20 CFR 404.1053(d)(2)
Hill v. Califano, 1A U.I.R. ¶ 15369 (Ga., 6-8-77)
OWENS, District Judge:
The sole question in this appeal from the denial of social security benefits is whether the claimant's receipt of income during the years 1971 to 1974 constitutes "net earnings from self-employment" derived from a "trade or business" under 42 U.S.C.A. § 411(a), thereby entitling her to quarters of coverage during those years so as to qualify her under the special earnings requirements of the Act applicable to disability claims or whether instead whatever income she received was excludable "rentals from real estate." 42 U.S.C.A. § 411(a)(1).
While working full-time as a packing clerk at the Anniston, Alabama, packing depot for most of the relevant time period, the plaintiff took care of one heart patient in her five room trailer home; she also cared for patients, she testified, during 1966 to 1968. Her heart patient described their arrangement as follows:
In January 1975, claimant represented to the Social Security Administration, in connection with her application, that she had cared for several patients, and described her activities as follows:
However, "semi-invalid" her one patient in 1971 to 1974 was, and whatever his condition was because of his coronary problems, he most definitely was not bed-ridden: he often ate meals at the Army depot club and frequently asked the plaintiff to drive him places, including a swimming pool. Although the plaintiff testified that she worked, on the average, four to five hours every day taking care of the patient, the evidence does not indicate that she did much more for him than cook and perhaps change linens.
Significantly, the plaintiff did not consider herself "self-employed" contemporaneously with the rendering of what she now contends are "services": she paid social security self-employment tax for the years 1971, 1972, and 1973 only by amendment in September 1974. Similarly, on her applications for the benefits she disclaimed that she had been self-employed.
The statute provides that
The Social Security regulations defining what constitutes excludable "rental income" provide in pertinent part:
20 C.F.R. § 404.1053(d)(2).
Neither the regulation, with its references to "hotels, boarding houses, or apartment houses," nor any of the generally reported cases dealing with this issue appear to contemplate the situation presented here: occupancy of a residence more or less in common by the claimant and another in connection with which the claimant provides minimal services beyond maintenance and the furnishing of normal utilities such as light and heat. The cases have uniformly dealt with a claimant whose income has been derived from the rental of several separate apartments in the real property in which the claimant also lives, Conklin v. Celebrezze, 319 F.2d 569 (7th Cir. 1963), or the ownership and management of an apartment building or complex. Delno v. Celebrezze, 347 F.2d 159 (9th Cir. 1975); Hudson v. Celebrezze, 220 F.Supp. 738 (E.D. N.C. 1963); Thorbus v. Hobby, 124 F.Supp. 868 (S.D. Cal. 1954), aff's sub nom., Folsom v. Foteet, 235 F.2d 937 (9th Cir. 1956). See also Maloney v. Celebrezze, 337 F.2d 231 (3d Cir. 1964) (management of office building); Braaksma v. Celebrezze, 246 F.Supp. 767 (S.D. Cal. 1965) (building and renting of houses). Moreover, in each of the cases in which it has been found that a claimant's rental income was not excludable because it arose from the conduct of a "trade or business," the claimant's activities in connection with the rental income fell within the test enunciated by McDowell v. Ribicoff, 292 F.2d 174, 178 (2d Cir.), cert. denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 135 (1961):
Thus, in Conklin, supra, Thorbus, supra, and Delno, supra, each of the landlord/claimants provided substantial services, above and beyond normal maintenance and repair functions normally associated with ownership and leasing of property, to a number of tenants on a continuing basis. The thread running through each case is well stated in Thorbus, supra, 124 F.Supp. at 871 (emphasis original):
In contrast to those cases, the claimant here rented only one room to one tenant in connection with which she performed relatively light services on a casual basis: somewhat irregular cooking, occasional cleaning and changing linens, and perhaps some nursing assistance such as assistance in bathing and checking medication. Whether characterized as "nursing" or "maid" services in connection with the renting of the room, these activities are not the "extensive activity over a substantial period of time" which amounts to a "trade or business." To be sure, the tenant here being somewhat incapacitated may have required special assistance from the plaintiff; nevertheless, the help he received, in substance was only slightly more than that which one person might ordinarily render to another who is living in the same residence. In short, it cannot be concluded here that the plaintiff "worked at" her trailer so as to lead to the conclusion that she was engaged in a "trade or business;" her income was derived from her property, not her labor, and as such does not constitute self-employment income under 42 U.S.C.A. § 411. Cf. Delno v. Celebrezze, 347 F.2d 159, 161, § n.2 (9th Cir. 1965).
The Secretary's decision is supported by substantial evidence, is correct as a matter of law, and is, therefore, affirmed.
 A Claimant is not necessarily bound by previous declarations of liability for social security tax which are inconsistent with the position taken when benefits are applied for. See Rasmussen v. Gardner, 374 F.2d 589 (10th Cir. 1967). Nevertheless, the court considers such information relevant in considering all the facts and circumstances on which a decision as to whether a claimant has been engaged in a trade or business is based.
 Although the plaintiff testified that she spent four to five hours each day rendering services to her patient, the record considered as a whole supports the factual conclusion that the services she supplied were as described in the text.
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