James E. Anderson and Cheryl J. Latos - Page 34

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          whether or not made from the proceeds of the catch, that is fixed           
          in amount or calculated on an hourly or minimum basis or other              
          manner unrelated to the amount of the catch.                                
               Section 31.3121(b)(20)-1(a)(2), Employment Tax Regs.,                  
          provides the following example of remuneration determined                   
          “partially or fully” by a factor not dependent on the size of the           
          catch:                                                                      
                 For example, if a boat is operated under a                           
                 remuneration arrangement, e.g., a collective                         
                 agreement which specifies that crew members, in                      
                 addition to receiving a share of the catch, are                      
                 entitled to an hourly wage for repairing nets,                       
                 regardless of whether this wage is actually paid,                    
                 then all crew members covered by the arrangement are                 
                 entitled to receive cash remuneration other than a                   
                 share of the catch and their services are not                        
                 excepted from employment by section 3121(b)(20).                     
                 [Emphasis added.]                                                    
               The preamble to the regulation states:                                 
                 In order for a crewman to be considered self-employed                
                 * * * The crew member must receive in payment for his                
                 services a fixed share * * * of the proceeds from the                
                 sale of the catch and he must be entitled to no other                
                 cash or property independent of the size of the                      
                 catch; * * * The amount of the crew member’s share                   
                 must depend solely on the amount of the boat’s catch,                
                 and therefore the amount of the share cannot be fixed                
                 at any minimum (in dollars or weight) * * *.                         
                           *    *    *    *    *    *    *                            
                 The regulation explicitly states that a crewman’s                    
                 share is not dependent solely on the amount of the                   
                 boat’s catch if the crewman is entitled under any                    
                 individual or collective agreement to any fee, hourly                
                 wage, minimum for services, or any other amount                      
                 unrelated to the size of the catch.  * * * [45 Fed.                  
                 Reg. 57122 (Aug. 27, 1980).]                                         






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