United States v. Fior D'Italia, Inc., 536 U.S. 238, 7 (2002)

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Opinion of the Court

resses employed by restaurant); McQuatters v. Commissioner, 32 TCM 1122 (1973), ¶ 73,240 P-H Memo TC (same).

Fior D'Italia does not challenge this basic principle of law. Rather, it seeks to explain why this principle should not apply here, or why it should not determine the outcome of this case in the Government's favor.


Fior D'Italia's primary argument rests upon the statute that imposes the FICA tax. It points out that the tax law says there is "imposed on every employer" an "excise tax" calculated on the basis of "wages . . . paid by him" as those "wages" are "defined in" 3121. 3111(a), (b). It adds that the subsection of 3121 which specifies that "wages" includes tips (subsection q) refers to "tips" as those "received by an employee in the course of his employment," i. e., to tips received by each employee individually. (Emphasis added.) Fior D'Italia emphasizes 3121(q)'s reference to the employee in the singular to conclude that the "employer's liability for FICA taxes therefore attaches to each of these individual payments, not when they are later summed and reported." Brief for Respondent 28 (emphasis in original).

In our view Fior D'Italia's linguistic argument makes too much out of too little. The language it finds key, the words "tips received by an employee," is contained in a definitional section, 3121(q), not in the sections that impose the tax, 3111(a), (b). The definitional section speaks in the singular. It says that an employee's (singular) tips "shall be considered remuneration" for purposes of the latter, tax imposing sections. 3121(q). But the latter operational sections speak in the plural. They impose on employers a FICA tax calculated as a percentage of the "wages" (plural) paid to "individuals" (plural) by the employer "with respect to employment." 3111(a), (b). The operational sections consequently impose liability for the totality of the "wages" that the employer pays, which totality of "wages," says the defi-

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