[Code of Federal Regulations]
[Title 26, Volume 12]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.1402(c)-2]

[Page 30-31]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.1402(c)-2  Public office.

    (a) In general--(1) General rule. Except as otherwise provided in 
subparagraph

[[Page 31]]

(2) of this paragraph, the performance of the functions of a public 
office does not constitute a trade or business.
    (2) Fee basis public officials--(i) In general. If an individual 
receives fees after 1967 for the performance of the functions of a 
public office of a State or a political subdivision thereof for which he 
is compensated solely on a fee basis, and if the service performed in 
such office is eligible for (but is not made the subject of) an 
agreement between the State and the Secretary of Health, Education, and 
Welfare pursuant to section 218 of the Social Security Act to extend 
social security coverage thereto, the service for which such fees are 
received constitutes a trade or business within the meaning of section 
1402(c) and Sec. 1.1402(c)-1. If an individual performs service for a 
State or a political subdivision thereof in any period in more than one 
position, each position is treated separately for purposes of the 
preceding sentence. See also paragraph (f) of Sec. 1.1402(c)-3 relating 
to the performance of service by an individual as an employee of a State 
or a political subdivision thereof in a position compensated solely on a 
fee basis.
    (ii) Election with respect to fees received in 1968. (A) Any 
individual who in 1968 receives fees for service performed by him with 
respect to the functions of a public office of a State or a political 
subdivision thereof in any period in which the functions are performed 
in a position compensated solely on a fee basis may elect, if the 
performance of the service for which such fees are received constitutes 
a trade or business pursuant to the provisions of subdivision (i) of 
this subparagraph, to have such performance of service treated as 
excluded from the term ``trade or business'' for the purpose of the tax 
on self-employment income, pursuant to the provisions of section 
122(c)(2) of the Social Security Amendments of 1967 (as quoted in Sec. 
1.1402(c)). Such election shall not be limited to service to which the 
fees received in 1968 are attributable but must also be applicable to 
service (if any) in subsequent years which, except for the election, 
would constitute a trade or business pursuant to the provisions of 
subdivision (i) of this subparagraph. An election made pursuant to the 
provisions of this subparagraph is irrevocable.
    (B) The election referred to in subdivision (ii)(A) of this 
subparagraph shall be made by filing a certificate of election of 
exemption (Form 4415) on or before the due date of the income tax return 
(see section 6072), including any extension thereof (see section 6081), 
for the taxable year of the individual making the election which begins 
in 1968. The certificate of election of exemption shall be filed with an 
internal revenue office in accordance with the instructions on the 
certificate.
    (b) Meaning of public office. The term ``public office'' includes 
any elective or appointive office of the United States or any possession 
thereof, of the District of Columbia, of a State or its political 
subdivisions, or a wholly-owned instrumentality of any one or more of 
the foregoing. For example, the President, the Vice President, a 
governor, a mayor, the Secretary of State, a member of Congress, a State 
representative, a county commissioner, a judge, a justice of the peace, 
a county or city attorney, a marshal, a sheriff, a constable, a 
registrar of deeds, or a notary public performs the functions of a 
public office. (However, the service of a notary public could not be 
made the subject of a section 218 agreement under the Social Security 
Act because notaries are not ``employees'' within the meaning of that 
section. Accordingly, such service does not constitute a trade or 
business.)

[T.D. 7333, 39 FR 44448, Dec. 24, 1974, as amended by T.D. 7372, 40 FR 
30945, July 24, 1975]