–1–03 Edition)
employer (or other person) who is required to make a return on a particular
form
pursuant
to
§ 31.6011(a)–1,
§ 31.6011(a)–4, or § 31.6011(a)–5, and who
in any return period ceases to pay
wages or nonpayroll payments in respect of which he is required to make a
return on that form, must make the return for the period as a final return.
Each return made as a final return
shall be marked ‘‘Final return’’ by the
person filing the return. Every such
person filing a final return (other than
a final return on Form 942 or Form 943)
must furnish information showing the
date of the last payment of wages (as
defined in section 3121(a) or section
3401(a)), and, if appropriate, the date of
the last payment of nonpayroll payments defined in § 31.6011(a)–4(b). An
employer (other than an employer
making returns on Form 942) who has
only temporarily ceased to pay wages,
because of seasonal activities or for
other reasons, shall not make a final
return but shall continue to file returns. If (i) for any return period an
employer makes a final return on a
particular form, and (ii) after the close
of such period the employer pays
wages, as defined in section 3121(a) or
section 3401(a), in respect of which the
same or a different return form is prescribed, such employer shall make returns on the appropriate return form.
For example, if an employer who has
filed a final return on Form 941 pays
wages only for domestic service in his
private home not on a farm operated
for profit, the employer is required to
make returns on Form 942 in respect of
such wages.
(2) Railroad Retirement Tax Act— (i)
Form CT–1. An employer required to
make returns on Form CT–1 who in any
return period ceases to pay taxable
compensation shall make the return on
Form CT–1 for such period as a final return. Such return shall be marked
‘‘Final return’’ by the person filing the
return, and such person shall furnish
information showing the date of the
last payment of taxable compensation.
An employer who has only temporarily
ceased to pay taxable compensation
shall continue to file returns on Form
CT–1.
(ii) Form CT–2. An employee representative required to make returns
on Form CT–2 who in any calendar
quarter ceases to be paid taxable compensation for services as an employee
representative shall make the return
on Form CT–2 for such quarter as a
final return. Such return shall be
marked ‘‘Final return’’ by the person
filing the return, and such person shall
furnish information showing the date
of the last payment of taxable compensation. An employee representative
who only temporarily ceases to be paid
taxable compensation for services as an
employee representative shall continue
to file returns on Form CT–2.
(3) Federal Unemployment Tax Act. An
employer required to make a return on
Form 940 for a calendar year in which
he ceases to be an employer, as defined
in § 31.3306(a)–1, because of the discontinuance, sale, or other transfer of
his business, shall make such return as
a final return. Such return shall be
marked ‘‘Final return’’ by the person
filing the return.
(b) Statement to accompany final return. There shall be executed as a part
of each final return, except in the case
of a final return on Form 942, a statement showing the address at which the
records required by the regulations in
this part will be kept, the name of the
person keeping such records, and, if the
business of an employer has been sold
or otherwise transferred to another
person, the name and address of such
person and the date on which such sale
or other transfer took place. If no such
sale or transfer occurred or the employer does not know the name of the
person to whom the business was sold
or transferred, that fact should be included in the statement. Such statement shall include any information required by this section as to the date of
the last payment of wages or compensation. If the statement is executed
as a part of a final return on Form CT–
1 or Form CT–2, such statement shall
be furnished in duplicate.
(c) Time and place for filing returns.
For provisions relating to the time and
place for filing returns, see §§ 31.6071
(a)–1 and 31.6091–1, respectively.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR
14021, Dec. 31, 1960, as amended by T.D. 7396,
41 FR 1904, Jan. 14, 1976; T.D. 8637, 60 FR
66133, Dec. 21, 1995]
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Internal Revenue Service, Treasury
§ 31.6011(a)–8
§ 31.6011(a)–7 Execution of returns.
(a) In general. Each return required
under the regulations in this part, together with any prescribed copies or
supporting data, shall be filled in and
disposed of in accordance with the
forms, instructions, and regulations
applicable thereto. The return shall be
carefully prepared so as fully and accurately to set forth the data required to
be furnished therein. Returns which
have not been so prepared will not be
accepted as meeting the requirements
of the regulations in this part. The return may be made by an agent in the
name of the person required to make
the return if an acceptable power of attorney is filed with the internal revenue office with which such person is
required to file his returns and if such
return includes all taxes required to be
reported by such person on such return
for the period covered by the return.
Only one return on any one prescribed
form for a return period shall be filed
by or for a taxpayer. Any supplemental
return made on such form in accordance with § 31.6205–1 shall constitute a
part of the return which it supplements. Except as may be provided
under procedures authorized by the
Commissioner with respect ot taxes
imposed by the Railroad Retirement
Tax Act, consolidated returns of two or
more employers are not permitted, as
for example, returns of a parent and a
subsidiary corporation. For provisions
relating to the filing of returns of the
taxes imposed by the Federal Insurance
Contributions Act and of income tax
withheld under section 3402 in the case
of
governmental
employers
see
§§ 31.3122 and 31.3404–1.
(b) Use of prescribed forms—(1) In general. Copies of the prescribed return
forms will so far as possible be regularly furnished taxpayers by the Internal Revenue Service. A taxpayer will
not be excused from making a return,
however, by the fact that no return
form has been furnished to him. Taxpayers not supplied with the proper
forms should make application therefor to an internal revenue office in
ample time to have their returns prepared, verified, and filed on or before
the due date with the internal revenue
office with which they are required to
file their returns. See §§ 31.6071 (a)–1
and 31.6091–1, relating, respectively, to
the time and place for filing returns. In
the absence of a prescribed return
form, a statement made by a taxpayer
disclosing the aggregate amount of
wages or compensation reportable on
such form for the period in respect of
which a return is required and the
amount of taxes due may be accepted
as a tentative return. If filed within
the prescribed time, the statement so
made will relieve the taxpayer from liability for the addition to tax imposed
for the delinquent filing of the return,
provided that without unnecessary
delay such tentative return is supplemented by a return made on the proper
form. For additions to the tax in case
of failure to file a return within the
prescribed time, see the provisions of
§ 301.6651–1 of this chapter (Regulations
on Procedure and Administration).
In any case where the use of Form W–
2 is required from the purpose of making a return or reporting information,
such requirement may be satisfied by
submitting the information required by
such form on magnetic tape or by other
media, provided that the prior consent
of the Commissioner of Social Security
(or other authorized officer or employee thereof has been obtained.
(c) Signing and verification. For provisions relating to the signing of returns,
see § 31.6061–1. For provisions relating
to the verifying of returns, see
§ 31.6065(a)–1.
(d) Reporting of identifying numbers.
For provisions relating to the reporting of identifying number on returns
required under the regulations in this
part, see § 31.6109–1.
(68A Stat. 747, 26 U.S.C. 6051; and 68A Stat.
917, 26 U.S.C. 7805)
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6606, 27 FR 8516, Aug. 25,
1962; T.D. 6883, 31 FR 6590, May 3, 1966; T.D.
7276, 38 FR 11345, May 7, 1973; T.D. 7396, 41 FR
1904, Jan. 13, 1976; T.D. 7580, 43 FR 60159, Dec.
26, 1978]
§ 31.6011(a)–8 Composite return in lieu
of specified form.
The Commissioner may authorize the
use, at the option of the employer, of a
composite return in lieu of any form
specified in this part for use by an employer, subject to such conditions, limitations, and special rules governing
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§ 31.6011(a)–9
26 CFR Ch. I (4–1–03 Edition)
the preparation, execution, filing, and
correction thereof as the Commissioner
may deem appropriate. Such composite
return shall consist of a form prescribed ty the Commissioner and an attachment or attachments of magnetic
tape or other approved media. Notwithstanding any provisions in this part to
the contrary, a single form and attachment may comprise the returns of
more than one employer. To the extent
that the use of a compsoite return has
been authorized by the Commissioner,
references in this part to a specific
form for use by the employer shall be
deemed to refer also to a composite return under this section.
[T.D. 7200, 37 FR 16544, Aug. 16, 1972]
§ 31.6011(a)–9 Instructions to forms
control as to which form is to be
used.
Notwithstanding provisions in this
part which specify the use of a particular form for a return or other document required by this part, the use of a
different form may be required by the
latter form’s instructions. In such case,
the latter form shall be completed in
accordance with its instructions.
[T.D. 7351, 40 FR 17145, Apr. 17, 1975]
§ 31.6011 (a)–10 Instructions to forms
may waive filing requirement in
case of no liability tax returns.
Notwithstanding provisions in this
part which require that a tax return be
filed, the instructions to the form on
which a return of tax is otherwise required by this part to be made may
waive such requirement with respect to
a particular class or classes of no liability tax returns. Returns in a class
for which such requirement has been so
waived need not be made.
This Treasury decision is not adverse
to any taxpayer. For this reason, it is
found unnecessary to issue this Treasury decision with notice and public
procedure under subsection (b) of section 553 of title 5 of the United States
Code or subject to the effective date
limitation of subsection (d) of that section.
[T.D. 8229, 53 FR 35811, Sept. 15, 1988]
§ 31.6011(b)–1 Employers’
identification numbers.
(a) Requirement of application—(1) In
general—(i) Before October 1, 1962. Except as provided in paragraph (b) of
this section, every employer who on
any day after December 31, 1954, and
before October 1, 1962, has in his employ one or more individuals in employment for wages subject to the
taxes imposed by the Federal Insurance
Contributions Act, but who prior to
such day neither has been assigned an
identification number nor has applied
therefor, shall make an application on
Form SS–4 for an identification number.
(ii) On or after October 1, 1962. Except
as provided in paragraph (b) of this section, every employer who on any day
after September 30, 1962, has in his employ one or more individuals in employment for wages which are subject
to the taxes imposed by the Federal Insurance Contributions act or which are
subject to the withholding of income
tax from wages under section 3402, but
who prior to such day neither has been
assigned an identification number nor
has applied therefor, shall make an application on Form SS–4 for an identification number.
(iii) Method of application. The application, together with any supplementary statement, shall be prepared
in accordance with the form, instructions, and regulations applicable thereto, and shall set forth fully and clearly
the data therein called for. Form SS–4
may be obtained from any district director or director of a service center or
any district office of the Social Security Administration. The application
shall be filed with the internal revenue
officer designated in the instructions
applicable to Form SS-4, or with the
nearest district office of the Social Security Administration. The application
shall be signed by (a) the individual, if
the employer is an individual; (b) the
president, vice president, or other principal officer, if the employer is a corporation; (c) a responsible and duly authorized member or officer having
knowledge of its affairs, if the employer is a partnership or other unincorporated organization; or (d) the fiduciary, if the employer is a trust or
estate. An identification number will
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§ 31.6011(b)–2
be assigned to the employer in due
course upon the basis of the information reported on the application required under this section.
(2) Time for filing Form SS–4. The application for an identification number
shall be filed on or before the seventh
day after the first payment of wages to
which reference is made in paragraph
(a)(1) of this section. For provisions relating to the time when wages are paid,
see § 31.3121(a)–2 and paragraph (b) of
§ 31.3402(a)–1.
(b) Employers who are assigned identification numbers without application. An
identification number may be assigned,
without application by the employer,
in the case of an employer who has in
his employ only employees who are engaged exclusively in the performance
of domestic service in his private home
not on a farm operated for profit (see
§ 31.3121(a)(7)–1. If an identification
number is so assigned, the employer is
not required to make an application on
Form SS–4 for the number.
(c) Crew leaders. Any person who, as a
crew leader within the meaning of section 3121(o), furnishes individuals to
perform agricultural labor for another
person shall, on or before the first date
on which he furnishes such individuals
to perform such labor for such other
person, advise such other person of his
name; permanent mailing address, or if
none, present address; and identification number, if any.
(d) Use of identification number. The
identification number assigned to an
employer (other than a household employer referred to in paragraph (b) of
this section) shall be shown in the employer’s records, and shall be shown in
his claims to the extent required by
the applicable forms, regulations, and
instructions. For provisions relating to
the inclusion of identification numbers
in returns, statements on Form W–2,
and depositary receipts, see § 31.6109–1.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6606, 27 FR 8517, Aug. 25,
1962; T.D. 7012, 34 FR 7693, May 15, 1969]
§ 31.6011(b)–2 Employees’
account
numbers.
(a) Requirement of application—(1) In
general—(i) Before November 1, 1962.
Every employee who on any day after
December 31, 1954, and before November
1, 1962, is in employment for wages subject to the taxes imposed by the Federal Insurance Contributions Act, but
who prior to such day has neither secured an account number nor made application therefor, shall make an application on Form SS–5 for an account
number.
(ii) On or after November 1, 1962. Every
employee who on any day after October
31, 1962, is in employment for wages
which are subject to the taxes imposed
by the Federal Insurance Contributions
Act or which are subject to the withholding of income tax from wages
under section 3402 but who prior to
such day has neither secured an account number nor made application
therefore, shall make an application on
Form SS–5 for an account number.
(iii) Method of application. The application shall be prepared in accordance
with the form, instructions, and regulations applicable thereto, and shall set
forth fully and clearly the data therein
called for. The employee shall file the
applicaiton with any district office of
the Social Security Administration or,
if the employee is not working within
the United States, with the district office of the Social Security Administration at Baltimore, Maryland. Form SS–
5 may be obtained from any district office of the Social Security Administration or from any district director. An
account number will be assigned to the
employee by the Social Security Administration in due course upon the
basis of information reported on the
application required under this section.
A card showing the name and account
number of the employee to whom an
account number has been assigned will
be furnished to the employee by the
Social Security administration.
(2) Time for filing Form SS–5. The application shall be filed on or before the
seventh day after the occurrence of the
first day of employment to which reference is made in paragraph (a)(1) of
this section, unless the employee
leaves the employ of his employer before such seventh day, in which case
the application shall be filed on or before the date on which the employee
leaves the employ of his employer.
(3) Changes and corrections. Any employee may have his account number
changed at any time by applying to a
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§ 31.6011(b)–2
26 CFR Ch. I (4–1–03 Edition)
district office of the Social Security
Administration and showing good reasons for a change. With that exception,
only one account number will be assigned to an employee. Any employee
whose name is changed by marriage or
otherwise, or who has stated incorrect
information on Form SS–5, should report such change or correction to a district office of the Social Security Administration Copies of the form for
making such reports may be obtained
from any district office of the administration.
(b) Duties of employee with respect to
his account number—(1) Information to be
furnished to employer. An employee
shall, on the day on which he enters
the employ of any employer for wages,
comply with the provisions of paragraph (b)(1)(i), (ii), (iii), or (iv) of this
section, except that, if the employee’s
services for the employer consist solely
of agricultural labor, domestic service
in a private home of the employer not
on a farm operated for profit, or service
not in the course of the employer’s
trade or business, the employee shall
comply with such provisions on the
first day on which wages are paid to
him by such employer, within the
meaning of § 31.3121(a)–2.
(i) Employee who has account number
card. If the employee has been issued
an account number card by the Social
Security Administration and has the
card available, the employee shall
show it to the employer.
(ii) Employee who has number but card
not available. If the employee does not
have available the account number
card issued to him by the Social Security Administration but knows what
his account number is, and what his
name is, exactly as shown on such
card, the employee shall advise the employer of such number and name. Care
must be exercised that the employer is
correctly advised of such number and
name.
(iii) Employee who has receipt acknowledging application. If the employee does
not have an account number card but
has available a receipt issued to him by
an office of the Social Security Administration acknowledging that an application for an account number has been
received, the employee shall show such
receipt to the employer.
(iv) Employee who is unable to furnish
number or receipt. If an employee is unable to comply with the requirement of
paragraph (b)(1)(i), (ii), or (iii) of this
section, the employee shall furnish to
the employer a statement in writing,
signed by the employee, setting forth
the date of the statement, the employee’s full name, present address, date
and place of birth, father’s full name,
mother’s full name before marriage,
and the employee’s sex, including a
statement as to whether the employee
has previously filed an application on
Form SS–5 and, if so, the date and
place of such filing. The information
required by this subdivision shall be
furnished on Form SS–5, if a copy of
Form SS–5 is available. The furnishing
of such a Form SS–5 or other statement by the employee to the employer
does not relieve the employee of his obligation to make an application on
Form SS–5 and file it with a district office of the Social Security Administration as required by paragraph (a) of
this section. The foregoing provisions
of this subdivision are not applicable to
an employee engaged exclusively in the
performance of domestic service in a
private home of his employer not on a
farm operated for profit, or in the performance of agricultural labor, if the
services are performed for an employer
other than an employer required to file
returns of the taxes imposed by the
Federal Insurance Contributions Act
with the office of the United States Internal Revenue Service in Puerto Rico.
However, such employee shall advise
the employer of his full name and
present address.
For provisions relating to the duties of
an employer when furnished the information required by paragraph (b)(1) (i),
(ii), (iii), or (iv) of this section, see
paragraph (c) of this section.
(2) Additional information to be furnished by employee to employer. Every
employee who, on the day on which he
is required to comply with paragraph
(b)(1)(i), (ii), (iii), or (iv) of this section,
has an account number card but for
any reason does not show such card to
the employer on such day shall
promptly thereafter show the card to
the employer. An employee who does
not have an account number card on
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§ 31.6011(b)–2
such day shall, upon receipt of an account number card from the Social Security Administration, promptly show
such card to the employer, if he is still
in the employ of that employer. If the
employee has left the employ of the
employer when the employee receives
an account number card from the Social Security Administration, he shall
promptly advise the employer of his
account number and name exactly as
shown on such card. The account number originally assigned to an employee
(or the number as changed in accordance with paragraph (a)(3) of this section) shall be used by the employee as
required by this paragraph even though
he enters the employ of other employers.
(3) Furnishing of account number by
employee to employer. See § 31.6109–1 for
additional provisions relating to the
furnishing of an account number by the
employee to his employer.
(c) Duties of employer with respect to
employees’ account numbers—(1) Employee who shows account number. Upon
being shown the account number card
issued to an employee by the Social Security administration, the employer
shall enter the account number and
name, exactly as shown on the card, in
the employer’s records, returns, statements for employees, and claims to the
extent required by the applicable
forms, regulations, and instructions.
(2) Employee who does not show account number card. With respect to an
employee who, on the day on which he
is required to comply with paragraph
(b)(1)(i), (ii), (iii), or (iv) of this section,
does not show the employer an account
number card issued to the employee by
the Social Security Administration,
the employer shall request such employee to show him such card. If the
card is not shown, the employer shall
comply with the applicable provisions
of paragraph (c)(1)(i), (ii), (iii), (iv), or
(v) of this section:
(i) Employee who has not applied for
account number. If the employee has
not been assigned an account number
and has not made application therefor
with a district office of the Social Security Administration, the employer
shall inform the employee of his duties
under this section.
(ii) Employee who has account number.
If the employee advises the employer
of his number and name as shown on
his account number card, as provided
in paragraph (b)(1)(ii) of this section,
the employer shall enter such number
and name in his records.
(iii) Employee who has receipt for application. If the employee shows the
employer, as provided in paragraph
(b)(1)(iii) of this section, a receipt
issued to him by an office of the Social
Security
Administration
acknowledging that an application for an account number has been received from
the employee, the employer shall enter
in his records with respect to such employee the name and address of the employee exactly as shown on the receipt,
the expiration date of the receipt, and
the address of the issuing office. The
receipt shall be retained by the employee.
(iv) Employee who furnishes Form SS–5
or statement. If the employee furnishes
information to the employer as provided in paragraph (b)(1)(iv) of this section, the employer shall retain such information for use as provided in paragraph (c)(3)(ii) of this section.
(v) Household or agricultural employees. If the employee advises the employer of his full name and present address in accordance with those provisions of paragraph (b)(1)(iv) of this section which are applicable in the case of
employees engaged exclusively in the
performance of domestic service in a
private home of the employer not on a
farm operated for profit, or agricultural labor, the employer shall enter
such name and address in his records.
(3) Account number unknown when return is filed. In any case in which the
employee’s account number is for any
reason unknown to the employer at the
time the employer’s return is filed for
any return period with respect to
which the employer is required to report the wages paid to such employee—
(i) If employee has shown receipt for
application. If the employee has shown
to the employer, as provided in paragraph (b)(1)(iii) of this section, a receipt issued to him by an office of the
Social Security Administration acknowledging that an application for an
account number has been received from
the employee, the employer shall enter
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§ 31.6051–1
26 CFR Ch. I (4–1–03 Edition)
on the return, with the entry with respect to the employee, the name and
address of the employee exactly as
shown on the receipt, the expiration
date of the receipt, and the address of
the issuing office.
(ii) If employee furnished Form SS–5 or
statement. If the employee has furnished information to the employer as
provided in paragraph (b)(1)(iv) of this
section, the employer shall prepare a
copy of the Form SS–5 or statement
furnished by the employee and attach
the copy to the return.
(iii) If employee did not furnish receipt,
Form SS–5, or statement. If neither paragraph (c)(3)(i) nor (ii) of this section is
applicable, the employer shall, except
as provided in paragraph (c)(4) of this
section, attach to the return a Form
SS–5 or statement, signed by the employer, setting forth as fully and clearly as practicable the employee’s full
name, his present or last known address, date and place of birth, father’s
full name, mother’s full name before
marriage, the employee’s sex, and a
statement as to whether an application
for an account number has previously
been filed by the employee and, if so,
the date and place of such filing. The
employer shall also insert in such
Form SS–5 or statement an explanation of why he has not secured from
the employee the information referred
to in paragraph (b)(1)(iv) of this section
and shall insert the word ‘‘Employer’’
as part of his signature.
(4) Household or agricultural employees.
The provisions of paragraph (c)(3)(iii)
of this section are not applicable with
respect to an employee engaged exclusively in the performance of domestic
service in a private home of his employer not on a farm operated for profit, or in the performance of agricultural labor, if the services are performed for an employer other than an
employer required to file returns of the
taxes imposed by the Federal Insurance
Contributions Act with the office of
the United States Internal Revenue
Service in Puerto Rico. If any such employee has not furnished to the employer the information required by
paragraph (b) (1) (i), (ii), or (iii) of this
section prior to the time the employer’s return is filed for any return period with respect to which the em-
ployer is required to report wages paid
to such employee, the employer shall
enter the word ‘‘Unknown’’ in the account number column of the return and
(i) file with the return a statement
showing the employee’s full name and
present or last known address, or (ii)
enter such address on the return form
immediately below the name of the
employee.
(5) Where to obtain Form SS–5. Employers may obtain copies of Form SS–
5 from any district office of the Social
Security Administration or from any
district director.
(6) Prospective employees. While not
mandatory, it is suggested that the
employer advise any prospective employee who does not have an account
number of the requirements of paragraphs (a) and (b) of this section.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6606, 27 FR 8517, Aug. 25,
1962]
§ 31.6051–1 Statements for employees.
(a) Requirement if wages are subject to
withholding of income tax—(1) General
rule. (i) Every employer, as defined in
section 3401(d), required to deduct and
withhold from an employee a tax under
section 3402, or who would have been
required to deduct and withhold a tax
under section 3402 (determined without
regard to section 3402(n)) if the employee had claimed no more than one
withholding exemption, shall furnish
to each such employee, in respect of
the remuneration paid by such employer to such employee during the calendar year, the tax return copy and the
employee’s copy of a statement on
Form W–2. For example, if the wage
bracket method of withholding provided in section 3402(c)(1) is used, a
statement on Form W–2 must be furnished to each employee whose wages
during any payroll period are equal to
or in excess of the smallest wage from
which tax must be withheld in the case
of an employee claiming one exemption. If the percentage method is used,
a statement on Form W–2 must be furnished to each employee whose wages
during any payroll period, reduced by
the amount of one withholding exemption, are equal to or in excess of the
smallest amount of wages from which
tax must be withheld. See section 3402
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§ 31.6051–1
(a) and (b) and the regulations thereunder. Each statement on Form W–2
shall show the following:
(a) The name, address, and identification number of the employer.
(b) The name and address of the employee, and his social security account
number if wages as defined in section
3121(a) have been paid or if the Form
W–2 is required to be furnished to the
employee for a period commencing
after December 31, 1962.
(c) The total amount of wages as defined in section 3401(a),
(d) The total amount deducted and
withheld as tax under section 3402,
(e) The total amount of wages as defined in section 3121(a),
(f) The total amount of employee tax
under section 3101 deducted and withheld (increased by any adjustment in
the calendar year for overcollection, or
decreased by any adjustment in such
year for undercollection, of such tax
during any prior year) and the proportion thereof (expressed either as a dollar amount, as a percentage of the
total amount of wages as defined in
section 3121(a), or as a percentage of
the total amount of employee tax
under section 3101) withheld as tax
under section 3101(b) for financing the
cost of hospital insurance benefits,
See paragraph (d) of this section for
provisions relating to the time for furnishing the statement required by this
subparagraph. See paragraph (f) of this
section for an exception for employers
filing composite returns from the requirement that statements for employees be on Form W–2. For the requirements relating to Form W–2 with respect to qualified State individual income taxes, see paragraphs (d)(3)(ii) of
§ 301.6361–1 of this chapter (regulations
on Procedure and Administration).
(g) Such information relating to coverage the employee has earned under
the Federal Insurance Contributions
act, as may be required by Form W–2 or
its instructions, and
(h) The total amount paid to the employee under section 3507 (relating to
advance payment of earned income
credit).
(ii) Payments made in 1955 under a
wage continuation plan shall be reported on Form W–2 to the extent, and
in the manner, provided in paragraph
(b)(8)(i) of § 31.3401(a)–1.
(iii) In the case of statements furnished by the employer for whom services are performed, with respect to
wages paid after December 31, 1955,
‘‘the total amount of wages as defined
in section 3401(a)’’, as used in section
6051(a)(3), shall include all payments
made directly by such employer under
a wage continuation plan which constitute wages in accordance with paragraph (b)(8)(ii)(a) of § 31.3401(a)–1, without regard to whether tax has been
withheld on such amounts.
(iv) Form W–2 is not required in respect of any wage continuation payment made to an employee by or on behalf of a person who is not the employer for whom the employee performs services but who is regarded as
an employer under section 340(d)(1).
See paragraph (b)(8) of § 31.3401(a)–1.
(v) In the case of remuneration paid
for service described in section 3121(m),
relating to service in the uniformed
services, performed after 1956, ‘‘wages
as defined in section 3121(a)’’, as used
in section 6051(a) (2) and (5), shall be
determined in accordance with section
3121(i)(2) and section 3122.
(vi) In the case of remuneration in
the form of tips received by an employee in the course of his employment, the amounts required to be
shown by paragraphs (3) and (5) of section 6051(a) (see paragraph (a)(1)(i) (c)
and (e) of this section) shall include
only such tips as are reported by the
employee to the employer in a written
statement furnished to the employer
pursuant to section 6053(a).
(2) Statements for members of the Armed
Forces of the United States. Section
6051(b) contains certain special provisions which are applicable in the case
of members of the Armed Forces of the
United States in active service. In such
case, Form W–2 shall be furnished to
each such member of the Armed Forces
if any tax has been withheld under section 3402 during the calendar year from
the remuneration of such member or if
any of the remuneration paid during
the calendar year for such active service is includible under chapter 1 of the
Code in the gross income of such member. Form W–2, in the case of such
member, shall show, as ‘‘the total
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§ 31.6051–1
26 CFR Ch. I (4–1–03 Edition)
amount of wages as defined in section
3401(a)’’ as used in section 6051(a)(3),
the amount of the remuneration paid
during the calendar year which is not
excluded under chapter 1 from the
gross income of such member, whether
or not such remuneration constitutes
wages as defined in section 3401(a) and
whether or not paid for such active
service.
(3) Undelivered statements for employees. The Internal Revenue Service copy
and the employee’s copy of each withholding statement for the calendar
year which the employer is required to
furnish to the employee and which
after reasonable effort he is unable to
deliver to the employee shall be retained by the employer for the 4-year
period prescribed in paragraph (e)(2) of
§ 31.6001–1.
(b) Requirement if wages are not subject
to withholding of income tax— (1) General
rule. If during the calendar year an employer pays to an employee wages subject to the employee tax imposed by
section 3101, but not subject to income
tax withholding under section 3402, the
employer shall furnish to such employee the tax return copy and the employee’s copy of a statement on Form
W–2 for such calendar year. Such statement shall show the following:
(i) The name and address of the employer,
(ii) The name, address, and social security account number of the employee,
(iii) The total amount of wages as defined in section 3121(a),
(iv) The total amount of employee
tax deducted and withheld from such
wages (increased by any adjustment in
such year for overcollection, or decreased by any adjustment in such year
for undercollection, of employee tax
during any prior year) and the proportion thereof (expressed either as a dollar amount, as a percentage of the
total amount of wages as defined in
section 3121(a), or as a percentage of
the total amount of employee tax
under section 3101) withheld as tax
under section 3101(b) for financing the
cost of hospital insurance benefits, and
(v) Such information relating to coverage the employee has earned under
the Federal Insurance Contributions
Act, as may be required by Form W–2
or its instructions, and
(vi) The total amount paid to the employee under section 3507 (relating to
advance payment of earned income
credit).
See paragraph (d) of this section for
provisions relating to the time for furnishing the statement required by this
paragraph.
(2) Uniformed services. In the case of
remuneration paid for service described
in section 3121(m), relating to service
in the uniformed services, performed
after 1956, ‘‘wages as defined in section
3121(a)’’, as used in section 6051(a)(5),
shall be determined in accordance with
section 3121(i)(2) and section 3122.
(c) Correction of statements—(1) Federal Insurance Contributions Act. If (i)
the amount of employee tax under section 3101 deducted and withheld in the
calendar year from the wages, as defined in section 3121(a), paid during
such year was less or greater than the
tax imposed by section 3101 on such
wages by reason of the adjustment in
such year of an overcollection or
undercollection of the tax in any prior
year, or (ii) regardless of the reason for
the error or the method of its correction, the amount of wages as defined in
section 3121(a), or tax under section
3101, entered on a statement furnished
pursuant to this section to an employee for a prior year was incorrect, a
corrected statement for such prior year
reflecting the adjustment or the correct data shall be furnished to the employee. Such statement shall be
marked ‘‘Corrected by Employer’’.
(2) Income tax withholding. A corrected statement shall be furnished to
the employee with respect to a prior
calendar year (i) to show the correct
amount of wages, as defined in section
3401(a), paid during the prior calendar
year if the amount of such wages entered on a statement furnished to the
employee for such prior year is incorrect, or (ii) to show the amount actually deducted and withheld as tax
under section 3402 if such amount is
less or greater than the amount entered as tax withheld on the statement
furnished the employee for such prior
year. Such statement shall be indicated as corrected.
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Internal Revenue Service, Treasury
§ 31.6051–1
(3) Cross reference. For provisions relating to the disposition of the Internal
Revenue Service copy of a corrected
statement, see paragraph (b)(2) of
§ 31.6011(a)–4 and paragraph (b) of
§ 31.6051–2.
(d) Time for furnishing statements—
(1)(i) In general. Each statement required by this section for a calendar
year and each corrected statement required for the year shall be furnished
to the employee on or before January
31 of the year succeeding such calendar
year. If an employee’s employment is
terminated before the close of such calendar year, the employer, at his option, shall furnish the statement to the
employee at any time after the termination but no later than January 31 of
the year succeeding such calendar
year. However, if an employee whose
employment is terminated before the
close of such calendar year requests
the employer to furnish him the statement at an earlier time, and if there is
no reasonable expectation on the part
of both employer and employee of further employment during the calendar
year, then the employer shall furnish
the statement to the employee on or
before the later of the 30th day after
the day of the request or the 30th day
after the day on which the last payment of wages is made. For provisions
relating to the filing of the Internal
Revenue Service copies of the statement, see § 31.6051–2.
(ii) Expedited furnishing—(A) General
rule. If an employer is required to make
a final return under § 31.6011(a)–6(a)(1)
(relating to the final return for Federal
Insurance Contributions Act taxes and
income tax withholding from wages) on
Form 941, or a variation thereof, the
employer must furnish the statement
required by this section on or before
the date required for filing the final return. See § 31.6071(a)–1(a)(1). However, if
the final return under § 31.6011(a)–6(a)(1)
is a monthly return, as described in
§ 31.6011(a)–5, the employer must furnish the statement required by this
section on or before the last day of the
month in which the final return is required to be filed. See § 31.6071(a)–
1(a)(2). Except as provided in paragraph
(d)(2)(i) of this section, in no event may
an employer furnish the statement required by this section later than Janu-
ary 31 of the year succeeding the calendar year to which it relates. The requirements set forth in this paragraph
(d)(1)(ii) do not apply to employers
with respect to employees whose wages
are for domestic service in the private
home of the employer. See § 31.6011(a)–
1(a)(3).
(B) Requests by employees. An employer is not permitted to furnish a
statement pursuant to the provisions
of the third sentence of paragraph
(d)(1)(i) of this section (relating to
written requests by terminated employees for Form W–2) at a time later
than that required by the provisions of
paragraph (d)(1)(ii)(A) of this section.
(C) Effective date. This paragraph
(d)(1)(ii) is effective January 1, 1997.
(2) Extensions of time—(i) In general (a)
The Director, Martinsburg Computing
Center, may grant an extension of time
in which to furnish to employees the
statements required by this section. A
request may be made by a letter to the
Director, Martinsburg Computing Center. The request must contain:
(1) The employer’s name and address;
(2) The employer’s taxpayer identification number;
(3) The type of return (i.e., Form W–
2); and
(4) A concise statement of the reasons for requesting the extension.
(b) The application must be mailed or
delivered on or before the applicable
due date prescribed in paragraph (d)(1)
of this section for furnishing the statements required by this section.
(c) In any case in which an employer
is unable, by reason of illness, absence,
or other good cause, to sign a request
for an extension, any person standing
in close personal or business relationship to the employer may sign the request on his behalf, and shall be considered as a duly authorized agent for this
purpose, provided the request sets forth
a reason for a signature other than the
employer’s and the relationship existing between the employer and the signer. For provisions relating to extensions of time for filing the Social Security Administration copies of the statement, see § 31.6081(a)–1(a)(3).
(ii) Automatic Extension of Time. The
Commissioner may, in appropriate
cases, publish procedures for automatic
extensions of time to furnish Forms W–
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§ 31.6051–1
26 CFR Ch. I (4–1–03 Edition)
2 where the employer is required to furnish the Form W–2 on an expedited
basis.
(e) Reporting of reimbursements of or
payments of expenses of moving from one
residence to another residence after July
23, 1971. Every employer who after July
23, 1971, makes reimbursement to, or
payment to (other than direct cash reimbursement), an employee for his expenses of moving from one residence to
another residence which is includable
in gross income under section 82 shall
furnish to the best of his ability to
such employee information sufficient
to assist the employee in the computation of any deduction allowable under
section 217 with respect to such reimbursement or payment. The information required under this paragraph may
be furnished on Form 4782 provided by
the Internal Revenue Service or may
be furnished on forms provided by the
employer so long as the employee receives the same information he would
have received had he been furnished
with a completed Form 4782. The information shall include the amount of the
reimbursement or payment and whether the reimbursement or payment was
made directly to a third party for the
benefit of an employee or furnished in
kind to the employee. In addition, information shall be furnished as to
whether the reimbursement or payment represents and expense described
in subparagraphs (A) through (E) of
section 217(b)(1), and if so, the amount
and nature of the expenses described in
each such subparagraph. The information described in this paragraph shall
be furnished at the same time or before
the written statement required by section 6051(a) is furnished in respect of
the calendar year for which the information provided under this paragraph
is required. The information required
under this paragraph shall be provided
for the taxable year in which the payment or reimbursement is received by
the employee. For determining the taxable year in which a payment or reimbursement is received, see section 82
and § 1.82–1.
(f) Statements with respect to compensation, as defined in the Railroad Retirement Tax Act, paid after December 31,
1967—(1) Required information relating to
excess medicare tax on compensation paid
after December 31, 1971—(i) Notification
of possible credit or refund. With respect
to compensation (as defined in section
3231(e)) paid after December 31, 1971,
every employer (as defined in section
3231(a)) who is required to deduct and
withhold from an employee (as defined
in section 3231(b)) a tax under section
3201, shall include on or with the statement required to be furnished such employee under section 6051(a), a notice
concerning the provisions of this title
with respect to the allowance of a credit or refund of the tax on wages imposed by section 3101(b) and the tax on
compensation imposed by section 3201
or 3211 which is treated as a tax on
wages imposed by section 3101(b). Such
notice shall inform such employee of
the eligibility of persons having a second employment, in addition to railroad employment, for a credit or refund of any excess hospital insurance
tax which such persons have paid because of employment under both social
security (including employee and selfemployment coverage) and railroad retirement. See section 6413(c)(3) and
paragraph (c) of § 31.6413(c)–1, relating
to special refunds with respect to compensation as defined in the Railroad
Retirement Tax Act.
(ii) Information to be supplied to employees upon request. With respect to
compensation (as defined in section
3231(e)) paid after December 31, 1971,
every employer (as defined in section
3231(a)) who is required to deduct and
withhold tax under section 3201 from
an employee (as defined in section
3231(b)) who has also received wages
during such year subject to the tax imposed by section 3101(b), shall upon request of such employee furnish to him
a written statement showing—
(a) The total amount of compensation with respect to which the tax imposed by section 3101(b) was deducted.
(b) The total amount of employee tax
under section 3201 deducted and withheld (increased by any adjustment in
the calendar year for overcollection, or
decreased by any adjustment in such
year for undercollection, of such tax
during any prior year), and
(c) The proportion thereof (expressed
either as a dollar amount, or a percentage of the total amount of compensation as defined in section 3231(e), or as
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Internal Revenue Service, Treasury
§ 31.6051–1
a percentage of the total amount of
employee tax under section 3201) withheld as tax under section 3201 for financing the cost of hospital insurance
benefits.
(2) Statements on Form W–2 (RR). (i)
Compensation paid during 1970 or 1971.
With respect to compensation (as defined in section 3231(e)) paid during 1970
or 1971, every employer (as defined in
section 3231(a)) who is required to deduct and withhold from an employee
(as defined in section 3231(b)) a tax
under section 3402 with respect to compensation, or who would have been required to deduct and withhold a tax
under section 3402 (determined without
regard to section 3402(n)) if the employee had claimed no more than one
withholding exemption, shall furnish
to each such employee in respect of
such compensation the tax return copy
and the employee’s copy of a statement
on Form W–2 (RR) instead of Form W–
2, unless such employers are permitted
by the Internal Revenue Service to
continue to use Form W–2 in lieu of
Form W–2 (RR). If the wage bracket
method of withholding provided in section 3402(c)(1) is used in respect of such
compensation, a statement on Form
W–2 (RR) must be furnished to each
employee whose wages during any payroll period are equal to or in excess of
the smallest wage from which tax must
be withheld in the case of an employee
claiming one exemption. If the percentage method is used, a statement on
Form W–2 (RR) must be furnished to
each employee whose wages during any
payroll period are in excess of one
withholding exemption for such payroll
period as shown in the percentage
method withholding table contained in
section 3402(b)(1). Each statement on
Form W–2 (RR) shall show the following:
(a) The name, address, and identification number of the employer,
(b) The name and address of the employee and his social security account
number,
(c) The total amount of wages as defined in section 3401(a),
(d) The total amount deducted and
withheld as tax under section 3402,
(e) The total amount of compensation
as defined in section 3231(e), and
(f) The total amount of employee tax
under section 3201 deducted and withheld (increased by any adjustment in
the calendar year for overcollection, or
decreased by any adjustment in such
year for undercollection, of such tax
during any prior year) and the proportion thereof (expressed either as a dollar amount, as a percentage of the
total amount of compensation as defined in section 3231(e), or as a percentage of the total amount of employee
tax under section 3201) withheld as tax
under section 3201 for financing the
cost of hospital insurance benefits.
The provisions of this chapter applicable to Form W–2, other than those relating solely to the Federal Insurance
Contributions Act, are hereby made applicable to Form W–2 (RR). See paragraph (d) of this section for provisions
relating to the time and place for furnishing the statement required by this
subparagraph.
(ii) Compensation paid during 1968 or
1969. At the option of the employer, the
provisions of paragraph (f)(1)(i) of this
section may apply with respect to compensation paid during 1968 or 1969.
(iii) Every employer who, pursuant to
paragraph (i) or (ii) of this section,
does not provide Form W–2 (RR) with
respect to compensation must furnish
the additional information required by
Form W–2 (RR) upon request by the
employee.
(g) Employers filing composite returns.
Every employer who files a composite
return pursuant to § 31.6011(a)–8 shall
furnish to his employees the statements required under this section, except that in lieu of Form W–2 the statements may be in any form which is
suitable for retention by the employee
and which contains all information required to be shown on Form W–2.
(h) Statements with respect to the refundable earned income credit—(1) In
general. In respect of remuneration
paid in any calendar year beginning
after December 31, 1986, for services
performed after December 31, 1986,
every employer shall furnish Notice 797
(You May be Eligible for a Refund on
Your Federal Income Tax Return Because of the Earned Income Credit
(EIC)), or a written statement that
contains an exact reproduction of the
wording contained in Notice 797, to
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§ 31.6051–1
26 CFR Ch. I (4–1–03 Edition)
each employee with respect to whom
the employer paid wages (within the
meaning of section 3401(a)) during the
calendar year and who did not have
any income tax withheld by the employer during the calendar year. Notwithstanding the preceding sentence,
no such statement need be furnished to
an employee who claimed exemption
from withholding pursuant to section
3402(n) for the calendar year.
(2) Time for furnishing statement—(i)
General rule. Except as otherwise provided in paragraph (h)(2)(ii) of this section, the statement required by this
paragraph (h) for a calendar year shall
be furnished—
(A) In the case of an employee who is
required to be furnished a Form W–2,
Wage and Tax Statement, for the calendar year, within one week of (before
or after) the date that the employee is
furnished a timely Form W–2 for the
calendar year (or, if a Form W–2 is not
so furnished, on or before the date by
which it is required to be furnished),
and
(B) In the case of an employee who is
not required to be furnished a Form W–
2 for the calendar year, on or before
February 7 of the year succeeding the
calendar year.
(ii) Special rule with respect to certain
Forms W–2 for 1987 and 1988. With respect to an employee who is not furnished a Form W–2 for calendar year
1987 before October 24, 1988, or who was
furnished such form on or before June
11, 1987, the statement required by this
paragraph (h) shall be furnished on or
before October 24, 1988. With respect to
an employee who is furnished a Form
W–2 after June 11, 1987, and before October 24, 1988, the statement required
by this paragraph (h) shall be furnished
within one week of (before or after) the
date the employee is furnished the
Form W–2. With respect to an employee
who is required to be furnished a Form
W–2 for calendar year 1988 before October 24, 1988, but is not so furnished, the
statement required by this paragraph
(h) shall be furnished on or before that
date.
(3) Manner of furnishing statement. If
an employee is furnished a Form W–2
in a timely manner, the statement required by this paragraph (h) may be
furnished with the employee’s Form W–
2. Any statement not so furnished shall
be furnished by direct, personal delivery to the employee or by first class
mail addressed to the employee at his
or her current or last known address.
For purposes of the preceding sentence,
direct, personal delivery means hand
delivery to the employee. Thus, for example, an employer does not meet the
requirements of this paragraph (h) if
the statement is sent through inter-office mail or is posted on a bulletin
board.
(i) Cross references. For provisions relating to the penalties provided for the
willful furnishing of a false or fraudulent statement, or for the willful failure to furnish a statement, see
§ 31.6674–1 and section 7204. For additional provisions relating to the inclusion of identification numbers and account numbers in statements on Form
W–2, see § 31.6109–1. For provisions relating to the penalty for failure to report an identification number or an account number, as required by § 31.6109–
1, see § 301.6676–1 of this chapter (Regulations on Procedure and Administration). For the penalties applicable to
information returns and payee statements the due date for which (determined without regard to extensions) is
after December 31, 1989, see sections
6721–6724 as amended by section 7711 of
the Omnibus Budget Reconciliation
Act of 1989. See section 6723 (prior to
its amendment by section 7711 of the
Omnibus Budget Reconciliation Act of
1989 (Pub. L. 101–239, 103 Stat. 2106
(1989)) and § 31.6723–1A of this chapter
(as issued thereunder) for provisions relating to the penalty for failure to include correct information on an information return or a payee statement
and for the exceptions to the penalty,
particularly the exception for timely
correction, with respect to information
returns and payee statements the due
date for which, determined without regard to extensions, is after December
31, 1986, and before January 1, 1990.
(86 Stat. 944, 26 U.S.C. 6364; 68A Stat. 917, 26
U.S.C. 7805; 68A Stat. 747, 26 U.S.C. 6051(c))
[T.D. 6516, 25 FR 13032, Dec. 20, 1960]
EDITORIAL NOTE: For FEDERAL REGISTER citations to § 31.6051–1, see the List of CFR Sections Affected, which appears in the Finding
Aids section of the printed volume and on
GPO Access.
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Internal Revenue Service, Treasury
§ 31.6051–1T
§ 31.6051–1T Statements for employees
(temporary).
(a) through (i) [Reserved]. For further guidance, see § 31.6051–1(a) through
(i).
(j) Electronic furnishing of statements—
(1) In general. A person required by section 6051 to furnish a written statement on Form W–2 (furnisher) to the
individual to whom it is required to be
furnished (recipient) may furnish the
Form W–2 in an electronic format in
lieu of a paper format. A furnisher who
meets the requirements of paragraphs
(j)(2) through (7) of this section is
treated as furnishing the Form W–2 in
a timely manner.
(2) Consent—(i) In general. The recipient must have affirmatively consented
to receive the Form W–2 in an electronic format and must not have withdrawn that consent before the Form W–
2 is furnished. The consent must be
made electronically in a manner that
reasonably demonstrates that the recipient can access the Form W–2 in the
electronic format in which it will be
furnished to the recipient. Alternatively, the consent may be made in a
different manner (for example, in an email or in a paper document) if it is
confirmed electronically in the manner
described in the preceding sentence.
(ii) Change in hardware or software requirements. If a change in hardware or
software required to access the Form
W–2 creates a material risk that the recipient will not be able to access the
Form W–2, the furnisher must, prior to
changing the hardware or software,
provide the recipient with a notice.
The notice must describe the revised
hardware and software required to access the Form W–2 and inform the recipient that a new consent to receive
the Form W–2 in the revised electronic
format must be provided to the furnisher. After implementing the revised
hardware and software, the furnisher
must obtain from the recipient, in the
manner described in paragraph (j)(2)(i)
of this section, a new consent or confirmation of consent to receive the
Form W–2 electronically.
(iii) Example. The following example
illustrates the rules of this paragraph
(j)(2):
Example. Furnisher F sends Recipient R an
e-mail stating that R may consent to receive
Forms W–2 electronically on a website instead of in a paper format. The e-mail contains an attachment instructing R how to
consent to receive Forms W–2 electronically.
The e-mail attachment uses the same electronic format that F will use for its electronically furnished Forms W–2. R opens the
attachment, reads the instructions, and submits the consent in the manner provided in
the instructions. R has consented to receive
Forms W–2 electronically in the manner described in paragraph (j)(2)(i) of this section.
(3) Required disclosures—(i) In general.
Prior to, or at the time of, a recipient’s
consent, the furnisher must provide to
the recipient a clear and conspicuous
disclosure statement containing each
of the disclosures described in paragraphs (j)(3)(ii) through (viii) of this
section.
(ii) Paper statement. The recipient
must be informed that the Form W–2
will be furnished on paper if the recipient does not consent to receive it electronically.
(iii) Scope and duration of consent. The
recipient must be informed of the scope
and duration of the consent. For example, the recipient must be informed
whether the consent applies to Forms
W–2 furnished every year after the consent is given until it is withdrawn in
the manner described in paragraph
(j)(3)(v)(A) of this section or only to the
Form W–2 required to be furnished on
or before the January 31 immediately
following the date on which the consent is given.
(iv) Post-consent request for a paper
statement. The recipient must be informed of any procedure for obtaining
a paper copy of the recipient’s Form
W–2 after giving the consent described
in paragraph (j)(2)(i) of this section.
(v) Withdrawal of consent. The recipient must be informed that—
(A) The recipient may withdraw a
consent at any time by furnishing the
withdrawal in writing (electronically
or on paper) to the person whose name,
mailing address, telephone number,
and e-mail address is provided in the
disclosure statement;
(B) The furnisher will confirm the
withdrawal in writing (either electronically or on paper); and
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§ 31.6051–2
26 CFR Ch. I (4–1–03 Edition)
(C) A withdrawal of consent does not
apply to a Form W–2 that was furnished electronically in the manner described in this paragraph (j) before the
withdrawal of consent is furnished.
(vi) Notice of termination. The recipient must be informed of the conditions
under which a furnisher will cease furnishing statements electronically to
the recipient (for example, termination
of the recipient’s employment with furnisher-employer).
(vii) Updating information. The recipient must be informed of the procedures
for updating the information needed by
the furnisher to contact the recipient.
(viii) Hardware and software requirements. The recipient must be provided
with a description of the hardware and
software required to access, print, and
retain the Form W–2, and the date
when the Form W–2 will no longer be
available on the website. The recipient
must be informed that the Form W–2
may be required to be printed and attached to a Federal, State, or local income tax return.
(4) Format. The electronic version of
the Form W–2 must contain all required information and comply with
applicable revenue procedures relating
to substitute statements to recipients.
(5) Posting. The furnisher must on or
before January 31 of the year following
the calendar year to which the Form
W–2 relates (or such other date permitted or required for furnishing the
Forms W–2) post it on a website accessible to the recipient.
(6) Notice—(i) In general. The furnisher must on or before January 31 of
the year following the calendar year to
which the Form W–2 relates (or such
other date permitted or required for
furnishing the Form W–2) notify the recipient that the Form W–2 is posted on
a website. The notice may be delivered
by mail, electronic mail, or in person.
The notice must provide instructions
on how to access and print the statement. The notice must include the following statement in capital letters,
‘‘IMPORTANT TAX RETURN DOCUMENT AVAILABLE.’’ If the notice is
provided by electronic mail, the foregoing statement should be on the subject line of the electronic mail and sent
with high importance.
(ii) Undeliverable electronic address. If
an electronic notice described in paragraph (j)(6)(i) of this section is returned
as undeliverable, and the correct electronic address cannot be obtained from
the furnisher’s records or from the recipient, then the furnisher must furnish the notice by mail or in person
within 30 days after the electronic notice is returned.
(iii) Corrected Forms W–2. A furnisher
must notify a recipient that it has
posted corrected Forms W–2 on a
website within 30 days of such posting
in the manner described in paragraph
(j)(6)(i) of this section. This notice
must be furnished by mail or in person
if—
(A) An electronic notice of the
website posting of an original Form W–
2 was returned as undeliverable; and
(B) The recipient has not provided a
new e-mail address.
(7) Retention. The furnisher must
maintain access to the Forms W–2 on
the website through October 15 of the
year following the calendar year to
which the Forms W–2 relate (or the
first business day after October 15, if
October 15 falls on a Saturday, Sunday,
or legal holiday). The furnisher must
maintain access to corrected Forms W–
2 that are posted on the website
through October 15 of the year following the calendar year to which the
Forms W–2 relate (or the first business
day after such October 15, if October 15
falls on a Saturday, Sunday, or legal
holiday) or the date 90 days after the
corrected forms are posted, whichever
is later.
(k) Effective date. Paragraph (j) of
this section applies to Forms W–2 required to be furnished under section
6051 after December 31, 2000.
[T. D. 8942, 66 FR 10195, Feb. 14, 2001]
§ 31.6051–2 Information
returns
on
Form W–3 and Internal Revenue
Service copies of Forms W–2.
(a) In general. Every employer who is
required to make a return of tax under
§ 31.6011(a)–1 (relating to returns under
the Federal Insurance Contributions
Act), § 31.6011(a)–4 (relating to returns
of income tax withheld from wages), or
§ 31.6011(a)–5 (relating to monthly returns) for a calendar year or any period
therein shall file the Social Security
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Internal Revenue Service, Treasury
§ 31.6051–3
Administration copy of each Form W–2
required under § 31.6051–1 to be furnished by the employer with respect to
wages paid during the calendar year.
Each Form W–2 and the transmittal
Form W–3 shall together constitute an
information return to be filed with the
Social Security Administration office
indicated on the instructions to such
forms. However, in the case of an employer who elects to file a composite
return pursuant to § 31.6011(a)–8, the information return required by this section shall consist of magnetic tape (or
other approved media) containing all
information required to be on the employee statement, together with transmittal Form 4804.
(b) Corrected returns. The Social Security Administration copies of corrected
Forms W–2 (or magnetic tape or other
approved media) for employees for the
calendar year shall be submitted with
Form W–3 (or Form 4804), on or before
the date on which information returns
for the period in which the correction
is made would be due under paragraph
(a)(3)(ii) of § 31.6071(a)–1, to the Social
Security Administration office with
which Forms W–2 are required to be
filed.
(c) Cross references. For provisions relating to the time for filing the information returns required by this section
and to extensions of the time for filing,
see §§ 31.6071(a)–1(a)(3) and 31.6081(a)–
1(a)(3), respectively. For the penalty
provided in case of each failure to file,
see paragraph (a) of § 301.6652–1 of this
chapter (Regulations on Procedure and
Administration). For the penalties applicable to information returns and
payee statements the due date for
which (determined without regard to
extensions) is after December 31, 1989,
see sections 6721–6724 as amended by
section 7711 of the Omnibus Budget
Reconciliation Act of 1989 (Publ. L. 101–
239, 103 Stat. 2106 (1989). See section
6723 (prior to its amendment by section
7211 of the Omnibus Reconciliation Act
of 1989) and § 301.6723–1A of this chapter
for provisions relating to the penalty
for failure to include correct information on an information return or a
payee statement and for the exceptions
to the penalty, particularly the exception for timely correction, with respect
to information returns and payee
statements the due date for which, determined without regard to extensions,
is after December 31, 1986, and before
January 1, 1990.
(68A Stat. 747, 26 U.S.C. 6051; 68A Stat. 917, 26
U.S.C. 7805)
[T.D. 7351, 40 FR 17145, Apr. 17, 1975, as
amended by T.D. 7580, 43 FR 60160, Dec. 26,
1978; T.D. 8155, 52 FR 34357, Sept. 10, 1987;
T.D. 8344, 56 FR 15042, Apr. 15, 1991; T.D. 8636,
60 FR 66141, Dec. 21, 1995]
§ 31.6051–3 Statements
required
in
case of sick pay paid by third parties.
(a) Statements required from payor. (1)
Every payor of sick pay shall furnish
to the employer of the payee of the
sick pay a written statement. The
written statement must contain the
following information:
(i) The name and, if there is withholding from sick pay under section
3402(o) and the regulations thereunder,
the social security account number of
the payee,
(ii) The total amount of sick pay paid
to the payee during the calendar year,
and
(iii) The total amount (if any) deducted and withheld from sick pay
under section 3402(o) and the regulations thereunder.
The statement must be furnished to
the employer on or before January 15
of the year following the calendar year
in which any sick pay was paid.
(2) These reporting requirements are
in lieu of the requirements of sections
6051(a) (relating to written statements
for employees) and 6041 (relating to information returns). Statements required to be furnished by this paragraph shall be treated as statements
required under section 6051 to be furnished to employees for purposes of
sections 6674 (relating to fraudulent
statement or failure to furnish statement to employee) and 7204 (relating to
fraudulent statement or failure to
make statement to employees).
(3) A multiemployer plan paying sick
pay pursuant to a collectively bargained agreement may furnish the
statement required to be furnished by
this paragraph, which shall include the
total amount of sick pay paid to the
employee under the plan regardless of
the identity or number of employers
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§ 31.6051–3
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for whom the employee worked during
the calendar year under the plan, to
one of the following:
(i) The employer for whom the employee worked the most hours during
the calendar year for which the statement is to be furnished,
(ii) The employer for whom the employee first worked during such year,
(iii) The employer for whom the employee last worked during such year,
(iv) The employer for whom the employee worked immediately preceding
his absence for which sick pay was
paid,
(v) The employer for whom the employee worked immediately following
his absence for which sick pay was
paid,
(vi) The employer designated through
the operation of a specific clause of the
collective bargaining agreement, or
(vii)
The
employer
designated
through the operation of a specific system of designation chosen by the
payor.
(b) Information required to be furnished
by employer. Every employer of a payee
of sick pay who receives a statement
under paragraph (a) from a payor of
sick pay shall furnish to each payee of
sick pay a written statement, which
must be furnished on Form W–2. The
written statement must contain the
following information:
(1) All of the information required to
be furnished under paragraph (a),
(2) The name, the address, and the
Employer Identification Number (EIN)
of the employer,
(3) The words ‘‘sick pay’’, which shall
be written in the box labelled ‘‘Employer’s use’’, and
(4) If any portion of the sick pay is
excludable from gross income under
section 104(a)(3), the amount of the portion which is not so excludable and of
the portion which is so excludable.
Only sick pay payments includable in
gross income shall be reported in the
box labelled ‘‘Wages, tips, other compensation’’ on Form W–2. Any amount
excludable from gross income under
section 104(a)(3) shall be reported in the
box labelled ‘‘Employer’s use’’ on Form
W–2 and any amount so reported shall
be described as ‘‘Nontaxable’’. The information required to be furnished by
this paragraph may be furnished either
on the same Form W–2 that is required
to be furnished under section 6051(a) or
on a separate Form W–2. To the extent
practicable, this statement should be
furnished to the payee along with the
statement (if any) required under section 6051(a) (relating to written statements for employees). The statement
must be furnished to the payee on or
before January 31 of the year following
the calendar year in which any sick
pay was paid. The employer shall file
copy A of Form W–2 and Form W–3
with the Social Security Administration in accordance with section 6051(d)
(relating to statements to constitute
information returns) and the regulations thereunder.
(c) Optional rule. The payor and the
employer may at their option enter
into an agency agreement valid under
local law whereby the employer designates the payor to be the employer’s
agent for purposes of fulfilling the requirements of this section. This agreement must specify what portion, if
any, of the sick pay is excludable from
gross income under section 104(a)(3). If
they enter into such an agreement, the
payor shall not provide the statement
required by paragraph (a) but shall instead furnish statements that meet all
of the requirements of paragraph (b),
except that the agreement must provide that the payor will furnish the
statements with the payor’s, rather
than the employer’s name, address, and
Employer Identification Number (EIN)
if ‘‘Sick Pay Statement Furnished
under an Agency Agreement with Your
Employer’’ appears in the box labelled
‘‘Employer’s Use’’ on Form W–2. Paragraph (a)(2) remains applicable to
statements furnished under this paragraph. In the case of sick pay paid
under a multiemployer plan pursuant
to a collectively bargained agreement,
an amendment to either the multiemployer plan or the collectively bargained agreement designating the
payor to be the employers’ agent for
purposes of fulfilling the requirements
of this section shall be deemed an agency agreement that fulfills the requirements of the first sentence of this paragraph.
(d) Definitions. For purposes of this
section, the terms ‘‘payor’’, ‘‘payee’’,
and ‘‘sick pay’’ shall have the same
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Internal Revenue Service, Treasury
§ 31.6051–4
meaning as ascribed thereto in section
3402(o) and the regulations thereunder.
For purposes of this section, the term
‘‘employer’’ shall have the same meaning as ascribed thereto in section
3401(d) and the regulations thereunder,
except that the term ‘‘employer’’ shall
not include the payor for purposes of
this section.
(e) Additional requirements. (1) Statements furnished to payees under this
section must also comply with all requirements of section 6051 (c) and (d)
and the regulations thereunder.
(2) The provisions of § 1.9101–1 (relating to permission to submit information required by certain returns and
statements on magnetic tape) shall be
applicable to the information required
by this section to be furnished on Form
W–2 if the employer properly complies
with those provisions.
(3) The provisions of section 6109 (relating to identifying numbers) and the
regulations thereunder shall be applicable to Form W–2 and to any payee of
sick pay to whom a statement on Form
W–2 is required by this section to be
furnished. Thus the employer must include the social security account number of the payee on all Forms W–2.
(f) Effective date. The provisions of
this section shall apply to payments of
sick pay made on or after May 1, 1981.
(g) Transitional rule. Payors may report all sick pay paid to a payee after
December 31, 1980, and before May 1,
1981, on the same statement required to
be furnished under paragraph (a) as is
used to report sick pay paid to a payee
on or after May 1, 1981. If the payor reports on the statement required to be
furnished under paragraph (a), he shall
not report sick pay paid after December 31, 1980, and before May 1, 1981, on
Form 1099, if otherwise required to do
so. If no sick pay is paid on or after
May 1, 1981, the payor may report all
sick pay paid to a payee after December 31, 1980, and before May 1, 1981, on
the statement required to be furnished
under paragraph (a). If he reports on
the statement required to be furnished
under paragraph (a), he shall not report
sick pay paid on Form 1099, if otherwise required to do so.
(Secs. 3402(o), 7805, Internal Revenue Code of
1954 (94 Stat. 3495, (26 U.S.C. 3402(o)); 68A
Stat. 917 (26 U.S.C. 7805))
[T.D. 7814, 47 FR 11277, Mar. 16, 1982]
§ 31.6051–4 Statement required in case
of backup withholding.
(a) Statements required from payor.
Every payor of any reportable payment
(as defined in section 3406(b)(1)) who is
required to deduct and withhold tax
under section 3406 must furnish to the
payee a written statement containing
the information required by paragraph
(c) of this section.
(b) Prescribed form. The prescribed
form for the statement required by this
section is Form 1099. In the case of any
reportable interest or dividend payment as defined in section 3406(b)(2),
the prescribed form is the Form 1099 required in § 1.6042–4 of this chapter (relating to payments of dividends),
§ 1.6044–5 of this chapter (relating to
payments of patronage dividends), or
§ 1.6049–6(e) of this chapter (relating to
payments of interest or original issue
discount). Statements required to be
furnished by this section will be treated as statements required by the respective sections with respect to any
reportable payment, except that the
statement required under this section
must include the amount of tax withheld under section 3406. In no event
will a statement be required under this
section if a statement with the same
information is required to be furnished
to the recipient under another section.
(c) Information required. Each statement on Form 1099 must show the following:
(1) The name, address, and taxpayer
identification number of the person receiving any reportable payment;
(2) The amount subject to reporting
under section 6041, 6041A(a), 6042, 6044,
6045, 6049, 6050A, or 6050N whether or
not the amount of the reportable payment is less than the amount for which
an information return is required. If
tax is withheld under section 3406, the
statement must show the amount of
the payment withheld upon;
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§ 31.6053–1
26 CFR Ch. I (4–1–03 Edition)
(3) The amount of tax deducted and
withheld under section 3406;
(4) The name and address of the person filing the form;
(5) A legend stating that such
amount is being reported to the Internal Revenue Service; and
(6) Such other information as is required by the form.
(d) Time for furnishing statements. The
statement must be furnished to the
payee no later than January 31 of the
year following the calendar year in
which the payment was made.
(e) Aggregation. The payor or broker
may combine the information required
to be shown under this section with information required to be shown under
another section even if they do not relate to the same type of reportable
payment.
[T.D. 8637, 60 FR 66133, Dec. 21, 1995]
§ 31.6053–1 Report of tips by employee
to employer.
(a) Requirement that tips be reported—
(1) In general. An employee who receives, in the course of employment by
an employer, tips that constitute
wages as defined in section 3121(a) or
section 3401, or compensation as defined in section 3231(e), must furnish to
the employer a statement, or statements, disclosing the total amount of
the tips received by the employee in
the course of employment by the employer. Tips received by an employee in
a calendar month in the course of employment by an employer that are required to be reported to the employer
must be reported on or before the 10th
day of the following month. For example, tips received by an employee in
January 2000 are required to be reported by the employee to the employer on or before February 10, 2000.
(2) Cross references. For provisions relating to the treatment of tips as
wages for purposes of the Federal Insurance Contributions Act (FICA) tax
under sections 3101 and 3111, see sections 3102(c), 3121(a)(12), and 3121(q) and
§§ 31.3102–3 and 31.3121(a)(12)–1. For provisions relating to the treatment of
tips as wages for purposes of the tax
under section 3402 (income tax withholding), see sections 3401(a)(16), 3401(f),
and
3402(k)
and
§§ 31.3401(a)(16)–1,
31.3401(f)–1, and 31.3402(k)–1. For provi-
sions relating to the treatment of tips
as compensation for purposes of the
Railroad Retirement Tax Act (RRTA)
tax under sections 3201 and 3201, see
section 3231(e) and § 31.3231(e)–1(a).
(b) Statement for use in reporting tips—
(1) In general. The statement described
in paragraph (a) of this section can be
provided on paper or transmitted electronically. The statement must be
signed by the employee and must disclose:
(i) The name, address, and social security number of the employee.
(ii) The name and address of the employer.
(iii) The period for which, and the
date on which, the statement is furnished. If the statement is for a period
of less than 1 calendar month, the beginning and ending dates of the period
must be included (for example, January
1 through January 8, 1998).
(iv) The total amount of tips received
by the employee during the period covered by the statement which are required to be reported to the employer
(see paragraph (a) of this section).
(2) Form of statement—(i) In general.
No particular form is prescribed for use
in furnishing the statement required
by this section. The statement may be
furnished on paper or transmitted electronically. An electronic system and
all tip statements generated by that
system must meet the requirements of
paragraph (d) of this section. If the employer does not provide any other
means for the employee to report tips,
the employee may use Form 4070,
‘‘Employee’s Report of Tips to Employer.’’
(ii) Single-purpose forms. A statement
may be furnished on an employer-provided form. The form may be on paper
or in electronic form. An employer
that provides a paper form must make
blank copies of the form readily available to all tipped employees. Any form,
whether paper or electronic, provided
by an employer for use by its tipped
employees solely to report tips must
meet all the requirements of paragraph
(b)(1) of this section.
(iii) Regularly used forms. Instead of
requiring that tips be reported as described in paragraph (b)(2)(ii) of this
section on a special form used solely
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Internal Revenue Service, Treasury
§ 31.6053–1
for tip reporting, an employer may prescribe regularly used forms for use by
employees in reporting tips. A regularly used form may be on paper or in
electronic form (such as a time card or
report), must meet the requirements of
paragraph (b)(1) (iii) and (iv) of this
section, must contain identifying information that will ensure accurate identification of the employee by the employer, and is permitted to be used
only if the employer furnishes the employee a statement suitable for retention showing the amount of tips reported by the employee for the period.
The employer statement may be furnished when the employee reports the
tips, when wages are first paid following the reporting of tips by the employee, or within a short time after the
wages are paid. The employer may
meet this requirement, for example,
through the use of a payroll check stub
or other payroll document regularly
furnished (if not less frequent than
monthly) by the employer to the employee showing gross pay and deductions.
(c) Period covered by, and due date of,
tip statement—(1) In general. A tip statement furnished by an employee to an
employer may not cover a period greater than 1 calendar month. An employer
may, however, require the submission
of a statement in respect of a specified
period of time, for example, on a weekly or biweekly basis, regular payroll
period, etc. An employer may specify,
subject to the limitation in paragraph
(a) of this section, the time within
which, or the date on which, the statement for a specified period of time
should be submitted by the employee.
For example, a statement covering a
payroll period may be required to be
submitted on the first (or second) day
following the close of the payroll period. A statement submitted by an employee after the date specified by the
employer for its submission nevertheless is a statement furnished pursuant
to section 6053(a) and this section if it
is submitted to the employer on or before the 10th day following the month
in which the tips were received.
(2) Termination of employment. If an
employee’s employment terminates,
the employee must furnish a tip statement to the employer when the em-
ployee ceases to perform services for
the employer. A statement submitted
by an employee after the date on which
the employee ceases to perform services for the employer is a statement
furnished pursuant to section 6053(a)
and this section if the statement is
submitted to the employer on or before
the earlier of the day on which the
final wage payment is made by the employer to the employee or the 10th day
following the month in which the tips
were received.
(d)
Requirements
for
electronic
systems—(1) In general. The electronic
system must ensure that the information received is the information transmitted by the employee and must document all occasions of access that result
in the transmission of a tip statement.
In addition, the design and operation of
the electronic system, including access
procedures, must make it reasonably
certain that the person accessing the
system and transmitting the statement
is the employee identified in the statement transmitted.
(2) Same information as on paper statement. The electronic tip statement
must provide the employer with all the
information required by paragraph
(b)(1) of this section.
(3) Signature. The electronic tip statement must be signed by the employee.
The electronic signature must identify
the employee transmitting the electronic tip statement and must authenticate and verify the transmission. For
this purpose, the terms authenticate
and verify have the same meanings as
they do when applied to a written signature on a paper tip statement. Any
form of electronic signature that satisfies the foregoing requirements is permissible.
(4) Copies of electronic tip statements.
Upon request by the Internal Revenue
Service (IRS), the employer must supply the IRS with a hard copy of the
electronic tip statement and a statement that, to the best of the employer’s knowledge, the electronic tip
statement was filed by the named employee. The hard copy of the electronic
tip statement must provide the information required by paragraph (b)(1) of
this section, but need not be a facsimile of Form 4070 or any employerdesigned form.
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§ 31.6053–2
26 CFR Ch. I (4–1–03 Edition)
(5) Record retention. The record retention requirements applicable to automatic data processing systems also
apply to electronic tip reporting systems.
(6) Effective date. The provisions pertaining to electronic systems and electronic tip reports are applicable as of
December 13, 2000. However, employers
may apply these provisions to earlier
periods.
[T.D. 7001, 34 FR 1004, Jan. 23, 1969, as amended by T.D. 8910, 65 FR 77819, Dec. 13, 2000]
§ 31.6053–2 Employer statement of uncollected employee tax.
(a) Requirement that statement be furnished. If—
(1) The amount of the employee tax
imposed by section 3101 in respect of
tips reported by an employee to his employer pursuant to section 6053(a) (see
§ 31.6053–1) exceeds
(2) The amount of employee tax imposed by section 3101 in respect of such
tips which can be collected by the employer from wages (exclusive of tips) of
such employee or from funds furnished
to the employer by the employee,
the employer shall furnish to the employee a statement showing the
amount of the excess. For provisions
relating to the collection of, and liability for, employee tax on tips, see
§ 31.3102–3.
(b) Form of statement. Form W–2 is the
form prescribed for use in furnishing
the statement required by paragraph
(a) of this section, except that if an employer files a composite return pursuant to § 31.6011(a)–8 he may furnish to
the employee, in lieu of Form W–2, a
statement containing the required information in a form suitable for retention by the employee. A statement is
required under this section in respect
of an excess referred to in paragraph
(a) of this section, even though the employer may not be required to furnish a
statement to the employee under
§ 31.6051. Provisions applicable to the
furnishing of a statement under
§ 31.6051 shall be applicable to statements under this section.
(c) Excess to be shown on statement. If
there is an excess in respect of the tips
reported by an employee in two or
more statements furnished pursuant to
section 6053(a), only the total excess
for the period covered by the employer
statement shall be shown on such
statement.
[T.D. 7001, 34 FR 1005, Jan. 23, 1969, as amended by T.D. 7351, 40 FR 17145, Apr. 17, 1975]
§ 31.6053–3 Reporting by certain large
food or beverage establishments
with respect to tips.
(a) Information return by an employer
with respect to tips—(1) In general. An
employer shall file a separate information return for each calendar year (as
defined in paragraph (j)(14) of this section) with respect to each large food or
beverage establishment (as defined in
paragraph (j)(7) of this section) in
which such employer has employees.
The information return shall contain
the following:
(i) The employer’s name, address, and
employer identification number;
(ii) The establishment’s name, address, and identification number (see
paragraph (a)(5) of this section);
(iii) The aggregate gross receipts
(other than nonallocable receipts) of
the establishment from the provision
of food or beverages;
(iv) The aggregate amount of charge
receipts (other than nonallocable receipts) on which there were charged
tips;
(v) The aggregate amount of charged
tips shown on such charge receipts;
(vi) The aggregate amount of tips actually received by food or beverage employees of the establishment during the
calendar year and reported to the employer under section 6053(a) (see paragraph (j)(15) of this section);
(vii) The aggregate amount the employer is required to report under section 6051 and the regulations thereunder with respect to service charges
of less than 10 percent.
(viii) The name and social security
number of each employee of the establishment during the calendar year to
whom an allocation was made under
section 6053(c)(3) and paragraph (d) of
this section and the amount of such allocation.
(2) Calendar year 1983 information return. In the case of the 1983 calendar
year information return, the information required by paragraphs (a)(1)(iii)
through (viii) of this section shall be
reported for the period beginning with
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Internal Revenue Service, Treasury
§ 31.6053–3
the first payroll period ending on or
after April 1, 1983, and ending with the
end of the 1983 calendar year. See paragraph (c) of this section relating to information required for the first quarter
of 1983.
(3) Prescribed form. The return required by this paragraph shall be made
on Form 8027 with the transmittal
form being Form 8027T. The information required by paragraph (a)(1)(viii)
of this section may be provided by attaching to Form 8027 photocopies of
each employee’s W–2 for whom an allocation was made. A copy of any written
good faith agreements applicable to a
given calendar year (see paragraph (e)
of this section) shall be attached to
Form 8027 for such calendar year.
(4) Time and place for filing. The information return required by this paragraph (a) shall be filed on or before the
last day of February (March 31 if filed
electronically) of the year following
the calendar year for which the return
is made with the Internal Revenue
Service Center specified by the Form
8027 or its instructions. See section
6652(a) relating to the penalty for failure to file this information return.
(5) Large food or beverage establishment
identification number. Each large food or
beverage establishment shall have a
unique identification number to be included on Form 8027 and any employer’s application pursuant to paragraph
(h) of this section. If an identification
number is changed for any reason, for
example if the establishment becomes
a different ‘‘type’’ of establishment as
described in paragraph (a)(5)(ii) of this
section, or if the employer identification number changes, the employer
shall notify the Service by including
both the old and new identification
numbers on the Form 8027 filed for the
year in which the identification number was changed. An establishment
identification number shall be determined as follows:
(i) The first nine digits shall be the
employer’s
identification
number
(EIN).
(ii) The next digit shall identify the
type of large food or beverage establishment, with the categories as follows:
(A) The number ‘‘1’’ signifies an establishment that serves evening meals
only (with or without alcoholic beverages).
(B) The number ‘‘2’’ signifies an establishment that serves evening meals
and other meals (with or without alcoholic beverages).
(C) The number ‘‘3’’ signifies an establishment that serves only meals
other than evening meals (with or
without alcoholic beverages).
(D) The number ‘‘4’’ signifies an establishment that serves food, if at all,
as only an incidental part of the business of serving alcoholic beverages.
(iii) The last five digits are to differentiate between multiple establishments reporting under the same EIN
number. For this purpose, the employer shall assign each establishment
reporting under such employer’s EIN
number a unique five digit number. For
example, each establishment could be
assigned a unique number by beginning
with ‘‘00001’’ and progressing in numerical sequence (i.e., ‘‘00002’’, ‘‘00003’’,
‘‘00004’’, ‘‘00005’’) until each establishment has been assigned a number.
(6) Definitions. See paragraph (j) of
this section for definitions of various
terms used in this section.
(b) Employer statement to employees—
(1) In general. The employer shall furnish to each employee to whom an
amount is allocated under section
6053(c)(3) and paragraph (d) of this section a written statement for each calendar year containing the following information:
(i) The employer’s name and address;
(ii) The name of the employee;
(iii) The aggregate amount allocated
to the employee for the calendar year.
(2) Prescribed form. The written statement required by this paragraph shall
be made on Form W–2.
(3) Time and manner for furnishing the
statement. The written statement required by this paragraph shall be due
at the same time and shall be furnished
in the same manner as the statement
required to be furnished under section
6051. See section 6678 relating to the
penalty for failure to file this statement.
(4) Employee’s request for an early W–2.
If an employee’s employment is terminated prior to the end of a calendar
year and the employee requests an
early W–2 under section 6051 and
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§ 31.6053–3
26 CFR Ch. I (4–1–03 Edition)
§ 31.6051–1(d), a tip allocation under section 6053(c) is not required to be shown
on such early W–2. However, the employer may include on such early W–2
the employee’s actual tip allocation
under section 6053(c), if known, or a
good faith estimate of such allocation.
A good faith estimate of an allocation
shall be signified by placing the word
‘‘estimate’’ next to the allocation on
the employee’s copy of the early W–2.
An amended W–2 must be furnished to
each employee to whom an amount is
allocated under section 6053(c), during
January of the calendar year following
the calendar year for which the statement is made, if there is no tip allocation on the early W–2 or if the estimated allocation is found to vary from
the actual allocation by more than 5
percent of the amount of the actual allocation.
(5) Employee reporting of tip income.
Regardless of whether an employee receives an allocation under section
6053(c) and § 31.6053–3, the employee is
required to report as income on his or
her Federal income tax return all tips
received. For tips received before October 1, 1985, an employee must be able to
substantiate the amount of reported
tip income as provided in section 6001
and the regulations thereunder, For
tips received on or after October 1, 1985,
an employee must be able to substantiate the amount of reported tip income as provided in § 31.6053–4. The Internal Revenue Service may determine
that a tipped employee received a larger amount of tip income than is reflected by the employee’s allocation.
(c) First quarter report of 1983—(1) In
general. For the period beginning with
the first day of calendar year 1983, and
ending on the last day of the last payroll period ending before April 1, 1983,
an employer must file an information
return for each large food or beverage
establishment that was a large food or
beverage establishment on January 1,
1983, that contains the information required by paragraph (a)(1)(i)–(vii) of
this section for such period.
(2) Prescribed form. The information
return required by this paragraph shall
be made on Form 8027. The returns for
the first calendar quarter of 1983 and
for calendar year 1983 may be incorporated onto a single Form 8027 but
must separately set forth the required
information for each of the two return
periods.
(3) Time and place for filing. The time
and place for filing the information return required by this paragraph shall
be the same as for the calendar year
1983 information return. See paragraph
(a)(4) of this section.
(d) Allocation of excess of 8 percent of
gross receipts over the aggregate amount
of reported tips—(1) In general. An employer that operates a large food or
beverage establishment shall allocate
(as tips for purposes of the requirements of section 6053(c) among tipped
employees at such establishment performing services during any payroll period an amount equal to the excess of:
(i) Eight percent of the gross receipts
(other than nonallocable receipts) of
such establishment for the payroll period, over
(ii) The aggregate amount of tips reported by employees at such establishment to the employer under section
6053(a) for such period. For this purpose, if an employee reports under section 6053(a) on the basis of a period
other than a payroll period such employee may specify what portion of his
or her reported tips are attributable to
a given payroll period when reporting
tips to the employer under section
6053(a). In the absence of any specification by the employee, the employer
shall allocate the amount of tips reported by an employee to a given payroll period either:
(A) By multiplying the aggregate
amount of those reported tips by a
fraction, the numerator of which is the
gross receipts attributable to the
tipped employee for the payroll period
and the denominator of which is the
gross receipts attributable to the employee for the entire tip reporting period; or
(B) By multiplying the aggregate
amount of those reported tips by a
fraction, the numerator of which is the
hours worked by the employee during
the payroll period and the denominator
of which is the total hours worked by
the employee during the entire tip reporting period.
With respect to each establishment,
the employer shall choose the method
described
in
either
paragraph
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Internal Revenue Service, Treasury
§ 31.6053–3
(d)(1)(ii)(A) or paragraph (d)(1)(ii)(B) of
this section for a calendar year and
apply such method consistently in
making all allocations required by the
preceding sentence. If an employee is
employed in more than one of an employer’s food or beverage operations,
such employee may specify what portion of his or her reported tips are attributable to a given operation when
reporting tips to the employer under
section 6053(a). In the absence of any
specification by the employee, the employer shall allocate the amount of tips
reported by the employee to a given
food or beverage operation in a manner
similar to that provided above for allocation of tips among payroll periods.
The employer shall choose the method
described
in
either
paragraph
(d)(1)(ii)(A) or paragraph (d)(1)(ii)(B) of
this section for a calendar year and
apply such method consistently in
making all allocations required by the
preceding sentence.
(2) Employer not liable to employees for
allocations. An employer who makes allocations (as tips for purposes of the requirements of section 6053(c) and this
section) among such employer’s employees in accordance with paragraph
(d) and either paragraph (e) or (f) of
this section shall not be liable to any
employee if any amount is improperly
allocated. However, if an employee’s
total tip allocations for a calendar year
as reported on Form W–2 varies from
the correct allocation amount by more
than 5 percent of the correct allocation
amount, the employer shall adjust such
employee’s allocation. If such an adjustment of an employee’s allocation is
required, the employer shall also review all tips allocations made to other
employees in the same establishment
to assure that the error did not distort
other allocated amounts by more than
5 percent. Any adjustments made for
variances of more than 5 percent shall
be reflected in amended W–2’s issued to
the affected employees. Tip allocations
made under this section shall have no
effect on the withholding responsibilities of the employer under subtitle C
of the Code. Withholding on tips is authorized only with respect to amounts
of tips reported to employers by employees under section 6053(a).
(e) Allocation pursuant to a good faith
agreement. The amount determined
under paragraph (d)(2) of this section
for each payroll period must be allocated among tipped employees providing services during such payroll period either on the basis of a good faith
agreement described in this paragraph,
or, if there is no good faith agreement
applicable with respect to the payroll
period on the basis of the allocation
method provided in paragraph (f) of
this section. A good faith agreement is
a written agreement consented to by
the employer and at least two-thirds of
the members of each occupational category of tipped employees (e.g., waiters, busboys, maitre d’s) employed in
the large food or beverage establishment at the time the agreement is
adopted which:
(1) Provides for the allocation of the
amount described in paragraph (d)(1)
among tipped employees in a manner
that, in combination with the tips reported by such employees under section 6053(a), will reflect a good faith approximation of the actual distribution
of tip income among such tipped employees;
(2) Is effective prospectively beginning with the first day of a payroll period that begins after the date of adoption, but in no event later than the
first day of the succeeding calendar
year. However, a good faith agreement
may be effective for calendar year 1983
if adopted on or before December 31,
1983.
(3) Is adopted at a time when there
are tipped employees employed by the
employer in each occupational category of tipped employees (e.g., waiters, busboys, maitre d’s) which would
be affected by the agreement; and
(4) May be revoked prospectively by a
written instrumnent adopted by a least
two-thirds of the tipped employees who
are employed in the establishment in
occupational categories affected by the
agreement at the time of the revocation. A revocation of an agreement
shall be effective only at the beginning
of a payroll period.
(f) Allocation method to be used in the
absence of a good faith agreement. (1) In
a case in which there is no good faith
agreement in effect and the aggregate
amount of tips reported pursuant to
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§ 31.6053–3
26 CFR Ch. I (4–1–03 Edition)
section 6053(a) with respect to a payroll
period is less than 8 percent of the establishment’s gross receipts for the
payroll period, the employer shall allocate the difference as tips for purposes
of section 6053(c) as provided in this
paragraph. No allocations shall be
made to indirectly tipped employees.
An allocation shall be made to each directly tipped employee performing
services for the establishment who has
a reporting shortfall (as determined
under paragraph (f)(1)(v) of this section) for the payroll period. The
amount of each allocation shall be determined in the following manner:
(i) Multiply the amount of the establishment’s gross receipts for the payroll period by 8 percent (0.08).
(ii) Determine the aggregate amount
of tips reported for the payroll period
by indirectly tipped employees.
(iii) Subtract from the amount determined under paragraph (f)(1)(i) the aggregate amount of tips reported by indirectly tipped employees as determined under paragraph (f)(1)(ii) of this
section. The excess is the directly
tipped employees’ aggregate share of 8
percent of the gross receipts of the establishment for the payroll period.
(iv) For each directly tipped employee, multiply the amount determined under paragraph (f)(1)(iii) of this
section by a fraction, the numerator of
which is the amount of gross receipts
of the establishment for the payroll period that is attributable to the employee and the denominator of which is
the aggregate amount of gross receipts
for the payroll period that is attributable to all directly tipped employees.
The product is each directly tipped employee’s share of 8 percent of the gross
receipts of the establishment for the
payroll period. The employer may determine the fraction described in the
first sentence of this subparagraph by
substituting for the numerator the
number of hours worked by the directly tipped employee during the payroll period and by substituting for the
denominator the number of hours
worked by all directly tipped employees during the payroll period. For payroll periods beginning after December
31, 1986, the method of allocation described in the preceding sentence may
be used only by an employer that em-
ploys less than the equivalent of 25
full-time employees (as defined in paragraph (j)(19) of this section) at the establishment during the payroll period.
(v) For each directly tipped employee, determine the excess, if any, of
the amount determined under paragraph (f)(1)(iv) of this section over the
amount reported as tips by the employee for the payroll period pursuant
to section 6053(a). Such excess, if any,
is the employee’s shortfall for the payroll period.
(vi) Subtract from the amount determined under paragraph (f)(1)(i) of this
section the aggregate amount of tips
reported pursuant to section 6053(a) by
all directly and indirectly tipped employees for the payroll period. The excess is the amount to be allocated as
tips among directly tipped employees
who had a shortfall for the payroll period as determined under paragraph
(f)(1)(v) of this section.
(vii) For each directly tipped employee who had a shortfall for the payroll period, multiply the amount determined under paragraph (f)(1)(vi) of this
section by a fraction, the numerator of
which is the amount of such employee’s shortfall (determined under paragraph (f)(1)(v) of this section and the
denominator of which is the aggregate
of all shortfalls for the payroll period
for all directly tipped employees. The
product is the employee’s allocation
for the payroll period.
(2) The provisions of this paragraph
may be illustrated by the following examples:
Example 1. X is a large food or beverage establishment that has chosen to make tip allocations using its actual payroll period and
gross receipts attributable to employees. X
had gross receipts for a payroll period of
$100,000 and tips reported for the payroll period of $6,200. Directly tipped employees reported $5,700 while indirectly tipped employees reported $500.
Directly tipped employees
A
B
C
D
E
F
.............................................................
.............................................................
.............................................................
.............................................................
.............................................................
.............................................................
Gross
receipts
for payroll
period
Tips
reported
18,000
16,000
23,000
17,000
12,000
14,000
1,080
880
1,810
800
450
680
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Internal Revenue Service, Treasury
Directly tipped employees
Total ................................................
§ 31.6053–3
Gross
receipts
for payroll
period
Tips
reported
100,000
5,700
The allocation computations would be as
follows:
(1) $100,000 (gross receipts)×0.08=$8,000.
(2) Tips reported by indirectly tipped
employees=$500.
(3)
$8,000¥$500
(indirect
employees
tips)=$7,500.
(4)
Directly tipped
employees
A
B
C
D
E
F
Directly
tipped
share
of 8 pct
gross
Gross receipts
ratio
×
...................
...................
...................
...................
...................
...................
$7,500
7,500
7,500
7,500
7,500
7,500
Total ...
............
=
18,000/100,000
16,000/100,000
23,000/100,000
17,000/100,000
12,000/100,000
14,000/100,000
....
Employee
share
of 8 pct
gross
1,350
1,200
1,725
1,275
900
1,050
..........................
....
7,500
(5)
Employee
share
of 8 pct
gross
Directly tipped
employees
A
B
C
D
E
F
...............................
...............................
...............................
...............................
...............................
...............................
Total shortfall
Tips
reported
¥
$1,350
1,200
1,725
1,275
900
1,050
............
=
$1,080
880
1,810
800
450
680
....
.............
....
1,885
Since employee C has no reporting shortfall there is no allocation to C.
(6) $8,000¥6,200 (total tips reported)=$1,800
(amount allocable among shortfall employees).
(7)
Shortfall
employees
A
B
D
E
F
........................
........................
........................
........................
........................
Allocable
amount
×
Shortfall
ratio
$1,800
1,800
1,800
1,800
1,800
=
270/1885
320/1885
475/1885
450/1885
370/1885
A
B
C
D
E
F
Amount
of
allocation
$258
306
454
430
353
Example 2. Assume the same facts as in example 1 except that the employer uses employee hours worked to calculate tip allocations.
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
40
35
45
40
15
25
$1,080
880
1,810
800
450
680
Total ............................................
200
$5,700
Directly
tipped
share
of 8 pct
gross
Directly tipped
employees
A
B
C
D
E
F
.................................
.................................
.................................
.................................
.................................
.................................
×
$7,500
7,500
7,500
7,500
7,500
7,500
Hours
worked
ratio
=
40/200
35/200
45/200
40/200
15/200
25/200
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Employee
share
of 8 pct
gross
$1,500
1,313
1,688
1,500
563
938
(5)
Employee
share
of 8 pct
gross
Directly tipped
employees
A
B
C
D
E
F
...............................
...............................
...............................
...............................
...............................
...............................
Total shortfall
Tips
reported
¥
$1,500
1,313
1,688
1,500
563
938
............
=
$1,080
880
1,810
800
450
680
....
.............
Employee
shortfall
$420
433
............
700
113
258
....
$1,924
Since employee C has no reporting shortfall there is no allocation to C.
(6) $8,000¥6,200 (total tips reported)=$1,800
(amount allocable among shortfall employees).
(7)
Shortfall
employees
A
B
D
E
F
..........................
..........................
..........................
..........................
..........................
Allocable
amount
$1,800
1,800
1,800
1,800
1,800
×
Shortfall
ratio
=
420/1,924
433/1,924
700/1,924
113/1,924
258/1,924
Amount
of
allocation
$393
405
655
106
241
Example 3. X is a large food or beverage establishment that has chosen to make tip allocations using a calendar year period. X had
353
VerDate Jan<31>2003
Tips
reported
The allocation computations would be as
follows:
(1) $100,000 (gross receipts)×0.08=$8,000
(2) Tips reported by indirectly tipped
employees=$500
(3)
$8,000¥$500
(indirect
employees
tips)=$7,500
(4)
Employee
shortfall
$270
320
............
475
450
370
Hours
worked
in payroll
period
Directly tipped employees
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200095T
§ 31.6053–3
26 CFR Ch. I (4–1–03 Edition)
gross receipts for a calendar year of $2,000,000
and tips reported for the calendar year of
$176,000. The amount to be allocated as tips
is equal to the excess of 8 percent of the
gross receipts of the establishment for the
calendar year over the aggregate amount of
tips reported by the employees of the establishment to the employer under section
6053(a) for the calendar year. Because the reported tips for the year ($176,000) are in excess of 8 percent of the gross receipts
($2,000,000× .08=$160,000), no tip allocations
are made to the employees of this establishment for the calendar year.
Example 4. X is a large food or beverage establishment that has chosen to make tip allocations using a calendar year period and
gross receipts attributable to employees. X
had gross receipts for a calendar year of
$1,500,000 and tips reported for the calendar
year of $110,000. Directly tipped employees
reported $94,000 while indirectly tipped employees reported $16,000.
A
B
C
D
E
F
260,000
240,000
380,000
260,000
160,000
200,000
$18,600
14,600
31,200
13,000
6,000
10,600
Total .............................
$1,500,000
$94,000
The allocation computations are as follows:
(1) $1,500,000 (gross receipts) ×0.08=$120,000.
(2) Tips reported by indirectly tipped
employees=$16,000.
(3) $120,000¥16,000 (indirect employees
tips)=$104,000.
(4)
Directly
tipped
share of
8 pct.
gross
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
(5)
Directly tipped
employees
A
B
C
D
E
F
Employee
share
of 8
pct.
gross
...............................
...............................
...............................
...............................
...............................
...............................
Total shortfall
18,027
16,640
26,347
18,027
11,093
13,867
............
Tips
reported
=
18,600
14,600
31,200
13,000
6,000
10,600
....
.............
....
Allocable
amount
B ....................
D ....................
E ....................
10,000
10,000
10,000
×
Shortfall ratio
=
2,040/15,427
5,027/15,427
5,093/15,427
Allocable
amount
=
260,000/1,500,000
240,000/1,500,000
380,000/1,500,000
260,000/1,500,000
160,000/1,500,000
200,000/1,500,000
×
Shortfall ratio
....
......................
$18,027
16,640
26,347
18,027
11,093
13,867
=
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Amount
of
allocation
F ....................
10,000
Total ...
............
............
2,040
............
5,027
5,093
3,267
Example 5. Assume the same facts as in example 4 except that the employer has chosen
the employee hours worked method of computing tip allocations, the calendar year
gross receipts were $1,000,000, and the tips reported for the calendar year were $74,000. Directly tipped employees reported $70,000
while indirectly tipped employees reported
$4,000.
15,427
Amount
of
allocation
$1,322
3,259
3,301
3,267/15,427
Directly tipped employees
A ...............................................................
B ...............................................................
C ...............................................................
D ...............................................................
E ...............................................................
F ...............................................................
G ..............................................................
H ...............................................................
2,118
....
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$10,000
Hours
worked
in the
calendar
year
Tips
reported
2,000
1,750
2,250
2,000
750
1,250
490
510
$11,800
9,800
15,100
9,000
4,500
7,800
3,200
2,800
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VerDate Jan<31>2003
Employee
share of
8 pct.
gross
Employee
shortfall
Since employees A and C do not have a reporting shortfall there are no allocations to
them.
(6)
$120,000¥110,000
(total
tips
reported)=$10,000 (amount allocable among
shortfall employees).
(7)
Shortfall
employees
Gross receipts
ratio
X
$104,000
104,000
104,000
104,000
104,000
104,000
Shortfall
employees
¥
Tips
reported
........................................................
........................................................
........................................................
........................................................
........................................................
........................................................
Directly tipped employees
A
B
C
D
E
F
Gross receipts for
calendar
year
Directly tipped employees
200095T
Internal Revenue Service, Treasury
Hours
worked
in the
calendar
year
Directly tipped employees
§ 31.6053–3
I ................................................................
J ...............................................................
200
1,000
800
5,200
Total ..................................................
12,200
$70,000
The allocation computations would be as
follows:
(1) $1,000,000 (gross receipts) × 0.08 = $80,000.
(2) Tips reported by indirectly tipped employees = $4,000.
(3)
$80,000 ¥ $4,000
(indirect
employee
tips) = $76,000.
(4)
Directly tipped
employees
Directly
tipped
share of
8 pct.
gross
A ...................
B ...................
C ...................
D ...................
E ...................
F ...................
G ...................
H ...................
I ....................
J ....................
$76,000
76,000
76,000
76,000
76,000
76,000
76,000
76,000
76,000
76,000
Total ...
..............
Hours
worked ratio
×
=
2,000/12,200
1,750/12,200
2,250/12,200
2,000/12,200
750/12,200
1,250/12,200
490/12,200
510/12,200
200/12,200
1,000/12,200
....
......................
Employee
share of
8 pct.
gross
$12,459
10,902
14,016
12,459
4,672
7,787
3,052
3,177
1,246
6,230
....
$76,000
(5)
Directly tipped
employees
Employee
share of
8 pct.
gross
A .....................
B .....................
C .....................
D .....................
E .....................
F .....................
G .....................
H .....................
I ......................
J ......................
12,459
10,902
14,016
12,459
4,672
7,787
3,052
3,177
1,246
6,230
Total
shortfall ....
................
¥
Tips
reported
=
11,800
9,800
15,100
9,000
4,500
7,800
3,200
2,800
800
5,200
....
................
Employee
shortfall
$659
1,102
................
3,459
172
................
................
377
446
1,030
....
$7,245
Since employees C, F, and G have no reporting shortfalls, there are no allocations
made to them.
(6)
$80,000 ¥ 74,000
(total
tips
reported) = $6,000.
(7)
Shortfall
employees
Allocable
amount
A ........................
B ........................
$6,000
6,000
×
Shortfall
ratio
=
659/7,245
1,102/
7,245
Shortfall
employees
Tips
reported
Amount
of
allocation
$546
913
Allocable
amount
D ........................
6,000
E ........................
H ........................
I .........................
J ........................
6,000
6,000
6,000
6,000
Total .......
............
×
Shortfall
ratio
=
3,459/
7,245
172/7,245
377/7,245
446/7,245
1,030/
7,245
....
..................
2,865
142
312
369
853
....
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$6,000
(g) Period of allocation. In applying
paragraphs (d), (e), (f), and (h)(3) of this
section an employer may substitute
the calendar year or any period that
results from a reasonable division of a
calendar year for the term ‘‘payroll period’’ each place it appears in such
paragraphs. If an employer makes such
a substitution with respect to a large
food or beverage establishment the
substituted period shall be stated on
Form 8027 for such large food or beverage establishment and shall be effective for such employer’s large food or
beverage establishment for the entire
calendar year.
(h) Lowering the percentage to be
used—(1) In general. On and after July
18, 1984, an employer or a majority of
the employees (as defined in paragraph
(h)(2)(iii) of this section) of an employer may petition the district director for the internal revenue district in
which the employer’s establishment is
located to have the percentage of gross
receipts that is used to determine the
amount to be allocated under section
6053(c)(3)(A) and paragraph (d) of
§ 31.6053–3 reduced from 8 percent to the
percentage that the petitioning employer or employees believe to be the
actual percentage of the amount of the
establishment’s gross receipts that reflects the amount of tips. The district
director may thereafter reduce the percentage of gross receipts used to determine the amount to be so allocated to
the percentage that the district director determines to be the proper estimate of the actual percentage of gross
receipts constituting tips. The district
director, however, may not reduce the
percentage below 2 percent. For the
rules in effect prior to July 18, 1984, see
26 CFR 31.6053–3(h) (Rev. as of April 1,
1984).
(2) Time and manner for petition to
have percentage reduced—(i) In general.
355
VerDate Jan<31>2003
Amount
of
allocation
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§ 31.6053–3
26 CFR Ch. I (4–1–03 Edition)
The petition shall be in writing and
shall include sufficient information to
allow the district director to estimate
with reasonable accuracy the actual
tip rate of the establishment. For example, such information might include
the charged tip rate, the type of establishment, menu prices, the location of
the establishment, the amount of ‘‘selfservice’’ required, the days and hours
open for business, and whether the customer receives the check from or pays
the server for the meal.
(ii) Employer petitions. In the case of
employer-originated petitions, the employer has the burden of supplying sufficient information to allow the district director to estimate with reasonable accuracy the actual tip rate of the
establishment. The employer also shall
attach to the petition copies of Form
8027 (if any) filed for the establishment
for the 3 years preceding calendar
years.
(iii) Employee petitions. (A) In the case
of employee-originated petitions, a majority of the employees of an establishment must consent to the petition. A
majority for purposes of this paragraph
is more than one-half of all the directly
tipped employees (within the meaning
of paragraph (j)(12) of this section) employed by the establishment at the
time the petition is filed. In the case of
a single petition for certain multi-establishment employers (see paragraph
(h)(4) of this section), more than onehalf of the aggregate directly tipped
employees (at the time the petition is
filed) of the establishments covered by
the petition must consent. The petition
filed with the district director must
state the total number of directly
tipped employees employed by the establishment (or establishments) and
the number of the directly tipped employees consenting to the petition.
(B) The petitioning employees have
the burden of supplying sufficient information to allow the district director
to estimate with reasonable accuracy
the actual tip rate of the establishment
to the extent they possess such information. If the employer possesses relevant information, the employer must
provide such information to the district director upon the request of the
petitioning employees or district director. Employees who file a petition
under this paragraph must promptly
notify their employer of the petition.
Promptly upon receipt of such notification, their employer must submit to
the district director copies of the Form
8027 (if any) filed for the establishment
for the 3 immediately preceding calendar years. Any information supplied
by the employer during the petitioning
process constitutes return information
(as defined in section 6103(b)(2)) which
shall not be disclosed by the Internal
Revenue Service (except as provided in
section 6103) to any employees of the
employer or to representatives of such
employees.
(3) Effective date for reduced percentage. The district director shall determine the term for which the reduced
percentage is to be effective. At the
end of such term, the reduced percentage shall cease to apply unless previously extended by the district director for the district in which the large
food or beverage establishment is located. In no event shall the reduced
percentage be applied to payroll periods before the date the petition described in paragraph (h)(2) of this section is filed unless the establishment is
a new business (as described in paragraph (i) of § 31.6053–3). In the case of a
new business or a petition for reduction filed prior to September 30, 1983,
the district director may allow the approved reduced percentage to be applied retroactively to the first day of
the calendar year of the petition. Until
such time as the employer is notified
in writing by the district director of
approval of a reduction, the employer
must continue to use 8 percent of gross
receipts for purposes of complying with
section 6053(c) and this section.
(4) Single petition for certain multi-establishment employers. An employer (including a single employer as defined in
section 52 (a) or (b)) or a majority of
the employees of such employer may
use a single petition for two or more of
the employer’s establishments if such
establishments are essentially the
same type of business, the petitioning
employer or employees have made a
good faith determination that the tip
rates at such establishments are essentially the same, and the establishments
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§ 31.6053–3
are located in the same internal revenue region. Single petitions shall include the names and locations of the
establishments for which a reduction is
requested and the information required
by paragraph (h)(2) of this section for a
typical establishment. A single petition for multi-establishments located
within an internal revenue region shall
be filed with the district director for
the internal revenue district in which
the greatest number of the establishments included in the petition are located. If there is an equal number of establishments located in two or more
internal revenue districts the employer
or employees petitioning may choose
the district to which the petition is
sent.
(i) Application of reporting requirements to new businesses—(1) In general. A
food or beverage operation is a new
business if the employer of the operation did not operate any food or beverage operations during the preceding
calendar year. An employer will not be
considered to have operated a food or
beverage operation during a calendar
year if each food or beverage operation
of the employer was operated for less
than one calendar month during such
year. In a calendar year in which a food
or beverage operation is a new business, the determination of whether the
operation is a large food or beverage
establishment shall be made as provided in paragraph (i)(2) of this section
and the employer shall comply with
section 6053(c) and this section as provided in paragraph (i)(3) of this section.
(2) Determination of status as a large
food or beverage establishment. A food or
beverage operation shall be considered
a large food or beverage establishment
during the calendar year in which it is
a new business if the average number
of hours worked per business day by all
employees of the employer at the new
business during each of any two consecutive calendar months of the calendar year, computed in the manner
provided in the second sentence of
paragraph (j)(9) of this section, is
greater than 80 hours.
(3) New business compliance under section 6053(c). A new business that is determined to be a large food or beverage
establishment under paragraph (i)(2) of
this section shall comply with section
6053(c) and this section beginning with
the first payroll period that begins
after the first period of two consecutive calendar months described in paragraph (i)(2) of this section.
(j) Definitions. For purposes of section
6053(c) and this section:
(1) Gross receipts. Gross receipts shall
include all receipts (other than nonallocable receipts), from the provision
of food or beverages by a large food or
beverage establishment from cash
sales,
charge
receipts
(including
charged tips only to the extent the
cash sales amount has been reduced
due to the employer paying cash to
tipped employees for charged tips due
them), charges to a hotel room (excluding tips charged to a hotel room only
to the extent that the employer’s accounting procedures allow such tips to
be segregated out and excluding
charges that are otherwise included in
charge receipts), and the retail value of
complimentary food or beverages (as
defined in paragraph (j)(16) of this section) served to customers. Gross receipts shall not include state or local
taxes. In the case of a trade or business
that does not charge separately for the
provision of food or beverages (i.e., a
trade or business that provides other
goods or services along with food or
beverages for a combined price, such as
a ‘‘package deal’’ for food and lodging),
the employer shall make a good faith
estimate of the gross receipts attributable to the provision of the food or
beverages that reflects the cost to the
employer of providing the food or beverages plus a reasonable profit factor.
(2) Gross receipts attributable to a directly tipped employee. Gross receipts attributable to a directly tipped employee are those gross receipts (as defined in paragraph (j)(1) of this section)
from the provision of food or beverages
to customers with respect to which the
employee provided services. For example, if a directly tipped employee’s
name is on every check given to customers for whom the employee has provided services, the gross receipts attributable to such employee could be
determined
by
aggregating
the
amounts of all checks bearing that employee’s name (other than amounts
from nonallocable receipts).
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§ 31.6053–3
26 CFR Ch. I (4–1–03 Edition)
(3) Nonallocable receipts. Nonallocable
receipts are receipts which are attributable to carryout sales or to services
with respect to which a service charge
of 10 percent or more is added. Carryout sales are sales of food or beverages
for consumption off the premises of the
establishment. Room service is not a
carryout sale. If an establishment’s accounting system does not segregate receipts from carryout sales from the establishment’s other receipts, receipts
from carryout sales may be determined
as an estimated percentage of total receipts. The applicable percentage shall
be determined in good faith by the employer on the basis of generally accepted accounting practices, including but
not limited to, surveys of carryout
sales as a percentage of gross sales. An
employer may rely upon estimates as
to carryout sales which are established
in good faith between the employer and
state or local governments for purposes
of state or local taxation.
(4) Charge receipts. Charge receipts
shall include credit card charges and
charges under any other credit arrangement (e.g., house charges, city
ledger, and charge arrangements to
country club members). Charges to a
hotel room may be excluded from
charge receipts if such exclusion is
consistent with the employer’s normal
accounting practices and the employer
applies such exclusion consistently for
a given large food or beverage establishment. Otherwise, charges to a hotel
room shall be included in charge receipts.
(5) Charged tips. A tip included on a
charge receipt is a charged tip.
(6) Food or beverage operation. A ‘‘food
or beverage operation’’ is any business
activity which provides food or beverages for consumption on the premises
(other than ‘‘fast food’’ operations). If
an employer conducts activities that
provide food or beverages at more than
one location, the activity at each separate location shall be considered to be
a separate food or beverage operation,
Each activity conducted within a single building shall be considered to be
conducted at a separate location if the
customers of the activity, while being
provided with food or beverages, occupy an area separate from that occupied by customers of other activities
and the gross receipts of the activity
are recorded separately from the gross
receipts of other activities. For example, a gourmet restaurant, a coffee
shop, and a cocktail lounge in a hotel
would each be treated as a separate
food or beverage operation if gross receipts from each activity are recorded
separately. In addition, an employer
may treat different activities conducted in the identical place at different times as separate food or beverage operations if the gross receipts of
the activities at each time are recorded
separately. For example, a restaurant
may record the gross receipts from its
cafeteria style lunch operation separately from the gross receipts of its full
service food or beverage operations.
(7) Large food or beverage establishment. A food or beverage operation is a
‘‘large food or beverage establishment’’
if:
(i) The employer at the food or beverage operation normally employed
more than 10 employees on a typical
business day during the preceding calendar year, and
(ii) The tipping of food or beverage
employees of the food or beverage operation is customary. Generally, tipping
would not be considered customary for
a cafeteria style operation (as defined
in paragraph (j)(18) of this section) or
for a food or beverage operation where
at least 95 percent of its total sales are
nonallocable
receipts,
within
the
meaning of paragraph (j)(3) of this section, by reason of the addition of a
service charge of 10 percent or more.
Total sales shall include only gross receipts (as defined in paragraph (j)(1) of
this section) and nonallocable receipts
(other than carryout receipts) from the
provision of food or beverages. In the
case of an operation such as a restaurant that is a cafeteria style operation at lunch and that has full service
with tipping customary at dinner, the
entire operation is generally a large
food or beverage establishment if the
employer meets the 10-employee test.
However, if the gross receipts of the
cafeteria style operation at lunch are
recorded separately from the dinner operation gross receipts the employer
may treat the dinner operation as a
large food or beverage establishment
and the lunch operation as a separate
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Internal Revenue Service, Treasury
§ 31.6053–3
food or beverage operation that is not
a large food or beverage establishment
due to the fact that tipping is not considered customary for cafeteria style
operations.
(8) Employee. The term ‘‘employee’’
has the same meaning as in section
3401(c) and § 31.3401(c)–1.
(9) More than 10 employees on a typical
business day. An employer shall be considered to have normally employed
more than 10 employees on a typical
business day during a calendar year if
one-half of the sum of the average
number of employee hours worked per
business day during the calendar
month in which the aggregate gross receipts from food or beverage operations
were the greatest plus the average
number of employee hours worked per
business day during the calendar
month in which the aggregate gross receipts from food or beverage operations
were the least, is greater than 80 hours.
The average number of employee hours
worked per business day during a
month shall be computed by dividing
the total number of hours worked during the month by all employees of the
employer who are employed in a food
or beverage operation by the average of
the number of days during the month
that each food or beverage operation at
which such employees worked was open
for business. If an employer operates
both a food or beverage operation and a
nonfood or beverage operation, and one
or more of his or her employees work
for both operations, the employer may
make a good faith estimate of the number of hours such employees worked for
each operation in a given month. Similarly, in cases where one or more of an
employer’s employees work for more
than one of such employer’s food or
beverage operations, a good faith estimate may be made of the number of
hours such employees worked for each
operation in a given month. For purposes of this subparagraph, employees
who are employed in a food or beverage
operation include all employees of the
operation, not just food or beverage
employees. The employees of an employer shall include all employees at
all food or beverage operations who,
along with the employees of such employer, would be treated as employees
of a single employer under section 52
(a) or (b) (as in effect on September 3,
1982) and the regulations thereunder.
For example, if an employer at a food
or beverage operation is a member of a
controlled group of corporations, then
all employees of all corporations which
are members of such controlled group
of corporations shall be treated as employed by each such employer for purposes of this paragraph. However, an
individual who owns 50 percent or more
in value of the stock of a corporation
operating an establishment shall not
be treated as an employee of any establishment owned by the corporation.
(10) Food or beverage employee. A
‘‘food or beverage employee’’ is an employee who provides services in connection with the provision of food or beverages. Such employees include, but
are not limited to, waiters, waitresses,
busboys, bartenders, persons in charge
of seating (such as a hostess, maitre d’
or dining room captain), wine stewards,
cooks, and kitchen help. Examples of
employees who are not food or beverage employees include, but are not
limited to, coat check persons, bellhops, and doormen.
(11) Tipped employee. A ‘‘tipped employee’’ of a food or beverage operation
is an employee who is a food or beverage employee that customarily receives tip income from employment at
that operation. An employee who occasionally receives small amounts of tip
income is not a tipped employee. Generally, an employee who receives less
than $20 per month in tip income would
not be considered as customarily receiving tip income.
(12) Directly tipped employee. A ‘‘directly tipped employee’’ is any tipped
employee who receives tips directly
from customers, including an employee
who after receiving tips directly from
customers turns all the tips over to a
tip pool. Examples of directly tipped
employees are waiters, waitresses, and
bartenders.
(13) Indirectly tipped employee. An
‘‘indirectly tipped employee’’ is a
tipped employee who does not normally
receive tips directly from customers.
Examples of indirectly tipped employees are busboys, service bartenders and
cooks. An employee, such as a maitre
d’, who receives tips both directly from
customers and indirectly through tip
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§ 31.6053–3
26 CFR Ch. I (4–1–03 Edition)
splitting or tip pooling shall be treated
as a directly tipped employee.
(14) Calendar year. The term ‘‘calendar year’’ shall mean either the period from January 1 through December
31 or the period that begins with the
first day of the first payroll period ending on or after January 1 and ends with
the last day of the last payroll period
ending in December of the same year.
With respect to any establishment, the
employer shall choose one of these two
descriptions and apply it consistently.
(15) Tips reported for a specified period.
Tips reported to an employer for a
specified period under section 6053(a)
are those tips actually received by an
employee during such period without
regard to the time when the tips are reported to the employer. Thus, if an employee reports to the employer in calendar year 1984 tips the employee actually received in calendar year 1983, the
amount of tips actually received in calendar year 1983 must be included by the
employer when making such information returns, statements and allocations required under section 6053(c) and
this section for calendar year 1983.
(16) Complimentary food or beverages.
Food or beverages served to customers
without charge are complimentary if:
(i) Tipping for the provision of such
food or beverages is customary at the
establishment, and
(ii) Such food or beverages are provided in connection with an activity
that is engaged in for profit and whose
receipts would not be included in gross
receipts as defined in paragraph (j)(1)
of this section but for this subparagraph and are not nonallocable receipts
which are attributable to services with
respect to which a service charge of 10
percent or more is added.
For example, the retail values of complimentary hors d’oeuvres served at a
bar or a complimentary dessert served
to a regular patron of a restaurant
would not be included in gross receipts
because the receipts of the bar or restaurant would be included in gross receipts as defined in paragraph (j)(1) of
this section. The retail value of a complimentary fruit basket placed in a
hotel room generally would not be included in gross receipts because tipping
for the provision of such items is not
customary. The retail value of com-
plimentary drinks served to customers
in a gambling casino would be included
in gross receipts because tipping for
the provision of such items is customary, the gambling casino is an activity engaged in for profit, and the
gambling receipts of the casino would
not be included in gross receipts as defined in paragraph (j)(1) of this section
except for this subparagraph.
(17) Fast food operation. An operation
is a ‘‘fast food’’ operation only if its
customers order, pick up, and pay for
food or beverages at a counter, window,
etc., and then carry the food or beverages to another location (either on or
off the premises of such activities).
(18) Cafeteria style operation. The term
‘‘cafeteria style’’ operation means a
food or beverage operation which is primarily self-service and in which the
total cost of food or beverages selected
by a customer is paid prior to the customer’s being seated or is stated on a
check provided to the customer prior
to the customer’s being seated and is
paid by the customer to a cashier. Generally, operations are primarily selfservice if food or beverages are ordered
or selected by a customer at one location and carried by the customer from
such location to the customer’s seat.
For example, cafeteria lines, buffets,
and smorgasbords are primarily selfservice. If, after a customer is seated, a
food or beverage employee delivers
items such as an item that required additional preparation after being selected by the customer, condiments,
beverages, or refills at no additional
cost to the customer, a food or beverage operation’s status as primarily
self-service would not be affected.
(19) Less than the equivalent of 25 fulltime employees. For purposes of paragraph (f)(1)(iv) of this section, an employer shall be considered to employ
less than the equivalent of 25 full-time
employees at an establishment during
a payroll period (as defined in section
3401(b) and the regulations thereunder)
if the average number of employee
hours worked per business day during a
payroll period is less than 200 hours.
The average number of employee hours
worked per business day during a payroll period shall be computed by dividing the total number of hours worked
during the period by all employees of
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Internal Revenue Service, Treasury
§ 31.6053–4
the employer who are employed in a
food or beverage operation by the average of the number of days during the
period that each food or beverage operation at which such employees worked
was open for business. If an employer
operates both a food or beverage operation and a nonfood or beverage operation, and one or more of his employees work for both operations, the employer may make a good faith estimate
of the number of hours such employees
worked for each operation in a given
payroll period. Similarly, in cases
where one or more of an employer’s
employees work for more than one of
such employer’s food or beverage operations, a good faith estimate may be
made of the number of hours such employees worked for each operation in a
given payroll period. If there is more
than one payroll period for the establishment, the payroll period which is
used for the greatest number of employees shall be the payroll period for
purposes of this paragraph (j)(19). For
purposes of this paragraph (j)(19), employees who are employed in a food or
beverage operation include all employees of the operation, not just food or
beverage employees. The employees of
an employer shall include all employees at all food or beverage operations
who, along with the employees of such
employer, would be treated as employees of a single employer under section
52 (a) or (b) (as in effect on September
3, 1982) and the regulations thereunder.
For example, if an employer at a food
or beverage operation is a member of a
controlled group of corporations, then
all employees of all corporations which
are members of such controlled group
of corporations shall be treated as employed by each such employer for purposes of this paragraph.
(k) Permission to submit information on
magnetic tape. For rules relating to permission to submit the information required by section 6053(c) and this section on magnetic tape of other media,
see § 31.6011 (a)–8.
(l) Recordkeeping requirements. An employer shall keep records sufficient to
substantiate any information returns,
employer statements to employees, applications, or tip allocations made pursuant to section 6053(c) and this section. The records required by this para-
graph shall be retained for 3 years after
the due date of the return or statement
to which they pertain.
(m) Food or beverage operations outside
the United States. Employers at food or
beverage operations outside the United
States (as defined in section 7701(a)(9))
are not subject to the reporting requirements under section 6053(c) and
this section.
(n) Effective date. This section is effective for calendar year 1983 and
thereafter.
(96 Stat. 603, 26 U.S.C. 6053(c); 68A Stat. 917,
26 U.S.C. 7805)
[T.D. 7906, 48 FR 36809, Aug. 15, 1983; 48 FR
40518, Sept. 8, 1983, as amended by T.D. 8039,
50 FR 29965, July 23, 1985; T.D. 8141, 52 FR
21511, June 8, 1987; T.D. 8895, 65 FR 50408,
Aug. 18, 2000]
§ 31.6053–4 Substantiation
requirements for tipped employees.
(a) Substantiation of tip income—(1) In
general. An employee shall maintain
sufficient evidence to establish the
amount of tip income received by the
employee during a taxable year. A
daily record maintained by the employee (as described in paragraph (a)(2)
of this section) shall constitute sufficient evidence. If the employee does
not maintain a daily record, other evidence of the amount of tip income received during the year, such as documentary evidence (as described in paragraph (a)(3) of this section), shall constitute sufficient evidence, but only if
such other evidence is as credible and
as reliable as a daily record. The Commissioner may by revenue ruling, procedure or other guidance of general applicability provide for other methods of
demonstrating evidence of tip income.
However, notwithstanding any other
provision of this paragraph (a) (1), a
daily record or other evidence that is
as credible and as reliable as a daily
record may not be sufficient evidence if
there are facts or circumstances which
indicate that the employee received a
larger amount of tip income. Moreover,
oral statements of the employee, without corroboration, cannot constitute
sufficient evidence.
(2) Daily record. The daily record
shall state the employee’s name and
address, the employer’s name, and the
establishment’s name. The daily record
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§ 31.6061–1
26 CFR Ch. I (4–1–03 Edition)
shall show for each work day the
amount of cash tips and charge tips received directly from customers or from
other employees, and the amount of
tips, if any, paid out to other employees through tip sharing, tip pooling or
other arrangements and the names of
such employees. The record shall also
show the date that each entry is made.
Form 4070A, Employee’s Daily Record of
Tips, may be used to maintain such
daily record. In addition, an electronic
system maintained by the employer
that collects substantially similar information as Form 4070A may be used
to maintain such daily record, provided
the employee receives and maintains a
paper copy of the daily record. The
daily record of tips received by an employee shall be prepared and maintained in such manner that each entry
is made on or near the date the tip income is received. A daily record made
on or near the date the tip income is
received has a high degree of credibility not present with respect to a
record prepared subsequent thereto
when generally there is a lack of accurate recall. An entry is made ‘‘near the
date the tip income is received’’ if the
required information with respect to
tips received and paid out by the employee for the day is recorded at a time
when the employee has full present
knowledge of those receipts and payments.
(3) Documentary evidence. Documentary evidence consists of copies of any
documents that contain (i) amounts
that were added to a check by customers as a tip and paid over to the
employee or (ii) amounts that were
paid by a customer for food or beverages with respect to which tips generally would be received by the employee. Examples of documentary evidence are copies of restaurant bills,
credit card charges, or charges under
any other arrangement (see § 31.6053–
3(j)(4)) containing amounts added by
the customer as a tip.
(b) Retention of records. Records maintained under this section shall be kept
at all times available for inspection by
authorized internal revenue officers or
employees, and shall be retained so
long as the contents thereof may become material in the administration of
any internal revenue law.
(c) Effective date. The substantiation
requirements of this § 31.6053–4 shall be
effective for tips received on or after
October 1, 1985. For the rules in effect
prior to October 1, 1985, see section 6001
and the regulations thereunder. Substantiation considered sufficient as
provided in this § 31.6053–4 will also be
considered sufficient for tips received
before October 1, 1985.
[T.D. 8141, 52 FR 21513, June 8, 1987, as
amended by T.D. 8910, 65 FR 77820, Dec. 13,
2000]
§ 31.6061–1 Signing of returns.
Each return required under the regulations in this subpart shall, if signature is called for by the form or instructions relating to the return, be
signed by (a) the individual, if the person required to make the return is an
individual; (b) the president, vice president, or other principal officer, if the
person required to make the return is a
corporation; (c) a responsible and duly
authorized member or officer having
knowledge of its affairs, if the person
required to make the return is a partnership or other unincorporated organization; or (d) the fiduciary, if the person required to make the return is a
trust or estate. The return may be
signed for the taxpayer by an agent
who is duly authorized in accordance
with § 31.6011(a)–7 to make such return.
§ 31.6065(a)–1 Verification of returns
or other documents.
If a return, statement, or other document made under the regulations in
this part is required by the regulations
contained in this part, or the form and
instructions issued with respect to
such return, statement, or other document, to contain or be verified by a
written declaration that it is made
under the penalties of perjury, such return, statement, or other document
shall be so verified by the person signing it.
§ 31.6071(a)–1 Time for filing returns
and other documents.
(a) Federal Insurance Contributions Act
and income tax withheld from wages and
from nonpayroll payments—(1) Quarterly
or annual returns. Except as provided in
subparagraph (4) of this paragraph each
return required to be made under
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Internal Revenue Service, Treasury
§ 31.6071(a)–1
§ 31.6011(a)–1, in respect of the taxes imposed by the Federal Insurance Contributions Act, or required to be made
under § 31.6011(a)–4, in respect of income tax withheld, shall be filed on or
before the last day of the first calendar
month following the period for which it
is made. However, a return may be
filed on or before the 10th day of the
second calendar month following such
period if timely deposits under section
6302(c) of the Code and the regulations
thereunder have been made in full payment of such taxes due for the period.
For the purpose of the preceding sentence, a deposit which is not required
by such regulations in respect of the
return period may be made on or before
the last day of the first calendar month
following the close of such period, and
the timeliness of any deposit will be
determined by the earliest date
stamped on the applicable deposit form
by an authorized financial institution.
(2) Monthly tax returns. Each return
in respect of the taxes imposed by the
Federal Insurance Contributions Act or
of income tax withheld which is required to be made under paragraph (a)
of § 31.6011(a)–5 shall be filed on or before the fifteenth day of the first calendar month following the period for
which it is made.
(3) Information returns—(i) General
rule. Each information return in respect of wages as defined in the Federal
Insurance Contributions Act or of income tax withheld from wages which is
required to be made under § 31.6051–2
shall be filed on or before the last day
of February (March 31 if filed electronically) of the year following the calendar year for which it is made, except
that, if a tax return under § 31.6011(a)–
5(a) is filed as a final return for a period ending prior to December 31, the
information statement shall be filed on
or before the last day of the second calendar month following the period for
which the tax return is filed.
(ii) Expedited filing—(A) General rule.
If an employer who is required to make
a return pursuant to § 31.6011(a)–1 or
§ 31.6011(a)–4 is required to make a final
return on Form 941, or a variation
thereof, under § 31.6011(a)–6(a)(1) (relating to the final return for Federal Insurance Contributions Act taxes and
income tax withholding from wages),
the return which is required to be made
under § 31.6051–2 must be filed on or before the last day of the second calendar
month following the period for which
the final return is filed. The requirements set forth in this paragraph
(a)(3)(ii) do not apply to employers
with respect to employees whose wages
are for domestic service in the private
home of the employer. See § 31.6011(a)–
1(a)(3).
(B) Effective date. This paragraph
(a)(3)(ii) is effective January 1, 1997.
(4) Employee returns under Federal Insurance Contributions Act. A return of
employee tax under section 3101 required
under
paragraph
(d)
of
§ 31.6011(a)–1 to be made by an individual for a calendar year on Form 1040
shall be filed on or before the due date
of such individual’s return of income
(see § 1.6012–1 of this chapter (Income
Tax Regulations)) for the calendar
year, or, if the individual makes his return of income on a fiscal year basis,
on or before the due date of his return
of income for the fiscal year beginning
in the calendar year for which a return
of employee tax is required. A return of
employee tax under section 3101 required
under
paragraph
(d)
of
§ 31.601(a)–1 to be made for a calendar
year—
(i) On Form 1040SS or Form 1040PR,
or
(ii) On Form 1040 by an individual
who is not required to make a return of
income for the calendar year or for a
fiscal year beginning in such calendar
year,
shall be filed on or before the 15th day
of the fourth month following the close
of the calendar year.
(b) Railroad Retirement Tax Act. Each
return of the taxes imposed by the
Railroad Retirement Tax Act required
to be made under § 31.6011(a)–2 shall be
filed on or before the last day of the
second calendar month following the
period for which it is made.
(c) Federal Unemployment Tax Act.
Each return of the tax imposed by the
Federal Unemployment Tax Act required to be made under § 31.6011(a)–3
shall be filed on or before the last day
of the first calendar month following
the period for which it is made. However, a return for a period which ends
after December 31, 1970, may be filed on
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§ 31.6071(a)–1A
26 CFR Ch. I (4–1–03 Edition)
or before the 10th day of the second
calendar month following such period
if timely deposits under section 6302(c)
of the Code and the regulations thereunder have been made in full payment
of such tax due for the period. For the
purpose of the preceding sentence, a deposit which is not required by such regulations in respect of the return period
may be made on or before the last day
of the first calendar month following
the close of such period, and the timeliness of any deposit will be determined
by the date the deposit is received (or
is deemed received under section
7502(e)) by an authorized financial institution whichever is earlier.
(d) Last day for filing. For provisions
relating to the time for filing a return
when the prescribed due date falls on
Saturday, Sunday, or a legal holiday,
see the provisions of § 301.7503–1 of this
chapter (Regulations on Procedure and
Administration).
(e) Late filing. For additions to the
tax in case of failure to file a return
within the prescribed time, see the provisions of § 301.6651–1 of this chapter
(Regulations on Procedure and Administration).
(f) Cross reference. For extensions of
time for filing returns and other documents, see § 31.6081(a)–1.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6941, 32 FR 18041, Dec. 16,
1967; T.D. 7001, 34 FR 1005, Jan. 23, 1969; T.D.
7078, 35 FR 18525, Dec. 5, 1970; T.D. 7351, 40 FR
17146, Apr. 17, 1975; T.D. 7953, 49 FR 19644,
May 9, 1984; T.D. 8504, 58 FR 68035, Dec. 23,
1993; T.D. 8895, 65 FR 50408, Aug. 18, 2000; T.D.
8952, 66 FR 33832, June 26, 2001]
§ 31.6071(a)–1A Time for filing returns
with respect to the railroad unemployment repayment tax.
(a) In general. Each return of the
taxes imposed under section 3321 (a)
and (b) required to be made under
§ 31.6011(a)–3A shall be filed on or before
the last day of the second calendar
month following the period for which it
is made.
(b) Last day for filing. For provisions
relating to the time for filing a return
when the prescribed due date falls on
Saturday, Sunday, or a legal holiday,
see the provisions of § 301.7503–1 of this
chapter (Regulations on Procedure and
Administration).
(c) Late filing. For additions to the
tax in the case of failure to file a return within the prescribed time, see
the provisions of § 301.6651–1 of this
chapter (Regulations on Procedure and
Administration).
[T.D. 8105, 51 FR 40169, Nov. 5, 1986. Redesignated and amended at T.D. 8227, 53 FR 34736,
Sept. 8, 1988]
§ 31.6081(a)–1 Extensions of time for
filing returns and other documents.
(a) Federal Insurance Contributions
Act; income tax withheld from wages; and
Railroad Retirement Tax Act—(1) In general. Except as otherwise provided in
subparagraphs (2) and (3) of this paragraph, no extension of time for filing
any return or other document required
in respect of the Federal Insurance
Contributions Act, income tax withheld from wages, or the Railroad
Retirment Tax Act will be granted.
(2) Information returns of employers required to file monthly returns of tax
under the Federal Insurance Contributions Act. The district director or director of a service center may, upon application of the employer, grant an extension of time in which to file any information return required under paragraph (b)(1) of § 31.6011(a)–5. Such extension of time shall not extend beyond
the last day of the calendar month in
which occurs the due date prescribed in
paragraph (a)(3)(i) of § 31.6071(a)–1 for
filing the information return. Each application for an extension of time for
filing an information return shall be
made in writing, properly signed by the
employer or his duly authorized agent.
Except as provided in paragraph (b) of
§ 301.6091–1 (relating to hand-carried
documents), each application shall be
addressed to the internal revenue officer with whom the employer will file
the return. Each application shall contain a full recital of the reasons for requesting the extension, to aid the officer in determining the period of the extension, if any, which will be granted.
Such a request in the form of a letter
to such internal revenue officer will
suffice as an application. The application shall be filed on or before the due
date prescribed in paragraph (a)(3)(i) of
§ 31–6071(a)–1 for filing the information
return.
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Internal Revenue Service, Treasury
§ 31.6091–1
(3) Information returns of employers on
Forms W–2 and W–3—(i) In general. The
Director, Martinsburg Computing Center, may grant an extension of time in
which to file the Social Security Administration copy of Forms W–2 and
the accompanying transmittal form
which constitutes an information return under paragraph § 31.6051–2(a). The
request must contain a concise statement of the reasons for requesting the
extension. The request must be mailed
or delivered on or before the date on
which the employer is required to file
the Form W–2 with the Social Security
Administration.
(ii) Automatic Extension of Time. The
Commissioner may, in appropriate
cases, publish procedures for automatic
extensions of time to file Forms W–2
where the employer is required to file
the Form W–2 on an expedited basis.
(b) Federal Unemployment Tax Act.
The district director or director of a
service center may, upon application of
the employer, grant a reasonable extension of time (not to exceed 90 days)
in which to file any return required in
respect of the Federal Unemployment
Tax Act. Any application for an extension of time for filing the return shall
be in writing, properly signed by the
employer or his duly authorized agent.
Except as provided in paragraph (b) of
§ 301.6091–1 (relating to hand-carried
documents), each application shall be
addressed to the internal revenue officer with whom the employer will file
the return. Each application shall contain a full recital of the reasons for requesting the extension, to aid such officer in determining the period of the extension, if any, which will be granted.
Such a request in the form of a letter
to such internal revenue officer will
suffice as an application. The application shall be filed on or before the due
date prescribed in paragraph (c) of
§ 31.6071(a)–1 for filing the return, or on
or before the date prescribed for filing
the return in any prior extension
granted. An extension of time for filing
a return does not operate to extend the
time for payment of the tax or any
part thereof.
(c) Duly authorized agent. In any case
in which an employer is unable, by reason of illness, absence, or other good
cause, to sign a request for an exten-
sion, any person standing in close personal or business relationship to the
employer may sign the request on his
behalf, and shall be considered as a
duly authorized agent for this purpose,
provided the requests sets forth the
reasons for a signature other than the
employer’s and the relationship existing between the employer and the signer.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6950, 33 FR 5358, Apr. 4, 1968;
T.D. 7351, 40 FR 17146, Apr. 17, 1975]
§ 31.6091–1
Place for filing returns.
(a) Persons other than corporations.
The return of a person other than a
corporation shall be filed with the district director for the internal revenue
district in which is located the principal place of business or legal residence of such person. If such person has
no principal place of business or legal
residence in any internal revenue district, the return shall be filed with the
District Director at Baltimore, Maryland, except as provided in paragraph
(c) of this section.
(b) Corporations. The return of a corporation shall be filed with the district
director for the district in which is located the principal place of business or
principal office or agency of the corporation, except as provided in paragraph (c) of this section.
(c) Returns of taxpayers outside the
United States. The return of a person
(other than a corporation) outside the
United States having no legal residence
or principal place of business in any internal revenue district, or the return of
a corporation having no principal place
of business or principal office or agency in any internal revenue district,
shall be filed with the Director of
International Operations, Internal Revenue Service, Washington, D.C. 20225,
unless the principal place of business
or legal residence of such person, or the
principal place of business or principal
office or agency of such corporation, is
located in the Virgin Islands or Puerto
Rico, in which case the return shall be
filed with the Director of International
Operations, U.S. Internal Revenue
Service, Hato Rey, Puerto Rico 00917.
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§ 31.6101–1
26 CFR Ch. I (4–1–03 Edition)
(d) Returns filed with internal revenue
service centers or Social Security Administration office. Notwithstanding paragraphs (a), (b), and (c) of this section,
whenever instructions applicable to
such returns provide that the returns
shall be filed with an internal revenue
service center or an office of the Social
Security Administration, such returns
shall be so filed in accordance with
such instructions.
(e) Hand-carried returns. Except as
provided in subparagraph (3) of this
paragraph, and notwithstanding paragraphs (1) and (2) of section 6091(b) and
paragraph (d) of this section—
(1) Persons other than corporations. Returns of persons other than corporations which are filed by hand carrying
shall be filed with the district director
(or with any person assigned the administrative supervision of an area,
zone or local office constituting a permanent post of duty within the internal revenue district of such director) as
provided in paragraph (a) of this section.
(2) Corporations. Returns of corporations which are filed by hand carrying
shall be filed with the district director
(or with any person assigned the
adminstrative supervision of an area,
zone or local office constituting a permanent post of duty within the internal revenue district of such director) as
provided in paragraph (b) of this section.
(3) Exceptions. This paragraph shall
not apply to returns of—
(i) Persons who have no legal residence, no principal place of business,
nor principal office or agency in any
internal revenue district,
(ii) Citizens of the United States
whose principal place of abode for the
period with respect to which the return
is filed is outside the United States,
(iii) Persons who claim the benefits
of section 911 (relating to earned income from sources without the United
States), section 922 (relating to special
deduction for Western Hemisphere
trade corporations), section 931 (relating to income from sources within possessions of the United States), section
933 (relating to income from sources
within Puerto Rico), or section 941 (relating to the special deduction for
China Trade Act corporations), and
(iv) Nonresident alien persons and
foreign corporations.
(f) Permission to file in district other
than required district. The Commissioner may permit the filing of any return required to be made under the regulations in this subpart in any internal
revenue district, notwithstanding the
provisions of paragraphs (1), (2), and (4)
of section 6091(b) and paragraphs (a),
(b), (c), (d), and (e) of this section.
(g) Returns of officers and employees of
the Internal Revenue Service. The Commissioner may require any officer or
employee of the Internal Revenue
Service to file any return required of
him under the regulations in this subpart in any internal revenue district
selected by the Commissioner, notwithstanding the provisions of paragraphs
(1), (2), and (4) of section 6091(b) and
paragraphs (a), (b), (c), (d), and (e) of
this section.
(68A Stat. 747, 26 U.S.C. 6051; 68A Stat. 917, 26
U.S.C. 7805)
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6915, 32 FR 5261, Mar. 29,
1967; T.D. 7495, 42 FR 33727, July 1, 1977; T.D.
7580, 43 FR 60160, Dec. 26, 1978]
§ 31.6101–1
Period covered by returns.
The period covered by any return required under the regulations in this
subpart shall be as provided in those
provisions of the regulations under
which the return is required to be
made. See § 31.6011(a)–1, relating to returns of taxes under the Federal Insurance Contributions Act; § 31.6011(a)–2,
relating to returns of taxes under the
Railroad
Retirement
Tax
Act;
§ 31.6011(a)–3, relating to returns of tax
under the Federal Unemployment Tax
Act; § 31.6011(a)–4, relating to returns of
income tax withheld under section 3402;
and § 31.6011 (a)–5, relating to monthly
returns of taxes under the Federal Insurance Contributions Act and of income tax withheld under section 3402.
§ 31.6109–1 Supplying
numbers.
of
identifying
(a) In general. The returns, statements, and other documents required
to be filed under this subchapter shall
reflect such identifying numbers as are
required by each return, statement, or
document and its related instructions.
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Internal Revenue Service, Treasury
§ 31.6205–1
See § 301.6109–1 of this chapter (Regulations on Procedure and Administration).
(b) Effective date. The provisions of
this section are effective for information which must be furnished after
April 15, 1974. See 26 CFR § 31.6109–1 (revised as of April 1, 1973) for provisions
with respect to information which
must be furnished before April 16, 1974.
[39 FR 9946, Mar. 15, 1974]
§ 31.6151–1
Time for paying tax.
(a) In general. The tax required to be
reported on each tax return required
under this subpart is due and payable
to the internal revenue officer with
whom the return is filed at the time
prescribed in § 31.6071(a)–1 for filing
such return. See the applicable sections in Part 301 of this chapter (Regulations on Procedure and Administration), for provisions relating to interest on underpayments, additions to
tax, and penalties.
(b) Cross references. For provisions relating to the use of authorized financial institutions in depositing the
taxes, see §§ 31.6302(c)–1, 31.6302(c)–2,
and 31.6302(c)–3. For rules relating to
the payment of taxes in nonconvertible
foreign currency, see § 301.6316–7 of this
chapter (Regulations on Procedure and
Administration).
[T.D. 6872, 31 FR 149, Jan. 6, 1966; T.D. 6915, 32
FR 5261, Mar. 29, 1967; T.D. 7037, 35 FR 6709,
Apr. 28, 1970; T.D. 7953, 49 FR 19644, May 9,
1984; T.D. 8952, 66 FR 33832, June 26, 2001]
§ 31.6157–1
Cross reference.
For provisions relating to the time
and manner of depositing the tax imposed by section 3301, see the provisions of § 31.6302(c)–3. For provisions relating to the time and manner of depositing the railroad unemployment
repayment tax imposed by section
3321(a), see § 31.6302(c)–2A.
[T.D. 7037, 35 FR 6709, Apr. 28, 1970, as amended at T.D. 8227, 53 FR 34736, Sept. 8, 1988]
§ 31.6161(a)(1)–1
paying tax.
Extensions of time for
No extension of time will be granted
for payment of any of the taxes to
which the regulations in this part have
application.
§ 31.6205–1
ments.
Adjustments of underpay-
(a) In general. (1) An employer who
makes, or has made, an undercollection
or underpayment of—
(i) Employee tax under section 3101,
employer tax under section 3111, or the
employee or employer tax under corresponding provisions of prior law,
(ii) Employee tax under section 3201,
employer tax under section 3221, or the
employee or employer tax under corresponding provisions of prior law, or
(iii) Income tax required under section 3402 to be withheld,
with respect to any payment of wages
or compensation, shall correct such
error as provided in this section. Such
correction shall constitute an adjustment without interest to the extent
provided in paragraph (b) or (c) of this
section.
(2) Every correction under this section of an underpayment of tax with
respect to a payment of wages or compensation shall be made on the return
form which is prescribed for use, at the
time the correction is made, in reporting tax which corresponds to the tax
underpaid.
(3) Every return or supplemental return on which an underpayment is corrected pursuant to this section must
have securely attached as a part thereof a statement explaining the correction, designating the return period in
which the error was ascertained and
the return period to which the error relates, and setting forth such other information as may be required by the
regulations in this subpart and by the
instructions relating to the return.
(4) For purposes of this section, an
error is ascertained when the employer
has sufficient knowledge of the error to
be able to correct it.
(5) If a correction is made under this
section with respect to the erroneous
reporting on a return, or omission from
a return, under the Federal Insurance
Contributions Act, as in effect prior to
or on and after January 1, 1955, of an
amount of wages required to be shown
on the return as a separate item in respect of a particular employee, the
statement referred to in paragraph
(a)(3) of this section shall include the
following information:
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§ 31.6205–1
26 CFR Ch. I (4–1–03 Edition)
(i) The name and account number of
each employee whose wages were erroneously reported or omitted from such
return,
(ii) The period for which such wages
were required to be reported on such
return,
(iii) The amount, if any, of wages actually reported on such return for each
such employee, and
(iv) The amount of wages which
should have been reported on such return for each such employee.
No particular form is prescribed for
furnishing the information required by
this subparagraph, but if printed forms
are desired, the district director will
supply Form 941c or Form 941c PR,
whichever is appropriate, upon request.
(6) No underpayment shall be reported pursuant to this section after
the earlier of the following—
(i) Receipt from the Director of notice and demand for payment thereof
based upon an assessment; or
(ii) Receipt from the Director of a
Notice of Determination Concerning
Worker Classification Under Section
7436 (Notice of Determination). (Prior
to receipt of a Notice of Determination, the taxpayer may, in lieu of making a payment, make a cash bond deposit which would have the effect of
stopping the accrual of any interest,
but would not deprive the taxpayer of
its right to receive a Notice of Determination and to petition the Tax Court
under section 7436).
(7) For provisions relating to correction of erroneous statements furnished
to employees in respect of wages subject to withholding of income tax
under section 3402, and of wages under
the Federal Insurance Contributions
Act, see paragraph (c) of § 31.6051–1.
(b) Federal Insurance Contributions Act
and Railroad Retirement Tax Act—(1)
Undercollection ascertained before return
is filed. If no employee tax or less than
the correct amount of employee tax is
deducted from any payment to an employee of wages, as defined in the Federal Insurance Contributions Act, or
compensation as defined in the Railroad Retirement Tax Act, and the error
is ascertained before the filing of the
return on which the employee tax with
respect to such wages or compensation
is required to be reported, the em-
ployer shall nevertheless report on
such return and pay to the district director the correct amount of such employee tax. However, the reporting and
payment by the employer of the correct amount of such tax in accordance
with this subparagraph do not constitute an adjustment.
(2) Underpayment ascertained after return is filed. (i) If a return is filed, and
if no employee tax, no employer tax, or
less than the correct amount of either
such tax with respect to any payment
to an employee of wages as defined in
the Federal Insurance Contributions
Act or corresponding provisions of
prior law, or compensation as defined
in the Railroad Retirement Tax Act or
corresponding provisions of prior law,
is reported on such return and paid to
the district director, the employer
shall adjust the underpayment (a) by
reporting the additional amount due by
reason of the underpayment as an adjustment on a return filed on or before
the last day on which the return is required to be filed for the return period
in which the error is ascertained, or (b)
by reporting such additional amount
on a supplemental return for the return period in which such payment of
wages or compensation is made. The
reporting of such underpayment on a
supplemental return constitutes an adjustment within the meaning of this
section only when the supplemental return is filed on or before the last day
on which the return is required to be
filed for the return period in which the
error is ascertained. The amount of
each underpayment adjusted in accordance with this subdivision shall be paid
to the district director, without interest, at the time fixed for reporting the
adjustment. If an adjustment is reported pursuant to this subdivision,
but the amount thereof is not paid
when due, interest thereafter accrues
(see section 6601).
(ii) If a return is filed, and if no employee tax, no employer tax, or less
than the correct amount of either such
tax with respect to a payment to an
employee of wages or compensation is
reported on such return and paid to the
district director, and such underpayment is not reported as an adjustment within the time prescribed by
subdivision (i) of this subparagraph,
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Internal Revenue Service, Treasury
§ 31.6205–1
the amount of such underpayment
shall be (a) reported on the employer’s
next return, or (b) reported immediately on a supplemental return. For
interest accruing on amounts so reported, see section 6601 and corresponding provisions of prior law.
(iii) If a return relating to tax under
the Federal Insurance Contributions
Act is filed although a return relating
to tax under the Railroad Retirement
Tax Act was required to be filed, or
vice versa, and if the amount reported
on the return filed and paid to the district director was less than the correct
amount which should have been reported on the return required to be
filed, the employer shall adjust the underpayment by reporting the additional amount due on an original return for the correct tax for the return
period in which the payment of wages
or compensation was made, accompanied by an explanation of the adjustment being reported. The reporting of
such additional amount on an original
return constitutes an adjustment within the meaning of this section only
when the original return is filed on or
before the last day on which the return
for the correct tax is required to be
filed for the return period in which the
error is ascertained. The amount of
each underpayment adjusted in accordance with this subdivision shall be paid
to the district director, without interest, at the time fixed for reporting the
adjustment. If an adjustment is reported pursuant to this subdivision,
but the amount thereof is not paid
when due, interest thereafter accrues
(see section 6601).
(3) Deductions from employees. If an
employer collects no employee tax or
less than the correct amount of employee tax from an employee with respect to a payment of wages as defined
in the Federal Insurance Contributions
Act or corresponding provisions of
prior law, or compensation as defined
in the Railroad Retirement Tax Act or
corresponding provisions of prior law,
the employer shall collect the amount
of the undercollection by deducting
such amount from remuneration of the
employee, if any, under his control
after he ascertains the error. Such deductions may be made even though the
remuneration, for any reason, does not
constitute wages or compensation. The
amount of an undercollection of employee tax from an employee shall be
reported and paid, as provided in paragraph (b)(1) or (2) of this section,
whether or not the undercollection is
corrected by a deduction made as prescribed in the foregoing provisions of
this subparagraph. If such a deduction
is not made, the obligation of the employee to the employer with respect to
the undercollection is a matter for settlement between the employee and the
employer. If any employer makes an
erroneous collection of employee tax
from two or more of his employees, a
separate settlement must be made with
respect to each employee. Thus, an
overcollection of employee tax from
one employee may not be used to offset
an undercollection of such tax from another employee.
(c) Income tax required to be withheld
from
wages—(1)
Undercollection
ascertained before return is filed. If no income tax, or less than the correct
amount of income tax, required under
section 3402 to be withheld from wages
is deducted from wages paid to an employee in any return period, and if the
error is ascertained before the return is
filed for the period in which such wages
are paid, the employer shall nevertheless report on such return the correct
amount of the tax required to be withheld. However, the reporting and payment by an employer of tax in accordance with this subparagraph do not
constitute an adjustment.
(2) Underpayment ascertained after return is filed. (i) If a return is filed for a
return period, and if no income tax, or
less than the correct amount of income
tax, required under section 3402 to be
withheld from wages paid to an employee in such period, is reported on a
return and paid to the district director,
the employer shall (a) report the additional amount due by reason of the underpayment on a return for any return
period in the calendar year in which
the wages were paid, or (b) report such
additional amount on a supplemental
return for the return period in which
such wages were paid. Such reporting
constitutes an adjustment within the
meaning of this section only if the return or supplemental return on which
the underpayment is reported is filed
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§ 31.6205–2
26 CFR Ch. I (4–1–03 Edition)
on or before the last day on which the
return is required to be filed for the return period in which the error was
ascertained.
(ii) If a return is filed for a return period, and if no income tax, or less than
the correct amount of income tax, required under section 3402 to be withheld from wages paid to an employee in
such period is reported on such return
and paid to the district director, and
such underpayment is not reported as
an adjustment within the time prescribed by paragraph (c)(2)(i) of this
section, the amount of such underpayment shall be (a) reported on the
employer’s next return, if such next return is for any return period in the calendar year in which the wages were
paid, or (b) reported immediately on a
supplemental return.
(3) Payment of amounts reported as
undercollections or underpayments. (i)
For provisions relating to the employer’s liability for an underpayment of
tax unless he can show that the income
tax against which the tax under section 3402 may be credited has been
paid, see § 31.3402(d)–1.
(ii) Except as provided in § 31.3402 (d)–
1, any amount reported as an adjustment within the meaning of this paragraph shall be paid to the district director, without interest, at the time
fixed for reporting the adjustment.
(iii)
For
interest
accruing
on
amounts which are not paid when due,
see section 6601.
(4) Deductions from employee. If no income tax, or less than the correct
amount of income tax, required under
section 3402 to be withheld from wages
is deducted from wages paid to an employee in a calendar year, the employer
shall collect the amount of the undercollection on or before the last day of
such year by deducting such amount
from remuneration of the employee, if
any, under his control. Such deductions may be made even though the remuneration, for any reason, does not
constitute wages. Any undercollection
in a calendar year not corrected by a
deduction made pursuant to the foregoing provisions of this subparagraph
is a matter for settlement between the
employee and the employer within
such calendar year. For provisions re-
lating to the employer’s liability for
the tax, whether or not he collects it
from the employee, see § 31.3403–1.
[T.D. 6516, 25 FR 13032, Dec. 20, 1960; 25 FR
14021, Dec. 31, 1960, as amended by T.D. 7783,
46 FR 37890, July 23, 1981; T.D. 8959, 66 FR
39640, Aug. 1, 2001]
§ 31.6205–2 Adjustments of underpayments of hospital insurance taxes
that accrue after March 31, 1986,
and before January 1, 1987, with respect to wages of State and local
government employees.
(a) Adjustments without interest. A
State or local government employer
who makes, or has made, an undercollection or underpayment of the hospital insurance taxes imposed by sections 3101(b) and 3111(b) that—
(1) Are required to be paid by reason
of section 3121(u)(2), and
(2) Are required to be reported on returns due July 31, 1986, October 31, 1986,
or February 2, 1987.
may make an adjustment without interest with respect to such taxes provided that all such taxes for the time
period specified in paragraph (a)(2) (except for amounts that are subsequently
paid pursuant to an interest-free adjustment under § 31.6205–1) are paid on
or before February 2, 1987.
(b) Example. The application of the
provisions of this section are illustrated by the following example:
Example. A State or local government employer should have withheld and paid $100
dollars in hospital insurance taxes for the
quarter beginning April 1, 1986, and ending
June 30, 1986. The due date for the return and
payment for that period is July 31, 1986. If
the employer made the payment by February
2, 1987, then, under section 6601, interest is
not assessable with respect to the underpayment of the hospital insurance taxes. If
the employer did not make the payment by
February 2, 1987, the interest is assessable
for the period from July 31, 1986, until the
time of payment.
[T.D. 8156, 52 FR 33582, Sept. 4, 1987]
§ 31.6302–0
Table of Contents.
This section lists the captions that
appear in §§ 31.6302–1 through 31.6302–3.
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Internal Revenue Service, Treasury
§ 31.6302–1
Section 31.6302–1 Federal tax deposit rules for
withheld income taxes and taxes under the
Federal Insurance Contributions Act (FICA)
attributable to payments made after December
31, 1992.
(a) Introduction.
(b) Determination of status.
(1) In general.
(2) Monthly depositor.
(i) In General.
(ii) Special rule.
(3) Semi-weekly depositor.
(4) Lookback period.
(5) Adjustments.
(c) Deposit rules.
(1) Monthly rule.
(2) Semi-Weekly rule.
(i) In general.
(ii) Semi-weekly period spanning two return periods.
(iii) Special rule for non-banking days.
(3) Exception—One Day rule.
(4) Deposits required only on banking days.
(d) Examples.
(e) Employment taxes defined.
(f) Safe harbor/De Minimis rules.
(1) Single deposit safe harbor.
(2) Shortfall defined.
(3) Shortfall make-up date.
(i) Monthly rule.
(ii) Semi-Weekly and One-Day rule.
(4) De Minimis rule.
(5) Examples.
(g) Agricultural employers—Special rules.
(1) In general.
(2) Monthly depositor.
(3) Semi-weekly depositor.
(4) Lookback period.
(5) Example.
(h) Time and manner of deposit.
(1) General rules.
(2) Payment of balance due.
(3) Federal Tax Deposit (FTD) coupon.
(4) Procurement of FTD coupons.
(5) Time deemed deposited.
(6) Time deemed paid.
(i) [Reserved]
(j) Special rules.
(1) District Director notice exception.
(2) Wages paid in nonconvertible foreign
currency.
(k) Cross references.
(1) Failure to deposit penalty.
(2) Saturday, Sunday, or legal holiday.
(l) [Reserved]
(m) Effective date.
Section 31.6302–2 Federal tax deposit rules for
amounts withheld under the Railroad Retirement Tax Act (R.R.T.A.) attributable to payments made after December 31, 1992.
(a) General rule.
(b) Separate application of deposit rules.
(c) Modification of Monthly rule determination.
(1) General rule.
(2) Exception.
(d) Wire-transfer exception.
Section 31.6302–3 Federal tax deposit rules for
amounts withheld under the backup withholding requirements of Section 3406 for payments made after December 31, 1992.
(a) General Rule.
(b) Treatment of backup
amounts separately.
(c) Example.
withholding
[T.D. 8436, 57 FR 44102, Sept. 24, 1992]
§ 31.6302–1 Federal tax deposit rules
for withheld income taxes and taxes
under the Federal Insurance Contributions Act (FICA) attributable
to payments made after December
31, 1992.
(a) Introduction. With respect to employment taxes attributable to payments made after December 31, 1992, an
employer is either a monthly depositor
or a semi-weekly depositor based on an
annual determination. An employer
must generally deposit employment
taxes under one of two rules: the
Monthly rule in paragraph (c)(1) of this
section, or the Semi-Weekly rule in
paragraph (c)(2) of this section. Various
exceptions and safe harbors are provided. Paragraph (f) of this section provides certain safe harbors for employers who inadvertently fail to deposit
the full amount of taxes. Paragraph
(c)(3) of this section provides an overriding exception to the Monthly and
Semi-Weekly rules where an employer
has accumulated $100,000 or more of
employment taxes. Paragraph (e) of
this section provides the definition of
employment taxes.
(b) Determination of status—(1) In general. The determination of whether an
employer is a monthly or semi-weekly
depositor for a calendar year is based
on an annual determination and generally depends upon the aggregate
amount of employment taxes reported
by the employer for the lookback period as defined in paragraph (b)(4) of
this section.
(2) Monthly depositor—(i) In general.
An employer is a monthly depositor for
the entire calendar year if the aggregate amount of employment taxes reported for the lookback period is
$50,000 or less.
(ii) Special rule. An employer ceases
to be a monthly depositor on the first
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§ 31.6302–1
26 CFR Ch. I (4–1–03 Edition)
day after the employer is subject to the
One-Day ($100,000) rule in paragraph
(c)(3) of this section. At that time, the
employer immediately becomes a semiweekly depositor for the remainder of
the calendar year and for the following
calendar year.
(3) Semi-weekly depositor. An employer
is a semi-weekly depositor for the entire calendar year if the aggregate
amount of employment taxes reported
for the lookback period exceeds $50,000.
(4) Lookback period. The lookback period for each calendar year is the
twelve month period ended the preceding June 30. For example, the
lookback period for calendar year 1993
is the period July 1, 1991 to June 30,
1992. In determining status as either a
monthly or semi-weekly depositor, an
employer should determine the aggregate amount of employment tax liabilities reported on its quarterly returns
(Form 941) for the four quarters constituting this period. New employers shall
be treated as having employment tax
liabilities of zero for any calendar
quarter during which the employer did
not exist.
(5) Adjustments. The tax liability
shown on an original return for the return period shall be the amount taken
into account in determining whether
more than $50,000 has been reported
during the lookback period. In determining the aggregate employment
taxes for each quarter in a lookback
period, an employer does not take into
account any adjustments for the quarter made on a supplemental return
filed after the due date of the return.
However, adjustments made on a Form
941c, Statement to Correct Information, attached to a Form 941 filed for a
subsequent quarter are taken into account in determining the employment
tax liability for the subsequent quarter.
(c) Deposit rules—(1) Monthly rule. An
employer that is a monthly depositor
must deposit employment taxes accumulated with respect to payments
made during a calendar month in an
authorized financial institution on or
before the 15th day of the following
month. If the 15th day of the following
month is not a banking day, taxes will
be treated as timely deposited if deposited on the first banking day thereafter
in accordance with paragraph (c)(4) of
this section.
(2) Semi-Weekly rule—(i) In general. An
employer that is a semi-weekly depositor for a calendar year must deposit its
employment taxes in an authorized financial institution on or before the
dates set forth below:
Payment dates/semi-weekly
periods
Wednesday, Thursday and/or
Friday.
Saturday, Sunday, Monday
and/or Tuesday.
Deposit date
On or before the following
Wednesday.
On or before the following
Friday.
(ii) Semi-weekly period spanning two
return periods. A special rule is provided
in the case of a return period (quarterly or annual) that ends during a
semi-weekly period. In this case, an
employer must complete the Federal
Tax Deposit (FTD) coupon in a manner
which designates the proper return period for which the deposit relates (the
return period in which the payment is
made). In addition, if the return period
ends during a semi-weekly period in
which an employer has two or more
payment dates, two deposit obligations
may exist. For example, if one quarterly return period ends on Thursday
and a new quarterly return period begins on Friday, employment taxes from
payments on Wednesday and Thursday
are subject to one deposit obligation,
and taxes from payments on Friday are
subject to a separate obligation. Two
separate Federal Tax Deposit coupons
are required.
(iii) Special rule for non-banking days.
Semi-weekly depositors shall have at
least three banking days following the
close of the semi-weekly period by
which to deposit employment taxes accumulated during the semi-weekly period. Thus, if any of the three weekdays following the close of a semiweekly period is a holiday on which
banks are closed, the employer shall
have an additional banking day by
which to make the required deposit.
For example, if the Monday following
the close of a Wednesday to Friday
semi-weekly period is a holiday on
which banks are closed, the required
deposit for the semi-weekly period may
be made by the following Thursday
rather than the following Wednesday.
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Internal Revenue Service, Treasury
§ 31.6302–1
(3) Exception—One-Day rule. Notwithstanding paragraphs (c)(1) and (c)(2) of
this section, if on any day within a deposit period (monthly or semi-weekly)
an employer has accumulated $100,000
or more of employment taxes, those
taxes must be deposited in an authorized financial institution by the close
of the next banking day. For purposes
of determining whether the $100,000
threshold is met—
(i) A monthly depositor takes into
account only those employment taxes
accumulated in the calendar month in
which the day occurs; and
(ii) A semi-weekly depositor takes
into account only those employment
taxes accumulated in the WednesdayFriday or Saturday-Tuesday semiweekly period in which the day occurs.
(4) Deposits required only on banking
days. If taxes are required to be deposited under this section on any day that
is not a banking day, the taxes will be
treated as timely deposited if deposited
on the first banking day thereafter.
(d) Examples. The provisions of paragraphs (a), (b) and (c) of this section
are illustrated by the following examples:
Example 1. Monthly depositor. (i) Determination of status. For the calendar year 1993, Employer A determines its depositor status
using the lookback period July 1, 1991 to
June 30, 1992. For the four calendar quarters
within this period, A reported aggregate employment tax liabilities of $42,000 on its
quarterly Forms 941. Because the aggregate
amount did not exceed $50,000, A is a monthly depositor for the entire calendar year 1993.
(ii) Monthly rule. During January 1993, A (a
monthly depositor) accumulates $3,500 in employment taxes. A has a $3,500 deposit obligation that must be satisfied by the 15th day of
the following month. Since February 15, 1993,
President’s Day, is a holiday which is not a
banking day, A’s deposit obligation will be
satisfied if the deposit is made by the next
banking day after February 15.
Example 2. Semi-weekly depositor. (i) Determination of status. For the four calendar
quarters spanning July 1991 to June 1992,
Employer B reported $88,000 in aggregate employment tax liabilities on its Forms 941. Because that amount exceeds $50,000, B is a
semi-weekly depositor for the entire calendar year 1993.
(ii) Semi-weekly rule. On Friday, January 1,
1993, B ( semi-weekly depositor) has a pay
day on which it accumulates $4,000 in employment taxes. B has a $4,000 deposit obliga-
tion that must be satisfied on or before the
following Wednesday, January 6, 1993.
(iii) Deposit made within three banking days
after payroll. The example is the same as Example 2 (ii), except that B deposits its accumulated employment taxes within three
banking days after payroll. B deposits its
$4,000 in employment taxes on Wednesday,
January 6, three banking days after its Friday payroll. Because B deposited its employment taxes on or before the following
Wednesday, B has satisfied its semi-weekly
deposit obligation. An employer who deposits within three banking days after payroll
will always meet the Semi-Weekly rule.
Example 3. One-Day rule. On Monday, January 4, 1993, Employer C accumulates $110,000
in employment taxes with respect to wages
paid on that date. C has a deposit obligation
of $110,000 that must be satisfied by the next
banking day. If C was not subject to the
semi-weekly rule on January 4, 1993, C becomes subject to that rule as of January 5,
1993. See paragraph (b)(2)(ii) of this section.
Example 4. One-Day Rule in combination with
subsequent deposit obligation. Employer D is
subject to the semi-weekly rule for calendar
year 1993. On Monday, January 4, 1993, D accumulates $110,000 in employment taxes. D
has a $110,000 deposit obligation that must be
satisfied by the next banking day. On Tuesday, January 5, D accumulates an additional
$30,000 in employment taxes. Although D has
a previous $110,000 deposit obligation incurred earlier in the semi-weekly period, D
has an additional and separate deposit obligation of $30,000 on Tuesday that must be
satisfied by the following Friday.
Example 5. Special non-banking day rule for
semi-weekly depositors. Employer E, a semiweekly depositor, accumulates $8,000 in employment taxes on Friday, February 12, 1993,
a payment date. Under the general rule, E
would be required to deposit the employment
taxes on or before the following Wednesday,
February 17. However, because Monday, February 15, is President’s Day (a holiday on
which banks are closed), E will have an additional day by which to satisfy its $8,000 deposit obligation. E’s deposit obligation is due
on or before Thursday, February 18, 1993.
(e) Employment taxes defined. (1) For
purposes of this section, the term
‘‘employment taxes’’ means—
(i) The employee portion of the tax
withheld under section 3102;
(ii) The employer tax under section
3111;
(iii) The income tax withheld under
sections 3402 and 3405, except income
tax withheld with respect to payments
made after December 31, 1993, on the
following—
(A) Certain gambling winnings under
section 3402(q);
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§ 31.6302–1
26 CFR Ch. I (4–1–03 Edition)
(B) Retirement pay for service in the
Armed Forces of the United States
under section 3402;
(C) Certain annuities described in
section 3402(o)(1)(B); and
(D) Pensions, annuities, IRAs, and
certain other deferred income under
section 3405; and
(iv) The income tax withheld under
section 3406, relating to backup withholding with respect to reportable payments made before January 1, 1994.
(2) The term ‘‘employment taxes’’
does not include taxes with respect to
wages for domestic service in a private
home of the employer, unless the employer is otherwise required to file a
Form 941 under § 31.6011(a)(4) or (5). In
the case of employers paying advance
earned income credit amounts, the
amount of taxes required to be deposited shall be reduced by advance
amounts paid to employees. Also, see
§ 31.6302–3 concerning a taxpayer’s option with respect to payments made before January 1, 1994, to treat backup
withholding amounts under section
3406 separately.
(f) Safe harbor/De minimis rules—(1)
Single deposit safe harbor. An employer
will be considered to have satisfied its
deposit obligation imposed by this section if—
(i) The amount of any shortfall does
not exceed the greater of $100 or 2 percent of the amount of employment
taxes required to be deposited; and
(ii) The employer deposits the shortfall on or before the shortfall make-up
date.
(2) Shortfall defined. For purposes of
this paragraph (f), the term ‘‘shortfall’’
means the excess of the amount of employment taxes required to be deposited for the period over the amount deposited for the period. For this purpose, a period is either a monthly,
semi-weekly or daily period.
(3) Shortfall make-up date—(i) Monthly
rule. A shortfall with respect to a deposit required under the Monthly rule
must be deposited or remitted no later
than the due date for the quarterly return, in accordance with the applicable
form and instructions.
(ii) Semi-Weekly rule and One-Day
rule. A shortfall with respect to a deposit required under the Semi-Weekly
rule or the One-Day rule must be de-
posited on or before the first Wednesday or Friday (whichever is earlier),
falling on or after the 15th day of the
month following the month in which
the deposit was required to be made or,
if earlier, the return due date for the
return period.
(4) De Minimis rule. For quarterly and
annual return periods beginning on or
after January 1, 2001, if the total
amount of accumulated employment
taxes for the return period is less than
$2,500 and the amount is fully deposited
or remitted with a timely filed return
for the return period, the amount deposited or remitted will be deemed to
have been timely deposited.
(5) Examples. The provisions of this
paragraph (f) may be illustrated by the
following examples:
Example 1. Safe-harbor rule satisfied. On
Monday, January 4, 1993, J (a semi-weekly
depositor), pays wages and accumulates employment taxes. As required under this section, J makes a deposit on or before the following Friday, January 8, 1993, in the
amount of $4,000. Subsequently, J determines
that it was actually required to deposit
$4,090 by Friday. J has a shortfall of $90. The
$90 shortfall does not exceed the greater of
$100 or 2% of the amount required to be deposited (2% of $4,090=$81.80). Therefore, J satisfies the safe harbor of paragraph (f)(1) of
this section as long as the $90 shortfall is deposited by the first deposit date (Wednesday
or Friday) on or after the 15th day of the
next month (in this case Wednesday, February 17, 1993).
Example 2. Safe-harbor rule not satisfied. The
facts are the same as in Example 1 except
that on Friday, January 8, 1993, J makes a
deposit of $25,000, and later determines that
it was actually required to deposit $26,000.
Since the $1,000 shortfall ($26,000 less $25,000)
exceeds $520 (the greater of $100 or 2% of the
amount required to be deposited (2% of
$26,000=$520)), the safe harbor of paragraph
(f)(1) of this section is not satisfied, and absent reasonable cause, J will be subject to a
failure-to-deposit penalty under section 6656.
(g)
Agricultural
employers—special
rules—(1) In general. An agricultural
employer reports wages paid to farm
workers annually on Form 943 (Employer’s Annual Tax Return for Agricultural Employees) and reports wages
paid to nonfarm workers quarterly on
Form 941 (Employer’s Quarterly Federal Tax Return). Accordingly, an agricultural employer must treat employment taxes reportable on Form 943
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Internal Revenue Service, Treasury
§ 31.6302–1
(‘‘Form 943 taxes’’) separately from employment taxes reportable on Form 941
(‘‘Form 941 taxes’’). Form 943 taxes and
Form 941 taxes are not combined for
purposes of determining whether a deposit of either is due, whether the OneDay rule of paragraph (c)(3) of this section applies, or whether any safe harbor is applicable. In addition, separate
Federal tax deposit coupons must be
used to deposit Form 943 taxes and
Form 941 taxes. (See paragraph (b) of
this section for rules for determining
an agricultural employer’s deposit status for Form 941 taxes.) The determination of whether an agricultural employer is a monthly or semi-weekly depositor of Form 943 taxes is made according to the rules of this paragraph
(g).
(2) Monthly depositor. An agricultural
employer is a monthly depositor of
Form 943 taxes for a calendar year if
the amount of Form 943 taxes accumulated in the lookback period (as defined
in paragraph (g)(4) of this section) is
$50,000 or less. An agricultural employer ceases to be a monthly depositor
of Form 943 taxes on the first day after
the employer is subject to the One-Day
rule in paragraph (c)(3) of this section.
At that time, the agricultural employer immediately becomes a semiweekly depositor of Form 943 taxes for
the remainder of the calendar year and
the succeeding calendar year.
(3) Semi-weekly depositor. An agricultural employer is a semi-weekly depositor of Form 943 taxes for a calendar
year if the amount of Form 943 taxes
accumulated in the lookback period (as
defined in paragraph (g)(4) of this section) exceeds $50,000.
(4) Lookback period. For purposes of
this paragraph (g), the lookback period
for Form 943 taxes is the second calendar year preceding the current calendar year. For example, the lookback
period for calendar year 1993 is calendar year 1991.
(5) The following example illustrates
the provisions of this section.
Example. A, an agricultural employer, employs both farm workers and nonfarm workers (employees in its administrative offices).
A’s depositor status for calendar year 1993 for
Form 941 taxes will be based upon its employment tax liabilities reported on Forms
941 for the third and fourth quarters of 1991
and the first and second quarters of 1992 (the
period July 1 to June 30). A’s depositor status for Form 943 taxes will be based upon its
employment tax liability reported on its annual Form 943 for calendar year 1991.
(h) Time and manner of deposit—deposits required to be made by electronic funds
transfer—(1) In general. Section 6302(h)
requires the Secretary to prescribe
such regulations as may be necessary
for the development and implementation of an electronic funds transfer system to be used for the collection of the
depository taxes as described in paragraph (h)(3) of this section. Section
6302(h)(2) provides a phase-in schedule
that sets forth escalating minimum
percentages of those depository taxes
to be deposited by electronic funds
transfer. This paragraph (h) prescribes
the rules necessary for implementing
an electronic funds transfer system for
collection of depository taxes and for
effecting an orderly and expeditious
phase-in of that system.
(2) Applicability of requirement—(i) Deposits for return periods beginning before
January 1, 2000. (A) Taxpayers whose
aggregate deposits of the taxes imposed
by Chapters 21 (Federal Insurance Contributions Act), 22 (Railroad Retirement Tax Act), and 24 (Collection of Income Tax at Source on Wages) of the
Internal Revenue Code during a 12month determination period exceed the
applicable threshold amount are required to deposit all depository taxes
described in paragraph (h)(3) of this
section by electronic funds transfer (as
defined in paragraph (h)(4) of this section) unless exempted under paragraph
(h)(5) of this section. If the applicable
effective date is January 1, 1995, or
January 1, 1996, the requirement to deposit by electronic funds transfer applies to all deposits required to be
made on or after the applicable effective date. If the applicable effective
date is July 1, 1997, the requirement to
deposit by electronic funds transfer applies to all deposits required to be
made on or after July 1, 1997 with respect to deposit obligations incurred
for return periods beginning on or after
January 1, 1997. If the applicable effective date is January 1, 1998, or thereafter, the requirement to deposit by
electronic funds transfer applies to all
deposits required to be made with respect to deposit obligations incurred
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§ 31.6302–1
26 CFR Ch. I (4–1–03 Edition)
for return periods beginning on or after
the applicable effective date. In general, each applicable effective date has
one 12-month determination period.
However, for the applicable effective
date January 1, 1996, there are two determination periods. If the applicable
threshold amount is exceeded in either
Threshold amount
$78
$47
$47
$50
$50
$50
of those determination periods, the
taxpayer becomes subject to the requirement to deposit by electronic
funds transfer, effective January 1,
1996. The threshold amounts, determination periods and applicable effective dates for purposes of this paragraph (h)(2)(i)(A) are as follows:
Determination period
million .......................................................
million .......................................................
million .......................................................
thousand ...................................................
thousand ...................................................
thousand ...................................................
1–1–93
1–1–93
1–1–94
1–1–95
1–1–96
1–1–97
to
to
to
to
to
to
12–31–93
12–31–93
12–31–94
12–31–95
12–31–96
12–31–97
(B) Unless exempted under paragraph
(h)(5) of this section, a taxpayer that
does not deposit any of the taxes imposed by chapters 21, 22, and 24 during
the applicable determination periods
set forth in paragraph (h)(2)(i)(A) of
this section, but that does make deposits of other depository taxes (as described in paragraph (h)(3) of this section), is nevertheless subject to the requirement to deposit by electronic
funds transfer if the taxpayer’s aggregate deposits of all depository taxes ex-
.......................................................
.......................................................
.......................................................
.......................................................
.......................................................
.......................................................
Jan. 1, 1995.
Jan. 1, 1996.
Jan. 1, 1996.
July 1, 1997.
Jan. 1, 1998.
Jan. 1, 1999.
ceed the threshold amount set forth in
this paragraph (h)(2)(i)(B) during an applicable 12-month determination period. This requirement to deposit by
electronic funds transfer applies to all
depository taxes due with respect to
deposit obligations incurred for return
periods beginning on or after the applicable effective date. The threshold
amount, determination periods, and applicable effective dates for purposes of
this paragraph (h)(2)(i)(B) are as follows:
Threshold amount
Determination period
$50 thousand ...................................................
$50 thousand ...................................................
$50 thousand ...................................................
1–1–95 to 12–31–95 .......................................................
1–1–96 to 12–31–96 .......................................................
1–1–97 to 12–31–97 .......................................................
(C) This paragraph (h)(2)(i) applies
only to deposits required to be made
for return periods beginning before
January 1, 2000. Thus, a taxpayer, including a taxpayer that is required
under this paragraph (h)(2)(i) to make
deposits by electronic funds transfer
beginning in 1999 or an earlier year, is
not required to use electronic funds
transfer to make deposits for return
periods beginning after December 31,
1999, unless deposits by electronic
funds transfer are required under paragraph (h)(2)(ii) of this section.
(ii) Deposits for return periods beginning after December 31, 1999. Unless exempted under paragraph (h)(5) of this
section, a taxpayer that deposits more
than $200,000 of taxes described in paragraph (h)(3) of this section during a cal-
Applicable effective
date
Applicable effective
date
Jan. 1, 1998.
Jan. 1, 1998.
Jan. 1, 1999.
endar year beginning after December
31, 1997, must use electronic funds
transfer (as defined in paragraph (h)(4)
of this section) to make all deposits of
those taxes that are required to be
made for return periods beginning after
December 31 of the following year and
must continue to deposit by electronic
funds transfer in all succeeding years.
Thus, a taxpayer that exceeds the
$200,000 deposit threshold during calendar year 1998 is required to make deposits for return periods beginning in
or after calendar year 2000 by electronic funds transfer.
(iii) Voluntary deposits. A taxpayer
that is not required by this section to
use electronic funds transfer to make a
deposit of taxes described in paragraph
(h)(3) of this section may voluntarily
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Internal Revenue Service, Treasury
§ 31.6302–1
make the deposit by electronic funds
transfer, but remains subject to the
rules of paragraph (i) of this section,
pertaining to deposits by Federal tax
deposit (FTD) coupon, in making deposits other than by electronic funds
transfer.
(3) Taxes required to be deposited by
electronic funds transfer. The requirement to deposit by electronic funds
transfer under paragraph (h)(2) of this
section applies to all the taxes required
to be deposited under §§ 1.6302–1, 1.6302–
2, and 1.6302–3 of this chapter; §§ 31.6302–
1, 31.6302–2, 31.6302–3, 31.6302–4, and
31.6302(c)–3; and § 40.6302(c)–1 of this
chapter.
(4) Definitions—(i) Electronic funds
transfer. An electronic funds transfer is
any transfer of depository taxes made
in accordance with Revenue Procedure
97–33, (1997–30 I.R.B.), (see § 601.601(d)(2)
of this chapter), or in accordance with
procedures subsequently prescribed by
the Commissioner.
(ii) Taxpayer. For purposes of this
section, a taxpayer is any person required to deposit federal taxes, including not only individuals, but also any
trust, estate, partnership, association,
company or corporation.
(5) Exemptions. If any categories of
taxpayers are to be exempted from the
requirement to deposit by electronic
funds transfer, the Commissioner will
identify those taxpayers by guidance
published in the Internal Revenue Bulletin. (See § 601.601(d)(2)(ii)(b) of this
chapter.)
(6) Separation of deposits. A deposit for
one return period must be made separately from a deposit for another return period.
(7) Payment of balance due. If the aggregate amount of taxes reportable on
the applicable tax return for the return
period exceeds the total amount deposited by the taxpayer with regard to the
return period, then the balance due
must be remitted in accordance with
the applicable form and instructions.
(8) Time deemed deposited. A deposit of
taxes by electronic funds transfer will
be deemed made when the amount is
withdrawn from the taxpayer’s account, provided the U.S. Government is
the payee and the amount is not returned or reversed.
(9) Time deemed paid. In general, an
amount deposited under this paragraph
(h) will be considered to be a payment
of tax on the last day prescribed for filing the applicable return for the return
period (determined without regard to
any extension of time for filing the return) or, if later, at the time deemed
deposited under paragraph (h)(8) of this
section. In the case of the taxes imposed by chapters 21 and 24 of the Internal Revenue Code, solely for purposes of section 6511 and the regulations thereunder (relating to the period
of limitation on credit or refund), if an
amount is deposited prior to April 15th
of the calendar year immediately succeeding the calendar year that includes
the period for which the amount was
deposited, the amount will be considered paid on April 15th.
(i) Time and manner of deposit—(1)
General rules. A deposit required to be
made by this § 31.6302–1 must be made
separately from a deposit required by
any other section. See § 31.6302–3 for an
exception in the case of backup withholding amounts. Further, a deposit for
a deposit period in one return period
must be made separately from a deposit for a deposit period in another return period.
(2) Payment of balance due. If the aggregate amount of taxes reportable on
the return for the return period exceeds the total amount deposited by
the employer with regard to the return
period pursuant to this section, the
balance due must be remitted in accordance with the applicable form and
instructions.
(3) Federal Tax Deposit (FTD) coupon.
Each deposit required to be made under
this section must be accompanied by
an FTD coupon (Form 8109). The FTD
coupon shall be prepared in accordance
with the instructions applicable thereto. The deposit, together with the FTD
coupon, shall be forwarded to a financial institution authorized as a depository for Federal taxes in accordance
with 31 CFR part 203.
(4) Procurement of FTD coupons. A
new employer should receive its initial
supply of FTD coupon books after receiving its employer identification
number. In the event that a deposit is
required to be made before receipt of
the FTD coupon books, the employer
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§ 31.6302–1
26 CFR Ch. I (4–1–03 Edition)
should contact the local IRS office and
furnish the following information: the
business name as it appears on IRS
records, the employer identification
number, address where the coupon
books are to be sent, and the number of
coupon books being requested. Filers of
Form 1120, Form 990–C, Form 990PF
(with net investment income), Form
990–T or Form 2438 must also provide
the month the employer’s tax year
ends. If an employer has applied for an
employer identification number but
has not received it, and a deposit is required to be made, the employer should
send a check or money order for the deposit amount to its Internal Revenue
Service center. There should be included on the payment, the name and
address of the entity as shown on Form
SS–4, Application for Employer Identification Number, the kind of tax, the
period covered, and the date on which
the employer applied for the employer
identification number.
(5) Time deemed deposited. The timeliness of a deposit will be determined by
the date stamped on the FTD coupon
by the authorized financial institution
or, if section 7502(e) applies, by the
date the deposit is treated as received
under section 7502(e).
(6) Time deemed paid. In general,
amounts deposited under this section
will be considered as paid at the time
deemed deposited under paragraph
(h)(5) of this section, or on the last day
prescribed for filing the return (determined without regard to any extension
of time for filing the return), whichever is later. For purposes of section
6511 and the regulations hereunder (relating to the period of limitation on
credit or refund), if an amount is deposited prior to April 15th of the calendar year immediately succeeding the
calendar year that contains the period
for which the amount was deposited,
the amount will be considered paid on
April 15th.
(j) Voluntary payments by electronic
funds transfer. Any person may voluntarily remit by electronic funds transfer any payment of tax imposed by subtitle C of the Internal Revenue Code.
Such payment must be made in accordance with procedures prescribed by the
Commissioner.
(k) Special rules—(1) District Director
notice exception. The provisions of this
section are not applicable with respect
to employment taxes for any month in
which the employer receives notice
from the district director that a return
is required under § 31.6011(a)–5 (or for
any subsequent month for which such a
return is required), if those taxes are
also required to be deposited under the
separate accounting procedures provided in § 301.7512–1 of the Regulations
on Procedure and Administration
(which procedures are applicable if notification is given by the district director of failure to comply with certain
employment tax requirements). In
cases in which a monthly return is required under § 31.6011(a)–5 but the taxes
are not required to be deposited under
the separate accounting procedures
provided in § 301.7512–1, the provisions
of this section shall apply except those
provisions shall not authorize the deferral of any deposit to a date after the
date on which the return is required to
be filed.
(2) Wages paid in nonconvertible foreign
currency. The provisions of this section
are not applicable with respect to
wages paid in nonconvertible foreign
currency pursuant to § 301.6316–7.
(l) [Reserved]
(m) Cross references—(1) Failure to deposit penalty. For provisions relating to
the penalty for failure to make a deposit within the prescribed time, see
section 6656.
(2) Saturday, Sunday, or legal holiday.
For provisions relating to the time for
performance of acts where the last day
falls on Saturday, Sunday, or a legal
holiday, see the provisions of § 301.7503–
1.
(n) Effective date. Sections 31.6302–1
through 31.6302–3 apply with respect to
the deposit of employment taxes attributable to payments made after December 31, 1992. To the extent that the
provisions
of
§§ 31.6302–1
through
31.6302–3 are inconsistent with the provisions of §§ 31.6302(c)–1 and 31.6302(c)–2,
a taxpayer will be considered to be in
compliance with §§ 31.6301–1 through
31.6302–3 if the taxpayer makes timely
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Internal Revenue Service, Treasury
§ 31.6302–3
deposits during 1993 in accordance with
§§ 31.6302(c)–1 and 31.6302(c)–2.
[T.D. 8436, 57 FR 44102, Sept. 24, 1992; 57 FR
48724, Oct. 28, 1992, as amended by T.D. 8504,
58 FR 68035, Dec. 23, 1993; T.D. 8436, 59 FR
6218, Feb. 10, 1994; T.D. 8723, 62 FR 37493, July
14, 1997; T.D. 8771, 63 FR 32736, June 16, 1998;
T.D. 8822, 64 FR 32409, June 17, 1999; T.D. 8828,
64 FR 37676, July 13, 1999; T.D. 8909, 65 FR
76153, Dec. 6, 2000; T.D. 8946, 66 FR 28370, May
23, 2001; T.D. 8947, 66 FR 32542, June 15, 2001;
T.D. 8952, 66 FR 33831, 33832, June 26, 2001]
§ 31.6302–2 Federal Tax Deposit Rules
for amounts withheld under the
Railroad
Retirement
Tax
Act
(R.R.T.A.) attributable to payments
made after December 31, 1992.
(a) General rule. Except as otherwise
provided in this section, the rules of
§ 31.6302–1 determine the time and manner of making deposits of employee tax
withheld under section 3202 and employer tax imposed under sections 3221
(a) and (b) attributable to payments
made after December 31, 1992. Railroad
retirement taxes described in section
3221(c) arising during the month must
be deposited on or before the first date
after the 15th day of the following
month on which taxes are otherwise required to be deposited under § 31.6302–1.
(b) Separate application of deposit
rules. A person who accumulates tax
under sections 3202 or 3221 shall not
take that tax into account for purposes
of determining when taxes described in
paragraph (e) of § 31.6302–1 must otherwise be deposited.
(c) Modification of Monthly rule
determination—(1) General rule. Except
as otherwise provided in this section,
any person is allowed to use the
Monthly rule of § 31.6302–1(c)(1) for an
entire calendar year unless the amount
of R.R.T.A. taxes required to be deposited under this section during the
lookback period was more than $50,000.
The lookback period is defined as the
calendar year preceding the calendar
year just ended. Thus, for purposes of
determining if an R.R.T.A. employer
qualifies to use the Monthly rule for
calendar year 1993, a lookback must be
made to calendar year 1991. New employers shall be treated as having employment tax liabilities of zero for any
calendar year during which the employer did not exist.
(2) Exception. An employer shall immediately cease to be allowed to use
the Monthly rule after any day on
which that employer is subject to the
One-Day rule set forth in § 31.6302–
1(c)(3). Such employer immediately becomes subject to the Semi-Weekly rule
of § 31.6302–1(c)(2) for the remainder of
the calendar year and the following
calendar year.
(d) Wire-transfer exception. If, for the
calendar year prior to the calendar
year preceding the current calendar
year, the aggregate amount of taxes
imposed under sections 3202 and 3221
with respect to an employer equalled
or exceeded $1 million, the employer
must deposit the aggregate amount of
railroad retirement taxes required to
be deposited for the current calendar
year in accordance with § 31.6302(c)–
2(a)(1).
[T.D. 8436, 57 FR 44105, Sept. 24, 1992]
§ 31.6302–3 Federal tax deposit rules
for amounts withheld under the
backup withholding requirements
of section 3406 for payments made
after December 31, 1992.
(a) General rule. The rules of § 31.6302–
1 shall apply to determine the time and
manner of making deposits of amounts
withheld under the backup withholding
requirements of section 3406.
(b) Treatment of backup withholding
amounts separately. A taxpayer that
withholds income tax under section
3406 with respect to reportable payments made after December 31, 1992,
and before January 1, 1994, may, in accordance with the instructions provided with Form 941, deposit such tax
under the rules of § 31.6302–1 without
taking into account the other taxes described in paragraph (e) of § 31.6302–1 for
purposes of determining when tax withheld under section 3406 must be deposited. A taxpayer that treats backup
withholding amounts separately with
respect to reportable payments made
after December 31, 1992, and before January 1, 1994, shall not take tax withheld under section 3406 into account for
purposes of determining when the
other taxes described in paragraph (e)
of § 31.6302–1 must otherwise be deposited under that section. See § 31.6302–4
for rules regarding the deposit of income tax withheld under section 3406
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§ 31.6302–4
26 CFR Ch. I (4–1–03 Edition)
with respect to reportable payments
made after December 31, 1993.
(c) Example. The following example
illustrates the provisions of this section.
Example. For the last two calendar quarters of 1991 and the first two calendar quarters of 1992, Bank A reports employment
taxes with respect to wages paid totalling in
excess of $50,000. For the same four quarters,
pursuant to section 3406, A withholds income
tax with respect to dividend payments in an
amount aggregating less than $50,000. For deposit and reporting purposes, A treated the
backup withholding amounts separately
from the employment taxes with respect to
wages paid. Accordingly, for calendar year
1993, if A chooses to treat the items separately, A must use the Semi-Weekly rule of
§ 31.6302–1(c)(2) to deposit taxes with respect
to wages paid but may use the Monthly rule
of § 31.6302–1(c)(1) for the deposit of backup
withholding amounts. If A chooses not to
treat the items separately, the Semi-Weekly
rule would apply to the combined amount of
both the taxes with respect to wages paid
and the backup withholding amounts.
[T.D. 8436, 57 FR 44106, Sept. 24, 1992, as
amended by T.D. 8504, 58 FR 68035, Dec. 23,
1993]
§ 31.6302–4 Federal tax deposit rules
for withheld income taxes attributable to nonpayroll payments
made after December 31, 1993.
(a) General rule. With respect to nonpayroll withheld taxes attributable to
nonpayroll payments made after December 31, 1993, a taxpayer is either a
monthly or a semi-weekly depositor
based on an annual determination. Except as provided in this section, the
rules of § 31.6302–1 shall apply to determine the time and manner of making
deposits of nonpayroll withheld taxes
as though they were employment
taxes. Paragraph (b) of this section defines nonpayroll withheld taxes. Paragraph (c) of this section provides rules
for determining whether a taxpayer is
a monthly or a semi-weekly depositor.
(b) Nonpayroll withheld taxes defined.
For purposes of this section, effective
with respect to payments made after
December 31, 1993, nonpayroll withheld
taxes means—
(1) Amounts withheld under section
3402(q), relating to withholding on certain gambling winnings;
(2) Amounts withheld under section
3402 with respect to amounts paid as
retirement pay for service in the
Armed Forces of the United States;
(3) Amounts withheld under section
3402(o)(1)(B), relating to certain annuities;
(4) Amounts withheld under section
3405, relating to withholding on pensions, annuities, IRAs, and certain
other deferred income; and
(5) Amounts withheld under section
3406, relating to backup withholding
with respect to reportable payments.
(c) Determination of deposit status—(1)
Rules for calendar years 1994 and 1995.
On January 1, 1994, a taxpayer’s depositor status for nonpayroll withheld
taxes is the same as the taxpayer’s status on January 1, 1994, for taxes reported on Form 941 under § 31.6302–1. A
taxpayer generally retains that depositor status for nonpayroll withheld
taxes for all of calendar years 1994 and
1995. However, a taxpayer that under
this paragraph (c) is a monthly depositor for 1994 and 1995 will immediately
lose that status and become a semiweekly depositor of nonpayroll withheld taxes if the One-Day rule of
§ 31.6302–1(c)(3) is triggered with respect
to nonpayroll withheld taxes. See paragraph (d) of this section for a special
rule regarding the application of the
One-Day rule of § 31.6302–1(c)(3) to nonpayroll withheld taxes.
(2) Rules for calendar years after 1995—
(i) In general. For calendar years after
1995, the determination of whether a
taxpayer is a monthly or a semi-weekly depositor for a calendar year is
based on an annual determination and
generally depends on the aggregate
amount of nonpayroll withheld taxes
reported by the taxpayer for the
lookback period as defined in paragraph (c)(2)(iv) of this section.
(ii) Monthly depositor. A taxpayer is a
monthly depositor of nonpayroll withheld taxes for a calendar year if the
amount of nonpayroll withheld taxes
accumulated in the lookback period (as
defined in paragraph (c)(2)(iv) of this
section) is $50,000 or less. A taxpayer
ceases to be a monthly depositor of
nonpayroll withheld taxes on the first
day after the taxpayer is subject to the
One-Day rule in § 31.6302–1(c)(3) with respect to nonpayroll withheld taxes. At
that time, the taxpayer immediately
becomes a semi-weekly depositor of
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Internal Revenue Service, Treasury
§ 31.6302(c)–1
nonpayroll withheld taxes for the remainder of the calendar year and the
succeeding calendar year. See paragraph (d) of this section for a special
rule regarding the application of the
One-Day rule of § 31.6302–1(c)(3) to nonpayroll withheld taxes.
(iii) Semi-weekly depositor. A taxpayer
is a semi-weekly depositor of nonpayroll withheld taxes for a calendar year
if the amount of nonpayroll withheld
taxes accumulated in the lookback period (as defined in paragraph (c)(2)(iv)
of this section) exceeds $50,000.
(iv) Lookback period. For purposes of
this section, the lookback period for
nonpayroll withheld taxes is the second
calendar year preceding the current
calendar year. For example, the
lookback period for calendar year 1996
is calendar year 1994. A new taxpayer is
treated as having nonpayroll withheld
taxes of zero for any calendar year in
which the taxpayer did not exist.
(d) Special rules. A taxpayer must
treat nonpayroll withheld taxes, which
are reported on Form 945, Annual Return of Withheld Federal Income Tax,
separately from taxes reportable on
Form 941, Employer’s Quarterly Federal Tax Return. Taxes reported on
Form 945 and taxes reported on Form
941 are not combined for purposes of determining whether a deposit of either
is due, whether the One-Day rule of
§ 31.6302–1(c)(3) applies, or whether any
safe harbor is applicable. In addition,
separate Federal tax deposit coupons
must be used to deposit taxes reported
on Form 945 and taxes reported on
Form 941. (See paragraph (b) of
§ 31.6302–1 for rules for determining an
employer’s deposit status for taxes reported on Form 941.) A deposit of taxes
reported on Form 945 for one calendar
year must be made separately from a
deposit of taxes reported on Form 945
for another calendar year.
[T.D. 8504, 58 FR 68036, Dec. 23, 1993]
§ 31.6302(b)–1
Method of collection.
For provisions relating to collection
by means of returns of the taxes imposed by chapter 21 (Federal Insurance
Contributions Act), see §§ 31.6011(a)–1
and 31.6011(a)–5.
§ 31.6302(c)–1 Use of Government depositories in connection with taxes
under Federal Insurance Contributions Act and income tax withheld
for amounts attributable to payments made before January 1, 1993.
(a) Requirement for calendar months beginning after December 31, 1980, but before January 1, 1993—(1) In general. (i) In
the case of a calendar month which begins after December 31, 1980, but before
April 1, 1991—
(a) Except as provided in paragraph
(b) of this section and hereinafter in
this subdivision (i), if at the close of
any calendar month the aggregate
amount of undeposited taxes (as defined in paragraph (a)(1)(iii) of this section) is $500 or more, the employer
shall deposit the undeposited taxes in a
Federal Reserve bank or authorized financial institution (see paragraph
(a)(3)(iii) of this section) within 15 calendar days after the close of such calendar month.
However, this (a) of subdivision (i)
shall not apply if the employer was required to make a deposit of taxes pursuant to (b) of this subdivision (i) with
respect to an eighth-monthly period
which occurred during the calendar
month.
(b) Except as provided in paragraph
(b) of this section and except in the
case of first-time 3-banking-day depositors, if at the close of any eighthmonthly period the aggregate amount
of undeposited taxes is $3,000 or more,
the
employer
shall
deposit
the
undeposited taxes in a Federal Reserve
bank or authorized financial institution within 3 banking days after the
close of such eighth-monthly period.
For purposes of determining the
amount of undeposited taxes at the
close of an eighth-monthly period,
undeposited taxes with respect to
wages paid during a prior eighthmonthly period shall not be taken into
account if the employer has made a deposit with respect to such prior eighthmonthly period. An employer will be
considered to have complied with the
requirements
of
this
paragraph
(a)(1)(i)(b) for a deposit with respect to
the close of an eighth-monthly period
if—
(1) His deposit is not less than 95 percent (90 percent before January 1, 1982)
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§ 31.6302(c)–1
26 CFR Ch. I (4–1–03 Edition)
of the aggregate amount of the taxes
with respect to wages paid during the
period for which the deposit is made,
and
(2) If such eighth-monthly period occurs in a month other than the last
month of a period for which a return is
required to be filed (hereinafter in this
subparagraph referred to as a return
period), he deposits any underpayment
with his first deposit which is otherwise required by this paragraph
(a)(1)(i)(b) to be made after the 15th
day of the following month.
For
purposes
of
this
paragraph
(a)(1)(i)(b), a ‘‘first-time 3-banking-day
depositor’’ is an employer who establishes to the satisfaction of the Commissioner that he was not required (but
for this exception) to make a deposit
pursuant to this paragraph (a)(1)(i)(b)
(or pursuant to paragraph (a)(1)(ii)(b)
of this section) with respect to each period in any preceding month of the current calendar quarter and with respect
to each period in the 4 calendar quarters preceding the current calendar
quarter. An employer may in no event
qualify as a ‘‘first-time 3-banking-day
depositor’’ with respect to any eighthmonthly period if the undeposited
taxes at the close of that period are
$10,000 or more.
The excess (if any) of a deposit over the
actual taxes for a deposit period shall
be applied in order of time to each of
the employer’s succeeding deposits
with respect to the same return period,
until exhausted, to the extent that the
amount by which the taxes for a subsequent deposit period exceed the deposit
for such subsequent deposit period. For
purposes of this paragraph (a)(1)(i),
‘‘eighth-monthly period’’ means the
first 3 days of a calendar month, the
4th day through the 7th day of a calendar month, the 8th day through the
11th day of a calendar month, the 12th
day through the 15th day of a calendar
month, the 16th day through the 19th
day of a calendar month, the 20th day
through the 22nd day of a calendar
month, the 23rd day through the 25th
day of a calendar month, or the portion
of a calendar month following the 25th
day of such month.
(c) The periods within which taxes
must be desposited under this section
are determined, in the case of employ-
ers paying advance earned income
credit amounts, by reference to the
amount of taxes required to be deposited after reduction for advance
amounts paid to employees.
(ii) In the case of a calendar month
which begins after March 31, 1991, but
before January 1, 1993—
(a) Except as provided in § 31.6302(c)–
1(a)(1)(ii) (b) or (c), or § 31.6302(c)–1(b), if
with respect to any calendar month the
aggregate amount of taxes (as defined
in § 31.6302(c)–1(a)(1)(iii)) accumulated
with respect to wages paid is $500 or
more, but less than $3,000, then the employer shall deposit that aggregate
amount in a Federal Reserve bank or
authorized financial institution within
15 calendar days after the close of that
calendar month. Taxes accumulated
with respect to wages paid in a prior
calendar month within the same return
period shall not be taken into account
in determining the aggregate amount
of taxes accumulated if a deposit was
required to be made under this section
with respect to such tax amounts. Deposits made during the calendar month
of taxes with respect to wages paid during that month do not reduce the aggregate amount of taxes accumulated
for purposes of determining the deposit
requirement (if any) for that month.
However, this paragraph (a)(1)(ii)(a)
shall not apply if the employer was required to make a deposit of taxes pursuant to paragraph (a)(1)(ii)(b) of this
section with respect to an eighth–
month period which occurred during
the calendar month.
Example 1. Employer A’s aggregate amount
of taxes accumulated with respect to wages
paid in April 1991 is $800. Since that amount
is in excess of $500, but less than $3,000, A
must deposit the $800 in a Federal Reserve
bank or authorized financial institution by
May 15, 1991.
Example 2. Employer B’s aggregate amount
of taxes accumulated with respect to wages
paid in April 1991 is $400. Since that amount
is less than $500, B has no deposit obligation
for the month of April. In May 1991 B’s aggregate amount of taxes accumulated with
respect to wages paid during the month is
$450. Since the $400 in taxes in April was not
required to be deposited, that amount is
taken into account in determining if a deposit is required for May. The aggregate
amount of taxes accumulated with respect to
wages paid for the two months is in excess of
$500, thus requiring a deposit. Since June 15,
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§ 31.6302(c)–1
1991, is a Saturday, B must deposit the $850
in a Federal Reserve bank or authorized financial institution by Monday, June 17, 1991,
pursuant to section 7503 of the Code.
Example 3. The facts are the same as in Example 2 except that B deposits the $400 in
taxes from April on May 15, 1991. Because the
$400 was not required to be deposited, that
amount is taken into account in determining
if a deposit obligation exists for May. Since
the aggregate amount of taxes accumulated
with respect to wages paid for the two
months, $850, is in excess of $500, a deposit in
the aggregate amount of $850 is required by
Monday, June 17, 1991. Since $400 was previously deposited, B must deposit an additional $450 by June 17, 1991.
Example 4. On Friday, April 5, 1991, a payroll date, Employer C accumulates $450 in
taxes with respect to wages paid on that
date. Although not required to do so, C deposits the $450 in an authorized depository.
On Friday, April 19, 1991, C accumulates an
additional $450 in taxes with respect to
wages paid. The aggregate amount of taxes
accumulated with respect to wages paid during the calendar month is $900. C has a deposit obligation of $900 for the calendar
month and must deposit an additional $450 in
an authorized depository by May 15, 1991.
(b) Except as provided in § 31.6302(c)–
1(a)(1)(ii)(c) or § 31.6302(c)–1(b), and except in the case of first-time 3-banking-day depositors (as defined in
§ 31.6302(c)–1(a)(1)(i)(b)(2)), if with respect to any eighth-monthly period (as
defined in § 31.6302(c)–1(a)(1)(i)(b)) the
aggregate amount of taxes accumulated with respect to wages paid is
$3,000 or more, but less than $100,000,
the employer shall deposit that aggregate amount in a Federal Reserve bank
or authorized financial institution
within 3 banking days after the close of
that eighth-monthly period. Taxes accumulated with respect to wages paid
during a prior eighth-monthly period
shall not be taken into account if a deposit was required to be made under
this section with respect to such tax
amounts. Deposits made during the
eighth-monthly period of taxes with respect to wages paid during that eighthmonthly period do not reduce the aggregate amount of taxes accumulated
for purposes of determining the deposit
requirement (if any) for that eighthmonthly period. Solely for purposes of
the examples in this paragraph
(a)(1)(ii)(b) and paragraphs (a)(1)(ii)(c),
(d), and (f) of this section, ‘‘banking
days’’ are assumed to include all cal-
endar days except Saturdays, Sundays,
and Federal holidays.
Example 1. For the eighth-monthly period
April 1–3, 1991, Employer D’s aggregate
amount of taxes accumulated with respect to
wages paid is $3,500. Since that amount is in
excess of $3,000, but less than $100,000, D has
a deposit obligation of $3,500 that must be
satisfied by April 8, 1991, the third banking
day after the close of the eighth-monthly period.
Example 2. For the eighth-monthly period
April 1–3, 1991, Employer E’s aggregate
amount of taxes accumulated with respect to
wages paid is $3,500. E has a deposit obligation of $3,500 that must be satisfied by April
8, 1991, three banking days after the close of
the April 1–3 eighth-monthly period. For the
eighth-monthly period April 4–7, 1991, E’s aggregate amount of taxes accumulated with
respect to wages paid is $2,800. Since E was
required to make a deposit for the April 1–3
eighth-monthly period, that $3,500 amount is
not taken into account in determining any
obligations that arise in subsequent eighthmonthly periods. E does not have an eighthmonthly deposit obligation with respect to
the April 4–7 period.
Example 3. For the eighth-monthly period
April 1–3, 1991, Employer F’s aggregate
amount of taxes accumulated with respect to
wages paid is $2,800. Since that amount is
less than $3,000, no deposit is required with
respect to that eighth-monthly period. For
the eighth-monthly period April 4–7, 1991, F’s
aggregate amount of taxes accumulated with
respect to wages paid is $2,500. Since F was
not required to deposit the $2,800 in taxes
from the April 1–3 eighth-monthly period,
that amount is taken into account in determining F’s deposit obligation for the April 4–
7 eighth-monthly period. The aggregate
amount of taxes accumulated for the two
eighth-monthly periods is $5,300. F has a deposit obligation of $5,300 that must be satisfied by April 10, 1991, three banking days
after the close of the April 4–7 eighth-monthly period.
Example 4. The facts are the same as in Example 3 except that F deposits the $2,800 from
the April 1–3 eighth-monthly period on April
4, 1991. Because the $2,800 was not required to
be deposited, that amount is taken into account in determining F’s deposit obligation
for the April 4–7 eighth-monthly period. The
aggregate amount of taxes accumulated for
the two eighth-monthly periods is $5,300.
Since that amount is in excess of $3,000, a deposit obligation exists after the close of the
April 4–7 eighth-monthly period. As $2,800 of
that amount was previously deposited, F has
a deposit obligation of $2,500 that must be
satisfied by April 10, 1991, three banking days
after the close of the April 4–7 eighth-monthly period.
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§ 31.6302(c)–1
26 CFR Ch. I (4–1–03 Edition)
Example 5. On Friday, April 12, 1991, the beginning of an eighth-monthly period (April
12–15), G accumulates $3,500 in taxes with respect to wages paid and deposits the $3,500 in
an authorized depository on that date although a deposit of the $3,500 was not required to be made on that date. On Monday,
April 15, 1991, the end of the April 12–15
eighth-monthly period, G accumulates an additional $2,000 in taxes with respect to wages
paid. The aggregate amount of taxes accumulated with respect to wages paid during
the April 12–15 eighth-monthly period of
$5,500. G has a deposit obligation for the
eighth-monthly period of $5,500. Since $3,500
of that amount was previously deposited, G
has a remaining deposit obligation of $2,000
that must be satisfied by Thursday, April 18,
1991, three banking days after the close of
the eighth-monthly period.
(c) If on any day within an eighthmonthly period the aggregate amount
of taxes accumulated with respect to
wages paid is $100,000 or more, the employer shall deposit that aggregate
amount in a Federal Reserve bank or
authorized financial institution on the
first banking day after that day. Taxes
accumulated with respect to wages
paid prior to that day shall not be
taken into account if a deposit was required under this section with respect
to such tax amounts. Taxes deposited
on any given day with respect to wages
paid on that day do not reduce the aggregate amount of taxes accumulated
on that day for purposes of determining the deposit requirement (if
any) for that day.
Example 1. On Thursday, April 4, 1991, the
beginning of the April 4–7 eighth-monthly
period, Employer H accumulates $55,000 in
taxes with respect to wages paid on that
date. On Saturday, April 6, 1991, H accumulates an additional $50,000 in taxes with respect to wages paid. H has a deposit obligation of $105,000 that must be satisfied by
Monday, April 8, the next banking day after
Saturday, April 6.
Example 2. On Friday, April 12, 1991, the beginning of the April 12–15 eighth-monthly period, J accumulates $60,000 in taxes with respect to wages paid and deposits the $60,000
in an authorized depository on that date although a deposit of the $60,000 was not required to be made on that date. On Monday,
April 15, 1991, the last day in the April 12–15
eighth-monthly period, J accumulates an additional $50,000 in taxes with respect to
wages paid. On Monday, April 15, the aggregate amount of taxes accumulated with respect to wages paid during the eighthmonthly period to date totals $110,000. J has
a $110,000 deposit obligation that must be
satisfied by the next banking day after the
$100,000 threshold is reached. Since $60,000 of
the $110,000 was already deposited, J has a remaining deposit obligation of $50,000 that
must be satisfied by Tuesday, April 16, 1991,
the next banking day following April 15th.
Example 3. On Monday, April 1, 1991, Employer K accumulates $105,000 in taxes with
respect to wages paid on that date. On that
same day, K deposits in an authorized depository $10,000 of the $105,000 accumulated. K
has a $105,000 deposit obligation that must be
satisfied by the next banking day, April 2,
1991. The $10,000 deposited on April 1 cannot
be used to reduce the aggregate amount of
accumulated taxes with respect to that date.
K has a remaining deposit obligation of
$95,000 that must be satisfied by April 2, 1991.
(d) If, with respect to any eighthmonthly period, an employer incurs an
obligation to deposit in accordance
with § 31.6302(c)–1(a)(1)(ii)(c), and later,
within the same eighth-monthly period, accumulates with respect to
wages paid taxes of $3,000 or more, but
less than $100,000, an additional deposit
is
required
in
accordance
with
§ 31.6302(c)–1(a)(1)(ii)(b). However, if the
amount of taxes is $100,000 or more, an
additional deposit is required in accordance with § 31.6302(c)–1(a)(1)(ii)(c).
Example. On Tuesday, April 2, 1991, Employer L accumulates $110,000 in aggregate
taxes with respect to wages paid. In accordance with paragraph (a)(1)(ii)(c) of this section, L has a $110,000 deposit obligation that
must be satisfied by Wednesday, April 3, 1991,
the next banking day following April 2. On
Wednesday, April 3, 1991, L accumulates an
additional $10,000 in taxes with respect to
wages paid that date. In accordance with
paragraph (a)(1)(ii)(b) of this section, L now
has an additional deposit obligation of
$10,000 that must be satisfied by Monday,
April 8, 1991, the 3rd banking day following
the close of the April 1–3 eighth-monthly period. The obligation to deposit the $10,000 is
separate and distinct from the obligation to
deposit the $110,000.
(e) An employer will be considered to
have satisfied the deposit obligation
imposed by paragraphs (a)(1)(ii) (b), (c)
and (d) of this section if—
(1) The deposit that is made is not
less than 95 percent of the aggregate
amount of taxes accumulated with respect to wages paid during the period
for which the deposit is made, and
(2) If the eighth-monthly period (or,
in the case of a deposit required under
paragraph (a)(1)(ii)(c) of this section,
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Internal Revenue Service, Treasury
§ 31.6302(c)–1
the day on which the obligation arose)
is in a month other than the last
month of the return period, the employer deposits any remaining amount
due with the first deposit otherwise required to be made after the fifteenth
day of the following month. In the case
of the last month of the return period,
see § 31.6302(c)–1(a)(1)(iv).
(f) Any excess of a deposit over the
actual taxes required to be deposited to
date (overdeposit) during the return period shall be applied in order of time to
each of the employer’s succeeding deposit obligations within the same return period. In the determination of
the aggregate amount of taxes accumulated with respect to wages paid in succeeding deposit periods, the overdeposit does not reduce the aggregate
amount accumulated although the
overdeposit is credited to the depositor’s account.
Example. Employer M’s deposit obligation
for the eighth-monthly period April 1–3, 1991,
is $3,200. On April 8, 1991, three banking days
after the close of the eighth-monthly period,
M deposits $4,000 in an authorized depository, $800 in excess of the amount required to
be deposited. During the eighth-monthly period April 4–7, 1991, M accumulates $3,750 in
taxes with respect to wages paid during such
period. Although the $800 overdeposit for the
April 1–3 eighth-monthly period is credited
to M’s account, it may not be used to determine whether a deposit obligation exists for
the April 4–7 eighth-monthly period. The two
deposit obligations are separate and distinct.
Since the amount of taxes accumulated with
respect to the April 4–7 eighth-monthly period is an amount greater than $3,000, a deposit is required under paragraph (a)(1)(ii)(b)
of this section within three banking days
after the close of the period. M has a remaining deposit obligation of $2,950 ($3,750 accumulated less $800 overdeposit) that must be
satisfied by April 10, 1991, three banking days
after the close of the period.
(g) The periods within which taxes
must be deposited under this section
are determined, in the case of employers paying advance earned income
credit amounts, by reference to the
amount of taxes required to be deposited after reduction for advance
amounts paid to employees.
(h) For purposes of this paragraph
(a)(1)(ii), the term ‘‘wages paid’’ includes all amounts included in wages,
e.g., under section 3121(v) of the Code,
regardless of whether they have actually been paid.
(iii) As used in subdivisions (i) and
(ii) of this subparagraph, the term
‘‘taxes’’ means—
(a) The employee tax withheld under
section 3102,
(b) The employer tax under section
3111, and
(c) The income tax withheld under
section 3402, including amounts withheld with respect to qualified State individual income taxes,
Exclusive of taxes with respect to
wages for domestic service in a private
home of the employer or, if paid before
April 1, 1971, wages for agricultural
labor. In addition, with respect to
wages paid after December 31, 1970, and
before April 1, 1971, for agricultural
labor, any taxes described in paragraph
(a)(2)(ii) of this section which are not
required under such subparagraph to be
deposited, and any income tax (including qualified State individual income
tax) withheld under section 3402 with
respect to such wages, shall be deemed
to be ‘‘taxes’’ on and after April 1, 1971.
For the requirements relating to the
deposit and payment of withheld tax
and with respect to qualified State individual income taxes, see paragraph
(d)(3)(iii) of § 301.6361–1 of this chapter
(Regulations on Procedure and Administration).
(iv) If the aggregate amount of taxes
reportable on a return (other than a return on Form 942) for a return period
exceeds the total amount deposited by
the employer pursuant to paragraph
(a)(1) (i) or (ii) of this section for such
return period (a) by $500 or more in the
case of a return period which ends after
December 31, 1980, or (b) by more than
$200 in the case of a return period
which ends after December 31, 1970, and
before January 1, 1981, the employer
shall, on or before the last day of the
first calendar month following the return period, deposit with a Federal Reserve bank or authorized financial institution an amount equal to the
amount by which the taxes reportable
on the return exceed the total deposits
(if any) made pursuant to subdivision
(i) or (ii) of this subparagraph for such
period. As used in this subdivision, the
term ‘‘taxes’’ shall have the meaning
assigned to such term in subdivision
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§ 31.6302(c)–1
26 CFR Ch. I (4–1–03 Edition)
(iii) of this subparagraph, except that
the term shall include the taxes referred to in (a), (b), and (c) of such subdivision (iii) of this subparagraph with
respect to any wages for domestic service in a private home of the employer
which the employer elects to report on
a quarterly return other than a quarterly return made on Form 942.
(v) If the aggregate amount of taxes
reportable on Form CT–1, the return
relating to an employer’s railroad retirement tax payments, for a return period exceeds the total amount deposited by the employer pursuant to paragraph (a)(1)(i) of this section for such
return period by $100 or more, the employer shall, on or before the last day
of the second calendar month following
the return period, deposit with a Federal Reserve bank or authorized financial institution an amount equal to the
amount by which the taxes reportable
on Form CT–1 exceed the total deposits
(if any) of such taxes made pursuant to
subdivision (i) of this subparagraph for
such period.
(2) Depositary forms—(i) In general. A
deposit required to be made by this section shall be made separately from a
deposit required by any other section.
An employer may make one, or more
than one, remittance of the amount required to be deposited. However, a deposit for a period in one calendar quarter shall be made separately from any
deposit for a period in another calendar
quarter. An amount of tax which is not
required to be deposited may nevertheless be deposited if the employer so desires.
(ii) Deposits. Each remittance of
amounts required to be deposited under
paragraph (a)(1) of this section shall be
accompanied by a Federal Tax Deposit
form. Such form shall be prepared in
accordance with the instructions applicable thereto. The remittance, together with the Federal Tax Deposit
form, shall be forwarded to a financial
institution authorized as a depositary
for Federal taxes in accordance with 31
CFR Part 214 or, at the election of the
employer, to a Federal Reserve bank.
For procedures governing the deposit
of Federal taxes at a Federal Reserve
bank, see 31 CFR Part 214.7. The timeliness of the deposit will be determined
by the date stamped on the Federal
Tax Deposit form by the Federal Reserve bank or the authorized financial
institution or, if section 7502(e) applies,
by the date the deposit is treated as received under section 7502(e). Each employer making deposits under this section shall report on the return, for the
period with respect to which such deposits are made, information regarding
such deposits according to the instructions that apply to such return and pay
at that time (or deposit by the due date
of such return) the balance, if any, of
the taxes due for such period.
(iii) Time deemed paid. In general,
amounts deposited under subdivision
(ii) of this subparagraph shall be considered as paid on the last day prescribed for filing the return in respect
of such tax (determined without regard
to any extension of time for filing such
return), or at the time deposited,
whichever is later. For purposes of section 6511 and the regulations thereunder, relating to period of limitation
on credit or refund, if an amount is so
deposited prior to April 15th of a calendar year immediately succeeding the
calendar year which contains the period for which such amount was so deposited, such amount shall be considered as paid on such April 15th.
(3) Procurement of prescribed form.
Copies of the Federal Tax Deposit form
will so far as possible be furnished employers. An employer will not be excused from making a deposit, however,
by the fact that no form has been furnished to it. An employer not supplied
with the Federal Tax Deposit form
should make application therefor in
ample time to make the required deposits within the time prescribed. The
employer may secure the form or additional forms by application therefor to
the district director or director of a
service center; such application shall
supply the employer’s name, identification number, address, and the taxable
period to which the deposits will relate.
(b) Exceptions—(1) Monthly returns.
The provisions of this section are not
applicable with respect to taxes for the
month in which the employer receives
notice from the district director that
returns are required under § 31.6011 (a)–
5 (or for any subsequent month for
which such a return is required), if
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Internal Revenue Service, Treasury
§ 31.6302(c)–2
those taxes are also required to be deposited under the separate accounting
procedures provided in § 301.7512–1 of
this chapter (Regulations on Procedure
and Administration) (which procedures
are applicable if notification is given
by the district director of failure to
comply with certain employment tax
requirements). In cases in which a
monthly return is required under
§ 31.6011 (a)–5 but the taxes are not required to be deposited under the separate accounting procedures provided in
§ 301.7512–1, the provisions of this section shall apply except that paragraph
(a)(1)(iv) shall not authorize the deferral of any deposit to a date after the
date on which the return is required to
be filed.
(2) Wages paid in nonconvertible foreign
currency. The provisions of this section
are not applicable with respect to taxes
paid in nonconvertible foreign currency pursuant to § 301.6316–7 of this
chapter (Regulations on Procedure and
Administration).
(68A Stat. 775, 917; 26 U.S.C. 6302, 7805; secs.
6302 (c) and 7805 of the Internal Revenue Code
of 1954; 68A Stat. 775, 26 U.S.C. 6302 (c); 68A
Stat. 917; 26 U.S.C. 7805)
[T.D. 6516, 25 FR 13032, Dec. 20, 1960]
EDITORIAL NOTE: For FEDERAL FEGISTER citations affecting § 31.6302(c)–1, see the List of
CFR Sections Affected, which appears in the
Finding Aids section of the printed volume
and on GPO Access.
§ 31.6302(c)–2 Use of Government depositories in connection with employee and employer taxes under
Railroad Retirement Tax Act for
amounts attributable to payments
made before January 1, 1993.
(a) Requirement—(1) In general: after
1983 and before April 1, 1991. In the case
of a calendar month which begins after
December 31, 1983, and before April 1,
1991, if, at a time prescribed under
§ 31.6302(c)–1(a)(1) (i) or (v) for the deposit of undeposited taxes, the aggregate amount of undeposited employee
tax withheld after December 31, 1983,
and before April 1, 1991, under section
3202 and employer tax imposed after
December 31, 1983, and before April 1,
1991, under section 3221(a) and (b)
equals an amount required to be deposited under § 31.6302(c)–1(a)(1) (i) or (v)
the
employer
shall
deposit
the
undeposited railroad retirement taxes
described in sections 3202 and 3221 at
such time in the manner prescribed in
§ 31.6302(c)–1(a)(1) (i) or (v) (except that
undeposited railroad retirement taxes
described in section 3221 (c) shall in no
case be required to be deposited earlier
than the first day on which a deposit is
otherwise required by § 31.6302(c)–
1(a)(1)(i) to be made after the 15th day
of the month following the month in
which the section 3221 (c) tax arises).
Notwithstanding the preceding sentence, and notwithstanding subdivision
(v) of § 31.6302 (c)–1 (a) (1), if, for the
calendar year prior to the calendar
year preceding the current calendar
year, the aggregate amount of taxes
imposed under sections 3202 and 3221
with respect to an employer equalled
or exceeded $1 million, such employer
shall deposit his undeposited railroad
retirement taxes required to be deposited for the current calendar year in
accordance with Revenue Procedure 83–
90, 1983–52 I.R.B. 18, (relating to transfers by wire to the Treasury).
(2) In general: After March 31, 1991 and
before January 1, 1993. In the case of a
calendar month which begins after
March 31, 1991, if, at a time prescribed
under § 31.6302(c)–1(a)(1)(ii) or (v) for
the deposit of accumulated taxes, the
aggregate amount of accumulated employee tax withheld after March 31,
1991, under section 3202 and employer
tax imposed after March 31, 1991, under
section 3221(a) and (b) equals an
amount required to be deposited under
§ 31.6302(c)–1(a)(1)(ii) or (v), the employer shall deposit the accumulated
railroad retirement taxes described in
sections 3202 and 3221 at the time and
in the manner prescribed in § 31.6302(c)–
1(a)(1)(ii) or (v) (except that accumulated railroad retirement taxes described in section 3221(c) shall in no
case be required to be deposited earlier
than the first day on which a deposit is
otherwise required by § 31.6302(c)–
1(a)(1)(ii) to be made after the 15th day
of the month following the month in
which the section 3221(c) tax arises).
Notwithstanding the preceding sentence, and notwithstanding § 31.6302(c)–
1(a)(1)(v), if, for the calendar year prior
to the calendar year preceding the current calendar year, the aggregate
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§ 31.6302(c)–2
26 CFR Ch. I (4–1–03 Edition)
amount of taxes imposed under sections 3202 and 3221 with respect to an
employer equalled or exceeded $1 million, such employer shall deposit the
aggregate amount of railroad retirement taxes required to be deposited for
the current calendar year in accordance with Revenue Procedure 83–90,
1983–2 C.B. 615 (relating to transfers by
wire to the Treasury).
(3) Special requirement. If an employer
files a return on Form CT–1 for a return period beginning before January 1,
1984, and the taxes shown thereon exceed by more than $100 the total
amount deposited by him pursuant to
paragraph (a)(1) of this section for such
return period the employer shall, on or
before the last day of the second calendar month following the period for
which the return is filed, deposit with
a Federal Reserve bank or authorized
financial institution an amount equal
to the amount by which the taxes
shown on the return exceed the total
deposits (if any) made pursuant to
paragraph (a)(1) of this section for such
return period.
(b) Depositary forms—(1) In general. A
deposit required to be made by this section shall be made separately from a
deposit required by any other section.
An employer may make one, or more
than one remittance of the amount required to be deposited. An amount of
tax which is not required to be deposited may nevertheless be deposited if
the employer so desires. If the aggregate amount of the taxes deposited is
in excess of the taxes shown on the return, a credit or refund may be obtained; and in the event the excess is
applied as a credit against such taxes
for a subsequent return period, the employer shall reduce the amount of one
or more of the deposits otherwise required for such subsequent return period by the amount of such credit.
(2) Deposits. Each remittance of
amounts required to be deposited shall
be accompanied by a Federal Tax Deposit form which shall be prepared in
accordance with the instructions applicable thereto. Except as provided in
paragraph (a)(1) or (a)(2) of this section, the remittance, together with the
form, shall be forwarded to a financial
institution authorized as a depositary
for Federal taxes in accordance with 31
CFR part 214 or, at the election of the
employer, to a Federal Reserve bank.
For procedures governing the deposit
of Federal taxes at a Federal Reserve
bank, see 31 CFR part 214.7. The timeliness of the deposit will be determined
by the date stamped on the Federal
Tax Deposit form by the Federal Reserve bank or the authorized financial
institution or, if section 7502(e) applies,
by the date the deposit is treated as received under section 7502(e). Each employer making deposits under this section shall report on the return, for the
period with respect to which such deposits are made, information regarding
such deposits according to the instructions that apply to such return and pay
at that time (or deposit by the due date
of such return) the balance, if any, of
the taxes due for such period.
(3) Time deemed paid. In general,
amounts deposited under subparagraph
(2) of this paragraph shall be considered as paid on the last day prescribed
for filing the return in respect of such
tax (determined without regard to any
extension of time for filing such return), or at the time deposited, whichever is later. For purposes of section
6511 and the regulations thereunder, relating to period of limitation on credit
or refund, if an amount is so deposited
prior to April 15th of a calendar year
immediately succeeding the calendar
year in which occurs the period for
which such amount was so deposited,
such amount shall be considered as
paid on such April 15th.
(c) Procurement of prescribed form.
Copies of the Federal Tax Deposit form
will so far as possible be furnished employers. An employer will not be excused from making a deposit, however,
by the fact that no form has been furnished to it. An employer not supplied
with the form should make application
therefor in ample time to make the required deposits within the time prescribed. The employer may secure the
form or additional forms by applying
therefor and supplying its name, identification number, address, and the
taxable period to which the deposits
will relate. Copies of the Federal Tax
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Internal Revenue Service, Treasury
§ 31.6302(c)–2A
Deposit form may be secured by application therefor to the district director
or director of a service center.
(Secs. 6302 (c) and 7805 of the Internal Revenue Code of 1954 (68A Stat. 775, 26 U.S.C. 6302
(c); 68A Stat. 917; 26 U.S.C. 7805)
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6941, 32 FR 18041, Dec. 16,
1967; T.D. 6957, 33 FR 8272, June 4, 1968; T.D.
7419, 41 FR 19632, May 13, 1976; T.D. 7931, 48
FR 57274, Dec. 29, 1983; T.D. 7953, 49 FR 19645,
May 9, 1984; T.D. 8341, 56 FR 13403, Apr. 2,
1991; T.D. 8436, 57 FR 44106, Sept. 24, 1992]
§ 31.6302(c)–2A Use of Government depositaries in connection with the
railroad unemployment repayment
tax.
(a) Effective date. The provisions of
this section apply with respect to the
tax imposed by section 3321(a) on rail
employers (as defined in section
3323(a)) on wages paid on or after July
1, 1986, during a taxable period.
(b) Requirement—(1) Rail employers—(i)
In general. Except as provided in this
section, every rail employer who is required by section 6157(d) to compute
the tax imposed by section 3321(a) on a
quarterly basis shall deposit the
amount of the tax so computed with respect to a calendar quarter (other than
the fourth quarter of a calendar year)
with an authorized financial institution on or before the last day of the
first calendar month following the
close of the calendar quarter.
(ii) Special rule for certain rail employers. If, for the calendar year prior to
the calendar year immediately preceding the current calendar year, the
aggregate amount of taxes imposed
under sections 3202 and 3221 of the Code
(relating to the railroad retirement
tax) with respect to an employer
equaled or exceeded $1,000,000, such employer shall (except as provided below)
deposit his undeposited railroad unemployment repayment tax imposed by
section 3321(a) with respect to the current calendar year at the time such tax
would otherwise be required to be deposited under this section in the manner set forth in Revenue Procedure 83–
90, 1983–2 C.B. 615 (relating to transfers
by wire to the Treasury). The funds
transfer message described in Revenue
Procedure 83–90 (with respect to the
railroad retirement tax) shall be completed in the same manner as is pre-
scribed in that Revenue Procedure, except that the amount required by item
12(f) shall be the amount of the railroad unemployment repayment tax (to
be labeled as such by the rail employer). Item 12(g) is to be disregarded
with respect to the use of the Revenue
Procedure for deposits of the railroad
unemployment repayment tax. A wire
transfer required to be made by a rail
employer with respect to the railroad
unemployment repayment tax shall be
made separately from any wire transfer
required to be made with respect to
any other tax.
(2) Special rule where accumulated
amount does not exceed $100. The provisions of paragraph (b)(1) of this section
shall not apply with respect to any calendar quarter if the amount of tax imposed by section 3321(a) for such calendar quarter as computed under section 6157, plus unpaid amounts for prior
calendar quarters within the taxable
period, does not exceed $100.
(3) Requirement for deposit in lieu of
payment with return. If the amount of
the tax reportable on a return of tax on
Form CT–1 for a taxable period (as defined in section 3322(a)) exceeds by
more than $100 the sum of the amounts
deposited pursuant to paragraph (b)(1)
of this section for such taxable period,
the rail employer shall, on or before
the last day of the first calendar month
following the period, deposit the balance of the tax due with a Federal Reserve bank or with an authorized financial institution.
(4) Special rule for third calendar quarter of 1986. Notwithstanding paragraph
(b)(1)(i) of this section, every rail employer required by section 6157(d) to
compute the tax imposed by section
3321(a) for the third calendar quarter of
1986 shall deposit the tax so computed
on or before December 15, 1986, in the
manner provided by this section.
(c) Depositary forms. The provisions of
paragraphs (b) and (c) of § 31.6302(c)–2,
relating to depositary forms, are incorporated in this § 31.6302(c)–2A by reference.
[T.D. 8105, 51 FR 40169, Nov. 5, 1986. Redesignated and amended at T.D. 8227, 53 FR 34736,
Sept. 8, 1988; T.D. 8952, 66 FR 33832, June 26,
2001]
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§ 31.6302(c)–3
26 CFR Ch. I (4–1–03 Edition)
§ 31.6302(c)–3 Use of Government depositaries in connection with tax
under the Federal Unemployment
Tax Act.
(a) Requirement—(1) In general. Except
as provided in paragraph (a)(2) of this
section, every person who, by reason of
the provisions of section 6157, computes
the tax imposed by section 3301 on a
quarterly or other time period basis
shall—
(i) If he is a person described in subsection (a)(1) of section 6157, deposit
the amount of such tax with an authorized financial institution on or before
the last day of the first calendar month
following the close of each of the first
three calendar quarters in the calendar
year, or
(ii) If he is a person other than a person described in subsection (a) (1) of
section 6157, deposit the amount of
such tax with an authorized financial
institution on or before the last day of
the first calendar month following the
close of—
(a) The period beginning with the
first day of the calendar year and ending with the last day of the calendar
quarter (excluding the last calendar
quarter) in which such person becomes
an employer (as defined in section
3306(a)), and
(b) The third calendar quarter of such
year, if the period specified in (a) of
this subdivision includes only the first
two calendar quarters of the calendar
year.
(2) Special rule where accumulated
amount does not exceed $100. The provisions of paragraph (a)(1) of this section
shall not apply with respect to any period described therein if the amount of
the tax imposed by section 3301 for
such period as computed under the provisions of section 6157, plus amounts
not deposited for prior periods does not
exceed $100. Thus, an employer shall
not be required to make a deposit for a
period unless his tax for such period
plus tax not deposited for prior periods
exceeds $100.
(3) Requirement for deposit in lieu of
payment with return. If the amount of
tax reportable on a return on Form 940
for a calendar year beginning after December 31, 1969, exceeds by more than
$100 the sum of the amount deposited
by the employer pursuant to paragraph
(a)(1) of this section for such calendar
year, the employer shall, on or before
the last day of the first calendar month
following the calendar year for which
the return is required to be filed, deposit the balance of the tax due with
an authorized financial institution.
(b) Manner of deposit—deposits required to be made by Federal tax deposit
(FTD) coupon. (1) In general. A deposit
required to be made by an employer
under this section shall be made separately from a deposit required by any
other section. An employer may make
one, or more than one, remittance of
the amount required to be deposited.
An amount of tax which is not required
to be deposited may nevertheless be deposited if the employer so desires.
(2) Use of Federal Tax Deposit form.
Each remittance of amounts required
to be deposited under this section shall
be accompanied by a prepunched and
preinscribed Federal Tax Deposit form
which shall be prepared in accordance
with the instructions applicable thereto. The employer shall forward such remittance, together with the Federal
Tax Deposit form, to a financial institution authorized as a depositary for
Federal taxes in accordance with 31
CFR part 203. The timeliness of deposits is determined by the date stamped
on the Federal Tax Deposit form by the
authorized financial institution or, if
section 7502(e) applies, by the date the
deposit is treated as received under
section 7502(e).
(3) Time deemed paid. In general,
amounts deposited under this section
shall be considered as paid on the last
day prescribed for filing the return in
respect of such tax (determined without regard to any extension of time for
filing such return), or at the time deposited, whichever is later. For purposes of section 6511 and the regulations thereunder, relating to period of
limitation on credit or refund, if an
amount is so deposited prior to the last
day prescribed for filing the return in
respect of such tax (determined without regard to any extension of time for
filing such return), such amount shall
be considered as paid on such last day.
(4) Procurement of prescribed form.
Copies of the Federal Tax Deposit form
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Internal Revenue Service, Treasury
§ 31.6402(a)–2
will so far as possible be furnished employers. An employer will not be excused from making a deposit, however,
by the fact that no form has been furnished to him. An employer not supplied with the proper form should make
application therefor in ample time to
make the required deposits within the
time prescribed. The employer may secure the form or additional forms by
applying therefor and supplying his
name, identification number, address
and the taxable year to which the deposits will relate. Copies of the Federal
Tax Deposit form may be secured by
application to the district director or
director of a service center.
(c) Manner of deposit—deposits required
to be made by electronic funds transfer.
For the requirement to deposit tax
under the Federal Unemployment Tax
Act by electronic funds transfer, see
§ 31.6302–1(h). A taxpayer not required
to deposit by electronic funds transfer
pursuant to § 31.6302–1(h) remains subject to the rules of paragraph (b) of this
section.
(d) Effective date. The provisions of
paragraphs (a) and (b) of this section
apply with respect to calendar quarters
beginning after December 31, 1969. The
provisions of paragraph (c) of this section apply with respect to calendar
quarters beginning on or after January
1, 1995.
[T.D. 7037, 35 FR 6709, Apr. 28, 1970; 35 FR
7070, May 5, 1970, as amended by T.D. 7062, 35
FR 14840, Sept. 24, 1970; T.D. 7953, 49 FR 19645,
May 9, 1984; 49 FR 25239, June 20, 1984; T.D.
8723, 62 FR 37494, July 14, 1997; T.D. 8952, 66
FR 33831, 33832, June 26, 2001]
§ 31.6302(c)–4
Cross references.
(a) Failure to deposit. For provisions
relating to the penalty for failure to
make a deposit within the prescribed
time, see section 6656.
(b) Saturday, Sunday, or legal holiday.
For provisions relating to the time for
performance of acts where the last day
falls on Saturday, Sunday, or a legal
holiday, see the provisions of § 301.7503–
1 of this chapter (Regulations on Procedure and Administration).
[T.D. 6516, 25 FR 13032, Dec. 20, 1960. Redesignated by T.D. 7037, 35 FR 6709, Apr. 28, 1970,
as amended by T.D. 8947, 66 FR 32542, June 15,
2001]
§ 31.6361–1 Collection and administration of qualified State individual income taxes.
Except as otherwise provided in
§§ 301.6361–1 to 301.6385–2, inclusive, of
this chapter (Regulations on Procedure
and Administration), the provisions of
this part under subtitle F or chapter 24
of the Internal Revenue Code of 1954 relating to the collection and administration of the taxes imposed by chapter
1 of such Code on the incomes of individuals (or relating to civil or criminal
sanctions with respect to such collection and administration) shall apply to
the collection and administration of
qualified State individual income taxes
(as defined in section 6362 of such Code
and the regulations thereunder) as if
such taxes were imposed by chapter 1
of chapter 24.
(86 Stat. 944, 26 U.S.C. 6364; and 68A Stat. 917,
26 U.S.C. 7805)
[T.D. 7577, 43 FR 59360, Dec. 20, 1978]
§ 31.6402(a)–1
Credits or refunds.
(a) In general. For regulations under
section 6402 of special application to
credits or refunds of employment
taxes, see §§ 31.6402(a)–2, 31.6402(a)–3,
and 31.6414–1, for regulations under section 6402 of general application to credits or refunds, see §§ 301.6402–1 and
301.6402–2 of this chapter (Regulations
on Procedure and Administration). For
provisions relating to credits of employment taxes which constitute adjustments
without
interest,
see
§§ 31.6413(a)–1 and 31.6413(a)–2.
(b) Period of limitation. For the period
of limitation upon credit or refund of
taxes imposed by the Internal Revenue
Code of 1954, see § 301.6511(a)–1 of this
chapter (Regulations on Procedure and
Administration). For the period of limitation upon credit or refund of any tax
imposed by the Internal Revenue Code
of 1939, see the regulations applicable
with respect to such tax.
§ 31.6402(a)–2 Credit or refund of tax
under Federal Insurance Contributions Act or Railroad Retirement
Tax Act.
(a) Claim by person who paid tax to district director—(1) In general. Any person
who pays to the district director more
than the correct amount of—
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§ 31.6402(a)–2
26 CFR Ch. I (4–1–03 Edition)
(i) Employee tax under section 3101,
or employer tax under section 3111, of
the Federal Insurance Contributions
Act,
(ii) Employee tax under section 3201,
employee representative tax under section 3211, or employer tax under section 3221, of the Railroad Retirement
Tax Act,
(iii) Any such tax under a corresponding provision of prior law, or
(iv) Interest, addition to the tax, additional amount, or penalty with respect to any such tax,
may file a claim for refund of the overpayment (except to the extent that the
overpayment must be credited pursuant to § 31.3503–1, or may claim credit
for such overpayment, in the manner
and subject to the conditions stated in
this section and § 301.6402–2 of this
chapter (Regulations on Procedure and
Administration). If credit is claimed
pursuant to this section, the amount
thereof shall be claimed by entering
such amount as a deduction on a return
filed by the person making the claim.
The return on which the credit is
claimed must be on a form which is
prescribed for use, at the time of the
claim, in reporting tax which corresponds to the tax overpaid. If credit
is taken pursuant to this section, a
claim on Form 843 is not required, but
the return on which the credit is
claimed shall have attached as a part
thereof a statement which shall constitute the claim for credit, setting
forth in detail the grounds and facts relied upon in support of the credit, designating the return period in which the
error was ascertained, and setting
forth such other information as may be
required by the regulations in this subpart and by the instructions relating to
the return. No refund or credit of employee tax under the Federal Insurance
Contributions Act shall be allowed if
for any reason (for example, an overcollection of employee tax having been
inadvertently included by the employee in computing a special refund—
see § 31.6413(c)–1 the employee has
taken the amount of such tax into account in claiming a credit against, or
refund of, his income tax, or if so, such
claim has been rejected.
(2) Statements supporting employers’
claims for employee tax. (i) Every claim
filed by an employer for refund or credit of employee tax under section 3101 or
section 3201, or a corresponding provision of prior law, collected from an employee shall include a statement that
the employer has repaid the tax to
such employee or has secured the written consent of such employee to allowance of the refund or credit. The employer shall retain as part of his
records the written receipt of the employee showing the date and amount of
the repayment, or the written consent
of the employee, whichever is used in
support of the claim.
(ii) Every claim filed by an employer
for refund or credit of employee tax
under section 3101, or a corresponding
provision of prior law, collected from
an employee in a calendar year prior to
the year in which the credit or refund
is claimed, also shall include a statement that the employer has obtained
from the employee a written statement
(a) that the employee has not claimed
refund or credit of the amount of the
overcollection, or if so, such claim has
been rejected, and (b) that the employee will not claim refund or credit
of such amount. The employer shall retain the employee’s written statement
as part of the employer’s records.
(b) Claim by employee—(1) In general.
If more than the correct amount of employee tax under section 3101 or section
3201, or a corresponding provision of
prior law, is collected by an employer
from an employee and paid to the district director, the employee may file a
claim for refund of the overpayment if
(i) the employee does not receive reimbursement in any manner from the employer and does not authorize the employer to file a claim and receive refund or credit, (ii) the overcollection
cannot be corrected under § 31.3503–1,
and (iii) in the case of employee tax
under section 3101 or a corresponding
provision of prior law, the employee
has not taken the overcollection into
account in claiming a credit against, or
refund of, his income tax, or if so, such
claim
has
been
rejected.
See
§ 31.6413(c)–1.
(2) Statements supporting employee’s
claim. (i) Each employee who makes a
claim under subparagraph (1) of this
paragraph shall submit with such
claim a statement setting forth (a) the
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§ 31.6413(a)–1
extent, if any, to which the employer
has reimbursed the employee in any
manner for the overcollection, and (b)
the amount, if any, of credit or refund
of such overpayment claimed by the
employer or authorized by the employee to be claimed by the employer.
The employee shall obtain such statement, if possible, from the employer,
who should include in such statement
the fact that it is made in support of a
claim against the United States to be
filed by the employee for refund of employee tax paid by such employer to
the district director. If the employer’s
statement is not submitted with the
claim, the employee shall make the
statement to the best of his knowledge
and belief, and shall include therein an
explanation of his inability to obtain
the statement from the employer.
(ii) Each individual who makes a
claim under subparagraph (1) of this
paragraph for refund of employee tax
under section 3101, or a corresponding
provision of prior law, also shall submit with such claim a statement setting forth whether the individual has
taken the amount of the overcollection
into account in claiming a credit
against, or refund of, his income tax,
and the amount, if any, so claimed (see
§ 31.6413(c)–1).
(c) Statements to accompany employers’
and employees’ claims under the Federal
Insurance Contributions Act. Whenever a
claim for credit or refund of employee
tax under section 3101, employer tax
under section 3111, or either such tax
under a corresponding provision of
prior law, is made with respect to remuneration which was erroneously reported on a return or schedule as wages
paid to an employee, such claim shall
include a statement showing (1) the
identification number of the employer,
if he was required to make application
therefor, (2) the name and account
number of such employee, (3) the period covered by such return or schedule, (4) the amount of remuneration actually reported as wages for such employee, and (5) the amount of wages
which should have been reported for
such employee. No particular form is
prescribed for making such statement,
but if printed forms are desired, the
district director will supply copies of
Form 941c or Form 941c PR, whichever
is appropriate, upon request.
§ 31.6402(a)–3 Refund of Federal unemployment tax.
Any person who pays to the district
director more than the correct amount
of—
(a) Tax under section 3301 of the Federal Unemployment Tax Act or a corresponding provision of prior law, or
(b) Interest, addition to the tax, additional amount, or penalty with respect
to such tax,
may file a claim for refund of the overpayment, in the manner and subject to
the conditions stated in § 301.6402–2 of
this chapter (Regulations on Procedure
and Administration). See § 31.6413(d)
and the corresponding section of prior
law for provisions which bar the allowance or payment of interest on the
amount of any refund based on credit
allowable for contributions paid under
the unemployment compensation law
of a State.
§ 31.6404(a)–1
Abatements.
For regulations under section 6404 of
general application to the abatement
of taxes, see § 301.6404–1 of this chapter
(Regulations on Procedure and Administration). Every claim filed by an employer for abatement of employee tax
under section 3101 or section 3201, or a
corresponding provision of prior law,
shall be made in the manner and subject to the conditions stated in paragraphs (a) (2) and (c) of § 31.6402(a)–2, as
if the claim for abatement were a
claim for refund.
§ 31.6413(a)–1 Repayment by employer
of tax erroneously collected from
employee.
(a) Before employer files return—(1)
Employee tax under the Federal Insurance Contributions Act or the Railroad
Retirement Tax Act. (i) If an employer—
(a) During any return period collects
from an employee more than the correct amount of tax under section 3101
or section 3201, or a corresponding provision of prior law,
(b) Repays the amount of the overcollection to the employee before the
return for such period is filed with the
district director, and
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§ 31.6413(a)–1
26 CFR Ch. I (4–1–03 Edition)
(c) Obtains and keeps as part of his
records the written receipt of the employee showing the date and amount of
the repayment,
the employer shall not report on any
return or pay to the district director
the amount of the overcollection.
(ii) Any overcollection not repaid to
and receipted for by the employee as
provided in paragraph (a)(1)(i) of this
section shall be reported and paid to
the district director with the return for
the return period in which the overcollection was made. Such return shall
be accompanied by a statement explaining the overcollection, setting
forth the account number (if known)
and name of the individual from whom
the overcollection was made, and showing the total amount overcollected
from and not repaid to the individual.
If the employer is not required to make
a return for such period, the employer
nevertheless shall furnish to the district director a statement as described
in the preceding sentence, on or before
the date fixed for filing a return for
such period, and shall pay the amount
of the overcollection with such statement.
(2) Income tax withheld from wages. (i)
If an employer—
(a) During any return period collects
from an employee more than the correct amount of tax under section 3402,
(b) Repays the amount of the overcollection to the employee before the
return for such period is filed with the
district director and before the end of
the calendar year in which the overcollection was made, and
(c) Obtains and keeps as part of his
records the written receipt of the employee showing the date and amount of
the repayment,
the employer shall not report on any
return or pay to the district director
the amount of the overcollection.
(ii) Any overcollection not repaid to
and receipted for by the employee as
provided in subdivision (i) of this subparagraph shall be reported and paid to
the district director with the return for
the return period in which the overcollection was made.
(b) After employer files return—(1) Employee tax under the Federal Insurance
Contributions Act or the Railroad Retirement Tax Act. (i) If an employer collects
from any employee and pays to the district director more than the correct
amount of employee tax under section
3101 or section 3201, or a corresponding
provision of prior law, and if the error
is ascertained within the applicable period of limitation on credit or refund,
the employer shall repay or reimburse
the employee in the amount thereof
prior to the expiration of the return period following the return period in
which the error is ascertained and
prior to the expiration of such limitation period. This subparagraph has no
application in any case in which an
overcollection is made the subject of a
claim by the employer for refund or
credit, and the employer elects to secure the written consent of the employee to the allowance of the refund
or credit under the procedure provided
in paragraph (a)(2)(i) of § 31.6402(a)–2.
(ii) If the amount of an overcollection is repaid to an employee, the employer shall obtain and keep as part of
his records the written receipt of the
employee, showing the date and
amount of the repayment. If, in any
calendar year, an employer repays or
reimburses an employee in the amount
of an overcollection of employee tax
under section 3101, or a corresponding
provision of prior law, which was collected from the employee in a prior
calendar year, the employer shall obtain from the employee and keep as
part of his records a written statement
(a) that the employee has not claimed
refund or credit of the amount of the
overcollection, or if so, such claim has
been rejected, and (b) that the employee will not claim refund or credit
of such amount. See § 31.6413(c)–1.
(iii) If the employer does not repay
the employee the amount overcollected, the employer shall reimburse
the employee by applying the amount
of the overcollection against the employee tax which attaches to wages or
compensation paid to the employee
prior to the expiration of the return period following the return period in
which the error is ascertained and
prior to the expiration of the applicable period of limitation on credit or refund. If the amount of the overcollection exceeds the amount so applied
against such employee tax, the excess
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§ 31.6413(a)–3
amount shall be repaid to the employee
as required by this subparagraph.
(iv) For purposes of this subparagraph, an error is ascertained when the
employer has sufficient knowledge of
the error to be able to correct it.
(v) For the period of limitation upon
credit or refund of taxes imposed by
the Internal Revenue Code of 1954, see
§ 301.6511(a)–1 of this chapter (Regulations on Procedure and Administration). For the period of limitation upon
credit or refund of any tax imposed by
the Internal Revenue Code of 1939, see
the regulations applicable with respect
to such tax.
(2) Income tax withheld from wages. (i)
If, in any return period in a calendar
year, an employer collects from any
employee more than the correct
amount of tax under section 3402, and
the employer pays the amount of such
overcollection to the district director,
the employer may repay or reimburse
the employee in the amount thereof in
any subsequent return period in such
calendar year.
(ii) If the amount of the overcollection is repaid to the employee, the employer shall obtain and keep as part of
his records the written receipt of the
employee, showing the date and
amount of the repayment. If the employer does not repay the amount of
the overcollection, the employer may
reimburse the employee by applying
the amount of the overcollection
against the tax under section 3402
which otherwise would be required to
be withheld from wages paid by the employer to the employee in the calendar
year in which the overcollection is
made.
fore the last day of the return period
following the return period in which
the error was ascertained. No credit or
adjustment in respect of an overpayment shall be entered on a return after
the filing of a claim for refund of such
overpayment.
(2) Employer tax. If an employer pays
more than the correct amount of employer tax under section 3111 or section
3221, or a corresponding provision of
prior law, the employer may claim
credit for the amount of the overpayment in the manner, and subject to the
conditions, stated in § 31.6402(a)–2. Such
credit shall constitute an adjustment,
without interest, if the amount thereof
is entered on the same return on which
the employer adjusts, pursuant to
paragraph (a)(1) of this section, a corresponding overpayment of employee
tax.
(b) Income tax withheld from wages. If,
pursuant
to
paragraph
(b)(2)
of
§ 31.6413(a)–1, an employer repays or reimburses an employee in the amount of
an overcollection of tax under section
3402, the employer may adjust the overcollection, without interest, by entering the amount thereof as a deduction
on a return of tax under section 3402,
filed by the employer for any return
period in the calendar year in which
the employer repays or reimburses the
employee. The return on which the adjustment is entered as a deduction
shall have attached thereto a statement explaining the adjustment, designating the return period in which the
error occurred, and setting forth such
other information as is required by the
regulations in this subpart and by the
instructions relating to the return.
§ 31.6413(a)–2 Adjustment of overpayments.
(a) Taxes under the Federal Insurance
Contributions Act or the Railroad Retirement Tax Act—(1) Employee tax. After an
employer repays or reimburses an employee in the amount of an overcollection, as provided in paragraph (b)(1) of
§ 31.6413(a)–1, the employer may claim
credit for such amount in the manner,
and subject to the conditions, stated in
§ 31.6402(a)–2. Such credit shall constitute an adjustment, without interest, if the amount thereof is entered on
a return for a period ending on or be-
§ 31.6413(a)–3 Repayment by payor of
tax erroneously collected from
payee.
(a) In general—(1) Erroneous withholding under section 3406 of the Internal
Revenue Code. If a payor or broker
withholds under section 3406 from a
payee in error or withholds more than
the proper amount of the tax under
section 3406, the payor or broker may
refund the amount erroneously withheld as provided in section 6413 and
this section. A payor or broker will be
considered to have withheld erroneously under section 3406 only if the
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§ 31.6413(a)–3
26 CFR Ch. I (4–1–03 Edition)
amount is withheld because of an error
by the payor or broker (e.g., an error in
flagging or identifying an account that
is subject to withholding under section
3406). The payor or broker may, in its
discretion, treat the amount withheld
as an amount erroneously withheld and
refund it to the payee if—
(i) The payor or broker requires a
payee described in § 31.3406(g)–1(a) or
described in a provision of the Internal
Revenue Code requiring the reporting
of a payment subject to withholding
under section 3406 to certify that it is
an exempt recipient, the payee fails to
make the required certification, and
the payor or broker subsequently withholds under section 3406 from a payment to the payee;
(ii) The payor or broker does not require the payee to certify concerning
its exempt status and the payor or
broker withholds under section 3406;
(iii) The payor or broker withholds
under section 3406 from a payee after
the payee provides a taxpayer identification number or required certification (including the documentation
described in § 1.1441–1(e)(1)(ii), 1.6045–
1(g)(3), or 1.6049–5(c) of this chapter) to
the payor, but before the payor or
broker treats the number or required
certification as having been received
under § 31.3406(e)–1(b); or
(iv) The amount is withheld because
a payor imposed backup withholding
on a payment made to a person because
the payee failed to furnish the documentation
described
in
§ 1.1441–
1(e)(1)(ii) of this chapter and the payee
subsequently furnishes, completes, or
corrects the documentation. The documentation must be furnished, completed, or corrected prior to the end of
the calendar year in which the payment is made and prior to the time the
payor furnishes a Form 1099 to the
payee with respect to the payment for
which the withholding erroneously occurred.
(2) For purposes of paragraph (a)(1) of
this section (other than erroneous
withholding occurring under the circumstances described in paragraph
(a)(1)(iv) of this section), if a payor or
broker withholds because the payor or
broker has not received a taxpayer
identifying number or required certification and the payee subsequently pro-
vides a taxpayer identifying number or
a required certification to the payor,
the payor or broker may not refund the
amount to the payee.
(b) Refunding amounts erroneously
withheld—(1) Time and manner. If a
payor or broker withholds under section 3406 from a payee in error (including withholding more than the correct
amount, as described in paragraph (a)
of this section), the payor or broker
may refund the amount erroneously
withheld to the payee if the refund is
made prior to the end of the calendar
year and prior to the time the payor or
broker furnishes a Form 1099 to the
payee with respect to the payment for
which the erroneous withholding occurred. If the amount of the erroneous
withholding is refunded to the payee,
the payor or broker must—
(i) Keep as part of its records a receipt showing the date and amount of
refund and must provide a copy of the
receipt to the payee (a canceled check
or an entry in a statement is sufficient,
provided that the check or statement
contains a specific notation that it is a
refund of tax erroneously withheld);
(ii) Not report on a Form 1099 as tax
withheld any amount which the payor
or broker has refunded to a payee; and
(iii) Not deposit the amount erroneously withheld if the payor or broker
has not deposited the amount of the
tax prior to the time that the refund is
made to the payee.
(2) Adjustment after the deposit of the
tax—(i) In general. Except as provided
in paragraph (b)(2)(ii) of this section, if
the amount erroneously withheld has
been deposited prior to the time that
the refund is made to the payee, the
payor or broker may adjust any subsequent deposit of the tax collected
under chapter 24 of the Internal Revenue Code that the payor or broker is
required to make in the amount of the
tax that has been refunded to the
payee.
(ii) Erroneous withholding from a payee
that is a foreign person. Where a payor
withholds in error from a payee that is
a nonresident alien or foreign person,
as described in paragraph (a)(1)(iv) of
this section, the payor may refund
some or all of the amount subject to
backup withholding under section 3406.
A refund may be paid in accordance
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Internal Revenue Service, Treasury
§ 31.6413(c)–1
with the requirements of this paragraph (b)(2)(ii) where the documentation is furnished, completed, or corrected prior to the end of the calendar
year in which the payment is made and
prior to the time the payor furnishes a
Form 1099 to the payee with respect to
the payment for which the withholding
erroneously occurred. The amount of
the refund will be the amount erroneously withheld less the amount of
tax required to be withheld, if any,
under chapter 3 of the Internal Revenue Code and the regulations under
that chapter. With respect to the
amount of the payment to the foreign
person and the amount of tax required
to be withheld under chapter 3 of the
Internal Revenue Code (and the regulations thereunder), returns must be
made in accordance with the requirements of § 1.1461–1 (b) and (c) of this
chapter.
[T.D. 8637, 60 FR 66133, Dec. 21, 1995, as
amended by T.D. 8734, 62 FR 53494, Oct. 14,
1997]
§ 31.6413(b)–1 Overpayments of certain
employment taxes.
For provisions relating to the adjustment of overpayments of tax imposed
by section 3101, 3111, 3201, 3221, or 3402,
see § 31.6413(a)–2. For provisions relating to refunds of tax imposed by section 3101, 3111, 3201, or 3221, see
§§ 31.6402(a)–1 and 31.6402(a)–2. For provisions relating to refunds of tax imposed by section 3402, see §§ 31.6402(a)–1
and 31.6414–1.
§ 31.6413(c)–1
Special refunds.
(a) Who may make claims—(1) In general. (i) If an employee receives wages,
as defined in section 3121(a), from two
or more employers in any calendar
year:
(a) After 1954 and before 1959 in excess of $4,200,
(b) After 1958 and before 1966 in excess
of $4,800,
(c) After 1965 and before 1968 in excess
of $6,600,
(d) After 1967 and before 1972 in excess of $7,800,
(e) After 1971 and before 1973 in excess
of $9,000,
(f) After 1972 and before 1974 in excess
of $10,800,
(g) After 1973 and before 1975 in excess
of $13,200, or
(h) After 1974 in excess of the contribution and benefit base (as determined under section 230 of the Social
Security Act) which is effective with
respect to such year,
the employee shall be entitled to a special refund of the amount, if any, by
which the employee tax imposed by
section 3101 with respect to such wages
and deducted therefrom (whether or
not paid) exceeds the employee tax
with respect to the amount specified in
(a) through (h) of this subdivision for
the calendar year in question. Employee tax imposed by section 3101 with
respect to tips reported by an employee
to his employer and collected by the
employer from funds turned over by
the employee to the employer (see section 3102(c)) shall be treated, for purposes of this paragraph, as employee
tax deducted from wages received by
the employee. If the employee is required to file an income tax return for
such calendar year (or for his last taxable year beginning in such calendar
year) he may obtain the benefit of the
special refund only by claiming credit
as provided in § 1.21–2 of this chapter
(Income Tax Regulations).
(ii) The application of this subparagraph may be illustrated by the following examples:
Example 1. Employee A in the calendar
year 1968 receives taxable wages in the
amount of $5,000 from each of his employers,
B, C, and D, for services performed during
such year (or at any time after 1936), or a
total of $15,000. Employee tax (computed at
4.4 percent, the aggregate employee tax rate
in effect in 1968) is deducted from A’s wages
in the amount of $220 by B and $220 by C, or
a total of $440. Employer D pays employee
tax in the amount of $220 without deducting
such tax from A’s wages. The employee tax
with respect to the first $7,800 of such wages
is $343.20. A is entitled to a special refund of
$96.80 ($440 minus $343.20). The $5,000 of wages
received from employer D and the $220 of employee tax paid with respect thereto have no
bearing in computing A’s special refund
since such tax was not deducted from his
wages.
Example 2. Employee E in the calendar year
1968 performs services for employers F and G,
for which E is entitled to wages of $7,800
from each employer, or a total of $15,600. On
account of such services, E in 1967 received
an advance payment of $1,800 of wages from
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§ 31.6413(c)–1
26 CFR Ch. I (4–1–03 Edition)
F; and in 1968, receives wages in the amount
of $6,000 from F and $7,800 from G. Employee
tax was deducted as follows: In 1967, $79.20
($1,800 × 4.4 percent, the aggregate employee
tax rate in effect in 1967) by employer F; and
in 1968, $264.00 ($6,000 × 4.4 percent, the aggregate employee tax rate in effect in 1968) by
employer F, and $343.20 ($7,800 × 4.4 percent)
by employer G. Thus, E in the calendar year
1968 received $13,800 in wages from which
$607.20 of employee tax was deducted. The
amount of employee tax with respect to the
first $7,800 of such wages received in 1968 is
$343.20. E is entitled to a special refund of
$264.00 ($607.20 minus $343.20). The $1,800 advance of wages received in 1967 from F, and
the $79.20 of employee tax with respect thereto, have no bearing in computing E’s special
refund for 1968, because the wages were not
received in 1968. Such amounts could not
form the basis for a special refund unless E
during 1967 received from F and at least one
more employer wages totaling more than
$6,600.
(2) Federal employees. For purposes of
special refunds of employee tax, each
head of a Federal agency or of a wholly
owned instrumentality of the United
States who makes a return pursuant to
section 3122 (and each agent designated
by a head of a Federal agency or instrumentality who makes a return pursuant to such section) is considered a
separate employer. For such purposes,
the term ‘‘wages’’ includes the amount
which each such head (or agent) determines to constitute wages paid an employee, but not in excess of the amount
specified in paragraph (a)(1)(i) (a)
through (h) of this section for the calendar year in question. For example, if
wages received by an employee during
calendar year 1974 are reportable by
two or more agents of one or more Federal agencies and the amount of such
wages is in excess of $13,200 the employee shall be entitled to a special refund of the amount, if any, by which
the employee tax imposed with respect
to such wages and deducted therefrom
exceeds the employee tax with respect
to the first $13,200 of such wages. Moreover, if an employee receives wages
during any calendar year from an agency or wholly owned instrumentality of
the United States and from one or
more other employers, either private
or governmental, the total amount of
such wages shall be taken into account
for purposes of the special refund provisions.
(3) State employees. For purposes of
special refunds of employee tax, the
term ‘‘wages’’ includes such remuneration for services covered by an agreement made pursuant to section 218 of
the Social Security Act, relating to
voluntary agreements for coverage of
employees of State and local governments, as would be wages if such services constituted employment (see
§ 31.3121(a)–1, relating to wages); the
term ‘‘employer’’ includes a State or
any political subdivision thereof, or
any instrumentality of any one or
more of the foregoing; and the term
‘‘tax’’ or ‘‘tax imposed by section 3101’’
includes an amount equivalent to the
employee tax which would be imposed
by section 3101 if such services constituted employment. The provisions of
paragraph (a)(1) of this section are applicable whether or not any amount deducted from an employee’s remuneration as a result of an agreement made
pursuant to section 218 of the Social
Security Act has been paid pursuant to
such agreement. Thus, the special refund provisions are applicable to
amounts equivalent to employee tax
deducted from employees’ remuneration by States, political subdivisions,
or instrumentalities by reason of
agreements made under section 218 of
the Social Security Act. Moreover, if
during any calendar year an employee
receives remuneration for services covered by such an agreement and during
the same calendar year receives wages
from one or more other employers, either private or governmental, the total
amount of such remuneration and
wages shall be taken into account for
purposes of the special refund provisions.
(4) Employees of certain foreign corporations. For purposes of special refunds of employee tax, the term
‘‘wages’’ includes such remuneration
for services covered by an agreement
made pursuant to section 3121(l), relating to agreements for coverage of employees of certain foreign corporations,
as would be wages if such services constituted employment (see § 31.3121(a)–1,
relating to wages); the term ‘‘employer’’ includes any domestic corporation which has entered into an agreement pursuant to section 3121(l); and
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Internal Revenue Service, Treasury
§ 31.6413(c)–1
the term ‘‘tax’’ or ‘‘tax imposed by section 3101’’ includes, in the case of services covered by an agreement entered
into pursuant to section 3121(l), an
amount equivalent to the employee tax
which would be imposed by section 3101
if such services constituted employment. The provisions of paragraph
(a)(1) of this section are applicable
whether or not any amount deducted
from the employee’s remuneration by
reason of such agreement has been paid
to the district director. Thus, the special refund provisions are applicable to
amounts equivalent to employee tax
deducted from employees’ remuneration by reason of agreements made
under section 3121(l). A domestic corporation which enters into an agreement pursuant to section 3121(l) shall,
for purposes of this paragraph, be considered an employer in its capacity as
a party to such agreement separate and
distinct from its identity as an employer employing individuals on its
own account (see section 3121(l)(9)). If
during any calendar year an employee
receives remuneration for services covered by such an agreement and during
the same calendar year receives wages
for services in employment, the total
amount of such remuneration and
wages shall be taken into account for
purposes of the special refund provisions. For provisions relating to agreements entered into under section
3121(l), see the regulations in part 36 of
this chapter (Regulations on Contract
Coverage of Employees of Foreign Subsidiaries).
(5) Governmental employees in American Samoa. For purposes of special refunds of employee tax, the Governor of
American Samoa and each agent designated by him who makes a return
pursuant to section 3125(b) (see
§ 31.3125) is considered a separate employer. For such purposes, the term
‘‘wages’’ includes the amount which
the Governor (or any agent) determines
to constitute wages paid an employee,
but not in excess of the amount specified in paragraph (a)(1)(i) (a) through
(h) of this section for the calendar year
in question. For example, if wages received by an employee during calendar
year 1974 are reportable by two or more
agents pursuant to section 3125(b) and
the total amount of such wages is in
excess of $13,200, the employee shall be
entitled to a special refund of the
amount, if any, by which the employee
tax imposed with respect to such wages
and deducted therefrom exceeds the
employee tax with respect to the first
$13,200 of such wages. Moreover, if an
employee receives wages during any
calendar year from the Government of
American Samoa, from a political subdivision thereof, or from any whollyowned instrumentality of such government or political subdivision and from
one or more other employers, either
private or governmental, the total
amount of such wages shall be taken
into account for purposes of the special
refund provisions.
(6) Governmental employees in the District of Columbia. For purposes of special refunds of employee tax, the Commissioner of the District of Columbia
(or, prior to the transfer of functions
pursuant to Reorganization Plan No. 3
of 1967 (81 Stat. 948), the Commissioners of the District of Columbia) and
each agent designated by him who
makes a return pursuant to section
3125(c) (see § 31.3125) is considered a separate employer. For such purposes, the
term ‘‘wages’’ includes the amount
which the Commissioner (or any agent)
determines to constitute wages paid an
employee, but not in excess of the
amount specified in paragraph (a)(1)(i)
(a) through (h) of this section for the
calendar year in question. For example, if wages received by an employee
during calendar year 1974 are reportable by two or more agents pursuant to
section 3125(c) and the total amount of
such wages is in excess of $13,200 the
employee shall be entitled to a special
refund of the amount, if any, by which
the employee tax imposed with respect
to such wages and deducted therefrom
exceeds the employee tax imposed with
respect to such wages and deducted
therefrom exceeds the employee tax
with respect to the first $13,200 of such
wages. Moreover, if an employee receives wages during any calendar year
from the Government of the District of
Columbia or from a wholly-owned instrumentality thereof and from one or
more other employers, either private
or governmental, the total amount of
such wages shall be taken into account
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§ 31.6413(c)–1
26 CFR Ch. I (4–1–03 Edition)
for purposes of the special refund provisions.
(b) Claims for special refund—(1) In
general. An employee who is entitled to
a special refund under section 6413(c)
may claim such refund under the provisions of this section only if the employee is not entitled to claim the
amount thereof as a credit against income tax as provided in § 1.31–2 of this
chapter (Income Tax Regulations).
Each claim under this section shall be
made with respect to wages received
within one calendar year (regardless of
the year or years after 1936 during
which the services were performed for
which such wages are received), and
shall be filed after the close of such
year.
(2) Form of claim. Each claim for special refund under this section shall be
made on Form 843, in accordance with
the regulations in this subpart and the
instructions relating to such form. In
the case of a claim filed prior to April
15, 1968, the claim shall be filed with
the district director for the internal
revenue district in which the employee
resides or, if the employee does not reside in any internal revenue district,
with the District Director, Baltimore,
Md. 21202. Except as provided in paragraph (b) of § 301.6091–1 (relating to
hand-carried documents), in the case of
a claim filed after April 14, 1968, the
claim shall be filed with the service
center serving such internal revenue
district. However, in the case of an employee who does not reside in any internal revenue district and who is outside the United States, the claim shall
be filed with the Director of International Operations, U.S. Internal Revenue Service, Washington, D.C. 20225,
unless the employee resides in Puerto
Rico or the Virgin Islands, in which
case the claim shall be filed with the
Director of International Operations,
U.S. Internal Revenue Service, Hato
Rey, P.R. 00917. The claim shall include
the employee’s account number and
the following information with respect
to each employer from whom he received wages during the calendar year:
(i) The name and address of such employer, (ii) the amount of wages received during the calendar year to
which the claim relates, and (iii) the
amount of employee tax collected by
the employer from the employee with
respect to such wages. Other information may be required but should be submitted only upon request.
(3) Period of limitation. For the period
of limitation upon special refund of
employee tax imposed by section 3101,
see § 301.6511(a)–1 of this chapter (Regulations on Procedure and Administration).
(c) Special refunds with respect to compensation as defined in the Railroad Retirement Tax Act—(1) In general. In the
case of any individual who, during any
calendar year after 1967, receives wages
(as defined by section 3121(a)) from one
or more employers and also receives
compensation (as defined by section
3231(e)) which is subject to the tax imposed on employees by section 3201 or
the tax imposed on employee representatives by section 3211 such compensation shall, solely for purposes of
applying section 6413(c)(1) and this section with respect to the hospital insurance tax imposed by section 3101(b), be
treated as wages (as defined by section
3121(a)) received from an employer with
respect to which the hospital insurance
tax imposed by section 3101(b) was deducted. For purposes of this section,
compensation received shall be determined under the principles provided in
chapter 22 of the Code and the regulations thereunder (see section 3231(e)
and § 31.3231(e)–1). Therefore, compensation paid for time lost shall be deemed
earned and received for purposes of this
section in the month in which such
time is lost, and compensation which is
earned during the period for which a
return of taxes under chapter 22 is required to be made and which is payable
during the calendar month following
such period shall be deemed to have
been received for purposes of this section during such period only. Further,
compensation is deemed to have been
earned and received when an employee
or employee representative performs
services for which he is paid, or for
which there is a present or future obligation to pay, regardless of the time at
which payment is made or deemed to
be made.
(2) Example. The application of this
paragraph may be illustrated by the
following example.
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Internal Revenue Service, Treasury
§ 31.6652(c)–1
Example. Employee A rendered services to
X during 1973 for which he was paid compensation at the monthly rate of $650 which
was taxable under the Railroad Retirement
Tax Act. A was paid $550 by X in January
1973 which was earned and deemed received
in December 1972 and $650 in January of 1974
which was earned and deemed received in December of 1973. A also earned and received
wages in 1973 from employer Y, which were
subject to the employee tax under the Federal Insurance Contributions Act, in the
amount of $6,000. A paid hospital insurance
tax on $13,800 ($7,800 compensation from X
including $650 earned and deemed received in
December 1973 but paid in January 1974 and
not including $550 paid in January 1973 but
earned and deemed received in December
1972, $6,000 compensation from Y) received or
deemed received or earned in 1973. For purposes of the hospital insurance tax imposed
by section 3101(b), these amounts are all
wages received from an employer in 1973.
Therefore, A is entitled to a special refund
for 1973 under section 6413(c) and this section
of $30 (1.0%×$13,800—1.0%×$10,800).
[T.D. 6516, 25 FR 13032, Dec. 20, 1960, as
amended by T.D. 6950, 33 FR 5359, Apr. 4, 1968;
T.D. 6983, 33 FR 18020, Dec. 4, 1968; T.D. 7374,
40 FR 30954, July 24, 1975]
§ 31.6414–1 Credit or refund of income
tax withheld from wages.
(a) In general. Any employer who
pays to the district director more than
the correct amount of—
(1) Tax under section 3402 or a corresponding provision of prior law, or
(2) Interest, addition to the tax, additional amount, or penalty with respect
to such tax,
may file a claim for refund of the overpayment or may claim credit for such
overpayment, in the manner and subject to the conditions stated in this
section and § 301.6402–2 of this chapter
(Regulations on Procedure and Administration). If credit is claimed pursuant
to this section, the amount thereof
shall be claimed by entering such
amount as a deduction on a return of
tax under section 3402 filed by the employer. If credit is taken pursuant to
this section, a claim on Form 843 is not
required, but the return on which the
credit is claimed shall have attached as
a part thereof a statement, which shall
constitute the claim for credit, setting
forth in detail the grounds and facts relied upon in support of the credit, and
showing such other information as is
required by the regulations in this sub-
part and by the instructions relating to
the return. No refund or credit to the
employer shall be allowed under this
section for the amount of any overpayment of tax which the employer deducted or withheld from an employee.
(b) Period of limitation. For the period
of limitation upon credit or refund of
taxes imposed by the Internal Revenue
Code of 1954, see § 301.6511(a)–1 of this
chapter (Regulations on Procedure and
Administration). For the period of limitation upon credit or refund of any tax
imposed by the Internal Revenue Code
of 1939, see the regulations applicable
with respect to such tax.
§ 31.6652(c)–1 Failure of employee to
report tips for purposes of the Federal Insurance Contributions Act.
(a) In general. In the case of failure
by an employee to furnish, pursuant to
the provisions of section 6053(a), to his
employer a report of tips received by
him in the course of his employment,
which constitute wages (as defined in
section 3121(a)), there shall be paid by
the employee, in addition to the tax
imposed by section 3101 with respect to
the amount of tips which he so failed
to report, an amount equal to 50 percent of such tax. The additional
amount imposed for such failure shall
be paid in the same manner as tax upon
notice and demand by the district director.
(b) Reasonable cause. Payment of an
amount equal to 50 percent of the tax
imposed by section 3101 with respect to
the tips which the employee failed to
report will not be required if it is established to the satisfaction of the district director or the director of the regional service center that such failure
was due to reasonable cause and not
due to willful neglect. An affirmative
showing of reasonable cause must be
made in the form of a written statement, containing a declaration that it
is made under the penalties of perjury,
setting forth all the facts alleged as a
reasonable cause. An employee’s reluctance to disclose to his employer the
amount of tips received by him will not
establish that the employee’s failure to
report tips to his employer was due to
reasonable cause and not due to willful
neglect.
[T.D. 7001, 34 FR 1005, Jan. 23, 1969]
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§ 31.6674–1
26 CFR Ch. I (4–1–03 Edition)
§ 31.6674–1 Penalties for fraudulent
statement or failure to furnish
statement.
Any person required to furnish a
statement to an employee under the
provisions of section 6051 or 6053(b) is
subject to a civil penalty for willful
failure to furnish such statement in
the manner, at the time, and showing
the information required under such
section (or § 31.6051–1 or § 31.6053–2), or
for willfully furnishing a false or fraudulent statement to an employee. The
penalty for each such violation is $50,
which shall be assessed and collected in
the same manner as the tax imposed on
employers under the Federal Insurance
Contributions Act. See section 7204 for
criminal penalty.
[T.D. 7001, 34 FR 1006, Jan. 23, 1969]
§ 31.6682–1 False information with respect to withholding.
(a) Civil penalty. If any individual
makes a statement under section 3402
(relating to income tax collected at
source) which results in a lesser
amount of income tax actually deducted and withheld than is properly
allowable under section 3402 and, at the
time the statement was made, there
was no reasonable basis for the statement, the individual shall pay a penalty of $500 for the statement. There
was a reasonable basis for a statement
of the number of exemptions an individual claimed on a Form W–4, if the
individual properly completed the
Form W–4 by taking into account only
allowable amounts for items which are
allowable and by computing the number of exemptions in accordance with
the instructions on the Form W–4. This
penalty is in addition to any criminal
penalty provided by law. This penalty
may be assessed at any time after the
statement is made, until the expiration
of the applicable statute of limitations.
(b) Deficiency procedures not to apply.
The civil penalty imposed by section
6682 may be assessed and collected
without regard to the deficiency procedures provided by Subchapter B of
Chapter 63 of the Code.
[T.D. 7963, 49 FR 28706, July 16, 1984]
§ 31.7805–1 Promulgation of regulations.
In pursuance of section 7805 of the Internal Revenue Code of 1954, the foregoing regulations are hereby prescribed. (See § 31.0–3 of subpart A of the
regulations in this part relating to the
scope of the regulations.)
PART 32—TEMPORARY EMPLOYMENT TAX REGULATIONS UNDER
THE ACT OF DECEMBER 29, 1981
(PUB. L. 97–123)
Sec.
32.1 Social security taxes with respect to
payments on account of sickness or accident disability.
32.2 Railroad retirement taxes with respect
to payments on account of sickness or
accident disability.
AUTHORITY: 95 Stat. 1662 and 1663, 26 U.S.C.
3121(a) and 3231(e)(4); 68A Stat. 917, 26 U.S.C.
7805.
§ 32.1 Social security taxes with respect to payments on account of
sickness or accident disability.
(a) General rule. Notwithstanding the
provisions of § 31.3121(a)(2)¥1(a)(2), the
amount of any payment on or after
January 1, 1982, made to, or on behalf
of, an employee or any of his dependents on account of sickness or accident
disability is not excluded from the
term ‘‘wages’’ as defined in section
3121(a)(2)(B) unless such payment is—
(1) Received under a workmen’s compensation law, or
(2) Made by a third party pursuant to
a contractual agreement between the
employer and third party entered into
prior to December 14, 1981, but then
only if—
(i) The third party’s coverage for
that employee’s group ceases prior to
March 1, 1982,
(ii) No third party payment is made
to such employee under that contract
after February 28, 1982, and
(iii) The cessation of the third party’s coverage for that employee’s group
indefinitely terminates the contractual
relationship between the third party
and the employer as to sickness and accident disability benefits for that employee’s group.
See
section
3121(a)(4)
and
§ 31.3121(a)(4)¥1 for the exclusion from
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| File Type | application/pdf |
| File Title | Document |
| Subject | Extracted Pages |
| Author | U.S. Government Printing Office |
| File Modified | 2006-09-12 |
| File Created | 2006-09-12 |