Gregg R. and Teresa M. Gilbert - Page 15

                                       - 14 -                                         
          subject to self-employment tax because the payments retain the              
          character of the renewal commissions they replaced.                         
               Congress, in section 1402(k), codified the standard                    
          established in Jackson with respect to termination payments made            
          after December 31, 1997, to an “insurance salesman”.  Taxpayer              
          Relief Act of 1997, Pub. L. 105-34, sec. 922(a), 111 Stat. 879.             
          As previously stated, section 1402(k) exempts insurance salesman            
          termination payments from self-employment tax if, among other               
          things, the amount of the payments “does not depend to any extent           
          on length of service or overall earnings from services performed            
          for such company (without regard to whether eligibility for                 
          payment depends on length of service).”  Sec. 1402(k)(4)(B).  The           
          legislative history of section 1402(k) makes it clear that the              
          provision was intended to codify existing law.4                             
               The facts, as discussed below, of the present case support             
          the conclusion that the present renewal commission payments                 
          should be subject to self-employment tax because the payments are           
          “tied to the quantity [and] quality of the taxpayer’s prior                 


          4After citing Jackson v. Commissioner, 108 T.C. 130 (1997),                 
          Gump v. United States, 86 F.3d 1126 (Fed. Cir. 1996), and                   
          Milligan v. Commissioner, 38 F.3d 1094 (9th Cir. 1994), revg.               
          T.C. Memo. 1992-655, the conference committee report states:                
          “The House bill codifies case law by providing that net earnings            
          from self-employment do not include any amount received during              
          the taxable year from an insurance company on account of services           
          performed by such individual as an insurance salesman for such              
          company”.  H. Conf. Rept. 105-220, at 458 (1997), 1997-4 C.B.               
          (Vol. 2) 1457, 1927-1929.                                                   




Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011