§ 3401. Definitions
(a)
Wages
For purposes of this chapter, the term “wages” means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash; except that such term shall not include remuneration paid—
(1)
for active service performed in a month for which such employee is entitled to the benefits of section
112 (relating to certain combat zone compensation of members of the Armed Forces of the United States) to the extent remuneration for such service is excludable from gross income under such section; or
(2)
for agricultural labor (as defined in section
3121
(g)) unless the remuneration paid for such labor is wages (as defined in section
3121
(a)); or
(3)
for domestic service in a private home, local college club, or local chapter of a college fraternity or sorority; or
(4)
for service not in the course of the employer’s trade or business performed in any calendar quarter by an employee, unless the cash remuneration paid for such service is $50 or more and such service is performed by an individual who is regularly employed by such employer to perform such service. For purposes of this paragraph, an individual shall be deemed to be regularly employed by an employer during a calendar quarter only if—
(5)
for services by a citizen or resident of the United States for a foreign government or an international organization; or
(6)
for such services, performed by a nonresident alien individual, as may be designated by regulations prescribed by the Secretary; or
(8)
(A)
for services for an employer (other than the United States or any agency thereof)—
(i)
performed by a citizen of the United States if, at the time of the payment of such remuneration, it is reasonable to believe that such remuneration will be excluded from gross income under section
911; or
(B)
for services for an employer (other than the United States or any agency thereof) performed by a citizen of the United States within a possession of the United States (other than Puerto Rico), if it is reasonable to believe that at least 80 percent of the remuneration to be paid to the employee by such employer during the calendar year will be for such services; or
(9)
for services performed by a duly ordained, commissioned, or licensed minister of a church in the exercise of his ministry or by a member of a religious order in the exercise of duties required by such order; or
(10)
(A)
for services performed by an individual under the age of 18 in the delivery or distribution of newspapers or shopping news, not including delivery or distribution to any point for subsequent delivery or distribution; or
(B)
for services performed by an individual in, and at the time of, the sale of newspapers or magazines to ultimate consumers, under an arrangement under which the newspapers or magazines are to be sold by him at a fixed price, his compensation being based on the retention of the excess of such price over the amount at which the newspapers or magazines are charged to him, whether or not he is guaranteed a minimum amount of compensation for such services, or is entitled to be credited with the unsold newspapers or magazines turned back; or
(11)
for services not in the course of the employer’s trade or business, to the extent paid in any medium other than cash; or
(12)
to, or on behalf of, an employee or his beneficiary—
(A)
from or to a trust described in section
401
(a) which is exempt from tax under section
501
(a) at the time of such payment unless such payment is made to an employee of the trust as remuneration for services rendered as such employee and not as a beneficiary of the trust; or
(B)
under or to an annuity plan which, at the time of such payment, is a plan described in section
403
(a); or
(13)
pursuant to any provision of law other than section 5(c) or 6(1) of the Peace Corps Act, for service performed as a volunteer or volunteer leader within the meaning of such Act; or
(15)
to or on behalf of an employee if (and to the extent that) at the time of the payment of such remuneration it is reasonable to believe that a corresponding deduction is allowable under section
217 (determined without regard to section
274
(n)); or
(16)
(B)
as cash tips to an employee in any calendar month in the course of his employment by an employer unless the amount of such cash tips is $20 or more; [2]
(18)
for any payment made, or benefit furnished, to or for the benefit of an employee if at the time of such payment or such furnishing it is reasonable to believe that the employee will be able to exclude such payment or benefit from income under section
127,
129,
134
(b)(4), or
134
(b)(5); [2]
(19)
for any benefit provided to or on behalf of an employee if at the time such benefit is provided it is reasonable to believe that the employee will be able to exclude such benefit from income under section
74
(c),
108
(f)(4),
117, or
132; [2]
(20)
for any medical care reimbursement made to or for the benefit of an employee under a self-insured medical reimbursement plan (within the meaning of section
105
(h)(6)); [2]
(21)
for any payment made to or for the benefit of an employee if at the time of such payment it is reasonable to believe that the employee will be able to exclude such payment from income under section
106
(b); [2]
(22)
any payment made to or for the benefit of an employee if at the time of such payment it is reasonable to believe that the employee will be able to exclude such payment from income under section
106
(d); or
(23)
for any benefit or payment which is excludable from the gross income of the employee under section
139B
(b).
The term “wages” includes any amount includible in gross income of an employee under section
409A and payment of such amount shall be treated as having been made in the taxable year in which the amount is so includible.
(b)
Payroll period
For purposes of this chapter, the term “payroll period” means a period for which a payment of wages is ordinarily made to the employee by his employer, and the term “miscellaneous payroll period” means a payroll period other than a daily, weekly, biweekly, semimonthly, monthly, quarterly, semiannual or annual payroll period.
(c)
Employee
For purposes of this chapter, the term “employee” includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term “employee” also includes an officer of a corporation.
(d)
Employer
For purposes of this chapter, the term “employer” means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person, except that—
(e)
Number of withholding exemptions claimed
For purposes of this chapter, the term “number of withholding exemptions claimed” means the number of withholding exemptions claimed in a withholding exemption certificate in effect under section
3402
(f), or in effect under the corresponding section of prior law, except that if no such certificate is in effect, the number of withholding exemptions claimed shall be considered to be zero.
(f)
Tips
For purposes of subsection (a), the term “wages” includes tips received by an employee in the course of his employment. Such wages shall be deemed to be paid at the time a written statement including such tips is furnished to the employer pursuant to section
6053
(a) or (if no statement including such tips is so furnished) at the time received.
(h)
Differential wage payments to active duty members of the uniformed services
(1)
In general
For purposes of subsection (a), any differential wage payment shall be treated as a payment of wages by the employer to the employee.
(2)
Differential wage payment
For purposes of paragraph (1), the term “differential wage payment” means any payment which—
[1] So in original. The comma probably should be a semicolon.
[2] So in original. Probably should be followed by “or”.