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cook. The Commissioner ruled that the 6 crew members are self-
employed under section 3121(b)(20) because they do not receive
any cash remuneration other than a share of the proceeds from the
sale of the catch after subtraction of operating expenses, their
share depends on the amount of the catch, and the operating crew
of the boat normally consists of fewer than 10 individuals. The
Commissioner also ruled that the mate, the cook, and the engineer
were employees under section 3121(b)(20) because the $25 flat fee
compensation for services they performed at sea did “not depend
on the amount of the boat’s catch of fish”.
e. Section 31.3121(b)(20)-1(a), Employment Tax Regs.
In 1980, the Commissioner promulgated section
31.3121(b)(20)-1(a), Employment Tax Regs., which purports to
paraphrase section 3121(b)(20) and provides that if a crew
member’s share “depends solely on the amount of the boat’s * * *
catch of fish” (emphasis added), he qualifies for self-employment
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