[Code of Federal Regulations]
[Title 26, Volume 15]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR31.3121(k)-3]

[Page 83-87]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 31_EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE--Table of Contents
 
  Subpart B_Federal Insurance Contributions Act (Chapter 21, Internal 
                          Revenue Code of 1954)
 
Sec. 31.3121(k)-3  Request for coverage of individual employed by 
exempt organization before August 1, 1956.

    (a) Application of this section. This section is applicable to 
requests made after July 31, 1956, and before September 14, 1960, under 
section 403 of the Social Security Amendments of 1954, as amended, 
except that nothing in this section shall render invalid any act 
performed pursuant to, and in accordance with, Revenue Ruling 57-11, 
Cumulative Bulletin 1957-1, page 344, or Revenue Ruling 58-514, 
Cumulative Bulletin 1958-2, page 733. (For regulations relating to 
requests made before August 1, 1956, under section 403 of the Social 
Security Amendments of 1954, see 26 CFR (1939) 408.216(c) and (d) 
(Regulations 128).)
    (b) Organization which did not have waiver certificate in effect--
(1) Coverage requested by employee before August 27, 1958. Pursuant to 
section 403(a) of the Social Security Amendments of 1954, as amended by 
section 401 of the Social Security Amendments of 1956, any individual 
who, as an employee, performed services after December 31, 1950, and 
before August 1, 1956, for an organization described in section 
501(c)(3) which was exempt from income tax under section 501(a), or 
which was exempt from income tax under section 101(6) of the Internal 
Revenue Code of 1939, but which failed to file, before August 1, 1956, a 
valid waiver certificate under section 3121(k), or under section 1426(l) 
of the Internal Revenue Code of 1939, may request after July 31, 1956, 
and before August 27, 1958, that such part of the remuneration received 
by him for services performed in the employ of the organization after 
1950 and before 1957 with respect to which employee and employer taxes 
were paid be deemed to constitute remuneration for employment, if:
    (i) Any of the services performed by the individual after December 
31, 1950, and before January 1, 1957, would have constituted employment 
if such a certificate on Form SS-15 filed by the organization had been 
in effect for the period during which the services were performed and 
the individual's signature had appeared on the accompanying list on Form 
SS-15a;
    (ii) The employee and employer taxes were paid with respect to any 
part of the remuneration received by the individual from the 
organization for such services;
    (iii) A part of such taxes was paid before August 1, 1956;
    (iv) Such taxes as were paid before August 1, 1956, were paid by the 
organization in good faith and upon the assumption that it had filed a 
valid certificate under section 3121(k), or under section 1426(l) of the 
Internal Revenue Code of 1939; and
    (v) No refund (or credit) of such taxes had been obtained by either 
the employee or the employer, exclusive of any refund (or credit) which 
would have been allowable if the services performed by the individual 
had constituted employment.
    (2) Coverage requested by employee after August 26, 1958, and before 
September 14, 1960. Requests may be made after August 26, 1958, and 
before September 14, 1960, pursuant to section 403(a) of the Social 
Security Amendments of 1954, as amended by section 401 of the Social 
Security Amendments of 1956, by the Act of August 27, 1958 (Pub. L. 85-
785, 72 Stat. 938), and by section 105(b)(6) of the Social Security 
Amendments of 1960. Any individual who, as an employee, performed 
services after December 31, 1950, and before August 1, 1956, for an 
organization described in section 501(c)(3) which was exempt from income 
tax under section 501(a), or which was exempt from income tax under 
section 101(6) of the Internal Revenue Code of 1939, but which did not 
have in effect during the entire period in which the individual was so 
employed a valid waiver certificate under section 3121(k), or under 
section 1326(l) of the Internal Revenue Code of 1939, may request after 
August 26, 1958, and before September 14, 1960, that such part of the 
remuneration received by him for services performed in the employ of the 
organization after 1950 and before 1957 with respect to which employee 
and employer taxes were paid be deemed to constitute remuneration for 
employment, if:
    (i) Any of the services performed by the individual after December 
31, 1950, and before January 1, 1957, would have

[[Page 84]]

constituted employment if such a certificate on Form SS-15 filed by the 
organization had been in effect for the period during which the services 
were performed and the individual's signature had appeared on the 
accompanying list on Form SS-15a;
    (ii) The employee and employer taxes were paid with respect to any 
part of the remuneration received by the individual from the 
organization for such services performed during the period in which the 
organization did not have a valid waiver certificate in effect;
    (iii) A part of such taxes was paid before August 1, 1956;
    (iv) Such taxes as were paid before August 1, 1956, were paid by the 
organization in good faith, and either without knowledge that a waiver 
certificate was necessary or upon the assumption that it had filed a 
valid certificate under section 3121(k), or under section 1426(l) of the 
Internal Revenue Code of 1939; and
    (v) No refund (or credit) of such taxes has been obtained by either 
the employee or the employer, exclusive of any refund (or credit) which 
would be allowable if the services performed by the individual had 
constituted employment.
    (3) Execution and filing of request. (i) Except where the 
alternative procedure set forth in paragraph (b)(3)(ii) of this section 
is followed, the request of an individual under section 403(a) of the 
Social Security Amendments of 1954, as amended, is required to be made 
and filed as provided in this subdivision. The request shall be made in 
writing, be signed and dated by the individual, and include:
    (a) The name and address of the organization for which the services 
were performed;
    (b) The name, address, and social security account number of the 
individual;
    (c) A statement that the individual has not obtained refund or 
credit (other than a refund or credit which would have been allowable if 
the services had constituted employment) from the district director of 
any part of the employee tax paid with respect to remuneration received 
by him from the organization for services performed after 1950 and 
before 1957; and
    (d) A request that all remuneration received by him from the 
organization for such services with respect to which employee and 
employer taxes had been paid shall be deemed to constitute remuneration 
for employment to the extent authorized by section 403(a) of the Social 
Security Amendments of 1954, as amended.

The request of an individual shall be accompanied by a statement of the 
organization incorporating the substance of each of the five conditions 
listed in paragraph (b)(1) or (2), whichever is appropriate, of this 
section. The statement of the organization shall show also that the 
individual performed services for the organization after December 31, 
1950, and before August 1, 1956; that the organization was an 
organization described in section 501(c)(3) which was exempt from income 
tax under section 501(a) or was exempt from income tax under section 
101(6) of the Internal Revenue Code of 1939, and the district director 
with whom returns on Form 941 were filed. The organization's statement 
shall be signed by the president or other principal officer of the 
organization who shall certify that the statement is correct to the best 
of his knowledge and belief. If the statement of the organization is not 
submitted with the individual's request, the individual shall include in 
his request an explanation of his inability to submit the statement. 
Other information may be required, but should be submitted only upon 
receipt of a specific request therefore. No particular form is 
prescribed for the request of the individual or the statement of the 
organization required to be submitted with the request. The individual's 
request should be filed with the district director with whom the 
organization files returns on Form 941. If the individual is deceased or 
mentally incompetent and the request is made by the legal representative 
of the individual or other person authorized to act on his behalf, the 
request shall be accompanied by evidence showing such person's authority 
to make the request.
    (ii) An organization which has or had in its employ individuals with 
respect

[[Page 85]]

to whom section 403(a) of the Social Security Amendments of 1954, as 
amended, is applicable may, if it so desires, prepare a form or forms 
for use by any such individual or individuals in making requests under 
such section. Any such form shall provide space for the signature of the 
individual or individuals and contain such information as required to be 
included in a request (see paragraph (b)(3)(i) of this section). Any 
such form used by more than one individual, and any such form used by 
one individual which is signed and returned to the organization, shall 
be submitted by the organization, together with its statement (as 
required in paragraph (b)(3)(i) of this section), to the district 
director with whom the organization files its returns on Form 941. An 
individual is not required to use a form prepared by the organization 
but may, at his election, file his request in accordance with the 
provisions of paragraph (b)(3)(i) of this section.
    (4) Optional tax payments by organization. An organization which 
prior to August 1, 1956, reported and paid employee and employer taxes 
with respect to any portion of the remuneration paid to an individual, 
who is eligible to file a request under section 403(a) of the Social 
Security Amendments of 1954, as amended, for services performed by him 
after 1950 and before 1957, may report and pay such taxes before 
September 14, 1960, with respect to any remaining portion of such 
remuneration which would have constituted wages if a certificate had 
been in effect with respect to such services. Such taxes may be reported 
as an adjustment without interest in the manner prescribed in Subpart G 
of the regulations in this part.
    (5) Effect of request. If a request is made and filed under the 
conditions stated in this paragraph with respect to one or more 
individuals, remuneration for services performed by each such individual 
after 1950 and before 1957, with respect to which the employee and 
employer taxes are paid on or before the date on which the request was 
filed with the district director, will be deemed to constitute 
remuneration for employment to the extent that such services would have 
constituted employment as defined in section 3121(b), or in section 
1426(b) of the Internal Revenue Code of 1939, if a certificate had been 
in effect with respect to such services. However, the provisions of 
section 3121(a) and Sec. Sec. 31.3121(a)-1 to 31.3121(a)(10)-1, 
inclusive, of the regulations in this part or the provisions of section 
1426(a) of the Internal Revenue Code of 1939 and the regulations in 26 
CFR (1939) 408.226 and 408.227 (Regulations 128), as the case may be, 
are applicable in determining the extent to which such remuneration for 
employment constitutes wages for purposes of the employee and employer 
taxes.
    (c) Individual who failed to sign list of concurring employees--(1) 
In general. Pursuant to section 403(b) of the Social Security Amendments 
of 1954, as amended, any individual who, as an employee, performed 
services after December 31, 1950, and before August 1, 1956, for an 
organization which filed a valid certificate under section 3121(k), or 
under section 1426(l) of the Internal Revenue Code of 1939, but who 
failed to sign the list of employees concurring in the filing of such 
certificate, may request on or before January 1, 1959, that the 
remuneration received by him for such services be deemed to constitute 
remuneration for employment, if:
    (i) Any of the services performed by the individual after December 
31, 1950, and before August 1, 1956, would have constituted employment 
if the signature of such individual had appeared on the list of 
employees who concurred in the filing of the certificate;
    (ii) The employee and employer taxes were paid before August 1, 
1956, with respect to any part of the remuneration received by the 
individual from the organization for such services; and
    (iii) No refund (or credit) of such taxes has been obtained either 
by the employee or the employer, exclusive of any refund (or credit) 
which would be allowable if the services performed by the individual had 
constituted employment.
    (2) Execution and filing of request. (i) Except where the 
alternative procedure set forth in subdivision (ii) of this subparagraph 
is followed, the request of an individual under section 403(b) of the 
Social Security Amendments of 1954, as amended, shall be made and filed 
as

[[Page 86]]

provided in this subdivision. The request shall be filed on or before 
January 1, 1959, be made in writing, be signed and dated by the 
individual, and include:
    (a) The name and address of the organization for which the services 
were performed;
    (b) The name, address, and social security account number of the 
individual;
    (c) A statement that the individual has not obtained a refund or 
credit (other than a refund or credit which would be allowable if the 
services had constituted employment) from the district director of any 
part of the employee tax paid before August 1, 1956, with respect to 
remuneration received by him from the organization;
    (d) A request that all remuneration received by the individual from 
the organization for services performed after 1950 and before August 1, 
1956, with respect to which employee and employer taxes were paid before 
August 1, 1956, shall be deemed to constitute remuneration for 
employment to the extent authorized by section 403(b) of the Social 
Security Amendments of 1954, as amended; and
    (e) A statement that the individual understands that, upon the 
filing of such request with the district director, (1) he will be deemed 
to have concurred in the certificate which was previously filed by the 
organization, and (2) the employee and employer taxes will be applicable 
to all wages received, and to be received, by him for services performed 
for the organization on or after the effective date of such certificate 
to the extent that such taxes would have been applicable if he had 
signed the list on Form SS-15a submitted with the certificate.

The request of an individual shall be accompanied by a statement of the 
organization incorporating the substance of each of the three conditions 
listed in paragraph (c)(1) of this section. The statement of the 
organization should also show that the individual performed services for 
the organization after December 31, 1950, and before August 1, 1956; 
that the organization filed a valid certificate under section 3121(k), 
or under section 1426(l) of the Internal Revenue Code of 1939; and the 
district director with whom returns on Form 941 are filed. Such 
statement shall be signed by the president or other principal officer of 
the organization who shall certify that the statement is correct to the 
best of his knowledge and belief. If the statement of the organization 
is not submitted with the individual's request, the individual shall 
include in his request an explanation of his inability to submit such 
statement. Other information may be required, but should be submitted 
only upon receipt of a specific request therefor. No particular form is 
prescribed for the request of the individual or the statement of the 
organization required to be submitted with the request. The individual's 
request should be filed with the district director with whom the 
organization files returns on Form 941. If the individual is deceased or 
mentally incompetent and the request is made by the legal representative 
of the individual or other person authorized to act on his behalf, the 
request shall be accompanied by evidence showing such persons' authority 
to make the request.
    (ii) An organization which has or had in its employ individuals with 
respect to whom section 403(b) of the Social Security Amendments of 
1954, as amended, is applicable, may, if it so desires, prepare a form 
or forms for use by any such individual or individuals in making 
requests under such section. Any such form shall provide space for the 
signature of the individual or individuals and contain such information 
as is required by paragraph (c)(1)(i) of this section to be included in 
a request. Any such form used by more than one individual, and any such 
form used by one individual, and any such form used by one individual 
which is signed and returned to the organization, shall be submitted by 
the organization, together with its statement (as required in paragraph 
(c)(1)(i) of this section), to the district director with whom the 
organization files returns on Form 941. An individual is not required to 
use a form prepared by the organization but may, at his election, file 
his request in accordance with the provisions of subdivisions (i) of 
this subparagraph.
    (3) Effect of request. An individual who makes and files a request 
under the

[[Page 87]]

conditions stated in this paragraph with respect to services performed 
as an employee of an organization described in section 501(c)(3) which 
was exempt from income tax under section 501(a), or which was exempt 
from income tax under section 101(6) of the Internal Revenue Code of 
1939, will be deemed to have signed the list accompanying the 
certificate filed by the organization under section 3121(k), or under 
section 1426(l) of the Internal Revenue Code of 1939. Accordingly, all 
services performed by the individual for the organization on and after 
the effective date of the certificate will constitute employment to the 
same extent as if he had, in fact, signed the list. The employee tax and 
employer tax are applicable with respect to any remuneration paid to the 
employee by the organization which constitutes wages. If less than the 
correct amount of such taxes has been paid, the additional amount due 
should be reported as an adjustment without interest within the time 
specified in subpart G of the regulations in this part.

[T.D. 6744, 29 FR 8318, July 2, 1964]