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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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