SSR 72-57: SECTION 209(g)(2) and 214(a) (42 U.S.C. 409(g)(2) and 414(a)). -- WAGES -- DOMESTIC SERVICE -- IDENTITY OF EMPLOYER -- INSURED STATUS

20 CFR 404.101, 404.103, and 404.1027(j) and (1)

SSR 72-57

Where worker, employed in private household from 1963-1970, was paid in cash a sum amounting to at least $52 per calendar quarter but individual who hired worker, supervised her activities, and paid for her services failed to make wage reports, subsequently contending that since there were two members of the household and each contributed one-half of the worker's quarterly earnings (thus reducing the share of each to less than minimum reportable amount of $50 in cash each calendar quarter from one employer) no report of wages was required, held, (1) head of household, as employer, is responsible for reporting total "wages" paid to worker and for payment of tax incidental thereto; moreover, this obligation exists regardless of fact that other members of household may have contributed some portion of such wages; (2) worker is fully insured for retirement insurance benefits for which she filed application.

R, the worker, born in February 1904, filed application for retirement insurance benefits in December 1970. Based on her date of birth, 15 "quarters of coverage" (as defined in section 213(a) of Social Security Act) were required for her to become fully insured for benefit purposes. Since R's earnings record disclosed that she had no calendar quarters of coverage, her application for benefits was denied. R then appealed this determination, contending that during the period 1963 through 1970 she had been employed in the X household for wages of $1 per hour and that these wages had amounted to not less than $50 in cash per calendar quarter from one employer for the years in question. The household consisted of the owner, X, and her adult son. R was required to perform the usual household duties of cleaning, laundry (including that of the son), and in the warmer months she also worked in the yard and garden. R had been engaged by Mrs. X to perform these services, was always paid by her, and was under her direct supervision.

In January 1971, Mrs. X executed a statement that for the years 1963 through 1970 she had, by herself, paid R not less than $52 per quarter. None of the wages had been reported as she was unaware she had to report them. This statement was later retracted and Mrs. X alleged that she paid R approximately $26 per quarter and that her son paid the other $26 per quarter.

The primary issue is whether R may be credited with not less than $50 cash remuneration as an employee performing domestic services in the private home of her employer for, at least, the 15 calendar quarters required for her to have a fully insured status so as to become entitled to retirement insurance benefits. First it will be necessary to establish the identity of the employer, i.e., whether each individual member of the household was an employer or whether the employer-employee relationship existed only between X and R.

Section 202(a) of the Act provides, in pertinent part, that every individual who is a fully insured individual (as defined in section 214(a) of the Act), has attained age 62, and has filed application for old-age insurance benefits shall be entitled to them.

Section 209(g) of the Act states, in part, that the term "wages" shall not include: "(2) Cash remuneration paid by an employer in any calendar quarter to an employee for domestic service in a private home of the employer, if the cash remuneration paid in such quarter by the employer to the employee for such service is less than $50 * * *."

Section 214(a) of the Act provides, in part, that the term "fully insured individual" means any individual who has not less than one quarter of coverage, whenever acquired, for each calendar year elapsing after 1950 and before the year in which he attained the age of 65 or, in the case of a woman, attained age 62.

It is clear from the evidence that R did in fact receive at least $52 in cash per quarter from 1963 through 1970 for services performed in the X household and on the surrounding grounds. All of the work done at the same location and under the immediate direction and supervision of Mrs. X, who also paid the wages at all times. Further, the house and the surrounding grounds wee owned by Mrs. X, and the household was occupied and operated as a single housekeeping unit. Therefore, it is reasonable to conclude that she was the employer under the usual common-law rules and that she paid for R's services out of her own resources, as evidenced by her unequivocal statement to that effect in January 1971. The ultimate source of such resources under these circumstances is immaterial. Mrs. X, as the employer, is responsible for properly reporting such wages and for payment of the social security contributions incidental thereto.

Accordingly, it is held that on the basis of the "wages" paid her by Mrs. X, her employer, the worker, R, acquired a fully insured status and is entitled to the retirement benefits for which she applied.

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