26 U.S.C. § 6413: Special rules applicable to certain employment taxes

§ 301.6413-1 Special rules applicable to certain employment taxes.

Amended 1982, 1983

1983 Pub. L. 98-67 Pub. L. 98–67 repealed amendments made by Pub. L. 97–248. See 1982 Amendment note below.
1982 Pub. L. 97-248 Catchline and subsecs. (a)(1), (b), (c)(1). Pub. L. 97–248 provided that, applicable to payments of interest, dividends, and patronage dividends paid or credited after June 30, 1983, the section catchline is amended by substituting “taxes under subtitle C” for “employment taxes”; subsec. (a)(1) is amended by substituting “3402 or 3451 is paid with respect to any payment of remuneration, interest, dividends, or other amounts,” for “or 3402 is paid with respect to any payment of remuneration,”; subsec. (b) is amended by striking out “of certain employment taxes” from heading, and by substituting “3402 or 3451 is paid or deducted with respect to any payment of remuneration, interest, dividends, or other amount”; and subsec. (c)(1) is amended by substituting “section 31(c)” for “section 31(b)”. Section 102(a), (b) of Pub. L. 98–67, title I, Aug. 5, 1983, 97 Stat. 369, repealed subtitle A (§§ 301–308) of title III of Pub. L. 97–248 as of the close of June 30, 1983, and provided that the Internal Revenue Code of 1954 [now 1986] [this title] shall be applied and administered (subject to certain exceptions) as if such subtitle A (and the amendments made by such subtitle A) had not been enacted.

Cases: Hintz v. Commissioner, 712 F.2d 281 (7th Cir. 1983); Marshall v. Pollin Hotels II, LLC, 170 F. Supp. 3d 1290 (D. Or. 2016)

Forms: Form 843

Final rules 3

(a) Adjustment of tax

§ 31.6413(a)-1 Repayment or reimbursement by employer of tax erroneously collected from employee.§ 31.6413(a)-2 Adjustments of overpayments.§ 31.6413(a)-3 Repayment by payor of tax erroneously collected from payee.

Cited by 3

(1) General rule If more than the correct amount of tax imposed by section 3101, 3111, 3201, 3221, or 3402 is paid with respect to any payment of remuneration, proper adjustments, with respect to both the tax and the amount to be deducted, shall be made, without interest, in such manner and at such times as the Secretary may by regulations prescribe.

Amended 1976

1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

(2) United States as employer For purposes of this subsection, in the case of remuneration received from the United States or a wholly-owned instrumentality thereof during any calendar year, each head of a Federal agency or instrumentality who makes a return pursuant to section 3122 and each agent, designated by the head of a Federal agency or instrumentality, who makes a return pursuant to such section shall be deemed a separate employer.

(3) Guam or American Samoa as employer For purposes of this subsection, in the case of remuneration received during any calendar year from the Government of Guam, the Government of American Samoa, a political subdivision of either, or any instrumentality of any one or more of the foregoing which is wholly owned thereby, the Governor of Guam, the Governor of American Samoa, and each agent designated by either who makes a return pursuant to section 3125 shall be deemed a separate employer.

Amended 1960

1960 Pub. L. 86-778 Pub. L. 86–778, § 103(r)(2), added par. (3).

(4) District of Columbia as employer For purposes of this subsection, in the case of remuneration received during any calendar year from the District of Columbia or any instrumentality which is wholly owned thereby, the Mayor of the District of Columbia and each agent designated by him who makes a return pursuant to section 3125 shall be deemed a separate employer.

Amended 1965, 1976

1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(23)(A), substituted “Mayor of the District of Columbia and each agent designated by him” for “Commissioners of the District of Columbia and each agent designated by them”.
1965 Pub. L. 89-97 Pub. L. 89–97, § 317(e), added par. (4).

(5) States and political subdivisions as employer For purposes of this subsection, in the case of remuneration received from a State or any political subdivision thereof (or any instrumentality of any one or more of the foregoing which is wholly owned thereby) during any calendar year, each head of an agency or instrumentality, and each agent designated by either, who makes a return pursuant to section 3125 shall be deemed a separate employer.

Amended 1986

1986 Pub. L. 99-272 Pub. L. 99–272, § 13205(a)(2)(E)(i), added par. (5).

(b) Overpayments of certain employment taxes If more than the correct amount of tax imposed by section 3101, 3111, 3201, 3221, or 3402 is paid or deducted with respect to any payment of remuneration and the overpayment cannot be adjusted under subsection (a) of this section, the amount of the overpayment shall be refunded in such manner and at such times (subject to the statute of limitations properly applicable thereto) as the Secretary may by regulations prescribe.

§ 31.6413(b)-1 Overpayments of certain employment taxes.

Amended 1976

1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

Cases: Entenmann's Bakery, Inc. v. United States, 465 F. Supp. 1118 (E.D.N.Y 1979)

§ 31.6413(c)-1 Special refunds.

Amended 1968, 1976, 1990, 1993

1993 Pub. L. 103-66 Pub. L. 103–66, § 13207(d)(3), struck out heading and text of par. (3). Text read as follows: “In applying this subsection with respect to—
“(A) the tax imposed by section 3101(b) (or any amount equivalent to such tax), and
“(B) so much of the tax imposed by section 3201 as is determined at a rate not greater than the rate in effect under section 3101(b),
the applicable contribution base determined under section 3121(x)(2) for any calendar year shall be substituted for ‘contribution and benefit base (as determined under section 230 of the Social Security Act)’ each place it appears.”
1990 Pub. L. 101-508 Pub. L. 101–508 substituted heading for one which read: “Applicability with respect to compensation of employees subject to the Railroad Retirement Tax Act” and amended text generally. Prior to amendment, text read as follows: “In the case of any individual who, during any calendar year, receives wages from one or more employers and also receives compensation which is subject to the tax imposed by section 3201 or 3211, such compensation shall, solely for purposes of applying paragraph (1) with respect to the tax imposed by section 3101(b), be treated as wages received from an employer with respect to which the tax imposed by section 3101(b) was deducted.”
1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(23)(D), struck out “after 1967” after “calendar year”.
1968 Pub. L. 90-248 Pub. L. 90–248, § 502(a), added par. (3).

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(1) In general If by reason of an employee receiving wages from more than one employer during a calendar year the wages received by him during such year exceed 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 (subject to the provisions of section 31(b)) to a credit or refund of any amount of tax, with respect to such wages, imposed by section 3101(a) or section 3201(a) (to the extent of so much of the rate applicable under section 3201(a) as does not exceed the rate of tax in effect under section 3101(a)), or by both such sections, and deducted from the employee’s wages (whether or not paid to the Secretary), which exceeds the tax with respect to the amount of such wages received in such year which is equal to such contribution and benefit base. The term “wages” as used in this paragraph shall, for purposes of this paragraph, include “compensation” as defined in section 3231(e).

Amended 1954, 1958, 1965, 1968, 1971, 1972, 1973, 1974, 1976, 1993

1993 Pub. L. 103-66 Pub. L. 103–66, § 13207(d)(1), substituted “section 3101(a) or section 3201(a) (to the extent of so much of the rate applicable under section 3201(a) as does not exceed the rate of tax in effect under section 3101(a))” for “section 3101 or section 3201”.
1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(23)(B)(i), struck out “or his delegate” after “Secretary” and substituted general provision for entitlement to credit or refund of employment taxes deducted from an employee receiving wages from more than one employer during a calendar year and in excess of employment taxes with respect to amount of wages received in the calendar year equal to the contribution and benefit base determined under section 230 of the Social Security Act and effective with respect to such calendar year for prior specific provisions for such credit or refund of employment taxes deducted in excess of prescribed amount for base limits and applicable periods set forth below:
and amount equal to the contribution and benefit base determined under section 230 of the Social Security Act and effective with respect to calendar year after calendar year 1974, and thereafter.
1974 Pub. L. 93-445 Pub. L. 93–445 inserted “or section 3201, or by both such sections” after “section 3101” and inserted provision that for purposes of subsec. (c)(1) the term “wages” include compensation as defined in section 3231(e).
1973 Pub. L. 93-233 Pub. L. 93–233, § 5(b)(5), substituted “$13,200” for “$12,600” whenever appearing.
1973 Pub. L. 93-66 Pub. L. 93–66, § 203(b)(5), substituted “$12,600” for “$12,000” wherever appearing.
1972 Pub. L. 92-336 Pub. L. 92–336, § 203(b)(5), inserted “and prior to the calendar year 1973” after “after the calendar year 1971”, inserted provisions of cls. (F) to (H), and provisions relating to wages received after 1971 and before 1973, after 1972 and before 1974, after 1973 and before 1975, and the calendar year after 1974.
1971 Pub. L. 92-5 Pub. L. 92–5, § 203(b)(5), inserted “and prior to the calendar year 1972” after “after the calendar year 1967”, “or (E) during any calendar year after the calendar year 1971, the wages received by him during such year exceed $9,000,” after “exceed $7,800,” and inserted before the period at end of subpar. (1) “and before 1972, or which exceeds the tax with respect to the first $9,000 of such wages received in such calendar year after 1971”.
1968 Pub. L. 90-248 Pub. L. 90–248, § 108(b)(5), inserted “and prior to the calendar year 1968” after “the calendar year 1965”, “or (D) during any calendar year after the calendar year 1967, the wages received by him during such year exceed $7,800,” after “exceed $6,600,”, and “and before 1968, or which exceeds the tax with respect to the first $7,800 of such wages received in such calendar year after 1967”.
1965 Pub. L. 89-97 Pub. L. 89–97, § 320(b)(5), inserted “and prior to the calendar year 1966” after “the calendar year 1958”, “or (C) during any calendar year after the calendar year 1965, the wages received by him during such year exceed $6,600” after “exceed $4,800,”, and “and before 1966, or which exceeds the tax with respect to the first $6,600 of such wages received in such calendar year after 1965” before the period at end of par.
1958 Pub. L. 85-840 Pub. L. 85–840, § 402(d)(1), conformed the special-refund provisions to the increase made by Pub. L. 85–840, in the limitation on wages from $4,200 to $4,800 for calendar years after 1958.
1954 Act Sept. 1, 1954, § 202(a)(1), conformed the special-refund provisions to the increase made by said act Sept. 1, 1954, in the limitation on wages from $3,600 to $4,200 for calendar years after 1954.

Cited by 2

(2) Applicability in case of Federal and State employees, employees of certain foreign affiliates, and governmental employees in Guam, American Samoa, and the District of Columbia

Amended 1954, 1960, 1983

1983 Pub. L. 98-21 Pub. L. 98–21, § 321(e)(4)(B), substituted “foreign affiliates” for “foreign corporations” in heading.
1960 Pub. L. 86-778 Pub. L. 86–778, § 103(r) (3), (4), inserted governmental employees in Guam and American Samoa in heading, and added subpars. (D) and (E).
1954 Act Sept. 1, 1954, § 202(b)(1), inserted “and employees of certain foreign corporations” in heading.

(A) Federal employees In the case of remuneration received from the United States or a wholly-owned instrumentality thereof during any calendar year, each head of a Federal agency or instrumentality who makes a return pursuant to section 3122 and each agent, designated by the head of a Federal agency or instrumentality, who makes a return pursuant to such section shall, for purposes of this subsection, be deemed a separate employer; and the term “wages” includes for purposes of this subsection the amount, not to exceed an amount equal to the contribution and benefit base (as determined under section 230 of the Social Security Act) for any calendar year with respect to which such contribution and benefit base is effective, determined by each such head or agent as constituting wages paid to an employee.

Amended 1954, 1958, 1965, 1968, 1971, 1972, 1973, 1976

1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(23)(B)(ii), substituted “the amount, not to exceed an amount equal to the contribution and benefit base (as determined under section 230 of the Social Security Act) for any calendar year” for “the amount, not to exceed $3,600 for the calendar year 1951, 1952, 1953, or 1954, $4,200 for the calendar year 1955, 1956, 1957, or 1958, $4,800 for the calendar year 1959, 1960, 1961, 1962, 1963, 1964, or 1965, $6,600 for the calendar year 1966 or 1967, $7,800 for the calendar year 1968, 1969, 1970, or 1971, $9,000 for the calendar year 1972, $10,800 for the calendar year 1973, $13,200 for the calendar year 1974, or an amount equal to the contribution and benefit base (as determined under section 230 of the Social Security Act) for any calendar year after 1974” before “with respect to which such contribution and benefit base is effective”.
1973 Pub. L. 93-233 Pub. L. 93–233, § 5(b)(6), substituted “$13,200” for “$12,600”.
1973 Pub. L. 93-66 Pub. L. 93–66, § 203(b)(6), substituted “$12,600” for “$12,000”.
1972 Pub. L. 92-336 Pub. L. 92–336, § 203(b)(6), as amended by Pub. L. 92–603, § 144(c), eff. July 1, 1972, inserted provisions relating to amounts to be included within the term “wages” for the calendar years 1972, 1973, 1974, or any calendar year after 1974.
1971 Pub. L. 92-5 Pub. L. 92–5, § 203(b)(6), substituted “$7,800 for the calendar year 1968, 1969, 1970, or 1971, or $9,000 for any calendar year after 1971” for “or $7,800 for any calendar year after 1967”.
1968 Pub. L. 90-248 Pub. L. 90–248, § 108(b)(6), substituted “$6,600 for the calendar year 1966 or 1967, or $7,800 for any calendar year after 1967” for “or $6,600 for any calendar year after 1965”.
1965 Pub. L. 89-97 Pub. L. 89–97, § 320(b)(6), substituted “$4,800 for the calendar year 1959, 1960, 1961, 1962, 1963, 1964, or 1965, or $6,600 for any calendar year after 1965” for “or $4,800 for any calendar year after 1958”.
1958 Pub. L. 85-840 Pub. L. 85–840, § 402(d)(2), substituted “$4,200 for the calendar year 1955, 1956, 1957, or 1958, or $4,800 for any calendar year after 1958” for “$4,200 for any calendar year after 1954”.
1954 Act Sept. 1, 1954, § 202(b)(2), substituted “$3,600 for the calendar year 1951, 1952, 1953, or 1954, or $4,200 for any calendar year after 1954” for ‘$3,600”.

(B) State employees For purposes of this subsection, in the case of remuneration received during any calendar year, the term “wages” includes such remuneration for services covered by an agreement made pursuant to section 218 of the Social Security Act as would be wages if such services constituted employment; the term “employer” includes a State or any political subdivision thereof, or any instrumentality of any one or more of the foregoing; the term “tax” or “tax imposed by section 3101(a)” includes, in the case of services covered by an agreement made pursuant to section 218 of the Social Security Act, an amount equivalent to the tax which would be imposed by section 3101(a), if such services constituted employment as defined in section 3121; and the provisions of this subsection shall apply whether or not any amount deducted from the employee’s remuneration as a result of an agreement made pursuant to section 218 of the Social Security Act has been paid to the Secretary.

Amended 1993

1993 Pub. L. 103-66 Pub. L. 103–66, § 13207(d)(2), substituted “section 3101(a)” for “section 3101” wherever appearing.

(C) Employees of certain foreign affiliates For purposes of paragraph (1) of this subsection, the term “wages” includes such remuneration for services covered by an agreement made pursuant to section 3121(l) as would be wages if such services constituted employment; the term “employer” includes any American employer which has entered into an agreement pursuant to section 3121(l); the term “tax” or “tax imposed by section 3101(a),” includes, in the case of services covered by an agreement entered into pursuant to section 3121(l), an amount equivalent to the tax which would be imposed by section 3101(a), if such services constituted employment as defined in section 3121; and the provisions of paragraph (1) of this subsection shall apply whether or not any amount deducted from the employee’s remuneration as a result of the agreement entered into pursuant to section 3121(l) has been paid to the Secretary.

Amended 1954, 1976, 1983, 1993

1993 Pub. L. 103-66 Pub. L. 103–66, § 13207(d)(2), substituted “section 3101(a)” for “section 3101” wherever appearing.
1983 Pub. L. 98-21 Pub. L. 98–21, § 321(e)(4)(A), substituted “foreign affiliates” for “foreign corporations” in heading and, in text, substituted “American employer” for “domestic corporation”.
1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.
1954 Act Sept. 1, 1954, § 202(b)(3), added subpar. (C).

Cited by 2

(D) Governmental employees in Guam In the case of remuneration received from the Government of Guam or any political subdivision thereof or from any instrumentality of any one or more of the foregoing which is wholly owned thereby, during any calendar year, the Governor of Guam and each agent designated by him who makes a return pursuant to section 3125(b) shall, for purposes of this subsection, be deemed a separate employer.

Amended 1986

1986 Pub. L. 99-272 Pub. L. 99–272, § 13205(a)(2)(E)(ii)(I), substituted “3125(b)”, “3125(c)”, and “3125(d)” for “3125(a)”, “3125(b)”, and “3125(c)”, respectively, in subpars. (D), (E), and (F), respectively.

(E) Governmental employees in American Samoa In the case of remuneration received from the Government of American Samoa or any political subdivision thereof or from any instrumentality of any one or more of the foregoing which is wholly owned thereby, during any calendar year, the Governor of American Samoa and each agent designated by him who makes a return pursuant to section 3125(c) shall, for purposes of this subsection, be deemed a separate employer.

Amended 1986

1986 Pub. L. 99-272 Pub. L. 99–272, § 13205(a)(2)(E)(ii)(I), substituted “3125(b)”, “3125(c)”, and “3125(d)” for “3125(a)”, “3125(b)”, and “3125(c)”, respectively, in subpars. (D), (E), and (F), respectively.

(F) Governmental employees in the District of Columbia In the case of remuneration received from the District of Columbia or any instrumentality wholly owned thereby, during any calendar year, the Mayor of the District of Columbia and each agent designated by him who makes a return pursuant to section 3125(d) shall, for purposes of this subsection, be deemed a separate employer.

Amended 1965, 1976, 1986

1986 Pub. L. 99-272 Pub. L. 99–272, § 13205(a)(2)(E)(ii)(I), substituted “3125(b)”, “3125(c)”, and “3125(d)” for “3125(a)”, “3125(b)”, and “3125(c)”, respectively, in subpars. (D), (E), and (F), respectively.
1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(23)(C), substituted “Mayor of the District of Columbia and each agent designated by him” for “Commissioners of the District of Columbia and each agent designated by them”.
1965 Pub. L. 89-97 Pub. L. 89–97, § 317(f)(1), added subpar. (F) and inserted reference to the District of Columbia in heading.

(G) Employees of States and political subdivisions In the case of remuneration received from a State or any political subdivision thereof (or any instrumentality of any one or more of the foregoing which is wholly owned thereby) during any calendar year, each head of an agency or instrumentality, and each agent designated by either, who makes a return pursuant to section 3125(a) shall, for purposes of this subsection, be deemed a separate employer.

Amended 1986

1986 Pub. L. 99-272 Pub. L. 99–272, § 13205(a)(2)(E)(ii)(II), added subpar. (G).

(d) Refund or credit of Federal unemployment tax Any credit allowable under section 3302, to the extent not previously allowed, shall be considered an overpayment, but no interest shall be allowed or paid with respect to such overpayment.