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crew members are not employees if they receive cash payments that
do not exceed $100 per trip, are contingent on a minimum catch,
and are paid solely for additional duties (e.g., as mate,
engineer, or cook) for which additional cash remuneration is
traditional in the industry. In so providing, section
3121(b)(20)(A) also invalidated the part of Rev. Rul. 77-102,
1977-1 C.B. 299, that ruled that the receipt of a per would
disqualify a crew member from self-employment status.
2. Interpretation of the Requirement That Crew Members Receive a
Share of the “Proceeds” From the Sale of the Catch That
“Depends on the Amount” of the Catch
The language of the statute and that of the corresponding
regulation defining the requirements for self-employment status
are not identical. Section 3121(b)(20) classifies a fishing boat
worker as self-employed if the amount of the worker’s share of
proceeds “depends on the amount of the boat’s * * * catch of
fish”. (Emphasis added.) Section 31.3121(b)(20)-1(a)(1),
Employment Tax Regs., classifies a fishing boat worker as self-
employed if the amount of the worker’s share of proceeds “depends
solely on the amount of the boat’s * * * catch of fish”.
(Emphasis added.) Under section 31.3121(b)(20)-1(a)(2),
Employment Tax Regs., the provision that the amount of the share
“[depend] solely” on the amount of the catch is not satisfied if
the fishing boat worker’s remuneration is determined “partially
or fully” by a factor not dependent on the size of the catch.
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